Robert Montgomery Hooker, Appellant-Petitioner v. Frank X. Klein, United States Marshal, N.D. Of California, Appellee-Respondent

Before GOODWIN, CHAMBERS Judges, *, Circuit and KELLEHER District . Judge KELLEHER, Judge: District appeal This is an from denial petition for a writ of chal- lenging finding of extraditability and or- der of commitment entered the district on September court 1976. the While appeal is denial taken the of habeas relief, the various issues raised here- in upon legality appellant’s bear of ex- proceedings. tradition In March of govern- the Canadian requested ment from the ex- United States tradition of appellant pursu- Robert Hooker ant to the treaty extradition then in force between the request- two countries.1 The ing charged documents Hooker with theft Wilken, Claudia A. Asst. Federal Public of various corporate following assets (argued), Francisco, Defender San Cal., for dissolution a corporation of of Canadian appellant-petitioner. which he was one of Pursu- principals. two Murray (argued), R. Stein of ant to Dept, (1970)2 U. S. and then U.S.C. § Justice, C., of Washington, for appellee- 501(a)(6) D. Rule Rules of Practice of Local respondent. for the Northern District of Californiа3 the * Kelleher, brought justice, magis- judge, The Honorable Robert J. United such before or Judge trate, States District for the Central District of to end of crimi- evidence California, sitting by designation. nality If, may be heard and on considered. hearing, such he suffi- deems the evidence 1. Extradition between the United and States provi- charge cient to under sustain by is Canada controlled the United States-Unit- convention, proper treaty of or sions he Kingdom ed on treaties extradition entered into certify same, together coрy shall with a Force, 1976, up until 1922. See Treaties in at testimony him, of all the before to the taken 42. State, Secretary may of that warrant issue a upon requisition proper of the authorities provides: 2. 18 U.S.C. § government, foreign such for the surren- treaty “Whenever there or convention according stipula- person, der of such to the for extradition between the United States convention; treaty tions of the or he and any government, any justice foreign and or shall issue warrant for commitment of his judge States, any magistrate of the United or person charged jail, proper so to the by authorized so to do court the United to there remain until such be surrender shall States, any judge or of a court of record made.” general jurisdiction State, any upon may, oath, complaint August any Dis- charging Effective the Northern made under person jurisdiction, Local found trict’s Rules of were within his Practice amended with having part re-promulgated. grant jurisdiction and committed within the The of authori- ty any foreign government magistrates any such conduct extradition provided ceedings, previously treaty crimes such con- contained Rule 501 of or vention, rules, 310-2, apprehen- issue old his warrant for the now is set in Rule forth person provides: charged, may sion so he which this Three distinct issues are raised was referred complaint extradition (1) appeal. May government review and renew that court for magistrate of original after an re- conducting hearing extradition After disposition. on the same facts has been denied quest evidence submitted which he considеred (2) As- competent jurisdiction? a court of government and behalf of the Canadian limited to suming is not by appellant, rebuttal evidence submitted extradition, weight, if attempt one at what certain weighing credibility upon and entertaining must the the second any, court appellant, testifying witnesses on behalf findings of the first request give that no crime had magistrate found court, finding particularly is the first appel- for which been in Canada committed, judicata proceeding? res as to the second complaint The lant could be extradited. (3) proper scope is the of review What therefore was dismissed. concerning extradition appeal as to matters magistrate’s denial of Following proceedings? re- request, and, Because a of extraditabili the case the merits of evaluated ty subject appeal, is not see Collins govern- direct the reaffirmation of the Canadian 364, 369-70, Miller, v. 40 S.Ct. press ment that it wished to forward 616; Sakagu ex rel. 64 L.Ed. United States extradition, pursue appellant’s elected to Kaulukukui, (9th chi v. 520 F.2d 729-30 A was filed extradition. possible only collateral review is of the court general duty judge with the through corpus. a writ of habeas See Sha assigned to the docket of a district Ferrandina, (2d piro judge magistrate. rather than a by agreement cert. of dismissed district court initiated new extradition 204, 38 parties, 414 U.S. S.Ct. ceedings, the re- reviewing government’s habeas cor (1973). pursuing L.Ed.2d 133 In quest on the of the record exclusively basis subject to an pus relief a at law original of the held before the proceedings foregoes necessarily ordеr of extradition magistrate. The ex- appellant court found of re advantage scope the the broader of Ex- traditable and issued a Certification of The area appeal. that direct view attends In traditability and of Commitment. Order that a into orders of extradition inquiry of extradition, that ordering the court ruled may under corpus permissibly court habeas ap- the in magistrate considering had erred considerably take is restricted. evi- pellant’s rebuttal evidence in that such in corpus is available dence tended to contradict the evidence “[H]abeas juris magistrate whether the had proffered by government quire the Canadian diction, charged is support of subse- whether the offense Appellant extradition. relief, and, by chal- a somewhat quently corpus treaty filed for habeas within extension, any lenging the order of extradition on various liberal whether there was grounds, ruling warranting but that the of evidence that particularly magistrate ground should there was reasonable to believe denying extradition have v. Phil request guilty.” barred the second extradition the accused Fernandez 541, 542, lips, denied proceeding. The district court U.S. S.Ct. there petition ap- (1925), for and an 69 L.Ed. 970 and cases cited habeas peal to this court was taken. in. U.S.C., 635(a)(1) “(a) assigned Section Pursuant to 28 “Until a criminal has been case [sic], magistrates shall, judge, magistrate each of within this said a criminal calendar extent, powers district shall have all and ‍​​‌‌​​‌​​‌​​‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌‌​‌​​​‌​​‌​​​‌​‌‍duties con- possible: to the maximum imposed upon ferred or the United States law or the Rules of Cоmmissioners (c) proceedings conduct extradition ac- Courts, Procedure for United States District cordance with 18 U.S.C. § following: including but not limited to the proceedings

