Manta v. Chertoff ( 2008 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CHRISTINA MANTA,                          
    Petitioner-Appellant,
    v.                                No. 07-55353
    MICHAEL CHERTOFF, Secretary of                     D.C. No.
    CV-06-01568-W
    the Department of Homeland
    Security; MICHAEL B. MUKASEY,*                     OPINION
    Attorney General,
    Respondents-Appellees.
    
    Appeal from the United States District Court
    for the Southern District of California
    Thomas J. Whelan, District Judge, Presiding
    Argued and Submitted
    January 9, 2008—Pasadena, California
    Filed March 11, 2008
    Before: Jerome Farris and Milan D. Smith, Jr.,
    Circuit Judges, and H. Russel Holland,** District Judge.
    Opinion by Judge Milan D. Smith, Jr.
    *Michael B. Mukasey is substituted for his predecessor, Alberto R.
    Gonzales, as Attorney General of the United States, pursuant to Fed. R.
    App. P. 43(c)(2).
    **The Honorable H. Russel Holland, Senior United States District
    Judge for the District of Alaska, sitting by designation.
    2281
    MANTA v. CHERTOFF                   2285
    COUNSEL
    Jennifer L. Coon, Federal Defenders of San Diego, Inc., San
    Diego, California, for the petitioner-appellant.
    George Aguilar and Kyle W. Hoffman, Assistant United
    States Attorneys, San Diego, California, for the respondents-
    appellees.
    OPINION
    MILAN D. SMITH, JR., Circuit Judge:
    Petitioner-Appellant Christina Manta appeals the dismissal
    of her petition for a writ of habeas corpus. Since 1999, Greece
    has sought the extradition of Crystalla Kyriakidou pursuant to
    the Treaty of Extradition Between the United States of Amer-
    ica and the Hellenic Republic (the Treaty). The United States
    filed a Complaint for Extradition against Kyriakidou, whom
    the government believes is the same person as Christina
    Manta. After an extradition hearing, a magistrate judge
    granted the request for extradition based on two foreign
    charges of fraud. Seeking relief from the extradition order,
    Manta petitioned the district court for a writ of habeas corpus
    2286                  MANTA v. CHERTOFF
    under 28 U.S.C. § 2241. We affirm the district court’s dis-
    missal of Manta’s habeas petition.
    I.    FACTUAL AND PROCEDURAL BACKGROUND
    In October 1999, Greece requested that the United States
    extradite Crystalla Kyriakidou. According to the extradition
    request, Kyriakidou had entered the United States using a
    false passport under the name of Christina Manta. Greece
    sought to extradite Kyriakidou on the following three charges:
    (1) deceit of especially great damage, by profes-
    sion and by habit;
    (2) deceit from which it was provoked an espe-
    cially important damage, in continuation and by
    habit; and
    (3) deceit in continuation against a bank, with
    damage that exceeds the amount of 5,000,000 drach-
    mas [approx. $18,000 USD] and committed by a per-
    son who acted by profession and by habit and
    especially dangerous.
    The extradition request also listed thirty check-related convic-
    tions that were imposed on Kyriakidou in abstentia, though
    some of these convictions were declared invalid some time
    after Greece submitted the 1999 extradition request to the
    United States. In December 2002, Greece again requested
    Kyriakidou’s extradition. In this request, Greece added a
    fourth charge against Kyriakidou for “fraud by profession and
    out of habit of particularly great damage.”
    Based on the three charges set forth in the 1999 extradition
    request, the United States filed a Complaint for Extradition
    against Kyriakidou under 18 U.S.C. § 3184 in the United
    States District Court for the Southern District of California.
    The court issued an arrest warrant and, on June 30, 2005,
    MANTA v. CHERTOFF                   2287
    Manta was provisionally arrested on the belief that she was
    Kyriakidou. She was released on bond one week later. On the
    day of the extradition hearing, March 15, 2006, the United
    States filed an Amended Complaint for Extradition incorpo-
    rating the fourth charge listed in Greece’s 2002 extradition
    request.
