Appeal from the United States District Court for the District of New Jersey D.C. Civ. No. 95-cv-05665
Before: BECKER, MANSMANN and GREENBERG, Circuit Judges.
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.
In 1970, Sidali lived with his family in a two-story house in Mersin, Turkey. Sidali's parents lived on the second 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.
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. *fn2 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 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. *fn3 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 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 Court of Appeals' General Board of Criminal Panels, 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, 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.
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 ...