United States of America v. Lyubomir Mihailoy Yordanov, No. 2:2016cv00170 - Document 54 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION AND ORDER: 1. DENYING FUGITIVE'S MOTION TO DISMISS; AND 2. CERTIFYING EXTRADITABILITY by Magistrate Judge Charles F. Eick. The Motion to Dismiss is denied. Based on the findings, and pursuant to 18 U.S.C. section 3184, this Court certifies that it has found Lyobomir Mihailov Yordanov extraditable to Bulgaria with respect to the charge pending against him in Bulgaria. It is Further Ordered that Luybomir Mihailov Yordanov shall remain in committed to the custody of the United States Marshal, to be confined without bail until he is surrendered to the Government of Bulgaria pursuant to the applicable provisions of the Treaty. (See document for further information.) (sp)

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

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