Jhirad v. Ferrandina, 72 Civ. 4026.

• Citation: 355 F. Supp. 1155
• Decision Date: 23 January 1973
• Docket Number: No. 72 Civ. 4026.,72 Civ. 4026.
• Parties: Elijah Ephraim JHIRAD, Plaintiff, v. Thomas E. FERRANDINA, United States Marshal, Southern District of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

355 F. Supp. 1155

Elijah Ephraim JHIRAD, Plaintiff, v. Thomas E. FERRANDINA, United States Marshal, Southern District of New York, Defendant.

No. 72 Civ. 4026.

United States District Court, S. D. New York.

January 23, 1973.

COPYRIGHT MATERIAL OMITTED

Tenzer, Greenblatt, Fallon & Kaplan, New York City, for plaintiff; by Edward Sadowsky and Stacy L. Wallach, New York City, of counsel.

Steinberg & Steinberg, New York City, for the Government of India; by Louis Steinberg and Edwin A. Steinberg, New York City, of counsel.

William Bronner, Asst. U. S. Atty., for defendant Ferrandina.

MEMORANDUM AND ORDER

DUFFY, District Judge.

This case comes to this Court as an application by petitioner, Jhirad, for a writ of habeas corpus, attacking the jurisdiction of a United States magistrate to determine the appropriateness of extraditing Jhirad to India.

The Government of India has sought the extradition, pursuant to 18 U.S.C. § 3182, of Jhirad, who is a native Indian now a resident alien in this country. It is alleged that while Judge Advocate General of the Indian Navy, Jhirad embezzled large sums of money from a naval fund.

Normally, the procedure in an extradition matter, as set forth in 18 U. S.C. § 3184, involves the issuance of a warrant upon complaint and then a hearing before a magistrate, who determines whether there is sufficient evidence to sustain the charged offense under the applicable treaty of extradition. The determination of a magistrate is not directly appealable. Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1969), cert. den., 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970). The only method of attacking such a determination is by a petition for a writ of habeas corpus. Usually, such a writ is sought after a hearing by the magistrate. Here, however, petitioner has brought this petition before the hearing could take place. In several cases, including Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903) and Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir. 1954), cert. den., 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 698 (1954), petitions have been heard prior to a hearing where there were unusual circumstances.

Petitioner has unfortunately sought to circumvent the normal orderly extradition procedures, and the Court wishes to strongly discourage this premature use of the writ. However, this case has been in limbo for nearly five months after the untimely death of the late Judge McLean, and the Court feels constrained to determine the merits of petitioner's claims.

At the outset, respondent has suggested that a writ of habeas corpus under 28 U.S.C. § 2241 will not lie because petitioner, free on bail, is not "in custody" as the statute requires. Until recently, the "in custody" requirement meant that a prisoner would have to be incarcerated before he could use the writ of habeas corpus. However, the "in custody" requirement has recently been interpreted with greater latitude. In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Supreme Court held that a prisoner on parole under the custody and control of a parole board is "in custody" within the meaning of 28 U.S.C. § 2241. Likewise, five years later the Supreme Court in Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) determined that the fact that a petitioner's sentence had expired while his petition for the writ was on review, did not defeat jurisdiction under the Federal statute. Subsequently, the lower courts have expanded the situations in which jurisdiction to grant a writ of habeas corpus will lie. In Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969) it was held that a state prisoner free on bond could seek a writ of habeas corpus and in 1970 the same court decided that release on appeal bond was "in custody" for Federal jurisdictional requirements. Capler v. City of Greenville, 422 F.2d 299 (5th Cir. 1970).

Two district courts in this Circuit have echoed the new approach to the "in custody" requirement. Judge Bryan in Duncombe v. New York, 267 F.Supp. 103 (S.D.N.Y.1967) by way of dictum suggested that a person released on bail is legally in custody for the purpose of the habeas statute. In U.S. ex rel. Smith v. DiBella, 314 F.Supp. 446 (D.Conn.1970) the Court held that a petitioner released on his own recognizance was in custody for the purposes of the Federal habeas corpus statute. The underlying reasoning in all of these decisions is that to fall within 28 U.S.C. § 2241, one's liberty of movement must be limited in some substantial way. Though petitioner Jhirad is out on bail, the Court finds that the restrictions on his freedom implicit in his being on bail are such as to come within the import of the statute. Therefore, the Court has power to entertain this application.

