Sidali v. Immigration & Naturalization Service

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
2-24-1997
Sidali v. INS
Precedential or Non-Precedential:
Docket 96-5215
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 96-5215
___________
MEHMET SEMIH SIDALI
vs.
IMMIGRATION AND NATURALIZATION SERVICE; THE UNITED STATES OF
AMERICA; WARREN CHRISTOPHER, Secretary of State;
CHARLES MCNEAL, Acting United States Marshal
Appellants
___________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 95-cv-05665)
___________
Argued
December 10, 1996
Before: BECKER, MANSMANN and GREENBERG, Circuit Judges.
(Filed February 24, 1997)
___________
Thomas E. Moseley, Esquire (ARGUED)
Suite 2600
One Gateway Center
Newark, New Jersey 07102
Michael P. DiRaimondo, Esquire
30 Rockefeller Plaza
New York, New York 10112
COUNSEL FOR APPELLEE
Faith S. Hochberg
United States Attorney
District of New Jersey
Sara Criscitelli, Esquire (ARGUED)
Su Zann Lamb, Esquire
United States Department of Justice
Criminal Division
Office of International Affairs
5th Floor, Bond Building
1400 New York Avenue, N.W.
Washington, D.C. 20530
COUNSEL FOR APPELLANTS
1
__________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
The government of Turkey sought the extradition of
Mehmet Semih Sidali, a native of Turkey presently living in the
United States, on the ground that he raped and murdered a
fifteen-year old girl. After a hearing, a United States
Magistrate Judge issued a Certification of Extraditability.
Sidali subsequently petitioned the United States District Court
for the District of New Jersey for a writ of habeas corpus on the
ground that there was no probable cause to believe that he was
guilty of the crimes for which he was charged. The district
court granted Sidali's petition for habeas relief, and this
appeal by the United States followed. We agree with the
government that Sidali may be extradited because the requirement
of probable cause was satisfied. We will therefore reverse the
judgment of the district court and direct the court to deny
Sidali's petition for a writ of habeas corpus.
I.1
In 1970, Sidali lived with his family in a two-story
house in Mersin, Turkey. Sidali's parents lived on the second
1. The facts and procedural history are stated comprehensively
in the district court's opinion, Sidali v. Immigration &
Naturalization Serv., 914 F. Supp. 1104 (D.N.J. 1996), and in the
opinion of the magistrate judge, Matter of Extradition of Sidali,
899 F. Supp. 1342 (D.N.J. 1995). We repeat only those facts that
are necessary to our decision of the case.
2
floor, and Sidali and his family lived on the first floor.
Dursun Eskin, a fifteen-year-old girl whose mother had been a
foster child of the family, also lived on the first floor.
On April 16, 1970, Sidali's father, daughter, and wife
traveled to Ankara, Turkey, to obtain medical care for Sidali's
father. While they were in Ankara, Sidali's aunt stayed with
Sidali's mother in the Mersin house.
On the evening of April 17, 1970, the family's guard
dog barked loudly, and Sidali's aunt called down to Dursun to
make sure that she had not left the gate open. Dursun responded
that she had not done so. Sidali arrived home at approximately
9:20 p.m. Thus, present in the house on the night of April 17,
1970, were Sidali, Sidali's mother, Sidali's aunt, and Dursun.
Several hours later, on the morning of April 18, 1970,
Sidali's mother came downstairs and found Dursun dead. Dursun
had been raped and murdered, strangled with Sidali's wife's belt
that had been taken from a closet on the first floor of the home.
When the police arrived, Sidali suggested that a thief
had broken into the house. The police examined the balcony door
of the living room and discovered that there were two points at
which force had been applied with an old screwdriver between the
door and the frame. In addition, there was an iron sliding bar
attached to the glass, but the frame into which it should have
fit was not in place and could not be found. The doors were
locked, however, and investigators stated that the evidence of
tampering was not recent and that the doors did not appear to
have been forced.
