*1 immunity the town officials’ reasonable belief that fied and municipal liability. emergency Furthermore, a need to take ac- there was given the eventual dismissal tion. claims, plaintiffs’ of all of federal we find that the district court acted well within its The case at bar is much closer to discretion in declining supple- to assert Catanzaro than to Burtnieks. Plaintiffs mental plaintiffs’ over state- evidence sufficient to produced have not law claim. Marcus v. AT T Corp., See & dispute genuine concerning create (2d Cir.1998) (“In general, 138 F.3d whether the defendants abused their dis where the federal claims are dismissed determining emergency cretion in that an trial, before the state claims should be proximity existed. The Hotel Holland’s well.”). dismissed as closing State Road 11 necessitated the thoroughfare and the important dam CONCLUSION age danger to its facade created a of fall situation, ing debris. such no reason above, For the reasons set forth trier fact that able could conclude judgment of the district court is AF- Village emergen officials’ decision to take FIRMED. cy arbitrary action was or abusive. they argue produced Plaintiffs have Village
evidence that the could have ade-
quately protected public with less dras- They
tic measures. assert since the
collapse of the Hotel Holland was not im-
minent, Village protected could have public temporary with devices such as SACIRBEY, Muhamed Petitioner- boarding up building removing Appellant, debris from the sidewalk. Assuming ar- guendo plaintiffs have raised valid questions Village about whether the chose Joseph GUCCIONE, R. United States possible safeguarding best method of SDNY; Marshal for the Officer Den- public, showing such a sufficient Spitzer, nis Chief Pretrial Services for summary judgment. defeat As Catan- York, the Southern District of New clear, zaro hindsight analysis makes such Respondents-Appellees. of a municipality’s dealing means of an emergency encourage delay would (L), 06-5137-pr Docket Nos. increasing public’s exposure risk (con). 07-0018-pr dangerous plaintiffs conditions. Since United States Court of Appeals, produced have not evidence sufficient to Second Circuit. allow a reasonable finder of fact to con- Village’s clude that decision to take Argued: Feb. emergency arbitrary action was or an discretion, Decided: Dec. abuse of the district court cor- rectly granted summary judgment to
defendants.
Because we conclude there was no plaintiffs’
violation of the constitutional
rights, quali- we do not reach the issues of *2 very
is a rare circumstance where the provides document that the basis for an request turns out to have been by an entity issued that no has *3 authority lawful over the matter. While procedural history the factual and of this extraordinary, case is our resolution of it requires only that apply plain we meaning provisions of the relevant treaty. treaty authorizes the extradi- tion of an individual who has been “charged” requires with a crime and an supporting arrest warrant and materi- provided als be in order to obtain extradition. Because the arrest warrant at issue in this case issued a court jurisdiction that neither has over mat- (Kesari Ruza, Timo- James J. McGuire warrant, authority ter nor to enforce the thy McCarthy, Rotenberg- Elizabeth J. requirement treaty that an indi- counsel), Schwartz, Kirby, of Shep- Sean J. vidual be “charged” with an extraditable Mullin, LLP, & pard, Hampton Richter offense has not York, been satisfied. This defect NY, Petitioner-Appellant New for falls within Sacirbey. category the narrow of issues Muhamed cognizable that is on habeas review of an Sahni, Anjan Assistant United States order; we therefore reverse (Michael Garcia, Attorney J. United States the order of denying the District Court brief, Attorney, on the Jonathan S. Kolod- petition for a writ of corpus. habeas ner, Attorney, States Assistant United counsel), Office of the United States Attor- York,
ney for the Southern District of New BACKGROUND York, NY, Respondents-Appel- New A. Factual Overview1 Joseph Spit- lees R. Guccione and Dennis zer. Sacirbey, Muhamed also known as Mu- Saeirbegovic, hamed was born in KEARSE, LEVAL, Before: Sarajevo, time, Yugoslavia. At that CABRANES, Judges. Circuit regime by Josip Communist led Broz CABRANES, (Tito) Judge: Yugoslavia, JOSÉ A. Circuit controlled and Sacir- bey’s parents opposed Tito’s authoritarian In appeal we consider whether an government. dissenting political For their foreign arrest warrant issued a court beliefs, Sacirbey’s parents impris- were that no over the has 1960s, oned for time. the Sacir- accused, nor power enforce the war- bey family Yugoslavia fled and immigrated rant, provide adequate can basis States, they United where settled in extradition of a United States citizen. 27, 1973, April Ohio. age On question impression-and This is a of first sixteen, citi- previ- the fact that this issue has not been became naturalized ously It surprising. During decided should not be zen of the United States. noted, following dispute. Unless otherwise facts are followed, 12-22, 1995, Tu- July attended nica from years approxi where 8,000 University scholarship; mately on a football Bosnian lane Muslim men and degree boys a de- he earned a bachelor’s were killed.” Bureau European Affairs, in law at Tulane and a Master of gree Dep’t State, Eurasian degree at Background Business Administration Colum- Note: Bosnia Herzegovi (2009), University. bia After his admission to the na at www.state.gov/r/pa/ available (last York, Sacirbey Bar of New ei/bgn/2868.htm State visited December 2009). lawyer worked as a for a New York law Sacirbey, appointed Bosnian For 1980s, firm eign upon firm. In the he left his law Minister the assassination of his sector, in the financial predecessor represented work first as Vice Bosnia at *4 Poor’s, peace President at and the rat- in Standard talks held Dayton, outside of ing agency, and later as of Ohio.2 Dayton Vice President Those talks lead to the Accords, an investment bank. Peace formally signed which were on December 1995 in Paris and which 5, 1992, April Republic On of Bosnia ended the war in Bosnia after more than (“Bosnia”) Herzegovinia and declared its years three and ensured indepen Bosnia’s independence Yugoslavia. from The Unit- supervision dence under the of a High in- officially recognized ed States Bosnia’s Representative selected the United Na later, dependence days two and Bosnia Security tions Council. Id. membership was admitted to in the United May Shortly Sacirbey Nations on 1992. thereaf- continued to represent Bosnia ter, Alija Izetbegovic, Bosnian President at the During United Nations until 2000. Bosnia, community eight-year leader of the Muslim his tenure as Bosnia’s first Sacirbey ambassador, appointed Sacirbey to serve as Bosnia’s United Nations opened to the De- ambassador United Nations. the Permanent Mission to the international spite recognition, Bosnian United Nations and the General Consulate (the oppose independence continued to of Bosnia in York Serbs New “U.N. Mis and, sion”), support government promoted with the the creation of the Inter neighboring province in the for- Serbia —a national Criminal Tribunal for the former (the “ICTY”),3 Yugoslavia Yugoslavia managed mer a violent cam- and —launched paign partition country in an along legal against Yugo ethnic team action According genocide lines. to the United States De- slavia for in the International (“ICJ”).4 State, partment of conflict For much “[t]he continued Court Justice through many period, most and atrocities the finances of the U.N. Mis committed, including genocide disarray. Sacirbey were acts of sion were in claims salary committed members of the that he [Bosnian received for his services in open Serb armed and around Srebre- and that he had to the U.N. Mission forces] States, Quest 2.Sacirbey's pires, involvement in the Bosnian Modem and the a Glob peace process (characterizing Sacirbey has been al Nation 306-07 as