667 F.3d 144 (2nd Cir. 2011), 11-0462-cv, Skaftouros v. United States

Docket NºDocket 11-0462-cv.
Citation667 F.3d 144
Opinion JudgeJOS
Party NameDimitrios SKAFTOUROS, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
AttorneyRichard B. Lind, New York, NY, for Petitioner-Appellee Dimitrios Skaftouros. Harris Fischman, Assistant United States Attorney (Preet Bharara, United States Attorney, on the brief, Justin S. Weddle, Assistant United States Attorney, of counsel), Office of the United States Attorney for the Southe...
Judge PanelBefore: CABRANES, HALL, and LOHIER, Circuit Judges.
Case DateDecember 20, 2011
CourtUnited States Courts of Appeals, United States Court of Appeals (2nd Circuit)

Page 144

667 F.3d 144 (2nd Cir. 2011)

Dimitrios SKAFTOUROS, Petitioner-Appellee,

v.

UNITED STATES of America, Respondent-Appellant.

Docket No. 11-0462-cv.

United States Court of Appeals, Second Circuit.

December 20, 2011

Argued: Aug. 25, 2011.

Page 145

[Copyrighted Material Omitted]

Page 146

Richard B. Lind, New York, NY, for Petitioner-Appellee Dimitrios Skaftouros.

Harris Fischman, Assistant United States Attorney (Preet Bharara, United States Attorney, on the brief, Justin S. Weddle, Assistant United States Attorney, of counsel), Office of the United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellant the United States of America.

Before: CABRANES, HALL, and LOHIER, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

This appeal requires us to clarify the proper role of a district court considering a petition for a writ of habeas corpus challenging an extradition order.1

Petitioner-appellee Dimitrios Skaftouros (" Skaftouros" ), wanted in his native Greece on charges including direct complicity in the murder of a minor, was certified as extraditable after a hearing in the United States District Court for the Southern District

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of New York before Magistrate Judge Theodore H. Katz, notwithstanding certain arguments he made regarding Greece's compliance, vel non, with its own criminal procedure. He petitioned for a writ of habeas corpus before District Judge Deborah A. Batts, arguing that he was " in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2241(c)(3), because two requirements of the Extradition Treaty between the United States and Greece (" the Treaty" ) 2 had not been met.3 First, he argued that the warrant for his arrest in Greece, issued by the Magistrate's Court of Athens, is invalid because, though signed by an investigating magistrate, it was not signed by the Clerk of that court. Second, he argued that the Greek statute of limitations applicable to his offenses had expired. These arguments persuaded the District Judge to grant his petition and dismiss the extradition proceedings against him.

We hold that the District Court erred by placing the burden of proof in the habeas proceeding on the United States (or the " Government" ) rather than on Skaftouros, the petitioner, and by engaging in an improper inquiry into Greece's compliance with its own laws. We reaffirm that a court considering an extradition request— or a petition for habeas corpus seeking collateral review of an extradition order— may review the demanding government's compliance with its own laws only insofar as it is necessary to ensure that the provisions of the federal extradition statute and relevant extradition treaty have been met. We further hold, upon a review of the record, that Skaftouros has not carried, and cannot carry, his burden of proving that the requirements of the Treaty were not met.

Accordingly, we reverse the judgment of the District Court, vacate the writ of habeas corpus, and remand the cause to the District Court with instructions to enter a certificate of extraditability and order of commitment. In doing so, we do not pass judgment on Skaftouros's arguments as a matter of Greek law. There will be opportunity enough for Skaftouros to raise these arguments anew before the courts in Greece, which are manifestly more capable of rendering a proper decision on those issues than an American court in an extradition— or a habeas— proceeding.

BACKGROUND

A. Skaftouros's Alleged Crime, Flight, and Arrest

The factual background set forth below is drawn from a 71-page judgment of the Council of Magistrates in Athens, dated April 3, 1991, to which we will refer in familiar parlance as " the indictment." Based on the allegations contained in the indictment, both the Magistrate Judge, who issued the certificate of extraditability, and the District Judge, who vacated it, determined that there was probable cause to believe that Skaftouros is guilty of the offenses charged. See In re Extradition of Dimitrios Skaftouros, 643 F.Supp.2d 535, 547-52 (S.D.N.Y.2009) (" Skaftouros I " ); Skaftouros v. United States, 759 F.Supp.2d 354, 357-59 (S.D.N.Y.2010) (" Skaftouros II " ). We do not suggest, much less confirm, that these allegations

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are true, an issue which presumably will be explored in due course by the relevant authorities in Greece.

