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Pleading Paper

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 1 of 19

IN RE THE EXTRADITION OF:

ROMAN WROCŁAWSKI

A Fugitive from the Government of Poland.

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

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MAG NO. 07-00302-M (MHB)

FINDINGS OF FACT AND

CONCLUSIONS OF LAW AND

CERTIFICATION OF

EXTRADITABILITY

ROMAN WROCŁAWSKI (hereinafter, Wrocławski), was provisionally arrested on or

about November 2, 2007, pursuant to a complaint and provisional arrest warrant issued in the

District of Arizona by this Court on October 29, 2007, in accordance with 18 U.S.C. § 3184, at

the request of the Government of Poland pursuant to the Extradition Treaty between the United

States and Poland. (Doc. #10.) In this matter, the United States acts on behalf of the Poland

government.

Poland is required under the treaty to submit a formal request for surrender, supported by

appropriate documents, to the Department of State. Poland has complied by presenting to the

Department of State the following described documents:

1. On or about July 6, 2006, the State Department received formal documentation for

crimes detailed in the complaint.

2. On or about February 15, 2007, an original and two copies of supplemental formal

extradition documents were received from the Department of State. The original documents are

bound with a red ribbon and seal; a copy was filed with the Court in support of the complaint

on or about October 29, 2007. (Doc. #14, Redacted Version.) The originals were retained by


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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 2 of 19

the government and subsequently admitted at the extradition hearing on December 8, 2008.

3. On or about October 29, 2007, the Court issued a provisional arrest warrant based on

both the complaint and a copy of the above-referenced supporting documents. (Doc. #4.)

4. On June 5, 2008, the Court released Wrocławski on conditions upon a finding of

special circumstances. (Docs. ##60, 62-63.)

On December 8, 2008, this Court held a hearing to consider the evidence of criminality

presented by Poland and to determine whether it was “sufficient to sustain the charge under the

provisions of the proper treaty or convention.” 18 U.S.C. § 3184. (Doc. #96.) Based upon the

hearing and the subsequently submitted memoranda and exhibits, the Court finds the fugitive

extraditable on Counts II and III, and certifies that conclusion to the Secretary of State, who will

then decide whether or not to surrender Wrocławski.

I. Elements Necessary for Extradition.

A determination of extraditability is proper if: (1) the judicial officer is authorized to

conduct extradition proceedings; (2) the court has jurisdiction over the fugitive; (3) the

applicable treaty is in full force and effect; (4) the crimes for which surrender is requested are

covered by the treaties; and (5) there is competent legal evidence for the decision. Zanazanian

v. United States, 729 F.2d 624, 626 (9th Cir. 1980).

A. Authority of the judicial officer.

The relevant statute, 18 U.S.C. § 3184, authorizes a broad class of judicial officers to hear

extradition cases, including “any magistrate judge authorized so to do [sic] by a court of the

United States.” Ward v. Rutherford, No. 89-5413, (D.C.Cir. decided December 7, 1990)

(rejecting constitutional challenge to magistrate judges’ authority). Magistrate judges’

jurisdiction over extradition matters derives from §3184, and not from the Federal Magistrates

Act. LoDuca v. U.S., 92 F.3d 1100, 1109 (2nd Cir. 1996); Desilva v. Dileonardi, 125 F.3d 1110,

1113 (7th Cir. 1997) (A certificate of extradition is no different from a search warrant or an order

approving a deportation: it authorizes but does not compel the executive branch in a certain

way.). See, also Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000), disapproved on other

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 3 of 19

grounds, 379 F.3d 1075 (9th Cir. 2004); Prasoprat v. Benov, 421 F.3d 1009 (9th Cir. 2005).

B. Jurisdiction over the fugitive.

Although the Supreme Court included personal jurisdiction as an essential element for

reasons of analytic completeness, the question of jurisdiction has not been a decisive issue in an

extradition case in modern times. If the fugitive is before the court, the court has personal

jurisdiction. See, In re Pazienza, 619 F.Supp. 611 (S.D.N.Y. 1985). The fugitive appears as a

result of the service of the provisional arrest warrant issued by this Court.

C. Treaty in full force and effect.

The extradition statute, 18 U.S.C. § 3184, appears to limit extradition to instances in which

a treaty is in force between the requesting state (here, Poland) and the requested state (here, the

U.S.), and several cases have so held. See, e.g., Argento v. Horn, 241 F.2d 258 (6th Cir. 1957).

As part of its proof, the government has provided a declaration from Kenneth R. Propp, an

attorney in the Office of the Legal Adviser of the Department of State, attesting that the treaty is

in full force and effect as of September 17, 1999. (Exhibit 1, Certified Extradition Packet 1 ,

hereinafter “Exh. #1.”) The Department of State's opinion in this sphere, while not controlling,

is entitled to deference from the Court. Galanis v. Pallanck, 568 F.2d 234, 239 (2nd Cir. 1977);

Sayne v. Shipley, 418 F.2d 679, 684 (5th Cir. 1969) cert. denied, 398 U.S. 903 (1970). The

government also provided the Court with a copy of the United States Extradition Treaty with

Poland (hereinafter, the treaty) as part of its certified extradition packet. (Exh. #1.)

