In re Chan Kam-Shu

• Decision Date: 06 April 1973
• Docket Number: No. 72-2476.,72-2476.
• Citation: In re Chan Kam-Shu, 477 F.2d 333 (5th Cir. 1973)
• Parties: In the Matter of the Extradition of CHAN KAM-SHU, a fugitive from the Justice of the Republic of Liberia. UNITED STATES of America, Appellant, v. Chan KAM-SHU, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.2d 333 (1973)

In the Matter of the Extradition of CHAN KAM-SHU, a fugitive from the Justice of the Republic of Liberia UNITED STATES of America, Appellant, v. Chan KAM-SHU, Appellee.

No. 72-2476.

United States Court of Appeals, Fifth Circuit.

April 6, 1973.

COPYRIGHT MATERIAL OMITTED

John L. Briggs, U. S. Atty., Jacksonville, Fla., Alan C. Todd, Asst. U. S. Atty., Orlando, Fla., Murray R. Stein, John L. Murphy, Chief, Administrative Regulations Sec., Crim. Div., Dept. of Justice, Washington, D.C., for appellant.

Emmett A. Moran, Orlando, Fla., court appointed, for appellee.

Before JONES, GODBOLD and INGRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

This appeal presents two issues in defining the scope and construing the terms of the extradition treaty between the United States and Liberia. First, whether petitioner, a member of the crew of a Liberian flag vessel, who was brought into the United States after allegedly murdering another crew member while the ship was in international waters, is a fugitive from justice within the scope of the Treaty. Second, whether Liberian authorities timely presented a formal requisition for surrender of the petitioner after he was provisionally arrested. The District Court concluded that Liberia had not timely presented the formal request and granted a writ of habeas corpus. We reverse.

On January 30, 1972, Chan Kam-Shu, a crew member aboard the vessel Silver Shelton, allegedly fatally stabbed another crew member.¹ The Silver Shelton was then approximately 22 miles off the Atlantic Coast of Florida. The vessel immediately requested assistance from the United States Coast Guard, which instructed the ship to proceed to the mouth of the harbor at Port Canaveral, Florida, approximately two miles offshore. A Coast Guard cutter rendezvoused with the vessel at that location and carried the injured crewman to a hospital.

An FBI agent investigating the incident found the crewman dead at the hospital. At the invitation of the Silver Shelton's captain, the agent went aboard the vessel. He elicited statements from crew members and brought Chan ashore to the local jail. The agent testified that he took Chan into custody because the captain requested assistance in investigating the incident and in detaining the suspect, so the agent arrested Chan for the crime, and because both Chan and the captain requested that Chan be taken ashore, fearing that Chan would not be safe aboard ship after killing the other crewman, who was a popular man aboard ship. The Silver Shelton sailed after guaranteeing the cost of Chan's air transportation to Hong Kong. The FBI concluded its investigation and transferred custody of Chan to the Immigration and Naturalization Service (INS) which paroled him into the country. He remained in jail from the day he was brought ashore, January 30.

The United States notified Liberian authorities of the incident and furnished them the FBI investigation reports. Liberia charged Chan with murder and, by diplomatic note to the United States Department of State on March 27, requested Chan's extradition to Liberia to stand trial. The U.S. Attorney, under directions from the Justice Department, filed an extradition complaint and requested an arrest warrant in United States District Court on March 31. The District Judge was not satisfied that murder on the high seas was an extraditable offense under the Treaty. He therefore did not issue the arrest warrant until May 8, after receiving an opinion from a State Department legal advisor expressing the view that the offense was extraditable.² That same day Chan was arrested and returned to the custody of the U.S. Attorney. He remained in the same jail. Following the required procedure, on May 22, Liberia delivered to the State Department a duly certified, authenticated, formal extradition request. The request and accompanying documents were forwarded to the U.S. Attorney on June 16.

Meanwhile, on June 2, Chan had petitioned the District Court for a writ of habeas corpus. The court held a hearing and on June 16 entered an order granting the writ, quashing the arrest warrant, and releasing Chan to the custody of INS for deportation. The court found that Liberia had not timely produced the formal extradition papers pursuant to Article XI of the Treaty.³ We granted the United States' motion to stay the District Court's order pending this appeal.