described the mem- pugnacious, thoroughly oirs of several United States officials. Bill "the Americanized See Clinton, Bosnia”). foreign My (describing Sacirbey's minister of Life peace involvement in the American mission to eloquent public Sacirbey representa- and his "the Bosnia role as also served as Bosnia’s television”); face of Bosnia on American tive to the ICTY. Holbrooke, Richard To End a War 34-35 (stating Sacirbey agent was his "first Bosnian served as Bosnia’s before friend,” detailing Sacirbey's and role in the ICJ and later as a Vice Chairman of talks); Talbott, Dayton peace Preparatory Strobe The Committee of the International Experiment: Story Great Ancient Em- Criminal Court. resources, personal including Saeirbey had using his abused his office vio engagements, lation of speaking Specifically, fees from his and Bosnian law. (1) sympathet prosecutor from soliciting alleged Saeirbey contributions had (2) concedes, $610,982.46 Saeirbey ic As funds embezzled nations. there was a project earmarked for one were often million shortfall in an investment ac $1.8 another, spent personal bank ac Saeirbey signature on count over which had Guccione, authority.7 counts were used to house those funds. See No. (Affidavit 2585561, *1, 11-12 See J.A. Muhamed Sa Cv. 2006 WL ¶¶ 21-27).5 (S.D.N.Y. 17, 2005, cirbey, Mar. *4 U.S. Dist. LEXIS 2006) II”). Sept. (“Saeirbey In re Saeirbey resigned from his ambassador- sponse prosecutor’s application, ship private and returned to life Cantonal Court issued Decision to Inves United 2000. After States December 20, 2001, tigate Saeirbey August resignation, Saeirbey his claims to have later, 5, 2001, on December a Decision for Foreign learned that Bosnian Minister Detention International Arrest Zlatko Lagumdzija, perceived political **1-2, Saeirbey. Warrant for *5 Id. at adversary Saeirbey allegedly of and a for- 64577, U.S. Dist. LEXIS at *5-6. Party, mer official in the Communist had investigation early launched an of him. In sought Bosnia the extradition of Sacir- 2001, Ministry Foreign requested bey the in a request formal to the United Saraje- the Cantonal Prosecutors Office in Department States of Justice dated Janu- 6investigate alleged 29, vo financial irregulari- ary 2002. request Bosnia’s was made during Sacirbey’s ties at the Mission pursuant treaty U.N. to an extradition executed 11, 2001, April tenure. On the Cantonal in by the United and King- States the (the Prosecutor submitted Demand for Inves- dom of “Treaty”),8 pro- Serbia which Court, vides, tigation to the alleging part, Cantonal in Saeirbey also claims that he was part authorized not to be of the U.N. Mission's deficit fashion, to reallocate funds in this and that by because those funds had been donated ap his efforts before the ICTY and ICJ were government of Saudi Arabia and therefore did proved by Izetbegovic. President See J.A. 10 belong Ministry. Sacirbey (Affidavit 17, Sacirbey, of Muhamed Mar. 2585561, 6, WL at *1 n. 2006 U.S. Dist. 2005, 1118). 64577, LEXIS at *5 n. 6. Accords, Following Dayton Peace Bos treaty applies 8.This to Bosnia as a successor nia was divided into two sub-divisions: Peoples' Republic state to the former Federal Herzegovina of Bosnia Federation and and was, turn, Yugoslavia, of which a successor Republika Srpska. The Federation of Bosnia Kingdom state to the of Serbia. See In re The was, turn, Herzegovina divided into Sacirbegovic, Extradition Muhamed No. 03 of European ten ''cantons.” See Bureau of 01, 107094, **10-11, Crim. Misc. 2005 WL Affairs, State, Dep't Eurasian of Back 707, 2005 U.S. Dist. LEXIS at *30-32 (2009), ground Herzegovina Note: Bosnia (S.D.N.Y. 19, 2005) I”) ("Sacirbey Jan. www.state.gov/r/pa/ei/bgn/2868. available ("[T]he United States ... the Trea consider[s] (last 27, 2009). May htm visited As the Dis ty to be in effect between the United States observed, trict Court [are] "Cantons similar to [Bosnia].”); generally see 767 Third Ave. municipalities or counties the United Assocs. v. Consulate Gen. the Socialist Fed. Guccione, States.” No. 05 Cv. Republic (2d Yugo., 218 F.3d 2006 WL *1 n. 2006 U.S. Cir.2000) (noting among that Bosnia is (S.D.N.Y. Sept. Dist. LEXIS at *3 n. 3 Yugoslavia); successor states of Ivancevic v. 7, 2006) ”). (“Saeirbey II Artukovic, (9th Cir.1954) 211 F.2d ("[T]he $1.8 7. The treaty by million shortfall was determined extradition executed and be investigated a commission that the matter tween the United States and Serbia in 1902 is political States and that of a charac- “offense[s] The Government of United mu- of Servia [sic] and the Government ter” not lead to extradition under the who, up persons tually agree to deliver Treaty, at art. VI. charged with or convicted having been Treaty expressly While the authorizes speci- crimes and offenses the United to decline to extradite States article, committed following in the fied citizen, Sacirbey because he is a U.S. high of one of the within Department of State authorized stat- asylum seek an contracting parties, shall ute to extradite U.S. citizens who other- or be found within the territories of the scope wise come within the of the relevant Provided, only that this shall other: treaty. § See 18 U.S.C. criminality upon done such evidence of (“If applicable treaty or convention as, according place to the laws obligate does not the United States to fugitive person charged where the so foreign country, extradite its citizens to a found, justify would his or her shall be nevertheless, Secretary may, of State commitment for trial apprehension and country order the surrender to that of a commit- if the crime or offense had been United States citizen whose extradition ted there. country has been if requested Treaty Fugitives for Mutual Extradition of requirements other that treaty or con- Justice, U.S.-Serb., I, art. Mar. from met.”). Department vention are (date President), ratification appears State to have chosen to exercise 1890, 12 32 Stat. Bevans 1238. Under by requesting its discretion this case Treaty, Article II of the “[e]mbezzlement *6 17, Sacireby’s extradition. March On by public among officers” is the offenses 2003, the Department of Justice filed specified for extradition. Id. In order to Complaint for Arrest with a View Towards of a “fugitive [who] secure extradition Sacirbey Extradition of in the United crime,” merely charged with Article III of States District Court for the Southern Dis- Treaty requires requesting govern- Sacirbey trict of New York. was arrested duly “a provide copy ment to authenticated year in March and for detained over country warrant of arrest July until he was released on bail in 2004.9 committed,
where the crime has been depositions upon of the or other evidence History B. Procedural ” which such warrant was issued.... Arti- assigned Magistrate The matter was that “in provides cle IV advance Judge Frank Maas for a determination of presentation proofs, complaint of formal whether should be extradited ... shall agent oath be made request. re pursuant to Bosnia’s See In judge Government of Servia before a [sic] Sacirbego Muhamed Extradition magistrate or other authorized issue vic, 01, 2005 addition, No. 03 Crim. Misc. WL warrants of the Trea- arrest.” 107094, 707, *1, at 2005 U.S. Dist. LEXIS ty provides high con- “[n]either 2005) (S.D.N.Y. 19, (“Sacirbey at *1 Jan. tracting parties shall be bound to deliver I”). hearing held a on De up subjects Judge its own citizens or under the Maas V, 23, 2003, stipulations Treaty,” during govern- at which the of this id. art. cember contrast, present, treaty By valid and effective between the Cantonal Court’s related Sacirbey's Order of authorizes de- Peoples' Detention the United States and the Federal tention for a “not ... than one Republic Yugoslavia.''). Detention,” ("Decision J.A. 303 month.” 