Sidali v. Immigration & Naturalization Service

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

2-24-1997

Sidali v. INS
Precedential or Non-Precedential:

Docket 96-5215

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"Sidali v. INS" (1997). 1997 Decisions. Paper 45.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/45

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 96-5215
___________

MEHMET SEMIH SIDALI

vs.

IMMIGRATION AND NATURALIZATION SERVICE; THE UNITED STATES OF
AMERICA; WARREN CHRISTOPHER, Secretary of State;
CHARLES MCNEAL, Acting United States Marshal

Appellants
___________

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 95-cv-05665)
___________

Argued
December 10, 1996
Before: BECKER, MANSMANN and GREENBERG, Circuit Judges.

(Filed February 24, 1997)
___________

Thomas E. Moseley, Esquire (ARGUED)
Suite 2600
One Gateway Center
Newark, New Jersey 07102

Michael P. DiRaimondo, Esquire
30 Rockefeller Plaza
New York, New York 10112

COUNSEL FOR APPELLEE

Faith S. Hochberg
United States Attorney
District of New Jersey
Sara Criscitelli, Esquire (ARGUED)
Su Zann Lamb, Esquire
United States Department of Justice
Criminal Division
Office of International Affairs
5th Floor, Bond Building
1400 New York Avenue, N.W.
Washington, D.C. 20530

COUNSEL FOR APPELLANTS

1
 __________

OPINION OF THE COURT
__________

MANSMANN, Circuit Judge.

The government of Turkey sought the extradition of

Mehmet Semih Sidali, a native of Turkey presently living in the

United States, on the ground that he raped and murdered a

fifteen-year old girl. After a hearing, a United States

Magistrate Judge issued a Certification of Extraditability.

Sidali subsequently petitioned the United States District Court

for the District of New Jersey for a writ of habeas corpus on the

ground that there was no probable cause to believe that he was

guilty of the crimes for which he was charged. The district

court granted Sidali's petition for habeas relief, and this

appeal by the United States followed. We agree with the

government that Sidali may be extradited because the requirement

of probable cause was satisfied. We will therefore reverse the

judgment of the district court and direct the court to deny

Sidali's petition for a writ of habeas corpus.

I.1

In 1970, Sidali lived with his family in a two-story

house in Mersin, Turkey. Sidali's parents lived on the second

1. The facts and procedural history are stated comprehensively
in the district court's opinion, Sidali v. Immigration &
Naturalization Serv., 914 F. Supp. 1104 (D.N.J. 1996), and in the
opinion of the magistrate judge, Matter of Extradition of Sidali,
899 F. Supp. 1342 (D.N.J. 1995). We repeat only those facts that
are necessary to our decision of the case.

2
floor, and Sidali and his family lived on the first floor.

Dursun Eskin, a fifteen-year-old girl whose mother had been a

foster child of the family, also lived on the first floor.

On April 16, 1970, Sidali's father, daughter, and wife

traveled to Ankara, Turkey, to obtain medical care for Sidali's

father. While they were in Ankara, Sidali's aunt stayed with

Sidali's mother in the Mersin house.

On the evening of April 17, 1970, the family's guard

dog barked loudly, and Sidali's aunt called down to Dursun to

make sure that she had not left the gate open. Dursun responded

that she had not done so. Sidali arrived home at approximately

9:20 p.m. Thus, present in the house on the night of April 17,

1970, were Sidali, Sidali's mother, Sidali's aunt, and Dursun.

Several hours later, on the morning of April 18, 1970,

Sidali's mother came downstairs and found Dursun dead. Dursun

had been raped and murdered, strangled with Sidali's wife's belt

that had been taken from a closet on the first floor of the home.

When the police arrived, Sidali suggested that a thief

had broken into the house. The police examined the balcony door

of the living room and discovered that there were two points at

which force had been applied with an old screwdriver between the

door and the frame. In addition, there was an iron sliding bar

attached to the glass, but the frame into which it should have

fit was not in place and could not be found. The doors were

locked, however, and investigators stated that the evidence of

tampering was not recent and that the doors did not appear to

have been forced.

