United States of America v. Lyubomir Mihailoy Yordanov
Filing
54
MEMORANDUM OPINION AND ORDER: 1. DENYING FUGITIVE'S MOTION TO DISMISS; AND 2. CERTIFYING EXTRADITABILITY by Magistrate Judge Charles F. Eick. The Motion to Dismiss is denied. Based on the findings, and pursuant to 18 U.S.C. section 3184, this Court certifies that it has found Lyobomir Mihailov Yordanov extraditable to Bulgaria with respect to the charge pending against him in Bulgaria. It is Further Ordered that Luybomir Mihailov Yordanov shall remain in committed to the custody of the United States Marshal, to be confined without bail until he is surrendered to the Government of Bulgaria pursuant to the applicable provisions of the Treaty. (See document for further information.) (sp)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
13
14
15
IN THE MATTER OF THE
EXTRADITION OF
LYUBOMIR MIHAILOV YORDANOV,
aka “Lyubomire M. Iordanov,”
)
)
)
)
)
)
a Fugitive from the
)
Government of Bulgaria,
)
)
______________________________)
NO. CV 16-170-CAS(E)
MEMORANDUM OPINION AND ORDER:
1. DENYING FUGITIVE’S MOTION TO
DISMISS; AND
2. CERTIFYING EXTRADITABILITY
16
17
18
BACKGROUND
19
20
The Government of Bulgaria has requested the extradition of
21
Lyubomir Mihailov Yordanov, also known as Lyubomire M. Iordanov
22
(“Yordanov”).
Yordanov opposes extradition.
23
24
On December 15, 2015, the Government of the United States
25
(“Government”) filed a sealed “Complaint for Arrest Warrant and
26
Extradition” pursuant to 18 U.S.C. section 3184 in In the Matter of
27
the Extradition of Lyubomir Mihailov Yordanov, aka “Lyubomire M.
28
Iordanov,” 15-2388M.
Yordanov was arrested in this District on
1
December 18, 2015.
2
3
On January 8, 2016, the Government filed in the present action:
4
(1) a Request for Extradition with exhibits (“Request for
5
Extradition”); and (2) a “Notice to Consolidate” this action with case
6
number 15-2388M.
7
the undersigned Magistrate Judge.
Also on January 8, 2016, the matter was referred to
8
9
On July 29, 2016, the Government filed the “United States’
10
Extradition Memorandum” (“Government’s Memorandum”).
On October 19,
11
2016, Yordanov filed “Mr. Yordanov’s Brief in Opposition to
12
Government’s Request for Extradition, etc.” (“Opposition”).
13
October 28, 2016, the Government filed the “United States’ Reply in
14
Support of Extradition Request, etc.” (“Reply”).
15
the Government filed the “United States’ Filing of Supplement to
16
Request for Extradition” (“Government’s November 3, 2016 Supplement”).
On
On November 3, 2016,
17
18
On November 7, 2016, Yordanov filed “Mr. Yordanov’s Sur-Reply
19
Brief in Opposition to Government’s Request for Extradition and Motion
20
to Dismiss Request for Extradition” (“Sur-Reply and Motion to
21
Dismiss”).
22
States’ Opposition to Motion to Dismiss Request for Extradition.”
On November 9, 2016, the Government filed the “United
23
24
25
The Magistrate Judge held an extradition hearing on November 10,
2016.
26
27
28
On November 16, 2016, the Government filed the “United States’
Filing of Supplement to Request for Extradition, etc.” (Government’s
2
1
November 16, 2016 Supplement”).
On December 13, 2016, Yordanov filed
2
“Mr. Yordanov’s Response to Government’s Supplement to Request for
3
Extradition” (“Response to Government’s November 16, 2016
4
Supplement”).
5
6
YORDANOV’S MOTION TO DISMISS
7
8
9
10
A criminal charge is pending against Yordanov in the town of
Plovdiv, Bulgaria, charging deceit in violation of section 209(1) of
the Bulgarian Criminal Code, as amended in 1982 and 1983.
11
12
13
In support of the Request for Extradition, the Government
initially provided the following translation of section 209(1):
14
15
Who, with the purpose of obtaining for himself or for
16
somebody else property benefit [sic], arises or maintains
17
aberration [sic] in somebody, thus causing him or somebody
18
else property damage shall be punished by imprisonment from
19
one to six years.
20
21
Request for Extradition, Government’s Exhibit B, ECF Dkt. No. 10-1, p.
22
46.
23
was unintelligible.
24
attached to its Reply a different, unauthenticated translation of the
25
statute.
26
grounds that the new translation was untimely and not properly
27
authenticated.
28
///
In Yordanov’s Opposition, Yordanov’s argued that this translation
See Opposition, pp. 5-7.
The Government then
Yordanov thereafter sought to dismiss the proceeding on the
See Sur-Reply and Motion to Dismiss, pp. 2-6.
3
1
Following the hearing on November 10, 2016, the Magistrate Judge
2
issued a Minute Order permitting the Government to file a properly
3
authenticated, accurate translation of the statute and authorizing
4
Yordanov to file a response.
5
November 16, 2016 Supplement to which was attached a copy of a new
6
translation of the statute, a sworn certificate of translation and a
7
cover letter from the director of “International Legal Cooperation and
8
European Affairs” of the Bulgarian Ministry of Justice bearing the
9
seal of the Ministry of Justice.
The Government thereafter filed its
See Government’s November 16, 2016
10
Supplement, ECF Dkt. No. 50, Exs. A, B.
11
This translation of section
209(1) reads:
12
13
A person who for the purpose of acquiring material
14
benefit for himself or for another evokes or maintains in
15
somebody a misleading idea, and thereby causes material
16
damage to that person or to another, shall be punished for
17
deceit by imprisonment from one to six years.
18
19
Government’s November 16, 2016 Supplement, ECF Dkt. No. 50, Ex. A.
20
Yordanov continues to object to the Government’s submission of the new
21
translation on procedural grounds.
22
November 16, 2016 Supplement, ECF Dkt. No. 52, p. 2.
See Response to Government’s
23
24
The Court finds that the new translation has been sufficiently
25
authenticated.
See 18 U.S.C. § 3190; Extradition Treaty Between the
26
Government of the United States and the Government of the Republic of
27
Bulgaria, signed at Sofia on September 19, 2007, S. Treaty Doc. No.
28
110-12 (2008) (“Treaty”), Art. 9, Request for Extradition,
4
1
Government’s Ex. A,, ECF Dkt. No. 10, p. 37 (“Documents that bear the
2
certificate of seal of the Ministry of Justice, or Ministry of
3
Department responsible for foreign affairs, of the Requesting State
4
shall be admissible in extradition proceedings in the Requested State
5
without further certification, authentication, or other
6
legalization.”).
7
presentation and authentication of the new translation is not fatal to
8
the merits of the Request for Extradition.
9
necessarily require that all documents submitted in support of a
The Court also finds that the timing of the
The Treaty does not
10
request for extradition be submitted at the same time as the request
11
itself.
12
U.S.C. §§ 3184, 3190.
See Treaty, Art. 8, 9, 10, Request for Extradition, Ex. A; 18
The Motion to Dismiss is denied.
13
14
FINDINGS AND CONCLUSIONS RE EXTRADITION
15
16
I.