3
A physical examination of Sidali did not show any
bruises or scratches on his hands, neck, face or body. Blood
found on Dursun's bed sheet and underwear was Dursun's blood type
and not Sidali's. A small blood stain was found on Sidali's
pajama top, and a second blood spot was found on a cloth in a
waste basket, but they were both deemed to be too small to yield
accurate blood group typing. Sidali explained that the blood on
his pajama top came from a mosquito bite the night before the
murder, and that the cloth had been used to clean a small cut on
his son's forehead a few days prior. Investigators did not
attempt to identify the blood type of a sperm stain found on
Dursun's sheet.
In May 1971, Sidali was arrested for the rape and
murder of Dursun. He was tried before a three-judge panel of the
First High Criminal Court of Mersin.2 Pursuant to the Turkish
Code of Criminal Procedure ("TCCP"), translated in The American
Series of Foreign Penal Codes, Turkey, at the end of a trial (or
within one week thereafter), the judgment is pronounced by a
reading thereof. TCCP Art. 261. The judgment must include a
declaration of the justification for the judgment. Id.
At the end of Sidali's trial, the trial court voted two
to one to issue a judgment of acquittal. The majority justified
its decision by stating that the evidence was neither sufficient
nor concrete enough to convict, that there were no witnesses, and
2. There are no jury trials in Turkey. Affidavit of Turgut
Aydin, General Director of International Law and Foreign
Relations of the Turkish Ministry of Justice, App. 219, 220.
4
that blood and semen samples could not be tested. Sidali was
released.
In Turkey, verdicts of acquittal may be appealed to the
Supreme Court of Appeals. TCCP Art. 289. An appeal may be taken
only for the reason that the judgment is contrary to law, TCCP
Art. 307, and the Court of Appeals may reverse the judgment on
the points where the law is violated. TCCP Art. 321. The Court
of Appeals may find a "violation of the law" based on the facts
determined as the basis for judgment. Id.3 If it votes to
reverse the judgment of the trial court, the Court of Appeals
forwards the file to the originating court for a review of its
own decision and for a new judgment. TCCP Art. 322.
In this case, the Mersin Prosecutor and the victim's
mother (as intervenor) appealed the trial court's judgment of
acquittal. In February 1973, the appeal was heard and decided by
the First Criminal Panel of the Supreme Court of Appeals, which
found that the judgment of acquittal was based on evidence which
was "not in line with the existing quality of evidence." The
court also found that the majority did not disprove the evidence
raised by the dissenting opinion. Because the trial court's
decision was therefore "contrary to law," the court reversed the
judgment of acquittal. TCCP Art. 321.
Thus the First High Criminal Court of Mersin was
required to conduct a retrial. A panel of three judges, with
3. "A judgment which does not include justification for the
result reached" is also considered an absolute violation of law.
TCCP Art. 308(7).
5
only the Chairman the same as at the first trial, reviewed the
evidence. On July 16, 1976, the panel voted unanimously to
acquit Sidali. The court reasoned that Sidali's body did not
show any signs of a struggle, that it would not have been
impossible for an intruder to have entered Sidali's home, that
Sidali had no motive to kill Dursun, and that Sidali would have
destroyed incriminating evidence. The court therefore
"persisted" in the original judgment; that is, the court adhered
to its earlier judgment of acquittal despite the prior opinion
from the Court of Appeals.
Decisions to persist are reviewed by the General Board
of the Criminal Panels of the Supreme Court of Appeals ("General
Board"), which is composed of the Heads of Departments and
members of the Criminal Panels of the Court of Appeals. On
December 13, 1976, the General Board voted 24 to 8 that the
reasons cited by the trial court to persist in the previous
judgment were not sufficient. The General Board wrote that "it
was clearly seen from the sufficient and convincing evidence that
the accused [Sidali] transgressed the fifteen year old victim's
virginity . . . and murdered the victim with his wife's belt."
The General Board "annull[ed] the judgment for the acquittal of
the accused."
