Eain v. Wilkes

Decision Date20 February 1981
Docket NumberNo. 80-1487,80-1487
Citation641 F.2d 504,61 A.L.R. Fed 757
Parties, 8 Fed. R. Evid. Serv. 32 Ziyad Abu EAIN, Petitioner-Appellant, v. Peter WILKES, United States Marshal for the Northern District of Illinois, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Ramsey Clark, New York City, for petitioner-appellant.

Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for respondent-appellee.

Before PELL, Circuit Judge, SKELTON, Senior Judge, * and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner Abu Eain is accused by the State of Israel of setting a bomb on May 14, 1979, that exploded during the afternoon in the teeming market area of the Israeli city of Tiberias, 1 killing two young boys 2 and maiming or otherwise injuring more than thirty other people. Israel seeks the extradition of petitioner from the United States. Petitioner, a resident of the West Bank area of the Jordan River, traveled to Chicago, Illinois via Jordan shortly after the Tiberias bombing incident. Pursuant to an extradition treaty between the United States and Israel, and in accordance with the federal statute governing American extradition procedure, 18 U.S.C. § 3184, a magistrate in the Northern District of Illinois after a hearing determined that defendant should be extradited to Israel to stand trial for murder, attempted murder and causing bodily harm with aggravating intent. Petitioner then sought a writ of habeas corpus from the district court (there being no provision for direct appeal) to prevent the Secretary of State from extraditing him in accordance with the magistrate's determination. The district court denied the writ. We affirm.

Petitioner contends that the evidence fails to establish probable cause to believe that he committed the crimes charged. 3 Alternatively, petitioner argues that if the evidence is sufficient to show probable cause, then the crimes of which he is accused do not fall within the terms of the treaty providing for extradition. Petitioner claims that it is apparent that the bombing was politically motivated and that political offenses of that kind are excepted from the extradition treaty. Petitioner further contends that if the bombing was not within the political offense exception, then Israel's "indictment" of him for the alleged crimes amounts only to a subterfuge in order to have him returned for trial, not for the alleged offenses, but instead for the political offense of membership in the Al Fatah branch of the Palestine Liberation Organization (PLO). 4

I. The Process of Extradition

The Extradition Treaty between the United States and Israel became effective in 1963. 14 U.S.T. 1707. Article II of that Treaty provides, inter alia, for extradition of persons accused of murder and infliction of grievous bodily harm, as well as attempts to commit those crimes. Article V of the Treaty provides that a person may be extradited only if the evidence is "found sufficient, according to the laws of the place where the person sought shall be found ... to justify his committal for trial if the offense of which he is accused had been committed in that place...." This form of treaty provision has been held to require a finding of probable cause under federal As an exception to the foregoing Treaty provisions, Article VI, paragraph 4 of the Treaty states that extradition shall not be granted "(w)hen the offense is regarded by the requested Party as one of a political character or if the person sought proves that the request for his extradition has, in fact, been made with a view to trying or punishing him for an offense of a political character."

law. Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973).

Since the technical aspects of extradition procedure are not explicitly stated in the Treaty, this country's laws guide the manner in which a decision is made whether or not an individual may be extradited from this country to Israel. We briefly discuss the provisions of the laws of the United States concerning extradition since the arguments of both petitioner and the government on the facts of this case and their contentions on what the law requires can best be understood in the context of overall extradition procedure which varies from the common interstate process.

The procedure in the United States for extradition is governed by 18 U.S.C. §§ 3181-3195. In brief, the statutes require that a country seeking extradition of an individual submit to our government through proper diplomatic channels a request for extradition. That request must in general be supported by sufficient evidence to show that the individual is the person sought for the crimes charged, that the crimes are among those listed as extraditable offenses in the Treaty and that there is sufficient justification for the individual's arrest had the charged crime been committed in the United States. After evaluation and approval by the Department of State, the necessary papers may be forwarded to the United States Attorney in the district where the person sought to be extradited may be found. The United States Attorney may then file a complaint and seek an arrest warrant from a magistrate. If a warrant issues the magistrate then conducts a hearing under 18 U.S.C. § 3184 to determine "(i)f, on such hearing, (the magistrate) deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention...." The Federal Rules of Evidence and Criminal Procedure do not apply in such a hearing. Fed.R.Evid. 1101(d)(3); Fed.R.Crim.Proc. 54(b)(5). It is fundamental that the person whose extradition is sought is not entitled to a full trial at the magistrate's probable cause hearing. The person charged is not to be tried in this country for crimes he is alleged to have committed in the requesting country. That is the task of the civil courts of the other country.

