Skaftouros v. United States

11-0462-cv
Skaftouros v. United States

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2011

(Argued: August 25, 2011 Decided: December 20, 2011)

Docket No. 11-0462-cv

DIMITRIOS SKAFTOUROS,

Petitioner-Appellee

v.

UNITED STATES OF AMERICA,

Respondent-Appellant.

Before: CABRANES, HALL, and LOHIER, Circuit Judges.

Appeal from orders of the United States District Court for the Southern District of New

York (Deborah A. Batts, Judge), entered December 20, 2010, and January 13, 2011, granting fugitive’s

petition for a writ of habeas corpus under 28 U.S.C. § 2241, and denying the United States’s motion

to reconsider. We hold that the District Court erred in placing the burden of proof in the habeas

proceeding on the United States and in consequently concluding that the petitioner was being held

unlawfully due to the Government’s failure to prove that a Greek arrest warrant was valid as a

matter of Greek law and that the applicable Greek statute of limitations had not expired.

Distinguishing Sacirbey v. Guccione, 589 F.3d 52 (2d Cir. 2009), we reaffirm that district courts

considering habeas petitions stemming from extradition orders should not engage in an analysis of

the demanding country’s laws and procedure, except to the limited extent necessary to ensure that

the requirements of the applicable extradition treaty have been satisfied. Finding that the

1
Government’s showing here was sufficient to establish that the Treaty of Extradition between the

United States and Greece has been satisfied, we reverse the judgment of the District Court, vacate

the writ of habeas corpus, and remand with instructions to enter a certification of extraditability and

order of commitment.

RICHARD B. LIND, New York, NY, for Petitioner-Appellee
Dimitrios Skaftouros.

HARRIS FISCHMAN, Assistant United States Attorney (Preet
Bharara, United States Attorney, on the brief, Justin S.
Weddle, Assistant United States Attorney, of counsel),
Office of the United States Attorney for the Southern
District of New York, New York, NY, for Respondent-
Appellant the United States of America.

JOSÉ A. CABRANES, Circuit Judge:

This appeal requires us to clarify the proper role of a district court considering a petition for

a writ of habeas corpus challenging an extradition order.1

Petitioner-appellee Dimitrios Skaftouros (“Skaftouros”), wanted in his native Greece on

charges including direct complicity in the murder of a minor, was certified as extraditable after a

hearing in the United States District Court for the Southern District of New York before Magistrate

Judge Theodore H. Katz, notwithstanding certain arguments he made regarding Greece’s

compliance, vel non, with its own criminal procedure. He petitioned for a writ of habeas corpus

1
A word on the caption of this case: Petitioner-appellee improperly named the United
States as the respondent in his petition for a writ of habeas corpus. The Supreme Court has made
clear that “[w]henever a [28 U.S.C.] § 2241 habeas petitioner seeks to challenge his present physical
custody within the United States, he should name his warden as respondent and file the petition in
the district of confinement.” Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004). However, this rule is “not
jurisdictional in the sense of a limitation on subject-matter jurisdiction.” Id. at 451 (Kennedy, J.,
concurring). Therefore, the Government may waive objections to the immediate-custodian rule. Id.
at 452. We find the Government has done so here, and proceed to examine the Government’s
appeal on the merits.

2
before District Judge Deborah A. Batts, arguing that he was “in custody in violation of the

Constitution or laws or treaties of the United States,” 28 U.S.C. § 2241(c)(3), because two

requirements of the Extradition Treaty between the United States and Greece (“the Treaty”)2 had

not been met.3 First, he argued that the warrant for his arrest in Greece, issued by the Magistrate’s

Court of Athens, is invalid because, though signed by an investigating magistrate, it was not signed

by the Clerk of that court. Second, he argued that the Greek statute of limitations applicable to his

offenses had expired. These arguments persuaded the District Judge to grant his petition and

dismiss the extradition proceedings against him.

We hold that the District Court erred by placing the burden of proof in the habeas

proceeding on the United States (or the “Government”) rather than on Skaftouros, the petitioner,

and by engaging in an improper inquiry into Greece’s compliance with its own laws. We reaffirm

that a court considering an extradition request—or a petition for habeas corpus seeking collateral

review of an extradition order—may review the demanding government’s compliance with its own

laws only insofar as it is necessary to ensure that the provisions of the federal extradition statute and

relevant extradition treaty have been met. We further hold, upon a review of the record, that

Skaftouros has not carried, and cannot carry, his burden of proving that the requirements of the

Treaty were not met.

Accordingly, we reverse the judgment of the District Court, vacate the writ of habeas corpus,

and remand the cause to the District Court with instructions to enter a certificate of extraditability

2
Extradition Treaty Between the United States and the Hellenic Republic, May 6, 1931, 47
Stat. 2185 (1931).

Skaftouros also alleged that the evidence introduced by the Government did not give rise to
3

probable cause to believe he committed the charged crimes, but the District Court rejected this
argument, and it is not a subject of this appeal.
3
and order of commitment. In doing so, we do not pass judgment on Skaftouros’s arguments as a

matter of Greek law. There will be opportunity enough for Skaftouros to raise these arguments anew

before the courts in Greece, which are manifestly more capable of rendering a proper decision on

those issues than an American court in an extradition—or a habeas—proceeding.

BACKGROUND

A. Skaftouros’s Alleged Crime, Flight, and Arrest

The factual background set forth below is drawn from a 71-page judgment of the Council of

Magistrates in Athens, dated April 3, 1991, to which we will refer in familiar parlance as “the

indictment.” Based on the allegations contained in the indictment, both the Magistrate Judge, who

issued the certificate of extraditability, and the District Judge, who vacated it, determined that there

was probable cause to believe that Skaftouros is guilty of the offenses charged. See In re Extradition of

Dimitrios Skaftouros, 643 F. Supp. 2d 535, 547-52 (S.D.N.Y. 2009) (“Skaftouros I”); Skaftouros v. United

States, 759 F. Supp. 2d 354, 357-59 (S.D.N.Y. 2010) (“Skaftouros II”). We do not suggest, much less

confirm, that these allegations are true, an issue which presumably will be explored in due course by

the relevant authorities in Greece.

Skaftouros, it is alleged, took part in a botched kidnapping, which resulted in the murder of a

16-year-old boy, Ioannis Tsatsanis. In early 1990, three of Skaftouros’s accomplices concocted a

scheme by which they would kidnap Tsatsanis (known in the neighborhood as Marselino), in hopes

that his father would pay a large ransom. Because the three were acquainted with Marselino and did

not want to be identified by him, they enlisted Skaftouros to carry out the kidnapping. Skaftouros,

in turn, recruited two additional men to help him. On March 18, 1990, Marselino’s acquaintances

drove him to a location on the outskirts of Athens, where Skaftouros and his two recruits staged an

ambush. After feigning an attack on Marselino’s acquaintances, they handcuffed Marselino, drew a

4
hood over his head, and drove him to a house in an Athens suburb, where he was held captive at

gunpoint for the next several days.