Sidali applied for a passport on or about December 17,
1976. Believing that Sidali was acquitted, the Turkish
government gave Sidali clearance, and Sidali received his
passport on December 20, 1976. Sidali applied for a visa to come
to the United States and left Turkey on or about December 31,
6
1976. Sidali has lived openly in the United States since January
2, 1977, and he became a permanent resident of the United States
on September 17, 1990.
II.
The right of a foreign sovereign to demand and obtain
extradition of an accused criminal is created by treaty, and in
the absence of a treaty the government has no duty to surrender a
fugitive to a foreign government. Factor v. Laubenheimer, 290
U.S. 276, 287, 54 S. Ct. 191, 193 (1933); see also Quinn v.
Robinson, 783 F.2d 776, 782 (9th Cir.), cert. denied, 479 U.S.
882, 107 S. Ct. 271 (1986).
The extradition treaty between the United States and
Turkey provides for the reciprocal extradition of persons, found
within the territory of one of the nations, who have been accused
or convicted of certain criminal offenses committed within the
jurisdiction of the other nation. Treaty on Extradition and
Mutual Assistance in Criminal Matters, June 7, 1979, U.S.-Turkey,
Article 2, T.I.A.S. No. 9891. If the United States agrees to
seek the extradition of an individual pursuant to the request of
a foreign government, the United States files an extradition
complaint in an appropriate court charging an individual with
committing an extraditable offense pursuant to the relevant
extradition treaty. 18 U.S.C. § 3184.
A.
7
On February 9, 1982, Turkey made a request to the
United States for Sidali's extradition. For over a decade the
United States failed to take any action to extradite Sidali.4
On October 31, 1994, however, the United States filed
an extradition complaint on behalf of Turkey in the District of
New Jersey charging Sidali with rape and murder, which are
extraditable offenses in the extradition treaty between the
United States and Turkey. The magistrate judge issued a warrant
for Sidali's arrest, and Sidali was arrested on November 16,
1994.
Because the power to extradite derives from the
President's power to conduct foreign affairs, extradition is an
executive, not a judicial, function. Martin v. Warden, Atlanta
Pen, 993 F.2d 824, 828 (11th Cir. 1993); see generally U.S.
Const. art. II, § 2, cl. 2. Thus, "the judiciary has no greater
role than that mandated by the Constitution, or granted to the
judiciary by Congress." Austin v. Healey, 5 F.3d 598, 600 (2d
Cir. 1993), cert. denied, 510 U.S. 1165, 114 S. Ct. 1192 (1994).
In response to a complaint seeking extradition, the
court conducts a limited inquiry. See 18 U.S.C. §§ 3181-95. The
purpose of the proceeding is to determine whether an individual
who has been arrested in the United States, pursuant to a
complaint filed on behalf of a foreign government, is subject to
surrender to the government of the requesting country. Charlton
v. Kelly, 229 U.S. 447, 460, 33 S. Ct. 945, 949 (1913). The court
4. Sidali asserts that the United States took action only after
Turkey extradited a narcotics trafficker to the United States.
8
conducts a hearing to determine whether there is "evidence
sufficient to sustain the charge [against the defendant] under
the provisions of the proper treaty or convention." 18 U.S.C. §
3184. In other words, the court determines whether there is
probable cause to believe that the defendant is guilty of the
crimes charged. If the evidence is sufficient, the court makes a
finding of extraditability and certifies the case to the
Secretary of State. Id.; see also Martin, 993 F.2d at 828.
A magistrate judge5 held Sidali's extradition hearing
on September 20, 1995.6 Two days later, the magistrate judge
found Sidali extraditable and certified his case to the Secretary
of State. Matter of Extradition of Sidali, 899 F. Supp. 1342,
1347 (D.N.J. 1995). In addition to other findings not before us
on appeal, the magistrate judge found that (1) the General Board
convicted Sidali of rape and murder, and (2) the United States
established probable cause to believe that Sidali committed the
crimes. According to the magistrate judge, either finding,
standing alone, was sufficient to support his finding of probable
cause under 18 U.S.C. § 3184. Sidali moved for reconsideration
on October 3, 1995, but his motion was denied.
B.