    The magistrate judge granted in part and denied in part the
    government’s request for extradition. The magistrate judge
    concluded that the person before the court, Christina Manta,
    was Crystalla Kyriakidou, the person Greece sought for extra-
    dition. The magistrate judge granted Greece’s extradition
    request with respect to two charges—“deceit from which it
    was provoked an especially important damage, in continua-
    tion and by habit,” (charge two), and “fraud by profession and
    out of habit of particularly great damage,” (charge four)—
    based on her finding that there was probable cause to believe
    that Kyriakidou had committed those crimes. The magistrate
    judge concluded that probable cause did not exist to extradite
    Kyriakidou on charges one and three.
    With respect to charge two, the Amended Complaint for
    Extradition alleged that Kyriakidou had “misrepresented her-
    self as a real estate investor and convinced an investor [Theo-
    doros Kiskiras] to give her [approximately $3,200,000] for
    future real estate enterprises,” and did not invest the money
    as promised. In her probable cause analysis, the magistrate
    judge relied on an investigation report written by a Greek
    Public Prosecutor, which stated that it was based on “testimo-
    nies” from Kiskiras and three other witnesses and described
    Kyriakidou’s interactions with Kiskiras. The Magistrates’
    Council of Athens issued a writ of arrest for Kyriakidou based
    on this investigation report.
    With respect to charge four, the Amended Complaint for
    Extradition alleged that Kyriakidou “falsely represented to an
    investor her identity, that she was an expert in international
    stock exchange trading, that she had her own investment com-
    2288                  MANTA v. CHERTOFF
    pany, and that she was receiving annual returns of 50 to 100
    percent on her investments,” which caused an investor,
    Dimitra Loui, to give her $32,000. Kyriakidou did not invest
    or return Loui’s money. In her probable cause analysis, the
    magistrate judge relied on a complaint submitted by Loui to
    the Public Prosecutor of Athens Misdemeanors Court and an
    examination under oath before the Public Prosecutor of the
    Appeal Court of Athens in which Loui identified Manta as
    Kyriakidou (Loui Affidavit).
    Manta challenged the order certifying her extradition by fil-
    ing a petition for a writ of habeas corpus under 28 U.S.C.
    § 2241 in the district court. Manta now appeals the district
    court’s dismissal of her habeas petition. We have jurisdiction
    under 28 U.S.C. § 2253(a).
    II.   DISCUSSION
    [1] “Extradition from the United States is a diplomatic pro-
    cess” that is initiated when a foreign nation requests extradi-
    tion of an individual from the State Department. Prasoprat v.
    Benov, 
    421 F.3d 1009
    , 1012 (9th Cir. 2005) (citing Blaxland
    v. Commonwealth Dir. of Pub. Prosecutions, 
    323 F.3d 1198
    ,
    1207 (9th Cir. 2003)); see 18 U.S.C. § 3184. If the State
    Department concludes that the request is within the scope of
    a treaty between the requesting nation and the United States,
    a United States Attorney “ ‘files a complaint in federal district
    court seeking an arrest warrant’ ” for the individual sought for
    extradition. 
    Prasoprat, 421 F.3d at 1012
    (quoting 
    Blaxland, 323 F.3d at 1207
    ). A judge or magistrate judge must then hold
    an extradition hearing to determine if the evidence is suffi-
    cient to sustain the charge of extradition under the relevant
    treaty. 
    Id. (citing 18
    U.S.C. § 3184). If the judge or magistrate
    judge concludes that “the crime is extraditable,” and that
    “there is probable cause to sustain the charge,” the judge or
    magistrate judge must certify the extradition. 
    Id. (citations omitted).
                          MANTA v. CHERTOFF                        2289
    [2] “[A] habeas petition is the only available avenue to
    challenge an extradition order.” Vo v. Benov, 
    447 F.3d 1235
    ,
    1240 (9th Cir. 2006) (citing Mainero v. Gregg, 
    164 F.3d 1199
    , 1201-02 (9th Cir. 1999)). In examining a petition for
    writ of habeas corpus challenging an extradition order, our
    inquiry on appeal is limited to whether:
    (1) the extradition judge had jurisdiction to con-
    duct proceedings;
    (2) the extradition court had jurisdiction over the
    fugitive;
    (3) the extradition treaty was in full force and
    effect;
    (4)   the crime fell within the terms of the treaty; and
    (5) there was competent legal evidence to support
    a finding of extraditability.
    Zanazanian v. United States, 
    729 F.2d 624
    , 625-26 (9th Cir.
