Lobue v. Christopher, CA 95-1097.
| Citation | 893 F. Supp. 65 |
| Decision Date | 31 August 1995 |
| Docket Number | No. CA 95-1097.,CA 95-1097. |
| Parties | Anthony J. LOBUE, Plaintiff, v. Warren CHRISTOPHER, Secretary of State, Defendant. |
| Court | U.S. District Court — District of Columbia |
Gregory B. Craig, James W. Shannon, John T. Parry, Matthew J. Herrington, Williams & Connolly, Washington, DC, for plaintiff.
Sara Criscitelli, Manual Rodriguez, Richard Brown, U.S. Dept. of Justice, Washington, DC, for defendant.
This case presents a challenge to the constitutionality of the United States' extradition statute. The government of Canada has charged the plaintiffs with kidnapping and now seeks to have them extradited from the United States to Canada to stand trial. Plaintiffs contend that the extradition statute purports to confer upon the Secretary of State the power to review and set aside the legal conclusions of federal extradition judges and is therefore unconstitutional. Upon careful consideration of the text of the statute, the filings and arguments of counsel, and of the relevant authorities, the court must agree. Accordingly, plaintiffs' cross-motion for summary judgment will be granted, and the United States will be enjoined from taking any further act towards executing the surrender warrants signed by Deputy Secretary of State Strobe Talbott on May 2, 1995.
Plaintiffs Anthony Lobue and Thomas Kulekowskis have been charged by the Canadian government with kidnapping. The charges arise out of plaintiffs' efforts to assist one Anthony De Silva in his attempt to retrieve his physically and mentally disabled wife, Tammy, from her parents' home in Winnipeg, Canada. The attempt ultimately failed, but during the process, Tammy's parents had reported to Canadian authorities that she had been kidnapped by a group of people including the plaintiffs. Canadian police investigated the incident and, with Tammy's apparent support, filed kidnapping charges against the participants.
Pursuant to the extradition treaty between the United States and Canada, the Canadian government requested surrender of the plaintiffs for prosecution on the kidnapping charge. The Secretary of State forwarded this request to the appropriate United States Attorney, and a complaint for extradition was filed in the United States District Court for the Northern District of Illinois on February 18, 1994. On May 27, 1994, Magistrate Judge Edward A. Bobrick held a hearing on the extradition request; on March 28, 1995, Magistrate Judge Bobrick issued an Order and Certification of Extraditability as to plaintiffs Lobue and Kulekowskis.
Plaintiffs requested a stay of surrender date pending the filing of a habeas corpus petition. This request was granted, and Magistrate Judge Bobrick issued an Order staying plaintiffs' date of surrender until May 25, 1995. Despite the existence of this Order, on May 2, 1995, Deputy Secretary of State Strobe Talbott signed surrender warrants authorizing plaintiffs' extradition to Canada. These warrants were not executed, however, "in light of the stay order." Gov't Mem. in Supp.M.Dis. at 3.
Plaintiffs filed their habeas petition in the Northern District of Illinois on May 24, 1995. A briefing schedule has been set in that case which enables the plaintiffs to obtain a ruling from this court before proceeding further with their habeas action in Illinois. The government has agreed to take no further steps towards extraditing the plaintiffs to Canada until September 1, 1995, or until this court has issued its ruling in the present case, whichever date is earlier. Now before the court are the parties' cross-motions for summary judgment and plaintiffs' class-certification motion.