5, 2001). Sarajevo, Cantonal Court in Dec. claims, following testifying ment introduced the evidence that “after Sa- (1) support office, of extradition: the Cantonal cirbey party controlling left 20, 2001 August Court’s Decision to Inves- hands, government changed Bosnian (2) tigate; the Cantonal Court’s December party, the new ‘whichwas the former com- 5, 2001 for Detention and Inter- Decision recloaked, party, essentially munist had a (3) Sacirbey; national Arrest Warrant for very specific motive in going after mem- witness; the sworn statements of three bers of regime the former to discredit ” (4) Dalton, from E. an affidavit Robert **6-7, political them for at reasons.’ Id. Legal Treaty Adviser for Assistant 2005 U.S. Dist. LEXIS at *19-20. Department Affairs at the United States In an Opinion January and Order dated State, briefly explaining history 19, 2005, Magistrate Judge granted Maas **3-6, Treaty. id. at See U.S. Dist. request. Rejecting the extradition Sacir- *10-17; at Appellees’ LEXIS Br. 7-8. bey’s arguments, Magistrate Judge Maas Sacirbey opposed extradition on the (1) concluded that Bosnia had succeeded to (1) grounds that there was no valid extra- **11-12, Treaty, see id. at 2005 U.S. treaty dition between the United States (2) *33-34; Dist. LEXIS at the of- (2) Bosnia, the offense of Abuse of fense of authority” “abuse of was suffi- Authority Office or for which extradition ciently equivalent to “embezzlement sought Treaty failed to meet the re- public officers” warrant extradition un- (3) quirements, charge Bosnia had failed to Treaty, *15, der the see at 2005 U.S. offense, him formally with an extraditable (3) *45; Dist. LEXIS at a formal (4) probable Bosnia had failed to establish criminal charge required by is not cause to believe that he committed *16, Treaty, see id. at 2005 U.S. Dist. (5) crimes, and his conduct fell within a (4) *47-48; probable LEXIS cause Treaty exception political of a crimes had been established the affidavits sub- I, character. Sacirbey 2005 WL in support mitted of the extradition re- *1, 2005 U.S. Dist. LEXIS at *2. In *19, quest, see id. at Dist. LEX- case, support of his offered his *7 (5) 707, *57; at political-crimes IS testimony, own testimony as well as the of exception apply did not to allegations of Williams, Paul Robert a former State De- embezzlement, **19-21, see id. at partment employee professor and current 707, U.S. Dist. LEXIS at *58-61. On law, of and the declaration of Michael 25, January 2005, Judge Maas issued a Hartmann, then an adviser the State Certification of Extraditability and Order Department on criminal prose- matters of of [A 794] Commitment. Afghanistan, cution in expert as an later, Sacirbey Three months Sacirbey pe- Bosnian criminal law. filed a testified tition that the finances of for a writ of corpus pursuant the U.N. mission were habeas haphazard § to 28 2241 in during his tenure and that U.S.C his United States political using adversaries were a criminal District Court for the Southern District of (Barbara investigation against Jones, to retaliate him. New York Id. S. Judge).10 **6-8, 707, at 2005 U.S. Dist. LEXIS Observing scope of its review was (1) **20-25. Professor Williams corroborated limited determining whether Sacirbey appeal Magistrate corpus; could not remedy the Government’s sole is to Judge Maas's decision because order "[a]n complaint.” Wigen, file a new Ahmad v. granting denying ap- [extradition] is not (2d Cir.1990) (internal F.2d cita pealable. remedy An extraditee’s sole from omitted). tions an adverse decision is to seek a writ of habeas (2) jurisdiction jurisdiction, investiga- the Court has over the judge had magistrate (Tr. Treaty, Sacirbey,” fell within the tion of J.A. 851 charged offense Proceed- (3) 56:15-16, 4, 2005), to be ground ings a reasonable Oct. there was the District charged guilty the accused parties lieve Court authorized the to submit ad- offense, the District Court denied Sacir briefing question ditional on the of wheth- bey’s petition. See WL jurisdiction er a court had over the investi- *6, Dist. LEXIS 2006 U.S. gation Sacirbey. (citing Phillips, at *19 Fernandez v. Pursuant District Court’s authori- 311, 312, 45 S.Ct. 69 L.Ed. 268 U.S. zation, Sacirbey submitted declarations (1925)). Terzic, lawyer, from his Bosnian Zlatan petition, Sacirbey
In his habeas did not Hartmann, and from Michael the same juris- challenge Magistrate Judge Maas’s expert previously who had filed a declara- request, diction over Bosnia’s extradition in opposition government’s ap- tion to the habeas relief was effec- ground so that for plication Sacirbey. to extradite The Terzic tively id. at *6 n. conceded. See that, declaration stated based on Terzic’s n. Dist. LEXIS at *19 personal inquiries, neither the Cantonal Instead, other claims pressed he the two nor the Court Bosnia and Herze- review, habeas and made cognizable on (the Court”) govina “National “has been challenges several constitutional ... against Sacirbey. seized the case Magis- before adequacy proceedings Therefore, there no forum available to Judge trate Maas. resolution, us to approach petition remedies, respect cogni- appropriate challenge to the second claim or to With review, Sacirbey propriety legality allegedly failed to the of this zable on habeas (Nov. ongoing investigation.” that he was persuade the District Court J.A. 871-72 ¶ 2). an extraditable of- 2005 Decl. of Zlatan Terzic “charged” not alia, argued, flatly that Hartmann fense.11 inter Declaration stated legal deprived “by [govern- reforms in Bosnia had the admissions of the Bosnian over this ... neither the National nor ment] Cantonal Court Can- matter, Court, Prosecutor, thereby nullifying the arrest war- tonal nor the Cantonal only the case. The Sacirbey. argument possession rant for At oral be- have Court, organ denying possession counsel for state fore the District Sacir- bey affirming possession rather its emphasized, “The Cantonal Court is case but Prosecutor.” sys- done. It does not exist.... The old the office of the National (Nov. 22, my charged client 2005 Decl. of Michael tem under which J.A. *8 ¶ 25). (Tr. Sacirbey argued Hartmann disappeared.” has J.A. 845 of Pro- 2005). 50:1-4, jurisdiction his ceedings light of because no court had over Oct. “ ‘[tjhere crime, case, charged was not with a but government’s the concession he investigation.12 ambiguity’ only target as to whether the Cantonal the of Jones, power dispel Judge within Bosnia’s 11. Before abandoned that it was by changes legal argument any ambiguity the its his that Bosnia did not succeed to caused Treaty. system. WL He testified as follows: the See **6-7, LEXIS Dist. submissions^] a matter of when As formal 64577, at *21. submitted[,] it is submitted an extradition is by government it are and attached to Magis- judicial filed telephonic In a before documents. When Bosnia its conference Maas, Bassiouni, presented by Judge request, it had a document its trate Professor Cherif branch!,] testifying Sacirbey, suggested to it were the on behalf of executive attached In response, government submitted investigation which previously] was Kosovic, by two letters written Amra held [the] Prosecutor’s Office of Can- Sarajevo. ton Counselor to the Bosnian Embassy in letter, Washington, D.C. Kosovic’s first (Nov. 10, J.A. 961 2005 Letter of Amra 11, 2005, dated stated that October “[the Kosovic) added). (emphasis Recognizing proceed National will in the Court] matter that these letters “do[] not elaborate on [Sacirbey] request of if the for extradition relationship between the Cantonal appropriate would approved be au- Court, originally which issued the arrest thorities of United States.” J.A. [the] 960 warrant investigation demand for (Oct. Kosovic). 2005 Letter Amra A against Mr. Sacirbey, and [National letter, 10, 2005, second dated November Court], appears which now to be ... was equivocal question more on the seized of over Mr. jurisdic- whether the National Court had case,” the government argued that these tion over the case. Kosovic’s letter stated letters nevertheless demonstrated that “a in relevant part: Bosnian court ... would handle Mr. Sacir- bey’s proceeding upon his extradition.”
