In The Matter of The Extradition of Rusalin Sorin Marginean
Filing
50
OPINION AND ORDER. For the reasons stated, the Court concludes that Romania convicted Marginean in absentia, and orders the parties to confer regarding a mutually acceptable date for the extradition hearing and notify the Court by December 1, 2023. IT IS SO ORDERED. Signed on November 21, 2023 by Magistrate Judge Stacie F. Beckerman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
IN THE MATTER OF THE
EXTRADITION OF RUSALIN SORIN
MĂRGINEAN
Case No. 3:21-mc-01260-SB
OPINION AND ORDER
BECKERMAN, U.S. Magistrate Judge.
The United States, on behalf of the Government of Romania (“Romania”), seeks the
extradition of Rusalin Sorin Mărginean (“Mărginean”), who was convicted of instigation to
misrepresentation and use of a false deed under private signature in the Alba District Court in
Alba County, Romania (the “Romanian Court”), in October 2014. (Compl. ¶ 5, ECF No. 1.) The
parties have asked the Court to resolve, prior to the extradition hearing, the question of whether
the Romanian Court convicted Mărginean in absentia. (See Supp. Br. Trial In Absentia (“Supp.
Br.”), ECF No. 46; Resp. Fugitive’s Supp. Br. Trial In Absentia (“Resp.”), ECF No. 47; Reply
Gov’t’s Resp. Trial In Absentia (“Reply”), ECF No. 48.)
BACKGROUND
Article 8 of the Extradition Treaty between the United States of America and Romania
(the “Extradition Treaty”) requires that requests for extradition shall be submitted through the
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diplomatic channel, and shall be supported by several categories of information. (Compl., Ex. 1
at 29.) Article 8, paragraph 3 of the Extradition Treaty governs the information required for “a
request for extradition of a person who is charged with an offense” and paragraph 4 governs “a
request for extradition relating to a person who has been found guilty or convicted of the offense
for which extradition is sought.” (Id.) Article 8, paragraph 4(d) provides that “in the case of a
person who has been found guilty or convicted in absentia,” the requesting state must provide
“the documents required by paragraph 3 of this Article and information regarding the
circumstances under which the person was absent from the proceedings.” (Id. at 30.) Paragraph 3
requires that the extradition request shall be supported by a copy of the warrant or order of arrest
or detention, a copy of the charging document, and “such information as would provide a
reasonable basis to believe that the person sought committed the offense for which extradition is
sought.” (Id. at 29.)
As relevant to the Court’s analysis herein, the Romanian Court presided over twenty
hearings in Mărginean’s criminal trial from February 2013 through October 2014, resulting in
Mărginean’s conviction. (Supp. Br. at 1.) Mărginean was not present for seventeen of those
twenty hearings. (Id.) Although Mărginean was represented by counsel at many of the hearings
he missed, both he and his counsel were absent from three days of trial, including January 27,
2014, when two of the five trial witnesses testified. (Id. at 3.)
DISCUSSION
I.
LEGAL STANDARDS
Extradition is a diplomatic process governed by the federal extradition statute, 18 U.S.C.
§ 3181 et seq., and by the relevant treaty—in this case, the Extradition Treaty. (See Compl., Ex.
1.)
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Section 3184 governs international extradition procedures in the United States:
Whenever there is a treaty or convention for extradition between the United States
and any foreign government, . . . any justice or judge of the United States, or any
magistrate judge authorized so to do by a court of the United States, . . . may,
upon complaint made under oath, charging any person found within his
jurisdiction, with having committed within the jurisdiction of any such foreign
government any of the crimes provided for by such treaty or convention, . . . issue
his warrant for the apprehension of the person so charged, that [s]he may be
brought before such justice, judge, or magistrate judge, to the end that the
evidence of criminality may be heard and considered. . . . If, on such hearing,
[s]he deems the evidence sufficient to sustain the charge under the provisions of
the proper treaty or convention, . . . [s]he shall certify the same, together with a
copy of all the testimony taken before h[er], to the Secretary of State[.]
18 U.S.C. § 3184; see also Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997)
(“Extradition is a matter of foreign policy entirely within the discretion of the executive branch,
except to the extent that the statute interposes a judicial function.” (citing In re Metzger, 46 U.S.