Extradition procedure in the United States is governed by 18 U.S.C. §§ 3181-3195. Section 3184 sets forth the procedure for extraditing an individual from the United States to a foreign country where he has been charged with committing a crime.1 Under this scheme, a federal extradition judge2 conducts a hearing, receives evidence, and issues a legal ruling concerning the extraditability of the accused. In order to certify an individual as extraditable, the judge must find that (1) the offense charged is extraditable under the applicable treaty; (2) the offense satisfies the so-called "dual criminality" requirement (i.e., the conduct alleged is unlawful both in the requesting country and in the United States); and (3) there is probable cause to believe that the accused committed the crime for which he is sought. E.g., Spatola v. United States, 741 F.Supp. 362, 363 (E.D.N.Y.1990); aff'd 925 F.2d 615 (2nd Cir. 1991). If the extradition judge finds that any of these requirements has not been met, he does not certify the accused as extraditable, and the individual is released. If, on the other hand, the judge concludes that each of these criteria has been met, he or she certifies this finding to the Secretary of State, "that a warrant may issue." 18 U.S.C. § 3184 (emphasis supplied).
Once a federal extradition judge has certified an individual as extraditable, § 3184 commits to the Secretary of State's sole discretion the decision whether to complete the extradition process by signing a warrant of surrender. There is no question that, assuming the legal requirements have been met, the ultimate decision whether to surrender an individual to the government of a foreign country for criminal prosecution rests with the Executive branch. The question presented by this case is whether a statute may confer upon the Secretary of State the authority to review the legal determinations of federal extradition judges. Upon consideration of the relevant authorities, the court finds that, while the statute certainly purports to grant the Secretary this power, it is a power which the Constitution forbids him from exercising.
The first question is whether the extradition statute confers upon the Secretary of State the authority to review the legal conclusions of extradition judges. Notwithstanding the government's protestations to the contrary, this is an easy question. The text of the statute, the consistent manner in which it has been interpreted by all three branches of government, and historical practice confirm that the answer is clearly yes — the statute does purport to give the Secretary of State the authority to review the legal findings of extradition judges.
First, the statute states that, if the extradition judge "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all testimony taken before him, to the Secretary of State...." 18 U.S.C. § 3184 (emphasis supplied). There is simply no plausible explanation for why Congress would require the extradition judge to certify the evidence "together with a copy of all the testimony taken before him," other than to permit the Secretary to perform his own independent review of the legality of the extradition.
In fact, this is precisely the conclusion reached by the Solicitor General in a legal memorandum prepared at the request of the Secretary of State. As summarized by the Solicitor General, the Secretary's question was "how far executive discretion extends in reviewing the judgment and testimony directed by the statute ... to be certified before the Secretary by the judicial officer who hears the charge in the first instance." 17 U.S.Op. Att'y Gen. 184, 185 (1881). In analyzing the extradition statute, the Solicitor General observed that "it is difficult to see why the judicial officer should certify the testimony before him as well as his judgment thereon, unless for the purpose of affording an opportunity for a reconsideration of the effect of that testimony." Id. at 185-86. The Solicitor General's interpretation of the statute was forthright and unambiguous: "I am of the opinion that the proceedings below come before you upon a quasi certiorari, and that your discretion extends to a review of every question therein presented." Id. at 185 (emphasis supplied).3
It is quite clear that, when they have specifically considered the issue, all three branches of government have consistently taken the position that the Secretary's review of extradition proceedings extends to the legal conclusions of the extradition judge. See e.g., S.Rep. No. 82, 47th Cong., 1st Sess. 3 (1882) ( ) (emphasis supplied); 3 Dep't State Legal Advisor Op. 2356, 2367 (1931) ( ); Ornelas v. Ruiz, 161 U.S. 502, 508, 16 S.Ct. 689, 691, 40 L.Ed. 787 (1896) (); see also In re Heilbronn, 11 F.Cas. 1025, 1031 (S.D.N.Y.1854) (No. 6,323) ) (emphasis supplied).
Finally, the available historical evidence clearly demonstrates that Secretaries of State have, in the past, reviewed and set aside the legal conclusions of extradition judges. Perhaps the clearest example of this practice occurred in the case of In re Stupp, 23 F.Cas. 281 (C.C.S.D.N.Y.1873) (No. 13,562) ("Stupp I"). The issue presented to the extradition judge in Stupp I was...
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