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United States v. Porumb

United States District Court, W.D. Louisiana, Lafayette Division

September 25, 2019


          DRELL, JUDGE.



         Before the Court is the Government’s Motion Requesting Extradition Certification. (Rec. Doc. 11). Defendant, Marius Andrei Porumb, opposes the Motion (Rec. Doc. 32), and the Government has replied (Rec. Doc. 37). For the following reasons, the Motion is DENIED.

         Factual and Procedural History

          Marius Porumb has been an established resident of the United States since this country granted him asylum status from his native country of Romania in 2002. Since that time, he has led a respectable life, first in the construction industry and more recently as a business owner, running a mechanic shop in Lafayette, La. He has raised two daughters here with his long-time partner. He owns property, employs people, and has no criminal history in the United States. (Rec. Doc. 18, at 27-72).

         Mr. Porumb is a native Roma-or Gypsy-who, like other Romas, suffered discrimination and persecution in Romania. His history in his home country and the disturbing facts leading to his grant of asylum were well-documented in his asylum proceedings. (Rec. Doc. 32-1). Particularly relevant to these proceedings are Mr. Porumb’s own predictions in 2002 about the future actions he anticipated by the Romanian government. In his 2002 Declaration in Support of Application for Asylum, Mr. Porumb detailed ongoing encounters with Romanian law enforcement wherein they routinely falsely accused him of theft and attempted to elicit bribes from him because he was a Gypsy who had managed to become successful. Mr. Porumb explained that in 2000, the police threatened to “get [him]” on multiple occasions. He was “terrified that the policemen were going to accuse [him] in a false case and detain [him], ” and he “was afraid that the police would eventually stay true to their word and accuse [him] in a false case.” (Rec. Doc. 32-1, at 13-14). Based on his detailed account of the discrimination and persecution he had undergone throughout his life and his fear that the Romanian government would falsely prosecute him, the United States granted him asylum on September 23, 2002. (Rec. Doc. 32-5).

         On June 23, 2003, over a year and a half after Mr. Porumb had come to the United States, the Romanian Government charged him with “using false documents, ” “swindle, ” and “indirect participation to forged documents.” The charges arose from Mr. Porumb’s alleged unauthorized use of his then-wife’s separate property (referred to herein as “Apartment 4”) as collateral for a loan in 2000. (Rec. Doc. 1-2, at 9-10). In 2005, Mr. Porumb was tried in absentia, convicted, and, after the appeal process, sentenced to serve 1 year for using false documents, 4 years for “swindle, ” and 1 year for indirect participation to forged documents. The Romanian court cumulated the sentences, ordering Mr. Porumb to serve a 4 year term of imprisonment. (Rec. Doc. 1-2, at 1-2).[1]

         The Romanian Government did not first seek to extradite Mr. Porumb until December 2, 2011, over five years after the conviction became final. The U.S. Government received Romania’s request on February 21, 2012. (Rec. Doc. 32-6). Over the next several years, Romania provided additional information in support of its extradition request, including statements of Mr. Porumb’s ex-wife, Liliana Porumb, and the party who allegedly loaned Mr. Porumb money, Petru Rusu, a copy of a notarized document between Mr. Porumb and Liliana’s mother regarding Liliana’s purchase of the apartment, an identification report, a copy of the June 23, 2003 indictment, and copies of applicable Romanian laws. (Rec. Doc. 1-2, at 51-135). The Romanian Government did not provide a copy of the power of attorney or loan agreement upon which it claims Mr. Porumb forged Liliana’s signature and upon which its claims chiefly rest. Neither did it provide a copy of the technical reports whereby the police purportedly matched Mr. Porumb’s handwriting to the forged document, or transcripts of the various witnesses’ testimony at trial.

