RELATED REFERENCES:  In re Extradition of Sacirbegovic, 280 F.Supp.2d 81 (S.D.N.Y. Jul. 3, 2003) (No. 03CRIM.MISC.01PAGE19)

On Reconsideration:  In re Extradition of Sacirbegovic, 2004 WL 1490219 (S.D.N.Y. Jul. 2, 2004) (No. 03 CRIM.MISC.01 P.19), as corrected (Jul 06, 2004)

 

 

OPINION AND ORDER

 

OPINION BY:  MAAS, Magistrate J.

 

I. Introduction

 

[*1]  The United States Government (“Government”), acting on behalf of the Federation of Bosnia and Herzegovina (“BiH”), seeks the extradition of Relator Muhamed Sacirbegovic, a/k/a “Muhamed Sacirbey” (“Sacirbey”) to BiH, on a criminal charge of Abuse of Office or Authority, pursuant to an extradition treaty between the United States and the Kingdom of Serbia that became effective on June 12, 1902 (“Treaty”). This extradition request is unusual in several respects. First, although the charges relate to a period during which Sacirbey served as a Bosnian government official, Sacirbey has at all relevant times been a citizen of the United States. Second, even though BiH is alleged to be the victim, the crime for which Sacirbey’s extradition is sought is alleged to have occurred in New York City. Third, because Sacirbey is a graduate of a law school in the United States, he has actively participated in the defense of this case as co-counsel, in which capacity he has made several lengthy submissions to the Court.

 

In their papers, Sacirbey and his co-counsel contend that the extradition request should be denied because (a) there is no valid extradition treaty between the United States and BiH, (b) the offense of Abuse of Office or Authority for which extradition is sought fails to meet the Treaty requirements, (c) BiH has failed to establish probable cause to believe that he committed that crime, and (d) his conduct falls within a Treaty exception for crimes of a political character.

 

Notwithstanding these claims, for the reasons set forth below, I find that Sacirbey is extraditable. At Sacirbey’s request, execution of the extradition order will be stayed for ten days to permit Sacirbey to file the habeas petition that his co-counsel has indicated will be forthcoming. [FN1]

 

FN1. A relator whose extradition is ordered cannot file a direct appeal from that decision. Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir.1990). Accordingly, the only avenue for relief is a habeas petition. Id. On habeas review, the court may only consider “whether the magistrate [judge] had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312 (1925); accord Spatola v. United States, 925 F.2d 615, 617 (2d Cir.1991).

 

II. Background

 

A. Procedural History

 

On March 17, 2003, the Government filed a Complaint for Arrest with a View Towards Extradition (“Complaint” or “Compl.”) in support of BiH’s request for the extradition of Sacirbey (“Request”). The Request alleges that in or around 2000, while serving as an employee of the Ministry of Foreign Affairs of BiH (“Ministry”) and as the BiH ambassador to the United Nations, Sacirbey improperly “withdrew funds in the approximate amount of $610,982.46 from the Permanent Mission to the United Nations [ (“Mission”) ] and General Consulate of the Federation of Bosnia and Herzegovina in New York, New York …, by issuing checks and bank orders drawn on the … Mission’s accounts and transferring the funds to his private bank account.” (Compl.¶¶ 6(a), (b); see Ex. 5 (Claim for Conducting an Investigation, dated Apr. 11, 2001 (“Claim”)), at 1). [FN2] The Request further alleges that, during the same time period, Sacirbey improperly withdrew approximately $1,800,000 from a second account belonging to the Republic of Bosnia and Herzegovina Investment Fund Ministry (“Investment Fund”). (Compl.¶ 6(b); see Ex. 6 (Decision on Conducting Investigation, dated Aug. 20, 2001), at 2). On the basis of this alleged misconduct, BiH seeks Sacirbey’s extradition so that he may be tried on a charge of Abuse of Office or Authority in violation of Article 358 of the BiH Criminal Code. (Compl. ¶ 4; see Ex. 7 (Chapter XXXI of the BiH Criminal Code, Criminal Offenses Against Official Duty or Other Responsible Duty)).

 

FN2. “Ex.” refers to the exhibits received in evidence at the extradition hearing held on December 23, 2003. “Tr.” refers to the transcript of that hearing.

 

[*2]  On December 5, 2001, the Investigating Judge of the Cantonal Court in Sarajevo (“Cantonal Court”) issued a warrant for Sacirbey’s arrest. (Compl. ¶ 4; see Ex. 6 (Orders for Issuing a Wanted Circular and an International Wanted Circular, dated Dec. 5, 2001)). BiH then requested the Government’s assistance in securing Sacirbey’s extradition in accordance with the Treaty.

 

On March 25, 2003, pursuant to the Complaint, and a warrant issued by Magistrate Judge James C. Francis IV, Sacirbey was arrested and presented in this District before Magistrate Judge Debra C. Freeman, who ordered that he be detained because he had failed to show special circumstances warranting his pre-extradition release. (See Docket No. 8).

 

This matter first came before me on June 4, 2003, in connection with Sacirbey’s renewed application for bail. After hearing oral argument, I reserved decision and permitted counsel to make further submissions. Thereafter, on July 3, 2003, I denied Sacirbey’s application for bail. See In re Extradition of Sacirbegovic (“Sacirbey I” ), 280 F.Supp.2d 81 (S.D.N.Y.2003). In doing so, I found that Sacirbey had failed to show “special circumstances” warranting his release. Id. at 86-88.

 

In June 2004, Sacirbey sought reconsideration of my bail decision on the basis of a letter sent to the United States by Adnan Terzic, the Chairman of the Council of Ministers of BiH, and thus the head of the BiH government. [FN3] In his letter, Terzic stated that he and Safet Halilovic, the BiH Minister for Civil Affairs, concurred that Sacirbey would not pose a flight risk if bail was granted. (See letter dated May 31, 2004, from Adnan Terzic to Anne Marie L. Corominas, Esq.). Although the Government attacked this letter as an end run around the cantonal prosecutor who had requested Sacirbey’s extradition, I concluded that it tipped the special circumstances test in Sacirbey’s favor, and I therefore set bail conditions which led to Sacirbey’s release in July 2004. (See Docket Nos. 66-67).

 

FN3. As a result of the Dayton Accords, two multiethnic constituent entities were created within the independent state of BiH—the Federation of Bosnia and Herzegovina, with a Bosnian Muslim and Croat majority, and the Republic of Srpska, with a Bosnian Serb majority. (See Tr. 21; United States Department of State Background Note: Bosnia and Herzogovina (Feb.2004) (“Background Note”), available at www.state.gov/r/pa/ei/bgn/2868pf.htm (last visited Jan. 17, 2005)). The BiH constitution agreed to at Dayton provides for a three-member presidency, consisting of a Bosnian, a Serb, and a Croat, each of whom serves as Chair of the Council of Ministers for a four-year term. (See id.; Tr. 19).

 

Throughout the pendency of this case, Sacirbey has had a string of attorneys to assist him. At the outset, at the time of his initial presentment, Steven Statsinger, Esq., of the Federal Defender Division of the Legal Aid Society, was appointed to represent Sacirbey. (See Disposition Sheet, dated Mar. 25, 2003). Thereafter, in connection with his renewed bail application, Sacirbey was represented on a pro bono basis by John Carroll, Esq., the Regional Managing Partner of Clifford Chance U.S. LLP, and Mr. Statsinger was relieved. (Docket No. 9). On July 24, 2003, however, I granted Mr. Carroll’s application to withdraw as counsel, as well as Sacirbey’s application to represent himself. (Docket Nos. 13-14). I also appointed Mr. Statsinger to act as Sacirbey’s attorney-advisor. (Id.). Then, on October 24, 2003, I granted the application of Professor M. Cherif Bassiouni of the DePaul University College of Law to appear in this matter pro hac vice on Sacirbey’s behalf. (Docket No. 38). Following that appointment, on November 20, 2003, I granted Mr. Statsinger’s application to be relieved as Sacirbey’s attorney-advisor. (Docket No. 39). On two subsequent occasions, I denied Sacirbey’s requests to have another local counsel appointed, noting that, in addition to Professor Bassiouni and Sacirbey himself, at least one other attorney who never entered an appearance in this matter (Scott T. Johnson, Esq.) was assisting Sacirbey. (See Docket Nos. 41, 42).