Jurisdiction
17
18
This Court has jurisdiction to conduct extradition proceedings
19
pursuant to 18 U.S.C. section 3184, Local Rule 72-1, and General Order
20
No. 05-07 of the United States Court for the Central District of
21
California.
22
U.S.C. section 3184.
The Court has jurisdiction over Yordanov pursuant to 18
23
24
II.
Treaty
25
26
The Treaty is in full force and effect.
See Request for
27
Extradition, Government’s Ex. A, ECF Dkt. No. 10, pp. 5-48;
28
Declaration of Julie B. Martin, ¶ 3, Government’s Exhibit A, ECF Dkt.
5
1
No. 10, p. 5.
2
3
III.
Identity
4
5
6
The Lyubomir Mihailov Yordanov appearing before this Court is the
same Lyubomir Mihailov Yordanov sought by the Government of Bulgaria.
7
8
IV.
Request for Extradition; Procedural Requirements
9
10
The Request for Extradition filed with this Court by the
11
Government of Bulgaria, as augmented by subsequent filings, complies
12
with the procedural requirements of the Treaty.
13
14
V.
Charge
15
16
The charge of deceit is based on allegations that, from May 2008
17
until August 28, 2008, in the towns of Plovdiv and Krichim, for the
18
purpose of obtaining for himself or another a property benefit,
19
Yordanov allegedly “aroused and sustained deception” in the victim,
20
Yordan Vasilev Angelov, causing property damage “on a large scale” in
21
a sum equivalent to $640,000.
22
///
23
///
24
///
25
///
26
///
27
///
28
///
Request for Extradition, Government’s
6
1
Ex. B, ECF Dkt. No. 10-1, pp. 24, 33, 42.1
2
violated Bulgarian Criminal Code section 209(1), which (as previously
3
indicated) provides:
Yordanov allegedly
4
5
A person who for the purpose of acquiring material
6
benefit for himself or for another evokes or maintains in
7
somebody a misleading idea, and thereby causes material
8
damage to that person or to another, shall be punished for
9
deceit by imprisonment from one to six years.
10
11
Government’s November 16, 2016 Supplement, ECF Dkt. No. 50, Ex. A.
12
Pursuant to Bulgarian Criminal Code section 210(5), the punishment for
13
“deceit” in Bulgaria is increased to one to eight years if the “caused
14
damage is large in size.”
15
46.
Government’s Ex. B, ECF Dkt. No. 10-1, p.
16
17
VI.
Limited Nature of Present Proceedings
18
19
In Vo v. Benov, 447 F.3d 1235 (9th Cir.), cert. denied, 549 U.S.
20
935 (2006), the Ninth Circuit emphasized the very limited role of the
21
court in extradition proceedings.
22
///
23
1
24
25
26
27
28
Although the translation of the Pencheva statement
describes the charge in terms of Yordanov’s having “arisen and
maintained aberration” in the victim, the translation of various
Bulgarian pretrial orders describe Yordanov as having “aroused
and maintained deception” in Angelov. Compare Government’s Ex.
B, ECF Dkt. No. 10-1, p. 6 with Government’s Ex. B, ECF Dkt. No.
10-1 pp. 24 (“Order” dated July 6, 2012), 33 (“Order, etc.” dated
June 29, 2012), 42 (“Order for the Opening of Pre-Trial
Proceedings,” dated April 12, 2010).
7
1
An extradition court - in this case the magistrate
2
judge-exercises very limited authority in the overall
3
process of extradition.
4
“[e]xtradition is a matter of foreign policy entirely within
5
the discretion of the executive branch, except to the extent
6
that the statute interposes a judicial function.”
7
[citations].
8
initiated when the nation seeking extradition makes a
9
request directly to the State Department.
As we have explained,
Extradition from the United States is
[citation].
10
“After the request has been evaluated by the State
11
Department to determine whether it is within the scope of
12
the relevant extradition treaty, a United States Attorney
13
. . . files a complaint in federal district court seeking an
14
arrest warrant for the person sought to be extradited.”
15
[citation].
16
officer (typically a magistrate judge) issues a warrant for
17
an individual sought for extradition, provided that an
18
extradition treaty exists between the United States and the
19
country seeking extradition and the crime charged is covered
20
by the treaty.
21
the judicial officer conducts a hearing to determine whether
22
there is “evidence sufficient to sustain the charge under
23
the provisions of the proper treaty or convention,” id., or,
24
in other words, whether there is probable cause.
Upon the filing of a complaint, a judicial
18 U.S.C. § 3184.
25
26
Id. at 1237.
27
///
28
///
8
After the warrant issues,
1
Thus, in determining whether the crime is extraditable and
2
whether probable cause exists, the Magistrate Judge “has no
3
discretionary decision to make.”
4
1012 (9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006) (citation and
5
internal quotations omitted).
6
concludes that ‘the crime is extraditable,’ and that ‘there is
7
probable cause to sustain the charge,’ the judge or magistrate judge
8
must certify the extradition.”
9
(9th Cir. 2008) (citation omitted).
Prasoprat v. Benov, 421 F.3d 1009,
“If the judge or magistrate judge
Manta v. Chertoff, 518 F.3d 1134, 1140
“Once a magistrate judge confirms
10
that an individual is extraditable, it is the Secretary of State,
11
representing the executive branch, who determines whether to surrender
12
the fugitive.”
13
Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003).
Blaxland v. Commonwealth Director of Public
14
15
VII.
Evidence
16
17
A.
Government’s Evidence
18
19
1.
Prosecutor’s Statement
20
21
The Government has submitted a certified translation of an
22
“Information” statement from Plovdiv Public Prosecutor S. Pencheva
23
addressed to the Bulgaria Supreme Cassation Prosecutor’s Office,
24
International Legal Cooperation Department (Request for Extradition,
25
Ex. B, ECF Dkt. No. 10-1, pp. 6-9 (“Pencheva Statement”).
26
statement contains the following information:
27
///
28
///
9
This
1
The victim, Yordan Vasilev Angelov, was the sole owner
2
and manager of “SMM” PLCC, a company engaged in the import
3
and sale of cars and other motor vehicles.
4
Statement, ECF Dkt. No. 10-1, p. 6.
5
Angelov met Yordanov through an acquaintance.
6
represented that he imported motor vehicles from the U.S.
7
and expressed a desire to develop a common business with
8
Angelov.
9
agreement for the import of motor vehicles.
Id.
Pencheva
In February 2008,
Id.
Yordanov
Yordanov and Angelov entered into an oral
Id., pp. 6-7.
10
11
Initially, Yordanov performed his obligations under the
12
agreement.
Id., p. 7.
Yordanov would send invoices to
13
Angelov describing the characteristics of a particular
14
vehicle (i.e., brand, model, VIN number), and Angelov
15
thereafter would transfer the appropriate purchase amount to
16
a United States bank account.
17
the purchased car by container to Bulgaria.
Id.
Yordanov then would ship
Id.
18
19
Commencing in May 2008, Yordanov decided to send
20
Angelov information concerning vehicles which Yordanov did
21
not intend to purchase so as to induce Angelov to transfer
22
money to Yordanov for the allegedly phony purchase.
23
Yordanov intended to use the transferred money for his own
24
necessities.