5. 18 U.S.C. § 3184 permits a magistrate judge to conduct
extradition proceedings if authorized to do so by "a court of the
United States." Local Rule 40(B)(12) provides this authorization
in the District of New Jersey.
6. The September 20 hearing followed a complicated procedural
history that is detailed in Matter of Extradition of Sidali, 899
F. Supp. 1342, 1345-46 (D.N.J. 1995).
9
Because extradition orders do not constitute "final
decisions of a district court," they cannot be appealed under 28
U.S.C. § 1291. See Collins v. Miller, 252 U.S. 364, 369, 40
S. Ct. 347, 349 (1920). Rather, an individual seeking to
challenge a magistrate judge's extradition order must pursue a
writ of habeas corpus.
On August 24, 1995, while Sidali's extradition
proceedings were pending, Sidali filed an application for
naturalization with the Immigration and Naturalization Service,
requesting expedited consideration. On November 6, 1995, Sidali
filed a complaint in the United States District Court for the
District of New Jersey in which he challenged INS' failure to act
on his application for naturalization. On December 6, 1995,
while Sidali's complaint was pending before the district court,
the Secretary of State issued a warrant for Sidali's surrender to
Turkey.7
On December 12, 1995, Sidali amended his complaint by
adding two counts seeking habeas corpus review of the magistrate
7. After the courts have completed their limited inquiry, the
Secretary of State conducts an independent review of the case to
determine whether to issue a warrant of surrender. 18 U.S.C. §
3186. The Secretary exercises broad discretion and may properly
consider factors affecting both the individual defendant as well
as foreign relations--factors that may be beyond the scope of the
magistrate judge's review. The Secretary of State's decision is
not generally reviewable by the courts. Martin, 993 F.2d at 829;
Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir.), cert.
denied, 449 U.S. 1036, 101 S. Ct. 612 (1980).
To the extent that Sidali contends that we should
affirm the judgment of the district court on humanitarian grounds
unrelated to the finding of probable cause, we note that it is
the function of the Secretary of State--not the courts--to
determine whether extradition should be denied on humanitarian
grounds. Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990).
10
judge's decision. The district court had jurisdiction over
Sidali's petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241.
The scope of habeas corpus review of a magistrate
judge's extradition order under a treaty with a foreign country
is extremely limited. "[H]abeas corpus is available only to
inquire whether the magistrate [judge] 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." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541,
542 (1925); see also Smith v. United States, 82 F.3d 964, 965
(10th Cir. 1996); Ludecke v. U.S. Marshal, 15 F.3d 496, 497 (5th
Cir. 1994); Austin, 5 F.3d at 600; Martin, 993 F.2d at 828;
Brauch v. Raiche, 618 F.2d 843, 847 (1st Cir. 1980).
In his request for habeas corpus relief, Sidali did not
challenge the magistrate judge's jurisdiction, and he conceded
that the offenses charged were within the applicable treaty.
Instead, Sidali argued that there was no evidence warranting the
finding that there was reasonable ground to believe him guilty of
the rape and murder of Dursun. In other words, Sidali claimed
that there was no evidence supporting a finding of probable
cause.
On January 31, 1996, the district court granted
Sidali's petition for habeas corpus relief. 914 F. Supp. 1104
11
(D.N.J. 1996).8 The district court found that the United States
did not prove that Sidali was actually convicted of the rape and
murder of Dursun. Id. at 1112. The court also found that there
was no probable cause to believe that Sidali raped and murdered
Dursun. Id. at 1114. Since the district court concluded that
there was no evidence warranting the finding that there was
reasonable ground to believe Sidali guilty, the district court
granted Sidali's petition for a writ of habeas corpus. This
timely appeal followed.
III.
We have jurisdiction over this appeal pursuant to 28
U.S.C. § 2253, which provides that a final order issued by a
district judge in a habeas corpus proceeding is subject to review
by the United States Court of Appeals for the circuit in which
that district court is situated.
