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 ELEVENTH CIRCUIT

________________________

No. 03-14119

________________________

D. C. Docket No. 03-60904-CV-ASG

JAROSLAVA LORIE KASTNEROVA,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

John Ashcroft, U.S. Attorney General, 

UNITED STATES SECRETARY OF STATE, 

Colin Powell, Secretary,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 8, 2004)

Before BLACK, BARKETT and STAHL*, Circuit Judges.

BLACK, Circuit Judge:
1

 A supplementary extradition 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 contesting a magistrate judge’s issuance of a certificate that permits

Kastnerova’s extradition to the Czech Republic. The district court denied the

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

Republic and the United States, and (2) there was sufficient evidence warranting

the magistrate’s finding that reasonable grounds exist to believe Kastnerova guilty

of the charges. Kastnerova now appeals both the substantive determinations of the

district court and the narrow scope of the district court’s habeas review of the

magistrate’s certification. We affirm the district court in all respects.

I. BACKGROUND

A. The Extradition Treaty

Before detailing the events leading to this appeal, it is necessary to

summarize briefly the relevant history surrounding the Treaty Concerning the

Mutual Extradition of Fugitive Criminals, July 2, 1925, U.S.-Czech., 44 Stat. 2367

[hereinafter, the Treaty].1 In the aftermath of World War I, Czechoslovakia was

created from Bohemia, Moravia, and Slovakia, all subject territories of the former

Austro-Hungarian Empire. Shortly thereafter, the Treaty was signed by
3

Czechoslovakia and the United States in Prague. The Treaty was ratified by the

United States Senate on March 3, 1926. Article 14 of the Treaty states: 

The present Treaty shall remain in force for a period of ten years and

in case neither of the High Contracting Parties shall have given notice

one year before the expiration of that period of its intention to

terminate the Treaty, it shall continue in force until the expiration of

one year from the date on which such notice of termination shall be

given by either of the High Contracting Parties.

Neither country has ever given notice of its intention to terminate the Treaty. 

Moreover, the Treaty continues to be included in the U.S. State Department’s list

of treaties in force. See Office of the Legal Advisor, U.S. Dep’t of State, Treaties

in Force 72 (2003).

From its founding until its dissolution in 1993, Czechoslovakia had varied

types of governments, ranging from democratic to communist. After the fall of

Communism in the early 1990s, the Czech lands (Bohemia and Moravia) and

Slovakia agreed to go their separate ways. Thus, on January 1, 1993, in what was

called the “velvet divorce” (due to the amicable nature of the separation),

Czechoslovakia split to form the Czech Republic and the Republic of Slovakia. 

The events leading to the extradition request at issue took place shortly after

the formation of the Czech Republic. Kastnerova, then a citizen of the Czech
2

 The certified English translation of Section 250 provided in the arrest warrant reads:

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 property of another, shall be punished by

imprisonment for a term not exceeding two years, or by prohibition of his/her

(business or professional) activities or by a pecuniary penalty or by forfeiture of a

thing.

(4) The offender shall be punished by imprisonment for a term ranging from five

up to twelve years if he or she, by the offence given in paragraph 1, causes

damage of a significant extent.

4

Republic, entered into several business ventures involving fitness equipment and

dietary supplements. Kastnerova subsequently immigrated to the United States.

B. Procedural History

On June 29, 2000, Judge Vladimír ech of the Regional Court of Brno in

the Czech Republic issued an arrest warrant charging Kastnerova with three

counts of fraud involving several million Czech koruny (CZK), in violation of

§ 250(1) & (4) of the Czech Criminal Code.2

The warrant alleges that, in late 1994, Kastnerova received an advance

payment of 200,000 CZK from Libuše Barková, an agent of the Escade-Šeba

company, for exercise equipment worth 458,730 CZK. The equipment was not

delivered and the advance payment was not returned. The warrant further alleges
3

 Section 3184 states:

Whenever there is a treaty or convention for extradition between the United States and

any foreign government . . ., any justice or judge of the United States, or any magistrate

