Extradition habeas review is limited to jurisdiction, treaty coverage and probable cause

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🇬🇧 Summary

The petitioner challenged the certification of his extraditability to Israel, where he was sought for prosecution for attempted murder and related offences arising from an alleged organized-crime plot. He argued that the extradition court lacked jurisdiction because United States authorities had secured his transfer from Malaysia through deception and unlawful conduct, and further claimed that the evidence submitted by Israel did not establish probable cause. The District Court held that, under the Ker–Frisbie doctrine, even an irregular or unlawful rendition does not ordinarily deprive a court of jurisdiction, absent conduct comparable to the extreme torture or brutality contemplated by the narrow Toscanino exception. It also found that the United States–Malaysia extradition treaty did not apply because the petitioner had not been transferred pursuant to that treaty and concluded that the evidentiary record was sufficient to support probable cause. The habeas petition and the request for a stay pending appeal were therefore denied, subject to a one-week administrative stay allowing an application to the Court of Appeals.

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United States District Court, S.D. New York.

[OMISSIS], Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

25-CV-05712 (JAV)

|

Filed 06/29/2026

Attorneys and Law Firms

Alexander Joseph Eleftherakis, Justine Aleta Harris, Harris Trzaskoma LLP, New York, NY, Krista Staropoli, Noam Korati Biale, Wesley Erdelack, Sher Tremonte LLP, New York, NY, for Petitioner.

Dana R. McCann, DOJ-United States Attorney’s Office, New York, NY, for Respondent.

OPINION AND ORDER

JEANNETTE A. VARGAS United States District Judge

*1 On June 23, 2025, following an evidentiary hearing, Magistrate Judge Jennifer E. Willis (the “Extradition Court”) certified that [OMISSIS] (“[OMISSIS]”) is extraditable under the Convention on Extradition Between the Government of the United States of America and the Government of the State of Israel, U.S.-Isr., Dec. 10, 1962, 14 U.S.T. 1707, as amended by the Protocol Between the Government of the United States and the Government of the State of Israel Amending the Convention on Extradition Signed at Washington, D.C. on Dec. 10, 1962, U.S.-Isr., July 6, 2005, S. Treaty Doc. No. 109-3 (2005) (collectively, the “U.S.-Israel Extradition Treaty”). In re Extradition of [OMISSIS], No. 24-MJ-01971 (JW), 2025 WL 1730228, at *14 (S.D.N.Y. June 23, 2025). [n.1: The Court refers to this case as the “Extradition Case” and cites its docket entries as “Extradition Dkt. No.”]

 

[OMISSIS] now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to prevent his extradition to Israel. ECF No. 27 (“Petition” or “Pet.”) at 1, 13. [OMISSIS] argues that the Extradition Court lacked jurisdiction over him, and that the extradition request fails to establish probable cause that he committed the charged crimes. For the reasons that follow, [OMISSIS]’s Petition is DENIED.

 

BACKGROUND

While the Court assumes the parties’ familiarity with the underlying facts and procedural history as set out in the Extradition Court’s June 23, 2025 decision, see generally In re Extradition of [OMISSIS], 2025 WL 1730228, a brief recitation is necessary to resolve the instant Petition.

 

[OMISSIS] is a citizen of several countries, including the United States and Israel. See Extradition Dkt. No. 13-1 at 142. He is alleged to be the leader of an Israeli crime syndicate and the mastermind behind a sophisticated plot to murder a rival gang leader, Eli Musli (“Musli”), on Israeli soil. ECF No. 31 (“Opp’n”) at 1-4; see ECF No. 31-1 at 142-56.

 

On April 11, 2024, the Government filed a criminal complaint in this District, charging [OMISSIS] with passport fraud and unlawful application for and attempted procurement of U.S. citizenship for his minor children, Extradition Dkt. No. 20-29, and obtained an arrest warrant based on that complaint, Extradition Dkt. No. 20-20. At that time, the Malaysian police had custody of [OMISSIS]. Extradition Dkt. No. 20-19, ¶¶ 4-5. [OMISSIS] alleges that the Malaysian police took custody of his person under false pretenses at the instigation of the United States Government. See Pet. at 2-10.

 

In or about April 2024, the Federal Bureau of Investigation (“FBI”) informally requested the Malaysian police to deport [OMISSIS] from Malaysia to the United States. See Ex. G at 4-5, 20-21, 32, United States v. [OMISSIS], No. 24-CR-00282 (JAV) (SN) (S.D.N.Y.), [n.2: The Court refers to this case as the “Passport Fraud Case” and cites its docket entries as “Criminal Dkt. No.”] Criminal Dkt. No. 45-7.

 

On May 6, 2024, a grand jury in this District returned an indictment charging [OMISSIS] with one count of unlawfully applying for and attempting to procure United State citizenship and one count of conspiracy to commit the same. Criminal Dkt. No. 2. That same day, the Government obtained another arrest warrant for [OMISSIS]. Criminal Dkt. No. 4.

