06-5137-pr
Sacirbey v. Guccione



                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                             August Term, 2007

(Argued: February 26, 2008                                                  Decided: December 9, 2009)

                                 Docket Nos. 06-5137-pr (L), 07-0018-pr (con)

MUHAMED SACIRBEY ,

                 Petitioner-Appellant,

                 v.

JOSEPH R. GUCCIONE , United States Marshal for the SDNY; Officer DENNIS SPITZER,
Chief Pretrial Services for the Southern District of New York,

                 Respondents-Appellees.


Before: KEARSE , LEVAL, and CABRANES, Circuit Judges.

        Appeal from a September 7, 2006 order of the United States District Court for the Southern

District of New York (Barbara S. Jones, Judge) denying a petition for a writ of habeas corpus brought

under 28 U.S.C. § 2241. In this case, a treaty authorizes the extradition of an individual who has been

“charged” with a crime and requires that an arrest warrant and supporting materials be provided in

order to obtain that extradition. Where, as here, the relevant arrest warrant was issued by a court that

neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the

treaty that an individual be “charged” with an extraditable offense has not been satisfied. Accordingly,

we reverse the order of the District Court denying the petition, grant the petition for a writ of habeas

corpus, vacate the restrictions on Sacirbey’s liberty, and hold that he may not be extradited pursuant to

any formal requests that have been made.

                                                     1
        Judge Kearse dissents in a separate opinion.



                                        JAMES J. MC GUIRE (Kesari Ruza, Timothy J. McCarthy,
                                               Elizabeth Rotenberg-Schwartz, Sean J. Kirby, of counsel),
                                               Sheppard, Mullin, Richter & Hampton LLP, New York,
                                               NY, for Petitioner-Appellant Muhamed Sacirbey.

                                        ANJAN SAHNI, Assistant United States Attorney (Michael J.
                                              Garcia, United States Attorney, on the brief, Jonathan S.
                                              Kolodner, Assistant United States Attorney, of counsel),
                                              Office of the United States Attorney for the Southern
                                              District of New York, New York, NY, for Respondents-
                                              Appellees Joseph R. Guccione and Dennis Spitzer.

JOSÉ A. CABRANES, Circuit Judge:

        In this appeal we consider whether an arrest warrant issued by a foreign court that no longer

has jurisdiction over the accused, nor the power to enforce the warrant, can provide an adequate basis

for the extradition of a United States citizen. This is a question of first impression—and the fact that

this issue has not been previously decided should not be surprising. It is a rare circumstance where the

very document that provides the basis for an extradition request turns out to have been issued by an

entity that no longer has lawful authority over the matter. While the factual and procedural history of

this case is extraordinary, our resolution of it requires only that we apply the plain meaning of the

provisions of the relevant treaty. The treaty authorizes the extradition of an individual who has been

“charged” with a crime and requires that an arrest warrant and supporting materials be provided in

order to obtain that extradition. Because the arrest warrant at issue in this case was issued by a court

that neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the

treaty that an individual be “charged” with an extraditable offense has not been satisfied. This defect

falls within the narrow category of issues that is cognizable on habeas review of an extradition order;

we therefore reverse the order of the District Court denying the petition for a writ of habeas corpus.


                                                     2
                                             BACKGROUND

A.      Factual Overview1

        Muhamed Sacirbey, also known as Muhamed Sacirbegovic, was born in 1956 in Sarajevo,

Yugoslavia. At that time, the Communist regime led by Josip Broz (Tito) controlled Yugoslavia, and

Sacirbey’s parents opposed Tito’s authoritarian government. For their dissenting political beliefs,

Sacirbey’s parents were imprisoned for a time. In the 1960s, the Sacirbey family fled Yugoslavia and

immigrated to the United States, where they settled in Ohio. On April 27, 1973, at the age of sixteen,

Sacirbey became a naturalized citizen of the United States. During the years that followed, Sacirbey

attended Tulane University on a football scholarship; he earned a bachelor’s degree and a degree in law

at Tulane and a Master of Business Administration degree at Columbia University. After his admission

to the Bar of the State of New York, Sacirbey worked as a lawyer for a New York law firm. In the

1980s, he left his law firm to work in the financial sector, first as a Vice President at Standard and

Poor’s, the rating agency, and later as Vice President of an investment bank.

        On April 5, 1992, the Republic of Bosnia and Herzegovinia (“Bosnia”) declared its

independence from Yugoslavia. The United States officially recognized Bosnia’s independence two

days later, and Bosnia was admitted to membership in the United Nations on May 22, 1992. Shortly

thereafter, Bosnian President Alija Izetbegovic, a leader of the Muslim community of Bosnia, appointed

Sacirbey to serve as Bosnia’s ambassador to the United Nations. Despite international recognition,

Bosnian Serbs continued to oppose independence and, with the support of the government of

Serbia—a neighboring province in the former Yugoslavia—launched a violent campaign to partition

the country along ethnic lines. According to the United States Department of State, “[t]he conflict

        1
            Unless otherwise noted, the following facts are not in dispute.

                                                       3
continued through most of 1995, and many atrocities were committed, including acts of genocide

committed by members of the [Bosnian Serb armed forces] in and around Srebrenica from July 12-22,

1995, where approximately 8,000 Bosnian Muslim men and boys were killed.” Bureau of European and

Eurasian Affairs, U.S. Dep’t of State, Background Note: Bosnia and Herzegovina (2009), available at

www.state.gov/r/pa/ei/bgn/2868.htm (last visited December 8, 2009). Sacirbey, appointed Bosnian

Foreign Minister upon the assassination of his predecessor in 1995, represented Bosnia at peace talks

held in 1995 outside of Dayton, Ohio.2 Those talks lead to the Dayton Peace Accords, which were

formally signed on December 14, 1995 in Paris and which ended the war in Bosnia after more than

three years and ensured Bosnia’s independence under the supervision of a High Representative selected

by the United Nations Security Council. Id.

        Sacirbey continued to represent Bosnia at the United Nations until 2000. During his eight-year

tenure as Bosnia’s first United Nations ambassador, Sacirbey opened the Permanent Mission to the

United Nations and the General Consulate of Bosnia in New York (the “U.N. Mission”), promoted the

creation of the International Criminal Tribunal for the former Yugoslavia (the “ICTY”),3 and managed

the legal team in an action against Yugoslavia for genocide in the International Court of Justice

(“ICJ”).4 For much of this period, the finances of the U.N. Mission were in disarray. Sacirbey claims



        2
          Sacirbey’s involvement in the Bosnian peace process has been described in the memoirs of
several United States officials. See Bill Clinton, My Life 668 (describing Sacirbey’s involvement in the
American peace mission to Bosnia and his role as “the eloquent public face of Bosnia on American
television”); Richard Holbrooke, To End a War 34-35 (stating that Sacirbey was his “first Bosnian
friend,” and detailing Sacirbey’s role in the Dayton peace talks); Strobe Talbott, The Great Experiment:
The Story of Ancient Empires, Modern States, and the Quest for a Global Nation 306-07 (characterizing
Sacirbey as “the pugnacious, thoroughly Americanized foreign minister of Bosnia”).
        3
            Sacirbey also served as Bosnia’s representative to the ICTY.

