Shapiro v. Ferrandina, Civ. No. 203.

• Citation: 355 F. Supp. 563
• Decision Date: 31 January 1973
• Docket Number: Civ. No. 203.
• Parties: Samuel SHAPIRO, Petitioner, v. Thomas E. FERRANDINA, United States Marshal for the Southern District of New York, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

355 F. Supp. 563

Samuel SHAPIRO, Petitioner, v. Thomas E. FERRANDINA, United States Marshal for the Southern District of New York, Respondent.

Civ. No. 203.

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

January 31, 1973.

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Nathan Lewin, William Jeffress, Jr., Miller, Cassidy, Larroca & Lewin, Washington, D. C., for petitioner; Leon Wildes, New York City, of counsel.

Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., New York City, by Michael B. Mukasey, Asst. U. S. Atty., for respondent.

GURFEIN, District Judge.

In extradition proceedings brought by the Government of Israel the petitioner has been found by a District Judge of this Court, Judge Milton Pollack, sitting as a committing Judge under the provisions of 18 U.S.C. § 3184, to be extraditable to Israel in accordance with the Convention on Extradition between the Governments of the United States of America and the State of Israel, 14 U. S.T. 1708-14, T.I.A.S. No. 5476 December 10, 1962. Judge Pollack wrote a lucid and comprehensive opinion on the matter. In re Shapiro, 352 F.Supp. 641 (S.D.N.Y.1973).

The petitioner now brings a petition for a writ of habeas corpus for his discharge from custody.

While it is unusual for one District Judge to be required to review the action of another District Judge, there is no escape from the necessity to do so in extradition proceedings, in a case where the District Judge acted under 18 U.S.C. § 3184 as a committing magistrate. Since there is no direct appeal from the order of the committing Judge, Jiminez v. Aristeguieta, 290 F.2d 106 (5 Cir. 1961), the only review available is by habeas corpus, and the Judge from whom such relief is to be sought is a Judge of coordinate jurisdiction who sits as a reviewing court under familiar principles.

These principles of review require that the habeas corpus proceeding should not be a rehearing. "Habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). The entire record in the extradition proceeding is now in evidence here. The petitioner raises contentions with respect to each category of permissible review.

Before considering these matters the status of the petitioner at this stage of the extradition should be reviewed.

A warrant of arrest was issued by Judge Motley of the Southern District of New York. The Marshal for this District apprehended the petitioner in Brooklyn at his residence in the Eastern District of New York. The petitioner was brought to the Southern District. He was already on bail in an immigration proceeding in the amount of $30,000. Judge Pollack, sitting in the Miscellaneous Part in the absence of Judge Motley, fixed additional bail in the amount of $25,000 and released the petitioner pending a hearing which he later conducted himself. After Judge Pollack had rendered his opinion he ordered the petitioner remanded to the custody of the Marshal but stayed the order for ten days.

When the habeas corpus matter came on before me the petitioner was still at liberty under bond.

I

The threshold question is whether a District Court can entertain a petition for habeas corpus in extradition when the petitioner is not in actual confinement. I raised the question sua sponte but the Government does not press the point. The petitioner urges strongly that it is no longer necessary for him to surrender in order to go free. And although the habeas corpus statute, 28 U. S.C. § 2241 still speaks of "a prisoner" who is "in custody" the meaning has been liberalized to the exclusion of literalism. The Supreme Court in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) held that a prisoner on parole was "in custody". In the language of Mr. Justice Black, "It the Great Writ is not now and never has been a static, narrow formalistic remedy; its scope has grown to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty." And it was logical, then, for the Court of Appeals for the Fifth Circuit to say that an applicant free on bond also satisfies the "in custody" requirement. Marden v. Purdy, 409 F.2d 784, 785 (5 Cir. 1969). See also United States ex rel. Smith v. Di Bella, 314 F. Supp. 446 (D.Conn.1970); Duncombe v. State of New York, 267 F.Supp. 103, 109 (S.D.N.Y.1967). So too, a detainer lodged in a jail for future transfer of the prisoner to the detaining authority constitutes sufficient "custody" to make habeas corpus available. United States ex rel. Meadows v. State of New York, 426 F.2d 1176, 1179 (2 Cir. 1970).

