Opinion
No. 3:21-MJ-2231-JEM
07-08-2022
In the MATTER OF the EXTRADITION OF Vladimir KOŽELUH
Casey Thomas Arrowood, United States Attorney, U.S. Department of Justice (Knox USAO) Office of U.S. Attorney, Knoxville, TN, for USA. Benjamin Gerald Sharp, Public Defender, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, TN, Bryan E. Delius, Bryce W. McKenzie, Delius & McKenzie, PLLC, Sevierville, TN, for Vladimir Koželuh.
Casey Thomas Arrowood, United States Attorney, U.S. Department of Justice (Knox USAO) Office of U.S. Attorney, Knoxville, TN, for USA.
Benjamin Gerald Sharp, Public Defender, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, TN, Bryan E. Delius, Bryce W. McKenzie, Delius & McKenzie, PLLC, Sevierville, TN, for Vladimir Koželuh.
MEMORANDUM, ORDER, AND CERTIFICATION AND COMMITTAL FOR EXTRADITION
Jill E. McCook, United States Magistrate Judge
This case is before the Court on the Government's request for certification of Vladimir Koželuh ("Koželuh") for extradition to the Czech Republic [Doc. 9], and the Government's Motion in Limine to Preclude Testimony at the Extradition Hearing [Doc. 19].
On February 23, 2022, the Court conducted an extradition hearing [Doc. 22]. Assistant United States Attorney Casey Arrowood represented the Government. Attorneys Bryan E. Delius and Bryce W. McKenzie represented Koželuh. Upon consideration of the record and the information presented during the hearing and in the post-hearing briefs filed by the parties [Docs. 25, 26, 30, 32], the Court grants the Government's motion in limine [Doc. 19] and certifies that Vladimir Koželuh is extraditable. It therefore refers this matter to the United States Secretary of State for its determination whether to surrender Koželuh to authorities in the Czech Republic.
I. Background and Procedural History
The United States filed a Criminal Complaint against Vladimir Koželuh, which initiated extradition proceedings under 18 U.S.C. § 3184 [Doc. 3]. This Court issued an arrest warrant for Koželuh under the Treaty between the United States and Czechoslovakia for the Extradition of Fugitives from Justice, U.S.-Czech, July 2, 1925, 44 Stat. 2367, as amended by Supplementary Extradition Treaty between the United States of America and Czechoslovakia, U.S.-Czech, Apr. 29, 1935, 49 Stat. 3253, and Second Supplementary Treaty on Extradition between the United States of America and the Czech Republic, U.S.-Czech., May 16, 2006, S. Treaty Doc. No. 109-14 (2006) (collectively, the "Treaty") [Exh. 2]. On January 5, 2022, Koželuh was arrested and made an initial court appearance [Doc. 4]. At that time, the Court ordered him detained [Doc. 7]. On January 19, 2022, Koželuh's appointed counsel moved the Court to withdraw and to substitute counsel retained by Koželuh, which the Court granted [Doc. 11]. Koželuh also asked for a bail hearing to determine whether Koželuh would be detained or released pending the outcome of this matter [Doc. 15]. The Court denied Koželuh's request for release finding that, while not a flight risk, Koželuh did not show a special circumstance or combination of special circumstances that warranted his release [Doc. 18].
Citations are to the exhibits to the February 17, 2022 extradition hearing. The pages of Exhibits 1-A through 1-CC and 2 are consecutively numbered. Where applicable, the Court will cite to the consecutive page number, rather than the internal page numbers of the individual documents.
According to the Government, based upon information provided by the Government of the Czech Republic, "[u]nder Czech law, citizens of the Czech and Slovack Republic or their heirs may seek restitution for the Communist Party's confiscation of property between 1948 and 1991, the death of livestock on the property, and the property's depreciation" [Doc. 3, Affidavit to Criminal Complaint, p. 3]. In or around January 1997, four siblings held three claims to seek such restitution "in the total amount of approximately CZK 3,590,230 (USD $155,694) because the former Communist government confiscated their paternal grandfather Josef Hégr's property around 1948" [Id. ]. Wanting to sell the claims, the siblings gave Anna Hégrová—who was their father's widow as well as the mother to two of the siblings and stepmother to the other two siblings—power of attorney to represent them [Id. ]. Hégrová, working with an attorney, located potential buyer Koželuh, and provided contracts for the siblings’ signatures [Id. ]. Pursuant to the contract, the siblings agreed to assign the claims to Koželuh for approximately eighty percent (80%) of their nominal value, which was approximately CZK 2,872,200 or USD $124,556, and Koželuh, who said he could not pay the purchase price at the time of the agreement, would pay the family after he sold the claims [Id. at 3–4].
Also in January 1997, the Government asserts that Koželuh entered into several contracts with members of the Hégr family [Id. at 3]. Under three written assignment contracts, all dated January 20, 1997, the Hégr siblings assigned each of their three claims for restitution to Koželuh in exchange for payment [Id. ]. On January 22, 1997, Koželuh entered into a written loan agreement with Hégrová, pursuant to which she extended Koželuh credit in the amount of CZK 2,872,200 (the total value of the claims), which Koželuh agreed to repay within seven months (i.e., by August 22, 1997) [Id. ]. The loan agreement was secured by a Bill to Order, also dated January 22, 1997, and also signed by Koželuh [Id. ].
Further according to the Government, by March 5, 1997, Koželuh secured recognition by the Land Fund of the Czech Republic and the original debtors of the claims to Koželuh as the new beneficiary of the claims [Id. ]. Under these subrogation contracts, which Koželuh signed, the Land Fund assumed the debts under the claims of each of the original debtors [Id. at 3–4]. On March 11, 1997, Koželuh assigned by written contract all three claims to the Agricultural Cooperative Kladruby-Vojenice for their full value of CZK 3,590,230 [Id. at 4]. The Land Fund registered this assignment from Koželuh to the Agricultural Cooperative [Id. ].
According to the siblings, Hégrová made several efforts to contact Koželuh before the August 22, 1997 due date, but Koželuh never told the Hégr family that he had located a buyer for their claims [Id. ]. Rather, they claimed, he sent letters stating the opposite—that he had not been able to collect on the claims [Id. ]. Specifically, they point to an August 18, 1997 letter from Koželuh to Hégrová, in which Koželuh claimed that he had not been able to collect on the claims due to bad economic circumstances and requested patience and more time to pay what he owed [Id. ]. Soon thereafter, Koželuh paid Hégrová CZK 22,200 [Id. at 5], and on February 2, 1998, 3 Koželuh sent Hégrová a letter in which he apologized and stated that due to his insolvency, the claims would be returned to her in full [Id. ]. Hégrová died on or about February 13, 1998 [Id. ]. According to the Government, Koželuh never paid any other compensation for the claims, returned the claims, nor told Hégrová or the siblings that he had sold or otherwise made money from the claims, and Koželuh left the Czech Republic on or about February 26, 1999 [Id. ].
On the basis of these facts, the Government provides that, "[o]n June 2, 2008, the District Court in Mlada Boleslav, Czech Republic, convicted Koželuh of committing fraud within the jurisdiction of the Czech Republic, in violation of section 250(1)(3)(b) of the 1691 Czech Criminal Code, and sentenced him to five years of imprisonment" [Id. at 2–3]. Later that year, the High Court in Prague affirmed Koželuh's conviction and sentence [Id. at 3]. Koželuh was not present for those proceedings, but he was represented by counsel throughout the proceedings [Id. ]. The Czech District Court issued a warrant for his arrest on January 2, 2011, and made an addendum to the warrant on April 8, 2011 [Id. ].