3
 A physical examination of Sidali did not show any

bruises or scratches on his hands, neck, face or body. Blood

found on Dursun's bed sheet and underwear was Dursun's blood type

and not Sidali's. A small blood stain was found on Sidali's

pajama top, and a second blood spot was found on a cloth in a

waste basket, but they were both deemed to be too small to yield

accurate blood group typing. Sidali explained that the blood on

his pajama top came from a mosquito bite the night before the

murder, and that the cloth had been used to clean a small cut on

his son's forehead a few days prior. Investigators did not

attempt to identify the blood type of a sperm stain found on

Dursun's sheet.

In May 1971, Sidali was arrested for the rape and

murder of Dursun. He was tried before a three-judge panel of the

First High Criminal Court of Mersin.2 Pursuant to the Turkish

Code of Criminal Procedure ("TCCP"), translated in The American

Series of Foreign Penal Codes, Turkey, at the end of a trial (or

within one week thereafter), the judgment is pronounced by a

reading thereof. TCCP Art. 261. The judgment must include a

declaration of the justification for the judgment. Id.
At the end of Sidali's trial, the trial court voted two

to one to issue a judgment of acquittal. The majority justified

its decision by stating that the evidence was neither sufficient

nor concrete enough to convict, that there were no witnesses, and

2. There are no jury trials in Turkey. Affidavit of Turgut
Aydin, General Director of International Law and Foreign
Relations of the Turkish Ministry of Justice, App. 219, 220.

4
that blood and semen samples could not be tested. Sidali was

released.

In Turkey, verdicts of acquittal may be appealed to the

Supreme Court of Appeals. TCCP Art. 289. An appeal may be taken

only for the reason that the judgment is contrary to law, TCCP

Art. 307, and the Court of Appeals may reverse the judgment on

the points where the law is violated. TCCP Art. 321. The Court

of Appeals may find a "violation of the law" based on the facts

determined as the basis for judgment. Id.3 If it votes to

reverse the judgment of the trial court, the Court of Appeals

forwards the file to the originating court for a review of its

own decision and for a new judgment. TCCP Art. 322.

In this case, the Mersin Prosecutor and the victim's

mother (as intervenor) appealed the trial court's judgment of

acquittal. In February 1973, the appeal was heard and decided by

the First Criminal Panel of the Supreme Court of Appeals, which

found that the judgment of acquittal was based on evidence which

was "not in line with the existing quality of evidence." The

court also found that the majority did not disprove the evidence

raised by the dissenting opinion. Because the trial court's

decision was therefore "contrary to law," the court reversed the

judgment of acquittal. TCCP Art. 321.

Thus the First High Criminal Court of Mersin was

required to conduct a retrial. A panel of three judges, with

3. "A judgment which does not include justification for the
result reached" is also considered an absolute violation of law.
TCCP Art. 308(7).

5
only the Chairman the same as at the first trial, reviewed the

evidence. On July 16, 1976, the panel voted unanimously to

acquit Sidali. The court reasoned that Sidali's body did not

show any signs of a struggle, that it would not have been

impossible for an intruder to have entered Sidali's home, that

Sidali had no motive to kill Dursun, and that Sidali would have

destroyed incriminating evidence. The court therefore

"persisted" in the original judgment; that is, the court adhered

to its earlier judgment of acquittal despite the prior opinion

from the Court of Appeals.

Decisions to persist are reviewed by the General Board

of the Criminal Panels of the Supreme Court of Appeals ("General

Board"), which is composed of the Heads of Departments and

members of the Criminal Panels of the Court of Appeals. On

December 13, 1976, the General Board voted 24 to 8 that the

reasons cited by the trial court to persist in the previous

judgment were not sufficient. The General Board wrote that "it

was clearly seen from the sufficient and convincing evidence that

the accused [Sidali] transgressed the fifteen year old victim's

virginity . . . and murdered the victim with his wife's belt."

The General Board "annull[ed] the judgment for the acquittal of

the accused."

