No such affidavits having been submitted, on July 7, 1993 Judge Fox set conditions for release of the Byrnes. On July 9, 1993, before these conditions were met, the United States Attorney presented to Judge Fox papers furnished by the Government of Australia, consisting of approximately 400 pages, including affidavits by an Australian police officer and an Australian solicitor together with numerous attached exhibits. Judge Fox found that these materials provided sufficient evidence to hold the Byrnes in custody pending completion of extradition proceedings and revoked 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 basis for denial of bail. See Caltagirone v. Grant, 629 F.2d 739, 744 n 10 (2d Cir 1980); United States v. Messina, 566 F. Supp. 740 (EDNY 1983).
There is also some support for necessity of a finding of urgency in extradition. See Matter of Extradition of Pazienza, 619 F. Supp. 611, 612 (SDNY 1985) and cases cited. The United States Magistrate Judge held on June 16, 1993 in a memorandum which I adopt and make part of this memorandum order that this element had been satisfied.
The nature of the crimes charged and the support of both the United States Attorney and the Government of Australia furnish that element if required. Substantial although not necessarily conclusive weight must be accorded the judgments of the Executive branch in regard to a treaty requirement having diplomatic as well as juridical elements such as "urgency." See Jimenez v. Aristiguieta, 314 F.2d 649 (5th Cir), cert. denied 373 U.S. 914 (1963).
Because of the importance of mutual international comity, the difficulty of producing witnesses in a distant location on short notice, and the seriousness of crimes for which extradition is authorized, bail pending extradition is traditionally granted only under special circumstances. United States v. Leitner, 784 F.2d 159 (2d Cir 1986); Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir), cert. denied 454 U.S. 971, 70 L. Ed. 2d 389, 102 S. Ct. 519 (1981); Beaulieu v. Hartigan, 554 F.2d 1 (1st Cir 1977); In re Mitchell, 171 Fed 289 (SDNY 1909).
This does not mean that persons present in the United States can be arrested and imprisoned for substantial periods merely upon the request of a foreign government if the requesting country and the detainee had little or no contact or if the kind of substantiation required domestically to hold a defendant under Fed.R.Civ.P. 4 was not promptly forthcoming.
Special circumstances may include reasons to believe that the underlying charges cannot be supported as required by treaty provisions or due process under the applicable standard; they may also include the presence of an inherent deficiency or impropriety in the charges or procedure. See Rule 4, Federal Rules of Criminal Procedure. Special circumstances might also be found if a health emergency could be established which could only be treated while a detainee was on bail. See Salerno v. United States, 878 F.2d 317 (9th Cir 1989); United States v. Taitz, 130 F.R.D. 442 (SD Cal 1990). None of such special circumstances appears to exist here.
The Byrnes point to health problems which may, indeed, be serious. That is often true with regard to defendants in custody in domestic as well as extradition cases. Were health problems a basis for release, both actual and feigned illnesses could rapidly empty custodial facilities. Nothing convinces me that the Byrnes' health problems are unique or cannot be dealt with while in custody. The Byrnes have through their submissions informed the United States of the nature of their health problems. The United States Attorney has the responsibility to see that all necessary medical care is provided, and it appears that the United States Attorney is prepared to respond to requests by the Byrnes or their counsel for any feasible steps in this regard.
These fact intensive aspects of supervision of the Byrnes' detention should, in any event, be considered initially by the United States Attorney and if necessary with the Magistrate Judge.
It is axiomatic that courts possess inherent power under Article III to insure that their authority is not abused contrary to constitutional guarantees; otherwise they would be acting contrary to the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). And if public policy might be offended by a request by a foreign government, courts may consider staying their hands. See Comment, 16 Fordham Int'l LJ No 3 at 895 (1992-93).
I find nothing in the procedure or substance of the application before me which would be invalid or improper under the Constitution, under the applicable treaty, or in the normal course of processing domestic cases. Were extradition sought on thin charges or of persons having a tenuous connection with the requesting state, strict scrutiny would be appropriate. None of these factors is present here.
In finding no abuse of extradition, I take into account that both the Byrnes concededly lived in Australia for a significant period before coming to the United States and that the wife is an Australian citizen. See Note, 12 Harv L Rev 532, 538 (1899). This case does not involve extradition of United States citizens or citizens of a third country to a nation with which the detainees had minimal contacts. Nor does it involve what could be considered political crimes or artificial charges pursued for political purposes which might raise First Amendment issues.
Dated: White Plains, New York
September 8, 1993
VINCENT L. BRODERICK, U.S.D.J.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
IN THE MATTER OF THE EXTRADITION OF ANNE HAMILTON-BYRNE AND WILLIAM ERIC HAMILTON-BYRNE.
93 Cr. Misc. 1 (MDF)
MARK D. FOX, United States Magistrate Judge.
The Government instituted this proceeding by an ex parte application for an arrest warrant pursuant to 18 U.S.C. § 3184. The complaint, made under oath by an Assistant United States Attorney, charges that the detainees, a married couple, have been charged with offenses in Australia and that the Government of Australia will present a demand for extradition pursuant to the 1974 extradition treaty and protocol (1990 amendment to the treaty) currently in effect between Australia and the United States. The detainees have moved to dismiss the arrest warrant.
Article VIII of the protocol, which replaced Article XII of the treaty, provides in pertinent part:
(1) In case of urgency, either Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and Attorney-General's Department in Australia. The facilities of the International Criminal Police Organisation (Interpol) may be used to transmit such a request.