





CITATION:
United States of America 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.