Sidali applied for a passport on or about December 17,

1976. Believing that Sidali was acquitted, the Turkish

government gave Sidali clearance, and Sidali received his

passport on December 20, 1976. Sidali applied for a visa to come

to the United States and left Turkey on or about December 31,

6
1976. Sidali has lived openly in the United States since January

2, 1977, and he became a permanent resident of the United States

on September 17, 1990.

II.

The right of a foreign sovereign to demand and obtain

extradition of an accused criminal is created by treaty, and in

the absence of a treaty the government has no duty to surrender a

fugitive to a foreign government. Factor v. Laubenheimer, 290

U.S. 276, 287, 54 S.Ct. 191, 193 (1933); see also Quinn v.

Robinson, 783 F.2d 776, 782 (9th Cir.), cert. denied, 479 U.S.

882, 107 S.Ct. 271 (1986).

The extradition treaty between the United States and

Turkey provides for the reciprocal extradition of persons, found

within the territory of one of the nations, who have been accused

or convicted of certain criminal offenses committed within the

jurisdiction of the other nation. Treaty on Extradition and

Mutual Assistance in Criminal Matters, June 7, 1979, U.S.-Turkey,

Article 2, T.I.A.S. No. 9891. If the United States agrees to

seek the extradition of an individual pursuant to the request of

a foreign government, the United States files an extradition

complaint in an appropriate court charging an individual with

committing an extraditable offense pursuant to the relevant

extradition treaty. 18 U.S.C. § 3184.

A.

7
 On February 9, 1982, Turkey made a request to the

United States for Sidali's extradition. For over a decade the

United States failed to take any action to extradite Sidali.4

On October 31, 1994, however, the United States filed

an extradition complaint on behalf of Turkey in the District of

New Jersey charging Sidali with rape and murder, which are

extraditable offenses in the extradition treaty between the

United States and Turkey. The magistrate judge issued a warrant

for Sidali's arrest, and Sidali was arrested on November 16,

1994.

Because the power to extradite derives from the

President's power to conduct foreign affairs, extradition is an

executive, not a judicial, function. Martin v. Warden, Atlanta

Pen, 993 F.2d 824, 828 (11th Cir. 1993); see generally U.S.

Const. art. II, § 2, cl. 2. Thus, "the judiciary has no greater

role than that mandated by the Constitution, or granted to the

judiciary by Congress." Austin v. Healey, 5 F.3d 598, 600 (2d

Cir. 1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1192 (1994).

In response to a complaint seeking extradition, the

court conducts a limited inquiry. See 18 U.S.C. §§ 3181-95. The

purpose of the proceeding is to determine whether an individual

who has been arrested in the United States, pursuant to a

complaint filed on behalf of a foreign government, is subject to

surrender to the government of the requesting country. Charlton

v. Kelly, 229 U.S. 447, 460, 33 S.Ct. 945, 949 (1913). The court

4. Sidali asserts that the United States took action only after
Turkey extradited a narcotics trafficker to the United States.

8
conducts a hearing to determine whether there is "evidence

sufficient to sustain the charge [against the defendant] under

the provisions of the proper treaty or convention." 18 U.S.C. §

3184. In other words, the court determines whether there is

probable cause to believe that the defendant is guilty of the

crimes charged. If the evidence is sufficient, the court makes a

finding of extraditability and certifies the case to the

Secretary of State. Id.; see also Martin, 993 F.2d at 828.

A magistrate judge5 held Sidali's extradition hearing

on September 20, 1995.6 Two days later, the magistrate judge

found Sidali extraditable and certified his case to the Secretary

of State. Matter of Extradition of Sidali, 899 F. Supp. 1342,

1347 (D.N.J. 1995). In addition to other findings not before us

on appeal, the magistrate judge found that (1) the General Board

convicted Sidali of rape and murder, and (2) the United States

established probable cause to believe that Sidali committed the

crimes. According to the magistrate judge, either finding,

standing alone, was sufficient to support his finding of probable

cause under 18 U.S.C. § 3184. Sidali moved for reconsideration

on October 3, 1995, but his motion was denied.