 

*2 On May 13, 2024, the Malaysian police brought [OMISSIS] to the Sultan Abdul Aziz Shah Airport, “deported” him, and transferred custody of him to FBI agents. Extradition Dkt. No. 20-27 at 1. FBI agents then arrested [OMISSIS] pursuant to the May 6 arrest warrant and escorted him onto an airplane bound for the United States. See id. at 1-2. More specifically, Defendant alleges that Malaysian police brought him into a bathroom at the airport where FBI agents strip-searched him and administered medical tests; placed him in handcuffs, headphones, and a blindfold; and then escorted him onto a plane where they questioned him about his ties with Israel, but not about the passport fraud charges. Extradition Dkt. No. 20-19, ¶¶ 11-13.

 

After arriving in the United States, FBI agents transported [OMISSIS] to the Metropolitan Detention Center (“MDC”) in Brooklyn, New York. Extradition Dkt. No. 20-27 at 3-4. On May 14, 2024, he was presented for an initial appearance in connection with the Passport Fraud Case and subsequently detained. Criminal Dkt. No. 5.

 

On May 17, 2024, the Government filed a complaint seeking an arrest warrant for [OMISSIS] under the U.S.-Israel Extradition Treaty. Extradition Dkt. No. 1. That same day, an arrest warrant for [OMISSIS] was issued, Extradition Dkt. No. 2, and thereafter executed on May 20, 2026, Extradition Dkt. No. 5 at 2.

 

The Passport Fraud Case and the Extradition Case thus proceeded simultaneously. Concerning the Passport Fraud Case, [OMISSIS] ultimately pleaded guilty on November 5, 2025, Criminal Dkt. No. 108, and was sentenced on February 6, 2026, see Criminal Dkt. No. 111.

 

Separately, as relevant to the Extradition Case, Israel formally requested [OMISSIS]’s extradition through a diplomatic note dated June 25, 2024, and addressed to the United States Department of State (the “Extradition Request”). ECF No. 31-1 at 1-4, 46-59. Israel explained that it sought [OMISSIS]’s extradition pursuant to the U.S.-Israel Extradition Treaty to prosecute him for multiple offenses relating to alleged gang warfare in Israel, including Attempted Murder, Conspiracy to Commit a Felony, Carrying and Transporting Weapon, Changing Identity of a Vehicle or of a Vehicle Part, and Destroying Evidence (collectively, the “Extradition Charges”). See id. at 46-59. On July 19, 2024, the Government submitted the Extradition Request to the Extradition Court. Extradition Dkt. No. 13.

 

On December 9, 2024, the Extradition Court held an evidentiary hearing pursuant to 18 U.S.C. § 3184 and heard oral argument. See generally Extradition Dkt. No. 30. On June 23, 2025, the Extradition Court certified [OMISSIS] for extradition to Israel. In re Extradition of [OMISSIS], 2025 WL 1730228, at *14.

 

LEGAL STANDARDS

“In the United States, extradition is governed by the federal extradition statute.” Cheung v. United States, 213 F.3d 82, 87 (2d Cir. 2000) (citing 18 U.S.C. §§ 3181-96). Under Section 3184, a judicial officer has the limited task of determining whether there is sufficient evidence “to sustain the charge under the provisions of the proper treaty or convention.” 18 U.S.C. § 3184. Accordingly, at an extradition hearing, “[t]he [court’s] inquiry is confined to the following: whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof.” Cheung, 213 F.3d at 88.

 

An extradition hearing “is not the occasion for an adjudication of guilt or innocence,” but rather, “it is essentially a preliminary examination to determine whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation.” Skaftouros v. United States, 667 F.3d 144, 155 (2d Cir. 2011) (cleaned up). “If the court finds that the request falls within the treaty and satisfies the Extradition Statute, it must issue a certificate of extraditability to the Secretary of State, who makes the ultimate decision whether to extradite the individual.” Hyuk Kee Yoo v. United States, No. 21-CV-06184 (CS), 2021 WL 5054726, at *3 (S.D.N.Y. Nov. 1, 2021) (citing 18 U.S.C. § 3184), aff’d, 43 F.4th 64 (2d Cir. 2022).

 

*3 Because the extradition court’s “certificate of extraditability does not adjudicate the person’s guilt or innocence, but serves only to insure that his culpability will be determined in another and, in this instance, a foreign forum, it is not considered a final order that can be appealed directly under 28 U.S.C. § 1291.” Kapoor v. DeMarco, 132 F.4th 595, 601 (2d Cir. 2025) (cleaned up). Instead, a certificate “of extraditability is subject only to limited review through a habeas proceeding” under 28 U.S.C. § 2241. Id.; accord Skaftouros, 667 F.3d at 157.

 

“[H]abeas corpus is not a writ of error, and it is not a means of rehearing what the [extradition court] already has decided.” Lalama Gomez v. United States, 140 F.4th 49, 54 (2d Cir. 2025) (cleaned up). “In reviewing a habeas petition in the extradition context, a district court may consider only (1) whether the [extradition court] had jurisdiction; (2) whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence presented by the [G]overnment established probable cause to extradite.” Id. (cleaned up).

