[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-14119 April 8, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-60904-CV-ASG
JAROSLAVA LORIE KASTNEROVA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
John Ashcroft, U.S. Attorney General,
UNITED STATES SECRETARY OF STATE,
Colin Powell, Secretary,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 8, 2004)
Before BLACK, BARKETT and STAHL*, Circuit Judges.
BLACK, Circuit Judge:
*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
Appellant Jaroslava Lorie Kastnerova filed a petition for writ of habeas
corpus contesting a magistrate judge’s issuance of a certificate that permits
Kastnerova’s extradition to the Czech Republic. The district court denied the
petition, concluding that (1) a valid extradition treaty exists between the Czech
Republic and the United States, and (2) there was sufficient evidence warranting
the magistrate’s finding that reasonable grounds exist to believe Kastnerova guilty
of the charges. Kastnerova now appeals both the substantive determinations of the
district court and the narrow scope of the district court’s habeas review of the
magistrate’s certification. We affirm the district court in all respects.
I. BACKGROUND
A. The Extradition Treaty
Before detailing the events leading to this appeal, it is necessary to
summarize briefly the relevant history surrounding the Treaty Concerning the
Mutual Extradition of Fugitive Criminals, July 2, 1925, U.S.-Czech., 44 Stat. 2367
[hereinafter, the Treaty].1 In the aftermath of World War I, Czechoslovakia was
created from Bohemia, Moravia, and Slovakia, all subject territories of the former
Austro-Hungarian Empire. Shortly thereafter, the Treaty was signed by
1
A supplementary extradition treaty enlarging the list of extraditable offenses was signed
in Washington on April 29, 1935, and entered into force on August 28, 1935. 49 Stat. 3253.
2
Czechoslovakia and the United States in Prague. The Treaty was ratified by the
United States Senate on March 3, 1926. Article 14 of the Treaty states:
The present Treaty shall remain in force for a period of ten years and
in case neither of the High Contracting Parties shall have given notice
one year before the expiration of that period of its intention to
terminate the Treaty, it shall continue in force until the expiration of
one year from the date on which such notice of termination shall be
given by either of the High Contracting Parties.
Neither country has ever given notice of its intention to terminate the Treaty.
Moreover, the Treaty continues to be included in the U.S. State Department’s list
of treaties in force. See Office of the Legal Advisor, U.S. Dep’t of State, Treaties
in Force 72 (2003).
From its founding until its dissolution in 1993, Czechoslovakia had varied
types of governments, ranging from democratic to communist. After the fall of
Communism in the early 1990s, the Czech lands (Bohemia and Moravia) and
Slovakia agreed to go their separate ways. Thus, on January 1, 1993, in what was
called the “velvet divorce” (due to the amicable nature of the separation),
Czechoslovakia split to form the Czech Republic and the Republic of Slovakia.
The events leading to the extradition request at issue took place shortly after
the formation of the Czech Republic. Kastnerova, then a citizen of the Czech
3
Republic, entered into several business ventures involving fitness equipment and
dietary supplements. Kastnerova subsequently immigrated to the United States.
B. Procedural History
On June 29, 2000, Judge Vladimír ech of the Regional Court of Brno in
the Czech Republic issued an arrest warrant charging Kastnerova with three
counts of fraud involving several million Czech koruny (CZK), in violation of
§ 250(1) & (4) of the Czech Criminal Code.2
The warrant alleges that, in late 1994, Kastnerova received an advance
payment of 200,000 CZK from Libuše Barková, an agent of the Escade-Šeba
company, for exercise equipment worth 458,730 CZK. The equipment was not
delivered and the advance payment was not returned. The warrant further alleges
2
The certified English translation of Section 250 provided in the arrest warrant reads:
Section 250
FRAUD
(1) A person who to the detriment of the property of another gains money or
property for himself/herself or someone else by misleading (deceiving) another,
making use of another’s error or concealing substantial facts, and thus causes
damage which is not negligible to the property of another, shall be punished by
imprisonment for a term not exceeding two years, or by prohibition of his/her
(business or professional) activities or by a pecuniary penalty or by forfeiture of a
thing.
(4) The offender shall be punished by imprisonment for a term ranging from five
up to twelve years if he or she, by the offence given in paragraph 1, causes
damage of a significant extent.
