Hooker v. Klein

Decision Date03 May 1978
Docket NumberNo. 76-3727,76-3727
PartiesRobert Montgomery HOOKER, Appellant-Petitioner, v. Frank X. KLEIN, United States Marshal, N.D. of California, Appellee-Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Claudia A. Wilken, Asst. Federal Public Defender (argued), San Francisco, Cal., for appellant-petitioner.

Murray R. Stein (argued), of U. S. Dept. of Justice, Washington, D. C., for appellee-respondent.

Appeal from the United States District Court for the Northern District of California.

Before CHAMBERS and GOODWIN, Circuit Judges, and KELLEHER *, District Judge.

KELLEHER, District Judge:

This is an appeal from a denial of a petition for a writ of habeas corpus challenging a finding of extraditability and order of commitment entered by the district court on September 21, 1976. While the appeal is taken from the denial of habeas corpus relief, the various issues raised herein bear upon the legality of appellant's extradition proceedings.

In March of 1975, the Canadian government requested from the United States extradition of appellant Robert Hooker pursuant to the extradition treaty then in force between the two countries. 1 The requesting documents charged Hooker with theft of various corporate assets following the dissolution of a Canadian corporation of which he was one of two principals. Pursuant to 18 U.S.C. § 3184 (1970) 2 and then Rule 501(a)(6) of the Local Rules of Practice for the Northern District of California 3 the extradition complaint was referred to a magistrate of that court for review and disposition. After conducting a hearing in which he considered evidence submitted on behalf of the Canadian government and rebuttal evidence submitted by appellant, and upon weighing the credibility of certain witnesses testifying on behalf of appellant, the magistrate found that no crime had been committed in Canada for which appellant could be extradited. The complaint in extradition therefore was dismissed.

Following the magistrate's denial of the extradition request, the government re-evaluated the merits of the case and, upon the reaffirmation of the Canadian government that it wished to press forward with extradition, elected to pursue appellant's extradition. A second request was filed with the general duty judge of the court and assigned to the docket of a district court judge rather than a magistrate. The district court initiated new extradition proceedings, reviewing the government's request exclusively on the basis of the record of the original proceedings held before the magistrate. The court found appellant extraditable and issued a Certification of Extraditability and Order of Commitment. In ordering extradition, the court ruled that the magistrate had erred in considering appellant's rebuttal evidence in that such evidence tended to contradict the evidence proffered by the Canadian government in support of extradition. Appellant subsequently filed for habeas corpus relief, challenging the order of extradition on various grounds, but particularly that the ruling of the magistrate denying extradition should have barred the second extradition request and proceeding. The district court denied the petition for habeas corpus and an appeal to this court was taken.

Three distinct issues are raised by this appeal. (1) May the government renew an extradition request after an original request on the same facts has been denied by a court of competent jurisdiction? (2) Assuming the government is not limited to one attempt at extradition, what weight, if any, must the court entertaining the second request give to the findings of the first court, and particularly is the first finding res judicata as to the second proceeding? (3) What is the proper scope of review on appeal as to matters concerning extradition proceedings?

Because a finding of extraditability is not subject to direct appeal, see Collins v. Miller, 252 U.S. 364, 369-70, 40 S.Ct. 347, 64 L.Ed. 616; United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 729-30 (9th Cir. 1975), collateral review is possible only through a writ of habeas corpus. See Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973), cert. dismissed by agreement of parties, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973). In pursuing habeas corpus relief a fugitive at law subject to an order of extradition necessarily foregoes the advantage of the broader scope of review that attends direct appeal. The area of inquiry into orders of extradition that a habeas corpus court permissibly may undertake is considerably restricted.

"(H)abeas 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), and cases cited therein.

The sufficiency of evidence establishing the criminality of the accused cannot be reviewed on habeas corpus. Grin v. Shine, 187 U.S. 181, 192, 23 S.Ct. 98, 47 L.Ed. 130 (1902). While an appeal may not be used to expand the scope of review of extradition orders, we proceed to consider appellant's more substantial contentions insofar as they raise questions regarding the jurisdiction of the second extradition court. It may be noted, however, that a writ of habeas corpus cannot take the place of a writ of error and "is not a means for rehearing what the magistrate already has decided." Fernandez v. Phillips, supra. Our review therefore will not encompass every asserted error in the extradition proceedings.

I. Renewal of Extradition Request

After the government's initial request for an order of extradition was denied by the magistrate, it filed a new complaint in extradition in an attempt to obtain a more favorable ruling. Appellant argues that where the government's first request has been denied following an extensive evidentiary hearing and full consideration of the merits of the case by an extradition court, the government should be barred from renewing the request on the same evidentiary facts. The law of international extradition long has recognized that the government is free to pursue extradition nonwithstanding initial unsuccessful efforts. In Collins v. Loisel (Loisel II ), 262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062 (1923), the Supreme Court acknowledged and affirmed the government's right to reinstitute extradition proceedings, noting that "it has been consistently held under the treaties with Great Britain and other countries, that a fugitive from justice may be arrested in extradition proceedings a second time upon a new complaint charging the same crime, where he was discharged by the magistrate on the first complaint or the complaint was withdrawn." Id. at 429, 43 S.Ct. at 619. 4 Loisel II involved a renewed extradition request after an earlier order of extradition had been set aside on habeas corpus. In affirming the power of the government to pursue extradition more than once, the court recognized the potentiality for abuse in such authority, but observed that "protection against unjustifiable vexation and harassment incident to repeated arrest for the same alleged crime must ordinarily be sought, not in constitutional limitations or treaty provisions, but in a high sense of responsibility on the part of the public officials charged with duties in this connection." Id. at 429-30, 43 S.Ct. at 619. It is clear, therefore, that constitutional considerations do not constitute a bar to reinstituted extradition proceedings and that relief from the abuse of multiple attempts to extradite lies not in judicial limitation, but rather with the fair-mindedness of the government in fulfilling its obligation under treaties of extradition.

The decisions of lower courts on the issue have been in accord with that expressed by the Supreme Court in Loisel II. In Ex parte Schorer, 195 F. 334 (E.D.Wis.1912), the court declared that it was the power and duty of the government to renew a request for extradition if it is convinced of the merits of its position. Similarly, in In re Kelly, 26 F. 852 (C.C.Minn.1886), the court noticed that it would be "a violation of the spirit, if not of the letter, of the treaty," if there could be no second examination of a fugitive. Id. at 854. A more recent example of application of the rule is In re Gonzalez, 217 F.Supp. 717 (S.D.N.Y.1963), in which the government's first request for extradition was denied on the ground that the alleged act of the fugitive fell within the "political crimes" exception of the governing treaty. When the government chose to refile its request, the court assigned to the second proceeding rejected the argument that it was bound by the prior denial, citing for support the Loisel II decision. While no opinion of this Court expressly has approved the practice of reinstituted extradition requests, in Desmond v. Eggers, 18 F.2d 503 (9th Cir. 1927), this Court expressed no doubt that upon denial of an original extradition request, a second filing by the government was a permissible course of action.

Appellant does not contest the validity of these decisions, but rather attempts to distinguish them as cases in which reinstituted proceedings followed denial of extradition orders on procedural grounds, or cases in which second extradition requests were pursued on the basis of new evidentiary facts.

While in Loisel II dismissal of the first extradition order arguably was for reasons of procedural defects rather than on the strict merits, there is no indication the Court intended its holding to turn on this distinction. Indeed, the Court's clearly stated preference for government fair-mindedness over judicial constraints as a curb to abusive use of multiple extradition requests indicates that the Court was formulating a broad rule applicable to the entire practice of...

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