On review, we focus our attention on the issue of
probable cause; that is, whether there exists reasonable ground
to believe the accused guilty of the crimes charged. Here the
United States attempts to establish probable cause in two ways.
First, the United States argues that Sidali was actually
convicted of the rape and murder of Dursun and that the
conviction is sufficient proof that probable cause exists.
Second, the United States contends that the magistrate judge's
8. The district court also dismissed the counts relating to the
INS, 914 F. Supp. at 1114-15 n.11. Sidali has not appealed that
part of the district court's order.
12
finding of probable cause is supported by competent evidence of
record.
A.
The United States contends, and Sidali does not
dispute, that a foreign conviction obtained after a trial at
which the accused is present is sufficient to support a finding
of probable cause for the purposes of extradition. See Spatola
v. United States, 925 F.2d 615, 618 (2d Cir. 1991) ("To hold that
such convictions do not constitute probable cause in the United
States would require United States judicial officers to review
trial records and, consequently, substitute their judgment for
that of foreign judges and juries. Such an inquiry would be
inconsistent with principles of comity."); Restatement (Third) of
the Foreign Relations Law of the United States § 476 comment b
(1987) ("With respect to persons whose extradition is sought
after conviction in the requesting state, the requirement [of
probable cause] is met by proof of the judgment of conviction
and, where appropriate, of sentence."); see also Mosley v.
Wilson, ___ F.3d ___, 1996 WL 709746, at *5 (3d Cir. Dec. 11,
1996) (conviction that has not been reversed ordinarily precludes
finding of lack of probable cause for underlying proceeding).
At issue, then, is whether the General Board convicted
Sidali of rape and murder. It is apparent that the General Board
annulled the trial court's second judgment of acquittal, found
that Sidali raped and murdered Dursun, and remanded the case to
the trial court. As Sidali argues, however, the General Board
13
never explicitly stated that Sidali was actually "convicted" or
"guilty." We must therefore decide whether the General Board
remanded the case back to the trial court (1) for a third trial
on the issue of guilt or (2) simply to impose sentence. If the
judgment of the General Board constituted a conviction under
Turkish law, and if the case was remanded to the trial court for
sentencing only, then we must reverse the judgment of the
district court.
Our analysis requires us to decide issues of Turkish
criminal law and procedure. The determination of foreign law in
the federal courts is a question of law. Fed.R.Civ.P. 44.1;
Grupo Protexa v. All American Marine Slip, 20 F.3d 1224, 1239 (3d
Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 481 (1994).
Consequently, we exercise plenary review over the district
court's interpretation of relevant Turkish law. Id.; Mobile
Marine Sales, Ltd. v. M/V Prodromos, 776 F.2d 85, 89 (3d Cir.
1985).
Our decision turns on whether the Turkish trial court
was bound by the General Board's determination of guilt. If the
trial court could have revisited the issue of Sidali's guilt in a
third evidentiary trial, we would agree with Sidali that the
General Board did not convict Sidali. The Turkish Code of
Criminal Procedure makes clear, however, that the General Board's
determination of guilt was final and binding. TCCP Article 326
provides:
The courts have the right to insist on their first
judgment when their judgment is reversed by
the Court of Appeal, but they are obliged
thereafter to abide by decisions given by the
14
General Criminal Board of the Court of
Appeal.
Thus, the Court of Appeal did not convict Sidali when it reversed
the trial court's first judgment; on remand, the trial court
could have insisted (and did insist) on its judgment of
acquittal. In contrast, the trial court did not have discretion
to insist on its second judgment when that judgment was reversed
by the General Board. Decisions of the General Board are
therefore final. When the General Board voted to annul the trial
court's second acquittal, it did not send the case back for a
third trial; instead, its decision on the issue of guilt was
final and the case was remanded for sentencing only. In other
words, the decision of the General Board constituted a conviction
under Turkish law.
Sidali asserts that the General Board's failure to use
the word "conviction" precludes us from determining that Sidali
was convicted. We disagree. The General Board's statements were
clear and unequivocal. While we acknowledge that inclusion of
the word "conviction" in the General Board's decision would have
simplified our analysis, we do not believe that the word
"conviction" is necessary to establish the existence of a
conviction under Turkish law. It is clear that the trial court
could not disagree with the General Board's finding of guilt.