 

[*3]  On December 23, 2003, after Professor Bassiouni had an opportunity to become familiar with the case, I held an evidentiary hearing to determine whether the evidence presented against Sacirbey was sufficient to warrant his extradition pursuant to the Treaty. The hearing date previously had been adjourned on several occasions so that Sacirbey and his counsel could submit a pre-hearing brief, as well as an expert report on BiH criminal law and procedure, and so that the Government could have adequate time to respond to those submissions. (See Docket Nos. 36, 37, 40).

 

After the hearing, Sacirbey retained Michael S. Kim, Esq. of Kobre & Kim LLP to represent him. (See Docket No. 51). Once he appeared in the proceeding, Mr. Kim also requested time to submit post-hearing papers to the Court. (Docket No. 57).

 

Finally, on April 23, 2004, Anne Marie L. Corominas, Esq., entered a notice of appearance, indicating that she would be assisting Professor Bassiouni in connection with his representation of Sacirbey.

 

B. Facts

 

In determining whether Sacirbey is extraditable, I have considered all of the prior papers and proceedings herein, including, in particular, the evidence adduced by the parties in connection with the December 2003 evidentiary hearing.

 

At the hearing, in support of its Request, the Government relied entirely on documentary proof. (See Tr. 2-5; Exs. 1-8). Sacirbey called two witnesses: Paul Robert Williams, a former employee of the United States Department of State, and himself. Both witnesses ostensibly were proffered for the limited purpose of establishing the applicability of the “political offense” exception to extradition. (See Tr. at 9-10). In addition to the testimony of these witnesses, Sacirbey has submitted several declarations by Michael E. Hartmann, an attorney in the United States, currently employed by the United Nations as a prosecutor in Kosovo, who has been proffered as an expert on Bosnian criminal law. (See Decl. of Michael E. Hartmann, dated Nov. 16, 2003 (“Hartmann I”); Expert Witness Decl. of Michael E. Hartmann, dated Dec. 9, 2003 (“Hartmann II”); Addt’l Decl. of Michael E. Hartmann, dated Dec. 23, 2003 (“Hartmann III”).

 

Although I have considered all of the papers and evidence submitted by the Government and Sacirbey in reaching my decision, I am mindful that a relator’s “right to introduce evidence is … limited to testimony which explains rather than contradicts the demanding country’s proof.” Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973) (quoting United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir.1963)). “The extent of such explanatory evidence to be received is largely in the discretion of the judge ruling on the extradition request.” Matter of Sindona, 450 F.Supp. 672, 685 (S.D.N.Y.1978)

 

1. Request and Supporting Documentation

 

It is undisputed that Sacirbey was born in Sarajevo in 1956 and became a United States citizen in 1973. (See Ex. 7; Sacirbey I at 82). He has undergraduate and law degrees from Tulane University and an M.B.A. from the Columbia Graduate School of Business. (See letter dated July 31, 2003, from Sacirbey to the Court, Ex. E).

 

[*4]  From 1992 until late 2000, Sacirbey served as BiH’s permanent representative and ambassador to the United Nations. (Tr. 41-43). Sacirbey also served as Bosnia and Herzegovina’s agent before the International Court of Justice (“ICJ”) from 1993 until 2001, and as BiH’s foreign minister from early 1995 until early 1996. (Id. at 53-54). As U.N. ambassador, Sacirbey had signature authority over the Mission’s financial accounts and primary responsibility for the proper disbursement of its funds. (Claim at 1; Tr. 81- 82).

 

In September 2000, Dragan Dragic, Chief of the Accounting Division of the Ministry, reported to Haris Lukovac, another Ministry official, that the Mission had failed to transmit consular taxes to the BiH Ministry for Treasury in Frankfurt, Germany, as BiH procedures required. (Ex. 7, (Lukovac Hr’g R. (“Lukovac”)) at 2). Lukovac called Aisa Dervisevic, a part-time bookkeeper at the Mission, who advised him that the Mission’s finances were “in [a] big crisis.” (Id.). After confirming that there was a problem, Lukovac directed that Ministry Finance Officer Hazima Razanica travel to New York to investigate. (Id.). Razanica had no prior responsibility for oversight of the Mission. (Id.; Razanica Hr’g R. (“Razanica”) at 2).

 

After her arrival in New York, Razanica discovered that the funds of the Mission and the BiH Consulate had been commingled, and that approximately $610,000 of Mission funds attributable to consular taxes was missing. (Lukovac at 2). At least some of the shortfall was attributable to the fact that Sacirbey had secured advances of Mission funds without properly accounting for them. (Razanica at 2). When Razanica asked Sacirbey about the missing funds, he stated that his expenditures were authorized by the BiH presidency, but that he could not show her the supporting documents. (Id. at 3). He nevertheless promised to make the documentation available to officials in Sarajevo during a trip there that he was scheduled to take in a matter of days. (Id.).

 

At the hearing, Sacirbey claimed that with the express approval of Alija Izetbegovic, the Bosnian member of the BiH presidency, some of the funds that the Ministry believed were missing had been used to press a case before the War Crimes Tribunal in the Hague, which eventually led to the indictment of Momcilo Krajisnik, a member of the Bosnian presidency. [FN4] (Tr. 3, 65; see also http://www.un.org/icty/indictment/english/kra-cai020307e.htm (last visited Jan. 17, 2005)) (“ICTY Indictment”). According to Sacirbey, because the targets of the War Crimes Tribunal investigation included members of the presidency, the funds necessary to pursue that investigation had to be shielded from their view. (Tr. 56). The BiH Rule Book, however, does not contain any provision which would have permitted Sacirbey to treat the financial operations of the Mission as confidential and decline to produce information about them to a Ministry finance officer. (See Lukovac at 5; Razanica at 5).

 

FN4. Krajisnik’s name is misspelled in the hearing transcript.

 

[*5]  When Ministry officials inquired about Sacirbey’s claim that he was authorized to spend Mission funds in connection with the War Crimes Tribunal case, President Izetbegovic stated that he had not given Sacirbey either written or verbal authorization to do so. (Lukovac at 5). Nonetheless, Izetbegovic confirmed that he had received a letter from Sacirbey which contained some explanation of the questioned expenditures of Mission funds. (Id.).

 

After Razanica rendered her report, Lukovac also traveled to New York. (Lukovac at 3). There, he met with Sacirbey, who stated that he had all the documents necessary to substantiate his expenses and would provide them promptly. (Id.). At the same time, however, Sacirbey conceded that there were certain payments that he had made for which the payees had not provided receipts, such as payments to lobbyists. (Id.). Lukovac instructed Sacirbey to provide the missing documentation within thirty days. (Id.). During their conversation, Sacirbey also told Lukovac that he would be able to restore certain funds to the Mission. (Id.).

 

Upon his return to Sarajevo, Lukovac directed that 15,000 DM be transferred to the Mission account so that its bills could be paid as they came due. (Id.). The money was sent to the Mission, but was diverted by Sacirbey before Dervisevic could use it to pay the Mission’s outstanding bills. (Id.).

 

Based on this action, Lukovac directed that Sacirbey’s signature authority over Mission funds be terminated. (Id.). Additionally, the newly-appointed Foreign Minister, Zlatko Lagumdzija, approved Lukovac’s recommendation that a commission be appointed to investigate the situation. (Id. at 3-4).