 

Since the extradition court’s judgment is “accord[ed] a presumption of validity … on collateral review, it is the petitioner who bears the burden of proving that he is being held contrary to law.” Skaftouros, 667 F.3d at 158. The petitioner must satisfy this burden through “pro[of] by a preponderance of the evidence that he is in custody in violation of the Constitution or laws or treaties of the United States, which, in this context, will typically mean in violation of the federal extradition statute, 18 U.S.C. § 3184, or the applicable extradition treaty.” Id. (cleaned up).

 

DISCUSSION

[OMISSIS] repeats the same three arguments that he originally raised in opposition to the certification of extraditability before the Magistrate Judge: (1) the Extradition Court lacked jurisdiction because the Government’s conduct in obtaining custody of [OMISSIS] violated his due process rights; (2) the Extradition Court lacked jurisdiction because the Government procured [OMISSIS]’s presence in the United States by violating the Extradition Treaty Between the Government of the United States of America and the Government of Malaysia (the “U.S.-Malaysia Extradition Treaty”); and (3) Israel’s Extradition Request failed to establish probable cause that [OMISSIS] committed the charged offenses. See Pet. at 11-28. Because each of these arguments lacks merit, the Court denies the Petition.

 

A. Jurisdiction

The federal extradition statute provides that a court has jurisdiction over a fugitive “found within” its jurisdictional boundaries. 18 U.S.C. § 3184 (“[A] magistrate judge … may, upon complaint made under oath, charg[e] any person found within his jurisdiction, … issue his warrant for the apprehension of the person so charged[.]”). [OMISSIS] contends that he was not properly “found within” the Southern District of New York, as his presence in the District (and in the United States) was procured in violation of his due process rights and of the U.S.-Malaysia Extradition Treaty. The Court considers each of these arguments in turn.

 

1. [OMISSIS]’s Due Process Rights

[OMISSIS] principally contends that he was only found in the United States as a result of the “deceitful and shocking” misconduct of federal law enforcement officials. Pet. at 14. [OMISSIS] argues that these due process violations divested the Extradition Court of jurisdiction to certify his extraditability. Id. [OMISSIS] acknowledges that there is a dearth of precedent addressing challenges to a judicial officer’s exercise of jurisdiction under Section 3184 based upon misconduct by the federal government in securing the individual’s presence in the United States in circumstances like his own. Id. at 15. There is, however, an ample body of caselaw which addresses the exercise of federal court jurisdiction over criminal defendants whose appearance in the United States was acquired through law enforcement overreach or violation of law. A discussion of the Ker-Frisbie doctrine is therefore in order.

 

a. Ker-Frisbie Doctrine

*4 “[U]nder the so-called Ker–Frisbie doctrine, the government’s power to prosecute a defendant is not impaired by the illegality of the method by which it acquires control over him.” United States v. Bout, 731 F.3d 233, 240 (2d Cir. 2013) (cleaned up). In other words, “the manner in which a defendant was brought into the United States d[oes] not affect the court’s power to proceed.” United States ex rel. Lujan v. Gengler, 510 F.2d 62, 64 (2d Cir. 1975). Forcible abduction by government officers, for example, cannot support a jurisdictional challenge. United States v. Umeh, 527 F. App’x 57, 63-64 (2d Cir. 2013) (summary order); see United States v. Alvarez-Machain, 504 U.S. 655, 662 (1992) (holding that, despite defendant’s forcible abduction from Mexico by United States agents, “the court need not inquire as to how respondent came before it”). This principle applies even where the criminal statute at issue requires that the defendant be “found in” the United States. See, e.g., United States v. Shibin, 722 F.3d 233, 244 (4th Cir. 2013) (“We conclude that Shibin’s presence in the United States, although against his will, satisfied the personal jurisdiction requirements of ‘brought into’ or ‘found in,’ as contained in 18 U.S.C. §§ 1651, 1203, and 2280.”); United States v. Yunis, 924 F.2d 1086, 1092 (D.C. Cir. 1991) (“[T]he statutory term ‘found in the United States’ … does not indicate [a] voluntariness limitation[.]”).

 

Nonetheless, in United States v. Toscanino, the Second Circuit recognized an exception to the Ker-Frisbie doctrine. In Toscanino, the defendant alleged that he was lured from his home in Uruguay to a deserted area by a paid agent of the United States, violently abducted and smuggled across the Brazilian border, brutally tortured and interrogated for seventeen days with the knowledge and participation of United States officials, and then drugged and placed on a flight to the United States. 500 F.2d 267, 269-70 (2d Cir. 1974), abrogated on other grounds by, In re Terrorist Bombings of U.S. Embassies in East Africa, 522 F.3d 157, 167 (2d Cir. 2008). Faced with such gruesome allegations, the Second Circuit carved out an exception to the Ker-Frisbie doctrine where the “conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 274 (quoting United States v. Russell, 411 U.S. 423, 431-32 (1973) (citing Rochin v. California, 342 U.S. 165 (1952))). In such circumstances, a court must “divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary[,] and unreasonable invasion of the accused’s constitutional rights.” Id. at 275.

