Peroff v. Hylton

1976 WL 192487 (4th Cir.)

For opinion see 542 F.2d 1247

Briefs and Other Related Documents

United States Court of Appeals, Fourth Circuit.

Franklyn PERCFF,

I. G. HYLTON, United States Marshal,

and

Edward Levi, Attorney General of the United States,

and

Henry Kissinger, Secretary of State.

No. 76-1562.

August 16, 1976.

Brief for Respondents-Appellees

Of Counsel, William B. Cummings, United States Attorney, Eastern District of Virginia, Elsie Powell, Assistant United States Attorney, Eastern District of Vriginia.

Philip Wilens, Chief, Government Regulations and, Labor Section, Criminal Division, James P. Morris, Attorney, Department of Justice, Washington, D. C. 20530, Murray R. Stein, Attorney, Department of Justice, Washington, D. C. 20530, (202) 739-2665.

*i TABLE OF CONTENTS

Questions Presented ... 1

Counterstatement of the Facts ... 2

Argument

I. PETITIONER-APPELLANT IS AMENABLE TO SURRENDER TO AGENTS OF SWEDEN, MAKING HIS APPEAL MOOT ... 6

II. THERE IS NO BASIS FOR THIS COURT TO REVIEW THE DECISION OF THE COURT BELOW, ASSUMING ARGUENDO THAT THIS COURT HAS JURISDICTION TO CONSIDER THIS APPEAL ... 10

Conclusion ... 13

Addenda

TABLE OF AUTHORITIES

Cases:

Bingham v. Bradley, 241 U.S. 511 (1916) ... 11

Collins v. Loisel, 259 U.S. 309 (1922) ... 10

Collins v. Miller, 252 U.S. 364 (1920) ... 6

Commissioner of Internal Revenue v. Shapiro, _U.S._ (No. 74-744, March 8, 1976, pp. 6-7) ... 8

Factor v. Laubenheimer, 290 U.S. 276 (1933) ... 9, 10

Fernandez v. Phillips, 268 U.S. 311 (1925) ... 10, 11, 12

Greci v. Berkness, 527 F.2d 956 (C.A. 9, 1976) ... 12

Grin v. Shine, 187 U.S. 181 (1902) ... 11

Jhirad v. Ferrandina, F.2d (C.A. 2 No. 75-2102, April 17, 1976) ... 9, 12

Jimenez v. Aristeguieta, 290 F.2d 106 (C.A. 5, 1971) ... 7

McNamara v. Henkel, 226 U.S. 520 (1913) ... 11

Ornelas v. Ruiz, 161 U.S. 502 (1896) ... 11

Rice v. Ames, 180 U.S. 371 (1901) ... 10

Sayne v. Shipley, 418 F.2d 679 (C.A. 5, 1969) certiorari denied 398 U.S. 903 ... 7, 11

Shapiro v. Secretary of State, 499 F.2d 527 (C.A.D.C.) aff'd Commissioner of Internal Revenue v. Shapiro, U.S. (No. 74-744, March 8, 1976, pp. 6-7) ... 7, 8, 12

*ii Terlinden v. Ames 184 U.S. 270 (1902) ... 11

U.S. v. Curtis Wright Export Corp. 299 U.S. 304 (1936) ... 8

U.S. ex rel. Bloomfield v. Gengler, 507 F.2d 925 (C.A. 2, 1974 ... 12

U.S. ex rel. Sakaguchi v. Kaulukuki, 520 F.2d 726 (C.A. 9, 1975) ... 12

Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5 (1936) ... 10

Wacker v. Bisson, 348 F.2d 602 (C.A. 5, 1965) ... 11

Statutes:

18 U.S.C. 3184 ... 2, 4, 5, 6, 7

18 U.S.C. 3186 ... 4, 5, 7, 10

18 U.S.C. 3190 ... 2, 4

Other:

United States-Sweden Extradition Treaty, 14 U.S. 1845 ... 2, 5, 6, 7

6 Whiteman Digest of International Law ... 7

Federal Rules of Appellate Procedure ... 9

*1 QUESTIONS PRESENTED

1. Whether this Court has jurisdiction to review an action of the United States Secretary of State acting in his capacity to conduct the foreign affairs of this country.

2. Whether under the strictly defined and limited scope of review of findings of extraditability the petitioner-appellant has presented this Court with a basis for reversing the decision for extradition.

