Opinion
Case No. 20-cv-01388-JST
2022-04-27
Donald KOLLMAR, Petitioner, v. UNITED STATES PRETRIAL SERVICES, NORTHERN DISTRICT OF CALIFORNIA, Respondent.
Martha A. Boersch, Boersch & Illovsky LLP, Oakland, CA, for Petitioner. Kerry Ann Monaco, U.S. Department of Justice Office of International Affairs, Washington, DC, Maureen Bessette, U.S. Attorney's Office, Oakland, CA, for Respondent.
Martha A. Boersch, Boersch & Illovsky LLP, Oakland, CA, for Petitioner. Kerry Ann Monaco, U.S. Department of Justice Office of International Affairs, Washington, DC, Maureen Bessette, U.S. Attorney's Office, Oakland, CA, for Respondent.
ORDER
Re: ECF No. 1 JON S. TIGAR, United States District Judge
Before the Court is Petitioner Donald Kollmar's petition for a writ of habeas corpus challenging the finding of extraditability and order of commitment by Magistrate Judge Kandis Westmore. ECF No. 1. The Court will deny the petition in part and remand the case to the magistrate judge for further proceedings. I. Background
"The facts have been taken from various documents filed in the extradition court, but have not been authoritatively 'found.' " Caplan v. Vokes, 649 F.2d 1336, 1339 n.3 (9th Cir. 1981).
Canada seeks the extradition of Petitioner Donald Kollmar so that he may stand trial on one count of rape and one count of indecent assault, in violation of Sections 143, 144, and 149 of the Criminal Code of Canada. The charges in this case arise out of allegations by B.B. that Kollmar "touched her in a sexual manner" when she was between the ages of thirteen and sixteen. ECF No. 15-3 at 28. According to the Canadian Police Report, B.B. met Kollmar in 1974, when her family joined the "Students of Light," a group B.B. describes as a "new age California type movement." Id. at 45. The group was led by John Hanas, and Kollmar was his "right hand assistant" as well as a "spiritual advisor" and "licensed minister." Id.
The magistrate judge redacted the alleged victim's name and instead used the initials "B.B." to protect her identity. 4:19-mj-70677-MAG, ECF No. 57. The Court does the same here.
B.B. describes Kollmar as possessing a "strong interest" in her before any sexual touching occurred. Id. He would tell her and her parents that 12-year-old B.B. was "an extremely special and sensitive child" and initiated spending time alone with her on several occasions. Id. According to B.B., the abuse began when she went on a trip with Kollmar to Buffalo, New York. During the trip, she alleges that Kollmar instructed her to remove her clothing and lay on a table, where he proceeded to massage her body, including her breasts, for "at least two hours." Id. at 27. He told her it was a "therapeutic massage" and something she should not feel self-conscious about. Id.
The prosecution states that this conduct, and any other conduct that occurred outside of Canada, will not be prosecuted in the Canadian courts. It is only provided as part of the narrative of Kollmar's relationship with B.B. See ECF No. 15-3 at 19 ("I note that KOLLMAR will not be prosecuted by our courts for any events reported by the complainant that occurred outside of Canada. This incident is described only as part of the narrative of their relationship.").
After the Buffalo incident, Kollmar would make trips to her family home in Sudbury where he would find reasons to spend time alone with her on walks or drives. Id. at 28. These interactions would include time in his van, which he had converted into a "mini home" equipped with a bed, sink, toilet, propane heater, and a hot plate. Id. Kollmar would instruct B.B. to lie down and then he would lie beside her, moving his hand over her body and fondling her breasts over her clothes. Id. According to B.B., Kollmar would tell her how "important he was" and that she could only "become a good and spiritual person" if she let him teach her. Id. at 25. Kollmar also told B.B. of his "very pure and unique love for her" and that she "was chosen for him by God" to be his wife as soon as she turned 16. Id. He warned her "not to discuss this with anyone" and to always tell others they "were merely close friends." Id.
In B.B.'s account to the police, she described how the abuse continued and escalated. Kollmar began arranging for B.B. to spend weekends at a house the Students of Light owned in Toronto. Id. at 28. In the evenings, Kollmar would come to her room, bring her to his van, and touch her in a sexual manner. Id. He would "pull her nightie off," "lay on top of her," and "kiss her, fondle her breasts and genitals, and rub his groin up against her." Id. She described how she "always held [her]self unbearably still" during these encounters, which often angered Kollmar, who would demand she show more affection. Id. (alterations in original). B.B. said she felt "tormented" by his conduct. Id.
B.B. told the police that Kollmar penetrated her vagina with his penis for the first time on the weekend of Mother's Day in 1977 when she was 14-years old. Id. at 29. He told her that the reason he "only partially penetrated her with his penis" was because "he wanted her to remain a virgin until he married her." Id. Following this incident, B.B. stated that Kollmar would masturbate her and force her to masturbate herself in front of him. Id. She described feeling "sickened, embarrassed and humiliated." Id. "She never experienced an orgasm," which enraged him because he felt she was "willfully punishing and denying him pleasure." Id. He would also instruct her to masturbate him, and he ejaculated on several occasions. Id. B.B. described how "99% of the time" these assaults were preceded by verbal humiliation where Kollmar would tell her she was "stupid," "incompetent," "a piece of shit," "worthless," "competitive with him," that she "embarrassed him" and was a "terrible person" who should be "ashamed" of herself, and that she "must submit [her] will to him." Id. at 30.
