Almaz Nezirovic v. Gerald Holt

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 7:13-cv-00428-MFU,7:12-mc-00039-RSB. [999535480]. [14-6468]

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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.

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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.
petition.

The district court denied Nezirovic’s

Nezirovic now appeals, arguing that his extradition

is barred (1) under the applicable statute of limitations, and
(2)

by

the

offenses.”

exemption

provided

Upon

review,

our

in
we

the

treaty

affirm

the

for

“political

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

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Herzegovina.

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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
issued

January
a

1993,

criminal

the

report

Doboj

Police

against

Department

Nezirovic,

of

accusing

Bosnia
him

of

committing war crimes against civilians while a guard at the
Rabic

camp.

engaged

in

treatment
camp,

of

According
the

Bosnian

“individual

civilians

“causing

to

great

serious injuries.”

of

and

Serb

physical

authorities,

group

torture

nationality”
and

Nezirovic
and

detained

emotional

inhuman
at

the

suffering

and

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
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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 twentyone

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.
generally Gon v. Holt, 774 F.3d 207, 210 (4th Cir. 2014).
on

Nezirovic’s

place

of

residence

See
Based

in

Roanoke,

Virginia,

the

At the time the treaty was
translated with the spelling “Servia.”

drafted,

“Serbia”

was

1

2

The
Yugoslavia
dissolution
Herzegovina
Handanović,

treaty was in force between the United States
at the time of the alleged crimes.
Following
of Yugoslavia, the treaty has applied to Bosnia
as a successor state.
See In re Extradition
829 F. Supp. 2d 979, 985 (D. Or. 2011).
4

and
the
and
of

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United

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States

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Attorney

for

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the

Western

District

of

Virginia

filed an extradition complaint for review by a magistrate judge
in that district.

See id.

magistrate

judge

concluded

extradition

under

the

extraditability.

treaty

After an evidentiary hearing, the
that

Nezirovic
entered

and

was

certification

a

subject

to
of

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.
§ 3184.

18 U.S.C.

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

violating its laws.”

sought

by

the

foreign

country

for

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

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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
believe

the

the

(quoting

finding

accused

Fernandez

that

guilty
v.

there
of

was

the

Phillips,

268

reasonable

crimes.” 3

asserted
U.S.

ground

311,

(internal quotation marks and brackets omitted).

312

to
Id.

(1925))

The Secretary

of State makes the final determination whether to extradite the
fugitive

to

affecting

both

the

requesting

the

country,

individual

defendant

considering
as

well

as

“factors
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

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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.”
initially

listed

extradition

was

in

the

Treaty art. I.

treaty

available,

the

as

an

offense

of

Although not

offense
torture

for

which

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

4

the

laws

of

Bosnia

and

Nezirovic does not contest that this treaty is applicable
to the present request for his extradition.
7

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Herzegovina.

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See

id.

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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

exempts from extradition “political offenses.”

by

Nezirovic

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.
district

He
court

contends

that

erred

applying

in

the

magistrate
the

judge

indefinite

and

the

limitations

period in the United States Torture Act (the Torture Act or the
8

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Act), 18 U.S.C. § 2340A.

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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

Nezirovic

urges

us

after

instead

his
to

alleged

use

the

conduct

five-year

occurred.
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.
713, 716 (9th Cir. 2009).
the

laws

of

Bosnia

and

Sainez v. Venables, 588 F.3d

Because Nezirovic is charged under
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

charged offenses. 5

statute

most

closely

analogous

to

the

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

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Torture Act when, as here, the acts of torture “resulted in, or
created
injury

a
to

forseeable
another

[sic]

person.” 6

risk
18

of,

death

U.S.C.

or

serious

§ 3286(b);

18

bodily
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

committed the offenses.

in

effect

when

Nezirovic

allegedly

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).
treaty

may

be

applied

retroactively

in

this

Nezirovic extraditable for earlier conduct. 7

Therefore, the
case

to

render

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
Act’s statute of limitations, Nezirovic does not argue
post facto principles otherwise bar his extradition on
of torture because that crime was not an extraditable
under the treaty at the time of his conduct.
10

Torture
that ex
charges
offense

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the

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United

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States,

retroactively

the

as

the

surrendering

statute

extraditable conduct.

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of

state,

limitations

may

lengthen

applicable

to

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

limitations.
Constitution

of

the

Torture

Act’s

statute

of

The Ex Post Facto Clause of the United States
“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

United States.

extradition

for

crimes

committed

outside

the

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.”).
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conclusion

is

not

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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

justice and friendly international relationships.”

interest

of

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).
specific

language

in

the

protections to fugitives.
the

treaty

is

silent

Nezirovic fails to identify any

treaty

granting

any

ex

post

facto

And we observe that Article VII of
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.
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time of the extradition request.
request

for

Nezirovic’s

Pg: 13 of 18

We therefore conclude that the

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

motivations.

We

intent

disagree

manifested

with

his

Nezirovic’s

political

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.”
To

qualify

Id. at 596.
for

the

exception

as

a

“relative”

political

offense, the alleged conduct “must have been incidental to or in
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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
600.

We

apply

a

two-pronged

test

to

Id. at 596-97, 599determine

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.
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The

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magistrate

judge

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concluded

that

Nezirovic’s

alleged

conduct was not subjectively motivated by a political aim, and
that

the

offenses

objectively.

In

were

not

political

conducting

our

in

nature

review,

we

when

viewed

not

decide

need

whether Nezirovic has satisfied the subjective prong of the twopart 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

considerations,

and

were

motivated

concluding

that

by

subjective

the

political

offenses

were

not

political when viewed objectively).
We require that a fugitive make an objective showing that
the

charged

extradition

offenses
treaties

are

do

political

not

protect

in

nature,

acts

simply

because

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

offenses were political in nature when viewed objectively.

the
Id.

at 603-04; see also Eain v. Wilkes, 641 F.2d 504, 521 (7th Cir.

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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.
at 603 (citation omitted).

Ordinola, 478 F.3d

Moreover, the original justification

for the political offense exception, namely, the protection of
the

“inalienable

governments,”
individuals

id.

refuge

right
at
from

to

resist

595-96,

is

extradition

and

abolish

not

tyrannical

served

when

by

granting

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.
that

“Nezirovic’s

alleged

The magistrate judge also found
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
16

does

not

identify

any

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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

Torture

and

Punishment

the

use

Other
art.

of

Cruel,
2

torture.
Inhuman

(1994)

(“No

See

or

Convention

Degrading

exceptional

Against

Treatment

or

circumstances

whatsoever, whether a state of war or a threat or war, internal
political
invoked

instability

as

a

or

any

justification

other
of

public

torture.”);

emergency,
Geneva

may

be

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, . .
. .”).
basis

The torture of prisoners cannot be justified on the
that

such

torture

political disturbance.

has

occurred

in

the

context

of

a

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.
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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
exception

time-barred

judgment

in

the

denying

nor

precluded

treaty.
Nezirovic’s

We

by

affirm

petition

the

political

offense

district

court’s

the
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