                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MAN-SEOK CHOE,                           
                Petitioner-Appellant,           No. 06-56634
                  v.
                                                 D.C. No.
                                              CV-06-06745-RGK
ADAM N. TORRES, U.S. Marshal, in
his official capacity,                           OPINION
               Respondent-Appellee.
                                         
        Appeal from the United States District Court
           for the Central District of California
        R. Gary Klausner, District Judge, Presiding

                   Argued and Submitted
            August 7, 2007—Pasadena, California

                      Filed April 29, 2008

 Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson,
 Circuit Judge, and Harold Baer, Jr.,* Senior District Judge.

               Opinion by Chief Judge Kozinski




  *The Honorable Harold Baer, Jr., Senior U.S. District Judge for the
Southern District of New York, sitting by designation.

                               4595
4598                   CHOE v. TORRES


                        COUNSEL

William J. Genego, Nasatir, Hirsch, Podberesky & Genego,
Santa Monica, California, for the petitioner-appellant.

Daniel J. O’Brien, Assistant U.S. Attorney; George S. Car-
dona, Acting U.S. Attorney; Thomas P. O’Brien, Assistant
U.S. Attorney; Daniel Scott Goodman, Assistant U.S. Attor-
ney, Los Angeles, California, for the respondent-appellee.


                         OPINION

KOZINSKI, Chief Judge:

  We consider whether the district court erred in denying
Man-Seok Choe’s habeas corpus petition challenging certifi-
cation of his extradition to the Republic of Korea.

                           Facts

  Choe is a Korean citizen and a resident of Los Angeles. In
the 1990s, he traveled frequently to Korea on business, where
he was acquainted with important political figures. During
                             CHOE v. TORRES                             4599
one of his visits to Korea, Choe learned that he was under
criminal investigation. Choe thereupon left Korea in secret
and returned to Los Angeles. After Korea requested Choe’s
extradition, the United States took him into custody. Pursuant
to 18 U.S.C. § 3181 et seq., Magistrate Judge Marc L. Gold-
man determined that Choe was subject to surrender under the
terms of the Extradition Treaty Between the Government of
the United States of America and the Government of the
Republic of Korea, June 9, 1998 (“Treaty”), and certified two
crimes for extradition.1 Choe then petitioned the district court
for a writ of habeas corpus. The district court summarily
denied his petition, relying on the magistrate judge’s determi-
nation that Choe is extraditable. Choe appeals.2

                                 Analysis

   Because the district court denied Choe’s petition in a min-
ute order, we review the magistrate judge’s memorandum and
order certifying the crimes for extradition. Barapind v. Eno-
moto, 400 F.3d 744, 748 (9th Cir. 2005) (en banc) (per
curiam).

  1.    Acceptance of Bribe Through Good Offices

   [1] Article 2 of the Treaty provides that an “offense shall
be an extraditable offense if . . . it is punishable under the
laws” of both nations. Treaty art. 2(1). This is known as the
“dual criminality” requirement. Clarey v. Gregg, 138 F.3d
764, 765 (9th Cir. 1998). In determining whether Korea has
satisfied the dual criminality requirement, we consider “the
  1
     Courts may only certify crimes for extradition. 18 U.S.C. § 3184. The
ultimate decision whether to extradite is left to the Secretary of State. Id.;
Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198,
1208 (9th Cir. 2003).
   2
     While the magistrate judge’s determination that Choe is extraditable is
not subject to direct appeal, it is subject to collateral review by way of
habeas corpus. See Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1402 (9th
Cir. 1988).
4600                     CHOE v. TORRES
totality of the conduct alleged.” Treaty art. 2(3); see also
Clarey, 138 F.3d at 766 (“The primary focus of dual criminal-
ity has always been on the conduct charged; the elements of
the analogous offenses need not be identical.”); Emami v.
U.S. Dist. Court, 834 F.2d 1444, 1450 (9th Cir. 1987) (“[A]ll
the principle of dual criminality requires is that the particular
acts alleged constitute a crime in both jurisdictions.”); In re
Russell, 789 F.2d 801, 803 (9th Cir. 1986) (“[T]o satisfy the
‘dual criminality’ requirement, . . . [i]t is enough that the con-
duct involved is criminal in both countries.”). We review de
novo the determination that an offense is extraditable. United
States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.
1987).