The plan quickly unraveled after the kidnappers determined that Marselino likely recognized

the voices of two of his acquaintances during their visits to the house where he was being held. On

the evening of March 21, 1990, Skaftouros met with three other accomplices at a tavern, whereupon

the group decided to kill Marselino rather than risk identification by him. Later that night,

Skaftouros, along with three accomplices, loaded Marselino into a car and drove him to a remote

sheepfold belonging to a relative. While Skaftouros served as a lookout, his three accomplices led

Marselino to a freshly dug pit, where one of them shot and killed him using Skaftouros’s revolver.

The following day, Skaftouros told a friend that they had murdered someone the previous night.

Skaftouros fled Greece for Italy in May 1990. A month later, Marselino’s body was

discovered, after it had been dug up and partially eaten by dogs. Within a matter of days, the Greek

authorities extracted a confession from one of the accomplices, who informed them that Skaftouros

had also participated in the crimes. On June 22, 1990, the Investigating Magistrate for the

Magistrate’s Court of Athens issued a warrant for Skaftouros’s arrest. The warrant charged

Skaftouros with “being an immediate accessory to premeditated murder” and “kidnapping a minor

child for ransom.” Though the Investigating Magistrate signed the warrant, the signature line of the

Clerk was left blank. Instead, according to the translation of the warrant provided by Greece to the

U.S. Department of State, the following notation was made in place of the Clerk’s signature: “Faces

an impediment due to the late hour.”

On April 3, 1991, the Council of Magistrates in Athens issued the indictment, charging

Skaftouros with kidnapping a minor and direct complicity in the intentional murder of a minor.

According to Greek authorities, the indictment was legally served by substitute service on or about

5
May 4, 1991. As proof, the Greek authorities provided copies of an April 17, 1991, letter from the

prosecutor to the Piraeus Police Department requesting that police serve the indictment on

Skaftouros, and a response from the Piraeus Police Department dated May 6, 1991, confirming that

service had been effected by delivery to Skaftouros’s mother.4 However, the Greek authorities did

not submit an original return of service, which Skaftouros argues is the only acceptable proof that

service was effected. After 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 (the “October

1991 Order”), pending Skaftouros’s appearance or arrest on the charges in the indictment. The

Government, relying on letters provided by the Greek authorities, argues that, by virtue of the

October 1991 Order, the statute of limitations was extended from twenty to twenty-five years.5

In 1992, Skaftouros illegally entered the United States by way of Canada and he has

remained here since. On May 29, 2008, federal law enforcement agents who had been tracking

Skaftouros detained him for questioning in New York City. Although Skaftouros presented false

identification to the agents, they suspected he was the fugitive wanted in Greece for Marselino’s

abduction and murder, and in order to permit further investigation, therefore charged him with

making false statements. Following his arrest, Skaftouros confessed that he had provided his car in

4
The April 17, 1991, letter from the Greek prosecutor contained the following notation:
“Urgent (If he is not traced, the Bill should be served to his relatives with the justification that his
place of residence is unknown).” Skaftouros has not argued that service on his mother is invalid
under Greek law; rather, as discussed below, he argues that the Government has not produced
adequate proof of service on his mother.
5
According to a translation provided to the District Court by the Greek authorities, Article
113 of the Greek Criminal Code provides that “[t]he deadline of the prescription is suspended as
long as the criminal prosecution cannot start or be continued according to a provision of the law.”
However, the suspension “cannot last more than five years in respect to felonies.”
6
order to assist in Marselino’s abduction, but denied any complicity in the murder. He also admitted

that he had fled Greece in order to avoid arrest.

B. Relevant Provisions of the U.S.–Greece Extradition Treaty

The U.S.–Greece extradition treaty contains provisions similar or identical to those

contained in most U.S. extradition treaties. Under Article I, the parties agree that they

shall, upon requisition duly made as herein provided, deliver up to
justice any person, who may be charged with, or may have been
convicted of, any of the crimes or offenses specified in Article II . . .
provided that such 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.

Id. art. I. Murder is among the offenses specified in Article II of the Treaty, which also makes clear

that “[e]xtradition shall . . . take place for participation in any of the crimes or offenses before

mentioned as an accessory before or after the fact.” Id. art. II(27).

Two other provisions of the Treaty are especially relevant to this appeal. Article V

effectively prohibits extradition if the statute of limitations in either country for the subject offense

has expired:

A fugitive criminal shall not be surrendered under the provisions hereof,
when from lapse of time or other lawful cause, according to the laws of
either of the surrendering or the demanding country, the criminal is
exempt from prosecution or punishment for the offense for which the
surrender is asked.

Id. art. V. There is no applicable U.S. statute of limitations in this case because the crime charged is

a capital offense. See 18 U.S.C. § 3281 (“An indictment for any offense punishable by death may be

found at any time without limitation.”).6 The Greek statute of limitations for murder of the type

6
Skaftouros is charged in Greece with being an “immediate accessory to premeditated
murder.” The analogous charge in the United States is murder in the first degree—that is, “murder
perpetrated by . . . any . . . kind of willful, deliberate, malicious, and premeditated killing.” 18 U.S.C.
7
charged here is twenty years, although, as discussed above, Greek authorities state that the

limitations period has been extended to twenty-five years by virtue of the October 1991 Order

adjourning the prosecution.

Article XI of the Treaty describes the evidentiary showing that the demanding country must

make in order to secure the arrest and extradition of a fugitive in the asylum country:

If . . . the fugitive is merely charged with crime, a duly authenticated
copy of the warrant of arrest in the country where the crime was
committed, and of the depositions upon which such warrant may have
been issued, shall be produced, with such other evidence or proof as
may be deemed competent in the case.

Treaty art. XI. Skaftouros, of course, fled Greece before Marselino’s body was discovered, and thus

is “merely charged with [a] crime.” Id.

