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January 23, 1973

Elijah Ephraim JHIRAD, Plaintiff,
Thomas E. FERRANDINA, United States Marshal, Southern District of New York, Defendant

Duffy, District Judge.

The opinion of the court was delivered by: DUFFY


This case comes to this Court as an application by petitioner, Jhirad, for a writ of habeas corpus, attacking the jurisdiction of a United States magistrate to determine the appropriateness of extraditing Jhirad to India.

 The Government of India has sought the extradition, pursuant to 18 U.S.C. § 3182, of Jhirad, who is a native Indian now a resident alien in this country. It is alleged that while Judge Advocate General of the Indian Navy, Jhirad embezzled large sums of money from a naval fund.

 Normally, the procedure in an extradition matter, as set forth in 18 U.S.C. § 3184, involves the issuance of a warrant upon complaint and then a hearing before a magistrate, who determines whether there is sufficient evidence to sustain the charged offense under the applicable treaty of extradition. The determination of a magistrate is not directly appealable. Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1969), cert. den., 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 61 (1970). The only method of attacking such a determination is by a petition for a writ of habeas corpus. Usually, such a writ is sought after a hearing by the magistrate. Here, however, petitioner has brought this petition before the hearing could take place. In several cases, including Wright v. Henkel, 190 U.S. 40, 23 S. Ct. 781, 47 L. Ed. 948 (1903) and Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir. 1954), cert. den., 348 U.S. 818, 75 S. Ct. 28, 99 L. Ed. 645 (1954), petitions have been heard prior to a hearing where there were unusual circumstances.

 Petitioner has unfortunately sought to circumvent the normal orderly extradition procedures, and the Court wishes to strongly discourage this premature use of the writ. However, this case has been in limbo for nearly five months after the untimely death of the late Judge McLean, and the Court feels constrained to determine the merits of petitioner's claims.

 At the outset, respondent has suggested that a writ of habeas corpus under 28 U.S.C. § 2241 will not lie because petitioner, free on bail, is not "in custody" as the statute requires. Until recently, the "in custody" requirement meant that a prisoner would have to be incarcerated before he could use the writ of habeas corpus. However, the "in custody" requirement has recently been interpreted with greater latitude. In Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963), the Supreme Court held that a prisoner on parole under the custody and control of a parole board is "in custody" within the meaning of 28 U.S.C. § 2241. Likewise, five years later the Supreme Court in Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968) determined that the fact that a petitioner's sentence had expired while his petition for the writ was on review, did not defeat jurisdiction under the Federal statute. Subsequently, the lower courts have expanded the situations in which jurisdiction to grant a writ of habeas corpus will lie. In Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969) it was held that a state prisoner free on bond could seek a writ of habeas corpus and in 1970 the same court decided that release on appeal bond was "in custody" for Federal jurisdictional requirements. Capler v. City of Greenville, 422 F.2d 299 (5th Cir. 1970).

 Two district courts in this Circuit have echoed the new approach to the "in custody" requirement. Judge Bryan in Duncombe v. New York, 267 F. Supp. 103 (S.D.N.Y.1967) by way of dictum suggested that a person released on bail is legally in custody for the purpose of the habeas statute. In U.S. ex rel. Smith v. DiBella, 314 F. Supp. 446 (D.Conn.1970) the Court held that a petitioner released on his own recognizance was in custody for the purposes of the Federal habeas corpus statute. The underlying reasoning in all of these decisions is that to fall within 28 U.S.C. § 2241, one's liberty of movement must be limited in some substantial way. Though petitioner Jhirad is out on bail, the Court finds that the restrictions on his freedom implicit in his being on bail are such as to come within the import of the statute. Therefore, the Court has power to entertain this application.

 The scope of inquiry open to a Federal District Court when deciding a writ of habeas corpus in an extradition case is very narrow, being limited to the following questions:

1) whether the magistrate has jurisdiction;
2) whether the evidence produced at the hearing showed a reasonable ground to believe the accused guilty; and
3) whether the offense alleged is a treaty offense.

 Wacker v. Bisson, 348 F.2d 602 (5th Cir. 1965); Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1909), cert. den., 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 61 (1970); U.S. ex rel. Petrushansky v. Marasco, 215 F. Supp. 953 (S.D.N.Y.1963), aff'd, 325 F.2d 562 (2nd Cir. 1963), cert. den., 376 U.S. 952, 84 S. Ct. 969, 11 L. Ed. 2d 971 (1964), and Application of D'Amico, 185 F. Supp. 925 (S.D.N.Y.1960), appeal denied, 286 F.2d 320 (1961).

 Since there has been no hearing in this case, we are concerned only with the jurisdiction of the magistrate and whether the offense charged is a treaty offense. 18 U.S.C. § 3184, Factor v. Laubenheimer, 290 U.S. 276, 54 S. Ct. 191, 78 L. Ed. 315 (1933). Of course, the threshold question is whether an extradition treaty exists.

 The United States Marshal, Ferrandina, the nominal respondent, and the Government of India, the real respondent to this action, argue that the extradition treaty of December 22, 1931, 47 Stat. 2122, between the United States and Great Britain, serves to support jurisdiction in this case. This Treaty in Article 14 stated that Great Britain could accede to the Treaty on behalf of certain listed territories, among which was India. On March 9, 1942, the Treaty was made effective as to British India. For the following reasons this Court holds that the Treaty of 1932 is valid and of continuing ...

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