Emil Bozilov v. Wayne Seifert, Warden , 967 F.2d 353 ( 1992 )

967 F.2d 353

Emil BOZILOV, Petitioner-Appellant,
v.
Wayne SEIFERT, Warden, Respondent-Appellee.

No. 91-55977.

United States Court of Appeals,
Ninth Circuit.

Submitted May 8, 1992.*
Decided June 26, 1992.

William J. Genego, Santa Monica, Cal., for petitioner-appellant.

Joseph A. Brandolino, Asst. U.S. Atty., Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, FARRIS, Circuit Judges, and GEORGE, District Judge.**

FARRIS, Circuit Judge:

1

Emil Ananiev Bozilov appeals the denial of his writ of habeas corpus challenging an extradition order pursuant to 18 U.S.C. § 3184 and the Extradition Treaty between the United States and the Federal Republic of Germany. He argues that the writ was improperly denied because: 1) the dual criminality requirement for extradition was not satisfied; 2) there was no probable cause; and 3) Germany's extradition request was untimely. We affirm.

FACTS

2

On September 19, 1990, the German Criminal Court in Flensberg issued an international warrant for the arrest of Bozilov for narcotics trafficking. On November 23, 1990, United States Magistrate Brown issued a warrant for Bozilov's arrest, pending an extradition hearing pursuant to 18 U.S.C. § 3184. On December 13th, Bozilov was arrested.

3

By the terms of the Treaty, Germany was required to make a formal extradition request within forty days of the arrest. On January 23, 1991, Germany submitted its request to the American Embassy in Bonn. The request alleged that Bozilov used German couriers to operate an international drug smuggling operation based in Los Angeles. Germany also requested and received a twenty day extension. On February 12th, Germany filed its formal extradition request with the local American district court.

4

On April 9, 1991, Magistrate Kronenberg held Bozilov's extradition hearing. On April 23rd, Bozilov filed a writ of habeas corpus challenging his extradition proceeding. Magistrate Kronenberg granted extradition on April 30th. District Judge Williams denied the writ on July 11th. The district court found that: 1) probable cause existed for Bozilov's extradition; 2) Germany had jurisdiction over the alleged offenses; and 3) the request met the Treaty time requirements. This appeal followed.

DISCUSSION

5

An extradition order cannot be directly appealed. Collins v. Miller, 252 U.S. 364, 369, 40 S. Ct. 347, 349, 64 L. Ed. 616 (1920). The defendant must file a petition for habeas corpus challenging the order. Artukovic v. Rison, 784 F.2d 1354, 1355 (9th Cir.1986). Our review is limited to whether: 1) the court had jurisdiction; 2) the offense charged is within the extradition treaty; and 3) any evidence supported a determination that there was reasonable grounds to believe the accused guilty of the crime. Id. at 1356.

6

Bozilov contends that his offense is not extraditable because Germany failed to prove he committed a comparable, substantive crime under United States law. He also argues that American courts cannot assert jurisdiction over a substantive offense unless his acts affected the Unites States. The determination that an offense is an extraditable crime is reviewed de novo. Theron v. United States Marshal, 832 F.2d 492, 496 (9th Cir.1987), cert. denied, 486 U.S. 1059, 108 S. Ct. 2830, 100 L. Ed. 2d 930 (1988).

7

We reject Bozilov's argument. "Dual criminality does not require that an offense in a foreign country have an identical counterpart under the laws of the United States." Theron, 832 F.2d at 496. Dual criminality requires only that the acts alleged constitute a crime in both jurisdictions. Emami v. United States Dist. Court, 834 F.2d 1444, 1450 (9th Cir.1987). Each state may name and penalize the crime differently. Id.

8

Article 2(1) of the Treaty defines extraditable offenses as:

9

a) Offenses described in the Appendix to this Treaty which are punishable under the laws of both Contracting Parties;

10

b) Offenses, whether listed in the Appendix of this Treaty or not, provided they are punishable under the Federal laws of the United States and the laws of the Federal Republic of Germany.

11

Paragraph 29 of the Appendix includes offenses "against the laws relating to narcotic drugs."

12

It is undisputed that Bozilov's actions, if proven, would meet the German requirements for drug trafficking. The question is whether Bozilov's actions are punishable under American law. The government argues that Bozilov's activities constitute conspiracy to distribute narcotics.

