Manta v. Chertoff

• Decision Date: 11 March 2008
• Docket Number: No. 07-55353.,07-55353.
• Parties: Christina MANTA, Petitioner-Appellant, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

518 F.3d 1134

Christina MANTA, Petitioner-Appellant, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Michael B. Mukasey,^* Attorney General, Respondents-Appellees.

No. 07-55353.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 9, 2008.

Filed March 11, 2008.

George Aguilar and Kyle W. Hoffman, Assistant United States Attorneys, San Diego, CA, for respondents-appellees.

Jennifer L. Coon, Federal Defenders of San Diego, Inc., San Diego, CA, for petitioner-appellant.

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CV-06-01568-W.

Before: JEROME FARRIS and MILAN D. SMITH, JR., Circuit Judges, and H. RUSSEL HOLLAND,^** District Judge.

MILAN D. SMITH, JR., Circuit Judge:

Petitioner-Appellant Christina Manta appeals the dismissal of her petition for a writ of habeas corpus. Since 1999, Greece has sought the extradition of Crystalla Kyriakidou pursuant to the Treaty of Extradition Between the United States of America and the Hellenic Republic (the Treaty). The United States filed a Complaint for Extradition against Kyriakidou, whom the government believes is the same person as Christina Manta. After an extradition hearing, a magistrate judge granted the request for extradition based on two foreign charges of fraud. Seeking relief from the extradition order, Manta petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2241. We affirm the district court's dismissal of Manta's habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

In October 1999, Greece requested that the United States extradite Crystalla Kyriakidou. According to the extradition request, Kyriakidou had entered the United States using a false passport under the name of Christina Manta. Greece sought to extradite Kyriakidou on the following three charges:

(1) deceit of especially great damage, by profession and by habit;

(2) deceit from which it was provoked an especially important damage, in continuation and by habit; and

(3) deceit in continuation against a bank, with damage that exceeds the amount of 5,000,000 drachmas [approx. $18,000 USD] and committed by a person who acted by profession and by habit and especially dangerous.

The extradition request also listed thirty check-related convictions that were imposed on Kyriakidou in abstentia, though some of these convictions were declared invalid some time after Greece submitted the 1999 extradition request to the United States. In December 2002, Greece again requested Kyriakidou's extradition. In this request, Greece added a fourth charge against Kyriakidou for "fraud by profession and out of habit of particularly great damage."

Based on the three charges set forth in the 1999 extradition request, the United States filed a Complaint for Extradition against Kyriakidou under 18 U.S.C. § 3184 in the United States District Court for the Southern District of California. The court issued an arrest warrant and, on June 30, 2005, Manta was provisionally arrested on the belief that she was Kyriakidou. She was released on bond one week later. On the day of the extradition hearing, March 15, 2006, the United States filed an Amended Complaint for Extradition incorporating the fourth charge listed in Greece's 2002 extradition request.

The magistrate judge granted in part and denied in part the government's request for extradition. The magistrate judge concluded that the person before the court, Christina Manta, was Crystalla Kyriakidou, the person Greece sought for extradition. The magistrate judge granted Greece's extradition request with respect to two charges — "deceit from which it was provoked an especially important damage, in continuation and by habit," (charge two), and "fraud by profession and out of habit of particularly great damage," (charge four) — based on her finding that there was probable cause to believe that Kyriakidou had committed those crimes. The magistrate judge concluded that probable cause did not exist to extradite Kyriakidou on charges one and three.

With respect to charge two, the Amended Complaint for Extradition alleged that Kyriakidou had "misrepresented herself as a real estate investor and convinced an investor [Theodoros Kiskiras] to give her [approximately $3,200,000] for future real estate enterprises," and did not invest the money as promised. In her probable cause analysis, the magistrate judge relied on an investigation report written by a Greek Public Prosecutor, which stated that it was based on "testimonies" from Kiskiras and three other witnesses and described Kyriakidou's interactions with Kiskiras. The Magistrates' Council of Athens issued a writ of arrest for Kyriakidou based on this investigation report.

