Jhirad v. Ferrandina

• Decision Date: 21 May 1976
• Docket Number: No. 568,568
• Citation: Jhirad v. Ferrandina, 536 F.2d 478 (2nd Cir. 1976)
• Parties: Elijah Ephraim JHIRAD, Petitioner-Appellant, v. Thomas E. FERRANDINA, United States Marshal, Southern District of New York, Respondent-Appellee. Docket 75-2102.
• Court: U.S. Court of Appeals — Second Circuit

Page 478

536 F.2d 478

Elijah Ephraim JHIRAD, Petitioner-Appellant, v.Thomas E. FERRANDINA, United StatesMarshal, Southern District of New York, Respondent-Appellee.

No. 568 Docket 75-2102.

United States Court of Appeals Second Circuit.

Argued Feb. 9, 1976.

Decided April 12, 1976.

Rehearing Denied May 21, 1976.

Edwin A. Steinberg, New York City, for Government of India, real party in interest.

Edward L. Sadowsky, New York City(Tenzer, Greenblatt, Fallon & Kaplan, New York City, on the brief), for petitioner-appellant.

Before LUMBARD and TIMBERS, Circuit Judges, and BRYAN, ^*District Judge.

LUMBARD, Circuit Judge:

Elijah Ephraim Jhirad appeals from an order of the Southern District entered July 17, 1975, denying his third request for habeas corpus relief in this protracted international extradition proceeding.The Government of India seeks Jhirad's return for prosecution on charges of embezzlement from a Naval Prize Fund which he, as former Judge Advocate General of the Indian Navy, was responsible for administering.In an earlier opinion in this case, 486 F.2d 442(2d Cir.1973), (Jhirad I), we ruled that 49 of the 52 counts listed in India's functional equivalent of our indictment were time barred, but remanded for a finding as to whether appellant had left India with intent to avoid prosecution thus tolling the statute of limitations with respect to the final three incidents.

Jhirad now challenges Magistrate Goettel's determination, approved by Judge Duffy, that appellant's "constructive flight" in not returning to his homeland when he otherwise would have but for fear of the pending criminal investigation was sufficient to satisfy the tolling requirements of 18 U.S.C. § 3290.¹Jhirad contends that this conclusion exceeded our mandate on remand and thereby violated the law of the case, that it followed a hearing at which appellant was denied discovery to which he was entitled, that it was in any event unsupported by the evidence adduced and that it was based on an erroneous interpretation of 18 U.S.C. § 3290.We affirm, finding no merit in any of these contentions.

The facts underlying Jhirad's indictment are fully set forth in the prior decisions of this court, the district court and the magistrate, and will therefore be only briefly summarized here.In late 1958, while appellant was serving as Judge Advocate General of the Indian Navy, ² Great Britain transferred to the Indian Navy 1,973,679 rupees ³ for distribution as a prize fund to those Indians who had seen at least 180 days of active sea duty during World War II.Jhirad, appointed administrator of the fund along with two others, was personally responsible for the distribution of approved claims.He was accordingly authorized to withdraw monies from the bank account established for the fund with the counter signature of P. L. Sharma, secretary to the fund.Between February 1959 and September 1961 virtually the entire allotted sum was disbursed.

In November 1965, Naval Headquarters in New Delhi received a complaint from an ex-sailor that prize fund money due him had never been paid.⁴Admiral Nair, Chief of Personnel, contacted Jhirad to have him check into the matter.When appellant indicated that he could not produce a list of payees since no audit of the fund had ever been conducted and all records pertaining to the fund had been destroyed pursuant to his instructions, Nair alerted his superiors who in turn notified the Special Police Establishment.An investigation was then begun during the course of which Nair again spoke to Jhirad in June 1966, asked him to turn over all relevant documents and was told that none existed.At approximately the same time, appellant was informed that a subpoena duces tecum had been issued to the Central Bank of India, at which both the prize fund account and his personal account were maintained.

On June 17, 1966, the Secretary-General of the World Jewish Congress invited Jhirad to attend an international conference in Brussels during the early part of August.Appellant, who had long been an outspoken advocate of Zionism and Jewish causes, had in the past attended similar meetings, the last one being in 1961.Prior to his departure on July 26, 1966, appellant and his wife sold various of his law books along with other of their personal possessions.Jhirad, moreover, adjourned all cases pending in his private law practice until October.In addition, the entire family obtained passports and procured visas for Belgium, France and Switzerland.Meanwhile, the inquiry into Jhirad's conduct was officially registered with the Central Bureau of Investigation on July 2, 1966.

