A P P E A R A N C E S: Michael S. Washor 145 E. 16th Street, Suite 20-F New York, NY 10003 Robert P. Leighton 132 Nassau Street, Suite 900 New York, NY 10038 Attorneys for Alex Suyanoff Loretta E. Lynch United States Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201 By Amy E. Larson, Assistant United States Attorney
The opinion of the court was delivered by: Azrack, United States Magistrate Judge:
On May 10, 2012, Magistrate Judge Lois Bloom signed a provisional arrest warrant for Alex Suyanoff a/k/a Amnon Mordahaev ("Suyanoff"). According to the complaint and affidavit in support of the arrest warrant, Suyanoff was convicted and sentenced in Brazil to a twelve-year term of imprisonment for drug trafficking but escaped after serving three-and-a-half years and fled to the United States. Compl., ECF No. 1. Federal authorities located Suyanoff in Brooklyn, New York. Id.
The Government of Brazil, acting through the United States Attorney for the Eastern District of New York, seeks to extradite Suyanoff, pursuant to the Treaty of Extradition Between the United States of America and the United States of Brazil of January 13, 1961 (the "Treaty"). Id. For the following reasons, I hereby certify that Suyanoff is extraditable under the Treaty.
After Judge Bloom entered a provisional arrest warrant for Suyanoff, he appeared before me to be arraigned on May 21, 2012. Minute Entry, May 21, 2012, ECF No. 4. At this initial appearance, I set a bail hearing for May 30, 2012, and issued a temporary order of commitment. Id. The bail hearing was adjourned three times, before being scheduled for July 19, 2012. See Docket 12-MJ-462. On July 16, 2012, Suyanoff made a motion to dismiss the complaint. Mot. to Dismiss, ECF No. 10. He argued that, under the Treaty, the Government had only sixty days to present the papers necessary for extradition, and that if it did not present the papers to me by July 20, 2012, the sixtieth day after Suyanoff's arrest, Suyanoff would have to be released and the complaint against him dismissed. See id. The government opposed this motion, arguing that the Brazilian Government had submitted a formal extradition request to the State Department on July 17, 2012, thus satisfying the Treaty's 60-day deadline. Gov.'s Ltr. in Opp, ECF No. 12.
On July 19, 2012, I held a hearing wherein Suyanoff repeated his arguments on the record. See Minute Entry, July 19, 2012, ECF No. 13. The government represented that the extradition request had been received and was in the process of being certified and transported to this district. Tr. of Hearing. July 19, 2012, at 3:5--21. Suyanoff argued that the treaty required the government to present the papers to the presiding magistrate by the sixtieth day. Id. at 5:22-- 7:8. I rejected that argument and ruled on the record that Brazil had satisfied the Treaty's requirements.*fn1 Id. at 10:10--16. Accordingly, I denied Suyanoff's application for release and gave the government one week to present the documents for my review. Id.
The government delivered the extradition request to me on July 25, 2012. The extradition request contains: (1) a declaration from attorney-advisor Jason A. Biros from the Department of State, certifying that the documents were submitted by the Brazilian government pursuant to a treaty in full force and effect between Brazil and the United States ("Biros Decl."); and (2) copies and translations of the formal charges and evidence from Suyanoff's convictions in Brazil. Gov.'s Certified Extradition Request ("Extradition Papers"). Accordingly, I scheduled an extradition hearing and set a briefing schedule for written submissions. Minute Entry, July 26, 2012, ECF No. 15.
In anticipation of the extradition hearing, Suyanoff submitted a brief opposing extradition. Suyanoff Mem. in Opp. of Extradition ("Suyanoff Mem."), ECF No. 16. The government responded with a memorandum in support of extradition. Gov.'s Mem. in Supp. of Extradition ("Gov.'s Mem."), ECF No. 17. Suyanoff submitted a response to the government's memorandum. Suyanoff Reply to Gov.'s Mem. ("Suyanoff Reply"), ECF No. 19. He later submitted an addendum to his arguments. Suyanoff Ltr. Addendum ("Suyanoff Ltr."), ECF No. 20.
At a hearing on September 13, 2012, I heard oral argument from Suyanoff and the government. Minute Entry, September 13, 2012, ECF No. 23. Although his numerous written submissions had argued that he must not be extradited due to the lack of due process in his trial and Brazil's inhumane prison conditions, Suyanoff conceded at oral argument that these arguments are not properly before this Court and must be raised to the Department of State. Tr. of Extradition Hrng, Sept. 13, 2012 ("Tr.") at 18:7--13, ECF No. 22. He devoted his argument to asserting that the Brazilian courts had not followed their own laws in his criminal proceedings, and that this Court must not consider the convictions sufficient to establish probable cause. Id. at 16:18--17:17. He also argued that the extradition papers themselves do not establish probable cause. Id. at 22:13--18. After the hearing, Suyanoff submitted an unsolicited post-hearing letter clarifying his oral arguments. Suyanoff Post-Hearing Ltr., ECF No. 24.
Suyanoff's arguments against extradition have changed over the course of these proceedings, but I will consider all of his arguments in determining whether to certify his extradition. For the reasons stated below, I reject Suyanoff's arguments and certify that he is extraditable.
Extradition is primarily a function of the executive branch. Austin v. Healey, 5 F.3d 598, 600 (2d Cir. 1993) (citing Martin v. Warden, Atlanta Pen., 993 F.2d 824, 828 (11th Cir. 1993)). The power to extradite a fugitive derives from the President's power to conduct foreign affairs. Martin, 993 F.2d at 828. A court's function in extradition proceedings is to determine whether the evidence submitted by the requesting State is "sufficient to sustain the charge under the provisions of the proper treaty or convention" before the Department of State makes the determination to surrender a fugitive to a requesting country. 18 U.S.C. § 3184. Thus, judicial extradition proceedings are merely a "preliminary examination to determine whether a case is made out which will justify the holding of the accused and his ...