Manta v. Chertoff ( 2008 )

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.