With respect to charge four, the Amended Complaint for Extradition alleged that Kyriakidou "falsely represented to an investor her identity, that she was an expert in international stock exchange trading, that she had her own investment company and that she was receiving annual returns of 50 to 100 percent on her investments," which caused an investor, Dimitra Loui, to give her $32,000. Kyriakidou did not invest or return Loui's money. In her probable cause analysis, the magistrate judge relied on a complaint submitted by Loui to the Public Prosecutor of Athens Misdemeanors Court and an examination under oath before the Public Prosecutor of the Appeal Court of Athens in which Loui identified Manta as Kyriakidou (Loui Affidavit).

Manta challenged the order certifying her extradition by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district court. Manta now appeals the district court's dismissal of her habeas petition. We have jurisdiction under 28 U.S.C. § 2253(a).

II. DISCUSSION

"Extradition from the United States is a diplomatic process" that is initiated when a foreign nation requests extradition of an individual from the State Department. Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir.2005) (citing Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir.2003)); see 18 U.S.C. § 3184. If the State Department concludes that the request is within the scope of a treaty between the requesting nation and the United States, a United States Attorney "`files a complaint in federal district court seeking an arrest warrant'" for the individual sought for extradition. Prasoprat, 421 F.3d at 1012 (quoting Blaxland, 323 F.3d at 1207). A judge or magistrate judge must then hold an extradition hearing to determine if the evidence is sufficient to sustain the charge of extradition under the relevant treaty. Id. (citing 18 U.S.C. § 3184). If the judge or magistrate judge concludes that "the crime is extraditable," and that "there is probable cause to sustain the charge," the judge or magistrate judge must certify the extradition. Id. (citations omitted).

"[A] habeas petition is the only available avenue to challenge an extradition order." Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir.2006) (citing Mainero v. Gregg, 164 F.3d 1199, 1201-02 (9th Cir. 1999)). In examining a petition for writ of habeas corpus challenging an extradition order, our inquiry on appeal is limited to whether:

(1) the extradition judge had jurisdiction to conduct proceedings;

(2) the extradition court had jurisdiction over the fugitive;

(3) the extradition treaty was in full force and effect;

(4) the crime fell within the terms of the treaty; and

(5) there was competent legal evidence to support a finding of extraditability.

Zanazanian v. United States, 729 F.2d 624, 625-26 (9th Cir.1984) (citing Caplan v. Vokes, 649 F.2d 1336 (9th Cir.1981)). The fifth factor, stated another way, requires us to consider whether competent legal evidence "demonstrate[s] probable cause to believe that the accused committed the crime charged" by the foreign nation. Id. at 626 (citing Merino v. U.S. Marshal, 326 F.2d 5, 12 (9th Cir.1963)).

On appeal, Manta raises arguments under the fourth and fifth factors: whether the crime fell within the terms of the treaty, and whether there was competent legal evidence to support a finding of extraditability. She claims: (1) that the district court erred in concluding that the Treaty's requirement of "dual criminality" was satisfied; (2) that the district court erred in concluding that there was competent evidence to support the magistrate judge's finding that Manta is Kyriakidou, the person Greece sought for extradition; and (3) that the district court erred in concluding that competent evidence supported the magistrate judge's probable cause determination. We address each of these arguments in turn.

A. Dual Criminality

Article I of the Treaty between the United States and Greece sets forth a "dual criminality" requirement. It provides that "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." Treaty of Extradition Between the United States of America and the Hellenic Republic, U.S.-Greece, May 6, 1931, 47 Stat. 2185 (emphasis added). In other words, an offense is not extraditable under the Treaty unless it is considered criminal under the laws of both Greece and the United States. See Caplan, 649 F.2d at 1343.

Dual criminality exists if the "essential character" of the acts criminalized by the laws of each country are the same and the laws are "substantially analogous." Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1404 (9th Cir.1988) (internal quotations and citations omitted). The name by which the crime is described in each country and the scope of liability need not be the same. Id. (citing Emami v. U.S. Dist. Court, 834 F.2d 1444, 1450 (9th Cir.1987)). The elements of the crime allegedly committed in a foreign country also need not be...