There is no reason why the modern liberal trend should not apply in international extradition, particularly since habeas corpus is the only remedy available. That, indeed, may have been the pragmatic sanction for the courts which have considered petitions for habeas corpus in international extradition where the petitioner was on bail at the time of the habeas corpus hearing. See, e. g. Jiminez v. Aristeguieta, 314 F.2d 649 (5 Cir. 1963); United States ex rel. Eatessami v. Marasco, 275 F.Supp. 492 (S.D.N.Y.1967). I conclude that the remedy of the writ is available to the petitioner without a symbolic entry into a cell.

II JURISDICTION

By a strange quirk of circumstance the discussion above gives focus to the attack on the jurisdiction of the Southern District of New York, as will appear. The petitioner contends that the only federal district court which has jurisdiction over this extradition proceeding under 18 U.S.C. § 3184 is the Eastern District of New York.

The petitioner was arrested at his home in Brooklyn, New York which is in the Eastern District. He was taken to the Federal Detention Center in the Southern District pursuant to the warrant of arrest issued in the Southern District. The complaint by the Assistant United States Attorney of the Southern District recited inter alia "that the said Samuel Shapiro has sought asylum within the jurisdiction of the United States and may be found in the State of New York and the City of New York, in the Borough of Brooklyn, at 5612-12th Avenue." The petitioner moved in timely manner to dismiss the complaint upon the ground that there was no jurisdiction in the Southern District but that sole jurisdiction lay in the Eastern District.

He argues that (1) the term "found" as used in 18 U.S.C. § 3184 limits jurisdiction over international extradition proceedings to the federal district where a fugitive is actually apprehended; (2) the complaint failed to allege that the petitioner was in the Southern District, and since the complaint was jurisdictionally deficient facts discovered at the bail hearing could not cure the deficiency; and (3) in any event, upon his arrest in Brooklyn the petitioner should have been brought to the Eastern District for further proceedings upon the warrant.

There is no compelling precedent that requires the word "found" to be limited only to "apprehended" or "arrested" as the petitioner contends. While it is true that a fugitive arrested in a particular district is "found" in that district there is no reason why he cannot also be "found" in a district with which his contacts are particularly strong.

As a matter of fact the Judge who signs the warrant of arrest which starts the extradition proceeding does not know where the fugitive will actually be found. It can hardly be fatal to a treaty arrangement between two high contracting parties that it turns out that the fugitive is actually found in a district other than the district from which the warrant issued.

Nor is there any sensible argument of due process that requires the description of the fugitive's residence to be exact. Often fugitives, by their very character as fugitives, shift from place to place.

Assuming then that the address in Brooklyn was unnecessary to the validity of the warrant, and was to that extent surplusage, the next question is whether the petitioner can be said to have been "found" in the Southern District. As we have seen, the warrant will often precede the actual "finding" of the fugitive. If that is so there must inevitably be a reference to facts learned after the warrant has issued in determining where the fugitive was "found".

In this case the petitioner was on bail from the Immigration Service in Manhattan. It is to that office he had to report. If he was sufficiently "in custody" of the Court to support a petition for a writ of habeas corpus because he was enlarged on bail, he was as surely in the custody of the Immigration Service, from which he had also been enlarged on bail. Had he not been bailed he would have been physically confined in the Immigration Service custody whose detention facility is in the Southern District. His enlargement on bail still left him as a person to be "found" in this District.

The petitioner relies on Pettit v. Walshe, 194 U.S. 205, 24 S.Ct. 657, 48 L.Ed. 938 (1904) as requiring that the petitioner should have been brought before a Judge of the Eastern District. But Pettit involved a situation where the warrant was issued out of the Southern District of New York to a Marshal in Indiana who attempted to bring the fugitive back to New York on the Southern District warrant. The Supreme Court emphasized, in holding that the fugitive could not be brought to New York, that the crime charged had to be on such evidence of criminality as would justify his commitment for trial in the place in which he was found. The Court noted that since the laws of the various States of the Union differed, the extraditee had the right to be judged by State law in the place where he was found.

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