At the extradition hearing, the Government introduced two exhibits, which were marked as Government's Exhibit 1 and 2 [Doc. 24, Tr. pp. 6–10]. Government's Exhibit 1-A through 1-CC is the Czech Republic's request for Koželuh's extradition [Id. at 7]. The Government asserted that the extradition request submitted by the Ministry of Justice of the Czech Republic is signed by the Director of the International Department for Criminal Matters and contains the seal of the Czech Republic's Ministry of Justice, making it authentic and admissible in the extradition proceeding pursuant to Article 11 of the Treaty [Id. ]. Among other things, it includes the arrest warrant, indictments, a record of the case, the text of the relevant Czech statutes, a statement of identification of Mr. Koželuh, a selection of documents submitted during the trial, the trial court judgment, and the appellate court opinion affirming the conviction [Id. at 8]. Exhibit 2 is a declaration of Tom Heinemann, an attorney with the Office of Legal Adviser of the State Department, which attaches a copy of the Treaty [Id. at 8–9]. In this declaration, Mr. Heinemann states that the Czech Republic's extradition request was properly authenticated in accordance with the Treaty [Id. at 9]. The Government submits that the declaration states the view of the executive branch that the Treaty is in full force and effect; that the offense for which the Czech Republic has requested extradition is covered by the Treaty; and that the extradition request was authenticated in accordance with the provisions of the Treaty [Id. ].
For each document making up the request, there is a photocopy of a seal and the document in the Czech language, and for those documents that were part of the trial of Koželuh in the Czech Republic, there is a certification from the trial judge stating that the copy is true and accurate [Doc. 24, Tr. pp. 7–8]. Each document is followed by an English translation, and typically a certification of accuracy of the English translation [Id. at 8].
Koželuh called two witnesses—his wife and his son—and he also testified [Id. at 2]. He introduced several exhibits, which included photos and documents containing Koželuh's signature [Id. ]. In summary, Mrs. Koželuh testified that she began dating Koželuh in 1995, and the following year she gave birth to their son. They lived in very meager conditions in the Czech Republic. She said in February 1999, Koželuh was able to save enough money, approximately "a couple hundred dollars," to travel to America. She and her son stayed behind because the family lacked the funds to travel with him. When Koželuh arrived in America, she said that he worked strenuous jobs cleaning hotel rooms and shared an apartment with five or six other immigrants, where he slept on the living room floor. She explained that in June of 1999, she and her son were able to travel to Tennessee to join the Defendant with only $200. Mrs. Koželuh further testified that Koželuh lived openly in the United States and that relatives in the Czech Republic knew of his whereabouts. Koželuh and their son became citizens in 2010, and Mrs. Koželuh obtained her citizenship in 2013. She said that Koželuh had consistently corresponded with family in the Czech Republic and did not conceal his relocation to the United States.
This summary is taken from Koželuh's post-hearing brief, which contains citations to the transcript of the hearing [Doc. 25 pp. 3–4].
Mrs. Koželuh identified Mr. Koželuh's signature during her testimony. She testified that the signatures on the Government's exhibits did not belong to Koželuh, saying "[t]his is absolutely not my husband's signature." She also testified that Koželuh could not have produced the letters submitted by the Government as Exhibits 1-S and 1-T because her husband did not have access to a typewriter or to a computer to create these documents and he did not use the legal-based language contained in the letters.
Koželuh's son also testified. He stated that he did not remember living in the Czech Republic, but he recalled that his family's living conditions in Tennessee were poor and his family "struggled every day" to make ends meet. He further testified that he was familiar with his father's signature and that the Government's exhibits were not signed by his father.
Koželuh too took the witness stand. Koželuh testified that prior to his move to the United States, he had to work a morning job at a bakery and an evening job selling insurance to support his family. He had to save money to make the trip to the United States, and he arrived with "about $250 in [his] pocket." He testified that while living in Tennessee, he first stayed in an apartment and slept on the floor. At that time, he worked cleaning hotels. After his family joined him, he eventually applied for United States citizenship, which required him to provide accurate information to the State Department. During this process, no one ever informed him of pending charges against him in the Czech Republic. Koželuh denied signing any of the documents that the Government introduced to support his conviction. He further denied writing the letters introduced by the Government as Exhibits 1-S and 1-T, explaining that in 1997 and 1998 he had no ability to produce these type-written documents. He further denied ever using the legal language exhibited in the letters.
As for meeting Anna Hégrová, Koželuh said he had never done so. Koželuh denied knowledge of any assignments of government reparations and stealing money from anybody in the Czech Republic in 1997. He denied ever having the amount of money that he is alleged to have stolen.
Following presentation of the proof, the Court entertained argument by counsel and took the matter under advisement. The parties submitted post-hearing briefs [See Docs. 25, 26, 30, 32], and the Government submitted additional exhibits, including the Supplemental Declaration from Tom Heinemann [Doc. 30-1 (Exh. 10)] as well as the Correspondence from the Ministry of Justice of the Czech Republic, dated March 25, 2022 [Doc. 30-2 (Exh. 11)]. The matter is now ripe for adjudication.
II. Extradition Analysis
"Extradition is a process by which a fugitive may be returned to another country to face criminal charges." Juarez-Saldana v. United States , 700 F. Supp. 2d 953, 955 (W.D. Tenn. 2010). Extradition proceedings are governed by statute in the United States. 18 U.S.C. § 3184.
The statute "divides responsibility for extradition between a judicial officer and the Secretary of State." United States v. Kin-Hong , 110 F.3d 103, 109 (1st Cir. 1997) (footnote omitted). "[T]he judicial officer, upon complaint, issues an arrest warrant for an individual sought for extradition, provided that there is an extradition treaty between the United States and the relevant foreign government and that the crime charged is covered by the treaty." Id. (citing 18 U.S.C. § 3184 ). If the judicial officer issues a warrant, then the judicial officer "conducts a hearing to determine if ‘he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty.’ " Id. (quoting § 3184 ). If so, then the judicial officer " ‘shall certify’ to the Secretary of State that a warrant for the surrender of the [individual] ‘may issue.’ " Id. (quoting § 3184 ). "The judicial officer is also directed to provide the Secretary of State with a copy of the testimony and evidence from the extradition hearing." Id. The individual is detained "until such surrender shall be made." 18 U.S.C. § 3184.
Following the judicial officer's determination, the Secretary of State has the "sole discretion" to determine whether the individual should be extradited. Kin-Hong , 110 F.3d at 109 ; see also 18 U.S.C. § 3186 ("The Secretary of State may order the person committed under section[ ] 3184 ... of this title to be delivered to any authorized agent of such foreign government ...."); Martinez v. United States , 828 F.3d 451, 455 (6th Cir. 2016) (en banc); Demjanjuk v. Petrovsky , 776 F.2d 571, 584 (6th Cir. 1985), vacated on other grounds , 10 F.3d 338 (6th Cir. 1993) ; In re Extradition of Bilanovic , No. 1:08-mj-74, 2008 WL 5111846, at *4 (W.D. Mich. Dec 3, 2008) ("Extradition is an executive rather than a judicial function.").
"This bifurcated procedure reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, ... yet simultaneously implicate questions of foreign policy, which are better answered by the executive branch." Kin-Hong , 110 F.3d at 110. "[I]nstitutional competence rationales and our constitutional structure, which places primary responsibility for foreign affairs in the [E]xecutive [B]ranch, support this division of labor." Id. (citation omitted).