B.
5. 18 U.S.C. § 3184 permits a magistrate judge to conduct
extradition proceedings if authorized to do so by "a court of the
United States." Local Rule 40(B)(12) provides this authorization
in the District of New Jersey.

6. The September 20 hearing followed a complicated procedural
history that is detailed in Matter of Extradition of Sidali, 899
F. Supp. 1342, 1345-46 (D.N.J. 1995).

9
 Because extradition orders do not constitute "final

decisions of a district court," they cannot be appealed under 28

U.S.C. § 1291. See Collins v. Miller, 252 U.S. 364, 369, 40

S.Ct. 347, 349 (1920). Rather, an individual seeking to

challenge a magistrate judge's extradition order must pursue a

writ of habeas corpus.

On August 24, 1995, while Sidali's extradition

proceedings were pending, Sidali filed an application for

naturalization with the Immigration and Naturalization Service,

requesting expedited consideration. On November 6, 1995, Sidali

filed a complaint in the United States District Court for the

District of New Jersey in which he challenged INS' failure to act

on his application for naturalization. On December 6, 1995,

while Sidali's complaint was pending before the district court,

the Secretary of State issued a warrant for Sidali's surrender to

Turkey.7

On December 12, 1995, Sidali amended his complaint by

adding two counts seeking habeas corpus review of the magistrate

7. After the courts have completed their limited inquiry, the
Secretary of State conducts an independent review of the case to
determine whether to issue a warrant of surrender. 18 U.S.C. §
3186. The Secretary exercises broad discretion and may properly
consider factors affecting both the individual defendant as well
as foreign relations--factors that may be beyond the scope of the
magistrate judge's review. The Secretary of State's decision is
not generally reviewable by the courts. Martin, 993 F.2d at 829;
Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir.), cert.
denied, 449 U.S. 1036, 101 S.Ct. 612 (1980).
To the extent that Sidali contends that we should
affirm the judgment of the district court on humanitarian grounds
unrelated to the finding of probable cause, we note that it is
the function of the Secretary of State--not the courts--to
determine whether extradition should be denied on humanitarian
grounds. Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990).

10
judge's decision. The district court had jurisdiction over

Sidali's petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241.

The scope of habeas corpus review of a magistrate

judge's extradition order under a treaty with a foreign country

is extremely limited. "[H]abeas corpus is available only to

inquire whether the magistrate [judge] had jurisdiction, whether

the offense charged is within the treaty and, by a somewhat

liberal extension, whether there was any evidence warranting the

finding that there was reasonable ground to believe the accused

guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541,

542 (1925); see also Smith v. United States, 82 F.3d 964, 965

(10th Cir. 1996); Ludecke v. U.S. Marshal, 15 F.3d 496, 497 (5th

Cir. 1994); Austin, 5 F.3d at 600; Martin, 993 F.2d at 828;

Brauch v. Raiche, 618 F.2d 843, 847 (1st Cir. 1980).

In his request for habeas corpus relief, Sidali did not

challenge the magistrate judge's jurisdiction, and he conceded

that the offenses charged were within the applicable treaty.

Instead, Sidali argued that there was no evidence warranting the

finding that there was reasonable ground to believe him guilty of

the rape and murder of Dursun. In other words, Sidali claimed

that there was no evidence supporting a finding of probable

cause.

On January 31, 1996, the district court granted

Sidali's petition for habeas corpus relief. 914 F. Supp. 1104

11
(D.N.J. 1996).8 The district court found that the United States

did not prove that Sidali was actually convicted of the rape and

murder of Dursun. Id. at 1112. The court also found that there

was no probable cause to believe that Sidali raped and murdered

Dursun. Id. at 1114. Since the district court concluded that

there was no evidence warranting the finding that there was

reasonable ground to believe Sidali guilty, the district court

granted Sidali's petition for a writ of habeas corpus. This

timely appeal followed.

III.

We have jurisdiction over this appeal pursuant to 28

U.S.C. § 2253, which provides that a final order issued by a

district judge in a habeas corpus proceeding is subject to review

by the United States Court of Appeals for the circuit in which

that district court is situated.

