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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14326
________________________
D.C. Docket No. 0:18-cv-61069-MGC
GEORGE CORNEA,
Petitioner - Appellant
versus
UNITED STATES ATTORNEY GENERAL,
SECRETARY OF STATE,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 7, 2019)
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Before WILSON, JILL PRYOR and TALLMAN, * Circuit Judges.
JILL PRYOR, Circuit Judge:
Greece requested that the United States extradite George Cornea so that
Greece can prosecute him for allegedly committing a murder in 1994. Cornea filed
a habeas petition challenging the extradition, which the district court initially
granted. The court later reversed itself and denied Cornea’s habeas petition based
on newly discovered evidence in a motion under Federal Rule of Civil Procedure
59. Cornea now appeals, arguing that the district court erred in granting the Rule
59 motion because the evidence was not “new,” and even if it was, it did not
support the district court’s ruling.1 We affirm the district court’s grant of the
motion for reconsideration based on manifest error of law.
I. BACKGROUND
After decades of investigating, Greek officials indicted Cornea for a 1994
murder. 2 Greek authorities discovered that Cornea was living in Miami, Florida.
In 2017, Greece requested Cornea’s extradition from the United States under the
extradition treaty between the two countries. See Treaty of Extradition Between
*
Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
1
Cornea also filed a motion to accept his reply brief as timely filed. That motion is
granted.
2
The victim was killed by repeated blows to the head. His hands were bound with a
telephone cord. Cornea’s bloody fingerprint was found at the scene.
2
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the United States of America and the Hellenic Republic, Greece-U.S., May 6,
1931, 47 Stat. 2185 (the “Treaty”). Under Article V of the Treaty, extradition is
inappropriate where the requesting country’s statute of limitations for the
underlying crime has lapsed. Id. art. V. Under Greek law, the statute of
limitations for murder is generally 20 years from the commission of the crime.
Poinikos Kodikas (P.K.) (Criminal Code), art. 111. But the statute of limitations
may be extended up to five years when a defendant’s domicile is unknown and he
fails to appear or be arrested within a month of service of the indictment. Id. art.
113; Kodikas Poinikes Dikonomias (KPoi.D.) (Code of Criminal Procedure), art.
432. For the extension to be proper, a defendant whose residence is unknown must
be served with the indictment in accord with Greek Code of Criminal Procedure
Article 156. Service may be accomplished under Article 156 in two ways: (1)
service on a close family member at the person’s residence; or (2) if no close
relative is “found at the residence of the individual the service is intended for,”
service by publication through the mayor of the Greek city where the person last
resided. See HC-Doc. 13 at 29 (translation of Article 156).3
3
All citations to events in Cornea’s habeas case are denoted “HC-DE #” and refer to
entries on the district court docket in case number 18-61069-CV-COOKE/SNOW. Citations to
events in Cornea’s extradition case are denoted “EX-DE #” and refer to events on the district
court docket in case number 18-60132-CV-HUNT.
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In 2013, Greek authorities located Cornea’s mother in Romania, but they
were unable to locate Cornea. Greece thus chose to effect service by publication.
Greek officials served the mayor of Thessaloniki, where the murder occurred and
where Cornea’s last known Greek residence was located. When Cornea failed to
appear and was not arrested within one month of service, Greek prosecuting
authorities issued a decree stating that the limitations period had been extended by
five years, lapsing on July 25, 2019.
In response to Greece’s request for extradition, the United States initiated
extradition proceedings in the Southern District of Florida. Cornea was arrested
and remains incarcerated pending resolution of this case. Cornea argued in the
extradition proceedings that his extradition would be improper because Greek
authorities failed to properly serve him with the indictment under Article 156,
making the five-year extension of the statute of limitations ineffective. Cornea
asserted that the limitations period lapsed in July 2014; thus his extradition would
be inappropriate under the Treaty. In support of his argument, Cornea submitted
the opinion of an expert in Greek law. Cornea’s expert, who has a Ph.D. in
criminal law and procedure from a Greek university, opined that Greek authorities
were required to effect service under the first paragraph of Article 156 because
Greek authorities had located his mother—a close relative listed in the first
paragraph of Article 156—in Romania where, Cornea’s mother told Romanian
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investigators in 2013, he had last resided before moving to Miami in 1998. The
extradition court held a hearing and issued an order certifying Cornea’s
extraditability.