The scope of inquiry open to a Federal District Court when deciding a writ of habeas corpus in an extradition case is very narrow, being limited to the following questions:

1) whether the magistrate has jurisdiction;

2) whether the evidence produced at the hearing showed a reasonable ground to believe the accused guilty; and

3) whether the offense alleged is a treaty offense.

Wacker v. Bisson, 348 F.2d 602 (5th Cir. 1965); Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1909), cert. den., 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970); U. S. ex rel. Petrushansky v. Marasco, 215 F.Supp. 953 (S.D.N.Y.1963), aff'd, 325 F.2d 562 (2nd Cir. 1963), cert. den., 376 U.S. 952, 84 S.Ct. 969, 11 L.Ed.2d 971 (1964), and Application of D'Amico, 185 F.Supp. 925 (S.D.N.Y.1960), appeal denied, 286 F.2d 320 (1961).

Since there has been no hearing in this case, we are concerned only with the jurisdiction of the magistrate and whether the offense charged is a treaty offense. 18 U.S.C. § 3184, Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933). Of course, the threshold question is whether an extradition treaty exists.

The United States Marshal, Ferrandina, the nominal respondent, and the Government of India, the real respondent to this action, argue that the extradition treaty of December 22, 1931, 47 Stat. 2122, between the United States and Great Britain, serves to support jurisdiction in this case. This Treaty in Article 14 stated that Great Britain could accede to the Treaty on behalf of certain listed territories, among which was India. On March 9, 1942, the Treaty was made effective as to British India. For the following reasons this Court holds that the Treaty of 1932 is valid and of continuing force between the Governments of India and the United States, and will support the jurisdiction of the magistrate to hear the evidence againt Jhirad.

Whether an extradition treaty exists is an issue with major foreign policy implications and one which does not easily fall within the sphere of the Judicial Branch of Government. Thus, it is that courts have given great weight to the position taken by the Executive Branch concerning the validity of extradition treaties. In Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1909), cert. den., 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970), the Fifth Circuit said:

"Because we recognize that the conduct of foreign affairs is a political, not a judicial function, such advice from the Executive Branch, while not conclusive on this Court, is entitled to great weight and importance." (418 F.2d at 684)

In the case at bar, the United States, through the Acting Secretary of State, certified on August 14, 1972, that "the treaty of extradition between the United States and India is therefore considered a good subsisting and binding convention between the United States and India." Further, the Executive Branch strongly indicated its continuing affirmation of the Treaty when (in July of 1967), in conjunction with a prior extradition between the United States and India, notes were exchanged between the two Governments.

The position of the Executive Branch, though persuasive, is not conclusive. The Court must evaluate the facts concerning the Treaty on its own. Petitioner argues that the Treaty of 1931, under which extradition is sought, though made applicable to British India in 1942, did not survive the creation of the Republic of India in 1950.

As with much of international law, the question of treaty succession is muddled. Yet, it seems generally agreed that some rights and duties do devolve on the new country, particularly those rights and duties locally connected to the area gaining independence. See Oppenheim, International Law, Vol. 1 at 157-158.

Particularly in reference to emerging nations, the weight of authority supports the view that new nations inherit the treaty obligations of the former colonies. As one authority has said:

"There is a tendency in the direction of continuity of treaties upon independence of colonial territories which has been evident for some time respecting multi-lateral legislative conventions and a fairly wide spectrum of bilateral treaties." (O'Connell, State Succession in Municipal Law and International Law, 1967, at 113)

In Ivancevic v. Artukovic, 211 F.2d 565, (9th Cir. 1954), cert. den., 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 698 (1954), the Ninth Circuit decided that an extradition treaty made between the United States and the Kingdom of Serbia survived the creation of the Federal People's Republic of Yugoslavia. Though relying in large measure on the view of the Chief Executive, the Court also emphasized that there was sufficient continuity between the first Government and the second, even though there was not geographic identity. Applying this principle of continuity, it is reasonable to find that the Republic of India inherited these treaties. With the exception that Pakistan was separated from British India, there was geographical identity between India in 1946 and 1950. Further, as part of the creation of the Dominion of India, the Indian Government agreed to take an assignment of all treaties signed on its behalf by Great Britain. Therefore, the...