In re Robertson

Decision Date19 October 2012
Docket NumberCASE NO. 11-MJ-0310 KJN
PartiesIn Re Extradition of James William Robertson.
CourtU.S. District Court — Eastern District of California

The United States, on behalf of the Government of Canada, has requested the extradition of James William Robertson, a dual citizen of both Canada and the United States. (See Government Ex. 1.) The requesting country seeks Robertson's extradition to serve the remainder of a criminal sentence imposed upon him in Canada and to stand trial on three new charges of violating the conditions of a long-term supervision order imposed against him in that country. The request for extradition is made by the United States on behalf of Canada pursuant to the December 3, 1971 Extradition Treaty Between the United States of America and Canada which entered into force on March 22, 1976, as amended by subsequent Protocols. 27 UST 983, TIAS 8237 (hereinafter "Treaty"); Government Ex. 1 (Doc. No. 40) - U.S. Department of State Certification dated Oct. 28, 2011, Attachments.

Below the court will review the background relating to the request for extradition, the basis for that request, and the legal standards controlling this court's consideration of the request for certification of extradition. In the end, however, the parties dispute only the following two issuesmaterial to the pending request for extradition: (1) has Robertson completed serving the criminal sentence imposed in his case by the Canadian court so that he may not be extradited for the requested purpose of completing service of his sentence?1 ; and (2) are the new charges brought against him in Canada for violating the terms of his Long Term Supervision extraditable offenses under the governing Treaty or do they fail as a basis for extradition under the principle of dual criminality because they are not criminal offenses for which he could be prosecuted under the laws of the United States?

For the reasons set forth below, the court finds that the certificate of extradition should be granted only to the extent it is based on Canada's request that Robertson be returned to complete the unserved portion of his sentence.


Following his second trial2 on November 7, 2003, James William Robertson, a dual citizen of Canada and the United States, was found guilty by the Honorable Madam Justice Kilpatrick of the Supreme Court of British Columbia on several "counts of various historical offences ranging from common assault to rape" spanning a twenty-three year period from 1965 to 1988. (Government Ex. 2 (Doc. No. 34), Ex. F at 1.) Thereafter, on January 20, 2005, Robertson was sentenced on the following offenses: (1) sexual assault in violation of the Criminal Code of Canada ("CCC") § 246.1; (2) two counts of indecent assault of a male person upon another male person in violation of CCC § 156; (3) two counts of indecent assault upon a female in violation of CCC § 141(1); (4) three counts of indecent assault upon a female in violation of CCC § 149(1); (5) rape in violation of CCC § 136(a); (6) rape in violation of CCC § 144; (7) common assault in violation of CCC § 231(1); and (8) common assault inviolation of CCC § 245(1) to sixteen years imprisonment. (Id. at 1-4; see also Government Ex. 2 (Doc. No. 35), Ex. G.)3 After being credited for eleven years time served in custody while awaiting trial, Robertson effectively was sentenced to five years of additional imprisonment. In addition, a Long-Term Offender designation was entered with respect to count one by Justice Kirkpatrick requiring Robertson "to be placed on supervision in the community for a period of ten years following his release." (Government Ex. 2 (Doc. No. 35), Ex. G.)4 The requesting country alleges that the Long-Term Offender designation in Robertson's case was upheld on appeal. (Complaint For Provisional Arrest (Doc. No. 1) at 4.)

Following his sentencing, Robertson was paroled from prison in Canada after serving an additional twenty-two months in custody. Thereafter, following his service of eighteen months on parole, Robertson was transitioned to "Statutory Release" for the final twenty months of his additional five-year sentence, which was completed on January 19, 2010. On that date, a Long Term Supervision Certificate was issued to Robertson by the Chief of Sentence Management at the William Head Institution advising Robertson of the conditions of his LTSO5 , the identity and contact information for his parole supervisor and an advisement that his failure or refusal to abide by the conditions of the LTSO was an offense under the CCC. (Government Ex. 2 (Doc. No. 35), Ex. I.)