        Sacirbey served as Bosnia’s agent before the ICJ and later as a Vice Chairman of the
        4

Preparatory Committee of the International Criminal Court.

                                                      4
that he received no salary for his services and that he had to open the U.N. Mission using his personal

resources, including fees from his speaking engagements, and by soliciting contributions from

sympathetic nations. As Sacirbey concedes, funds earmarked for one project were often spent on

another, and personal bank accounts were used to house those funds. See J.A. 11-12 (Affidavit of

Muhamed Sacirbey, Mar. 17, 2005, at ¶¶ 21-27).5

        Sacirbey resigned from his ambassadorship and returned to private life in the United States in

December 2000. After his resignation, Sacirbey claims to have learned that Bosnian Foreign Minister

Zlatko Lagumdzija, a perceived political adversary of Sacirbey and allegedly a former official in the

Communist Party, had launched an investigation of him. In early 2001, the Foreign Ministry requested

that the Cantonal Prosecutors Office in Sarajevo6 investigate alleged financial irregularities at the U.N.

Mission during Sacirbey’s tenure. On April 11, 2001, the Cantonal Prosecutor submitted a Demand for

Investigation to the Cantonal Court, alleging that Sacirbey had abused his office in violation of Bosnian

law. Specifically, the prosecutor alleged that (1) Sacirbey had embezzled $610,982.46 and (2) there was

a $1.8 million shortfall in an investment account over which Sacirbey had signature authority.7 See


        5
         Sacirbey also claims that he was authorized to reallocate funds in this fashion, and that his
efforts before the ICTY and ICJ were approved by President Izetbegovic. See J.A. 10 (Affidavit of
Muhamed Sacirbey, Mar. 17, 2005, at ¶ 18).
        6
         Following the Dayton Peace Accords, Bosnia was divided into two sub-divisions: the
Federation of Bosnia and Herzegovina and Republika Srpska. The Federation of Bosnia and
Herzegovina was, in turn, divided into ten “cantons.” See Bureau of European and Eurasian Affairs,
U.S. Dep’t of State, Background Note: Bosnia and Herzegovina (2009), available at
www.state.gov/r/pa/ei/bgn/2868.htm (last visited May 27, 2009). As the District Court observed,
“Cantons [are] similar to municipalities or counties in the United States.” Sacirbey v. Guccione, No. 05
Cv. 2949, 2006 U.S. Dist. LEXIS 64577, at *3 n.3 (S.D.N.Y. Sept. 7, 2006) (“Sacirbey II”).
        7
          The $1.8 million shortfall was determined by a commission that investigated the matter not
to be part of the U.N. Mission’s deficit because those funds had been donated by the government of
Saudi Arabia and therefore did not belong to the Ministry. Sacirbey II, 2006 U.S. Dist. LEXIS 64577,
at *5 n.6.


                                                     5
Sacirbey v. Guccione, No. 05 Cv. 2949, 2006 U.S. Dist. LEXIS 64577, at *4 (S.D.N.Y. Sept. 7, 2006)

(“Sacirbey II”). In response to the prosecutor’s application, the Cantonal Court issued a Decision to

Investigate Sacirbey on August 20, 2001, and later, on December 5, 2001, a Decision for Detention and

an International Arrest Warrant for Sacirbey. Id. at *5-6.

        Bosnia sought the extradition of Sacirbey in a formal request to the United States Department

of Justice dated January 29, 2002. Bosnia’s request was made pursuant to an extradition treaty executed

in 1902 by the United States and the Kingdom of Serbia (the “Treaty”),8 which provides, in part, that

        The Government of the United States and the Government of Servia [sic] mutually agree to
        deliver up persons who, having been charged with or convicted of any of the crimes and
        offenses specified in the following article, committed within the jurisdiction of one of the high
        contracting parties, shall seek an asylum or be found within the territories of the other:
        Provided, that this shall only be done upon such evidence of criminality as, according to the
        laws of the place where the fugitive or person so charged shall be found, would justify his or
        her apprehension and commitment for trial if the crime or offense had been committed there.

Treaty for Mutual Extradition of Fugitives from Justice, U.S.-Serb., art. I, Mar. 7, 1902 (date of

ratification by the President), 32 Stat. 1890, 12 Bevans 1238. Under Article II of the Treaty,

“[e]mbezzlement by public officers” is among the offenses specified for extradition. Id. In order to

secure extradition of a “fugitive [who] is merely charged with crime,” Article III of the Treaty requires

the requesting government to provide “a duly authenticated copy of the warrant of arrest in the country

where the crime has been committed, and of the depositions or other evidence upon which such

warrant was issued . . . .” Article IV provides that “in advance of the presentation of formal proofs,

        8
          This treaty applies to Bosnia as a successor state to the former Federal Peoples’ Republic of
Yugoslavia, which was, in turn, a successor state to the Kingdom of Serbia. See In re The Extradition
of Muhamed Sacirbegovic, No. 03 Crim. Misc. 01, 2005 U.S. Dist. LEXIS 707, at *30-32 (S.D.N.Y. Jan.
19, 2005) (“Sacirbey I”) (“[T]he United States . . . consider[s] the Treaty to be in effect between the
United States and [Bosnia].”); see generally 767 Third Ave. Assocs. v. Consulate Gen. of the Socialist Fed.
Republic of Yugo., 218 F.3d 152, 156 (2d Cir. 2000) (noting that Bosnia is among the successor states
of Yugoslavia); Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir. 1954) (“[T]he extradition treaty
executed by and between the United States and Serbia in 1902 is a present, valid and effective treaty
between the United States and the Federal Peoples’ Republic of Yugoslavia.”).

                                                      6
complaint on oath . . . shall be made by an agent of the Government of Servia [sic] before a judge or

other magistrate authorized to issue warrants of arrest.” In addition, the Treaty provides that “[n]either

of the high contracting parties shall be bound to deliver up its own citizens or subjects under the

stipulations of this Treaty,” id. at art. V, and that “offense[s] of a political character” may not lead to

extradition under the Treaty, id. at art. VI.