The District Court decided that March 31 was the "date of commitment" for purposes of the Treaty, and, because Chan was still under arrest two months after that date, ordered him released. We conclude that the "date of commitment" contemplated by the Treaty was not March 31 but May 8, the date Chan was arrested pursuant to the court's warrant. Therefore, the two month period had not expired prior to Chan's habeas corpus hearing.⁴

Additionally, at argument, this court, sua sponte, raised the question of whether Chan was actually a "fugitive from justice" under the terms of the Treaty. We consider this issue essential to a proper determination of this appeal and decide that Chan is a fugitive properly extraditable under the Treaty.

I

Article I of the Treaty provides that the two governments will:

. . . deliver up to justice any person who may be charged with, or may have been convicted of, any of the crimes or offenses specified . . ., and who shall seek an asylum or shall be found within the territories of the other. . . .

54 Stat. 1733 (1939).

In determining whether Chan is a fugitive from justice within the scope of the Treaty, we assume two possible versions of his entrance into the United States:⁵ that the FBI agent arrested Chan in United States waters for a crime committed outside United States jurisdiction, and, alternatively, that the captain and Chan requested that Chan be removed from the ship in fear of his safety.

The FBI agent was authorized to investigate the incident and take Chan into custody both under the FBI's general power to arrest⁶ and under international principles of jurisdiction. A coastal state may exercise its jurisdiction to arrest a person and conduct an investigation aboard a foreign vessel in its territorial sea upon a request for assistance by the master of the vessel. Restatement (2d), Foreign Relations Law of the United States, § 46(2)(a).

On the other hand, if Chan's removal was based on both Chan's and the Captain's request, then the action by the United States authorities was valid under immigration laws. Section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(d)(5) (1970), authorizes the Attorney General, in his discretion, to parole aliens otherwise excludable under that section into the United States for reasons in the public interest.⁷ The reasons apparent in this situation, physical protection of Chan and potential extradition, are within the public interest. Klapholz v. Esperdy, 201 F.Supp. 294 (S.D.N.Y. 1961), aff'd, 302 F.2d 928 (2d Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 183, 9 L.Ed.2d 124 (1962) (parole for purpose of prosecution in the United States); cf. United States v. Cristancho-Puerto, 475 F.2d 1025 (1973). Additionally, the Immigration and Nationality Act supplies the authority for Chan's detention by INS. Section 232, 8 U.S. C.A. § 1222 (1970), authorizes observation and examination of an alien to determine admissibility. Section 233, 8 U.S.C.A. § 1223 (1970), authorizes removal from the ship and detention of the alien pending an exclusion decision. See also, United States ex rel. Fink v. Tod, 1 F.2d 246 (2d Cir. 1924), reversed on confession of error, 267 U.S. 571, 45 S.Ct. 227, 69 L.Ed. 793 (1925).⁸ Thus we conclude that Chan was lawfully brought into and detained in this country.

Next we consider whether Chan is a fugitive within the terms of the Treaty.⁹ The courts have long decided that although an individual leaves the jurisdiction in which the crime was committed before the crime is discovered or before charges are brought, he is a fugitive and is extraditable. Application of D'Amico, 177 F.Supp. 648 (S.D.N.Y. 1960); Ex parte Davis, 54 F.2d 723 (9th Cir. 1931); Hogan v. O'Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497 (1921); Whiteman, 6 Digest of International Law 768. Also, the manner of departure from the jurisdiction in which the crime was committed is not determinative of whether the individual is a fugitive. He only need be found in the territory of the asylum jurisdiction. United States ex rel. Eatessami v. Marasco, 275 F.Supp. 492 (S.D.N.Y.1967); Hammond v. Sittel, 59 F.2d 683 (9th Cir. 1932). In analogous situations involving extradition between states, individuals transported out of the requesting state by federal or state authorities and held by those authorities are extraditable.¹⁰ Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562 (1916); Brewer v. Goff, 138 F.2d 710 (10th Cir. 1943); Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885). Under either version of the manner of his entrance into the United States and despite his detention in this country, Chan was found within the territory of the United States for purposes of the Treaty and he is extraditable.

II

Secondly, we consider whether Chan was held under arrest beyond the two months allowed by the Treaty. Article XI of the Treaty,¹¹ in conjunction with 18 U.S.C.A. §§ 3184-92 (1969), provides the procedural framework for extradition of an international fugitive. In the usual case an arrest warrant is sought only after submitting the formal extradition documents to the district court. However, under circumstances which indicate that the individual sought might leave the jurisdiction before formal extradition documents can be obtained, the Treaty contemplates the use of provisional arrest until the formal extradition documents arrive. 18 U.S.C.A. § 3184 (1969) is the authority for United States judicial officers to conduct the requisite proceedings for extradition under a treaty.¹²

In this case...