Noel v. U.S.

• Decision Date: 06 July 1998
• Docket Number: No. 98-326-CIV-ORL-19C.,98-326-CIV-ORL-19C.
• Citation: 12 F.Supp.2d 1300
• Parties: Gilbert NOEL, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Middle District of Florida

12 F.Supp.2d 1300

Gilbert NOEL, Petitioner, v. UNITED STATES of America, Respondent.

No. 98-326-CIV-ORL-19C.

United States District Court, M.D. Florida, Orlando Division.

July 6, 1998.

H. Manuel Hernandez, Law Office of H. Manuel Hernandez, Orlando, FL, for Petitioner.

A.B. Phillips, U.S. Attorney's Office, M.D. Fla., Orlando, FL, for Respondent.

ORDER

FAWSETT, District Judge.

Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2241 (Doc. No. 1, filed March 20, 1998). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted. Thereafter, Respondents filed a timely response to the petition for writ of habeas corpus in compliance with this Court's instructions (Doc. No. 10, filed April 14, 1998). Petitioner subsequently filed a reply to the response (Doc. No. 13, filed May 1, 1998).

Petitioner alleges four claims for relief in his habeas petition: 1) the Magistrate Judge erred in finding probable cause existed to believe that Petitioner was extraditable; 2) the extradition statute is unconstitutional; 3) pursuant to the Federal Magistrate's Act, the Magistrate Judge did not have the authority to preside over the extradition hearing; and 4) the Magistrate Judge should have granted Petitioner's motion for recusal.

Procedural History

On September 14, 1997, the United States of America, acting on behalf of the government of the Federal Republic of Germany and pursuant to the Extradition Treaty Between the United States of America and the Federal Republic of Germany of June 20, 1978 (the "Treaty"), provisionally arrested Petitioner on an extradition warrant for the crimes of creation of criminal organizations, fraud, receiving stolen goods, commercially receiving stolen goods, gang receival of stolen goods, commercial gang receival of stolen goods, money laundering, tax evasion, and joint commission of crime, in violation of sections 129 I, 263, 259, 260 I, 260 a I, 261 I, and 25 II of the StGB (German Criminal Code), as well as section 370 of the AO (German Tax Code). (Case No. 97-1091-01, March 3, 1998 Extradition Hearing, Government's Exhibit Two, Tab One, Warrant of Arrest at 1-2, 10-12). On September 19, 1997, the Court conducted a hearing on Petitioner's request to secure bail pending extradition. Petitioner did not raise a question as to his identity during the hearing, in fact, his attorney stated as follows:

Mr. Noel has been aware that the German government was conducting an investigation for some period of time. Aware of that, he made no effort to flee to an extradition haven. He remained here in the United States, openly, notoriously. He has not used any aliases. he has not used any assumed names, no false identification. He identified himself as who he is Gilbert Noel.

(Case No. 97-1091-01, Transcript of September 19, 1997, Detention Hearing at 12.)

On January 7, 1997, Magistrate Judge James G. Glazebrook commenced an extradition hearing on the merits. The Government moved three items into evidence: two binders of documents, and the declaration of Kenneth Propp. Petitioner testified, presented witnesses, and introduced tangible evidence. The Magistrate Judge determined that extradition was appropriate and subsequently entered an Extradition Certification and Order of Commitment. (Case No. 97-1091-01, Document Number 51.) Shortly thereafter the Court learned that the transcript of the hearing did not show that an oath had been administered to Petitioner prior to his testimony. During a subsequent status conference, Petitioner's counsel refused to permit Petitioner to swear that he had testified truthfully in the prior hearing. (Case No. 97-1091-01, Transcript of February 13, 1998 Status Conference at 6-8.) Thus, the extradition hearing was reset for February 19, 1998.

Petitioner moved for recusal of Magistrate Judge Glazebrook arguing that, as the trier of fact, the Magistrate Judge's prior determination created an appearance of bias which dictated recusal. (Case No. 97-1091-01, Document Number 65.) The motion was denied, and the matter proceeded on the merits.

The Government again moved the same three exhibits into evidence: the two binders, and the declaration of Kenneth Propp. Petitioner admitted eight documents into evidence: two Swiss court orders, certification of criminal records in France, a demonstrative aid, warnings regarding false statements, a map of Europe, a visual aid, and a chart titled "How Does Noel Profit?". In addition, Petitioner called one witness, attorney Andre Bouchara. Petitioner did not testify during the second extradition hearing. The Magistrate Judge then issued a Certificate of Extradition and Order of Commitment (Case No. 1091-01, Document Number 75.)