        While the Treaty expressly authorizes the United States to decline to extradite Sacirbey because

he is a U.S. citizen, the Department of State is authorized by statute to extradite U.S. citizens who

otherwise come within the scope of the relevant extradition treaty. See 18 U.S.C. § 3196 (“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.”). The Department of State appears to have chosen to exercise its discretion in

this case by requesting Sacireby’s extradition. On March 17, 2003, the Department of Justice filed a

Complaint for Arrest with a View Towards Extradition of Sacirbey in the United States District Court

for the Southern District of New York. Sacirbey was arrested in March 2003 and detained for over a

year until he was released on bail in July 2004.9

B.      Procedural History

        The matter was assigned to Magistrate Judge Frank Maas for a determination of whether

Sacirbey should be extradited pursuant to Bosnia’s request. See In re The Extradition of Muhamed

Sacirbegovic, No. 03 Crim. Misc. 01, 2005 U.S. Dist. LEXIS 707, at *1 (S.D.N.Y. Jan. 19, 2005) (“Sacirbey

I”). Judge Maas held a hearing on December 23, 2003, during which the government introduced the

        9
         By contrast, the Cantonal Court’s related Order of Detention authorizes Sacirbey’s
detention for a “not . . . longer than one month.” J.A. 303 (“Decision for Detention,” Cantonal
Court in Sarajevo, Dec. 5, 2001).

                                                      7
following evidence in support of extradition: (1) the Cantonal Court’s August 20, 2001 Decision to

Investigate; (2) the Cantonal Court’s December 5, 2001 Decision for Detention and International

Arrest Warrant for Sacirbey; (3) the sworn statements of three witness; and (4) an affidavit from Robert

E. Dalton, the Assistant Legal Adviser for Treaty Affairs at the United States Department of State,

briefly explaining the history of the Treaty. See id. at *10-17; Appellees’ Br. 7-8.

        Sacirbey opposed extradition on the grounds that (1) there was no valid extradition treaty

between the United States and Bosnia, (2) the offense of Abuse of Office or Authority for which

extradition was sought failed to meet the Treaty requirements, (3) Bosnia had failed to charge him

formally with an extraditable offense; (4) Bosnia had failed to establish probable cause to believe that

he committed any crimes, and (5) his conduct fell within a Treaty exception for crimes of a political

character. Sacirbey I, 2005 U.S. Dist. LEXIS 707, at *2. In support of his case, Sacirbey offered his own

testimony, as well as the testimony of Paul Robert Williams, a former State Department employee and

current professor of law, and the declaration of Michael Hartmann, then an adviser to the State

Department on matters of criminal prosecution in Afghanistan, as an expert on Bosnian criminal law.

Sacirbey testified that the finances of the U.N. mission were haphazard during his tenure and that his

political adversaries were using a criminal investigation to retaliate against him. Id. at *20-25. Professor

Williams corroborated Sacirbey’s claims, testifying that “after Sacirbey left office, the party controlling

the Bosnian government changed hands, and the new party, ‘which was the former communist party,

essentially recloaked, had a very specific motive in going after members of the former regime to

discredit them for political reasons.’” Id. at *19-20.

        In an Opinion and Order dated January 19, 2005, Magistrate Judge Maas granted the extradition

request. Rejecting Sacirbey’s arguments, Magistrate Judge Maas concluded that (1) Bosnia had

succeeded to the Treaty, see id. at *33-34; (2) the offense of “abuse of authority” was sufficiently


                                                         8
equivalent to “embezzlement by public officers” to warrant extradition under the Treaty, see id. at *45;

(3) a formal criminal charge is not required by the Treaty, see id. at *47-48, (4) probable cause had been

established by the affidavits submitted in support of the extradition request, see id. at *57; and (5) the

political-crimes exception did not apply to allegations of embezzlement, see id. at *58-61. On January

25, 2005, Judge Maas issued a Certification of Extraditability and Order of Commitment. [A 794]

        Three months later, Sacirbey filed a petition for a writ of habeas corpus pursuant to 28 U.S.C

§ 2241 in the United States District Court for the Southern District of New York (Barbara S. Jones,

Judge).10 Observing that the scope of its review was limited to determining whether (1) the magistrate

judge had jurisdiction, (2) the charged offense fell within the Treaty and (3) there was a reasonable

ground to believe the accused guilty of the charged offense, the District Court denied Sacirbey’s

petition. See Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *19 (citing Fernandez v. Phillips, 268 U.S. 311,

312 (1925)).

        In his habeas petition, Sacirbey did not challenge Magistrate Judge Maas’s jurisdiction over

Bosnia’s extradition request, so that ground for habeas relief was effectively conceded. See id. at *19

n.10. Instead, he pressed the two other claims cognizable on habeas review, and made several

constitutional challenges to the adequacy of the proceedings before Magistrate Judge Maas.

        With respect to the second claim cognizable on habeas review, Sacirbey failed to persuade the

District Court that he was not “charged” with an extraditable offense.11 Sacirbey argued, inter alia, that

legal reforms in Bosnia had deprived the Cantonal Court of jurisdiction over this matter, thereby


        10
          Sacirbey could not appeal Magistrate Judge Maas’s decision because “[a]n order granting or
denying [extradition] is not appealable. An extraditee’s sole remedy from an adverse decision is to
seek a writ of habeas corpus; the Government’s sole remedy is to file a new complaint.” Ahmad v.
Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990) (internal citations omitted).

         Before Judge Jones, Sacirbey abandoned his argument that Bosnia did not succeed to the
        11

Treaty. See Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *21.

                                                      9
nullifying the arrest warrant for Sacirbey. At oral argument before the District Court, counsel for

Sacirbey emphasized, “The Cantonal Court is done. It does not exist . . . . The old system under which

my client was charged has disappeared.” J.A. 845 (Tr. of Proceedings 50:1-4, Oct. 4, 2005). In light of

the government’s concession that “[t]here is ambiguity” as to whether the Cantonal Court has

jurisdiction over the investigation of Sacirbey,” J.A. 851 (Tr. of Proceedings 56:15-16, Oct. 4, 2005), the

District Court authorized the parties to submit additional briefing on the question of whether a court

had jurisdiction over the investigation of Sacirbey.

        Pursuant to the District Court’s authorization, Sacirbey submitted declarations from his

Bosnian lawyer, Zlatan Terzic, and from Michael Hartmann, the same expert who had previously filed a

declaration in opposition to the government’s application to extradite Sacirbey. The Terzic declaration

stated that, based on Terzic’s personal inquiries, neither the Cantonal Court nor the Court of Bosnia

and Herzegovina (the “National Court”) “has been seized of the case against . . . Sacirbey. Therefore,

there is no forum available to us to approach for resolution, to petition for appropriate remedies, or to

challenge the propriety and legality of this allegedly ongoing investigation.” J.A. 871-72 (Nov. 22, 2005

Decl. of Zlatan Terzic ¶ 2). The Hartmann Declaration stated flatly that, “by the admissions of the

Bosnian [government] . . . neither the National nor Cantonal Court, nor the Cantonal Prosecutor, have

possession of the case. The only state organ not denying possession of the case but rather affirming its

possession is the office of the National Prosecutor.” J.A. 910 (Nov. 22, 2005 Decl. of Michael

