The opinion of the court was delivered by: MOTLEY
CONSTANCE BAKER MOTLEY, UNITED STATES DISTRICT JUDGE
The Government of Canada has requested extradition of Glenn Williams so that Williams may be tried in Canada for conspiracy to import narcotics. This request for extradition is made pursuant to the Treaty on Extradition Between the United States of America and Canada, Dec. 3, 1971-June 28, 1974, United States-Canada, 27 U.S.T. 983, T.I.A.S. No. 8237 ("the Treaty").
Article 10 of the Treaty provides:
(1) 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 if the offense of which he is accused had been committed in its territory. . . .
The phrase, "according to the laws of the place where the person sought shall be found," refers to state law, in this case the laws of the State of New York. Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.), cert. dismissed, 414 U.S. 884 (1973).
The function of this court in an extradition case "is not to decide guilt or innocence but merely to determine whether there is 'competent legal evidence which . . . would justify [the accused's] apprehension and commitment for trial.'" Id. at 900-01 (quoting Collins v. Loisel, 259 U.S. 309, 315, 66 L. Ed. 956, 42 S. Ct. 469 (1922)). Thus, the court's function is to determine whether there is any evidence to establish reasonable or probable cause to believe that the accused committed the offenses charged. Shapiro v. Ferrandina, supra, 478 F.2d at 905; see In re Locatelli, 468 F. Supp. 568, 573 (S.D.N.Y. 1979) (probable cause); Sindona v. Grant, 461 F. Supp. 199, 205 (S.D.N.Y. 1978) (probable cause); In re Sindona, 450 F. Supp. 672, 687 (S.D.N.Y. 1978). See also United States ex rel. Rauch v. Stockinger, 269 F.2d 681, 684 (2d Cir.), cert. denied, 361 U.S. 913, 4 L. Ed. 2d 183, 80 S. Ct. 257 (1959) (reasonable ground); In re Shapiro, 352 F. Supp. 641, 644 (S.D.N.Y. 1973) (reasonable ground). Moreover, in making its determination the court may only receive evidence offered by the accused which explains, rather than contradicts, the demanding country's proof. Shapiro v. Ferrandina, supra, 478 F.2d at 905.
In the case at hand, Glenn Williams is accused of conspiring to import narcotics into Canada. In support of its request for extradition, the Government of Canada has submitted the affidavits of three members of the Royal Canadian Mounted Police (RCMP).
1) The affidavit of RCMP Constable Edward J. MacEachern summarizes what is alleged to be a series of lawfully intercepted telephone conversations. The first conversation was between Billy James, who was using the telephone of Robert Yeomans, and an unknown male named Mike. In this conversation, Billy James told "Mike" he got a call from his friend and there was Red Lebanese hashish on the way, and it would be $ 2,500 a pound. Constable MacEachern states, wholly without support, that he believes that the "friend" Billy James was referring to was Robert Yeomans.
Constable MacEachern stated that in a second conversation he overheard Billy James tell an unknown male named "David" that he just got a phone call and there was made Red Lebanese hashish on its way, and $ 2,500 was the price "he" quoted. Again, Constable MacEachern, without offering any support, states in his affidavit that he believes that the "he" referred to in the conversation was Yeomans.
The third conversation monitored by Constable MacEachern took place between Yeomans in Canada and Scott Williams (Glenn Williams's brother) in Boston, Massachusetts. Scott Williams asked Yeomans if he was coming down and Scott Williams said that "it" wouldn't wait. Yeomans asked why they couldn't wait, that he and Scott Williams had the money. Scott Williams suggested that Yeomans should fly right to New York City to LaGuardia Airport. Scott Williams said he would probably have to go to New York City that night. Scott Williams and Yeomans then agreed to wait until later that night for a final decision as to whether Yeomans would go directly to New York City or not.
The fourth intercepted conversation was between Billy James, again using Yeomans' telephone in Canada, to Scott Williams's telephone in Boston. Yeomans answered Scott Williams's telephone and was told by James that an Emery LeBlanc had been arrested in New Brunswick and James wanted to warn Yeomans. Constable MacEachern stated that on August 27, 1979, Emery LeBlanc was arrested with approximately six pounds of hashish in his possession.
It is important to note that Glenn Williams was not a party to any of these intercepted conversations, nor was he mentioned in any of the conversations.
2) The affidavit of RCMP Corporal Mark J. Fleming attests to his surveillance of Yeomans from Logan Airport in Boston to LaGuardia Airport in New York City, and from there to 51 West 81st Street. Corporal Fleming states that he observed Yeomans carrying one dark grey suitcase. Corporal Fleming later observed Yeomans leaving 51 West 81st Street with Glenn Williams and Nancy Cabral. Yeomans was then carrying two suitcases. Yeomans was arrested later that evening at the Eastern Airlines Shuttle ...