Haxhiaj v. Hackman

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BLENDI HAXHIAJ, 
Petitioner-Appellant,
v.
JOHN HACKMAN, United States  No. 07-6836
Marshal for the Eastern District of
Virginia,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:06-cv-01088-LMB)

Argued: March 20, 2008

Decided: June 9, 2008

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.

COUNSEL

ARGUED: Darren Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Justin Okun,
2 HAXHIAJ v. HACKMAN
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal
Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosen-
berg, United States Attorney, Lawrence J. Leiser, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.

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 eligi-
ble 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. Accord-
ingly, we affirm the district court’s denial of Haxhiaj’s habeas peti-
tion.

I.

Haxhiaj is an Albanian national who was charged in Italy with var-
ious 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 con-
spiracy, including Haxhiaj’s sister, Doriana. Haxhiaj avoided arrest,
however, by fleeing to the United States in November 2000 and sub-
sequently 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
 HAXHIAJ v. HACKMAN 3
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, Wiscon-
sin. 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 cus-
tody 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 for-
mal 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 extradit-
able 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 asso-
ciation 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
4 HAXHIAJ v. HACKMAN
July 31, 2000 to August 12, 2000, in Naples, Italy, having purchased,
received and kept with the intent to distribute approximately 60 kilo-
grams 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] extra-
ditable; and (2) there is probable cause to sustain the charge[s]."
Ordinola v. Hackman, 478 F.3d 588, 608 (4th Cir.) (Traxler, J., con-
curring) (internal quotation marks omitted), cert. denied, 128 S. Ct.
373 (2007). As for whether Haxhiaj was charged with "extraditable"
crimes, the magistrate judge noted that it was "essentially uncon-
tested" that "[t]he drug trafficking crimes for which [Haxhiaj’s] sur-
render is sought are covered by the terms of the Treaty," J.A. 192, and
Haxhiaj does not challenge this conclusion now. However, the magis-
trate judge determined that the government failed to submit sufficient
evidence of probable cause and refused to certify Haxhiaj for extradi-
tion. The magistrate judge reasoned that, unlike evidence of a convic-
tion 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 look-
ing 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 crimi-
nal justice. Fenzia’s statement summarized the evidence supporting
Haxhiaj’s conviction, including the testimony of one of the investiga-
tors 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 convic-
tion. 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.
 HAXHIAJ v. HACKMAN 5
Additionally, Fenzia’s statement did not explain the basis for his sum-
mary 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 identi-
fied 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 judi-
cial 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, Interna-
tional 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 proceed-
ings."). The district court, noting the narrow scope of habeas review
in the extradition context, recognized that it was not permitted to dis-
turb the decision of the magistrate judge to issue an extradition certifi-
cation 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 convic-
tion in absentia is not sufficient by itself to meet the proba-
ble cause requirement of the Treaty and the Statute, the
evidence contained in the record through the detailed opin-
ion of the Court of Appeal of Milan is much more than the
mere fact of conviction. The opinion methodically described
6 HAXHIAJ v. HACKMAN
each offense charged against each defendant and detailed
the wire tap and surveillance evidence that supported the
conviction of the various members of the conspiracy.

J.A. 523-24. The district court, therefore, rejected the notion that "ac-
tual evidence in the form of witness testimony, affidavits, or tran-
scripts of wiretaps" was required for a probable cause determination.
J.A. 527. Observing that there was no difference between the evi-
dence originally submitted and the evidence before the magistrate
judge after the government supplemented the record, the district court
opined that "the magistrate judge erred in not finding probable cause
on the basis of the appellate opinion presented in the original extradi-
tion request." J.A. 526. Because the magistrate judge ultimately found
that there was probable cause, however, the district court denied the
habeas petition and refused to disturb the certification of extradita-
bility.

Subsequently, the district court issued an order clarifying the
record. The court explained that the "detailed summary of the trial
evidence by the Court of Appeal of Milan" had not been "among the
materials presented [to the magistrate judge] in the original request"
and was submitted only with the government’s supplemental materi-
als. J.A. 531. Based on this clarification, the district court concluded
that "the magistrate judge was correct in his initial finding that the
record at the time of the first extradition hearing was insufficient to
establish probable cause." J.A. 531. The clarification, however, did
not alter the district court’s ultimate conclusion that the full record as
supplemented was sufficient to support the magistrate judge’s finding
of probable cause.

II.

