Sacirbey v. Guccione

• Decision Date: 09 December 2009
• Docket Number: Docket No. 06-5137-pr (L).,Docket No. 07-0018-pr (con).
• Citation: 589 F.3d 52
• Parties: Muhamed SACIRBEY, Petitioner-Appellant, v. Joseph R. GUCCIONE, United States Marshal for the SDNY; Officer Dennis Spitzer, Chief Pretrial Services for the Southern District of New York, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

589 F.3d 52

Muhamed SACIRBEY, Petitioner-Appellant, v. Joseph R. GUCCIONE, United States Marshal for the SDNY; Officer Dennis Spitzer, Chief Pretrial Services for the Southern District of New York, Respondents-Appellees.

Docket No. 06-5137-pr (L).

Docket No. 07-0018-pr (con).

United States Court of Appeals, Second Circuit.

Argued: February 26, 2008.

Decided: December 9, 2009.;

James J. McGuire (Kesari Ruza, Timothy J. McCarthy, Elizabeth Rotenberg-Schwartz, Sean J. Kirby, of counsel), Sheppard, Mullin, Richter & Hampton LLP, New York, NY, for Petitioner-Appellant Muhamed Sacirbey.

Anjan Sahni, Assistant United States Attorney (Michael J. Garcia, United States Attorney, on the brief, Jonathan S. Kolodner, Assistant United States Attorney, of counsel), Office of the United States Attorney for the Southern District of New York, New York, NY, for Respondents-Appellees Joseph R. Guccione and Dennis Spitzer.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

In this appeal we consider whether an arrest warrant issued by a foreign court that no longer has jurisdiction over the accused, nor the power to enforce the warrant, can provide an adequate basis for the extradition of a United States citizen. This is a question of first impression-and the fact that this issue has not been previously decided should not be surprising. It is a rare circumstance where the very document that provides the basis for an extradition request turns out to have been issued by an entity that no longer has lawful authority over the matter. While the factual and procedural history of this case is extraordinary, our resolution of it requires only that we apply the plain meaning of the provisions of the relevant treaty. The treaty authorizes the extradition of an individual who has been "charged" with a crime and requires that an arrest warrant and supporting materials be provided in order to obtain that extradition. Because the arrest warrant at issue in this case was issued by a court that neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the treaty that an individual be "charged" with an extraditable offense has not been satisfied. This defect falls within the narrow category of issues that is cognizable on habeas review of an extradition order; we therefore reverse the order of the District Court denying the petition for a writ of habeas corpus.

BACKGROUND

A. Factual Overview¹

Muhamed Sacirbey, also known as Muhamed Sacirbegovic, was born in 1956 in Sarajevo, Yugoslavia. At that time, the Communist regime led by Josip Broz (Tito) controlled Yugoslavia, and Sacirbey's parents opposed Tito's authoritarian government. For their dissenting political beliefs, Sacirbey's parents were imprisoned for a time. In the 1960s, the Sacirbey family fled Yugoslavia and immigrated to the United States, where they settled in Ohio. On April 27, 1973, at the age of sixteen, Sacirbey became a naturalized citizen of the United States. During the years that followed, Sacirbey attended Tulane University on a football scholarship; he earned a bachelor's degree and a degree in law at Tulane and a Master of Business Administration degree at Columbia University. After his admission to the Bar of the State of New York, Sacirbey worked as a lawyer for a New York law firm. In the 1980s, he left his law firm to work in the financial sector, first as a Vice President at Standard and Poor's, the rating agency, and later as Vice President of an investment bank.

On April 5, 1992, the Republic of Bosnia and Herzegovinia ("Bosnia") declared its independence from Yugoslavia. The United States officially recognized Bosnia's independence two days later, and Bosnia was admitted to membership in the United Nations on May 22, 1992. Shortly thereafter, Bosnian President Alija Izetbegovic, a leader of the Muslim community of Bosnia, appointed Sacirbey to serve as Bosnia's ambassador to the United Nations. Despite international recognition, Bosnian Serbs continued to oppose independence and, with the support of the government of Serbia—a neighboring province in the former Yugoslavia—launched a violent campaign to partition the country along ethnic lines. According to the United States Department of State, "[t]he conflict continued through most of 1995, and many atrocities were committed, including acts of genocide committed by members of the [Bosnian Serb armed forces] in and around Srebrenica from July 12-22, 1995, where approximately 8,000 Bosnian Muslim men and boys were killed." Bureau of European and Eurasian Affairs, U.S. Dep't of State, Background Note: Bosnia and Herzegovina (2009), available at www.state.gov/r/pa/ei/bgn/2868.htm (last visited December 8, 2009). Sacirbey, appointed Bosnian Foreign Minister upon the assassination of his predecessor in 1995, represented Bosnia at peace talks held in 1995 outside of Dayton, Ohio.² Those talks lead to the Dayton Peace Accords, which were formally signed on December 14, 1995 in Paris and which ended the war in Bosnia after more than three years and ensured Bosnia's independence under the supervision of a High Representative selected by the United Nations Security Council. Id.