    1984) (citing Caplan v. Vokes, 
    649 F.2d 1336
    (9th Cir.
    1981)). The fifth factor, stated another way, requires us to
    consider whether competent legal evidence “demonstrate[s]
    probable cause to believe that the accused committed the
    crime charged” by the foreign nation. 
    Id. at 626
    (citing
    Merino v. U. S. Marshal, 
    326 F.2d 5
    , 12 (9th Cir. 1963)).
    On appeal, Manta raises arguments under the fourth and
    fifth factors: whether the crime fell within the terms of the
    treaty, and whether there was competent legal evidence to
    support a finding of extraditability. She claims: (1) that the
    district court erred in concluding that the Treaty’s requirement
    of “dual criminality” was satisfied; (2) that the district court
    erred in concluding that there was competent evidence to sup-
    port the magistrate judge’s finding that Manta is Kyriakidou,
    the person Greece sought for extradition; and (3) that the dis-
    2290                   MANTA v. CHERTOFF
    trict court erred in concluding that competent evidence sup-
    ported the magistrate judge’s probable cause determination.
    We address each of these arguments in turn.
    A.   Dual Criminality
    [3] Article I of the Treaty between the United States and
    Greece sets forth a “dual criminality” requirement. It provides
    that “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.” Treaty of Extradition Between the
    United States of America and the Hellenic Republic, U.S.-
    Greece, May 6, 1931, 47 Stat. 2185 (emphasis added). In
    other words, an offense is not extraditable under the Treaty
    unless it is considered criminal under the laws of both Greece
    and the United States. See 
    Caplan, 649 F.2d at 1343
    .
    [4] 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.” Oen Yin-Choy v.
    Robinson, 
    858 F.2d 1400
    , 1404 (9th Cir. 1988) (internal quo-
    tations and citations omitted). The name by which the crime
    is described in each country and the scope of liability need not
    be the same. 
    Id. (citing Emami
    v. U. S. Dist. Court, 
    834 F.2d 1444
    , 1450 (9th Cir. 1987)). The elements of the crime alleg-
    edly committed in a foreign country also need not be identical
    to the elements of the substantially analogous crime. 
    Id. at 1404-05
    (citing In re Russell, 
    789 F.2d 801
    , 803 (9th Cir.
    1986)) (stating that Hong Kong crimes of false accounting
    and publishing a false statement are substantially analogous to
    federal crime of making a false entry in a bank statement);
    Clarey v. Gregg, 
    138 F.3d 764
    , 765 (9th Cir. 1998) (“[D]iffer-
    ences between statutes aimed at the same category of conduct
    do not defeat dual criminality.”). Rather, “ ‘[i]t is enough that
    the conduct involved is criminal in both countries.’ ” Oen Yin-
    
    Choy, 858 F.2d at 1404-05
    (quoting In re Russell, 789 F.2d
    MANTA v. CHERTOFF                           2291
    at 803); see 
    Emami, 834 F.2d at 1450
    (stating that dual crimi-
    nality is satisfied if the “substantive conduct each statute pun-
    ishes is functionally identical”).
    We review de novo a district court’s decision as to whether
    a crime falls within the terms of a treaty, including a treaty’s
    requirement of dual criminality. 
    Clarey, 138 F.3d at 765
    ;
    United States v. Khan, 
    993 F.2d 1368
    , 1372 (9th Cir. 1993).
    [5] We agree with the district court that the essential char-
    acter of the two crimes on which the magistrate judge based
    the extradition order—“deceit from which it was provoked an
    especially important damage, in continuation and by habit,”
    and “fraud by profession and out of habit of particularly great
    damage”—target fraud by false pretenses or obtaining money
    by false pretenses,1 which is criminal in the United States
    under laws punishing mail and wire fraud.2 Manta3 presents a
    1
    Article 386 of the Greek Criminal Code, paragraphs 1 and 3, criminal-
    izes the conduct with which Greece charged Kyriakidou in charges two
    and four. The Greek Criminal Code provides, in relevant part:
    1. Anyone who, with the purpose to gain illegal profit for him-
    self or another person, hurts another persons’s property by con-
    vincing someone to act, omit or tolerate, by knowingly presenting
    false events as real or the unjust coverage or concealment of real
    facts, is punished by imprisonment of at least three months and
    if the damage caused is of [particularly] high value, by imprison-
    ment of at least two years.
