Before Friendly, Chief Judge, Oakes, Circuit Judge, and Davis,*fn* Judge.
In June, 1970, the appellant Samuel Shapiro*fn1 was arrested in Israel, together with his partner Shalom Blumberg, on charges, discussed in detail below, relating to an allegedly fraudulent investment enterprise managed by the two from 1967 to 1970. Both were interrogated and released on bail. Later in 1970 Shapiro came to the United States, where he had earlier attended high school and had numerous business and personal contacts. Since that time he has been living in this country, although at present deportation proceedings have been commenced against him on the ground that he has overstayed the limits on his tourist entry visa. On January 12, 1971, a nineteen-count indictment was issued against Shapiro and Blumberg in Israel. After a number of continuances granted in an unsuccessful attempt to bring Shapior before the Israeli court, the trial commenced against Blumberg in April, 1972. Although, as appears below, a synopsis of much of the testimony heard at Blumberg's trial appears in the record of this case, no official record of the decision has been offered us. We are told by counsel for the government, however, that Blumberg was convicted on at least some of the counts charged.
In November, 1972, diplomatic officials of Israel requested the extradition of Shapiro to face trial for the offenses charged. The request was based upon the Convention on Extradition between the Governments of the United States of America and the State of Israel. 14 U.S.T. 1708-14, T.I.A.S. No. 5476, ratified in 1963. On November 30, 1972, a warrant for Shapiro's arrest was signed by Judge Motley, of the District Court for the Southern District of New York, pursuant to which Shapiro was arrested at his home in Brooklyn, New York, on December 2. His application for release on bail came before Judge Pollack, also of the Southern District of New York, on December 4. Judge Pollack directed that Shapiro be so released but set for December 21 a hearing on the extradition before himself pursuant to 18 U.S.C. § 3184. Prior to the hearing, Shapiro applied to this court for a stay of the extradition proceedings and a writ of mandamus requiring the district court to dismiss the action or, alternatively, to transfer it to the Eastern District of New York pursuant to 28 U.S.C. § 1406(a), on grounds that will later appear. These requests were denied. After hearing testimony extending over two days and receiving memoranda and briefs, Judge Pollack issued a decision, dated January 8, 1973, 352 F. Supp. 641, certifying to the Secretary of State that the evidence before him warranted extradition and committing Shapiro to the custody of the United States Marshal.
On January 11, Shapiro brought a petition for habeas corpus in the District Court for the Southern District of New York, which was assigned to Judge Gurfein. After a hearing at which oral argument was presented, Judge Gurfein, in an opinion dated January 31, 1973, 355 F. Supp. 563, dismissed the petition, although holding that Shapiro was not extraditable for the offense charged in Count 18 of the Israeli indictment. Shapiro appealed, arguing, as he had below, that Judge Pollack's order was void for want of proper jurisdiction and/or venue; that there was insufficient competent evidence to justify the order; and that the judge failed to specify certain crimes which are urged to be non-extraditable.
I. Jurisdiction and Venue.
Shapiro advances a number of arguments concerning Judge Pollack's power to order his detention and certify his extradibility.
The first argument, namely, that both the Government's complaint and the warrant for his arrest issued by Judge Motley failed to specify, in haec verba, that he was "found" within the Southern District of New York is plainly without merit. The relevant statute, set out in pertinent part in the margin,*fn2 calls only for a complaint under oath stating that the person sought has committed within the jurisdiction of the requesting country a crime covered by a treaty. If the person sought is, in fact, "found" within the district, the omission of a statement to that effect in the complaint, the warrant, or both will not invalidate the arrest.