The here in issue were * * * * * subject pertinent part to old Rule which in pur- proceedings (6) To conduct provided: suant to 18 U.S.C. 3184.” § establishing affirming power government of of evidence sufficiency be re- pursue once, accused cannot criminality of the extradition more than Shine, corpus. Grin v. recognized viewed habeas for potentiality abuse 47 L.Ed. 130 аuthority, “pro- such but observed not used to appeal may be against unjustifiable While an tection vexation and of review of extradition expand scope harassment incident to arrest repeated for orders, appellant’s to consider proceed we alleged same crime ordinarily must be as they more contentions insofar substantial sought, not in constitutional limitations or questions regarding jurisdiction raise treaty provisions, high but in a sense of may It be the second extradition court. responsibility part public offi- noted, however, that a writ of cor- charged cials with this duties in connec- pus place cannot of a writ error take 429-30, tion.” Id. at at 619. It is rehearing and “is what the not means clear, therefore, that constitutional consid- already has Fernan- magistrate decided.” do erations not constitute bar to reinsti- Phillips, supra. dez v. Our review therefore tuted extradition proceedings and that re- will error encompass every not asserted lief abuse of multiple attempts to the extradition prоceedings. limitation, lies judicial extradite not in but rather the fair-mindedness of the I. Request Renewal of Extradition government obligation in fulfilling its un- re government’s After the initial der treaties extradition. quest for an order extradition was denied The decisions of lower on the courts issue by the it filed magistrate, complaint a new expressed have been in accord with that in extradition in an attempt obtain the Supreme Court in Loisel II. In Ex more ruling. Appellant argues favorable parte Schorer, (E.D.Wis.1912), 195 P. 334 government’s that where the first the сourt declared power it was the following has been evi denied extensive duty to renew a dentiary and full hearing consideration request for extradition if it is convinced of the merits case by an extradition position. Similarly, merits its in In court, should barred re Kelly, (C.C.Minn.1886), F. 852 from renewing on the same court noticed that it would “a facts. The law of violation evidentiary international letter, of the if not spirit, extradition has of the of the long recognized that the government treaty,” there is free to if could be no second exami pursue extradition a nonwithstanding fugitive. initial ef nation of 854. A unsuccessful Id. at more II), example forts. In (Loisel Collins v. Loisel 262 recent of the rule application (1923), Gonzalez, 67 In (S.D.N.Y. S.Ct. L.Ed. 1062 re F.Supp. Supreme the acknowledged 1963), Court and af in which the first government’s re government’s firmed the right quest to reinstitute for extradition denied on was proceedings, noting extradition “it has ground fugitive that that the of the alleged act been ‍​​‌‌​​‌​​‌​​‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌‌​‌​​​‌​​‌​​​‌​‌‍consistently held under the treaties fell exception within the crimes” “political countries, with Great and other govеrning govern Britain that treaty. When fugitive justice may be arrested in ment chose to request, refile its extradition proceedings upon assigned rejected a second time proceeding the second crime, a new complaint charging the bound argument by same that it was discharged magistrate denial, where he prior citing was for the Loisel II support on the first or the complaint complaint opinion was While no this Court decision. at at expressly approved practice withdrawn.” Id. 619.4 has Loisel II requests, invоlved renewed extradition reinstituted extradition in Des Eggers, (9th after an earlier order of extradition mond v. 18 F.2d 503 had been set aside on habeas In corpus. expressed this Court no doubt that authority 4. The extradition between United between the