Matter of Assarsson
| Decision Date | 12 May 1982 |
| Docket Number | Misc. No. 4-81-27. |
| Citation | 538 F. Supp. 1055 |
| Parties | In the Matter of the Extradition of Sven Ulf Ingemar ASSARSSON. |
| Court | U.S. District Court — District of Minnesota |
Douglas A. Kelley, Asst. U. S. Atty., Minneapolis, Minn., for United States of America.
Sheldon Davidson, David P. Schippers, Chicago, Ill., William Orth, Friedberg & Peterson, Minneapolis, Minn., for Sven Ulf Ingemar Assarsson.
This matter is before the court pursuant to the objections of petitioner Sven Ulf Ingemar Assarsson to a magistrate's report and recommendation dated March 10, 1982, which recommends that his petition for habeas corpus, seeking relief from an extradition order, be denied.
Sweden seeks the extradition of Assarsson in connection with his alleged complicity in gross arson on September 19, 1975 in Copenhagen, Denmark, and for complicity in gross fraud in Malmo, Sweden, on October 3, 1975. On November 3, 1977, the Malmo District Court, having found grounds to suspect him of those crimes, issued an injunction against his leaving the area without permission from the District Attorney or the District Court and required him to report to the police at certain intervals. His passport was confiscated. Nonetheless, he fled Sweden and came to the United States.
On January 26, 1979, the Malmo court found that Assarsson had not met the terms of his prior travel restriction and ordered him arrested. This order was entered upon motion of the Malmo District Attorney to conform to the Convention of Extradition between the United States of America and Sweden, 14 U.S.T. 1845, T.I.A.S. 5496 (1963) the Treaty.
Pursuant to an arrest warrant issued on August 26, 1981, Assarsson was taken into custody. On August 26, the United States, acting on behalf of the Government of Sweden, filed a verified complaint alleging that Assarsson was "duly and legally charged in Sweden with the crimes of participation in gross arson and gross fraud," and seeking his extradition under the Treaty.
On September 1, 1981, Assarsson moved before United States Magistrate Floyd E. Boline to be released on bail pending his extradition hearing. The motion was denied by the Magistrate and subsequently denied by this court. The Eighth Circuit Court of Appeals denied a request for bail on September 30, 1981.
On November 16, 1981, an extradition hearing was held before Magistrate J. Earl Cudd. On December 31, 1981, Magistrate Cudd issued an order denying Assarsson's motion to dismiss the extradition proceedings and certified him for extradition.
Assarsson sought review of the Magistrate's decision by filing a petition for a writ of habeas corpus. The court referred the matter to Magistrate Cudd for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (b)(3). On March 10, 1982, the Magistrate filed his report and recommendation that the petition be denied. Assarsson filed timely objections to the report, to which the United States submitted a response. An oral hearing on petitioner's objections was held on April 14, 1982. The court has made a de novo review and determination of those portions of the report to which objections have been made, pursuant to 28 U.S.C. § 636(b)(1).
Assarsson contends that the Magistrate's recommendation should not be accepted by the court because (1) he was not "charged" within the meaning of the Treaty, (2) the Magistrate erroneously excluded evidence at the extradition hearing pertaining to the method used to charge Swedish defendants under Swedish law, (3) the statute of limitations on the offense alleged has run, and (4) the Secretary of State does not have authority to extradite Assarsson for the alleged arson in Copenhagen, Denmark.
Article I of the Treaty provides in relevant part:
Each Contracting State undertakes to surrender to the other, subject to the provisions and conditions laid down in this Convention, those persons found in its territory who have been charged with or convicted of any of the offenses specified in Article II of this Convention committed within the territorial jurisdiction of the other, or outside thereof under the conditions specified in Article IV of this Convention ... emphasis added
Assarsson argued at the extradition hearing that because he was not "charged" by Swedish authorities, as required by Article I, but was subject only to detention or arrest, the court lacked subject matter jurisdiction.1 The Magistrate concluded that Assarsson was "charged" within the meaning of the Treaty. In his subsequent report and recommendation on the petition for habeas corpus, he found that whether this conclusion was error was not reviewable in a habeas proceeding, relying on Matter of Assarsson, 635 F.2d 1237, 1244 (7th Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981).
