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In the Matter of the Extradition of Roman Zygmont Jarosz

July 28, 2011

IN THE MATTER OF THE EXTRADITION OF ROMAN ZYGMONT JAROSZ


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

INTRODUCTION

The Government of the Republic of Poland has requested the extradition of Roman Zygamont Jarosz, pursuant to the Extradition Treaty between the United States and Poland, signed on July 10, 1996, which entered into force on September 17, 1999 (hereafter the "1996 Treaty" or "the Treaty").*fn1 Mr. Jarosz is charged by the Regional Prosecutor in Elblag, Poland with committing the offenses of driving while under the influence of alcohol on June 21, 2001 and causing a traffic accident that resulted in the deaths of three people and serious injury to a fourth.*fn2

Article 9.3 of the Treaty requires that a request for extradition of a person "sought for prosecution" be supported by:

(a) A copy of the warrant or order of arrest, if any, issued by a judge or other competent authority;

(b) A copy of the charging document, if any; and

(c) Such information as would justify the committal for trial of the person if the offense had been committed in the Requested State.

Mr. Jarosz's sole challenge is to the sufficiency of the information submitted in support of the application for extradition, which consists, in part, of summaries of eyewitness testimony made by the prosecutor in Poland. The argument is not that the underlying eyewitness statements and other evidence are hearsay -- that would be a nonstarter, for hearsay is routinely and of necessity a staple in extradition cases. Collins v. Loisel, 259 U.S. 309, 317(1922)(Brandeis, J.). Rather, it is that since the evidence came from the prosecutor in Poland, it is suspect and cannot constitute sufficient evidence for the required finding of probable cause that Mr. Jarosz committed the charged offenses, thereby requiring his surrender to Polish authorities.

I.FACTUAL BACKGROUND

On February 16, 2011, the United States filed an initial complaint for the extradition of Mr. Jarosz at the request of the Republic of Poland and appeared in court on its behalf in accordance with Article 22 of the 1996 Treaty. A warrant was issued for Mr. Jarosz's arrest on March 3, 2011. Mr. Jarosz is wanted by Poland in connection with an automobile accident on June 21, 2001, which allegedly was caused by driving while intoxicated, resulting in the deaths of three people and serious injury of another, in violation of the Polish Criminal Code Article 177, Paragraphs 1 and 2, in conjunction with Article 178, Paragraph 1, and Article 178(a) Paragraph 1. The Regional Prosecutor in Elblag lodged these charges against Mr. Jarosz in January 2004. On February 6, 2004, upon the motion of the Regional Prosecutor, the Regional Court in Elblag, Poland issued an order for provisional detention, and on March 1, 2004, a warrant for the arrest of Mr. Jarosz was issued in case Oz 55/03.

Pursuant to 18 U.S.C. § 3184, a hearing was held to determine whether the evidence presented by the Polish government was "sufficient to sustain the charge" under the provisions of the Treaty and consequently to "certify the same" to the Secretary of State.

II. THE NATURE OF EXTRADITION PROCEEDINGS

Before addressing the specifics of Mr. Jarosz's case, it is necessary to briefly review the basis of extradition, which is grounded in international and constitutional law, and the unique nature of extradition proceedings. Neither civil nor criminal, this sui generis, statutorily defined proceeding has remained essentially unchanged since 1848. See John T. Parry, The Lost History of International Extradition Litigation, 43 Va. J. Int'l L. 93, 98 (2002); United States v. Doherty, 786 F.2d 491, 498 (2ndCir. 1986); In re Nava Gonzalez, 305 F.Supp.2d 682, 689 (S.D. Tex. 2004). From the beginning, the role of an American court in extradition proceedings has been limited. See United States v. Kin-Hong, 110 F.3d 103, 107 (1st Cir. 1997); Martin v. Warden, Atlanta Penitentiary,993 F.2d 824, 829 (11th Cir. 1993). "[E]xtradition ultimately remains an Executive function," where the Secretary of State's decision is not generally reviewable by the courts. Martin, 993 F.2d at 829; Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir. 1980). "The non-inquiry principle serves interests of international comity by relegating to political actors the sensitive foreign policy judgments that are often involved in the question of whether to refuse an extradition request." Hoxha v. Levi, 465 F.3d 554, 560 (3rd Cir. 2006). Beyond simply ensuring adequate notice to the accused, courts shoulder the added burden of promoting "comity" when interpreting treaties so as to "effect the apparent intention of the parties to secure equality and reciprocity between them." Factor v. Laubenheimer, 290 U.S. 276, 294 (1933).

