Assarsson, Matter of, 81-1785

• Decision Date: 10 February 1982
• Docket Number: No. 81-1785,81-1785
• Citation: 670 F.2d 722
• Parties: In the Matter of Jan Alf ASSARSSON, Relator-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 722

670 F.2d 722

In the Matter of Jan Alf ASSARSSON, Relator-Appellant.

No. 81-1785.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 5, 1982.

Decided Feb. 10, 1982.

Sheldon Davidson, Pedersen & Houpt, Chicago, Ill., for relator-appellant.

Gloria Phares, Dept. of Justice, Washington, D. C., for appellee.

Before BAUER, Circuit Judge, MARKEY, Chief Judge, ^* and POSNER, Circuit Judge.

BAUER, Circuit Judge.

On October 20, 1978, Magistrate James Balog of the Northern District of Illinois issued an order directing the United States Marshal to take Jan Alf Assarsson, a Swedish citizen residing in the United States since 1960, into custody and hold him for surrender to Sweden. Assarsson filed a petition for a writ of habeas corpus, which the district court denied. We affirmed. In re Assarsson, 635 F.2d 1237 (7th Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981). Assarsson then filed a second petition for a writ of habeas corpus. Assarsson appeals from the district court's denial of this petition. We again affirm.

I

On April 1, 1976, the Swedish district court entered an order authorizing Assarsson's arrest on charges of arson, fraud, and attempted fraud. Pursuant to the Convention on Extradition Between the United States and Sweden ("Extradition Treaty"), Sweden asked the United States to extradite Assarsson. In May 1978 the United States Attorney for the Northern District of Illinois filed a verified extradition complaint requesting authorization to extradite Assarsson to Sweden. After conducting extradition proceedings pursuant to 18 U.S.C. § 3184, ¹ Magistrate Balog entered a commitment order. The order directed the United States Marshal to take Assarsson into custody by November 8, 1978, to be held for surrender to the Swedish authorities.

On November 1, 1978, Assarsson sought and obtained a stay of the October 20 commitment order. ² Assarsson then filed his first petition for a writ of habeas corpus. Assarsson claimed that he could not be extradited because there were no formal charges pending against him in Sweden. ³ The district court denied the petition. We affirmed. In re Assarsson, 635 F.2d 1237 (7th Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981). We noted that our review of a commitment order entered in an extradition case is limited to determining (1) whether the magistrate had jurisdiction, (2) whether the offenses charged are within the treaty, and (3) whether there was probable cause to support the charges. Id. 101 S.Ct. at 1240 quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). "We may...review only those conditions which preclude extradition for offenses which are otherwise extraditable. Any such condition must come from the treaty itself." 635 F.2d at 1241. We held that we were precluded from reviewing the magistrate's determination that Assarsson had been charged with an extraditable offense because the Extradition Treaty did not require the filing of formal charges as a prerequisite to extradition. Id. 101 S.Ct. at 1242.

Assarsson then filed the second petition for a writ of habeas corpus, which is the subject of this appeal. In this petition, Assarsson claimed that he could not be extradited because the condition set forth in Article V, P 2 of the Extradition Treaty had not been satisfied. Article V, P 2 provides that:

Extradition shall not be granted in any of the following circumstances:

2. When the legal proceedings of the enforcement of the penalty for the offense has become barred by limitations according to the laws of either the requesting State or the requested State.

Assarsson's petition averred that the law of the "requested State" to which Article V refers is 18 U.S.C. § 3282, which bars prosecution unless an indictment is entered within five years after the commission of the crime. Because the Swedish authorities had not entered their equivalent of an indictment ⁴ by October 3, 1980, five years after the commission of the alleged crimes, ⁵ Assarsson argued that the Treaty prohibited his extradition.

The district court denied Assarsson's petition holding that the stay of commitment entered at Assarsson's request tolled the running of the statute of limitations. According to the district court, at the time the stay was granted there were almost eighteen months remaining in the statutory period. Thus, Article V would bar extradition only if the Secretary of State failed to extradite Assarsson within eighteen months after the lifting of the stay.

II

Article V, P 2 requires compliance with the federal criminal statute of limitations as a prerequisite to extradition. Thus, before the ruling magistrate or judge may authorize the Secretary of State to surrender a requested fugitive, he must determine that prosecution is not barred by 18 U.S.C. § 3282. Caplan v. Vokes, 649 F.2d 1336, 1340 (9th Cir. 1981); Freedman v. United States, 437 F.Supp. 1252, 1264 (N.D.Ga.1977). The crimes with which Assarsson was charged were allegedly committed between January 9, 1975, and October 3, 1975. Assuming that the statute of limitations began to run on October 3, 1975, ⁶ there were approximately two years remaining in the statutory period when the magistrate authorized surrender on October 20, 1978. Therefore, the condition set forth in Article V, P 2 was satisfied in this case, and the magistrate did not err in authorizing Assarsson's extradition.

Assarsson's argument that extradition is barred because the Secretary of State failed to surrender him before October 3, 1980, is not persuasive. Article V, P 2 specifies that "extradition shall not be granted" if either of the applicable statutes of limitations has run. "Extradition" is a multi-phased process. It is initiated when a requesting nation asks the Secretary of State to extradite a fugitive. If the Secretary chooses to honor the request, he may initiate the necessary judicial extradition proceedings by requesting the Justice Department to file a verified extradition complaint in a court having personal jurisdiction over the fugitive. 18 U.S.C. § 3184. ⁷ If the court enters an order authorizing extradition, the Secretary of State may then decide whether to surrender the individual to the requesting country. 18 U.S.C. § 3186. ⁸ Section 3186 authorizes the Secretary to surrender the requested fugitive only if extradition has been authorized by the court pursuant to section 3184. By procuring a stay of the magistrate's October 20, 1978, commitment order authorizing extradition, Assarsson precluded the Secretary from completing the extradition process. ⁹ We will not permit Assarsson to use the delay which he himself created to defeat extradition.

Interpreting Article V, P 2 as Assarsson requests would result in an anomaly that neither this country nor Sweden could have intended. We permit individuals to challenge extradition orders pursuant to petitions for writs of habeas corpus in order to ensure that "all persons on our soil receive due process under...