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 under oath, charging any

person found within his jurisdiction, with having committed within the jurisdiction of any

such foreign government any of the crimes provided for by such treaty or convention . . .,

issue his warrant for the apprehension of the person so charged, that he may be brought

before such justice, judge, or magistrate judge, to the end that the evidence of criminality

may be heard and considered. . . . If, on such hearing, he deems the evidence sufficient to

sustain the charge under the provisions of the proper treaty or convention . . ., he shall

certify the same, together with a copy of all the testimony taken before him, to the

Secretary of State, that a warrant may issue upon the requisition of the proper authorities

of such foreign government, for the surrender of such person, according to the

5

that, on November 7, 1994, Kastnerova obtained a loan from the Chemitan

company for 1,000,000 CZK for the purpose of buying fitness supplements to sell

to the K-Mart company. Allegedly, this loan was secured by a pledge agreement

bearing a false signature of Josef Hanus, an agent of K-Mart, Prague. Kastnerova

did not repay the loan and did not deliver the goods to K-Mart. The warrant

finally alleges that, in June 1995, Kastnerova failed to make a contractually

required delivery of exercise equipment to Milan Belešák after having received

1,003,376.80 CZK from Alfapro, a Czech leasing company that had financed

Belešák’s purchase of the equipment.

On February 26, 2003, the United States government, acting on behalf of

the government of the Czech Republic, filed a complaint for Kastnerova’s

extradition pursuant to 18 U.S.C. § 3184.3 A magistrate judge issued a warrant for
stipulations of the treaty or convention; and he shall issue his warrant for the commitment

of the person so charged to the proper 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

extradition hearing, at which time Kastnerova explained her version of the events

leading to the criminal charges filed against her in the Czech Republic. In support

of extradition, the Government presented several statements from witnesses in the

Czech Republic, statements from Kastnerova, and documents memorializing the

subject transactions. After considering the evidence, the magistrate judge issued a

certification of extraditability and order of commitment, finding, inter alia, that a

valid extradition treaty exists between the United States and the Czech Republic,

the charges alleged in the complaint are extraditable offenses under the treaty, and

probable cause exists to believe Kastnerova committed the offenses for which

extradition was sought.

Shortly thereafter, Kastnerova filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241,4

 in which she argued: (1) no valid extradition treaty

exists between the United States and the Czech Republic; and (2) the Government

failed to demonstrate probable cause to believe that she had committed the
7

charged offenses. The district court denied Kastnerova’s petition by order entered

on August 5, 2003, and this appeal followed.

II. STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. On review of a denial of a

habeas petition pertaining to the issuance of a certification of extraditability, we

review factual findings for clear error and questions of law de novo. See

Valenzuela v. United States, 286 F.3d 1223, 1229 (11th Cir. 2002).

III. DISCUSSION

On appeal, Kastnerova raises three arguments. First, she asserts the scope

of review set out in Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir.

1993), and applied by the district court was superceded by INS v. St. Cyr, 533 U.S.

289, 121 S. Ct. 2271 (2001). Second, Kastnerova argues there is no valid

extradition treaty between the United States and the Czech Republic. Finally,

Kastnerova contends the district court erred in finding probable cause to believe

she committed the offenses with which she is charged. We address each argument

in turn.

A. Scope of Review

In Martin, this Court observed that a district court’s review of a magistrate

judge’s issuance of a certificate of extraditability is narrow. Review of the
5

 The magistrate’s role is also restricted. “The extradition magistrate conducts a hearing

simply to determine whether there is ‘evidence sufficient to sustain the charge [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 determines the evidence is sufficient, the

magistrate “makes a finding of extraditability and certifies the case to the Secretary of State.” Id.

8

magistrate’s order is limited “to determining ‘whether the magistrate 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.’” 993 F.2d at 828 (quoting

Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542 (1925) (Holmes, J.)).5

Kastnerova contends that this formulation of the district court’s scope of

review has been superceded by the Supreme Court in INS v. St. Cyr. In that case,

the Supreme Court stressed that, for habeas corpus relief to be limited in any way,

there must—at a minimum—be clear congressional intent to do so. 533 U.S. at

299, 121 S. Ct. at 2278–79. In Kastnerova’s view, the extradition statutes do not

mention habeas review, see 18 U.S.C. §§ 3181–95, and, therefore, habeas review

of the issuance of a certificate of extradition cannot be limited.