 

Thereafter, a three-member commission—consisting of Ivica Misic, Dragan Obrenovic, and Adnan Hadzikapetnovic—was sent to New York to study the financial situation of the Mission and the Consulate in greater detail. (Id. at 4; Ex. 7, (Misic Hr’g R. (“Misic”)) at 2). During their one-week visit, the Commission members ascertained that in addition to the shortfall in consular taxes, approximately $1.8 million was missing from the Investment Fund account at the Mission. (Lukovac at 4; Misic at 2). Despite Sacirbey’s prior promise to Lukovac, Sacirbey did not provide the Commission with any substantiation for his undocumented expenditures. (Misic at 2-3). Sacirbey also failed to make any payments to the Mission, explicitly rejecting a suggestion by Lukovac that he take out a loan. (Lukovac at 4).

 

Ultimately, Lukovac determined that the $1.8 million missing from the Investment Fund account should not be considered part of the Mission’s deficit because the funds in that account were donated by Saudi Arabia and did not belong to the Ministry. (Id.). Nevertheless, Razanica’s audit report concluded that $1.3 million was missing from the Mission account, $610,000 of which was attributable to consular taxes, “the rest to regular subsidies of [the] Ministry.” (Id.). Lukovac tried to contact Sacirbey after January or February 2001 to discuss these findings, but Sacirbey was always unavailable, and Lukovac concluded that Sacirbey was avoiding him. (Id.).

 

2. Relator’s Case

 

a. Williams

 

*6 Paul Williams, now an Assistant Professor of Law at American University, testified that he served as an Attorney Advisor in the Office of the Legal Advisor for European and Canadian Affairs at the United States Department of State from 1991 to 1993, during which time he became involved in the formation of the International Tribunal for the Former Yugoslavia (“ICTY”). (Tr. 10-11). He subsequently represented the Bosnian Delegation on a pro bono basis in connection with the discussions leading to the Dayton Accords, which established the ground rules for the cessation of hostilities and the formation of the BiH government. (Id. at 12). The Dayton Accords sought to bridge the differences among the three principal ethnic groups in Bosnia: the Bosnians, the Croats, and the Serbs. (Id.).

 

According to Professor Williams, from 1991 through 1993, and beyond, the Bosnian government “was in a near state of chaos.” (Id. at 13). Williams explained that Sacirbey was Bosnia’s voice in the United States and became very involved in the Dayton talks. (Id.). Williams described Sacirbey as the “go to guy,” noting that Sacirbey was “very close” to President Izetbegovic. (Id. at 15-17).

 

Williams testified that the Bosnian government filed a case before the ICJ in 1993 which alleged that the Republic of Serbia was responsible for the mass murder of Bosnians by Serbian forces in Bosnia. (Id. at 18). That case eventually led to the indictment before the ICTY of Krajisnik and Biljana Plavsic, the President of the Republic of Srpska, one of the three entities comprising BiH. (Id. at 19-23; ICTY Indictment). [FN5] Sacirbey represented the Bosnian government in connection with the prosecution of these accuseds before the ICTY, in which capacity he oversaw the collection of evidence, the filing of briefs, and the general presentation of the case. (Id. at 23).

 

FN5. Plavsic’s first name is misspelled in the hearing transcript.

 

During his testimony, Williams explained that Sacirbey’s work with the ICJ was opposed by Krajisnik and others in the international community, including Slobodan Milosevic, the former President of the Federal Republic of Yugoslavia, who wanted the case dismissed. (Id. at 22). Williams further contended that there were officials of the United States who shared that goal because they feared that the ICJ might conclude, as Sacirbey alleged, that certain of the participants in the Dayton talks—including the United States—were willing to overlook past acts of genocide against Bosnians in order to secure an agreement concerning Bosnia’s governance. (Id. at 24-25). Indeed, Sacirbey and others contended that certain United States allies had failed to prevent a massacre in the town of Sresvernizca in 1995 in furtherance of that goal. (Id. at 25- 26). Williams suggested through his testimony that the charges against Sacirbey may have been brought in an effort to discredit Sacirbey so that he could not testify before any international tribunal in an effort to establish the “historical record” before the ICJ or ICTY. (Id. at 30). As he explained, after Sacirbey left office, the party controlling the Bosnian government changed hands, and the new party, “which was the former communist party, essentially recloaked, had a very specific motive in going after members of the former regime to discredit them for political reasons.” (Id. at 32).

 

b. Sacirbey’s Testimony

 

[*7]  Sacirbey testified that President Izetbegovic asked him to serve as Bosnia’s representative to the United Nations in the spring of 1992. (Id. at 41). He stated that he contributed between $600,000 and $800,000 of his own funds to the Mission between 1992 and 1995 because financial support from Sarajevo for the Mission’s work was haphazard at best. (Id. at 43-44). Sacirbey further testified that he was entitled to receive a salary as ambassador, but never collected it. (Id. at 47-48).

 

Sacirbey stated that following the signing of the Dayton Accords in 1995, money that was earmarked for the Mission often never arrived, and he often received “conflicting instructions” from the Bosnian government regarding expenditures. (See id. at 44). Sacirbey testified that the Mission submitted proposed budgets to the Bosnian government, but the budgets were “altered … unilaterally,” and “the money … never came regardless of whatever budget was approved.” (Id. at 45-46). Sacirbey stated that his authority to spend money for the Mission came “directly from President Izetbegovic, … [who] said basically in very broad terms, we authorize this.” (Id. at 46). He later reiterated that his “directives” regarding expenditures “almost always came from President Izetbegovic from the presidency.” (Id. at 50). Sacirbey agreed that Ministry officials asked him to document his expenditures of Mission funds, but believed that Ivica Misic had acknowledged that he had provided President Izetbegovic with the necessary documentation. (Id. at 82- 83).

 

Sacirbey testified that, in addition to his U.N. role, he also served as Bosnia’s foreign minister from early 1995 to 1996, and as Bosnia’s “agent” before the ICJ from 1993 until 2000. (Id. at 53-54). He stated further that he was Bosnia’s “representative” to the ICTY, and President Izetbegovic’s “representative for the implementation of the Dayton agreements,” in which capacity he also oversaw programs to train and equip a new Bosnian army and configure a new Bosnian intelligence service. (Id. at 54-55). Sacirbey testified that all of these different activities were “generally” funded through the Mission account. (Id. at 57-58). Sacirbey noted that President Izetbegovic never questioned the way that he carried out his functions or expended Mission funds; indeed, he told Sacirbey to “make do,” stating that his ability to do so was one of the reasons he was “so valuable.” (Id. at 59). Sacirbey also specifically denied that Izetbegovic had failed to approve any funding for the ICJ case. (Id. at 103-04).

 

Sacirbey testified that the Bosnians prosecuted the ICJ case, in part, to put pressure on the Serbs—most notably Milosevic—to negotiate a peace agreement. (See id. at 62). He noted that his role as Bosnia’s agent before the ICJ brought him into conflict with members of the BiH government, including two Serb members of the presidency. (See id. at 61-79). As Sacirbey explained, he “would receive unsolicited instructions from members of the foreign ministry or [the] presidency who were Serbs saying [that his] activities were unauthorized.” (Id. at 64). In one instance, someone was sent to replace Sacirbey before the ICJ, but the request was rejected by the court. (Id.).

 

[*8]  Sacirbey testified that Krajisnik was a good example of his “political opponents” within the BiH government. (Id. at 65). As he explained, he reported to Krajisnik for two years while Krajisnik was a member of the BiH presidency, at the very same time that he was seeking to bring Krajisnik to justice before the ICTY. (Id.). Sacirbey noted that his opponents labeled him as a “criminal,” an “embezzler,” and a “womanizer.” (Id.). In his view, the extradition request was an outgrowth of his support of the war crimes case. (Id. at 70).