D. Charges in the requesting state.

The treaty provides for the return of fugitives charged with or convicted of a crime in the

requesting state. The crimes identified in the complaint and request for extradition are covered

by Article 2 of the treaty, which reads, in pertinent part:

1. An offense shall be an extraditable offense if it is punishable under the laws in

both Contracting States by deprivation of liberty for a maximum period of more

1 The Packet referenced was admitted as Government Exhibit 1 during the Extradition Hearing

held in this Court on October 8, 2008. A copy of this original packet also is lodged as a part of the

Government’s Redacted Complaint for Extradition. (Doc. #14.)

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 4 of 19

than one year or by a more severe penalty. . .

. . .

3. For the purposes of this Article, an offense shall be an extraditable offense:

(a) whether or not the laws in the Contracting States place the offense within the

same category of offenses or describe the offense by the same terminology; or

(b) whether or not the offense is one for which United States federal law requires

the showing of such matters as interstate transportation, or use of the mails or of

other facilities affecting interstate or foreign commerce, such matters being merely

for the purpose of establishing jurisdiction in a United States federal court.

The charges contained in the request from Poland are for extraditable offenses because

dual criminality exists, as they are punished under the laws of both the United States and the

Republic of Poland by a deprivation of liberty for a maximum period of more than one year or

by a more severe penalty. The three counts charged by Poland read as follows, in pertinent part:

Count I: [f]rom December 3, 1993 through December 20, 1993, Wrocławski,

acting jointly and in conspiracy with [the bank’s] manager Edward Kołodziejski,

Head of Credits Department Gražyna Borowy and Antoni Przybysz, Leszek Ciota

and Zbigniew Naczk misappropriated property . . . in the amount of PLN 2

1,000,000 and untrue credit documentation supposed to create appearances of

legality and economic effectiveness of the credited business venture said funds

intended for execution of an essentially fictitious business venture consisting in

purchase of alcohol for the purpose of its further resale, despite the fact that the

company he represented did not have credit worthiness ensuring repayment, and

subsequently in contravention of the credit contract he transferred these funds

according to a prior agreement in favor of PP Mapextil . . .and Davinton. .

.knowing that the Roman company neither had feasible possibilities of discharging

liabilities incurred on this account, nor intention of using the granted credit funds

for realization of the venture described in the application and credit contract; nor

did it intend to repay the credit already at the time of commencement of efforts for

obtaining of this credit,. . .

Count II: [i]n the period from April 1993 through March 7, 1994, in Piotrków

Trybunalski, acting with a prior intention, in short time intervals, being president

of the Board of Directors of Roman Limited Liability Company, he embezzled

entrusted to him property in total amount of PLN 308,855.12, including the amount

of 188,866.03 originating from sale of “Adidas” sport articles and the amount of

PLN 119,988.09 on account of collected advance payments to the detriment of the

mentioned company. . .

2 The polish currency is the “zloty.” As a result of inflation in the 1990s, the currency

underwent redenomination. Thus, on January 1, 1995, 10,000 old złotys (PLZ) became one new złoty

(PLN). Source: http://themoneyconverter.com/PLN/PLN.aspx and http://en.wikipedia.org/wiki/ISO

(type “zloty” in search box). The Court takes judicial notice of this fact pursuant to Fed.R.Evid. 201.

Thus, throughout the documents submitted by the government, 10 million złotys may be used

interchangeably with 1,000,000 PLN.

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 5 of 19

Count III: [i]n the period from January 1994 through March 7, 1994, in Piotrków

Trybunalski, acting with a prior intention, in short time intervals, being president

of the Board of Directors of Romano American Car Limited Liability Company,

he embezzled entrusted to him property in the form of 99 radar detectors worth

PLN 4 348.08 and 9 310 compact discs worth PLN 55 860, of total value of PLN

60 208.08 to the detriment of the mentioned company. . .

The elements of the above charges are similar to elements of crimes proscribed by federal

and Arizona state law. The offense of theft is defined as: “without lawful authority, the person

knowingly (1) controls property of another with the intent to deprive the other person of such

property; or (2) converts for an unauthorized term or use services or property of another entrusted

to the defendant or placed in the defendant’s possession for a limited, authorized term or use . .

.” A.R.S. §13-1802. Theft is a felony, punishable by in excess of one year, so long as the value

of the property embezzled is over one-thousand dollars. A.R.S. §13-1802(E); §§13-702(D), -707.

In its Complaint for Extradition, the government equates 10 billion zloty to “around

$350,000.00.” (Doc. # 14, at 3.) Given that undisputed approximation, then the value of the

embezzled funds or goods, as set forth in Counts I, II and III exceed one-thousand dollars. The

elements of the charged offenses are also similar to trafficking in stolen property and fraudulent

schemes and artifices offenses (theft of honest services) proscribed under Arizona law, both

felony crimes carrying potential prison terms in excess of one year. A.R.S. §§13-2307, -2310.

The federal crime of transportation, or sale or receipt of stolen goods, also contains similar

elements to the Polish charged offenses. 18 U.S.C. §2314, §2315. Thus, the charges meet the

dual criminality requirements of the treaty.

