Academic journal article Suffolk Transnational Law Review

Second Circuit Stands Firm on Rule of Non-Inquiry during Extradition Proceedings by Assigning Burden of Proof to Petitioner

Academic journal article Suffolk Transnational Law Review

Second Circuit Stands Firm on Rule of Non-Inquiry during Extradition Proceedings by Assigning Burden of Proof to Petitioner

Article excerpt

Skaftouros 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 consider whether the magistrate had jurisdiction, whether the offense charged is within the applicable bilateral treaty, and whether there was any evidence warranting the reasonable finding of the accused's guilt. (2) In doing so, the petitioner carries the burden of proving by a preponderance of the evidence that he is in custody in violation of 28 U.S.C. [section] 2241(c)(3). (3) During these proceedings, the government is not required to conduct an analysis of the demanding country's laws; rather, its role is simply to ensure that the proceedings comply with applicable provisions of the treaty and the governing U.S. statutes. (4) In Skaftouros v. United States, (5) the United States Court of Appeals for the Second Circuit addressed whether the government bears the burden of proof in a habeas corpus proceeding, thereby requiring it to establish the validity of the demanding country's laws and procedures as it pertains to the petitioner's case. (6) The court held that it is not the government's responsibility to establish that the case against the petitioner complied with the foreign country's laws; instead, it is the petitioner who must prove that this burden was never met. (7)

On March 21, 1990, Dimitrios Skaftouros allegedly took part in the murder of a 16-year old boy in Greece. (8) Service of an indictment soon followed an issued warrant charging Skaftouros with both being an immediate accessory to premeditated murder and kidnapping of a minor child for ransom. (9) Although the investigating magistrate signed the warrant, the clerk failed to do so. (10) When 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, pending his appearance or arrest on the charges in the indictment. (11) In 2008, Skaftouros was arrested in the United States. (12) The Greek government requested that Skaftouros be extradited to Greece to face charges for the murder, and in support of its request, submitted the arrest warrant, dated June 22, 1990, as well as the indictment containing a summary of the allegations against him. (13)

During Skaftouros's extradition hearing in the Southern District of New York, he moved to dismiss the complaint on the grounds that there was insufficient evidence to establish probable cause that he had committed the crime and that the information in the Greek indictment was unreliable. (14) The magistrate judge denied his motion and granted the government's application for a certificate of extradition. (15) The Second Circuit's opinion in Sacirbey v. Guccione influenced the actions of Skaftouros in responding to the Judge's denial. (16) Relying on Sacirbey, Skaftouros filed a petition for a writ of habeas corpus and a motion to dismiss, arguing that the arrest warrant was "fatally defective" and that the Greek statute of limitations for murder had expired. (17) Skaftouros submitted a letter contending that there was no tolling provision in the Greek statute of limitations, while the government attached a letter from the Public Prosecutor of the Court of Appeals of Athens stating that the statute of limitations in this case had been extended to 25 years by operation of the October 1991 Order. (18) The district court granted both the petition for a writ of habeas corpus and the motion to dismiss by finding that Skaftouros had not been "charged" with an offense under the treaty because the warrant was invalid under Greek law, that the government failed to prove the validity of the warrant, and that the government had failed to sustain its burden of proof that the statute of limitations had not expired. …

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