Lindstrom v. Graber

• Decision Date: 01 February 2000
• Docket Number: RESPONDENT-APPELLEE,PETITIONER-APPELLANT,No. 99-2886,99-2886
• Citation: 203 F.3d 470
• Parties: (7th Cir. 2000) LARS ERIK GUSTAV LINDSTROM,, v. JEROME F. GRABER, WARDEN,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 470

203 F.3d 470 (7th Cir. 2000)

LARS ERIK GUSTAV LINDSTROM, PETITIONER-APPELLANT, v. JEROME F. GRABER, WARDEN, RESPONDENT-APPELLEE.

No. 99-2886

U.S. Court of Appeals, Seventh Circuit

Submitted November 15, 1999

Decided February 01, 2000

[Copyrighted Material Omitted] Anthony D'Amato (submitted), Northwestern University Legal Clinic, Chicago, IL, for petitioner-appellant.

Lori Lightfoot (submitted), Office of the U.S. Attorney, Civil Division, Chicago, IL, for respondent-appellee.

Before Posner, Chief Judge, and Cudahy and Diane P. Wood, Circuit Judges.

Posner, Chief Judge.

Mr. Lindstrom's unsuccessful efforts to avoid being extradited to Norway have precipitated a number of difficult questions. In 1997 a Norwegian court convicted him of fraud and sentenced him to prison. Before the sentence could be executed (indeed before the trial ended), he fled to the United States. The Norwegian court issued a warrant for his arrest and Norway, pursuant to its extradition treaty with us, asked the United States to extradite Lindstrom. As it was believed that he was living in Chicago, the matter was referred to the U.S. Attorney for the Northern District of Illinois, and was placed in the hands of Deputy U.S. Attorney Joan Safford, who is in charge of international affairs for the office, and she in turn assigned Assistant U.S. Attorney Lori Lightfoot to handle it. Lightfoot filed a complaint in the federal district court in Chicago seeking a certification of extraditability authorizing the Secretary of State to permit Norway to take custody of Lindstrom. 18 U.S.C. sec. 3184; In re Burt, 737 F.2d 1477, 1481 n. 8 (7th Cir. 1984); United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997). At Lightfoot's request, pending issuance of the certificate and of a surrender warrant by the Secretary of State, a magistrate judge of the Northern District, pursuant to section 3184, issued a warrant for Lindstrom's arrest, and he was arrested on October 29, 1997--more than two years ago. In June of the following year, another Northern District magistrate judge issued the certification of extraditability together with an order of commitment directing that Lindstrom be placed in the custody of the U.S. Marshals Service "pending final disposition of this matter by the [U.S.] Secretary of State and the arrival of agents of Norway for the purpose of his return to Norway."

Lindstrom filed a petition for habeas corpus (28 U.S.C. sec. 2241), alleging a variety of procedural irregularities that he argued should bar his extradition. Habeas corpus is the normal method of challenging an extradition order, such an order being unappealable. E.g., DeSilva v. Leonardi, 181 F.3d 865, 870 (7th Cir. 1999); In re Extradition of Drayer, 190 F.3d 410, 412 n. 2 (6th Cir. 1999); In re Extradition of Howard, 996 F.2d 1320, 1325 (1st Cir. 1993). The district court denied relief to Lindstrom on May 14 of last year. He filed a notice of appeal on June 1, and on July 22 the district court granted his motion for a certificate of appealability. The motion was unnecessary, because such certificates are not required in habeas corpus cases brought solely under 28 U.S.C. sec. 2241. Bush v. Pitzer, 133 F.3d 455, 456 (7th Cir. 1997); Sugarman v. Pitzer, 170 F.3d 1145 (D.C. Cir. 1999) (per curiam); Stringer v. Williams, 161 F.3d 259, 261-62 (5th Cir. 1998).

Meanwhile, Lindstrom had on July 19 filed a second habeas corpus petition, this one arguing that the order of commitment which the magistrate judge had issued along with the certification of extraditability had lapsed because of delay in its execution. The argument was based on 18 U.S.C. sec. 3188, which authorizes the district court to order the release of the committed individual if he has not been removed from the United States within two months after the issuance of the order. In re United States, 713 F.2d 105, 108 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624, 626 (6th Cir. 1978). Lindstrom's second petition (which incidentally has no possible merit, because the two-month period is tolled during proceedings challenging the extradition, Eain v. Wilkes, 641 F.2d 504, 524 n. 26 (7th Cir. 1981); Liberto v. Emery, 724 F.2d 23, 25 n. 2 (2d Cir. 1983) (per curiam); In re United States, supra, 713 F.2d at 110 n. 4; Barrett v. United States, supra, 590 F.2d at 626) remains pending, as does his appeal from the denial of his first petition.