As the Supreme Court noted in Collins v. Loisel, 259 U.S. 309, 312 (1922):

The law does not require that the name by which the crime is described in the two

countries shall be the same; nor that the scope of liability shall be coextensive, or,

in other respects, the same in the two countries. It is enough if the particular act

charged is criminal in both jurisdictions.

(emphasis added). Accord, Cucuzzella v. Keliikoa, 638 F.2d 105, 108 (9th Cir. 1981); United

States v. Stockinger, 269 F.2d 681, 687 (2nd Cir. 1959); Di Stefano v. Moore, 46 F.2d 308

(E.D.N.Y.), aff'd, 46 F. 2d 310 (2nd Cir. 1930), cert. denied, 283 U.S. 830 (1931). A court's

analysis of the question of dual criminality is subject to the general requirement that the court

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 6 of 19

"approach challenges to extradition with a view toward finding the offense within the treaty."

McElvy v. Civiletti, 523 F. Supp. 42, 48 (S.D.FLa. 1981). Statements by the United States

Department of State as to interpretation of treaties are to be given great weight by our courts.

Sayne, 418 F.2d at 684; In re Ryan, 360 F.Supp. 270, 272 n.4 (E.D.N.Y. 1973); In re Extradition

of D'Amico, 177 F. Supp. 648, 653 n.7 (S.D.N.Y. 1959), appeal dismissed, 286 F.2d 320 (2nd

Cir.), cert. denied, 364 U.S. 851 (1960).

E. Competent legal evidence.

Competent legal evidence encompasses the familiar requirement of probable cause to

believe that a crime was committed and that the person before the court committed it. The

standard of proof in extradition proceedings is that of probable cause as defined in federal law.

Sindona v. Grant, 619 F.2d 167, 175 (2nd Cir. 1980). This means evidence sufficient to cause

a person of ordinary prudence and caution to conscientiously entertain a reasonable belief in the

guilt of the accused. Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973). The Supreme

Court has held that "[t]he function of the committing magistrate is to determine whether there is

competent evidence to justify holding the accused to await trial, and not to determine whether

evidence is sufficient to justify a conviction." Collins, 259 U.S. at 316. The Fourth Circuit

explained the court's function in an extradition proceeding in the following terms:

The extradition hearing is not designed as a final trial. The purpose is to inquire

into the presence of probable cause to believe that there has been a violation of one

or more of the criminal laws of the extraditing country, that the alleged conduct,

if committed in the United States, would have been a violation of our criminal law,

and that the extradited individual is the one sought by the foreign nation for trial

on the charge of violation of its criminal laws.

Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976). See also, Fernandez v. Phillips, 268 U.S.

311, 312 (1925); United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 730-31 (9th Cir.

1975) (magistrate's function is to determine whether there is "any" evidence establishing

reasonable or probable cause).

II. Findings of Fact and Conclusions of Law.

The specific findings of fact upon which the Court has relied are specified below:

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 7 of 19

Wrocławski is charged in Count I with fraudulently obtaining credit in contravention of

article 286 paragraph 1 and article 297 paragraph 1 of the Polish Criminal Code, in connection

with article 294 paragraph 1 and article 11 paragraph 2 regarding sentencing for crimes of

substantial amounts and acts meeting the requirements of multiple offenses. (Exh. #1 at 1-6.)

Wrocławski is charged in Counts II and III with embezzlement in contravention of article 204

paragraph 2 of the Criminal Code of 1969, each in connection with article 58 of the Criminal

Code of 1969 regarding sentencing for continual offenses. (Id.)

The supporting documents, represented by sworn statements of witnesses and documents,

demonstrate that the case against Wrocławski involves two Polish companies, “Roman” and

“Romano American Car (RAC).” Roman was registered as a Limited Liability Company (LLC)

on December 7, 1990: Wrocławski was president of the Board of Directors. (Exh. #1 at 2, 202.)

Roman was also registered as an LLC on October 5, 1992. (Id.) Wrocławski was president of

Roman and owned 51% of the shares of Roman. (Exh. #1 at 92, 102, 104-05, 115.) Other vice-

presidents of Roman were Messrs. Ciota, Krzesiński, Pytlos, and Stepień: shareholder meetings

did take place. (Exh. #1 at 105-05.) The business of RAC included the marketing of compact

discs and radar equipment, and the business of Roman was the marketing of sports equipment.

(Exh. #1 at 102.)

BANK FRAUD (Count I)

On November 23, 1993, an application for a bank loan on behalf of Roman was filed with

the Powsczechny Bank Kredytowy Branch (hereinafter, “the bank”) in Wyszków, Poland, in the

amount of 1,000,000.00 PLN. (Exh. #1 at 19-35.) Wrocławski’s name appears on the face of

Roman’s application, and his name also appears as the representative for Roman on the ensuing

contract, although the signature on the contract is “illegible.” (Exh. #1 at 19, 22, 25.) A “General

Information” sheet attached to the credit application concerning the “Financial Situation of [the]

Borrower” referenced Wrocławski and listed facts related to his personal credit worthiness. (Exh.

#1 at 46.) Witnesses place Wrocławski at the bank at the time the application was submitted.

