Almaz Nezirovic v. Gerald Holt

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6468
ALMAZ NEZIROVIC,
Petitioner - Appellant,
v.
GERALD S. HOLT, United States Marshal, Western District of
Virginia; BOBBY D. RUSSELL, Superintendent, Western Virginia
Regional Jail,
Respondents - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:13-cv-00428-MFU; 7:12-mc-00039-RSB)
Argued: December 10, 2014 Decided: February 25, 2015
Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit
Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Chief Judge Traxler and Judge Thacker joined.
ARGUED: Andrew Wagner Childress, PAFFORD, LAWRENCE & CHILDRESS,
PLLC, Lynchburg, Virginia, for Appellant. Elizabeth G. Wright,
OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg, Virginia,
for Appellees. ON BRIEF: Timothy J. Heaphy, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellees.
BARBARA MILANO KEENAN, Circuit Judge:
Almaz Nezirovic, a citizen of Bosnia and Herzegovina,
entered the United States as a refugee in 1997 in the wake of
the war in the former country of Yugoslavia. In 2012, Bosnia
and Herzegovina requested Nezirovic’s extradition based on war
crimes he allegedly committed during the conflict. A magistrate
judge in the Western District of Virginia issued a certification
of extraditability, finding that Nezirovic was subject to
extradition under a treaty between the United States and Bosnia
and Herzegovina.
Nezirovic filed a petition in the district court for habeas
corpus relief under 28 U.S.C. § 2241 to challenge the magistrate
judge’s certification. The district court denied Nezirovic’s
petition. Nezirovic now appeals, arguing that his extradition
is barred (1) under the applicable statute of limitations, and
(2) by the exemption provided in the treaty for “political
offenses.” Upon our review, we affirm the district court’s
judgment.
I.
In the early 1990s, the former Socialist Federal Republic
of Yugoslavia (Yugoslavia) collapsed, leading to a state of war
between the country’s ethnic groups. One of the constituent
republics of Yugoslavia was the Socialist Republic of Bosnia and
2
Herzegovina. Between April and December 1992, Nezirovic served
as a member of the Croatian Defense Council (HVO, abbreviated
from its Croatian name), a paramilitary group that deemed itself
“the supreme defense body of the Croat people in Herzeg-Bosnia.”
Nezirovic testified that he joined the HVO to protect himself
and his family during the conflict after Serbian troops attacked
Nezirovic’s hometown. As a member of the HVO, Nezirovic was
stationed as a guard at the Rabic internment camp in Bosnia and
Herzegovina, which held in confinement persons of Serbian
descent.
In January 1993, the Doboj Police Department of Bosnia
issued a criminal report against Nezirovic, accusing him of
committing war crimes against civilians while a guard at the
Rabic camp. According to Bosnian authorities, Nezirovic
engaged in the “individual and group torture and inhuman
treatment of civilians of Serb nationality” detained at the
camp, “causing great physical and emotional suffering and
serious injuries.” Bosnian authorities alleged that
[Nezirovic] personally beat prisoners using his arms
and legs, his rifle, batons or sticks, and other
objects. The treatment included threats of death, and
the detained Serbian civilians were forced to endure
starvation and other severe adverse health conditions.
[Nezirovic] further exposed these Serbian civilians to
great humiliation by forcing them to remove their
clothing and to crawl on the ground, putting their
noses in others’ anuses, and to eat grass on which
others had urinated. [Nezirovic] also forced Serbian
civilians to expose three specific fingers (ones the
3
prisoners, in the Orthodox tradition prevailing in the
Serb community, would use for praying) on a table and
he would then strike their fingers and the rest of
their bodies using a rubber baton or stick.
A judge in Bosnia and Herzegovina issued a warrant for
Nezirovic’s arrest in 2003, six years after Nezirovic entered
the United States. In 2012, Bosnian authorities made a request
to the United States Department of State for Nezirovic’s arrest
and extradition pursuant to the Treaty Between the United States
and Servia 1 for the Mutual Extradition of Fugitives from Justice,
U.S.-Serb., Oct. 25, 1901, 32 Stat. 1890 (treaty). 2 The
extradition request was accompanied by the statements of twenty-
one witnesses, who claimed that Nezirovic committed acts of
torture.