 

Sacirbey also testified that he had certain enemies as a result of his relationship with President Izetbegovic. (See id. at 67-68). He stated that he was told on a number of occasions that he “was too close to Izetbegovic for [his] own good.” (Id. at 67). Indeed, he testified that Ivica Misic told him that he was being targeted in an effort to secure his cooperation in making a case against President Izetbegovic, which he declined to do. (Id. at 68). Based on this conversation, Sacirbey considered the present extradition proceeding part of the effort to “go after President Izetbegovic.” (Id. at 68-69).

 

Sacirbey also testified, as did Williams, about the political implications of the U.N. investigation into the massacre of Bosnian Muslims at Srebrenica, which “met all sorts of opposition … from the Bosnian Serbs … [and also] from western capitals, including Washington.” (See id. at 71). He stated that he held a conference at the U.N. in July 2000 to publicize the betrayal of Srebrenica, and that he also had been contacted by the ICTY in connection with Srebrenica. (Id. at 71-73). Sacirbey testified that he suspected that certain Bosnian Serbs from the Republic of Srpska who were made part of the BiH government were aware that he had supplied information about them to the ICTY prosecutors. (Id. at 73-74).

 

Sacirbey testified further that, while he was serving as United States Ambassador to the United Nations, Richard C. Holbrooke pressured Sacirbey and others to abandon the ICJ genocide case and “came down very hard” on Sacirbey at Dayton for “call[ing] for Milosevic’s indictment.” (Id. at 75-78). He theorized that Holbrooke and others close to Holbrooke might have played a role in the commencement of this proceeding against him. (Id. at 77-78).

 

Sacirbey further testified that his submissions to Izetbegovic “may” have included letters from vendors, cancelled checks, money orders, and documents regarding wire transfers. (Id. at 83). He conceded that he was unsure because most of the documents that he supplied were kept by the Mission bookkeeper. (Id.).

 

Sacirbey also noted that he provided President Izetbegovic with a yearly accounting of the expenses incurred in connection with the genocide case before the ICJ. (Id. at 86). He claimed that this reporting was proper because the BiH Ministry of Foreign Affairs had no authority over cases at The Hague. (See id. at 86, 89, 94-96, 98-99). Sacirbey nevertheless claimed that he had provided the documentation underlying most of the routine expenses of the Mission to the personnel that the Ministry sent to New York. On cross-examination, however, Sacirbey expressed uncertainty as to whether Izetbegovic had received complete documentation concerning the expenditures for the ICJ genocide case. (See id. at 118). He also testified that the Mission’s back up set of documents was sent to Izetbegovic and that he had not kept any duplicates. (Id. at 118-19, 122-23).

 

III. Discussion

 

[*9]  Section 3184 of Title 18, United States Code, provides that a magistrate judge may issue a warrant for the arrest of someone whose extradition is sought, so that the person charged may be brought before the Court “to the end that the evidence of criminality may be heard and considered.” Additionally,

 

[i]f, on such hearing, [a magistrate judge] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, … he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.

 

18 U.S.C. § 3184.

 

An extradition hearing, conducted pursuant to 18 U.S.C. § 3184, is not a criminal proceeding. See Lo Duca v. United States, 93 F.3d 1100, 1104 (2d Cir.1996). Rather, it is a preliminary examination to determine “whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation.” Id. (quoting Ward v. Rutherford, 921 F.2d 286, 287 (D.C.Cir.1990)). The function of the extradition court is to determine whether there is probable cause ” ‘to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.Ơ Ƣ Id. (quoting Collins v. Loisel, 259 U.S. 309, 316 (1922)).

 

The “question of the wisdom of extradition remains for the executive branch to decide.” Murphy v. United States, 199 F.3d 599, 602 (2d Cir.1999) (quoting Wacker v. Bisson, 348 F.2d 602, 606 (5th Cir.1965)). If the extradition court issues a certificate of extraditability, the Secretary of State may order the accused to be delivered to the requesting nation, but is under no legal duty to do so. See Lo Duca, 93 F.3d at 1104. However, if the court chooses not to issue such a certificate, the complaint is dismissed and the Secretary of State has no authority to order the accused’s surrender. Id. (citing In re Mackin, 668 F.2d 122, 125-28 (2d Cir.1981)).

 

Furthermore, the issues to be decided in an extradition proceeding are “exceedingly narrow.” In re Extradition of Ernst, No. 97 Crim. Misc. 1 (HBP), 1998 WL 395267, at *4 (S.D.N.Y. July 14, 1998). Thus, the Court should only determine whether:

 

(1) there is a valid extradition treaty between the United States and the [requesting country];

 

(2) [the individual arrested] is the individual sought;

 

(3) the offenses charged are extraditable;

 

(4) the requirement of “double criminality” is satisfied;

 

(5) there is probable cause to believe [the extraditee] committed the offenses charged;

 

(6) the required documents have been presented, translated and duly authenticated by the United States Consul; and

 

[*10]  (7) all other treaty procedures have been followed.

 

Id. (quoting In re Extradition of Rabelbauer, 638 F.Supp. 1085, 1087 (S.D.N.Y.1986)).

 

A. Validity of the Extradition Treaty

 

Sacirbey contends that the Treaty originally entered into between the United States and the Kingdom of Serbia is not in force between the United States and BiH. (Relator’s Brief in Opposition to Extradition, dated Nov. 14, 2003 (“Relator’s Br.”), at 6). He argues that the Government has failed to meet its burden by “produc[ing] a legal document that clearly encompasses the express agreement of the United States and the government of Bosnia and Herzegovina to be bound by the 1902 Extradition Treaty.” (Id. at 7) (emphasis added).

 

The “question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and … the courts ought not to interfere with the conclusions of the political department in that regard.” Terlinden v. Ames, 184 U.S. 270, 288 (1902) (considering the validity of the 1852 extradition treaty between the United States and Prussia). Accordingly, circuit courts that have considered whether a treaty has lapsed have typically deferred to the executive branch’s determination. See Kastnerova v. United States, 365 F.3d 980, 986-87 (11th Cir.) (holding that the conduct of the United States and the Czech Republic evinced their intent to adhere to a 1925 extradition treaty between the United States and Czechoslovakia), cert. denied, 124 S.Ct. 2826 (2004); United States ex rel. Saroop v. Garcia, 109 F.3d 165, 171 (3d Cir.1997) (holding that Trinidad and Tobago succeeded to an extradition treaty between the United States and Great Britain based upon the conduct and intent of their governments despite the lack of an express confirmation treaty or exchange of diplomatic letters); Then v. Melendez, 92 F.3d 851, 854 (9th Cir.1996) (“The continuing validity of the [extradition treaty between the United States and Singapore] after Singapore’s independence from the United Kingdom presents a political question, and we must defer to the intentions of the State Departments of the two countries.”); New York Chinese T.V. Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847, 852 (2d Cir.1992) (observing, in a copyright action, that “the judiciary should refrain from determining whether a treaty has lapsed, and instead should defer to the wishes of the elected branches of government”); Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir.1978) (noting that courts must give “great deference” to the conduct of the governments concerned in deciding a treaty’s applicability).

 

The courts also have recognized a presumption that emerging nations inherit the treaty obligations of their predecessors. See Jhirad v. Ferrandina, 355 F.Supp. 1155, 1159 (S.D.N.Y.1973), rev’d on other grounds, 486 F.2d 442 (2d Cir.1973); United States ex rel. Saroop, 109 F.3d at 172 (citing Jhirad ); see also Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 682 (9th Cir.1983) (holding that the extradition treaty between the United States and Denmark applied to Iceland after it gained its independence); Ivancevic v. Artukovic, 211 F.2d 565, 573-74 (9th Cir.1954) (holding that the Treaty was valid and effective between the United States and the Federal Peoples’ Republic of Yugoslavia).