C. Procedural History

On June 9, 2008, the Greek government transmitted a request to the U.S. Department of

State for the “provisional arrest” of Skaftouros to be followed by his extradition to face charges

of direct complicity in the murder of a minor.7 In support of its extradition request, Greece

§ 1111. (As an “immediate accessory” to the murder, Skaftouros would be punishable as a principal
under the U.S. criminal code. See id. § 2.) Because first-degree murder under § 1111 is punishable by
death or imprisonment for life, see id. § 1111(b), we consider it to be a capital offense. See United
States v. Payne, 591 F.3d 46, 59 (2d Cir. 2010) (“An offense ‘punishable by death,’ within the meaning
of [18 U.S.C.] § 3281, is one for which the statute authorizes death as a punishment, regardless of
whether the death penalty is sought by the prosecution or ultimately found appropriate by the
factfinder or the court.”). Therefore, pursuant to § 3281, there is no applicable U.S. statute of
limitations to be applied in this case.
7
Although Skaftouros was also indicted for kidnapping, Greece’s extradition request is based
solely on the murder charge. It appears that the reason for excluding the kidnapping charge is that
the statute of limitations for that crime had expired. In contrast, with respect to the murder charge,
Greece explained in its extradition request that, though “[t]he above crime . . . is barred 20 years
after the execution of the act[, i]n this case, by the [October 1991] order of the District Attorney of
Appeal of Athens, . . . the proceedings at court against the requested person [were adjourned], until
his arrest or appearance.”
8
submitted the warrant for Skaftouros’s arrest, dated June 22, 1990, as well as the indictment,

which contained a detailed summary of the allegations against him. Both documents were

authenticated by Ambassador Daniel Speckhard, the principal diplomatic officer of the United

States in Greece.8

Also on June 9, 2008, the United States filed a complaint in the Southern District of

New York, seeking Skaftouros’s extradition at the request of the Greek government.9

Skaftouros, represented by counsel, moved to dismiss the extradition complaint on May 29,

2009. He argued that there was insufficient evidence to establish probable cause that he had

committed the charged offense, that the information in the Greek indictment was unreliable, and

that the Greek arrest warrant was “fatally defective,” thus depriving him of due process under

the Fourteenth Amendment to the U.S. Constitution. The defects that Skaftouros pointed to

were the absence of the Clerk’s signature, the lack of a sufficiently precise description of his face,

and the fact that the warrant had not been served upon him.

The Magistrate Judge filed a Memorandum Opinion and Order on July 31, 2009,

granting the Government’s application for a certificate of extraditability. Skaftouros I, 643 F.

Supp. 2d at 545. He rejected Skaftouros’s arguments relating to the purported defects in the

arrest warrant, observing that “Skaftouros’s challenge to the adequacy of the warrant . . . rests

not on a failure to follow the Treaty, but on noncompliance with Greek law.” Id. at 544. He

further concluded that the information provided by the Greek authorities provided probable

8
Under the U.S. extradition statute, “the certificate of the principal diplomatic or consular
officer of the United States resident in [the demanding country] shall be proof that [a warrant is]
authenticated in the manner required.” 18 U.S.C. § 3190.
9
Although Skaftouros was provisionally arrested pursuant to the June 9, 2008, complaint,
formal extradition proceedings did not commence until September 20, 2008, shortly after Greece
filed its formal request for extradition.
9
cause to believe that Skaftouros was complicit in the kidnapping and murder of a minor. Id. at

546–52. Accordingly, he issued the certificate of extraditability. Id. at 552–53.

On August 13, 2009, Skaftouros filed a petition for a writ of habeas corpus in the

Southern District of New York. In his petition, Skaftouros argued only that the Government

had failed to establish probable cause to believe that Skaftouros had committed the charged

offense; he did not renew the argument, earlier rejected by the Magistrate Judge, that the warrant

was invalid because it was unsigned, imprecise, and unserved. The Government filed an

opposition by letter on October 13, 2009, arguing that the Magistrate Judge had correctly found

probable cause. Subsequently, on October 30, 2009, Skaftouros filed a “memorandum of law in

response to government opposition,” in which he raised anew his earlier argument before the

Magistrate Judge, relating to the defects in the arrest warrant. The Government responded by

letter dated November 10, 2009, arguing that Skaftouros’s argument was not a proper basis on

which to file a habeas petition.

On December 9, 2009, while the petition for habeas corpus was pending before the

District Court, we issued our decision in Sacirbey v. Guccione, 589 F.3d 52 (2d Cir. 2009). In

Sacirbey, we considered the appeal of Muhamed Sacirbey, a naturalized U.S. citizen born in

Bosnia, who had served as Bosnia’s foreign minister and as its ambassador to the United

Nations. Id. at 55. Following his resignation from these posts, Sacirbey was targeted in an

investigation into alleged financial improprieties during his tenure at Bosnia’s mission to the

U.N. Id. On December 5, 2001, the Cantonal Court of Sarajevo issued an International Arrest

Warrant seeking Sacirbey’s arrest on charges of embezzlement and abuse of office. Id.

Subsequent to the issuance of the warrant, however, legal reforms in Bosnia replaced the

Cantonal Court with a new National Court, thereby depriving the Cantonal Court of jurisdiction

10
over Sacirbey’s case. Id. at 59–60. No new warrant of arrest was issued. See id. at 68–69 & n.22.

Finding that the “factual and procedural history of this case is extraordinary,” id. at 54, we held

that the warrant requirement of the U.S.–Serbian extradition treaty10 was not satisfied because

“the Cantonal Court currently lacks jurisdiction over the investigation of Sacirbey’s alleged

crimes and no longer has any power to enforce the arrest warrant.” Id. at 67 (internal quotation

marks omitted).

Relying on the Sacirbey opinion, Skaftouros submitted a letter to the District Court on

December 14, 2009, arguing that Sacirbey supported his argument that his petition should be

granted because the Greek arrest warrant was “fatally defective.” The Government responded

by letter dated December 30, 2009, arguing that Sacirbey involved “a unique set of facts [that] is

not present here”—namely, a warrant issued by a court that had since lost jurisdiction due to the

judicial and political reorganization of the Bosnian government.

On April 27, 2010, Skaftouros sent a letter to the District Court raising yet another

argument in support of his petition: that the Greek statute of limitations for murder had expired

on or about March 22, 2010, which was the twentieth anniversary of the murder. Because

Article V of the Treaty provides that “[a] fugitive criminal shall not be surrendered . . . when,

from lapse of time . . . , the criminal is exempt from prosecution . . . ,” Skaftouros argued that

the extradition proceedings should be dismissed. The District Court subsequently directed the

parties to brief whether “Greek law provides . . . for the tolling of statutes of limitations when an

individual has fled from justice.” There followed a volley of letters from Skaftouros and the

Government regarding whether the statute of limitations had expired. Skaftouros submitted a

The Federation of Bosnia and Herzegovina (“Bosnia”) is a successor to the Kingdom of
10

Serbia and thus a successor party to the treaty of extradition between the United States and the
Kingdom of Serbia. See Sacirbey, 589 F.3d at 56 n.8.
11
letter on July 8, 2010, arguing that there was no tolling provision in the Greek statute of

limitations, and attached a letter from his Greek counsel to that effect. The Government

responded a week later, attaching a letter from the Public Prosecutor of the Court of Appeals of

Athens, stating that the statute of limitations in the case against Skaftouros had been extended to

twenty-five years by operation of the October 1991 Order suspending the prosecution, owing to

his failure to appear to answer the charges against him after the indictment was served on his

mother.11 Skaftouros then replied with a July 21, 2010, letter from his Greek lawyer refuting the

Government’s tolling argument on the ground that Skaftouros had never been served with a

copy of the indictment, and therefore the tolling provision referred to by the Government did

not apply to him. The Government then “supplement[ed]” its response with copies of

documents purporting to confirm service on Skaftouros: the April 17, 1991, request from the

prosecution that police serve the indictment on Skaftouros; the May 6, 1991, confirmation from

the police to the prosecution that the indictment had been served on Skaftouros’s mother;12 and

the October 1991 Order suspending the proceedings, which made note of the “legal service” of

the indictment on May 5, 1991. The Government did not, however, include the original proof

of service, which it has stated was stolen from the Athens Police Department. Therefore,

Skaftouros responded with another letter from his Greek counsel stating that “the only

document that would demonstrate service of the order would be the original Certificate of

Service, which of course is not presented by the Government.”