After determining that the extradition request was governed
by a treaty, the Department of State referred the request to the
Department of Justice, which represents foreign governments in
extradition proceedings conducted in United States courts. See
generally Gon v. Holt, 774 F.3d 207, 210 (4th Cir. 2014). Based
on Nezirovic’s place of residence in Roanoke, Virginia, the
1
At the time the treaty was drafted, “Serbia” was
translated with the spelling “Servia.”
2
The treaty was in force between the United States and
Yugoslavia at the time of the alleged crimes. Following the
dissolution of Yugoslavia, the treaty has applied to Bosnia and
Herzegovina as a successor state. See In re Extradition of
Handanović, 829 F. Supp. 2d 979, 985 (D. Or. 2011).
4
United States Attorney for the Western District of Virginia
filed an extradition complaint for review by a magistrate judge
in that district. See id. After an evidentiary hearing, the
magistrate judge concluded that Nezirovic was subject to
extradition under the treaty and entered a certification of
extraditability. The district court later denied Nezirovic’s
habeas corpus petition. This appeal followed.
II.
A magistrate judge conducting extradition proceedings is
required to evaluate whether “the evidence [is] sufficient to
sustain the charge” under the terms of the treaty. 18 U.S.C.
§ 3184. The limited purpose of an extradition hearing is to
determine “(1) whether there is probable cause to believe that
there has been a violation of the laws of the foreign country
requesting extradition, (2) whether such conduct would have been
criminal if committed in the United States, and (3) whether the
fugitive is the person sought by the foreign country for
violating its laws.” Gon, 774 F.3d at 210 (citation omitted).
If the magistrate judge determines that these requirements
have been met and that the applicable treaty does not otherwise
bar extradition, the magistrate judge issues to the Secretary of
State of the United States a certification of extraditability.
18 U.S.C. § 3184; Gon, 774 F.3d at 210; Mironescu v. Costner,
5
480 F.3d 664, 665 (4th Cir. 2007). An individual who is the
subject of such a certification may challenge the magistrate
judge’s finding only by filing a petition for a writ of habeas
corpus. Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir. 2007).
“Habeas corpus is available only to inquire whether the
magistrate [judge] had jurisdiction, whether the offense charged
is within the treaty and . . . whether there was any evidence
warranting the finding that there was reasonable ground to
believe the accused guilty of the asserted crimes.” 3 Id.(quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925))
(internal quotation marks and brackets omitted). The Secretary
of State makes the final determination whether to extradite the
fugitive to the requesting country, considering “factors
affecting both the individual defendant as well as foreign
relations—factors that may be beyond the scope of the judge’s
review.” Mironescu, 480 F.3d at 666 (internal quotation marks,
alterations, and citation omitted); Gon, 774 F.3d at 210; 18
U.S.C. §§ 3184, 3186.
3
We have held that in certain circumstances, district
courts considering a habeas corpus petition may also consider
claims that a fugitive’s extradition would violate the United
States Constitution or a federal statute. See Mironescu, 480
F.3d at 670-73; Plaster v. United States, 720 F.2d 340, 349 (4th
Cir. 1983).
6
The United States and Serbia ratified the treaty at issue
in this case in 1902. 4 The parties to the treaty agreed to the
extradition of persons who have “been charged with or convicted
of” specified crimes in either country, “upon such evidence of
criminality as, according to the laws of the place where the
fugitive or person so charged shall be found, would justify his
or her apprehension and commitment for trial if the crime or
offense had been committed there.” Treaty art. I. Although not
initially listed in the treaty as an offense for which
extradition was available, the offense of torture became an
extraditable crime when the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) was incorporated into the treaty in 1994.
In the present case, Nezirovic does not dispute that he is
the person sought by Bosnian authorities for violation of
certain laws of Bosnia and Herzegovina, and that the conduct
alleged by the Bosnian authorities would have been criminal if
committed in the United States. See Gon, 774 F.3d at 210. Nor
does Nezirovic dispute that, subject to the treaty exceptions he
argues here, the statements of the twenty-one witnesses are
sufficient to establish probable cause to support a finding that
there have been violations of the laws of Bosnia and
4
Nezirovic does not contest that this treaty is applicable
to the present request for his extradition.
7
Herzegovina. See id. Instead, Nezirovic alleges that two
provisions in the treaty prevent his extradition for the alleged
offenses.
The first treaty provision on which Nezirovic relies
prohibits extradition for offenses that are time-barred in the
surrendering country. Article VII of the treaty provides that
[e]xtradition shall not be granted, in pursuance of
the provisions of this Treaty, if legal proceedings or
the enforcement of the penalty for the act committed
by the person claimed has become barred by limitation,
according to the laws of the country to which the
requisition is addressed.