25
until August 29, 2008, Yordanov sent Angelov invoices for
26
nine vehicles: six BMWs, two Mercedes and an Infinity FX35.
27
Id.
28
a total of $870,439.43, consisting of $640,000 in payment
Id.
Id.
In pursuit of this plan, from May 2008
Angelov transferred to Yordanov’s American bank account
10
1
for the vehicles plus Yordanov’s commission.
Id.
2
3
When the vehicles did not arrive in Bulgaria, Angelov
4
repeatedly called Yordanov concerning the reasons for the
5
apparent delay.
6
reasons, and later he sent Angelov several container numbers
7
for the containers in which the cars supposedly were to be
8
loaded.
9
numbered containers actually existed “but were not going to
Id.
Id.
Id.
Initially, Yordanov gave various
Upon inquiry, Angelov discovered that the
10
sail.”
Angelov attempted to contact Yordanov, but
11
Yordonov either did not answer the calls or gave various
12
reasons for discontinuing the conversation.
Id.
13
14
Angelov then flew to the United States, accompanied by
15
his “best man” Atanas Ivanov Bubarov,2 in order to find out
16
why the deliveries had been delayed.
17
Angelov down, assuring him that everything was in order and
18
that at any moment the vehicles would depart from a port in
19
New York.
20
personally on the status of the shipment, Yordanov said that
21
this was not possible because of the ship’s supposedly
22
imminent departure.
23
Angelov returned to Bulgaria to wait for the deliveries.
Id.
Id.
Yordanov calmed
When Angelov said he wanted to check
Id.
After approximately ten days,
24
25
26
27
28
2
Documents in the record refer to this witness both as
“Bubarov” and “Babarov.” See Request for Extradition, Ex. B, ECF
Dkt. No. 10-1, p. 7; Government’s November 3, 2016 Supplement,
Ex. A, ECF Dkt. No. 43-1, pp. 2-4; Ex. B, ECF Dkt. No. 43-2, pp.
2-4. The Court uses the former spelling, which is the spelling
used in the Pencheva Statement.
11
1
Id.
Angelov discovered a couple of days later that the
2
vehicles had not been shipped and that, contrary to
3
Yordanov’s representation to Angelov, Yordanov had never
4
even purchased the vehicles.
Id., pp. 7-8.
5
6
Bubarov thereafter traveled to the United States at the
7
request of Angelov and met with Yordanov again.
Id., p. 8.
8
Yordanov confessed to Bubarov that Yordanov never had
9
purchased the vehicles he had invoiced to Angelov, never had
10
any intention of doing so, had kept the money Angelov had
11
transferred and had spent this money for Yordanov’s
12
“personal needs.”
13
this conversation, Angelov contacted the Regional Prosecutor
14
in Plovdiv.
Id.
When Bubarov informed Angelov of
Id.
15
16
2.
Witness Statements
17
18
19
The Government also has submitted a translated witness statement
from Angelov and two translated witness statements from Bubarov.
20
21
a.
Angelov’s Statement
22
23
In Angelov’s statement, taken on March 14, 2013, Angelov stated:
24
25
In 2008, Angelov met Yordanov, who told Angelov that
26
Yordanov owned a company named “ID Emerson” in California.
27
Government’s November 3, 2016 Supplement, Ex. C, ECF Dkt.
28
No. 43-3, p. 3.
The two agreed that Yordanov would buy cars
12
1
in the United States and ship them to Angelov’s company
2
“SMM,” in return for which Angelov would send payment to
3
Yordanov’s company.
4
Bulgaria which would act as brokers to release the cargo
5
from the port in Varna in return for a commission from
6
Angelov.
Id.
Yordanov owned two companies in
Id.
7
8
9
Angelov ordered approximately 20-30 cars per month, by
email, ultimately ordering approximately 100 cars, all in
10
the upper price range.
Id.
Yordanov would send invoices by
11
email, after which Angelov would transfer the money for the
12
invoiced cars to Yordanov’s company bank account.
13
Yordanov did not buy the cars with his own funds, but with
14
Angelov’s money.
Id.
Id.
15
16
Yordanov invoiced Angelov for the nine subject cars,
17
and Angelov paid Yordanov for these cars.
18
When the cars did not arrive, Angelov spoke to Yordanov on
19
the phone.
20
that Yordanov needed time to obtain the vehicle documents
21
and that the procedure would take a month and a half.
22
After waiting approximately a month, Angelov notified
23
Yordanov that Angelov was going to come to the United
24
States.
Id., p. 4.
Id. pp. 3-4.
Yordanov deceived Angelov, saying
Id.
Id.
25
26
Angelov traveled to the United States with Bubarov in
27
September or October of 2008.
Yordanov told Angelov that
28
Yordanov had bought the nine cars in New York and the cars
13
1
were there in containers.
2
desire to fly to New York to see the cars, Yordanov said
3
Angelov could not do so because the cars were loaded in
4
containers.
5
of the containers which Yordanov said contained eight cars.
6
Yordanov said he had made a down payment for one car which
7
would be shipped in two weeks.
8
shipping company’s website and saw two containers
9
corresponding to the numbers Yordanov had provided.
Id.
Id.
When Angelov expressed a
Yordanov gave Angelov the numbers of two
Id.
Angelov checked the
Id.
10
However, a check a week later showed those containers were
11
cancelled.
Id.
12
13
Angelov contacted Yordanov, who said he would check
14
what was happening.
15
States.
16
bought the cars but had used the money for his own purposes.
17
Id.
18
shipments.
19
would pay Angelov back within six to twelve months.
20
Yordanov’s mother, who is in the United States, sent Angelov
21
$2000.
Id.
Id.
Angelov sent Bubarov to the United
Yordanov told Bubarov that Yordanov had not
Angelov had sent Yordanov $640,000 for the missing
Id..
Later, Yordanov told Angelov that Yordanov
Id.
Id.
22
23
b.
Bubarov’s Statements
24
25
In Bubarov’s first statement, taken on April 30, 2010, Bubarov
26
stated:
27
///
28
///
14
1
Burbarov, Angelov’s “best man,” shares an office with
2
Angelov and helps Angelov, an arrangement which ensures that
3
Burbarov is familiar with everything that happens in
4
Angelov’s office.
5
Ex. A, ECF Dkt. No. 43-1, p. 3.
6
acquaintance introduced Angelov to Yordanov.
7
later met Yordonov and learned that Yordanov was living and
8
working in the United States and had offered to start a
9
business with Angelov importing vehicles from the United
Id.
Government’s November 3, 2016 Supplement,
In early 2008, an
Id.
Bubarov
10
States.
As far as Bubarov knew, Yordanov would send an
11
invoice for a certain car, with the chassis number, and
12
Angelov then would make a bank transfer based on the
13
invoice.
14
was going well.
Id.
Bubarov had the impression that the business
Id.
15
16
However, eventually there was a significant delay in
17
shipping a number of expensive cars.
18
accompanied Angelov to the United States because Burbarov
19
spoke English quite well.
20
two met Yordanov, who assured them that everything was all
21
right and that the cars were in stock but that there were
22
some technical problems which were going to be resolved
23
soon.
24
approximately a week in Los Angeles but never saw the cars,
25
which reportedly were being kept at the New York harbor
26
Id., p. 4.
27
to New York.
28
Id., pp. 3-4.
Id.
Id.
