Austin v. Healey, 1996

• Decision Date: 21 September 1993
• Docket Number: No. 1996,D,1996
• Parties: Michael AUSTIN, Petitioner-Appellant, v. Charles HEALEY, United States Marshal for the Eastern District of New York, Respondent-Appellee. ocket 93-2308.
• Court: U.S. Court of Appeals — Second Circuit

Page 598

5 F.3d 598

Michael AUSTIN, Petitioner-Appellant, v. Charles HEALEY, United States Marshal for the Eastern District of New York, Respondent-Appellee.

No. 1996, Docket 93-2308.

United States Court of Appeals Second Circuit.

Argued July 14, 1993.

Decided Sept. 21, 1993.

Victoria Toensing, Washington, DC (Joseph E. diGenova, Steven L. Zelinger, Suzanne M. Dohrer, Manatt, Phelps & Phillips, Washington, DC, of counsel), for petitioner-appellant.

Charles E. Rose, Asst. U.S. Atty., E.D.N.Y. (Barbara Underwood, Chief Asst. U.S. Atty., E.D.N.Y., Peter A. Norling, David C. James, Asst. U.S. Attys., of counsel), for respondent-appellee.

Before: MAHONEY, McLAUGHLIN and JACOBS, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Petitioner Michael Austin appeals from a judgment entered in the United States District Court for the Eastern District of New York (Edward R. Korman, J.) denying his petition for a writ of habeas corpus. By his petition, Austin sought review of the order of the extradition magistrate (Zachary M. Carter, M.J.) certifying his extraditability to the United Kingdom to face murder charges.

In this appeal, Austin's principal challenge is to the jurisdiction of the extradition magistrate. He attacks a local court rule that automatically assigns extradition proceedings to magistrate judges. Austin reads the extradition statute, 18 U.S.C. Sec. 3184 (Supp.1992), to require that an Article III judge personally assign a magistrate to a particular extradition matter, and thereafter retain supervisory authority over the case. Alternatively, he argues that the automatic designation of magistrates to conduct extradition proceedings violates Article III of the Constitution.

Finding no infirmity in the procedure of the district court, or in the proceedings below, we affirm.

BACKGROUND

On March 5, 1992, two unidentified assailants assassinated David George Wilson, a British accountant and commodities broker, in his garage in Lancashire, England. According to British authorities, Wilson's murder stemmed from his involvement with Austin and others in an international investment fraud scheme. At the extradition hearing, the government provided the following account of the events leading up to the British government's request for Austin's extradition.

Posing as a Mexican Army colonel, Austin represented that he had influence with the Mexican government and had access to a large supply of Marlboro cigarettes manufactured in Mexico. Austin engaged Wilson to line up European investors for the cigarettes, which were to be shipped from the United States. The investors were asked to open letters of credit in Austin's favor when the ship set sail for Europe. The cigarettes, however, never existed; Austin's plan was to have the ship scuttled while at sea and to abscond with the investors' money.

Repeated shipping delays made some investors suspicious and they asked the Dutch and British authorities to investigate Austin. Upon information provided by the Dutch, the British arrested Wilson and questioned him about his role in the scam. After he was released, Wilson admitted to Austin that he was cooperating with the police.

His plan unraveling, Austin decided that Wilson knew too much and had to be eliminated. By telephone and fax from his office in New York City, Austin arranged for extensive surveillance of Wilson in the days immediately preceding the killing. Austin also told other business associates that he intended to hire assassins to kill Wilson because Wilson owed him money and because Wilson was cooperating with the police. After Wilson's murder, Austin became a suspect in the murder investigation in England.

On April 1, 1992, the Magistrate's Court at Lancashire issued a warrant for Austin's arrest on the charge of conspiracy to murder Wilson. ¹ Because Austin was still in the United States, the United Kingdom requested Austin's provisional arrest by diplomatic note to the State Department for purposes of extradition. On behalf of the British government, the United States Marshal filed a complaint in the Eastern District seeking Austin's provisional arrest.

Pursuant to an Eastern District local court rule, the matter of Austin's extradition was assigned directly to a magistrate judge. See Rule 9 of the Rules for Magistrate Judges, United States District Courts for the Eastern and Southern Districts of New York ("Rule 9"). ² Based upon the Marshal's complaint, the diplomatic note and the British arrest warrant, Magistrate Judge A. Simon Chrein issued the provisional arrest warrant on April 3, 1992. Austin was then arrested in New York City on July 15, 1992.

