United States Court of Appeals,
Fifth Circuit.
No. 93-2229.
Thomas LUDECKE and Stephan Vogt, Petitioners-Appellants,
v.
U.S. MARSHAL, Respondent-Appellee.
March 7, 1994.
Appeal from the United States District Court for the Southern District of Texas.
Before DUHÉ and EMILIO M. GARZA, Circuit Judges, and BLACK,1 District Judge.
DUHÉ, Circuit Judge:
In extradition proceedings, a magistrate judge found probable cause to extradite Thomas
Ludecke and Stephan Vogt ("Petitioners") to the Federal Republic of Germany. Petitioners applied
for a writ of habeas corpus challenging the magistrate judge's finding of probable cause. Petitioners
argue that the deposition of Richard Gilbert was admitted in violation of the authentication and
certification requirements of the United States-Federal Republic of Germany Extradition Treaty.
Petitioners also challenge the reliability of the Gilbert deposition and contend that the magistrate
judge improperly rejected their rebuttal evidence. The district court denied habeas relief on all
grounds. We affirm. We also deny Appellant's motion requesting return of original documents to
the court.
Habeas corpus review of a magistrate judge's extradition order is limited to determining
whether the magistrate judge had jurisdiction, whether the offense charged is within the treaty, and
"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, 69 L.Ed. 970
(1925); Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir.) (quoting Fernandez ), cert.
denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980). The facts that the magistrate judge
had jurisdiction and that the offense is within the Treaty are uncontested. At issue here is probable
1
Chief Judge of the Southern District of Texas, sitting by designation.
cause, that is, whether there existed reasonable gro und to believe the accusedsguilty of the crime
charged. "[O]ur function "is to determine whether there is any competent evidence tending to show
probable cause.' " Escobedo, 623 F.2d at 1102 (quoting Garcia-Guillern v. United States, 450 F.2d
1189, 1192 (5th Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972)).
I.
Petitioners first challenge the competency of a key piece of evidence, the deposition of
Richard Gilbert, as evidence of probable cause, maintaining that it did not originate with the German
government, did not bear the signature of a German judge and did not travel through diplomatic
channels as is required by the Treaty, articles 14, 15 and 29.
The Gilbert deposition was not filed with the original extradition request submitted to the
magistrate judge in November 1992, but rather was filed a couple of months later, in January 1993.
Through bureaucratic inefficiencies admitted by government counsel, the State Department apparently
lost its original Gilbert deposition and a certified duplicate original was filed. Article 14 of the Treaty
requires that a request for extradition and any subsequent documents "be transmitted through the
diplomatic channel." Treaty concerning Extradition, June 20, 1978, U.S.-F.R.G., art. 14(1), 32
U.S.T. 1487, 1496. Article 15 requires that if the United States considers the evidence insufficient
to fulfill the requirements of the Treaty, that it "shall request the submission of necessary additional
evidence," implying that the United States shall not itself supply the additional evidence. Id. art.
15(1), 32 U.S.T. at 1499.
Though Petitioners co mplained that the record did not reflect either that the German
government intended the Gilbert deposition to be attached to the extradition request or that the
deposition travelled through the diplomatic channel, the magistrate judge disagreed with both
complaints. Her conclusions were based on the fact that the original certification of the U.S. Minister
Counselor for Consular Affairs in Bonn, Norman A. Singer, dated October 28, 1992, appeared on
the duplicate original Gilbert deposition, identical to the consulate certification of the same date on
the other filings comprising the extradition package. The certification, which appeared on three
ribbon-bound sets of papers comprising the extradition package, certified
that the annexed appears, being the warrant of arrest ... and other documents proposed to be
used upon an application for the extradition from the United States of Thomas LUDECKE
and Stephan VOGT, charged with the crime of fraud alleged to have been committed in the
Federal Republic of Germany, are properly and legally authenticated so as to entitle them to
be received in evidence for similar purposes by the tribunals of the Federal Republic of
Germany....
1 Supp.R. 381, 344, & 271. The magistrate judge also considered an affidavit from a State
Department official who declared that
The documents submitted by the Government of the Federal Republic of Germany with the
note in support of its extradition request were certified on October 28, 1992, by Norman A.
Singer, Minister-Counselor for Consular Affairs at the United States Embassy in Bonn.... Mr.
Singer at the time was the principal consular official of the United States in the Federal
Republic of Germany.
1 Supp.R. 71. The fact that the deposition was ribbon-bound and certified by the same person on the
same date and in a manner identical to the other items of the package supports the inference that the
American Embassy received the Gilbert deposition from the German Government together with the
other extradition documents and that they all travelled through the diplomatic channel at the same
time. And indeed the magistrate judge inferred from this evidence that the deposition originated with
the requesting country, that the German government intended the deposition to be part of the
extradition package, that a ribboned original deposition was sent to the State Department for filing,
and that the deposition met the Treaty requirements. 7 Supp.R. 7, 10-13. These findings, supported
by ample circumstantial evidence, defeat Petitioners' complaint that the deposition did not travel
through diplomatic channels and did not originate with the requesting state.2
As for the objection that the deposition did not bear the signature of a judge or competent
officer, the magistrate judge found that a German judge signed the arrest warrant which was "part
of the package" with the Gilbert deposition. 7 Supp.R. 17-18. The certification requirement in the
Treaty provides as follows:
A warrant of arrest and depositions or other evidence ... shall be admitted in evidence in the
2
We are unimpressed with Petitioners' argument that the statement of counsel was improperly
received as "evidence" that the Gilbert deposition was submitted through the diplomatic channel.