11
As noted above, see note 7, ante, Greece maintained from the outset that the statute of
limitations had been extended by operation of the October 1991 Order.

As noted above, see note 4, ante, Skaftouros does not contend that substitute service on his
12

mother is per se ineffective, but rather that the Government has not adequately proven that the
indictment was, in fact, served on his mother.
12
 On September 27, 2010, Skaftouros filed a motion to dismiss the extradition proceedings

on the ground that the Greek statute of limitations had expired.13 The Government filed a

response on October 18, 2010. Both parties’ briefs summarized the arguments that they had

previously raised in their letters: According to Skaftouros and his Greek lawyer, the applicable

Greek statute of limitations was twenty years and had therefore expired; according to the

Government and the Greek prosecutors, the statute had been extended to twenty-five years.14

On December 20, 2010, the District Court issued a Memorandum and Order granting

both the petition for a writ of habeas corpus and the motion to dismiss. It first rejected

13
As a procedural matter, a motion to dismiss is not an appropriate means of challenging an
extradition order after a certificate of extraditability has been issued. It is well established that “[a]n
extraditee’s sole remedy from an adverse decision is to seek a writ of habeas corpus.” Ahmad v.
Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990). It is not clear to us what authority a habeas court would
have to entertain a motion to dismiss the underlying extradition proceeding once the certificate of
extraditability has entered, inasmuch as the only matter before the habeas court is the petition for
the writ. Put another way, once the certificate of extraditability has been entered, the extradition
proceeding is over, and there is nothing to dismiss. Rather, in a separate civil action, the petitioner
may seek collateral review of the extradition order, a review which, as discussed further below, is
limited to testing “the legality of the extradition proceedings.” Murphy v. United States, 199 F.3d 599,
601-02 (2d Cir. 1999). We recognize that Skaftouros’s statute of limitations argument was not
available at the time he filed the petition for a writ of habeas corpus in August 2009. In these
circumstances, however, the proper procedure is to file a motion to amend the original petition
under 28 U.S.C. § 2242 and Rule 15(c) of the Federal Rules of Civil Procedure or, alternatively, to
move in the original extradition court to reopen the extradition proceedings and reconsider the
extradition order in light of the newly available argument.

That said, the Government has raised no objection pertaining to the District Court’s
jurisdiction to rule on Skaftouros’s “motion to dismiss,” and both parties have briefed and argued
the appeal as though the arguments raised in the motion to dismiss were properly made in the
habeas petition. We will proceed, then, as if Skaftouros had raised his argument regarding the Greek
statute of limitations in his petition for a writ of habeas corpus.
14
The Government also argued that the Greek statute of limitations should be deemed
satisfied because the Magistrate Judge had issued the certificate of extraditability before even the
twenty-year period had expired. The District Court rejected this argument out of hand, and the
Government appears to have abandoned it on appeal. We therefore do not address it.

13
Skaftouros’s argument that there was no probable cause to support the extradition request.

Skaftouros II, 759 F. Supp. 2d at 357–58. However, the court went on to find that Skaftouros

had not been “charged” with an offense under the Treaty because the warrant was invalid under

Greek law. Relying heavily on our opinion in Sacirbey, the District Court held that the

Government was required to prove the validity of the warrant and that it had failed to do so. Id.

at 358–59. Finally, the District Court held that the Government had failed to sustain its burden

of proving that the statute of limitations had not expired. In this regard, it concluded that, even

if the arrest warrant was valid, “the Government has not provided adequate proof that the Order

extending the statute of limitations was served on Skaftouros or his close relative, which is

necessary for the order to become binding.” Id.

On January 3, 2011, the Government moved for reconsideration, arguing that it had not

been given notice that the petition might be granted on a ground not asserted therein (that is, the

validity argument) or that it bore the burden of proof on whether service of process was duly

effected under Greek law. In its motion, the Government raised a new argument, supported by

letters from the Greek prosecutors, that the absence of the Clerk’s signature on the warrant did

not render it invalid under Greek law. The Government also questioned the propriety of the

District Court’s extended examination of Greek criminal procedure and argued that the court

had misinterpreted Sacirbey.

The District Court denied the motion to reconsider on January 13, 2011. Skaftouros II,

759 F. Supp. 2d at 361. This appeal followed. On June 21, 2011, we granted Skaftouros’s

motion to expedite the appeal and oral argument was held on August 25, 2011.

DISCUSSION

A. Applicable Legal Standards

14
 1. Standards Governing the Judicial Role in Extradition Proceedings

The federal extradition statute empowers an extradition officer, who can be “any justice

or judge of the United States, or any magistrate authorized . . . by a court of the United States, or

any judge of a court of record of general jurisdiction of any State,” to hear and consider evidence

of a fugitive’s criminality upon the filing of a formal complaint. 18 U.S.C. § 3184.15 If the

extradition officer determines that the evidence is sufficient “to sustain the charge under the

15
Section 3184 provides as follows:

Whenever there is a treaty or convention for extradition between the
United States and any foreign government, or in cases arising under
section 3181(b), any justice or judge of the United States, or any
magistrate judge authorized so to do by a court of the United States, or
any judge of a court of record of general jurisdiction of any State, may,
upon complaint made under oath, charging any person found within his
jurisdiction, with having committed within the jurisdiction of any such
foreign government any of the crimes provided for by such treaty or
convention, or provided for under section 3181(b), issue his warrant for
the apprehension of the person so charged, that he may be brought
before such justice, judge, or magistrate judge, to the end that the
evidence of criminality may be heard and considered. Such complaint
may be filed before and such warrant may be issued by a judge or
magistrate of the United States District Court for the District of
Columbia if the whereabouts within the United States of the person
charged are not known or, if there is reason to believe the person will
shortly enter the United States. If, on such hearing, he deems the
evidence sufficient to sustain the charge under the provisions of the
proper treaty or convention, or under section 3181(b), he shall certify
the same, together with a copy of all the testimony taken before him, to
the Secretary of State, that a warrant may issue upon the requisition of
the proper authorities of such foreign government, for the surrender of
such person, according to the stipulations of the treaty or convention;
and he shall issue his warrant for the commitment of the person so
charged to the proper jail, there to remain until such surrender shall be
made.

