Koskotas v. Roche

• Decision Date: 10 September 1990
• Docket Number: No. 90-1738,90-1738
• Citation: 931 F.2d 169
• Parties: George KOSKOTAS, Petitioner, Appellant, v. James B. ROCHE, etc., Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 169

931 F.2d 169

George KOSKOTAS, Petitioner, Appellant, v. James B. ROCHE, etc., Respondent, Appellee.

No. 90-1738.

United States Court of Appeals, First Circuit.

Heard Sept. 10, 1990.

Decided April 30, 1991.

Mitchell R. Berger, with whom Ronald S. Liebman, Charles E. Talisman, Michael S. Maurer and Patton, Boggs & Blow, were on brief, Washington, D.C., for petitioner, appellant.

Victor A. Wild, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, Boston, Mass., for respondent, appellee.

Before CAMPBELL and CYR, Circuit Judges, and COFFIN, Senior Circuit Judge.

CYR, Circuit Judge.

Petitioner-appellant George Koskotas challenges a district court order denying habeas corpus relief from an order of extradition to the Hellenic Republic of Greece for criminal prosecution. We affirm. ¹

I BACKGROUND

"The Koskotas Affair" was part of the notorious political scandal which led to the ouster of Greek Prime Minister Andreas Papandreou and PASOK, the controlling political party. In November 1988, shortly after the scandal erupted, Koskotas fled Greece; first to Brazil and then to the The extradition request was referred to a United States magistrate judge who found sufficient evidence to warrant extradition under the Treaty. See In re Extradition of Koskotas, 127 F.R.D. 13 (D.Mass.1989). The extradition order was approved by the United States District Court, subject to minor amendment, and the amended certification of extraditability and order of extradition was entered July 25, 1990. Koskotas filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2253, and now appeals the district court order dismissing the section 2253 petition.

United States. Koskotas, former chairman, managing director and majority owner of the Bank of Crete ("Bank"), was taken into federal custody on November 25, 1988, in the District of Massachusetts, pursuant to a provisional arrest warrant issued at the request of the Government of Greece under the provisions of the Treaty of Extradition between the United States of America and the Hellenic Republic (otherwise referred to as "Greek-American Extradition Treaty" or "Treaty"). The arrest warrant directed that Koskotas be held for extradition to Greece to answer to charges of illicit appropriation and forgery, for allegedly funneling huge amounts of embezzled monies to Greek government officials in return for political favors to the Bank.

II DISCUSSION

Standard of Review

As an order of extradition is not a "final order" and direct review is therefore unavailable, In re Extradition of Manzi, 888 F.2d 204, 205 (1st Cir.1989) (per curiam), cert. denied, --- U.S. ----, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990), limited appellate review may be obtained only on a petition for writ of habeas corpus, Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920). The review available under 28 U.S.C. Sec. 2253 is not meant to be "a means for rehearing what the magistrate already decided." Manzi, 888 F.2d at 205 (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)). "[H]abeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty, and ... whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez, 268 U.S. at 312, 45 S.Ct. at 542; see also Manzi, 888 F.2d at 205; Romeo v. Roache, 820 F.2d 540, 542-543 (1st Cir.1987).

"Political Offense"

Exception Claim

Koskotas does not challenge the magistrate judge's jurisdiction, but relies principally on the contention that the offenses with which he is charged in Greece are "of a political character," hence not extraditable offenses "within the treaty." ² See Quinn v. Robinson, 783 F.2d 776, 787 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986); Eain v. Wilkes, 641 F.2d 504, 512 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). In order to come within the "political offense" exception, Koskotas must meet the so-called "incidence" test, by demonstrating that the alleged crimes were "committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion." Eain, 641 F.2d at 518; Escobedo v. United States, 623 F.2d 1098, 1104 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980); Sindona v. Grant, 619 F.2d 167, 173 (2d Cir.1980); In re Ezeta, 62 F. 972, 977-1002 (N.D.Cal.1894). "The [political offense] exception does not apply to political acts that involve less fundamental efforts to accomplish change or that do not attract sufficient adherents to create the requisite amount of turmoil," nor to common crimes connected but tenuously to a political disturbance, as distinguished from criminal acts "causally or ideologically related to [an] uprising." Quinn, 783 F.2d at 807, 809. See also Ornelas v. Ruiz, 161 U.S. 502, 511, 16 S.Ct. 689, 692, 40 L.Ed. 787 (1896) (considering the character of the foray, mode of attack, persons killed and kind of property taken, "acts which contained all the characteristics of crimes under the ordinary law" were not "political offenses").