The abuse ended in June 1979 when B.B. was taken to the hospital after losing consciousness and suffering severe stomach pains. Id. While at the hospital, B.B.'s parents realized that she did not want to marry Kollmar and called off their engagement. Id. According to B.B., Kollmar became "enraged" by this interference and tried to convince people to leave Hanas and follow him instead. Id. at 30-31. Kollmar eventually moved to New York and B.B. had no further contact with him. Id. at 31.
II. The extradition process
Extradition "is a matter of foreign policy" that involves both the judicial and executive branches. Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006) (internal quotations and citation omitted). The process of extradition is initiated when the foreign nation seeking extradition makes a request to the U.S. Department of State. Id. The State Department then determines whether the request falls within the governing extradition treaty. Id. If it does, the "U.S. Attorney files a complaint in the federal district court indicating an intent to extradite" the individual and requesting a provisional warrant. Santos v. Thomas, 830 F.3d 987, 991 (9th Cir. 2016). "Once the warrant is issued, the district court, which may include a magistrate judge, conducts a hearing to determine whether there is evidence sufficient to sustain the charge under the provisions of the proper treaty or convention or, in other words, whether there is probable cause." Id. (internal quotation marks and citations omitted).
"An extradition proceeding is not a trial" and the extraditing court does not "decide the guilt or innocence of the fugitive at law." Emami v. United States Dist. Ct. for N. Dist. Of Cal., 834 F.2d 1444, 1452 (9th Cir. 1987); Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir. 1978). Instead, the judge is limited to deciding: (1) "whether the crime of which the person is accused . . . falls within the terms of the extradition treaty"; and (2) "whether there is probable cause to believe the person committed the crime charged." Santos, 830 F.3d at 991.
If the crime falls within the terms of the treaty and probable cause has been established, "the judicial officer must certify the individual as extraditable to the Secretary of State," who "decides whether to surrender the individual to the requesting state." Prasoprat v. Benov, 421 F.3d 1009, 1014 (9th Cir. 2005) (emphasis in original); Santos, 830 F.3d at 993. An extradition order "can only be challenged via a writ of habeas corpus, because the order is not final and there is no other statutory provision for direct appeal of an extradition order." Id. (citations omitted).
III. Procedural Background
After Kollmar moved, B.B. began telling her parents and Hanas about the sexual and mental abuse she suffered. ECF No. 15-3 at 31. Although her parents were "shocked and devastated," Hanas and other members of the group told her the abuse was her fault. Id. A member of the group sought legal advice on her behalf and informed B.B. that she had a "weak case." Id.
B.B. and her family eventually left the Students of Light. She states that an important part of her "healing" process is "to have Donald Kol[l]mar charged with a criminal offense for sexually and mentally abusing [her]." 4:19-mj-70677-MAG, ECF No. 55 at 157. On February 25, 1997, B.B. provided an audio-video recorded statement to the police along with a written statement that she had prepared in advance. ECF No. 15-3 at 24. B.B. did not know the proper spelling of Kollmar's last name, his date of birth, his address, or his vehicle information. Id. at 31. A warrant for "Donald KOLMAR 45 Years" was issued on November 17, 1997. Id.
The warrant remained outstanding until July 2017, when Toronto Police Service located a website that included a photo of a man named "Don Kollmar." Id. The website also contained a "spiritual aspect" that matched B.B.'s description of the Students of Light. Id. Officer Speakman reached out to B.B., who stated that she was willing to testify. Id.
On November 28, 2018, Officer Speakman swore an information that charged Kollmar with indecent assault on a female, rape, and sexual intercourse with a female between 14 and 16 years of age. Id. at 32. Subsequently, a decision was made to remove the charge of sexual intercourse with a female between 14 and 16 years of age. Id. Additionally, rather than base the rape charge on § 143(b)(iii), which concerns sexual intercourse with consent if consent was "obtained by false and fraudulent representations as to the nature and quality of the act," Canada decided to instead rely primarily on § 143(a), which concerns sexual intercourse without consent. Id. at 10-11, 32. A warrant was issued on the updated charges and Kollmar was arrested in the Northern District of California. Id. at 32, 58-61.
The United States, on behalf of Canada, filed a memorandum in support of extradition, 4:19-mj-70677-MAG-1, ECF No. 39, which Kollmar opposed, id., ECF No. 64. During the extradition proceedings, Kollmar requested the production of statements by B.B. and her father. Id., ECF No. 44. The extradition court denied discovery of B.B.'s father's statements, finding that it did "not go to probable cause." Id., ECF No. 48 at 7. However, she granted discovery of B.B.'s statements "for the limited purpose of determining whether the Speakman Affidavit correctly characterizes [B.B.'s] statements." Id. at 6. The magistrate judge warned that she would "not consider attacks on [B.B.'s] credibility if such attacks are based on contradictory evidence." Id. (emphasis in original).
The magistrate judge ultimately granted the Government's request for a certificate of extraditability, finding that (1) the dual criminality requirement was satisfied; (2) there was probable cause to believe that Kollmar committed the offenses for which extradition was sought; and (3) extradition was not barred due to lapse of time. ECF No. 15-41 at 18.
Kollmar filed a petition for a writ of habeas corpus with this Court, ECF No. 1, the Government filed a response, ECF No. 9, and Kollmar replied, ECF No. 14. The Court heard argument on April 11, 2022.
IV. Legal Standard
"A petition for habeas corpus is the only method of review of an order certifying extradition." Artukovic v. Rison, 784 F.2d 1354, 1355 (9th Cir. 1986) (citing Valencia v. Limbs, 655 F.2d 195, 197 (9th Cir. 1981)). However, this review is "severely limited." Id. at 1355-56. The reviewing court may only consider (1) whether "the extradition magistrate had jurisdiction over the individual sought," (2) whether "the treaty [between the involved countries] was in force and the accused's alleged offense fell within the treaty's terms," and (3) whether "there is any competent evidence supporting the probable cause determination of the magistrate." Vo, 447 F.3d at 1240 (emphasis added) (internal quotation marks and citations omitted).
