McElvy v. Civiletti, 81-8007-Civ-NCR.

• Decision Date: 10 March 1981
• Docket Number: No. 81-8007-Civ-NCR.,81-8007-Civ-NCR.
• Citation: 523 F. Supp. 42
• Parties: In re The Extradition of David Robert McELVY and Howard John McElvy, Petitioners, v. Honorable Benjamin CIVILETTI, United States Attorney General, by and through the Office of the United States Marshal in and for the United States District Court, Southern District of Florida, Respondent.
• Court: U.S. District Court — Southern District of Florida

523 F. Supp. 42

In re The Extradition of David Robert McELVY and Howard John McElvy, Petitioners, v. Honorable Benjamin CIVILETTI, United States Attorney General, by and through the Office of the United States Marshal in and for the United States District Court, Southern District of Florida, Respondent.

No. 81-8007-Civ-NCR.

United States District Court, S. D. Florida.

March 10, 1981.

M. Lee Thompson, West Palm Beach, Fla., for petitioner.

Asst. U. S. Atty. Steven Hartz, Miami, Fla., for respondent.

ROETTGER, District Judge.

Petitioners in this matter seek a writ of habeas corpus after a certificate of extra-ditability was entered by a United States Magistrate for the Southern District of Florida on October 9, 1980. The Magistrate concluded that extradition was required under Article VIII(1) of the Extradition Treaty between the United States of America and the United Kingdom.

This court's jurisdiction is founded upon 28 U.S.C. § 2241(a). Petitioners initially sought two distinct forms of relief. First, at the time of the filing of the petition petitioners prayed for immediate release from custody pursuant to 18 U.S.C. § 3188, arguing that the statute limits periods of custody pending extradition to two months and that incarceration in the instant case exceeded the period allowed by the statute. Second, the petitioners sought discharge from the certificate of extraditability arguing that the requirements of the treaty were not met.

The extradition documents admitted into evidence at the hearing reveal that petitioners, who are brothers, were convicted in October of 1979, of a violation of the Turks and Caicos Island's Drug Control Ordinance of 1976. The convictions resulted in sentences of two and one-half years "hard labour" for each petitioner. Shortly thereafter, in November, 1979, petitioners escaped and fled the islands. In April of 1980, petitioners surrendered themselves to the authorities in this country. During the period of April 29, 1980 until October 9, 1980, one petitioner remained free while the other remained in custody, one brother acting as bond for the other on a monthly rotating basis. Both petitioners have remained in continuous federal custody from the conclusion of the Magistrate's hearing on October 9, 1980 until the present.

At the initial hearing this court concluded that the right of immediate release after two months of continuous custody, conferred by 18 U.S.C. § 3188, had been waived, and that the waiver was in full force and effect at the time of the filing of the petition. Additionally, the court stayed any extradition during the pendency of these proceedings.

THE TRAIL LEADING TO THIS COURT

The extradition papers chronicle the events which led to petitioners' arrest and which form the factual basis for the indictment's allegations. On May 21, 1979, on the South Dock area of Providenciales, Turks and Caicos Islands, a local police officer observed a trail of what he believed to be marijuana. The officer followed the trail to a government warehouse. At the warehouse he observed fresh tire tracks similar to those made by a pick-up truck.

Alerted to the possibility that marijuana smuggling was afoot, the officer, now accompanied by other police officers, made an inspection of the entire dock area. It appeared to the officers that marijuana had been off-loaded at the dock, stored in the government warehouse, and later removed by pick-up truck. The officers then decided to search other warehouses in Providenciales; this led them to Stam's warehouse.

The officers found seeds and other vegetable matter scattered in the front of Stam's warehouse; this later proved to be marijuana. Inside the warehouse the officers discovered 800 bales of marijuana; each bale weighed approximately 50 pounds.

There is only one house located near the South Dock area; petitioners resided in that house with their parents who were vacationing in the United States at the time. Knowing that petitioners' father ran a fuel-depot business in the South Dock area, the officers decided to question them. Apparently suspecting that they would find him there, the officers proceeded to the Third Turtle Inn to question David McElvy. Upon their arrival at the Third Turtle, McElvy was observed parking his pick-up truck and heading into the hotel. Peering into the truck-bed, the officers noticed vegetable matter and the odor of marijuana.

Obviously convinced that McElvy was in some way involved with the marijuana at Stam's warehouse, the police informed McElvy that they suspected him of possession of marijuana. McElvy denied he was in any way involved but was arrested.

