Afanasjev v. Hurlburt, No. 04-13303.

• Decision Date: 26 July 2005
• Docket Number: No. 04-13309.,No. 04-13303.
• Citation: 418 F.3d 1159
• Parties: Valerij AFANASJEV, Petitioner-Appellant, v. Thomas D. HURLBURT, Jr., United States Marshal, Condoleezza Rice, Secretary of State, United States of America, Respondents-Appellees. Tatjana Afanasjeva, Petitioner-Appellant, v. Thomas D. Hurlburt, Jr., United States Marshal, Condoleezza Rice, Secretary of State, United States of America, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

418 F.3d 1159

Valerij AFANASJEV, Petitioner-Appellant, v. Thomas D. HURLBURT, Jr., United States Marshal, Condoleezza Rice, Secretary of State, United States of America, Respondents-Appellees.

Tatjana Afanasjeva, Petitioner-Appellant, v. Thomas D. Hurlburt, Jr., United States Marshal, Condoleezza Rice, Secretary of State, United States of America, Respondents-Appellees.

No. 04-13303.

No. 04-13309.

United States Court of Appeals, Eleventh Circuit.

July 26, 2005.

James H. Burke, Jr. and R. Fletcher Peacock, Fed. Pub. Defenders, Jacksonville, FL, for Petitioners-Appellants.

Peter J. Sholl, Linda Julin McNamara, Tampa, FL, for Respondents-Appellees.

Appeals from the United States District Court for the Middle District of Florida.

Before BLACK and HULL, Circuit Judges, and HODGES^*, District Judge.

BLACK, Circuit Judge:

The Republic of Lithuania has formally requested the extradition of Appellants Tatjana Afanasjeva and Valerij Afanasjev, a married couple charged with committing fraudulent business practices. After conducting a hearing pursuant to 18 U.S.C. § 3184, a magistrate judge certified their extradition to Lithuania on some, but not all, of the charges. In finding probable cause to extradite, the magistrate judge relied primarily on an unsworn bill of indictment prepared by a Lithuanian investigator. Appellants filed petitions for habeas corpus, arguing the indictment was not competent evidence to establish probable cause. The district court denied habeas relief, concluding there was sufficient evidence to support the magistrate's determination that Appellants were extraditable. We affirm the district court.

I. BACKGROUND

A. Facts

Tatjana Afanasjeva and her husband, Valerij Afanasjev, are Russian nationals who operated a private business in Lithuania during the 1990s. Over the course of several years, the couple allegedly defrauded 81 individuals and misappropriated approximately 1,442,006 in Lithuanian litas (LTL). Appellants were eventually charged with violating several provisions of the Criminal Code of the Republic of Lithuania. On May 19, 1999, an investigator in Lithuania issued a bill of indictment summarizing the charges and the criminal investigation.

Most of the charges filed against Appellants relate to their alleged involvement with a company named UAB "Grazna," which was established on June 6, 1995.¹ Valerij worked as an accountant for UAB "Grazna," and Tatjana was the company's acting director. From June 1995 until December 1997, Appellants allegedly used their association with this company to fraudulently obtain the personal property of others. While acting as representatives of the company, Appellants borrowed money from private persons and agreed to repay the funds by a specific date. According to the bill of indictment, interest rates were not mentioned in the written agreements; however, to attract lenders, Appellants would verbally agree to pay interest on the borrowed money. As the contracts concluded, Appellants would deny that any interest was promised and assert their only obligation was to return the entrusted money in installments.

The indictment alleges that Appellants misled investors in other ways, as well. For example, Appellants allegedly informed potential lenders that the company's financial situation was strong, even though it was actually experiencing a financial crisis. In addition, several victims stated they were led to believe the invested money would be used to purchase real property. According to the indictment, Appellants often promised investors that their money would be used in such a manner, and UAB "Grazna" was advertised in the local newspaper, "Klaipeda," as a company engaged in the purchase and sale of real estate. Allegedly, Appellants assured lenders that their investments were secure, because the real property could, if necessary, be resold to satisfy the loans. However, despite these assurances, Appellants purportedly failed to use the funds as promised. The indictment alleges that Appellants purchased just two apartments in 1995 and only one in 1996. Furthermore, during the course of the investigation, an employee at UAB "Grazna" stated the company rarely bought real property.

