Prushinowski v. Samples

• Decision Date: 24 May 1984
• Docket Number: No. 84-6108,84-6108
• Citation: 734 F.2d 1016
• Parties: Josef PRUSHINOWSKI, Appellant, v. Fleury T. SAMPLES; Attorney General of the United States; Secretary of State of the United States, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1016

734 F.2d 1016

Josef PRUSHINOWSKI, Appellant, v. Fleury T. SAMPLES; Attorney General of the United States Secretary of State of the United States, Appellees.

No. 84-6108.

United States Court of Appeals Fourth Circuit.

Argued April 4, 1984.

Decided May 24, 1984.

David J. Butler, Washington, D.C. (Barry M. Heller, Brownstein, Zeidman & Schomer, Washington, D.C., Thomas C. Manning, Purser, Cheshire, Manning & Parker, Raleigh, N.C., William S. Kenney, Washington, D.C., on brief), for appellant.

Dennis I. Moore, Asst. U.S. Atty., Raleigh, N.C. (Samuel T. Currin, U.S. Atty., Raleigh, N.C., Leonie M. Brinkema, Falls Church, Va., Patricia C. Gunn, U.S. Dept. of Justice, Washington, D.C., Office of Intern. Affairs, on brief), for appellees.

Before RUSSELL, MURNAGHAN and ERVIN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Josef Prushinowski is a citizen both of the United States of America and of Israel. He subscribes to the religious tenets of the Chassidic sect which abides by strict dietary restrictions.

Prushinowski operated a business in Great Britain through two corporations. The British Valued Added Tax applies at many if not all of the stages by which a commodity finds its way to market. Consequently, upon transfers of property, a commercial enterprise, such as that conducted by Prushinowski, may become entitled to refunds or credits. Prushinowski, it is asserted, applied a scheme by which he claimed and received such tax benefits for sales which had not, in fact, taken place. He did so despite warnings from an employee not to do so.

Prushinowski returned to the United States and thereafter faced efforts by the United States Government, acting at the request of the government of Great Britain, to extradite him to England to answer criminal charges of theft. The United States District Court for the Eastern District of North Carolina found that Prushinowski met the requirements for extradition, so certified, and ordered Prushinowski committed.

Prushinowski, in his pursuit of a writ of habeas corpus, first contends that the offenses with which he is charged are truly violations of the English Finance Act of 1972 and not the Theft Act of 1968. The law of England seems clear that offenses under the former are not grounds for extradition under the treaty between the United States and Great Britain, while, on the other hand, violations of the Theft Act are. See Regina v. Governor of Pentonville Prison, Ex Parte Khubchandani, 71 Crim.App. 241, 248 (1980). It seems to us that the offenses charged may well constitute violations of both statutes. There is no necessary mutual exclusivity. The arguments which can be made that the British Theft Act has been violated by the actions of Prushinowski are sufficiently strong to cause us to defer judgment to a tribunal much better qualified than we to rule on a matter of British law, namely, the appropriate British court. Assuming, therefore, that the United Kingdom has demonstrated probable cause to believe that Prushinowski has violated the Theft Act, extradition is proper regardless of whether his acts amount to violations of the Finance Act as well.

We come then to Prushinowski's second contention, that the United Kingdom did not meet its burden of proof in establishing probable cause. Our standard of reviewing a probable cause determination is an exceedingly narrow one:

It is not a means for rehearing what the magistrate already has decided. The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.

Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925) (emphasis added); see also Peroff v. Hylton, 542 F.2d 1247 (4th Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977).

In light of the applicable standard of review, we affirm the district court's conclusion that the United Kingdom has demonstrated probable cause. That thefts have occurred has been persuasively indicated. It is not our function to afford a trial on the merits, and, again, we defer to a tribunal far better qualified than we to assess the merits of Prushinowski's defenses. That Prushinowski may be able to assert a strong defense and avoid being convicted in no way implies that extradition is improper.

The final contention of Prushinowski revolves around a questionable fact which the district judge, presumably in an effort to streamline matters, accepted as proven for purposes of the case. Prushinowski's assertion is that in any British prison in which he might find himself he would be unable to obtain any food complying with his rules regulating dietary restrictions, and, consequently, would starve to death.

As a matter of strict interpretation, the district judge may have been justified in making the assumption he did and still holding that no adequate grounds to defeat the extradition had been made out. It is established that constitutional questions of deprivation of rights are...