Matter of Extradition of Lang

• Citation: 905 F. Supp. 1385
• Decision Date: 20 November 1995
• Docket Number: No. CV 95-5468 ER.,CV 95-5468 ER.
• Parties: In the Matter of EXTRADITION of Ferdinand Gino LANG.
• Court: U.S. District Court — Central District of California

905 F. Supp. 1385

In the Matter of EXTRADITION of Ferdinand Gino LANG.

No. CV 95-5468 ER.

United States District Court, C.D. California.

November 20, 1995.

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Nora M. Manella, U.S. Attorney and Patricia Davies, Asst. U.S. Atty., Los Angeles, CA, for Petitioner.

Maria Stratton, Fed. Pub. Defender and Korey House, Deputy Fed. Pub. Defender, Los Angeles, CA, for Respondent.

MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S REQUEST FOR A STAY, MOTION FOR RELEASE ON BAIL, AND PETITION FOR A WRIT OF HABEAS CORPUS

RAFEEDIE, District Judge:

Introduction

Petitioner Ferdinand Gino Lang seeks a stay of extradition to Switzerland pending resolution of Lobue v. Christopher, 893 F.Supp. 65 (D.D.C.1995), in which a district court ruled that the extradition statute, 18 U.S.C. § 3184, was unconstitutional. Lang has also moved to be released on bail pending resolution of Lobue on appeal, and finally, he has petitioned for collateral review of the extradition hearing under 28 U.S.C. § 2255, through which he challenges the magistrate judge's finding that he was a fugitive, thereby tolling the statute of limitations.

The Court has read and considered the original and supplemental papers filed in support of and in opposition to Lang's motions, and heard and considered oral argument, and for the reasons that follow, the Court DENIES the request for a stay, the motion for release on bail, and the petition for a writ of habeas corpus.¹

Background Facts

Petitioner Ferdinand Gino Lang is currently in federal custody, awaiting extradition to Switzerland for the crime of embezzlement. While employed as an accountant in Zurich, Switzerland, he allegedly stole from his employer by: (1) falsifying invoices in inflated amounts and diverting the excess funds to himself; (2) forging payment authorization for personal debts or straight payments to himself; and (3) reprogramming computer records so as to inflate his monthly salary. In all, Lang allegedly stole approximately Fr. 648,831.45 through over 90 illegal acts between March 1983, and August 1984.

Swiss authorities confronted him in August 1984, and conducted a series of interviews with him between that time and October 1984. On October 19, 1984, Lang was released on his own recognizance without having been charged with a crime. On April 30, 1985, Lang informed Swiss authorities that he was visiting the Netherlands. At the time he left, he was told that he would be expected at another interview set for May 22, 1985.

While purportedly visiting the Netherlands, Lang came to the United States and never returned to Switzerland for the May 22, 1985, hearing. In late 1986, Swiss authorities learned that Lang was residing in the United States and began formal proceedings to extradite him. However, Lang remained at large until he was arrested in Los Angeles on February 15, 1995. Apparently, the U.S. Marshal's Office had received an anonymous tip, divulging Lang's whereabouts and his status as a wanted person.

On June 5, 1995, a magistrate judge certified Lang as extraditable, pursuant to the United States' extradition statute, codified at 18 U.S.C. § 3181 et seq. The magistrate judge also made a finding that Lang was a fugitive from justice. This finding tolled the statute of limitations on Lang's crime, pursuant to 18 U.S.C. § 3290.²

On August 31, 1995, a district court for the District of Columbia issued an order staying the extradition proceedings in an unrelated case, Lobue v. Christopher, 893 F.Supp. 65 (D.D.C.1995), on the ground that the extradition statute violated the separation of powers doctrine. On September 15, 1995, that district court issued an order certifying as a class "all persons who presently are or in the future will be under threat of extradition...." It further stayed extradition of all class members.

The Court of Appeals for the District of Columbia Circuit then lifted the district court's stay pending appeal. The case has been calendared for oral argument in January, 1996, and Lang is presently extraditable.

Discussion

Lang has raised three issues for consideration, and the Court will deal with these in order. First, he asks for a stay of extradition until Lobue is resolved on appeal. Second, in view of the fact that final resolution of Lobue could take a significant amount of time,³ Lang has moved that he be released on bail. Finally, Lang has petitioned under 28 U.S.C. § 2255, challenging the magistrate judge's determination that he was a fugitive.

