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In the Matter of the Extradition of Monika Kapoor

April 17, 2012


The opinion of the court was delivered by: Levy, United States Magistrate Judge:


The United States of America (the "government"), acting on behalf of the government of India, filed a complaint on May 2, 2011, seeking an arrest warrant and the extradition of Monika Kapoor ("Kapoor"), pursuant to 18 U.S.C. § 3184. I held a hearing regarding the requested extradition on July 28, 2011 (see Transcript of Extradition Hearing, dated July 28, 2011 ("Tr.")) and have carefully considered the parties' submissions. For the reasons stated below, the government's request for a certificate of extraditability for Kapoor is granted.


On April 26, 2010, the Court of the Metropolitan Magistrate in New Delhi, India, issued a warrant for the arrest of Kapoor, an Indian citizen. The government, acting on behalf of the Indian government, filed a complaint in this court on May 2, 2011, seeking an arrest warrant and Kapoor's extradition. The Honorable Joan M. Azrack, United States Magistrate Judge, issued an arrest warrant on May 2, 2011, pursuant to 18 U.S.C. § 3184, the federal legislation implementing extradition treaties. Kapoor was arrested on May 6, 2011 and arraigned on May 10, 2011. On June 8, 2011, I granted Kapoor bail pending the resolution of these extradition proceedings.

India's basic allegation is that Kapoor and her brothers, Rajan and Rajiv Khanna, defrauded the Indian government of approximately $679,000. The complaint alleges that in 1998, Kapoor, along with her brothers, used forged export documents to obtain sixteen Replenishment Licences*fn1 from the Indian foreign trade authorities. (Complaint, dated May 2, 2011 ("Compl."), ¶ 5(b).) According to the allegations, they subsequently sold at least fourteen of the licenses to another company (Deep Blue Imports), which used them to import duty-free gold, causing a loss to the Indian government of approximately $679,000. (Id.) Kapoor is alleged to have taken part in the fraudulent scheme by: being the proprietor of the company (Monika Overseas) that submitted the application for six of the Replenishment Licenses; signing the application for the licenses, as well as forged documents enclosed with it; receiving the licenses at her residence; and facilitating the transmission of the licenses to Deep Blue Imports. (See Proposal for Extradition, certified Oct. 12, 2010 ("Extradition Packet"), at P38--39.)*fn2 She

stands accused of (1) cheating and dishonestly inducing delivery of property, (2) forgery of valuable security, will, etc., (3) forgery for the purpose of cheating, (4) using as genuine a forged document, and (5) criminal conspiracy in violation of the Indian Penal Code. (Compl. ¶ 4.)

The government currently seeks certification of Kapoor's extraditability. Kapoor argues that the court should not issue the certificate because there is not probable cause to sustain the charges against her.


A. Requirements for Extradition Under the federal extradition statute, a court may issue a certificate of extraditability for a fugitive if it "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention . . . ." 18 U.S.C. § 3184. If the reviewing judge "determines that the evidence is sufficient 'to sustain the charge under the provisions of the proper treaty or convention,' he is instructed to issue a certificate of extraditability to the Secretary of State, who has final and discretionary authority to extradite the fugitive." Skaftourous v. United States, 667 F.3d 144, 154 (2d Cir. 2011) (quoting 18 U.S.C. § 3184 and citing Lo Duca v. United States, 93 F.3d 1100, 1103--04 (2d Cir. 1996)).

At an extradition hearing, the "judicial officer's inquiry is confined to the following: whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof." Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000) (citations omitted); see also In re Szepietowski, No. M 08-971, 2009 WL 187568, at *4 (E.D.N.Y. Jan. 23, 2009) (citations omitted). In this case, Kapoor concedes that the first two prongs of the test have been met but she argues that the Indian government has not produced enough evidence to establish probable cause.

B. Kapoor's Proposed Evidence

As a threshold matter, Kapoor would like to introduce two pieces of evidence in order to challenge the existence of probable cause: (1) an affidavit in which she avers that statements she made to the Indian government were coerced; and (2) an expert report on her handwriting. The government objects to the court's review of either document in conjunction with its probable cause analysis.

It is settled law that a relator's right to controvert the evidence introduced against him or her 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) (citations omitted); see also Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978) ("Participation by the fugitive 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." (citation omitted)). Explanatory evidence includes "reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause." In re Extradition of Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978); see also Shapiro, 478 F.2d at 905 (holding that an extraditee may only introduce evidence that explains or obliterates, rather than contradicts, the government's proof). "The extent of such explanatory evidence to be received is largely in the discretion of the judge ruling on the extradition request." Sindona, 450 F. Supp. at 685 (citations omitted). "Evidence which raises questions of credibility 'should properly await trial.'" United States v. Hunte, No. 04-M-0721, 2006 WL 20773, at *6 (E.D.N.Y. Jan. 4, 2006) (quoting Shapiro, 478 F.2d at 905, and citing Sindona, 450 F. Supp. at 687). With these standards in mind, I will address the propriety of admitting each piece of proposed evidence in turn.

1. The Export Report on Handwriting Several of the documents that Monika Overseas submitted as part of its application for the Replenishment Licenses appear to have been signed by Kapoor. Kapoor argues that the court should consider a piece of evidence-a 2004 supplemental opinion of the Office of the Government Examiner of Questioned Documents (the "GEQD") (the "Supplemental Opinion")-that concludes that it is not Kapoor's signature on several of these documents. India did not provide the Supplemental Opinion as part of its extradition packet*fn3 but instead included an earlier report of the GEQD; that report states that the GEQD could express no opinion regarding Kapoor's signatures on the documents in question. (See Extradition Packet P254--55.) Although Kapoor concedes that the Supplementary Opinion "disagrees" with an identification of Kapoor's signature made in a statement by V.K. Mohan Das,*fn4 a bank official, she argues that it should be considered ...

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