States and tradition United Great 1, supra. See footnote States and Canada derives from of ex- treaties Britain. Gonzalez, F.Supp. In (E.D.Wis.1912); re original request, denial of an extradition these deci- Aside from (S.D.N.Y.1963). per- was a filing by government second have however, of cases sions, only a handful of action. missible course whether question addressed the expressly validity does not contest Appellant proceed- judicata applies to extradition res decisions, attempts to dis- these but rather ings. reinstituted tinguish them as cases in which authority provides Loisel II the most of extradition proceedings followed denial There, request of subject. upon a or cases in procedural grounds, orders on extradition, for government British pur- were requests which second extradition at law extra- fugitive fоund the magistrate evidentiary facts. sued on the basis of new entered of commit- ditable and an order II of the first While in Loisel dismissal discharged by That order later ment. was was for reasons arguably extradition order corpus of habeas the district court a writ than on the procedural defects rather the time of ground on the between merits, there indication strict is no hearing on the extradition order of this its to turn on holding Court intended Britain had corpus petition, habeas Great Indeed, clearly distinction. the Court’s sup- a new for extradition filed fair- stated preference affidavits, fugi- new and that ported by as a judicial over mindedness constraints answer to being custody held tive was extradition multiple curb to abusive use of charges. extradition these new The second for- indicates was requests that the Court finding in a again resulted proceeding mulating applicable a broad rule extraditability as to this practice reinstituting entire was denied. review Su- relief On we construe proceedings. Consequently, Court, it was that commit- contendеd preme holding govern- Loisel II as that where new set of ment of the on the good ment in faith that extradi- determines extra- affidavits after the order of original warranted, tion is it is not barred from cor- discharged dition had been on habeas multiple requests irre- pursuing judi- res pus was barred the doctrine of were spective requests of whether earlier cata since the affidavits in the denied on the procedural merits or on and sub- ceeding were “identical in form grounds. re- to those the first supporting stance” Rejеcting the Court quest. argument, II. Res Judicata the first “discharge of Collins on held new Assuming files a does for habeas . . . petition request for an earlier re- extradition after operate judicata.” as res not merits, what quest has been denied on the 67 L.Ed. effect, any, proceedings if should the earlier discharge further “the Court noted that findings have the reinstituted on right to go did not to question here ceedings? Appellant contends that the doc- It was have held for extradition. Collins judicata applies trine of res to second on which granted proceedings because proceeding compels hearing court and the irregular then held had been he was findings renewed to adopt the general, instead of undertak- British consul the first court. them, aban- to ing to correct had concluded them, by anew charges This re- don and to file the position raises an issue that has This seem- only slight by ceived attention the courts. another set of affidavits.” Id. course, holding those ex- on leaves approving ing Of cases second limitation the Court’s origi- an proceedings recognize question tradition unsettled the of whether implicitly that reconsideration not on the merits of the merits is nal denial extra- subsequent any barred an initial extradition. should have effect on by denial of charges.5 See, Schorer, P. 334 the same g., parte proceedings e. Ex 195 dition on judicata Eggers, applicability upon by 5. The issue of the of res v. 18 this Court in Desmond stay briefly (9th 1927), proceedings to execu to extradition touched 503 Cir. motion was F.2d