  The extradition papers allege that Choe improperly influ-
enced the Korean government on behalf of Alsthom Co.
Alsthom submitted a bid to supply the Korean government
with high speed rail cars for a national rapid transit railway
system. The papers allege that Choe promised Myung Soo
Hwang, who was then the secretary general of the ruling party
and a member of the National Assembly, a “sufficient
reward” if Hwang exerted his influence on Alsthom’s behalf
and the bid were successful. Alsthom won the contract and
promptly paid Choe over $11 million; Choe, in turn, paid
Hwang approximately $400,000.

   [2] It’s clear that this alleged conduct—promising and then
paying a bribe to a public official in exchange for an official
act—is a crime under U.S. law. Choe’s conduct, if committed
in the United States, would be punishable under several stat-
utes including: 18 U.S.C. § 201(b), which makes it illegal to
bribe any public official in order to influence his official
actions; 18 U.S.C. § 666(a)(2), which makes it a crime to
bribe recipients of federal funds; and 18 U.S.C. §§ 1343,
1346, which allow for prosecution of individuals who deprive
citizens of the honest services of a public official. See United
States v. Blumeyer, 114 F.3d 758, 765 (8th Cir. 1997). In
                              CHOE v. TORRES                           4601
short, the “totality of the conduct alleged,” Treaty art. 2(3), is
“punishable under the laws” of both nations, id. art. 2(1).

   Choe nevertheless contends that the offense isn’t extradit-
able because Article 2 of the Treaty further requires that the
Korean and U.S. laws be “substantially analogous.”3 Choe
argues that the Korean law under which he has been charged
—Acceptance of Bribe Through Good Offices4 —isn’t “sub-
stantially analogous” to any U.S. law. The Korean statute pro-
vides: “Any person who receives, demands or promises any
money or interest in connection with a mediation of matters
belonging to the duties of the public official, shall be pun-
ished . . . .” Choe points out that this language seems to crimi-
nalize conduct that we would consider mere lobbying.
According to Choe, the vague phrase “in connection with a
mediation of matters belonging to the duties of the public offi-
cial” is broad enough to cover the activities of a lobbyist who
helps provide access to public officials in a legitimate attempt
to influence their official actions.

   [3] But Choe misconceives the meaning of the term “sub-
stantially analogous.” Just three months before the Treaty was
signed, we adopted the following definition: “[W]hen the
laws of both the requesting and the requested party appear to
be directed to the same basic evil, the statutes are substan-
tially analogous.” Clarey, 138 F.3d at 766 (internal quotation
marks and citation omitted). Korea’s statute is “directed to the
same basic evil” as our bribery laws, namely, the corruption
of public officials. The fact that the Korean law is broader
  3
   Article 2 provides:
      [A]n offense shall be an extraditable offense . . . whether or not
      the constituent elements of the offense differ under the laws in
      [Korea and the United States], provided that the offenses under
      the laws of both States are substantially analogous.
Treaty art. 2(3).
  4
    This is the title of the Korean statute as translated in the extradition
papers.
4602                      CHOE v. TORRES
than ours, and thus punishes conduct that would not be unlaw-
ful here, is of no consequence, so long as the particular con-
duct Choe is charged with is prohibited in both countries. Id.

   [4] Choe further contends that the United States5 hasn’t
established probable cause that he committed the acts with
which he’s charged. The Treaty requires “such information as
would provide reasonable grounds to believe that the person
sought has committed the offense for which extradition is
requested.” Treaty art. 8(3)(c). The magistrate judge found
that the United States satisfied this requirement, and we must
uphold that finding if “competent evidence” supports it. Zana-
zanian v. United States, 729 F.2d 624, 626 (9th Cir. 1984).

   [5] The magistrate judge’s memorandum and order dis-
cusses the extensive evidence that Alsthom paid Choe $11
million for his services, but doesn’t mention any evidence that
Choe promised Hwang a reward, that Choe gave Hwang any-
thing, or even that Choe met with Hwang. Though the extradi-
tion papers accuse Choe of doing these things, accusations are
not evidence. See In re Sauvage, 819 F. Supp. 896, 902-03
(S.D. Cal. 1993). This failure is particularly significant
because the Korean prosecutor who prepared the extradition
papers had before him the complete statement of Ki Choon
Ho, Choe’s alleged accomplice in the crime, yet there’s no
indication in the papers that Ho implicated Choe in bribing
Hwang.