 

[*11]  Here, the evidence shows that the Treaty was signed at Belgrade on October 25, 1901, that it later was ratified by the United States and the Kingdom of Serbia, and that it entered into force on June 12, 1902, thirty days after the signatories exchanged instruments of ratification. (See Ex. 8 (Decl. of Robert E. Dalton, dated Dec. 19, 2003 (“Dalton Decl.”)), ¶ 3). It also appears undisputed that the Treaty has continued in force through a series of successor nations, including the Federal People’s Republic of Yugoslavia, later renamed the Socialist Federal Republic of Yugoslavia (“SFRY”), which consisted of six republics, including Bosnia, Herzegovina, and Serbia. (Id. ¶¶ 4-6 (citing Ivancevic )).

 

Although Sacirbey contends that BiH has not expressly ratified the Treaty, in April 1992, President Izetbegovic advised the United States Secretary of State that “Bosnia is ready to fulfill the treaty and other obligations of the former SFRY.” (Id. ¶ 7). Since then, the United States has considered the Treaty to be in effect between the United States and BiH. (Id.; Ex. 1 (Decl. of Kenneth Propp, dated Apr. 2, 2002 (“Propp Decl.”)), ¶ 2).

 

Additionally, in both this proceeding and other proceedings, BiH’s request for extradition has expressly relied on the Treaty. (See Ex. 8 ¶ 10; Ex. 5 at 1 (noting that the Request is made “[i]n accordance with … Articles II and III of the Convention on Extradition of Offenders concluded between the former Kingdom of Serbia and the United States of America …, taken over by Bosnia and Herzegovina from the former Socialist Federal Republic of Yugoslavia[.]”)).

 

Sacirbey’s reliance on the Restatement (Third) of Foreign Relations, as support for his contention that the Treaty has not properly been ratified, is wholly misplaced. Indeed, the Restatement provides that “[w]hen a part of a state becomes a new state, the new state does not succeed to the international agreements to which the predecessor state was a party unless, expressly or by implication, it accepts such agreements and the other party or parties thereto agree or acquiesce.” (Relator’s Br. at 8 (quoting Restatement (Third) of Foreign Relations § 210 (1987)) (emphasis added). Here, President Izetbegovic’s 1992 letter to the State Department expressly bound Bosnia to the Treaty. In addition, by making formal requests for extradition under the Treaty in this and other cases, BiH has implicitly conceded that it is bound by the Treaty. By certifying those requests, the United States also has impliedly agreed that BiH is bound. See M. Cherif Bassiouni, International Extradition: United States Law and Practice 144 (4th ed. 2002) (“Bassiouni”) (“The prevailing position of the United States is that a treaty is in force sua sponte and binds the successor state unless that state repudiates it.”).

 

In sum, there is ample evidence that BiH has adopted the Treaty, if not expressly, then impliedly. Accordingly, the Government has made the first showing necessary to secure Sacirbey’s extradition.

 

B. Identity

 

[*12]  It is undisputed that Sacirbey, who is named in the extradition request as “Muhamed Sacirbegovic,” is the individual whose extradition BiH seeks. (See Relator’s Br. at 1 (“There is no issue as to the identity of the Relator.”)).

 

C. Extraditability of the Charges

 

Sacirbey contends that Abuse of Office or Authority is not an offense for which he can be extradited under the terms of the Treaty. (See Relator’s Br. at 14-17; Relator’s Mem. of L. in Opp’n to the Gov’t’s Request for an Order of Extradition (“Relator’s Mem.”), at 13-30). There are two components of this claim. First, Sacirbey contends that Abuse of Office or Authority is not sufficiently equivalent to embezzlement, one of the Treaty’s enumerated offenses, to constitute an extraditable offense. (See Relator’s Br. at 14-15; Relator’s Mem. at 13-30). Second, even if that crime satisfied the Treaty’s definition of an extraditable offense, Sacirbey argues that he may not be extradited because he has not been formally “charged” within the meaning of the Treaty. (Relator’s Br. at 16-17).

 

1. The Crime for Which Extradition is Sought is an Extraditable Offense

 

For a crime to be extraditable, “ ‘it must be an offense that is either listed or defined as such by the applicable treaty.’ ” In re Extradition of Matus, 784 F.Supp. 1052, 1054 (S.D.N.Y.1992) (quoting Spatola v. United States, 741 F.Supp. 362, 371 (E.D.N.Y.1990)). Modern treaties sometimes do not enumerate the crimes for which extradition may be sought, opting instead for language which simply requires that the conduct charged be criminal in both nations. See, e.g., Extradition Treaty Between the United States and the United Kingdom, Mar. 31, 2003 (“An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.”). Here, however, the Treaty is enumerative, containing a lengthy list of extraditable offenses which fall into twelve broad categories, the sixth of which is embezzlement. [FN6]

 

FN6. See Treaty, Art II, ¶ 6. The remaining categories are murder, arson, robbery, forgery, counterfeiting, fraud or breach of trust, perjury, rape, abduction or kidnapping, destruction or obstruction of railroads, crimes committed at sea, and slave trading. Id. ¶¶ 1-5, 7-12.

 

 

The Request alleges that BiH wishes to prosecute Sacirbey for a violation of Article 358 of the BiH Criminal Code, which provides, insofar as relevant, that:

 

(1) An official or responsible person who, by taking advantage of his/her office or official authority, exceeds the limits of his/her official authority or fails to execute his/her official duty, and thereby acquires a benefit to himself or to another person, or causes damage to a third person or seriously violates the rights of another, shall be punished by imprisonment for a term of between six months and five years.

 

…

 

(3) If the property gain acquired through the commission of an act referred to in paragraph 1 of this Article exceeds 10,000 KM, [FN7] the perpetrator shall be punished by imprisonment for not less than three years.

 

FN7. “KM” refers to “Konvertible Marks,” which were “adopted by BiH as its currency when the German Mark still existed.” (See Hartmann I at 23 n. 52). The KM had the same value as one German Mark, or approximately one-half of a Euro. (Id.).

 

(Ex. 7 (Chapter XXXI, Criminal Code of Federation of Bosnia and Herzegovina, “Criminal Offenses Against Official Duty or Other Responsible Duty”)). [FN8]

 

FN8. In 2003, the BiH Criminal Code was amended. (See Hartmann II at ¶¶ 13, 30). The crime of “Abuse of Office or Official Authority” is now contained in Article 379, which is “effectively identical [to the 1998 BiH Criminal Code] except that the monetary amounts required for enhancements have changed.” (Id. ¶ 30). As amended, the BiH Criminal Code provides for a minimum three-year sentence if the gain resulting from the crime exceeds 50,000 KM. (Id.).

 

[*13]  The Government contends that a violation of Section 358 constitutes the crime of embezzlement and therefore falls within Paragraph 6 of Article II of the Treaty, which defines the “crimes and offenses” for which extradition may be granted to include:

 

Embezzlement by public officers; embezzlement by persons hired or salaried, to the detriment of their employers; larceny; obtaining money, valuable securities or other property by false pretenses, or receiving money, valuable securities or other property, knowing the same to have been embezzled, stolen or fraudulently obtained, when such act is made criminal by the laws of both countries and the amount of money or the value of the property fraudulently obtained or received, is not less than two hundred dollars or one thousand francs in gold.

 

(Treaty, Art. II, ¶ 6).

 

Sacirbey counters that two other articles of the BiH Criminal Code—Articles 286 and 380—set forth the crime of embezzlement, which requires both a specific intent and a showing that the funds in question were entrusted to the defendant. (Relator’s Mem. at 16-17, 25-30; Hartmann II at ¶¶ 32-37). Because Article 358 does not expressly require either of these two elements, Sacirbey maintains that the statute is not an enumerated offense for which extradition may be sought. (Id.).

 

Article 286 of the BiH Criminal Code provides in relevant part as follows:

 

Embezzlement

 

(1) Whoever, with the intention of making an unlawful material gain for himself or for another person, unlawfully appropriates personal property of another which has been entrusted to him, shall be fined or punished by imprisonment for a term not exceeding one year.

 

…

 

(3) If the embezzled property is an object of special cultural, scientific, artistic, historical or technical significance or is of high value and the perpetrator has been acting with the purpose of appropriating property of such value, he shall be punished by imprisonment for a term of six months to five years.

