Vardy v. U.S., 75--2180

• Decision Date: 26 March 1976
• Docket Number: No. 75--2180,75--2180
• Citation: 529 F.2d 404
• Parties: Oliver L. VARDY, Petitioner-Appellant, v. UNITED STATES of America and Donald Forscht, United States Marshal in and forthe Southern District of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 404

529 F.2d 404

Oliver L. VARDY, Petitioner-Appellant, v. UNITED STATES of America and Donald Forscht, United States

Marshal in and forthe Southern District of

Florida, Respondents-Appellees.

No. 75--2180.

United States Court of Appeals, Fifth Circuit.

March 26, 1976.

Rehearing and Rehearing En Banc

Denied June 9, 1976.

See 533 F.2d 310.

Donald I. Bierman, Miami, Fla., for petitioner-appellant.

Robert W. Rust, U.S. Atty., William Northcutt, Jr., Asst. U.S. Atty., Miami, Fla., B. Franklin Taylor, Jr., James P. Morris, Murray R. Stein, John L. Murphy, Attys., Acting Chief, Gov. Reg. Sec., Washington, D.C., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM, COLEMAN and GEE, Circuit Judges.

GEE, Circuit Judge:

This case involves a fact situation that can only be described as bizarre, even when compared to other examples of the increasingly frequent and frequently unusual litigation involving international cooperation in law enforcement. Appellant's sole argument is purely legal, very technical, highly ingenious, and totally without merit. We affirm the district court's denial of habeas corpus relief.

Appellant is an alien with a home in Florida; he is a permanent resident of the United States. He has been arrested and is free on bond in connection with a request by Canada, his country of origin, to extradite him to stand trial for his activities as a government official in Canada prior to his emigration to the United States. The extradition proceeding has been pending since January 1974, but no determination of extraditability has been made. This appeal is from the dismissal of Vardy's collateral habeas corpus action. Appellant's argument is that there is no subject matter jurisdiction in the extradition proceeding because he is not 'found' in the United States within the meaning of the controlling extradition treaty between the United States and Canada. ¹ This argument is based on appellant's interpretation of the events of January 1974, and we are obliged to summarize those events in some detail.

Appellant was arrested in Panama by local officials on January 22, 1974. Accompanied by an armed Panamanian policeman, he flew from Panama to Miami, Florida, on January 25, 1974. The government asserts that this was a voluntary journey, while appellant characterizes it as a 'kidnapping,' illegal under Panamanian and/or international law. We do not resolve this dispute because we deem it irrelevant to the issue before us. In any event, the trip to Miami was apparently only the first leg of a journey which was intended to return Vardy to Canada. Vardy never took the second leg because his attorney in Miami learned his itinerary in time to interrupt the journey by having the United States Marshal take custody of Vardy in the Miami airport pursuant to a petition for habeas corpus. Proceedings for extradition from the United States to Canada were instituted only after Vardy persuaded the United States courts to interrupt his transfer from Panama to Canada.

Despite its success in the district court, the government now argues that the district court lacked jurisdiction to entertain Vardy's petition for habeas corpus, based on the interpretation of the extradition treaty between the United States and Canada, prior to a determination in the extradition proceeding itself. The government relies on Jhirad v. Ferrandian, 355 F.Supp. 1155 (S.D.N.Y.), rev'd on other grounds, 486 F.2d 442 (2d Cir. 1973). In that case, the court heard a challenge to an extradition magistrate's jurisdiction prior to a determination in the extradition proceeding, but it expressed reluctance to do so and indicated that 'unusual circumstances' were required to justify such a procedure. We strongly agree that deferring habeas review until there is a determination of extraditability is a preferable procedure. Indeed, and in view of our disposition of this appeal, we urge the district court and the magistrate to take all steps necessary to reach an immediate determination of Vardy's extraditability. However, we do not believe that a prior determination of extraditability is a jurisdictional prerequisite to habeas relief. ² Moreover, the same factor which motivated the court in Jhirad to exercise habeas jurisdiction, an excessive and confusing delay in the extradition proceedings, is also present in this case.

The government bolsters its argument that habeas relief is premature by contending that this result is mandated by our unpublished disposition of a prior appeal in this case, Vardy v. United States, No. 74--8305 (5th Cir., Sept. 24, 1974). In that case, we denied leave to appeal from an interlocutory order and indicated that the district court erred in purporting to exercise direct review of the magistrate's action in the extradition proceeding. The procedural posture of this appeal is different, and nothing in our disposition of the earlier appeal indicates that habeas is unavailable until a final decision is reached in the extradition proceeding. Since the exercise of habeas...