United States v. Bilic

• Decision Date: 02 September 2022
• Docket Number: 2:18-mj-478-CMR
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MEHMED BILIC, Defendant.
• Court: U.S. District Court — District of Utah

UNITED STATES OF AMERICA, Plaintiff,
v.
MEHMED BILIC, Defendant.

No. 2:18-mj-478-CMR

United States District Court, D. Utah, Central Division

September 2, 2022

MEMORANDUM DECISION AND ORDER

Cecilia M. Romero Magistrate Judge

This matter is before the undersigned in accordance with District of Utah Local Criminal Rule 57-15(e). Before the court is Plaintiff's, the United States of America's (Plaintiff or United States), Complaint for the Extradition of Defendant Mehmed Bilic (Defendant or Mr. Bilic) pursuant to an extradition treaty between the United States and Bosnia-Herzegovina (ECF 1).^[1] Also before the court is Defendant's Motion to Dismiss (ECF 64). After consideration of the extensive written submissions,^[2] as well as arguments presented by counsel at the extradition

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hearings,^[3]and all exhibits and testimony admitted at these hearings, the court DENIES the Motion to Dismiss (ECF 64), the court DENIES the request to certify this matter for extradition on the basis of the political offense exception, and the court DISMISSES the Complaint for Extradition (ECF 1).

I. BACKGROUND

Bosnia-Herzegovina requests that Mr. Bilic be extradited pursuant to its extradition treaty with the United States, the Treaty Between the United States and Servia for the Mutual Extradition of Fugitives from Justice, U.S.-Yugo., Oct. 25, 1901, 32 Stat. 1890 (the “1902 Treaty”) (ECF 1, Ex. 1). Bosnia-Herzegovina alleges that Mr. Bilic engaged in war crimes in July 1992 in the village of Vecici. At the time, the region was engaged in a civil war as discussed in more detail elsewhere in this Order. According to Bosnia-Herzegovina, in July and August 1992 members of Bosniak-Croat forces, which included Mr. Bilic, captured six Bosnians Serbs in the municipality called Rastnik. Bosnia-Herzegovina alleges that the group of Bosniak-Croat forces, including Mr. Bilic, engaged in torture and war crimes against the six Bosnian Serb detainees (ECF 1). The alleged conduct included beatings, and the death of two detainees as a result of the injuries they sustained (ECF 1).

Later in 1992, Mr. Bilic was incarcerated in a concentration camp under the control of the Bosnian Serbs (Def.'s Hr'g Ex. C, E) as a prisoner of war. The Ministry of Defense issued a certificate in March 1993 affirming that Mr. Bilic was being held in a camp, “based on a list of persons being held . . . . which we got from the aggressor's side for the purposes and needs of the Commission for the exchange of prisoners of war” (Def.'s Hr'g Ex. C). In 1993, he was extricated

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from that camp by the International Committee of the Red Cross (the Red Cross) as part of a prisoner exchange (Def's Ex. C, D, E). In July 1993, the United Nations High Commissioner for Refugees issued a certificate that Mr. Bilic was under the protection of that office (Def's Hr'g Ex. D). On July 22, 1993, Mr. Bilic applied for refugee status and in that application, he described some of the events of 1992 (Def's Hr'g Ex. E). He explained in that application and its supplemental materials that he is a Bosnian Muslim; that his village, Vecici, was surrounded by Serbian armed forces; that he and others were captured by Serbian soldiers when he tried to escape; that he was taken to a school gymnasium where he was beaten and interrogated; that he was later transferred to other camps; and he was later rescued by the Red Cross (Def's Hr'g Ex. E). He also explained he had nowhere to return to in Bosnia because his house was destroyed by the Serbian forces who drove all Muslims out of Vecici (Def's Hr'g Ex. E). He and his family obtained refugee status. In that process, Mr. Bilic asked to be relocated to a place that would be safe for his children (Dec. 2, 2020 Hr'g Test. at 1:13-:25). The family was relocated to the United States (Id.).

Mr. Bilic submitted those same refugee application materials, that were filled out shortly after his capture and release in 1993, with his Application for Naturalization that he submitted to United States in 2004. (Def's Hr'g Ex. E). He became a naturalized citizen of the United States on January 12, 2005 (Ex. E). He works as a carpenter and is a member of the Southwest Regional Council of Carpenters (ECF 11-4, -5). He is married, his family lives in Utah, and he is active in the local community (ECF 11-7, -8, -9). Mr. Bilic returned to Bosnia-Herzegovina twice after his relocation to visit his mother, once in 1998 and another time in 2002. (Dec. 2, 2020 Hr'g Test. at 1:25-2:05). Both trips were made with his Bosnian passport (Id.; Def's Hr'g Ex. F). At no point was he detained by the government in Bosnia-Herzegovina (Dec. 2, 2020 Hr'g Test. at 1:25-2:05).