1367 judicata pro I], The doctrine of res state.” Cоllins v. Loisel 259 U.S. [Loisel valid, when judgment, vides that a final 309, 315, 469, 471, 42 S.Ct. 66 L.Ed. 956 merits, on the is a rendered bar subse (1922). If the extraditing court finds that action or quent parties between same fugitive is charges extraditable on the privity those in with them the same alleged warrant, ‍​​‌‌​​‌​​‌​​‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌‌​‌​​​‌​​‌​​​‌​‌‍in the certify it must that cause of action. Lawlor v. National See Secretary fact and issue a State Corp., 349 75 Screen Service U.S. warrant for the of the accused commitment 865, IB (1955); 5. Ct. 99 L.Ed. 1122 Moore’s until fugitive is surrendered to the for Federal Practice Before the doc ¶ 0.405[1]. eign government or extradition denied. valid, may (1) trine there must be apply, (1970). 18 The extradit See U.S.C. 3184 § merits, judgment, (2) final rendered on the ing court duty also has the to determine (3) subsequent involving action the same party brought whether before it is the them, parties (4) privity or those complaint. one named in the Fernan See is on the same cause of action or based 311, 541, dez Phillips, v. 268 45 S.Ct. 69 U.S. claim. (1925); Kelly, L.Ed. 970 Charlton v. 229 the usual case in which a Unlike 447, 945, (1913). 33 57 1274 U.S. S.Ct. L.Ed. proceeding may analyzed according to start, finding signals A of extradition principles established to determine whether conclusion, rather than the litigation disposition judgment,6 is a final an or fugitive’s guilt or op innocence. As der of extraditability easy defies classifica posed judgment, truly to a final it is an extraditing tion. The function of an court order, interlocutory prelimi more akin to a is not to decide the guilt or innocence of the nary hearing charges. on criminal And in law, at but rather to determine law, that area of the it is well settled that a whether there is “competent legal evidence probable of lack of cause does not which . justify . . would his appre- rearresting suspect bar the state from hension and commitment trial if the crime had been committed on the Because the charges.7 same extra [the forum] denied, judicata); Minnick, 722, 657, Stewart v. 409 tion 274 F.2d 826 U.S. 47 S.Ct. 71 L.Ed. (1927). rights original (9th 1969) (dismissal 1341 action There the order of extra- of civil Cir. discharged corpus against judicata); dition was habeas on the Glick v. Vallen as state res ground that the affidavits and documents Produce, Inc., (8th sub- 1968) tine 590 Cir. mitted properly the Canadian were not (dismissal cause of aсtion for failure to state a certified. The was refiled and judgment merits). is final again resulted in order of extradition. The again discharged court the order 386, Bassing Cady, 7. See government appealed of commitment and the 392, (1908). 52 L.Ed. 540 argument appeal to the Ninth Circuit. On protection against The Fifth Amendment’s dou discharge was raised that the first order of the habeas jeopardy ble does not attach until the defend corpus proceeding judicata, was res put is before trier of fact. See ant trial following and thе Court offered discussion: States, Serfass v. United U.S. “Assuming, deciding, without the first (1975). jury In a L.Ed.2d discharge adjudicata [sic], order of was res it exposed jeopardy trial the defendant is first could be so as the case then before Serfass, jury empaneled. supra. when the hearing, already court. On as nonjury jeopardy In a trial attaches when the stated, competent testimony further of- was begins to hear See United evidence. government, fered the Canadian sufficient Choate, (9th States v. 527 F.2d 748 case, prima in itself to make out a facie denied, 96 S.Ct. cert. regardless certification consular purpose prelimi of a L.Ed.2d officer. From this statement it becomes at course, hearing, require nary of is to the apparent once ceeding that the order in the first probable to show cause to hold a proceed- a the was not bar to second suspect pending 5.1. trial. Fed.R.Crim.Pro. ing, testimony.” based as it was on different II, Supreme ‍​​‌‌​​‌​​‌​​‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌‌​‌​​​‌​​‌​​​‌​‌‍condoning in Loisel in The Court at 506. Id. analogized multiple requests, an ex- extradition proceeding prеliminary examina- tradition See, g., Surety Baldwin, e. American Co. v. suspicion on of a crime. tion of one arrested 156, 98, (1932) 287 U.S. 53 S.Ct. 77 L.Ed. 231 429, 618, 426, 43 67 L.Ed. 1062. 262 U.S. S.Ct. (judgment proceeding begun by on motion res 1368 obligations treaties of its under extradition judgment not render

