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Kamrin v. United States

United States Court of Appeals, Ninth Circuit
Feb 14, 1984
725 F.2d 1225 (9th Cir. 1984)

Summary

holding due process protections not applicable where Australia sought extradition many years after crime occurred

Summary of this case from Matter of Extradition of Kraiselburd

Opinion

No. 83-3836.

Submitted February 9, 1984.

Decided February 14, 1984.

Oscar Goodman, Las Vegas, Nev., George William Cody, Cody Hatch, Inc., P.S., Lynnwood, Wash., for petitioner-appellant.

Stephen C. Schroeder, Asst. U.S. Atty., Seattle, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT and HUG, Circuit Judges, and EAST, Senior District Judge.

Of the District of Oregon.


Kamrin seeks a writ of habeas corpus to prevent his extradition to Australia on the ground that the United States statute of limitation would bar the underlying prosecution on charges arising from acts in Australia ending in 1974. Because nothing in the extradition treaty between the two countries provides for application of the United States statute of limitation in this case or for full United States due process rights, we affirm the denial of the writ.

FACTS

Kamrin is a citizen and, since 1975, a resident of the United States. In December 1980, he was charged in Australia with conspiracy to cheat and defraud and with defrauding persons by making willfully false pretenses regarding investments in car wash franchises in that country between March 1972 and December 1974. Australia has no statute of limitation for these crimes. The United States statute of limitation for such charges is five years. 18 U.S.C. § 3282.

The United States Attorney petitioned for Kamrin's extradition in 1982. Supporting documents cited the 1974 Treaty of Extradition Between the United States and Australia, 27 U.S.T. 957, T.I.A.S. 8234 [the Treaty]. Kamrin was arrested and released on his own recognizance.

In March 1983 a federal magistrate certified to the Secretary of State that extradition was proper. See 18 U.S.C. § 3184. Because that certification was not a final order warranting direct appeal, Kamrin petitioned for a writ of habeas corpus. Adopting the magistrate's memorandum and order, the district court denied it.

DISCUSSION [7] I. Standard of Review

No factual issues are raised. The question is one of interpretation and application of a treaty, which requires de novo review. Cucuzzella v. Keliikoa, 638 F.2d 105, 106-07 nn. 1, 2 (9th Cir. 1981).

II. The Treaty's Limitations Provision

Article VII of the Treaty provides that "[e]xtradition shall not be granted . . . when the prosecution for the offense has become barred by lapse of time according to the laws of the requesting state." The Treaty, art. VII(1)(b) (emphasis added). The prosecution is not time-barred in Australia, the requesting state here.

To apply the United States statute of limitation would preclude prosecution and thus extradition. When the United States is the requested country, delay in seeking extradition may be relevant to the Secretary of State's final determination as to whether extradition may go forward. Freedman v. United States, 437 F. Supp. 1252, 1264 (N.D.Ga. 1977). The delay may not, however, serve as a defense to judicial extradition proceedings.

Generally, absent a specific treaty provision, the statute of limitation may be raised as a defense to criminal proceedings only after return to the requesting state. Freedman, 437 F. Supp. at 1263 (citing Merino v. United States Marshal, 326 F.2d 5 (9th Cir. 1963), cert. denied, 377 U.S. 997, 84 S.Ct. 1922, 12 L.Ed.2d 1046 (1964)). It may not always be clear whether a prosecution is time-barred, and the general rule allows the prosecuting state to resolve the issue. The extradite has an opportunity to raise the defense in the requesting country. The provision in Article VII is consistent with the general rule.

Given the general rule, the absence of a contrary provision should be interpreted as an intention by the party states that the statute of limitation of the requested state does not apply. Cf. Caplan v. Vokes, 649 F.2d 1336, 1337, 1340 (9th Cir. 1981) (concerning treaty that expressly included party states' intention to apply statute of limitation of requested state). The parties did not intend for the United States statute of limitation to apply here.

III. Due Process

Article X of the Treaty provides that "the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by [the law of the requested state]." Kamrin claims that this entitles him to the due process right that underlies United States statutes of limitations: the right to a trial in which his defense is unimpaired by the passage of time.

Kamrin claims that United States v. Williams, 480 F. Supp. 482 (D.Mass. 1979), held that the right to be free on bail was a "remedy and recourse" provided by laws of the United States. The First Circuit reversed the district court decision in Williams, holding that a showing of "special circumstances" is required for bail in extradition proceedings. 611 F.2d 914, 914 (1st Cir. 1979). Williams had not made a sufficient showing, and his release was reversed. Id. at 914-15.