The United States’ evidence in support of its request for extradition must be properly authenticated, 18 U.S.C. § 3190, and if it is, then the Court may reply upon it in an extradition proceeding. Demjanjuk , 776 F.2d at 576. One facing an extradition request—a "fugitive," to use the term set forth in § 3184—has limited opportunity, however, to challenge the evidence introduced against him. In making the probable cause determination, the Court looks to the extradition materials, which it takes as true, as the primary evidence supporting probable cause. Ahmad v. Wigen , 726 F. Supp. 389, 399–400 (E.D.N. Y 1989), aff'd , 910 F.2d 1063 (2d Cir. 1990) ; accord In re Extradition of Marzook , 924 F. Supp. 565, 592 (S.D.N.Y. 1996) ; In re Extradition of Atta , 706 F. Supp. 1032, 1050–51 (E.D.N.Y. 1989) (citing Collins v. Loisel , 259 U.S. 309, 315–16, 42 S.Ct. 469, 66 L.Ed. 956 (1922) ). Hearsay evidence is admissible and may support a court's findings leading to a certification under the statute. See Collins , 259 U.S. at 317, 42 S.Ct. 469 ; Skaftouros v. United States , 667 F.3d 144, 155 n.16 (2d Cir. 2011) (citation omitted).
In terms of what a fugitive may offer as evidence, it is only that which explains the requesting country's proof against him, not evidence that contradicts it. See Charlton v. Kelly , 229 U.S. 447, 461–62, 33 S.Ct. 945, 57 L.Ed. 1274 (1913) ; In re Extradition of Hasani , No. 2:14–mj–189, 2014 WL 4549232, at *3 (S.D. Ohio Sept. 12, 2014) ("[O]nly evidence that explains the evidence submitted in support of extradition is admissible."); In re Extradition of Basic , No. 5:11-MJ-5002, 2012 WL 3067466, at *2 (E.D. Ky. July 27, 2012). While it does not appear the Sixth Circuit has defined the terms "explanatory" and "contradictory," the Ninth Circuit has "settled on the principle that explanatory evidence is evidence that explains away or completely obliterates probable cause, whereas contradictory evidence is that which merely controverts the existence of probable cause, or raises a defense." Santos v. Thomas , 830 F.3d 987, 992 (9th Cir. 2016) (internal quotation omitted). The Third Circuit has said contradictory evidence is that which merely conflicts with the government's evidence, whereas explanatory evidence "entirely eliminates probable cause." Hoxha v. Levi , 465 F.3d 554, 561 (3d Cir. 2006). And the Second Circuit has stated that "statements [that] would in no way ‘explain’ ... or ... ‘obliterate’ the government's evidence, but would only pose a conflict of credibility ... should properly await trial in [the country seeking extradition]." Shapiro v. Ferrandina , 478 F.2d 894, 905 (2d Cir. 1973). Examples of evidence courts have found contradictory include alibi evidence, defenses such as insanity, and facts contradicting the government's proof. Santos , 830 F.3d at 993 (citation omitted).
Certification that an individual is extraditable requires a finding that "1) the judicial officer is authorized to conduct the extradition proceeding; 2) the court has jurisdiction over the fugitive; 3) the applicable treaty is in full force and effect; 4) the crimes for which surrender is requested are covered by the applicable treaty, and 5) there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is requested." In re Extradition of Robinson , No. 3:11MJ7047, 2011 WL 6072102, at *1 (N.D. Ohio Oct. 21, 2011) (citing Fernandez v. Phillips , 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925) ). For the reasons set forth below, the Court finds that it is authorized to conduct this extradition proceeding; this Court has jurisdiction over Koželuh; the Treaty is in full force and effect; the crime for which the Czech Republic requests surrender is covered by the Treaty; and there is sufficient evidence to support a finding of probable cause that Koželuh committed fraud under Section 250(1)(3)(b) of the 1961 Czech Criminal Code as set forth in the extradition request.
A. This Judicial Officer is Authorized to Conduct the Extradition Proceeding
The extradition statute authorizes proceedings to be conducted by "any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State." 18 U.S.C. § 3184. During the extradition hearing, Koželuh conceded that this judicial officer is authorized to conduct the extradition proceeding [See Doc. 24 p. 93; Doc. 26 p. 2 n.1].
B. This Court has Jurisdiction Over Koželuh
Under 18 U.S.C. § 3184, a judicial officer may, "upon complaint made under oath, charging any person found within its jurisdiction, ... issue his warrant for the apprehension of the person so charged." Koželuh was arrested in Sevier County, Tennessee, which is within the Eastern District of Tennessee [Doc. 8, Arrest Warrant]. Koželuh concedes that this Court has jurisdiction over him [See Doc. 24 p. 93; Doc. 26 p. 2 n.1].
C. The Treaty is in Full Force and Effect
"For an extradition to proceed, there must be a valid extradition treaty between the requesting country and the United States." Hoxha , 465 F.3d at 562 (citation omitted). A fugitive has standing to challenge the validity of an extradition treaty, id. (citation omitted), but the Department of State's determination whether a treaty is in force is entitled to deference from this Court, Kolovrat v. Oregon , 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961) ("While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight." (footnote omitted)); Terlinden v. Ames , 184 U.S. 270, 288, 22 S.Ct. 484, 46 L.Ed. 534 (1902) ("We concur in the view that the question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and that the courts ought not to interfere with the conclusions of the political department in that regard."); Then v. Melendez , 92 F.3d 851, 854 (9th Cir. 1996) ("We may not so easily disregard the determination of the Executive Branch that the 1931 Treaty is in force between Singapore and the United States."); Argento v. Horn , 241 F.2d 258, 262–63 (6th Cir. 1957) (" ‘A construction of a treaty by the political department of the Government, while not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights, is nevertheless of much weight.’ " (quoting Charlton , 229 U.S. at 468, 33 S.Ct. 945 )).
Despite recognizing that his argument has been rejected by other Courts, Koželuh contends that "[n]o valid treaty existed between the Czech Republic and the United States until 2006—well after the alleged criminal activity that is the subject matter of this extradition" [Doc. 25 p. 6]. Courts have recently recognized that the 1925 Extradition Treaty between the United States and Czechoslovakia, as amended, is still applicable to the successor state of the Czech Republic. Kastnerova v. United States , 365 F.3d 980, 986–87 (11th Cir. 2004) (finding that the "conduct" of both the United States and the Czech Republic, including the exchange of diplomatic letters and that the Czech Republic sought extraditions under the treaty, evidenced an intent to be bound, as did the listing of the treaty in the U.S. State Department's Treaties in Force publication). Tom Heinemann, Assistant Legal Adviser in the Office of the Legal Adviser for the Department of State, Washington, D.C., also states that the Treaty is "in full force and effect." [Exh. 2, Declaration of Tom Heinemann, p. 00279; Doc. 30-1, Exh. 10, Supplemental Declaration of Tom Heinemann, p. 1]. And the Czech Republic seems to agree given its pursuit of this extradition request [See Exhs. 1-A, 1-AA, & 2; Docs. 30-1 (Exh. 10) & 30-2 (Exh. 11)]. The Court will therefore defer to their conclusions. See Bašic v. Steck , No. 5:12-cv-274-KKC, 2015 WL 4164901, at *3–4 (E.D. Ky. July 9, 2015), aff'd , 819 F.3d 897 (6th Cir. 2016).