This argument fails for several reasons, most importantly because St. Cyr

does not stand for Kastnerova’s proposition. St. Cyr addressed the following

procedural question: whether the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 110 Stat. 1214, and the Illegal Immigration Reform and
6

St. Cyr also involved a substantive question regarding the retroactive effect of AEDPA

and IIRIRA. 533 U.S. at 292, 121 S. Ct. at 2275. Kastnerova, however, does not rely on this

portion of the opinion.

9

Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009, affected the

availability of habeas corpus jurisdiction under 28 U.S.C. § 2241.6 533 U.S. at

292, 121 S. Ct. at 2275. The government in St. Cyr argued that AEDPA and

IIRIRA removed federal court jurisdiction over a challenge to the Attorney

General’s statutory construction of the 1996 acts. Id. at 297, 121 S. Ct. at 2278. 

The Court rejected this argument, noting that “[i]mplications from statutory text or

legislative history are not sufficient to repeal habeas jurisdiction; instead,

Congress must articulate specific and unambiguous statutory directives to effect a

repeal.” Id. at 299, 121 S. Ct. at 2278–79. It is this discussion upon which

Kastnerova bases her challenge. 

The above-referenced passage, however, speaks to the district court’s

jurisdiction to hear a habeas petition, not to the district court’s scope of review

once it asserts jurisdiction over a petition. Indeed, “‘it is the scope of inquiry on

habeas corpus that differentiates’ habeas review from ‘judicial review.’” Id. at

312, 121 S. Ct. at 2285 (quoting Heikkila v. Barber, 345 U.S. 229, 236, 73 S. Ct.

603, 607 (1953)). 
10

Additionally, the Supreme Court in St. Cyr favorably cited Terlinden v.

Ames, 184 U.S. 270, 22 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 the extradition statute “gives no right of review to be

exercised by any court or judicial officer, and what cannot 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 limited scope of

review set forth in these cases.

Finally, even after St. Cyr, this Court has continued to apply the narrow

scope of review of magistrate judges’ decisions regarding extradition set out in

Terlinden. See Valenzuela v. United States, 286 F.3d 1223, 1229 (11th Cir. 2002).

Had the district court concluded it had no jurisdiction over Kastnerova’s

habeas petition, St. Cyr might be applicable. That is not, however, what occurred. 

Kastnerova disputes only the narrow scope of review applied by the district court,

not its exercise of jurisdiction. St. Cyr, therefore, is inapposite.

The district court properly limited its review of the magistrate’s certification

to whether the magistrate judge had jurisdiction, whether the offense charged was

within the treaty, and whether the Government presented competent evidence upon

which the magistrate could find there were reasonable grounds upon which to
7

 In any case, we note it is clear from the record that the district court considered de novo

the legal question of whether the extradition treaty continued to be valid, devoting several pages

of analysis to the issue.

11

believe Kastnerova guilty of the charged offenses.7

 Terlinden, 184 U.S. at 278, 22

S. Ct. at 487; Martin, 993 F.2d at 828.

B. Validity of the Extradition Treaty

Kastnerova asserts that the Treaty was invalidated when Czechoslovakia

split into the Czech Republic and Slovakia on January 1, 1993. She contends that

the “unilateral action” by the Executive of recognizing the Treaty as still in place

violates the constitutional mandate that two thirds of the United States Senate

ratify any treaty between the United States and a foreign nation. In other words,

Kastnerova argues that when Czechoslovakia split in 1993 to form the Czech

Republic and Slovakia, the Treaty was rendered void because the U.S. Senate had

ratified a treaty with Czechoslovakia, not the Czech Republic.

As this Court has previously noted, extradition is a function of the

Executive, Martin, 993 F.2d at 829, and “the question whether power remains in a

foreign state to carry out its treaty obligations is in its nature political and not

judicial, and . . . the courts ought not . . . interfere with the conclusions 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 has
12

deferred to the Executive’s determination. See, e.g., United States ex rel. Saroop

v. Garcia, 109 F.3d 165, 171 (3d Cir. 1997); 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 analysis by examining the conduct of the

United States and [the Czech Republic] . . . to determine whether such conduct

evinces an intent” that the nations continue to be bound by the extradition treaty. 