Hartmann ¶ 25). Sacirbey argued that, because no court had jurisdiction over his case, he was not

charged with a crime, but only the target of an investigation.12

        12
           In a telephonic conference before Magistrate Judge Maas, Professor Cherif Bassiouni,
testifying on behalf of Sacirbey, suggested that it was within Bosnia’s power to dispel any ambiguity
caused by the changes its legal system. He testified as follows:

        As a matter of formal submissions[,] when an extradition is submitted[,] it is submitted by a

                                                       10
       In response, the government submitted two letters written by Amra Kosovic, Counselor to the

Bosnian Embassy in Washington, D.C. Kosovic’s first letter, dated October 11, 2005, stated that “[the

National Court] will proceed in the matter of [Sacirbey] if the request for extradition would be

approved by the appropriate authorities of [the] United States.” J.A. 960 (Oct. 11, 2005 Letter of Amra

Kosovic). A second letter, dated November 10, 2005, was more equivocal on the question of whether

the National Court had jurisdiction over the case. Kosovic’s letter stated in relevant part:

       The Cantonal Court . . . exists and hears all cases that are within its jurisdiction. During the
       period of justice system reforms, the [National Court] was established and the [National] Court
       can, on request of the parties in a case, decide to hear this case of extradition or any other case if the
       necessary requirements according to the [Bosnian Criminal Procedure Code are met]. As you
       were informed, [the] Prosecutor’s Office of Bosnia . . . has sent notice that [it] took the
       investigation which was previous[ly] held by [the] Prosecutor’s Office of Canton Sarajevo.

J.A. 961 (Nov. 10, 2005 Letter of Amra Kosovic) (emphasis added). Recognizing that these letters

“do[ ] not elaborate on the relationship between the Cantonal Court, which originally issued the arrest

warrant and demand for investigation against Mr. Sacirbey, and the [National Court], which now

appears to be . . . seized of jurisdiction over Mr. Sacirbey’s case,” the government argued that these




       government and attached to it are judicial documents. When Bosnia filed its request, it had a
       document presented by its executive branch[,] attached to it were the documents by the
       judicial branch in accordance with the treaty and in accordance with international practice.
       What happened is an intervening factor in which as far as we’re concerned we do not know
       its implications which says the person who issued that original warrant no longer ha[s] that
       authority.
       ...

       [T]he [United States] Government may be in a better position to save us all the time and
       effort to have to argue what is the intent of this new Bosnian law by getting some official
       judicial document from the requesting state [i.e., Bosnia] that confirms the ongoing validity
       of prior warrants . . . issued by Cantonal prosecutors.

J.A. 405-06 (Tr. of Proceedings 13:12-22, 14:22-15:1, Nov. 3, 2003). The Bosnian government did
not make a submission along the lines suggested by Professor Bassiouni.

                                                      11
letters nevertheless demonstrated that “a Bosnian court . . . would handle Mr. Sacirbey’s proceeding

upon his extradition.” J.A. 958 (Nov. 22, 2005 Letter of Assistant United States Attorney Anjan Sahni).

        The District Court agreed with the government. Explaining that the “issue arises because of

[Bosnia’s] change from a civil law to a common law system[13] since the issuance of the original

Demand against Sacirbey,” the District Court found that “the investigative functions which had been

vested in [Bosnia’s] civil law courts were transferred to independent prosecutors at the cantonal and

national levels[, and] a National Court system was established, equivalent to the United States federal

court system, and a new National Criminal Code was adopted.” Sacirbey, 2006 U.S. Dist. LEXIS 64577

at *23 n.12. The District Court concluded that, “by the time the United States Government filed the

Complaint, the Investigative Office of the Cantonal Court that had issued the Warrant Order no longer

had any power to enforce it.” Id. These developments were “quite beside the point,” in the view of the

District Court, because “[a]ll that is required is that Sacirbey be ‘charged,’ which he had been at the

time his extradition was sought, and continues to be.” Id. at *23.

        Relying on authority from the Seventh Circuit and a district court in our Circuit, the District

Court observed that “[t]he term ‘charge,’ in this context, has been interpreted by courts to require

something less than a formal charge: for example, the requirement has been deemed satisfied where a

subject is ‘accused,’ or the requesting nation ‘intends to prosecute’ him.” Id. at *21 (quoting In re

        13
           Apparently, this change refers to Bosnia’s transition from a system of court-conducted
prosecutions to an adversarial system with independent prosecutors and a neutral judge. It cannot
be gainsaid that the current administrative and political situation in Bosnia is uncertain. See USAID,
Bosnia-Herzegovinia: Overview, available at www.usaid.gov/locations/europe_eurasia/countries/ba/ (last
visited May 27, 2009) (“After extensive negotiations, the European Union (EU) signed a
Stabilization and Association agreement with [Bosnia] in 2008, the first step in the process of
becoming a candidate for EU membership. However, ethnic tensions and a largely dysfunctional,
multi-layered governance structure geared toward safeguarding the rights of the various ethnic
groups still hinder development. Reforms, such as establishing strong state-level institutions,
privatizing state-owned industry, fighting corruption, and making meaningful progress in the rule of
law, require continued effort.”).

                                                     12
Assarsson, 635 F.2d 1237, 1242 (7th Cir. 1980) (“Assarsson I”); Borodin v. Ashcroft, 136 F. Supp. 2d 125,

129 (E.D.N.Y. 2001)) (brackets omitted). The District Court held that the evidence showed Bosnia’s

intent to prosecute Sacirbey for abuse of authority. This determination was based on the record

developed in the proceedings before Judge Maas and on the two letters written by Kosovic, the

Bosnian Embassy counselor, which demonstrated to the District Court “a present intent to prosecute

Sacirbey in the National Court [of Bosnia].” Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *23 (emphasis

added).

          The District Court also determined that the charged offense, “abuse of authority,” fell within

the Treaty’s enumerated offenses—namely, the offense of embezzlement. See id. at *24 (citing Art. II

of the Treaty). It further held that the requirement of “dual criminality”—i.e., that the alleged conduct

constitute a criminal offense in both countries—was “easily satisfied” because “there are numerous

federal crimes for which Sacirbey could have been charged in the United States based on the allegations

against him.” Id. at *33. The political offense exception set forth in Article VI of the Treaty did not

bar Sacirbey’s extradition, according to the District Court, because the exception applied to “political

offenses—not political figures,” id. at *34, and the financial misconduct at issue here did not constitute a

political offense. Accordingly, the District Court concluded that the charged offense fell within the

scope of the Treaty.

          Turning to the third claim cognizable on habeas review of an extradition order, the District

Court determined that there was a reasonable basis to believe Sacirbey was guilty of the charged

offense. The District Court listed the evidence against Sacirbey:

          (i) there were significant shortfalls in the [U.N.] Mission’s account, over which Sacirbey had
          signature authority; (ii) Sacirbey refused to explain certain non-routine expenditures to Ministry
          representatives, even though [Bosnian] procedures do not allow for confidential expenditures;
          (iii) President Izetbegovic expressly denied that Sacirbey had been authorized to spend
          [Bosnian] funds on the ICJ and ICTY cases; (iv) Sacirbey represented that he would be able to


                                                      13
        restore some of the missing funds, but then failed to do so; (v) he may have evaded the efforts
        of [Bosnian] authorities to question him about the accounting problems; and (vi) he failed to
        account properly for personal advances that he had taken against the Mission account.

