Haxhiaj v. Hackman

• Decision Date: 09 June 2008
• Docket Number: No. 07-6836.,07-6836.
• Citation: 528 F.3d 282
• Parties: Blendi HAXHIAJ, Petitioner-Appellant, v. John HACKMAN, United States Marshal for the Eastern District of Virginia, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

528 F.3d 282

Blendi HAXHIAJ, Petitioner-Appellant, v. John HACKMAN, United States Marshal for the Eastern District of Virginia, Respondent-Appellee.

No. 07-6836.

United States Court of Appeals, Fourth Circuit.

Argued: March 20, 2008.

Decided: June 9, 2008.

ARGUED: Darren Johnson, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Justin Okun, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Lawrence J. Leiser, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and DAVID R. HANSEN, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge TRAXLER wrote the opinion, in which Senior Judge HAMILTON and Senior Judge HANSEN joined.

OPINION

TRAXLER, Circuit Judge:

Blendi Haxhiaj seeks review of the district court's denial of habeas relief from a certification of extradition declaring that Haxhiaj is eligible to be extradited to Italy to serve a 12-year sentence imposed in 2003 by an Italian court as a result of a drug trafficking conviction. Haxhiaj contends that there was insufficient evidence presented to the extradition court to establish probable cause that he committed the underlying drug offense, and hence the certification should not have issued. See 18 U.S.C.A. § 3184 (West Supp.2007). As explained below, we conclude that there is sufficient evidence in the record to support the extradition court's finding of probable cause. Accordingly, we affirm the district court's denial of Haxhiaj's habeas petition.

I.

Haxhiaj is an Albanian national who was charged in Italy with various crimes arising from his participation in a large drug-trafficking organization that transported heroin and other illegal drugs from Albania into Italy between 1997 and August 2000. In 2000, Italian law enforcement agents arrested numerous participants in this conspiracy, including Haxhiaj's sister, Doriana. Haxhiaj avoided arrest, however, by fleeing to the United States in November 2000 and subsequently applying for asylum here.

In June 2003, Haxhiaj was convicted in absentia by the Court of Milan on three drug-trafficking counts in a multiple-count indictment relating to the conspiracy; he was acquitted on seven counts. In July 2004, Haxhiaj's convictions were affirmed by the Court of Appeal of Milan and became final on October 14, 2004, whereupon Haxhiaj was sentenced to a prison term of twelve and one-half years. The Court of Appeal of Milan then issued a warrant for Haxhiaj's arrest as a fugitive.

Meanwhile, Haxhiaj was living and working in Madison, Wisconsin. In February 2004, apparently unaware that Haxhiaj was a fugitive from Italy when he arrived here or that he had been convicted by an Italian court for international drug trafficking since his arrival, the United States granted Haxhiaj asylum from Albania. The Department of Homeland Security ("DHS") learned of Haxhiaj's fugitive status the following year and, on October 11, 2005, took Haxhiaj into custody as he was re-entering the United States after an overseas trip. On November 8, 2005, pursuant to the bilateral extradition treaty between the United States and Italy (the "Treaty" or "Extradition Treaty"), the United States Attorney for the Eastern District of Virginia filed a formal extradition request for Haxhiaj on behalf of Italy. See Extradition Treaty between the Government of the United States of America and the Government of the Republic of Italy, U.S.-Italy, Oct. 13, 1983, 35 U.S.T. 3023, art. I; see 18 U.S.C.A. § 3184 (establishing extradition proceedings in the United States).

The Treaty imposes mutual obligations upon the United States and Italy "to extradite to each other ... persons whom the authorities of the Requesting Party have charged with or found guilty of an extraditable offense." U.S.-Italy Extradition Treaty, art. I. An extraditable offense under the Treaty is an offense that is "punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year," id., art. II, ¶ 1, including "[a]ny type of association to commit [such] offenses" and "conspiracy to commit [such] an offense," id., art. II, ¶ 2.

The government seeks extradition based on Haxhiaj's three counts of conviction, describing them as follows: (1) "having unlawfully kept for distribution purposes 1.932 kilograms of heroin" on June 5, 2000; (2) "[f]rom approximately 1997 through ... August 2000, in Milan, Bergamo, Naples, Brindisi and Ravenna, Italy, and in Albania, having associated with others for the purpose of trafficking in illegal drugs, namely heroin, cocaine and marijuana;" and (3) "[f]rom about July 31, 2000 to August 12, 2000, in Naples, Italy, having purchased, received and kept with the intent to distribute approximately 60 kilograms of marijuana." J.A. 12. In support of its extradition request, the government offered a certified copy of the judgment issued by the Court of Appeal of Milan affirming Haxhiaj's conviction.