diting does court the it when it the guilt fugitive, foreign governments the of is of or innocence of justi- cannot that an order extraditabil- faith that extradition good be said belief is judgment pur- ity a final government may constitutes fied. In cases the many poses judicata. res of able information be to obtain additional tending necessary probable to the establish judgment must a only Not persuasive cause or a more show- else make effect, judicata final it will have res before ing on the the same basis of evidence but been “on the merits.” also it must have is appropriate. an order of extradition See Lawlor v. National Screen Service reasons, patent These with the in- together 322, 865, 75 99 L.Ed. Corp., 349 S.Ct. U.S. of requirements ju- res applicability of an (1955). 1122 The nature of extradition orders, to compel dicata extradition that the is such merits of proceeding wholly to that it is inappro- Court conclude fugitive’s innocence ex guilt or are not concepts to priate apply judicata res to above, the plored. duty As noted findings resulting proceed- from extradition extraditing only court is to determine ings. competent whether there exists evidence which justifies apprehension and com fugitive. mitment of the Participation by Scope III. Review of proceeding at the extradition of of review an extra scope The limited; he is not introduce permitted to more considerably restricted dition order is guilt evidence the issue of innocence or engaged appel than that generally but can offer evidence that tends to court. review late On collateral explain case government’s probable of in corpus, permitted the Court is not Kelly, 447, cause. Charlton v. 229 See U.S. beyond (1) the extradition quire whether Thus, 1274 (1913). S.Ct. 57 L.Ed. judge had conduct jurisdiction to extradi the extraditing properly may exclude proceеdings; (2) tion the extradition court alibi, facts contradicting evidence of jurisdiction fugitive; (3) had over government’s proof, or of a such as defense treaty of extradition was in full force and Charlton, 945; id. at insanity. 33 S.Ct. effect; (4) fell within the crime terms Ferrandina, Shapiro (2d treaty; (5) there was competent and Cir. 1973). Because of the function limited legal a support evidence to of extra of an proceeding and the limit ditability. Fernandez v. Phillips, See ed participation permitted of fugitive, 311, 312, S.Ct. the order of the court does not reflect (1925). In denying appellant’s habeas cor consideration of all the merits of the case. pus petition, did the court below not make judicata of res doctrine is a express findings of fact conclusions

