Emami v. U.S. Dist. Court for Northern Dist. of California, 86-2237

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 834 F.2d 1444
• Docket Number: No. 86-2237,86-2237
• Parties: Reza EMAMI, Petitioner-Appellant, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent-Appellee, Federal Republic of Germany, Real Party in Interest.
• Decision Date: 18 December 1987

Page 1444

834 F.2d 1444 Reza EMAMI, Petitioner-Appellant,
v.
UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF
CALIFORNIA, Respondent-Appellee,
Federal Republic of Germany, Real Party in Interest. No. 86-2237. United States Court of Appeals,
Ninth Circuit. Argued and Submitted June 12, 1987.
Decided Dec. 18, 1987.

Page 1446

Ephraim Margolin, San Francisco, Cal., for petitioner-appellant.

Mark N. Zanides, Asst. U.S. Atty., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL and TANG, Circuit Judges, and STEPHENS, ^* District Judge.

STEPHENS, Senior District Judge:

Dr. Reza Enami appeals from the denial of his petition for writ of habeas corpus. Emami's habeas petition sought to invalidate the district court's May 30, 1986, finding that Emami was extraditable to the Federal Republic of Germany (Germany) for criminal insurance fraud offenses. We have jurisdiction under 28 U.S.C. Sec. 2253 (1982).

On appeal, Emami has raised three serious contentions. He contends that the district court lacked jurisdiction to order his extradition for "detention for investigation" where the failure of West Germany to file a public charge against appellant indicates that there is no guarantee appellant will actually be tried. Emami also contends that his alleged acts do not constitute an extraditable offense. Finally, appellant contends that the documents used to demonstrate probable cause for believing

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that he committed the charged offenses were not competent evidence because they consist primarily of reports of unsworn hearsay statements. BACKGROUND

Appellant Reza Emami is an Iranian citizen who operated a medical clinic in Bochum, Germany, from 1978 to 1985. Germany has charged that Emami defrauded the German public health insurance system and private insurance companies of 6.1 million Deutsche marks (over two million dollars) by billing for services not performed and for fictitious prescriptions and by overbilling for services actually rendered. German police arrested Emami in Bochum on October 2, 1985. The German prosecutor's affidavit reports that Emami made a partial confession during interrogation and was subsequently released on his own recognizance on October 3, 1985. Emami failed to appear at a scheduled hearing in a German court on October 10, 1985. Emami had instead traveled to the United States. Germany characterizes Emami's failure to appear as flight; Emami maintains he traveled to San Jose, California, in order to receive treatment for heart disease.

The Bochum Local Court issued a warrant for Emami's arrest on December 4, 1985. The United States Attorney, acting on behalf of the German government, applied to a federal magistrate for a provisional arrest warrant. The warrant issued, and on December 6, 1985, Emami was arrested in San Jose and taken into federal custody. At the time of his arrest, Emami suffered a heart infarction. Consequently, the initial bail proceedings in the case were held in San Jose's Good Samaritan Hospital.

Pursuant to the terms of the extradition treaty between the United States and Germany, ¹ Germany submitted the documents supporting its request for Emami's extradition on January 28, 1986. The factual allegations supporting the extradition request are based on the sworn affidavit of German prosecutor Hermann Keller. Keller's affidavit contains fifty-two pages of detailed summaries of statements made by former employees and patients of Dr. Emami.

DISCUSSION

No direct appeal is available from a district court's certification of extraditability because that decision is not a final order. Caplan v. Vokes, 649 F.2d 1336, 1340 (9th Cir.1981). Because review is available only by way of petition for habeas corpus, our inquiry in reviewing the denial of such a petition is considerably restricted. Id. Review of an extradition order in this circuit is limited to the following:

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 the terms of the treaty; and (5) there was competent legal evidence to support a finding of extraditability.

Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.) cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978); See also, Theron v. United States Marshal, 832 F.2d 492, 495 (9th Cir. 1987).

