### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT April 8,

2004 THOMAS K. KAHN CLERK

* Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

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_______ No. 03-14 119

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_______ D. C. Docket No. 03-60904-CV-A SG JAROSLAVA LORIE KASTNEROVA, Petitione r-Appel lant,

versus UNITED STATES OF AMERICA, John Ashc roft, U.S. Attorne y General, UNITED STATES SECRETARY OF STATE, Col in P owel l, Se cret ary, Respondents -Appelle es.

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_______ Appeal from the United States D istrict Court for the S outhern Di strict of Florida

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________ (April 8, 2004) Before BLACK, BARKETT and STAHL * , Circuit Judges. BLACK, Circuit Judge:1 A supplementary e xtradition treaty enlarging the list of extraditable offenses was signed in Washington on April 29, 1935, and entered into force on August 28, 1935. 49 Stat. 3253. 2 Appellant Jaroslava Lorie Kastnerova filed a petition for writ of habeas corpus cont esting a m

agistrate judge’ s issuance of a cer tificate that perm

its Kastner ova’s e xtradition to the Cze ch Republic . The di strict cou rt denied t

he petition, concluding that (1) a valid extradition treaty exists between the Czech Republic a

nd the Unit ed States , and (2) there w as suffic ient evide nce war ranting the ma gistrate’ s finding tha

t reasona ble grounds e xist to believe Kastnerova guilty of the cha rges. K astnerova now appeals both the sub stantive de terminations of the district c ourt and the

narrow scope of th e district court’ s habeas review of the magis trate’ s certif

ication. We af

firm the distric t court in all respec ts. I. BACKGROUND A. The Ext

radition Tre aty Before d etailing th e events le ading to this appeal, it is nece ssary to

summ arize br iefly the rele vant history

surrounding

the Tre aty C oncerning t

he Mutual Ext

radition of

Fugitive C riminals, July 2, 1925, U .S.-C zech., 44 Stat. 2367 [here inaft er, the Treaty]. 1 In the aftermath of World War I, Czechoslovakia was created from Bohem

ia, Moravia, and Slovakia, all subject territories of the form er Austro-H ungarian E

mpire . Shortl

y thereafter, the Tre aty w as signed by3

Czechoslo vakia and t

he United States in Prague. The Treaty was ratified by the United St ates Sena

te on Marc h 3, 1926. Article 14 of the Treaty

states: The pres ent Tre aty sha

ll rem ain in forc e for a period of ten year s and in case neither of the High Contracting Parties shall have given notice one ye ar before the expir ation of tha

t period of

its intentio n to terminate the T

reaty , it shall

continue in force unt

il the expir

ation of one ye ar from

the date on

which suc h notice of

termination shal l be given by either of the High C ontracting

Parties

. Neither cou ntry has ever gi ven noti ce of its in tention to terminate th e Treaty. Moreover , the Tr

eaty continues to be include d in the U. S. Stat e Depar tment ’s list of treaties in force. See Office of the Leg al Adviso r, U.S. Dep’t of State, Treaties in Force 72 (2003). From its founding until its dissolution in 1993, Czechoslovakia had varied types o f governm

ents, ra nging from

democ ratic to c omm

unist. Af ter the f all of Comm unism in the earl

y 1990s, the Czec h lands (Bo hemia and Moravi a) and Slovakia agreed to go their separate ways. T hus, on January 1, 1993, in what was called the “velvet divorce” (due to the am icable nature of the separation), Czechoslo vakia spl it to form the Czec h Republi c and the Rep ublic of Sl ovakia. The events leading to the extradition request at issue took place shortly after the formation of the Czech Republic. K astnerova, then a citizen of the Czech2 The cer tified En glish tra nslation o f Section

250 provid

ed in the a

rrest wa rrant re ads: Section 250 FRAUD (1) A person who to the detriment of the property of another gains money

or property for

himself/herself or someone else by misleading (deceiving) another , making use of another’s error or concealing substantial facts, and thus causes damage which is not negligible to the pr operty of a

nother, shall be punished by imprisonment for a term not exceeding two y ears, or by

prohibition of his/her (business or professional) activities or by a pecuniary

penalty or by

forfeiture of a thin g. (4) The offender shall be punished by imprisonment for a term ranging from five up to twelve yea

rs if he or she, by

the offence given in parag raph 1, causes damage of a sig nifican t extent. 4 Republic, entered i

nto several business ventures involving fitness equipm ent and dietary supplem ents. K

astnerova subsequentl

y im migra ted to the U

nited Stat es. B. Procedura l History On June 29, 2000, Judge Vladimír  ech of the Regional C ourt of Br

no in the Czech Republic issued an arrest warrant charging Kastnerova with three counts of f

raud involving several mill ion Czech koruny (CZK) , in violat ion of § 250(1) & (4) of the Czech Criminal Code. 2 The warrant alleges that, in late 1994, Kastnerova rece ived an advance paym ent of 200, 000 CZK f

rom L ibuše Bar

ková, an agent of the

Escade- Šeba compa ny, f or exerc ise equipm

ent worth 458,730 CZ K. The

equipm ent was no t delivered and the advance payment was not returned. The warrant further alleges3 Section 31 84 states :