4
that, on November 7, 1994, Kastnerova obtained a loan from the Chemitan
company for 1,000,000 CZK for the purpose of buying fitness supplements to sell
to the K-Mart company. Allegedly, this loan was secured by a pledge agreement
bearing a false signature of Josef Hanus, an agent of K-Mart, Prague. Kastnerova
did not repay the loan and did not deliver the goods to K-Mart. The warrant
finally alleges that, in June 1995, Kastnerova failed to make a contractually
required delivery of exercise equipment to Milan Beleš ák after having received
1,003,376.80 CZK from Alfapro, a Czech leasing company that had financed
Beleš ák’s purchase of the equipment.
On February 26, 2003, the United States government, acting on behalf of
the government of the Czech Republic, filed a complaint for Kastnerova’s
extradition pursuant to 18 U.S.C. § 3184.3 A magistrate judge issued a warrant for
3
Section 3184 states:
Whenever there is a treaty or convention for extradition between the United States and
any foreign government . . ., 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 . . .,
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. . . . If, on such hearing, he deems the evidence sufficient to
sustain the charge under the provisions of the proper treaty or convention . . ., 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
5
Kastnerova to be brought before the court and subsequently conducted an
extradition hearing, at which time Kastnerova explained her version of the events
leading to the criminal charges filed against her in the Czech Republic. In support
of extradition, the Government presented several statements from witnesses in the
Czech Republic, statements from Kastnerova, and documents memorializing the
subject transactions. After considering the evidence, the magistrate judge issued a
certification of extraditability and order of commitment, finding, inter alia, that a
valid extradition treaty exists between the United States and the Czech Republic,
the charges alleged in the complaint are extraditable offenses under the treaty, and
probable cause exists to believe Kastnerova committed the offenses for which
extradition was sought.
Shortly thereafter, Kastnerova filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241,4 in which she argued: (1) no valid extradition treaty
exists between the United States and the Czech Republic; and (2) the Government
failed to demonstrate probable cause to believe that she had committed 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.
4
There is no direct appeal in extradition proceedings. Martin v. Warden, Atlanta Pen,
993 F.2d 824, 827 n.3 (11th Cir. 1993).
6
charged offenses. The district court denied Kastnerova’s petition by order entered
on August 5, 2003, and this appeal followed.
II. STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. On review of a denial of a
habeas petition pertaining to the issuance of a certification of extraditability, we
review factual findings for clear error and questions of law de novo. See
Valenzuela v. United States, 286 F.3d 1223, 1229 (11th Cir. 2002).
III. DISCUSSION
On appeal, Kastnerova raises three arguments. First, she asserts the scope
of review set out in Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir.
1993), and applied by the district court was superceded by INS v. St. Cyr, 533 U.S.
289, 121 S. Ct. 2271 (2001). Second, Kastnerova argues there is no valid
extradition treaty between the United States and the Czech Republic. Finally,
Kastnerova contends the district court erred in finding probable cause to believe
she committed the offenses with which she is charged. We address each argument
in turn.
A. Scope of Review
In Martin, this Court observed that a district court’s review of a magistrate
judge’s issuance of a certificate of extraditability is narrow. Review of the
7
magistrate’s order is limited “to determining ‘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.’” 993 F.2d at 828 (quoting
Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542 (1925) (Holmes, J.)).5
Kastnerova contends that this formulation of the district court’s scope of
review has been superceded by the Supreme Court in INS v. St. Cyr. In that case,
the Supreme Court stressed that, for habeas corpus relief to be limited in any way,
there must—at a minimum—be clear congressional intent to do so. 533 U.S. at
299, 121 S. Ct. at 2278–79. In Kastnerova’s view, the extradition statutes do not
mention habeas review, see 18 U.S.C. §§ 3181–95, and, therefore, habeas review
of the issuance of a certificate of extradition cannot be limited.
This argument fails for several reasons, most importantly because St. Cyr
does not stand for Kastnerova’s proposition. St. Cyr addressed the following
procedural question: whether the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 110 Stat. 1214, and the Illegal Immigration Reform and
5
The magistrate’s role is also restricted. “The extradition magistrate conducts a hearing
simply to determine whether there is ‘evidence sufficient to sustain the charge [against the
defendant] under the provisions of the proper treaty or convention.’” Martin, 993 F.2d at 828
(quoting 18 U.S.C. § 3184). Once the magistrate determines the evidence is sufficient, the
magistrate “makes a finding of extraditability and certifies the case to the Secretary of State.” Id.
8
Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009, affected the
availability of habeas corpus jurisdiction under 28 U.S.C. § 2241.6 533 U.S. at
292, 121 S. Ct. at 2275. The government in St. Cyr argued that AEDPA and
IIRIRA removed federal court jurisdiction over a challenge to the Attorney
General’s statutory construction of the 1996 acts. Id. at 297, 121 S. Ct. at 2278.