Habeas review of an extradition certification is quite narrow, lim-
ited to consideration of whether the extradition court properly exer-
cised jurisdiction, whether the crime upon which extradition is sought
qualifies under the relevant treaty as an extraditable offense, and
whether the record contains sufficient evidence to support the extradi-
tion court’s probable cause determination. See Fernandez v. Phillips,
268 U.S. 311, 312 (1925); see also Sidali v. INS, 107 F.3d 191, 195
(3d Cir. 1997); United States v. Wiebe, 733 F.2d 549, 552 (8th Cir.
 HAXHIAJ v. HACKMAN 7
1984). Neither the magistrate judge’s jurisdiction nor the extradita-
bility of the underlying offense are matters of dispute in this appeal;
we focus solely on the magistrate judge’s probable cause determina-
tion.

During the extradition hearing, the magistrate judge applies the
same probable cause standard that applies in federal preliminary hear-
ings, "meaning that the magistrate judge’s role is merely to determine
whether there is competent evidence to justify holding the accused to
await trial." Ordinola, 478 F.3d at 608 (Traxler, J., concurring) (inter-
nal quotation marks omitted). The extradition hearing is not to serve
as a full-blown trial and serves simply to permit a limited inquiry
"into the presence of probable cause to believe that there has been a
violation of one or more of the criminal laws of the extraditing coun-
try." Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976). Sec-
tion 3184 therefore requires the extradition court to conduct
essentially the same preliminary inquiry typically required for issu-
ance of a search warrant or an arrest warrant for crimes committed in
this country—a familiar task for any magistrate judge. See Eain v.
Wilkes, 641 F.2d 504, 508-09 (7th Cir. 1981) (explaining that an
extradition request must "be supported by sufficient evidence to show
. . . that there is sufficient justification for the individual’s arrest had
the charged crime been committed in the United States").

In reviewing the extradition court’s finding of probable cause
under § 3184, a federal habeas court applies a standard of review that
"is at least as deferential, if not more so, than that applied to a magis-
trate judge’s decision to issue a search warrant." Ordinola, 478 F.3d
at 609-10 (Traxler, J., concurring). "Just as the magistrate judge’s
underlying determination is not a mini-trial on the guilt or innocence
of the fugitive, . . . habeas review should not duplicate the extradition
hearing." Id. at 610. Accordingly, our limited function in performing
habeas review of the decision to issue a certificate of extradition is to
determine whether there is "any evidence" in the record supporting
the probable cause finding of the magistrate judge. Prushinowski v.
Samples, 734 F.2d 1016, 1018 (4th Cir. 1984) (emphasis omitted)
(quoting Fernandez, 268 U.S. at 312); see Kastnerova, 365 F.3d at
984-85.

The evidence submitted in support of the extradition request con-
sists of the written opinion of the Court of Appeal of Milan affirming
8 HAXHIAJ v. HACKMAN
Haxhiaj’s conviction and the statement of Italian magistrate Fenzia
summarizing the evidence. As previously explained, the district court
concluded that these documents satisfied the "any evidence" standard
and that the appellate opinion, even standing alone, provided a suffi-
cient basis for the probable cause finding because it "methodically
described each offense charged against each defendant and detailed
the wire tap and surveillance evidence that supported the conviction
of the various members of the conspiracy." J.A. 524.

Haxhiaj insists, however, that the government’s evidence was
insufficient to satisfy even the generous "any evidence" standard that
applies in habeas review. Haxhiaj argues that mere evidence of an in
absentia conviction, without more, is insufficient to support a proba-
ble cause determination by the extradition court. Rather, he maintains
that the government was required to submit "actual evidence" that
would permit the extradition court to make its own independent
assessment of probable cause, such as trial testimony, documents cre-
ated by investigators, transcripts of wiretapped conversations or affi-
davits from law enforcement officials with personal knowledge of the
evidence against Haxhiaj.

Haxhiaj appears to derive his "actual evidence" requirement for
probable cause from two sources. First, he contends that the language
of the Extradition Treaty requires the requesting nation to submit such
evidence in order to establish the probable cause required for extradi-
tion. Second, Haxhiaj looks to the extradition statute, see 18 U.S.C.A.
§ 3184, as well as various judicial interpretations of what proof is
required to satisfy the probable cause standard for an extradition
request based on an in absentia conviction, see, e.g., Gallina v. Fra-
ser, 278 F.2d 77, 78-79 (2nd Cir. 1960). We conclude, as explained
below, that neither basis requires "actual evidence" — as Haxhiaj
defines that phrase — to support a finding of probable cause.

A.