Legal Discussion

1. The Standard of Review

Extradition of Petitioner is sought under 18 U.S.C. § 3184. Because issuance of a certification of extraditability does not constitute a final order, the decision is not reviewable by direct appeal. Caplan v. Vokes, 649 F.2d 1336 (9th Cir.1981). Instead, a habeas corpus petition is the proper method for obtaining review of a Magistrate Judge's extradition decision. Castro Bobadilla v. Reno, 826 F.Supp. 1428, 1431 (S.D.Fla.1993), aff'd without opinion, 28 F.3d 116 (1994). However, habeas review is extremely narrow, limited to only the following areas: (1) whether the Magistrate Judge had jurisdiction over the extradition proceedings; (2) whether the offense charged is within the treaty; and (3) whether there was any evidence warranting the finding that there was reasonable ground to believe the accused was guilty of the crimes charged. Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925); Hill v. United States, 737 F.2d 950, 951 n. 1 (11th Cir.1984); Castro Bobadilla, 826 F.Supp. at 1431-32. Furthermore, the Magistrate Judge's findings of fact are subject to a clearly erroneous standard, while questions of law are governed by de novo review. Id. 826 F.Supp. at 1432.

2. The Magistrate Judge's Probable Cause Determination

Petitioner first contends that the Magistrate Judge erred in finding probable cause existed to believe that Petitioner had committed the crimes alleged in the warrant. Specifically, Petitioner raises five challenges: (a) the documents did not conform to the requirements of the Treaty; (b) the documents did not satisfy the reliability, trustworthiness, and veracity requirements of American law; (c) the Brachenmacher and Bounketh statements were not sworn, under oath, or subject to a warning about false statements; (d) the documents contained mere conjecture based on extrapolation subjecting Petitioner to "guilt by association"; and (e) the Government failed to prove by competent evidence that Petitioner was the individual named in the warrant.

The first three challenges essentially center on the admissibility of various documents during the extradition hearing. The admission of evidence at such a hearing is governed by statute:

Depositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitled them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the Untied States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.

18 U.S.C. § 3190. Petitioner does not contest the authentication of the documents in this case. Thus, it appears that the document tendered as exhibits by the Government during the extradition hearing were entitled, under the statute, to be received and admitted.

However, Petitioner contends that consideration of certain documents was precluded by the terms of the Treaty. Article 29 of the Treaty governs the admissibility of evidence, stating that "[a] warrant of arrest and depositions or other evidence, given on oath or in a manner described in article 14(5) ... shall be admitted in evidence in the examination of the request for extradition when [properly authenticated]." (Case No. 97-1091-01, March 3, 1998 Extradition Hearing Government's Exhibit One, Attachment Two at 27.) The factual allegations of the Federal Republic of Germany's extradition request are set forth in what appears to be a statement given under oath by the German District Attorney responsible for the proceedings against Petitioner. (Case No. 97-1091-01, March 3, 1998 Extradition Hearing Government's Exhibit Two, Tab One, Declaration and Confirmation.) The summaries of hearsay statements within the District Attorney's statement do not render the statement inadmissible. Emami v. U.S. Dist. Court for N. Dist. of Cal., 834 F.2d 1444, 1450-52 (9th Cir.1987).¹ In addition, Petitioner's contention that the other statements (i.e., Brachenmacher and Bounketh) must be sworn or under oath to be admissible is also without merit. Petitioner misconstrues the meaning of Article 14(5) of the Treaty. This provision merely expands the scope of admissible competent evidence and does not restrict the evidence to include only sworn or warned statements, as urged by Petitioner. Id. 834 F.2d at 1451-52; see also Zanazanian v. United States, 729 F.2d 624, 626-28 (9th Cir.1984) (unsworn police reports which summarize witness statements are competent evidence in extradition proceedings). Thus, Petitioner's first three challenges are without merit.

Petitioner next argues that the evidence contains mere conjecture and amounts to nothing more than "guilt by association." This contention attacks the Magistrate Judge's probable cause finding. This Court's review of the Magistrate Judge's determination of probable cause is limited to ...