(Exh. #1 at 82, 86, 93.) Witness Ciota, a vice-president of Roman, indicated that he was with

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 8 of 19

Wrocławski at the bank, and that Ciota filled out the application, which was then signed by

Wrocławski. (Exh. #1 at 82.) With respect to the purpose behind the application for credit,

witness Ciota stated:

Roman Wrocławski participated along with me and Mr. Antoni Przybysz in talks

conducted with Ms. Gražyna Borowy at Powszechny Bank Kredytowy Public

Limited Company Branch Wyszków about the terms of granting credit to the

“Roman” company. As far as I recall, there were two conversations of this kind.

The subject thereof was the form of surety, documents that needed to be submitted

in order to receive credit and form of repayment. Both I, Roman Wrocławski and

Ms. Borowy of Powszechny Bank Kredytowy Public Limited Company Branch

Wyszków, we all knew that the credit incurred by the “Roman” company would

actually be used by Antoni Przybysz for his needs. Mr. Antoni Przybysz was

seeking funds to complete an investment project in the form of an alcohol factory

in Suwalki. It was a form of advance payment from the “Roman” company for Mr.

Przybysz. The “Roman” company was perfect for the purpose. It was involved in

alcohol trade, it possessed a license. When Mr. Przybysz launched production, he

was supposed to repay the credit incurred by the “Roman” company with the

manufactured alcohol. Mr. Wrocławski knew about it. He had such knowledge.

The “Roman” company was to constitute a distribution network for alcohol

products manufactured by Mr. Przybysz. . . .

The actual intent for usage of funds obtained from the credit incurred from [the

bank] was, . . .transfer thereof to Mr. Antoni Przybysz. Such were the

establishments even before incurring the credit.

(Exh. #1 at 83.)

Ciota reported that surety documents were delivered to the bank by him, but after the credit

had already been launched by the bank. (Exh. #1 at 84.) When shown the contracts relating to

the equipment belonging to “Mapextil,” Ciota did not believe that they were necessary to the

bank’s granting of credit. (Id.) Ciota also indicated that after the credit agreement was signed

on December 6, 1993, he filled out 8 of the 10 transfer orders that facilitated the transfer of

money from the bank to Davinton, to Mapextil and to Roman between December 6 and December

20, 1993. (Exh. #1 at 51-60.)

There is no record of an interview with the bank official, Gražyna Borowy who received

the Roman application, or the bank manager Edward Kołodziejski, provided with the extradition

package, only the interview of Henryka Nadaj, an inspector in the credit department of the bank.

(Exh. #1 at 96.) Nadaj received 20 borrower credit files on November 9, 1993. (Id.) Her job was

to “assess the economic-financial situation with respect to credit worthiness of [a] given entity.”

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 9 of 19

Her ultimate opinion, along with supporting documentations would “also be subject to a formal-

legal assessment by a legal adviser.” If the conclusion is positive, the “Head of the Credits

Department either supports or not the application, and the Manager approves it.” If approved,

then, the credit agreement is signed. (Exh. #1 at 97.)

According to Nadaj, the bank credit to Roman was “counted in the group of lost ones.”

(Id.) “Granting of this credit did not take place in line with procedures provided for in the

crediting bylaw, . . .” She explains as follows:

I do not recall exactly when the credit application of the “ROMAN” company was

submitted. . ..The application features an imprint of the Seal of [the bank] with

receipt date 23.11.1993. It is hard to say for me whether it actually was submitted

on that day, but it could have been so. The application does not feature any

annotation of the Branch Manager or number of correspondence journal confirming

its receipt. ---

I recall that in the matter of the application submitted by this company I was

summoned to the Head of the Credits Department - Gražyna Borowy. It seems to

me that in Ms. Borowy’s office there were Mr. Leszek Ciota, Mr. Roman

Wrocławski and the Head. From the Head’s office the mentioned persons and I

went over to the conference room where I advised them what documents must still

be attached to the application. I do not recall Ms. Borowy giving me any

instructions as to the manner of processing of this application prior to leaving for

the conference room. After entering her office I only had an impression that the

above-mentioned persons are well known to the Head, which followed from their

casual attitude. I do not recall now whether the credit application was the only

document that I received prior to this conversation. The credit application

mentions other documents that need to be attached, that is an excerpt from real

estate and mortgage registers, contract and documents concerning surety on

abrading machinery, but I am not certain whether these documents were attached

to the application. My conversation with Mr. Wrocławski, the Head and Mr. Ciota

ended with a request for submission of specific documents, which were to

supplement this request. I do not recall what documents I demanded, but they were

certainly demands for documentation required by the crediting bylaw. Despite the

fact that documents assessing the application were not prepared, which meant that

I did not possess complete documentation, several days later Ms. Gražyna Borowy

instructed me verbally to prepare a credit agreement and disposition for launching

of credit. . . .

With all certainty signing of the credit agreement and launching of credit took

place before full assessment of the credit application.

(Exh. #1 at 97-98.)