See also United States v. Justik , No. 805-MJ-319-TEAJ, 2005 WL 3185966 (M.D. Fla. Nov. 29, 2005) (issuing a Certificate of Extraditability and Order of Commitment upon request from the Czech Republic for extradition pursuant to the Extradition Treaty between the United States of America and Czechoslovakia signed on July 2, 1925, and the Supplementary Treaty entered into force on August 28, 1935).
See also Meza v. U.S. Att'y Gen. , 693 F.3d 1350, 1358 (11th Cir. 2012) (holding that whether a treaty remains in force following a political change within one of the signatories is a political question that courts should defer to each nations’ political branches and recognizing that the "successor-state analysis" does not apply to a change in administration in the extraditing country); Hoxha , 465 F.3d at 562 (same); Mingtai Fire & Marine Ins. Co., Ltd. v. United Parcel Serv. , 177 F.3d 1142, 1145 (9th Cir. 1999) (same); New York Chinese T.V. Programs, Inc. v. U.E. Enters., Inc. , 954 F.2d 847, 852 (2d Cir. 1992) (same); Sabatier v. Dabrowski , 586 F.2d 866, 868 (1st Cir. 1978) (same); Argento , 241 F.2d at 262–63 (same).
Koželuh also argues that, under the Treaty, the United States may not extradite a United States citizen like him. Specifically, he points to Article VIII, which provides: "Under the stipulations of this Treaty, neither of the High Contracting Parties shall be bound to deliver up its own citizens" [Exh. 2, Treaty of 1925, Art. VIII, p. 00307].
His argument, however, ignores the plain language of the Treaty as well as 18 U.S.C. § 3196. That statute provides:
If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met.
18 U.S.C. § 3196. In United States v. Knotek , the United States Court of Appeals for the Ninth Circuit examined Article VIII of the Treaty and determined that it "must be read in conjunction with 18 U.S.C. § 3196." 925 F.3d 1118, 1125 (9th Cir. 2019). It explained, "[t]he Treaty states that there is no obligation to extradite a U.S. Citizen while section 3196 grants the U.S. government discretion to do so." Id. at 1126–27. It therefore found "no conflict between the Treaty's lack of obligation to extradite U.S. citizens and section 3196 ’s grant of discretion to extradite them." Id. at 1127. Accord Bašic v. Steck , 819 F.3d 897, 899–900 (6th Cir. 2016) (examining the treaty between the United States and Bosnia and Herzegovina with similar language and finding that "there is a vast difference between not being bound to do an act and being forbidden to do it" and that " § 3196 is dispositive: the Secretary of State is empowered to extradite U.S. citizens to Bosnia, provided that the Treaty's other requirements are met"). The Court agrees with this analysis and finds that the United States may extradite Koželuh pursuant to the Treaty even though he is now a United States citizen. D. The Crime for Which Surrender is Requested is Covered by the Treaty
The Czech Republic seeks extradition on the basis of Section 250(1)(3)(b) of the 1961 Czech Criminal Code for committing a continuing offense of fraud [Exh. 1-A, April 8, 2016 Extradition Request, p. 00002]. That law provides in relevant part:
(1) Whoever enriches himself or another person to the detriment of another person's property by misleading another person, or by taking advantage of another person's mistake or by withholding substantial facts, and thereby causing damage to another person's property which is not negligible, shall be punished by a term of imprisonment of up to two years, prohibition of a (specific) activity, a pecuniary penalty or forfeiture of a (specific) thing or another asset of value.
...
(3) An offender shall be sentenced to a term of imprisonment of two to eight years if:
...
(b) by such act he causes substantial damage or some other especially serious consequence.
[Exh. 1-A pp. 00002–3].
Koželuh asserts multiple arguments in support of his position that the crime for which surrender is requested is not covered by the Treaty: (1) that the 1961 Criminal Code was not in effect when his alleged crimes were committed; (2) that there is no dual criminality, in part because the Czech Republic fails to allege that Koželuh acted with fraudulent intent; and (3) that the statute of limitations bars his extradition. All of these arguments lack merit.
1. 1961 Criminal Code
According to Koželuh, the 1961 Criminal Code was created by Czechoslovakia, not the Czech Republic, and the government of the Czech Republic has not provided any information "evidencing that the Czech Republic even adopted the Czechoslovakia[n] laws" [Doc. 25 p. 7]. Yet, the Annex to the Arrest Warrant states: "At the time the judgment of conviction was issued, the Criminal Law No. 140/1961 Collection of Laws was in force in the Czech Republic, its effect terminating on 31 December 2009" [Exhs. 1-B p. 00019; 1-A p. 00003]. The Court affords this statement deference and finds that the 1961 Criminal Code was in effect at the time Koželuh was convicted. See Peters v. Egnor , 888 F.2d 713, 716 (10th Cir. 1989) ("[W]e think that an extensive investigation of [the requesting country's] law would be inappropriate."); Matter of Assarsson , 635 F.2d 1237, 1244 (7th Cir. 1980), cert. denied , 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981) ("We are also not expected to become experts in laws of foreign nations."); Marzook v. Christopher , No. 96 Civ. 4107, 1996 WL 583378, at *5 n.4 (S.D.N.Y. Oct. 10, 1996) ("In the context of extradition proceedings, it would be inappropriate for a court to review the demanding state's analysis of its own law." (citations omitted)).
2. Dual Criminality
Article I of the Treaty provides for the extradition of
any person, who may be charged with, or may have been convicted of any of the crimes or offenses specified in Article II of the present Treaty, and who shall be found within their respective territories; provided that such surrender shall take place only upon evidence of criminality, as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had been there committed.
[Exh. 2 p. 00286]. This requirement is known as dual criminality. Article II further provides:
[a] crime or offense shall be an extraditable crime or offense if it is punishable under the laws of the Requesting and Requested States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.
[Id. at 00287]. Dual criminality exists regardless of whether "the crime or offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction" [Id. ].
"For purposes of determining [dual] criminality the Court must look to proscription by similar criminal provisions of federal law or, if none, the law of the place where the petitioner is found or, if none, the law of the preponderance of the states." Heilbronn v. Kendall , 775 F. Supp. 1020, 1024 (W.D. Mich. 1991). An offense if extraditable regardless of whether "the laws in the Requesting and Requested States place the crime or offense within the same category of crimes or offenses or describe the crime or offense by the same terminology" [Id. ]. "The law does not require that the name by which the crime is described in the two countries shall be the same, nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries." Collins , 259 U.S. at 312, 42 S.Ct. 469. "It is enough if the particular act charged is criminal in both jurisdictions." Id. ; see also United States v. Herbage , 850 F.2d 1463, 1465 (11th Cir. 1988) ("In short, an individual will be extradited under a treaty containing a double criminality provision only when his actions constitute an offense in both the requesting and requested states."); In re Extradition of Bilanovic , No. 1:08-MJ-74, 2008 WL 5111846, at *8 (W.D. Mich. Dec. 3, 2008) (same). In other words, "[dual] criminality exists if the ‘essential character’ of the acts criminalized by the laws of each country are the same and if the laws are ‘substantially analogous.’ " Heilbronn , 775 F. Supp. at 1025 (citations omitted). "Statutes are substantially analogous when they ‘punish conduct falling within the broad scope’ of the same ‘generally recognized crime.’ " Id. (citations omitted). The Court must also keep in mind that, in determining dual criminality, it should "approach [a] challenge[ ] to extradition with a view towards finding the offense[ ] within the treaty," McElvy v. Civiletti , 523 F. Supp. 42, 48 (S.D. Fla. 1981), and the treaty should be "interpreted with a view to fulfil our just obligations to other powers," Grin v. Shine , 187 U.S. 181, 184, 23 S.Ct. 98, 47 L.Ed. 130 (1902).
