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JHIRAD v. FERRANDINA

June 8, 1973

Elijah Ephraim JHIRAD, Petitioner,
v.
Thomas E. FERRANDINA, United States Marshal for the Southern District of New York, Respondent


Duffy, District Judge.


The opinion of the court was delivered by: DUFFY

OPINION AND ORDER

Duffy, District Judge.

 Elijah Ephraim Jhirad petitions for a writ of habeas corpus. This is the second writ sought by petitioner in this very protracted and complicated extradition matter. In an earlier opinion Jhirad v. Ferrandina, 355 F. Supp. 1155 (S.D.N.Y. 1973), I denied Jhirad's first petition, which was brought before a hearing could be held by the magistrate. The facts of this case are set out in great length in the prior opinion, and I shall only briefly reiterate them here.

 The Government of India (the real respondent to this action) has sought the extradition of petitioner Jhirad pursuant to 18 U.S.C. §§ 3182 and 3184. India contends that Jhirad, while Judge Advocate General of the Indian Navy, embezzled a substantial sum of money from a prize fund set up to recompense naval veterans, which he administered.

 The normal scenario of events in an extradition case begins with the issuance of a warrant for the detention of the alleged fugitive. Thereafter, the magistrate holds a hearing to determine whether the party before him is in fact the party sought and, if so, whether or not the requesting government can demonstrate probable cause that the fugitive committed an extraditable offense. The decision of the magistrate is not directly appealable; however, it can be attacked by means of a writ of habeas corpus. Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 61 (1970). Unfortunately, the procedure in this case was somewhat different. Petitioner Jhirad brought his first petition before the magistrate had held his hearing. Reluctantly, this Court felt constrained to decide the merits of petitioner's claims before the hearing because of the prolonged pendency of the petition. Of necessity, this course of events further limited the narrow scope of review of an extradition matter normally open to a court on a petition for habeas corpus, *fn1" since no issues regarding the magistrate's decision could be presented in the first petition.

 While denying the first petition, this Court held that the Treaty of 1931, 47 Stat. 2122, between Great Britain and the United States, acceded to on behalf of India in 1942, was a valid existing treaty of extradition between India and the United States which supported an exercise of jurisdiction by the magistrate. In addition, it was held that the offense charged against Jhirad came within the offenses enumerated as extraditable in the Treaty. Lastly, this Court held that under the Treaty of 1931, extradition otherwise permissible could not take place if the statute of limitations of India or the United States would bar prosecution of the charged offense. However, the Court rejected petitioner's assertion that either the applicable United States Statute of Limitations, 18 U.S.C. § 3282, or the applicable Indian principle of laches would prevent the prosecution of Jhirad.

 Jhirad in his present petition raises three major issues which he asserts foreclose extradition. I now turn to a discussion of those issues.

 Jhirad strenuously requests that this Court reconsider its original determination that some of the charged offenses allegedly committed by Jhirad are not time barred by 18 U.S.C. § 3282, the relevant United States Statute of Limitations. Under 18 U.S.C. § 3282 there is a five year period of limitation from the time of the alleged offense within which the accused must be indicted. It is uncontroverted that the Government of India did not institute action against Jhirad until nearly seven years after the last alleged offense. Unless, therefore, the period were tolled, these charges would not support extradition. However, this Court held that under 18 U.S.C. § 3290, the time period was tolled on July 26, 1966, when Jhirad left India. 18 U.S.C. § 3290, tolls the running of the Statute of Limitations when the alleged offender is a "fugitive from justice". The focus of petitioner's attack is this Court's determination that Jhirad's mere absence from India tolled the statute regardless of his motive or intention.