We first look to the language of the Extradition Treaty to determine
whether it mandates that an extradition request based on an in absen-
tia conviction be supported by "actual evidence" establishing a rea-
sonable basis to believe that Haxhiaj committed the crime for which
he is sought. Although the probable cause requirement for the issu-
 HAXHIAJ v. HACKMAN 9
ance of a certification of extradition is a matter of statute, see 18
U.S.C.A. § 3184; Ordinola, 478 F.3d at 608 (noting that "courts have
uniformly interpreted the statutory language to require a finding of
‘probable cause’") (Traxler, J., concurring), the applicable extradition
treaty often bears upon the scope of probable cause by establishing
what constitutes an adequate evidentiary showing. See Bassiouni,
supra at 877 (noting that "[t]he finding of probable cause is specifi-
cally required by legislation in 18 U.S.C. § 3184 and is also embodied
in United States treaties").

As reflected by Article X of the Extradition Treaty, the United
States and Italy agreed upon specific documentary support that must
accompany an extradition request between the two countries. Para-
graph 2 of Article X requires that all extradition requests be accompa-
nied by "documents, statements or other information" identifying the
individual sought, including, "if available, physical description, pho-
tographs and fingerprints"; "a brief statement of the facts of the case,
including the time and location of the offense"; and "the texts of the
laws" setting forth the elements of the offense for which extradition
is sought, the punishment for such offense, and the applicable limita-
tions period, if any. See U.S.-Italy Extradition Treaty, art. X, ¶ 2.

There are additional requirements, depending on whether or not the
person sought to be extradited has already been convicted of the sub-
ject offense in the courts of the requesting nation. For those who have
been convicted already, paragraph 4 of Article X requires the extradi-
tion request to be accompanied by "a copy of the judgment of convic-
tion"; "a copy of the sentence and a statement as to the duration of
the penalty still to be served"; and documents demonstrating "that the
person sought is the person convicted." Id., art X, ¶ 4. When extradi-
tion is sought for a person who has been charged but not convicted
of an offense, however, more detailed information is required under
paragraph 3, including "a certified copy of the arrest warrant" and "a
summary of the facts of the case, of the relevant evidence and of the
conclusions reached, providing a reasonable basis to believe that the
person sought committed the offense." Id., art X, ¶ 3(a)-(b). The
Treaty therefore incorporates the probable cause requirement of
§ 3184 for extradition based on a mere criminal charge.1
1
When Italy is seeking extradition, as it is here, the case summary
"shall be written by a magistrate." Extradition Treaty between the Gov-
10 HAXHIAJ v. HACKMAN
Finally, Article X specifically addresses requests to extradite those
who were convicted of an extraditable offense in absentia:

If the person sought has been convicted in absentia or in
contumacy, all issues relating to this aspect of the request
shall be decided by the Executive Authority of the United
States or the competent authorities of Italy. In such cases,
the Requesting Party shall submit such documents as are
described in paragraphs 2, 3 and 4 of this Article and a state-
ment regarding the procedures, if any, that would be avail-
able to the person sought if he or she were extradited.

Id., art. X, ¶ 5. By incorporating the requirements of paragraph three
into paragraph five, the Treaty requires more proof than just the fact
of an in absentia conviction, and directs that a summary of the facts
and evidence be supplied to establish "a reasonable basis to believe
that the person sought committed the offense for which extradition is
requested," id., art. X, ¶¶ 3(b), i.e., probable cause under § 3184.

Therefore, for an extradition request based upon a conviction in
absentia, the Treaty requires more detail than mere proof of the fact
of conviction to establish probable cause, i.e., "a reasonable basis to
believe that the person sought committed the offense," id., art. X,
¶ 3(b), but it clearly does not require the kind of actual evidence sug-
gested by Haxhiaj, such as trial testimony or transcripts of the wiretap
evidence. Instead, the Extradition Treaty requires merely a summary
of the facts and relevant evidence sufficient to provide a reasonable
basis to believe the relator committed the offense. We conclude that
the certified copy of the appellate opinion of the Court of Appeal of
Milan satisfies the showing required by the Treaty and clearly affords
a reasonable basis upon which to find probable cause. The opinion is
remarkable for its detailed description of the evidence developed dur-

ernment 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. X,
¶ 3(b). When the United States is the requesting party, the summary
"shall be written by the prosecutor and shall include a copy of the
charge." Id.
 HAXHIAJ v. HACKMAN 11
ing the investigation of Haxhiaj’s drug trafficking ring, including this
key wiretap describing Haxhiaj’s role:

Having obtained [kingpin] Eduart Tresa’s go-ahead, Boka
takes action to ensure that the batch of drugs will be deliv-
ered. He contacts [Haxhiaj] and gives him instructions, after
which he calls a certain Franscesco and informs him of
[Haxhiaj’s] arrival, to whom he should hand over the drug.
Shortly afterwards, called by Di Serio, Boka tells him of
[Haxhiaj’s] arrival in the hotel. Called by Cosimo Vita,
Boka reassures him, telling him that Di Serio and [Haxhiaj]
are meeting . . . .