The Government contends that there is dual criminality here because had the conduct underlying the violation of Section 250(1)(3)(b) of the 1961 Czech Criminal Code been committed in the United States, Koželuh would have been subject to prosecution under 18 U.S.C. § 1341 (Mail Fraud), 18 U.S.C. § 1343 (Wire Fraud), and/or Tenn. Code Ann. § 39-14-103(a) (theft of property). But Koželuh disagrees. He claims that the elements of mail and wire fraud under federal law and felony theft under state law differ from the crime of fraud under Czech Republic's law, "which simply requires an enrichment of the accused to the detriment of another through ‘misleading,’ ‘taking advantage of another person's mistake,’ or ‘withholding of substantial facts’ " [Doc. 25 pp. 7–8]. He relies upon two cases heard in the Middle District of Florida addressing dual criminality under the laws of the Czech Republic and finding a lack thereof: United States v. Peterka , 307 F. Supp. 2d 1344 (M.D. Fla. 2003), and In re Extradition of Lukeš , No. 2:02-MC-23-FTM, 2003 WL 23892681 (M.D. Fla. May 8, 2003).
Section 1341 provides in relevant part: "Whoever, having devised ... any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing" shall be fined or imprisoned for not more than twenty years, or both.
Section 1343 provides in relevant part: "Whoever, having devised ... any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ... in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice," shall be fined or imprisoned not more than twenty years, or both.
Section 39-14-103(a) provides: "A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent." If the value of the property is between $60,000 and $250,000, the crime is a Class B felony. Tenn. Code. Ann. § 39-14-105(a)(5). Under Tennessee law, the term of imprisonment for a Class B felony is eight to thirty years. Tenn. Code Ann. § 40-35-111(b)(2).
But the cases cited by Koželuh in support of his argument that dual criminality is lacking are inapposite, because unlike in those cases, here the record includes evidence of fraudulent intent. In Peterka , the Czech Republic sought extradition of the fugitive on a charge of fraud, the same law at issue in this case. 307 F. Supp. 2d at 1347. The Court found no dual criminality, in part, because "the evidence of fraudulent intent or a scheme and artifice to defraud [was] lacking." Id. at 1351. That evidence consisted of "only three pages comprising two separate documents." Id. at 1347. One document was a two-page written statement by the alleged victim that asserted in sum that he loaned the fugitive money to purchase property and the fugitive did not return the funds or the property. Id. at 1348. The other document memorialized a wire transfer that occurred before the alleged victim provided the loan. Id. at 1347, 1350. In Lukeš , the Czech Republic sought extradition of the fugitive on a charge of harming a creditor. 2003 WL 23892681, at *1. The court found no dual criminality because harming a creditor is not an offense under the laws of the United States. Id. at *5. Further, the court found that, if fraud had been charged, there was nothing to show that the fugitive acted with fraudulent intent. Id. at *5–6.
The court also found insufficient evidence to show use of a wire communication in furtherance of a fraudulent scheme. 307 F. Supp. 2d at 1351. This part of the court's analysis is no longer relevant as the Treaty now includes language that makes a crime an extraditable offense regardless of whether it is one for which "United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce" [Exh. 2 p. 00287].
Here, the Government has submitted evidence from the Czech Republic that alleges Koželuh acted with fraudulent intent. The Czech Republic asserts that Koželuh sold the Hégr family's restitution claims for their full value less than three months after he obtained them [Exh. 1-D, Record of the Case, pp. 00039–40 ]. According to the Record of the Case, "[w]ith regard to the swiftness of this transaction, it becomes obvious that he had prepared it in advance before opening talks with the Hégr family" [Id. at 00039]. It seems that instead of paying the Hégr family as he agreed, Koželuh falsely wrote to a Hégr family member in August 1997 and February 1998 that he was not able to pay his debt to the Hégr family because he could not sell the restitution claims [Id. at 00040]. And it is alleged that his conduct is part of a pattern of similar fraudulent activity: "Moreover, another piece of evidence that this action was intentional is the fact that [the Hégr family's case] was not the only case: he proceeded similarly on other cases injuring other persons" [Id. at 00039].
In the documents from the Czech Republic, pages 2 and 3 of the Record of the Case are out of order, with page 3 appearing before page 2.
Given the submissions of the Czech Republic, the "essential character" of the offense was a fraudulent scheme. Under the laws of the United States, Koželuh's conduct could be characterized as a violation of the statutes prohibiting mail and wire fraud, which would require that Koželuh "devised or intend[ed] to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. §§ 1341, 1343. Accordingly, the Court finds that dual criminality exists here, qualifying fraud under Section 250(1)(3)(b) of the 1961 Czech Criminal Code as an extraditable offense under the Treaty. Accord In re Extradition of Liuksila , 74 F. Supp. 3d 4, 11–12 (D.D.C. 2014) (finding that conduct alleged in support of charge for aggravated fraud by a debtor under the law of Finland—that the fugitive "devised transactions and made false statements in order to gain financial benefit from assets that were subject to distraint"—"could be characterized as a scheme to defraud, or to obtain property by means of false or fraudulent pretenses" and "give rise to a charge or mail or wire fraud"); Parsons v. Feather , No. 3:13-CV-01905-JO, 2014 WL 2123983, at *2 (D. Or. May 19, 2014) (finding that the "essential character" of the offense charged by the government of Mexico was "employing deceit toward or creating a mistaken belief in another person in order to obtain from that person an object of value or profit," and that the "same" essential character of conduct prohibited by our federal wire and mail fraud statutes).
3. Statute of Limitations
Pointing to Article V of the Treaty, Koželuh argues that the statute of limitations bars his extradition [Doc. 25 pp. 11–12]. The Government counters that the statute of limitations for enforcing a sentence of imprisonment has not run [Exh. 2 p. 00306; Exh. 1-A p.00002].
Article V of the Treaty provides that a "fugitive criminal shall not be surrendered under the provisions hereof, when, from lapse of time or other lawful cause, according to the laws of either of the countries within the jurisdiction of which the crime or offense was committed, the criminal is exempt from prosecution or punishment for the offense for which the surrender is asked" [Exh. 2 p. 00306]. Under the plain language of this provision, the Court must determine whether the Czech Republic is seeking a fugitive for "prosecution or punishment." [Id. (emphasis added)]. This interpretation corresponds with Article I of the Treaty, which provides for extradition of two categories of fugitives: those "charged with" (i.e., those being prosecuted) and those "convicted of" (i.e., those being punished) extraditable offenses [Id. at 00302].
In assessing whether the statute of limitations has run, the Court begins with the text of the Extradition Treaty. United States v. Alvarez-Machain , 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) ("In construing a treaty, as in construing a statute, [courts] first look to its terms to determine its meaning."). "If the language of the treaty is clear and unambiguous," then the Court must "apply the words of the treaty as written." Garcia-Godos v. Warden , 853 F. App'x 404, 408 (11th Cir. 2021) (citing United States v. Duarte-Acero , 208 F.3d 1282, 1285 (11th Cir. 2000) ).