Beyond that, common sense dictates a holding that such a complaint and warrant would support an arrest in another district, provided that the government reasonably and in good faith believed that the person sought could be found within the district which issued the warrant and intended to arrest him there, compare Pettit v. Walshe, 194 U.S. 205, 219, 24 S. Ct. 657, 48 L. Ed. 938 (1904). The government can never be certain that the person desired will in fact be found in the district by the time the warrant has issued, and any other view would mean that a person sought for extradition could avoid this by constantly moving from one district to another. United States v. Provoo, 124 F. Supp. 185 (S.D.N.Y.), rev'd on other grounds, 215 F.2d 531 (2 Cir. 1954), heavily relied on by Shapiro, is not to the contrary. This arose under a statute, 18 U.S.C. § 3238, dating back to § 8 of the Act of April 30, 1790, 1 Stat. 112, providing that prosecution for crimes on the high seas or out of the jurisdiction of any particular district should take place "in the district where the offender is found, or into which he is first brought." See also United States v. Townsend, 219 F. 761 (S.D.N.Y.1951). Since, by hypothesis, the offender has been located and is subject to arrest, the danger of his avoiding the latter does not arise.
The record leaves no doubt that, in seeking a warrant in the Southern District of New York, the government was acting on a good faith belief that Shapiro could be "found" there. He had considerable activities within that district - extensive business contacts; the impending purchase of a home in Monsey, New York, where he was already conducting business; and the existence of a bond release from the Immigration and Naturalization Service district office in Manhattan. Moreover, as we were told at argument, the government first attempted to apprehend him in Monsey.
Shapiro argues that, however this might otherwise be, a different result is required here because the affidavit accompanying the complaint stated that "the said Samuel Shapiro... may be found in the State of New York and the City of New York, in the Borough of Brooklyn, at 5612 - 12th Avenue," where he was in fact arrested, after the unsuccessful attempt to do this in the Southern District. We must confess inability to understand why this was included. We were told that the purpose was to assist the marshal, but this could have been done by less formal means. However, the assertion that Shapiro could be found in the Eastern District does not destroy the government's good faith belief that he could also be found in the Southern. Since, in the absence of the quoted statement, Shapiro could have been arrested in the Eastern District under a warrant issued by the Southern, we fail to see how he was prejudiced by the unneeded surplusage, which, we were told, the government offered to remove nunc pro tunc at the first hearing before Judge Pollack, an offer refused by Shapiro's counsel.
Shapiro's final argument on this phase of the case is that even if the arrest in Brooklyn was valid, he should then have been taken before a judge or magistrate in the Eastern, not the Southern, District for the extradition hearing. For this he relies primarily on Pettit v. Walshe, supra, 194 U.S. 205, 24 S. Ct. 657, 48 L. Ed. 938. In that case Walshe was arrested in Indiana on a warrant for extradition issued from the Southern District of New York. On a petition for habeas corpus brought in Indiana, the trial court released him, on the ground that a warrant issued in New York was ineffective in Indiana. Although the Court upheld the validity of the arrest, 194 U.S. at 219, 24 S. Ct. 657, it affirmed the order of release on the ground that the marshal "in his return to the writ of habeas corpus distinctly avowed his purpose, unless restrained by the court, to take the prisoner at once from the state in which he was found, and deliver him in New York...." 194 U.S. at 220, 24 S. Ct. at 662. This, the Court ruled, violated the marshal's "duty... to take the accused before the nearest magistrate in that district... to hear and consider the evidence of [his] criminality." Id. at 219, 24 S. Ct. at 662. Focusing on the words "in that district," Shapiro argues that he was denied his right to be heard by the nearest magistrate by being brought across the East River to the Southern District.
The argument fails to take account of the Court's reasoning in Pettit. The Court emphasized that, under the provisions of the applicable treaty, the evidence of Walshe's criminality must suffice to justify his commitment for trial "according to the laws of the place where the fugitive or person so charged shall be found" - in that case, Indiana. Thus, transportation to New York for a hearing would entail having the sufficiency of the evidence assessed under a totally different body of laws. Here, however, both the Southern and the Eastern District are within the state of New York and would apply, insofar as is relevant to an extradition hearing, identical law. Shapiro thus does not fall within the Pettit rule.