Skaftouros, it is alleged, took part in a botched kidnapping, which resulted in the murder of a 16-year-old boy, Ioannis Tsatsanis. In early 1990, three of Skaftouros's accomplices concocted a scheme by which they would kidnap Tsatsanis (known in the neighborhood as Marselino), in hopes that his father would pay a large ransom. Because the three were acquainted with Marselino and did not want to be identified by him, they enlisted Skaftouros to carry out the kidnapping. Skaftouros, in turn, recruited two additional men to help him. On March 18, 1990, Marselino's acquaintances drove him to a location on the outskirts of Athens, where Skaftouros and his two recruits staged an ambush. After feigning an attack on Marselino's acquaintances, they handcuffed Marselino, drew a hood over his head, and drove him to a house in an Athens suburb, where he was held captive at gunpoint for the next several days.

The plan quickly unraveled after the kidnappers determined that Marselino likely recognized the voices of two of his acquaintances during their visits to the house where he was being held. On the evening of March 21, 1990, Skaftouros met with three other accomplices at a tavern, whereupon the group decided to kill Marselino rather than risk identification by him. Later that night, Skaftouros, along with three accomplices, loaded Marselino into a car and drove him to a remote sheepfold belonging to a relative. While Skaftouros served as a lookout, his three accomplices led Marselino to a freshly dug pit, where one of them shot and killed him using Skaftouros's revolver. The following day, Skaftouros told a friend that they had murdered someone the previous night.

Skaftouros fled Greece for Italy in May 1990. A month later, Marselino's body was discovered, after it had been dug up and partially eaten by dogs. Within a matter of days, the Greek authorities extracted a confession from one of the accomplices, who informed them that Skaftouros had also participated in the crimes. On June 22, 1990, the Investigating Magistrate for the Magistrate's Court of Athens issued a warrant for Skaftouros's arrest. The warrant charged Skaftouros with " being an immediate accessory to premeditated murder" and " kidnapping a minor child for ransom." Though the Investigating Magistrate signed the warrant, the signature line of the Clerk was left blank. Instead, according to the translation of the warrant provided by Greece to the U.S. Department of State, the following notation was made in place of the Clerk's signature: " Faces an impediment due to the late hour."

On April 3, 1991, the Council of Magistrates in Athens issued the indictment, charging Skaftouros with kidnapping a minor and direct complicity in the intentional murder of a minor. According to Greek authorities, the indictment was legally served by substitute service on or about May 4, 1991. As proof, the Greek authorities provided copies of an April 17, 1991, letter from the prosecutor to the Piraeus Police Department requesting that police serve the indictment on Skaftouros, and a response from the Piraeus Police Department dated May 6, 1991, confirming that service had been effected by delivery to Skaftouros's mother.4 However, the

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Greek authorities did not submit an original return of service, which Skaftouros argues is the only acceptable proof that service was effected. After 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 (the " October 1991 Order" ), pending Skaftouros's appearance or arrest on the charges in the indictment. The Government, relying on letters provided by the Greek authorities, argues that, by virtue of the October 1991 Order, the statute of limitations was extended from twenty to twenty-five years.5

In 1992, Skaftouros illegally entered the United States by way of Canada and he has remained here since. On May 29, 2008, federal law enforcement agents who had been tracking Skaftouros detained him for questioning in New York City. Although Skaftouros presented false identification to the agents, they suspected he was the fugitive wanted in Greece for Marselino's abduction and murder, and in order to permit further investigation, therefore charged him with making false statements. Following his arrest, Skaftouros confessed that he had provided his car in order to assist in Marselino's abduction, but denied any complicity in the murder. He also admitted that he had fled Greece in order to avoid arrest.

B. Relevant Provisions of the U.S.-Greece Extradition Treaty

The U.S.-Greece extradition treaty contains provisions similar or identical to those contained in most U.S. extradition treaties. Under Article I, the parties agree that they

shall, upon requisition duly made as herein provided, deliver up to justice any person, who may be charged with, or may have been convicted of, any of the crimes or offenses specified in Article II ... provided that such surrender shall take place only upon such evidence of criminality, as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offense had been there committed.

Id. art. I. Murder is among the offenses specified in Article II of the Treaty, which also makes clear that " [e]xtradition shall ... take place for participation in any of the crimes or offenses before mentioned as an accessory before or...

