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Bozilov v. Seifert

filed*fn*: June 26, 1992.

EMIL BOZILOV, PETITIONER-APPELLANT,
v.
WAYNE SEIFERT, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-91-2184-DWW. David W. Williams, Senior Judge, Presiding.

Before: James R. Browning, Jerome Farris, Circuit Judges, and Lloyd D. George, District Judge.*fn** Opinion by Judge Farris.

Author: Farris

FARRIS, Circuit Judge:

Emil Ananiev Bozilov appeals the denial of his writ of habeas corpus challenging an extradition order pursuant to 18 U.S.C. § 3184 and the Extradition Treaty between the United States and the Federal Republic of Germany. He argues that the writ was improperly denied because: 1) the dual criminality requirement for extradition was not satisfied; 2) there was no probable cause; and 3) Germany's extradition request was untimely. We affirm.

FACTS

On September 19, 1990, the German Criminal Court in Flensberg issued an international warrant for the arrest of Bozilov for narcotics trafficking. On November 23, 1990, United States Magistrate Brown issued a warrant for Bozilov's arrest, pending an extradition hearing pursuant to 18 U.S.C. § 3184. On December 13th, Bozilov was arrested.

By the terms of the Treaty, Germany was required to make a formal extradition request within forty days of the arrest. On January 23, 1991, Germany submitted its request to the American Embassy in Bonn. The request alleged that Bozilov used German couriers to operate an international drug smuggling operation based in Los Angeles. Germany also requested and received a twenty day extension. On February 12th, Germany filed its formal extradition request with the local American district court.

On April 9, 1991, Magistrate Kronenberg held Bozilov's extradition hearing. On April 23rd, Bozilov filed a writ of habeas corpus challenging his extradition proceeding. Magistrate Kronenberg granted extradition on April 30th. District Judge Williams denied the writ on July 11th. The district court found that: 1) probable cause existed for Bozilov's extradition; 2) Germany had jurisdiction over the alleged offenses; and 3) the request met the Treaty time requirements. This appeal followed.

Discussion

An extradition order cannot be directly appealed. Collins v. Miller, 252 U.S. 364, 369, 64 L. Ed. 616, 40 S. Ct. 347 (1920). The defendant must file a petition for habeas corpus challenging the order. Artukovic v. Rison, 784 F.2d 1354, 1355 (9th Cir. 1986). Our review is limited to whether: 1) the court had jurisdiction; 2) the offense charged is within the extradition treaty; and 3) any evidence supported a determination that there was reasonable grounds to believe the accused guilty of the crime. Id. at 1356.

Bozilov contends that his offense is not extraditable because Germany failed to prove he committed a comparable, substantive crime under United States law. He also argues that American courts cannot assert jurisdiction over a substantive offense unless his acts affected the Unites States. The determination that an offense is an extraditable crime is reviewed de novo. Theron v. United States Marshal, 832 F.2d 492, 496 (9th Cir. 1987), cert. denied, 486 U.S. 1059, 100 L. Ed. 2d 930, 108 S. Ct. 2830 (1988).

We reject Bozilov's argument. "Dual criminality does not require that an offense in a foreign country have an identical counterpart under the laws of the United States." Theron, 832 F.2d at 496. Dual criminality requires only that the acts alleged constitute a crime in both jurisdictions. Emami v. United States Dist. Court, 834 F.2d 1444, 1450 (9th Cir. 1987). Each state may name and penalize the crime differently. Id.

Article 2(1) of the Treaty defines extraditable offenses as:

a) Offenses described in the Appendix to this Treaty which are punishable under the laws of ...


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