In Matter of Assarsson, the Seventh Circuit held that a finding in an extradition proceeding that charges had been filed was not reviewable in a habeas corpus proceeding. Id. at 1244. The court reasoned as follows. Extradition rulings are not directly appealable; relief is available only by habeas corpus. Existence of formal charges can be reviewable only if the treaty conditions extradition on the existence of such charges, and the Treaty between the United States and Sweden does not so condition extradition. The word "charged" is used only in a generic sense to indicate "accused," and any argument to the contrary is based on mere semantics. Accordingly, the issue of whether a petitioner has been charged is not within the scope of habeas review.
The Seventh Circuit further noted that the Treaty has a number of substantive requirements that must be met as a prerequisite to extradition, including a requirement that a duly certified or authenticated copy of the warrant of arrest or other order of detention be presented by the government requesting extradition. Conspicuously absent from the Treaty is a requirement that documentation of a formal charge be presented, even though such documentation would be the best evidence that a charge exists. Finally, the court emphasized that respect for the sovereignty of other nations and the danger of error inherent in trying to interpret foreign law require that the scope of review in a habeas proceeding attacking an extradition order be narrow. Id. at 1244.
The reasoning of the Seventh Circuit is persuasive. It is of interest that the matter under consideration there was extradition of petitioner's brother for the alleged commission of the same crimes based on the incidents alleged herein.
Assarsson takes issue with the Seventh Circuit's approach. He argues that it ignores the holding of Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925), that review of a magistrate's jurisdiction is available in a habeas proceeding. It is his position that jurisdiction can only be found if a magistrate complies with the terms of the treaty. Since the Magistrate failed to comply with those terms by finding Assarsson was "charged within the meaning of the treaty," he acted without jurisdiction. He notes in support of his position that the parties to the Treaty used the term "charged," that Sweden is party to a European treaty which does not use the term "charged," and that no Swedish official has come before the Magistrate and stated that Assarsson was charged within the meaning of Swedish law.
The use of the word "charged" in the Treaty is not conclusive proof that the parties meant to require a formal charge under Swedish law as a prerequisite to extradition. Viewed within the context of the entire treaty, it is apparent that "charged" is used in its generic sense, and it is merely a matter of coincidence that part of the Swedish criminal justice process includes what Assarsson has chosen to characterize as a charge. There is no requirement under the Treaty that a Swedish official come forward and allege that an extraditee has been charged. The Treaty is specific as to the type of proof required, and proof of a formal charge is not included among the requirements. See e.g. Art. XI.
It is clear that the Magistrate had jurisdiction to hold an extradition hearing herein under 18 U.S.C. § 3184. Because the Treaty does not condition extradition on the Swedish government's proceedings having reached the "charged" stage, any finding he may have made in that regard does not affect his jurisdiction.
Even if the matter of whether Assarsson was "charged" were reviewable, the Magistrate's finding would be upheld. Given the generic use of the term "charged" in the treaty, the Swedish proceedings against him could be said to constitute a charge of a crime. There is evidence that a Swedish judge has found "good grounds to suspect" Assarsson of crimes and ordered him to stay within a certain area unless he had permission to leave. In response to a request to conform his orders to the terms of the Treaty, he later repeated the good grounds finding and ordered Assarsson arrested. The verified complaint also alleges that he was "charged" with commission of a crime.
At the extradition proceedings Assarsson offered evidence to show he had not been "charged" within the meaning of Swedish law. The evidence consisted of testimony of his Swedish attorney, portions of the Swedish Code, and testimonial stipulations by experts on Swedish law. The Magistrate refused to allow the matters into evidence. Assarsson contends this was reversible error.2
Because the matter of whether a formal charge has been brought is not reviewable in a habeas corpus proceeding, Matter of Assarsson, 635 F.2d at 1244, it can be argued that the Magistrate's refusal to allow evidence on that issue in the original hearing is also not reviewable. Moreover, since the word "charge" is used in the Treaty in a generic sense, whether or not the...
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...been "charged" within the meaning of the treaty because there was no requirement of formal charges in the treaty); Matter of Assarsson, 538 F.Supp. 1055, 1057-58 (D.Minn.1982), aff'd. 687 F.2d 1157 (8th Cir. The relevant documents submitted by the French government include an arrest warrant......
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