In appeal from hearing on Greece's request to extradite Petitioner, Ninth Circuit holds that inquiry into intent is appropriate in dual criminality analysis, that identity of person sought by extradition request can be confirmed through witnesses' identification by photo, and that depositions supporting foreign arrest warrant were not indispensable to support finding of probable cause under U.S. Greece Extradition Treaties
In October 1999, Greece (Petitioner) requested that the U.S. extradite Crystalla Kyriakidou (Respondent). According to the request, Respondent had entered the U.S. using a false passport under the name of Christina Manta. Petitioner sought to extradite Respondent on (1) deceit of especially great damage, by profession and by habit; (2) deceit which caused an especially important damage, in continuation and by habit; (3) continuing deceit against a bank, with damage of more than 5,000,000 drachmas [about $18,000 USD] and committed by a person who acted by profession and by habit and especially dangerous; and (4) fraud by profession and out of habit of particularly great damage.
A California federal court issued an arrest warrant and, on June 30, 2005, authorities provisionally arrested Manta in the belief that she was Kyriakidou. At the extradition hearing, the magistrate judge (MJ) partially granted the government's request for extradition. The MJ concluded that the person before the court, Christina Manta, was Crystalla Kyriakidou, the one Greece sought for extradition. The MJ approved extradition on only two charges: (1) ongoing deceit that caused an especially important damage, and (2) professional and habitual fraud of particularly great damage. The applicable agreements as of January 1, 2007 are Treaty of Extradition and Exchange of Notes, 47 Stat. 2185; T.S. 855; 138 L.N.T.S. 293 (in force, Nov. 1, 1932 ; and Protocol Interpreting Article I of 1931 Treaty, 51 Stat. 2185; E.A.S. 114; 185 L.N.T.S. 408 (in force Sept. 2, 1937).
On one charge, the MJ relied on an investigative report from a Greek Public Prosecutor; it stemmed from testimony from Kiskiras and three other witnesses. For the other charge, the MJ relied on sworn testimony before an Athenian Appeal Court where a witness identified "Manta" as "Kyriakidou." Manta unsuccessfully challenged her extradition by petitioning for a writ of habeas corpus in the district court. Manta now appeals.
Manta raises two objections on appeal. They are (1) that the crime did not fall within the terms of the treaty, and (2) that there no probable cause to believe that Petitioner was the one who had committed the crimes charged. The U.S. Court of Appeals for the Ninth Circuit affirms the dismissal of the habeas petition.
Article I of the [Extradition] Treaty between the U.S. and Greece sets forth the usual "dual criminality' requirement. Dual criminality exists if the "essential character' of the acts criminalized by the laws of each country are the same and the laws are "substantially analogous.' [Cite.] The elements of the crime allegedly committed in a requesting nation need not be identical to the elements of the substantially analogous crime in the requested nation.
The Court of Appeals agrees with the District Court that the essential character of the two crimes on which the MJ based the extradition order corresponds to the U.S. crime of obtaining money by false pretenses. It also agrees that criminal intent is relevant but that it may be inferred from Petitioner's conduct.
At an extradition hearing, the MJ must determine whether the party before the MJ is identical to the party named in the extradition request. The Ninth Circuit upholds the MJ's finding where there is any competent evidence in the record to support it.
"The magistrate judge relied on a complaint that Ms. Loui submitted to the Public Prosecutor of Athens Misdemeanor Court, in which Loui alleged that the person who defrauded her in Greece presented herself as Christina Manta using a 1994 passport No. I.837326; that Manta left Greece to live in San Diego, and that Loui later learned that Manta's real name was "Cristallo Kiriakidou.' In her affidavit, Loui stated that she examined passport No. N464835, which was issued to "Christina Manta' in 1999, and testified that she recognized the person in the picture as the person who deceived her." [Slip op. 7 8].
The Court concludes that the lower court had not erred in determining Manta was the person sought by the extradition request. "An identification based on a single photograph may be competent evidence of identity in an extradition proceeding. ... A magistrate judge may [also] consider the circumstances of an identification when assessing its reliability. The magistrate judge properly did so here when she credited Loui's identification, in part, because Loui had multiple interactions with Kyriakidou." [Slip op. 10]
The Court may uphold the MJ's probable cause determination if there is any competent evidence in the record to support it. Competent evidence did exist, and as the usual rules of evidence do not apply in extradition hearings (unless the relevant treaty provides otherwise), the only requirement for evidence is authenticity. According to Manta, Article XI of the Extradition Treaty does require more than mere authentication. Article XI provides, in relevant part, that: "If [a] fugitive is merely charged with a 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."
The Court concludes that the plain language of the Extradition Treaty refutes Manta's argument that witness statements used at her extradition hearing were not competent evidence because they are unsworn. Article XI, however, is clear that depositions "shall be produced, with such other evidence or proof as may be deemed competent in the case."
Manta also argued that the MJ's probable cause determination was not admissibly supported because the requesting state failed to produce depositions supporting the Greek arrest warrant. The Court rejects this argument as well, albeit on different grounds. "The plain language of the Treaty is clear that depositions are not required in every case. The Treaty requires the submission of depositions only when a warrant "may have been issued' upon those depositions." [Slip op. 11 12]
Finally, the Court rejects Manta's argument that the Fourth Amendment requires that every piece of evidence relied on in an extradition proceeding be sworn. Such a requirement would run contrary to the well established case law that evidence offered for extradition purposes need not be made under oath.
Citation: Manta v. Chertoff, 2008 WL 638404 (9th Cir. March 11, 2008).
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