In 2008, sixteen years after the alleged events, Bosnia-Herzegovina issued a warrant for

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Mr. Bilic's arrest charging him with war crimes against civilian population, in violation of Article 142(1) of the Criminal Code of the Socialist Federative Republic of Yugoslavia, and war crimes against prisoners of war in violation of Article 144(1) of the same code (ECF 1, Pl.'s Hr'g Ex. 2 at subsec. D (Dec. 30, 2008 Order to Issue an Arrest Warrant for the Suspects)).^[4] Mr. Bilic was not arrested at that time because he was no longer in Bosnia-Herzegovina (ECF 1). In 2009, three of the Bosniak-Croats alleged to be involved in the events were convicted of war crimes in a court in Bosnia-Herzegovina (ECF 1). In 2015, Bosnia-Herzegovina provided documents to the United States requesting extradition of Mr. Bilic (Pl.'s Hr'g Ex. 2). As noted above, those papers alleged that Mr. Bilic violated Article 142(1) and 144(1) of the Criminal Code of the Socialist Federative Republic of Yugoslavia for crimes against civilians and against prisoners of war (Pl.'s Hr'g Ex. 2 at subsec. D). The United States certified those extradition request documents in 2016 (Pl.'s Hr'g Ex. 1 at BillicExt0002 to 0005; ECF 1-1 at pp. 2, 5 of 65; Pl.'s Hr'g Ex. 1 at p. 1 (Foreign Service Certificate)).

The United States then initiated the filing of the Complaint in this court and an arrest warrant was issued (ECF 1). Mr. Bilic was arrested on September 5, 2018 in the District of Utah (ECF 10). Following his initial appearance, the court ordered Mr. Bilic detained (ECF 8) and he remained in detention until the court granted (ECF 86) Defendant's Second Motion to Reconsider Detention (ECF 82). The court ordered Mr. Bilic released in light of the procedural history and complexity of the issues presented, coupled with special circumstances related to the COVID-19 global health pandemic (ECF 86). Since his release, Mr. Bilic has fully complied with his

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conditions of release.

II. DISCUSSION

A. Framework for Extradition

Extradition is primarily an executive responsibility with a specially-defined role for a judicial officer. E.g., United States v. Perilla Umbarila, 562 F.Supp.3d 729, 734 (C.D. Cal. 2022). “The power to extradite derives from the President's power to conduct foreign affairs.” Martin v. Warden, Atlanta Penitentiary, 993 F.2d 824, 828 (11th Cir. 1993) (citing U.S. Const. art. II § 2, cl. 2). Notwithstanding the Executive Branch's authority over matters of international diplomacy, Congress assigned the courts a particular role in the extradition process. 18 U.S.C. § 3184. That role is set forth by statute at 18 U.S.C. § 3184. Upon presentation of a complaint that a person within its jurisdiction has committed a crime in a foreign state covered by an existing treaty, the presiding court may issue a warrant to apprehend the person. Id. The person then appears before the court at for an extradition hearing, “to the end that the evidence of criminality may be heard and considered.” Id.

After that hearing, the court is to either certify the matter for extradition or deny the certification. To certify extradition, the court must find all of the following five criteria are satisfied: (1) the court has jurisdiction to conduct extradition proceedings; (2) the court has jurisdiction over the person; (3) an extradition treaty is in force and effect; (4) the person is being sought for offenses for which the applicable treaty permits extradition; and (5) there is sufficient evidence to establish probable cause that the individual appearing in court is the person who committed the offense for which extradition is requested. E.g., Perilla Umbarila, 562 F.Supp.3d at 734-35; United States v. Hidalgo, No. 2:10-mj-165-PMW, 2011 WL 754270, at *4 (D. Utah Feb. 24, 2011) (citing Fernandez v. Phillips, 268 U.S. 311, 312 (1925)). If the elements are met,

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the magistrate judge must certify the extradition and has no discretion to decide otherwise. E.g., Perilla Umbarila, 562 F.Supp.3d at 735.

If the court certifies extradition, then the matter moves to the Secretary of State who ultimately decides whether to surrender the person to the requesting country. 18 U.S.C. §§ 3186, 3196. The person facing extradition cannot directly appeal the district court's extradition order but can challenge the order by filing a petition for a writ of habeas corpus. E.g., Pasoprat v. Benov, 421 F.3d 1009, 1013 (9th Cir. 2005); Manrique v. O'Keefe, Case No. 21-cv-08395-LB, 2022 WL 1212018, at *6 (S.D. Cal. April 22, 2022). A habeas review of an extradition order is limited to: (1) whether the extradition court had jurisdiction to conduct the proceeding and jurisdiction over the individual sought; (2) whether the extradition treaty was in force and the crime fell within the treaty's terms; (3) whether there was probable cause that the individual committed the crime; and (4) whether the crime fell within the political offense exception. E.g., Prasoprat, 421 F.3d at 1013; Manrique, 2022 WL 1212018, at *6. If court denies the certification, then the United States and the requesting country can begin the extradition process again. E.g., Gill v. Imundi, 747 F.Supp. 1028, 1039 (S.D.N.Y. 1990) (citing In re Doherty, 786 F.2d 491, 501 (2d Cir. 1986))...