Assarsson, Matter of

• Decision Date: 27 August 1982
• Docket Number: No. 82-1621,82-1621
• Citation: 687 F.2d 1157
• Parties: In the Matter of Extradition of Sven Ulf Ingemar ASSARSSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1157

687 F.2d 1157

In the Matter of Extradition of Sven Ulf Ingemar ASSARSSON, Appellant.

No. 82-1621.

United States Court of Appeals,

Eighth Circuit.

Submitted July 14, 1982.

Decided Aug. 27, 1982.

Herbert J. Miller, Jr., David O. Stewart, Miller, Cassidy, Larroca & Lewin, Washington, D. C., Sheldon Davidson, Pedersen & Houpt, Chicago, Ill., David P. Schippers, Schippers & Mackay, Chicago, Ill., for appellant; Mark W. Peterson, Friedberg & Peterson, Minneapolis, Minn., of counsel.

Lawrence W. Chamblee, Catherine M. Volz, Trial Attys., Crim. Div., U. S. Dept. of Justice, Washington, D. C., for appellee.

Before LAY, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Sven Ulf Ingemar Assarsson appeals from a final order entered in the District Court ¹ for the District of Minnesota denying his petition for writ of habeas corpus. For reversal appellant argues that (1) he has not been charged with an extraditable offense, (2) extradition is barred by the statute of limitations, and (3) he cannot be extradited for an extraterritorial offense. For the reasons discussed below, we affirm the district court's order denying habeas corpus relief.

The following facts are taken in part from the district court's order. In re Extradition of Assarsson, 538 F.Supp. 1055 (D.Minn.1982). Appellant is a citizen of Sweden. Sweden alleged that appellant is "suspected on good grounds" of complicity in a warehouse fire, believed to be arson, in Copenhagen, Denmark, on September 19, 1975, and in the filing of a fraudulent insurance claim in Malm o, Sweden, for the goods destroyed in the warehouse fire on October 3, 1975. ² On November 3, 1977, the Malm o district court, acting upon the Malm o district attorney's application for arrest, found "good grounds" existed to suspect appellant of gross arson and attempted gross fraud. The Malm o district court did not order appellant's arrest but imposed certain travel restrictions and required appellant to report daily to the local police. The reporting requirement was subsequently modified to three times per week. Appellant last reported to the police on March 17, 1978. On March 28, 1978, the Malm o district court noted that appellant had violated the travel restrictions, reaffirmed that appellant was suspected on "good grounds" of gross arson and attempted gross fraud, and declared appellant arrested. On November 24, 1978, the Malm o district attorney filed a supplemental application for arrest in order to comply with the terms of the extradition treaty between the United States and Sweden. This application for arrest stated that appellant was then living with his brother Jan Assarsson in Illinois and contained a more detailed statement of the Swedish authorities' investigation into the Copenhagen fire and insurance claim. Appellant's passport was revoked in December 1978. On January 26, 1979, the Malm o district court held a supplemental hearing and on February 1, 1979, again found "good grounds" existed to suspect appellant of gross arson and attempted gross fraud. The court also noted appellant's violation of travel restrictions and continued absence from Sweden and declared appellant to be arrested.

On August 26, 1981, following a request through diplomatic channels, the United States Attorney for the District of Minnesota, acting on behalf of the government of Sweden, filed a verified extradition complaint with attached documentary evidence in federal district court. The complaint alleged that appellant was "duly and legally charged in Sweden with having committed the crimes of participation in gross arson and gross fraud," and sought his arrest and extradition under the Convention of Extradition between the United States of America and Sweden, 14 U.S.T. 1845, T.I.A.S. No. 5496 (1963). Pursuant to an arrest warrant issued that day, appellant was arrested and taken into federal custody. ³ On November 16, 1981, an extradition hearing was held before United States Magistrate J. Earl Cudd, a magistrate duly authorized to act in extradition matters. See 18 U.S.C. § 3184. ⁴ On December 31, 1981, Magistrate Cudd issued an order denying appellant's motion to dismiss and certifying appellant as extraditable.

Appellant sought review of the magistrate's decision by filing a petition for writ of habeas corpus in the district court. "Because a finding of extraditability is not subject to direct appeal, collateral review is possible only through a writ of habeas corpus." Hooker v. Klein, 573 F.2d 1360, 1364 (9th Cir.) (citations omitted), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978). The district court referred the matter to Magistrate Cudd pursuant to 28 U.S.C. § 636, who recommended that the petition be denied. Appellant filed objections and, following a hearing, the district court denied the petition. This appeal followed.

