1976 WL 192488 (4th Cir.)

For opinion see 542 F.2d 1247

Briefs and Other Related Documents

United States Court of Appeals, Fourth Circuit.

Franklyn PEROFF,

v.

I. G. HYLTON, United States Marsl,

and

Edward Levi Attorney General of the United States,

and

Henry Kissinger, Secpetary of State.

No. 76-1562.

August 3, 1976.

Reply Brief

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

Philip Wilens, Chief, Government Regulations and, Lafor Section, James P. Norris, Attcrney, Department of justice, Washington, D. C. 20530. Murray R. Stein, Attorney, Department of Justice, Washington, D. C. 20500, (202) 739- 2665.

*i TABLE OF CONTENTS

ARGUMENTS

I. AN EXTRADITION MAGISTRATE'S RESPONSI-BILITY IS CONFINED TO LIMITED AREAS AND A FUGITIVE'S DEFENSES ARE SEVERELY RESTRICTED ... 1

II. PETITIONER-APPELLANT'S IDENTITY HAS BEEN ESTABLISHED ... 10

III. PETITIONER-APPELLANT'S PRIOR AGREEMENT WITH THIS GOVERNMENT, ASSUMING ARGUENDO IT IS IN FORCE, IS NOT APPLICABLE TO THIS CASE ... 11

CONCLUSION ... 13

ADDENDA

Note: Table of Contents page numbers missing in original document

TABLE OF AUTHORITIES

Cases:

Application of Jackson, 338 F. Supp. 1225 (W.D. Tenn., 1971) ... 11

Benson v. McMahan, 127 U.S. 463 (1888) ... 3

Bingham v. Bradley, 241 U.S. 511 (1916) ... 5, 10

Bonaventura v. United States, 55 F.2d 833 (C.A. 9, 1932) ... 11

Charlton v. Kelly, 299 U.S. 447 (1913) ... 5, 6, 7

Collins v. Loisel, 259 U.S. 309 (1922) ... 2, 5, 7, 9

Desmond v. Eggers, 18 F.2d 503, 505 (C.A. 9, 1927), motion to stay execution denied 274 U.S. 722 (1927) ... 6

Ex Parte La Mantia, 206 F. 330 (S.D.N.Y. 1913) ... 4

Factor v. Laubenheimer, 290 U.S. 276 (1933) ... 4, 8

Fernandez v. Phillips, 268 U.S. 311 (1925) ... 2, 3, 10

First City National Bank v. Aristeguieta, 287 F.2d 219 (C.A. 2, 1960) ... 4, 5

Geisser v. United States, 513 F.2d 862 (C.A. 5, 1975) ... 13

*ii Glucksman v. Henkel ex rel. Rauch 221 U.S. 503 (1911) ... 3, 10

Greci v. Berkness, 527 F.2d 956 (C.A. 1, 1976) ... 3

Grin v. Shine, 187 U.S. 181 (1902) ... 4

Horner v. United States, 143 U.S. 207 (1891) ... 11

In Re Chan Kam Shu, 477 F.2d 333 (C.A. 5, 1973), certiorari denied 414 U.S. 847 (1973) ... 4

In Re Cienfuegos, 62 Fed. 972 (N.D. Cal, 1894) ... 8

In Re Neely, 130 F. 628 (C.A. S.D.N.Y., 1900) affirmed 180 U.S. 126 (1901) ... 4

In Re Ryan, 360 F. Supp. 270 (E.D.N.Y., 1973), affirmed 478 F.2d 1387 (C.A. 2, 1973) ... 2

In Re Shapiro, 352 F. Supp. 641 (S.D.N.Y., 1973) ... 5, 7

In Re Wadge, 15 F. 864 (S.D.N.Y. 1883), affirmed 16 F. 332 (C.C. S.D.N.Y. 1883) ... 6, 7

Jhirad v. Ferrandina, F.2d (C.A. 2, 1976) ... 7, 8

Jhirad v. Ferrandina, 377 F. Supp 34 (S.D.N.Y., 1974) ... 5

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

Kelly v. Griffin, 241 U.S. 6 (1915) ... 3, 9

McNamara v. Henkel, 226 U.S. 520 (1913) ... 10

Merino v. United States Marshal, 326 F.2d 5 (C.A. 9, 1963), certiorari denied, 377 U.S. 997 (1964), rehearing denied 397 U.S. 872 (1964) ... 2, 3

