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478 F.2d 894 United States Court of
Appeals, Second Circuit. Samuel SHAPIRO,
Appellant, v. Thomas E. FERRANDINA, United States Marshal for the Southern
District of New York, Appellee. No. 702, Docket
73-1179. Argued Feb. 15, 1973. Decided April 6, 1973. PRIOR HISTORY: Shapiro v. Ferrandina, 355 F.Supp. 563
(S.D.N.Y. Jan 31, 1973) (No. CIV. 203) Affirmed as Modified by: this opinion SUBSEQUENT HISTORY: Certiorari Dismissed: 414 U.S. 884
(Oct. 10, 1973) (No. 72-1701) Disagreed With by: U.S. v. Cuevas, 847 F.2d 1417, 25 Fed.
R. Evid. Serv. 1217 (9th Cir.(Cal.) Jun. 2, 1988) (No. 87-5007) Leighnor v. Turner, 884 F.2d 385 (8th Cir.(Mo.) Sep. 5, 1989) (No.
88-2096) U.S. v. Abello-Silva, 948 F.2d 1168 (10th Cir.(Okla.) Nov. 6,
1991) (No. 90-5161) Declined to Follow by: U.S. v. Puentes, 50 F.3d 1567, 42 Fed.
R. Evid. Serv. 207 (11th Cir.(Fla.) May 2, 1995) (No. 93-4073) Not Followed as Dicta: Matter of Extradition of Marzook, 924
F.Supp. 565, 64 USLW 2815 (S.D.N.Y. May 7, 1996) (No. 95 CR. MISC. 1, P.16, 95
CIV. 9799 (KTD)) Distinguished by: Brauch v. Raiche, 618 F.2d 843 (1st
Cir.(N.H.) Mar. 5, 1980) (No. 79-1606) Sindona v. Grant, 619 F.2d 167 (2nd
Cir.(N.Y.) Mar. 21, 1980) (No. 618, 764, 78-2155, 79-2175) Sandhu v. Burke, 2000 WL 191707 (S.D.N.Y. Feb. 10, 2000) (No. 97
CIV. 4608 (JGK)) [*898] COUNSEL: Nathan Lewin, Washington, D. C. (William H.
Jeffress, Jr., and Miller, Cassidy, Larroca & Lewin, Washington, D. C., of
counsel), for appellant. Michael B. Mukasey, Asst. U. S. Atty. (Whitney North Seymour, Jr.,
U. S. Atty., for S. D. New York, of counsel), for appellee. JUDGES: Before FRIENDLY, Chief Judge, OAKES, Circuit
Judge, and DAVIS, [FN*] Judge. FN* Of the United States Court of Claims,
sitting by designation. OPINION BY: FRIENDLY, Chief Judge: In June, 1970, the appellant Samuel Shapiro [FN1] was arrested in
Israel, together with his partner Shalom Blumberg, on charges, discussed in
detail below, relating to an allegedly fraudulent investment enterprise managed
by the two from 1967 to 1970. Both were interrogated and released on bail.
Later in 1970 Shapiro came to the United States, where he had earlier attended
high school and had numerous business and personal contacts. Since that time he
has been living in this country, although at present deportation proceedings
have been commenced against him on the ground that he has overstayed the limits
on his tourist entry visa. On January 12, 1971, a nineteen-count indictment was
issued against Shapiro and Blumberg in Israel. After a number of continuances
granted in an unsuccessful attempt to bring Shapiro before the Israeli court,
the trial commenced against Blumberg in April, 1972. Although, as appears
below, a synopsis of much of the testimony heard at Blumberg’s trial
appears in the record of this case, no official record of the decision has been
offered us. We are told by counsel for the government, however, that Blumberg
was convicted on at least some of the counts charged. FN1. Petitioner’s name will be used
in this opinion in its Anglicized form. He is referred to in the translated
documents in the record as Shmuel Shapira. In November, 1972, diplomatic officials of Israel requested the
extradition of Shapiro to face trial for the offenses charged. The request was
based upon the Convention on Extradition between the Governments of the United
States of America and the State of Israel. 14 U.S.T. 1708-14, T.I.A.S. No.
5476, ratified in 1963. On November 30, 1972, a warrant for Shapiro’s
arrest was signed by Judge Motley, of the District Court for the Southern
District of New York, pursuant to which Shapiro was arrested at his home in
Brooklyn, New York, on December 2. His application for release on bail came
before Judge Pollack, also of the Southern District of New York, on December 4.
Judge Pollack directed that Shapiro be so released but set for December 21 a
hearing on the extradition before himself pursuant to 18 U.S. C. §
3184. Prior to the hearing, Shapiro applied to this court for a stay of the
extradition proceedings and a writ of mandamus requiring the district court to
dismiss the action or, alternatively, to transfer it to the Eastern District of
[*899] New York
pursuant to 28 U.S.C. § 1406(a), on grounds that will later appear.