18 U.S.C. § 3184. The complaint in such a proceeding is typically filed by the United States, through
the appropriate U.S. Attorney’s Office, acting for and on behalf of the demanding country, which is
the “real party [in interest].” Wacker v. Bisson, 348 F.2d 602, 608 (5th Cir. 1965); Cleugh v. Strakosch,
109 F.2d 330, 332 (9th Cir. 1940).

15
provisions of the proper treaty or convention,” he is instructed to issue a certificate of

extraditability to the Secretary of State, who has final and discretionary authority to extradite the

fugitive. 18 U.S.C. § 3184; see generally Lo Duca v. United States, 93 F.3d 1100, 1103–04 (2d Cir.

1996).

At an extradition hearing, the “judicial officer’s inquiry is confined to the following:

whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and

whether the evidence marshaled in support of the complaint for extradition is sufficient under

the applicable standard of proof.” Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000). An

extradition hearing is “not to be regarded as in the nature of a final trial by which the prisoner

could be convicted or acquitted of the crime charged against him,” Benson v. McMahon, 127 U.S.

457, 463 (1888), and is “not the occasion for an adjudication of guilt or innocence,” Melia v.

United States, 667 F.2d 300, 302 (2d Cir. 1981). Rather, “it is ‘essentially a preliminary

examination to determine whether a case is made out which will justify the holding of the

accused and his surrender to the demanding nation.’” Lo Duca, 93 F.3d at 1104 (quoting Ward v.

Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990)); see also Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d

Cir. 1976) (“Orders of extradition are sui generis. They embody no judgment on the guilt or

innocence of the accused but serve only to insure that his culpability will be determined in

another and, in this instance, a foreign forum.”). In this way, the judicial officer’s function is

much the same as his “accustomed task of determining if there is probable cause to hold a

defendant to answer for the commission of an offense.” Ward, 921 F.2d at 287. As we have

stressed in the past, “[w]hat is at issue in the proceeding . . . is not punishability but

prosecutability.” In re McMullen, 989 F.2d 603, 611 (2d Cir. 1993) (emphasis added) (internal

quotation marks omitted).

16
 By design, “the procedural framework of international extradition gives to the

demanding country advantages most uncommon to ordinary civil and criminal litigation.” First

Nat’l City Bank v. Aristeguieta, 287 F.2d 219, 226 (2d Cir. 1960), vacated on mootness grounds by 375

U.S. 49 (1963).16 As the Supreme Court has instructed,

[i]n choosing between conflicting interpretations of a treaty
obligation, a narrow and restricted construction is to be avoided as
not consonant with the principles deemed controlling in the
interpretation of international agreements. Considerations which
should govern the diplomatic relations between nations, and the
good faith of treaties, as well, require that their obligations should
be liberally construed so as to effect the apparent intention of the
parties to secure equality and reciprocity between them. For that
reason, if a treaty fairly admits of two constructions, one restricting
the rights which may be claimed under it, and the other enlarging it,
the more liberal construction is to be preferred.

Factor v. Laubenheimer, 290 U.S. 276, 293–94 (1933); see also Valentine v. United States ex rel.

Neidecker, 299 U.S. 5, 10 (1936) (“It is a familiar rule that the obligations of treaties should be

liberally construed so as to give effect to the apparent intention of the parties.”).

The narrow scope of review in extradition proceedings and the mandate that treaty

obligations be liberally construed are based on “[t]he interests of international comity.” Ahmad,

910 F.2d at 1067. Accordingly, it has long been recognized that an extradition judge should

avoid making determinations regarding foreign law. See Jhirad, 536 F.2d at 484–85 (“It is not the

16
In addition, given the limited purpose of extradition hearings, fugitives do not benefit from
many of the protections that are traditionally accorded to defendants in the criminal context.
Neither the Federal Rules of Criminal Procedure nor the Federal Rules of Evidence apply to
extradition proceedings. See Fed. R. Crim. P. 54(b)(5); Fed. R. Evid. 1101(d)(3). Hearsay evidence is
admissible, United States ex rel Klein v. Mulligan, 50 F.2d 687, 688 (2d Cir. 1931), and unsworn
statements of absent witnesses may be considered, Collins v. Loisel, 259 U.S. 309, 317 (1922).
Defendants have no right to confrontation or cross-examination of the witnesses against them.
Bingham v. Bradley, 241 U.S. 511, 517 (1916). Indeed, the fugitive’s “right to introduce evidence is . . .
limited to testimony which explains rather than contradicts the demanding country’s proof.” Shapiro
v. Ferrandina, 478 F.2d 894, 905 (2d Cir. 1973) (internal quotation marks omitted).
17
business of our courts to assume the responsibility for supervising the integrity of the judicial

system of another sovereign nation. Such an assumption would directly conflict with the

principle of comity upon which extradition is based.”); see also Grin v. Shine, 187 U.S. 181, 190

(1902); In re Assarsson, 635 F.2d 1237, 1244 (7th Cir. 1980).

In addition to principles of international comity, the reluctance of our courts to

fastidiously examine foreign law in extradition proceedings is founded in principles of judicial

modesty. See In re Assarsson, 635 F.2d at 1244 (“The possibility of error warns us to be even

more cautious of expanding judicial power over extradition matters.”). Such modesty is well

placed in the extradition context, which “is not the occasion for an adjudication of guilt or

innocence,” Melia, 667 F.2d at 302. Any arguments regarding the demanding country’s

compliance with its own laws, therefore, are properly reserved for the courts of that country. See

Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (“[I]t has been presented as if this were the final

stage and every technical detail were to be proved beyond a reasonable doubt. This is not the

law.”).

For all of these reasons, U.S. courts are strongly discouraged from reviewing whether the

demanding country has complied with its own law and, indeed, it is error to do so except to the

limited extent necessary to ensure compliance with the applicable extradition treaty. See United

States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 565 (2d Cir. 1963) (Thurgood Marshall, J.) (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.”); see also Sacirbey, 589 F.3d at 65 (observing that

courts should “give[] meaning to treaty language . . . while avoiding unwarranted incursions into

the details of foreign criminal procedure.”). Technical objections to the demanding nation’s

compliance with its own law are particularly disfavored. As the Supreme Court has cautioned, in

18
the extradition context, “[f]orm is not to be insisted upon beyond the requirements of safety and

justice.” Fernandez, 268 U.S. at 312; see also Grin, 187 U.S. at 184–85 (“[W]here the proceeding is

manifestly taken in good faith, a technical noncompliance with some formality of criminal

procedure should not be allowed to stand in the way of a faithful discharge of our obligations.”).