Orteiza y Cortes v. Jacobus, 136 U.S. 330 (1890) ... 5

Rice v. Ames, 180 U.S. 371 (1901) ... 4

Sayne v. Shipley, 418 F.2d 679 (C.A. 5, 1969) certiorari denied 398 U.S. 903 (1969) ... 5, 10

Shapiro v. Ferrandina, 478 F.2d 894 (C.A. 2, 1973), certiorari withdrawn 414 U.S. 484 (1973) ... 3, 5, 6

United States v. Stockinger, 269 F.2d 681 (C.A., 1959), certiorari denied 361 U.S. 913. (1960) ... 3, 9

U.S. ex rel. Bloomfield v. Gengler, 507 F.2d 925 (C.A. 2, 1974) ... 5

U.S. ex rel. Di Stefano v. Moore, 46 F.2d 308 (E.D. N.Y., 1930), affirmed 46 F.2d 310 (C.A. 2, 1930), certiorari denied 283 U.S. 830 (1930) ... 9

U.S. ex rel. Sakaguchi v. Kaulukuki, 520 F.2d 726 (C.A. 9, 1975) ... 3

U.S. ex rel. Klein v. Mulligan, 50 F. Supp. 635 (S.D. N.Y. 1931), affirmed 50 F.2d 1035 (C.A. 2, 1931) ... 3

U.S. ex rel. Petrushansky v. Marasco, 325 F.2d 562 (C.A. 1963) ... 6

Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5 (1936) ... 4

*iii Other:

U.S. Constitution-Fourth, Fifth and Sixth Amendments ... 3

Title 18, United States Code, Section 3184 ... 2

Federal Rules of Criminal Procedure ... 3

Federal Rules of Evidence ... 3

6 Whiteman Digest of International Law ... 7

*1 ARGUMENT

I. AN EXTRADITION MAGISTRATE's RESPONSIBILITY IS CONFINED TO LIMITED AREAS AND A FUGITIVE'S DEFENSES ARE SEVERELY RESTRICTED

Petitioner-appellant alleges that the documentary proof admitted into evidence on behalf of the Government of Sweden is insufficient to establish probable cause to believe an offense of fraud was committed by the petitioner-appellant. *2 The documentary evidence, which shows the petitioner-appellant obtained 1,000,000 Swedish crowns in exchange for worthless stock, includes statements under oath from a Swedish banker, who was convicted as a result of his participation in the fraud, that directly implicate and accuse the petitioner-appellant as the perpetrator of the fraud. Also included are statements under oath from "go betweens" and lenders that fully support the banker's charges. In any event, this Court cannot review findings of fact made by an extradition magistrate. Actually, petitioner-appellant desires that an extradition finding be based upon evidence that establishes guilt beyond a reasonable doubt.

In extradition proceedings held pursuant to Title 18, United States Code, Section 3184, "the function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction." Collins v. Loisel, 259 U.S. 309, 316 (1922). See also, Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Jimenez v. Aristeguieta, 311 F.2d 547, 562 (C.A. 5, 1962); Merino v. United States Marshal, 326 F.2d 5, 11 (C.A. 9, 1963), certiorari denied, 377 U.S. 997 (1964), rehearing denied, 397 U.S. 872 (1964); *3In Re Ryan, 360 F. Supp. 270, 273 (E.D.N.Y. 11973), affirmed 478 F.2d 1387 (C.A. 2, 1973) As the Ninth Circuit recently restated in clear and precise language in United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 730-731 (C.A. 9, 1975): " 'A magistrate's function is to determine whether there is 'any' evidence sufficient to establish reasonable or probable cause, Fernandez v. Phillips, supra, 268 U.S. at 311, 45 S. Ct. 451...' Shapiro v. Ferrandina, supra, pp. 904-905 and 913-914." Thus whether the evidence is sufficient to convict the fugitive is not a question for this Court to decide, but one for the Swedish courts to determine. Kelly v. Griffin, 241 U.S. 6, 15 (1915).