On review, we focus our attention on the issue of

probable cause; that is, whether there exists reasonable ground

to believe the accused guilty of the crimes charged. Here the

United States attempts to establish probable cause in two ways.

First, the United States argues that Sidali was actually

convicted of the rape and murder of Dursun and that the

conviction is sufficient proof that probable cause exists.

Second, the United States contends that the magistrate judge's

8. The district court also dismissed the counts relating to the
INS, 914 F. Supp. at 1114-15 n.11. Sidali has not appealed that
part of the district court's order.

12
finding of probable cause is supported by competent evidence of

record.

A.

The United States contends, and Sidali does not

dispute, that a foreign conviction obtained after a trial at

which the accused is present is sufficient to support a finding

of probable cause for the purposes of extradition. See Spatola

v. United States, 925 F.2d 615, 618 (2d Cir. 1991) ("To hold that

such convictions do not constitute probable cause in the United

States would require United States judicial officers to review

trial records and, consequently, substitute their judgment for

that of foreign judges and juries. Such an inquiry would be

inconsistent with principles of comity."); Restatement (Third) of

the 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 requirement [of

probable cause] is met by proof of the judgment of conviction

and, where appropriate, of sentence."); see also Mosley v.
Wilson, ___ F.3d ___, 1996 WL 709746, at *5 (3d Cir. Dec. 11,

1996) (conviction that has not been reversed ordinarily precludes

finding of lack of probable cause for underlying proceeding).

At issue, then, is whether the General Board convicted

Sidali of rape and murder. It is apparent that the General Board

annulled the trial court's second judgment of acquittal, found

that Sidali raped and murdered Dursun, and remanded the case to

the trial court. As Sidali argues, however, the General Board

13
never explicitly stated that Sidali was actually "convicted" or

"guilty." We must therefore decide whether the General Board

remanded the case back to the trial court (1) for a third trial

on the issue of guilt or (2) simply to impose sentence. If the

judgment of the General Board constituted a conviction under

Turkish law, and if the case was remanded to the trial court for

sentencing only, then we must reverse the judgment of the

district court.

Our analysis requires us to decide issues of Turkish

criminal law and procedure. The determination of foreign law in

the federal courts is a question of law. Fed.R.Civ.P. 44.1;

Grupo Protexa v. All American Marine Slip, 20 F.3d 1224, 1239 (3d

Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 481 (1994).

Consequently, we exercise plenary review over the district

court's interpretation of relevant Turkish law. Id.; Mobile

Marine Sales, Ltd. v. M/V Prodromos, 776 F.2d 85, 89 (3d Cir.

1985).

Our decision turns on whether the Turkish trial court

was bound by the General Board's determination of guilt. If the

trial court could have revisited the issue of Sidali's guilt in a

third evidentiary trial, we would agree with Sidali that the

General Board did not convict Sidali. The Turkish Code of

Criminal Procedure makes clear, however, that the General Board's

determination of guilt was final and binding. TCCP Article 326

provides:
The courts have the right to insist on their first
judgment when their judgment is reversed by
the Court of Appeal, but they are obliged
thereafter to abide by decisions given by the

14
 General Criminal Board of the Court of
Appeal.

Thus, the Court of Appeal did not convict Sidali when it reversed

the trial court's first judgment; on remand, the trial court

could have insisted (and did insist) on its judgment of

acquittal. In contrast, the trial court did not have discretion

to insist on its second judgment when that judgment was reversed

by the General Board. Decisions of the General Board are

therefore final. When the General Board voted to annul the trial

court's second acquittal, it did not send the case back for a

third trial; instead, its decision on the issue of guilt was

final and the case was remanded for sentencing only. In other

words, the decision of the General Board constituted a conviction

under Turkish law.

Sidali asserts that the General Board's failure to use

the word "conviction" precludes us from determining that Sidali

was convicted. We disagree. The General Board's statements were

clear and unequivocal. While we acknowledge that inclusion of

the word "conviction" in the General Board's decision would have

simplified our analysis, we do not believe that the word

"conviction" is necessary to establish the existence of a

conviction under Turkish law. It is clear that the trial court

could not disagree with the General Board's finding of guilt.