Nothing in our opinion in Sacirbey should be read to invite judges to freely examine

whether the demanding country has complied with its own laws. Properly construed, Sacirbey is

not inconsistent with the long-standing principle that we now reaffirm: Judicial officers

considering extradition requests—and, by extension, district judges considering habeas petitions

challenging extradition orders—should not engage in an analysis of the demanding country’s

laws and procedure, except to the limited extent necessary to ensure that the requirements of the

federal extradition statute and the applicable extradition treaty have been satisfied.

2. Standards Governing Habeas Review of Extradition Orders

Because extradition orders are regarded as preliminary determinations, and not “final

decisions” appealable as of right under 28 U.S.C. § 1291, they may only be reviewed by a petition

for a writ of habeas corpus under 28 U.S.C. § 2241. Jhirad, 536 F.2d at 482. Courts have

consistently held that habeas corpus is available to an extraditee “only to inquire 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.” Fernandez, 268 U.S. at 312; see also Melia, 667

F.2d at 302. Importantly, we have held that “consideration of the procedures that will or may

occur in the requesting country is not within the purview of a habeas corpus judge.” Ahmad, 910

F.2d at 1066–67 (observing that “[t]he interests of international comity are ill-served by requiring

19
a foreign nation . . . to satisfy a United States district judge concerning the fairness of its laws

and the manner in which they are enforced.”).

With these principles in mind, we review the District Court’s factual findings for clear

error and its legal determinations de novo. Sacirbey, 589 F.3d at 63.

B. The District Court Erred in Granting Skaftouros’s Habeas Petition

Applying the foregoing standards to the case before us, we hold that the District Court

erred in granting Skaftouros’s petition for a writ of habeas corpus.17 The District Court’s

primary error was in imposing the burden of proof on the Government to show that the

requirements of Greek law had been met. As a result of this underlying error, the District Court

wrongly concluded that Greece had not produced a valid arrest warrant and that the statute of

limitations had expired. We address each error in turn.

1. The District Court Erred in Imposing the Burden of Proof on the Government

It is apparent from the opinion under review that the District Court placed the burden of

proof on the Government in the habeas proceeding. With respect to the statute of limitations

issue, this placement was explicit: “Although the Government need not prove beyond a

reasonable doubt that the statute of limitations has not run in an extradition proceeding, . . . .

[t]he internally inconsistent documents submitted without sufficient explanation do not serve to

meet even the Government’s lesser burden of proof on the statute of limitations issue.”

17
Although we conclude that the District Court committed reversible error, we hasten to add
that its errors are understandable in light of the then-fresh and as-yet untested language of our
opinion in Sacirbey, as well as the procedural context faced by the District Court in the instant case.
The arguments before the District Court came in fits and starts, through a volley of letter briefs and
hastily submitted positions on complex issues of Greek law. In contrast, we have benefitted not
only from a more considered and thorough round of briefing from the parties, but also from the
conscientious opinions of the District Judge and Magistrate Judge who have handled the matter
before us.
20
Skaftouros II, 759 F. Supp. 2d at 360–61. Although the District Court did not expressly place the

burden of proof on the Government with respect to the issue of whether Greece had satisfied

the Treaty’s requirement of a “duly authenticated warrant,” it interpreted our opinion in Sacirbey

to “obligate[] the Government to prove the existence of a ‘valid arrest warrant’” in order to defeat

the habeas petition. Skaftouros II, 759 F. Supp. 2d at 358 (quoting Sacirbey, 589 F.3d at 67

(emphasis in Skaftouros II)). We hold that it was error for the District Court to effectively impose

on the Government the burden of proving that Skaftouros was not “in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

Habeas corpus, it is well known, “is not a neutral proceeding in which the petitioner and

the State stand on an equal footing. Rather, it is an asymmetrical enterprise in which a prisoner

seeks to overturn a presumptively valid judgment . . . .” Pinkney v. Keane, 920 F.2d 1090, 1094

(2d Cir. 1990) (construing 28 U.S.C. § 2254); see also Fernandez, 268 U.S. at 312 (habeas corpus “is

not a means for rehearing what the magistrate already has decided. The alleged fugitive from

justice has had his hearing. . . .”). Because we accord a presumption of validity to a judgment on

collateral review, it is the petitioner who bears the burden of proving that he is being held

contrary to law; and because the habeas proceeding is civil in nature, the petitioner must satisfy

his burden of proof by a preponderance of the evidence. Parke v. Raley, 506 U.S. 20, 31 (1992)

(“Our precedents make clear . . . [that] the presumption of regularity that attaches to final

judgments makes it appropriate to assign a proof burden to the [petitioner].”); Walker v. Johnston,

312 U.S. 275, 286 (1941) (“On a hearing [the § 2241 petitioner has] the burden of sustaining his

allegations by a preponderance of evidence.”).

Although we are not aware of any specific authority on the subject, we see no reason

why the general habeas corpus standard of proof would not apply to habeas petitions arising

21
from international extradition proceedings. As the Supreme Court held in a case construing the

interstate extradition statute, 18 U.S.C. § 3181, “[p]rima facie[, the petitioner is] in lawful custody

and upon him rest[s] the burden of overcoming this presumption by proof.” South Carolina v.

Bailey, 289 U.S. 412, 417 (1933). Similarly, collateral review of an international extradition order

should begin with the presumption that both the order and the related custody of the fugitive are

lawful.

We therefore hold that, in order to merit habeas relief in a proceeding seeking collateral

review of an extradition order, the petitioner must prove by a preponderance of the evidence

that he is “in custody in violation of the Constitution or laws or treaties of the United States,”

28 U.S.C. § 2241(c)(3), which, in this context, will typically mean in violation of the federal

extradition statute, 18 U.S.C. § 3184, or the applicable extradition treaty.

This is not to say that a judge considering a petition for a writ of habeas corpus arising

out of an extradition proceeding is expected to wield a rubber stamp. To the contrary, as we

observed in Sacirbey, despite the narrow scope of habeas review in the extradition context, “[i]t is

nevertheless ‘our duty . . . to ensur[e] that the applicable provisions of the treaty and the

governing American statutes are complied with.’” 589 F.3d at 63 (quoting Petrushansky, 325 F.2d

at 565). However, Sacirbey did not impose a general burden of proof the Government in the

context of a habeas proceeding. Although we held that the applicable extradition treaty required

the demanding country to “provide, inter alia, a valid warrant,” 589 F.3d at 67 (emphasis added),

that holding related to the initial extradition proceeding, where the Government, on behalf of

the demanding country, does indeed bear the burden of proof. We did not hold that the burden

22
remains with the Government at the habeas stage, after a presumptively valid certificate of

extradition has already been issued.18

The District Court’s placement of the burden of proof on the Government in this case

was error. As explained in more detail below, this error caused the District Court to improperly

examine Greece’s compliance with its own law and to determine that certain requirements of the

Treaty were not satisfied. These were legal determinations, which we review de novo. See United

States v. Moetamedi, 46 F.3d 225, 228 (2d Cir. 1995) (“We note that legal issues relating to the

validity of warrants . . . are reviewed de novo.”); Gerena v. Korb, 617 F.3d 197, 201 (2d Cir. 2010)

(“A district court’s . . . application of a statute of limitations [is] reviewed de novo as [a] question[]

of law.”). Upon a review of the record, we conclude that the requirements of the U.S.

extradition statute, 18 U.S.C. § 3184, and the Treaty have been satisfied.