I. Stay of Extradition

A. Standard for a Stay

In order to obtain a stay of extradition, Lang must demonstrate: (1) a probability of success on the merits and irreparable injury; and (2) that serious legal questions are raised and the balance of hardships tip in his favor. Artukovic v. Rison, 784 F.2d 1354, 1355-56 (9th Cir.1986).

Lang's request is based on the Lobue opinion. If Lobue is affirmed by the Court of Appeals, and the stay on extraditing class members is reinstated, then Lang might be entitled to some relief.⁴ An analysis of Lobue is therefore necessary in order to determine the probability of success on the merits. For the reasons that follow, the Court believes that Lobue was decided incorrectly, because it failed to address the threshold issue of whether the plaintiffs in that case actually had standing to challenge the statute.⁵

B. Grounds for the District Court's Decision in Lobue

Lobue concluded that the extradition statute, 18 U.S.C. § 3184, is unconstitutional because it allows for executive revision of judicial determinations of law. Lobue v. Christopher, 893 F.Supp. 65, 68 (D.D.C.1995).

The extradition statute directs a judicial officer to make a determination of the legality of extradition in every case where extradition is sought. The purpose of this review is to ensure that there is probable cause to believe that the defendant committed the accused act, that the charged criminal offense satisfies "dual criminality,"⁶ and that the extradition is otherwise legal. Upon a positive determination, the judicial officer is directed to certify the defendant as extraditable and to turn over a copy of the court testimony to the Secretary of State. 18 U.S.C. § 3184.⁷

The constitutional issue arises from the fact that the judicial officer must turn over a copy of the testimony. The Lobue court saw this requirement as investing in the Executive Branch the ability to overturn the judicial officer's legal determination. Consistent with the Constitution, the Secretary of State can decline to extradite a defendant for any discretionary reason, or for no reason, but not because he thought the judicial officer's determination of extractability was legally erroneous. Yet, this revision is what the statute seems to allow. The Lobue court saw no other reason for turning over the testimony, except to allow the Secretary of State to review and revise the legal grounds for the decision. Lobue, 893 F.Supp. at 68.

In an old line of cases, the Supreme Court has struck down statutes that give either the Executive Branch or the Legislative Branch the ability to revise judicial determinations of law. Gordon v. United States, 69 U.S. (2 Wall.) 561, 17 L.Ed. 921 (1865);⁸United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1852); Hayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792).

Hayburn's Case is perhaps the closest analogy to this situation. In Hayburn's Case, federal judges were to certify Revolutionary War veterans as being eligible or ineligible to receive pensions. After the judges sent a list of individuals they believed to be eligible, the Secretary of State would go though the list and make his own determination of eligibility. The Court was prepared to strike down this statute on the ground that neither the Legislature nor the Executive branch was entitled "to sit as a court of errors on the judicial acts or opinions of this court." Id. at 410 n. 2.⁹

The Court is not convinced that the extradition statute creates executive revision. Revision is not made part of the extradition scheme explicitly, as was the revision in Hayburn's Case. Nor is revision necessarily structural, as it was in Glidden v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), when Congress' appropriation powers under the Constitution gave it the ability to refuse to authorize payments determined by the judiciary. Indeed, the Court notes that the requirement that testimony be turned over to the Secretary of State would allow that official to determine whether to exercise the discretion afforded to him by numerous extradition treaties.¹⁰ Treaty of Extradition, Feb. 22, 1899, U.S.-Mex., art. IV, 31 Stat. 1818, 1822, T.S. No. 242; Convention Between the United States and the Argentine Republic, Sept. 26, 1896, U.S.-Arg., art. III, 31 Stat. 1883, 1886, T.S. No. 6; Treaty Between the United States and the Empire of Japan, April 29, 1886, U.S.-Jap., art. VII, 24 Stat. 1015, 1017, T.S. No. 191.

Nevertheless, it is not necessary for the Court to reach the merits of Lobue, because the Court believes that the plaintiffs in Lobue lack standing to challenge the extradition statute.

C. Standing

Standing is a threshold inquiry that derives from the Article III "Case or Controversy" requirement. In the absence of a plaintiff with standing, a federal court lacks subject-matter jurisdiction to hear cases. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Standing consists of three elements: (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) redressability. Lujan, 504 U.S. at 560, 112 S.Ct. at 2136; Wright, 468 U.S. at 751, 104 S.Ct. at 3324.

Although a plaintiff who is the subject of government action typically has standing, in this case, the alleged illegality of action (executive...