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IN RE RABELBAUER

July 3, 1986

IN THE MATTER OF THE EXTRADITION OF ADALBERT RABELBAUER, a/k/a "Bela Rabelbauer," "Christopher LaFortune," "John Barkero," A FUGITIVE FROM THE REPUBLIC OF AUSTRIA


The opinion of the court was delivered by: WALKER

WALKER, District Judge:

 INTRODUCTION

 Acting pursuant to a request from the Republic of Austria, the United States government has sought the extradition of Adalbert Rabelbauer. Shortly after his provisional arrest, Rabelbauer filed a petition for a writ of habeas corpus by way of an order to show cause, attacking the legal basis for his extradition. With the consent of the parties, both the writ of habeas corpus and the extradition request were considered together and given a full hearing.

 The government seeks extradition of Rabelbauer to Austria on the basis of a four count March 27, 1986 Arrest Warrant which charges two distinct sets of crimes. First, he is charged in one count with inducement to abuse official authority and bribery, arising out of his allegedly successful effort to convince an Austrian prosecutor to drop charges against him. The prosecutor, Dr. Lutz Moser, has since confessed his misdeeds and provided the basis for the bribery charges against Rabelbauer. Rabelbauer challenges the government's ability to extradite him for this offense. Second, Rabelbauer is charged with three separate counts of bank fraud involving the obtaining of loans by false pretenses and submission of forged documents. He contests extradition for one of the three alleged bank frauds.

 DISCUSSION

 The Court's function in an extradition proceeding is not to determine the guilt or innocence of the person whose extradition is sought. Rather, the court must determine whether:

 (1) there is a valid extradition treaty between the United States and the Republic of Austria;

 (2) Adalbert Rabelbauer is the individual sought;

 (3) the offenses charged are extraditable;

 (4) the requirement of "double criminality" is satisfied;

 (5) there is probable cause to believe Adalbert Rabelbauer committed the offenses charged;

 (6) the required documents have been presented, translated, and duly authenticated by the United States Consul; and

 (7) all other treaty procedures have been followed. Matter of Sindona, 584 F. Supp. 1437, ...


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