 

Less than one year later, however, in United States ex rel. Lujan v. Gengler, “the Second Circuit backed away from the broad holding of Toscanino, essentially restricting it to its facts.” United States v. Yousef, No. 08-CR-01213 (JFK), 2011 WL 2899244, at *7 (S.D.N.Y. June 30, 2011). In Lujan, the defendant alleged that he was lured from Argentina to Bolivia under false pretenses, taken into custody by Bolivian police acting as paid U.S. agents, denied all communications with counsel and family, and placed on a plane to the United States. 510 F.2d at 63. Considering these allegations, the Second Circuit drew a line between Lujan and Toscanino, recognizing “that, absent a set of incidents like that in Toscanino, not every violation by prosecution or police is so egregious that Rochin and its progeny requires nullification of the indictment.” Id. at 66. Accordingly, while “Ker and Frisbie no longer provided a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality[,] and similar outrageous conduct,” the Second Circuit disavowed the “suggest[ion] that any irregularity in the circumstances of a defendant’s arrival in the jurisdiction would vitiate the proceedings of the criminal court.” Id. at 65. The Second Circuit thus distinguished between “an abduction which is simply illegal,” as in Lujan, and a “complex of shocking governmental conduct … [that] sinks to a violation of due process,” as in Toscanino. Id. at 66.

 

*5 Several years later, the Second Circuit further embraced the distinction between Lujan and Toscanino in United States v. Reed. In Reed, the defendant alleged that he was lured onto a plane in the Bahamas by agents from the Central Intelligence Agency (“CIA”), forced to lie on the floor with “a cocked gun to his head” as the agents “threaten[ed] to blow his brains out” during the flight, and then had his arm twisted as he was handed off to FBI agents when he arrived in the United States. 639 F.2d 896, 900-01 (2d Cir. 1981). Noting these allegations, the Second Circuit held that “[t]he instant case falls on the Lujan side of the balance rather than on the Toscanino side” because “[h]ere, as in Lujan, there was none of the cruel, inhuman and outrageous treatment allegedly suffered by Toscanino.” Id. at 901-02 (cleaned up). Accordingly, “the alleged circumstances of Reed’s arrest d[id] not sink to the level of a violation of due process.” Id. at 902.

 

Moreover, the exception to the Ker-Frisbie doctrine carved out by Toscanino has since been challenged. Indeed, “the Supreme Court has reaffirmed the vitality of the Ker–Frisbie doctrine no less than five times” in the years following Toscanino. Yousef, 2011 WL 2899244, at *7 (collecting cases). Other “circuits have called into question Toscanino[’s] viability in light of the barrage of Supreme Court case law to the contrary.” Id. (collecting cases). The Second Circuit itself has noted that the premise of Toscanino has “been undermined by subsequent decisions of the Supreme Court.” Umeh, 527 F. App’x at 64. And “[e]ven district courts in this [C]ircuit have declined to follow Toscanino.” Yousef, 2011 WL 2899244, at *7 (collecting cases).

 

b. Application

The Extradition Court held that the Ker-Frisbie doctrine supplies the applicable standard for evaluating [OMISSIS]’s due process claim. 2025 WL 1730228, at *11. Based on the record created during the evidentiary hearing, the Extradition Court found that:

The Government appears to have deliberately omitted information from documents provided to an ally nation; backdated documents to create the impression that a United States request for deportation existed at a time when it did not; and then effectuated the removal of a United States citizen from a foreign nation under conditions akin to a kidnapping[.]

Id. Yet [OMISSIS]’s allegations of misconduct did not rise to the level of “literal torture,” as required by Toscanino and its progeny. Id. The Extradition Court therefore concluded that it was not divested of jurisdiction. Id.

 

This holding was undoubtedly correct. Under the Toscanino standard, the Government misconduct to which [OMISSIS] was allegedly subjected fails to constitute conduct “so outrageous” that it violated [OMISSIS]’s due process rights. Here, similar to the defendants’ allegations in Reed and Lujan, [OMISSIS] was—if his allegations are true—forcibly abducted at the instigation of the United States Government. See Pet. at 2-10. Unlike the defendant’s allegations in Toscanino, however, [OMISSIS] nowhere alleges that he was subjected to torture, brutality, or similarly outrageous conduct that might warrant divestiture of jurisdiction. See id. at 2-10, 19-20.