The Police observed that a Volvo SW . . . was parked in
the hotel garage.

....

At about 10.45 the Police saw the VW Polo . . . drive up
to the Martini Hotel. Out stepped a young man ([Haxhiaj])
who was met by Di Serio. A few moments later they were
joined by a third person in a Fiat Uno . . . .

....

Other conversations were tapped between Armand Boka
and [Haxhiaj], among them those confirming that the "ex-
change" was about to take place . . . and then that it had
actually take[n] place.

Then at 14.25 . . . the Police . . . observed the Fiat Uno
and the Volvo indicated above approaching, and they car-
ried out their control [stop].

Now Di Serio was in the Volvo and the Fiat was being
driven by Vittorio Nisi. The search brought to light, con-
cealed in the . . . Fiat Uno, 4 packs containing heroin weigh-
ing about 2 kg in all. Vittorio Nisi was placed under arrest,
while Di Serio was allowed to go.
12 HAXHIAJ v. HACKMAN
At 21.09 the same day, Eduart Tresa received confirma-
tion from Armand Boka that the "transaction" had taken
place.

J.A. 524-25 (internal quotation marks omitted).

This level of detail is clearly sufficient to satisfy the Treaty and
provide the requisite probable cause for the issuance of a certification
of extradition under § 3184. Accordingly, we conclude that the dis-
trict court properly denied Haxhiaj’s petition for habeas relief.

B.

Haxhiaj urges us to conclude that the extradition statute, apart from
the language of the Extradition Treaty between the United States and
Italy, requires the requesting nation to submit underlying trial evi-
dence in support of an in absentia conviction. We disagree.

A foreign conviction entered after a trial at which the defendant
was present suffices, in and of itself, to establish probable cause. See,
e.g., Spatola v. United States, 925 F.2d 615, 618 (2nd Cir. 1991);
Restatement (Third) of Foreign Relations Law of the United States
§ 476 comment b (1987) ("With respect to persons whose extradition
is sought after conviction in the requesting state, the [probable cause]
requirement is met by proof of the judgment of conviction and, where
applicable, of sentence."). The extradition court need not "mak[e] an
independent assessment of the facts surrounding [the] offenses" and
may rely solely on a certified copy of the foreign conviction. Spatola,
925 F.2d at 618. Haxhiaj does not challenge this premise, which
appears to be widely accepted among the federal courts that have con-
sidered the issue. See, e.g., Sidali, 107 F.3d at 196; Spatola, 925 F.2d
at 618; Germany v. United States, ___ F.Supp.2d ___, 2007 WL
2581894, at *7 (E.D.N.Y. Sept. 5, 2007); United States v. Clark, 470
F. Supp. 976, 978 (D. Vt. 1979).

The principle that foreign convictions generally constitute probable
cause under § 3184 is rooted in comity. The duty to extradite interna-
tionally arises solely as a matter of treaty, see United States v.
Alvarez-Machain, 504 U.S. 655, 664 (1992), and the decision to
 HAXHIAJ v. HACKMAN 13
extradite is ultimately an executive function, see Martin v. Warden,
993 F.2d 824, 828 (11th Cir. 1993). "Extradition proceedings are
grounded in principles of international comity, which would be ill-
served by requiring foreign governments to submit their purposes and
procedures to the security of United States courts." Koskotas v.
Roche, 931 F.2d 169, 174 (1st Cir. 1991). To this end, "[q]uestions
about the procedural fairness of another sovereign’s justice system . . .
are within the purview of the executive branch," as are questions
about "whether the requesting nation is sincere in its demand for
extradition or is merely using the process as a subterfuge." Ordinola,
478 F.3d at 607 (Traxler, J., concurring). Therefore, we refrain "from
delving into and assessing the competence of the requesting govern-
ment’s system of justice." Id. To then conclude that foreign convic-
tions "do not constitute probable cause in the United States would
require United States judicial officers to review trial records and, con-
sequently, substitute their judgment for that of foreign judges and
juries. Such an inquiry would be inconsistent with principles of com-
ity." Spatola, 925 F.2d at 618. The primary tenet of comity is "that,
when possible, the decisions of foreign tribunals should be given
effect in domestic courts, since recognition fosters international coop-
eration and encourages reciprocity, thereby promoting predictability
and stability through satisfaction of mutual expectations." Id.