  To be sure, the magistrate judge had evidence that Choe
may have committed some violation of the Acceptance of
Bribe Through Good Offices statute. That statute prohibited
Choe from “receiv[ing]” Alsthom’s money “in connection
with a mediation of matters belonging to the duties of the
public official,” so it’s likely that Choe violated the Korean
law the moment he allegedly took Alsthom’s money, whether
  5
  Pursuant to Article 18 of the Treaty, the United States represented
Korea’s interests before the magistrate judge.
                            CHOE v. TORRES                            4603
or not he then paid any of it over to Hwang. But the Treaty
isn’t satisfied by proof that Choe probably committed some
violation of the statute; it requires probable cause that Choe
committed the particular acts of which he’s accused, namely,
bribing Hwang. See Treaty art. 8(3)(c); see also 18 U.S.C.
§ 3184 (extradition requires “evidence sufficient to sustain the
charge” leveled against the fugitive) (emphasis added); Quinn
v. Robinson, 783 F.2d 776, 787 (9th Cir. 1986) (section 3184
requires probable cause to believe the accused committed the
particular “charged offense”).

  [6] Because there’s no competent evidence to support the
magistrate judge’s finding of probable cause that Choe com-
mitted the particular acts “for which extradition is requested,”
Treaty art. 8(3)(c), we reverse the district court’s denial of
habeas corpus as to this offense.6

  2.    Stowaway Control Act

   Choe’s petition for a writ of habeas corpus seeks relief
from the magistrate judge’s certification for Choe’s violation
of the Stowaway Control Act and, curiously, the parties dis-
cuss this issue at length in their briefs. But the magistrate
judge did not certify this offense for extradition, so Korea
can’t prosecute Choe for it, see Treaty art. 15(1)(a), p.4608
infra, and the United States can’t appeal the magistrate
judge’s adverse determination, see United States v. Doherty,
   6
     As we see below, Korea also has a conventional bribery statute. See
p.4604 infra. The United States urges us to certify Choe’s alleged bribe
to Hwang as a violation of that statute. But changing the legal theory can’t
cure the lack of evidence that Choe bribed Hwang. In any event, we don’t
have the power to certify new offenses for extradition. If the government
believes it can extradite Choe on the charge that he violated Korea’s con-
ventional bribery statute by bribing Hwang, it must make that case before
an extradition court, which has the power to determine in the first instance
whether Korea’s extradition papers support such a charge and whether the
evidence is “sufficient to sustain” it. 18 U.S.C. § 3184; see United States
v. Doherty, 786 F.2d 491, 501-03 (2d Cir. 1986).
4604                    CHOE v. TORRES
786 F.2d 491, 501-03 (2d Cir. 1986). The issue is thus not
properly before us and we do not consider it.

  3.   Offering Bribe

   After Korean authorities launched an investigation into
Choe’s lobbying activities, Choe allegedly bribed a Korean
police officer, Yoon Ki Jeon, to exert his influence to close
the investigation. Such conduct, if proven, would violate a
Korean statute titled Offering Bribe. Choe concedes that this
is an extraditable offense but claims that the evidence does
not support probable cause. As discussed above, see pp.4602-
03 supra, the Treaty requires “such information as would pro-
vide reasonable grounds to believe that the person sought has
committed the offense for which extradition is requested.”
Treaty art. 8(3)(c). Here again, the magistrate judge found that
the United States, representing Korea’s interests, satisfied this
burden; we must uphold the magistrate judge’s finding if
“competent evidence” supports it. Zanazanian, 729 F.2d at
626.

   [7] The magistrate judge’s memorandum and order con-
tains a detailed account of the evidence supporting probable
cause to believe Choe bribed Officer Jeon in an effort to stop
the police investigation, including the Korean prosecutor’s
summary of testimony from Choe’s accomplice, Ki Choon
Ho, who implicates Choe in a scheme to bribe Officer Jeon.
Ho, who allegedly aided Choe in his lobbying activities, pro-
vides names, dates, an explanation of how she became aware
Korean authorities were investigating their lobbying activi-
ties, the financial breakdown of the bribe and how it was
apportioned, how she met Officer Jeon and the way in which
Officer Jeon was paid.