Our interpretation of the decision of the General Board
finds support in documents submitted by the parties.9 In a
9. When determining questions of foreign law, we may consider
"any relevant material or source, including testimony, whether or
15
diplomatic note dated February 17, 1995, the Embassy of Turkey
explained:
Pursuant to the laws of the Republic of Turkey, Mehmet
Semih Sidali has been convicted by the
General Board of the Supreme Court of
Appeals . . . . Since the highest Turkish
criminal appellate court has ruled in this
matter, there is no appeal from that
decision. Mr. Sidali will not be entitled to
a new trial . . . .
Diplomatic Note from Turkish Embassy (Feb. 17, 1995), App. 208.
The Embassy continued:
Under this Article [326], the trial court cannot set
aside or ignore the ruling of the General
Board. The trial court cannot reopen the
case to hear new evidence. It must follow
the General Board's decision without
question. Therefore, upon Mr. Sidali's
return, the trial court will fix the duration
of the sentence only.
Id.10 Likewise, the Mersin Prosecutor stated that the General
Board's decision was
(..continued)
not submitted by a party or admissible under the Federal Rules of
Evidence." Fed.R.Civ.P. 44.1; Grand Entertainment Group, Ltd. v.
Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993). We may
conduct our own research and are not confined to information
available to or considered by the district court. Grupo Protexa,
20 F.3d at 1239; Mobile Marine Sales, Ltd., 776 F.2d at 89;
Kalmich v. Bruno, 553 F.2d 549, 552 (7th Cir.), cert. denied, 434
U.S. 940, 98 S. Ct. 432 (1977); see also Fed.R.Civ.P. 44.1
advisory committee's note ("[The court] may engage in its own
research and consider any relevant material thus found.").
10. The district court stated that the diplomatic note "should
not have been admitted into evidence" and that the absence of the
author's signature and qualifications rendered the document
virtually irrelevant. 914 F. Supp. at 1111. Initially, we note
that admissibility is not an issue, since we may consider
inadmissible material when deciding questions of foreign law.
Fed.R.Civ.P. 44.1. In addition, the fact that the note was
submitted under seal of the Turkish Embassy and was presented to
the court under oath of a U.S. Attorney lessens any concern we
may have about the absence of a signature.
16
final and binding . . . . The judgment is final and
absolute, and the trial corut [sic] has begun
retrying the matter for determining the
amount of punishment to be imposed to the
accused; and in the meantime for the accused
who was found conclusively guilty, Mehmet
Semih Sidali, was issued a warrant of arrest
in absentee.
Supplemental Request for Extradition (Sept. 25, 1992), App. 65,
70-71.
In an Addendum Request of Extradition, the Mersin
Prosecutor stated that Sidali had "been pronounced decisively
guilty." Addendum Request of Extradition (Sept. 25, 1992), App.
192, 198-99; see also Extradition Letter dated March 31, 1983,
App. 15 (Sidali "was found guilty"); Ministry of Foreign Affairs
Memorandum dated March 5, 1993, App. 179, 180-81 (Sidali's
judgment of acquittal "was reversed and he was convicted");
Extradition Letter dated November 1, 1985, App. 48, 49 ("this
verdict is final and binding under the existing Turkish legal
system"). According to the General Director of International Law
and Foreign Relations of the Turkish Ministry of Justice, the
decision of the General Board "is binding, meaning that the issue
[of guilt] cannot be further discussed . . . . [T]he guilt of
the defendant can no longer be debated." Aydin Aff., App. 219,
225.
These writings convey a clear message: Sidali was
found guilty by the General Board and the Turkish trial court was
not permitted to hold otherwise on remand. We find these
writings to be persuasive, and they support our conclusion that
Sidali was convicted of the rape and murder of Dursun.