The Cantonal Court ... exists and hears (Nov. 22, J.A. 958 2005 Letter all of Assistant jurisdiction. cases that are within its Sahni). Attorney Anjan United States During period justice system re- forms, the [National Court] estab- agreed District Court gov with the can, lished and the [National] Court ernment. Explaining that the “issue case, request parties in a decide to arises because of change from [Bosnia’s] hear this case of extradition or oth- civil law a to common law system [13] since er if necessary requirements case the issuance of the original Demand according to the [Bosnian Criminal Pro- against Sacirbey,” the District Court found cedure are you met]. Code As were investigative “the functions which had informed, Prosecutor’s Office of [the] been vested civil [Bosnia’s] law courts Bosnia ... sent has notice that took [it] were to independent prosecu transferred judicial documents prosecutions branch in accor- system to an adversarial with treaty dance with the and in accordance independent prosecutors judge. and a neutral practice. with hap- international What gainsaid It cannot be that the current admin- pened intervening is an factor in which as political istrative and situation in Bosnia is far as we're concerned we do not know its USAID, uncertain. See Bosnia-Herzegovinia: implications says person which who Overview, www.usaid.gov/ available original issued that warrant no ha[s] (last locations/europe_eurasia/countries/ba/ authority. 27, 2009) ("After May visited negoti- extensive ations, (EU) European signed Union [T]he [United States] Government agreement Stabilization and Association position in a better to save us all the time step process [Bosnia] in the first in the argue effort to have to what is the becoming a candidate membership. for EU intent new getting of this Bosnian law However, largely ethnic dys- tensions and a judicial some official document from the functional, multi-layered governance struc- \i.e., requesting state Bosnia] confirms geared ture safeguarding rights toward ongoing validity prior *9 warrants ... groups the various ethnic develop- still hinder prosecutors. issued Cantonal Reforms, ment. establishing such strong as (Tr. 13:12-22, J.A. Proceedings 405-06 institutions, privatizing state-level 14:22-15:1, 3, state- 2003). gov- Nov. The Bosnian industry, fighting corruption, owned along ernment did not make a submission making meaningful progress in the suggested by lines rule of Professor Bassiouni. law, effort.”). require continued Apparently, change refers to Bosnia's system transition from a of court-conducted levelsf, The District Court also determined that and national at the cantonal tors offense, charged authority,” “abuse of system was estab a National Court and] Treaty’s fell within the enumerated of- lished, fed equivalent to the United States namely, the offense of embezzle- National fenses— system, and a new eral court **7-8, ment. See id. at Dist. U.S. II, adopted.” Sacirbey Code was Criminal 64577, at *24 Art. II (citing LEXIS 12, Dist. *7 n. 2006 U.S. 2006 WL Treaty). require- It further held that the at *23 n. 12. The District LEXIS 64577 criminality” i.e., ment of “dual — that, “by time the concluded Court alleged conduct constitute a criminal of- filed the Com United States Government “easily fense in both countries —was satis- plaint, Investigative Office the Can fied” because “there are numerous federal that had issued the Warrant tonal Court Sacirbey crimes for which could have been any power to enforce had Order in the on the charged United States based developments “quite These were it.” Id. *10, allegations against him.” Id. at point,” beside the the view the Dis po- Dist. at *33. The U.S. LEXIS Court, required because that is “[a]ll trict litical forth in Article exception offense set Sacirbey ‘charged,’ which he had is that Treaty VI of the did not bar at the time his extradition been extradition, according to the District *7, to be.” Id. at sought, and continues Court, to exception applied because 64577, at Dist. LEXIS *23. U.S. “political political figures,” offenses—not **10-11, id. at 2006 U.S. Dist. LEXIS authority from the Relying on Seventh *34, at and the financial misconduct Circuit, and a district court our Circuit political at issue here did not constitute observed that “[t]he the District Court Accordingly, offense. the District Court context, ‘charge,’ in this has been term charged concluded that offense fell require something to interpreted courts scope Treaty. within the charge: example, than a formal less Turning cognizable to the third claim on deemed satisfied requirement has been order, of an extradition habeas review ‘accused,’ subject where a or the re District Court determined there was questing prosecute’ nation ‘intends to Sacirbey was reasonable basis to believe *7, him.” Id. at 2006 U.S. Dist. LEXIS charged offense. The District guilty of the Assarsson, (quoting at *21 In re against Sacirbey: the evidence Court listed (7th Cir.1980) (“Assarsson F.2d (i) significant shortfalls in there were I”); Ashcroft, F.Supp.2d Borodin account, Mission’s over which [U.N.] (E.D.N.Y.2001)) (brackets 125, 129 omit (ii) authority; Sacirbey signature had ted). The District Court held that explain certain non- Sacirbey refused prose evidence showed Bosnia’s intent Ministry repre- expenditures routine Sacirbey authority. This cute for abuse sentatives, though proce- [Bosnian] even based on the record determination was do not allow for confidential ex- dures Judge before developed proceedings (iii) Izetbegovic President penditures; written Maas and on the two letters Sacirbey had been expressly denied Kosovie, counselor, Embassy the Bosnian spend authorized to funds [Bosnian] the District which demonstrated to Court (iv) cases; the ICJ ICTY present prosecute Sacirbey “a intent to that he would be able to represented National funds, [of Bosnia].” missing but restore some of the (v) so; *7, Dist. 2006 WL he have then failed do added). authori- (emphasis [Bosnian] evaded the efforts LEXIS *23 *10 question him about the Sacirbey ties to account- prejudice. failed to show Id. at (vi) **14-15, ing problems; and he failed to ac- 2006 U.S. Dist. LEXIS at Third, properly personal count for advances Sacirbey *45-46. urged the Dis- against that he had taken the Mission trict Court danger consider the account. deprivation process of due he would face if extradited to Citing Bosnia. the “well- *12, Id. at Dist. LEXIS entrenched non-inquiry” rule of into the at *88-39. In the District judg- Court’s legal procedures country of a requesting ment, clearly supported] “[t]his evidence pursuant treaty, extradition to a the Dis- [Magistrate] Judge Maas’s determination trict Court did not entertain challenge. this reasonably a finder of fact could con- *15, Id. at 2006 U.S. Dist. LEXIS clude that embezzled funds from *47; at Wigen, see Ahmad v. 910 F.2d the Mission account and used them for his (2d Cir.1990) (“A 1063, 1066 consideration *12, personal own needs.” at Id. 2006 U.S. procedures that will or in occur (internal quotation Dist. LEXIS *39 requesting country is not within the omitted). marks purview corpus judge.”). of a habeas rejected The District Court also Sacir- Having determinations, made these bey’s challenges constitutional to the ade District Court Sacribey’s denied quacy of habeas proceedings Magis before corpus petition. This First, appeal followed. Judge trate