judicially rule which created “rests law. We in therefore undertake brief economy judicial time considerations of quiry proceed into the second extradition public favoring policy the establish ings held before the district court and ment certainty legal relations.” Com which resulted in an order extradition. Sunnen, 591, 597, missioner v. L.Ed. 898 Aside Pursuant to 18 U.S.C. § from jurisdiction that an district entertain ground pro judge had satisfy fails to re and rule for extradition ceeding upon, technical quirements judicata, ample pursuant treaty of res there is then force be judicial policy reason in from tween the and Canada. Con refrain United States jurisdiction magistrates it to matters of Be current in the applying extradition. cause pursu there is no District of California appeal an extradition Northern decision either ant to Rulе 501 neither diminish accused or then Local government, power any re-institution of ed nor manner an extradition affected extra- permits judge to fulfill the district to hear request.8 Appellant dition that the magistrate adopt findings concedes a matter to nor fully treaty proceeding. effective of extradition was in made in the first extradition force between the United States Cana- only and Because the order of extradition issu- da at the time his ing of commitment and that from the set of is proceedings second the crime was charged here, within the terms of under no of review error treaty. proceedings, The record of extradition law in those affirm we proceeding also reveals denying that there was com- order of the court below appel- petent legal petition evidence before extradition lant’s for writ of corpus. judge which he could find that the AFFIRMED. person before him was one in named extradition warrant and that there was CHAMBERS, concurring: Circuit Judge, probable to cause believe that the crime I judgment concur of affirmance was committed Canada. ‍​​‌‌​​‌​​‌​​‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌‌​‌​​​‌​​‌​​​‌​‌‍None corpus, denial the writ of habeas findings of the extradition court clearly is but I have some different slightly ideas erroneous. Kelleher. Judge Admissionof evidence proffered sui generis This extradition business is an fugitive proceeding at extradition and, grounded equity, I think we can court, is left to the sound discretion rules, write some at least until overruled guided of course that evi principle higher authority. contradicting dence facts the demanding agree give We must that the no statutes country’s or proof establishing a defense right appeal of direct to on an anybody may properly be excluded. See Charlton v. decision, but the “victim” of Kelly, generally gets pretty extradition order (1913); Ferrandina, L.Ed. 1274 Shapiro v. review corpus, broad under habeas notwith- (2d cert. dis that is standing preachments extremely it by agreement missed parties, limited. 38 L.Ed.2d 133 give I would at government least one The extradition court had before it the en more magis- shot extradition when the tire record оf the first extradition proceed trate clearly wrong ruling, has made a ing, containing transcripts of testimony I think he did He put here. let the by appellant’s offered witness. We cannot defense, fugi- on a pretty fair whereas the say the court abused its discretion not clarify tive explain to or entitled permitting appellant a broader opportunity government allegations. to introduce evidence. If, things on the face of the second Appellant to urges this Court re petition, appears magistrate it that was view proceedings on the first extradi clearly right, second forum should dis- tion before magistrate held for effect, petition ground. miss the on that In the purpose determining whether any affirm; although must call it that. we not errors law were committed there. In appears magistrate may may If it or light our holding government not have we right, ought give been renewing was not barred in an application judge. many a second How against extradition on the same charges times, (And, more we not now. say need appellаnt, we find it unnecessary to con keep always “fugitive” in mind the can get sider arising matters from the first extradi a pretty fair review on habeas on an tion such proceeding; simply matters are appeal ruling of an in the second adverse irrelevant appeal. above, to this As noted forum.) judge district who entertained the jurisdiction had I do we should suggest not mean to so do and was not required permit refer the in the Central Dis- n.3, supra.

8. See larg- (the Ninth Circuit’s

trict of California magis- four out seriatim district) try

est ac- judges and sixteen

trates, retired four point say, has to be judges. There

tive off, Macduff.”

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CERMETEK, INC., corporation,

Appellee, INC., corporation, AVPAK,

BUTLER al., Appellants.

et

No. 76-1632. Appeals,

United States Court

Ninth Circuit.

3,May

Case Details

Case Name: Robert Montgomery Hooker, Appellant-Petitioner v. Frank X. Klein, United States Marshal, N.D. Of California, Appellee-Respondent

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 3, 1978

Citation: 573 F.2d 1360

Docket Number: 76-3727

Court Abbreviation: 9th Cir.