[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13303 July 26, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00610 CV-J-21HTS
VALERIJ AFANASJEV,
Petitioner-Appellant,
versus
THOMAS D. HURLBURT, JR.,
United States Marshal,
CONDOLEEZZA RICE, Secretary
of State, United States of America,
Respondents-Appellees.
________________________
No. 04-13309
________________________
D. C. Docket No. 03-00605 CV-J-25-MCR
TATJANA AFANASJEVA,
Petitioner-Appellant,
versus
THOMAS D. HURLBURT, JR.,
United States Marshal,
CONDOLEEZZA RICE, Secretary
of State, United States of America,
Respondents-Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(July 26, 2005)
Before BLACK and HULL, Circuit Judges, and HODGES*, District Judge.
BLACK, Circuit Judge:
The Republic of Lithuania has formally requested the extradition of
Appellants Tatjana Afanasjeva and Valerij Afanasjev, a married couple charged
with committing fraudulent business practices. After conducting a hearing
pursuant to 18 U.S.C. § 3184, a magistrate judge certified their extradition to
Lithuania on some, but not all, of the charges. In finding probable cause to
extradite, the magistrate judge relied primarily on an unsworn bill of indictment
prepared by a Lithuanian investigator. Appellants filed petitions for habeas
corpus, arguing the indictment was not competent evidence to establish probable
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
2
cause. The district court denied habeas relief, concluding there was sufficient
evidence to support the magistrate’s determination that Appellants were
extraditable. We affirm the district court.
I. BACKGROUND
A. Facts
Tatjana Afanasjeva and her husband, Valerij Afanasjev, are Russian
nationals who operated a private business in Lithuania during the 1990s. Over the
course of several years, the couple allegedly defrauded 81 individuals and
misappropriated approximately 1,442,006 in Lithuanian litas (LTL). Appellants
were eventually charged with violating several provisions of the Criminal Code of
the Republic of Lithuania. On May 19, 1999, an investigator in Lithuania issued a
bill of indictment summarizing the charges and the criminal investigation.
Most of the charges filed against Appellants relate to their alleged
involvement with a company named UAB “Gražna,” which was established on
June 6, 1995.1 Valerij worked as an accountant for UAB “Gražna,” and Tatjana
was the company’s acting director. From June 1995 until December 1997,
1
The charges against Tatjana and Valerij are not identical. Prior to the establishment of
UAB “Gražna,” Tatjana was the sole proprietor of a business providing commercial services in
Lithuania. Some of the charges filed against Tatjana concern her actions while running this
individual enterprise from October 1993 until June 1995.
3
Appellants allegedly used their association with this company to fraudulently
obtain the personal property of others. While acting as representatives of the
company, Appellants borrowed money from private persons and agreed to repay
the funds by a specific date. According to the bill of indictment, interest rates
were not mentioned in the written agreements; however, to attract lenders,
Appellants would verbally agree to pay interest on the borrowed money. As the
contracts concluded, Appellants would deny that any interest was promised and
assert their only obligation was to return the entrusted money in installments.
The indictment alleges that Appellants misled investors in other ways, as
well. For example, Appellants allegedly informed potential lenders that the
company’s financial situation was strong, even though it was actually
experiencing a financial crisis. In addition, several victims stated they were led to
believe the invested money would be used to purchase real property. According to
the indictment, Appellants often promised investors that their money would be
used in such a manner, and UAB “Gražna” was advertised in the local newspaper,
“Klaipda,” as a company engaged in the purchase and sale of real estate.
Allegedly, Appellants assured lenders that their investments were secure, because
the real property could, if necessary, be resold to satisfy the loans. However,
despite these assurances, Appellants purportedly failed to use the funds as
4
promised. The indictment alleges that Appellants purchased just two apartments
in 1995 and only one in 1996. Furthermore, during the course of the investigation,
an employee at UAB “Gražna” stated the company rarely bought real property.
After acquiring the victims’ money, Appellants allegedly used the funds for
their own personal needs. The indictment asserts lenders suffered significant
losses because Appellants often failed to (1) repay loans by the agreed-upon date,
(2) pay interest on the borrowed money, or (3) return any portion of the original
loans. Based on these actions, Appellants were charged with several counts of
fraud, in violation of Article 274(2) and (3) of the Criminal Code of the Republic
of Lithuania.2 Appellants were also charged with violating regulations regarding
monetary transactions or transactions in securities, Article 329,3 and with
fraudulent bookkeeping, Article 323(2).
