Tavarez v. U.S. Atty. Gen.

• Decision Date: 22 February 1982
• Docket Number: No. 81-1295,81-1295
• Citation: 668 F.2d 805
• Parties: Jesse Lopez TAVAREZ, Ex Parte, Petitioner-Appellant, v. U. S. ATTORNEY GENERAL, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 805

668 F.2d 805

Jesse Lopez TAVAREZ, Ex Parte, Petitioner-Appellant, v. U. S. ATTORNEY GENERAL, Respondent-Appellee.

No. 81-1295

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 22, 1982.

Joseph J. Rey, Jr., El Paso, Tex., for petitioner-appellant.

Shirley Baccus-Lobel, Asst. U.S. Atty., Dallas, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, REAVLEY and RANDALL, Circuit Judges.

REAVLEY, Circuit Judge:

This case presents a novel question under the United States-Mexico treaty concerning the transfer of criminal prisoners and its implementing legislation, Act of Oct. 28, 1977, Pub.L. No. 95-144, 91 Stat. 1212 (codified at 18 U.S.C. §§ 3244, 4100-4115 (Supp. III 1979)) (hereinafter the "Foreign Offenders Transfer Act"): If a Mexican national, who has been convicted of a crime under state law in the United States and has been transferred to Mexico to serve his sentence, escapes from the custody of Mexican authorities and returns to this country, may the Attorney General apprehend him without a warrant and return him to Mexican authorities without extradition proceedings? We hold that he may and affirm the judgment of the district court. ¹

I.

Jesse Lopez Tavarez, a Mexican national, was convicted of voluntary manslaughter and sentenced to eight years imprisonment by a Texas state court. He began serving his sentence in a Texas state prison in October 1977. Shortly thereafter, Congress passed the Foreign Offenders Transfer Act in order to implement treaties with Mexico and Canada providing for the transfer of offenders and allowing an offender to serve his sentence in his own nation. Pursuant to the United States-Mexico treaty of November 25, 1976, T.I.A.S. No. 8718 (the "Treaty") and the Act, Tavarez requested transfer to Mexico. In July 1978, the state of Texas delivered Tavarez into the custody of the United States Attorney General, who, in turn, handed him over to Mexican authorities.

In July 1979, Tavarez escaped from the Mexican prison in which he was serving his sentence. Sometime thereafter, he re-entered the state of Texas. On April 1, 1981, the Attorney General of Mexico wrote to the United States Attorney General requesting that Tavarez be returned to Mexico to complete his sentence. Tavarez was apprehended by the FBI, without a warrant, ² on April 17, 1981. The Attorney General took the position that he could hold Tavarez without any hearing or appearance before a magistrate, and hand him over to Mexican authorities without extradition proceedings. Tavarez filed a petition for a writ of habeas corpus, which the district court denied.

II.

The government contends that Tavarez is in the same position as a convict who has escaped from a federal penitentiary. When Tavarez requested to be transferred to Mexico, Texas put him into the custody of the United States Attorney General. While the government transferred Tavarez to Mexico, at his request and with his consent, it argues that it never relinquished "constructive custody" of Tavarez. Tavarez was simply serving his American sentence in a Mexican prison; once Tavarez escaped from imprisonment, the government had as much right to take him back into custody as if he had escaped from a federal penitentiary.

Tavarez argues that, when the government surrendered him to Mexico, it relinquished its power to keep him in custody. Tavarez relies heavily on 18 U.S.C. § 4107(b)(2), under which the transferee must give his consent that "the sentence shall be carried out according to the laws of the country to which he is to be transferred." United States law no longer governs the "carry(ing) out" of his sentence; therefore, he argues, the government has no legal basis for resuming custody. The government can return him to Mexican authorities, he concludes, only if it commences extradition proceedings under 18 U.S.C. § 3184. This argument, if accepted, may preclude surrender of Tavarez to Mexican authorities, because it is doubtful that Tavarez has "committed (a crime) within the jurisdiction" of Mexico, as required by 18 U.S.C. § 3184. Tavarez committed voluntary manslaughter in the state of Texas; Tavarez' escape from prison, the government and Tavarez agree, was not a crime in Mexico. ³