 

(See Hartman Decl., dated Dec. 9, 2003, at 54-55) (emphasis added).

 

In addition, Article 380 of the BiH Criminal Code provides, in relevant part:

 

Embezzlement in Office

 

(1) Whoever, with an aim of acquiring unlawful property gain for himself or another, appropriates money, securities or other moveables entrusted to him by virtue of his office in the institutions of the Federation of Bosnia and Herzegovina, … shall be punished by imprisonment for a term between six months and five years.

 

…

 

(3) If a property gain acquired by the perpetration of the criminal offen[s]e referred to in Paragraph 1 of this Article exceeds the amount of 50,000 KM, the perpetrator shall be punished by imprisonment for a term [of] not less than three years.

 

(Id. at 55) (emphasis added).

 

The fact that conduct may be charged as a crime under one statute does not mean that the conduct cannot alternatively be charged under other statutes. For example, as the Government correctly observes, an official of the United States accused of the misappropriation of government funds in circumstances similar to those alleged in the Request could properly be charged under statutes proscribing the embezzlement of Government funds (18 U.S.C. § 641), the failure to account for public funds (id. § 643), the failure to keep deposited funds safely (id. § 650), and the conversion of Government funds (id. § 653). Interestingly, Section 643, which criminalizes a public official’s failure to account for funds which he is not entitled to retain as salary, pay, or an emolument, specifically provides that anyone who engages in such conduct is “guilty of embezzlement.” This appears to be precisely the type of conduct for which BiH seeks Sacirbey’s extradition.

 

[*14]  The first branch of Sacirbey’s argument is that, unlike Article 358, the BiH embezzlement offenses (Articles 286 and 380) require specific intent. He reasons that the Request to extradite him for a violation of Article 358 therefore fails to meet the Treaty’s definition of embezzlement as an extraditable offense. In support of this claim, Sacirbey has submitted the declaration of Michael Hartmann, which concludes that Article 358 is not the equivalent of embezzlement because it criminalizes “many different acts (even acts of omission), different forms of loss (including violating rights and non-financial harms), and different states of mens rea.” (Hartmann Decl. II at 8 ¶ C).

 

To counter this evidence, the Government has submitted the declaration of Branko Sljivar, the Sarajevo Cantonal Chief Prosecutor, whose office investigated the Sacirbey case. (See Decl. of Branko Sljivar, dated Mar. 12, 2004 (“Sljivar Decl.”)). Sljivar has been practicing law as part of the Bosnian judiciary for more than thirty years. (Id. ¶ 1). In his declaration, Sljivar states that the principal distinction between Articles 358 and 380 is that Article 380 requires a showing that the embezzled funds were entrusted to the defendant by virtue of his office. (Id. ¶ 2). [FN9] The prosecutor further explains that, contrary to Hartman’s assertion, under either Article 358 or Article 380 the “prosecution would have to show that the defendant knowingly committed the act charged with the intention of benefitting himself.” (Id. ¶ 4). Sljivar also notes that his office frequently charges one offense initially, but may alter that charge or add other charges once the defendant appears. (Id. ¶ 3). He further states that Article 358 often is the first offense charged because the funds that a government official embezzles may not have been entrusted to him. (Id. ¶ 2). The prosecutor further acknowledges that, in the extradition context, Sacirbey may only be prosecuted for a violation of Article 358—the offense charged—if the Request is granted. (Id. at 1 n. 1).

 

FN9. The Sljivar Declaration actually refers to Article 380 by its former designation. For ease of reference, I have used the citation under the 2001 BiH Criminal Code because that is the citation form used by Hartmann. Any difference between the old and new provisions is inconsequential.

 

Sacirbey objects to the Sljivar Declaration as untimely and irrelevant. (See letter dated Mar. 11, 2004, from Michael S. Kim & Justin V. Shur, Esqs., to the Court, at 1). He contends that the declaration is untimely because it injects “new factual issues into the proceedings at the eleventh hour.” (Id.). He further suggests that the Court’s acceptance of the Sljivar Declaration would require Sacirbey to obtain his own expert affidavit concerning these issues, after which a hearing would have to be held so that the experts could be cross-examined. (Id.).

 

Sacirbey has not cited any authority which suggests that the showing made by the Government on behalf of a requesting nation cannot be expanded after the extradition hearing is held. In any event, even though I believe that the declaration of a Bosnian prosecutor should be given more weight than that of an American lawyer who concedes that he has far less experience with the BiH legal system, there is no need to resolve the conflicts between Hartmann and Sljivar, much less reopen the hearing, in order to determine whether the violation of Article 358 alleged in the Request is an extraditable offense.

 

[*15]  As Professor Bassiouni explains in his treatise, under the principle of specialty, unless the relator or the requested state agrees otherwise, a requesting state can prosecute an extraditee only for the offense for which he was surrendered. Bassiouni at 511, 515. The limitations that the surrendering state can impose are not limited simply to the offense or offenses charged. Id. at 517. Thus, “the extradition order can contain limitations … as to sentence or other questions of law. Id. (emphasis added).

 

The language of Article 358 plainly is broad enough to encompass the embezzlement of BiH funds by one of its officials for personal gain. The difficulty in this proceeding is that the statute also potentially encompasses crimes which are not akin to embezzlement, such as the diversion of funds from one government-sanctioned use to another without any personal benefit accruing to the individual charged. The solution to this problem is to apply the principle of specialty to limit the crime for which extradition is granted to a violation of Article 358 which involves the misappropriation of BiH funds by Sacirbey undertaken with the intent of acquiring a material financial gain for himself. In this manner, both Sacirbey and the Court will have the comfort of knowing that he will be prosecuted under Article 358 only for the embezzlement of BiH funds, and not for any of the other “crimes” that potentially could be charged under that statute.

 

Sacirbey also notes (and the Government evidently concedes) that, unlike Articles 286 and 380, Article 358 does not require a showing that the funds at issue were entrusted to the accused. However, 18 U .S.C. § 643, which expressly states that a violation of its terms constitutes the crime of embezzlement under United States law, similarly contains no such requirement. Instead, Section 643 requires only that the Government official have received public money which he is not authorized to keep and thereafter have failed to render a proper accounting. It follows that, notwithstanding the wording of Articles 286 and 380 of the BiH Criminal Code, the crime of embezzlement does not necessarily require proof that the missing funds were “entrusted” to the accused.

 

The Government consequently has made the showing necessary to establish that the offense for which extradition is sought meets the Treaty definition of an extraditable offense. Moreover, any conceivable doubt on this score will be obviated by the wording of the extradition order.

 

2. Sacirbey is Properly “Charged” for Purposes of the Treaty

 

Article I of the Treaty provides that the signatories agree to surrender persons who have been “charged with or convicted of” an enumerated crime in one signatory’s jurisdiction and are found in the jurisdiction of the other signatory. (Treaty, Art. I). Seizing upon the “charged with” language, Sacirbey contends that the proceeding against him in BiH has not matured beyond the investigative stage, and that he consequently is not extraditable. (Relator’s Br. at 16-17). The Government, on the other hand, maintains that the Treaty requires only an intention to prosecute Sacirbey, which has been abundantly evidenced throughout the protracted proceedings in this case. (See letter dated June 2, 2003, from Ms. Perry to the Court, at 4-5). I previously sided with the Government on this issue when it arose in the context of Sacirbey’s original bail application. See Sacirbey I at 83-84.

