In Re Extradition of Drayer, 98-3595

• Decision Date: 17 June 1999
• Docket Number: No. 98-3595,98-3595
• Citation: 190 F.3d 410
• Parties: (6th Cir. 1999) In Re: In the Matter of the Extradition of Michael John Drayer, Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 410

190 F.3d 410 (6th Cir. 1999)

In Re: In the Matter of the Extradition of Michael John Drayer, Appellant.

No. 98-3595

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 17, 1999

Decided and Filed: August 30, 1999

Appeal from the United States District Court for the Northern District of Ohio at Cleveland, No. 96-MC-00259--John M. Manos, District Judge.

Gretchen A. Holderman, Cleveland, Ohio; Nancy L. Kelley, OFFICE OF THE U.S. ATTORNEY, Cleveland, Ohio, for Appellant.

Before: BOGGS, NORRIS, and BATCHELDER, Circuit Judges.

OPINION

ALAN E. NORRIS, Circuit Judge.

Michael John Drayer (a.k.a. John Frederick Johnson) filed a motion construed as a petition for a writ of habeas corpus, challenging his pending extradition to Canada where he has been charged with a 1981 murder. He grounds his opposition to extradition on three factors: (1) denial by the district court of his request for discovery; (2) delay on the part of Canada in seeking his extradition; and (3) failure by the district court to enforce a cooperation agreement between him and Canadian authorities. For the reasons outlined below, we affirm the district court's denial of his petition.

I.

This appeal stems from a complaint for extradition filed on May 23, 1996, by the United States on behalf of Canada. According to this complaint, a warrant for petitioner's arrest issued on May 18, 1982 for the 1981 murder of William Sederquest in Langley, British Columbia. It describes the circumstances of the crime, including the fact that two of petitioner's alleged co-defendants have been convicted in Canada of first degree murder.¹ The United States and Canada are signatories to an extradition treaty; the extradition process that applies in cases such as this one is set out at 18 U.S.C. 3184 (1994).

In response to the complaint for extradition, petitioner filed a motion for discovery, seeking "all information and documents within the possession, custody or control of the United States or police or prosecuting officials of Canada which may tend to show that the homicide of William Wilford Sederquest occurring on or about October 31, 1981, was not planned and deliberate." He also sought transcripts of the trial of his co-defendants and any information "which reflect[s] any statements or assurances made to [petitioner] and/or his attorney . . . that Canada would not seek to extradite [petitioner] as a result of . . . [his] cooperation at that time." He also filed a motion to dismiss the extradition complaint. Both motions were denied by the district court, which issued a certification of extraditability and order of commitment.

Petitioner then filed a motion to vacate pursuant to 28 U.S.C. 2255 as a means of requiring the district court to revisit its rulings.² The district court opinion denying that motion forms the basis of this appeal.

At the time that the extradition complaint was filed, prisoner was (and still is) serving a sentence in Ohio for an unrelated murder. According to an affidavit filed by petitioner's former attorney, Corporal I. R. Williams of the Royal Canadian Mounted Police ("RCMP") visited petitioner in jail on February 12, 1982 while the latter awaited trial for murder in Trumbull County. The affidavit states that "in exchange for [petitioner's] cooperation with Canadian Officials in the [sic] prosecuting his co-defendants for the murder of William Sederquest, no further proceedings would be taken against him by Canada." Furthermore, "Williams represented and held himself out as a Canadian Official having full and complete authority to make promises, representations, and assurances on behalf of the Canadian Government."

Although the alleged cooperation agreement between petitioner and Canadian authorities was not reduced to writing, he apparently provided them with a sworn statement implicating his colleagues in the Sederquest murder.

For their part, the Canadians do not deny that Corporal Williams interviewed petitioner. In 1989, the RCMP contacted Ohio prison officials in order to lodge a detainer against petitioner, indicating that Canada would defer seeking extradition until "the time approaches closer to the expected parole review date." In response to that action, petitioner's former attorney wrote to the RCMP to remind it of what he asserted was a promise not to seek petitioner's extradition. The RCMP responded by letter that "[t]he assurance purported to have been given to [petitioner] would have no effect in law, due to a number of mitigating circumstances."