Burbarov
In the United States, the
Bubarov and Angelov spent
Yordanov persuaded Bubarov and Angelov not to go
Id.
///
15
1
Bubarov and Angelov returned to Bulgaria but the cars
2
never left the United States.
3
the United States at Angelov’s request and met again with
4
Yordanov.
5
Yordanov said he had never bought the cars, but then gave no
6
explanation concerning the money Angelov had sent Yordanov
7
to purchase the cars.
8
evasively, promising to return the money he owed.
9
Bubarov asked Yordanov why Yordanov had issued invoices for
Id.
Id.
Bubarov then returned to
When Bubarov asked Yordanov about the cars,
Id.
Yordanov began speaking
Id.
Id.
10
cars Yordanov did not own.
Yordanov initially said he
11
had paid certain amounts for some of the cars but nothing
12
for others, but finally admitted that he had not paid any
13
money but had only called the car owners.
14
obviously had obtained information about the cars from
15
Internet advertisements.
Id.
Yordanov
Id.
16
17
Bubarov returned to Bulgaria.
Id.
Thereafter, Angelov
18
received a few emails from Yordanov promising to return the
19
money.
20
Id.
Id.
Bubarov read some of these emails personally.
21
22
23
In Bubarov’s second statement, taken on March 14, 2013, Bubarov
added:
24
25
After the subject vehicles did not arrive, Bubarov and
26
Angelov went to Los Angeles and discussed with Yordanov the
27
fact that vehicles were not arriving.
28
November 3, 2016 Supplement, Ex. B, ECF Dkt. No. 43-2, p. 3.
16
Government’s
1
The two also saw Yordanov’s mother, an accountant.
2
Yordanov confirmed the receipt of money from Angelov for the
3
nine vehicles in question.
4
were holding the vehicles’ documents for some reason, and
5
said the vehicles were in containers in New York waiting to
6
be loaded.
7
documents and the money, but Yordanov said all documents had
8
gone with the vehicles.
9
to New York because Yordanov said that the vehicles were in
Id.
Id.
Id.
Yordanov said the banks
Angelov and Bubarov asked to see the
Id.
Angelov and Bubarov did not go
10
the duty-free zone and could arrive any time.
11
provided the numbers of two or three of the containers.
12
Bubarov and Angelov checked the numbers on the shipping
13
company’s website and saw that the containers were
14
certified, but after two days the certifications were
15
withdrawn.
16
that something else was going on.”
Id.
Id.
Yordanov
Id.
Bubarov and Angelov “started to suspect
Id.
17
18
Back in Bulgaria, Bubarov and Angelov waited three
19
weeks, but no shipments arrived.
20
returned to Los Angeles, where Yordanov said that he had
21
made a down payment but did not own the nine vehicles.
22
Yordanov said he had to make some payments but would get the
23
cars anyway.
24
he had not acquired the cars, and that he was going to
25
refund Angelov’s money, somehow, by the end of the year.
26
Id.
27
payment Yordanov’s mother sent to Angelov.
28
Id.
Id., p. 4.
Bubarov then
Id.
Yordanov then sent an email saying that
The only payment of which Bubarov is aware is a $2000
///
17
Id.
1
B.
Yordanov’s Evidence
2
3
Yordanov has submitted an untranslated letter accompanied by
4
documents purporting to reflect completed vehicle purchase and
5
delivery transactions between Yordanov’s company and Angelov’s company
6
in 2008, including a bill of lading dated August 12, 2008 (see
7
Opposition, Ex. A, ECF Dkt. No. 39-1).
8
9
C.
Admissibility Issues
10
11
Yordanov challenges the admissibility of the Pencheva Statement
12
on the ground that the statement appears to be unsworn and contains
13
hearsay.
14
See Treaty, Art. 8, Request for Extradition, Government’s Exhibit A,,
15
ECF Dkt. No. 10, p. 35.3
16
do not apply in extradition hearings and, unless the relevant treaty
17
provides otherwise, the only requirement for evidence is that it has
18
been authenticated.”
19
Cir. 2008) (noting “our well-established case law that evidence
20
offered for extradition purposes need not be made under oath”)
21
(citation omitted); see also Barapind v. Enomoto, 400 F.3d 744, 748
22
(9th Cir. 2005); Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1406 (9th
23
Cir. 1988), cert. denied, 492 U.S. 927 (1989); see generally Collins
24
v. Loisel, 259 U.S. 309, 317 (1922) (unsworn statements of absent
However, the Treaty does not require that evidence be sworn.
Furthermore, “[t]he usual rules of evidence
Manta v. Chertoff, 518 F.3d 1134, 1146-47 (9th
25
26
27
28
3
Thus, the present case is to be distinguished from In
re Extradition of Platko, 213 F. Supp. 2d 1229, 1237-38 (S.D.
Cal. 2002) in which the applicable treaty (with the Czech
Republic) expressly required “depositions,” i.e., statements
“made under oath.”
18
1
witnesses admissible, “although they could not have been received
2
. . . under the law of the state on a preliminary examination”);
3
accord In re Extradition of Luna-Ruiz, 2014 WL 1089134, at *4 (C.D.
4
Cal. Mar. 19, 2014).
5
6
Yordanov’s hearsay objection also lacks merit.
“[I]t is well-
7
settled in this circuit that evidence is not incompetent simply
8
because it is hearsay.”
9
Cir. 1999) (citation omitted); In re Extradition of Luna-Ruiz, 2014 WL
Mainero v. Gregg, 164 F.3d 1199, 1206 (9th
10
1089134, at *4 (“The extradition judge may consider hearsay evidence,
11
unsigned translations of a witness’s statements, unsworn statements of
12
absent witnesses, and summaries by the police or prosecutor of a
13
witness’s testimony or statement, provided that those documents are
14
properly authenticated and . . . the governing extradition treaty does
15
not require that a witness’s statements be executed under oath.”)
16
(citations omitted).
17
18
Yordanov also contends the evidence of Yordanov’s alleged
19
statement to Bubarov that Yordanov had not bought the vehicles, had no
20
intention to do so and intended to use the money for his personal
21
needs assertedly is unreliable because there allegedly is no
22
indication when this purported conversation occurred.
23
Government’s evidence sufficiently shows the timeline of events.
24
Government’s evidence shows that the alleged conversation purportedly
25
occurred during Bubarov’s second visit to the United States, which
26
assertedly occurred approximately three weeks after Bubarov and
27
Angelov returned from the initial visit to the United States in
28
September or October of 2008.
However, the
See Government’s November 3, 2016
19
The
1
Supplement; Ex. B, ECF Dkt. No. 43-2, p. 4; Ex. C, ECF Dkt. No. 43-3,
2
p. 4.
3
4
The Government objects to Yordanov’s evidence (Reply, ECK Dkt.
5
No. 42, pp. 21-23).
In extradition proceedings, “evidence that
6
explains away or completely obliterates probable cause is the only
7
[defense] evidence admissible at an extradition hearing, whereas
8
evidence that merely controverts the existence of probable cause, or
9
raises a defense, is not admissible.”
Barapind v. Enomoto, 400 F.3d
10
at 749 (citation and quotations omitted); see also Santos v. Thomas,
11
830 F.3d 987, 992-93 (9th Cir. 2016) (en banc).
12
generally does not weigh conflicting evidence and make factual
13
determinations, but determines only whether there is competent
14
evidence to support the belief that the accused committed the charged
15
offense.