17
The district court did not find these writings to be
persuasive because some documents stated that Sidali should be
returned to Turkey for his "trial" and that Sidali was "charged"
and "accused" of the crimes. 914 F. Supp. at 1111-12. Under
Turkish law, however, the "trial" has not been completed because
Sidali was never sentenced. Aydin Aff., App. 219, 225-26. The
word "trial" used in this sense described the remaining
sentencing proceedings. The Attorney General of Mersin
explained:
The retrial of the accused after having been acquitted
two times, does not mean "to be tried for a
second time". We have explained . . . this
General Board examined the file and
pronounc[ed] with overwhelming majority that
the present evidences cause the conviction,
so the trial continues . . . .
Statement of the Attorney General of Mersin (May 26, 1993), App.
184, 185-86. The other evidence submitted by the United States
supports this interpretation. We believe that the use of the
word "trial" in this context does not mean that Sidali will
receive a new evidentiary trial to determine whether he raped and
killed Dursun. Instead, we are satisfied that Sidali has been
conclusively pronounced guilty and that his upcoming "trial" will
be for the purposes of sentencing only.11
11. The use of the words "charged" and "accused" likewise do not
persuade us that Sidali was not convicted. See, e.g.,
Supplemental Request for Extradition (Sept. 25, 1992), App. 65,
70-71 ("the accused . . . was found conclusively guilty");
Declaration of Thomas A. Johnson, App. 312 (explaining that use
of word "charges" in certain documents was not intended to imply
absence of conviction).
18
In addition to expressing concern about the words
"trial," "charged," and "accused," the district court observed
that some of the Turkish documents suggest that Sidali's guilt
has not been conclusively determined. See, e.g., Statement of
the Attorney General of Mersin (May 26, 1993), App. 184, 198
("[T]he Trial Court was [to] begin to try the accused for the
third time."). While we acknowledge the ambiguities in the
record, we are ultimately persuaded that the General Board
convicted Sidali.
As the magistrate judge correctly concluded, evidence
of Sidali's conviction, obtained after a trial at which Sidali
was present, is sufficient to support a finding of probable
cause. We hold that the conviction of Sidali by the General
Board establishes reasonable grounds to believe that Sidali is
guilty of the crimes charged.
B.
Our conclusion that the General Board convicted Sidali
of rape and murder is the first of two independent grounds for
reversing the judgment of the district court. In addition to the
conviction, which is per se probable cause, competent evidence
also exists in the record to support the magistrate judge's
conclusion that probable cause exists to believe that Sidali is
guilty of the rape and murder of Dursun.
We note that the probable cause standard applicable in
extradition proceedings is identical to that used by courts in
federal preliminary hearings. See Sindona v. Grant, 619 F.2d
19
167, 175 (2d Cir. 1980); Castro Bobadilla v. Reno, 826 F. Supp.
1428, 1433 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994).
The burden of the government is to offer evidence that "would
support a reasonable belief that [the defendant] was guilty of
the crime charged." Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir.
1990). The probable cause standard applicable in extradition
proceedings has been described as "evidence sufficient to cause a
person of ordinary prudence and caution to conscientiously
entertain a reasonable belief of the accused's guilt." United
States v. Wiebe, 733 F.2d 549, 553 (8th Cir. 1984) (quoting
Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973)).
The role of the magistrate judge in an extradition
proceeding is, therefore, "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." Peters v. Egnor, 888 F.2d 713, 717 (10th
Cir. 1989) (quoting Collins v. Loisel, 259 U.S. 309, 316, 42
S. Ct. 469, 472 (1922)). As we observed almost seventy years ago:
It is not necessary in extradition proceedings that the
evidence against the respondent be such as to
convince the committing judge or magistrate
of his guilt beyond a reasonable doubt, but
only such as to afford reasonable ground to
believe that the accused is guilty of the
offense charged.
United States ex rel. Lo Pizzo v. Mathues, 36 F.2d 565, 568 (3d
Cir. 1929).
