The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This is an appeal from revocation of bail (not yet made) of Anne Hamilton-Byrne and William Eric Hamilton-Byrne ("the Byrnes"), who are sought for extradition by the Government of Australia on charges of conspiracy to commit perjury involving false documents and common law conspiracy to defraud. The bail application was heard before United States Magistrate Judge Mark D. Fox pursuant to 18 USC 3184. The present memorandum explains my declination to disturb the denial of bail by United States Magistrate Judge Mark D. Fox.
The charges against the Byrnes grow out of alleged falsification of birth certificates to retain children fraudulently brought into a cult under the guise of being natural children of the Byrnes. The Byrnes had lived in Australia for a significant period; Mrs. Byrne is an Australian citizen. The Byrnes' United States visas have expired and they are here illegally. They had made arrangements to travel to Great Britain which has no relevant extradition treaty with Australia.
An extradition complaint was filed by the United States Attorney on behalf of the Government of Australia dated June 3, 1993, pursuant to which the Byrnes were arrested on June 4, 1993 and brought before United States Magistrate Judge Mark D. Fox, who initially denied bail on June 17, 1993. On June 23, 1993 I affirmed Judge Fox's ruling. I indicated, however, that the complaint as initially filed must promptly be supplemented with more detailed information if the Byrnes were to continue to be held without bail. I suggested that unless affidavits were submitted before Judge Fox within two weeks sufficient to support holding the Byrnes for the interim period pending a decision on final extradition, Judge Fox might appropriately reconsider denial of bail.
Article V of the 1976 extradition treaty between the United States and Australia provides that extradition "shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offense with which he is charged or its equivalent" had been committed in that territory.
This provision requires use of the same test as would be applicable to holding a domestic defendant for further proceedings, i.e. that there must be probable cause to believe that an offense was committed and that the defendant committed it. Fed.R.Cr.P. 4.
For the reasons which follow, I have declined to upset Judge Fox's decision, which I conclude is neither clearly erroneous nor contrary to law.
The charges made by the Australian Government qualify as grounds for extradition under the 1976 United States - Australia extradition treaty, Article II, 27 UST 957, 960, TIAS 8234, which covers among other offenses:
"an offense relating to . . . forgery," P 20
"perjury; subornation of perjury; conspiring to defeat the course of justice," P 21.
Creation or use of false birth certificates, which Australia treats as perjury, and conspiracy to do so in order to take control of young people based on such false certificates, clearly fall within these categories.
The underlying facts alleged by the Government of Australia are also covered by further provisions of Article II of the 1976 extradition treaty and provide further grounds for extradition, see generally Collins v. Loisel, 259 U.S. 309, 312, 66 L. Ed. 956, 42 S. Ct. 469 (1922); Messina v. United States, 728 F.2d 77 (2d Cir 1984):
". . . procuring, or trafficking in . . . young persons for immoral purposes," P 7
" . . . kidnapping; child stealing; abduction; false imprisonment," P 10
" . . . obtaining any property, money . . . by false pretenses or other form of deception," P 15
A 1990 protocol to the treaty, printed in S. Treaty Doc. 102-23, 102d Cong, 2d Sess (1992), covers an offense "punishable under the laws of both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty." In Australia, perjury carries a maximum penalty of five years; the penalty for common law conspiracy is unlimited depending on the circumstances ("at large"). Counterparts in the United States at the federal level alone include perjury as such (18 USC 1621, authorizing imprisonment for five years), mail fraud (18 USC 1341, authorizing the same penalty; use of the mails is a purely jurisdictional element, irrelevant here); use of false statements within the jurisdiction of a governmental agency (18 USC 1001, authorizing the same penalty; the counterpart of involvement of a governmental agency would be use of birth certificates to support child custody).
The Australian Government's papers show acts in furtherance of the alleged crimes in Australia. There is nothing in the treaty or United States law to indicate that all phases of an offense must be completed within a single jurisdiction; no such principle in Australian law has been, or is likely to be, found. Otherwise firing a rifle shot across a national boundary to kill a victim on the other side, for example, would permit the act to be engaged in with impunity. See generally Alfadda v. Fenn, 935 F.2d 475 (2d Cir), cert. denied 116 L. Ed. 2d 656, 112 S. Ct. 638 (1991); United States v. Duma, 228 F. Supp. 755 (SDNY 1964); Karmel, "The Second Circuit's Role in Expanding the SEC's Jurisdiction Abroad," 65 St. John's L Rev 743 (Summer 1991); Comment, 16 Fordham Int'l LJ 159 (1992-93).
The crimes charged and facts alleged, the substantiation now provided by the affidavits submitted to Judge Fox, together with the additional circumstances that the Byrnes have overstayed their visa in this country and had made arrangements to fly to Great Britain which has no applicable treaty with Australia confirm the urgency of Australia's application under Article 8 § 1 of the treaty, and indicate a likelihood of flight (also found in Judge Fox's decision of June 16, 1993 which I have adopted and which is attached to this memorandum order) which constitutes a ...