    3. It is imposed imprisonment of up to ten years: a) if the
    offender commits frauds by profession or by habit.
    2
    Federal law prohibiting mail and wire fraud permits the prosecution of
    anyone who “having devised or intending to devise any scheme or artifice
    to defraud, or for obtaining money or property by means of false or fraud-
    ulent pretenses, representations, or promises” uses the mail or wire trans-
    missions to further the scheme or artifice. 18 U.S.C. §§ 1341, 1343.
    Though the parties do not discuss Manta’s use of the wires or mails in per-
    petrating the alleged fraud, Manta does not argue that her conduct would
    not have been criminal in the United States on this basis. Manta has there-
    fore waived any such argument on appeal. Smith v. Marsh, 
    194 F.3d 1045
    ,
    2292                      MANTA v. CHERTOFF
    narrow challenge to the district court’s conclusion that the
    Treaty’s dual criminality requirement was met.4 Though
    Manta admits that the “foreign offenses charged are similar to
    criminal fraud,” she argues that the government did not prove
    dual criminality because it “failed to establish a specific intent
    to defraud.” This argument is not persuasive.
    [6] We agree with Manta that it is proper to consider her
    alleged intent as a part of our dual criminality analysis. Dual
    criminality requires that the “ ‘conduct involved is criminal in
    both countries.’ ” Oen 
    Yin-Choy, 858 F.2d at 1405
    (quoting In
    re 
    Russell, 789 F.2d at 803
    ) (emphasis added); see 
    Emami, 834 F.2d at 1449-50
    (concluding that as long as Emami’s
    alleged conduct would be prosecutable under the laws of the
    United States, dual criminality was satisfied even though the
    two relevant countries had differing definitions of fraud).
    Because conduct is only criminal if performed with the
    required intent, we must consider whether Manta’s alleged
    conduct evidences a specific intent to defraud such that her
    alleged conduct would be criminal in the United States.
    An intent to defraud may be inferred from circumstantial
    evidence. United States v. Milwitt, 
    475 F.3d 1150
    , 1159 (9th
    Cir. 2007) (citing United States v. Cloud, 
    872 F.2d 846
    , 852
    1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its
    opening brief are deemed waived.”).
    3
    We assume, for the purpose of this Section, that Manta and Kyriakidou
    are the same person. The merits of this assumption are discussed in Sec-
    tion II.B, infra.
    4
    We need not address Manta’s only other argument related to dual crim-
    inality, that the district court erred as a matter of law by focusing on the
    laws of each jurisdiction, as our review of the district court’s dual crimi-
    nality analysis is de novo. See 
    Clarey, 138 F.3d at 765
    . Moreover, the dis-
    trict court correctly noted that a dual criminality analysis considers
    whether “the ‘essential character’ of the” targeted conduct is punishable
    under the laws of the two relevant countries, which is consistent with our
    case law. See Oen 
    Yin-Choy, 858 F.2d at 1404
    .
    MANTA v. CHERTOFF                    2293
    n.6 (9th Cir. 1989)); Schreiber Distrib. Co. v. Serv-Well Fur-
    niture Co., 
    806 F.2d 1393
    , 1400 (9th Cir. 1986) (specific
    intent to defraud required by mail and wire fraud statutes is
    “satisfied by the existence of a scheme which was reasonably
    calculated to deceive persons of ordinary prudence and com-
    prehension”) (internal quotations and citations omitted); cf.
    Oen 
    Yin-Choy, 858 F.2d at 1407-08
    (inferring the intent “to
    gain for himself or for another” from “the structure and result
    of the transactions”). We can easily infer Manta’s intent to
    defraud from the alleged conduct on which Greece based
    charges two and four.
    [7] As to charge two, the 1999 extradition request alleged
    that Manta “falsely presented” to Kiskiras that she was in the
    real estate business, that she bought estates at auctions and
    resold them for profit in cooperation with certain Belgian and
    Swiss companies, and that she was “of a great financial wel-
    fare”; as a result, Manta convinced Kiskiras to give her mil-
    lions of dollars which she kept and never invested. Manta’s
    intent to defraud is supported by the Public Prosecutor’s
    investigation report, which documented that when Kiskiras
    asked Manta to return some of his investment, she gave him
    checks that lacked sufficient funds. Kiskiras also learned that,
    contrary to Manta’s representations, she had no involvement
    with the banks or real estate companies.