On February 5, 1998, Appellants signed written undertakings not to leave
Lithuania pending the resolution of the criminal charges. On June 10, 1999, the
Lithuanian authorities referred Appellants for trial. When Appellants failed to
2
Tatjana was also charged under Article 151(2) and (3) for the acts of fraud that allegedly
occurred prior to January 1, 1995.
3
For those acts committed prior to January 1, 1995, the applicable statute for violations
of rules regarding monetary transactions or transactions in securities is Article 87.
5
appear, the Lithuanian judge suspended the criminal proceedings until the couple
could be located.
B. Procedural History
On March 28, 2003, the United States, acting on behalf of the government
of Lithuania, filed complaints in federal district court seeking the extradition of
Appellants.4 A magistrate judge immediately issued arrest warrants for Tatjana
and Valerij. Appellants were arrested on April 3, 2003, in Ponte Vedra, Florida.
In accordance with 18 U.S.C. § 3184, the magistrate judge held a hearing to
determine whether Appellants were extraditable.5 In support of extradition, the
4
The applicable extradition treaty between the United States and Lithuania was signed on
April 9, 1924, and entered into force on August 23, 1924. A supplementary extradition treaty
enlarged the list of extraditable offenses. This supplementary treaty was signed on May 17,
1934, and entered into force on January 8, 1935. We recognize that a new extradition treaty
recently entered into force on March 31, 2003. The new treaty, however, does not apply here
because the United States filed the extradition complaints for Tatjana and Valerij before it went
into effect. See Extradition Treaty Between the Government of the United States of America and
the Government of the Republic of Lithuania, Oct. 23, 2001, U.S.–Lithuania, S. Treaty Doc. No.
107-4, Art. 22 (entered into force Mar. 31, 2003).
5
Section 3184 provides, in relevant part:
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 to do so 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
6
Government submitted, inter alia, the following documents: (1) the bill of
indictment; (2) an order from a Lithuanian judge, which summarizes the
allegations and the procedural history of the case; and (3) a letter from the
Prosecutor General of Lithuania, which describes the results of the investigation,
restates the charges, and quotes the applicable provisions of the Lithuanian
Criminal Code. The 106-page bill of indictment provides a detailed account of
Appellants’ alleged criminal activities. In the indictment, the Lithuanian
investigator summarized statements made by victims, employees of UAB
“Gražna,” and other witnesses. The indictment, however, was not prepared under
oath.
After reviewing the evidence, the magistrate judge issued certificates of
extraditability, finding Appellants were extraditable on some, but not all, of the
charges lodged against them in Lithuania. The magistrate judge concluded the
fraud charges were the only extraditable offenses under the treaty. Moreover, the
magistrate judge found that probable cause existed to believe Appellants
shall certify the same, together with a copy of all 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.
7
committed the alleged fraudulent acts.6 In making the probable cause
determination, the magistrate judge relied exclusively on the bill of indictment.
Appellants collaterally challenged the magistrate judge’s order by filing
petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2241. A petition for
writ of habeas corpus is a proper method to contest an extradition order because
there is no direct appeal in extradition proceedings. Kastnerova v. United States,
365 F.3d 980, 984 n.4 (11th Cir. 2004) (citation omitted). In the petitions,
Appellants argued the magistrate judge erred when he determined there was
probable cause to believe they were guilty of fraud. The district court denied the
habeas petitions, finding there was competent evidence to support the magistrate’s
probable cause determination. Tatjana and Valerij appealed the district court’s
denial of their habeas petitions to this Court. We consolidated the two appeals.
II. STANDARD OF REVIEW
“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.” Id. at 984 (citation omitted).
6
To be specific, the magistrate judge found there was probable cause to extradite
Appellants on most of the fraud charges. The magistrate concluded there was insufficient
support for two of the counts of fraud. With regard to these two specific counts, the magistrate
judge determined Appellants were not extraditable.
