to present new evidence at trial [and] appeal the judgment?" Pet. Br., Exh. L.
Also supportive of petitioner's position is the May 26, 1993 report of the Attorney General of Mersin, which stated that petitioner will be tried a "third time" and will be able to defend himself, call witnesses, offer new evidence and appeal an adverse result. The Certificate of the U.S. Ambassador to Turkey, which accompanied that report, described petitioner as "charged with" the crimes of rape and murder. Pet. Br., Exh. M.
Clarification was surely needed; indeed, the Magistrate Judge, in his opinion of January 27, 1995 in which he reconsidered the denial of bail -- and granted bail -- stated that he was "not so sure that [it] is accurate" that the conviction is final and that there would be no other trial." "The proposition remains far from clear," he continued, concluding that he was "inclined to believe that [petitioner] will be afforded a new trial if extradited to Turkey." Opinion, Jan. 27, 1995 at 9-10. "Spurred [into] action" by the Magistrate Judge, the United States "requested clarification from the Turkish Government." Tr., April 17, 1995, at 7-8. The Turkish government thereafter submitted the diplomatic note of February 17, 1995 which supposedly "reaffirmed the position" that all that remained was sentencing. Id.
Even assuming that the February 17, 1995 supposed "clarification" was admissible and assuming further that, if admissible and if accorded a reasonable modicum of weight, it would carry the day as to the issue of conviction, communications between the United States and Turkey subsequent to February 17, 1995 muddied the waters all over again. To be sure, the October 11, 1995 Declaration of Thomas A. Johnson, the author of the "clarification" declaration, stated that the position of the United States and Turkey on the fact of the conviction had been consistent. Exh. 5 to Resp. Reply Br. Unfortunately for the United States, however, other communications call this statement into question, including one from Mr. Johnson himself. Thus, in a letter of August 10, 1995, Mr. Johnson stated that Turkey sought extradition so that petitioner could "face charges", a statement he later repudiated as "inartful." Pet. Br., Exh. K; Decl. of Thomas A. Johnson, Oct. 11, 1995, attached to Resp. Reply Br. "Charged with" language was used by the American Ambassador to Turkey on September 13, 1995 (Resp. Exh. 6); an October 20, 1995 memorandum from the Justice Ministry, Republic of Turkey, stated that petitioner was "to stand trial ... on the charge...."; and an October 24, 1995 memorandum of the panel present to try petitioner spoke of the "trial" and the fact that "trial" was postponed until January 25, 1996 when it was expected that petitioner would have been returned. Moseley Cert., Exh. B. And, of course, in addition to communications between the United States and Turkey which post-dated the diplomatic note, there was the predictably competing -- and predictable -- testimony of the parties' experts and the April 4, 1995 statement of petitioner's trial attorney that "Trial is underway ... If the court finds the defendant guilty, he has a right to appeal...." Pet. App., Exh. D.
If more were needed to come to the conclusion that the United States has not proved that petitioner was "conclusively guilty" and, in this court's view, it most assuredly is not, at oral argument the United States had to worm its way out of the statement in its reply brief that "It may well be easier for [petitioner] to get a new trial in light of advances in forensics...." Resp. Reply Br. at 6. And the final word on the matter, also at oral argument, was the concession by the Assistant U.S. Attorney that "We'll never know until he gets back to Turkey what the right answer [is] ... It could come out either way ...." Tr., 1/22/96, at 43, 45. Game, set, and match.
This court has conducted a de novo review of the evidence before the Magistrate Judge when he ruled on September 22, 1995 and concludes that the United States did not prove that the decision of the General Board constituted a final judgment or conviction and, to the extent the Magistrate Judge ruled otherwise, he erred. Moreover, the evidence which followed that ruling and which was presented either to the Magistrate Judge on reconsideration or to this court in the first instance, only underscores this failure of proof.
One final note. The Magistrate Judge denied petitioner discovery of documents relating to the first extradition request by Turkey and communications and correspondence between the United States and Turkey as to whether the General Board's decision constituted a conviction; indeed, the United States had not even provided petitioner with the formal extradition request made by Turkey in 1982 which it returned to Turkey without retaining a copy in its files.
While the Magistrate Judge was "not satisfied with the government's explanation" as to why all relevant documents had not been provided, he did not want to delay petitioner's "day in court". Tr., Sept. 20, 1995 at 16-19. Given this court's disposition, the court need not determine whether the Magistrate Judge rightly or wrongly denied this discovery. In any event, this court has the abiding sense that more documents and correspondence would only have added to the confusion.
And so the court must press on....
B. Is There Probable Cause?
Having concluded that the United States did not prove a final judgment or conviction and, thus, that probable cause cannot be satisfied by the fact of conviction alone, this court must inquire as to whether there is competent evidence to establish probable cause. The Magistrate Judge found that the United States presented sufficient evidence that independently established probable cause. Again, in this court's view, he erred.
To issue an order certifying extraditability, the magistrate judge must find that there is probable cause to believe that the accused committed the crime charged.