 

[OMISSIS] challenges the Extradition Court’s holding that the only outrageous conduct that creates an exception to the Ker-Frisbie doctrine is physical torture. Id. at 19. [OMISSIS] concedes that a “defendant’s forcible detention and rendition to the United States, standing alone, are insufficient to show a due process violation,” but speculates that “forcible kidnapping combined with other illegal conduct—such as fabricating evidence and attempting to mislead the extradition court, as occurred here”—could meet the requisite standard. Id. at 19-20. The Court is not convinced, as such an argument runs directly counter to the Second Circuit’s admonition that “police brutality and lawlessness involved in obtaining jurisdiction over [a] defendant [is] almost wholly immune from judicial scrutiny.” Lujan, 510 F.2d at 64 (cleaned up); see also United States v. Noorzai, 545 F. Supp. 2d 346, 352 (S.D.N.Y. 2008) (“Defendant’s allegations of deceit and government misconduct, which do not implicate physical abuse of any kind, are insufficient to provide any basis for refusal to entertain this prosecution on due process grounds.”). Even assuming [OMISSIS]’s allegations are true—which, on the record before the Court, is unclear, see Extradition Dkt. No. 36—and even assuming that Toscanino is of continuing validity, [OMISSIS]’s claim fails to approach the extreme abuses that gave rise to the narrow exception recognized in Toscanino. Lujan, 510 F.2d at 66.

 

*6 Rather than waste much ink on attempting to fit within the Toscanino exception, [OMISSIS] principally argues that the Ker-Frisbie doctrine is not applicable in a Section 3184 extradition proceeding. Pet. at 17-18. [OMISSIS] points out that the doctrine was developed in the context of “extradition-in” cases (where defendants are brought into the United States from another country for criminal prosecution domestically), while his case presents an “extradition-out” scenario (where he was brought into the United States in order to extradite him to another country for prosecution there). Id. [OMISSIS] urges the Court to follow In re Extradition of Atta, No. 87-MJ-00551 (JLC), 1988 WL 66866 (E.D.N.Y. June 17, 1988) (“Atta I”). See Pet. at 15, 18. In Atta I, Magistrate Judge Caden denied certification of extraditability to Israel because, inter alia, he “was brought to the United States unlawfully … for the sole purpose of returning him for extradition to Israel,” and therefore, considering “[t]he limited process which a defendant can take advantage of in an extradition setting,” the court lacked jurisdiction because certifying the defendant’s extraditability would “violate due process.” 1988 WL 66866, at *19-22. In doing so, Magistrate Judge Caden distinguished the Toscanino line of cases on the grounds that, unlike a defendant who is “forcibly abducted” to stand trial in the United States, “[i]n an extradition proceeding designed to send the defendant out of the United States, the court cannot assure the accused will receive due process.” Id.

 

Yet Atta I’s holding has been repeatedly rejected by other courts within this Circuit. Following Atta I, the Government filed a second extradition complaint against the defendant seeking a de novo extradition hearing. In re Extradition of Atta, 706 F. Supp. 1032, 1036 (E.D.N.Y. 1989) (“Atta II”). After the Government introduced additional evidence that had not been before Magistrate Judge Caden in Atta I, Judge Korman held that the relator had not been brought to the United States unlawfully, and so there was no jurisdictional issue. See id. at 1036-37. Judge Korman, relying on the Ker-Frisbie doctrine, further elaborated that “[t]he decision of the Magistrate to ‘divest’ himself of jurisdiction … was erroneous as a matter of law even on the record before him” under the Ker-Frisbie doctrine. Id. at 1037.

 

Judge Korman also noted that Magistrate Judge Caden’s concern about the differences in process afforded a criminal defendant and a relator in an extradition proceeding was answered by the Supreme Court’s decision in Immigration and Naturalization Service v. Lopez–Mendoza. Id. at 1038. In Lopez-Mendoza, the Supreme Court rejected the application of an “exclusionary rule” in the deportation context, reaffirming that “the body or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.” 468 U.S. 1032, 1039-40 (1984) (emphasis added) (cleaned up). Referring to the holding in Lopez-Mendoza, Judge Korman concluded:

This holding is a complete answer to the Magistrate’s conclusion that the limited process which a defendant can take advantage of in an extradition proceeding is not sufficient to overcome any defect in the procedure which brought him to the United States. The process afforded in a deportation hearing is as limited, if not more so, than that afforded in an extradition proceeding.

Atta II, 706 F. Supp. at 1038 n.4 (cleaned up).

 

The Atta relator then sought a writ of habeas corpus, which was denied. Ahmad v. Wigen, 726 F. Supp. 389, 420 (E.D.N.Y. 1989), aff’d, 910 F.2d 1063 (2d Cir. 1990). Judge Weinstein agreed that the Toscanino standard applied to the petitioner’s due process claims in that extradition-out proceeding. Id. at 398. Judge Weinstein thus concluded that the petitioner’s allegations of abduction and law enforcement misconduct, even if credited, were “insufficient as a matter of law to divest this court of jurisdiction.” Id.

 

*7 Finally, on appeal, the Second Circuit affirmed, holding that “the Government’s conduct violated neither the Constitution nor established principles of international law.” Ahmad, 910 F.2d at 1065-66. In doing so, the Second Circuit cited the portions of Reed and Lujan that applied the Toscanino standard. Id. (citing Reed, 639 F.2d at 901-02; Lujan, 510 F.2d at 65-68).