The magistrate judge apparently accepted the Assistant U.S. Attorney's explanation for the late
filing of the deposition, namely that original sent to the State Department had been lost. The
magistrate judge also independently found that the duplicate original deposition was properly
certified and that all the documents came from Germany at the same time. 7 Supp.R. 7-13.
examination of the request for extradition when:
a) In the case of a request emanating from the Federal Republic of Germany, they are
signed by a judge or competent officer, are authenticated by the official seal of the
Federal Minister of Justice and are certified by the competent diplomatic or consular
officer of the United States in the Federal Republic of Germany....
Treaty, art. 29, 32 U.S.T. at 1511. We find no error in the magistrate judge's conclusion that this
signature was sufficient to satisfy the requirements of article 29. Her conclusion is consistent with
the "familiar rule that the obligations of treaty should be liberally construed"3 to effect their purpose,
namely, the surrender of fugitives to be tried for their alleged offenses. "The obligation to do what
some nations have done voluntarily, in the interest of justice and friendly international relationships,
... should be construed more liberally than a criminal statute or the technical requirements of criminal
procedure." Factor v. Laubenheimer, 290 U.S. 276, 298-99, 54 S.Ct. 191, 197, 78 L.Ed. 315 (1933)
(citation omitted). We have not read article 29 narrowly to require that each and every document in
an extradition package be certified by the consular officer; nor will we read it narrowly to require that
each individual document bear the signature of a German judge. Article 29 of the treaty requires only
that "they"—meaning the entire gro up of documents—bear the appropriate certifications and
signatures.
II.
After the magistrate judge found probable cause to extradi te Petitioners, documents
comprising the extradition record were forwarded to the State Department. Copies of those
documents are filed in the record of this habeas proceeding. 1 Supp.R. 73-382. Our copies reflect
which documents were ribboned and which bore the seal and signatures of the consular officer or a
German judge. It is not disputed that the two ribboned sets of documents first filed with the
magistrate judge to commence the extradition proceeding did not contain the Gilbert deposition. Nor
is it disputed that the ribboned o riginal Gilbert deposition filed later was certified by the consular
3
Escobedo, 623 F.2d at 1104 (quoting Valentine v. United States ex rel. Neidecker, 299 U.S.
5, 10, 57 S.Ct. 100, 103, 81 L.Ed. 5 (1936); see also Escobedo, 623 F.2d at 1104 (n. 16
(quoting J.G. Hawley, Law and Practice of International Extradition, 41-42 (1893)) (by
overruling merely technical objections, magistrate judges appropriately prevent a failure of justice
and a failure of the purposes of extradition).
official on the same date as the other documents. These are the facts on which the magistrate judge's
ruling was based. Accordingly, we find it unnecessary to require the United States to return to the
court's file the original documents and deny Petitioners' motion to that effect.
III.
Petitioners next complain that, even if the Gilbert deposition were admissible, it is not
competent evidence to support a finding of probable cause because Mr. Gilbert was not warned of
the penalty of perjury. Mr. Gilbert swore to tell the truth but was not warned o f any penalty of
perjury. A "deposition[ ] or other evidence, given on oath or in a manner described in Article 14(5)"
is admissible in evidence in extradition proceedings if it satisfies the authentication and certification
requirements of article 29 discussed above. Treaty, art. 29, 32 U.S.T. at 1511. A deposition not
given under oath is admissible if it meets the additional requirement that it be given under penalty of
perjury. See Treaty, art. 14(5), 32 U.S.T. at 1498 (witness's statement in writing not under oath shall
be admitted as though under oath if witness was warned that false or misleading declaration would
render him liable to punishment). Because of this indication from the plain language of the Treaty
that a sworn statement is admissible without a perjury warning, we will not expand the reasoning of
United States v. Jackson, 818 F.2d 345 (5th Cir.1987), to contradict the Treaty. Compare Treaty,
art. 29, 32 U.S.T. at 1511 (deposition under oath "shall be admitted"), with Jackson, 818 F.2d at 348-
50 (arrest warrant failing to demonstrate sworn informant's veracity, reliability, or source of
knowledge lacks indicia of reliability necessary to establish probable cause for warrant).
IV.
Petitioners finally complain that their evidence in opposition to the request for extradition
negated and obliterated all the allegations made by the German government in its extradition package.
The district court found, and we agree, that the magistrate judge gave due consideration to the
evidence submitted by the Petitioners. The magistrate judge agreed to review Petitioners' evidence,
denying the United States Government's motion to strike their evidence. 7 Supp.R. 32-33. Our
function on habeas review is not to determine the weight and sufficiency of evidence; it is only to
determine whether competent legal evidence supports a finding of probable cause. See Escobedo,
623 F.2d at 1102; Garcia-Guillern, 450 F.2d at 1192; see also Collins v. Loisel, 259 U.S. 309, 314-
16, 42 S.Ct. 469, 471-72, 66 L.Ed. 956 (1922). Because she considered and did not exclude
Petitioners' evidence, the magistrate judge could not have violated the principles regarding admission
of evidence discussed in Collins.
V.
In conclusion, the Gilbert deposition was properly admitted before the magistrate judge, and
she did not err by admitting Petitioners' evidence. With the Gilbert deposition, there is reasonable
ground to believe the accused guilty. Habeas relief was appropriately denied.
AFFIRMED; motion requesting return of original documents DENIED; stay of extradition
LIFTED.