Second Circuit stands firm on rule of non-inquiry during extradition proceedings by assigning burden of proof to petitioner.

AuthorMullen, Katie
PositionINTERNATIONAL LAW

Skaftouros v. United States, 667 F.3d 144 (2d Cir. 2011).

A citizen of a foreign country who has been certified extraditable in a United States court has the opportunity to file a writ of habeas corpus to seek collateral review of the order. (1) Habeas corpus is available to the extraditee only to consider whether the magistrate had jurisdiction, whether the offense charged is within the applicable bilateral treaty, and whether there was any evidence warranting the reasonable finding of the accused's guilt. (2) In doing so, the petitioner carries the burden of proving by a preponderance of the evidence that he is in custody in violation of 28 U.S.C. [section] 2241(c)(3). (3) During these proceedings, the government is not required to conduct an analysis of the demanding country's laws; rather, its role is simply to ensure that the proceedings comply with applicable provisions of the treaty and the governing U.S. statutes. (4) In Skaftouros v. United States, (5) the United States Court of Appeals for the Second Circuit addressed whether the government bears the burden of proof in a habeas corpus proceeding, thereby requiring it to establish the validity of the demanding country's laws and procedures as it pertains to the petitioner's case. (6) The court held that it is not the government's responsibility to establish that the case against the petitioner complied with the foreign country's laws; instead, it is the petitioner who must prove that this burden was never met. (7)

On March 21, 1990, Dimitrios Skaftouros allegedly took part in the murder of a 16-year old boy in Greece. (8) Service of an indictment soon followed an issued warrant charging Skaftouros with both being an immediate accessory to premeditated murder and kidnapping of a minor child for ransom. (9) Although the investigating magistrate signed the warrant, the clerk failed to do so. (10) When Skaftouros failed to appear to face the charges, the District Attorney of Appeal of Athens suspended the proceedings by an order dated October 24, 1991, pending his appearance or arrest on the charges in the indictment. (11) In 2008, Skaftouros was arrested in the United States. (12) The Greek government requested that Skaftouros be extradited to Greece to face charges for the murder, and in support of its request, submitted the arrest warrant, dated June 22, 1990, as well as the indictment containing a summary of the allegations against him. (13)

During Skaftouros's extradition hearing in the Southern District of New York, he moved to dismiss the complaint on the grounds that there was insufficient evidence to establish probable cause that he had committed the crime and that the information in the Greek indictment was unreliable. (14) The magistrate judge denied his motion and granted the government's application for a certificate of extradition. (15) The Second Circuit's opinion in Sacirbey v. Guccione influenced the actions of Skaftouros in responding to the Judge's denial. (16) Relying on Sacirbey, Skaftouros filed a petition for a writ of habeas corpus and a motion to dismiss, arguing that the arrest warrant was "fatally defective" and that the Greek statute of limitations for murder had expired. (17) Skaftouros submitted a letter contending that there was no tolling provision in the Greek statute of limitations, while the government attached a letter from the Public Prosecutor of the Court of Appeals of Athens stating that the statute of limitations in this case had been extended to 25 years by operation of the October 1991 Order. (18) The district court granted both the petition for a writ of habeas corpus and the motion to dismiss by finding that Skaftouros had not been "charged" with an offense under the treaty because the warrant was invalid under Greek law, that the government failed to prove the validity of the warrant, and that the government had failed to sustain its burden of proof that the statute of limitations had not expired. (19)

On appeal, the Second Circuit had to determine whether the government bears the burden of proof in a habeas corpus proceeding under 28 U.S.C. [section] 2241(c)(3), and as such, must prove that the demanding country's laws have been met. (20) The court held that the burden of proof does not rest with the government but with the petitioner who must prove by a preponderance of the evidence that he is in custody in violation of the Constitution, laws, or treaties of the United States. (21) Consequently, the court vacated the writ of habeas corpus and remanded the case for the purpose of entering a certificate of extradition. (22)