    [8] We can also infer an intent to defraud from the conduct
    on which charge four is based. Manta is alleged to have pre-
    sented to Dimitra Loui “knowingly of the truthlessness” that
    she had an investment company named IMAR World Trading
    Ltd., which invested in secured bonds of developing countries
    with an annual return of 50-100 percent. Loui gave Manta
    approximately $32,000 to invest (as valued in the 2006
    Amended Complaint for Extradition), and this money was
    never returned to Loui or invested.
    B.   Identity
    [9] At an extradition hearing, the court is required to deter-
    mine whether the party before the court is the party named in
    2294                  MANTA v. CHERTOFF
    the extradition complaint. Hooker v. Klein, 
    573 F.2d 1360
    ,
    1367 (9th Cir. 1978). Whether the person before the court is
    the accused is part of the magistrate judge’s probable cause
    analysis. Quinn v. Robinson, 
    783 F.2d 776
    , 815 (9th Cir.
    1986). On habeas, we uphold a magistrate judge’s finding that
    there is probable cause to believe the accused committed the
    crime charged if there is any competent evidence in the record
    to support it. Then v. Melendez, 
    92 F.3d 851
    , 854 (9th Cir.
    1996) (citing 
    Quinn, 783 F.2d at 791
    ); 
    Zanazanian, 729 F.2d at 626
    (citing 
    Merino, 326 F.2d at 12
    ).
    [10] We agree with the district court that there was ample
    competent evidence to support the magistrate judge’s conclu-
    sion that Crystalla Kyriakidou, the person Greece requested
    for extradition, is the same person as Christina Manta, the per-
    son before the magistrate judge. The magistrate judge relied
    on a complaint that Loui submitted to the Public Prosecutor
    of Athens Misdemeanor Court, in which Loui alleged that the
    person who committed fraud against her in Greece presented
    herself as Christina Manta using passport No. I.837326
    (issued in 1994), that Manta left Greece to live in San Diego,
    and that Loui later learned that Manta’s real name was “Cris-
    tallo Kiriakidou.” In Loui’s affidavit, she stated that she
    examined passport No. N464835, which was issued to “Chris-
    tina Manta” in 1999, and testified that she recognized the per-
    son in the picture as the person who deceived her.
    The magistrate judge observed that the person in court
    appeared to be the same person that Loui had identified in the
    passport photo. The magistrate judge also noted other evi-
    dence, though not conclusive by itself, supporting that the
    person before the court was Kyriakidou. She considered that
    the Public Prosecutor in Greece recognized the person in the
    passport photo as having a good likeness to the person Greece
    sought for extradition, that Manta had provided different dates
    of birth for herself on three occasions suggesting that her true
    identity was not that of Christina Manta, and that Manta
    MANTA v. CHERTOFF                    2295
    admitted that she was in Greece in 1997, when some of the
    alleged conduct took place.
    Manta argues on appeal that there is no evidence that she
    is the person sought in connection with charge two, and that
    Loui’s identification is not competent to support that she is
    the person sought in connection with charge four. As a pre-
    liminary matter, Manta errs in suggesting that the government
    needed to provide specific evidence that she was the person
    sought as to each charge. Manta cites no case law to support
    such an approach and, by seeking extradition of one individ-
    ual for multiple charges at once, it is implicit that Greece
    seeks to extradite the same person on all charges. Thus, our
    analysis of whether the magistrate judge had competent proof
    of identity is not charge-specific.
    Manta also contends on appeal, for the first time, that
    Loui’s identification is not competent because (1) the govern-
    ment’s submission of Loui’s affidavit identifying was
    untimely under the Treaty, and (2) Loui’s identification was
    impermissibly suggestive. As a general rule, we do not con-
    sider issues raised for the first time on appeal. See Allen v.
    Ornoski, 
    435 F.3d 946
    , 960 (9th Cir. 2006) (citing United
    States v. Flores-Montano, 
    424 F.3d 1044
    , 1047 (9th Cir.