 

Although this endorsement of the Toscanino standard in the “extradition-out” context is not as explicit as [OMISSIS] would prefer, see Pet. at 16-18, the Court agrees with the Extradition Court that the Second Circuit’s “reliance on Reed and Lujan implies that the [applicable due process] standard is the extremely high one set forth in Toscanino,” In re Extradition of [OMISSIS], 2025 WL 1730228, at *11. Bound by precedent, the Court declines [OMISSIS]’s invitation to apply a different standard.

 

2. The U.S.-Malaysia Extradition Treaty

As to his second jurisdictional argument, [OMISSIS] contends that the Government violated its obligation under Article 16 of the U.S.-Malaysia Extradition Treaty by withholding information from Malaysia to obtain Malaysia’s consent to [OMISSIS]’s rendition. Pet. at 20. Article 16 of the U.S.-Malaysia Extradition Treaty provides, “A person extradited under this Treaty shall not be extradited to a third state for an offense committed prior to his surrender unless the surrendering state consents.” Extradition Treaty, U.S.-Malay., art. 16(2), Aug. 3, 1995, T.I.A.S. 97-602, S. Treaty Doc. No. 104-26 (1996). According to [OMISSIS], federal law enforcement officials deliberately omitted from their communications with the Malaysian authorities information regarding [OMISSIS]’s connection with Israel, including the pending criminal charges in Israel and the intention of the United States to seek his extradition to Israel. Pet. at 20.

 

As an initial matter, to the extent that [OMISSIS] suggests that the Government procured his custody from Malaysia on pretextual grounds, it is undisputed that [OMISSIS] was indicted by a grand jury in this District in the Passport Fraud Case, that upon his arrival in the United States the United States pursued those criminal charges against [OMISSIS], and [OMISSIS] ultimately pled guilty to unlawful application for and attempted procurement of United States citizenship. See Criminal Dkt. No. 111.

 

More fundamentally, [OMISSIS] was not extradited from Malaysia. Malaysia surrendered [OMISSIS] to the United States outside the confines of the U.S.-Malaysia Extradition Treaty. See Extradition Dkt. No. 20-27 at 1-2; see generally Criminal Dkt. No. 45-7. Accordingly, the Government’s obligations under that extradition treaty are inapposite for jurisdictional purposes. See, e.g., United States v. Herbert, 313 F. Supp. 2d 324, 328 (S.D.N.Y. 2004) (denying motion to dismiss indictment because “[the defendant] was not transferred to United States custody pursuant to the extradition request of the U.S. authorities, and thus he cannot raise a violation of the extradition treaty as an obstacle to this Court’s jurisdiction”); United States v. Vega, No. 07-CR-00707 (ARR), 2012 WL 1925876, at *8 (E.D.N.Y. May 24, 2012) (“When a criminal defendant waives extradition, or when the requested country voluntarily transfers a defendant to the requesting country without following the formal procedures of the treaty, the defendant has not been ‘extradited’ under that treaty. Moreover, where a defendant is not transferred pursuant to an extradition treaty, he cannot assert any rights conferred by the treaty. Thus, a criminal defendant’s surrender to United States jurisdiction or a requested country’s voluntary transfer of a defendant’s custody forecloses a rule of [specialty] defense.” (cleaned up)); see also Kapoor, 132 F.4th at 600 n.7 (“[I]f the person waives extradition, then she is transferred to the requesting state outside the extradition process. The benefit to the person sought is usually a much speedier transfer to the requesting state; the downside to her is that the rule of specialty and any other treaty protections do not apply.”).

 

*8 The Extradition Court similarly did not reach the substance of [OMISSIS]’s arguments regarding a purported violation of the U.S.-Malaysia Extradition Treaty, but on different grounds. Relying upon United States v. Barinas, 865 F.3d 99 (2d Cir. 2017), the Extradition Court held that [OMISSIS] lacked standing to raise treaty violations absent a protest from Malaysia. In re Extradition of [OMISSIS], 2025 WL 1730228, at *8. [OMISSIS] agrees that this is a correct reading of Second Circuit precedent but contends that Barinas conflicts with Supreme Court precedent. Pet. at 20-22. Invoking Alvarez-Machain, 504 U.S. 655 (1992), and United States v. Rauscher, 119 U.S. 407 (1886), [OMISSIS] argues that Malaysia’s protest is not required for him to assert the rule of specialty under the U.S.-Malaysia Extradition Treaty. Pet. at 21-22.

 

As stated above, the Court need not reach this argument because [OMISSIS] was not extradited under the auspices of the treaty, and its terms are therefore inapplicable. Additionally, [OMISSIS] waived this argument before the Extradition Court, where he “clarifie[d] that he [was] not invok[ing] a violation of the U.S.-Malaysia Extradition Treaty under the rule of specialty.” In re Extradition of [OMISSIS], 2025 WL 1730228, at *7 (citing Extradition Dkt. No. 20 at 18 n.5). Thus, the issue as [OMISSIS] frames it here, see Pet. at 20-22, was not before the Extradition Court.

