Theron v. U.S. Marshal

• Decision Date: 10 November 1987
• Docket Number: No. 86-5741,86-5741
• Citation: 832 F.2d 492
• Parties: Frans THERON, Plaintiff-Appellant, v. UNITED STATES MARSHAL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 492

832 F.2d 492

Frans THERON, Plaintiff-Appellant, v. UNITED STATES MARSHAL, Defendant-Appellee.

No. 86-5741.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1987.

Decided Nov. 10, 1987.

Rodney M. Perlman, Los Angeles, Cal., for plaintiff-appellant.

Steven Mansfield, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, HALL and LEAVY, Circuit Judges.

WALLACE, Circuit Judge:

At the conclusion of extradition proceedings before a United States magistrate, Theron was found extraditable to South Africa on sixteen counts in an indictment. The district court denied Theron's petition for habeas corpus. Theron timely appealed. The magistrate had jurisdiction pursuant to 18 U.S.C. Sec. 3184, and the district court had jurisdiction pursuant to 28 U.S.C. Sec. 2241(a). We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and we affirm.

I

On April 27, 1979, a sixteen count indictment was filed in a South African court against Theron. Count one charged Theron with fraud, and alternatively both with theft and with obtaining credit while an adjudicated insolvent without advising the creditor of the insolvency. Counts two through twelve charged Theron with fraud, and alternatively with theft, for participating in a check-kiting scheme. Counts thirteen through fifteen charged Theron with fraud, and alternatively with obtaining credit while an adjudicated insolvent without advising the creditor of the insolvency. Count sixteen charged Theron with contracting for a debt without any reasonable expectation of being able to discharge the debt. A magistrate in Cape Town issued a warrant for Theron's arrest on these charges on April 30, 1979. Theron, however, had left the country on April 28, 1979.

On September 15, 1981, the South Africa government filed a second indictment. The second indictment's first fifteen counts corresponded with counts one through fifteen of the first indictment. Count sixteen of the first indictment became count seventeen of the second indictment. In addition, the second indictment contained a new count, count sixteen, which charged Theron with fraud for obtaining a rental car by misrepresentation.

On September 8, 1982, the Ambassador of the Republic of South Africa to the United States sent a diplomatic note to the United States Secretary of State formally requesting Theron's extradition pursuant to the Treaty on Extradition between the United States of America and the Union of South Africa. Treaty of Extradition, Dec. 18, 1947, United States-South Africa, 2 U.S.T. 884, T.I.A.S. No. 2243 (Treaty). On July 15, 1983, the United States filed a complaint and requested an arrest warrant for Theron, who was residing in Orange County, California. Theron was promptly arrested, arraigned before a United States magistrate, and released on his own recognizance.

The magistrate determined that Theron was extraditable on counts one through fifteen of the first indictment, but that there was insufficient evidence as to count sixteen of the first indictment (count seventeen of the second indictment) and therefore Theron was not extraditable on that charge. The magistrate also found that Theron was extraditable on count sixteen of the second indictment.

Theron petitioned for a writ of habeas corpus. The district court denied the petition. Theron timely appealed.

In reviewing an extradition order on a petition for habeas corpus, our role is strictly limited. We only review to determine (1) whether the extradition court had jurisdiction over the proceedings and the fugitive, (2) whether the offense charged is within the valid and enforceable extradition treaty, and (3) whether there was any evidence warranting the finding that there was a reasonable ground to believe the accused guilty. Artukovic v. Rison, 784 F.2d 1354, 1355-56 (9th Cir.1986) (Artukovic), citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). In conducting this review, findings of fact are reviewed under a "clearly erroneous" standard, Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986), and legal questions are reviewed de novo. Kamrin v. United States, 725 F.2d 1225, 1227 (9th Cir.) (Kamrin), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984).

On appeal, Theron raises issues involving only the second and third areas of our judicial review. First, he contends, for a variety of reasons, that the offenses charged are not within the extradition treaty. Second, he contends that there was insufficient evidence warranting the finding that there was a reasonable ground to believe that he was guilty.

