United States District Court, E.D. New York
For Alex Suyanoff, Petitioner: Michael S. Washor, LEAD ATTORNEY, Law Offices of Michael S. Wahsor, New York, NY; Robert P. Leighton, LEAD ATTORNEY, Robert P. Leighton, Esq., New York, NY; Jeremy L. Gutman, New York, NY.
For Warden Duke Terrell, Metropolitan Detention Center, Respondent: Erik David Paulsen, LEAD ATTORNEY, U.S. Attorney's Office, EDNY, Brooklyn, NY.
MEMORANDUM AND ORDER
DORA L. IRIZARRY, United States District Judge.
Petitioner Alex Suyanoff a/k/a Amnon Mordahaev (" Petitioner" or " Suyanoff") filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking to avoid extradition to Brazil, where he was convicted of conspiracy to traffic narcotics and narcotics trafficking, and sentenced to a term of twelve years' imprisonment. Petitioner escaped from custody and fled to the United States. The Government of Brazil, acting through the United States Attorney for the Eastern District of New York, seeks to extradite Petitioner, pursuant to the Treaty of Extradition between the United States of America and Brazil of January 13, 1961 (the " Treaty"). On September 20, 2012, following a hearing, the Honorable Joan M. Azrack, United States Magistrate Judge, (the " Extradition Court") issued a Memorandum and Order rejecting Petitioner's objections to his extradition and finding him subject to extradition to Brazil. On September 27, 2012, the Extradition Court certified this matter to the Secretary of State and ordered that a warrant issue for Petitioner's surrender to the proper authorities in Brazil, but stayed the execution of that Order until October 12, 2012, to permit Petitioner to file the present application.
Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the evidence presented by the United States government at the extradition hearing in support of Brazil's request for extradition did not establish probable cause to believe that Petitioner was guilty of the crimes charged, and, therefore, not subject to extradition. For the reasons set forth below, the petition for a writ of habeas corpus is denied in its entirety.
On May 10, 2012, the Honorable Lois Bloom, United States Magistrate Judge, issued a provisional arrest warrant for Petitioner. According to the complaint and affidavit in support of the arrest warrant, Petitioner was sentenced in Brazil to a twelve-year term of imprisonment for drug trafficking charges. (Complaint, Docket No. 12-MJ-462, Docket Entry 1.) He escaped after serving three-and-a-half years and fled to the United States. (Id.) On May 21, 2012, Petitioner was arrested pursuant to that warrant. On that same date, the Extradition Court entered an order of detention. (Order of Temporary Detention, Docket No. 12-MJ-462, Docket Entry 5.)
On July 25, 2012, the government filed its formal extradition request (the " Extradition Papers"), which contained: (1) a declaration from attorney-advisor Jason A. Biros from the U.S. State Department, 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; and (2) copies and translations of the formal charges and evidence from Petitioner's conviction in Brazil. ( See Formal Extradition Request, Docket No. 12-MJ-462, Docket Entry 14.) The Extradition Court determined that these materials submitted by the Government of Brazil satisfied the documentary requirements set forth in Article IX of the Treaty. See In re Extradition of Suyanoff, 2012 WL 4328523, at *1 (E.D.N.Y. Sept. 20, 2012); see also 18 U.S.C. § 3184.
On September 13, 2012, the Extradition Court held an extradition hearing, where it heard oral argument from the government and Petitioner. ( See Minute Entry, September 13, 2012, Docket No. 12-MJ-462, Docket Entry 23.) In his numerous written submissions and at the hearing, Petitioner argued, inter alia, that: (1) because the Brazilian courts had not followed their own laws in his criminal proceedings, the Extradition Court should not deem the fact of his criminal conviction in Brazil to constitute sufficient probable cause to believe he committed a crime, and (2) the extradition papers submitted by the Government of Brazil, on their own, did not establish probable cause to believe he committed the crimes for which he was convicted. ( See generally Memorandum of Law in Support of Petition for a Writ of Habeas Corpus (" Pet. Mem."), Docket Entry 1.)
On September 20, 2012, the Extradition Court issued a Memorandum and Opinion rejecting Petitioner's objections and certifying he was extraditable to Brazil. See generally Suyanoff, 2012 WL 4328523. As set forth in its Memorandum and Opinion, the Extradition Court held that Petitioner was subject to extradition based on its findings that: (1) Petitioner was indeed the fugitive sought by the Brazilian government, (2) the crimes for which Petitioner was convicted are included in the Treaty, (3) the crimes for which Petitioner was convicted are felonies in the United States, and (4) the materials submitted by the Government of Brazil met the documentary requirements of the Treaty. See
Id. at *3. Accordingly, the Extradition Court concluded that Petitioner's conviction itself was sufficient to satisfy the probable cause requirement, and, even if the fact of the conviction itself was not, there was sufficient evidence in the papers to find probable cause.
Id. at *5.
I. Standard of Review for Extradition Orders
An order certifying a request for extradition is not a final judgment that is appealable under 28 U.S.C. § 1291. See Spatola v. United States, 925 F.2d 615, 617 (2d Cir. 1991) (" Spatola II "). Instead, the fugitive may seek limited review by petitioning for a writ of habeas corpus. See id. The parameters of habeas review of an extradition order are " highly circumscribed." Germany v. United States, 2007 WL 2581894, at *4 (E.D.N.Y. Sept. 5, 2007) (citing Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973)). " The reviewing court may consider only (1) whether the judge below had jurisdiction; (2) whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence presented by the Government established probable cause to extradite." Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000) (citing Austin v. Healey, 5 F.3d 598, 600 (2d Cir. 1993)). Thus, " [h]abeas corpus is not a writ of error, and it is not a means of rehearing what the certification judge or magistrate already has decided." Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990), cert. denied, 497 U.S. 1054, 111 S.Ct. 23, 111 L.Ed.2d 835 (1990) (" Ahmad II ").
It is not the province of this Court to convert this habeas review " into a de novo review of the evidence." Melia v. United States, 667 F.2d 300, 302 (2d Cir. 1981). " The judgment of the magistrate, rendered in good faith on legal evidence that the accused is guilty of the act charged, and that it constitutes an extraditable crime, cannot be reviewed on the weight of the evidence, and is final for the purposes of the preliminary examination, unless palpably erroneous in law." Ornelas v. Ruiz, 161 U.S. 502, 508-509, 16 S.Ct. 689, 40 L.Ed. 787 (1896). Accordingly, " [t]he credibility of witnesses and the weight to be accorded their testimony is solely within the province of the extraditing magistrate." Austin, 5 F.3d at 605 (quoting Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986)). Therefore, as part of the deference this Court owes to the Extradition Court, " [a] magistrate's finding that there is probable cause will not be overturned so long as there is any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Spatola v. United States, 741 F.Supp. 362, 373 (E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991) (" Spatola I ") (citing Collins v. Loisel, 259 U.S. 309, 315, 42 S.Ct. 469, 66 L.Ed. 956 (1922)).
Petitioner's request for a writ of habeas corpus is denied, because the Extradition Court properly had jurisdiction, the crimes Petitioner is charged with were within the scope of the Treaty, and there was sufficient probable cause to believe that Petitioner ...