CITATION: United States v. Dumitrescu, 2011 ONCA 802
DATE: 20111216
DOCKET: C53418
COURT OF APPEAL FOR ONTARIO
Simmons, Blair and Hoy JJ.A.
BETWEEN
The Attorney General of Canada on behalf of the United States of America
Respondent
and
Ioan Dumitrescu (a.k.a. Dan)
Appellant
Demetrius Kotsakis, for the appellant
Moiz Rahman, for the respondent
Heard and endorsed: December 14, 2011
On appeal against a committal order made by Justice Gary Tranmer of the Superior court of Justice dated February 11, 2011.
APPEAL BOOK ENDORSEMENT
[1] The appellant was committed for extradition to the United States to stand trial on a charge the Canadian equivalent of which is conspiracy to traffic in cocaine. He raises two issues on his appeal from the committal order.
[2] First, the appellant claims that the evidence presented at the extradition hearing was insufficient to support a committal because it failed to rise beyond the level of demonstrating an attempt to enter into a conspiracy. Put another way, the evidence was insufficient to demonstrate the necessary agreement and intention to support a finding of conspiracy.
[3] We reject this submission. On our review, of the record of the case, the evidence presented was capable of supporting the following findings:
• The appellant had been in contact with a man named Hernandez in Los Angeles.
• Hernandez operated a stash house as part of a larger drug trafficking organization.
• The appellant spoke to Hernandez on May 23 and May 26, 2006. He discussed travelling to California on his "regular schedule" to meet with Hernandez to pick up cocaine. The two men also discussed picking up additional cocaine and splitting the Canadian sale proceeds of that cocaine between themselves.
• A confidential source had multiple dealings with the appellant to arrange for the transport of cocaine from the United States to Canada. The source was able to identify the appellant's voice on wiretapped conversations with Hernandez.
• The appellant was arrested in Windsor on September 14, 2006 for importing 15 kilograms of cocaine. When arrested, he was in possession of the cell phone used to receive telephone calls from Hernandez. Hernandez was in jail at the time of the appellant's arrest.
[4] In our view, at a minimum, the foregoing findings are capable of supporting an inference that the appellant and Hernandez had an ongoing agreement that the appellant would pick up cocaine from Hernandez in the United States and transport the cocaine to Canada for distribution in this country and that they intended to carry out that agreement.
[5] The second issue raised by the appellant is that the extradition judge improperly relied on expert evidence that there was an agreement between the appellant and Hernandez in order to find an agreement. We do not accept this submission. On our reading of the expert evidence, she did not testify that there was an agreement. In essence, the extradition judge found that her evidence interpreting the code meaning of the wiretapped conversations was capable of supporting a finding of an agreement.
[6] The appeal is therefore dismissed.