The following January, an extradition hearing was conducted before Magistrate Judge Zachary W. Carter (the "extradition magistrate"). Relying primarily upon documents and affidavits from England, the extradition magistrate concluded that there was probable cause to believe Austin committed the crimes charged. Accordingly, in an order dated January 29, 1993, he certified Austin's extraditability to the United Kingdom.

On March 2, 1993, Austin filed the present petition for a writ of habeas corpus in the district court, challenging the order of extraditability. Austin argued that: (1) the admission of multiple layers of hearsay during the extradition hearing violated the Due Process Clause and the extradition treaty; (2) the evidence was insufficient to support a finding of probable cause; and (3) the extradition magistrate erred when he denied certain requests for discovery. Notably, Austin did not attack Rule 9. In a written decision, the district court rejected each of Austin's three contentions and denied Austin's petition.

Austin now appeals.

DISCUSSION

"Extradition is the process by which a person charged with or convicted of a crime under the law of one state is arrested in another state and returned for trial and punishment." Restatement (Third) of the Foreign Relations Law of the United States Sec. 474, at 556-57 (1987). Extradition is primarily a function of the executive branch, and the judiciary has no greater role than that mandated by the Constitution, or granted to the judiciary by Congress. See Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828-29 (11th Cir.1993).

Accordingly, on appeal from the denial of habeas corpus in extradition proceedings, the scope of our review is quite limited. We consider only: (1) whether the judicial officer who conducted the extradition proceedings had jurisdiction; (2) whether the offense charged is extraditable under the terms of the treaty; and (3) whether there was sufficient evidence to support the finding of probable cause to extradite. See Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); Ahmad v. Wigen, 910 F.2d 1063, 1064 (2d Cir.1990). Austin concedes that murder and conspiracy to murder are extraditable offenses under the treaty. Accordingly, we address only the magistrate's jurisdiction and the sufficiency of the evidence.

I. Jurisdiction of the Extradition Magistrate

Austin's primary argument on appeal is that the extradition magistrate lacked jurisdiction. In support of this position, Austin contends that: (1) Rule 9's automatic designation of magistrate judges to conduct extradition proceedings contravenes the relevant extradition statute, 18 U.S.C. Sec. 3184; and (2) Rule 9's automatic designation violates Article III of the Constitution. Because he now believes that these too affect jurisdiction, he adds claims that: (3) the Marshal's complaint failed to adequately apprise Austin of the charges against him; and (4) there was no probable cause to support his provisional arrest.

At the outset, we emphasize that Austin raises his four "jurisdictional" arguments for the first time in this appeal, despite the general rule that "a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). Because this rule is one of prudence (and does not limit our jurisdiction), however, we retain considerable discretion to decide questions not raised initially in the district court. See Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 56 (2d Cir.1992).

We see no reason to depart from the general rule of forfeiture with respect to Austin's third argument that the complaint was inadequate and his fourth, that his provisional arrest was illegal. Although he stipples his briefs with references to "subject matter jurisdiction," neither claim affects the extradition court's jurisdiction, see In re Adutt, 55 F. 376, 379 (C.C.Ill.1893) (defect in extradition complaint is "not a matter going to the jurisdiction of the [magistrate] to entertain the complaint"); Sewell v. United States, 406 F.2d 1289, 1292 (8th Cir.1969) (challenge to arrest without probable cause was waivable defect going only to personal jurisdiction), which is conferred by section 3184 and Rule 9. See In re Demjanjuk, 603 F.Supp. 1468, 1469 (N.D. Ohio), appeal dismissed, 762 F.2d 1012 (6th Cir.1985); In re Extradition of Singh, 1988 WL 151438 (D.N.J. Feb. 17, 1988). Accordingly, we decline to consider them at this late hour. See Jhirad v. Ferrandina, 536 F.2d 478, 486 (2d Cir.) ("Non-jurisdictional objections must, of course, be timely raised or they are waived."), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976).

We distinguish, however, Austin's first and second contentions, his statutory and constitutional challenges. These claims raise purely legal issues, see, e.g., Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992), the resolution of which may affect "the proper administration of judicial business." Glidden Co. v. Zdanok, 370 U.S. 530, 536, 82 S.Ct. 1459, 1465, 8 L.Ed.2d 671 (1962) (plurality opinion). Moreover, because Austin's second claim, the constitutional argument, implicates the balance struck by our Constitution among the three branches of government,...