8
III. DISCUSSION
This Court has repeatedly noted “that a district court’s [habeas] review of a
magistrate judge’s issuance of a certificate of extraditability is narrow.” Id.; see
also Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir. 1993);
Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir. 1980).7 As we have
explained, a petition for writ of habeas corpus in an extradition case “is not a
means for rehearing the magistrate’s findings.” Escobedo, 623 F.2d at 1101
(citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542 (1925)).
Rather, “[r]eview of the magistrate’s order is limited ‘to determining [1] whether
the magistrate had jurisdiction, [2] whether the offense charged is within the
treaty, and [3] by a somewhat liberal extension, whether there was any evidence
warranting the finding that there was reasonable ground to believe the accused
guilty.’” Kastnerova, 365 F.3d at 984 (citing Fernandez, 268 U.S. at 312, 45 S.
Ct. at 542) (emphasis added). In this case, Appellants have only challenged the
magistrate’s answer to the third inquiry.
Tatjana and Valerij argue the district court should have granted their habeas
petitions because the magistrate judge issued the certificates of extraditability
7
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
the close of business on September 30, 1981.
9
based on inadequate evidence. They contend the Lithuanian bill of indictment,
which the magistrate relied heavily upon, was not competent legal evidence to
establish probable cause. Appellants assert the indictment lacks competency and
reliability for the following reasons: (1) the document was not made under oath;
(2) the witness and victim statements constituted hearsay because they were
recounted by the investigator; (3) the statements were not sworn or signed by the
witnesses and victims; and (4) it was unclear whether the indictment was based on
the investigator’s personal knowledge because he never explicitly stated that he
was the individual who interviewed the witnesses and victims. Thus, the sole
issue on appeal is whether the district court erred in determining there was
competent evidence to support the magistrate judge’s finding of probable cause.
After reviewing the record, we conclude the district court did not err when it
refused to grant habeas relief. We reject Appellants’ contention that the bill of
indictment was insufficient evidence to justify their extradition. Federal law does
not require all documents submitted for extradition purposes to be made under
oath.8 The admissibility of documents offered at an extradition hearing is
governed by 18 U.S.C. § 3190, which provides:
8
Similarly, the applicable extradition treaty between the United States and Lithuania does
not impose an oath requirement.
10
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.
18 U.S.C. § 3190. In this case, the bill of indictment and the other Lithuanian
documents were properly certified by Jonathan Floss, Vice Consul at the American
Embassy in Lithuania.9 The unsworn indictment, therefore, was admissible, and
the magistrate judge was free to consider it in determining whether to certify
Appellants’ extradition. See Escobedo, 623 F.2d at 1103 (noting Mexican
extradition documents were admissible because they were properly certified).10
In addition, this Court has observed that the evidence needed to extradite a
fugitive differs from the evidence needed to convict a defendant at a criminal trial.
We have explained:
Extradition hearings under § 3184 are in the nature of a preliminary
hearing. Accordingly, the Government d[oes] 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 the accused;
9
At the time of the certification, Floss was the principal consular officer of the United
States in Lithuania.
10
We further note that while the indictment was not made under oath, it was signed by
the investigator and approved by a Lithuanian prosecutor.
11
he looks only to see if there is evidence sufficient to show reasonable
ground to believe the accused guilty.
Kastnerova, 365 F.3d at 987 (internal quotation marks and citations omitted).11
The Federal Rules of Evidence and the Federal Rules of Criminal Procedure are
not applicable to extradition proceedings. Fed. R. Evid. 1101(d)(3); Fed. R. Crim.
P. (1)(a)(5)(A). Moreover, we have expressly held that “[h]earsay . . . is permitted
in extradition proceedings,” Escobedo, 623 F.2d at 1102 n.10, and the Supreme
Court has explained “unsworn statements of absent witnesses may be acted upon
by the committing magistrate,” Collins v. Loisel, 259 U.S. 309, 317, 42 S. Ct. 469,
472 (1922). See also Elias v. Ramirez, 215 U.S. 398, 409, 30 S. Ct. 131, 136
(1910) (holding unsworn statements were admissible and sufficient to justify the
fugitive’s extradition); Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986)
11
In their brief, Appellants argue an indictment “is not evidence,” and therefore, the
Government has failed to meet its evidentiary burden of establishing probable cause. To support
this proposition, Appellants cite to the Eleventh Circuit Pattern Jury Instructions, Basic
Instruction 2.1, which states: “The indictment or formal charge against any Defendant is not
evidence of guilt.” Appellants, however, are confusing the difference between evidence of guilt
and evidence of probable cause. See Fernandez, 268 U.S. at 312, 45 S. Ct. at 542 (“Competent
evidence to establish reasonable grounds is not necessarily evidence competent to convict.”).
