Peters v. Egnor

• Citation: 888 F.2d 713
• Decision Date: 02 November 1989
• Docket Number: No. 88-1988,88-1988
• Parties: Frank Edward PETERS, Plaintiff-Appellant, v. Jack EGNOR, United States Marshal for the District of Colorado, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 713

888 F.2d 713

Frank Edward PETERS, Plaintiff-Appellant, v. Jack EGNOR, United States Marshal for the District of

Colorado, Defendant-Appellee.

No. 88-1988.

United States Court of Appeals, Tenth Circuit.

Nov. 2, 1989.

Norman R. Mueller (Saskia A. Jordan with him on the briefs) Haddon, Morgan & Foreman, P.C., Denver, Colo., for plaintiff-appellant.

Thomas M. O'Rourke, Asst. U.S. Atty. (Michael J. Norton, Acting U.S. Atty. with him on the brief), Denver, Colo., for defendant-appellee.

Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and O'CONNOR, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

In October 1987, appellant Frank Peters was arrested in Colorado on a British warrant alleging four acts of theft by deception under the Theft Act of 1968, and two violations of the Forgery and Counterfeiting Act of 1981. The British government sought extradition under the United States-United Kingdom Extradition Treaty. ¹

After a hearing, a United States Magistrate issued a Certification of Extraditability and Order of Commitment. Peters' subsequent petition to the United States District Court for the District of Colorado for a writ of habeas corpus was denied. This appeal followed. At each proceeding, Peters argued that there was not probable cause to extradite him, and that the doctrine of dual criminality was not satisfied. We agree with the magistrate and the district court that Peters may be extradited because both of these requirements were met with reference to each of the six charges against him.

I. BACKGROUND

The charges against Peters arise from his efforts to raise capital for the Parrot Corporation, a company formed by Peters and others for the purpose of manufacturing computer floppy disks in Wales. Parrot Corporation Investment Report, R.Supp. Vol. I at 315 (Ex. 22). Peters contacted Neil Taylor, investment development director for the Wales Development Agency ("WDA"), a governmental corporation. The WDA agreed to be the lead investor in the Parrot project, providing a factory and one million British pounds. Another source of financing was to be a low-interest loan from the European Coal and Steel Community ("ECSC"), an agency of the European Economic Community. Bowen Affidavit, R.Supp. Vol. I at 22-23. The ECSC requires a bank repayment guarantee for loans to new ventures.

To obtain additional funding from private institutional investors, Peters and Taylor procured the services of Development Capital Group Limited ("DCG"), which agreed that if the WDA would lead the investment and arrange the ECSC loan, DCG would find additional investors. Faulkner Affidavit, R.Supp. Vol. I at 37-39. Their joint efforts persuaded CIN Industrial Investments Limited ("CIN") and Legal General Assurance Society Limited ("LGA") to invest seven hundred thousand pounds each. Commercial Union Assurance Company Limited ("CUA") agreed to invest an additional three hundred thousand pounds.

After several unsuccessful attempts to find a guarantor for the ECSC loan, Peters approached the London branch of The Northern Trust Company of Chicago ("Northern Trust"). Evans Affidavit, R.Supp. Vol. I at 102. After some negotiating, a proposal was submitted to Northern Trust's main office for approval. Significantly, the proposal required that the guarantee be secured by one hundred percent cash collateral; i.e., Northern Trust would guarantee Parrot's repayment of the two and one-half million pound ECSC loan only if Parrot would keep two and one-half million pounds on deposit with Northern Trust for the term of the loan, which was eight years. Buchanan Affidavit, R.Supp. Vol. I at 56-57. Consequently, the corporation's available working capital would be that much less.

Meanwhile, Peters and Taylor grew concerned that further delays in closing the deal would cause the institutional investors to back out, so a closing date of December 23, 1983 was set. Bowen Affidavit, R.Supp. Vol. I at 27. Northern Trust approved the guarantee, but a formal commitment letter could not be prepared in time for the closing. Instead, the vice-president of the London branch submitted an informal "comfort letter" which stated in full:

"We confirm that subject to:

(1) the negotiation of a satisfactory agreement between Parrot Corporation Limited and ourselves; and

(2) our review of documentation between an ECSC agent bank or institution, and Parrot Corporation Ltd.