This "special circumstances" requirement creates a different standard for extradition cases than for federal criminal cases, where bail is granted unless the judicial officer determines that release will not reasonably assure the appearance of the defendant as required. 18 U.S.C. § 3146(a). The additional showing required in extradition belies Kamrin's claim that bail is one of the remedies and recourses of United States law to which an extradite is entitled. The analogy of a statute of limitation to bail does not help Kamrin.

More important, it has long been settled that United States due process rights cannot be extended extraterritorially. Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901). See also Holmes v. Laird, 459 F.2d 1211 (D.C.Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972).

[A] surrender of an American citizen required by treaty for purposes of a foreign criminal proceeding is unimpaired by an absence in the foreign judicial system of safeguards in all respects equivalent to those constitutionally enjoined upon American trials.

Holmes, 459 F.2d at 1219 (citing Neely, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448).

Time may have eroded Kamrin's ability to present a defense in Australia, but time has not eroded the holding of Neely. 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." Neely, 180 U.S. at 122-23, 21 S.Ct. at 307; Holmes, 459 F.2d at 1218-19. The extradition treaty between Australia and the United States has not provided a different mode than application of the requesting state's statute of limitation.

CONCLUSION

Neither the language of the Treaty nor the United States Constitution require application of the United States five-year statute of limitation to prevent Kamrin's extradition. The denial of the writ is affirmed and extradition may be completed. The mandate shall issue now.


Summaries of

Kamrin v. United States

United States Court of Appeals, Ninth Circuit
Feb 14, 1984
725 F.2d 1225 (9th Cir. 1984)

holding due process protections not applicable where Australia sought extradition many years after crime occurred

Summary of this case from Matter of Extradition of Kraiselburd

holding that, because an extradition proceeding is not a criminal case, the Bail Reform Act of 1984 does govern

Summary of this case from In re Ameen

finding no due process violation when relator was charged with conspiracy to cheat and defraud in Australia, Australian law had no statute of limitations for these crimes, and there was an eight year delay between the charged conduct and the formal request for extradition

Summary of this case from In the Extradition of Chan Seong-I

rejecting petitioner's attempt to apply United States' five-year statutes of limitation to charged crimes where treaty only provided that "[e]xtradition shall not be granted . . . when the prosecution for the offense has become barred by lapse of time according to the laws of the requesting state" and requesting state had no applicable statutes of limitation

Summary of this case from United States v. Gonzalez

In Kamrin v. United States, 725 F.2d 1225 (9th Cir. 1984), however, a panel of the Ninth Circuit considered, and rejected, arguments very similar to those made by petitioner here. While delay in seeking extradition may be relevant to the Secretary of State's final determination as to whether a fugitive should be extradited, the Kamrin Court held, "delay may not... serve as a defense to judicial extradition proceedings."

Summary of this case from Murphy v. U.S.

In Kamrin v. United States, 725 F.2d 1225 (9th Cir. 1984), we considered the appellant's due process challenge to extradition for a crime he was alleged to have committed abroad based upon the fact that the statute of limitations for a similar crime under United States law would already have run.

Summary of this case from Parretti v. U.S.

In Kamrin, a provision in the United States extradition treaty with Australia granted extradition defendants "the right to use such remedies and recourses as are provided by [the law of the requested State]."

Summary of this case from Yapp v. Reno

noting that "due process rights cannot be extended extraterritorially" and that any delay in seeking extradition "may not . . . serve as a defense to judicial extradition proceedings"

Summary of this case from In re Extradition of Bowman

In Kamrin, one of the treaty provisions at issue was Article X of the extradition treaty between Australia and the United States, which provided that "the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by the law of the requested state."

Summary of this case from Luna v. O'Keefe

stating that there is a different standard for bail in extradition cases than in federal criminal cases

Summary of this case from In re Extradition of Drumm

In Kamrin, the treaty specifically permitted using only the laws of the requesting state -Australia - when considering whether the prosecution would have been barred by the lapse of time.

Summary of this case from Gonzalez v. O'Keefe

In Kamrin, the extradition treaty between the United States and Australia prohibited the extradition for offenses time barred under the laws of the requesting country (see category 3 above), which in that case was Australia. Australia charged the fugitive with conspiracy to cheat and defraud and with defrauding persons.

Summary of this case from In Matter of Extradition of Patrick Joseph McCabe

stating that a person whose extradition is sought is not entitled to due process rights underlying United States' statutes of limitation

Summary of this case from In the Extradition of Chan Seong-I
Case details for

Kamrin v. United States

Case Details

Full title:JEFFREY PHILLIP KAMRIN, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Feb 14, 1984

Citations

725 F.2d 1225 (9th Cir. 1984)

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