II. Competence and Weight of the Evidence.
In attacking the weight and competence of the evidence before the extraditing magistrate, Shapiro labors under two sets of difficulties. First, the function of the extraditing magistrate is not to decide guilt or innocence but merely to determine whether there is "competent legal evidence which... would justify his apprehension and commitment for trial if the crime had been committed in that state." Collins v. Loisel, 259 U.S. 309, 315, 42 S. Ct. 469, 471, 66 L. Ed. 956 (1922). See also Benson v. MacMahon, 127 U.S. 457, 463, 8 S. Ct. 1240, 32 L. Ed. 234 (1888); 4 Hackworth, Digest of International Law 115-18 (1942). Thus, evidence of alibi or of facts contradicting the demanding country's proof or of a defense such as insanity may properly be excluded from the Magistrate's hearing. Charlton v. Kelly, 229 U.S. 447, 456, 33 S. Ct. 945, 57 L. Ed. 1274 (1913). Second, the magistrate's decision is not itself appealable. Collins v. Miller, 252 U.S. 364, 369, 40 S. Ct. 347, 64 L. Ed. 616 (1920); Jimenez v. Aristeguieta, 290 F.2d 106 (5 Cir. 1961),*fn3 and review of his decision generally must be pursued by writ of habeas corpus, 4 Hackworth supra, at 174-75 (1942), which, at least in theory, is more restricted than review on appeal. The habeas judge can only "inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any [competent] evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542, 69 L. Ed. 970 (1925); see also Charlton v. Kelly, supra, 229 U.S. at 456, 33 S. Ct. 945; Gallina v. Fraser, 177 F. Supp. 856, 867 (D.Conn.1959); aff'd, 2 Cir., 278 F.2d 77 (1960), cert. denied, 364 U.S. 851, 81 S. Ct. 97, 5 L. Ed. 2d 74 (1960); Jimenez v. Aristeguieta, 311 F.2d 547, 555 (5 Cir. 1962). The guiding principle is furnished by Article V of the present Treaty which provides that "Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found,... to justify his committal for trial...." As both parties recognize, the phrase "the laws of the place where the person sought shall be found" refers to the laws of the state where the arrest occurs rather than to the laws of the United States.*fn4
Shapiro argues first that there was insufficient competent evidence befor the magistrate to satisfy New York's test for sufficiency of the evidence necessary to hold a defendant prior to trial since New York's recently enacted Criminal Procedure Law § 180.60, subd. 8 (McKinney's Consol.Laws, c. 11-A 1971) provides that, at a preliminary hearing and subject to an exception not here material, "only non-hearsay evidence is admissible to demonstrate reasonable cause to believe that the defendant committed a felony," while here Judge Pollack based his finding primarily, indeed entirely,*fn5 on written statements and records of testimony of persons not before him and not subject to cross-examination by Shapiro.
While the argument is ingenious, it runs afoul of Collins v. Loisel, supra, 259 U.S. at 317, 42 S. Ct. 469, as well as of good sense. Dealing with the Extradition Treaty with Great Britain, 8 Stat. 572, 576 (1842), whose language differs from the treaty with Israel in form but not in substance, Mr. Justice Brandeis said that the treaty's reference to "evidence of criminality" referred "to the scope of the evidence or its sufficiency to block out those elements essential to a conviction," not "to the character of the evidence or to the rules governing admissibility." He added, even more pertinently:
Thus, unsworn statements of absent witnesses may be acted upon by the committing magistrate, although they could not have been received by him under the law of the State on a preliminary examination.
Furthermore, 18 U.S.C. § 3190 provides that, subject to proper certification, to be discussed below, "[depositions,] warrants, or other papers or copies thereof... shall be received and admitted as evidence..." in extradition hearings, which would override the New York statute with respect to the inadmissibility of hearsay in any event. Beyond this, the principle Shapiro asks us to adopt would run counter to one of the prime objects of bi-lateral extradition agreements, namely, "to obviate the necessity of confronting the accused with the witnesses against him;... [requiring] the demanding government to send its citizens to another country to institute legal proceedings, would defeat the whole object of the treaty." Bingham v. Bradley, 241 U.S. 511, 517, 36 S. Ct. 634, 637, 60 L. Ed. 1136 (1916); Note, United States Extradition Procedures, 16 N.Y.Law Forum 420, 442-43 (1970). Counsel contends this consideration has lost force in the era of the jet airplane and rightly reminds us that what we here decide would apply equally if ...