We are prepared in principle to issue a Standby Letter of Credit guaranteeing your obligations to such bank or institution arising from their role as Agent for the European Coal & Steel Community in lending up to [ ]2.5 million [pounds] to Parrot Corporation Ltd.

We look forward to discussing the proposed transaction with you in more detail."

R.Supp. Vol. I at 313 (Ex. 21).

The closing was held as scheduled. Present at the meeting, in addition to Peters and Taylor, were representatives of the WDA, CIN, and DCG (representing LGA and CUA). They were shown the comfort letter, but not told of the cash collateral requirement. Owens Affidavit, R.Supp. Vol. I at 48-50. The most common way for a guarantee to be secured in these circumstances would be a debenture over the assets of the company, and at least some of the investors were under the impression that that was how the Northern Trust guarantee would be secured. ² Bowen Affidavit, R.Supp. Vol. I at 34-35. Some of those present were unhappy with the letter's vagueness, but the investment agreement was signed anyway. Id. at 31. The investor representatives would not have gone through with the investment had they known that their money or the borrowed funds would be used to satisfy the collateral requirement, instead of being used as working capital. Id. at 33; Faulkner Affidavit, R.Supp. Vol. I at 43.

A full letter of intent, containing the cash collateral requirement, was executed in January and back-dated December 22, 1983. R.Supp. Vol. I at 213-15 (Ex. 16); R. Vol. II at 11.

Northern Trust required Parrot to show that the board of directors had authorized the deposit of the collateral, so Peters signed and submitted two extracts (because the loan was distributed in two installments) of corporate minutes indicating that the board was informed of the cash collateral requirement and approved of the deposits. R.Supp. Vol. I at 172-73, 183 (Exs. 3, 6). The extracts were false. No such discussions ever took place. R. Vol. I at 42; Shakespeare Affidavit, R.Supp. Vol. I at 66.

II. DISCUSSION

An extradition order cannot be directly appealed. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920). Instead, this case is before us on appeal from a denial of a writ of habeas corpus, which affords a narrower review. Greci v. Birknes, 527 F.2d 956, 958 (1st Cir.1976); see Restatement (Third) of the Foreign Relations Law of the United States Sec. 478 reporters' note 2 (1987). Our inquiry is limited to

"determining 'whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal construction, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.' "

Brauch v. Raiche, 618 F.2d 843, 847 (1st Cir.1980) (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)). Peters does not contest the magistrate's jurisdiction, nor does he claim that the charges against him are not extraditable crimes. He only challenges the determinations that there was probable cause to extradite him and that the principle of dual criminality was satisfied.

While on its face the doctrine of dual criminality seems to require a full-blown inquiry into both the question of whether the alleged acts would violate American law and the question of whether the alleged acts constitute a violation of the British statutes, we think that an extensive investigation of British law would be inappropriate. For one thing, we "are not expected to become experts in the laws of foreign nations." In re Assarsson, 635 F.2d 1237, 1244 (7th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981), and the issues Peters raises could require just such expertise. In addition, the issue of whether there is "probable cause to believe that there has been a violation of ... the criminal laws of the [request]ing country," Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977), relates both to whether or not Peters committed the alleged acts, and to the dual criminality question of whether those acts violated British law. Because these two questions share essential material elements, the resolution of one guides the resolution of the other.

Accordingly, our discussion of dual criminality will be devoted to the matter of whether the acts alleged would violate substantially analogous American law. Whether those acts also violate the British statutes will be considered in connection with the probable cause requirement.

A. Probable Cause

For a person to be extradited, there must be probable cause to hold him for trial. Restatement (Third) of the Foreign Relations Law of the United States Sec. 476(1)(a) (1987); see Extradition Treaty, art. IX(1), 28 U.S.T. at 232 ("Extradition shall be granted only if the evidence be found sufficient ... to justify the commital for trial of the person sought....").

The role of the committing magistrate in reviewing the sufficiency of the evidence is "to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction." Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 472, 66 L.Ed. 956 (1922); accord, e.g., Demjanjuk v. Petrovsky, 776 F.2d 571, 576 (6th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986); see also Restatement (Third) of the Foreign Relations Law of the United...