 

Nor did the Extradition Court err in relying on Barinas. Second Circuit precedent binds the Court “unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or [the Second Circuit].” United States v. Polouizzi, 564 F.3d 142, 160 (2d Cir. 2009) (citation omitted). Indeed, “[r]espect for the overall structure of the federal judiciary requires that district courts proceed cautiously in deciding whether an intervening Supreme Court decision overrules Second Circuit precedent.” United States v. Williams, 701 F. Supp. 3d 257, 269 (S.D.N.Y. 2023) (cleaned up). “District courts are therefore obliged to follow that precedent until Supreme Court precedent renders it untenable.” Id. (cleaned up). [OMISSIS] does not point to any intervening Supreme Court precedent that calls into question the validity of Barinas. Rather, he relies on Supreme Court cases that not only preceded Barinas, but that Barinas itself cited as authority. See 865 F.3d at 104. This Court, like the Extradition Court, is thus bound by that precedent.

 

B. Probable Cause

Finally, [OMISSIS] argues that the Extradition Court erred in holding that Israel’s Extradition Request provided probable cause that he committed the alleged charges. Pet. at 22. Specifically, he contends he has an alibi for certain of the dates set forth in the request, that the testimony of the key witness relied upon by the Israeli prosecutors is unreliable because under the terms of a cooperation agreement that witness was compensated for his testimony against [OMISSIS], and that other evidence does not corroborate the Extradition Charges. Id. at 22-27. [OMISSIS] challenges the Extradition Court’s holding that it was barred from considering evidence regarding his alibi and the payments received by the cooperating witness. Id. at 27-28.

 

When reviewing [OMISSIS]’s probable cause challenge, the Court must ensure compliance with the U.S.-Israel Extradition Treaty. See Skaftouros, 667 F.3d at 158 (“[I]n order to merit habeas relief in a proceeding seeking collateral review of an extradition order, the petitioner must prove … that he is in custody in violation of … the applicable extradition treaty.”) (cleaned up). Article V of the U.S.-Israel Extradition Treaty provides, “Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, … to justify his committal for trial if the offense of which he is accused had been committed in that place[.]” ECF No. 31-1 at 8. Certifying a defendant’s extraditability under the U.S.-Israel Extradition Treaty thus requires “evidence sufficient to establish reasonable or probable cause” as to the charged offense in the Extradition Request. Shapiro v. Ferrandina, 478 F.2d 894, 898-905 (2d Cir. 1973) (interpreting and applying the U.S.-Israel Extradition Treaty). “To establish the level of probable cause necessary to certify one for extradition, evidence must be produced that is ‘sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.’ ” Spatola v. United States, 741 F. Supp. 362, 373 (E.D.N.Y. 1990) (cleaned up), aff’d, 925 F.2d 615 (2d Cir. 1991).

 

*9 The Court’s review of the Extradition Court’s finding of probable cause “is limited and should not be converted into a de novo review of the evidence.” Melia v. United States, 667 F.2d 300, 302 (2d Cir. 1981). While the Court is not “expected to wield a rubber stamp,” the Extradition Court’s decision is afforded “a presumption of validity.” Skaftouros, 667 F.3d at 158. For example, “[t]he credibility of witnesses and the weight to be accorded their testimony is solely within the province of the extraditing magistrate.” Austin v. Healey, 5 F.3d 598, 605 (2d Cir. 1993) (citation omitted). Ultimately, “[a] magistrate’s finding that there is probable cause will not be overturned so long as there is any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Spatola, 741 F. Supp. at 373 (citing Collins v. Loisel, 259 U.S. 309, 315 (1922)); see also Shapiro, 478 F.2d at 905 (“The magistrate’s function is to determine whether there is ‘any’ evidence sufficient to establish reasonable or probable cause[.]” (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)).

 

The Extradition Court correctly held that Israel’s Extradition Request provided probable cause that [OMISSIS] committed the Extradition Charges. To determine whether probable cause existed, the Extradition Court applied the correct legal standard. See In re Extradition of [OMISSIS], 2025 WL 1730228, at *6-7, *12-14. Under that standard, the Extradition Court primarily considered the affidavit of Pnina Levy, the “Senior Deputy A in the Tel Aviv District [Criminal] Attorney’s Office” (the “Levy Affidavit”). Id. at *12. The Levy Affidavit describes the testimony of informants “A.A” [n.3: A.A. represents himself as an accomplice in the alleged plan to murder Musli. See ECF No. 31-1 at 148-52.] and “B.B.” about the alleged plan to murder Musli; seized evidence including getaway vehicles and cellphones containing incriminating photos, videos, and communications; surveillance footage; surveillance reports by Israeli police officers; wiretaps; and opinions of an explosives expert—all of which provides evidence to support Extradition Charges against [OMISSIS]. In re Extradition of [OMISSIS], 2025 WL 1730228, at 12-13; see ECF No. 31-1 at 142-56. Considering this abundance of evidence, the Extradition Court properly held that the evidence established probable cause that [OMISSIS] committed the Extradition Charges.