To this end, the magistrate judge's function is not to decide the accused's guilt or innocence but only to determine whether there is competent evidence to justify holding the accused to await trial. Collins v. Loisel, 259 U.S. 309, 316, 66 L. Ed. 956, 42 S. Ct. 469 (1922); Bozilov, 983 F.2d at 143; Shapiro, 478 F.2d at 900-01. The magistrate judge does not weigh conflicting evidence or make factual determinations; rather, he or she looks only to see if there is evidence sufficient to show reasonable grounds to believe the accused guilty. Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986); Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969).
In reviewing the magistrate judge's determination of probable cause, the district court must assess whether there is any competent evidence to support his or her finding. Quinn, 783 F.2d at 815; Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981). The weight and sufficiency of that evidence is for the determination of the committing court. Quinn, 783 F.2d at 815; Escobedo, 623 F.2d at 1102.
While invoking the caveat "among other facts", the Magistrate Judge found only the following facts important enough to specify in reaching his conclusion: "The victim lived in Mr. Sidali's home; ... she was raped and strangled; ... Mr. Sidali had the opportunity to commit the crime; ... Mr. Sidali was the only man living in the home at the time; ... there was no conclusive proof that anyone else had entered the house; and ... blood was discovered on Mr. Sidali's pajama sleeve shortly after the crime" Sidali, 899 F. Supp. at 1347. Not surprisingly, this recitation calls to mind the Magistrate Judge's questions to the United States at the oral argument before him after reciting those very facts: "How many cases do you think [with] this kind and scope of evidence would survive a motion for judgment of acquittal at the end of the prosecution, if this were all the evidence?" "Do you think ... any case would survive?" Tr. Sept. 20, 1995 at 141-42.
Most assuredly, it would not, and neither does this "evidence" establish probable cause. Three of the reasons specified by the Magistrate Judge for finding probable cause rest solely on the fact that the crime occurred in petitioner's home and that he was the only man living there that night. Even had there been evidence that petitioner was in his home when the crime occurred, mere presence at the scene of a crime does not constitute probable cause. Ybarra v. Illinois, 444 U.S. 85, 90, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979); United States v. Soyland, 3 F.3d 1312, 1313 (9th Cir. 1993); United States v. Soto, 908 F.2d 209, 211 (7th Cir. 1990); United States v. Butts, 704 F.2d 701, 703 (3d Cir. 1981). This is especially true when the scene of the crime is petitioner's home where his presence, if, indeed, he was present, is eminently reasonable.
But there is no evidence that petitioner was even present when the rape and murder occurred and a fortiori no evidence that he had the opportunity to commit the crime. Thus, there is no pathologist's report as to the time of death and no evidence aside from a "guesstimate" by the investigators that the victim -- who was not seen by anyone after the barking dog prompted concern early in the evening -- did not die before petitioner indisputably arrived home at 9:20 p.m.; indeed, the "autopsy," such as it was, was performed at the cemetery with the "preacher" assisting. And, wholly apart from the barking dog, there is evidence that there may well have been an intruder. While the Magistrate Judge correctly determined that that evidence was not conclusive, the surprising change of position of the same police officer a mere two days later is unexplained.
In any event, to establish probable cause, there must be something more than mere presence and something more than mere opportunity. See Soyland, 3 F.3d at 1313 (requiring a "sufficient link" between the accused and the crime). The only "link" which the Magistrate Judge mentions is the "blood discovered on petitioner's pajama sleeve shortly after the crime." Id. at 1348. There is nothing linking this lentil-sized stain to the crime, however -- it was supposedly too small to be tested for blood typing, and there was no attempt to try. Similarly, and for whatever reason, the semen found at the scene was not tested, and no finger prints and no hair samples were found. There is utterly nothing linking petitioner to the crime.
Parenthetically, at the extradition hearing, petitioner explained how the small blood stain on his pajama sleeve came to be.
It is permissible in an extradition proceeding for the defendant to explain ambiguities or doubtful elements bearing upon probable cause. Collins, 259 U.S. at 315. The Magistrate Judge misunderstood this explanation as an attempt to have him weigh the testimony and make credibility determinations as to guilt or innocence, determinations within the province of the trial court or jury, not the extradition court. Sidali, 899 F. Supp. at 1348. But there was no testimony whatsoever presented by the United States at the extradition hearing and no evidence that the blood on the pajama sleeve was anyone's but petitioner's. There was, therefore, nothing to weigh and nothing to contradict.
Explanations aside, there was no competent evidence warranting a finding of probable cause. The writ of habeas corpus will be granted.
MARYANNE TRUMP BARRY
Dated: January 31, 1996
For the reasons expressed in this court's opinion of even date,
IT IS on this 31st day of January, 1996
ORDERED that defendants'/respondents' motion (1) for summary judgment on Counts Three and Four of the Amended Complaint be and hereby is denied; for committal of plaintiff/petitioner to the custody of the Attorney General pending his surrender to Turkish officials be and hereby is denied; and (3) for dismissal of Counts One and Two of the Amended Complaint be and hereby is granted; and it is further
ORDERED that plaintiff's/petitioner's cross-motion for discharge under 18 U.S.C. § 3188 and motion to file a Second Amended Complaint be and hereby are denied as moot; and it is further
ORDERED that the petition for habeas corpus (Counts Three and Four of the Amended Complaint) be and hereby is granted, and this action is dismissed.
MARYANNE TRUMP BARRY, U.S.D.J.