Our interpretation of the decision of the General Board

finds support in documents submitted by the parties.9 In a
9. When determining questions of foreign law, we may consider
"any relevant material or source, including testimony, whether or

15
diplomatic note dated February 17, 1995, the Embassy of Turkey

explained:
Pursuant to the laws of the Republic of Turkey, Mehmet
Semih Sidali has been convicted by the
General Board of the Supreme Court of
Appeals . . . . Since the highest Turkish
criminal appellate court has ruled in this
matter, there is no appeal from that
decision. Mr. Sidali will not be entitled to
a new trial . . . .

Diplomatic Note from Turkish Embassy (Feb. 17, 1995), App. 208.

The Embassy continued:
Under this Article [326], the trial court cannot set
aside or ignore the ruling of the General
Board. The trial court cannot reopen the
case to hear new evidence. It must follow
the General Board's decision without
question. Therefore, upon Mr. Sidali's
return, the trial court will fix the duration
of the sentence only.

Id.10 Likewise, the Mersin Prosecutor stated that the General

Board's decision was

(..continued)
not submitted by a party or admissible under the Federal Rules of
Evidence." Fed.R.Civ.P. 44.1; Grand Entertainment Group, Ltd. v.
Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993). We may
conduct our own research and are not confined to information
available to or considered by the district court. Grupo Protexa,
20 F.3d at 1239; Mobile Marine Sales, Ltd., 776 F.2d at 89;
Kalmich v. Bruno, 553 F.2d 549, 552 (7th Cir.), cert. denied, 434
U.S. 940, 98 S.Ct. 432 (1977); see also Fed.R.Civ.P. 44.1
advisory committee's note ("[The court] may engage in its own
research and consider any relevant material thus found.").

10. The district court stated that the diplomatic note "should
not have been admitted into evidence" and that the absence of the
author's signature and qualifications rendered the document
virtually irrelevant. 914 F. Supp. at 1111. Initially, we note
that admissibility is not an issue, since we may consider
inadmissible material when deciding questions of foreign law.
Fed.R.Civ.P. 44.1. In addition, the fact that the note was
submitted under seal of the Turkish Embassy and was presented to
the court under oath of a U.S. Attorney lessens any concern we
may have about the absence of a signature.

16
final and binding . . . . The judgment is final and
absolute, and the trial corut [sic] has begun
retrying the matter for determining the
amount of punishment to be imposed to the
accused; and in the meantime for the accused
who was found conclusively guilty, Mehmet
Semih Sidali, was issued a warrant of arrest
in absentee.

Supplemental Request for Extradition (Sept. 25, 1992), App. 65,

70-71.

In an Addendum Request of Extradition, the Mersin

Prosecutor stated that Sidali had "been pronounced decisively

guilty." Addendum Request of Extradition (Sept. 25, 1992), App.

192, 198-99; see also Extradition Letter dated March 31, 1983,

App. 15 (Sidali "was found guilty"); Ministry of Foreign Affairs

Memorandum dated March 5, 1993, App. 179, 180-81 (Sidali's

judgment of acquittal "was reversed and he was convicted");

Extradition Letter dated November 1, 1985, App. 48, 49 ("this

verdict is final and binding under the existing Turkish legal

system"). According to the General Director of International Law

and Foreign Relations of the Turkish Ministry of Justice, the

decision of the General Board "is binding, meaning that the issue

[of guilt] cannot be further discussed . . . . [T]he guilt of

the defendant can no longer be debated." Aydin Aff., App. 219,

225.

These writings convey a clear message: Sidali was

found guilty by the General Board and the Turkish trial court was

not permitted to hold otherwise on remand. We find these

writings to be persuasive, and they support our conclusion that

Sidali was convicted of the rape and murder of Dursun.