The magistrate judge conducted an extradition hearing pursuant to 18 U.S.C.A. § 3184 "to determine whether (1) the crime[s are] extraditable; and (2) there is probable cause to sustain the charge[s]." Ordinola v. Hackman, 478 F.3d 588, 608 (4th Cir.) (Traxler, J., concurring) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 128 S.Ct. 373, 169 L.Ed.2d 259 (2007). As for whether Haxhiaj was charged with "extraditable" crimes, the magistrate judge noted that it was "essentially uncontested" that "[t]he drug trafficking crimes for which [Haxhiaj's] surrender is sought are covered by the terms of the Treaty," J.A. 192, and Haxhiaj does not challenge this conclusion now. However, the magistrate judge determined that the government failed to submit sufficient evidence of probable cause and refused to certify Haxhiaj for extradition. The magistrate judge reasoned that, unlike evidence of a conviction where the fugitive was present at trial, mere evidence of an in absentia conviction, by itself, will not sustain a finding of probable cause as required by § 3184. Instead, the magistrate judge was looking for evidence of the kind "adduced at the trial in absentia" in order to make an independent assessment of probable cause. J.A. 195.

Finding no such evidence, the magistrate judge denied the request for a certificate of extradition; however, instead of dismissing the extradition complaint, the magistrate judge permitted the government to supplement the record. The government then submitted a statement from Procuratore Generale Dr. Bruno Fenzia, an Italian magistrate who performs a prosecutorial function in the Italian system of criminal justice. Fenzia's statement summarized the evidence supporting Haxhiaj's conviction, including the testimony of one of the investigators as well as the results of wiretaps and physical surveillance. In support of his summary, Fenzia cited relevant portions of the written opinion of the Court of Appeal of Milan affirming Haxhiaj's conviction. The government, however, did not submit trial transcripts of the investigator's testimony or any evidence underlying such testimony, like transcripts of the wiretapped phone conversations or documents created during the investigation of Haxhiaj and his co-conspirators. Additionally, Fenzia's statement did not explain the basis for his summary of the evidence, and thus it is unclear whether Fenzia related this information based on personal knowledge or whether he gleaned it solely from the Court of Appeal's opinion or some other source.

On August 16, 2006, the magistrate judge concluded that, in view of the additional information submitted by the government, there was probable cause to believe that Haxhiaj committed the crimes identified in Italy's extradition request. Accordingly, the magistrate judge issued a certificate of extraditability. See 18 U.S.C.A. § 3184; see also Ordinola, 478 F.3d at 609 ("If the extradition judge concludes that there is, in fact, probable cause, he is required to certify the individual as extraditable to the Secretary of State.") (internal quotation marks omitted) (Traxler, J., concurring).

Because the extradition statute does not allow the fugitive to seek direct review of an extradition certification, Haxhiaj next petitioned for habeas review pursuant to 28 U.S.C.A. § 2241. See Ordinola, 478 F.3d at 609 (explaining that "the fugitive has but one means of judicial recourse— filing a habeas petition"); Kastnerova v. United States, 365 F.3d 980, 984 n. 4 (11th Cir.2004) ("There is no direct appeal in extradition proceedings."); see also M. Cherif Bassiouni, International Extradition: United States Law and Practice 911 (5th ed. 2007) ("An extradition order is not a final order within the meaning of Title 28 U.S.C. § 1291 ... [and therefore] there is no direct appeal from the decision of the judicial officer conducting the extradition proceedings."). The district court, noting the narrow scope of habeas review in the extradition context, recognized that it was not permitted to disturb the decision of the magistrate judge to issue an extradition certification as long as there was "any evidence" in the record supporting the finding of probable cause. J.A. 521. The district court, after reviewing the record, found that there was indeed evidence supporting the probable cause determination:

Although the magistrate judge correctly found that a conviction in absentia is not sufficient by itself to meet the probable cause requirement of the Treaty and the Statute, the evidence contained in the record through the detailed opinion of the Court of Appeal of Milan is much more than the mere fact of conviction. The opinion...