The witness discusses at some length the fact that, after credit was extended to Roman, upon

inspection from the bank’s headquarters, she was asked by Ms. Borowy to create documents that

should have accompanied the credit application. (Exh. #1 at 99.) She complied with the request,

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Case 2:07-mj-00302-MHB Document 121 Filed 04/29/09 Page 10 of 19

and created and back-dated (to 12/3/93) a bank “Inspection Memo” confirming the bank branch’s

inspection of Roman, to demonstrate that the bank had complied with normal banking procedures

before granting the credit application: she was later instructed by Ms. Borowy to delete references

from the Memo to Mr. Przybysz. (Id.) Ms. Nadaj further commented on the “surety of the credit:

mortgage entry on real property constituting the property of Roman Wrocławski, a bank register

lien and an agreement of assignment of title to this machinery - constituting the property of

Antoni Przybysz, transfer of receivables from a contract and a blank bill of exchange issued by

Roman Wrocławski and guaranteed by Leszek Ciota.” (Exh. #1 at 100.) She did not have any

knowledge of the value of the surety, except that with respect to the machinery, ostensibly

belonging to Przybysz, she inspected it at the firm of Mr. Przybysz and marked the machines ““in

visible places with white oil paint with an inscription of the content: “Bank lien, Powszechny

Bank Kredytowy Branch Wyszków.”” After Roman defaulted on the credit agreement in 1994,

Mr. Przybysz voluntarily agreed to sign an agreement of accession to the debt. (Exh. #1 at 109.)

The credit was partially repaid as of September 1, 1994, with a remaining balance of 165 million

zlotys. (Id.)

The credit application submitted by Roman, and included in government’s exhibit 1,

specifically references the following suretys: “[m]ortgage on real property marked with number

KW 3244, blank bill of exchange issued by Roman Dominik Wrocławski guaranteed by Leszek

Ciota, assignment of rights from insurance contract, transfer of title to movables - agreement of

3.12.1993. The documents connected with establishment of legal surety constitute an integral part

of the present contract. Agreement of transfer of receivables for surety of 03.12.1993.” (Exh. #1

at 23, 9, 100.) The government does not establish, given the statements made by witnesses Ciota

and Nadaj, that the surety documents referenced were provided to the bank prior to the granting

of credit: in addition, there is no document provided matching the description of “blank bill of

exchange,” and thus, no way in which to determine the value or integrity of that surety. The

extradition package includes other documents that may by description be fairly presumed to

constitute the credit application documents.

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The government claims that an “expert opinion” was submitted with the credit application

and valued the “real property marked with number KW3244” at approximately 3 billion zlotys,

representing 2,940,000,000.00 as the value of the warehouse-office building on the lot, and

371,400,000.00 as the value of the plot of land. (Exh. #1 at 47.) The government claims that this

“opinion” was fraudulent because it made no mention of a building permit that Wrocławski had

on the property: the government references two public documents that indicate that Wrocławski

received a permit on ll/5/90 to erect a structure on the property, said permit to expire on ll/1/95.

(Exh. #1 at 77-79). It is unclear how the fact that Wrocławski obtained a permit to build on the

property renders the expert’s opinion on value fraudulent. It is also impossible to determine from

the documents provided who owned the property, and even if the lot was not owned by

Wrocławski, whether or not he possessed any ownership rights in a building on the property he

constructed.

The “assignment of rights from insurance contract,” 3 and the “transfer of title to

movables,” reference machinery, specifically described in an “Agreement of Transfer of Title.

. .” by Mr. Antoni Przybysz, owner of the firm Mapextil Private Enterprise. (Exh. #1 at 36.) The

machinery consisted of a “jeans abrading machine, . . .a drum abrading machine, . . . a drum

dryer, . . .a centrifuge, . . . and a universal ironing machine,” . . .valued at “ten billion five

hundred million zlotys.” (Id.) (incidently, the value exceeded the amount of credit extended).

This, presumably, is the machinery witness Nadaj personally marked, at the premises of Mapextil,

as subject to a bank lien. (Id., at 99) The government argues that this assignment was fraudulent

because the title to this machinery had already been transferred from Mr. Przybysz’s to the firm

Davinton at the time of this assignment, and points to a Contract, dated 5/5/93 between Mapextil

and Davinton. (Exh. #1 at 63-65.) This contract, however, refers to the sale of “technological

installation and auxiliary devises.” (Exh. #1 at 65.) The Court can not, without more, conclude

that these “devises” are the machinery Mr. Przybysz assigns to the bank as surety for the credit

3 The rights under the machinery insurance policy were transferred to the bank, to revert back

to Mapextil upon repayment of credit. (Exh. #1 at 44.)

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extended to Roman. There is also no indication in the record that the machinery pledged was in

fact alienated beyond the bank’s reach. In fact, after default, Mr. Przybysz signed an agreement

of accession to the debt, and 9,835,000,000 of the 10,000,000,000 zlotys was repaid. (Exh. #1

at 109.)

Finally, the government claims that Wrocławski submitted a contract between

Interbusiness and Roman as surety, and that the contract was fraudulent, as the owner of

Interbusiness disclaimed any knowledge of the contract. (Exh. #1 at 21, 26, 71.) The contract

between Roman and Interbusiness was signed by Interbusiness Chief Accountant A.I. Upeneks,

and Manager U. Lusis, and was for the purchase of alcohol by Interbusiness, from Roman, for

the period December 1993 through December 1994, for the amount of 1 million American

dollars. (Exh. #1 at 21.) Roman was in the business of wholesale trade of alcohol in 1993. (Id.,

at 75.) A witness purporting to be the president of the board of the firm “Interbusiness Ltd,”

Izotov Laymonovich told investigators that his company did not trade in alcohol and that

company activity was suspended in 1992 in any event. (Id., at 71-72.) He did not know the

individuals Upeneks and Lusis who signed the contract with Roman on behalf of Interbusiness

Ltd. (Id.)