“The function of the committing magistrate is to determine whether there is competent evidence
to justify holding the accused to await trial, and not to determine whether the evidence is
sufficient to justify a conviction.” Collins v. Loisel, 259 U.S. 309, 316, 42 S. Ct. 469, 472
(1922). While an indictment may not be evidence of guilt, it can, under some circumstances, be
sufficient to demonstrate that probable cause exists. See, e.g., Rodriguez v. Ritchey, 556 F.2d
1185, 1191 (5th Cir. 1977) (en banc) (“[I]t has long been settled that an indictment by a properly
constituted grand jury conclusively determines the existence of probable cause and provides the
authority for an arrest warrant to issue.”).
12
(“[W]e have recognized that unsworn hearsay statements contained in properly
authenticated documents can constitute competent evidence to support a certificate
of extradition.”). In sum, the magistrate’s finding of probable cause was not
undermined by the fact that the indictment contained unsworn hearsay statements
of witnesses and victims.12
Finally, contrary to Appellants’ assertions, the magistrate’s probable cause
determination was based on more than mere unsupported allegations. As we
mentioned earlier, the 106-page bill of indictment describes, in significant detail,
Appellants’ alleged fraudulent activities. The indictment lists the specific dates of
events, includes the names of witnesses and victims, and details the amount of
money that was involved in each transaction. After reviewing the indictment, the
magistrate judge found the victims’ statements were consistent with each other and
were corroborated by the statements of non-victims, such as employees at UAB
“Gražna.” The veracity of these statements was further supported by the fact that
upon questioning, Appellants gave inconsistent answers and did not deny their
involvement in the alleged acts. The magistrate judge also undertook the
burdensome task of comparing each witness statement with each fraud count to
12
In Escobedo, we upheld the magistrate judge’s probable cause determination, even
though the magistrate relied, in part, on a Mexican document containing “compound hearsay.”
623 F.2d at 1102 n.10.
13
ensure there was adequate support for each of the charges. In doing so, the
magistrate judge found sufficient evidence to extradite Appellants on nearly all of
the counts of fraud. Furthermore, Appellants’ flight from Lithuania after signing
written undertakings to remain in the country, and after their case was set for trial,
provides additional support for the magistrate’s finding of probable cause. See
Fernandez, 268 U.S. at 313, 45 S. Ct. at 543 (holding there was evidence to
believe the fugitive was guilty because, among other reasons, “he fled the
country”).
For these reasons, we conclude the district court did not err when it found
there was sufficiently reliable evidence in the record to warrant the magistrate
judge’s probable cause determination. See Terlinden v. Ames, 184 U.S. 270,
279–80, 22 S. Ct. 486, 488 (1902) (noting “the judgment of the magistrate
rendered in good faith on legal evidence that 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”) (internal quotation
marks and citation omitted).13
13
In Zanazanian v. United States, 729 F.2d 624 (9th Cir. 1984), the Ninth Circuit reached
a similar conclusion. There, the court considered whether unsworn police reports, which
summarized witnesses’ statements, constituted competent evidence to establish probable cause at
an extradition hearing. Id. at 625. The fugitive argued that “the evidence was not competent
because it was unsworn multiple hearsay.” Id. at 626. The Ninth Circuit rejected this argument,
holding the unsworn reports were sufficiently reliable. Id. at 627. The court explained the
14
IV. CONCLUSION
We hold the district court correctly determined there was competent
evidence to support the magistrate judge’s conclusion that probable cause existed
to extradite Appellants on most of the fraud charges. Accordingly, we affirm the
district court’s denial of Appellants’ habeas petitions.
AFFIRMED.
reports were not “merely fragments of half-forgotten conversations,” but rather they were
“abundant in detail, containing specifics of time and place, price and quantity.” Id.; see also
Emani v. U.S. Dist. Ct., 834 F.2d 1444, 1450–52 (9th Cir. 1987) (holding a German
investigator’s affidavit was competent evidence to establish probable cause even though it
contained unsworn hearsay statements).
15