*2 COUNTERSTATEMENT OF THE FACTS

On February 18, 1976, the United States Attorney for the Eastern District of Virginia filed a complaint before the court below pursuant to Title 18, United States Code, Section 3184 and Article XI of the Extradition Convention and Protocol Between the United States of America and Sweden, 14 U.S.T. 1845, and requested, under the authority of Article XII, Paragraph 1 of the Treaty, the issuance of a warrant in order that extradition proceedings could commence against the petitioner-appellant. The court authorized the issuance of a warrant and petitioner-appellant was arrested within the Eastern District of Virginia. Thereafter, extradition hearings were held pursuant to Title 18, United States Code, Section 3184 in which the formal Swedish documents, as required by Article XI, Paragraphs 1(b), 2, and 3, were entered into evidence pursuant to the provisions of Title 18, United States Code, Section 3190, as they were duly certified and authenticated.

The formal extradition documents established that petitioner-appellant is charged with having committed in the spring and summer of 1972 in Gothenburg and Boras, Sweden the offense of gross fraud. Specifically he is accused of fraudulently obtaining 1,000,000 Swedish crowns (worth approximately $250,000) from Swedish citizens. Chief *3 Judge Elander of the Gothenburg District Court on February 13, 1975, declared him a suspected violator of Chapter 9, Paragraph 3of the Swedish Penal Code and ordered his arrest. If convicted, the petitioner-appellant can receive a sentence not to exceed six years.

In brief, the petitioner-appellant has been accused of obtaining loans from Swedish citizens through the assistance of a Swedish banker, Bengt Mattsson, by offering shares of stock in a United States company as collateral. Although he stated that the stock had a value of somewhere between $6 and $9 a share, it was actually worthless. He misled the lenders into believing that the shares being used for collateral were shares of A.I.D., Inc. [American International Development, Inc.], whereas, in truth and in fact, they actually were shares in American International Distributors, Inc. The fraud was not discovered until the loans came due.

To support its requisition for surrender, the Government of Sweden's documents included, but were not limited to, copies of the charges; the warrant of arrest; statements from the banker Mattsson, convicted in January 1975 for violating Swedish banking laws as a result of his participation in the fraud, that directly implicate and accuse the petitioner-appellant as the perpetrator of the fraud; statements from "go-betweens" and the lenders which support Mattsson's *4 declarations; and extracts from trial testimony. Also supplied to the court, and admitted into evidence, were copies of the pertinent extradition treaty which were attached to an affidavit from the Office of the Legal Adviser, Department of State, executed on February 11, 1976, along with a copy of the diplomatic note from the Embassy of Sweden requesting the petitioner-appellant's surrender for extradition. Additionally, the court entered into evidence a copy of the petitioner-appellant's passport file. During the extradition proceedings, the petitioner-appellant, while on the stand admitted, among other things, that the stock presented to the Swedish lenders did belong to him, and that his signature is on the backs of the certificates.

Following a review of the documents admitted into evidence, the applicable provisions and requirements of Title 18, United States Code, Sections 3184 and 3190, the treaty of extradition between the United States and Sweden, and the pertinent decisions of the Federal courts of the United States, Judge Clarke found petitioner-appellant extraditable to Sweden on February 23, 1976, and ordered him kept in custody pending required action by Secretary of State Kissinger, pursuant to Title 18, United States Code, Sections 3184 and 3186. A copy of that order is attached.

Subsequently petitioner-appellant, before Secretary Kissinger had acted, filed a petition for a writ of habeas *5 corpus. Pursuant thereto Judge Bryan entered an order on March 17, 1976, staying further action pending a hearing on the petition. On March 22, 1976, Judge Clarke, following a hearing, denied for good cause shown all requests for any continuance or further stay pending appeal. Further, he found that habeas corpus petitions challenging a finding of extraditability are strictly limited, citing pertinent court decisions. Additionally, he could find no merit in the petition. Therefore, Judge Clarke entered an order denying the petition. A copy of that order is attached.

Later petitioner-appellant filed notice of an appeal to this Court. Thereafter, he sought, and was granted, bond by Judge Wartiner on April 2, 1976 for the first time since his arrest. In the meantime, the Secretary of State, pursuant to his treaty responsibilities and statutory obligations, and fully aware of the status of the extradition proceedings, executed the Surrender Warrant on April 8, 1976, authorizing agents to be appointed by the Government of Sweden to take custody of the petitioner-appellant under Title 18, United States Code, Sections 3184 and 3186, as well as Article VII of the extradition treaty with Sweden. The Surrender Warrant was formally presented to the Embassy of Sweden on April 14, 1976, by the Legal Adviser's Office, Department of State. Swedish authorities then designated *6 agents to take custody of the petitioner-appellant andproposed a surrender date.

On April 30, 1976, respondents-appellees' motion to revoke bond so that surrender could occur while petitionerappellant was in confinement was denied by Judge Bryan, who did not state the reasons for his decision.