II

Two principles govern the determination of whether a charge in the indictment is within a treaty: dual criminality and speciality. First, under the principle of dual criminality, no offense is extraditable unless it is a crime in both the requesting country and the country from which extradition is requested. Caplan v. Vokes, 649 F.2d 1336, 1343 (9th Cir.1981) (Caplan ). Article 5 of the Treaty expressly incorporates dual criminality:

The extradition shall not take place if the crime or offence is not indictable in the place where the person claimed is apprehended or if, subsequently to the commission of the crime or offence or the institution of the penal prosecution or the conviction thereon, exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the High Contracting Party applying or applied to.

Treaty, 2 U.S.T. 884, 889-90, T.I.A.S. No. 2243.

In assessing dual criminality, courts examine "similar [criminal] provisions of federal law or, if none, the law of the place where the fugitive is found or, if none, the law of the preponderance of states." Caplan, 649 F.2d at 1344 n. 16, quoting Cucuzzella v. Keliikoa, 638 F.2d 105, 107 (9th Cir.1981). Dual criminality does not require that an offense in a foreign country have an identical counterpart under the laws of the United States. Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922). Rather, dual criminality exists if the "essential character" of the acts criminalized by the laws of each country are the same and if the laws are "substantially analogous." Wright v. Henkel, 190 U.S. 40, 58, 23 S.Ct. 781, 785, 47 L.Ed. 948 (1903) (Wright); see also Factor v. Laubenheimer, 290 U.S. 276, 300, 54 S.Ct. 191, 198, 78 L.Ed. 315 (1933).

Second, the principle of speciality limits prosecution in the requesting country to those offenses that the asylum country has found to be extraditable. Caplan, 649 F.2d at 1343. Article 7 expressly incorporates the principle of speciality:

A person surrendered can in no case be kept in custody or be brought to trial in the territories of the High Contracting Party to whom the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place, until he has been restored, or has had an opportunity of returning, to the territories of the High Contracting Party by whom he has been surrendered.

Treaty, 2 U.S.T. 884, 890, T.I.A.S. No. 2243.

Thus, as to each charge in the indictment, we must determine whether the principles of dual criminality and speciality are met. South Africa can only prosecute Theron for extraditable offenses. See Caplan, 649 F.2d at 1343. Because Theron was arrested in California, we will first evaluate the laws of the United States and then, if necessary, the laws of California.

A.

Theron asserts that each count of the indictment fails to meet the principle of dual criminality. Count one charged him with fraud and alternatively both with obtaining credit while an adjudicated insolvent without advising the creditor of the insolvency and with theft. Theron had obtained and used an overdraft line of credit on his checking account without disclosing that he was an adjudicated insolvent.

The magistrate concluded that the dual criminality requirement was satisfied by 18 U.S.C. Sec. 1014, 18 U.S.C. Sec. 2113(b), and California Penal Code Sec. 484(a). Because this is a conclusion of law, we review it de novo. Kamrin, 725 F.2d at 1227.

18 U.S.C. Sec. 1014 provides that whoever knowingly makes any false statement or report for the purpose of influencing in any way the action of credit unions or banks insured by the federal government upon any application or advance shall be fined not more than $5,000 or imprisoned not more than two years or both. On appeal, Theron has argued that the South African law is much broader than section 1014; therefore, he concludes that dual criminality is not present.

The essential elements of bank fraud under section 1014 are that the defendant made false statements to the bank, that he did so to influence the bank's action, and that the defendant knowingly made the false statement as to a material fact. See United States v. Bonnette, 663 F.2d 495, 497 (4th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 666 (1982). A statement concerns a material fact when the statement has the capacity to influence the lending institution. United States v. Braverman, 522 F.2d 218, 223 (7th Cir.), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975). A loan applicant's failure to disclose the full extent of his liabilities can form the basis of liability under section 1014. See Robinson v. United States, 345 F.2d 1007, 1009-10 (10th Cir.), cert. denied, 382 U.S. 839, 86 S.Ct. 87, 15 L.Ed.2d 81 (1965).

South Africa's law criminalizes an adjudicated insolvent's failure to disclose his insolvency when obtaining credit. Theron's nondisclosure of his insolvency to the bank in South Africa in order to obtain credit is generally the same character as acts punishable under section 1014 and South Africa's law is substantially analogous...