Obviously an extradition hearing is therefore, not a criminal proceeding. Benson v. McMahon, 127 U.S. 463 (1888); U.S. ex rel. Klein v. Mulligan, 50 F. Supp. 635, 636 (S.D.N.Y. 1931), affirmed 50 F.2d 1035 (C.A. 2, 1931). Thus the fugitive is not entitled to all the niceties of a criminal trial at common law, Glucksman v. Henkel ex rel. Pauch, 221 U.S. 503, 512 (1911); United States v. Stockinger, 269 F.2d 681, 687 (C.A. 2, 1959), certiorari denied 361 U.S. 913. The Federal Rules of Criminal Procedure do not apply. Rule 54(b)(5), F.R. Crim. P.; Rule 1101, Federal Rules of Evidence; Greci v. Berkness, 527 F.2d 956, 958 (C.A. 1, 1976); Merino v. U.S. Marshal, supra, 326 F.2d at 12. The Fourth, Fifth and Sixth *4 amendments to the United States Constitution are inapplicable to extradition proceedings insofar as requiring an indictment and giving the accused the right tobe confronted with the witnesses against him, Ex Parte La Mantia, 206 F. 330 (S.D. N.Y. 1913); In re Neeley, 130 F. 626, 628 (Circuit Court, S.D.N.Y. 1900), affirmed 180 U.S. 126 (1901).

It has been clearly established by our courts that extradition treaties are to be most liberally interpreted to effect the purpose of the treaties, i.e., the surrender of fugitives so that they can be tried for alleged offenses. Factor v. Laubenheimer, 290 U.S. 276, 293 301 (1933); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936); Rice v. Ames, 180 U.S. 371, 374 (1901); Grin v. Shine, 187 U.S. 181, 184 (1902); First National City Bank of New York v. Aristeguieta, 287 F.2d 219, 226 (C.A. 2, 1960). In order to carry out a treaty obligation, the obligation "should be construed more liberally than a criminal statute or the technical requirements of criminal procedure", Factor v. Laubenheimer, supra, 290 U.S. at 298; In Re Chan Kam-Shu, 477 F.2nd 333, 338 (C.A. 5, 1973), certiorari denied 414 U.S. 847. In fact, defenses against extradition which "savor of technicality" should be rejected by a court, as they are peculiarly inappropriate in dealings with a foreign nation. *5 Bingham v. Bradley, supra, 241 U.S. at 517; Shapiro v. Ferrandina, 478 F.2d 894, 904, (C.A. 2, 1973), certiorari withdrawn 414 U.S. 484(1973); U.S. ex rel. Bloomfield v. Gengler, 507 F.2d 925 (C.A. 2, 1974).

Thus, the advantages of introducing into evidence certified and authenticated documents containing ex parte depositions, pursuant to the provisions of 18 U.S.C. 3190, are not available to the fugitive. Orteiza y Cortes v. Jacobus, 136 U.S. 330, 337 (1890); First National City Bank v. Aristeguieta, supra, 287 F.2d at 226. Discovery is restricted to avoid having a full hearing on the merits, Jhirad v. Ferrandina, supra, 377 F. Supp. at 36. Therefore, "the procedure frame-work of international extradition gives to the demanding country advantages most uncommon to ordinary civil and criminal litigation," First National City Bank v. Aristeguieta, op cit., 287 F.2d at 226. Also, see Sayne v. Shipley, supra, 418 F.2d at 685. Further, the fugitive, whose grounds for opposition to the extradition request are severely circumscribed, First National City Bank v. Artisteguieta, op cit., 237 F.2d at 227; In Re Shapiro, 352 F. Supp. 641, 645 (S.D.N.Y., 1973), cannot for example (1) introduce evidence which conflicts with the evidence submitted on behalf of the Government of Sweden. Collins v. Loisel, supra, 259 U.S. at 315-317; Charlton v. Kelly, supra, *6 299 U.S. at 447, 457, 461 (1913); nor (2) introduce evidence to establish an alibi, Desmond v. Eggers, 18 F.2d 503, 505 (C.A. 9, 1927), motion to stay execution denied 274 U.S. 722 (1927); In Re Wadge, 15 F. 864, 866 (S.D.N.Y., 1883), affirmed 16 Fed. 332 (C.C. S.D.N.Y., 1883); Shapiro v. Ferrandina, supra, 476 F. 2d at 901; nor (3) introduce evidence to establish insanity, Collins v. Loisel, supra; Charlton v. Kelly, supra, 229 U.S. at 457-62; nor (4) introduce evidence to evaluate the credibility of the demanding government's witnesses, Shapiro v. Ferrandina, supra, 478 F.2d at 905. In fact, a fugitive's right to controvert the evidence introduced against him is "limited to testimony which explains rather that contradicts the demanding country's proof...", United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (C.A. 2, 1963). Any statements that would pose a conflict of credibility should be excluded at the extradition hearing and await a challenge at the trial in the demanding country. Shapiro v. Ferrandina, supra, 478 F.2d at 905.