Alternatively, even if there were ambiguity, the Court would be required to adhere to the general canon of extradition law requiring that extradition treaties be construed liberally in favor of extradition. See Factor v. Laubenheimer , 290 U.S. 276, 293–94, 54 S.Ct. 191, 78 L.Ed. 315 (1933) ("[I]f a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred."); see also United States v. Trabelsi , 845 F.3d 1181, 1191 (D.C. Cir. 2017) ("[C]ourts should be especially reluctant to read conditions into a treaty that would render extradition more difficult[.]" (citing Factor , 290 U.S. at 298–99, 54 S.Ct. 191 )); Martinez , 828 F.3d at 463 (explaining that "default rule" is that any ambiguity in extradition treaty must be construed in favor of "facilitat[ing] extradition" (citing Factor , 290 U.S. at 293–94, 54 S.Ct. 191 )); Nezirovic v. Holt , 779 F.3d 233, 239 (4th Cir. 2015) ("We construe extradition treaties liberally in favor of surrendering a fugitive to the requesting country[.]" (citing Factor , 290 U.S. at 298, 54 S.Ct. 191 )); Kin-Hong , 110 F.3d at 110 (explaining that "extradition treaties, unlike criminal statutes, are to be construed liberally in favor of enforcement" (citing Factor , 290 U.S. at 298, 54 S.Ct. 191 )); Ludecke v. U.S. Marshal , 15 F.3d 496, 498 (5th Cir. 1994) (same); United States v. Wiebe , 733 F.2d 549, 554 (8th Cir. 1984) (same); Cucuzzella v. Keliikoa , 638 F.2d 105, 107 n.3 (9th Cir. 1981) (citing Factor , 290 U.S. at 293–94, 54 S.Ct. 191, and explaining that "treaties should be construed to enlarge the rights of the parties" to the treaty).
Here, the Czech Republic seeks to enforce a sentence of imprisonment as to Koželuh [Exh. 1-A p. 00002 ("Mr. Koželuh is sought by the District Court in Mladá Boleslav in order to enforce a sentence of imprisonment for 5 years imposed on Mr. Koželuh by the Judgment of the District Court in Mladá Boleslav of 2 June 2008 ....") (emphasis omitted))]. The Court must therefore examine the applicable limitations periods to enforce a sentence on the United States and the Czech Republic. If they have not run, then Article V allows for extradition.
Under United States law, there is no limitations period applicable to the enforcement of sentences. See Martinez , 828 F.3d at 458 (stating that limitations periods pertaining to enforcement of penalties are "generally unknown in the United States" even though "common in civil law countries"); Restatement (Third) of Foreign Relations Law § 476 cmt. e (1987) (discussing lapse-of-time provisions in extradition treaties and stating that "[u]nder the law of the United States and of most common law countries, there is no period of limitations for enforcement of sentences"). Hence, there is no statute of limitation under United States law that would bar extradition.
According to the Ministry of Justice of the Czech Republic, under Czech Republic law, the sentence imposed on Koželuh may be enforced up to ten years after it was entered, excluding time when the sentence could not be executed because the convicted person was abroad [Exh. 1-A p. 00006]. Koželuh was sentenced on June 2, 2008 [Id. at 00002]. Koželuh, however, left the Czech Republic and immigrated to the United States in February 1999 [Id. at 00008; see also Doc. 24 p. 18]. The Czech Republic informs the United States that "[t]he sentence imposed on Mr. Koželuh is not statute-barred for lapse of time" under "the limitation period for a sentence of imprisonment" set forth in the law of the Czech Republic [Exh. 1-A p. 00006 (emphasis omitted)]. The Court gives deference to a foreign official's interpretation of their own law in extradition proceedings, including their interpretation of the applicable limitations period. See Blasko v. Thomas , No. 1:18-cv-01649-DAD-SAB, 2019 WL 1081209, at *6 (E.D. Cal. Mar. 7, 2019) (citing cases), adopting report and recommendation , 2022 WL 1541728 (E.D. Cal. May 16, 2022). Extradition would likewise not be barred under the applicable law of the Czech Republic.
In arguing that the statute of limitations has run, Koželuh asserts that even though he was convicted in the Czech Republic, " ‘that conviction is only considered a charge of a crime rather than a conviction for the purposes of the Court's probable cause analysis’ " [Doc. 32 p. 2–3 (quoting United States v. Fernandez-Morris , 99 F. Supp. 2d 1358, 1365 (S.D. Fla. 1999) )]. But Koželuh provides no authority for the Court to treat the conviction in absentia as a charge for the purpose of determining whether the crime for which surrender is sought is covered by the Treaty, and he conflates two distinct issues: whether there is probable cause to believe he committed the crime underlying the extradition request and whether the language of Article V bars extradition. See, e.g., Hasani , 2014 WL 4549232, at *4–6 (examining similar treaty language where fugitive was convicted in absentia in requesting country and treating statute-of-limitations issue separate from probable-cause issue). Koželuh's argument is also rebutted by the similar interpretations of Article V of the Treaty by the U.S. State Department and the Czech Republic. When making or reviewing a request for extradition, both countries examine one of two applicable statutes of limitations: the one for initiating prosecution or the one for enforcing a sentence, but not both [See Doc. 30-1, Supplemental Declaration of Tom Heinemann (Exh. 10), p. 2]. The Court gives the interpretations deference. See Air France v. Saks , 470 U.S. 392, 399, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (explaining that courts must give "the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties"); Kin-Hong , 110 F.3d at 110 (explaining that the executive branch's construction of a treaty "is entitled to great weight"). Indeed, the interpretations seem supported by the Treaty, which contains no requirement for the Czech Republic to demonstrate that it initiated the prosecution in a timely manner when it seeks extradition to enforce a sentence of imprisonment.
Koželuh states, "Because of the absurd manner in which Mr. Koželuh was tried and convicted without notice, this Court should, for the purpose of conducting this hearing, consider the conviction merely as a criminal allegation---an allegation of 20-year[-]old conduct that was not prosecuted until far beyond any applicable statute of limitation" [Doc. 32 p. 3]. To the extent Koželuh challenges the propriety of his conviction and sentence as being in violation of any applicable statute of limitations, the Court declines to address that argument. The "rule of non-inquiry" requires that "courts refrain from investigating the fairness of a requesting nation's justice system, and from inquiring into the procedures or treatment which await a surrendered fugitive in the requesting country." Kin-Hong , 110 F.3d at 110 (internal quotation and citation omitted). As the Government points out, Koželuh will have an opportunity for a new trial if he is extradited to the Czech Republic [Doc. 3-1, Request for Extradition of April 8, 2016, p. 37]. While Koželuh asserts that the Government "undermine[s]" its statute-of-limitations argument and "essentially concedes that the prosecution was initiated outside of the statute of limitations" by explaining that he will receive a new trial after extradition [Doc. 32 pp. 2, 4], the Court disagrees and notes that Koželuh merely asserts it was a long delay; he does not provide a statute of limitations for prosecution of fraud under Section 250(1)(3)(b). "Questions about the legitimacy and procedural fairness of the [requesting country's] justice system are for the [E]xecutive [B]ranch, not the courts, to ponder in determining whether to exercise its discretion to grant an extradition request." Haxhiaj v. Hackman , 528 F.3d 282, 291 n.2 (4th Cir. 2008) (citation omitted).
For all these reasons, the Court does not find that the statute of limitations bars extradition.