         The Government did not file the Complaint seeking a warrant for Mr. Porumb’s arrest until January 25, 2018, nearly six years after receipt of Romania’s initial request for extradition. (Rec. Doc. 1). The Government subsequently filed a Memorandum of Extradition Law and Request for Detention Pending Extradition Proceedings (Rec. Doc. 4) and a Motion Requesting Extradition Certification. (Rec. Doc. 11). This Court conducted a detention hearing on February 6, 2018. (Rec. Doc. 18). After testimony from several of Mr. Porumb’s friends regarding his establishment in the Lafayette community, the Court ordered that Mr. Porumb be released on an unsecured bond pending certification of extradition. (Rec. Doc. 17; Report and Recommendation affirmed at Rec. Doc. 29). Mr. Porumb opposed the Government’s Motion Requesting Extradition, (Rec. Doc. 32), and the Government replied (Rec. Doc. 37).

         Applicable Law

          When the United States has entered into a treaty for extradition with a foreign country, this Court is empowered by 18 U.S.C. §3184 and W.D. La. Local Rule 73.4K to certify to the Secretary of State whether an individual is extraditable. In its determination, the Court must consider the evidence of a crime charged against a person in the United States by the foreign government and determine whether the evidence is sufficient to sustain the charge under the provisions of the applicable treaty. The magistrate judge’s determination is limited to the questions of 1) whether the court has jurisdiction; 2) whether the offense charged is within the treaty; and 3) “whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir.1980), citing Fernandez v. Phillips, 268 U.S. 311 (1925).

         Intrinsic in the Court’s unique role in extradition proceedings is the obligation to determine whether the extradition would violate the individual’s constitutional rights or established federal law. See discussion in Mironescu v. Costner, 480 F.3d 664, 672–73 (4th Cir. 2007) (“Mironescu IV”). Thus, and because the Court is uniquely qualified to interpret and apply the law, it cannot permit an illegal extradition to proceed. As will be further explained, the Court appreciates no valid reason that it cannot make the legality determination in certification proceedings under §3184, just as it can in subsequent habeas corpus proceedings, without having subjected the individual to detention and the costs of extended legal proceedings, all to obtain the same end which can be properly had at the beginning. The Court will first address the legality of Mr. Porumb’s proposed extradition under 8 U.S.C. §1158(c)(1), and, second, the issues of jurisdiction, criminality, and probable cause.

         I. Whether Mr. Porumb’s proposed extradition would violate federal law.

         A. The Court’s jurisdiction to determine legality.

         The Government urges the Court to restrict its determination in these certification proceedings to the questions of jurisdiction, criminality under the Treaty, and the existence of probable cause. Although the Court’s role is typically limited to these three inquiries, the Court is not aware of any binding precedent which precludes the Court from determining whether the extradition would violate the individual’s constitutional rights or established federal law. To the contrary, the Court is obligated to enjoin an extradition when the detention is determined to be unlawful. Mironescu IV, 480 F.3d at 670, citing Plaster v. United States, 720 F.2d 340, 347-51 (4th Cir.1983).

         The Government relies heavily on the Mironescu case for the proposition that the Court cannot consider Mr. Porumb’s asylant status in certification proceedings; however, careful analysis of the history of Mironescu and the Fourth Circuit’s opinion actually support that this Court has jurisdiction to preliminarily determine the legality of extradition, in addition to the three primary inquiries of jurisdiction, criminality, and probable cause.

         Much like the instant proceedings, the procedural saga of Mironescu began when the Romanian Government requested extradition of Petru Mironescu, a Gypsy leader, to serve a sentence after he was convicted in absentia of alleged theft crimes. In re Extradition of Mironescu, 296 F.Supp.2d 632 (M.D. N.C. 2003) (“Mironescu I”). During the initial certification proceedings, Mironescu challenged his extradition on the grounds that his extradition would violate the United Nations Convention Against Torture (CAT), as implemented in the United States by the Foreign Affairs Reform and Restructuring Act (FARR). CAT and FARR prohibit the United States from extraditing “any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture…”[2] Mironescu argued that if he was returned to Romania, he would be subject to torture. The district court found that it did not have jurisdiction “to consider human rights conditions of the country requesting extradition, ” and certified the extradition. Id. at 635-37.