Accordingly, in extradition matters the court can only consider what evidence obliterates probable cause, not what contradicts it. Vagueness of testimony is for the trial court in the foreign country. Shapiro v. Ferrandina, supra 355 *7 F. Supp. at 572; Collins v. Loisel, supra, 259 U.S. at 316. Also, see 6 Whiteman, Digest of International Law, 999-10003. Thus an extradition proceeding is not a full trial on the merits. Charlton v. Kelly, supra, 219 U.S. at 461. The only issue is probable cause. "Order(s) of extradition are sui generis. They embody no judgment on the guilt or innocence of the accused but serve only to insure that his culpability will be determined in another, and in this instance, a foreign forum", Jhirad v. Ferrandina,_F.2d_(C.A. 2, 1976) (copy previously submitted to this Court). [FN1]

FN1. Petitioner-appellant's counsel filed a motion to amend the record. Even if appropriate, Addenda 1 and 2 clearly demonstrate the fruitlessness and inaccuracy of the contentions.

In In Re Wedge, supra, quoted with approval by Mr. Justice Brandeis for the court in Collins v. Loisel, supra, the defendant's attempt to introduce certain rebuttal evidence brought this response:

"If this were recognized as the legal right of the accused in extradition proceedings, it would give him the option of insisting upon a full hearing and trial of his case here; and that might compel the demanding government to produce all its evidence here, both direct and rebutting, in order to meet the defense thus gathered from every quarter. The result would be that the foreign government, though entitled to the extradition of *8 the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, under all the disadvantages of such a situation, and could not obtain extradition until after it had procured a conviction of the accused upon a full and substantial trial here. This would be in plain contravention of the intent and meaning of the extradition treaties..."

In In Re Cienfuegos, 62 Fed. 972 (N.D. Cal. 1894), the court, in committing the accused, Cienfuegos, for extradition on the charge of attempting to commit murder, stated:

"...His justification - that he was merely acting in obedience to the orders of his superior officers in protecting the life of Casin - cannot here be considered. What that defense would amount to upon the trial of the case in Salvador cannot now be determined, nor is it necessary. The fact that he fired the shots in defense of him-self and Casin is obviously a matter of defense, to be presented in the tribunals of the republic of Salvador upon a full hearing of the case, where all the witnesses of the affair may be secured..."

In Jhirad v. Ferrandina, supra, _F.2d_ (C.A. 2, 1976) the court stated:

It is well to remember that Jhirad's ultimate culpability will not be determined in the United States. It is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another soverign nation. Such an assumption would directly conflict with the principle of comity upon which extradition is based. Factor v. Laubenheimer, 290 U.S. 276 (1933).

*9 Therefore, this Court should deny any attempt by the fugitive to present evidence before any court that seeks to establish an alibi; that conflicts with that submitted in behalf of the Government of Sweden; that challenges the credibility of Swedish deponents; and that does other than explain the evidence submitted.

The Government of Sweden does not even have to prove that its crimes are identical to ours, Kelly v. Griffin, supra, 241 U.S. at 15. As the Supreme Court said in Collins v. Loisel, supra, 259, 259 U.S. at 312:

The law does not require that the name by which the crime is described in the two countries shall be the same nor that the scope of liability shall be coextensive, or, in other respects, the same in both. It it enough if the particular act charged is criminal in both jurisdictions.

The crimes charged herein are criminal in both countries and are enumerated by the applicable treaties. Thus, "it is immaterial that the acts in question constitute the crime of theft and fraud in Canada and the crime of larceny in [the United States]. It is enough if the particular acts charged are criminal in both jurisdictions," U.S. v. Stockinger, supra, 269 F.2d at 687. Also U.S. ex rel. Di Stefano v. Moore, 46 F.2d 308, 309 (E.D.N.Y., 1930), affirmed 46 F.2d310 (C.A. 2, 1930), certiorari denied 283 U.S. 830.