Whenever there is a treaty or convention for extradition between the United States and any foreig n gover nment . . ., any

justice or judge o f the Unit

ed States , or any

magistr ate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made unde r oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government a ny of the cr

imes provided for by suc

h treaty or c onvention . . ., issue his warrant for the apprehension of the person so charged, that he may be brought before such justic e, judg e, or mag istrate j udge, t

o the end t

hat the e vidence of criminality may be hear d and con sidered . . . . I f, on such hearing , he dee

ms the evid

ence suf ficient t o sustain the

charg e under t

he provis ions of the

proper t reaty or conve ntion . . ., he shall certify the

same, together with a copy of all the testimony taken bef ore him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign governme nt, for the surrender of such person, ac cording to the

5 that, on November 7, 1994, Kastnerova obtained a loan from the Chemitan compa ny for 1,000,000 CZK fo r the purpo se of buy ing fitness supplem ents to sell to the K-M art com

pany. Allegedl

y, thi s loan was secured b y a ple dge agree ment bearing a false sign ature of Josef Ha nus, an agent of K-M art, Pr ague. K astnerova did not repa

y the l oan and did no t deliver t he goods to K-Mart. The wa rrant finally alleges th at, in June

1995, Ka stnerova f

ailed to m

ake a cont

ractuall y required delivery of exercise equipm ent to Milan Beleš ák after having received 1,003,376.80 CZK from A lfapro, a Czech leasing company that had financed Beleš ák’s pur

chase of t he equipment. On Febru ary 26 , 2003, the United States gover

nment , acting o n behalf of the g overn ment of t he Cze ch Rep ubli c, file d a compl aint for Kas tnero va’s extraditi on pursuant to 18 U.S. C. § 3184. 3 A ma gistrate j udge issued a

warra nt forstipulations of the treaty or conve ntion; and he shall issue his warrant for the commitment of the person so charged to the prope r jail, there to remain until such surrender shall be made. 18 U.S.C. § 3184.

4 There is no direct appeal in extradition proceedings. Martin v. Warden, Atlanta Pen , 993 F.2d 824, 827 n.3 (11th Cir. 1993). 6 Kastnerova to be brought before the court and subsequently conducted an extraditi on hearing, at which time Kastner ova explain ed her ver sion of the events leading to the criminal charges filed against her in the Czech Republic. In support of extrad ition, the Governm

ent prese nted sever

al statem ents from witnesse s in the Czech Re public, st atem ents from

Kastner ova, and do cume nts me moria lizing the subject transact

ions. Af ter consid ering the evidence, the m agistrate judge issu ed a certificati on of extra ditabil ity and order o f commitment, finding, inter alia , that a valid extradition treaty exists between the United States and the Czech Republic, the charg es allege d in the com plaint are extradita ble offen ses under t

he treaty , and probable cause exists to believe Kastnerova comm itted the offenses for which extraditi on was sough

t. Shortly thereaf ter, K astnerova filed a pe tition for w

rit of habe as corpus pursuant to 2 8 U.S. C. § 2241, 4 in which sh e argued: (1) no vali d extradit ion treaty exists betw een the U

nited Stat es and the C zech Rep ublic; and ( 2) the Gov ernm ent failed to demons trate probable ca use to believe that she

had com mitte d the7

charged offenses. The district court denied Kastnerova’s petition by order entered on August 5, 2003, and th is appeal f ollowed. II. STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 1291. On review of a denial of a habeas pet ition pe rtaining to the iss uance of a cert ification of extradi tability, we review factua l findin gs for clear er ror and qu estions of law de nov o. See Valenzuela v. United States , 286 F.3d 1223, 1229 (11th Cir. 2002). III. DISCUSSION On appeal, Kast

nerova ra ises three argum ents. First, she asserts th e scope of review set out in Martin v. Warden, Atlanta Pen , 993 F.2d 824, 828 (11th Cir. 199 3), a nd a ppl ied by th e di str ict cou rt wa s su per ced ed b y INS v. St. Cyr , 533 U.S. 289, 121 S. Ct. 2271 ( 2001). Se cond, Ka stnerova a rgues ther