2. The Treaty’s Requirement of a “Duly Authenticated” Warrant is Satisfied

Had the burden of proof been properly assigned by the District Court, in order to obtain

the writ of habeas corpus, Skaftouros would have been required to prove, by a preponderance of

the evidence, that the arrest warrant provided by the Greek government did not satisfy the

Treaty’s requirement of a “duly authenticated warrant” sufficient to show that he was “charged”

with a crime recognized by the Treaty. Upon a review of the record, we hold that Skaftouros did

not, and cannot, carry this burden.

In common with other extradition treaties, the U.S.–Greece Treaty requires that, in cases

where a fugitive is “merely charged with crime, a duly authenticated copy of the warrant of arrest

18
As explained in further detail below, the petitioner in Sacirbey was able to sustain his burden
of proving that he was being held in violation of the applicable treaty by showing that the warrant
for his arrest was issued by a court that no longer had jurisdiction and thus had no power to enforce
the warrant. 589 F.3d at 54, 69.
23
in the country where the crime was committed, and of the depositions upon which such warrant

may have been issued, shall be produced.” Treaty art. XI. Greece fully complied with this

requirement by submitting a warrant for Skaftouros’s arrest that was authenticated by the U.S.

Ambassador to Greece, along with an indictment demonstrating the existence of probable cause

to believe Skaftouros had committed the crime charged. In most cases, the production of an

arrest warrant authenticated by the principal diplomatic officer of the United States in the

demanding country will suffice to satisfy a treaty’s “duly authenticated warrant” requirement. See

18 U.S.C. § 3190 (“Depositions, warrants, or other papers or copies thereof offered in evidence

upon the hearing of any extradition case shall be received and admitted as evidence on such

hearing for all the purposes of such hearing if they shall be properly and legally authenticated so

as to entitle them to be received for similar purposes by the tribunals of the foreign country

from which the accused party shall have escaped, and the certificate of the principal diplomatic or

consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are

authenticated in the manner required.” (emphasis added)).19 In this case, however, the District

Court went further, and imposed on the Government the burden of proving that the arrest

warrant was technically valid as a matter of Greek law. In so doing, the District Court explained

This relaxed standard has been consistently followed in cases addressing the sufficiency of
19

foreign arrest warrants in the international extradition context. See, e.g., Grin, 187 U.S. at 190–92
(“The clause [of the Treaty requiring a duly authenticated arrest warrant] is satisfied by the
production of an equivalent document.”); Caltagirone v. Grant, 629 F.2d 739, 744 (2d Cir. 1980) (“The
Treaty does not contemplate a review of the validity, under Italian law, of the Italian arrest warrants,
but rather a simple factual determination whether a warrant has been issued.”); In re Neely, 103 F.
626, 630 (C.C.S.D.N.Y. 1900), aff’d 180 U.S. 126 (1901) (“[I]f the certificates, signatures, etc., are in
substantial conformity to the requirements of the [extradition] statute, and give reasonable assurance
of authenticity, it is sufficient.”). It has similarly been followed in cases addressing interstate
extradition. See Munsey v. Clough, 196 U.S. 364, 373 (1905) (“The sufficiency of the indictment, as a
matter of technical pleading, will not be inquired into on habeas corpus.” (considering interstate
extradition statute)).
24
that it relied on our opinion in Sacirbey, and in particular our reference therein to the invalidity of

a foreign arrest warrant. But Sacirbey was not intended as a break from the previous, well-

established authority that the question of whether an arrest warrant is in technical compliance

with the law of the demanding country is not to be decided by U.S. courts. Rather, Sacirbey

stands for the unexceptional proposition that a foreign arrest warrant cannot suffice to show

that a fugitive is currently charged with an offense, as required by most extradition treaties,

where the court that issued the warrant no longer has the power to enforce it.

Importantly, our analysis in Sacirbey was limited to determining whether the requirements

of the extradition treaty were met; the majority opinion did not engage questions of Bosnian law.

See 589 F.3d at 63. Thus, when we stated that “the proof required under the Treaty to establish

that an individual has been ‘charged’ with a crime is a valid arrest warrant,” id. at 67, we were not

referring to validity as a matter of technical compliance with Bosnian criminal procedure, but

rather to validity under the applicable treaty. To the extent the language in our opinion in

Sacirbey has engendered confusion on this point, we now clarify that a “valid arrest warrant” is

one that is “duly authenticated” as required by § 3190 and the applicable treaty, and sufficient to

show that the fugitive is currently charged with an offense recognized by the treaty. It must, in

other words, show that the fugitive is in fact “prosecutab[le]” upon extradition to the demanding

country. See McMullen, 989 F.2d at 611.

Unlike the arrest warrant in Sacirbey, which failed to show that the fugitive was currently

charged and prosecutable, the arrest warrant provided by Greece in this case satisfies these

requirements. The defects that Skaftouros identifies—namely, that the warrant does not contain

the signature of the Clerk or a sufficiently detailed description of his face—are technical in

nature, not jurisdictional as in Sacirbey. And, as we have stated before, arguments that “savor of

25
technicality” are “peculiarly inappropriate in dealings with a foreign nation.” Shapiro, 478 F.2d at

904 (quoting Bingham, 241 U.S. at 517 (internal modification removed)).

Skaftouros is, of course, free to raise these technical objections before the courts of

Greece, which, we are confident, will be more competent to address them than an American

court.20 See Melia, 667 F.2d at 303 (“[Petitioner] will have the opportunity before the Canadian

courts to challenge Canada’s jurisdiction over him. We have the utmost confidence that the

Canadian courts will decide the jurisdictional issue correctly.”). Our concern is solely with the

requirements of the Treaty and the federal extradition statute. We hold that the arrest warrant

satisfies these requirements because it is duly authenticated and shows that Skaftouros is

currently charged with an offense recognized by the Treaty, and is therefore prosecutable.