    2005)). The Ninth Circuit has recognized three narrow excep-
    tions to this general rule. See 
    Flores-Montano, 424 F.3d at 1047
    (internal quotations and citation omitted) (stating that a
    court may exercise its discretion to review newly presented
    issues when there are exceptional circumstances, due to a
    change in law while appeal was pending, or when the issue is
    a pure issue of law and the opposing party will suffer no prej-
    udice). These exceptions do not apply here due to the nature
    of the new arguments Manta has asserted. However, a further
    exception applies “when plain error has occurred and an
    injustice might otherwise result.” 
    Id. Plain error
    occurs only when there is an error, that is plain,
    and affects a defendant’s substantial rights; an appellate court
    2296                  MANTA v. CHERTOFF
    may exercise its discretion to correct such an error only if it
    “ ‘seriously affect[s] the fairness, integrity, or public reputa-
    tion of judicial proceedings.’ ” United States v. Thornton, 
    511 F.3d 1221
    , 1225 n.2 (9th Cir. 2008) (quoting Johnson v.
    United States, 
    520 U.S. 461
    , 467 (1997)). For the following
    reasons, we conclude that the magistrate judge’s consideration
    of the government’s evidence supporting Loui’s identification
    did not constitute plain error.
    [11] We turn first to Manta’s argument that the govern-
    ment’s submission of Loui’s identification was untimely.
    Article XI of the Treaty provides, in relevant part, that if the
    fugitive is charged with a crime and provisionally arrested in
    the United States, she shall be released “unless within two
    months . . . 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 . . . .” 47 Stat. 2185. It is true that
    Loui’s complaint and her statement under oath were not sub-
    mitted in authenticated form until after this two-month dead-
    line. At the time the government submitted the initial
    Complaint for Extradition, however, the government attached
    authenticated documents including Greece’s request for extra-
    dition and a warrant in Greece for Kyriakidou. The plain lan-
    guage of the Treaty does not require that the government
    submit all of its evidence to support an extradition request
    within two months of the alleged fugitive’s provisional arrest.
    In effect, such a requirement would prevent the government
    from gathering evidence to support extradition any time after
    this two-month period, which could severely limit the govern-
    ment’s ability to extradite individuals under the Treaty. We
    decline to read such a requirement into the Treaty, particularly
    in light of the rule that we are to construe extradition treaties
    liberally. United States ex rel. Sakaguchi v. Kaulukukui, 
    520 F.2d 726
    , 731 (9th Cir. 1975).
    Second, the magistrate judge’s consideration of Loui’s
    photo identification also was not erroneous on the grounds
    MANTA v. CHERTOFF                           2297
    that it was “impermissibly suggestive.” Manta argues that
    Loui’s identification is not reliable because it occurred eight
    years after Loui had allegedly seen Kyriakidou, Loui was
    shown only a single photograph, and the photograph was dis-
    played as part of a passport with Manta’s name and other
    identifying information. Our case law regarding what identifi-
    cation evidence is proper in extradition hearings does not sup-
    port Manta’s objections.
    [12] “[T]he credibility of the reported identification is a
    matter committed to the magistrate and is not reviewable on
    habeas corpus.” Escobedo v. United States, 
    623 F.2d 1098
    ,
    1102 n.10 (5th Cir. 1980); see also 
    Quinn, 783 F.2d at 815
    (“The magistrate was free to determine the weight to be
    accorded to the various descriptions of the killer.”). More-
    over, “there is no per se rule that specifies which identifica-
    tion procedures are ‘competent’ for probable cause purposes.”
    
    Quinn, 783 F.2d at 815
    . An identification based on a single
    photograph may be competent evidence of identity in an
    extradition proceeding. See 
    Escobedo, 623 F.2d at 1102
    . In
    Escobedo, the Fifth Circuit favorably considered a hearsay
    report that a witness to a crime was shown a picture of the
    alleged fugitive and “recognized him as one of the persons
    who performed the attack” in its probable cause analysis. 
    Id. at 1102.
    Finally, a magistrate judge may consider the circum-
    stances of an identification when assessing its reliability.
    
    Quinn, 783 F.2d at 815
    . The magistrate judge properly did so
    here when she credited Loui’s identification, in part, because
    Loui had multiple interactions with Kyriakidou.5 See Neil v.