With regard to the requirement that an extradition request contain competent legal evidence to support a finding of extraditability, article 14(3)(a) of the Treaty requires the submission of "such evidence as, according to the law of the Requested State, would justify [the extraditee's] arrest and committal for trial if the offense had been committed there ..." This language requires extradition under the Treaty to be based on competent evidence that would be sufficient to establish probable cause to hold a defendant for trial under United States law. See Zanazanian v. United States, 729 F.2d 624, 626 (9th Cir.1984).

Emami's contentions involve the first, fourth and fifth areas of inquiry identified in Hooker.

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I. JURISDICTION OF THE DISTRICT COURT

Emami contends that the district court acted without jurisdiction when it found him extraditable. Emami argues that under article 1(1) of the Treaty, extradition to Germany is contingent on a public charge or Anklage having been filed against the extraditee in Germany. Emami also argues that the district court had no jurisdiction to find him extraditable where the German government requested him for purposes of "detention for investigation" and not for prosecution.

A. THE TREATY DOES NOT REQUIRE THE FILING OF A PUBLIC CHARGE

Whether a treaty conditions extradition upon the filing of formal charges is a question cognizable on appeal from the denial of a petition for habeas corpus. In re Assarsson, 635 F.2d 1237, 1240-41 (7th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981). Article 1(1) limits the application of the Treaty to persons "who have been charged with an offense or are wanted by the other Contracting Party for the enforcement of a judicially pronounced penalty or detention order...." Emami contends that this language incorporated by reference paragraph 157 of the German Code of Criminal Procedure which defines "a person charged" as "an accused against whom the public charge [Anklage ] has been preferred." In Assarsson the Seventh Circuit held that the existence of formal charges can be reviewable only if the treaty itself conditions extradition on the existence of formal charges. 635 F.2d at 1241. The Seventh Circuit's reasoning demonstrates that grafting such a requirement as Emami proposes on to the treaty in the instant case is inadvisable.

In Assarsson the extraditee argued that the language of the extradition treaty between the United States and Sweden ² made extradition conditional on the existence of formal charges. Id. at 1241. Article I of the U.S.-Sweden Treaty limited application of that treaty to persons "who have been charged with or convicted of any of the offenses specified in article II...." The Seventh Circuit interpreted this language, which is remarkably similar to article 1(1) of the treaty involved in the instant case, to impose no requirement that formal charges be filed. The Assarsson court noted that the word "charged" was used only in contrast to "convicted" so as to define the two classes of extraditees that the treaty covered. 635 F.2d at 1242. The court reasoned that the word "charged", used as a verb in the generic sense only to indicate "accused", could not be transmuted into a requirement that "charges", a noun, be filed. 635 F.2d at 1242-43. The same argument applies directly to the language of article 1(1) of the treaty in the instant case.

The Assarsson court further noted that the treaty required certain certified documents to accompany an extradition request. A copy of formal charges was absent from the list of required documents. The court reasoned that the parties had not intended to require such a document because the parties could have specifically included such a requirement but had not. Id. at 1243. Similarly, all the documents that the treaty with Germany required the German authorities to submit with its request to extradite Emami were before the district court. ³

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Finally, the Assarsson court refused to review compliance with Swedish criminal procedure for the same reasons this court refuses to entangle itself in the present parties' arguments concerning the procedural requirements of German law. We refrain from interpreting the requirements of German criminal procedure both out of respect for German sovereignty and because we recognize the chance of erroneous interpretation is much greater when we try to construe the law of a country whose legal system is not based on common law principles. See Assarsson, 635 F.2d at 1244.

B. THE GERMAN GOVERNMENT INTENDS TO PROSECUTE EMAMI

In relation to international fugitives who have not yet been convicted, article 2(2)(a) of the Treaty specifies that extradition shall be granted "[f]or prosecution ..." Emami claims that Germany is not yet committed to prosecuting him but instead has requested his extradition only for "detention for investigation" under paragraph 112 of the German Code of Criminal Procedure. Our reservations against deciding questions of German criminal procedure set forth above apply equally to this contention. The German government has stated that Emami is wanted for prosecution both in its request for Emami's provisional arrest and in its request for Emami's extradition. These statements of intention on the part of the German government satisfy the requirement of article...