United States District Court, D. Nevada
IN THE MATTER OF THE EXTRADITION OF MOHAMMAD SAFDAR GOHIR
ORDER REGARDING DETENTION PENDING EXTRADITION
C. W. HOFFMAN, Jr., Magistrate Judge.
On May 5, 2014, the United States filed a Complaint for Provisional Arrest with a View Towards Extradition. (#1). The complaint was directed toward Mohammad Safdar Gohir and requested his provisional arrest pending a formal extradition hearing. After reviewing the complaint, the undersigned determined the terms of the extradition treaty between the United States and Germany for provisional arrest had been met and issued an arrest warrant. He was arrested on May 4 and appeared before the undersigned on May 5, 2014. Subsequent hearings were held on May 6, 2014, and May 12, 2014. The issues regarding bail and compliance with treaty obligations have also been extensive briefed in Gohir's Brief regarding Bail and Detention (#8), filed May 9, 2014; the Government's Response and Memorandum in Opposition to Bail (#9), filed May 9, 2014; and Gohir's Reply Brief (#11), filed May 12, 2014. After consideration of the briefing and the parties arguments raised during the hearings on this matter, the undersigned ordered Gohir detained pending further court proceedings for the reasons set forth herein.
On May 5, 2014, the Government filed a complaint for provisional arrest with a view towards extradition pursuant to 18 U.S.C. § 3184 and the extradition treaty between the United States and Germany. The complaint was submitted by the United States Attorney on behalf of the "United States in fulfilling its treaty obligation to Germany." See Compl. at ¶ 1. The complaint indicates that the treaty "provides in article 16 for the provisional arrest and detention of alleged fugitives pending the submission of a formal request for extradition and supporting documents[.]" Id. ¶¶ 2, 3. The complaint also indicates that "the Government of Germany has asked the United States for the provisional arrest of [Gohir] with a view towards his extradition[.]" Id. ¶ 4. The complaint alleges that "according to the information provided by the requesting state" an arrest warrant was issued in Germany on May 4, 2014 "by the District Court of Frankfurt, at Frankfurt, Germany[.]" Id. ¶ 5. The complaint states that Gohir "was charged with jointly-committed tax evasion... in violation of Fiscal Code of Germany, Section 370, subsection 1 no. 1, subsection 3 no. 2 and 5, Sections 149 and 150, subsection 2, and 34, involving tax evasion; and in violation of Sections 25 subsection 2, and 53 of the German Criminal Code, for offenses committed within the jurisdiction of Germany[.]" Id. The complaint sets forth extensive factual allegations (approximately 11 pages) underlying the issuance of the warrant in Germany. Id ¶ 6, pgs. 2-12. It also references the evidence in the case, which includes: (1) accounting documents, (2) confessed statements of other convicted on similar charges implicating Gohir, (3) positive photographic identification of Gohir by witnesses, (4) seized communications between the persons accused and others, and (5) witness statements. Id. at 11:19-12:10. The complaint notes that the charges are extraditable under Article 2 of the extradition treaty, and that Germany "has represented that it will submit a formal request for extradition, supported by the documents specified in the treaty, within the time required under the treaty[.]" Id. ¶¶ 7, 9. Based on the information set forth in the complaint, a warrant for provisional arrest issued.
1. May 5, 2014 Hearing
Subsequent to his provisional arrest, Gohir appeared on May 5, 2014, during the course of the undersigned's initial appearance calendar. Gohir indicated that he had not been provided a copy of the complaint and had not had an opportunity to confer with his counsel. He requested a brief continuance so that he could review the complaint, which was granted. He was remanded to custody pending the continued hearing.
2. May 6, 2014 Hearing
Gohir appeared on May 6, 2014 for the continued hearing after having had the opportunity to review the complaint with his retained counsel. At the outset, the undersigned indicated his intent to schedule an extradition hearing to determine whether to certify Gohir's extradition to Germany. It was further noted that this was a provisional arrest and the formal extradition request had not yet been received. The Government indicated that Germany would make its formal request within the time frame permitted under the treaty. The Government further indicated its belief that because an extradition hearing is not technically a criminal proceeding, a separate probable cause hearing on the arrest was not required prior to the actual extradition hearing.