International law recognizes no inherent right of nations to extradite offenders, apart from voluntary undertakings assumed in treaties between nation states. Factor, 290 U.S. at 287. The right to demand extradition and the correlative duty to surrender a fugitive to the requesting state exist only when created by treaty. Id. See also United States v. Rauscher, 119 U.S. 407, 411-12 (1886); Holmes v. Jennison, 39 U.S. 540 (1840); United States v. Alvarez-Machain, 504 U.S. 655, 664 (1992); John Bassett Moore, Report by Hon. J.B. Moore: Extradition §§ 9-14, vol. 1 (1890); Edward G. Clarke, A Treatise on the Law of Extradition 14 (Stevens and Haynes eds., 4th ed. 1903). Once the extradition obligation is enumerated in a treaty that enters into force, states are

bound by customary or conventional international law to fulfill the assumed obligations in good faith. Factor, 290 U.S. at 294. See generally,Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S. 331. Contrary to the tenant of strict interpretation applicable to criminal statutes, treaties are given a "more liberal construction." Factor, 290 U.S. at 294; Ramanauskas v. United States, 526 F.3d 1111, 1114 (8th Cir. 2008); Cucuzzella v. Keliikoa, 638 F.2d 105, 108 (9th Cir. 1981). Still, the terms of a treaty govern its enforcement. Medellin v. Texas, 552 U.S. 491, 519 (2008).

Defined in 18 U.S.C. §3184, extradition in the United States involves a two-step procedure that divides responsibility for extradition between the judiciary and the executive. The judicial officer issues an arrest warrant for an individual sought for extradition, provided that there is an extradition treaty between the United States and the relevant foreign government and that the crime charged is covered by the treaty. Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981); Kin-Hong, 110 F.3d at 109; In re Extradition of Rodriguez Ortiz, 444 F.Supp.2d 876, 881-82 (N.D. Ill. 2006); In re Extradition of Fulgencio Garcia, 188 F.Supp.2d 921, 925 (N.D. Ill. 2002). The judicial officer then conducts a hearing to determine if "he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty." 18 U.S.C. § 3184. If that officer makes such a determination, he "shall certify" to the Secretary of State that a warrant for the surrender of the relator "may issue." 18 U.S.C. § 3184.

In practice, the executive branch conducts its own de novo review of the extradition case, evaluates whether the treaty requirements are satisfied, and makes the decision whether or not to grant extradition. See Martin, 993 F.2d at 829; Kin-Hong, 110 F.3d at 110;Note, Executive Discretion in Extradition, 62 Colum. L. Rev. 1313, 1328 (1962). The executive branch is quite properly the ultimate decision maker given its ability to deal with the unique "important, complicated, delicate and manifold problems" that are implicated in extradition decisions. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936). See also United States v. Pink, 315 U.S. 203, 229 (1942); Guar. Trust Co. of New York v. United States, 304 U.S. 126, 136 (1938).

In short, the Secretary of State exercises "broad discretion and may properly consider myriad factors affecting both the individual defendant as well as foreign relations, which the extradition magistrate may not." Martin,993 F.2d at 829; Hurtado v. U.S. Atty. Gen., 401 F. App'x. 453, 456 (11th Cir. 2010), cert. denied, _U.S._, 131 S. Ct. 2914 (2011). See also Basso v. U.S. Marshal, 278 F. ...


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