16
F.2d 776, 815 (9th Cir.), cert. denied, 479 U.S. 882 (1986).
An extradition court
Barapind v Enomoto, 400 F.3d at 749; Quinn v. Robinson, 783
17
18
The distinction between “explanatory” and “contradictory”
19
evidence “is easier stated than applied.”
Santos v. Thomas, 830 F.3d
20
at 992.
21
performance indicating that Yordanov shipped some cars to Angelov
22
pursuant to invoice(s) during the period from May to August 2008.
23
Government’s November 3, 2016 Supplement, Ex. C, ECF Dkt. No. 43-3, p.
24
3 (Angelov’s statement indicating he allegedly imported approximately
25
100 cars during this time period).
26
Court has considered Yordanov’s “course of performance” evidence and,
27
as discussed herein, the Court nevertheless has decided to certify
28
extraditability.
Here, the Government’s evidence itself suggests a course of
See
Under these circumstances, the
Accordingly, the Court need not and does not
20
1
adjudicate the merits of the Government’s evidentiary objection.
2
3
VIII.
Extraditability
4
5
A.
Dual Criminality
6
7
“Under the principle of ‘dual criminality,’ no offense is
8
extraditable unless it is criminal in both countries.”
In the Matter
9
of the Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986)
10
(citation omitted).
11
character’ of the acts criminalized by the laws of each country are
12
the same and the laws are ‘substantially analogous.’”
13
Chertoff, 518 F.3d at 1141.
14
same.
15
must consider “the totality of the conduct alleged.”
16
Torres, 525 F.3d 733, 737 (9th Cir. 2008), cert. denied, 555 U.S. 1139
17
(2009) (citation and internal quotations omitted).
18
nor the elements of the offenses need be identical.
19
Chertoff, 518 F.3d at 1141; Emami v. United States District Court for
20
the Northern District of California, 834 F.2d 1444, 1450 (9th Cir.
21
1987) (dual criminality exists if the “substantive conduct each
22
statute punishes is functionally identical”).
23
the requesting and the requested party appear to be directed to the
24
same basic evil, the statutes are substantially analogous.”
25
Choe v. Torres, 525 F.3d at 738.
Id.
“Dual criminality exists if the ‘essential
Manta v.
The scope of liability need not be the
In determining whether dual criminality exists, the Court
Man-Seok Choe v.
Neither the names
Id.; Manta v.
“When the laws of both
Man-Seok
26
27
28
The Treaty expressly incorporates these principles.
The Treaty
defines an “extraditable offense” as an offense punishable under the
21
1
laws in both States by the deprivation of liberty for a maximum period
2
of more than a year or by a more severe penalty.
3
ECF Dkt. No. 10-1, pp. 30.
4
whether the offense is one for which United States federal law
5
requires the showing of such matters as interstate transportation, or
6
the use of the mails or of other facilities affecting interstate or
7
foreign commerce, such matters being merely for the purpose of
8
establishing jurisdiction in a United States federal court. . . .”
9
Id., Art 2(3)(b).
Treaty, Art. 2(1);
An offense is extraditable “regardless of
10
11
The Government contends that the dual criminality requirement is
12
satisfied because the Bulgarian offense assertedly is analogous to the
13
California crime of grand theft set forth in California Penal Code
14
section 487(a) and to the federal crime of wire fraud set forth in 18
15
U.S.C. section 1343.
16
17
Yordanov advances several arguments against a finding of dual
18
criminality.
Yordanov challenges the alleged extraterritorial reach
19
of Bulgaria’s jurisdiction, contending he was not in Bulgaria at any
20
relevant time (Opposition, ECF Dkt. No. 39, p. 14).
21
Yordanov, dual criminality is absent because the Government assertedly
22
has not shown that either California’s theft statute or the federal
23
wire fraud statute has extraterritorial application (id., pp. 14-15).
24
Yordanov further contends that the dual criminality requirement is not
25
satisfied because the new translation of Bulgarian Criminal Code
26
section 209(1) assertedly is vague, the statute allegedly does not
27
contain a falsity or reliance element, and the evidence assertedly
28
does not show fraudulent intent or use of the wires (see id., pp. 1222
According to
1
13; Dkt. No. 42, pp. 8-10).
2
3
1.
Extraterritorial Jurisdiction
4
5
The United States extradition statute provides that a warrant of
6
apprehension may issue upon a verified complaint charging the fugitive
7
“with having committed [crimes] within the jurisdiction of any such
8
foreign government. . . .”
18 U.S.C. § 3143.
The Treaty provides:
9
10
If the offense has been committed outside the territory of
11
the Requesting State, extradition shall be granted, subject
12
to the other applicable requirements for extradition, if the
13
laws of the Requested State provide for the punishment of an
14
offense committed outside its territory in similar
15
circumstances.
16
provide for the punishment of an offense committed outside
17
its territory in similar circumstances, the executive
18
authority of the Requested State, at its discretion, may
19
grant extradition provided that all other applicable
20
requirements for extradition are met.
If the laws of the Requested State do not
21
22
Treaty, Art 2(4).
23
24
Yordanov contends that extradition is inappropriate because he
25
allegedly did not commit any crime within the jurisdiction of
26
Bulgaria, and because the Government assertedly has not shown that
27
either California’s theft statute or the federal wire fraud statute
28
provides “for the punishment of an offense committed outside United
23
1
States territory in similar circumstances.”
2
3
These contentions fail for several reasons.
First, it is “not
4
mandatory” that this Court decide the issue of whether Bulgaria would
5
have jurisdiction over Yordanov.
6
300, 303 (2d Cir. 1981).
7
opportunity to challenge jurisdiction in the Bulgarian courts.
See Melia v. United States, 667 F.2d
Nothing suggests that Yordanov will lack the
8
9
Second, contrary to Yordanov’s apparent argument, United States
10
courts have territorial jurisdiction over frauds committed by persons
11
outside the United States which cause harm within the United States.
12
In Ex Parte Hammond, 59 F.2d 683 (9th Cir.), cert. denied, 267 U.S.
13
640 (1932), an extradition case, the Ninth Circuit held that the crime
14
of obtaining funds by fraudulent misrepresentation is committed at the
15
place where the victim parts with the victim’s money.
16
fugitive argued that he had made the allegedly false statements to the
17
Canadian victim in Chicago, and that he had not obtained any money by
18
false pretenses until the money was deposited into the fugitive’s
19
California bank.
20
Ford v. United States, 273 U.S. 593, 620-21 (1927) (“(a)cts done
21
outside a jurisdiction, but intended to produce and producing
22
detrimental effects within it, justify a State in punishing the cause
23
of the harm as if he had been present at the effect, if the State
24
should succeed in getting him within its power”).
25
59 F.2d at 685-86; see also Case Note, 68 Harv. L. Rev. 1463, 1466
26
(1955) (in extradition contexts, “it has been uniformly held that the
27
court of the place where the victims received the fraudulent
28
communications and parted with the property has territorial
There, the
The Ninth Circuit rejected these arguments, citing
24
Ex Parte Hammond,
1
jurisdiction”) (citations omitted); People v. Cummings, 123 Cal. 269,
2
272, 55 P. 898 (1899) (venue proper in county where defendant’s
3
fraudulent representations made in another county “had final effect
4
and the offense became complete”); People v. Chapman, 55 Cal. App.