Here the magistrate judge found probable cause for
extradition. We must uphold the magistrate judge's probable
cause finding if there is any competent evidence in the record to
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support it. Then v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996);
Bovio v. United States, 989 F.2d 255, 258 (7th Cir. 1993); see
also Ludecke, 15 F.3d at 497 (appellate court must determine
whether there is "any competent evidence tending to show probable
cause"); Peters, 888 F.2d at 717 (habeas corpus appellate review
turns on whether there is "any evidence of probable cause"
supporting magistrate judge's finding).
Upon careful review of the record, we find that
competent evidence of record indeed supports the magistrate
judge's finding of probable cause.
Initially, the evidence suggests that the crimes were
committed in Sidali's home at a time when Sidali was the only
male resident in the home. The record includes the following
evidence that tends to show that it would have been impossible
(or at least very unlikely) for an intruder to have committed the
crimes: (1) the family's loud and hostile attack dog guarded the
premises throughout the night; (2) the dog, who barked viciously
at intruders, barked once early in the evening before the murder,
but did not bark again that night;12 (3) the property was secured
by a wall with a bolted gate, barred windows, and locked doors;
(4) while there were signs that one door was tampered with, the
investigators stated that the evidence of tampering was not
12. While one witness did testify that she heard "a dog" barking
that night, there is no testimony that the barking dog was
Sidali's dog. In addition, when Sidali's dog barked earlier in
the evening, the barking prompted the residents to look around
the premises and call to Dursun. The barking later in the
evening did not prompt any concern. These facts support the
United States' argument that Sidali's dog did not challenge an
intruder on the night of the murder.
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recent; and (5) investigators stated that the door was locked and
did not appear to have been forced open.
The district court placed great emphasis on the notion
that "mere presence at the scene of a crime does not constitute
probable cause." 914 F. Supp. at 1114. While this statement may
be true, the United States established more than mere presence in
this case. The evidence suggests that Sidali was the only male
resident present in the home at the time of the murder and that
there were no intruders on the night of the murder. Thus, in
addition to presence and opportunity, the evidence suggests that
no one but Sidali could have committed the crimes. This factor
distinguishes this case from those cited by Sidali. We believe
that a person of ordinary prudence and caution could
conscientiously entertain a reasonable belief of Sidali's guilt.
In addition to evidence that Sidali was the only person
with an opportunity to commit the crimes, additional evidence was
offered that supports a finding of probable cause. For example:
(1) blood was found on Sidali's pajamas and on a cloth in the
garbage; (2) Dursun was strangled with a belt belonging to
Sidali's wife; (3) Sidali stated that someone stole his key, but
money located near the key was not disturbed; and (4) Sidali
appeared "in a tousled-up state" when the investigators arrived,
disturbing the crime scene by "attempt[ing] to upturn the objects
in the wardrobes and drawers." Verdict of the Supreme Court,
App. 55, 56.
The evidence tying Sidali to the rape and murder of
Dursun may be less than overwhelming. The district court's
22
comments regarding the adequacy of the autopsy and investigation
are well-taken. Turkey was not required, however, to conduct a
perfect investigation, and it was not required to present its
entire case in this country. The evidence presented need only
"support a reasonable belief that [Sidali] was guilty of the
crime[s] charged." Austin, 5 F.3d at 605 (quoting Ahmad, 910
F.2d at 1066). The evidence presented to the magistrate judge
sufficed for this limited purpose.
The magistrate judge reviewed the evidence and
determined that probable cause exists to believe that Sidali was
guilty of the crimes charged. Because competent evidence in the
record supports the magistrate judge's finding of probable cause,
our limited scope of review prevents us from contradicting that
determination. Austin, 5 F.3d at 605 (citing Quinn, 783 F.2d at
815).
IV.
The General Board convicted Sidali of the rape and
murder of Dursun, and that conviction is sufficient evidence of
probable cause. Independent of the conviction, competent
evidence of record supports the magistrate judge's determination
that probable cause exists to believe that Sidali is guilty of
the crimes. For both of the foregoing independent reasons, we
will reverse the judgment of the district court and direct the
court to deny Sidali's petition for a writ of habeas corpus.
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