1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Sidali v. INS" (1997). 1997 Decisions. Paper 45.

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1

 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 
2

 __________ 

 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. 
3

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. 
4

 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. 
5

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). 
6

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, 
7

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. 
8

 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. 
9

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). 
10

 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). 
11

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 
12

(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. 
13

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 
14

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 
15

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 
16

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. 
17

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. 
18

 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). 
19

 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 
20

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 
21

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. 
22

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 
23

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.