After a brief stopover in Switzerland, Jhirad attended the conference in Brussels from July 30 to August 10, 1966.From there, he travelled to Geneva where he lived openly until the summer of 1967, when he emigrated with his family to Israel.In June 1971, appellant came to the United States.One year later, he was arrested and held for extradition on the above noted charges.

On the basis of the foregoing evidence, Magistrate Goettel concluded that while Jhirad "left India for the primary purpose of attending the World Jewish Congress in Brussels,"he was already aware of the pending investigation, considered the possibility that he would never return and perceived his trip as an opportunity to contemplate his future away from the immediate pressures of New Delhi.The magistrate further found that appellant's decision to expatriate crystallized sometime in early September 1966, thus tolling the five year statute of limitations with respect to the final two alleged acts of embezzlement on September 25 and 27, 1961.That calculation was premised upon the fact that Jhirad's journeys to conferences abroad in four previous years, even when coupled with his annual vacation, never exceeded one month.Magistrate Goettel reasoned, upon the basis of appellant's past practices, that by the time Jhirad had been gone for a month and a half, he must already have decided not to return.Judge Duffy agreed, adding that had he been the factfinder he"would perhaps have determined that the 'intent to flee' to avoid prosecution was formed even prior to the time Jhirad left India."This appeal followed.

Orders of extradition are sui generis.They embody no judgment on the guilt or innocence of the accused but serve only to insure that his culpability will be determined in another and, in this instance, a foreign forum.They may, moreover, be issued by any state judge, federal judge or, as here, a magistrate acting upon the direction of a district court, 18 U.S.C. § 3184.Extradition orders do not, therefore, constitute "final decisions of a district court," appealable as of right under 28 U.S.C. § 1291.Jimenez v. Aristeguieta, 290 F.2d 106(5th Cir.1961).Rather, if review is to be had at all it must be pursued by a writ of habeas corpus.SeeShapiro v. Ferrandina, 478 F.2d 894(2d Cir.1973).This procedural idiosyncracy has important substantive consequences.The rule has long been accepted that a habeas judge can only "inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty."Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970, 972(1925).See also, Benson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 1243, 32 L.Ed. 234, 236(1888).

Accepting, as he must, this limited scope of review, Jhirad nevertheless argues that the evidence introduced at the hearing below was insufficient to "block out those elements" which would be essential for conviction were he tried for the analogous crime of embezzlement in the courts of New York State.⁵Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 472, 66 L.Ed. 956, 960(1922).We do not agree.The Government of India has amply established that appellant was administrator of the Naval Prize Fund with joint authority to withdraw monies therefrom, that he did on numerous occasions withdraw such monies and that shortly following many of those withdrawals, he deposited closely equivalent sums in his personal bank account.⁶Jhirad concedes this much.He insists, however, that to make out a prima facie case of embezzlement, India must additionally show that some bona fide claimant was denied his rightful share in the fund.

This is simply not the law in New York or elsewhere.Embezzlement, now subsumed under the general category of larceny, is defined in New York Penal Code § 155.05 as the wrongful taking of "property from an owner thereof."Jhirad asserts that he could not have embezzled money from the Indian government since the Indian Navy had no reversionary interest in the fund which, by its terms, was to be distributed in its entirety among the eligible claimants according to a pre-set formula.Appellant omits to note the equally obvious point that he similarly had no title to the earmarked fund.Any money which he nonetheless diverted to his personal use was, as a result, unavailable to those to whom it properly should have gone.No more need be shown.SeeState v. Nelson, 362 Mo. 129, 240 S.W.2d 140, 142(Sup.Ct.1951).

The question of Jhirad's "constructive flight" from India is a more troublesome one.At the outset, we must confront appellant's challenge to the magistrate's ruling as beyond the scope of our earlier mandate.In Jhirad I, we decided as a matter of first impression in this circuit, that the tolling provision of 18 U.S.C. § 3290 is available only if "an intent to flee from prosecution or arrest" is shown.486 F.2d at 444.Since the district court had proceeded on the mistaken assumption that Jhirad's mere absence from India was sufficient to halt the running of the statute of limitations, we remanded for "findings on the issue of intent."Judge Duffy, in turn, referred the...