Nezirovic v. Holt

• Decision Date: 25 February 2015
• Docket Number: No. 14–6468.,14–6468.
• Citation: 779 F.3d 233
• Parties: Almaz NEZIROVIC, Petitioner–Appellant, v. Gerald S. HOLT, United States Marshal, Western District of Virginia; Bobby D. Russell, Superintendent, Western Virginia Regional Jail, Respondents–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

779 F.3d 233

Almaz NEZIROVIC, Petitioner–Appellant,

v.Gerald S. HOLT, United States Marshal, Western District of Virginia; Bobby D. Russell, Superintendent, Western Virginia Regional Jail, Respondents–Appellees.

No. 14–6468.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 10, 2014.

Decided: Feb. 25, 2015.

ARGUED:Andrew Wagner Childress, Pafford, Lawrence & Childress, PLLC, Lynchburg, Virginia, for Appellant. Elizabeth G. Wright, Office of the United States Attorney, Harrisonburg, Virginia, for Appellees. ON BRIEF:Timothy J. Heaphy, United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellees.

Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit Judges.

Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Chief Judge TRAXLER and Judge THACKER joined.

BARBARA MILANO KEENAN, Circuit Judge:

Almaz Nezirovic, a citizen of Bosnia and Herzegovina, entered the United States as a refugee in 1997 in the wake of the war in the former country of Yugoslavia. In 2012, Bosnia and Herzegovina requested Nezirovic's extradition based on war crimes he allegedly committed during the conflict. A magistrate judge in the Western District of Virginia issued a certification of extraditability, finding that Nezirovic was subject to extradition under a treaty between the United States and Bosnia and Herzegovina.

Nezirovic filed a petition in the district court for habeas corpus relief under 28 U.S.C. § 2241 to challenge the magistrate judge's certification. The district court denied Nezirovic's petition. Nezirovic now appeals, arguing that his extradition is barred (1) under the applicable statute of limitations, and (2) by the exemption provided in the treaty for “political offenses.” Upon our review, we affirm the district court's judgment.

I.

In the early 1990s, the former Socialist Federal Republic of Yugoslavia (Yugoslavia) collapsed, leading to a state of war between the country's ethnic groups. One of the constituent republics of Yugoslavia was the Socialist Republic of Bosnia and Herzegovina. Between April and December 1992, Nezirovic served as a member of the Croatian Defense Council (HVO, abbreviated from its Croatian name), a paramilitary group that deemed itself “the supreme defense body of the Croat people in Herzeg–Bosnia.” Nezirovic testified that he joined the HVO to protect himself and his family during the conflict after Serbian troops attacked Nezirovic's hometown. As a member of the HVO, Nezirovic was stationed as a guard at the Rabic internment camp in Bosnia and Herzegovina, which held in confinement persons of Serbian descent.

In January 1993, the Doboj Police Department of Bosnia issued a criminal report against Nezirovic, accusing him of committing war crimes against civilians while a guard at the Rabic camp. According to Bosnian authorities, Nezirovic engaged in the “individual and group torture and inhuman treatment of civilians of Serb nationality” detained at the camp, “causing great physical and emotional suffering and serious injuries.” Bosnian authorities alleged that [Nezirovic] personally beat prisoners using his arms and legs, his rifle, batons or sticks, and other objects. The treatment included threats of death, and the detained Serbian civilians were forced to endure starvation and other severe adverse health conditions. [Nezirovic] further exposed these Serbian civilians to great humiliation by forcing them to remove their clothing and to crawl on the ground, putting their noses in others' anuses, and to eat grass on which others had urinated. [Nezirovic] also forced Serbian civilians to expose three specific fingers (ones the prisoners, in the Orthodox tradition prevailing in the Serb community, would use for praying) on a table and he would then strike their fingers and the rest of their bodies using a rubber baton or stick.

A judge in Bosnia and Herzegovina issued a warrant for Nezirovic's arrest in 2003, six years after Nezirovic entered the United States. In 2012, Bosnian authorities made a request to the United States Department of State for Nezirovic's arrest and extradition pursuant to the Treaty Between the United States and Servia ¹ for the Mutual Extradition of Fugitives from Justice, U.S.-Serb., Oct. 25, 1901, 32 Stat. 1890 (treaty).² The extradition request was accompanied by the statements of twenty-one witnesses, who claimed that Nezirovic committed acts of torture.