The officers, with David McElvy in their custody, proceeded to petitioners' residence which is located about 150 yards from Stam's warehouse. On the front porch the officers observed scattered vegetable matter which later proved to be marijuana. A search of the house was then undertaken. At that time petitioners David McElvy and John McElvy were present as was a co-defendant, Phillip Kinmon. The latter two individuals appeared to be quite groggy.

On the front porch two pairs of blue jeans were discovered; both pairs were dirty. One pair was claimed by David McElvy and the other by Kinmon. Vegetable matter, which later proved to be marijuana, was found in the pockets of each pair of jeans. Four additional pairs of trousers were found in a hamper in the house, and each pair contained the same vegetable matter. John McElvy admitted that the trousers were his and that the substance in the pockets was marijuana.

A trailer was located near the house was found to contain 250 bales of marijuana; each bale weighed approximately 50 pounds. When questioned, petitioners stated that the trailer belonged to another individual. A second trailer containing 615 bales of marijuana was located at an unused fisheries' compound within five hundred yards of the house. Still a third trailer containing 270 bales of marijuana was found near the fisheries' compound. Several witnesses reported seeing men transferring its contents to an automobile earlier.

Further investigation disclosed that a vessel, the Miranda, had come to the South Dock on the morning of May 21, 1979 and that Stam's warehouse had been empty prior to that time. The Miranda was not searched while in port; however, during an earlier custom's inspection nothing unusual was observed on board the vessel.

The indictment filed subsequent to the investigation averred that between May 19, 1979 and May 21, 1979, at Providenciales, petitioners unlawfully had in their possession a quantity of cannabis in violation of Section 6(2) of the Drug Control Ordinance. THE WAIVER UNDER 18 U.S.C. § 3188

In reliance upon 18 U.S.C. § 3188, petitioners sought discharge from custody during the pendency of this matter.

The salient facts with respect to the claim framed by § 3188 are not complex. After the magistrate certified that petitioners were extraditable on October 9, 1980, there occurred a flurry of activity involving petitioners, their counsel and family, and representatives of the United States Department of State.

Apparently under the apprehension of an immediate issuance of a warrant of surrender by the Department of State, counsel for petitioners, at a conference about extradition matters with the Deputy Legal Advisor in Washington on December 8, 1980, executed a waiver of the two-calendar-month discharge requirement of § 3188 upon condition that the Department of State propound two questions to the United Kingdom pertaining to the offense allegedly committed by petitioners. Specifically, the waiver provided:

"I have requested that you seek from the United Kingdom the answers to two questions which could affect the extraditability of my clients. You State Department have undertaken to advise me by December 19 of the answers to those questions."

The questions essentially were whether the alleged offense is a felony under British law and whether extradition was vitiated by having not been perfected by December 4, 1980. The waiver additionally provided that petitioners retained the right to cancel it on two weeks' written notice to the Department of State.

Subsequently, both questions were answered adversely to petitioners by the United Kingdom. A representative of the Department of State telephonically communicated this information to petitioners' counsel on December 19, 1980. The conversation concluded with petitioners' counsel advising that he would seek judicial review.

The Department of State agreed to delay the warrant of surrender until after the holidays to permit the matter to be decided in the court. The instant petition was filed on January 14, 1981. A copy of the petition was not served on the Department of State until January 30, 1981.

The statute provides in pertinent part:

"Whenever any person who is committed for rendition to a foreign government to remain until delivered up in pursuance of a requisition is not so delivered up within two calendar months after such commitment ... any judge of the United States ... may order the person so committed to be discharged out of custody, unless sufficient cause is shown to such judge why such discharge ought not to be ordered."

18 U.S.C. § 3188.

The running of the time specified in the statute has been held to be a sufficient basis upon which to order that a petitioner be discharged from custody during the pendency of proceedings considering the validity of extradition. In re Factor's Extradition, 75 F.2d 10 (7th Cir. 1934).

With respect to § 3188, Mr. Justice Goldberg of the Supreme Court has stated:

"Its purpose is to ensure prompt action by the extraditing government so that the accused would not suffer incarceration in this country or uncertainty as to his status for long periods of time through no fault of his own."

Jimenez v. United States District Court, 84 S.Ct. 14, 11 L.Ed.2d 30 (1963).

In Jimenez, supra, petitioner sought a stay of...