The scope of review of an extradition order is considerably more restricted than that generally engaged in by an appellate court. On collateral review by habeas corpus, the Court is not permitted to inquire beyond whether (1) the extradition judge had jurisdiction to conduct extradition proceedings; (2) the extradition court had jurisdiction over the fugitive; (3) the treaty of extradition was in full force and effect; (4) the crime fell within terms of the treaty; and (5) there was competent legal evidence to support a finding of extraditability.

Hooker v. Klein, 573 F.2d at 1368, citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); ⁵ see also Matter of Assarsson, 635 F.2d 1237, 1240 (7th Cir. 1980) (extradition proceedings brought against Sven Assarsson's brother), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981).

I. Charge Requirement

Appellant first argues that he has not been "charged" with an extraditable offense because the Swedish prosecuting authorities have not filed a formal document (called a "summons") for gross arson and attempted gross fraud against him. See Matter of Assarsson, 635 F.2d at 1239 n.3, citing Swedish Code of Judicial Procedure ch. 45, §§ 1, 4, 9 (A. Bruzelius trans. 1968). Appellant argues that at most he is subject to an arrest order and that no prosecution has been initiated.

The magistrate concluded that appellant had been "charged" with extraditable offenses within the meaning of the treaty; the district court determined that the magistrate's finding was not reviewable on habeas corpus, 538 F.Supp. at 1057, citing Matter of Assarsson, 635 F.2d at 1244. The district court alternatively concluded that appellant had been "charged" with an extraditable offense within the meaning of the treaty. 538 F.Supp. at 1058. Because we agree with the district court that the magistrate's determination is not within the scope of review on habeas corpus, we do not reach the merits of appellant's argument. Matter of Assarsson, 635 F.2d at 1239-43; Garcia-Guillern v. United States, 450 F.2d 1189, 1193 n.1 (5th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972). As explained by the Seventh Circuit in Assarsson

Fernandez defines the scope of review. Under Fernandez, we may review only whether "the offense charged is within the treaty." We may therefore review only those conditions which preclude extradition for offenses which are otherwise extraditable. Any such conditions must come from the treaty itself....

The existence of formal charges can be reviewable, then, only if the treaty itself conditions extradition for the offenses listed (which include arson and attempted fraud) in Article II on the existence of formal charges. The United States-Sweden treaty does not so condition extradition.

... The filing of formal charges is not stated anywhere as a prerequisite to extradition.... Because the treaty does not so limit the class of extraditable offenses, we may not review the magistrate's determination that Assarsson (, the brother of appellant herein,) was charged "under the terms of the treaty."

635 F.2d at 1241-42 (citations omitted).

Appellant argues that the question whether he has been charged with an extraditable offense within the meaning of the treaty is subject to review on habeas corpus because such an inquiry is relevant to the magistrate's jurisdiction. We must disagree. Appellant does not argue that the magistrate who certified his extradition was not authorized to conduct extradition hearings or that there was no personal jurisdiction. In the absence of such contentions there is no question as to the jurisdiction of the magistrate. See Garcia-Guillern v. United States, 450 F.2d at 1192, citing Gallina v. Fraser, 177 F.Supp. 856 (D.Conn.1959), aff'd, 278 F.2d 77 (2d Cir.), cert. denied, 364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 74 (1960).

Appellant also argues that the magistrate erroneously determined that he had been ordered arrested for gross arson and attempted gross fraud by the Malm o district court. Appellant argues that the order of arrest was for his violation of the travel restrictions and reporting requirements only and that that is not an extraditable offense within the meaning of the treaty. This argument has not been properly preserved for review because appellant raises this argument for the first time on appeal. We note, however, that the Swedish documentary evidence (in translation) indicates that Sweden is seeking appellant's extradition on charges of gross arson and attempted gross fraud and not for violation of the travel restrictions and reporting requirements.

II. Statute of Limitations

Appellant next argues that extradition is barred by the statute of limitations. Appellant argues that he cannot be extradited because the condition set forth in Article V, P 2 of the treaty has not been satisfied. Article V, P 2 provides: "Extradition shall not be granted in any of the following circumstances: ... When the legal proceedings or the enforcement of the penalty for the offense has...