(5 How.) 176, 188 (1847))).
“The court’s task in [extradition] proceedings is to determine: (1) whether the fugitive is
accused of an extraditable crime and (2) whether there is probable cause to believe the fugitive
committed the crime he is charged with.” In re Extradition of Ameen, No. 2:18-mj-152-EFB,
2021 WL 1564520, at *9 (E.D. Cal. Apr. 21, 2021) (citing Santos v. Thomas, 830 F.3d 987, 991
(9th Cir. 2016)). “[T]he judicial officer conducts a hearing to determine whether there is
‘evidence sufficient to sustain the charge under the provisions of the proper treaty or
convention,’ . . . in other words, whether there is probable cause.” Vo v. Benov, 447 F.3d 1235,
1237 (9th Cir. 2006) (quoting 18 U.S.C. § 3184); Matter of Extradition of Santos, 228 F. Supp.
3d 1034, 1036 (C.D. Cal. 2017) (“The government bears the burden of establishing
extraditability, so the government must show, among other things, that there is competent
evidence establishing probable cause to believe that the person named in the extradition request
committed the charged offense.” (citing, inter alia, 18 U.S.C. §§ 3184, 3190)).
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“[A] conviction is ordinarily conclusive proof of probable cause.” In Matter of
Extradition of Ernst, 97 CRIM.MISC.1 PG.22, 1998 WL 395267, at *6 (S.D.N.Y. July 14, 1998)
(citations omitted); In re Extradition of Camelo-Grillo, No. CV 16-9026 JVS (SS), 2017 WL
2945715, at *7 (C.D. Cal. July 10, 2017) (“Where, as here, the fugitive has already been
convicted, the conviction is often considered dispositive of the existence of probable cause.”).
“However, where . . . the conviction is the result of a trial in absentia, the conviction is regarded
merely as a charge, requiring independent proof of probable cause.” In Matter of Extradition of
Ernst, 1998 WL 395267, at *7 (collecting cases and concluding that the extraditee’s “conviction
in absentia must be regarded as only a charge and the government is required to make an
independent showing of probable cause to believe that [the extraditee] committed the offenses
with which he is charged”); Gbessay v. Dunne, No. 13-CV-6571 (MKB), 2020 WL 9816006, at
*6 (E.D.N.Y. May 4, 2020) (“[W]here an extradition request involves a conviction resulting
from an in absentia trial, the inquiry for a reviewing court is whether there is probable cause that
the individual committed the offenses he has been convicted of in the requesting country.”)
(citation omitted); Haxhiaj v. Hackman, 528 F.3d 282, 291 (4th Cir. 2008) (“Underlying the
disparate treatment of a conviction rendered in absentia is the notion that ‘a trial in absentia is
not likely to be a fair trial,’ affording the accused ‘no opportunity to confront the prosecution
witnesses or to present a defense’ and providing no real ‘assistance in ascertaining the probable
guilt of the accused.’”) (citation omitted).
II.
ANALYSIS
The parties ask the Court to determine, prior to the extradition hearing, if the Romanian
Court convicted Mărginean in absentia. The Ninth Circuit has not had an opportunity to provide
clear guidance on what qualifies as an in absentia conviction, or the impact of such a conviction,
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in connection with a request for extradition. See United States v. Umbarila, 562 F. Supp. 3d 729,
742 (C.D. Cal. 2022) (“The Ninth Circuit has not definitively resolved whether the fact of
conviction, by itself, is sufficient to establish probable cause if it was obtained in absentia.”).
In the extradition context, other courts have found that “[c]onvictions in absentia can
generally be organized into three categories: 1) cases in which the accused was present for some
or all of the proceeding leading up to the conviction, 2) cases in which the accused was not
present but was fully represented by counsel, and 3) cases in which the accused was entirely
unrepresented.” In re Extradition of Risner, No. 3:18-mj-765-BN, 2019 WL 6118377, at *7
(N.D. Tex. Nov. 18, 2019) (citations omitted).
It is undisputed that Mărginean was present for only three of the twenty total days of his
criminal trial. (See Supp. Br. at 1, citing the trial record; Resp. at 1, acknowledging that
Mărginean was present for only three days of trial: September 16 and 30, 2013, and October 28,
2013). Thus, this case does not present the first in absentia scenario where the extraditee is
present for most of his trial but absconds before judgment enters. Nor does this case present the
third scenario, i.e., where the accused was entirely unrepresented, because it is undisputed that
Mărginean was represented by counsel for most of his trial.