The second provision of the treaty cited by Nezirovic
exempts from extradition “political offenses.” Article VI of
the treaty states that
[a] fugitive criminal shall not be surrendered if the
offense in respect of which his surrender is demanded
be of a political character, or if he proves that the
requisition for his surrender has, in fact, been made
with a view to try or punish him for an offense of a
political character.
We address in turn Nezirovic’s challenges under these articles
of the treaty.
A.
We first consider Nezirovic’s claim that his extradition is
barred by the statute of limitations applicable to his charged
offenses. He contends that the magistrate judge and the
district court erred in applying the indefinite limitations
period in the United States Torture Act (the Torture Act or the
8
Act), 18 U.S.C. § 2340A. He asserts that although the Torture
Act is the United States statute most analogous to his alleged
Bosnian crimes, application of the Act’s statute of limitations
would violate ex post facto principles because the Act became
effective two years after his alleged conduct occurred.
Nezirovic urges us instead to use the five-year statute of
limitations applicable to the crime of assault under 18 U.S.C.
§ 113. See 18 U.S.C. § 3282 (establishing general five-year
statute of limitations for non-capital offenses). We disagree
with Nezirovic’s arguments.
We apply the statute of limitations applicable to the
substantive offense under United States law that is most closely
analogous to the charged offenses. Sainez v. Venables, 588 F.3d
713, 716 (9th Cir. 2009). Because Nezirovic is charged under
the laws of Bosnia and Herzegovina with war crimes against
civilians, including torture and inhuman treatment, the Torture
Act, which criminalizes acts of torture and attempted torture,
is the United States statute most closely analogous to the
charged offenses. 5 There is no statute of limitations under the
5
The Torture Act defines “torture” as “an act committed by
a person acting under the color of law specifically intended to
inflict severe physical or mental pain or suffering (other than
pain or suffering incidental to lawful sanctions) upon another
person within his custody or physical control.” 18 U.S.C.
§ 2340.
9
Torture Act when, as here, the acts of torture “resulted in, or
created a forseeable [sic] risk of, death or serious bodily
injury to another person.” 6 18 U.S.C. § 3286(b); 18 U.S.C.
§ 2332b(g)(5)(B)(i).
To determine whether Nezirovic is subject to extradition,
we look to the law in place at the time the extradition request
was made, not the law in effect when Nezirovic allegedly
committed the offenses. See United States ex rel. Oppenheim v.
Hecht, 16 F.2d 955, 956-57 (2d Cir. 1927); Hilario v. United
States, 854 F. Supp. 165, 176 (E.D.N.Y. 1994). Therefore, the
treaty may be applied retroactively in this case to render
Nezirovic extraditable for earlier conduct. 7 See Hecht, 16 F.2d
at 956-57; see also Galanis v. Pallanck, 568 F.2d 234, 237 (2d
Cir. 1977) (noting the “long-established rule that extradition
treaties, unless they contain a clause to the contrary, cover
offenses committed prior to their conclusion”) (citations and
internal quotation marks omitted). Applying the same reasoning,
6
An eight-year statute of limitations applies if the
conduct did not involve the risk of death or serious bodily
injury. 18 U.S.C. § 3286(a). Nezirovic does not contend that
the allegations against him would qualify for the eight-year
limitations period.
7
Despite raising an ex post facto challenge to the Torture
Act’s statute of limitations, Nezirovic does not argue that ex
post facto principles otherwise bar his extradition on charges
of torture because that crime was not an extraditable offense
under the treaty at the time of his conduct.
10
the United States, as the surrendering state, may lengthen
retroactively the statute of limitations applicable to
extraditable conduct. Cf. In re Extradition of McMullen, 989
F.2d 603, 611-13 (2d Cir. 1993) (en banc) (concluding that a
supplementary treaty did not violate the prohibition against
bills of attainder when the treaty narrowed the definition of
the political offense exception to extradition, causing a
fugitive who was previously protected by the exception to be
eligible for extradition).
Ex post facto principles do not affect this rule to bar the
retroactive application of the Torture Act’s statute of
limitations. The Ex Post Facto Clause of the United States
Constitution “prohibits laws that ‘retroactively alter the
definition of crimes or increase the punishment for criminal
acts.’” United States v. Farrow, 364 F.3d 551, 554 (4th Cir.
2004) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)).