After determining that the extradition request was governed by a treaty, the Department of State referred the request to the Department of Justice, which represents foreign governments in extradition proceedings conducted in United States courts. See generally Gon v. Holt, 774 F.3d 207, 210 (4th Cir.2014). Based on Nezirovic's place of residence in Roanoke, Virginia, the United States Attorney for the Western District of Virginia filed an extradition complaint for review by a magistrate judge in that district. See id. After an evidentiary hearing, the magistrate judge concluded that Nezirovic was subject to extradition under the treaty and entered a certification of extraditability. The district court later denied Nezirovic's habeas corpus petition. This appeal followed.

II.

A magistrate judge conducting extradition proceedings is required to evaluate whether “the evidence [is] sufficient to sustain the charge” under the terms of the treaty. 18 U.S.C. § 3184. The limited purpose of an extradition hearing is to determine “(1) whether there is probable cause to believe that there has been a violation of the laws of the foreign country requesting extradition, (2) whether such conduct would have been criminal if committed in the United States, and (3) whether the fugitive is the person sought by the foreign country for violating its laws.” Gon, 774 F.3d at 210 (citation omitted).

If the magistrate judge determines that these requirements have been met and that the applicable treaty does not otherwise bar extradition, the magistrate judge issues to the Secretary of State of the United States a certification of extraditability. 18 U.S.C. § 3184; Gon, 774 F.3d at 210; Mironescu v. Costner, 480 F.3d 664, 665 (4th Cir.2007). An individual who is the subject of such a certification may challenge the magistrate judge's finding only by filing a petition for a writ of habeas corpus. Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir.2007).

“Habeas corpus is available only to inquire whether the magistrate [judge] had jurisdiction, whether the offense charged is within the treaty and ... whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty of the asserted crimes.” ³Id. (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925)) (internal quotation marks and brackets omitted). The Secretary of State makes the final determination whether to extradite the fugitive to the requesting country, considering “factors affecting both the individual defendant as well as foreign relations-factors that may be beyond the scope of the judge's review.” Mironescu, 480 F.3d at 666 (internal quotation marks, alterations, and citation omitted); Gon, 774 F.3d at 210; 18 U.S.C. §§ 3184, 3186.

The United States and Serbia ratified the treaty at issue in this case in 1902.⁴ The parties to the treaty agreed to the extradition of persons who have “been charged with or convicted of” specified crimes in either country, “upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been committed there.” Treaty art. I. Although not initially listed in the treaty as an offense for which extradition was available, the offense of torture became an extraditable crime when the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was incorporated into the treaty in 1994.

In the present case, Nezirovic does not dispute that he is the person sought by Bosnian authorities for violation of certain laws of Bosnia and Herzegovina, and that the conduct alleged by the Bosnian authorities would have been criminal if committed in the United States. See Gon, 774 F.3d at 210. Nor does Nezirovic dispute that, subject to the treaty exceptions he argues here, the statements of the twenty-one witnesses are sufficient to establish probable cause to support a finding that there have been violations of the laws of Bosnia and Herzegovina. See id. Instead, Nezirovic alleges that two provisions in the treaty prevent his extradition for the alleged offenses.

The first treaty provision on which Nezirovic relies prohibits extradition for offenses that are time-barred in the surrendering country. Article VII of the treaty provides that

[e]xtradition shall not be granted, in pursuance of the provisions of this Treaty, if legal proceedings or the enforcement of the penalty for the act committed by the person claimed has become barred by limitation, according to the laws of the country to which the requisition is addressed.

The second provision of the treaty cited by Nezirovic exempts from extradition “political offenses.” Article VI of the treaty states that [a] fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.

We address in turn Nezirovic's challenges under these articles of the treaty.

A.

We first consider Nezirovic's claim that his extradition is barred by the statute of limitations applicable to his charged offenses. He contends that the magistrate judge and the district court erred in applying the indefinite limitations period in the United States Torture Act (the Torture Act o...