This Court "review[s] de novo questions of the interpretation of an extradition treaty," Clarey v. Gregg, 138 F.3d 764, 765 (9th Cir. 1998), as well as "whether a crime falls within the terms of a treaty, including a treaty's requirement of dual criminality," Manta v. Chertoff, 518 F.3d 1134, 1141 (9th Cir. 2008) (citing Clarey, 138 F.3d at 765). Factual findings made by the extradition court are reviewed for clear error. See Sainez v. Venables, 588 F.3d 713, 715 (9th Cir. 2009). A probable cause determination will be upheld "if there is any competent evidence in the record to support it." Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986).
V. Discussion
Kollmar's petition asks the Court to vacate the extradition certification on three grounds: (1) due to "the extreme passage of time," ECF No. 1-1 at 45; (2) because "[t]he evidence in this matter demonstrates a lack of probable cause," id. at 35; and (3) because "[t]he magistrate court erred when it certified dual criminality for the indecent assault charge," id. at 33.
A. Lapse of Time
1. Statute of Limitations
Kollmar argues that the extradition certification must be vacated because the events alleged in this case "occure[ed] in the 1970s, long after California's . . . statute of limitations had run." Id. at 47. He bases his argument on Article 10(1) of the extradition treaty between Canada and the United States ("Treaty"), which provides:
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, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is
the identical person convicted by the courts of the requesting state.Id. Kollmar contends that the phrase "the laws of the place where the person sought shall be found" incorporates California's statute of limitations. Id. at 46-49.
The United States responds that Article 4's lapse of time provision, not Article 10(1), determines which statute of limitations applies. ECF No. 9 at 31-32. Article 4(1)(ii) states that "[e]xtradition shall not be granted . . . [w]hen the prosecution for the offense has become barred by lapse of time according to the laws of the requesting State." ECF No. 15-2 at 118. The United States argues that because this provision references the "laws of the requesting State," Canada's statute of limitations, not California's, applies. ECF No. 9 at 35-37. The offenses at issue in this case are not barred by the Canadian statute of limitations. Id. at 37; ECF No. 15-3 at 18, 70; ECF No. 1-1 at 47. Therefore, the Government argues, "Kollmar's extradition is not barred due to a lapse of time." ECF No. 9 at 37.
The Court agrees with the Government. Courts look to the lapse of time provisions in the relevant treaty to determine which statute(s) of limitations to apply. For example, the lapse of time provision in the treaty between the United States and the United Kingdom provides that "[e]xtradition shall not be granted if . . . the prosecution for the offense for which extradition is requested has become barred by lapse of time according to the law of the requesting or requested Party." Quinn, 783 F.2d at 816 (emphasis added) (applying both the United States' and United Kingdom's statutes of limitations where the lapse of time provision referenced the "requesting or requested Party"); see also In re Extradition of Sainez, No. 07-MJ-0177-JMA, 2008 WL 366135, at *5 (S.D. Cal. Feb. 8, 2008) (applying the United States' and Mexico's statutes of limitations because the lapse of time provision referred to "the requesting or requested Party"). The treaty between Canada and the United States, by contrast, refers only to the requesting state. "If the United States and [Canada] wanted to limit extradition to offenses where the statute of limitations has not run in either or both countries, such a requirement would have been expressly included in the Treaty as the United States has done in its extradition treaties with several other countries." In re McCabe, No. 10-XR-90622 NJV, 2011 WL 723561, at *13 (N.D. Cal. Feb. 22, 2011). Because the lapse of time provision in the treaty between the United States and Canada references only the "laws of the requesting State" only Canada's statute of limitations applies.
The language in Article 10(1) has been understood by courts to refer to the probable cause requirement, not the statute of limitations. See, e.g., Quinn, 783 F.2d at 783 (addressing a similar provision in the United States-United Kingdom extradition treaty and noting that "United States courts have interpreted this provision in similar treaties as requiring a showing by the requesting party that there is probable cause to believe that the accused has committed the charged offense") (citing Glucksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 55 L.Ed. 830 (1911)); Murphy v. United States, 199 F.3d 599, 602-03 (2d Cir. 1999) (per curiam) (finding that the Canadian treaty allows only "a statute of limitation defense . . . based on the statute of limitation of the requesting state" and finding that Article 8 of the Treaty "has no effect on the analysis").
Kollmar's lone citation to an unpublished, out-of-circuit district court opinion does not persuade the Court. In re Extradition of Sylvester, No. 4:CR 05-0490, 2006 WL 6323514, at *4 (M.D. Pa. Feb. 14, 2006). Sylvester cites no authority to support its conclusion that Article 10(1) of the Treaty imports a statute of limitations requirement. Sylvester was also repudiated on other grounds by the Third Circuit in Harshbarger v. Regan, 599 F.3d 290, 294 (3d Cir. 2010).
Therefore, the Court finds that Article 4's lapse of time provision governs the question of which statute of limitations applies. Because the provision refers only to the requesting country of Canada, and because the Canadian statute of limitations does not bar the charges brought in this case, the Court will not vacate the extradition certification on this basis.