Cornea then filed a habeas corpus petition under 28 U.S.C. § 2241. He
attached his expert’s opinion to the habeas petition. The magistrate judge agreed
with Cornea, issuing a Report and Recommendation (“R&R”) concluding that,
“[a]bsent evidence of proper service according to Greek law, the Court cannot find
a reason to accord legal weight to the . . . decree attempting to suspend the
limitations period beyond July 2014.” HC-Doc. 13 at 22.
The United States filed objections to the R&R, including additional
information provided by Greek authorities. That information explained, among
other things, that the tolling order had the “[l]egal effect of . . . extend[ing] [the
twenty-year statute of limitations] for five more years”; service of the indictment
on the mayor of Thessaloniki was “absolutely legal according to the Greek law”;
and service could not have been effected on Cornea’s mother because Cornea “was
not staying in Romania at his mother’s address” as required by Article 156. HC-
Doc 19-1 at 3, 7. The district court adopted the R&R in full and granted Cornea’s
habeas petition.
The government filed a motion for reconsideration under Federal Rule of
Civil Procedure 59(e). In the motion, the United States presented more
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information from Greek authorities, including an explanation from Hellenic
officials that Greece could not have legally served Cornea’s mother because
Cornea did not reside in Romania and his whereabouts were unknown. The United
States also submitted the Greek officials’ proof of service on the mayor of
Thessaloniki; the proof of service stated that Cornea was “absent from his
residence and ha[d] no known address, and . . . no person exist[ed] in this residence
or elsewhere” who could have been properly served under Article 156. HC-Doc.
33-1 at 8. Finding these statements to be newly discovered evidence, the district
court granted the government’s Rule 59(e) motion, reversing itself and denying
Cornea’s habeas petition. Cornea appealed.
II. DISCUSSION
“The decision to alter or amend judgment is committed to the sound
discretion of the district judge and will not be overturned on appeal absent an
abuse of discretion.” Am. Home Assurance Co. v. Glenn Estess & Assoc., Inc.,
763 F.2d 1237, 1238–39 (11th Cir. 1985). An abuse of discretion exists where the
district court made a clear error in judgment or applied the incorrect legal standard.
See Weatherly v. Ala. State Univ., 728 F.3d 1263, 1270 (11th Cir. 2013). A motion
to reconsider may be granted upon “newly-discovered evidence or manifest errors
of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (internal
quotation marks omitted). “Issues of foreign law are questions of law,” Fed. R.
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Crim. P. 26.1; we thus review a district court’s determination of foreign law de
novo. Escobio v. Am. Int’l Grp., Inc., 262 F.3d 1207, 1211 (11th Cir. 2001).
“[E]xtradition is an executive function and habeas corpus review of a
magistrate judge’s certification of extraditability is limited to deciding whether the
magistrate 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.” Yapp v.
Reno, 26 F.3d 1562, 1565 (11th Cir. 1994) (internal quotation marks omitted). On
habeas review of a magistrate judge’s certification, the court is tasked with
“reviewing whether the demanding country has complied with its own law . . . to
the limited extent necessary to ensure compliance with the applicable extradition
treaty.” Skaftouros v. United States, 667 F.3d 144, 156 (2d Cir. 2011); see also
United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 565 (2d Cir.1963)
(Thurgood Marshall, J.) (stating that in a habeas challenge to extradition, the role
of a U.S. court is “limited to ensuring that the applicable provisions of the treaty
and the governing American statutes are complied with”).
Cornea argues that his extradition would violate Article V of the Treaty
between the United States and Greece, which forbids extradition if the statute of
limitations has run. See Treaty art. V. The statute of limitations for the crime for
which Cornea was charged is 20 years. Greek authorities maintain that they
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extended the statute of limitations under Article 113 of the Greek Criminal
Procedure Code by serving the mayor of Thessaloniki pursuant to Article 156(2) of
that code. Cornea contends that the Greek government’s service was improper
because Greek officials were required to serve his mother in Romania under
Article 156(1) before resorting to service under Article 156(2).