5
192, 196, 203 P. 126 (1921) (“Without doubt, the crime of obtaining
6
money or property by false pretenses is consummated at the place where
7
the money or property is obtained from the defrauded person,
8
regardless of where the false pretenses may have been made, and
9
therefore the place where the money or property is obtained is the
10
place where, ordinarily, the venue should be laid.”) (citations
11
omitted; quoted in Ex Parte Hammond, 59 F.2d at 686); see generally
12
People v. Betts, 34 Cal. 4th 1039, 1046, 23 Cal. Rptr. 3d 138, 103
13
P.3d 883 (2005) (“a state may exercise jurisdiction over criminal acts
14
that take place outside of the state if the results of the crime are
15
intended to, and do, cause harm within the state”) (citations
16
omitted); Hageseth v. Superior Court, 150 Cal. App. 4th 1399, 1414, 59
17
Cal. Rptr. 3d 385, cert. denied, 545 U.S. 1133 (2005) (“it is not
18
necessary to the ‘detrimental effect’ theory of extraterritorial
19
jurisdiction that the defendant be physically present in this state
20
during some portion of the time during which his alleged criminal act
21
took place. . . .”) (citations omitted).
22
23
Here, the Government’s evidence indicates that, although Yordanov
24
was in the United States, Yordanov assertedly caused Angelov to part
25
with Angelov’s money in Bulgaria.
26
that Yordanov used two of his Bulgarian companies to act as brokers,
27
assertedly in furtherance of the fraudulent scheme.
28
would punish a fraud committed in similar circumstances.
Additionally, the evidence shows
25
United States law
See United
1
States v. Kazzaz, 592 Fed. App’x 553, 554-55 (9th Cir. 2014), cert.
2
denied, 135 S. Ct. 2388 (2015) (sending checks and transmitting an
3
electronic payment to United States established sufficient nexus to
4
support domestic jurisdiction over mail and wire fraud charges;
5
declining to reach issue of extraterritorial application); accord
6
People v. Cummings, 123 Cal. at 272; People v. Chapman, 55 Cal. App.
7
at 196.
8
9
Third, even assuming arguendo that United States law does not
10
provide for the punishment of an offense committed outside United
11
States territory in “similar circumstances,” Yordanov’s arguments
12
nevertheless would fail.
13
extraterritoriality provision of the Treaty quoted above provides that
14
the executive authority of the Requested State has the discretion to
15
grant extradition even where “the laws of the Requested State do not
16
provide for the punishment of an offense committed outside its
17
territory in similar circumstances.”
18
“[t]hat the offense charged is not a crime in the United States is not
19
necessarily a bar to extradition.”
20
1157, 1164-65 (8th Cir. 1982) (“The plain language of this treaty
21
indicates that the executive has discretion to extradite for
22
extraterritorial offenses.”) (citations and footnote omitted); Matter
23
of Assarsson, 635 F.2d 1237 (7th Cir. 1980) (same), cert. denied, 451
24
U.S. 938 (1981).
25
extradite for an extraterritorial offense is vested in the Executive
26
(i.e., the Secretary of State), not this Court.
27
Assarsson, 687 F.2d at 1164; Matter of Assarsson, 635 F.2d at 1245;
28
see also Vo v. Benov, 447 F.3d 1235, 1247 (9th Cir.), cert. denied,
The second sentence of the
Thus, the fact (if it is a fact)
Matter of Assarsson, 687 F.2d
The determination whether to exercise discretion to
26
See Matter of
1
549 U.S. 935 (2006) (“discretionary decisions are within the province
2
of the Secretary of State and not the extradition magistrate”)
3
(citation and internal quotations omitted).
4
5
2.
Grand Theft Under California Law
6
7
California’s theft statute provides that “[e]very person who
8
shall feloniously steal, take, carry, lead, or drive away the personal
9
property of another, . . . or who shall knowingly and designedly, by
10
any false or fraudulent representation or pretense, defraud any other
11
person of money, labor or real or personal property, . . . is guilty
12
of theft.”
13
here, California Penal Code section 487(a) defines grand theft as
14
theft where the value of the property taken exceeds $950.
15
fraud, i.e., the making of a promise without the intent to perform, is
16
the equivalent of grand theft by false pretenses.
17
Weitz, 42 Cal. 2d 338, 343, 267 P.2d 295 (1954), cert. denied, 347
18
U.S. 993 (1954) (“a promise made with intent not to perform it is a
19
‘false or fraudulent representation or pretense’ within the meaning of
20
the [theft] statute”) (citation omitted); People v. Ashley, 42 Cal. 2d
21
246, 262, 267 P.2d 271 (1954) (“a promise made without intention to
22
perform is a misrepresentation of a state of mind, and thus a
23
misrepresentation of existing fact, and is a false pretense within the
24
meaning of section 484 of the Penal Code.”) (citations omitted).
25
“[I]n order to support a conviction in such a case ‘it must be shown
26
that the defendant made a false pretense or a representation with
27
intent to defraud the owner of his property, and that the owner was in
28
fact defrauded.”
Cal. Penal Code § 484(a).
With exceptions not relevant
Promissory
See People v.
Id. at 259 (internal quotations omitted).
27
1
As indicated above, dual criminality exists if the “substantive
2
conduct each statute punishes is functionally identical.”
In Collins
3
v. Loisel, 259 U.S. 309 (1922), the Government alleged that the
4
fugitive had obtained a pearl button in India by false pretenses.
5
Collins v. Miller, 252 U.S. 364 (1920) (earlier opinion in the same
6
matter setting forth factual allegations).
7
that the transaction was simply a failure to pay a debt.
8
On habeas review in the United States Supreme Court, the fugitive
9
argued that the relevant affidavit charged only “cheating,” a crime
See
The fugitive contended
Id. at 366.
10
purportedly different from theft by false pretenses.
Collins v.
11
Loisel, 259 U.S. at 311.
12
required proof of a “promise of future performance which the promisor
13
does not intend to perform,” while proof of “theft by false pretenses”
14
required proof of a false representation of “things past or present.”
15
Id. (citation omitted).
16
ruling that the offense charged was extraditable because the
17
“particular act charged [was] criminal in both jurisdictions.”
18
312.
The fugitive argued that proof of “cheating”
The Supreme Court rejected this argument,
Id. at
19
20
Similarly, the act charged herein, an allegedly false promise to
21
ship vehicles, is criminal in both Bulgaria and California.
The Court
22
rejects Yordanov’s argument that the phrase in the Bulgarian deceit
23
statute “evokes or maintains in somebody a misleading idea” is
24
impermissibly vague.
25
the Northern District of California, 834 F.2d 1444, 1449-50 (9th Cir.
26
1987) (deeming to be an extraditable offense a charge under a German
27
statute providing that a person “who damages the property of another
28
person by producing or maintaining an error through fraudulent
See Emami v. United States District Court for
28
1
misrepresentation or by distortion or suppression of true facts, with
2
the intent to obtain an illegal pecuniary benefit for himself or a
3
third person . . .” is guilty of fraud).