International extradition is the formal process by which a person found in one country is surrendered to another country for prosecution or punishment. (23) The first U.S. statute discussing extradition was the Act of Aug. 12, 1848, which required the apprehension and delivering up of certain offenders pursuant to treaty stipulations between the United States and foreign nations. (24) The current statute in force, 18 U.S.C. [section] 3181, requires an existing treaty between nations to be in force before an individual may be extradited. (25) Until the enactment of the Extradition Agreement between the United States and the European Union, the United States relied heavily on bilateral agreements as its legal authority in extradition matters. (26) These newer provisions amend or replace certain provisions contained in treaties between the U.S. and individual EU Member States which conflict with the requirements of the U.S.-EU Treaty. (27)

The United States and Greece entered into a bilateral extradition treaty on May 6, 1931. (28) Both countries agreed to respect the provisions of the treaty and to "deliver up to justice" any person who falls within the categories described. (29) The Treaty of Extradition Between the United States of America and the Hellenic Republic (U.S.-Greece Treaty) remains in effect and has been further supplemented by the U.S.-EU Treaty. (30) Prominent provisions contained in both the U.S.-Greece and U.S.-EU Treaty include, but are not limited to, the extraditable offenses identified by the treaty, the country where the crime occurred, the nationality of the citizen to be extradited, and the statute of limitations for the charged offenses. (31) The United States has standardized a procedure for extradition within its courts and its process is regulated by the applicable treaty; the proceedings are conducted between the federal government of the United States and the government of the demanding country. (32)

After the requesting nation makes a formal request for extradition, a hearing under 18 U.S.C. [section] 3184 is conducted to determine whether the fugitive is extraditable, at which time the judicial officer's inquiry is limited to whether a valid treaty exists, whether the crime charged is covered by the relevant treaty, and whether the evidence given in support of the complaint is sufficient to establish probable cause. (33) Upon a finding by the extradition officer that the evidence is sufficient to sustain the charge under the provisions of the applicable treaty, he then must issue a certificate of extraditability to the Secretary of State, who has final discretionary authority to extradite the fugitive. (34) A petitioner may only file a writ of habeas corpus for review of the order to inquire whether the magistrate had jurisdiction, the offense charged is within the treaty, or there was any evidence warranting the finding that there was reasonable ground to believe the assumed guilty, because extradition orders are not considered final decisions appealable as of right. (35) Habeas corpus is not a neutral proceeding in which the petitioner and the State stand on equal ground; rather, it is a proceeding in which the petitioner seeks to overturn a presumptively valid judgment. (36) This limits the courts' scope of review, because the courts authorization does not permit an evaluation of the laws and procedures of foreign nations. (37) The petitioner bears the burden of proof in a habeas corpus proceeding and must prove by a preponderance of evidence that his or her detention is in violation of [section] 2241(c)(3). (38)

In Skaftouros v. United States, the Second Circuit held the government does not bear the burden of proof in a habeas corpus proceeding under 28 U.S.C. [section] 2241(c)(3) and is not required to establish the validity of the demanding state' laws and proceedings as it pertains to the petitioner's case. (39) The court, because of the impermissible burden shifting, discovered Greece had not produced a valid arrest warrant and the statute of limitations had expired. (40) In determining whether Greece had failed to produce a valid arrest warrant, the court looked to the provisions of the U.S.-Greece Treaty, which states where a fugitive is "merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and of the depositions, upon which such warrant may have been issued, shall be produced." (41) The court held that Greece fully complied with this requirement by submitting the warrant for Skaftouros's arrest--authenticated by the U.S. Ambassador to Greece--and the indictment demonstrating the existence of probable cause to believe he had committed the charged offense. (42) The court distinguished this case from Sacirbey, because the issue in Sacirbey dealt solely with the validity of the arrest warrant under the applicable treaty, not the validity of the warrant as a matter of technical compliance with Bosnia's criminal procedure. (43) Unlike the arrest warrant in Sacirbey, which failed to show the government had charged the fugitive with a crime and possessed the jurisdiction to prosecute him within the territory, this court concluded that the arrest warrant provided by Greece satisfied the duly authenticated warrant requirements under the treaty and further concluded that...

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