After acquiring the victims' money, Appellants allegedly used the funds for their own personal needs. The indictment asserts lenders suffered significant losses because Appellants often failed to (1) repay loans by the agreed-upon date, (2) pay interest on the borrowed money, or (3) return any portion of the original loans. Based on these actions, Appellants were charged with several counts of fraud, in violation of Article 274(2) and (3) of the Criminal Code of the Republic of Lithuania.² Appellants were also charged with violating regulations regarding monetary transactions or transactions in securities, Article 329,³ and with fraudulent bookkeeping, Article 323(2).

On February 5, 1998, Appellants signed written undertakings not to leave Lithuania pending the resolution of the criminal charges. On June 10, 1999, the Lithuanian authorities referred Appellants for trial. When Appellants failed to appear, the Lithuanian judge suspended the criminal proceedings until the couple could be located.

B. Procedural History

On March 28, 2003, the United States, acting on behalf of the government of Lithuania, filed complaints in federal district court seeking the extradition of Appellants.⁴ A magistrate judge immediately issued arrest warrants for Tatjana and Valerij. Appellants were arrested on April 3, 2003, in Ponte Vedra, Florida.

In accordance with 18 U.S.C. § 3184, the magistrate judge held a hearing to determine whether Appellants were extraditable.⁵ In support of extradition, the Government submitted, inter alia, the following documents: (1) the bill of indictment; (2) an order from a Lithuanian judge, which summarizes the allegations and the procedural history of the case; and (3) a letter from the Prosecutor General of Lithuania, which describes the results of the investigation, restates the charges, and quotes the applicable provisions of the Lithuanian Criminal Code. The 106-page bill of indictment provides a detailed account of Appellants' alleged criminal activities. In the indictment, the Lithuanian investigator summarized statements made by victims, employees of UAB "Grazna," and other witnesses. The indictment, however, was not prepared under oath.

After reviewing the evidence, the magistrate judge issued certificates of extraditability, finding Appellants were extraditable on some, but not all, of the charges lodged against them in Lithuania. The magistrate judge concluded the fraud charges were the only extraditable offenses under the treaty. Moreover, the magistrate judge found that probable cause existed to believe Appellants committed the alleged fraudulent acts.⁶ In making the probable cause determination, the magistrate judge relied exclusively on the bill of indictment.

Appellants collaterally challenged the magistrate judge's order by filing petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2241. A petition for writ of habeas corpus is a proper method to contest an extradition order because there is no direct appeal in extradition proceedings. Kastnerova v. United States, 365 F.3d 980, 984 n. 4 (11th Cir.2004) (citation omitted). In the petitions, Appellants argued the magistrate judge erred when he determined there was probable cause to believe they were guilty of fraud. The district court denied the habeas petitions, finding there was competent evidence to support the magistrate's probable cause determination. Tatjana and Valerij appealed the district court's denial of their habeas petitions to this Court. We consolidated the two appeals.

II. STANDARD OF REVIEW

"On review of a denial of a habeas petition pertaining to the issuance of a certification of extraditability, we review factual findings for clear error and questions of law de novo." Id. at 984 (citation omitted).

III. DISCUSSION

This Court has repeatedly noted "that a district court's [habeas] review of a magistrate judge's issuance of a certificate of extraditability is narrow." Id.; see also Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir.1993); Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir.1980).⁷ As we have explained, a petition for writ of habeas corpus in an extradition case "is not a means for rehearing the magistrate's findings." Escobedo, 623 F.2d at 1101 (citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)). Rather, "[r]eview of the magistrate's order is limited `to determining [1] whether the magistrate had jurisdiction, [2] whether the offense charged is within the treaty, and [3] by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.'" Kastnerova, 365 F.3d at 984 (citing Fernandez, 268 U.S. at 312, 45 S.Ct. at 542) (emphasis added). In this case, Appellants have only challenged the magistrate's answer to the third inquiry.

Tatjana and Valerij argue the district court should have granted their habeas petitions because the magistrate judge issued the certificates of extraditability based on inadequate evidence. They contend the Lithuanian bill of indictment, which the magistrate relied heavily upon, was not competent legal evidence to establish probable cause. Appellants assert the indictment lacks competency and reliability for the following reasons: (1) the document was not made under oath; (2) the witness and victim statements constituted hearsay because they were recounted by the investigator; (3) the statements were not sworn or signed by the witnesses and victims; and (4) it was unclear whether the indictment was based on the investigator's personal knowledge because he never explicitly stated that he was the individual who interviewed the witnesses and victims. Thus, the sole issue on appeal is...