Sacirbey argued Maas. government’s produce refusal to DISCUSSION relating evidence to the role of United appeal, in On preparing States officials or pursuing argu- reiterates the ments that request Brady presented extradition violated he District Court, Maryland, including that 373 U.S. 83 S.Ct. he was not charged (1963). L.Ed.2d 215 with an The District Court extraditable offense under disagreed, Treaty. This explaining argument presents if Brady ques- “[e]ven impression Court, can be said to in tion of first apply for our re- ... Brady quiring context us to relatively would not extend to examine a undevel- oped area of discovery requests ... law.14 because Sacirbey’s requests were directed not at A. Standard of Review exculpatory evidence, but rather informa regarding political motivations, tion if Sacirbey’s petition basis for any, behind request his ex corpus [Bosnia’s] habeas means of the tradition.” Sacirbey 2006 WL extradition proceedings against him in the *14, 2006 U.S. Dist. LEXIS at United States District Court for the South Second, *44 (emphasis original). York, Sacir- ern District of New he has been bey challenged Magistrate Judge placed Maas’s “in custody in violation of the Con refusal to reopen the extradition hearing stitution or laws or treaties of the United 2241(c)(3). allow the submission of a reply declara § States.” 28 U.S.C. Our re tion in response to an expert declaration view of the denial of a petition for habeas government. submitted The Dis corpus extradition proceedings is “nar rejected trict Court the challenge because in scope. Murphy States, row” v. United regard 14. Our efforts this are aided theirs should disparage not be read to thorough opinions and well-reasoned way handling whatsoever the conscientious judges previously who have considered this case the District Court. matter. That our conclusion differs from
63 Cir.1999). (2d for of habeas general the standard review 599, A review- 199 F.3d Armstrong v. Guc corpus petitions); only three issues: ing court can consider cf. (2d Cir.2006) (re cione, F.3d “(1) judge jurisdic- below had the whether legal argu viewing petitioner’s de novo a (2) charged is tion; the offense whether § 2241— treaty; under 28 U.S.C. ments —raised the relevant under extraditable contempt for civil vio (3) by that his confinement presented the evidence and whether and several lated the Fifth Amendment established probable the Government statutes). v. United federal Cheung to extradite.” cause (2d Cir.2000); States, see 213 F.3d Charged Not with an B. Was Fernandez, at 45 S.Ct. 268 U.S. also under the Extraditable Offense 541. Treaty. liberty to second not at areWe been Sacirbey argues that he has not magistrate of the guess the determination an offense “charged” with extraditable certifying a re an order judge to issue Treaty.15 On pursuant to the terms the prece Under our for quest extradition. record, of the the evi- Sacirbey’s reading “[hjabeas writ of dents, corpus is not a investigative warrant dence shows that error, rehearing it not a means was issued in but for his arrest magistrate judge what the [extradition] dissolved, subsequently issuing court Ahmad, 910 F.2d already has decided.” consequence that “no [c]ourt 1066; v. United accord Garcia-Guillern matter.” currently seized Bosnia is (5th States, Cir. F.2d 1192-93 original). (emphasis Br. 24 Appellant’s (“A 1971) corpus cannot writ of habeas view, interest putative findings a second time the to hear for used correspondence that Bosnia asserted initial conducted the of the court which remedy inadequacy of the war- cannot often, said habeas hearing. As has been re- Bosnia’s extradition rant underlies of writ of place take the corpus cannot that the government responds quest. The error.”). condition extradition Treaty “does not ... duty It is “our nevertheless that need be charges,” and “all formal provisions applicable that the ensur[e] nation in- requesting is that shown governing American treaty Appel- prosecute tends to extraditee.” ex rel. complied with.” U.S. statutes are government’s 34-35. Under the lees’ Br. Marasco, 325 F.2d Petrushansky v. record, has re- “Bosnia reading of (2d Cir.1963) (Marshall, J.); also see its indicated unambiguously” peatedly (“The func 601-02 199 F.3d at Murphy, Sacirbey. Id. prosecute intention in this habeas review context tion of above, agreed the District As noted only legality test the evi- government’s view with the (internal marks quotation proceedings.” non-binding precedents Relying on dence. omitted)). in other trea- language construing similar ties, Court observed mind, District we principles With these context, has ‘charge,’ in this District term findings “[t]he review the factual require interpreted by courts legal been clear error and its determi Court for charge: Portuondo, than a formal something less See Drake nations de novo. Cir.2009) has been (2d requirement example, (providing F.3d raised in grounds relief the other Sacirbey's argu- consider Because we conclude that merit, petition. do not his point has we ment on this *12 64
deemed
subject
satisfied where a
is ‘ac-
government
The
informs us that the rea-
cused,’
requesting
or the
nation ‘intend[s]
soning of
II,
Assarsson I and Assarsson
II,
prosecute’
to
him.” Sacirbey
2006 WL has
adopted by
been
the Ninth Circuit as
**6-7,
at
2006 U.S. Dist. LEXIS
Appellees’
35;
well.
Br.
see Emami v.
(internal
omitted).
at *21
citations
U.S.
Cal.,
Dist. Court
the N. Dist.
of
(9th
Cir.1987).
834 F.2d
1448-49
In one of the cases on which the District
Like
relied,
I,
Circuits,
the Seventh
Eighth
petitioner
Assarsson
the
the
argued
Ninth Circuit
that because “a
determined
document,
formal
where an
called a ‘charge’ in
treaty
the Swedish
extradition
criminal
does not condition extra-
code, ...
yet
not
ha[d]
been
against
filed
dition on the filing of
charges,
formal
it
him, he [could
be
not]
extradited.”
635 would not read such
requirement
into
F.2d at 1239. The
reject-
Circuit
Seventh
treaty.
the
That court explained, “We re-
argument
(1)
ed this
on
grounds
the
frain from interpreting the requirements
filing
“[t]he
of
charges
formal
is not stated
of German
procedure
criminal
[with re-
anywhere
the treaty]
[in
as a prerequisite
spect to
filing
the
of a public charge] both
extradition,”
to
1242;
(2)
id. at
respect
out of
for German sovereignty and
courts are not empowered to
com-
“review
because we recognize the
of
chance
erro-
pliance
foreign
with
criminal procedure” in
interpretation
neous
is much greater when
course
ordering extradition pursu-
trywe
to construe the law
country
of a
ant to a
treaty,
valid
at
1244. The
legal system
whose
is not based on com-
Eighth Circuit reached the same conclu- mon
principles.”
law
Id. at 1449.16
sion in a case
involving
brother of the
Similar “formal-charge” arguments
petitioner in
have
Assarsson,
Assarsson I. In re
rejected
been
(8th
courts,
Cir.1982) (“Assarsson
other
687 F.2d
including
II”).
district courts in this Circuit.
Eighth
The
Circuit
These
adopted the
Seventh
courts have also
Circuit’s holding that,
question
addressed the
where
“[t]he
how to
filing of formal
establish that
charges is
not
crime has
stated
been
anywhere as a prerequisite
“charged” for
purposes
an extradi-
...,
we
not
tion treaty,
the magistrate’s
holding
review
that a demonstrated
determination
prosecute
[the
intent
on
part
extraditee]
charged under the terms of the treaty.”
country requesting extradition is sufficient.