   Ho was convicted in Korea and sentenced to 18 months in
prison for her role in bribing Officer Jeon. The magistrate
judge also relied on the Korean prosecutor’s summary of tes-
timony from another witness, Sang In Kim, who indicated
                              CHOE v. TORRES                            4605
that he introduced Ho to Officer Jeon, that he was present
when Ho offered Officer Jeon a bribe and that he delivered
money to Officer Jeon on Ho’s behalf. The magistrate judge
also considered other evidence such as a bank statement docu-
menting the bribe and the prosecutor’s summary of testimony
from another Korean police officer, but it is unnecessary to
discuss these in any detail as there is more than enough evi-
dence to support the magistrate judge’s finding.

   [8] Choe contends this evidence cannot support a finding of
probable cause because the Korean prosecutor’s summaries
aren’t reliable. But if the evidence submitted in the extradition
papers is certified and authenticated in accordance with the
admissibility requirements of Article 9 of the Treaty7 and 18
U.S.C. § 31908 —which is not disputed here—the magistrate
judge is authorized to consider it. See, e.g., Collins v. Loisel,
259 U.S. 309, 317 (1922) (“[U]nsworn statements of absent
witnesses may be acted upon by the committing magistrate.”);
Zanazanian, 729 F.2d at 627 (police reports summarizing wit-
nesses statements are competent evidence); Emami, 834 F.2d
at 1450-52 (upholding extradition based on affidavit contain-
ing summaries of witnesses’ statements).
  7
     Article 9 of the Treaty provides that documents are admissible when
“they are certified by the principal diplomatic or consular officer of the
Requested State resident in the Requesting State; or [when] they are certi-
fied or authenticated in any other manner accepted by the law of the
Requested State.” Treaty art. 9(a)-(b).
   8
     18 U.S.C. § 3190 provides that documents
      offered in evidence upon the hearing of any extradition case shall
      be received and admitted as evidence on such hearing for all the
      purposes of such hearing if they shall be properly and legally
      authenticated so as to entitle them to be received for similar pur-
      poses by the tribunals of the foreign country from which the
      accused party shall have escaped, and the certificate of the princi-
      pal diplomatic or consular officer of the United States resident in
      such foreign country shall be proof that the same, so offered, are
      authenticated in the manner required.
4606                         CHOE v. TORRES
   [9] Choe also attacks Ho’s credibility. He points out that
Ho had every reason to shift blame to him to reduce her own
culpability, and that her statements aren’t supported by any
other witness. But the Treaty merely requires “such informa-
tion as would provide reasonable grounds to believe” that
Choe committed the crime. Treaty art. 8(3)(c). Here, Ho’s
lack of credibility is merely a weakness in Korea’s case; it
does not “completely obliterate[ ]” the evidence of probable
cause. Barapind, 400 F.3d at 749. Choe further contends that
the magistrate judge erred by refusing to allow him to conduct
discovery on Ho’s credibility, but this wasn’t error because
any such evidence wouldn’t be admissible. Id. (“[E]vidence
that merely controverts the existence of probable cause, or
raises a defense, is not admissible.”).

  4.    Statute of Limitations

   [10] Article 6 of the Treaty provides that extradition for a
crime may be denied if punishment for the crime would be
barred by the statute of limitations of the United States had
the crime been committed here.9 In the United States, the stat-
ute of limitations for the crime of bribing a public official—
the only crime which can properly be certified for extradition,
see pp.4604-07 supra—is five years. 18 U.S.C. § 3282. As the
final bribe to Officer Jeon was paid in February 1996, the stat-
ute of limitations would have lapsed in February 2001. How-
ever, under U.S. law, the statute of limitations is tolled if the
   9
     At oral argument, the United States argued for the first time that we do
not have the authority to deny extradition on the basis of the Treaty’s stat-
ute of limitations provision because this provision is couched in discre-
tionary terms. See Treaty art. 6 (“Extradition may be denied . . . when . . .
punishment of the offense . . . would have been barred because of the stat-
ute of limitations of the Requested State had the same offense been com-
mitted in the Requested State.”) (emphasis added). According to the
United States, only the Executive Branch can take action on the basis of
discretionary Treaty language. Because this argument was raised for the
first time on appeal, it is waived. Cf. Broad v. Sealaska Corp., 85 F.3d
422, 430 (9th Cir. 1996).
                             CHOE v. TORRES                            4607
accused flees from justice. 18 U.S.C. § 3290. To toll the stat-
ute, the United States must show that Choe (1) “inten[ded] to
avoid arrest or prosecution” and (2) committed a “volitional
act” of concealment. See United States v. Wazney, 529 F.2d
1287, 1289 (9th Cir. 1976). We review the magistrate judge’s
factual findings for clear error, but the “ultimate ‘fleeing from
justice’ question” we review “de novo because legal concepts
that require us to exercise judgment dominate the mix of fact
and law.” United States v. Fowlie, 24 F.3d 1070, 1072 (9th
Cir. 1994).