The Court rejected this argument, noting that “[i]mplications from statutory text or
legislative history are not sufficient to repeal habeas jurisdiction; instead,
Congress must articulate specific and unambiguous statutory directives to effect a
repeal.” Id. at 299, 121 S. Ct. at 2278–79. It is this discussion upon which
Kastnerova bases her challenge.
The above-referenced passage, however, speaks to the district court’s
jurisdiction to hear a habeas petition, not to the district court’s scope of review
once it asserts jurisdiction over a petition. Indeed, “‘it is the scope of inquiry on
habeas corpus that differentiates’ habeas review from ‘judicial review.’” Id. at
312, 121 S. Ct. at 2285 (quoting Heikkila v. Barber, 345 U.S. 229, 236, 73 S. Ct.
603, 607 (1953)).
6
St. Cyr also involved a substantive question regarding the retroactive effect of AEDPA
and IIRIRA. 533 U.S. at 292, 121 S. Ct. at 2275. Kastnerova, however, does not rely on this
portion of the opinion.
9
Additionally, the Supreme Court in St. Cyr favorably cited Terlinden v.
Ames, 184 U.S. 270, 22 S. Ct. 484 (1902). In Terlinden, the Supreme Court
recognized the limited scope of habeas review of extradition decisions and refused
to expand it, noting that the extradition statute “gives no right of review to be
exercised by any court or judicial officer, and what cannot be done directly cannot
be done indirectly through the writ of habeas corpus.” Id. at 298, 22 S. Ct. at 487.
Thus, St. Cyr cannot be read to overrule Terlinden, Martin, or the limited scope of
review set forth in these cases.
Finally, even after St. Cyr, this Court has continued to apply the narrow
scope of review of magistrate judges’ decisions regarding extradition set out in
Terlinden. See Valenzuela v. United States, 286 F.3d 1223, 1229 (11th Cir. 2002).
Had the district court concluded it had no jurisdiction over Kastnerova’s
habeas petition, St. Cyr might be applicable. That is not, however, what occurred.
Kastnerova disputes only the narrow scope of review applied by the district court,
not its exercise of jurisdiction. St. Cyr, therefore, is inapposite.
The district court properly limited its review of the magistrate’s certification
to whether the magistrate judge had jurisdiction, whether the offense charged was
within the treaty, and whether the Government presented competent evidence upon
which the magistrate could find there were reasonable grounds upon which to
10
believe Kastnerova guilty of the charged offenses.7 Terlinden, 184 U.S. at 278, 22
S. Ct. at 487; Martin, 993 F.2d at 828.
B. Validity of the Extradition Treaty
Kastnerova asserts that the Treaty was invalidated when Czechoslovakia
split into the Czech Republic and Slovakia on January 1, 1993. She contends that
the “unilateral action” by the Executive of recognizing the Treaty as still in place
violates the constitutional mandate that two thirds of the United States Senate
ratify any treaty between the United States and a foreign nation. In other words,
Kastnerova argues that when Czechoslovakia split in 1993 to form the Czech
Republic and Slovakia, the Treaty was rendered void because the U.S. Senate had
ratified a treaty with Czechoslovakia, not the Czech Republic.
As this Court has previously noted, extradition is a function of the
Executive, Martin, 993 F.2d at 829, and “the question whether power remains in a
foreign state to carry out its treaty obligations is in its nature political and not
judicial, and . . . the courts ought not . . . interfere with the conclusions of the
political department in that regard.” Terlinden, 184 U.S. at 288, 22 S. Ct. at 491.
Indeed, every other Court of Appeals to consider whether a treaty has lapsed has
7
In any case, we note it is clear from the record that the district court considered de novo
the legal question of whether the extradition treaty continued to be valid, devoting several pages
of analysis to the issue.
11
deferred to the Executive’s determination. See, e.g., United States ex rel. Saroop
v. Garcia, 109 F.3d 165, 171 (3d Cir. 1997); Then v. Melendez, 92 F.3d 851, 854
(9th Cir. 1996); New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954
F.2d 847, 852 (2d Cir. 1992); Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir.
1978).
Accordingly, “we begin our analysis by examining the conduct of the
United States and [the Czech Republic] . . . to determine whether such conduct
evinces an intent” that the nations continue to be bound by the extradition treaty.