According to Haxhiaj, however, when the foreign conviction is in
absentia, this reasoning does not apply and evidence beyond the fact
of the foreign conviction itself is necessary to establish probable
cause. See Gallina, 278 F.2d at 78-79; Argento v. Horn, 241 F.2d 258,
259 n.1 (6th Cir. 1957); In re Extradition of D’Amico, 177 F. Supp.
648, 651 n.3 (S.D.N.Y. 1959). By and large, the precedents upon
which Haxhiaj relies treat in absentia convictions as nothing more
than charges of criminal wrongdoing, requiring the government to
present proof from which the magistrate judge can make an indepen-
dent assessment of whether probable cause exists. See Argento, 241
F.2d at 264 n.1; see generally Bassiouni, supra, at 792 n.506 (collect-
ing decisions in which a conviction in absentia "is regarded as a
charge, requiring independent proof of probable cause"). Underlying
the disparate treatment of a conviction rendered in absentia is the
notion that "a trial in absentia is not likely to be a fair trial," affording
the accused "no opportunity to confront the prosecution witnesses or
to present a defense" and providing no real "assistance in ascertaining
14 HAXHIAJ v. HACKMAN
the probable guilt of the accused." Note, Foreign Trials in Absentia:
Due Process Objections to Unconditional Extradition, 13 Stan. L.
Rev. 370, 377 (1961); see Bassiouni, supra, at 792-95.

In view of the record evidence in this case, it is unnecessary for us
to weigh in on the question of whether the fact of a foreign convic-
tion, without more, can ever be sufficient to establish probable cause
under § 3184 when the conviction resulted from a trial conducted in
absentia.2 Even assuming that the fact of an in absentia conviction by
itself is an insufficient basis per se for a finding of probable cause,
the government presented more than just the fact of conviction. As
detailed previously, the excerpts from the appellate opinion go well
beyond the mere verdict, summarizing the underlying evidence
amassed against Haxhiaj and his co-conspirators. We have found
nothing in the body of extradition law to suggest that such indepen-
dent evidence of probable cause must be the kind of "actual evidence"
Haxhiaj is seeking.

In fact, general extradition procedures under § 3184 suggest pre-
cisely the opposite. The extradition hearing is not a full criminal trial.
See Peroff, 542 F.2d at 1249. Determining the ultimate guilt of the
accused, therefore, is a function committed to the justice system of
the requesting country. See Eain, 641 F.2d at 508; Bassiouni, supra,
at 879 ("Reliance on the probable cause standard reflects the universal
disinclination of the courts to transform the limited inquiry of the
extradition hearing into a trial on the merits."). A requirement that the
requesting government present "actual evidence" that it intended to
2
The answer to this question is not necessarily as clear as Haxhiaj sug-
gests. It seems debatable that the international comity justification for the
general rule that foreign convictions constitute probable cause under
§ 3184 would not include in absentia foreign convictions. To assume that
a foreign proceeding held in absentia is unfair and unreliable is essen-
tially to "delv[e] into and assess[ ] the competence of the requesting gov-
ernment’s system of justice." Ordinola, 478 F.3d at 607 (Traxler, J.,
concurring). Questions about the legitimacy and procedural fairness of
the Italian justice system are for the executive branch, not the courts, to
ponder in determining whether to exercise its discretion to grant an extra-
dition request. See United States v. Kin-Hong, 110 F.3d 103, 111 (1st
Cir. 1997).
 HAXHIAJ v. HACKMAN 15
submit, or already had submitted, at trial is antithetical to the comity
basis that underlies extradition. Moreover, in light of the limited
nature of the extradition hearing, "certain evidentiary showings inad-
missible at trial will be admitted." Bassiouni, supra, at 879. For exam-
ple, courts have consistently concluded that hearsay is an acceptable
basis for a probable cause determination in the extradition context.
See, e.g., Emami v. United States, 834 F.2d 1444, 1451 (9th Cir.
1987); Escobedo v. United States, 623 F.2d 1098, 1102 (5th Cir.
1980). Unsworn statements can be sufficient to support a probable
cause determination. See Afanasjev v. Hurlburt, 418 F.3d 1159, 1165
(11th Cir. 2005). And, the Federal Rules of Evidence do not even
apply to proceedings under § 3184. See Fed. R. Evid. 1101(d)(3).

Clearly, the magistrate judge has a great amount of latitude in con-
sidering evidentiary support for an extradition request, and Haxhiaj
has not directed us to any authority that would reduce such latitude
in this particular case. We conclude that the evidentiary summary
contained within the opinion of the Court of Appeal of Milan is
within the scope of evidence that the extradition court may consider
in making its limited preliminary decision under § 3184.

III.

For the foregoing reasons, the order of the district court denying
Haxhiaj’s habeas petition is affirmed.

AFFIRMED