E. There is Probable Cause to Believe Koželuh Committed Fraud under Section 250(1)(3)(b) of the 1961 Czech Criminal Code
The Court must determine whether there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is requested, which here is fraud under Section 250(1)(3)(b) of the 1961 Czech Criminal Code. In other words, the Court must consider whether, under the applicable extradition treaty, there is enough evidence to sustain the charges alleged in the complaint. See In re Extradition of Lahoria , 932 F. Supp. 802, 805 (N.D. Tex. 1996). In extradition proceedings, courts are to construe probable cause liberally in favor of the requesting nation. See Factor v. Laubenheimer , 290 U.S. 276, 293–94, 54 S.Ct. 191, 78 L.Ed. 315 (1933) (holding that the obligations of an extradition treaty should be "liberally construed" in order to effectuate the intentions of the parties to the treaty).
"To certify an extradition warrant, [courts] need only find probable cause that the evidence is sufficient to sustain the charge." Polo v. Horgan , 828 F. Supp. 961, 965 (S.D. Fla. 1993) (internal quotation omitted). Courts are not required to find that the evidence is sufficient to convict the individual whose extradition is sought but only whether there is "probable cause" or "reasonable grounds" to believe the individual is guilty of the crime charged. See Fernandez , 268 U.S. at 312–14, 45 S.Ct. 541. "The probable cause standard applicable to an extradition hearing is the same as the standard used in federal preliminary hearings. Thus, the magistrate [judge]’s role is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction." In re Extradition of Robinson , 2011 WL 6072102, at *3 (citation and internal quotation marks omitted). Put simply, the Court must assess whether there is probable cause to believe that the crime charged by the Czech Republic was committed and that the accused committed the crime. Id. (citing Hoxha , 465 F.3d at 561 ).
As an initial matter, Koželuh urges this Court to treat the conviction in absentia as a charge, rather than an actual conviction. The Court will do so for purposes of its probable cause analysis. See Argento , 241 F.2d at 259 n.1 (noting that "[s]ince the Italian conviction was in absentia, the Commissioner correctly treated the case as though the appellant had been charged with and not convicted of a crime in Italy"); In re Extradition of Harusha , No. 07-x-51072, 2008 WL 1701428, at *6 n.1 (E.D. Mich. Apr. 9, 2008) ; Fernandez-Morris , 99 F. Supp. 2d at 1365.
"The primary source of evidence for the probable cause determination is the extradition request, and any evidence submitted in it is deemed truthful for purposes of this determination." Ahmad , 726 F. Supp. at 399–400 (citing Collins , 259 U.S. at 315–16, 42 S.Ct. 469 ); accord Marzook , 924 F. Supp. at 592 (stating that the court "must accept as true all of the statements and offers of proof by the demanding state"); Atta , 706 F. Supp. at 1050–51 (citing Collins , 259 U.S. at 315–16, 42 S.Ct. 469 ). The Government properly authenticated the extradition package submitted by the Czech Republic, and the Court received it into evidence [Exhs. 1-A to 1-CC & 2].
Within the extradition request is a detailed Record of the Case from Judge Vladislav Tuzar of the District Court in Mladá Boleslav, who presided over the trial [Exh. 1-D pp. 00038–44]. In the Record of the Case, Judge Tuzar provides, among other things, the relevant legal background, a description of the evidence considered during the trial, and his reasoning for concluding that Koželuh is guilty of the offense based upon the testimony of the Hégr family and the documentary evidence submitted during the trial [Id. ]. While the Court does not give weight to Judge Tuzar's finding of guilt given that Defendant was convicted in absentia , the upon review of the extradition package, and specifically the Record of the Case, the Court finds that it contains evidence establishing probable cause to believe that Koželuh committed the offense for which the Czech Republic seeks extradition.
In reaching this finding, the Court relies upon the testimony from the living members of the Hégr family and the documentary evidence, including signed Contracts to Assign a Claim, in finding that there is probable cause to believe that in January 1997, the Hégr family sold their restitution claims to Koželuh in exchange for a promise to pay 80% of their value [Exhs. 1-D p. 00040; 1-F, Contract to Assign a Claim; 1-G, Contract to Assign a Claim; 1-H, Contract to Assign a Claim; 1-M, Loan Contract]. Other documentary evidence establishes that approximately three months later, Koželuh sold the Hégr family's restitution claims [Exhs. 1-D p. 00040; 1-O, Contract for Subrogation of Debt; 1-P, Contract for Subrogation of Debt; 1-Q, Contract to Assign a Claim]. There is probable cause to believe based upon the timing of Koželuh's conduct that when Koželuh was negotiating with the Hégr family for their claims, he already knew he would be able to sell the claims [Exh. 1-D p. 00039]. Yet, even though Koželuh sold the restitution claims, he never paid the Hégr family as promised under the terms of the contracts [Id. ]. Documentary evidence further establishes probable cause to believe that, despite having already sold the Hégr family's restitution claims, Koželuh falsely represented to a member of the Hégr family that he was unable to sell the restitution claims [Exhs. 1-D p. 00040; 1-S, Letter from Koželuh dated Aug. 18, 1997, p. 00170; 1-T, Letter from Koželuh dated Feb. 2, 1998, p. 00175]. Based on the testimonial and documentary evidence presented during the trial, the Court finds probable cause to believe that Koželuh defrauded the Hégr family of CZK 2,850,000 (approximately USD $123,462), excluding interest [Exh. 1-D p. 00039; see Doc. 9 p. 20 (providing amount in U.S. currency)].
The Court further finds that the materials contained in the Czech Republic's extradition request also establish probable cause to believe that the Vladimír Koželuh sought in the extradition request and the Vladimír Koželuh appearing in this Court in this matter are one in the same. According to the Czech Republic's extradition request, the Vladimír Koželuh alleged to have committed the offense was born on May 23, 1956 [see e.g. , Exhs. 1-A p. 00002; 1-B, Annex to Arrest Warrant, p. 00019; 1-C, photograph, p. 00024], in Rokycany in the Czech Republic [see, e.g. , Exhs. 1-C p. 00019; 1-Y, Judgment, p. 00213; 1-Z, Resolution, p. 00228]; lived in Doksy in the Czech Republic [see, e.g. , Exhs. 1-A, Arrest Warrant, p. 00012; 1-Y p. 00213; 1-BB, Indictment, p. 00263; 1-CC, Indictment, p. 000274]; and left the Czech Republic for the United States in February 1999 [Exh. 1-A p. 00008]. Witness testimony offered by Koželuh at the extradition hearing confirms that he was born on May 23, 1956 [Doc. 24, Tr. p. 48], in Rokycany in the Czech Republic [Id. at 63]; lived in Doksy in the Czech Republic [Id. at 15]; and came to the United States in February 1999 [Id. at 18]. Moreover, some of the signed contract documents admitted at the trial in the Czech Republic contain Vladimír Koželuh's notarized signature [Exhs. 1-F pp. 00060, 00063, 1-Q pp. 00142–43, 00146–47, 1-V pp. 00185, 00188, 1-W pp. 00192, 00196]. The information documented during the notarization indicates that the signature belongs to a Vladimír Koželuh with a birthdate of May 23, 1956, residing in Doksy [Id. ]. Finally, within the extradition materials is a declaration signed by a lawyer Petr Drábek, who represented Anna Hégrová in connection with Koželuh's alleged criminal conduct [Exh. 1-AA, p. 00239]. The declaration identifies Koželuh by his birthdate and photograph and states in part, that the declarant "repeatedly met [Koželuh] in the past" [Id. ]. Mrs. Koželuh testified at the extradition hearing that the photograph depicted in the declaration is Koželuh [Doc. 24, Tr. pp. 50–51].
Koželuh's signature and the notary's seal can be observed on the copy in the original Czech.