Id. at *38-39. In the District Court’s judgment, “[t]his evidence clearly support[ed] [Magistrate] Judge

Maas’s determination that a finder of fact reasonably could conclude that Sacirbey embezzled funds

from the Mission account and used them for his own personal needs.” Id. at *39 (internal quotation

marks omitted).

        The District Court also rejected Sacirbey’s constitutional challenges to the adequacy of the

proceedings before Magistrate Judge Maas. First, Sacirbey argued that the government’s refusal to

produce evidence relating to the role of United States officials in preparing or pursuing the extradition

request violated Brady v. Maryland, 373 U.S. 83 (1963). The District Court disagreed, explaining that

“[e]ven if Brady can be said to apply in the extradition context . . . Brady would not extend to Sacirbey’s

discovery requests . . . because Sacirbey’s requests were directed not at exculpatory evidence, but rather

information regarding the political motivations, if any, behind [Bosnia’s] request for his extradition.”

Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *44 (emphasis in original). Second, Sacirbey challenged

Magistrate Judge Maas’s refusal to reopen the extradition hearing to allow the submission of a reply

declaration in response to an expert declaration submitted by the government. The District Court

rejected the challenge because Sacirbey failed to show prejudice. Id. at *45-46. Third, Sacirbey urged

the District Court to consider the danger and deprivation of due process he would face if extradited to

Bosnia. Citing the “well-entrenched rule of non-inquiry” into the legal procedures of a country

requesting extradition pursuant to a treaty, the District Court did not entertain this challenge. Id. at *47;

see Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990) (“A consideration of the procedures that will or

may occur in the requesting country is not within the purview of a habeas corpus judge.”).




                                                     14
         Having made these determinations, the District Court denied Sacribey’s habeas corpus petition.

This appeal followed.

                                               DISCUSSION

         On appeal, Sacirbey reiterates the arguments that he presented to the District Court, including

that he was not charged with an extraditable offense under the Treaty. This argument presents a

question of first impression for our Court, requiring us to examine a relatively undeveloped area of

law.14

A.       Standard of Review

         The basis for Sacirbey’s petition for habeas corpus is that, by means of the extradition

proceedings against him in the United States District Court for the Southern District of New York, he

has been placed “in custody in violation of the Constitution or laws or treaties of the United States.”

28 U.S.C. § 2241(c)(3). Our review of the denial of a petition for habeas corpus in extradition

proceedings is “narrow” in scope. Murphy v. United States, 199 F.3d 599, 601 (2d Cir. 1999). A

reviewing court can consider only three issues: “(1) whether the judge below had jurisdiction; (2)

whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence

presented by the Government established probable cause to extradite.” Cheung v. United States, 213 F.3d

82, 88 (2d Cir. 2000); see also Fernandez, 268 U.S. at 312.

         We are not at liberty to second guess the determination of the magistrate judge to issue an order

certifying a request for extradition. Under our precedents, “[h]abeas corpus is not a writ of error, and it

is not a means of rehearing what the [extradition] judge or magistrate already has decided.” Ahmad, 910



          Our efforts in this regard are aided by the thorough and well-reasoned opinions of the
         14

judges who have previously considered this matter. That our conclusion differs from theirs should
not be read to disparage in any way whatsoever the conscientious handling of this case by the
District Court.

                                                      15
F.2d at 1066; accord Garcia-Guillern v. United States, 450 F.2d 1189, 1192-93 (5th Cir. 1971) (“A writ of

habeas corpus cannot be used to hear for a second time the findings of the court which conducted the

initial hearing. As has been said often, habeas corpus cannot take the place of a writ of error.”).

        It is nevertheless “our duty . . . to ensur[e] that the applicable provisions of the treaty and the

governing American statutes are complied with.” Petrushansky v. Marasco, 325 F.2d 562, 565 (2d Cir.

1963) (Marshall, J.); see also Murphy, 199 F.3d at 601-02 (“The function of habeas review in this context

is to test only the legality of the extradition proceedings.” (internal quotation marks omitted)).

        With these principles in mind, we review the factual findings of the District Court for clear

error and its legal determinations de novo. See Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009)

(providing the general standard for review of habeas corpus petitions); cf. Armstrong v. Guccione, 470 F.3d

89, 96 (2d Cir. 2006) (reviewing de novo a petitioner’s legal arguments—raised under 28 U.S.C. §

2241—that his confinement for civil contempt violated the Fifth Amendment and several federal

statutes).

B.      Sacirbey Was Not Charged with an Extraditable Offense under the Treaty.

        Sacirbey argues that he has not been “charged” with an extraditable offense pursuant to the

terms of the Treaty.15 On Sacirbey’s reading of the record, the evidence shows that an investigative

warrant for his arrest was issued in 2001, but the issuing court was subsequently dissolved, with the

consequence that “no [c]ourt in Bosnia is currently seized of the matter.” Appellant’s Br. 24 (emphasis

in original). In Sacirbey’s view, the putative interest that Bosnia asserted in correspondence cannot

remedy the inadequacy of the warrant that underlies Bosnia’s extradition request. The government

responds that the Treaty “does not condition extradition on formal charges,” and “all that need be


        15
          Because we conclude that Sacirbey’s argument on this point has merit, we do not consider
the other grounds for relief raised in his petition.

                                                     16
shown is that the requesting nation intends to prosecute the extraditee.” Appellees’ Br. 34-35. Under

the government’s reading of the record, “Bosnia has repeatedly and unambiguously” indicated its

intention to prosecute Sacirbey. Id. at 35. As noted above, the District Court agreed with the

government’s view of the evidence. Relying on non-binding precedents construing similar language in

other treaties, the District Court observed that “[t]he term ‘charge,’ in this context, has been interpreted

by courts to require something less than a formal charge: for example, the requirement has been

deemed satisfied where a subject is ‘accused,’ or the requesting nation ‘intend[s] to prosecute’ him.”

Sacirbey II, 2006 U.S. Dist. LEXIS 64577, at *21 (internal citations omitted).

        In one of the cases on which the District Court relied, Assarsson I, the petitioner argued that

because “a formal document, called a ‘charge’ in the Swedish criminal code, . . . ha[d] not yet been filed

against him, he [could not] be extradited.” 635 F.2d at 1239. The Seventh Circuit rejected this

argument on the grounds that (1) “[t]he filing of formal charges is not stated anywhere [in the treaty] as

a prerequisite to extradition,” id. at 1242; and (2) U.S. courts are not empowered to “review compliance

with foreign criminal procedure” in the course of ordering extradition pursuant to a valid treaty, id. at

1244. The Eighth Circuit reached the same conclusion in a case involving the brother of the petitioner

in Assarsson I. In re Assarsson, 687 F.2d 1157 (8th Cir. 1982) (“Assarsson II”). The Eighth Circuit

adopted the Seventh Circuit’s holding that, where “[t]he filing of formal charges is not stated anywhere

as a prerequisite to extradition . . . , we may not review the magistrate’s determination that [the

extraditee] was charged under the terms of the treaty.” Assarsson II, 687 F.2d at 1160 (quoting Assarsson

I, 635 F.2d 1242).

