Skaftouros v. United States, No. 11-0462-cv (2d Cir. December 20, 2011) (Cabranes, Hall, Lohier, CJJ)
Dimitrious Skaftouros is charged in Greece, his native country, with murdering a sixteen-year-old boy after a botched kidnapping. The crime took place in March of 1990; Skaftouros fled Greece that May, and ultimately ended up in the United States. He was arrested here in 2008, and the Greek government then sought his extradition to face the charge of “complicity in the murder of a minor.”
After unsuccessfully challenging his extradition in front of a magistrate judge, Skaftouros filed a habeas corpus petition under 28 U.S.C. § 2241. The district court granted the habeas petition, and also his “motion to dismiss” the extradition proceedings. It held that Skaftouros had not been “charged” with an offense under the extradition treaty with Greece because the warrant was invalid under Greek law and because the Greek statute of limitations had expired. The court held that the government bore the burden of proof on each of these issues and had failed to sustain it. It later denied the government’s motion for reconsideration; the government then appealed to the circuit, which reversed.
Extradition proceedings are not intended to serve as an adjudication of the defendant’s guilt or innocence, only to ensure that a valid extradition treaty exists, the crime charged is covered, and whether the evidence marshaled in support of the complaint for extradition is sufficient. Review is narrow, and the treaty obligations are liberally construed in the interests of international comity. Thus, the extradition judge should avoid making determinations of foreign law, including reviewing whether the demanding country has complied with its own law.
Here, the circuit identified one principal error in the district court’s treatment of the case – its allocation of the burden of proof to the government. This was a habeas proceeding, and thus Skaftouros bore the burden of proving by a preponderance of the evidence that he was being held contrary to law. This does not mean that the district court is a “rubber stamp,” however. It must take seriously the obligation to ensure that both the treaty and the applicable American statutes are complied with.
Here, had the district court properly allocated the burden of proof to Skaftrourous, it would have denied the writ. As to the validity of the warrant, all the treaty requires is a “duly authenticated warrant” sufficient to show that Skaftouros was “charged.” This requirement was satisfied, as there was a warrant for Skaftouros’ arrest authenticated by the U.S. Ambassador to Greece. The district court went further, however, and required the government to show that the warrant was also technically valid as a matter of Greek law. This was error. The problems with the warrant that Skaftourous cited- that it did not contain the signature of the Clerk or a sufficiently detailed description of his face – were “technical,” and not a reason to block his extradition, even if they might entitle him to relief in Greece.
With respect to the statute of limitations, the treaty does not permit extradition where the “criminal is exempt form prosecution” due to “lapse of time.” Thus, it was proper for the district court to examine Greek law for the “limited purpose” of determining whether its statute of limitations had expired. But, had the court properly placed the burden of proof on Skaftouros, it would have concluded that the prosecution was not time barred.
The Greek statute of limitations is ordinarily twenty years, but can be extended for five years if the prosecutor shows that the defendant cannot be prosecuted, inter alia, because he is a fugitive. On the facts here, the five-year swing would have made a difference. The government established that the Greek authorities served the indictment on Skaftourous’ mother and that, since he was a fugitive, he did not appear to answer the charges. A Greek order was entered suspending the proceedings and noted the “legal service” of the indictment. This was sufficient to extend the statute under Greek law.
The district court accordingly erred in accepting Skaftouros’ assertion that the failure to obtain the original certificate of service of the indictment indicated a failure to show that the limitations period had been extended. He supported position this only with the “unsworn and unsupported assertion of his own lawyer in Greece.” This was insufficient to satisfy his burden of proving that the statute of limitations had not been extended.