In re the Extradition of Atuar, Miscellaneous No. 5:03-MC-0104 (S.D. W.Va. 12/12/2003)

• Decision Date: 12 December 2003
• Docket Number: Miscellaneous No. 5:03-MC-0104.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: IN THE MATTER OF THE EXTRADITION OF LIOR ATUAR, also known as "ITAMAR SINAI" and "DANIEL ROZEN".

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IN THE MATTER OF THE EXTRADITION OF LIOR ATUAR, also known as "ITAMAR SINAI" and "DANIEL ROZEN".

Miscellaneous No. 5:03-MC-0104.

United States District Court, S.D. West Virginia.

December 12, 2003.

Philip H. Wright, Esquire, Charleston, West Virginia, of Counsel for the United States.

Edward H. Weis, Esquire, Charleston, West Virginia, of Counsel for Relator.

MEMORANDUM OPINION

R. CLARKE VANDERVORT, Magistrate Judge.

On July 11, 2003, the United States, by counsel, Assistant United States Attorney Philip H. Wright, filed a Complaint under oath pursuant to 18 U.S.C. § 3184¹ in behalf of the government of the Republic of Turkey seeking the extradition of Lior Atuar, also known as "Itamar Sinai" and "Daniel Rozen" (Relator) to the Republic of Turkey based upon the Extradition and Mutual Assistance in Criminal Matters Treaty between the United States of America and the Republic of Turkey which was signed on June 7, 1979, and entered into force on January 1, 1981. (Document No. 1.) The United States' Complaint includes Exhibit No. 1 containing (1) the Declaration of Kenneth R. Propp, Attorney Adviser in the Office of the Legal Adviser for the Department of State, Washington, D.C., "charged with the extradition case of Lior Atuar."; (2) the Department of State Authentication of Mr. Propp's Declaration; (3) the request of the Republic of Turkey for the extradition of Lior Atuar dated April 16, 1999, stating as follows:

Lior Atuar, born on March 30, 1970, in Israel, is sought by the Turkish authorities for involvement in a conspiracy to acquire, possess and sell heroin inside Turkey. As it was established that he had left Turkey following the commission of the said offenses, an international arrest warrant, Interpol Red Notice A-114/3-1997, has been drawn in his name. The United States Department of Justice has informed the Turkish authorities through two facsimile messages, dated 8 and 15 January 1999, that Lior Atuar was arrested in the State of Florida on drug trafficking and kidnapping charges.

(4) a copy of the Extradition and Mutual Assistance in Criminal Matters Treaty between the United States and the Republic of Turkey. The United States' Exhibit No. 1 also contains the Certification of James F. Jeffrey dated April 24, 2001, the Department of State's Deputy Chief of Mission in Ankara, Turkey, between 1999 and 2002, confirming the legal authenticity of a December 11, 2000, Memorandum "to the concerning judicial authority of the U.S.A." of a Judge in the Izmir Court of State Security of the Republic of Turkey and attachments thereto written in the Turkish language and a translation of the Memorandum and attachments into English. By the Memorandum, the Izmir Court Judge requests the extradition of Lior Atuar to Turkey. The attachments to the Memorandum of the Turkish Judge are copies of the following documents:

1. Articles 403/5, 403/6 and 403/7 of the Turkish Criminal Code with Articles 403/5 and 403/7 making it a crime to traffic or conspire to traffic in narcotics and specifying in Article 403/6 "heavy imprisonment to be imposed shall be doubled" for selling, purchasing or possessing heroin, cocaine, morphine or hashish; Articles 31, 33, 36, 40, and 59, penalty provisions; Articles 102 and 104, statutes of limitation;

2. An Indictment and an Additional Indictment of the Antalya Office of the Public Prosecutor charging Fahri Yasin and Efrahim Dahan with acting as intermediaries between Hasan Erkus and Itamar Siani in an exchange of heroin, Hasan Erkus with selling and "Itamar Siani (David)", identified by the Public Prosecutor on March 9, 1992, as Lior Atuar, with purchasing heroin on May 3, 1991;

3. A Decision of a Judge of the Antalya State Penal Court charging the four persons accused in the Indictment and Additional Indictment with violations of Articles 403/5, 6, and 7 of the Turkish Criminal Code, stating in detail the factual basis for the allegations against them and finding that jurisdiction was properly in the Izmir State Security Court and transferring the file there;

4. A May 11, 1991, Protocol of a police officer indicating that Itamar Siani was detained at the airport on May 10, 1991, and "let into the superintendence" at 1:15 a.m. on May 11, 1991. The Protocol states that at about 3:45 a.m. Itamar Siani escaped;

5. A May 16, 1991, Warrant for the Arrest of Itamar Sinai;

6. A March 5, 1992, Warrant for the Arrest of Lior Atuar indicating that Lior Atuar is an Israeli citizen, August 30, 1963, is his date of birth, 583456 is his Israel identification card number, and 4364188 is his passport number;