II. 1.Cooperation Agreement

We turn first to petitioner's argument that the district court should have enforced the cooperation agreement that allegedly guaranteed petitioner that he would not be extradited if he assisted Canadian authorities. In Santobello v. New York, 404 U.S. 257 (1971), the Court held that plea bargains are generally binding upon the government: "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello, 404 U.S. at 262. This logic has been extended to immunity agreements, see United States v. Fitch, 964 F.2d 571, 574 (6th Cir. 1992) (government bound by agreement unless it can show material breach by defendant), and to cooperation agreements, United States v. Streebing, 987 F.2d 368, 372 (6th Cir. 1993) (cooperation agreements binding if government agent is authorized to make the agreement and defendant relies upon it to his detriment). Such agreements are analogous to contracts and thus reviewing courts are governed by "normal contract law standards." Fitch, 964 F.2d at 574 (internal punctuation and citation omitted). Furthermore, breach of an immunity agreement entered into by the United States with a defendant has been held sufficient reason to grant habeas relief in the face of a request for extradition. See United States v. Plaster, 720 F.2d 340, 350 (4th Cir. 1983).

Petitioner contends that his cooperation agreement represents just such a contract and that it was breached by Canadian authorities with the "willful" assistance of United States government officials. The district court rejected this argument by focusing upon the role of the United States:

The enforceability of such agreements . . . is subject to the condition that the participating government agent be authorized to make the promises contained in the agreement. This authority must be particularly clear as to promises regarding extradition:

[T]he extradition power, as it involves issues of foreign affairs, must be preserved within the Executive's discretion to the extent permitted by constitutional limitations. We thus conclude that the mere claim to such authority by a government official is insufficient to create apparent authority, and that defense counsel must be charged with that knowledge. Instead, the official must have some articulable indication that authority was delegated to him by the President or the Secretary of State.

Plaster v. United States, 720 F.2d 340, 354 (4th Cir. 1983).

The purported agreement stems from Inspector Williams' alleged promise that Petitioner would not be subject to further proceedings in Canada if he cooperated. The record is devoid of evidence of involvement of a United States official, or that Inspector Williams was authorized to act on behalf of the United States. Petitioner argues the United States in effect "brokered" the agreement by permitting Inspector Williams to visit Petitioner in Trumbull County jail. Such alleged "involvement," indirect as it is, is not an "articulable indication" that any Trumbull County official received authority from the President or Secretary of State to make promises with respect to Petitioner's extradition.

Memorandum Opinion at 4.

Petitioner makes the same argument to this court: first, that the Ohio Attorney General, through state prison officials, brokered the agreement by permitting Williams to interview petitioner; second, by lodging a warrant against him, these officials facilitated the breach of the agreement by the Canadians.

The weakness in petitioner's argument is his inability to show either that the United States was a party to the alleged cooperation agreement or that Williams acted under the authority of the United States. While Ohio governmental officials permitted Williams to visit petitioner in the county jail, there is nothing in the attorney's affidavit or elsewhere to indicate that they knew about the substance of the discussions between the two.³ Simply filing a warrant or a complaint for extradition at the request of Canadian authorities does not make Ohio or the United States party to the cooperation agreement. Under the circumstances, it strikes us that the appropriate place to raise a defense based upon the cooperation agreement would be in any subsequent Canadian proceeding.

Because there is nothing to support a conclusion that the United States was party to, or in any way authorized the alleged cooperation agreement, its existence would not entitle petitioner to habeas relief.

2.Discovery Request

As mentioned at the outset of this opinion, petitioner challenges the district court's denial of his request for discovery. The resolution of this issue requires us to address, in view of this court's opinion in Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993), the extent to which the holding of Brady v. Maryland, 373 U.S. 83 (1963), applies to discovery requests for exculpatory evidence made by the target of an extradition proceeding.

In Demjanjuk, we addressed the Brady issue in these terms:

We believe Brady should be extended to cover denaturalization and extradition cases where the government seeks denaturalization or extradition based on proof of alleged criminal activities of the party proceeded against. If the government had sought to denaturalize Demjanjuk only on the basis of his...