2. Charter of Rights and Freedom
Next, Kollmar argues that the lapse of time provision in the Treaty incorporates the due process requirements from Canada's Charter of Rights and Freedom. ECF No. 1-1 at 45. As stated above, courts generally look to the lapse of time provisions in treaties to determine which statute of limitations to apply. Kollmar has not cited, and the Court has not located, any cases suggesting that the Charter applies to extradition proceedings in the United States. The Government, on the other hand, cites a case in which the Supreme Court of Canada held that the lapse of time provision refers only to the statute of limitations and does not import any requirements from the Charter. Argentina (Republic) v. Mellino, 19272 [1987] 1 S.C.R. 536 (May 14, 1987). Unlike a statute of limitations inquiry, which merely requires the Court to apply a straightforward calculation of the time that has passed, the Canadian court noted that importing a Canadian due process requirement would require "an inquiry into how proceedings are conducted in the foreign country and involve comparing them with ours" which is "wholly out of keeping with extradition proceedings." Id. The Court gives "great weight" to this decision. See Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961) ("While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight."). Therefore, the Court will not import the Charter's due process requirement into the Treaty.
Kollmar also suggests that the magistrate court erred by rejecting the Charter argument without addressing Article 8 of the Treaty. ECF No. 1-1 at 45-46. But Article 8 states that "[t]he determination that extradition should or should not be granted shall be made in accordance with the law of the requested State." ECF No. 15-3 at 97 (emphasis added). Kollmar fails to explain how this language could be understood as incorporating due process requirements from the requesting State.
Kollmar's citation to United States v. Cobb, a case from the Supreme Court of Canada, is unavailing. United States v. Cobb, 27610 [2001] 1 S.C.R. 587 (April 5, 2001). In Cobb, the Supreme Court of Canada held that extradition proceedings in Canada must conform with the Charter. Id. Nothing in Cobb suggests that extradition proceedings in the United States must conform with the Canadian charter.
Kollmar argues that Mellino is distinguishable because in that case the accused was being extradited from Canada to another nation, whereas here, Canada seeks extradition to Canada. ECF No. 1-1 at 46. But this distinction does not make a meaningful difference. The reasoning from Argentina - that it is inappropriate to apply foreign due process requirements to extradition proceedings - applies regardless of who issues the extradition request.
The only evidence Kollmar provides in support of his position is a declaration from Canadian attorney Brian Greenspan, who asserts that the delay leading to Kollmar's arrest "violated Mr. Kollmar's rights under sections 7, 11(a), and 11(b) of the Charter of Rights and Freedoms." 4:19-mj-70677-MAG, ECF No. 64-2 at 7. Unquestionably, significant time has passed since the alleged assault took place. Whether that renders extradition unjust, however, is an issue for the Secretary of State, not this Court. See, e.g., Man-Seok Choe v. Torres, 525 F.3d 733, 741-42 (9th Cir. 2008) ("To the extent there was a delay, this is a matter left for the Secretary of State's consideration."); Martin v. Warden, Atlanta Pen., 993 F.2d 824, 829 (11th Cir. 1993) (petitioner-appellant "should direct his argument that extradition is unjust in this case based on Canada's alleged lengthy delay in seeking extradition or on humanitarian grounds to the Executive Branch"). Therefore, the Court will not vacate the extradition certification based on the Charter's due process clause.
3. Due Process Clause
At the end of Kollmar's petition, he briefly argues that the Court should deny certification because the pre-accusation and post-accusation delays violate his due process rights under the United States Constitution. ECF No. 1-1 at 49-50. This argument directly contravenes the long-settled rule that "due process rights cannot be extended territorially." Kamrin v. United States, 725 F.2d 1225, 1228 (9th Cir. 1984). "One who commits a crime in a foreign country 'cannot complain if required to submit to such modes of trial . . . as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty.' " Id. (quoting Neely v. Henkel, 180 U.S. 109, 123, 21 S.Ct. 302, 45 L.Ed. 448 (1901)); see also In re Burt, 737 F.2d 1477, 1487 (7th Cir. 1984) (finding that a "lengthy preindictment delay" did not "trigger due process concerns"). Therefore, the Court will not vacate certification on this basis.
The Court in Burt noted that there may be "exceptional constitutional limitations" that exist "because of particularly atrocious procedures or punishments employed by the foreign jurisdiction." 737 F.2d at 1487. Nothing in the briefs suggest that the Canadian officials engaged in "particularly atrocious" behavior beyond the delay. See id. (holding that "no standards of fair play and decency sufficient to trigger due process concerns are automatically implicated when, in undertaking its foreign policy mission, a governmental extradition decision subjects a citizen of committing crimes in a foreign jurisdiction to prosecution in the foreign state after a substantial time has elapsed since the commission of the crime").
B. Probable Cause
Kollmar next argues that the magistrate judge erred in granting extradition because "[t]he evidence in this matter demonstrates a lack of probable cause to conclude that Donald Kollmar forcibly raped [B.B.]." ECF No. 1-1 at 35.
The Court does not address the indecent assault charge in this section because Kollmar's probable cause argument is directed only to the rape charge. See ECF No. 1-1 at 35 ("The evidence in this matter demonstrates a lack of probable cause to conclude that Donald Kollmar forcibly raped [B.B.].") (emphasis added).
The Court is very limited in its review of the magistrate judge's probable cause determination. A "magistrate's probable cause determination 'serve[s] only the narrow function of indicating those items of submitted evidence on which the decision to certify extradition is based.' " Quinn, 783 F.2d at 791 (quoting Caplan, 649 F.2d at 1342 n.10). "Because the magistrate's probable cause finding is thus not a finding of fact 'in the sense that the court has weighed the evidence and resolved disputed factual issues,' it must be upheld if there is any competent evidence in the record to support it." Id. (citation omitted).