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4 practice notes
  • Reviewing Extraditions to Torture.
    • United States
    • May 1, 2021
    ...issue in the proceeding ... is not punishability but prosecutability." (alteration in original) (quoting Skaftouros v. United States, 667 F.3d 144, 155 (2d Cir. 2011))). Once the judge "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty o......
  • Second Circuit stands firm on rule of non-inquiry during extradition proceedings by assigning burden of proof to petitioner.
    • United States
    • Suffolk Transnational Law Review Vol. 36 Nbr. 1, January 2013
    • January 1, 2013
    ...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 con......
  • GIR Know How Extradition -- United States
    • United States
    • Mondaq United States
    • August 21, 2019
    ...This hearing is not a trial on the merits, and the rules of evidence and criminal procedure do not apply (see Skaftouros v. United States, 667 F.3d 144, 155 and n.16 (2d Cir 2011)). Rather, the extradition judge's role is limited to ensuring that the extradition request is valid and complie......
  • International Extradition: A Guide To U.S. And International Practice
    • United States
    • Mondaq United States
    • November 13, 2020
    ...1634.1(d). 32. 7 FAM 1616(d); see also 7 FAM 1634.2(b). 33. See JM 9-15.700; 7 FAM 1634.2(a); see also, e.g., Skaftouros v. United States, 667 F.3d 144, 155 & n.16 (2d Cir. 34. See 7 FAM 1634.2(c). 35. See 18 U.S.C. ' 3184; 7 FAM 1616(e), 1635.1(a); JM 9-15.700. 36. 7 FAM 1635.1(b). 37.......
94 cases
  • In re Extradition of Martinelli Berrocal, 083117 FLSDC, 17-22197-Civ-TORRES
    • United States
    • United States District Courts. 11th Circuit. Southern District of Florida
    • August 31, 2017
    ...fugitive constituted the “arrest warrant” required under the applicable extradition treaty); Skaftouros v. United States, 667 F.3d 144, 160 n.20 (2d Cir. 2011) (noting that “we defer to the Greek courts, which may consider whether [the fugitive] or the Greek prosecu......
  • 830 F.3d 987 (9th Cir. 2016), 12-56506, Santos v. Thomas
    • United States
    • United States Court of Appeals (9th Circuit)
    • July 28, 2016
    ...country has not followed its own laws in bringing a criminal case or extradition request. See Skaftouros v. United States, 667 F.3d 144, 155-56 (2d Cir. 2011) (principles of international comity and judicial modesty restrain extradition courts from deciding most que......
  • 793 F.3d 533 (6th Cir. 2015), 14-5860, Martinez v. United States
    • United States
    • United States Court of Appeals (6th Circuit)
    • July 10, 2015
    ...in violation of the Constitution or laws or treaties of the United States." See, e.g., Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (relying on § 2241(c)(3) in habeas review of extradition proceedings); Plaster v. United States, 720 F.2d 3......
  • In re of Extradition of Nezirovic, 091613 VAWDC, 7:12MC39
    • United States
    • United States District Court (Western District of Virginia)
    • September 16, 2013
    ...examining the history of the Extradition Treaty have found that it is in full force and effect. See, e.g., Skaftouros v. United States, 667 F.3d 144, 151 n.10 (2d Cir. 2011) (Bosnia "is a successor to the Kingdom of Serbia and thus a successor party to the treaty of extradition between......
  • Request a trial to view additional results
2 firm's commentaries
  • GIR Know How Extradition -- United States
    • United States
    • Mondaq United States
    • August 21, 2019
    ...This hearing is not a trial on the merits, and the rules of evidence and criminal procedure do not apply (see Skaftouros v. United States, 667 F.3d 144, 155 and n.16 (2d Cir 2011)). Rather, the extradition judge's role is limited to ensuring that the extradition request is valid and complie......
  • International Extradition: A Guide To U.S. And International Practice
    • United States
    • Mondaq United States
    • November 13, 2020
    ...1634.1(d). 32. 7 FAM 1616(d); see also 7 FAM 1634.2(b). 33. See JM 9-15.700; 7 FAM 1634.2(a); see also, e.g., Skaftouros v. United States, 667 F.3d 144, 155 & n.16 (2d Cir. 34. See 7 FAM 1634.2(c). 35. See 18 U.S.C. ' 3184; 7 FAM 1616(e), 1635.1(a); JM 9-15.700. 36. 7 FAM 1635.1(b). 37.......
2 books & journal articles
  • Reviewing Extraditions to Torture.
    • United States
    • May 1, 2021
    ...issue in the proceeding ... is not punishability but prosecutability." (alteration in original) (quoting Skaftouros v. United States, 667 F.3d 144, 155 (2d Cir. 2011))). Once the judge "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty o......
  • Second Circuit stands firm on rule of non-inquiry during extradition proceedings by assigning burden of proof to petitioner.
    • United States
    • Suffolk Transnational Law Review Vol. 36 Nbr. 1, January 2013
    • January 1, 2013
    ...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 con......

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