Jaffe v. Smith, 86-3540

Decision Date21 August 1987
Docket NumberNo. 86-3540,86-3540
PartiesSidney L. JAFFE, Petitioner-Appellant, v. Jim SMITH and Richard L. Dugger, Respondents-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Fletcher N. Baldwin, Jr., Gainesville, Fla., for petitioner-appellant.

Richard B. Martell, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

Sidney L. Jaffe appeals from the denial of his petition for a writ of habeas corpus by the United States District Court for the Middle District of Florida. Finding no error in the district court's decision, we affirm.

This case has a lengthy and somewhat complicated history. In August of 1980 Jaffe was arrested in Florida and charged with twenty-eight counts of unlawful land sale practices. He obtained bail in the amount of $137,500.00 from Accredited Surety & Casualty Company ("Accredited") and was released from custody. He then returned to his home in Toronto, Ontario, Canada.

Jaffe failed to appear for the pretrial conference in his criminal case and the judge issued a warrant for his arrest. On May 18, 1981, his case was called for trial and again Jaffe failed to appear. A second arrest warrant was issued. The judge also ordered that the bond be estreated and directed the state attorney to immediately commence extradition proceedings to procure Jaffe's return from Canada. The state attorney submitted two applications for extradition to the Governor of Florida, both of which were disapproved as to form by the Attorney General of Florida.

Accredited did not receive notice of the May 18th bond forfeiture until June 29, 1981, when final judgment was entered against Accredited in favor of the State of Florida for the use and benefit of Putnam County. Upon motion by Accredited, the court vacated the earlier final judgment on the condition that Accredited place the sum of $137,500.00 in escrow and produce Jaffe within ninety days.

On September 23, 1981, while jogging near his home in Canada, Jaffe was forcibly taken into custody by two professional bail bond recovery agents (i.e., "bounty hunters"). He was driven to the United States-Canadian border where the bench warrant issued by the Florida state court judge was used to secure his entrance into this country. He was then flown to Florida.

Jaffe was tried and acquitted for failure to appear at the pretrial hearing but was found guilty of failure to appear at the trial. He was then tried on the twenty-eight counts of land sale violations. At his trial on these twenty-eight counts Jaffe moved to dismiss the indictment for lack of jurisdiction on the ground that the kidnapping had resulted in his invalid detention. This motion was denied and Jaffe was convicted on all counts.

Jaffe appealed his conviction to the Florida Fifth District Court of Appeals. While that appeal was pending he filed this habeas corpus petition in the United States District Court for the Middle District of Florida (Jacksonville Division), alleging that the Florida authorities had no jurisdiction to try, convict or incarcerate him because he was abducted from Canada in violation of the Treaty of Extradition, Dec. 3, 1971, United States-Canada, 27 U.S.T. 983, T.I.A.S. No. 8237 ("Treaty"). This federal habeas corpus petition was dismissed for failure to exhaust state remedies. The federal district court issued a certificate of probable cause and Jaffe appealed the dismissal to this court. In the interim, the Florida Fifth District Court of Appeals reversed all twenty-eight of Jaffe's land sale convictions but affirmed his conviction for failure to appear at trial. Jaffe v. Florida, 438 So.2d 72 (Fla.5th DCA 1983). Because this decision exhausted Jaffe's state remedies this court dismissed the federal appeal, vacated the district court order dismissing the petition for failure to exhaust and remanded the case to the district court. While his appeal was pending in this court Jaffe filed a separate habeas corpus petition in the Orlando Division of the Middle District of Florida. This petition was also dismissed for failure to exhaust state remedies and Jaffe's motion for a certificate of probable cause was denied.

While Jaffe was incarcerated for his conviction for failure to appear at trial he was indicted on one count of organized fraud, stemming from the same land sale activities. He was released from custody in October 1983 and allowed to post bond on the fraud charge. He returned to Canada and failed to appear for trial on this charge.

On remand of the first habeas corpus petition, the magistrate recommended that the district court decline to accept jurisdiction of Jaffe's case, either because Jaffe "may very well be considered an 'abuser' of the writ," or because he may be considered a fugitive from justice. Should the case not be dismissed for lack of jurisdiction, the magistrate recommended that the court deny the writ on the merits. The district court adopted the magistrate's recommendation that it should decline jurisdiction for the above reasons and held further that if it accepted jurisdiction it would dismiss on the merits. This appeal followed.

The issue raised by Jaffe's petition for a writ of habeas corpus is whether he was removed from Canada in violation of the Treaty, resulting in a deprivation of due process and thereby rendering his Florida trials and convictions invalid. Because his substantive claim is without merit we affirm the district court. In doing so, we find it unnecessary to reach the alternative theories that Jaffe was an abuser of the writ or a fugitive from justice.

Since 1842 the rendition of fugitives from justice between the United States and Canada has been governed by a number of bilateral agreements, of which the 1971 Treaty on Extradition is but the most recent. Under international law, as recognized in the United States, any nation has the right not to surrender fugitives, but instead to grant asylum. The function of extradition treaties is to create exceptions to this right of other nations.

Prior to these treaties, and apart from them, it may be stated as the general result of the writers upon international law that there was no well defined obligation of one country to deliver up such fugitives to another, and though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked; and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law.

United States v. Rauscher, 119 U.S. 407, 411-12, 7 S.Ct. 234, 236, 30 L.Ed. 425, 426 (1886).

Absent governmental action, either through a direct violation of a treaty or through circumvention of the treaty, a fugitive has no basis upon which to challenge his/her return to the prosecuting jurisdiction. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). In Ker the defendant was indicted in Illinois and subsequently apprehended against his will in Peru and returned to Illinois to stand trial. The defendant attacked his conviction on several grounds, one of which...

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4 cases
  • Jaffe v. Snow
    • United States
    • Florida District Court of Appeals
    • 13 Noviembre 1992
    ...allowed to post a bond (for $150,000) to secure his return for trial on the organized crime charges in Putnam County. See Jaffe v. Smith, 825 F.2d 304 (11th Cir.1987). Jaffe traveled back to Canada, but has not yet reappeared in Florida. The second bond was forfeited in 1985. He has not at ......
  • Harper v. State
    • United States
    • Georgia Court of Appeals
    • 18 Agosto 2016
    ...Steiger , 318 F.3d 1039, 1045 (11th Cir. 2003) ; Landry v. A–Able Bonding, Inc. , 75 F.3d 200, 204–205 (5th Cir. 1996) ; Jaffe v. Smith , 825 F.2d 304, 307–308 (11th Cir. 1987) ; Loden v. State , 199 Ga.App. 683, 687, 406 S.E.2d 103...
  • Green v. Abony Bail Bond, 6:04-cv-241-Orl-22KRS.
    • United States
    • U.S. District Court — Middle District of Florida
    • 30 Marzo 2004
    ...to address the issue of whether bail bondsmen are state actors for purposes of § 1983, the appellate court's decision in Jaffe v. Smith, 825 F.2d 304 (11th Cir.1987) is instructive on this In Jaffe, Florida bounty hunters operating in Canada abducted the defendant and returned him to the St......
  • Weaver v. James Bonding Co., Inc.
    • United States
    • U.S. District Court — Southern District of Alabama
    • 1 Agosto 2006
    ...the notion of a symbiotic relationship between bail bondsmen and the state criminal systems with which they work. See Jaffe v. Smith, 825 F.2d 304, 307-08 (11th Cir.1987) (finding no governmental action, as necessary to trigger treaty violation, where bail bondsmen forcibly seized plaintiff......

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