Neither § 4107(b)(2) nor any other provision of the statute has the effect that Tavarez urges. Section 4107(b) merely states the conditions to which a prisoner must consent prior to transfer. It does not attempt to define the power of the state or federal government over a prisoner after his transfer. But even if that section does confer enforceable rights on the transferred prisoner, Tavarez simply misinterprets the meaning of the provision that "the sentence shall be carried out according to the laws of" Mexico. This clause means that Mexican law will govern the conditions of confinement and the opportunity for early release through parole or good-time credits. See Treaty, art. V(2). ⁴ The very purpose of the Foreign Offenders Transfer Act was to give a prisoner the benefit of more favorable conditions of confinement- including opportunities for good-time credits and parole-that might be available in his own country. H.Rep.No.720, 95th Cong., 1st Sess. 1-2, reprinted in (1977) U.S.Code Cong. & Ad.News 3146, 3146-47 (concentrating on the deprivations-including lengthy sentences without parole-suffered by Americans imprisoned in Mexico for drug offenses). Thus, the statute provides that an offender transferred to the United States "shall remain in the custody of the Attorney General under the same conditions and for the same period of time as an offender who had been committed to the custody of the Attorney General by a court of the United States for the period of time imposed by the sentencing court." 18 U.S.C. § 4105(a). The transferred offender also has the same opportunity for good-time credits, see id. § 4105(c), and for parole, see id. § 4106. See generally id. § 4103. ⁵

The statute also makes clear that while the laws of the receiving nation shall govern the manner in which the sentence is served, the laws of the sentencing nation shall continue to govern both the validity of the conviction and the term of the sentence. Thus, one of the other conditions of transfer to which a prisoner must consent is that "only the appropriate courts in the United States may modify or set aside the conviction or sentence, and any proceedings seeking such action may only be brought in such courts." 18 U.S.C. § 4107(b) (1). This condition is enacted into positive law both by the Treaty, art. VI, ⁶ and by 18 U.S.C. § 3244(1). ⁷

These provisions demonstrate that, under the scheme of the Treaty and the statute, the sentencing nation retains the paramount interest in seeing that the entire term of sentence is completed, albeit completed pursuant to the laws of the receiving nation. This interest is also protected by the condition of transfer under which the offender must understand that the sentencing nation retains the power to reacquire custody in at least one instance: the prisoner "may be returned to the United States for the purpose of completing his sentence" if the receiving nation determines that the transfer was invalid and the United States requests his return. Id. § 4107(b)(3). The statute does not attempt to establish or define the custodial authority of either the federal government or the state government when such an offender is returned. Instead, Congress apparently assumed that the respective governments already had the power to require completion of such sentences.

Similarly, the statute does not specifically address the question of the Attorney General's power to regain custody of a transferred offender who escapes from custody and re-enters this country. The statute does not, however, deprive the Attorney General of such power.

Since the statute itself does not settle the question presented, we must determine the scope of the authority the statute gives to the Attorney General in light of the general principles of law concerning the government's power to return escaped convicts to custody. We think that the inquiry involves two questions: First, does the Attorney General have the power to apprehend the offender without a warrant or a hearing? Second, may the Attorney General return the offender to Mexico without a hearing?

III.

Generally, the legal custodian of an escaped convict can return the fugitive to custody without a warrant or a hearing. See, e.g., Rush v. United States, 290 F.2d 709 (5th Cir. 1961) (federal authorities may reacquire custody of escaped convict from state authorities and return him to federal penitentiary in another state without a removal warrant and without a hearing before a magistrate), followed in Bandy v. United States, 408 F.2d 518, 521 (8th Cir.), cert. denied, 396 U.S. 890, 90 S.Ct. 180, 24 L.Ed.2d 164 (1969); United States v. Mensik, 440 F.2d 1232, 1234 (4th Cir. 1971) (FBI need not serve warrant on prisoner in escape status); United States v. Reed, 413 F.2d 338, 340 (10th Cir. 1969) (recapture of escaped convicts not an arrest requiring appearance before magistrate), cert. denied, 397 U.S. 954, 90 S.Ct. 982, 25 L.Ed.2d 137 (1970). ⁸ The reason that the custodian need not normally resort to the judicial process is that the escaped convict "may be ... confined under the authority of the original judgment until the term of his imprisonment has been accomplished." United States ex rel. Nicholson v. Dillard, 102 F.2d 94, 96 (4th Cir. 1939). ⁹

Thus, the resolution of our first question turns on the scope of the Attorney General's authority as custodian of Tavarez. Under the statute,

The Attorney General is authorized-

(3) to transfer offenders under a sentence of imprisonment ... to the foreign countries of which they are citizens or nationals;

(6) to make arrangements by agreement with the States for the...