1. Rule of Non-Contradiction
In an extradition proceeding, the magistrate judge has a responsibility to ensure that the proceeding is not "converted into a dress rehearsal for trial." Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988) (internal quotation marks and citations omitted). To guard against this danger, courts have developed the rule of non-contradiction. Ann Powers, Justice Denied? The Adjudication of Extradition Applications, 37 Tex. Int'l L.J. 277, 312 (2002). This rule "holds that evidence may not be offered [by the petitioner] to contradict testimony or challenge the credibility of a requesting country's evidence" but permits the introduction of "evidence that tends to explain the government's case of probable cause." In re Extradition of Strunk, 293 F. Supp. 2d 1117, 1122 (E.D. Cal. 2003) (quoting Hooker, 573 F.2d at 1368).
"The difference between 'explanatory' and 'contradictory' evidence is easier stated than applied. The federal courts have struggled to distinguish between the two." Santos, 830 F.3d at 992 (collecting cases); see also, e.g., Sandhu v. Burke, No. 97 Civ. 4608(JGK), 2000 WL 191707, at *5 (S.D.N.Y. Feb. 10, 2000) ("[T]he dividing line between the two types of evidence is hardly clear."); Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991) ("[T]he line between 'contradictory' and 'explanatory' is not sharply drawn."); In re Extradition of Chavez, 408 F. Supp. 2d 908, 911 (N.D. Cal. 2005) ("The distinction between evidence that 'explains' and evidence that 'contradicts' is a murky one.").
The Ninth Circuit has "described 'contradictory' evidence as evidence 'the credibility of which could not be assessed without a trial.' " Santos, 830 F.3d at 993 (quoting Barapind v. Enomoto, 400 F.3d 744, 750 (9th Cir. 2005)). Examples of contradictory evidence include "alibi evidence, facts contradicting the government's proof, or evidence of defenses like insanity, as this tends to call into question the credibility of the government's offer of proof." Id. (citation omitted). The accused also "may not impeach government witnesses or produce witnesses whose testimony contradicts evidence already offered by the government." Id. However, the accused may testify "to things which might have explained ambiguities or doubtful elements" in the case. Collins v. Loisel, 259 U.S. 309, 315-16, 42 S.Ct. 469, 66 L.Ed. 956 (1922).
In Santos, the Ninth Circuit considered whether there was "any competent evidence supporting the extradition court's finding of probable cause." 830 F.3d at 1001. The court first noted that statements from two alleged co-conspirators constituted probable cause to believe that a third co-conspirator participating in a kidnapping. Id. at 1002. However, the co-conspirators later recanted their prior confessions and claimed that the prior statements were obtained through coercion or torture. Id. The Ninth Circuit ultimately determined that the recantations constituted inadmissible "contradictory" evidence because the "statements contest the credibility of the original statements, presenting a different version of the facts or offering reasons why the government's evidence should not be believed." Id. at 1003 (emphasis in original). Claims of coercion, however, were deemed admissible "explanatory" evidence because they went "to the competence of the government's evidence." Id. (emphasis in original). The Ninth Circuit went on to explain that the scope of its holding was "narrow." Id. at 1008. An extradition court is not responsible for determining "which party's evidence represents the truth where the facts are contested." Id. at 1007. Rather, the extradition court fulfills its obligation when it "considers evidence that a statement was improperly obtained, but concludes that it is impossible to determine the credibility of the allegations without exceeding the scope of an extradition court's limited review." Id. Because the extradition court in Santos "refused to consider [the co-conspirator's] statements [of coercion] in the first instance," the case was remanded. Id. at 1006 (emphasis in original).
Thus, Santos lays out a two-step process for extradition proceedings. First, the court must consider whether evidence is inadmissible contradictory evidence or admissible explanatory evidence. The court must then decide, after considering all admissible evidence, whether probable cause exists. "If the court cannot determine the credibility of the allegations (or other evidence) once it has examined them, the inquiry ends. Probable cause is not undermined, and the court must certify extradition." Id. at 1007.
In determining whether probable cause exists, the magistrate judge relied primarily on an authenticated affidavit from Detective Robert Speakman, detailing information gathered from an interview with B.B. ECF No. 15-41 at 2. There is no question that Detective Speakman's declaration was admissible, and no party challenges the magistrate judge's probable cause finding on this basis.
Instead, the crux of Kollmar's probable cause argument is that the magistrate judge failed to consider admissible evidence, claiming that she "did not evaluate the totality of the circumstances." ECF No. 1-1 at 36. He claims, for example, that she failed to consider the delay in B.B.'s reporting to the authorities; the fact that she never raised any allegations of assault until allegedly "told" she was assaulted by leaders of her religious cult; the "improbable and fantastical" nature of her account of attempting to run away from Kollmar along a South Carolina highway; and the fact that Kollmar's alleged assaults took place in environments where there were other persons around from whom the assaults would have been difficult to conceal. Id. at 36-41.
The Court is not persuaded by this argument. As an initial matter, Kollmar appears to suggest that any evidence not explicitly referenced in the order was not considered by the magistrate judge. See id. But a judge is not required to mention every piece of evidence and explicitly adopt or reject it. See W. Pac. Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1285 (9th Cir. 1984) ("A judge is not required, in making findings, to mention every item of evidence and either adopt it or reject it."). Instead, courts "presume that the judge considers all of the evidence . . . unless the judge states otherwise." Id.
Moreover, the magistrate judge explicitly addressed many of the facts and arguments that Kollmar now claims she failed to consider. For example, Kollmar alleges that the magistrate judge refused to consider B.B.'s delay in reporting even though the magistrate judge's order explicitly found that the delay did not pose a credibility problem. ECF No. 15-41 at 12-13.