However, this constitutional protection has “no relation to
crimes committed without the jurisdiction of the United States
against the laws of a foreign country,” as in the case of a
fugitive facing extradition for crimes committed outside the
United States. Neely v. Henkel, 180 U.S. 109, 122 (1901); see
also Snider v. Seung Lee, 584 F.3d 193, 201 (4th Cir. 2009)
(“[T]he Supreme Court has made clear that U.S. constitutional
protections do not extend to foreign prosecutions.”).
11
Our conclusion is not altered by Nezirovic’s contention
that the terms of the present treaty contain additional ex post
facto guarantees that otherwise would not be available. We
construe extradition treaties liberally in favor of surrendering
a fugitive to the requesting country, “in the interest of
justice and friendly international relationships.” Factor v.
Laubenheimer, 290 U.S. 276, 298, 303 (1933); In re Extradition
of Handanović, 829 F. Supp. 2d 979, 989 (D. Or. 2011) (citing
Factor, 290 U.S. at 293-94). Nezirovic fails to identify any
specific language in the treaty granting any ex post facto
protections to fugitives. And we observe that Article VII of
the treaty is silent regarding whether the surrendering
country’s statute of limitations should be applied based on the
date of the alleged crime or on the date of the extradition
request. 8
Under these circumstances, we apply the indefinite
limitations period from the Torture Act that was in place at the
8
In support of his timeliness argument, Nezirovic relies
heavily on a magistrate judge’s decision from the Eastern
District of Kentucky addressing the same treaty at issue in the
present case. See In re Extradition of Azra Basic, 2012 U.S.
Dist. LEXIS 104945 (E.D. Ky. July 27, 2012). The court in Basic
concluded that the timeliness provision in Article VII “requires
a hypothetical prosecution, on American soil, of the 1992
conduct.” Id. at *49-50 n.20. The court held that ex post
facto principles barred prosecution under the Torture Act for
conduct occurring in 1992 and, thus, that the Act’s statute of
limitations also was inapplicable. Id. at *49. For the reasons
discussed above, we disagree with this reasoning.
12
time of the extradition request. We therefore conclude that the
request for Nezirovic’s extradition is not time-barred under
Article VII of the treaty.
B.
Nezirovic next argues that he is not subject to extradition
because the allegations against him constitute political
offenses exempt from extradition under the terms of the treaty.
He contends that the magistrate judge and the district court
erred in reaching a contrary conclusion, because his alleged
offenses, when viewed objectively, were political in nature, and
because his subjective intent manifested his political
motivations. We disagree with Nezirovic’s arguments and
conclude that the political offense exception does not preclude
his extradition under the treaty.
The political offense exception of the treaty prohibits the
extradition of a person accused of offenses that are political
in nature. Ordinola, 478 F.3d at 595. In addition to “pure”
political offenses, such as treason and espionage, the exception
also protects from extradition persons charged with “relative”
political offenses, which are “common crimes . . . so
intertwined with a political act that the offense itself becomes
a political one.” Id. at 596.
To qualify for the exception as a “relative” political
offense, the alleged conduct “must have been incidental to or in
13
furtherance of a violent political uprising” that was occurring
in the requesting country at the time of the alleged offenses,
or incidental to quelling such an uprising. 9 Id. at 596-97, 599-
600. We apply a two-pronged test to determine whether a
fugitive’s actions were incidental to a political disturbance.
We consider (1) whether the fugitive subjectively was
politically motivated to commit the offenses, and (2) whether
the offenses, when viewed objectively, were political in nature.
Id. at 600.
The issue whether a person is charged with commission of a
political offense presents a mixed question of law and fact, but
primarily is a question of fact. Id. at 598. We accord
significant deference to the factual findings of the magistrate
judge, and will reverse the judge’s determination regarding
whether a political offense has been established only if the
determination is “palpably erroneous in law and a reasonable
factfinder would have had no choice but to conclude that the
offender was acting in furtherance of a political uprising.”
Id. (quoting Ornelas v. Ruiz, 161 U.S. 502, 509, 511 (1896))
(internal quotation marks omitted).
9
The parties do not contest the magistrate judge’s decision
to take judicial notice of the conflict in Bosnia and
Herzegovina between March 1992 and December 1995 or the judge’s
conclusion that Nezirovic’s alleged conduct occurred during a
violent political uprising.