In March of 2010, contrary to the conditions of his Long Term Supervision, Robertson moved from his sister's residence in Richmond, British Columbia without advising his parole supervisor. In addition, he ceased reporting to that officer. Accordingly, on March 31, 2010, a Federal Warrant of Apprehension was issued by the Correctional Services Canada due to Robertson's failure to comply with his required frequency of contact during the term of his Long Term Supervision, inviolation of CCC § 753.3(1). In April of 2010, authorities determined that Robertson had entered the United States and was living in South Lake Tahoe, California. Thereafter, on September 23, 2010, Robertson was indicted in Canada on three counts of violating CCC § 753.3(1).6

Not until September 29, 2011, did this court issue an order authorizing the provisional arrest of Robertson pursuant to 18 U.S.C. § 3184 based upon a complaint filed with a view towards extradition filed that same day. (Doc. Nos. 1 & 2.) Robertson was arrested by U.S. Marshals on September 30, 2011. On October 3, 2011, Robertson made his initial appearance before United States Magistrate Judge Kendall J. Newman, contested his extradition and removal to Canada and was ordered detained.7 (Doc. Nos. 8 & 9.)

On November 14, 2011, the government filed a memorandum in support of extradition. (Doc. No. 17.) On November 15, 2011, counsel on behalf of Robertson filed an opposition. (Doc. No. 18.) The parties appeared before the undersigned for extradition hearing on November 16, 2011. See Local Rule 302(b)(8) and 18 U.S.C. § 3184 (authorizing Magistrate Judges to conduct extradition proceedings under 18 U.S.C. § 3181, et seq.) At that initial hearing the assigned Assistant United StatesAttorney offered into evidence Government Exhibits 1 and 28 in support of the extradition request. (Id.) Without objection, those exhibits were admitted into evidence. (Id.) Following oral argument, the government was ordered to file a reply to Robertson's opposition to extradition and a further extradition hearing was scheduled. (Id.)9 On November 30, 2011, the government filed its reply as ordered. (Doc. No. 25.) Counsel for Robertson filed a sur-reply in opposition to extradition on December 8, 2011. (Doc. No. 26.) The parties appeared before the court on December 16, 2011, for further hearing on the extradition request. Oral argument was heard and the matter taken under submission.


The government asserts three theories in support of Robertson's extradition to Canada under the applicable treaty: (1) that the LTSO is part of the sentence imposed on Robertson in Canada and he can be extradited to finish serving that sentence; (2) that Robertson's violation of the conditions of his LTSO, if committed in the United States could be prosecuted as criminal contempt pursuant to 18 U.S.C. § 401(3) and thus the dual criminality requirement is satisfied and he may be extradited to face the three new charges brought against him in Canada for violating CCC § 753.3(1); and (3) that Robertson's failure to abide by the conditions of the LTSO is also analogous to a failure to register as a sex offender or update that registration as required under the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, et seq. which carries a maximum term of imprisonment of up to ten years under 18 U.S.C. § 2250 and thus dual criminality is satisfied and he may be extradited to face the three new charges brought against him in Canada for violating CCC § 753.3(1).

Robertson disputes the validity of each of the governments' asserted theories for extradition, arguing that: (1) the LTSO is not part of his criminal sentence under Canadian law and therefore cannot serve as the basis for his extradition under the applicable treaty; (2) that the new charges brought against him in Canadian are not substantially analogous to the charge of contempt of court in the United States and the dual criminality requirement prevents his extradition based on those charges; and (3) the new charges brought against him in Canada for violating a long-term supervision order are not analogous to charges brought in the United States under SORNA for failing to register as a sex offender and therefore he cannot be extradited based on those new charges given the dual criminality requirement.

Below, after setting forth the applicable legal standards, the court will address the legal issues presented by this extradition request.

I. Legal Standards

"'Extradition from the United States is a diplomatic process' that is initiated when a foreign nation requests extradition of an individual from the State Department." Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir. 2008) (quoting Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005), cert. denied 546 U.S. 1171 (2006)). See also Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir.) ("[E]xtradition is a matter of foreign policy entirely within the discretion of the executive branch, except to the extent that the statute interposes a judicial function.") (quoting Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997)), cert. denied 549 U.S. 935 (2006). In this regard, extradition from the United States to a requesting country is governed by 18 U.S.C. § 3181 et seq. When a foreign fugitive is found in the United States,...

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