Kollmar also claims that the magistrate judge refused to consider contradictory evidence within B.B.'s own account. But, again, the order belies this assertion. The magistrate judge found that "the inconsistencies cited by Defendant - many of which are not inconsistencies - do not rise to the level of rendering B.B.'s statement not credible." Id. at 14. In her reasoning, she addressed Kollmar's challenges regarding: (1) alleged errors in B.B.'s statement as to particular ages or dates, id. at 12-13; (2) B.B.'s account of what happened in Buffalo, id. at 13; (3) B.B.'s account about the Student of Light property in Toronto, id. at 13-14; and (4) B.B.'s description of her trip with Kollmar to South Carolina, id. at 14. These findings are detailed and well-reasoned. It is therefore unclear why Kollmar claims that facts and arguments relating to these incidents were not considered by the magistrate judge. See ECF No. 1-1 at 38-41.
Kollmar claims that the magistrate judge "previously declared that [she] would not consider any challenges to the complainant's credibility." ECF No. 1-1 at 37 (emphasis added). This argument misstates that court's order. The magistrate judge correctly noted, in the context of discovery requests, that she would not "consider attacks on B.B.'s credibility if such attacks [were] based on contradictory evidence." 4:19-mj-70677-MAG, ECF No. 48 at 6 (emphasis added). That is the proper legal standard. See Strunk, 293 F. Supp. 2d at 1122 ("[E]vidence may not be offered [by the petitioner] to contradict testimony or challenge the credibility of a requesting country's evidence.").
The only time the magistrate judge explicitly excluded evidence or considered evidence only for a limited purpose was when she granted in part and denied in part Kollmar's discovery requests. 4:19-mj-70677-MAG, ECF No. 48; ECF No. 15-41 at 6, 11-12. In extradition cases, the accused does not have a constitutional right to discovery. See Caplan, 649 F.2d at 1342 n.10 (in extradition proceedings, "the accused has no absolute right to introduce exculpatory evidence and the government has no duty to do so"). Instead, the decision of whether to grant discovery requests lies "within the discretion of the magistrate." In re Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986) (citations omitted); see also Collins, 259 U.S. at 317, 42 S.Ct. 469 ("Whether evidence offered on an issue before the committing magistrate is relevant is a matter which the law leaves to his determination, unless his action is so clearly unjustified as to amount to a denial of the hearing prescribed by law.").
Kollmar has not established that the magistrate judge abused her discretion. The magistrate judge rightfully excluded contradictory declarations that Kollmar sought to introduce from community members. See ECF No. 15-41 at 12; Santos, 830 F.3d at 993 ("[The accused] may not . . . produce witnesses whose testimony contradicts evidence already offered by the government."). She acted within her discretion when she denied discovery of a statement from B.B.'s father because she found that it "d[id] not go to probable cause." 4:19-mj-70677-MAG, ECF No. 48 at 6-7; see Kraiselburd, 786 F.2d at 1399 (upholding the magistrate judge's decision to grant the "discovery motion to the extent it related to the question whether there existed probable cause tying [the accused] to the [crime]"). Nor did the magistrate judge abuse her discretion when she granted discovery of B.B.'s written and oral statements to Canadian authorities for purposes of determining whether Detective Speakman's declaration was accurate and stated that she would "not consider attacks on B.B.'s credibility if such attacks are based on contradictory evidence." 4:19-mj-70677-MAG, ECF No. 48 at 6; Santos, 830 F.3d at 990 (finding contradictory evidence inadmissible in an extradition proceeding).
2. Competent Evidence
The next question is whether there is "any competent evidence in the record" to support the extradition court's finding of probable cause that Kollmar committed rape under Section 143 of the Criminal Code of Canada. Quinn, 783 F.2d at 791; see also Venables, 588 F.3d at 718 ("Because the record provides ample competent evidence . . . the magistrate judge's finding of probable cause was not clearly erroneous."). The Court finds there is. The magistrate judge properly relied on an authenticated declaration from Detective Speakman, which summarized the information B.B. provided during an interview. ECF No. 15-3 at 22-34; see Artukovic, 784 F.2d at 1356 (recognizing that "statements contained in properly authenticated documents can constitute competent evidence to support a certificate of extradition"). The declaration establishes that Kollmar penetrated B.B. on the weekend of Mother's Day in 1977, and that the penetration occurred without B.B.'s consent. ECF No. 15-3 at 29. B.B. told Detective Speakman that Kollmar was an authority figure who used and threatened physical violence against B.B., that he demeaned her, and that she "felt paralyzed by fear" in his presence. Id. at 26-27. Thus, the declaration provides ample support for the magistrate judge's finding of probable cause.
Section 143 of the Criminal Code of Canada provides, in relevant part:
A male person commits rape when he has sexual intercourse with a female person who is not his wife, (a) without her consent, or (b) with her consent if the consent (i) is extorted by threats or fear of bodily harm. ECF No. 15-3 at 11. According to the extradition request, the Canadian prosecutor intends to rely primarily on Section 143(a), lack of consent. Id. at 10.
Kollmar's arguments to the contrary are unpersuasive. First, Kollmar contends that because B.B. never alleged that Kollmar "threatened her with physical violence if she did not engage in sexual activities with him," the Court "cannot sustain the allegation of forcible rape." ECF No. 1-1 at 42. But Canada's legal theory does not turn on this one factor. To establish lack of consent under Section 143(a), Canadian courts look to the subjective state of mind of the complainant. ECF No. 15-3 at 11, 18. If the defense of consent is raised, Canadian courts consider several factors, including the relationship of authority between the perpetrator and the complainant, threats of bodily harm, and fear of bodily harm. Id. at 12-13. The magistrate judge found that Kollmar established duress based on "the entirety of the relationship between B.B. and [Kollmar]" which included, but was not limited to, threats and use of physical violence. ECF No. 15-41 at 15 (emphasis in original). The fact that B.B. never stated that Kollmar threatened physical violence if she refused to engage in sexual activities with him is not dispositive.
