Jhirad v. Ferrandina
| Decision Date | 17 July 1975 |
| Docket Number | No. 73 Civ. 1630.,73 Civ. 1630. |
| Citation | 401 F. Supp. 1215 |
| Parties | Elijah Ephraim JHIRAD, Petitioner, v. Thomas E. FERRANDINA, United States Marshal, Southern District of New York, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Tenzer, Greenblatt, Fallon & Kaplan, New York City, for petitioner; by Edward L. Sadowsky, New York City, of counsel.
Louis Steinberg, Edwin A. Steinberg, New York City, for the Government of India.
Paul J. Curran, U. S. Atty., for respondent; by William R. Bronner, Asst. U. S. Atty., of counsel.
This is the third petition for a writ of habeas corpus brought in this international extradition proceeding. See 355 F.Supp. 1155 (S.D.N.Y.1973) and 362 F.Supp. 1057 (S.D.N.Y.1973), rev'd & , 486 F.2d 442 (2d Cir. 1973). The remand from the Court of Appeals was occasioned by a different definition of the term "fleeing from justice" than that applied by me, there being a conflict among the circuits on this point. See Donnell v. United States, 229 F.2d 560 (5th Cir. 1956); Brouse v. United States, 68 F.2d 294 (1st Cir. 1933) but see King v. United States, 144 F.2d 729 (8th Cir.), cert. denied, 324 U.S. 854, 65 S.Ct. 711, 89 L.Ed 1413 (1944); McGowen v. United States, 70 App.D.C. 268, 105 F.2d 791, cert. denied, 308 U.S. 552, 60 S.Ct. 98, 84 L.Ed 464 (1939).
The petitioner in this habeas corpus proceeding, Elijah Ephraim Jhirad, was Judge Advocate General of the Indian Navy. As such, between 1959 and 1961, he was in charge of a prize fund established for the benefit of certain Indian sailors who had served during World War II.
It is alleged by the Government of India that a substantial portion of the prize fund was embezzled by Jhirad. It is clear that the petitioner left India on July 26, 1966, and that the applicable five year statute of limitations, unless tolled, would have expired on September 27, 1966. The only question presented on the remand by the Court of Appeals is whether Jhirad left India with the "intent to flee from justice," which would toll the statute of limitations.
Magistrate Goettel held further hearings on the remand and filed "Additional Findings on Extradition Proceedings" in which he set forth (as best he could) the complete chronology of the events whereby Jhirad formed an "intent to flee" the jurisdiction of India.
February 19, 1966: The Central Bureau of Investigation in India was requested to commence an investigation concerning allegations that there had been mismanagement, and possibly embezzlement, from the Naval Prize Fund.
May, 1966: Jhirad informed a naval officer who had been directed to conduct an inquiry that the records of the Prize Fund had been destroyed (Jhirad had informed his superiors of this fact in the later part of 1965).1
May 26, 1966: A subpoena duces tecum was issued to the Central Bank of India where the Naval Prize Fund had been maintained and where Jhirad had a personal account.2
June, 1966: An employee of the Central Bank of India advised Jhirad that the subpoena had been received.
June 17, 1966: The Secretary General of the World Jewish Congress invited Jhirad to attend the Fifth Plenary Assembly in Brussels, July 31 to August 9, 1966. Subsequently, after being designated by the Central Jewish Board of Bombay as one of the representatives of Indian Jewry, the Congress agreed to defray his costs. (A week later his wife was invited to an auxiliary conference of Women's Zionist Organization held at the same time and place.)
June 28 to July 16, 1966: Jhirad and his wife sold various of his law books and other items of his personal possessions.
July 2, 1966: The case was officially registered with the Central Bureau of Investigation.
July 3, 1966: Jhirad obtained his passport.
July 5, 1966: The police began their investigation.
July 16 to July 22, 1966: Jhirad obtained visas to visit Belgium, France and Switzerland.
July 19, 1966: Jhirad obtained permission from his naval superiors to go to Brussels to attend the World Jewish Congress meeting.
July 26, 1966: Jhirad left India with his wife and children to attend the World Jewish Congress meeting. (He stopped en route for a few days in Switzerland.)
July 30 — August 10, 1966: Jhirad and his wife and family were in Brussels attending the World Jewish Conference.
August 10, 1966: Jhirad and his family traveled to Geneva and resided there openly until 1967, when they emigrated to Israel.
Jhirad argues that he left India solely for the purpose of attending the World Jewish Conference and that he did not form the intention not to return to India until November or December of 1966. These dates are extremely important since the applicable statute of limitations would have time barred the extradition on September 25 or 27, 1966. Magistrate Goettel found, however, that while the "intent to flee" might not have existed at the time Jhirad left India on July 26, 1966, it certainly was formed by the early part or, at the latest by the midpoint, of September 1966, and thus that extradition was not time barred.
I have reviewed the entire record in this case: the exhibits, the transcripts, the affidavits and all other pertinent documents. I must conclude that the Magistrate's finding that Jhirad should be extradited was correct and that this petition for habeas corpus must be denied.
Had I been the trier of the facts I would perhaps have determined that the "intent to flee" to avoid prosecution was formed even prior to the time Jhirad left India. There is substantial evidence in the record to indicate that Jhirad knew that he was under investigation prior to that date.
I have spent an enormous amount of time in reviewing and re-reviewing the extensive record in this case. It shows that Jhirad in the latter part of 1965, admitted to his superiors in the Indian Navy that all the records of the prize fund had been destroyed; that the matter was referred by the Navy to the Special Police Establishment pursuant to a confidential memorandum to the Ministry of Defense; that in February 1966, the Central Bureau of Investigation commenced an inquiry to determine the whereabouts of the records; that on May 26, 1966, a subpoena duces tecum concerning these records was issued to and received by the Central Bank of India where the Prize Fund account was kept; that in June 1966, an employee of that bank informed...
To continue reading
Request your trial
-
Jhirad v. Ferrandina
...presents a distorted picture which he was powerless to remedy since Judge Duffy denied his request for discovery. Jhirad v. Ferrandina, 401 F.Supp. 1215 (S.D.N.Y. 1974). Appellant does not dispute the well-entrenched rule that extradition proceedings are not to be converted into a dress reh......