14
The magistrate judge concluded that Nezirovic’s alleged
conduct was not subjectively motivated by a political aim, and
that the offenses were not political in nature when viewed
objectively. In conducting our review, we need not decide
whether Nezirovic has satisfied the subjective prong of the two-
part test, because we conclude that he cannot demonstrate that
his offenses were political in nature when viewed objectively.
See Ordinola, 478 F.3d at 600-01 (assuming without deciding that
a fugitive’s actions were motivated by subjective political
considerations, and concluding that the offenses were not
political when viewed objectively).
We require that a fugitive make an objective showing that
the charged offenses are political in nature, because
extradition treaties do not protect acts simply because a
fugitive can proffer a subjective political rationale for having
committed them. Id. at 600. Accordingly, in applying the
objective prong of the test, we “look to the totality of the
circumstances, focusing on such particulars as the mode of the
attack and the identity of the victims.” Id. at 601. A
fugitive’s commission of crimes against innocent civilians is
highly relevant, and likely is fatal, to a claim that the
offenses were political in nature when viewed objectively. Id.
at 603-04; see also Eain v. Wilkes, 641 F.2d 504, 521 (7th Cir.
15
1981) (explaining that “the indiscriminate bombing of a civilian
populace” is not a political act).
We strongly affirm our reasoning in Ordinola that the
civilian status of victims largely will be determinative of the
objective inquiry. We previously have relied on the Department
of State’s view that the political offense exception “is not
applicable to violent attacks on civilians,” and have granted
this position great weight in our analysis. Ordinola, 478 F.3d
at 603 (citation omitted). Moreover, the original justification
for the political offense exception, namely, the protection of
the “inalienable right to resist and abolish tyrannical
governments,” id. at 595-96, is not served by granting
individuals refuge from extradition when they have employed
violence against civilians.
In holding that Nezirovic’s offenses were not political in
nature when viewed objectively, the magistrate judge found that
Nezirovic’s victims were civilians, relying on the language of
the war crimes charge and the representations of the authorities
from Bosnia and Herzegovina. The magistrate judge also found
that “Nezirovic’s alleged actions of torture against his
prisoners [were not done] in furtherance of his military duty to
keep them ‘locked up,’” because his “alleged conduct of beating,
degrading and humiliating prisoners went well beyond his duties
to guard the prisoners.” Nezirovic does not identify any
16
contrary facts demonstrating that the magistrate judge clearly
erred in making these factual findings. 10
We also observe that the international community repeatedly
has condemned the use of torture. See Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment art. 2 (1994) (“No exceptional circumstances
whatsoever, whether a state of war or a threat or war, internal
political instability or any other public emergency, may be
invoked as a justification of torture.”); Geneva Convention
Relative to the Protection of Civilian Persons in Time of War
art. 147, Aug. 12, 1949, 6 U.S.T. 3516 (describing as a “grave
breach” the torture or inhuman treatment of protected persons);
id. art. 3 (“[M]embers of armed forces who have laid down their
arms and those placed hors de combat by . . . detention, or any
other cause, shall in all circumstances be treated humanely, . .
. .”). The torture of prisoners cannot be justified on the
basis that such torture has occurred in the context of a
political disturbance. See Arambasic v. Ashcroft, 403 F. Supp.
2d 951, 963 (D.S.D. 2005) (“Political strife is not a license
for the military or anyone else to do whatever they wish to the
10
Nezirovic’s contention that he believed that his
prisoners were enemy combatants, not civilians, is irrelevant to
our analysis of the objective prong, in which we examine the
nature of the offense from an objective perspective, without
regard to Nezirovic’s subjective motivations.
17
defenseless that have come under their power.”); cf. Eain, 641
F.2d at 521 (rejecting the contention that “isolated acts of
social violence undertaken for personal reasons” are protected
by the political offense exception “simply because they occurred
during a time of political upheaval”).
Accordingly, we conclude that, under the totality of the
circumstances presented, the acts of torture allegedly
perpetrated by Nezirovic against civilians preclude application
of the political offense exception. We therefore hold that this
exception in the treaty does not bar Nezirovic’s extradition. 11
III.
For these reasons, we hold that Nezirovic’s extradition is
neither time-barred nor precluded by the political offense
exception in the treaty. We affirm the district court’s
judgment denying Nezirovic’s petition for a writ of habeas
corpus.
AFFIRMED
11
Like the magistrate judge and district court, we reject
outright Nezirovic’s argument that he deserves the benefit of
the political offense exception because his crimes were
allegedly lesser in severity than the atrocities committed by
the Bosnian-Serbs.
18