II,
Assarsson
Petrushansky,
F.3d statutory lan- that “render readings requirement that Bosnia dem- Treaty’s avoid surplusage”). a valid guage “charge” by producing onstrate arrest warrant. construction
Under *15 interpretation with its Consistent requirement satisfy the can Treaty, Bosnia above, govern- the discussed precedents crime with a “charged” Sacirbey that in that the defect Bosnia’s ment maintains alia, valid a provide, it can inter only if by be remedied official application can the Bosnia seeks for his arrest. warrant intent to indicating Bosnia’s statements “in to Sacirbey pursuant an extradition alleged crimes. Sacirbey for his prosecute the issued arrest warrant” ternational to letters from var- points government The However, as Sarajevo. in Court Cantonal show allegedly Bosnian officials that ious found, the Cantonal District Court the Sacirbey, but prosecute an intention jurisdiction over currently lacks Court is not what the such an intention proof of crimes Sacirbey’s alleged investigation did, if it Even these Treaty requires.20 to enforce” any power “no ha[s] best, ques- on the equivocal, letters are WL arrest warrant. intend Bosnian authorities tion of whether 12, LEX U.S. Dist. at *7 n. alleged his Sacirbey for prosecute a n. 12.18Such warrant— at *23 IS October The letter dated crimes. lacking jurisdiction aby issued court one Attorney E. United States from Assistant in anoth described it—has been to enforce Judge Mass Perry Magistrate Danya aas Supreme Court context er Prosecutor, Mus- Cantonal “[T]he states: Verdugo- letter.” United States “dead ongo- Bisic, there is an confirmed that tafa 110 S.Ct. Urquidez, Sacir- against investigation criminal (1990) ing (rejecting an L.Ed.2d 222 government Bosnian bey” that by mag issued a that warrant argument that investi- to further sought have in the States would United istrate Sacirbey's arguendo case assuming that argue Even not government does that 18. The transferred, juris- no indication that findings there is of fact was Court's District erroneous, ratified, re-issued, Court are of the Cantonal Court diction National Bosnia erroneous, our clearly nor less does the arrest acknowledged any much fashion or question the us to lead review of record warrant. Court’s determination. District showing position on what take no 20.We dissent, argues that Judge Kearse In her treaty does not required an extradition when Sacirbey's was arrest original warrant requesting any how provide indication of However, Court. to the National transferred has been accused show an state must or provides no citations she evidence with a crime. "charged” interpretation. support this that would record gation. virtually J.A 383. The illegible the letter notes that “the Court of Bosnia attachment the October letter also Herzegovina was ... established and refers to an “investigation against Sacir- can, on request parties case, bey” does not but indicate intention to decide to hear this case of extradition.” prosecute, rather merely than investigate, added). J.A. 961 (emphasis Contradicting him. at 385. Id. this conditional statement regarding the Bosnian jurisdiction, court’s Kosovie, letters from Kosovie reit- Amra Coun- erates, selor to the verbatim Embassy letter, Bosnian from her Washing- earlier DC, ton similarly only “[t]he confirm that Sacir- of Bosnia Herzegovi- bey Bosnia, is under na investigation proceed will in the Matter of Mohamed government the Bosnian Sacirbegovic seeks to if the request for extradition prosecute him. Her letter of October be approved.” would (emphasis Id. add- ambiguously states that “the Court of ed). addition, she observes that Bosnia and Herzegovina will proceed in “Prosecutor’s office Bosnia and Herze- Matter Sacirbegovic Mohamed if the govina ... took the investigation which request for extradition would be ap- previously held by the Prosecutor’s proved.” Id. at 960. This statement does Office of the Sarajevo.” Canton Again, Id. not hint at how the Bosnian court will the letter is devoid of statement proceed is, whether immediate —that sought prosecution in Bos- prosecution permitting prosecu- nia.21 *16 tor to undertake investigation. further nothing That more than a criminal in- Kosovic’sletter of November 2005 does vestigation Sacirbey is now pending in nothing clarify to the matter. In that Bosnia finds letter, letter, support further in a she states that “Cantonal 3, 2005, dated March Court—the one that from the issued Cantonal the warrant Sarajevo Court in demand for investigation stating that of Mr. Mu- “no indict- hamed ment Sacirbegovic against [Sacirbey] ... [not] abolished has been —was by justice system reforms,” brought before the Municipal and she Court Sara- jevo that confirms the “Court exists and hears Cantonal Court in Sarajevo.” all cases that are jurisdiction.” within its Id. at This letter states that J.A course, 961. Of we know that “criminal investigation Sacir- against ... [him] bey’s is no longer case within that court’s referred to Cantonal Prosecutor’s jurisdiction pursuant judicial to Sarajevo Bosnia’s Office for appropri- 08/06/2003 Sacirbey II, reforms. 2006 WL ate action.” Id. While formal charges are at *7 n. U.S. Dist. LEXIS required not grant to an re- extradition at *23 n. 12. Perhaps fact, recognizing quest, this letter corroborates that an in- dissenting In opinion, her Judge finding clearly Kearse is erroneous. We do base proceed” asserts that "will reflects an active letters, our meaning decision on the prosecute intent to by the govern- however, Bosnian interpretation and offer our ment-a provides contention for which she no only response letters argument to the supporting authority. Although interpre- her prosecute” an “intent to present. is As a tation reading, is one feasible are letters law, matter of we only hold Treaty that the ambiguous. It ambiguity is that which makes requires warrant; a valid arrest there us unable to derive from them an active intent case; present valid warrant in the and the prosecute. to were, terms of the Treaty accordingly, not Judge argues Kearse further that we cannot met. Whether prosecute an intent can be overturn the District finding” proven Court’s "factual by the is therefore letters irrelevant to meaning as to the of the letters holding. unless our any rea- nization, change, or other regime prosecutor’s Sacirbey in the vestigation of was no son, that the arrest warrant such prosecution than office—rather Based on valid. in Bosnia. pending court22—is evidence, we are dubious of this our review contains no evidence the record Because prosecute seeks that Bosnia authorizing the arrest of of a valid warrant for a crime.23 charged Sacirbey has not been Sacirbey, pursuant offense an extraditable event, Bosnia has whether falls Treaty. This defect the terms Sacirbey is not prosecute” “intent category of issues the narrow within above, explained As inquiry. relevant of an extra- on habeas review cognizable warrant arrest Treaty requires a valid at order, Cheung, 213 F.3d see dition for ex sought an individual proof that as Sacirbey’s petition grant and we therefore crime. with a charged been has tradition corpus. for a writ of habeas by a is not satisfied requirement That prosecute. intent to demonstration made has not
necessary showing been CONCLUSION charges” the “formal All of this case. above, con- stated we For the reasons indicate government cited cases not been has clude arrest warrant a valid the existence of offense an extraditable “charged” with Emami, tribunal. See by foreign issued terms of the pursuant (arrest issued warrant at 1447 F.2d and Bos- the United States treaty between court); Assarsson by a German to habeas entitled nia. He is therefore (arrest issued declaration F.2d relief. I, F.2d at court); Assarsson Swedish that, if note, Bosnia passing, also (arrest We Swedish issued declaration Sacirbey, to extradite Borodin, request 127 renews its court); 136 F.Supp.2d is authorized of State Department magis (arrest by Swiss warrant issued *17 to treaty by and statute the extradition Lehming, 951 trate); re Extradition of Sacirbey because extraditing (arrest from by refrain issued warrant F.Supp. at 508 An the States. Salvia, a citizen of United he is court); La In re German a war- might be that discretion exercise of LEXIS 1436, *7, U.S. Dist. at WL re- its if Bosnia renews (arrest ranted by issued *21 warrant at deter- of State Department the court). quest and those cases None of Argentina into investigation mines that the issuing tri where the a situation involve Ambassador Nations tenure as United jurisdiction over lost subsequently bunal vendetta, or that by political a motivated reorga- a constitutional owing to case the court; have is- Bosnian authorities nian and Criminal Judge relies Bosnia’s Kearse regarding the support argument and only ambiguous her letters Code to Procedure sued jurisdic- to infer functions also Sacirbey’s case. of status n However, the National Court. tional reach of indication, through Bosnian provides she ante, the District 23. As described otherwise, courts that Bosnian precedent or conclusion, see opposite reached provisions interpret the code would *7, II, U.S. Dist. WL them, interpret to way chosen that she has ("The plainly at *23 letters LEXIS evi- position is contradicted and her Sacir- present prosecute intent to indicate the Cantonal actually in the record: dence Court.”), we need not bey but in the National dissolved; authority no Bosnian Court was be- ruling erroneous this whether decide to whether clear statement as provided has Sacirbey’s extradition. to it is pending a Bos- cause irrelevant prosecution now there is a Sacirbey faces mistreatment if he Serbia, is deliv- States, and the United see Treaty custody, ered into any Bosnian or for of for the Mutual of Fugitives Extradition grounds the other available Depart- Justice, U.S.