Sacirbey continued to represent Bosnia at the United Nations until 2000. During his eight-year tenure as Bosnia's first United Nations ambassador, Sacirbey opened the Permanent Mission to the United Nations and the General Consulate of Bosnia in New York (the "U.N. Mission"), promoted the creation of the International Criminal Tribunal for the former Yugoslavia (the "ICTY"),³ and managed the legal team in an action against Yugoslavia for genocide in the International Court of Justice ("ICJ").⁴ For much of this period, the finances of the U.N. Mission were in disarray. Sacirbey claims that he received no salary for his services and that he had to open the U.N. Mission using his personal resources, including fees from his speaking engagements, and by soliciting contributions from sympathetic nations. As Sacirbey concedes, funds earmarked for one project were often spent on another, and personal bank accounts were used to house those funds. See J.A. 11-12 (Affidavit of Muhamed Sacirbey, Mar. 17, 2005, at ¶¶ 21-27).⁵

Sacirbey resigned from his ambassadorship and returned to private life in the United States in December 2000. After his resignation, Sacirbey claims to have learned that Bosnian Foreign Minister Zlatko Lagumdzija, a perceived political adversary of Sacirbey and allegedly a former official in the Communist Party, had launched an investigation of him. In early 2001, the Foreign Ministry requested that the Cantonal Prosecutors Office in Sarajevo⁶ investigate alleged financial irregularities at the U.N. Mission during Sacirbey's tenure. On April 11, 2001, the Cantonal Prosecutor submitted a Demand for Investigation to the Cantonal Court, alleging that Sacirbey had abused his office in violation of Bosnian law. Specifically, the prosecutor alleged that (1) Sacirbey had embezzled $610,982.46 and (2) there was a $1.8 million shortfall in an investment account over which Sacirbey had signature authority.⁷ See Sacirbey v. Guccione, No. 05 Cv. 2949, 2006 WL 2585561, *1, 2006 U.S. Dist. LEXIS 64577, at *4 (S.D.N.Y. Sept. 7, 2006) ("Sacirbey II"). In response to the prosecutor's application, the Cantonal Court issued a Decision to Investigate Sacirbey on August 20, 2001, and later, on December 5, 2001, a Decision for Detention and an International Arrest Warrant for Sacirbey. Id. at **1-2, 2006 U.S. Dist. LEXIS 64577, at *5-6.

Bosnia sought the extradition of Sacirbey in a formal request to the United States Department of Justice dated January 29, 2002. Bosnia's request was made pursuant to an extradition treaty executed in 1902 by the United States and the Kingdom of Serbia (the "Treaty"),⁸ which provides, in part, that The Government of the United States and the Government of Servia [sic] mutually agree to deliver up persons who, having been charged with or convicted of any of the crimes and offenses specified in the following article, committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided, that this shall only be done 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 for Mutual Extradition of Fugitives from Justice, U.S.-Serb., art. I, Mar. 7, 1902 (date of ratification by the President), 32 Stat. 1890, 12 Bevans 1238. Under Article II of the Treaty, "[e]mbezzlement by public officers" is among the offenses specified for extradition. Id. In order to secure extradition of a "fugitive [who] is merely charged with crime," Article III of the Treaty requires the requesting government to provide "a duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions or other evidence upon which such warrant was issued...." Article IV provides that "in advance of the presentation of formal proofs, complaint on oath ... shall be made by an agent of the Government of Servia [sic] before a judge or other magistrate authorized to issue warrants of arrest." In addition, the Treaty provides that "[n]either of the high contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this Treaty," id. at art. V, and that "offense[s] of a political character" may not lead to extradition under the Treaty, id. at art. VI.

While the Treaty expressly authorizes the United States to decline to extradite Sacirbey because he is a U.S. citizen, the Department of State is authorized by statute to extradite U.S. citizens who otherwise come within the scope of the relevant extradition treaty. See 18...