         In the next chapter of Mironescu, after the district court certified the extradition, but before the Secretary of State made a determination under CAT/FARR, Mironescu filed a petition for habeas corpus, again challenging his detention pending extradition based on CAT/FARR. Mironescu v. Costner, 345 F.Supp.2d 538, (M.D. N.C. 2004). (“Mironescu II”). The court denied the petition, finding that the issue was premature, as the Secretary State was first compelled to determine the likelihood of torture, as required by CAT/FARR, and notify Mironescu of its determination, at which point he could then seek habeas relief. Id. at 541. As further discussed below, this is the opinion on which the Government relies for the proposition that asylum status cannot be considered in extradition proceedings.

         Following Mironescu II, the Secretary of State determined that CAT did not bar Mironescu’s extradition, and Mironescu filed a second habeas corpus petition. The district court remanded the case for preparation of an administrative record, finding that Mironescu’s remedy was limited to an administrative review of whether the Secretary’s determination was arbitrary and capricious. Mironescu v. Rice, 2006 WL 167981 (M.D. N.C. 2006) (“Mironescu III”).

         The Fourth Circuit overturned Mironescu III, holding that the court was obligated to determine whether extradition would violate Mironescu’s constitutional rights or violate federal law. The Government argued, as it does here, that the rule of non-inquiry prevents the courts “from examining the penal systems of requesting nations, leaving to the Secretary of State determinations of whether the defendant is likely to be treated humanely.” Mironescu IV, at 668, citing Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir.1997). The Fourth Circuit rejected the Government’s non-inquiry argument-the same argument the Government asserts here- reasoning:

[T]he Government maintains that regardless of the fact that the Secretary's extradition of Mironescu would violate federal law if extradition will likely result in Mironescu's torture, the rule of non-inquiry should preclude habeas review here because courts are ill-equipped to “second-guess[ ] the expert opinion of the State Department” regarding whether torture is likely to occur in Romania. We do not agree. It is important to emphasize that a habeas court reviewing CAT or FARR Act claims would not be called upon to consider whether extradition would further our foreign policy interests or, if so, how much to weigh those interests. Rather, it would be required to answer only the straightforward question of whether a fugitive would likely face torture in the requesting country. American courts routinely answer similar questions, including in asylum proceedings and in applying the political offense exception, under which the political nature of and motivation for a crime may negate extraditability….We have no reason to doubt that district courts could adequately perform this function in this context as well.
Mironescu, IV, 480 F.3d at 672–73. (Emphasis added.)

         In addition to rejecting the Government’s non-inquiry arguments, the Fourth Circuit also rejected the Government’s argument that delays caused by habeas review could trigger concerns regarding international comity.

That habeas review may delay extradition, or preclude it altogether, cannot negate Mironescu's right to obtain habeas relief if he is being detained in violation of federal law, just as such considerations did not negate Plaster's right to assert his constitutional claim. See Plaster, 720 F.2d at 349. Indeed, Plaster specifically recognized that habeas proceedings regarding claims that extradition would be unconstitutional “will often involve delicate questions of international diplomacy.” Id. Moreover, one could well argue that the damage done to our foreign relations with another country is likely to be less when a court, as opposed to the Secretary, makes the decision that extradition must be denied.

Id. at 673.

         The court nevertheless went on to hold that Mironescu was not entitled to habeas review based specifically on Section 2242(d) of the FARR, which precluded judicial review for CAT claims until raised after issuance of a final removal order under 8 U.S.C. §1252. The latter part of the opinion, grounded in procedure, is inapplicable to this case, because the basis for illegality of Mr. Porumb’s extradition is not CAT/FARR, but, rather, §1158(c), which does not contain any such provision limiting judicial review. The Supreme Court denied the petition for writ of certiorari. Mironescu v. Costner, 552 U.S. 1135 (2008). In short, the Fourth Circuit in Mironescu IV affirmatively held that, despite the rule of non-inquiry, ...

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