 

[OMISSIS]’s arguments to the contrary are meritless. As to the alleged alibi evidence, Pet. at 23-24, the Extradition Court has already explained why the evidence itself is not inconsistent with his asserted alibi evidence, see In re Extradition of [OMISSIS], 2025 WL 1730228, at *12 (observing that the supporting affidavit does not state [OMISSIS] was present in Tel Aviv on the date in question, but only that [OMISSIS]’s voice was heard on a recording). As to whether several other pieces of evidence corroborate A.A.’s testimony, Pet. at 25-27, “[a]s a matter of law, accomplice testimony is sufficient even without corroboration to demonstrate probable cause to certify the accused for extradition,” Ahmad, 726 F. Supp. at 400 (citing Eain v. Wilkes, 641 F.2d 504, 510 & n.5 (7th Cir. 1981)). Since “the weight to be accorded [to such] testimony is solely within the province of the extraditing magistrate,” Austin, 5 F.3d at 605 (cleaned up), the Court need not address [OMISSIS]’s challenge further.

 

Finally, as to whether evidence was erroneously barred, Pet. at 27-28, the Extradition Court was correct to exclude certain pieces of evidence, Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984) (“In the exercise of the extraditing judge’s discretion, a fugitive may be permitted to offer explanatory testimony, but may not offer proof which contradicts that of the demanding country.”). The Extradition Court did not err in holding that [OMISSIS] may not introduce evidence that attacks witness credibility, see In re Extradition of [OMISSIS], 2025 WL 1730228, at *13 (collecting cases); see, e.g., In re Extradition of Vukcevic, No. 95-MJ-1176 (MHD), 1995 WL 675493, at *7 (S.D.N.Y. Nov. 14, 1995) (“First, as a general matter, the defendant cannot challenge the credibility of government witnesses or evidence in an extradition hearing.”). Regardless, “the ‘wrongful exclusion of specific pieces of evidence, however important, does not render the detention illegal.’ ” Messina, 728 F.2d at 80 (quoting Collins, 259 U.S. at 316). The Court thus rejects [OMISSIS]’s probable cause challenge and denies his petition for a writ of habeas corpus.

 

C. Motion to Stay

*10 [OMISSIS] requests that, if his habeas petition is denied, the Court issue a stay of its decision so that he may pursue an appeal to the Second Circuit. ECF No. 36 (“Reply”) at 7. Courts consider four factors when assessing a motion for a stay pending appeal: (1) the movant’s “strong showing that he is likely to succeed on the merits”; (2) “irreparable injury to the [movant] in the absence of a stay”; (3) “substantial injury to the nonmoving party if a stay is issued”; and (4) “the public interest.” New York v. United States Dep’t of Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). “The first two factors are the most critical, but a stay ‘is not a matter of right, even if irreparable injury might otherwise result[.]’ ” Id. (quoting Nken, 556 U.S. at 434-35). Accordingly, “a stay is ‘an exercise of judicial discretion,’ and ‘[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of discretion.’ ” Id. (quoting Nken, 556 U.S. at 434-35).

 

The first factor, which considers the likelihood of success on the merits, weighs in favor of denying the stay. [OMISSIS] raises the same issues for a potential appeal that he argues in his Petition. See Reply at 8. For the reasons discussed supra, [OMISSIS] fails to making a strong showing that he is likely to succeed on the merits of these issues. This factor thus weighs against [OMISSIS].

 

The second factor, which considers irreparable harm to the movant in the absence of a stay, weighs in favor of granting the stay. Indeed, [OMISSIS] “would likely be removed from the United States before his appeal is decided.” Hyuk Kee Yoo v. United States, No. 21-CV-06184 (CS), 2021 WL 6100609, at *2 (S.D.N.Y. Nov. 16, 2021). Accordingly, this factor favors [OMISSIS]’s motion.

 

The third and fourth factors weigh in favor of denying the stay. “Because the Government is the opposing party, the third and fourth factors (harm to the opposing party and the public interest) merge.” Id. (citing Nken, 556 U.S. at 435). These factors typically weigh in the Government’s favor in the context of extradition proceedings. See Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986) (noting the public’s interest in the Government’s compliance with a valid extradition application strengthens international relations); cf. Nken, 556 U.S. at 436 (“There is always a public interest in prompt execution of removal orders[.]”). These factors therefore weigh against [OMISSIS].

 

Having weighed the factors, the Court declines to exercise its discretion to grant a stay pending appeal.

 

CONCLUSION

Accordingly, the Extradition Court correctly certified the extraditability of [OMISSIS] to Israel under the U.S.-Israel Extradition Treaty. The Petition for a writ of habeas corpus is thus DENIED.

 

[OMISSIS]’s motion for a stay pending appeal is likewise DENIED. Nonetheless, the Court grants an administrative stay of this opinion and order, to be in effect for one week from the date of this Order and Opinion, to allow [OMISSIS] time to file a motion for a stay in the Second Circuit Court of Appeals.

 

The Clerk of Court is directed to enter judgment in accordance with this decision, to terminate all pending motions, and to close the case.

 

SO ORDERED.

 

All Citations

Slip Copy, 2026 WL 1864974