e is no valid ext rad iti on t reat y bet ween the Unit ed St ates and the Czec h Re pub lic . Fin all y, Kastner ova contend s the distri ct court erred in f inding proba

ble causeto believe she com mitte d the offenses with w hich she is c harged. We add ress eac h argum ent in turn. A. Scope of Review In Martin , this Cour

t observed that a distr

ict court’ s review

of a m agistrate judge’ s issuance of a cer

tificate of extra ditability

is narrow . Revie w of the5 The magistrate’s role is also restricted. “T he extradition magistrate conducts a hearing simply to determine whether the re is ‘evidence sufficient to sustain the charg e [against the defendant] under the provisions of the proper treaty or convention.’” Martin , 993 F.2d at 828 (quoting 18 U.S.C. § 3184). Once the magistrate deter mines the evidence is sufficient, the magistrate “makes a finding of e xtraditability and certifies the ca se to the Secretary of State.” Id.

8 magistrate’s order is lim

ited “to determ

ining ‘whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a som ewhat liberal extension, whether there was any evidence warranting the finding that there

was rea sonable gro und to believ e the accused guilty .’” 99 3 F.2d at 8 28 (quoting Fernandez

v. Phil lips , 268 U.S. 311, 312, 45 S. Ct. 541, 542 (1925) (Holm es, J.)). 5 Kastner ova contend s that this f

ormul ation of the

district c ourt’s s cope of review h as been superceded by the Supre me C ourt in INS v. St. Cyr . In that case, the Sup reme C our t st ress ed t hat , for hab eas corp us r eli ef to be l imit ed i n an y way, there must—at a m

inimum—be clea

r congressional intent to do so. 533 U.S. at 299, 121 S. Ct. at 22 78–79. In K astnerova ’s view , the extr adition sta

tutes do not mention habea s review, see 18 U.S.C. §§ 3181–95, and, therefore, habeas review of the issua

nce of a c ertific ate of ext radition c annot be lim

ited. This argument fails for several re asons, most importantly because St. Cyr does not stand for Kas tnerova’s pr opositi on. St. Cyr addresse d the following procedural question: whether the Antiterrorism and Effe ctive Death Penalty Act of 1996 (AEDPA ), 110 Sta t. 1214, a nd the Ille gal Im

migra tion Refor

m and6 St. Cyr also invol ved a sub stantive q

uestion r egard ing the r etroac tive eff

ect of AE DPA and I IRI RA. 533 U.S . at 292, 1 21 S. Ct. at 2 275. Kast nerova, however , does not r ely on this portion of the opinion. 9 Imm igrant Re sponsibility

Act of 199 6 (IIRI RA), 11 0 Stat. 30 09, affe cted the availabil ity of

habeas co rpus jur

isdiction und er 28 U. S.C. § 2241. 6 533 U.S. at 292, 121 S. Ct. at 22 75. The g overnm ent in St. Cyr argued tha

t AEDP A and IIRIRA removed federal court jurisdiction over a challenge to the Attorney General’s stat utory constr uction o f the 1996 acts. Id. at 297, 121 S. Ct. at 2278

. The Cour t rejec ted this ar

gument , noting tha

t “[i ]m plications from

statutory text or legislativ e history

are not suf

ficient t o repeal h abeas j urisdiction ; instead, Congress m

ust articulate spec ific and un ambig uous statutor

y dire ctives to e ffect a repeal.” Id. at 299, 121 S. Ct. at 2278–79. It is this discussion upon which Kastnerov a bases her ch allenge. The ab ove-r eferen ced pa ssag e, howe ver, sp eaks t o the dist rict c ourt ’s jurisdiction to hear a habeas petition, not to the district court’s scope of review once it ass erts jur

isdiction over a petiti on. Indee d, “ ‘it is the scope of in quiry o n habeas corpus that differentiates’ habeas review from ‘judicial review.’ ” Id . at 312, 121 S. Ct. at 22 85 (quoting Heikkila v. Barber , 345 U. S. 229, 2 36, 73 S. Ct. 603, 607 (1953)).10