    5
    Manta cites to several district court cases to support her argument that
    Loui’s identification was unreliable because it was “impermissibly sugges-
    tive.” Although none of these cases bind this court, they are all distin-
    guishable. See In re Extradition of Chavez, 
    408 F. Supp. 2d 908
    , 913-14
    (N.D. Cal. 2005) (photo identification based on showing of single photo-
    graph seven years after crime insufficient when individuals making identi-
    fication did not witness the crime); In re Extradition of Cervantes Valles,
    
    268 F. Supp. 2d 758
    , 774 (S.D. Tex. 2003) (identification impermissibly
    2298                     MANTA v. CHERTOFF
    Biggers, 
    409 U.S. 188
    , 199-200 (1972) (reliability of identifi-
    cation determined on totality of circumstances, including,
    among other factors, whether witness viewed criminal at time
    of crime).
    [13] Thus, we conclude that no plain error occurred with
    respect to the identification of Manta. We therefore decline to
    give further consideration to either of Manta’s newly raised
    arguments on the subject of her identification.
    C.    Probable Cause as to Charges Two and Four
    We will uphold a magistrate judge’s determination that
    there is probable cause to believe the accused committed the
    crime charged if there is any competent evidence in the record
    to support it. 
    Then, 92 F.3d at 854
    (citing 
    Quinn, 783 F.2d at 791
    ); 
    Zanazanian, 729 F.2d at 626
    (citing 
    Merino, 326 F.2d at 11
    ). Manta contends that the magistrate judge’s conclusion
    that there was probable cause to believe that Manta commit-
    ted the crimes in charges two and four was not supported by
    competent evidence because depositions supporting the Greek
    arrest warrant were never produced, and the magistrate judge
    considered unsworn witness statements. Manta also argues
    that the use of unsworn testimony to support extradition vio-
    lates the Fourth Amendment. We agree with the district court
    that the magistrate judge’s probable cause determination was
    supported by competent evidence, and we also conclude that
    Manta’s Fourth Amendment rights were not violated.
    suggestive when seven-photograph lineup contained two photographs of
    suspect); In re Extradition of Gonzalez, 
    52 F. Supp. 2d 725
    , 737 (W.D. La.
    1999) (identifications based on photos unreliable when no evidence estab-
    lished the circumstances surrounding the identifications, the “witnesses
    were told that the men in the photographs were found in possession of
    stolen travelers checks, suggesting their guilt,” and the relevant treaty
    required the Government to “furnish ‘facts and personal information of the
    person sought which will permit his identification . . . .’ ”).
    MANTA v. CHERTOFF                      2299
    [14] Section 3190, which controls the admissibility of evi-
    dence in extradition proceedings, is clear that “[d]epositions,
    warrants, or other papers or copies thereof . . . shall be
    received and admitted as evidence [at an extradition] hearing
    for all the purposes . . . if they shall be properly and legally
    authenticated . . . .” 18 U.S.C. § 3190. The usual rules of evi-
    dence do not apply in extradition hearings and, unless the rel-
    evant treaty provides otherwise, the only requirement for
    evidence is that it has been authenticated. Oen 
    Yin-Choy, 858 F.2d at 1406
    ; 
    Then, 92 F.3d at 855
    . According to Manta, Arti-
    cle XI of the Treaty required more than 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.
    47 Stat. 2185. Manta argues that Article XI required the gov-
    ernment to submit “depositions” supporting the Greek arrest
    warrant, and also contends that unsworn witness statements
    submitted by the government are not competent evidence
    under the Treaty because they are not under oath and, there-
    fore, do not qualify as “depositions.”
    [15] The plain language of the Treaty defeats Manta’s latter
    argument, that witness statements are not competent because
    they are unsworn. Article XI is clear that depositions “shall be
    produced, with such other evidence or proof as may be
    deemed competent in the case.” 47 Stat. 2185 (emphasis
    added). As stated above, the only requirement of evidence in
    extradition hearings is that it has been authenticated. Oen Yin-
    
    Choy, 858 F.2d at 1406
    ; 
    Then, 92 F.3d at 855
    . Nothing in
    Article XI or elsewhere in the Treaty suggests that anything
    more is required for “other evidence or proof” to be consid-
    2300                     MANTA v. CHERTOFF
    ered competent, and Manta does not suggest that the magis-
    trate judge considered any unauthenticated documents.