        The government informs us that the reasoning of Assarsson I and Assarsson II, has been adopted

by the Ninth Circuit as well. Appellees’ Br. 35; see Emami v. U.S. Dist. Court for the N. Dist. of Cal., 834

F.2d 1444, 1448-49 (9th Cir. 1987). Like the Seventh and Eighth Circuits, the Ninth Circuit determined


                                                      17
that, where an extradition treaty does not condition extradition on the filing of formal charges, it would

not read such a requirement into the treaty. That court explained, “We refrain from interpreting the

requirements of German criminal procedure [with respect to the filing of a public charge] both out of

respect for German sovereignty and because we recognize the chance of erroneous interpretation is

much greater when we try to construe the law of a country whose legal system is not based on common

law principles.” Id. at 1449.16

        Similar “formal-charge” arguments have been rejected by other courts, including district courts

in this Circuit. These courts have also addressed the question of how to establish that a crime has been

“charged” for the purposes of an extradition treaty, holding that a demonstrated intent to prosecute on

the part of the country requesting extradition is sufficient. See Borodin v. Ashcroft, 136 F. Supp. 2d 125,

130 (E.D.N.Y. 2001) (“American courts cannot become enmeshed in the technicalities of foreign

criminal processes, and . . . the ‘charge’ requirement is satisfied by a requesting nation’s intent to prosecute

as evidenced by the record.” (emphasis added)); In re La Salvia, No. 84 Cr. Misc. 1, 1986 U.S. Dist. LEXIS

29789, at *16-17 (S.D.N.Y. Jan. 31, 1986) (“[T]he reference to ‘persons . . . charged’ in [the treaty] . . . is

a generic term referring to those persons whose extradition is sought so that they may be brought to trial.”


        16
          The government also relies on the conclusory statement of the Fifth Circuit that “[the]
contention that [extraditee] has never been properly or legally charged with a crime in accordance
with the treaty is . . . not appropriate for consideration [on habeas review].” Garcia-Guillern, 450 F.2d
at 1193 n.1. This statement is at odds with the determinations of the Seventh, Eighth and Ninth
Circuits that they have jurisdiction to consider this question on habeas review. See Emami, 834 F.2d
at 1448 (“Whether a treaty conditions extradition upon the filing of formal charges is a question
cognizable on appeal from the denial of a petition for habeas corpus.”); Assarsson II, 687 F.2d at
1160 (“‘The existence of formal charges can be reviewable, then, only if the treaty itself conditions
extradition for the offenses listed . . . on the existence of formal charges.’” (quoting Assarsson I, 635
F.2d at 1241)). We note that the Fifth Circuit’s statement is broader than the government’s position,
which is that the status of the charges against Sacirbey are not reviewable on a habeas corpus
petition because the Treaty does not require formal charges as a condition of extradition. See
Appellees’ Br. 38 (“[The Treaty] does not require as a condition of extradition that an extraditee be
formally charged. Accordingly, Sacirbey’s arguments regarding the status of his charges in Bosnia
are beyond the purview of habeas review.”).
                                                       18
(emphasis added)); cf. In re Extradition of Lehming, 951 F. Supp. 505, 512 (D. Del. 1996) (“[S]ufficient

evidence of an intent to prosecute exists making extradition proper under these circumstances.”) (emphasis

added).

          The government interprets these precedents to stand for the following proposition: When

extradition treaties state that an individual must be “charged” with a crime in order to be extradited, but

do not require the filing of an accusatory instrument, a state seeking extradition need show only an

intent to prosecute the individual in order to satisfy the requirement that he be “charged” with a crime.

This proposition appears reasonable insofar as it gives meaning to treaty language stating that an

individual must be “charged” with an offense in order to be extradited, while avoiding unwarranted

incursions into the fine details of foreign criminal procedure. See, e.g., Jhirad v. Ferrandina, 536 F.2d 478,

484-85 (2d Cir. 1976) (“ It is not the business of our courts to assume the responsibility for supervising

the integrity of the judicial system of another sovereign nation. Such an assumption would directly

conflict with the principle of comity upon which extradition is based.”). Applying that teaching to this

case, the government urges us to conclude that, because the Treaty requires that an individual be

“charged” with a crime but does not require that formal charges be brought, a “clear intent” to

prosecute is sufficient to satisfy the terms of the Treaty. Appellees’ Br. 44.

          Sacirbey responds that one additional proposition follows from the cases cited by the District

Court and the government—“that there at least be a judicial body in the requesting state seized of the

matter, to which the extraditee can petition for relief.” Appellant’s Reply Br. 8. Sacirbey observes that,

in all of these cases, an “instituted judicial proceeding,” id. was underway in the requesting country. See

Emami, 834 F.2d at 1447 (Bochum Local Court in Germany); Assarsson II, 687 F.2d at 1158 (Malmo

District Court in Sweden); Assarsson I, 635 F.2d at 1239 (Malmo District Court in Sweden); Borodin, 136

F. Supp. 2d at 127 (proceedings before a Swiss Examining Magistrate); In re Extradition of Lehming, 951


                                                      19
F. Supp. at 508 (Saarbrucken District Court in Germany); In re La Salvia, 1986 U.S. Dist. LEXIS 29789,

at *21 (Federal Court of First Instance in Penal and Correctional Matters in Argentina). Based on this

observation, Sacirbey argues that the Treaty should be read to require a showing of “[t]he presence of a

judicial authority conducting proceedings toward prosecution of the potential extraditee.” Appellant’s

Br. 23. In the absence of such a requirement, Sacirbey fears that “an extraditee may . . . be handed over

to political officers of a foreign country for arbitrary and potentially brutal prosecution.” Id. at 24. He

urges us to conclude that, “because no existing [c]ourt has issued a warrant for his arrest or assumed

responsibility for his prosecution or protection,” he has not been “charged” with a crime under the

Treaty. Appellant’s Reply Br. 11.

        We appreciate the force of Sacirbey’s concerns. Indeed, he may be right that extradition treaties

should contain provisions ensuring that a judicial body in the requesting country stand ready to ensure

procedural regularity upon the transfer of custody over the accused. Whether or not the United States

should condition extradition—particularly the extradition of its own citizens—on such safeguards is

not, however, a question over which this Court has jurisdiction. “[T]he question of the wisdom of

extradition remains for the executive branch to decide.” Murphy, 199 F.3d at 602 (internal quotation

marks omitted). Our power, by contrast, is “limited to ensuring that the applicable provisions of the

treaty and the governing American statutes are complied with.” Petrushansky, 325 F.2d at 565.