*10 II. PETITIONER-APPELLANT'S IDENTITY HAS BEEN ESTABLISHED

As previously stated, reviews of habeas corpus denials are strictly limited. Bingham v. Bradley, supra, 241 U.S. at 516, 517; McNamara v. Henkel, supra, 226 U.S. at 523; Fernandez v. Phillips, 268 U.S. at 316; Sayne v. Shipley, supra, 418 F.2d at 185. Assuming arguendo that the question of the petitioner-appellant's identity is before this Court, we contend that it was established beyond doubt in the documents entered into evidence in the court below. Among other evidence is the fact that the number of the United States passport used in Sweden proved to be the same number assigned to the petitioner-appellant. Further, petitioner by his own testimony (see p. 18 of his brief) admitted that the stock in question was his and that his signature appears on the back of every stock certificate. Additionally, he never denied that he was the individual being sought by Swedish authorities. Therefore, there is no basis upon which this Court could find that the court below lacked sufficient basis to determine that the identity of the petitioner-appellant had been established. See Glucksman v. Henkel ex rel. Rauch, 221 U.S. 508, 513 (1911).

As this Court is aware, in interstate rendition proceedings, it has been held that whether identity of a fugitive has *11 been established is a question of fact not subject to review in habeas corpus proceedings. Horner v. United States, 143 U.S. 207, 215. (1891); Bonaventura v. United States, 55 F.2d 833, 834 (C.A. 9, 1932); Application of Jackson, 338 F. Supp. 1225 (W.D. Tenn., 1971).

III. PETITIONER-APPELLANT'S PRIOR AGREEMENT WITH THIS GOVERNMENT, ASSUMING ARGUENDOIT IS IN FORCE, IS NOT APPLICABLE TO THIS CASE

Petitioner-appellant apparently seeks to confuse and mislead this Court as to his agreement with this Government and to the provisions in the said agreement. Respondents-appellees assert that they are no longer required to provide protection to the petitioner-appellant and that they are under no present requirement to perform any act in connection with the said agreement. [FN2] Assuming arguendo that such agreement requires additional action by this Government, it, as Judge Clark found, would in no manner whatsoever, affect the decision in this case, i.e., to surrender Franklyn Peroff to agents of Sweden.

FN2. Attached as Addendum 3 is a copy of an affidavit of Joseph Robinson, Deputy United States Marshal, Eastern District of Virginia, and a copy of an affidavit from Gerald Shur, Criminal Division, Department of Justice, which discuss this point in greater detail, which is attached as Addendum 2

*12 An agreement to protect an individual from possible attack because of alleged testimony against his probable attackers surely does not extend to the point of concealing him from legitimate prosecutive authorities, especially those from foreign nations to which we have treaty obligations. To do so would not only be in violation of our solemn treaty obligations but, certainly, be contrary to public policy.

In any event, petitioner-appellant, who alleges fear for his life if extradited or if his identity is revealed, obtained release from custody in this case in order to conduct his family business operations in this area; has chosen to remain living in the same place he had been residing when he signed the said agreement with this Government; twice filed a complaint against this Government in the United States District Court for the District of Columbia earlier this year; telephonically advised an unknown F.B.I. agent of his assumed identity and whereabouts; [FN3] and wrote a book about himself. In fact, petitioner-appellant never performed a service as a result of this said agreement, nor, were his services ever requested.

FN3. See Addendum 2 of this brief.

*13 Petitioner-appellant alleges that Geisser v. United States, 513 F.2d 862 (C.A. 5, 1975), is directly applicable to this situation. Unfortunately, he has completely misread the decision. In Geisser, the court of appeals remanded the case to the district court to ascertain whether the Department of Justice had used its best efforts with the Department of State to avoid the extradition of the fugitive, but only because the fugitive and the Department of Justice had an agreement which required such action. No such agreement exists in this case, no matter what the petitioner-appellant may contend. In any event, the Fifth Circuit did not state that extradition of Geisser could not occur.

CONCLUSION

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

Appendix not available.

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