   [11] In October 1999, well within the statute of limitations
period, Choe booked a flight from Korea. He was stopped at
the airport and prevented from boarding. His passport was
confiscated and he was questioned by Korean authorities
regarding his lobbying activities and alleged bribe to Officer
Jeon. He was interrogated again later that month. Some two
months later, Choe left Korea without a passport and without
informing the Korean government of his destination. Cf.
Caplan v. Vokes, 649 F.2d 1336, 1341 (9th Cir. 1981) (defen-
dant did not flee from justice because he remained in the
country until the initial investigation was complete and he
subsequently provided the authorities with the address of his
new foreign residence). The magistrate judge did not clearly
err in finding, based on this evidence, that Choe was aware
that he was the subject of a criminal investigation at the time
he left Korea and, consequently, that he did so in order to
avoid being taken into custody.10

   [12] With respect to the second element of fleeing from jus-
tice, the accused commits a “volitional act” of concealment
  10
     We reject Choe’s argument that he could not have had the intent to
avoid prosecution because no charges were pending when he fled Korea.
It is well settled that one can flee from justice for purposes of tolling the
statute of limitations even if no charges are pending at the time of flight.
United States v. Ballesteros-Cordova, 586 F.2d 1321, 1323 (9th Cir. 1978)
(per curiam). Here, Choe knew he was under investigation for serious
crimes when he disappeared.
4608                    CHOE v. TORRES
when he takes “significant affirmative steps to avoid prosecu-
tion.” Fowlie, 24 F.3d at 1072. Here, Choe’s secret flight
from Korea was a “significant affirmative step[ ] to avoid
prosecution.” Id.

   [13] Choe argues that he did not conceal himself because
he lived openly in Los Angeles, operated his business in his
own name and applied for U.S. citizenship. But the fact that
he could have taken additional steps to conceal his where-
abouts does not mean that Choe was not a fugitive from jus-
tice. He may have felt safe enough being thousands of miles
away from the government that was seeking to prosecute him.
In Fowlie, for example, we held that defendant concealed
himself in Mexico from U.S. authorities even though there
was “no evidence that he went out of his way to conceal his
presence.” Id. Choe’s “volitional act[s]” of concealment
occurred when he left Korea clandestinely and placed himself
beyond the jurisdiction of the Korean authorities.

   Choe also argues that the statute of limitations should not
be tolled because the Korean authorities were aware that Choe
applied for citizenship in the United States in 2001, yet did
not request his extradition until 2005. According to Choe, this
demonstrates “inaction or lack of diligence on the part of the
[Korean] government.” To the extent there was a delay, this
is a matter left for the Secretary of State’s consideration. See
Kamrin v. United States, 725 F.2d 1225, 1227 (9th Cir. 1984)
(“The delay may not . . . serve as a defense to judicial extradi-
tion proceedings.”).

  5.   Rule of Specialty

   Article 15 of the Treaty provides that Choe cannot be “de-
tained, tried or punished” in Korea for any offense unless we
“grant[ ]” extradition for that particular offense. Treaty art.
15(1)(a). As only one offense—allegedly bribing Officer Jeon
in violation of the Offering Bribe statute—satisfies all the
                        CHOE v. TORRES                      4609
Treaty requirements, this is the only offense for which certifi-
cation is proper.

                         *     *      *

   [14] We AFFIRM the district court’s order denying habeas
corpus as to the charge that Choe bribed Officer Jeon, but
REVERSE the district court’s denial of habeas corpus as to
the charge that Choe bribed Hwang. On remand, the district
court shall enter an order striking the magistrate judge’s certi-
fication for that offense as a proper basis for extradition, but
shall otherwise continue to deny the petition.

 AFFIRMED in part, REVERSED in part and
REMANDED.
