In re Extradition of Batchelder
| Decision Date | 25 June 2007 |
| Docket Number | No. 4:06mj136-WCS.,4:06mj136-WCS. |
| Citation | 494 F.Supp.2d 1302 |
| Parties | In re the EXTRADITION OF Steven Lee BATCHELDER, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
Robert O. Davis, U.S. Attorney, Tallahassee, FL, for Plaintiff.
R. Timothy Jansen, PA, Michael Robert Ufferman, PA, Tallahassee, FL, for Defendant.
ORDER OF CERTIFICATION TO THE SECRETARY OF STATE
This is a proceeding seeking extradition of Steven Lee Batchelder to Canada pursuant 18 U.S.C. § 3184 and the Treaty on Extradition Between the United States of America and Canada. Doc. 1 (complaint). Defendant is charged with three offenses under Canadian law: (1) abduction of a person under 14; (2) unlawful confinement; and (3) invitation to sexual touching. Neither party contests subject matter or in personam jurisdiction. The case is referred to me by N.D. Loc. R. 72.2(14). A final hearing was held on June 21, 2007. The Government presented three exhibits. These exhibits had also been filed as documents 15-2, 7-3, and 15-3 on the electronic docket. There was no testimony, and thus no need for a transcript.
Evidence to be considered and the standard of probable cause
Section 3184 of Title 18, United States Code provides in part that a warrant may issue to bring a defendant before a magistrate judge so that "the evidence of criminality may be heard and considered." The statute further provides that:
If, on such hearing, he [the magistrate judge] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.
18 U.S.C. § 3184 (emphasis added).
Section 3190 provides:
Depositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.
18 U.S.C. § 3190. Subpoenas for witnesses may be issued for an "indigent fugitive" for the hearing. 18 U.S.C. § 3191.
The offense or offenses charged must be included in the particular treaty as "extraditable" offenses. United States v. Fernandez-Morris, 99 F.Supp.2d 1358, 1360 (S.D.Fla.1999). The standard of proof is probable cause:
"The extradition hearing is not a trial on the merits to determine guilt or innocence, but serves as a means of ensuring that probable cause exists to believe the person whose surrender is sought has committed the crime for which his extradition is requested." Castro Bobadilla v. Reno, 826 F.Supp. 1428 (S.D.Fla. 1993), aff'd, 28 F.3d 116 (11th Cir.1994).
Our circuit long ago established the rules of evidence and burden of proof for an extradition hearing:
The evidence [in the record] was competent under 18 U.S.C. § 3190, which makes admissible, and therefore competent, documents submitted by the demanding government that satisfy certain specifications. Section 3190 provides that documents authenticated by the demanding government's authorities, so as to be admissible for similar purposes in tribunals of the demanding government, `shall be received and admitted as evidence' at an extradition hearing in this country `for all the purposes of such hearing'; and the certification of the principal United States diplomatic officer in the demanding nation `shall be proof' that the documents are so authenticated.
It has been held by the Supreme Court and the lower federal courts that `competent evidence to establish reasonable ground is not necessarily evidence sufficient to convict, nor only such as can pass technical rules governing the admissibility of evidence in criminal trials.' U.S. ex rel. Klein v. Mulligan, 50 F.2d 687, 688 (2 Cir.1931), cert. den., 284 U.S. 665, 52 S.Ct. 41, 76 L.Ed. 563 (1931), and the cases cited therein.
With respect to the evidence upon which the extradition magistrate acted, it must be remembered that the extradition magistrate merely determines probable cause, making an inquiry like that of a committing magistrate and no more. Benson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 32 L.Ed. 234 (1888). Probable cause was given its classic definition, on April 1, 1807, by Chief Justice John Marshall, sitting as committing magistrate in the treason prosecution of Aaron Burr. He held that he should not require evidence to convince himself that the defendant was guilty, but only that "furnishing good reason to believe that the crime alleged had been committed by the person charged with having committed it."
Jimenez v. Aristeguieta, 311 F.2d 547, 562 (5th Cir.1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1963) (footnote omitted) (citing in the footnote, United States v. Burr, 8 U.S. 455, 4 Cranch 455, 2 L.Ed. 677, 25 Fed.Cas. p. 2, 12 (C.C.D.Va.1807), from Beveridge, THE LIFE OF JOHN MARSHALL, Vol. III, p. 376).
Further,
The accused is not entitled to introduce evidence which merely goes to his defense but he may offer limited evidence to explain elements in the case against him, since the extradition proceeding is not a trial of the guilt or innocence but of the character of a preliminary examination held before a committing magistrate to determine whether the accused shall be held for trial in another tribunal.
Id., 311 F.2d at 556 (citations omitted). Thus, a Defendant may not present evidence that contradicts the evidence presented by the Government, but may present only explanatory evidence. Matter of Demjanjuk, 603 F.Supp. 1463, 1464-1465 (N.D.Ohio 1984); Fernandez-Morris, 99 F.Supp.2d at 1366 and cases cited. Explanatory evidence is evidence rebutting probable cause, not evidence in defense. Demjanjuk, 603 F.Supp. at 1464.
I have discretion with respect to what may be considered "explanatory." Id. However, "[t]he magistrate does not weigh conflicting evidence and make factual determinations but, rather, determines only whether there is competent evidence to support the belief that the accused has committed the charged offense." Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir.1986), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986); Austin v. Healey, 5 F.3d 598, 605 (2nd Cir.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1192, 127 L.Ed.2d 542 (1994) (quoting Quinn).
Whether there is to be discovery is also committed to my discretion.
In exercising discretion, the magistrate should consider both "the well-established rule that extradition proceedings are not to be converted into a dress rehearsal trial," id., and whether the resolution of the contested issue would be appreciably advanced by the requested discovery, id. Although the accused is not entitled to introduce evidence that goes to his defense, "he may offer limited evidence to explain elements in the case against him".
Quinn v. Robinson, 783 F.2d at 815 (citing, Jimenez v. Aristeguieta, 311 F.2d at 556). 18 U.S.C. § 3191 relates to subpoenas for witnesses, and not depositions, and thus does not imply that depositions may be taken. Jimenez v. Aristeguieta, 311 F.2d at 556.
It is argued that the standard for probable cause may vary according to the particular treaty at issue. Article 10(1) of the Extradition Treaty Between the United States of America and Canada, Government's Exhibit 2, provides:
(1) Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting state.
Government's Exhibit 2, Art. 10(1); doc. 7-3, p. 11 (emphasis added).
I initially relied upon Matter of Extradition of Schweidenback, 3 F.Supp.2d 113, 116 (D.Mass.1998), Romeo v. Roache, 820 F.2d 540, 545 (1st Cir.1987), and Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973) to conclude that Florida law should govern the sufficiency of the evidence to show probable cause as to the Canadian offenses. Doc. 30.
That ruling was reconsidered and I receded from that view. Doc. 40. The Treaty requires dual criminality, that is, "an offense punishable by the laws of both Contracting Parties." Government's Exhibit 2, Art. 2(1); doc. 7-3, p. 7 (emphasis added). It makes little sense to refer to federal substantive law for whether the Canadian offense has an analogue proscribed by a federal law and then to Florida law for the sufficiency of evidence to show probable cause for the Canadian offenses. The phrase in Article 10(1), "to justify his committal for trial if the offense of which he is accused had been committed in its territory," must be harmonized with Article 2. In this case, federal substantive law is the law to be examined to determine whether the dual criminality requirement has been met. Moreover, the "place" where Defendant was found is equally in the United States and in Florida. Since this is a federal treaty, it is more probable that the "place" intended is the United States...
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