The bank fraud count alleges the following essential elements: that from “December 3,

1993 through December 20, 1993” that Wrocławski, “acting jointly and in conspiracy with [the

bank’s] manager Edward Kołodziejski, Head of Credits Department Gražyna Borowy and Antoni

Przybysz, Leszek Ciota and Zbigniew Naczk misappropriated property . . . in the amount of PLN

1,000,000” and “untrue credit documentation supposed to create appearances of legality and

economic effectiveness of the credited business venture,” said funds “intended for execution

of an essentially fictitious business venture consisting in purchase of alcohol for the purpose

of its further resale, despite the fact that the company he represented did not have credit

worthiness ensuring repayment,” and “subsequently in contravention of the credit contract he

transferred these funds according to a prior agreement in favor of PP Mapextil . . .and Davinton.

. .knowing that the Roman company neither had feasible possibilities of discharging

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liabilities incurred on this account, nor intention of using the granted credit funds for

realization of the venture described in the application and credit contract; nor did it intend to

repay the credit already at the time of commencement of efforts for obtaining of this credit,. . .”

(Exh. #1 at 4.) (emphasis added).

The question presented is whether or not there is competent evidence to justify holding the

accused to await trial on this charge, or whether there is “probable cause” to believe Wrocławski

committed the offense described. Two main clauses of the charge, intended for execution of

an essentially fictitious business venture, and nor intention of using the granted credit funds

for realization of the venture described are belied by the evidence presented, which is that the

bank personnel knew that the purpose of the credit was to fund the venture with Mapextil,

represented by Przybysz. There was no evidence presented of concealment of this venture. In

fact, 7,000,000.000 zlotys were transferred from the bank to Mapextil. (Exh. #1 at 51-62.) Also,

except with respect to the Interbusiness Ltd. receivables contract, no evidence was presented that

the surety ostensibly provided to the bank, was untrue credit documentation supposed to

create appearances of legality and economic effectiveness of the credited business venture.

In fact, all but 165,000,000 (one-hundred sixty-five million) of the 10,000,000,000 (ten billion)

zylots credited has been repaid (almost 85%). Furthermore, the evidence suggests that the bank

contract was signed before any documentation of surety was provided.

Nor was competent evidence presented that Roman company neither had feasible

possibilities of discharging liabilities. In fact, the company accountant rendered her opinion that

“if the credit incurred from [the bank] found its way in 1993 to the ‘Roman’ company and was

then rationally utilized, there would be no difficulties with its timely repayment along with

interest.” (Exh. #1 at 122.) Although the bank may have skirted normal banking procedures to

process the loan, it would be pure speculation to conclude that this hastiness involved a

“conspiracy” between Wrocławski and the banking officials. It is just as likely from the evidence

presented that the hasty, unsupported credit extension involved bank officials anxious to assuage

a favored customer due to confidence in the proposed venture, or for their own personal benefit.

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The Court finds, as to this charge, that probable cause has not been shown.

THEFT (Count II)

This Count alleges that ““[i]n the period from April 1993 through March 7, 1994, in

Piotrków Trybunalski, acting with a prior intention, in short time intervals, being president of

the Board of Directors of “Roman” Limited Liability Company, he embezzled entrusted to him

property in total amount of PLN 308,855.12, including the amount of 188,866.03 originating from

sale of “Adidas” sport articles and the amount of PLN 119,988.09 on account of collected

advance payments to the detriment of the mentioned company. . .”” (emphasis added).

Evidence of this offense derives primarily from the chief accountant for Roman, Henryka

Majchrzak, who told investigators that Wrocławski took advance payments, without repayment,

of the company in the amount of 542,550,000 zlotys in approximately May, 1993, and that he also

took Adidas sports equipment from the company valued at approximately 1,890,000,000 zlotys. 4

(Exh. #1 at 102, 109.) Warehouse employee Zbigniew Majkowski told investigators that

Wrocławski would often collect Adidas goods from the warehouse and take them away. (Exh.

#1 at 118.) Majchrzak witnessed Wrocławski take away some of the goods during the night.

(Exh. #1 at 122.) Włodzimierz Rusin, a “court expert in the scope of accounting,” charged with

the task of reviewing the records of Roman and placing a value of the loss due to Wrocławski’s

embezzlement, placed the amount of loss due to unauthorized advance payments at 1,199,890,900

zlotys. (Exh. #1 at 132-34.) Although Mr. Rusin was unable, due to sloppy warehouse record

keeping at Roman, to identify what specific Adidas goods were embezzled, he was able to

determine that the revenue from sales of the goods between April and July, 1993, was

2,586,561,400 zlotys, and that the receipts in return totaled 697,901,100, resulting in a deficit of

1,888,660,300 zlotys. (Exh. #1 at 132.) The Court finds that the evidence presented establishes

probable cause that Wrocławski committed this offense.

