Kear v. Hilton, 82-6466

• Decision Date: 31 January 1983
• Docket Number: No. 82-6466,82-6466
• Citation: 699 F.2d 181
• Parties: Daniel J. KEAR, Appellant, v. Ivan HILTON, U.S. Marshal, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 181

699 F.2d 181

Daniel J. KEAR, Appellant, v. Ivan HILTON, U.S. Marshal, Appellee.

No. 82-6466.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1982.

Decided Jan. 31, 1983.

J. Flowers Mark, Alexandria, Va. (William B. Moffitt, Mark & Moffitt, P.C., Alexandria, Va., Robert C. Watson, Melinda Douglas, Washington, D.C., on brief), for appellant.

Leonie M. Brinkema, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Murray R. Stein, Associate Director, Office of Intern. Affairs, Rex Young, Trial Atty., U.S. Dept. of Justice, Washington, D.C., on brief), for appellee.

Before HALL and MURNAGHAN, Circuit Judges, and MICHAEL ^*, District Judge.

MURNAGHAN, Circuit Judge:

Again we confront an example of the old adage that two wrongs do not make a right. We do so in the context of a petition for a writ of habeas corpus seeking to prevent extradition of Daniel J. Kear to Canada to face a criminal charge of kidnapping.

Sidney L. Jaffe was a bail jumper. A professional bonding company was the surety under bonds in the aggregate penal amount of $137,500, given to insure his appearance to answer to criminal charges in Florida. Jaffe, after being admitted to bail, went to Toronto, Canada and exhibited a determination to remain there in violation of his undertaking to return to Florida to answer the charges. ¹

Professional bondsmen in the United States enjoy extraordinary powers to capture and use force to compel peremptory return of a bail jumper. They may do so not only in the state where the bail was granted, but in other states as well, without resort to public authorities, either the police to effect the arrest or the appropriate state officials to bring about extradition. Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371, 21 L.Ed. 287 (1872). ² However, the authority to act directly and without recourse to officialdom has been determined to exist only with respect to captures by American bondsmen when they locate the violator of bail conditions within the United States.

In Reese v. United States, 76 U.S. (9 Wall.) 13, 21-22, 19 L.Ed. 541 (1869) the Supreme Court discussed the very point. The person admitted to bail by a federal court in California removed himself to Mexico. The Court stated:

By the recognizance the principal is ... so far placed in [the sureties'] power that they may at any time arrest him upon the recognizance and surrender him to the court, and, to the extent necessary to accomplish this, may restrain him of his liberty. This power of arrest can only be exercised within the territory of the United States; .... The government thus consented that Limantour might depart out of the territory of the United States to a foreign country, where it would be impossible for the bail to exercise their right to arrest and surrender him; ....

(Emphasis supplied). ³

Canada maintains with Americans friendly relationships on both private and official levels, leading many of us to feel quite at home. Perhaps not appreciating that Canada is, nevertheless, a sovereign and independent country, Kear, a licensed bondsman and an agent of the surety, joined another, Timm Johnson, whose occupation was that of a professional skip-chaser or bounty hunter, in apprehending Jaffe. The quarry was seized in his jogging costume as he returned to his residence in Toronto, Canada. Immediately Kear and his colleague initiated a journey, taking Jaffe, an unwilling participant, with them. The journey led them across the border at or near Niagara Falls, New York and thence to Florida. ⁴

Presumably congratulating himself on the outcome, Kear no doubt was rudely jolted to learn that Canadian authorities took a very jaundiced view of his behavior. Canada has sought to extradite Kear, having charged him and issued a warrant for his arrest, claiming violation of a statute which makes it a crime to kidnap a person with the intent to send or transport the person kidnapped out of Canada against his will. Canadian Criminal Code Sec. 247(1)(b).

Kear contests extradition on three interlocking grounds:

1) The Treaty of Extradition between the United States and Canada only operates for crimes punishable by the laws of both contracting parties, and behavior comparable to Kear's would not amount to kidnapping under 18 U.S.C. Sec. 1201(a)(1) and (2) if a Canadian were to capture a bail skipper somewhere in the United States, and, without further ceremony, were to return him to the Canadian court to stand trial on the charges as to which admission of bail had been granted.

2) Canadian law allows peremptory capture and return by a bondsman of a bail jumper, thereby creating an implicit exception to the provisions of Canadian Criminal Code Sec. 247(1)(b).

3) There was no kidnapping since Jaffe, having consented, at the time bail was granted, to his seizure and return to Florida at any time, was not transported out of Canada "against his will."

First we address the contention of Kear that the treaty requirement of mutuality has not been met. The Treaty of Extradition between the United States of America and Canada, 27 UST 983, TIAS 8237 by Article 2 provides:

Persons shall be delivered up according to the provisions of this Treaty for any of the offenses listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty, provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year.

The Schedule referred to explicitly lists kidnapping. ⁵

The comparable kidnapping statute of the United States, 18 U.S.C. Sec. 1201(a)(1) and (2), provides:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when:

(1) the person is willfully transported in interstate or foreign commerce; (2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States; ... shall be punished by imprisonment for any term of years or for life.

The argument of Kear seems to run that a Canadian peremptorily arresting, somewhere in the United States, a person who had jumped bail in Canada, and returning him to appear before a Canadian court, would not be guilty of kidnapping under 18 U.S.C. Sec. 1201. The rationale advanced, however, depends solely on cases relating to seizures within the United States for return to appear before a federal or state court. Those cases are simply inapposite to a situation such as the one which confronts us, where considerations of sovereignty and the crossing of an international boundary intervene and there is neither a superimposed structure like the federal government in its relationship with the several states nor any full faith and credit clause (Article IV, Section 1 of the United States Constitution) and its requirement of aid and assistance in enforcement of the laws of sister states.

Consequently, we do not accept the contention that 18 U.S.C. Sec. 1201 would, in contradiction of its plain terms, be held not to reach bounty-hunting abductions across international boundaries, absent a rule of law making such abductions legal. That critical distinction destroys Kear's argument that, reciprocally treated, his conduct was not a crime under American law. It is not, we accept, so long as the behavior does not extend beyond national boundaries. Here, however, the international dividing line, and, hence, the sovereignty of a foreign power were infringed.

Such American authority as there is would seem collaterally to tend the other way. See Villareal v. Hammond, 74 F.2d 503, 506 (5th Cir.1934) ("In violation of the sovereignty of the state (Mexico) where he had sought asylum, they (Appellants) seized him unlawfully, and with force and arms took him unlawfully out of that state and into another (Texas) to dispose of him at their will and pleasure to obtain a reward.").

In short, there is mutuality between the two statutes, each punishing as kidnapping the transportation of someone (a) "out of Canada against his will" or (b) "in foreign commerce" while "seize[d], confine[d] ... or abduct[ed]."

Turning now to whether there was a breach of Canadian law when Kear returned the bail jumper, Jaffe, to an American court, we first observe that, in charging Kear with kidnapping and seeking his extradition, Canadian authorities manifestly believe that he violated the Canadian statute. We should not rush to insert ourselves and possibly preempt the Canadian courts who doubtless are...