4
section 209(1) appears to reach conduct not covered under United
5
States statutes, contending that the Bulgarian statute does not appear
6
to require proof of falsity, reliance or intent to harm.
7
contrary: the statutory phrase “for the purpose of acquiring material
8
benefit for himself . . . evokes or maintains in somebody a misleading
9
idea” denotes falsity; the statutory phrase “thereby causes material
Yordanov also argues that
To the
10
damage to that person” denotes reliance; and the combination of these
11
two statutory phrases effectively denotes intent to harm.
12
13
Yordanov also contends that dual criminality does not exist
14
because the evidence allegedly does not show he intended to defraud
15
and harm Angelov (Response, ECF Dkt. No. 52, pp. 8-10).
16
Chertoff, 518 F.3d 1134, 1142 (9th Cir. 2008) (proper to consider
17
evidence of intent to defraud “as part of our dual criminality
18
analysis”).
19
contract, i.e., a failure to deliver the cars, coupled with an alleged
20
promise to return Angelov’s money.
See Manta v.
Yordanov argues that the evidence shows only a breach of
21
22
As indicated above, under California law, a promise of future
23
conduct constitutes fraud if made without a present intent to perform.
24
See People v. Ashley, 42 Cal. 2d at 263-64; People v. Marghzar, 192
25
Cal. App. 3d 1129, 1140, 239 Cal. Rptr. 130 (1987).
26
failure to perform a promise is not alone sufficient to prove
27
fraudulent intent, the requisite intent may be inferred from all the
28
circumstances.
While the mere
See Manta v. Chertoff, 518 F.3d at 1142 (fraudulent
29
1
intent of extraditee could be shown by circumstantial evidence); Oen
2
Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988), cert.
3
denied, 492 U.S. 927 (1989) (extraditee’s fraudulent intent could be
4
inferred from alleged transactions and the results thereof);
5
v. Christenbery, 167 Cal. App. 2d 751, 755, 334 P.2d 978 (1959)
6
(evidence that defendant promised to deliver a car to the victim when
7
he knew he could not procure the car was sufficient to show fraudulent
8
intent).
9
have performed his alleged contractual obligations to ship certain
People
Although the evidence suggests that Yordanov initially may
10
other vehicles, the Government’s evidence also shows that:
11
(1) Yordanov did not ship nine vehicles for which Angelov had sent
12
Yordanov money; (2) when Angelov assertedly came to this country to
13
discuss the missing shipments, Yordanov, knowing he had not purchased
14
the subject vehicles, allegedly provided continuing, false assurances
15
of performance; and (3) Yordanov later told Bubarov that Yordanov had
16
not purchased the subject vehicles and that Yordanov had used the
17
money obtained from Angelov for Yordanov’s own purposes.4
18
Yordanov points to evidence allegedly showing that Yordanov
19
purportedly later promised to repay Angelov and sent Angelov $2000,
Although
20
21
22
23
24
25
26
27
28
4
Contrary to Yordanov’s assertion, the witness
statements do not necessarily contradict the relevant statements
in the Pencheva Statement. As indicated above, the Pencheva
Statement relates that Bubarov said Yordanov told Bubarov that
Yordanov had not purchased the nine vehicles but rather had used
Angelov’s money for Yordanov’s personal expenses. While
Bubarov’s statements do not contain some of this specific
information, Angelov’s statement does indicate that Bubarov told
Angelov that Yordanov had said he used the money “for his own
purposes.” The fact that both Bubarov and Angelov related in
their statements that Yordanov purportedly promised to pay the
money back does not contradict the statements that Yordanov told
Bubarov he had used the money “for his own purposes.”
30
1
the Government’s evidence, if credited, could support the inference
2
that Yordanov made false promises of performance with respect to the
3
subject vehicles.
4
755; see also People v. Wieger, 100 Cal. 352, 357, 34 P. 826 (1893)
5
(“Neither the promise to repay, nor the intention to do so, will
6
deprive the false and fraudulent act in obtaining it of its
7
criminality.
8
been obtained by such means, and would not be purged by subsequent
9
restoration or repayment.”) (citations omitted); People v. Silver, 47
See People v. Christenbery, 167 Cal. App. 2d at
The offense is complete when the property or money has
10
Cal. App. 3d 837, 845-46, 121 Cal. Rptr. 153 (1975) (same); United
11
States v. Treadwell, 593 F.3d 990, 997 (9th Cir.), cert. denied, 562
12
U.S. 916, 973 (2010) (“While an honest, good-faith belief in the truth
13
of the misrepresentations may negate intent to defraud, a good-faith
14
belief that the victim will be repaid and will sustain no loss is no
15
defense at all.”) (citation and internal quotations omitted).
16
17
The Court concludes that Yordanov’s alleged acts are criminal in
18
both Bulgaria and California.
As to the remaining issue of
19
punishment, the Treaty defines an “extraditable offense” to mean an
20
offense punishable under the laws in both States by deprivation of
21
liberty for a maximum period of more than a year or by a more severe
22
penalty.
23
A, ECF Dkt. No. 10, p. 30 (emphasis added).
24
of property of a value exceeding $950 is grand theft.
25
§ 487(a).
26
imprisonment in the county jail not exceeding one year, or pursuant to
27
California Penal Code section 1170(h), or a fine not exceeding $5000
28
or both the fine and imprisonment.
Treaty, Art. 2(1), Request for Extradition, Government’s Ex.
In California, the taking
Cal. Penal Code
The punishment for grand theft in California is
Cal. Penal Code § 489 (emphasis
31
1
added).5
2
legislation (inter alia providing for the retention of certain classes
3
of convicted inmates in jail custody), provides generally that a
4
felony where the term is not specified in the underlying offense shall
5
be punishable by a county jail term of 16 months, two or three years,
6
and otherwise by imprisonment in the county jail for the term
7
described in the underlying offense.
8
Code section 12022.6(a)(2) authorizes a sentence enhancement of two
9
years for the taking of property in the commission or attempted
Section 1170(h), part of California’s 2001 Realignment
Furthermore, California Penal
10
commission of a felony where the amount of the loss exceeds $200,000.
11
For purposes of the dual criminality requirement, the court may
12
consider sentence enhancements.
13
Supp. 2d 595, 599-600 (D.V.I. 2003).
Here, the amount of the alleged
14
loss substantially exceeds $200,000.
Therefore, the offense of grand
15
theft in the sum alleged in this case is punishable under the laws of
16
both Bulgaria and California by deprivation of liberty for a maximum
17
period of more than a year.
18
respect to California’s theft statute.
See, e.g., Joseph v. Hoover, 254 F.
Dual criminality is established with
19
20
3.
Wire Fraud Under Federal Law
21
22
The federal wire fraud statute proscribes obtaining money or
23
property “by means of false or fraudulent pretenses, representations,
24
or promises. . . .”
See 18 U.S.C. § 1343.
The Ninth Circuit has held
25
26
5
27
28
Thus, grand theft is a “wobbler” which is a felony at
the time of commission and which remains a felony until
sentencing. See People v. Valenzuela, 5 Cal. App. 5th 449, 45253, 209 Cal. Rptr. 3d 860 (2016).
32
1
that, for purposes of the dual criminality requirement, fraud by false
2
pretenses “is criminal in the United States under laws punishing mail
3
and wire fraud.”