 

[*16]  While Sacirbey’s argument may at first blush have some appeal, it is inconsistent with the case law interpreting such treaty language. For example, in In re Assarsson, 635 F.2d 1237 (7th Cir.1980), the extradition treaty involved language virtually identical to that of the Treaty. Rejecting the suggestion that the term “charged” meant that extradition could be granted only for those offenses for which formal charges have been filed, the court concluded that it was “used in contrast to ‘convicted,’ ” and ơin the generic sense only to indicate [an] accused.” Id. at 1242; see also In re La Salvia, No. 84 Crim. Misc. 01(MHD), 1986 WL 1436, at *6 (S.D.N.Y. Jan 31, 1986) (holding, under an identically-worded treaty with Argentina, that “charged” is “a generic term referring to those persons whose extradition is sought so that they may be brought to trial,” as distinguished from extraditees “who have already been convicted and whose return is sought for the purpose of imposing punishment”); Republic of France v. Moghadam, 617 F.Supp. 777, 781 (N.D.Cal.1985) (holding that identical language in a treaty with France did not preclude extradition despite the relator’s contention that “the French magistrate serves an investigative function and the arrest warrant is more like a subpoena than a formal charge”).

 

Because the Treaty does not require that an extraditee be formally charged by the requesting state, all that need be shown is that the requesting nation intends to prosecute. See Emami v. U.S. Dist. Ct. for the N. Dist. of Cal., 834 F.2d 1444, 1449 (9th Cir.1987) (declining to address compliance with German criminal procedure and holding that requestor’s contention that habeas petitioner was sought for prosecution meets treaty requirements); Borodin v. Ashcroft, 136 F.Supp.2d 125, 130 (E.D.N.Y.2001) (“[T]he ƟchargeƠ requirement [of the extradition treaty between the United States and Switzerland was] satisfied by [the] requesting nation’s intent to prosecute as evidenced by the record.”); Kaiser v. Rutherford, 827 F.Supp. 832, 834 (D.D.C.1993) (“The [extradition treaty between the United States and the Federal Republic of Germany’s] requirement that a party be charged with an offense simply requires that a party must be accused of a crime and does not require any particular stage of foreign criminal procedure.”). Here, in the weeks leading up to the extradition hearing, BiH authorities confirmed that there was an ongoing criminal investigation of Sacirbey and, through diplomatic channels, that BiH continued to seek Sacirbey’s extradition. (See e.g., letter dated Oct. 2, 2003, from Ms. Perry to the Court; letter dated Dec. 11, 2003, from Cantonal Prosecutor Mustafa Bisic to Laura Neubauer, Esq., Legal Advisor to the U.S. Dep’t of Justice in Sarajevo).

 

In its submissions, the Government contends that Sacirbey cannot be formally charged until he appears in BiH. (See, e.g., Decl. of Ms. Neubauer, dated Jan. 14, 2004, ¶ 5 (an indictment cannot be brought until the suspect has been interviewed during the conduct of investigation)). Sacirbey apparently disagrees with this view. (See Hartmann III at 3-4 (under the 1998 BiH Criminal Code and judicial practice, “the Cantonal Prosecutor could have indicted (but not tried) … Sacirbey, should the prosecutor have so desired”)).

 

[*17]  The Second Circuit has noted that “[i]t is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation.” Jhirad v. Ferrandina, 536 F.2d 478, 484-85 (2d Cir.1976) (citing Factor v. Laubenheimer, 290 U.S. 276 (1933)); see also Assarsson, 635 F.2d at 1244 (“We are … not expected to become experts in the laws of foreign nations.”); Borodin, 136 F.Supp.2d at 130 (“American courts cannot become enmeshed in the technicalities of foreign criminal processes”). Accordingly, there is no need to resolve the dispute between the two sides as to whether Sacirbey could have been formally charged. As the cases make clear, all that is necessary is that the requesting nation evidence a present intention to prosecute the relator. Here, there is no doubt that this is so. The Government therefore has established BiH’s compliance with the Article I requirement that a relator have been “charged” in the requesting country.

 

D. Dual Criminality

 

The Treaty contains “dual criminality” language which requires that the crime for which extradition is sought constitute an offense under the laws of both the requesting and surrendering nations. (See Treaty, Art. I (requiring that the relator be surrendered only “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”)). As Sacirbey correctly indicates, in modern treaties which require only that the conduct complained of be criminal in both jurisdictions, the analyses of whether a crime is extradictable and of dual criminality merge. (See Relator’s Mem. at 14 & n. 9). In this case, however, the Treaty is enumerative. Accordingly, whether the offense for which extradition is sought meets the dual criminality requirement must be separately considered.

 

To determine whether dual criminality exists, an extradition court may look to federal law or the law of the state where the extradition proceeding is being held. See Hu Yau-Leung v. Soscia, 649 F.2d 914, 918 (2d Cir.1981). In Collins, the Supreme Court noted that dual criminality

 

does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.

 

259 U.S. 309, 312 (1922) (emphasis added). Sacirbey’s own lawyer arguably has stated this requirement in even broader terms. As Professor Bassiouni explains in his treatise, dual criminality

 

does not require that the crime charged be the same exact crime contained in federal or state law; it is sufficient that it be the same type of crime. Thus, theft, larceny, embezzlement, and fraud are the same type of crimes and it is not important that the crime charged have the same label, or have the same legal elements as those contained in the crime contained in the criminal law of the requested state.

 

[*18]  Bassiouni at 472 (emphasis added).

 

As noted earlier, under federal law, it is unlawful to “embezzle[ ], steal [ ] … or knowingly convert[ ]” any “voucher, money, or thing of value of the United States or of any department or agency thereof.” 18 U.S.C. § 641. Federal law also describes numerous acts which constitute embezzlement. For example, it is embezzlement for an “officer, employee or agent of the United States” to “receive[ ] public money which he is not authorized to retain as salary, pay, or emolument” and “fail[ ] to render his accounts for the same as provided by law.” Id. § 643. It further is embezzlement for “an officer or other person charged … with the safe-keeping of the public moneys” to “loan [ ], use[ ], or convert[ ] to his own use … any portion of the public moneys intrusted to him.” Id. § 648. Additionally, anyone who fails to deposit public moneys into the federal Treasury when directed to do so is guilty of embezzlement. Id. § 649.

 

As this brief canvas of federal law confirms, there are many different crimes with which Sacirbey could have been charged in this country as a consequence of his alleged defalcations during his term of service as BiH’s U.N. ambassador. Accordingly, to the extent that Sacirbey seeks to avoid extradition on the theory that dual criminality has not been established, his argument clearly is baseless.

 

E. Probable Cause

 

Sacirbey next contends that the documents underlying the Request are insufficient to establish “probable cause” that he committed the offense of Abuse of Office or Authority. (Relator’s Br. at 19-22). In an extradition proceeding, my narrow function in this regard is to “determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.” Collins, 259 U.S. at 316; see In re Extradition of Pineda Lara, No. 97 Crim. Misc. 01(THK), 1998 WL 67656, at *7 (S.D.N.Y. Feb. 18, 1998) (an extradition court’s function is to “determine whether there is competent legal evidence to justify extradition according to the [t]reaty [at issue]”); 18 U.S.C. § 3184 (if the extradition court “deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, … [it] shall certify the same … to the Secretary of State”).

 

In an extradition proceeding, probable cause is “measured by the standards used in federal preliminary proceedings.” In re Extradition of Glantz, No. 94 Crim. Misc. 01 Page 25(MHD), 1995 WL 495644, at *2 (S.D.N.Y. Aug. 21, 1995). To make its evaluation, an extradition court applies the “totality of the circumstances” analysis set out by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). Id. at *2. Thus, the court must make a ” ‘practical, common-sense decision whether, given all the circumstances …, there is a fair probability that’ the defendant committed the crime as defined.” Id. (quoting Gates, 462 U.S. at 238). In Gates, the Court noted that the proof necessary to establish probable cause is “only the probability, and not a prima facie showing, of criminal activity.” 462 U.S. at 235 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)); see also In re Extradition of Ernst, 1998 WL 395267, at *8 (“Probable cause is not an overly demanding standard.”). Moreover, for purposes of the probable cause determination, the allegations set forth in the extradition request must be assumed to be true. See, e.g., Pineda Lara, 1998 WL 67656, at *8. The Government is also entitled to rely on hearsay. Collins, 259 U.S. at 317.