-Serb., from I, art. Oct. or, ment indeed, to decline (the extradition — Stat. 1890 (“Treaty”) parties all, no reason at as the Treaty does not “mutually agree to up persons deliver require any justification for declining to charged who[ have] been or convicted extradite U.S. citizens. Treaty See any of the crimes and specified offenses Mutual Extradition of Fugitives from Jus- following article”); art. para. id. tice, U.S.-Serb., V, (date art. Mar. (“Extradition shall granted for .... President), ratification 32 Stat. officers”). by public Embezzlement Nor (“Neither 1890, 12 Bevans 1238 high do majority appear to contracting parties shall be bound to deliv- suggest it is not within the compe- uper its own citizens subjects under the tence and authority of the Court of Bosnia stipulations of Treaty.”). That deter- (the Herzegovina “National Court” or rests, course, mination with the Execu- “Court”) adjudicate such a charge of tive Branch Government, not the Judi- embezzlement; and the majority recog- ciary. nizes that under Treaty, “formal Accordingly, the order District charges are not required to grant an extra- Court denying the petition is RE- request,” dition Majority Opinion ante at VERSED, and Sacirbey’s petition for a writ of corpus hereby habeas GRANT- majority, however, The ED. concludes that imposed restrictions on Sacir- Sacirbey is not bey’s “charged” with liberty are embezzle- VACATED and he shall ment —or not be extradited to crime—because pursuant majority Bosnia (a) the formal finds requests that “the have arrest been made. warrant at issue in this case was issued a court that It is so ordered. jurisdiction neither has over the matter KEARSE, nor Judge, authority warrant,” Circuit dissenting: enforce the Ma- jority Opinion ante at and that a war- I respectfully dissent majori- from the rant “issued court lacking ty’s decision to overturn the district court’s 67; enforce it” is a nullity, (b) denial of habeas corpus petition representation that the by Bosnia’s “Minis- Muhamed Sacirbey, sought which to forbid *18 try of Justice” that the “Court Bosnia his extradition from the United States to and Herzegovina proceed will in the Mat- the republic of Bosnia Herzegovina (Letters ter of (hereinafter Muhamed Sacirbe[y]” “Bosnia”). from generally Extradi- Kosovic, Amra Counselor in the tion requested Embassy was by Bosnia in 2002 on of Bosnia and Herzegovina in ground Washington, Sacirbey, that serving while as D.C., to the its United Department States ambassador to the Nations, United State and abused his United States position Department official by misappropri- ating $610,982.46 11, (“Octo- Justice in dated October official Bosnian funds to private his own ber 2005 Letter”), account. Bosnian Embassy There is no dispute (“November 10, that embezzlement November by public offi- 2005 Bos- cial is a Letter”) criminal nian Embassy offense for person which a (collectively the who is so “charged” or may “convicted” “2005 Embassy Letters”)), Bosnian leaves pursuant extradited to the treaty the majority between “dubious that Bosnia seeks to Bosnia, as a successor to the Kingdom of prosecute Sacirbey crime,” for a id. at 69 added), because, majority- that committed the criminal act of (emphasis [he] not hint at says, position authority.” statement does abuse of official or In “[t]his proceed- the Bosnian court will January how Bosnia submitted —that by prosecution by immediate or is whether request United States ex- to undertake permitting prosecutor tradition. investigation,” (emphasis
further In Bosnia from the converted civil- majority’s disagree in I with the original). system a system, law common-law I or- rationales. discuss them reverse investigative functions that had been vest- der. ed in the courts were transferred to inde- In pendent prosecutors. August (1) the Bosnian Court The Notion Sarajevo Cantonal Court transferred Merely Investiga- To Permit Intends Saeirbey Sarajevo matter to the Cantonal tion appropriate Prosecutor’s office for action. majority’s speculation The that the Bos- The Bosnian court reforms also included merely nian National Court intend Court, the establishment of the National Saeirbey, permit investigation further which serves functions similar to those of prosecution, than to entertain his rather the federal courts in the United States. prior proceed- the course of the belied Saeirbey alleged Because to have provisions ings Bosnia and position representative abused his as a Procedure Code of Bosnia Criminal nation, Saeirbey the Bosnian investiga- (“Bosnia Herzegovina CPC” tion, which had been transferred “CPC”), adopted part in 2003 as of nation- Sarajevo Sarajevo Cantonal Court In judicial wide reforms. Bosnia Prosecutor, was Cantonal then transferred system in which operated under a civil-law from the Cantonal Prosecutor to the office investigations possible criminal acts of the National Prosecutor. by regional were conducted courts Bos- majority’s notion that the Bosnian Saraje- In April nia’s Cantons. Ministry representation of Justice’s prosecutor’s vo office asked the Cantonal proceed” the Bosnian National Court “will Sarajevo investigate Court to al- Cantonal (2005 Embassy in Sacirbey’s case Bosnian legations Saeirbey had abused his of- Letters) may merely means that the Court position by misappropriating public ficial investiga- “further “permit[]” conduct or August funds. the Cantonal tion,” Majority Opinion ante at is belied Court issued “DECISION TO INVES- pursuant the facts to Bosnia’s Saeirbey, TIGATE” based on “a well- reforms, judicial investigation of Sacir- suspicion” during founded his tenure transferred from bey already had been as Bosnia’s ambassador the United Na- independent prosecutor, court to and un- tions, Saeirbey his official position abused CPC, as adopted der the Bosnia alia, by, transferring speci- inter various reforms, judicial part of the the Court fied sums of Bosnian Nations mis- United *19 investigations. provi- The plays no role $610,982.46, money, totaling sion to his forth the rules of the sions of the CPC “set private In own accounts. December mandatory criminal that are for procedure the Cantonal Court issued a “DECISION of the Court” proceedings [National] the and a warrant FOR DETENTION” by of criminal matters the and the conduct Saeirbey, former Am- the arrest “the art. 1. National Prosecutor. Bosnia CPC the Permanent [Bosnia] bassador of CPC, UN,” ‘investigation’ the term “[t]he Mission of with the “be- Under [Bosnia] activities,” including to all collection suspicion cause there is well-founded refers of information and evi- disserves the and interests of international preservation dence, by comity the Prosecutor or court of the United States to “undertaken by officials accordance with forbid extradition on the basis of a authorized mere Code,” 20(j). suspicion id. art. that the National “[AJuthorized Court the requesting proceed are defined as various law en- nation intends to in a official[s]” personnel by forcement such as members of manner not authorized that nation’s Service,” “military po- procedure the Border criminal “State code. lice,” responsible bodies “Police dubiety contrast expressed regions, art. ministries of’ the Bosnian id. majority, here the the district court 20(g); supervised those officials are evidence,” that including found “the Prosecutor, art. All of see id. Letters, Embassy 2005 Bosnian “demon- PROCEDURE[S]” “INVESTIGATIVE prosecute strates that intends to [Bosnia] powers set forth in the CPC describe Sacirbey for the offense of abuse of au- duties of “the Prosecutor” and the officials Guccione, thority.” Sacirbey v. 05No. CV supervises. he or she id. art. See 213-225. (S.D.N.Y. 2006 WL at *7 in- provisions placing There are no CPC (“The 7, 2006); Sept. see also id. letters functions, vestigative or the supervision of plainly present indicate a intent prose- functions, such in the courts. The investi- cute in the National Court. gative procedures section the CPC be- While the of that intent effectuation gins by stating that public officials are extradition, Saeirbey’s conditioned on to,” private “bound citizens “are enti- (em- intent presently nevertheless exists.” to,” report tled the commission of a crimi- phasis in I original)). cannot view the offense, 213(1), 214(1), nal art. id. and that finding district court’s that Bosnia intends report must be filed with the “[t]he Prose- prosecute Sacirbey clearly as erroneous. cutor,” 215(1) added). art. (emphasis supported only by It is the 2005 Bosni- clarifying investigations Further that are Letters, (a) an Embassy but also Prosecutor,