Blake v. Am. Airlines, Inc., 245 F.3d 1213, 1216 (11th Cir. 2001). There is
considerable evidence that the governments of both the Czech Republic and the
United States consider the Treaty to be in effect. First, there was an exchange of
diplomatic letters between the two nations regarding the Czech Republic’s status
as a successor state. President Bush sent a letter to the Prime Ministers of the
Czech Republic and Slovakia on or about December 30, 1992, advising that the
United States recognized both nations and acknowledged their commitment to
fulfill the treaty and other obligations of the former Czechoslovakia. In response
to this letter, Prime Minister Václav Klaus of the Czech Republic stated: “The
Czech Republic is a successor state to the dissolved Czechoslovak federation and
12
is committed to fulfilling the treaty and other obligations of the Czech and Slovak
Federal Republic.”
It is also significant that the Czech Republic has previously sought
extradition under the Treaty. See, e.g., In re Extradition of Platko, 213 F. Supp.
2d 1229 (S.D. Cal. 2002). Such conduct demonstrates the Czech Republic’s
continued reliance on the Treaty. Although there is no evidence in the record
concerning extraditions to the United States, the treaty is listed in the U.S. State
Department’s Treaties In Force publication. See Office of the Legal Advisor, U.S.
Dep’t of State, Treaties in Force 72 (2003).
Finally, the U.S. State Department asserted, through a declaration submitted
to the magistrate, that “[i]t is the view of the Department of State that both treaties
[the 1925 treaty and the 1935 supplementary treaty] remain in effect with the
Czech Republic and the Slovak Republic, the two successor States to the former
Czechoslovakia.”
Given this conduct, the district court did not err in concluding that the
Executives of both the Czech Republic and the United States recognize the treaty
as valid. Although Kastnerova asserts that the significant geographic and legal
differences between the Czech Republic and Czechoslovakia mandate termination
of the treaty, “federal courts are not as well equipped as the Executive to
13
determine when the emergence of a new country brings changes that terminate old
treaty obligations.” Then, 92 F.3d at 854. Moreover, Kastnerova has not
effectively countered the Government’s conclusion that “there is a legal,
geographical, and historical continuity” between Czechoslovakia and the Czech
Republic. Id. The agreement of the Executives of both countries that the Treaty
still is in effect weighs heavily in favor of the continuing validity of the Treaty.
Accordingly, we decline to hold the Treaty invalid.8
C. Probable Cause
Kastnerova’s contention that there was insufficient evidence to warrant the
magistrate’s finding of probable cause to believe her guilty of the charged offenses
is meritless. Extradition hearings under § 3184 “are in the nature of a preliminary
hearing.” Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969).9 Accordingly, the
Government did “not have to show actual guilt, only probable cause that the
fugitive is guilty. The magistrate does not inquire into the guilt or innocence of
8
Additionally, this Court has held that “the question of just what constitutes a ‘treaty’
requiring Senate ratification presents a nonjusticiable political question.” Made In The USA
Found. v. United States, 242 F.3d 1300, 1302 (11th Cir. 2001). Thus, even were we to conclude
that the determination of whether a successor nation can agree to continue a treaty in force was
not a political question, it is by no means clear that Kastnerova’s argument—that the agreement
between the executives of the Czech Republic and the United States required Senate
ratification—would succeed.
9
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.
14
the accused; he looks only to see if there is evidence sufficient to show reasonable
ground to believe the accused guilty.” Id. (citations omitted). Upon reviewing the
record, we conclude the district court did not err when it determined there was
competent evidence to support the magistrate’s finding that the Government met
its burden to show probable cause for each of the charges alleged in the complaint.
See Terlinden, 184 U.S. at 279–80, 22 S. Ct. at 488 (observing that “‘the judgment
of the magistrate rendered in good faith on legal evidence that the accused is
guilty of the act charged . . . cannot be reviewed on the weight of evidence, and is
final for the purposes of the preliminary examination unless palpably erroneous in
law.’”) (quoting Ornelas v. Ruiz, 161 U.S. 508, 509, 16 S. Ct. 689, 691–92
(1896)).
IV. CONCLUSION
We hold that the scope of review of a certificate of extraditability set forth
in Terlinden and Martin was not superceded by the Supreme Court’s decision in
St. Cyr. Additionally, because (1) precedent requires great weight be given to the
conduct and determinations of the Executives of the signatory nations when
addressing the continuation of treaties, and (2) the conduct of both the Czech
Republic and the United States evinces an intent to continue to adhere to the
Treaty, we hold the district court did not err in determining the Treaty to be valid.
15
Finally, we also hold the district court did not err when it found competent
evidence to support the magistrate’s probable cause determination. For these
reasons, we affirm the district court’s dismissal of Kastnerova’s habeas petition.
AFFIRMED.
16