 As was stated in this Court's first decision, the circuits are divided as to the meaning of "fugitive from justice" in Section 3290. One line of cases holds that to constitute a fugitive from justice, it must be shown that one was absent from the jurisdiction where the crime was committed and, in addition, that the fugitive intended to avoid prosecution or evade the jurisdiction of the local courts. Donnell v. United States, 229 F.2d 560 (5th Cir. 1956); Brouse v. United States, 68 F.2d 294 (1st Cir. 1933); Greene v. United States, 154 F. 401 (5th Cir. 1907), cert. denied, 207 U.S. 596, 28 S. Ct. 261, 52 L. Ed. 357 (1907); Porter v. United States, 91 F. 494 (5th Cir. 1898). The other line of cases holds that the mere absence of the defendant from the jurisdiction is sufficient to constitute a fleeing from justice and thus to toll the Statute of Limitations. King v. United States, 144 F.2d 729 (8th Cir. 1944), cert. denied, 324 U.S. 854, 65 S. Ct. 711, 89 L. Ed. 1413 (1945); McGowen v. United States, 70 App. D.C. 268, 105 F.2d 791 (1939), cert. denied, 308 U.S. 552, 60 S. Ct. 98, 84 L. Ed. 464 (1939); Green v. United States, 88 U.S. App. D.C. 249, 188 F.2d 48 (1951), cert. denied, 341 U.S. 955, 71 S. Ct. 1008, 95 L. Ed. 1376 (1951); In re Bruce, 132 F. 390 (D. Md. 1904), aff'd sub nom. Bruce v. Bryan, 136 F. 1022 (4th Cir. 1905). This Court adheres to its earlier decision following the latter line of cases.

 It is important to remember the context within which this decision must be made. This is an extradition case, involving activity which has taken place half-way around the world. The extradition procedures afforded by statute seek to preserve an element of judicial surveillance over a procedure which is basically an action of international comity. Of necessity, a fugitive is not given a full trial on the issue of his guilt. In fact, the procedures fall strikingly short of a full trial. It would be most difficult for a court in one jurisdiction to seek to determine factual issues arising in another distant jurisdiction. Undoubtedly, this constitutes the rationale for requiring that the demanding country to support extradition merely prove reasonable grounds to believe the fugitive guilty. These same factors persuade this Court that to apply a test requiring a showing of intent, at best a difficult issue of fact, for an act occurring in a distant land, would be most inappropriate.

 In seeking to have this Court change its earlier position, petitioner has attempted to demonstrate that Congress desired that an intent to avoid prosecution be proved in order to satisfy the fleeing from justice requirement of Section 3290. The petitioner's argument, quite novel and ingenious, is based on an analysis of the terms "fugitive from justice" and "absent from the district" as used in the Internal Revenue Codes of 1939 and 1954, each of which has its own statute of limitations. The Statute of Limitations, 26 U.S.C. § 3748, included within the 1939 Code was tolled when a person committing the alleged offense was absent from the district. When the 1954 Code was enacted, Congress chose to toll its Statute of Limitations, 26 U.S.C. § 6531, when the person committing the alleged offense is outside the United States or is a fugitive from justice within the meaning of 18 U.S.C. § 3290. Also, at this time, Congress amended the Code of 1939, § 3748, to delete *fn2" the mere absence standard, substituting the fleeing from justice standard. It is argued therefore that Congress clearly distinguished between mere absence and fleeing from justice, and that Congress intended fleeing from justice in the tolling provision, 18 U.S.C. § 3290, to require a showing of intent to be operative. *fn3" Interesting as this argument is, it is of very little relevancy what Congress meant when it enacted the Internal Revenue Codes, when the issue before the Court is the meaning of a phrase in a different statute, regardless of how similar are the statutory sections.

 The general statute of limitations containing the phrase "fugitive from justice" has existed for many years prior to the enactment of the 1954 Code. Congress's intent in 1954 regarding a phrase in one statute is not of controlling import in determining what the same phrase was intended to mean in a different statute enacted by a Congress more than 60 years before. In addition, a majority of courts faced with divining the meaning of "fugitive from justice" in 18 U.S.C. § 3290, and its predecessor statute 18 U.S.C. § 583 held that Congress had not required a showing of intent.

 Petitioner's argument fails for another reason. Even though the phrase "fugitive from justice" as contained in 26 U.S.C. § 6531 may have been interpreted as not being an operative tolling provision unless an intent to flee was proven, it is important to note that the phrase applies only to intra United States flights. Under 26 U.S.C. § 6531, the time for commencement of a tax action is tolled

 
"during [the period when] the person committing one of the various offenses . . . is outside the United States or ...

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