Respondents-appellees then filed a motion with this Court for summary dismissal of the petitioner-appellant's appeal, or, in the alternative, for summary affirmance of the order of the court below. On July 7, 1976, this Court denied respondents-appellees' motions, directed that petitioner-appellant not be surrendered to Swedish agents by the United States Marshal pending the outcome of his appeal, and ordered an expedited appeal.

ARGUMENT

I. PETITIONER-APPELLANT IS AMENABLE TO SURRENDER TO AGENTS OF SWEDEN, MAKING HIS APPEAL MOOT

Pursuant to the provisions of the extradition treaty in force between the United States and Sweden (14 U.S.T. 1845) and the requirements of 18 U.S.C. 3184, petitioner-appellant was found extraditable to Sweden. Subsequently, he unsuccessfully sought a reversal of that finding through habeas corpus, as direct appeals are not permissible to test findings of extraditability. Collins v. Miller, 252 U.S. 364, 369 (1920); *7 Shapiro v. Ferrandina, 478 F.2d 894, 901 (C.A. 2, 1973), certiorari withdrawn 414 U.S. 484 (1973); Jimenez v. Aristequieta, 290 F.2d 106, 107 (C.A. 5, 1961); Sayne v. Shipley, 418 F.2d 679, 685, certiorari denied 398 U.S. 903 (1970).

Additionally, at the habeas corpus hearing, the court below denied a motion for a continuance, dismissed the petition because it lacked merit, and vacated the stay granted pending the hearing. By declining to authorize a stay, the court below divested itself of jurisdiction in that it denied the petition for habeas corpus. Nevertheless, petitioner-appellant failed to seek a stay from this Court. Mere notice of an appeal cannot prevent further action to complete the extradition process. Thus, in the absence of a stay, it was proper for the Secretary of State, pursuant to his statutory (18 U.S.C. 3184, 3186) and treaty (14 U.S.T. 1845) obligations, to consider execution of a warrant of surrender. 6 Whiteman, Digest of International Law 1071.

Thus, the Secretary of State, upon review of the extradition documents, the testimony in court, the findings of the court below (See 18 U.S.C. 3184), and the order denying the petition for habeas corpus, as well as consideration of personal appeals from petitioner-appellant's family, with full knowledge that a stay had been denied by the district court and not sought in this Court, exercised his discretion under Article VII of the applicable treaty and executed a *8 Surrender Warrant for the petitioner-appellant. Then, with notification to petitioner-appellant, the Legal Adviser, Department of State, forwarded the Surrender Warrant to representatives of the Government of Sweden by presenting it to the Embassy of Sweden in Washington, D. C. Arrangements were then made by the Swedish Government to obtain custody of the petitioner-appellant, which included the naming of Swedish detectives as agents to arrange the transfer of custody and the proposal of a tentative surrender date.

When extradition cases reach that advanced posture, courts of the United States lack jurisdiction to consider further action by a fugitive because to do so would be interference with the foreign relations of the United States. Shapiro v. Secretary of State, 499 F.2d 527, 530-531 (C.A. D.C., 1974), affirmed Commissioner of Internal Revenue v. Shapiro, __U.S.__ (No. 74-744 March 8, 1976, pp. 6-7). Copy appended. Also, see United States v. Curtis Wright Export Corp., 299 U.S. 304 (1936). The District of Columbia Circuit Court in Shapiro at 530-531 stated the law precisely:

[B]ecause the Secretary of State has signed a valid warrant of extradition, the District Court properly concluded that it lacked jurisdiction to enjoin appellant's extradition. Subject to judicial determination of the applicability of the existing treaty obligation of the United States to the facts of a given case; extradition is ordinarily a matter within the exclusive purview of the Executive. *9 This case is now in a similar posture.

Respondents-appellees were not unmindful of Rule 23a of the Federal Rules of Appellate Procedure as it concerns transfer of custody of prisoners during appeals of habeas corpus denials when they motioned this Court for a summary dismissal of the appeal. However, we believe that it is not applicable, nor was it intended to be applicable, to an international extradition matter in that it is directed solely to provide protection to prisoners being held pursuant to the criminal laws of the Federal Government or of any of our several states. Petitioner-appellant is not, and cannot be, considered a prisoner for purposes of this rule. Further, to apply this rule to an international extradition case could readily lead to a frustration of our treaty obligations and indefinite delays in authorized surrenders and cause our country to become a haven for fugitives, the avoidance of which is the very reason why extradition treaties are negotiated. All a fugitive would need do to avoid surrender would be to routinely file a notice of appeal of a denial of a habeas corpus petition. See Factor v. Laubenheimer, 290 U.S. 276, 293, 301 (1933). Also, see Jhirad v. Ferrandina, __F.2d__ (C.A. 2, No. 75-2102, April 12, 1976). Copy appended.