Additional ly, t

he Suprem

e Court in St. Cyr

favorabl y cite d Terlinden v. Ames , 184 U. S. 270, 2 2 S. Ct. 484 (1902). In Terlinden , the Supreme Court recognized the limited scope of habeas review of extradition decisions and refused to expand it, noting that t he extrad ition statut e “gives no right of review to be exercise d by any

court or j udicial of

ficer, and what c annot be done directly cannot be done indirectly through the writ of habeas corpus.” Id. at 298, 22 S . Ct. at 487. Thus, St. Cyr

cannot be read to overrule Terlinden , Martin , or the l imite d scope of review s et forth in these ca ses. Finally, even after St. Cyr , this Cour t has contin

ued to apply

the narrow scope of review of

magis trate j udges’ de cisions re garding ext radition se t out in Terlinden

. See Valenzuela v. United States , 286 F.3d 1223, 1229 (11th Cir. 2002). Had th e dis trict court concl uded it had no jur isdi ctio n ove r Kastn erova ’s habeas pet ition, St. Cyr

might be appli cable. That is not, howeve r, what occurred

. Kastner ova disputes only the

narrow scope of review applied by the distric t court, not its ex ercise of juri sdictio n. St. Cyr , therefore, is inapposite. The distr ict court p roperly

limit ed its revi ew of the

magis trate’ s certif

ication to whether the magistrate judge had j urisdiction, whether the offense charged was within thetreaty , and whe ther the G overnm ent prese nted com petent evi dence upon which themagis trate could find ther e werereasonab le grounds up on which to7 In any case, we note it is clear from the rec ord that the district court considered de novo the legal question of whether the extradition treaty continued to be valid, devoting several pag es of analysis to the issue. 11 believe K astnerova guilty o f the char

ged offen ses. 7 Terlinden , 184 U. S. at 278, 22 S. Ct. at 487; Martin , 993 F.2 d at 828. B. Validity o

f the Ext radition Tre aty Kastner ova asser ts that the Treaty

was inval idated wh en Czech oslovakia split into the Czech Republic and Slovakia on January 1, 1993. She contends that the “unilateral action” by the E xecutive of recognizing the Treaty as still in place violates th e constitutional m andate tha t two thir ds of the U

nited Stat es Senate ratify any tr eaty between

the Unite d States a

nd a forei gn nation. In other w ords, Kastnerova argues that when Czechoslovakia split in 1993 to form the Czech Republic and Slovakia, the Treaty wa s rendered void because the U.S. Senate had ratified a treaty with Cze choslovakia, not the Czech Republic. As this Cou

rt has pre viously noted, ext radition is a function

of the Executive, Martin , 993 F.2 d at 829, a nd “the question w

hether pow er rem

ains in a foreign st ate to ca

rry o ut its trea

ty oblig ations is in its nature p olitical a nd not judicial , and . . . the cour ts ought not . . . inte rfere with the conc lusions of the political department in that regard.” Terlinden , 184 U.S. at 288 , 22 S. Ct. at 491

. Indeed, every other Court of Appeals to consider whether a treaty has lapsed has12

deferred to the Executi ve’s determinatio n. See, e. g. , United Sta tes ex re l. Saroop v. Garc ia , 109 F.3 d 165, 171 (3 d Cir. 199 7); Then v. Melendez , 92 F.3d 851, 854 (9th Cir. 1996); New York Chinese TV Programs, Inc. v. U .E. Enters., Inc. , 954 F.2d 847, 852 (2d Cir . 1992); Sabatier v. Dabrowski , 586 F.2d 866, 868 (1st Cir. 1978). Accordingly, “we

begin our a

nalysi s by exa

mining the conduct

of the United States and [the Czech Republic] . . . to determine whether such conduct evinces an intent” t hat the nat ions con tinue to be bound by the extradi tion treat y. Blake v. Am. A irlines, Inc. , 245 F.3 d 1213, 1216 ( 11th Cir. 2001). There is considera ble evidenc e that the governm ents of both the Czec h Republic and the United St ates consi der the Treaty to be in ef

fect. F irst, there was a

n exchange

of diploma tic lette rs betwe en the two nations re garding the Czech Re

public’s status

as a succe ssor state . Presi dent Bush sent a lette r to the Pr ime M inisters of

the Czech Re public and S lovakia on or about Dec embe r 30, 1992, advising tha t the United St ates rec ognized both nations and acknowledg ed their c omm itmen t to fulfill the treaty and other o bligations of

the form er Czec hoslovakia. In respons e to this letter, Prim

e Minister

Václav Klaus of t

he Czech Republic s tated: “ The Czech Re public is a s uccessor state to the dissolved Cz echoslovak federat ion and13

is committed to fulfilling the treaty and other obligations of the Czech and Slovak Federal Repu blic.” It is also s ignificant

that the C zech Rep ublic has previously sought extraditi on under t he Treaty. See, e. g. , In re Extradition of Platko , 213 F. S upp. 2d 12 29 (S. D. Cal. 2 002) . Such c ondu ct demon strat es th e Czech Repub lic’s continued reliance on the Treaty. Although there is no evidence in the record concernin g extradit