Kollmar maintains that the Government boxed itself into a "physical-violence-to-induce-sexual-intercourse" legal theory because it told the extradition court that "Kollmar partially penetrated the victim's vagina with his penis without her 'genuine consent,' as demonstrated by her lack of desire for the sexual contact and her 'constant fear of Kollmar, who exploited his position of authority over her' and who physically assaulted her and threatened to physically assault her on several occasions." ECF No. 14 at 19 (citation omitted). This statement is simply a list of facts that may be used to establish lack of consent under Section 143. It in no way requires the Government to establish that Kollmar explicitly threatened violence if B.B. did not engage in sexual activities with him.
Next, Kollmar argues that because B.B. lived with her parents and spent schools breaks and summer holidays with Kollmar - in other words, that Kollmar's contact with B.B. was not continuous - that somehow undermines his authority over B.B. and her allegations of abuse and control. ECF No. 1-1 at 39. This argument "do[es] not undermine the magistrate judge's finding of probable cause, but simply go[es] to the weight of the evidence." Sainez v. Safford, No. 08-CV-0819-H (AJB), 2008 WL 3925644, at *5 (S.D. Cal. Aug. 25, 2008), aff'd sub. nom Venables, 588 F.3d 713. But "weighing the evidence is not a function [courts] perform when . . . review[ing] the magistrate's probable cause determination." Venables, 588 F.3d at 718. Further, it is the role of the demanding country, not the extradition judge, to determine guilt or innocence. Emami, 834 F.2d at 1452. Therefore, after determining that the record supports a probable cause finding, the Court's inquiry ends. All further disputes regarding the nature and character of B.B. and Kollmar's relationship must be argued before the Canadian courts.
Finally, Kollmar contends that the record does not support the necessary mens rea of "knowledge that the complainant did not consent." ECF No. 1-1 at 44 (citation omitted). Kollmar highlights the fact that B.B. told the authorities that Kollmar "may have believed [that B.B.] 'had this special love for him' " and even her parents believed she wanted to marry him. Id. But Kollmar's selective citations do not tell the whole story. As the magistrate judge correctly noted, there is ample evidence in the record that Kollmar did not "genuinely believe[ ] B.B. 'loved' him." ECF No. 15-41 at 15. This includes a history of "inflict[ing] physical and emotional abuse on her, including when she disobeyed him," Kollmar's demands that B.B. be more "affectionate with him," and his anger when B.B. did not reach orgasm, which he saw as B.B. "willfully punishing and denying him pleasure." Id. at 14-15. Taken together, the Court finds that the record supports the magistrate judge's finding as to the mens rea element of the crime. See In re Extradition of Velasquez Pedroza, No. 19-mj-1696-RBB, 2020 WL 549715, at *10 (S.D. Cal. Feb. 4, 2020) (citing cases that "permit the court to infer intent from the defendant's conduct").
C. Dual Criminality
Kollmar argues that the magistrate judge erred when she certified dual criminality as to the indecent assault charge. "Under the principle of 'dual criminality,' no offense is extraditable unless it is criminal in both countries." In re Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986) (citation omitted). In determining whether the dual criminality requirement is satisfied, the extradition court looks for "similar provisions of federal law, or, if none, the law of the place where the fugitive is found or, if none, the law of the preponderance of states." Caplan, 649 F.2d at 1344 n.16 (quoting Cucuzzella v. Keliikoa, 638 F.2d 105, 107 (9th Cir. 1981)). The statutes need not contain identical language or identical elements; instead, dual criminality is satisfied if the laws are "substantially analogous" and "the 'essential character' of the acts criminalized by the laws of each country are the same." Manta, 518 F.3d at 1141 (citation omitted). In making this determination, courts focus on the conduct underlying the charges rather than the charges themselves. See id. ("[I]t is enough that the conduct involved is criminal in both countries.") (quotation and citation omitted); see also Emami, 834 F.2d at 1449-50 (concluding that as long as alleged conduct would be prosecutable under the laws of the United States, dual criminality was satisfied even though the two relevant countries had different definitions of fraud).
Kollmar faces a rape charge under CCC §§ 143 and 144, as well as an indecent assault charge under CCC § 149. ECF No. 15-3 at 69. Kollmar does not allege that the magistrate judge erred in finding dual criminality satisfied as to the rape charge. Thus, the Court only addresses the indecent assault charge in this section.
Also relevant is the principal of specialty, which "provides, with certain limitations, that . . . an accused may not be prosecuted for an offense different from or other than an offense for which the accused has been extradited." David B. Sweet, Annotation, Application of the Doctrine of Specialty to Federal Criminal Prosecution of Accused Extradited from Foreign Country, 112 A.L.R. Fed. 473 (1993). Under the principle of specialty, when a defendant is charged with more than one crime, the court must determine whether "each specific charge forms the basis for extradition." Caplan, 649 F.2d at 1343. Because a defendant can only be tried in the requesting country for crimes that satisfy dual criminality, the principle of specialty mandates "careful culling of extraditable offenses from non-extraditable offenses." Id. (citing Shapiro v. Ferrandina, 478 F.2d 894, 905-09 (2d Cir. 1973)). "[A]n adequate extradition proceeding must include in its record a specific delineation, as to each charge, of the legal theories under the requesting country's law by which the accused's conduct is alleged to constitute an extraditable offense, together with an identification of the corresponding offenses in this country relied on to show that the 'dual criminality' requirement has been met." Id. at 1344.