17
 The district court did not find these writings to be

persuasive because some documents stated that Sidali should be

returned to Turkey for his "trial" and that Sidali was "charged"

and "accused" of the crimes. 914 F. Supp. at 1111-12. Under

Turkish law, however, the "trial" has not been completed because

Sidali was never sentenced. Aydin Aff., App. 219, 225-26. The

word "trial" used in this sense described the remaining

sentencing proceedings. The Attorney General of Mersin

explained:
The retrial of the accused after having been acquitted
two times, does not mean "to be tried for a
second time". We have explained . . . this
General Board examined the file and
pronounc[ed] with overwhelming majority that
the present evidences cause the conviction,
so the trial continues . . . .

Statement of the Attorney General of Mersin (May 26, 1993), App.

184, 185-86. The other evidence submitted by the United States

supports this interpretation. We believe that the use of the

word "trial" in this context does not mean that Sidali will

receive a new evidentiary trial to determine whether he raped and

killed Dursun. Instead, we are satisfied that Sidali has been

conclusively pronounced guilty and that his upcoming "trial" will

be for the purposes of sentencing only.11

11. The use of the words "charged" and "accused" likewise do not
persuade us that Sidali was not convicted. See, e.g.,
Supplemental Request for Extradition (Sept. 25, 1992), App. 65,
70-71 ("the accused . . . was found conclusively guilty");
Declaration of Thomas A. Johnson, App. 312 (explaining that use
of word "charges" in certain documents was not intended to imply
absence of conviction).

18
 In addition to expressing concern about the words

"trial," "charged," and "accused," the district court observed

that some of the Turkish documents suggest that Sidali's guilt

has not been conclusively determined. See, e.g., Statement of

the Attorney General of Mersin (May 26, 1993), App. 184, 198

("[T]he Trial Court was [to] begin to try the accused for the

third time."). While we acknowledge the ambiguities in the

record, we are ultimately persuaded that the General Board

convicted Sidali.

As the magistrate judge correctly concluded, evidence

of Sidali's conviction, obtained after a trial at which Sidali

was present, is sufficient to support a finding of probable

cause. We hold that the conviction of Sidali by the General

Board establishes reasonable grounds to believe that Sidali is

guilty of the crimes charged.

B.

Our conclusion that the General Board convicted Sidali

of rape and murder is the first of two independent grounds for

reversing the judgment of the district court. In addition to the

conviction, which is per se probable cause, competent evidence

also exists in the record to support the magistrate judge's

conclusion that probable cause exists to believe that Sidali is

guilty of the rape and murder of Dursun.

We note that the probable cause standard applicable in

extradition proceedings is identical to that used by courts in

federal preliminary hearings. See Sindona v. Grant, 619 F.2d

19
167, 175 (2d Cir. 1980); Castro Bobadilla v. Reno, 826 F. Supp.

1428, 1433 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994).

The burden of the government is to offer evidence that "would

support a reasonable belief that [the defendant] was guilty of

the crime charged." Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir.

1990). The probable cause standard applicable in extradition

proceedings has been described as "evidence sufficient to cause a

person of ordinary prudence and caution to conscientiously

entertain a reasonable belief of the accused's guilt." United

States v. Wiebe, 733 F.2d 549, 553 (8th Cir. 1984) (quoting

Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973)).

The role of the magistrate judge in an extradition

proceeding is, therefore, "to determine whether there is

competent evidence to justify holding the accused to await trial,

and not to determine whether the evidence is sufficient to

justify a conviction." Peters v. Egnor, 888 F.2d 713, 717 (10th

Cir. 1989) (quoting Collins v. Loisel, 259 U.S. 309, 316, 42

S.Ct. 469, 472 (1922)). As we observed almost seventy years ago:
It is not necessary in extradition proceedings that the
evidence against the respondent be such as to
convince the committing judge or magistrate
of his guilt beyond a reasonable doubt, but
only such as to afford reasonable ground to
believe that the accused is guilty of the
offense charged.

United States ex rel. Lo Pizzo v. Mathues, 36 F.2d 565, 568 (3d
Cir. 1929).