ions to the U

nited Stat es, the t

reaty is listed in

the U.S . State Departm ent’s Treaties In Force publicat ion. See Office of the Legal Advisor, U. S. Dep’t of State, Treaties in Force 72 (2003). Finally, the U.S. State Department asser ted, through a declaration submitted to the magistrate, that “ [i]t is the view of the Department of State that both treaties [the 1925 treaty and the 1935 s upplem entary treaty ] rem

ain in eff ect with the Czech Republic and the Slovak Republic, the two successor States to the former Czechoslo vakia.” Given this conduct, the distric t court did n ot err in c oncluding tha t the Executive s of both theCzech Re public and th e United S tates re cognize the treaty as valid. Although Kastnerova asserts that the significant geographic and legal differences betw een the Cz ech Republ ic and Cze choslovakia manda te term ination of the tre aty, “fe deral cou rts are n ot as well

equipped as the Executive to8 Ad di ti on al ly, th is Co ur t h as he ld th at “t he qu es ti on of ju st wh at co ns ti tu te s a ‘t re at y’ requiring Senate ratification presents a nonjusticiable political question.” Made In The USA Found. v. United States , 242 F.3d 1300, 1302 (11th Cir. 2001). Thus, even were we to conclude that the determination of whether a successor nation ca n agree to continue a treaty in force was not a political question, it is by no means clear tha t Kastnerova’s argument—that the ag reement betwee n the exec

utives of the Czech R

epublic a nd the Uni

ted State s requir

ed Senate ratification—would succeed.

9 In Bonner v

. City of Pri

chard , 661 F.2d 1206, 1209(11th Cir. 1981) (e n banc), this Court ado pted as bi nding pr eceden t all deci sions of th e forme r Fifth Ci rcuit ha nded down

prior to close of business on September 30, 1981. 14 determ ine when t

he em ergenceof a new

country brings cha

nges that termina

te old treaty obligations.” Then , 92 F.3d at 854. Mo reover, Kastner ova has not effectively c ountered th e Govern ment’ s conclusion

that “there is a

legal, geographical, and historical continuity” between Czechoslovakia and the Czech Republic

. Id. The agreement of the E xecutives o f both countr ies that the

Treaty still is in effect weig hs heavil y in favor of the continu ing vali dity of the Treaty. Accordingly, we decl ine to hold the Treaty invalid. 8 C. Probable C

ause Kastner ova’s c ontention tha

t there w as insuffi cient evid ence to w arrant t he magistrate’s finding of probable cause to believe her guilty of the charged offenses is meritless. Extradition hearings under § 3184 “ar e in the nature of a preliminary hearing.” Sayne v. Shipley , 418 F.2d 679, 685 (5th Cir. 1969). 9 Accordi ngly, the Governm ent did “ not have to s how actual guilt, onl y proba ble causethat the fugitive is guilty. The magistrate does not inquire into the guilt or inno cence of15

the accus ed; he looks only to s ee if the re is evidence suffi cient to sho w reason able ground to believe the accused guilty.” Id. (citatio ns omit ted). U pon reviewing the record, we conclude the district court did not err when it determ ined there was competent evidence to support the magistrate’ s finding that the Government met its burd en to sho w probable c ause for each of the charg es alleged in the complai nt. See Terlinden , 184 U. S. at 279– 80, 22 S. Ct. at 48 8 (observin g that “ ‘the j udgmen t of the magistrate

rendere d in good fai th on legal evidence tha t the acc used is guilty o f the act

charged . . . can

not be revi ewed on th e weight o f evidenc e, and is final for the purpose s of the pre limina ry exa minat ion unless palpably

erroneou s in law.’ ”) (quotin g Ornelas v . Ruiz , 161 U. S. 508, 5 09, 16 S. Ct. 689, 691–92 (1896)). IV. CONCLUSION We hold t hat the sco pe of revi ew of a c ertific ate of ext raditabil ity se t forth in Terlinden and Martin was not sup erceded by the Supreme Court’ s decision in St. Cyr . Additio nally, because ( 1) prece dent requir es great weight begiven to the conduct and determinations of the Executives of the signatory nations when addressing the continuation of treaties, and (2) the conduct of both the Czech Republic a

nd the Unit ed States evinces a n intent to c ontinue to ad here to the Treaty, we hold the d istrict co urt did n ot err in det ermining the Trea ty to be valid

.16

Finally , we al so hold the dis trict cour t did not err

when it f ound com petent evidence to support the

magis trate’ s probable cause det ermi nation. F or these reasons, we affi rm the district court’s dis missal of Kastne rova’s habeas petition

. AFFIRMED.