Under § 3184, should the magistrate either determine that the offense charged is not within a treaty's terms or find an absence of probable cause, the magistrate cannot certify the matter to the Secretary of State for extradition. If the case is certified to the Secretary for completion of the extradition process it is in the Secretary's sole discretion to determine whether or not extradition should proceed further with the issuance of a warrant of surrender. See 4 G. Hackworth, Digest of International Law, § 316, pp. 49-50 (1942); Note, Executive Discretion in Extradition, 62 Colum.L.Rev. 1313, 1323 (1962).

The government cannot take a direct appeal from the magistrate's decision not to certify the case. There also is no statutory provision for direct appeal of an adverse ruling by a person whose extradition is sought. Instead, that person must seek a writ of habeas corpus. Collins v. Miller, 252 U.S. 364 (1920); Greci v. Birknes, 527 F.2d 956 (1st Cir. 1976). The scope of habeas corpus review in extradition cases is a limited one, according due deference to the magistrate's initial determination. Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). See In the Matter of Assarsson, 635 F.2d 1237 (7th Cir. Oct. 31, 1980); Laubenheimer v. Factor, 61 F.2d 626 (7th Cir. 1932); Ornelas v. Ruiz, 161 U.S. 502, 16 S.Ct. 689, 40 L.Ed. 787 (1896). The district judge is not to retry the magistrate's case.

"(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 is any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. at 312, 45 S.Ct. at 542 (per Holmes, J.) (emphasis supplied). The magistrate is obliged to determine whether there is probable cause to believe that an offense was committed and that the defendant committed it. 18 U.S.C. § 3184; Benson v. McMahon, 127 U.S. 457, 462-63, 8 S.Ct. 1240, 1243, 32 L.Ed. 234 (1888); M. C. Bassiouni, International Extradition and World Public Order 516-18 (1974) (hereinafter cited as "Bassiouni"). The extradition process has not been challenged in this case by petitioner, but the government has raised a question about the scope of the magistrate's authority.

II. Probable Cause

Petitioner first challenges the sufficiency of the evidence to sustain the magistrate's finding of probable cause. Our scope of review on this issue is limited to determining whether there is "any evidence" to support the magistrate's finding of probable cause. We conclude that the magistrate's determination was supported by sufficient evidence.

Petitioner's hearing before the magistrate lasted seven days. During the hearing sworn statements of Jamil Yasin, Mufida Jaber and Israeli Police Captain Peretz were introduced as evidence. The admissibility of those exhibits was not challenged by petitioner.

According to Yasin's statement, Yasin and petitioner traveled to Tiberias on May 11, 1979 for "reconnaissance" purposes in connection with their membership in the PLO. The two men were scouting for a location in which to place a bomb. On May 14, the celebration day of Israel's Independence, Yasin prepared an explosive charge which he gave to petitioner with an explanation as to its operation. Petitioner left Yasin's home for Tiberias at 9:00 a. m. on May 14 with the charge, and returned about 4:30 p. m. Petitioner went alone to Tiberias because he was concerned that Yasin might be recognized since "there were many people who knew (him)." Government Exhibit 1, "Statement by Yasin." Yasin gave petitioner instructions to place the bomb in a public area, and cautioned him to avoid military vehicles. On his return from Tiberias, petitioner told Yasin that he put the charge in a refuse bin in the center of town. The next day, May 15, Yasin met with petitioner and told him of news reports of the...

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