Kollmar challenges the magistrate court's dual criminality finding as to the indecent assault charge under Section 149 of the Criminal Code of Canada. Section 149 requires the prosecution to establish "(1) touching; (2) the absence of consent; and (3) that the assault was 'indecent.' " ECF No. 15-3 at 14. In her order, the magistrate judge identified several statutes that the United States argued would satisfy dual criminality. ECF No. 15-41 at 8 ("The United States argues that dual criminality is satisfied because Defendant can be charged with 18 U.S.C. §§ 2243 (sexual abuse) and 2244 (abusive sexual contact), as well as California Penal Code §§ 261 (rape), 261.5 (unlawful sexual intercourse), and 288(a) and (c) (bigamy, incest, and crimes against nature)."). However, she ultimately based her dual criminality ruling on CPC § 261 (rape) alone. Id. at 8-9.
Kollmar claims that the magistrate judge's ruling "constitutes legal error" because "CPC § 261 requires proof of sexual intercourse, while CCC § 149 (indecent assault) does not." ECF No. 1-1 at 33. The mere fact that the statutes contain different elements does not preclude a finding of dual criminality. See, e.g., Russell, 789 F.2d at 803-04 (conspiracy was an extraditable offense under Australian/United States treaty although Australian law did not require "an overt act"); Kelly v. Griffin, 241 U.S. 6, 14, 36 S.Ct. 487, 60 L.Ed. 861 (1916) (perjury was extraditable offense under Canada/ United States treaty although Canadian law did not require that the false evidence be "material"). However, a dual criminality finding requires the magistrate judge to determine whether the conduct charged would be criminal in both countries. The Canadian prosecution intends to prove its rape case through evidence establishing "that on the weekend of Mother's Day in 1977, KOLLMAR partially penetrated the complainant's vagina with his penis" when she was 14 years old. ECF No. 15-3 at 17. As to the indecent assault charge, the prosecution references the fact that Kollmar "would fondle [B.B.'s] breasts and genitals" as well as "insert [his fingers into her vagina, and masturbate[ ] her.]" Id. at 19. The prosecution also intends to demonstrate B.B.'s lack of consent as to both charges based on her subjective state of mind as well as the entirety of her relationship with Kollmar. Id. at 18-19.
Here, the magistrate judge's order does not demonstrate that she properly "culled" the rape and indecent assault charges before finding dual criminality satisfied. The magistrate judge appears to conflate the two charges when she states that "there is probable cause to believe that Defendant committed rape and indecent assault against B.B. because his penetration of her on Mother's Day 1977 was without genuine consent. Such circumstances would also establish duress under California Penal Code § 261." ECF No. 15-41 at 15 (emphasis added) (citation omitted). While she found the Mother's Day weekend conduct would support both charges, the record suggests that the indecent assault charge is directed at different conduct from the rape charge. ECF No. 15-3 at 19 (stating that B.B.'s description of how "KOLLMAR would fondle her breasts and genitals" and "inserted his fingers into her vagina, and masturbated her" constitutes indecent assault). Although the magistrate judge's order describes this conduct, see, e.g., ECF No. 15-41 at 3-4, it does not answer the question of whether the conduct would be considered criminal in the United States. See Caplan, 649 F.2d at 1344 ("In our view, an adequate extradition proceeding must include in its record a specifical delineation, as to each charge, of the legal theories under the requesting country's law by which the accused's conduct is alleged to constitute an extraditable offense, together with an identification of the corresponding offenses in [the United States] relied on to show that the 'dual criminality' requirement has been met."). Because she did not consider this conduct, the Court finds that dual criminality has not been adequately established as to the indecent assault charge. Accordingly, the Court will remand this case to the magistrate court to determine whether the conduct underlying the indecent assault charge would be criminal in the United States. See id. (remanding for further proceedings when the extradition court failed to make "coherent legal connections between the factual allegations and extraditable offenses" of numerous different alleged crimes); Santos, 830 F.3d at 1008-09 (remanding to the district court with instructions to return the case to the extradition court because a reviewing court "cannot issue or refuse the certification of extraditability" when considering a habeas petition). "This somewhat cumbersome method of remand is needed because, owing to the collateral nature of habeas corpus review in an extradition proceeding, we have no direct power to vacate or modify the extradition court's certification." Caplan, 649 F.2d at 1345 n.18.
The Court notes that CPC § 261 includes the element of "sexual intercourse" which means "any penetration, no matter how slight, of the vagina or genitalia by the penis." Romero v. Madden, No. CV 18-6087 AB, 2019 WL 3307908, at *6 C.D. Cal. Apr. 10, 2019 (quoting People v. Aleksanyan, 231 Cal. App. 4th Supp. 1, 6, 180 Cal.Rptr.3d 375 (2014)). "Actual penetration of the vagina is unnecessary to commit the crime of rape because penetration of the external female genitalia constitutes sexual penetration under statutory law." Id. (citing cases). Thus, for CPC § 261 to satisfy dual criminality as to the indecent assault charge, the magistrate judge must find that the conduct underlying the charge satisfies this element.
CONCLUSION
The Court concludes that the magistrate judge did not err in finding probable cause as to the rape charge and denies the petition as to that issue. However, the magistrate judge did not adequately establish that the indecent assault charge satisfies the dual criminality requirement. Therefore, the Court holds that Kollmar may be extradited on the rape charge but remands the case to the magistrate judge for a finding of whether the conduct underlying the indecent assault charge would be criminal in the United States. If no such finding is made within 90 days of the date of this order, Kollmar may be extradited to Canada on the rape charge alone.
IT IS SO ORDERED.