On August 6, the Deputy Secretary of State issued a surrender warrant pursuant to 18 U.S.C. sec. 3186, directing the U.S. Marshal for the Northern District of Illinois to hand Lindstrom over to such persons as Norway authorized to receive him. Norway was notified and sent two agents to Chicago, and the Marshals Service was informed that they would arrive on the eighteenth and take Lindstrom back to Norway the next day, August 19. The morning of the nineteenth Lindstrom's lawyer sought a stay of extradition from the district court, based on the second petition for habeas corpus. The court denied the stay no later than 12:45 p.m., and when the Marshals Service was notified of this a few minutes later, the process of transferring custody of Lindstrom to the Norwegian agents began. The marshal in charge of the transfer of custody was Deputy Marshal Ronald Randolph, and he directed another deputy marshal, Richard Walenda, to drive Lindstrom and the agents from the garage of the federal courthouse, to which Lindstrom and the agents had been brought, to O'Hare Airport for a 5 p.m. flight to Norway.

At 2:20 p.m., roughly twenty minutes after the trio arrived at O'Hare, Lindstrom's lawyer filed a motion for an emergency stay of extradition with this court to allow him to seek a regular stay pending the decision of the appeal from the district court's denial of his first petition for habeas corpus. The motion for an emergency stay was referred to Judge Rovner, who granted it forthwith. At about 2:55, Assistant U.S. Attorney Lightfoot, who was in the federal courthouse on another case, was told by a member of this court's staff about the order granting the stay. She asked him whether she could speak to the staff attorney who was handling the matter; he told her she could not.

Although Lightfoot realized that Lindstrom was scheduled to depart from the United States at 5 o'clock, she did not immediately notify this court of that fact. After consultation with Safford and Randy Toledo, a supervising attorney in the Justice Department's Office of International Affairs, Lightfoot filed with this court at 4:40 p.m. a motion to reconsider the grant of the stay of extradition. The motion mentioned Lindstrom's imminent departure. Judge Rovner received the motion shortly before 5 p.m. and denied it a few minutes later. The plane took off, with Lindstrom on it, at 5:45.

Deputy Marshal Randolph learned of the stay shortly after 3 p.m., while Lindstrom was at O'Hare, and he called Lightfoot for guidance. She consulted Toledo and Safford, and they decided that the extradition had been complete when Lindstrom had been presented to the Norwegian agents in the garage of the federal courthouse, and therefore that the stay was moot. So Randolph did not attempt to stop the debarkation of Lindstrom.

The matters relating to the appeal, stay, and extradition were referred to this panel for decision, and we asked the parties to brief several issues; the State Department has also submitted its views on one of the issues (whether Lind strom's appeal is moot). We also ordered Lightfoot and Randolph to show cause why they should not be disciplined, or subjected to contempt proceedings, for failure to comply with the stay that Judge Rovner had issued.

There are three issues before us: whether Lindstrom's appeal (the appeal from the denial of his first petition for habeas corpus, the appeal filed on June 1) is moot; whether the stay was violated; and whether (and, if so, what) formal disciplinary proceedings should be instituted against Lightfoot, Randolph, or both.

The appeal is indeed moot. The object of the habeas corpus proceeding, a proceeding directed against the warden of the American jail in which Lindstrom was being held, and of the appeal is, or rather was, to prevent Lindstrom from being sent back to Norway; he has been sent back; and so he has nothing to gain from the further prosecution of the appeal. E.g., Calderon v. Moore, 518 U.S. 149 (1996) (per curiam); Walters v. Edgar, 163 F.3d 430, 432 (7th Cir. 1998); LoBue v. Christopher, 82 F.3d 1081, 1082 n. 1 (D.C. Cir. 1996). This assumes, but surely correctly, that there is no legal basis for our ordering Norway to surrender Lindstrom back to us, since we have no jurisdiction over the warden of the Norwegian prison in which he's incarcerated. Subias v. Meese, 835 F.2d 1288 (9th Cir. 1987); see also Hanahan v. Luther, 760 F.2d 148, 151 (7th Cir. 1985). (Nor is that warden or any other Norwegian official a respondent in this proceeding.) The stay that Judge Rovner granted is moot too, and for the same reason, so we do not pause to consider whether it should have been granted. Clearly, however, the stay was within the power of a judge of this court to issue under Fed. R. App. P. 8 and the All Writs Act, 28 U.S.C. sec. 1651; Lightfoot v. Walker, 797 F.2d 505 (7th Cir. 1986); Green v. Warden, 699 F.2d 364, 367-68 (7th Cir. 1983), and would have been even if this court's jurisdiction over Lindstrom's appeal had been merely potential rather than, as it was, actual, since the notice of appeal had been filed. E.g., Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943); Green v. Warden, supra, 699 F.2d at 368; Michael v. INS, 48 F.3d 657, 664 (2d Cir. 1995). But the question whether the stay was violated is not moot, because it bears on the question of discipline.

Whether the stay was violated depends primarily on how the order granting it is interpreted and, if it is interpreted narrowly, on when extradition occurs--is it when custody is...