7. A December 11, 1991, Record of Identification based on Photograph indicating that Fahri Yasin identified the person depicted in a photograph as Lior Atuar as the person charged with him in the heroin transaction;

8. An Examination Protocol of the Antalya First Minor Court for Petty Offenses and a May 12, 1991, Statement of Fahri Yasin consisting of five pages;

9. Proceedings of the Prosecutor's Office²;

10. Protocol of a December 17, 1991, Session in the Court of State Security of the Republic of Turkey at which Fahri Yasin was present and represented by an attorney indicating that Mr. Yasin stated upon the reading of his examinations and statements given in Antalya Criminal Court that "they are same and right. My statements are valid." Respecting his statements made at the Criminal Court, Mr. Yasin stated that "[m]y statements given at the Minor Court and Criminal Court are right."Mr. Yasin was shown photographs at the session, and he stated that "[b]oth photos are belonging to David. According to the birth registry, his name is Itamar Siani. The person whom I personally have let be caught, is David, whose photos you have shown to me. If they would take me with, I could let to be caught Hasan too at Istanbul. But as David has fled, they didn't me take with, thinking that I might flee too. I have been kept 15 days in torture. I could not flee.";

11. A December 17, 1991, forensic report indicating that 34.482 kilograms of heroin and 6.896 kilograms of an intermediary substance in producing heroin from morphine were seized in conjunction with the alleged drug transaction of the four persons; and

12. A March 20, 1992, Decision of the State Security Court of the Republic of Turkey charging Fahri Yasin, Hasan Erkus, Lior Atuar and Efrahim Dahan with selling and purchasing heroin in violation of Articles 403/5, 6, and 7 of the Turkish Criminal Code and stating in detail the factual basis for the charges. The Decision also indicates that Hasan Erkus denied involvement in the heroin scheme and Mr. Yasin stated in Court that he was not the person who brought the heroin. Mr. Erkus was acquitted. For his part in the heroin transaction, Mr. Yasin was eligible for a sentence of 12 years, but with credit for cooperating, he received a sentence of five years in prison.³

The foregoing documents indicate the following factual scenario as the basis for the drug charges against Lior Atuar and others in Turkey. Having spent some time in prison, Fahri Yasin had loose or sporadic affiliation with Hasan Erkus in heroin dealing in Istanbul. He met "Itamar Siani" also known to him as "Davit" in Istanbul in 1990. Davit asked Mr. Yasin to find him some heroin. Mr. Yasin contacted Hasan Erkus and arranged a transaction between Hasan Erkus and Davit in heroin. In March, 1991, Mr. Yasin and Davit were taken to a house in Istanbul where Hasan Erkus stated the price he wanted for heroin. Mr. Yasin and Davit were returned to their hotel. Later, Mr. Yasin and Davit were taken to a place and shown heroin. The heroin was to be delivered to Antalya, and Davit was to pay for it there. Davit paid Mr. Yasin $34,000, and apparently, Mr. Yasin bought a Mercedes in Istanbul. Mr. Yasin and Davit flew from Istanbul to Antalya and went to a hotel. Hasan Erkus showed up, and the drugs and money were exchanged. Davit asked to use a car Mr. Yasin had. The car was in Istanbul. Mr. Yasin went to Istanbul. He and his brother drove the Mercedes and the other car to Antalya. Davit put the heroin in the car, and Mr. Yasin parked it in the parking garage of an Antalya hotel. He gave the keys to a parking attendant. It was early April, 1991, and Davit said he was leaving and would be back on May 10, 1991. On May 3, 1991, Mr. Yasin went back to the garage to get the car, and was arrested. He was interrogated and told the police that Davit was going to return on May 10 or 15. Working with the police, Mr. Yasin found out that Davit was flying in to the Antalya airport on May 10 at 10:00 p.m. He went with the police to the airport and pointed Davit out. The police arrested Davit, but Davit escaped at about 4:00 a.m. on May 11, 1991.

An Arrest Warrant was issued on July 14, 2003, and executed on July 18, 2003, at the Federal Correctional Institute, Beckley, West Virginia, where Relator "Daniel Rozen" is serving a term of imprisonment. (Document No. 7.)⁴ On July 22, 2003, the United States filed a Motion to Detain Pending Extradition Hearing and Memorandum of Law in Opposition to Bail. (Document Nos. 2 and 3.) On July 24, 2003, the Court held a hearing with Relator in attendance to assure that Relator had a copy of the United States' Complaint and Motion to Detain, to inform Relator of the nature of these proceedings and to determine whether Relator qualified for the appointment of counsel. Having determined that Relator qualified for appointment of counsel, the Court appointed Assistant Federal Public Defender Edward H. Weis to represent Relator. (Document No. 5.)⁵

On August 4, 2003, the United States filed a Memorandum respecting the Law of Extradition. (Document No. 6.) On November 18, 2003, Relator filed a Memorandum in Opposition to Extradition. (Document No. 16.) Attached as Exhibit I to Relator's Memorandum is the Declaration of Fahri Yasin dated November 13, 2003. Mr. Yasin states as follows in his Declaration:

1. I...