        In keeping with that limited authority, we examine the requirements of the extradition treaty in

this case. “In construing a treaty, as in construing a statute, we first look to its terms to determine its

meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992); see also Kahn Lucas Lancaster v. Lark

Int’l, 186 F.3d 210, 215 (2d Cir. 1999) (“Treaties are construed in much the same manner as statutes[,]

[and their interpretation] must account for the . . . full text, language as well as punctuation, structure

and subject matter.” (internal citations and quotation marks omitted)). A basic canon of statutory


                                                     20
interpretation, which is equally applicable to interpreting treaties, is to avoid readings that “render

statutory language surplusage” or “redundant.” Filler v. Hanvit Bank, 378 F.3d 213, 220 (2d Cir. 2004);

cf. Restatement (Second) of Contracts § 203(a) (1981) (“[A]n interpretation which gives a reasonable,

lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part

unreasonable, unlawful, or of no effect.”). In addition, we have observed that “the meaning of one

term may be determined by reference to the terms it is associated with, and that where specific words

follow a general word, the specific words restrict application of the general term to things that are

similar to those enumerated.” City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 401 (2d Cir. 2008)

(brackets and internal quotation marks omitted); cf. Restatement (Second) of Contracts § 203(c) (1981)

(“[S]pecific terms and exact terms are given greater weight than general language.”).

         In the instant case, our review focuses on “whether the offense charged is extraditable under the

relevant treaty.” Cheung, 213 F.3d at 88 (emphasis added). Article I of the Treaty sets forth a

foundational principle that the states parties “mutually agree to deliver up persons who[ ] hav[e] been

charged with or convicted of any of the crimes and offenses” (emphasis added), which are supplied in

Article II. The remaining articles of the Treaty define the contours of the broad agreement in Article I,

including certain limitations on the breadth of the term “charged.” Most important to the instant case,

Article III of the Treaty imposes a requirement that when “[a] fugitive is merely charged with crime, a

duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions

or other evidence upon which such warrant was issued, shall be produced.”17 Treaty art. III (emphases added).

In other words, the “warrant of arrest” is a formal legal instrument that is required by the Treaty to

show that a person has been charged with an extraditable crime. See art. IV (describing the Article III



          Articles V and VI of the Treaty provide additional limitations on Article I’s general
         17

extradition agreement for a country’s own citizens, id. at art. V, and for people accused of political
crimes, id. at art. VI.
                                                   21
warrant requirement as a “presentation of formal proofs” (emphasis added)). Accordingly, we interpret

these provisions to mean that the proof required under the Treaty to establish that an individual has

been “charged” with a crime is a valid arrest warrant and the evidence submitted in order to obtain that

warrant. Any other reading would ignore the express terms of Article III. Cf. Filler, 378 F.3d at 220

(stating that courts should avoid readings that “render statutory language surplusage”).

        Under this construction of the Treaty, Bosnia can satisfy the requirement that Sacirbey be

“charged” with a crime only if it can provide, inter alia, a valid warrant for his arrest. Bosnia seeks the

extradition of Sacirbey pursuant to an “international arrest warrant” issued by the Cantonal Court in

Sarajevo. However, as the District Court found, the Cantonal Court currently lacks jurisdiction over

the investigation of Sacirbey’s alleged crimes and “no longer ha[s] any power to enforce” the arrest

warrant. Sacirbey, 2006 U.S. Dist. LEXIS 64577, at *23 n.12.18 Such a warrant—one issued by a court

lacking jurisdiction to enforce it—has been described in another context by the Supreme Court as a

“dead letter.” United States v. Verdugo-Urquidez, 494 U.S. 259, 274 (1990) (rejecting an argument that a

warrant issued by a magistrate in the United States would have force in Mexico); see also In re Terrorist

Bombings of U.S. Embassies in E. Afr., 552 F.3d 157, 171 n.8 (2d Cir. 2008) (describing the power

conferred by a valid search warrant). The arrest warrant for Sacirbey was never re-issued—or otherwise

ratified—by a Bosnian court with jurisdiction over this case.19 Accordingly, the existence of this arrest




        18
           The government does not argue that the District Court’s findings of fact on the
jurisdiction of the Cantonal Court are erroneous, much less clearly erroneous, nor does our review
of the record lead us to question the District Court’s determination.
        19
          In her dissent, Judge Kearse argues that the original warrant for Sacirbey’s arrest was
transferred to the National Court. However, she provides no evidence or citations to the record
that would support this interpretation. Even assuming arguendo that Sacirbey’s case was transferred,
there is no indication that the Bosnia National Court re-issued, ratified, or acknowledged in any
fashion the arrest warrant.
                                                    22
warrant—issued by a court ousted of jurisdiction and no longer able to enforce it—cannot satisfy the

Treaty’s requirement that Bosnia demonstrate a “charge” by producing a valid arrest warrant.

        Consistent with its interpretation of the precedents discussed above, the government maintains

that the defect in Bosnia’s application can be remedied by official statements indicating Bosnia’s intent

to prosecute Sacirbey for his alleged crimes. The government points to letters from various Bosnian

officials that allegedly show an intention to prosecute Sacirbey, but proof of such an intention is not

what the Treaty requires.20 Even if it did, these letters are equivocal, at best, on the question of whether

Bosnian authorities intend to prosecute Sacirbey for his alleged crimes. The letter dated October 2,

2003 from Assistant United States Attorney E. Danya Perry to Magistrate Judge Mass states: “[T]he

Cantonal Prosecutor, Mustafa Bisic, confirmed that there is an ongoing criminal investigation against

Sacirbey” and that the Bosnian government sought extradition to further that investigation. J.A 383.

The virtually illegible attachment to the October 2 letter also refers to an “investigation against

Sacirbey” but does not indicate an intention to prosecute, rather than merely investigate, him. Id. at

385.