4
Yordanov’s apparent argument (see Opposition, p. 8), the federal
5
jurisdictional requirements of use of the mail or electronic
6
communications do not constitute the essential elements of the fraud
7
offense, and the absence of these elements in the definition of the
8
foreign crime does not defeat a finding of dual criminality.
9
Emami v. United States District Court for the Northern District of
Manta v. Chertoff, 518 F.3d at 1141.
Contrary to
See
10
California, 834 F.2d at 1450; In re Extradition of Mathison, 974 F.
11
Supp. 2d 1296, 1312-13 (D. Or. 2013).
12
the Treaty expressly provides that an offense is considered an
13
extraditable offense “regardless of whether the offense is one for
14
which United States federal law requires the showing of such matters
15
as interstate transportation, or the use of the mails or of other
16
facilities affecting interstate or foreign commerce, such matters
17
being merely for the purpose of establishing jurisdiction in a United
18
States federal court. . . .”
19
p. 30) (emphasis added).
20
sent money to Yordanov via wire transfers.
21
the punishment for federal wire fraud easily meets the dual
22
criminality requirement.
23
this title or imprisoned not more than 20 years, or both”).
24
criminality is established with respect to the federal wire fraud
25
statute.
26
///
27
///
28
///
Moreover, as indicated above,
Treaty, Art. 2(3)(b), ECF Dkt. No. 10,
In any event, the evidence shows Angelov
Finally, the severity of
See 18 U.S.C. § 1343 (“shall be fined under
33
Dual
1
4.
Conclusion
2
3
For the foregoing reasons, the Court finds that the charged
4
offense is an extraditable offense under the Treaty and the dual
5
criminality requirement is satisfied.
6
7
IX.
Probable Cause Determination
8
9
“An extradition proceeding is not a trial; the relevant
10
determination is confined to whether a prima facie case of guilt
11
exists that is sufficient to make it proper to hold the extraditee for
12
trial.”
13
District of California, 834 F.2d at 1452.
14
committing magistrate is to determine whether there is competent
15
evidence to justify holding the accused to await trial, and not to
16
determine whether the evidence is sufficient to justify a conviction.”
17
Collins v. Loisel, 259 U.S. 309, 316 (1922); Barapind v. Enomoto, 400
18
F.3d 744, 752 (9th Cir. 2005) (citation and quotations omitted).
19
extradition proceeding thus “makes no determination of guilt or
20
innocence,” but is “designed only to trigger the start of criminal
21
proceedings against an accused,” and “guilt remains to be determined
22
in the courts of the demanding country.”
23
713, 717 (9th Cir. 2009), cert. denied, 560 U.S. 958 (2010) (citation
24
and internal quotations omitted).
25
need not produce all of its evidence, and the Magistrate Judge does
26
not determine whether there exists sufficient evidence to convict.
27
Id. at 717; Quinn v. Robinson, 783 F.2d 776, 815 n.41 (9th Cir.),
28
cert. denied, 479 U.S. 882 (1986) (noting “well-established rule that
Emami v. United States District Court for the Northern
“The function of the
An
Sainez v. Venables, 588 F.3d
The country seeking extradition
34
1
extradition proceedings are not to be converted into a dress rehearsal
2
for a trial”) (citation and internal quotations omitted).
3
magistrate’s function is to determine whether there is any evidence
4
sufficient to establish reasonable or probable cause.”
5
Venables, 588 F.3d at 717 (citation, internal quotations and brackets
6
omitted).
“[T]he
Sainez v.
7
8
9
Yordanov contends the evidence shows nothing more than a business
dispute, emphasizing Yordanov’s alleged intent to repay Angelov.
10
However, for the reasons discussed above, the evidence establishes
11
probable cause sufficient to support extradition.
12
the parties engaged in a course of dealing during which Yordanov
13
shipped some vehicles in return for Angelov’s payments does not
14
foreclose a fraud prosecution based on other evidence that Yordanov:
15
promised to purchase and ship the nine subject vehicles; received the
16
money to do so; failed to do so; made false representations that he
17
had done so; made false assurances that the vehicles were in
18
containers in New York ready for shipment; and made false
19
representations that he would see to it that the cars were shipped.
20
Furthermore, there is evidence that Yordanov used Angelov’s money for
21
Yordanov’s own purposes and then lied about it.
22
reasonably may be inferred from the circumstances presented.
23
indicated above, Yordanov’s alleged promise to repay Angelov does not
24
vitiate the evidence of fraud.
25
against Yordanov presents a matter for trial in Bulgaria because the
26
reasons suggested by Yordanov to doubt the credibility of these
27
witnesses do not “completely obliterate the evidence of probable
28
cause.”
The evidence that
Fraudulent intent
As
The credibility of the witnesses
See Man-Seok Choe v. Torres, 525 F.3d 733, 740 (9th Cir.
35
1
2008), cert. denied, 555 U.S. 1139 (2009) (witness’ alleged lack of
2
credibility was “merely a weakness” in the Government’s case, and did
3
not “completely obliterate the evidence of probable cause”) (citations
4
and quotations omitted); Barapind v. Enomoto, 400 F.3d at 749-50
5
(same); Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.), cert.
6
dism’d, 414 U.S. 884 (1973) (evidence bearing on the credibility of a
7
witness’ inculpatory statement and on whether the accused actually
8
uttered certain statements was inadmissible in extradition proceeding;
9
that evidence “would in no way ‘explain’ [or] ‘obliterate’ . . . the
10
government’s evidence, but would only pose a conflict of credibility”
11
which “should properly await trial in Israel.”) (Friendly, J.).
12
making a probable cause determination, the Court does not weigh
13
conflicting evidence and make factual determinations, but determines
14
only whether there is competent evidence to support the belief that
15
the accused committed the charged offense.
16
F.3d at 815.
17
establishes probable cause to believe that Yordanov committed the
18
crime charged against him.
In
Quinn v. Robinson, 783
The Court finds that the evidence before the Court
19
20
ORDERS AND CERTIFICATION
21
22
The Motion to Dismiss is denied.
23
24
Based on the above findings, and pursuant to 18 U.S.C. section
25
3184, this Court certifies that it has found Lyobomir Mihailov
26
Yordanov extraditable to Bulgaria with respect to the charge pending
27
against him in Bulgaria.
28
///
36
1
A warrant may issue for the surrender of Lyubomir Mihailov
2
Yordanov upon the requisition of the proper authorities of the
3
Government of Bulgaria, according to the terms of the Treaty.
4
5
IT IS FURTHER ORDERED that Lyubomir Mihailov Yordanov shall
6
remain committed to the custody of the United States Marshal, to be
7
confined without bail until he is surrendered to the Government of
8
Bulgaria pursuant to the applicable provisions of the Treaty.
9
10
IT IS FURTHER ORDERED that the attorney for the United States
11
forthwith shall obtain transcripts of all proceedings before this
12
Court and deliver those transcripts to the Clerk of the Court.
13
Clerk of the Court shall forward to the Secretary of State a copy of
14
this Order, together with the transcripts and copies of documents on
15
file herein.
16
the transcripts of all proceedings before this Court.
The Clerk of the Court also shall file herein a copy of
17
18
IT IS SO ORDERED.
19
20
DATED: January 18, 2017.
21
22
23
24
The
/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
25
26
27
28
37
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?