Here the magistrate judge found probable cause for

extradition. We must uphold the magistrate judge's probable

cause finding if there is any competent evidence in the record to

20
support it. Then v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996);

Bovio v. United States, 989 F.2d 255, 258 (7th Cir. 1993); see

also Ludecke, 15 F.3d at 497 (appellate court must determine

whether there is "any competent evidence tending to show probable

cause"); Peters, 888 F.2d at 717 (habeas corpus appellate review

turns on whether there is "any evidence of probable cause"

supporting magistrate judge's finding).

Upon careful review of the record, we find that

competent evidence of record indeed supports the magistrate

judge's finding of probable cause.

Initially, the evidence suggests that the crimes were

committed in Sidali's home at a time when Sidali was the only

male resident in the home. The record includes the following

evidence that tends to show that it would have been impossible

(or at least very unlikely) for an intruder to have committed the

crimes: (1) the family's loud and hostile attack dog guarded the

premises throughout the night; (2) the dog, who barked viciously

at intruders, barked once early in the evening before the murder,

but did not bark again that night;12 (3) the property was secured

by a wall with a bolted gate, barred windows, and locked doors;

(4) while there were signs that one door was tampered with, the

investigators stated that the evidence of tampering was not

12. While one witness did testify that she heard "a dog" barking
that night, there is no testimony that the barking dog was
Sidali's dog. In addition, when Sidali's dog barked earlier in
the evening, the barking prompted the residents to look around
the premises and call to Dursun. The barking later in the
evening did not prompt any concern. These facts support the
United States' argument that Sidali's dog did not challenge an
intruder on the night of the murder.

21
recent; and (5) investigators stated that the door was locked and

did not appear to have been forced open.

The district court placed great emphasis on the notion

that "mere presence at the scene of a crime does not constitute

probable cause." 914 F. Supp. at 1114. While this statement may

be true, the United States established more than mere presence in

this case. The evidence suggests that Sidali was the only male

resident present in the home at the time of the murder and that

there were no intruders on the night of the murder. Thus, in

addition to presence and opportunity, the evidence suggests that

no one but Sidali could have committed the crimes. This factor

distinguishes this case from those cited by Sidali. We believe

that a person of ordinary prudence and caution could

conscientiously entertain a reasonable belief of Sidali's guilt.

In addition to evidence that Sidali was the only person

with an opportunity to commit the crimes, additional evidence was

offered that supports a finding of probable cause. For example:

(1) blood was found on Sidali's pajamas and on a cloth in the

garbage; (2) Dursun was strangled with a belt belonging to

Sidali's wife; (3) Sidali stated that someone stole his key, but

money located near the key was not disturbed; and (4) Sidali

appeared "in a tousled-up state" when the investigators arrived,

disturbing the crime scene by "attempt[ing] to upturn the objects

in the wardrobes and drawers." Verdict of the Supreme Court,

App. 55, 56.

The evidence tying Sidali to the rape and murder of

Dursun may be less than overwhelming. The district court's

22
comments regarding the adequacy of the autopsy and investigation

are well-taken. Turkey was not required, however, to conduct a

perfect investigation, and it was not required to present its

entire case in this country. The evidence presented need only

"support a reasonable belief that [Sidali] was guilty of the

crime[s] charged." Austin, 5 F.3d at 605 (quoting Ahmad, 910

F.2d at 1066). The evidence presented to the magistrate judge

sufficed for this limited purpose.

The magistrate judge reviewed the evidence and

determined that probable cause exists to believe that Sidali was

guilty of the crimes charged. Because competent evidence in the

record supports the magistrate judge's finding of probable cause,

our limited scope of review prevents us from contradicting that

determination. Austin, 5 F.3d at 605 (citing Quinn, 783 F.2d at

815).

IV.

The General Board convicted Sidali of the rape and

murder of Dursun, and that conviction is sufficient evidence of

probable cause. Independent of the conviction, competent

evidence of record supports the magistrate judge's determination

that probable cause exists to believe that Sidali is guilty of

the crimes. For both of the foregoing independent reasons, we

will reverse the judgment of the district court and direct the

court to deny Sidali's petition for a writ of habeas corpus.

23