4 On a later occasion, she valued the advance payments at 425,500,000 zlotys.

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THEFT (Count III)

This count alleges that “”[i]n the period from January 1994 through March 7, 1994, in

Piotrków Trybunalski, acting with a prior intention, in short time intervals, being president of

the Board of Directors of “Romano American Car” Limited Liability Company, he embezzled

entrusted to him property in the form of 99 radar detectors worth PLN 4 348.08 and 9 310

compact discs worth PLN 55 860, of total value of PLN 60 208.08 to the detriment of the

mentioned company. . .”“ (emphasis added).

Ms. Majchrzak told investigators that in approximately January, 1994, Wrocławski

embezzled approximately 8,000 compact discs and 90 radar detectors, taking them from the

warehouse at R.A.C. (Exh. #1 at 102.) She valued the radar detectors at approximately

43,000,000 zlotys, and indicated that the compact discs had been purchased for 127,240,000

zlotys. (Exh. #1 at 109.) Mr. Pytlos, the vice-president of Roman, indicated that in September

1993, R.A.C. purchased 90 radar detectors, and one month later purchased approximately 10,000

compact disks. (Exh. #1 at 105.) In March, 1994, he indicated that compact discs were missing

from the warehouse, and 3,000 had been shipped to Jerzy Zakrzewski. (Exh. #1 at 106.) Mr.

Majkowski indicated that in March, 1994, Wrocławski came to him in the evening and asked him

to pack compact disks for delivery to a customer. (Exh. #1 at 118.) Wrocławski told him they

were being given as a lien on a debt he had incurred. (Id.) Thereafter Leszek Bieniek arrived at

the warehouse and picked up the discs. (Id.) In January, 1994, Majkowski was contacted by

Wrocławski at 4 a.m. and instructed to take 3,000 of the discs to Jerzy Zakrzewski. (Id.)

Both Zakrzewski and Bieniek were interviewed and confirmed that they had loaned

Wrocławski money, and that Wrocławski had delivered compact discs to them as security for the

personal loans. (Exh. #1 at 114-15, 118, 124-25.) Mr. Rusin, in examining the company

documentation, placed a value on the embezzled discs at 197,400,000 zlotys for the discs

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delivered to Zakrzewski 5 , and 361,200,000 for the 6,020 total discs missing from inventory,

resulting in a total value of the embezzled discs of 558,600,000. (Exh. #1 at 128-129.) The Court

finds that the evidence presented establishes that there is probable cause to believe that

Wrocławski committed this offense.

III. Statute of Limitations.

Wrocławski argues that the charges are time barred due to a lapse in the statute of

limitations. The Polish statutes underlying Counts II and III and referenced in the charging

document are “article 204, paragraph 2 of the Criminal Code of 1969 in connection with article

58 of the Criminal Code of 1969.” (Exh. #1 at 5.) In the request for provisional arrest, the

prosecutor indicted that “[d]ecisions on presentation” and subsequent “amendment” of the

charges “were issued on December 15, 1994, September 6, 1995, December 29, 1998, May 5,

2004, April 27, 2005, May 5, 2005 and August 8, 2005.” (Id.) The prosecutor also indicates that

the charges “have not become barred by prescription.” (Id.) The provisional arrest warrant was

issued on September 14, 2005. 6 (Id., at 7.) Article 204, paragraph 2 of the 1997 Polish Criminal

Code provides that “[a]ny person who misappropriates property which he/she has been entrusted

shall be liable to a penalty of imprisonment for a period not shorter than 6 months and not longer

than 5 years” (Id., at 14.) Article 58 provides that “[i]n the event of sentencing for continual

offence, the court can impose a penalty within the limits of the highest statutory liability increased

by a half, without however exceeding the limit of a given kind of penalty.” (Id., at 13.)

The limitations provisions of the 1997 Code are found in Articles 101 and 102. In

pertinent part, Article 101, para. 1, provides for a 15-year statute of limitation for crimes for

which the term of imprisonment exceeds 5 years. Art. 101, p. 1.2a; (Exh. #1 at 12.) Article 102

5 The witness Zakrzewski turned over to police investigators 3,290 of the discs he had received

from Wrocławski. (Exh. #1 at 115.)

6 Wrocławski argues that the issuance of the provisional arrest warrant in 2005 was the

institution of was the first Polish “formal proceeding,” and that “[n]o Indictment has been presented.”

(Doc. #105 at 24.) He presents no authority for this proposition and ignores the “decisions” set forth

by the prosecutor in the request for provisional arrest. (Exh. #1 at 5.)

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provides that if “proceedings against a person have been commenced” within this statute of

limitations, then “the crime or offence committed by such person will cease to be punishable on

expiry of 10 years.” (Id.) Thus, the statute of limitations applicable to Counts II and III is 15

years after March 7, 1994, in other words, March 7, 2009. It appears that the prosecution of

Counts II and III commenced in December, 1994, with additional presentments thereafter, until

the provisional arrest warrant was issued in 2005; thus, prosecution commenced within the

limitations period. Article 102 then makes the crimes punishable through March 7, 2019.