Gohir argued that, rather than a probable cause hearing, the Government is required to "authenticate" that the provisions of Article 16 of the extradition treaty had been met to demonstrate that the Court had subject-matter jurisdiction in the first instance. He contends that the Court did not have subject matter jurisdiction to issue the provisional arrest because the procedural requirements of Article 16 of the extradition treaty had not been met. His counsel argued that the treaty "specifically states" that there must be "some showing" that the Government of Germany has issued the request for provisional arrest. She further argued that the arrest warrant referenced and set forth in the complaint was issued by the equivalent of a "county level court" and not the German Ministry of Justice, Ministry of Defense, or any other official channel of the country of Germany. The arrest warrant was, in Gohir's view, insufficient to support provisional arrest.
In response, the Government asserted that the terms of the treaty had been met when the United States Department of Justice - Office of International Assistance ("OIA") was contacted by the Ministry of Justice for the Federal Republic of German and the provisional arrest requested. The information underlying the complaint, including the arrest warrant issued in Frankfurt, was supplied by German officials in the Ministry of Justice directly to OIA. Upon receipt, OIA relayed the request and supporting information to the United States Attorney in Nevada, who drafted and filed the complaint upon which the provisional arrest warrant issued.
Gohir maintained that the arrest warrant issued in Frankfurt, Germany and referenced in support of the complaint for a provisional arrest warrant was insufficient. Based on her own independent research, Gohir's counsel proffered that the warrant was issued by the equivalent of a "municipal court, " not a district court. Thus, she argued, the arrest warrant was not issued from the Government of Germany and was "inconsistent with the plain language of the treaty." She further argued that the purpose of serving "diplomatic relations" was not advanced by accepting the information in the complaint and was out of touch with statutory and case law.
Concerned that Gohir's counsel was conflating the requirements for certification of extradition with those for provisional arrest, the Court inquired as to whether Gohir's counsel believed there was a difference between those two. She indicated that she did not and, consequently, the complaint for provisional arrest was infirm and must be dismissed because it was issued by "a court" and not the German government. She rejected the notion that the Government could proceed by proffer on the provisional arrest, arguing that the Government is required to make an evidentiary showing that the terms of the treaty had been met.
The Government objected to the narrow construction, noting that 18 U.S.C. § 3190, referenced by Gohir's counsel in support of her argument for an evidentiary showing at the provisional arrest stage, only applied during the formal extradition hearing. The Government conceded that the burden of extraditability must be met during the extradition hearing, but argued that it need not be met at the provisional arrest stage. Gohir reaffirmed his position and requested that the complaint be dismissed, the provisional arrest warrant quashed, and he be released from custody. The request was denied because the complaint for provisional arrest, on its face, satisfied the requirements of Article 16 of the extradition treaty.
After the Court made its ruling, Gohir shifted his argument and claimed that the obligation to demonstrate "urgency" under Article 16 had not been met. He requested that he be released pending additional hearings. Arguing that the requirements of Article 16, including urgency, had been met, the Government requested that Gohir be detained pending further hearings. The Government further requested that a hearing be set approximately 40 days out to allow the German government to determine whether it would make a formal extradition request. Noting the heightened review for bail determinations in the extradition context, Gohir argued that special circumstances supported his release, including: (1) that there is no urgency in this matter as Gohir had recently traveled to Germany without incident (and without being informed of the charges), (2) that he is not a flight risk, and (3) that his health mandated release.
After hearing the parties' arguments, the Court set a hearing for Monday, June 16, 2014. Noting that the Bail Reform Act, 18 U.S.C. 3141 et seq. did not apply in the extradition context, the undersigned indicated that Gohir did not appear to be a flight risk or danger to the community and could be adequately monitored with stringent conditions. Calling this decision "unprecedented, " the Government requested a stay to allow for appeal. The request was granted and a hearing set for Monday, May 12, 2014 to allow for further briefing and argument on the issue of detention. Gohir's request to be released pending the continued hearing was denied.
3. May 12, 2014 Hearing
A. Gohir Detention ...