Generally, federal courts’ review of whether a foreign state complied with
its statute of limitations is a relatively straightforward task. But in this case,
Cornea’s challenge to extradition raises questions about Greek officials’
compliance with Greece’s criminal procedure code. See Skaftouros, 667 F.3d at
156, 158 (a judge is not required to “wield a rubber stamp” when presiding over an
extradition hearing, but “[a]ny arguments regarding the demanding country’s
compliance with its own laws . . . are properly reserved for the courts of that
country”). This difficulty does not absolve us of our obligation to ensure that the
United States abides by its treaty obligations. See In re Assarsson, 635 F.2d 1237,
1241 (7th Cir. 1980) (stating that in reviewing a habeas decision in an extradition
case, the court conducts a limited review of “those conditions [that] preclude
extradition for offenses [that] are otherwise extraditable,” but that “[a]ny such
conditions must come from the treaty itself”). We undertake this inquiry, however,
acknowledging both our limited scope of review and the special foreign policy
considerations inherent in the extradition context. See id. at 1244 (“[T]he narrow
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scope of review is based on respect for the sovereignty of other nations. . . . This
respect is embodied in the procedural framework of international extradition,
which gives to the demanding country advantages most uncommon to ordinary
civil and criminal litigation.” (internal quotation marks omitted)).
Statements from a foreign government explaining its nation’s laws constitute
evidence of the law of that foreign nation. See, e.g., Basic v. Steck, 819 F.3d 897,
901 (6th Cir. 2016) (relying on statement of Bosnian Ministry of Justice for
proposition of Bosnian law); cf. Animal Sci. Prods., Inc. v. Herbei Welcome
Pharm. Co., 138 S. Ct. 1865, 1869 (2018) (noting in the context of foreign
government amicus briefs that federal courts “should accord respectful
consideration to a foreign government’s submission”). In granting Cornea’s
habeas petition, the district court overlooked evidence from Greek authorities, filed
by the United States in objecting to the magistrate judge’s R&R, that rebutted
Cornea’s expert’s interpretation of Greek law. See HC-Doc 19-1 at 3, 7. Among
that evidence was a July 26, 2018 letter from Greece’s Ministry of Justice,
Transparency, and Human Rights—the agency tasked with interpreting Greek
law.4 The letter explained that Article 156(1) permitted service of process on close
family members only when they were living at the residence of the person for
4
Cornea has never disputed that the Greek Ministry of Justice, Transparency, and Human
Rights is the authority in charge of interpreting Greek law.
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whom the indictment was intended. See HC-Doc. 19-1 at 7 (“The mother was not
served with the November 2013 decree because the extradited person was not
staying in Romania at his mother’s address so his mother was not a co-habitant.”).
That is, because her son had moved out of her home in 1998, Cornea’s mother
could not be served with his indictment under Article 156(1) in 2013, when Greek
authorities located her in Romania.
The Greek government’s statement in its July 26, 2018 letter—provided
through diplomatic channels, offered by the agency tasked with interpreting Greek
laws, consistent with the Greek authorities’ past positions expressed in this case,
and well-supported by the Greek Code of Criminal Procedure—established that the
Greek authorities were not required to serve the indictment on Cornea’s mother in
Romania, as Cornea argues. Rather, Article 156 permitted them to serve the mayor
of the city of his last-known Greek residence, i.e., Thessaloniki. Because service
of the indictment was proper and Cornea failed to appear, the statute of limitations
was extended for five years. See Poinikos Kodikas (P.K.) (Criminal Code), art.
113; Kodikas Poinikes Dikonomias (KPoi.D.) (Code of Criminal Procedure), art.
432. In failing to follow this authoritative statement, which is supported by a plain
reading of Greek criminal procedure, the district court initially made a manifest
error of law.
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The Court may affirm “on any ground supported by the record—even if that
ground was not considered or advanced in the district court.” United States v. Gill,
864 F.3d 1279, 1280 (11th Cir. 2017). 5 In light of the July 26, 2018 letter from the
Greek government concerning the proper interpretation of Article 156—which
referred to and supported other information provided by Greek officials—the
district court’s determination that the Greek government failed to properly serve
Cornea, and therefore that extradition was barred under Article V of the Treaty,
was manifest error. We affirm the district court’s order granting the government’s
Rule 59(e) motion to correct this manifest error.
AFFIRMED.
5
The district court granted the Rule 59 motion based on newly discovered evidence. To
succeed on a Rule 59(e) motion based on newly discovered evidence, “the movant must show
either that the evidence is newly discovered or, if the evidence was available at the time of the
decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the
evidence.” Chery v. Bowman, 901 F.2d 1053, 1057 n.6 (11th Cir. 1990). Because the district
court committed a manifest error of law, we need not decide whether the evidence was new or
whether the United States with diligence could have obtained the evidence earlier.
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