Article 8 of the treaty between the United States and Poland provides that “[e]xtradition

shall not be granted when the prosecution or the enforcement of the penalty for the offense for

which extradition has been sought has become barred by lapse of time according to the law of the

requesting state.” Wrocławski provides the Court with the relevant limitations statutes under the

1969, 1997, and 2005 Code, which Wrocławski claims are the versions of the Code during the

relevant time period (date of alleged commission of crime to date of warrant for provisional

arrest). (Wrocławski’s Exh.#105. 7 ) The limitation date of March 7, 2019, was arrived at utilizing

the Articles in effect during the tenure of the 2005 Code. To the extent Wrocławski argues that

the limitations period of the 1969 Code apply, Article 2 of the 2005 Code sets forth that “[w]ith

respect to acts perpetrated prior to the entry into effect of this Act, the provisions of the Criminal

Code regarding the statute of limitations in the tenor given to them herein shall apply unless the

statute of limitations has already elapsed.” 8 (Id., at 2.) Under the 1969 Code, in effect at the time

of the alleged commission of the charged offenses, Article 105, paragraph 1, provided a ten-year

statute of limitations for an offense punishable by imprisonment of more than five years. (Id., at

1.) Given that the prosecution was commenced within the statute of limitations set forth in the

7 Admitted by the Court during the Extradition Hearing on December 8, 2008. (Doc. #96.)

8 The Court found in accord the analysis in In the Matter of the Extradition of Mirosla

Tuniewicz, 2007 WL 1063306 (E.D.N.Y.) involving an extradition request by Poland. There, the acts

that gave rise to the provisional arrest warrant occurred in 1991 and 1992. The Decision on Presentation

of Charges was dated September 26, 2001 after the enactment of the new Penal Code in June 1997. Id.

As the charges were timely brought, the limitation period was extended an additional ten years until

2016. Id.

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1969 Code, the provisions of the 2005 Code apply with respect to determining the length of the

limitations period. Art. 2, 2005 Polish Criminal Code. (Id., at 2.)

The government provided a letter from the Polish Deputy District Prosecutor, dated July

2, 2008, indicating that the “date of limitation of prosecution” for Counts II and III is March 7,

2014. (Doc. #114, Exh. A.) It is unclear, given the Court’s above analysis and calculations under

the relevant Polish Articles, how the Prosecutor arrived at this date. In any event, under all

scenarios presented, the Court finds that the prosecution or the enforcement of the penalty for the

offense for which extradition has been sought has not become barred by lapse of time. 9

IV. Conclusion.

Based upon these findings of fact and a review of the evidence described herein, the Court

makes the following conclusions of law. The Court, as a properly appointed U.S. Magistrate

Judge, is a judicial officer authorized to conduct extradition proceedings, pursuant to 18 U.S.C.

§ 3184 and the District of Arizona Local Rules of Practice.

The Court has jurisdiction over the fugitive because he was in the District of Arizona and

has been brought before this Court as the result of the Provisional Arrest Warrant issued in this

action. As the result of the personal jurisdiction over Wrocławski, the District Court of Arizona

has jurisdiction to decide whether Wrocławski is extraditable.

The Court has found that the applicable treaty is in full force and effect and that the crimes

for which surrender was requested, Counts I, II and III, are covered by the treaty. From a review

of the documents submitted, it is clear there are criminal charges pending in the requesting state.

9 Wrocławski complains that the Polish authorities knew in1994 his location in the United

States, based upon the following statement in the 2006 request for provisional arrest: “[f]rom the

information possessed in the investigation it follows that [Wrocławski] in 1994 went to the United States

of America, where he allegedly resides at the address: [Wrocławski’s Phoenix address].” (emphasis

added) (Doc. #100 at 39.) (Exh. #1 at 5.) It takes a spirited reading of this passage to necessarily come

to that conclusion. In any event, this Court has concern over the passage of time before the warrant was

issued, since it was made clear by the facts presented at the detention hearing in this matter that

Wrocławski has lived openly in the United States since 1996, engaged in multiple correspondence with

Polish officials beginning in 1996, published a book in 1996, and was involved in immigration

proceedings in the U.S. Immigration Court in 2000. (Doc. ##56-60.) Matters of equity, however, are

left for consideration by the Secretary of State, in determining ultimately whether or not Wrocławski

should be surrendered.

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There is competent legal evidence which supports the issuance of an arrest warrant for

Wrocławski for Counts II and III of the complaint. The evidence is sufficient to establish

probable cause to believe that these crimes were committed and that the person before the Court,

Wrocławski, committed them. Based upon these findings of fact and conclusions of law, the

Court finds that there is sufficient cause to determine Wrocławski is extraditable on those counts.

The Court does not find probable cause to believe that Wrocławski committed the offense

charged in Count I.

CERTIFICATION OF EXTRADITABILITY

IT IS HEREBY ORDERED that the Clerk shall transmit this Certification of

Extraditability to:

U.S. Department of State

Office of Legal Advisor

Law Enforcement & Intelligence

Attention: Winnie Fuentes

2201 C. Street N.W., Room 5419

Washington, D.C. 80520

for the determination of whether ROMAN WROCŁAWSKI should be surrendered to the

Republic of Poland.

IT IS FURTHER ORDERED that pursuant to the provisions of Title 18 United States

Code, section 3184, ROMAN WROCŁAWSKI surrender to the custody of the United States

Marshals Service on or before 11:00 a.m. on May 8, 2009, to be held until surrender may be

made.

DATED this 29 th day of April, 2009.

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