Considering all this evidence, the Court finds that there is probable cause that the Vladimír Koželuh appearing in this Court is the Vladimír Koželuh alleged to have committed the offense for which the Czech Republic seeks extradition.
Koželuh makes three arguments in an attempt to refute the Government's proof of probable cause: "(1) the Czech Government's case against the Defendant is based entirely upon unreliable hearsay[,] (2) the Government's proof fails to show ‘enrichment’ of the Defendant, and (3) the evidence does not set forth an intent to defraud but, at most, an outstanding debt" [Doc. 25 p. 12]. The Court has already dispensed with the argument regarding fraudulent intent, see supra Section II.D.2, and found that the material provided by the Czech Republic alleges he acted with fraudulent intent. The argument about enrichment is without merit given the allegations that Koželuh defrauded the victims into assigning their restitution claims to him, which he then sold to another party pursuant to a contract for money [See Exhs. 1-D pp. 00039–40, 1-O pp. 00130–31, 1-Q p. 00145–47].
As for the point about hearsay, Koželuh argues the evidence presented by the Government is not reliable hearsay because no witness at his trial had ever met with him and the entirety of the case is based upon hearsay from Anna Hégrová, who had been deceased for ten years [Doc. 25 p. 12]. He says that the hearsay is too remote to be reliable and he relies upon In re Extradition of Platko , 213 F. Supp. 2d 1229, 1241 (S.D. Cal. 2002), where the court found a lack of probable cause. He notes that the court in Platko "rejected the Czech Republic's use of authenticated documents with unsworn summaries" and found that the information before it showed only the existence of unpaid invoices after receipt of goods and no fraudulent intent at the time the fugitive entered into the contracts at issue [Doc. 25 p. 12–13].
Again, the Court has already dispensed with the argument about fraudulent intent. See supra Section II.D.2.
But Koželuh's circumstance is distinguishable from that of the fugitive in Platko . Hearsay is admissible in an extradition hearing to support probable cause, and the Government here offered more than hearsay to support its assertion of probable cause. As discussed above, Exhibit 1-AA offered by the Government includes a declaration signed by an attorney who represented Anna Hégrová in her dealings with Koželuh about the restitution claims at issue [Exh. 1-AA p. 00239]. The declaration identifies Koželuh by photograph, name, birthdate, and address, and it was executed in the presence of the presiding judge, as evidenced by the judge's signature and seal of the court [Id. at 00238–39]. Accord Manta v. Chertoff , 518 F.3d 1134, 1145 (9th Cir. 2008) ("An identification based on a single photograph may be competent evidence of identity in an extradition proceeding." (citation omitted)). The Government also offered witness statements from the surviving victims of the Hégr family who testified at trial and provided the statements subject to a warning about their obligation to tell the truth and liability under the law for providing false information [See Exh. 1-E pp. 00052–56, 1-J pp. 00095–97, 1-K pp. 00104–06, and 1-L pp. 00112–13]. And if this were not enough, courts have held that not "all statements supporting the arrest warrant" need to be sworn. Justik v. Gonzalez , No. 8:05CV02258 T17EAJ, 2006 WL 2024962, at *3 (M.D. Fla. July 17, 2006) (affirming certification of extradition to the Czech Republic); see also Haxhiaj v. Hackman , 528 F.3d 282, 292 (4th Cir. 2008) ("[C]ourts have consistently concluded that hearsay is an acceptable basis for a probable cause determination in the extradition context. Unsworn statements can be sufficient to support a probable cause determination." (citations omitted)).
Koželuh also introduced evidence at the hearing in an attempt to "obliterate" probable cause. Specifically, Koželuh introduced witness testimony that the signature on some of the documents provided by the Czech Republic is not his signature. Prior to the hearing, the Government moved to exclude Koželuh's proposed witnesses and testimony that the signature that appears on the documents submitted by the Government is not Koželuh's signature [Doc. 19]. The Court took the matter under advisement because it could not, prior to the hearing, determine whether the testimony would be contradictory or explanatory. Accord In re Extradition of Ameen , No. 2:18-mj-152-EFB, 2019 WL 2208220, at *12–13 (E.D. Cal. May 22, 2019) (denying motion in limine to exclude evidence of forgery and of a handwriting expert).
The Government did not seek to exclude any other specific evidence sought to be introduced by Koželuh. Koželuh, however, also introduced character evidence and evidence that he "never had any great sum of money" to show he did not profit from any fraudulent scheme [Doc. 25 p. 15]. While the Court appreciates the character evidence, it is properly excluded from the Court's determination of the issue before it. In re Extradition of Ameen , No. 2:18-mj-152-EFB, 2019 WL 2208220, at *8, 12–13 (E.D. Cal. May 22, 2019) (excluding evidence of good character). As for the evidence that he did not profit, it too merely controverts or conflicts with the Government's evidence; it does not completely obliterate probable cause.
Now that the Court has heard [t]he evidence, however, the Court finds that it does not fall within the type of evidence this Court may consider because it is contradictory rather than explanatory. The testimony offered by Koželuh and his family that the signature on some of the documents is not Koželuh's signature contradicts the materials provided by the Czech Republic that assert the signature is Koželuh's signature. See Kapoor v. Dunne , No. 12-CV-3196 (FB), 2014 WL 1803271, at *3 (E.D.N.Y. May 7, 2014) (finding report on handwriting "falls squarely in the category of contradictory rather than explanatory material" and was properly excluded), aff'd , 606 F. App'x 11, 12–13 (2d Cir. 2015) ; see also Gill v. Imundi , 747 F. Supp. 1028, 1040–41 (S.D.N.Y. 1990) (finding testimony of handwriting expert would not explain or obliterate the government's evidence). Contrary evidence, like this testimony, "goes to the weight or credibility of the Government's proof." Hasani , 2014 WL 4549232, at *6. "The proper forum for raising facts contradicting the requesting country's proof, certain defenses and issues surrounding witness credibility, bias, or motive is not the extradition proceeding but [the fugitive's] trial in [the country requesting extradition]." Castaneda v. United States , No. Civ.04-1332 ADM/JSM, 2005 WL 19457, at *3 (D. Minn. Jan. 3, 2005).
Where a fugitive is convicted in absentia, the Court "must scrutinize the evidence carefully to determine at least a reasonable probability that the [fugitive] is guilty of the crime." United States ex rel. Argento v. Jacobs , 176 F. Supp. 877, 883 (N.D. Ohio 1959). The Court has done so here and finds probable cause to believe that Koželuh committed fraud under Section 250(1)(3)(b) of the 1961 Czech Criminal Code as set forth in the extradition request.
III. Conclusion and Certification and Committal for Extradition
The Court GRANTS the Motion in Limine to Preclude Testimony at the Extradition Hearing [Doc. 19]. As explained herein, to the extent Koželuh offered contradictory evidence, the Court does not consider it in determining whether probable cause exists to believe that Koželuh committed fraud under Section 250(1)(3)(b) of the 1961 Czech Criminal Code as set forth in the extradition request.
Pursuant to 18 U.S.C. § 3184, and for all of the forgoing reasons, the Court GRANTS the Government's request for certification of Koželuh for extradition to the Czech Republic [Doc. 9], CERTIFIES that Vladimir Koželuh is extraditable and refers this matter to the United States Secretary of State for its determination whether to surrender Koželuh to authorities in the Czech Republic.
The Court also ORDERS, pursuant to 18 U.S.C. § 3186, that Koželuh remain DETAINED in the custody of the United States Marshal Service pending the United States Secretary of State's determination whether to grant the Czech Republic's request for extradition.