13

In a Canadian extradition case, the Second Circuit held that evidence of phone calls between the defendant in the United States and his co-conspirators in Canada was sufficient to support extradition for attempted murder. Melia v. United States, 667 F.2d 300, 303-04 (2d Cir.1981). Germany presented credible evidence by two couriers, Malocco and Oppenberg, that directly implicated Bozilov as the Los Angeles connection in a worldwide drug smuggling conspiracy. Germany also established that Bozilov received a large deutsche mark transfer from one of the co-conspirators in Germany, as well as several phone calls. Bozilov's connections to Germany are sufficient to establish his participation in a drug conspiracy. Dual criminality is satisfied. See In re Extradition of Russell, 789 F.2d 801, 804 (9th Cir.1986) (the charges are extraditable offenses "because the conduct underlying the charges, as set forth in the affidavits, would be cognizable under American federal and state conspiracy law") (emphasis in original).

14

Bozilov's reliance upon Republic of France v. Moghadam, 617 F. Supp. 777 (N.D.Cal.1985) is misplaced. In Moghadam, the district court held that France had failed to establish a conspiracy because the defendant: 1) did not commit an overt act in the requesting country; 2) was a passenger in transit; and 3) did not intend to produce a detrimental effect in France. Id. at 785-88. Because the German government has established a sufficient nexus between the conspirators and Bozilov, Moghadam is inapplicable.

15

Bozilov contends that Germany failed to establish probable cause for extradition. In an extradition proceeding, the magistrate need only "determine whether there is competent evidence to justify holding the accused to await trial, ... not ... whether the evidence is sufficient to justify a conviction." Collins v. Loisel, 259 U.S. 309, 316, 42 S. Ct. 469, 472, 66 L. Ed. 956 (1922).

16

Germany's evidence justifies extradition. The uncorroborated statements of Malocco, apart from the phone calls and money transfer, are sufficient to establish probable cause. See Zanazanian v. United States, 729 F.2d 624, 626-27 (9th Cir.1984). Because Germany need not prove the accused's guilt beyond a reasonable doubt during the extradition hearings, Mirchandani v. United States, 836 F.2d 1223, 1226 (9th Cir.1988), probable cause is satisfied.

17

Article 16(4) of the Treaty provides that the United States must receive Germany's formal extradition request within sixty days of arrest. The United States arrested Bozilov on December 13, 1990. On January 23, 1991, the German government submitted its formal extradition request to the United States Embassy in Bonn. The sixty day period expired February 11, 1991. Germany's request was not filed in district court until February 12th. Bozilov argues that Germany's failure to timely file its request at the local district court precludes extradition.

18

Under similar circumstances, the Eighth Circuit approved an overdue extradition request. United States v. Wiebe, 733 F.2d 549, 554 (8th Cir.1984). In Wiebe, Spain had sent the extradition request to the American Embassy, but the documents were not received by the district court within the Treaty's forty-five day limit. Id. Because the Spanish Extradition Treaty required only that the request be made through "the diplomatic channel," the court held that the delay was not the fault of Spain, and therefore permitted the extradition. Cf. Koskotas v. Roche, 931 F.2d 169, 174 (1st Cir.1991) (two month time limit not strictly enforced because Greece's noncompliance with treaty terms was minimal).

19

The German Treaty provision is identical to the one approved in Wiebe. All extradition requests "shall be transmitted through the diplomatic channel." As the court in Wiebe observed:

20

We are satisfied, however, that the Treaty does not require receipt at the courts of the asylum country. If this were the case, the interests of the demanding country under the Treaty could consistently be undercut by bureaucratic sluggishness within the asylum country's executive agencies. The Treaty requires demands for extradition to be made through "the diplomatic channel" only, not directly to the courts of the asylum country.

21

733 F.2d at 554 (quoting United States v. Clark, 470 F. Supp. 976, 979 (D.Vt.1979)). A decision contrary to Wiebe would defeat the Treaty's purpose. Facilitating extradition is promoted by validating extradition requests received by the American Embassy. Extradition requests received by an authorized diplomatic authority within the Treaty's time limit are sufficient.

22

AFFIRMED.

*

The panel finds this case appropriate for decision without oral argument. Fed.R.App.P. 34(a)1 9th Cir.R. 34-4

**

Honorable Lloyd D. George, United States District Judge for the District of Nevada, sitting by designation