Blake v. Am. Airlines, Inc., 245 F.3d 1213, 1216 (11th Cir. 2001). There is

considerable evidence that the governments of both the Czech Republic and the

United States consider the Treaty to be in effect. First, there was an exchange of

diplomatic letters between the two nations regarding the Czech Republic’s status

as a successor state. President Bush sent a letter to the Prime Ministers of the

Czech Republic and Slovakia on or about December 30, 1992, advising that the

United States recognized both nations and acknowledged their commitment to

fulfill the treaty and other obligations of the former Czechoslovakia. In response

to this letter, Prime Minister Václav Klaus of the Czech Republic stated: “The

Czech Republic is a successor state to the dissolved Czechoslovak federation and
13

is committed to fulfilling the treaty and other obligations of the Czech and Slovak

Federal Republic.”

It is also significant that the Czech Republic has previously sought

extradition under the Treaty. See, e.g., In re Extradition of Platko, 213 F. Supp.

2d 1229 (S.D. Cal. 2002). Such conduct demonstrates the Czech Republic’s

continued reliance on the Treaty. Although there is no evidence in the record

concerning extraditions to the United States, the treaty is listed in the U.S. State

Department’s Treaties In Force publication. See Office of the Legal Advisor, U.S.

Dep’t of State, Treaties in Force 72 (2003).

Finally, the U.S. State Department asserted, 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 supplementary treaty] remain in effect with the

Czech Republic and the Slovak Republic, the two successor States to the former

Czechoslovakia.”

Given this conduct, the district court did not err in concluding that the

Executives of both the Czech Republic and the United States recognize the treaty

as valid. Although Kastnerova asserts that the significant geographic and legal

differences between the Czech Republic and Czechoslovakia mandate termination

of the treaty, “federal courts are not as well equipped as the Executive to
8

 Additionally, this Court has held that “the question of just what constitutes a ‘treaty’

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 can agree to continue a treaty in force was

not a political question, it is by no means clear that Kastnerova’s argument—that the agreement

between the executives of the Czech Republic and the United States required Senate

ratification—would succeed.

9

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

close of business on September 30, 1981.

14

determine when the emergence of a new country brings changes that terminate old

treaty obligations.” Then, 92 F.3d at 854. Moreover, Kastnerova has not

effectively countered the Government’s conclusion that “there is a legal,

geographical, and historical continuity” between Czechoslovakia and the Czech

Republic. Id. The agreement of the Executives of both countries that the Treaty

still is in effect weighs heavily in favor of the continuing validity of the Treaty. 

Accordingly, we decline to hold the Treaty invalid.8

C. Probable Cause

Kastnerova’s contention that there was insufficient evidence to warrant the

magistrate’s finding of probable cause to believe her guilty of the charged offenses

is meritless. Extradition hearings under § 3184 “are in the nature of a preliminary

hearing.” Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969).9 Accordingly, the

Government did “not have to show actual guilt, only probable cause that the

fugitive is guilty. The magistrate does not inquire into the guilt or innocence of
15

the accused; he looks only to see if there is evidence sufficient to show reasonable

ground to believe the accused guilty.” Id. (citations omitted). Upon reviewing the

record, we conclude the district court did not err when it determined there was

competent evidence to support the magistrate’s finding that the Government met

its burden to show probable cause for each of the charges alleged in the complaint. 

See Terlinden, 184 U.S. at 279–80, 22 S. Ct. at 488 (observing that “‘the judgment

of the magistrate rendered in good faith on legal evidence that the accused is

guilty of the act charged . . . cannot be reviewed on the weight of evidence, and is

final for the purposes of the preliminary examination unless palpably erroneous in

law.’”) (quoting Ornelas v. Ruiz, 161 U.S. 508, 509, 16 S. Ct. 689, 691–92

(1896)).

IV. CONCLUSION

We hold that the scope of review of a certificate of extraditability set forth

in Terlinden and Martin was not superceded by the Supreme Court’s decision in

St. Cyr. Additionally, because (1) precedent requires great weight be given 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 and the United States evinces an intent to continue to adhere to the

Treaty, we hold the district court did not err in determining the Treaty to be valid. 
16

Finally, we also hold the district court did not err when it found competent

evidence to support the magistrate’s probable cause determination. For these

reasons, we affirm the district court’s dismissal of Kastnerova’s habeas petition. 

AFFIRMED.