Koskotas distorts both the relevant Greek political landscape and the purpose of the "political offense" exception, by characterizing as a violent uprising what plainly is an electoral conflict tainted by allegations of political corruption. ³ According to Koskotas, Greece was, and remains, in the midst of a violent "constitutional revolt" pitting PASOK party members against their political opposition. Koskotas attempts to demonstrate that the financial crimes with which he is charged were at once part and parcel of PASOK's effort to eliminate its political opposition and a precipitating cause of the sometimes violent retaliation against PASOK.

The "political offense" exception historically has embraced only offenses aimed either at accomplishing political change by violent means or at repressing violent political opposition. ⁴ The exception is "applicable only when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective." Quinn, 783 F.2d at 897; see also Escobedo, 623 F.2d at 1104 (kidnapping of Cuban consul for alleged purpose of ransoming political prisoners in Cuba, not "political offense" because not "committed in the course of and incidental to a violent political disturbance").

Criminal conduct in the nature of financial fraud, even involving political corruption, traditionally has been considered outside the "political offense" exception. See, e.g., Sindona, 619 F.2d at 173 (fraudulent bankruptcy, even if "it resulted from political maneuverings and is pursued for political reasons," not an offense of a political character); Jhirad v. Ferrandina, 536 F.2d 478, 485 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976) (embezzlement by public official, "not in any sense a political offense"); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972) (financial crimes by Peruvian public official, not political offenses); Jiminez v. Aristeguieta, 311 F.2d 547, 560 (5th Cir.1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1963) (financial crimes by former chief executive of Venezuela, not political offenses).

Significantly, Koskotas alleges neither an intention to promote violent political change nor an intention to repress violent political opposition. Indeed, Koskotas ascribes no political motive for the criminal conduct with which he is charged. See In re Doherty, 599 F.Supp. 270, 277 n. 7 (S.D.N.Y.1984) (an otherwise political act could be deprived of its political character if committed for "purely personal reasons"). The "political offense" exception has never been extended to offenses which prompt others to engage in violent uprisings. The traditional limits of the "political offense" exception do not extend coverage to the criminal offenses filed against Koskotas.

Koskotas contends, nonetheless, that the alleged offenses are within the "political offense" exception under the Greek-American Extradition Treaty, which we should treat as a source of law unto itself. See Greci v. Birknes, 527 F.2d 956, 958-959 (1st Cir.1976) (interpreting Italian-American Extradition Treaty in light of its language and the circumstances of its adoption). Relying principally on In re Extradition of Mylonas, 187 F.Supp. 716 (N.D.Ala.1960), Koskotas asserts that the "political offense" exception has been accorded broader interpretation under the Greek-American Extradition Treaty than under other extradition treaties.

The Mylonas court refused to extradite a former unit commander in the Greek Civil War for financial crimes allegedly committed after the war. Even though there was no evidence that Mylonas's alleged crimes were prompted by ideological motives, the court considered it sufficient that the prosecution was brought about by Mylonas's political enemies. Similarly, Koskotas asserts that his alleged financial crimes were causally connected to the political turmoil prevailing in Greece and that the prosecution constitutes retaliation by his political opponents. ⁵

We can discern no sound basis in authority or reason for the dissonant interpretation of the "political offense" exception urged by Koskotas under the Greek-American Extradition Treaty. The "political offense" exception in the Greek-American Extradition Treaty is couched in language ("offense of a political character") which is identical to that in other extradition treaties to which the United States is a signatory. It has been held that this same language, in the Italian-American Extradition Treaty, imports the traditional "political offense" exception test. See, e.g., Sindona, 619 F.2d 167; In re Extradition of...