        The letters from Amra Kosovic, Counselor to the Bosnian Embassy in Washington DC,

similarly confirm only that Sacirbey is under investigation in Bosnia, not that the Bosnian government

seeks to prosecute him. Her letter of October 11, 2005 states ambiguously that “the Court of Bosnia

and Herzegovina will proceed in the Matter of Mohamed Sacirbegovic if the request for extradition

would be approved.” Id. at 960. This statement does not hint at how the Bosnian court will

proceed—that is, whether by immediate prosecution or by permitting the prosecutor to undertake

further investigation. Kosovic’s letter of November 10, 2005 does nothing to clarify the matter. In


        20
          We take no position on what showing is required when an extradition treaty does not
provide any indication of how a requesting state must show that an accused has been “charged”
with a crime.
                                                  23
that letter, she states that the “Cantonal Court—the one that issued the warrant and demand for

investigation of Mr. Muhamed Sacirbegovic—was [not] abolished by the justice system reforms,” and

she confirms that the “Court exists and hears all cases that are within its jurisdiction.” J.A 961. Of

course, we know that Sacirbey’s case is no longer within that court’s jurisdiction pursuant to Bosnia’s

judicial reforms. Sacirbey, 2006 U.S. Dist. LEXIS 64577, at *23 n.12. Perhaps recognizing this fact, the

letter notes that “the Court of Bosnia and Herzegovina was established and . . . can, on request of the parties

in a case, decide to hear this case of extradition.” J.A. 961 (emphasis added). Contradicting this conditional

statement regarding the Bosnian court’s jurisdiction, Kosovic reiterates, verbatim from her earlier letter,

that “[t]he Court of Bosnia and Herzegovina will proceed in the Matter of Mohamed Sacirbegovic if the

request for extradition would be approved.” Id. (emphasis added). In addition, she observes that the

“Prosecutor’s office of Bosnia and Herzegovina . . . took the investigation which was previously held by

the Prosecutor’s Office of the Canton Sarajevo.” Id. Again, the letter is devoid of any statement that

Sacirbey is sought for prosecution in Bosnia.21

        That nothing more than a criminal investigation of Sacirbey is now pending in Bosnia finds

further support in a letter, dated March 3, 2005, from the Cantonal Court in Sarajevo stating that “no

indictment against [Sacirbey] . . . has been brought before the Municipal Court Sarajevo or the Cantonal

Court in Sarajevo.” Id. at 749. This letter states that the “criminal investigation against [him] . . . was


         In her dissenting opinion, Judge Kearse asserts that “will proceed” reflects an active intent
        21

to prosecute by the Bosnian government—a contention for which she provides no supporting
authority. Although her interpretation is one feasible reading, the letters are ambiguous. It is that
ambiguity which makes us unable to derive from them an active intent to prosecute.

         Judge Kearse argues further that we cannot overturn the District Court’s “factual finding” as
to the meaning of the letters unless that finding is clearly erroneous. We do not base our decision
on the meaning of the letters, however, and offer our interpretation of the letters only in response to
the argument that an “intent to prosecute” is present. As a matter of law, we hold only that the
Treaty requires a valid arrest warrant; there is no valid warrant in the present case; and the terms of
the Treaty were, accordingly, not met. Whether an intent to prosecute can be proven by the letters
is therefore irrelevant to our holding.
                                                      24
referred to the Cantonal Prosecutor’s Office Sarajevo on 08/06/2003 for appropriate action.” Id.

While formal charges are not required to grant an extradition request, this letter corroborates that an

investigation of Sacirbey in the prosecutor’s office—rather than a prosecution in court22—is pending in

Bosnia. Based on our review of this evidence, we are dubious that Bosnia seeks to prosecute Sacirbey

for a crime.23

        In any event, whether Bosnia has “intent to prosecute” Sacirbey is not the relevant inquiry. As

explained above, the Treaty requires a valid arrest warrant as proof that an individual sought for

extradition has been charged with a crime. That requirement is not satisfied by a demonstration of

intent to prosecute. The necessary showing has not been made in this case. All of the “formal

charges” cases cited by the government indicate the existence of a valid arrest warrant issued by a

foreign tribunal. See Emami, 834 F.2d at 1447 (arrest warrant issued by a German court); Assarsson II,

687 F.2d at 1158 (arrest declaration issued by Swedish court); Assarsson I, 635 F.2d at 1239 (arrest

declaration issued by Swedish court); Borodin, 136 F. Supp. 2d at 127 (arrest warrant issued by Swiss

magistrate); In re Extradition of Lehming, 951 F. Supp. at 508 (arrest warrant issued by a German court);

In re La Salvia, 1986 U.S. Dist. LEXIS 29789, at *21 (arrest warrant issued by Argentine court). None

of those cases involve a situation where the issuing tribunal subsequently lost jurisdiction over the case




        22
          Judge Kearse relies on Bosnia’s Criminal Procedure Code to support her argument and
also to infer the functions and the jurisdictional reach of the National Court. However, she provides
no indication, through Bosnian precedent or otherwise, that Bosnian courts would interpret the
code provisions in the way that she has chosen to interpret them, and her position is contradicted by
the evidence actually in the record: the Cantonal Court was dissolved; no Bosnian authority has
provided a clear statement as to whether there is a prosecution now pending in a Bosnian court; and
Bosnian authorities have issued only ambiguous letters regarding the status of Sacirbey’s case.
        23
          As described ante, the District Court reached the opposite conclusion, see Sacirbey, 2006 U.S.
Dist. LEXIS 64577, at *23 (“The letters plainly indicate a present intent to prosecute Sacirbey in the
National Court.”), but we need not decide whether this ruling was erroneous because it is irrelevant
to Sacirbey’s extradition.
                                                    25
owing to a constitutional reorganization, regime change, or any other reason, such that the arrest

warrant was no longer valid.

        Because the record contains no evidence of a valid warrant authorizing the arrest of Sacirbey,

Sacirbey has not been charged with an extraditable offense pursuant to the terms of the Treaty. This

defect falls within the narrow category of issues that is cognizable on habeas review of an extradition

order, see Cheung, 213 F.3d at 88, and we therefore grant Sacirbey’s petition for a writ of habeas corpus.

                                        CONCLUSION

        For the reasons stated above, we conclude that Sacirbey has not been “charged” with an

extraditable offense pursuant to the terms of the extradition treaty between the United States and

Bosnia. He is therefore entitled to habeas relief.

        We also note, in passing, that, if Bosnia renews its request to extradite Sacirbey, the Department

of State is authorized by the extradition treaty and by statute to refrain from extraditing Sacirbey

because he is a citizen of the United States. An exercise of that discretion might be warranted if Bosnia

renews its extradition request and the Department of State determines that the investigation into

Sacirbey’s tenure as United Nations Ambassador is motivated by a political vendetta, or that Sacirbey

faces mistreatment if he is delivered into Bosnian custody, or for any of the other grounds available to

the Department to decline extradition—or, indeed, for no reason at all, as the Treaty does not require

any justification for declining to extradite U.S. citizens. See Treaty for Mutual Extradition of Fugitives

from Justice, U.S.-Serb., art. V, Mar. 7, 1902 (date of ratification by the President), 32 Stat. 1890, 12

Bevans 1238 (“Neither of the high contracting parties shall be bound to deliver up its own citizens or

subjects under the stipulations of this Treaty.”). That determination rests, of course, with the Executive

Branch of Government, not the Judiciary.




                                                     26
               Accordingly, the order of the District Court denying the petition is REVERSED, and

Sacirbey’s petition for a writ of habeas corpus is hereby GRANTED. The restrictions imposed on

Sacirbey’s liberty are VACATED and he shall not be extradited to Bosnia pursuant to the formal

requests that have been made.

       It is so ordered.




                                                 27