3. The Treaty’s Requirement that the Statute of Limitations on the Charged Offense Not Have
Expired is Satisfied

The District Court properly noted that the Treaty does not permit extradition where,

“‘from lapse of time or other lawful cause, according to the laws of either of the surrendering

country [sic] or the demanding country, the criminal is exempt from prosecution or punishment

for the offense for which the surrender is asked.’” See Skaftouros II, 759 F. Supp. 2d at 359

(quoting Treaty art. V). Because the Treaty itself requires an examination of whether the statute

of limitations of either the demanding or asylum country has expired (and because the United

States does not have a statute of limitations for first degree murder, see note 6, ante), it was

proper for the District Court to examine Greek law for the limited purpose of determining

20
We note in this regard that the Government has argued that the arrest warrant is not
invalid even as a matter of Greek law. It first raised these arguments in its motion to reconsider
before the District Court, which did not address them. We do not rely on these arguments in
finding that the Treaty’s warrant requirement has been satisfied. Rather, we defer to the Greek
courts, which may consider whether Skaftouros or the Greek prosecutors have the better of the
argument.
26
whether its statute of limitations had expired. In so doing, however, the District Court again

improperly placed the burden on the Government to prove that the statute of limitations had

not run, rather than on Skaftouros to prove that it had.

The parties agreed that the Greek statute of limitations for aggravated murder is

ordinarily twenty years. The Government, however, argued that the normal statute of limitations

had been extended under Article 113 of the Greek Criminal Code, which states that the statute

of limitations may be tolled for up to five years when it is not possible to commence or continue

a prosecution. See note 5, ante. In support of this argument, the Government submitted a letter

from the Public Prosecutor of the Court of Appeals of Athens stating that the statute of

limitations had been so tolled in this case, owing to Skaftouros’s failure to appear to answer the

charges against him. In order to show that Skaftouros had been properly served with the

indictment, a requirement of Article 113, the Government produced the April 17, 1991, request

from the Public Prosecutor that police serve the indictment; the May 6, 1991, confirmation from

the police to the Public Prosecutor that the indictment had been served on Skaftouros’s mother;

and the October 1991 Order suspending the proceedings, which noted the “legal service” of the

indictment on May 5, 1991. In the habeas proceeding, it was Skaftouros’s burden as the

petitioner to show that the statute of limitations had not in fact been extended by operation of

Article 113 and therefore had expired. This Skaftouros attempted to do by arguing that only the

original certificate of service of the indictment would suffice to show that the statute of

limitations had been extended. However, Skaftouros offered no authority for this position, save

for the unsworn and unsupported assertion of his own lawyer in Greece. We find that the

averment of Skaftouros’s Greek counsel was insufficient to satisfy Skaftouros’s burden of

proving that the statute of limitations had not been extended. The District Court’s contrary

27
holding was error, and derived from its improper placement of the burden of proof on the

Government. See Skaftouros II, 759 F. Supp. 2d at 360 (finding that “the Government has not

provided adequate proof that the Order extending the statute of limitations was served on

Skaftouros or his close relative”).21

In placing the burden of proof on the Government, the District Court relied on our

opinion in Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir. 1973). In Jhirad, however, our consideration

of the question of burdens of proof was limited to whether the demanding country in an

extradition proceeding should have to prove beyond a reasonable doubt that the American

statute of limitations was tolled by virtue of 18 U.S.C. § 3290, which provides that “[n]o statute

of limitations shall extend to any person fleeing from justice.” See Jhirad, 536 F.2d at 484–85.

Noting that the interests served by the beyond-a-reasonable-doubt standard apply “with less

force in the context of an international extradition proceeding,” we held that India, the

demanding country and real party in interest, was only required to prove by a preponderance of

the evidence that the statute had been tolled. Id. at 484. We did not address the assignment of

the burden of proof in a habeas proceeding challenging the legality of an extradition proceeding,

but rather the assignment of the burden in the extradition proceeding, itself.22

21
The District Court appears to have misunderstood which document tolled the statute of
limitations. In its opinion, it stated that “the Government has not provided adequate proof that the
Order extending the statute of limitations [that is, the October 1991 Order] was served on
Skaftouros or his close relative, which is necessary for the order to become binding.” Id. However,
as the Greek government made clear from the outset, it was service of the indictment, followed by
Skaftouros’s failure to appear to answer the charges, that triggered the suspension of the statute of
limitations. While the October 1991 Order officially suspended the prosecution because Skaftouros
“did not appear, neither was he arrested[,] within a month after the legal service of the [indictment]
on [May 4, 1991],” there was no apparent requirement that the October 1991 Order, itself, be served
upon Skaftouros or his close relative.
22
We note as well that our reason for holding that India had the burden of proving, in the
initial extradition proceeding, that the statute of limitations had been tolled was that we were
28
 The evidence before the District Court strongly suggested that the statute of limitations

had been tolled by virtue of the October 1991 Order. Skaftouros’s argument that the October

1991 Order was ineffective because there was insufficient proof that he had been served with

the indictment is supported only by the word of his own Greek attorney—an averment lacking

any indicia of reliability whatsoever. It is clear to us, therefore, that Skaftouros did not meet his

burden of proving, even by a preponderance of the evidence, that the applicable Greek statute of

limitations had expired or that Article V of the Treaty had not been satisfied.

CONCLUSION

For the reasons stated above, we hold that, in a habeas proceeding seeking collateral

review of an extradition order, the petitioner bears the burden of proving, by a preponderance of

the evidence, that he is being held in violation “of the Constitution or laws or treaties of the

United States,” 28 U.S.C. § 2241(c)(3), which, in this context, will typically mean in violation of

the federal extradition statute, 18 U.S.C. § 3184, or the applicable extradition treaty.

Furthermore, we reaffirm that judicial officers considering extradition requests—and district

judges collaterally reviewing extradition orders pursuant to a petition for a writ of habeas

corpus—must avoid engaging in an analysis of the demanding country’s laws and procedure,

considering the American statute of limitations, which could not be reviewed again by the Indian
courts. Id. at 485 (“Unlike the elements of the offense, for which only probable cause need be
established, . . . the question of whether Jhirad’s prosecution is time barred will not again be
reviewed in India.”). In stark contrast, Skaftouros’s argument relates to the Greek statute of
limitations, and is therefore not only available for him to make before the Greek courts, but is most
properly raised in that forum.
29
except to the limited extent necessary to ensure that the requirements of the federal extradition

statute and applicable extradition treaty have been satisfied.

Accordingly, we conclude that:

(1) The District Court erred in assigning the Government, as respondent, the burden of

proof in this habeas proceeding;

(2) The District Court erred in concluding that the Treaty’s requirement of a duly

authenticated warrant was not satisfied by the arrest warrant provided by the Greek authorities;

and

(3) The District Court erred in concluding that the Greek statute of limitations had

expired.

The judgment of the District Court is REVERSED, the writ of habeas corpus is

VACATED, and the cause is REMANDED to the District Court solely for the purpose of

entering a certificate of extraditability and order of commitment.

30