Rather, this case presents a scenario more like the second, whereby Mărginean was
absent for most of his trial but was represented by counsel. Generally, “the presence of counsel
alone at the foreign trial [i]s insufficient to give the foreign conviction conclusive effect.” In
Matter of Extradition of Ernst, 1998 WL 395267, at *7; see also id. (concluding that the
extraditee’s “conviction in absentia must be regarded as only a charge and the government is
required to make an independent showing of probable cause” where the extraditee was residing
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in the United States at the time of his criminal trial in Switzerland but was represented by
counsel at trial).
Even if there might be scenarios in which counsel’s presence for the entirety of trial,
combined with the accused’s intermittent presence, are enough to find that a conviction was not
in absentia, here it is undisputed that there were at least three days of Mărginean’s criminal trial
at which neither he nor his counsel appeared. Importantly, on January 27, 2014, neither attended
trial when two witnesses (of a total five witnesses) testified. (See Supp. Br. at 3, citing trial
record; Resp. at 10, acknowledging that “neither Mărginean nor his counsel were present at the
January 27, 2014, hearing at which the court heard the testimony of two witnesses”). Thus,
Mărginean was not personally present and was unrepresented during a critical phase of his
criminal trial, and did not have the opportunity to cross examine two trial witnesses nor object to
their testimony. Cf. United States v. Cronic, 466 U.S. 648, 658-59 (1984) (“The presumption that
counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is
denied counsel at a critical stage of his trial.”). The government has not identified any extradition
cases in which courts have concluded that the absence of both a defendant and his counsel at a
critical stage of trial did not result in an in absentia conviction. For all of these reasons, the Court
concludes that the Romanian Court convicted Mărginean in absentia.
In light of Mărginean’s in absentia conviction, the Court finds that Romania must comply
with Section 8, paragraph 4(d) of the Extradition Treaty, and the Court must make an
independent finding of probable cause to certify Mărginean’s extradition to Romania. 1
1
The Court does not yet reach the government’s argument (see Opp’n Fugitive’s Mot.
Compel Disc. at 8-9, ECF No. 23) that the Romanian Court’s 33-page decision in support of
Mărginean’s judgment is sufficient to establish probable cause here. See, e.g., Matter of
Extradition of Blasko, No. 1:17-mc-00067-DAD-SAB, 2018 WL 6044921, at *9 (E.D. Cal. Nov.
19, 2018) (“Further, the Court finds no merit to the argument that the judgment itself is
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CONCLUSION
For the reasons stated, the Court concludes that Romania convicted Mărginean in
absentia, and orders the parties to confer regarding a mutually acceptable date for the extradition
hearing and notify the Court by December 1, 2023.
IT IS SO ORDERED.
DATED this 21st day of November, 2023.
HON. STACIE F. BECKERMAN
United States Magistrate Judge
insufficient to establish probable cause. While courts have denied extradition where the
requesting country’s submissions are merely conclusory, unsupported by underlying
documentation, or were otherwise unreliable, the question to be addressed is whether there is
competent legal evidence that ‘demonstrate[s] probable cause to believe that the accused
committed the crime charged’ by the requesting nation. Here, . . . the requesting nation has
provided more than the mere fact of conviction and the sentence that was imposed. The judgment
itself is an extensive recitation of the evidence that was considered and contains the testimony
and statements of twenty witnesses and other documentary evidence that was considered during
the trial of the matter.”) (citations omitted); see also In the Matter of Extradition of Manea, No.
15 MJ 157 (JGM), 2018 WL 1110252, at *14 (D. Conn. Mar. 1, 2018) (“In this case, [the
extraditee] contends that Article 8 of the Extradition Treaty . . . explicitly requires separate
evidence supporting probable cause when a defendant has been tried in absentia, and thus under
the terms of the Treaty, Romania must provide evidence of ‘something other than the charging
document, arrest warrant, and conviction and sentencing documents.’ The Court agrees that more
than conclusory evidence is required; however, the evidence submitted by Romania suffices.”)
(simplified).
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