 

[*19]  The evidence submitted by BiH in support of its Request establishes that an audit of the Mission’s books determined that there was a shortfall in the commingled Mission and consular account in the amount of $610,982, and a $1.8 million shortfall in the Investment Fund account. The BiH evidence also shows—and Sacirbey does not dispute—that he had signature authority over that account. It further is undisputed that Sacirbey refused to provide the details of certain of his nonroutine expenditures to Ministry representatives, stating that he would instead provide the necessary justification to President Izetbegovic. However, according to the evidence adduced by BiH, when Izetbegovic was questioned about this, he expressly denied that Sacirbey had been authorized to spend BiH funds on the ICJ case, as Sacirbey now claims. The BiH evidence also shows that BiH procedures do not provide for Mission expenditures to be confidential.

 

The BiH evidence further suggests that Sacirbey impliedly conceded that some of his expenditures were improper by telling Lukovac that he would be able to restore some of the missing funds. Despite that representation, however, Sacirbey evidently never replenished the Mission account. Worse yet, when Lukovac arranged some emergency financial assistance for the Mission, Sacirbey diverted the funds before they could be used to pay overdue bills.

 

The BiH evidence also suggests that Sacirbey may have evaded the efforts of BiH authorities to contact him to seek some resolution of the problems that the BiH auditors found. Sacirbey also failed to account properly for personal advances that he had taken against the Mission account. In particular, although Sacirbey claimed to have paid large sums of money to lawyers in cash, he evidently was unable to document these expenditures.

 

From this evidence, a finder of fact reasonably could conclude that Sacirbey embezzled funds from the Mission account and used them for this own personal needs. Accordingly, the Government has shown that there is probable cause to believe that Sacirbey committed the crime for which his extradition is sought, even if that crime requires that he have acted with a specific intent to misappropriate funds for his own personal gain. [FN10]

 

FN10. Through his testimony and other submissions, Sacirbey has advanced at least three reasons why the conclusions urged by the BiH authorities allegedly are wrong. First, he alleges that he made a full accounting to President Izetbegovic who had authorized certain expenditures that could not be disclosed to the other members of the BiH presidency. Second, Sacirbey contends that he received no improper personal benefit from any of the monies in the Mission or Investment Fund accounts. Third, Sacirbey evidently also claims that any perceived shortfalls were largely, if not entirely overcome by the personal funds that he contributed to the Mission accounts over the years, as well as his decision not to accept any salary during the period that he served as BiH’s U.N. Ambassador.

 

While one or more of these arguments may carry the day at trial, it is settled law that an extradition magistrate may not consider evidence which contradicts the evidentiary showing made by the requesting nation. See Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.1978) (“Participation by the [relator] at the extradition proceeding is limited; he is not permitted to introduce evidence on the issue of guilt or innocence but can only offer evidence that tends to explain the government’s case of probable cause.”); Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973) (“The extraditee’s right to introduce evidence is thus limited to testimony which explains rather than contradicts the demanding country’s proof.”) (internal quotation marks omitted); In re Sindona, 450 F.Supp. 672, 685 (S.D.N.Y.1978) (“The rule is that the accused has no right to introduce evidence which merely contradicts the demanding country’s proof.”). Accordingly, even though the Court permitted Sacirbey to make a record regarding these defenses during the hearing, the evidence thus adduced cannot be used to undermine BiH’s showing that there is probable cause to believe he committed the crime of Abuse of Office or Authority.

 

F. Political Offense Exception

 

Sacirbey also asserts that the Treaty bars the Request for his extradition, because it is of “a political character.” (Relator’s Br. at 22-24). In that regard, the Treaty provides:

 

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.

 

(Treaty, Art. VI).

 

Courts interpreting such language in other treaties have recognized that there are two types of political offenses. “Pure” political offenses are “crimes directed at the state that lack the elements of ordinary crimes,” including “such crimes as treason, sedition, and espionage.” Marzook v. Christopher, No. 96 Civ. 4107(KMW), 1996 WL 583378, at *2 (S.D.N.Y. Oct. 10, 1996). While Sacirbey claims to have been acting in a clandestine fashion in pursuing some of his political goals, the offense with which he has been charged plainly does not fit into this colorful category.

 

[*20]  The other category of political offenses, known as “relative” political offenses, relates to “otherwise ordinary crimes that are (1) incidental to (2) the occurrence of severe political disturbances, such as war, revolution and rebellion.” Id. (quoting Sindona v. Grant, 619 F.2d 167, 173 (2d Cir.1980)). Here, although conditions in Bosnia may have been chaotic during Sacirbey’s tenure as a BiH official, there has been no showing that the unrest rose to the level of war or armed rebellion, or that the crime of which Sacirbey has been accused was incidental thereto.

 

In an effort to place himself within the political offense exception, Sacirbey has alleged in his papers that the numerous roles he has played in Balkan affairs are “highly politicized and controversial.” (Relator’s Br. at 23). He notes that “he is the subject of animosity” as a result of his efforts as U.N. ambassador, foreign minister, agent before the ICJ pursuing the case of genocide against Serbia and Montenegro, and agent before the ICTY seeking the indictment of former members of the BiH presidency. (Id.). The testimony that Sacirbey and Professor Williams proffered also was intended to elaborate on the claim that Sacirbey has many political enemies in both the BiH and the United States governments who may have played a role in BiH’s decision to seek his extradition.

 

Notwithstanding this showing, “[c]riminal conduct in the nature of financial fraud, even involving political corruption, traditionally has been considered outside the ‘political offense’ exception.” Koskotas v. Roche, 931 F.2d 169, 172 (1st Cir.1991); see Sindona, 619 F.2d at 173-74 (Italian charge of “fraudulent bankruptcy” is not of a political character even when the relator contends that it “resulted from political maneuverings and is [being] pursued for political reasons”); Jhirad, 536 F.2d at 485 (“[I]t is surely beyond dispute that the embezzlement of money from [a public fund] which [relator] as a public servant was responsible for administering, is not in any sense a political offense.”); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir.1971) (embezzlement by an official of the Peruvian government is not a political offense). Moreover, it is settled law that the political motivations of the requesting state may not be considered by an extradition court. See, e.g, Eain v. Wilkes, 641 F.2d 504, 516 (7th Cir.1981) (“[E]valuations of the motivation behind a request for extradition so clearly implicate the conduct of this country’s foreign relations as to be a matter better left to the Executive’s discretion.”); Marzook, 1996 WL 583378, at *3 (noting that the political offense exception focuses “on the nature of the offense … rather than … the requesting state’s motivation in bringing charges”); In re Locatelli, 468 F.Supp. 568, 575 (S.D.N.Y.1979) (holding that the court is without jurisdiction to “look behind the charges” as propounded by the requesting government; rather, the court “must … yield this inquiry to the Secretary of State”).

 

[*21]  There consequently is no basis for Sacirbey’s claim that the Request must be denied in accordance with the Treaty’s political offense language.

 

G. Remaining Showing Required

 

Finally, the Treaty provides that if the individual whose extradition is sought is “merely charged with [a] crime, 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, shall be produced.” (Treaty, Art. III). Here, this Treaty requirement has been met. (See Exs. 1-6).

 

IV. Conclusion

 

The request of the Federation of Bosnia and Herzegovina for the extradition of Muhamed Sacirbegovic, a/k/a “Muhamed Sacirbey,” is granted and a certificate of extraditability shall be issued. The Government is therefore directed to submit an order consistent with this Memorandum Decision on three days’ notice to Sacirbey and his counsel. As Sacirbey has requested, the order should provide that its effectiveness will be stayed for ten days so that Sacirbey’s counsel may seek a writ of habeas corpus. In view of the unique circumstances of this case, the Court declines to revoke Sacirbey’s bail pending the resolution of the habeas petition.

 

SO ORDERED.