Additionally, we note the Surrender Warrant is no longer under the control of this Government in that it is in the *10 possession of Swedish authorities, who have authority to accept custody of the petitioner-appellant under 18 U.S.C. 3186.

II. THERE IS NO BASIS FOR THIS COURT TO REVIEW THE DECISION OF THE COURT BELOW, ASSUMING ARGUENDO THAT THIS COURT HAS JURISDICTION TO CONSIDER THIS APPEAL

Petitioner-appellant lacks any basis for reversal of the finding of his extraditability. In any review of an extradition finding it is clearly understood by our courts that extradition treaties have to be interpreted liberally in order that the purpose of the treaties, i.e., surrender of fugitives so that they can be tried for alleged offenses, can be accomplished. Factor v. Laubenheimer, supra, 290 U.S. at 293, 301; Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 10 (1936); Rice v. Ames, 180 U.S. 371, (1901).

It has been accepted that a finding of extraditability is to be based upon sufficient evidence to establish probable cause to believe that a crime was committed and the fugitive committed that crime, not upon evidence which would establish that the fugitive is guilty of committing the crime. Factor v. Laubenheimer, supra, 290 U.S. at 291; Fernandez v. Phillips, 268 U.S. 311, 316 (1925); *11Collins v. Loisel, 259 U.S. 309, 316 (1922). Although a finding of extraditability is reviewable by habeas corpus, such review is very limited. Sayne v. Shipley, supra, 418 F.2d at 685. A decision for extradition is proper and a petition for habeas corpus should be dismissed if the extradition judge was authorized to conduct extradition proceedings, if he had jurisdiction over petitioner appellant, if the treaty was in full force and effect, if the crime was covered by the treaty, and if, by a somewhat liberal extension, there was competent legal evidence for his decision. Ornelas v. Ruiz, 161 U.S. 502, 508 (1896); McNamara v. Henkel, 226 U.S. 520, 523 (1913); Bingham v. Bradley, 241 U.S. 511, 516-517 (1916).

"The sufficiency of such evidence to establish the criminality of the accused for the purpose of extradition cannot be reviewed upon habeas corpus," Grin v. Shine, 187 U.S. 181, 192 (1902). Also see, Terlinden v. Ames, 184 U.S. 270, 274 (1902). It has been established that a writ of habeas corpus is not a writ of error or a means of rehearing what other judges have already heard. Fernandez v. Phillips, supra. "Review by habeas corpus...tests only the legality of the extradition proceedings; the question of the wisdom remains for the executive branch to decide," Wacker v. Bisson, 348 F.2d 602, 606 (C.A. 5, 1965). In light of the limited scope of review available, we maintain that petitioner-appellant has no *12 basis to contend that the finding of his extraditability was improper. U.S. ex rel Bloomfield v. Gengler, 507 F.2d 925, 929 (C.A. 2, 1974). There has not been, nor can there be, any contention that the extradition treaty with Sweden is not in full force and effect. There has not been, nor can there be, any contention that the petitioner-appellant has not been charged with an extraditable offense. There has not been, nor can there be, any contention that the statute of limitations has expired. In fact, none of these points have been challenged, even tangentially, by petitioner- appellant. See Shapiro v. Ferrandina, 478 F.2d 894 (C.A. 2, 1973), certiorari withdrawn, 414 U.S. 484 (1973); Jhirad v. Ferrandina, supra; Greci v. Birkness, 527 F.2d 956 (C.A. 1, 1976); U.S. ex rel. Sakaguchi v. Kaulukuki, 520 F.2d 726 (C.A.9, 1975). Although there was an allegation that the decision of the extradition court was not based upon competent legal evidence, such contention lacks merit and is frivolous. This is clearly demonstrated in the order which denied petitioner-appellant's petition for habeas corpus as it states unequivocally that no reviewable issue was raised at the habeas corpus hearing. Thus, the notice of appeal filed by petitioner-appellant appears dilatory and baseless. See Fernandez v. Phillips, supra, 268 U.S. at 312; Shapiro v. Ferrandina, supra, 478 F.2d at 901.

*13 CONCLUSION

For the foregoing reasons, respondents-appellees move this Court to dismiss the appeal.

Appendix not available.

Franklyn PERCFF, v. I. G. HYLTON, United States Marshal, and Edward Levi, Attorney General of the United States, and Henry Kissinger, Secretary of State.