within province the sole matter, fact that including Court, provides not the CPC Sarajevo finding Cantonal Court’s aof report suspected criminal [i]f [of suspicion well-founded that Sacirbey mis- Court, is filed with the author- conduct] $610,982.46 funds, appropriated in Bosnian ized official or pros- some other court or was transferred to the office of the Nation- ecutor in Herzegovina, they Bosnia and (b) Prosecutor, al provision the CPC accept shall the report and shall imme- there is evidence that a criminal “if diately report submit the to the Prosecu- committed,” has been the National offense tor. Prosecutor, unless otherwise stated 215(3) added). CPC, (emphasis obligated prosecu- Id. art. “is to initiate a There is tion,” Bosnia provision giving authority (emphasis CPC art. 17 add- Court ed). say investigation may whether or not an
pursued. (2) Majority’s The View that the Arrest I thus no principled see reason to infer Nullity Warrant is a Ministry the Bosnian of Justice’s
statement majority the National Court “will although also reasons proceed” Sacirbey’s Sarajevo case means that the Cantonal Court issued a war- may merely “permit[ prosecu- rant for ] arrest the fact *20 tor to undertake investigation,” further that that longer jurisdiction court no has Majority Opinion surely ante at 68. And it to enforce the warrant makes the warrant ” “ 449(2) added). letter,’ Majority (emphases art. I Opinion ante CPC read ‘dead Verdugo-Ur quoting United States “shall finalized these courts” to quidez, 494 U.S. S.Ct. Sarajevo mean that even the Cantonal (1990) opinion that L.Ed.2d ob proceeded adjudicate Court could have to — an by magis that a warrant issued served if Sacirbey’s case the National had Court in would have no trate the United States not decided to take the case. And I read ” States,” force “outside the United “unless Court ex clause to officio 274, 110 I do not see the S.Ct. entitled, mean that the National Court is that to a applicability of observation —as simply by of being virtue the National potential warrant’s extraterritorial effect— Court, jurisdiction to take of the case. here, to the circumstances which involve interpretation This is consistent with that changes resulting in institutional functions Justice, Ministry of the Bosnian which is country. a single from court reforms within Bosnia’s “central co-ordinating body for Further, majority apparently as- ensuring inter-Entity legislative jus- sumes that the Bosnian court reforms au- system harmony tice practice,” and best tomatically Sarajevo divested the Cantonal Law on Ministries and Other Bodies of jurisdiction to a prose- Court of entertain Herzegovina, Administration Bosnia and cution of and assumes that a loss art. Ministry 13. The of Justice is identi- in the Cantonal Court fied the November 2005 Em- Bosnian jurisdiction. that In means no court has bassy Letter as the source of the informa- view, my assumption neither is correct. (a) tion that the National Court can hear Sarajevo I Although agree that the Can- Sacirbey’s pursuant case art. CPC jurisdiction, it longer tonal Court no has (b) 449(2), if the United States me, appears given provisions Sacirbey, grants extradition the Nation- CPC, jurisdic- Bosnia that the divesture of Thus, proceed.” al Court “will while I tion was not automatic but instead results agree majority Sarajevo with the that the from the decision of the Bosnian National power Cantonal has I Court to take the case. see no reason— proceed Sacirbey, I the matter reach majority explain why and the does not a— that conclusion because the Bosnia Nation- nation’s court reforms cannot entail the al to take the I Court has decided case. transfer of cases from one court to anoth- majority that extra- agree do not er; it appears the Bosnia reforms theory dition should be denied on the jurisdiction by envision the retention of having rather than been transferred to the Cantonal Courts some cases and the Court, original warrant National transfer to the National Court of other Sacirbey’s arrest become a “dead let- has cases which the National Court wishes (internal ter,” Majority Opinion ante at 67 jurisdiction. provides to take The CPC omitted). quotation marks [cjases falling competence within the (3) Replies Majority’s Objections pending the [National] Court which are this Dissent prosecutor’s other courts or before of- dissent, response majority to this is not in which indictment fices assertions that I find unten- makes several legally confirmed, or shall be effective unpersuasive. example, For it able finalized these courts unless the [Na- and/or Court, Court was dis- the rea- asserts “the Cantonal upon tional] ex officio solved,” Majority Opinion ante at 69 n.22. proposal parties soned or defense attorney, decide to take such a case. That contention was advanced the dis- *21 by Sacirbey, explicit- Finally, majority but it was trict court finds that Bosnia’s representation that ly govern- the Bosnian the Bosnia National contradicted proceed” “ambiguous,” Court “will Ma- ment: n.21, jority Opinion ante at 68 the ma- as Ministry of Justice of Bosnia and jority believes mean that Herzegovina accept can not the state- court merely “permit[ prosecutor will the] ment that the Cantonal Court—-the one investigation,” to undertake further id. at that issued the warrant and demand for 68, and is that ambiguity “[i]t which makes investigation [Sacirbey] of Mr. —was majority] [the unable to derive from justice system abolished reforms. Embassy 2005 Bosnian the[ an Letters] The mentioned Court exists and hears prosecute,” active intent to id. at 68 n.21. jurisdiction. all cases that are within its major I three have difficulties with this Embassy November 2005 Bosnian Letter. First, aspect majority opinion. as above, discussed I provision do see addition, majority In states that “no in giving the Bosnia CPC the National authority provided Bosnian has a clear authority either to “permit[ or to ]” prose- statement as to whether there is a Second, prohibit “investigation.” even lin- court,” cution in a pending now Bosnian guistically, I cannot “permit[] view (first Majority Opinion ante 69 n.22 prosecutor investiga- to undertake further emphasis original; emphasis second tion” as a plausible interpretation of the mine). I cannot see that this provides a Ministry Bosnia of Justice’s statement that requiring basis for the district court to Herzegovina “Court Bosnia and will extradition; majority forbid ac- itself Third, proceed.” factfinders; we are not that, knowledges Treaty, under the “for- factfinding is the function of the district charges required mal are not grant court. And when the district court has request,” id. at 68. -here, finding made a that “[t]he fact— majority’s As to the suggestion further plainly present letters indicate a intent to that there is no evidence “that original prosecute Court,” Sacirbey the National warrant arrest trans- WL at *7—we are not al- Court,” ferred to the National lowed to overturn that Majority finding unless it is 52(a)(6). n.19, “clearly erroneous.” Opinion ante at 67 I Fed.R.Civ.P. nothing see A feeling that the evidence “ambiguous,” the record to indicate that the arrest war- Majority Opinion ante 68 n. does not rant was not part transferred as of clearly-erroneous meet the especially Further, transfer of the case. even if the test — when the majority acknowledges that the transferred, warrant was not there is noth- judicial interpretation it questions “is one ing in the record to indicate that the war- reading,” feasible extant, rant is not given still that —con- trary majority’s notion that “the sum, Bosnia sought has the extradi- dissolved,” Cantonal Majority Court was tion of January having since Opinion ante at 69 n.22—the Bosnian Min- issued December 2001 a warrant for his istry says of Justice the Cantonal stating good arrest that there was reason Court was not abolished and still “exists” suspect public while he was a (November Embassy 2005 Bosnian official, Let- funds; embezzled Bosnian ter). I thus do not validity see the thereafter, pursuant matter was majority’s holding that “there is no valid judicial reforms, Bosnia’s transferred to present warrant in the Prosecutor, [arrest] case” “[a]s Bosnia’s National who has a law,” a matter of id. at n.21. statutory duty prosecute where there is *22 a criminal offense has been evidence that
committed; Ministry and Bosnia’s of Jus- case will
tice has stated
heard Bosnia’s National Court —a tribu-
nal to which Bosnia’s reformed criminal gives investigative pow- code
procedure authority ex to take gives
ers but officio I no error in the district
his case. thus see finding pros-
court’s that Bosnia intends to I Sacirbey;
ecute dissent from the
majority’s decision to reverse on the basis contrary to the Bosnia speculation,
of its
CPC, National that the Bosnian
merely permit investiga- intend to further
tion, view, contrary my and of its read- 449(2),
ing of art. that the warrant CPC Sacirbey’s arrest died with the birth
the Bosnian court reforms. S., Petitioner-Appellant,
RICHARD CARPINELLO, RN, PhD, Com
Sharon
missioner, New York State Office of Health, Spooner,
Mental Exec James Director, Psychiat
utive Lawrence St. Center, Respondents-Appellees.
ric 08-4197-pr.
Docket No. Appeals,
United States Court
Second Circuit.
Argued: July
Decided: Dec.