    Manta’s other argument, that the magistrate judge’s proba-
    ble cause determination was not supported by competent evi-
    dence because no depositions supporting the Greek arrest
    warrant were produced, also fails. In reaching this conclusion,
    our reasoning differs slightly from that of the district court.
    See Papa v. United States, 
    281 F.3d 1004
    , 1009 (9th Cir.
    2002) (appellate court may affirm “on any proper ground sup-
    ported by the record”).6
    [16] The plain language of the Treaty is clear that deposi-
    tions are not required in every case. The Treaty requires the
    submission of depositions only when a warrant “may have
    been issued” upon those depositions. See 47 Stat. 2185 . The
    record does not confirm that any statements in support of the
    Greek arrest warrant exist and were not produced. The gov-
    ernment submitted the investigation report by the Public Pros-
    ecutor, which served as the basis for the Greek arrest warrant.
    While it is true that the Public Prosecutor’s statement refer-
    enced “testimonies” by Kiskiras and three other witnesses,
    nothing in the record suggests that any of these witnesses’
    statements were documented and we have no reason to
    6
    Citing to Zanazanian, the district court concluded that the magistrate
    judge had relied on documents that could qualify as “depositions” within
    the meaning of the Treaty; in Zanazanian, the relevant treaty provision
    permitted a request for extradition to be supported by “the depositions,
    record of investigation, or other evidence upon which such warrant or
    order for arrest may have been issued and such other evidence or proof as
    may be deemed competent in the 
    case.” 729 F.2d at 627
    (emphasis added)
    (citation and quotation marks omitted). We concluded that the extradition
    treaty between the United States and Sweden, which referenced “deposi-
    tions,” did not require sworn statements. 
    Id. at 626
    -27. Though our opin-
    ion was not explicit as to whether the term “deposition” did not require
    statements under oath or whether the hearsay reports fell within the cate-
    gory of “other evidence,” we need not settle this question today because,
    as we will discuss, there is no evidence that the government withheld any
    documents supporting the Greek arrest warrant, sworn or unsworn.
    MANTA v. CHERTOFF                    2301
    believe that the Greek arrest warrant was based on anything
    more than the summary version of the “testimonies” in the
    form of the Public Prosecutor’s statement. Moreover, the fact
    that the Public Prosecutor’s investigation report summarized
    witnesses statements is not significant. See 
    Then, 92 F.3d at 855
    (hearsay evidence admissible to support a probable cause
    for extradition); 
    Zanazanian, 729 F.2d at 626
    -27 (citations
    and internal quotations omitted) (noting that to eliminate hear-
    say from extradition proceedings would defeat one of the pri-
    mary purposes of extradition treaties, which is to “obviate the
    necessity of confronting the accused with the witnesses
    against him”).
    [17] Manta’s final argument is that the use of unsworn tes-
    timony to support extradition violates the Fourth Amendment.
    Under 18 U.S.C. § 3184, a magistrate judge is authorized to
    issue both a provisional warrant, to bring the accused before
    the court to hear evidence against him, and a final warrant, to
    commit the accused to prison until the foreign government
    requests surrender of the accused. Manta is correct that the
    Fourth Amendment’s protections extend to those arrested pur-
    suant to treaties. See Reid v. Covert, 
    354 U.S. 1
    , 15 (1957)
    (“[N]o agreement with a foreign nation can confer power on
    the Congress, or any other branch of Government, which is
    free from the restraints of the Constitution.”); see also U.S.
    Const. amend. IV (“[N]o Warrants shall issue, but upon prob-
    able cause, supported by Oath or affirmation . . .”). But
    Manta’s attempt to expand the Fourth Amendment’s oath
    requirement to all evidence offered in an extradition proceed-
    ing is unfounded.
    [18] Manta cites no cases to support that the Fourth
    Amendment requires that every piece of evidence relied on in
    an extradition proceeding be sworn. Moreover, such a require-
    ment would run contrary to our well-established case law that
    evidence offered for extradition purposes need not be made
    under oath. 
    Zanazanian, 729 F.2d at 627
    (“Neither the appli-
    cable treaty nor United States law requires evidence offered
    2302                 MANTA v. CHERTOFF
    for extradition purposes be made under oath.”). We therefore
    hold that Manta has not established that the Fourth Amend-
    ment entitles her to relief.
    CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s
    dismissal of Manta’s habeas petition.