These requests were denied. After hearing testimony extending over two days and
receiving memoranda and briefs, Judge Pollack issued a decision, dated January
8, 1973, 352 F.Supp. 641, certifying to the Secretary of State that the
evidence before him warranted extradition and committing Shapiro to the custody
of the United States Marshal. On January 11, Shapiro brought a petition for habeas corpus in the
District Court for the Southern District of New York, which was assigned to
Judge Gurfein. After a hearing at which oral argument was presented, Judge
Gurfein, in an opinion dated January 31, 1973, 355 F.Supp. 563, dismissed the
petition, although holding that Shapiro was not extraditable for the offense
charged in Count 18 of the Israeli indictment. Shapiro appealed, arguing, as he
had below, that Judge Pollack’s order was void for want of proper
jurisdiction and/or venue; that there was insufficient competent evidence to
justify the order; and that the judge failed to specify certain crimes which
are urged to be nonextraditable. I. Jurisdiction and Venue. Shapiro advances a number of arguments concerning Judge
Pollack’s power to order his detention and certify his extradibility. The first argument, namely, that both the Government’s
complaint and the warrant for his arrest issued by Judge Motley failed to
specify, in haec verba, that he was “found” within the
Southern District of New York is plainly without merit. The relevant statute, set
out in pertinent part in the margin, [FN2] calls only for a complaint under
oath stating that the person sought has committed within the jurisdiction of
the requesting country a crime covered by a treaty. If the person sought is, in
fact, “found” within the district, the omission of a
statement to that effect in the complaint, the warrant, or both will not
invalidate the arrest. FN2. Whenever there is a treaty or convention
for extradition between the United States and any foreign government, any
justice or judge of the United States … may, upon complaint made under
oath, charging any person found within his jurisdiction, with having committed
within the jurisdiction of any such foreign government any of the crimes
provided for by such treaty or convention, issue his warrant for the
apprehension of the person so charged … 18 U.S.C. § 3184. Beyond that, common sense dictates a holding that such a complaint
and warrant would support an arrest in another district, provided that the
government reasonably and in good faith believed that the person sought could
be found within the district which issued the warrant and intended to arrest
him there, compare Pettit v. Walshe, 194 U.S. 205, 219, 24
S.Ct. 657, 48 L.Ed. 938 (1904). The government can never be certain that the
person desired will in fact be found in the district by the time the warrant
has issued, and any other view would mean that a person sought for extradition
could avoid this by constantly moving from one district to another. United
States v. Provoo, 124 F.Supp. 185 (S.D.N.Y.), rev’d on other grounds, 215
F.2d 531 (2 Cir. 1954), heavily relied on by Shapiro, is not to the contrary.
This arose under a statute, 18 U.S.C. § 3238, dating back to
§ 8 of the Act of April 30, 1790, 1 Stat. 112, providing that
prosecution for crimes on the high seas or out of the jurisdiction of any
particular district should take place “in the district where the
offender is found, or into which he is first brought.” See also United
States v. Townsend, 219 F. 761 (S.D.N.Y.1951). Since, by hypothesis, the offender
has been located and is subject to arrest, the danger of his avoiding the
latter does not arise. The record leaves no doubt that, in seeking a warrant in the
Southern District of New York, the government was acting on a good faith belief
that [*900] Shapiro could
be “found” there. He had considerable activities within that
district-extensive business contacts; the impending purchase of a home in
Monsey, New York, where he was already conducting business; and the existence
of a bond release from the Immigration and Naturalization Service district
office in Manhattan. Moreover, as we were told at argument, the government
first attempted to apprehend him in Monsey. Shapiro argues that, however this might otherwise be, a different
result is required here because the affidavit accompanying the complaint stated
that “the said Samuel Shapiro … may be found in the State of
New York and the City of New York, in the Borough of Brooklyn, at 5612-12th
Avenue,” where he was in fact arrested, after the unsuccessful attempt
to do this in the Southern District. We must confess inability to understand
why this was included. We were told that the purpose was to assist the marshal,
but this could have been done by less formal means. However, the assertion that
Shapiro could be found in the Eastern District does not destroy the
government’s good faith belief that he could also be found in the
Southern. Since, in the absence of the quoted statement, Shapiro could have
been arrested in the Eastern District under a warrant issued by the Southern,
we fail to see how he was prejudiced by the unneeded surplusage, which, we were
told, the government offered to remove nunc pro tunc at the first hearing
before Judge Pollack, an offer refused by Shapiro’s counsel. Shapiro’s final argument on this phase of the case is
that even if the arrest in Brooklyn was valid, he should then have been taken
before a judge or magistrate in the Eastern, not the Southern, District for the
extradition hearing. For this he relies primarily on Pettit v. Walshe, supra, 194 U.S. 205, 24 S.Ct.
657, 48 L.Ed. 938. In that case Walshe was arrested in Indiana on a warrant for
extradition issued from the Southern District of New York. On a petition for
habeas corpus brought in Indiana, the trial court released him, on the ground
that a warrant issued in New York was ineffective in Indiana. Although the
Court upheld the validity of the arrest, 194 U.S. at 219, 24 S.Ct. 657, it
affirmed the order of release on the ground that the marshal “in his
return to the writ of habeas corpus distinctly avowed his purpose, unless
restrained by the court, to take the prisoner at once from the state in which
he was found, and deliver him in New York… .” 194 U.S. at
220, 24 S.Ct. at 662. This, the Court ruled, violated the marshal’s
“duty … to take the accused before the nearest magistrate in
that district … to hear and consider the evidence of [his]
criminality.” Id. at 219, 24 S.Ct. at 662. Focusing on the
words “in that district,” Shapiro argues that he was denied
his right to be heard by the nearest magistrate by being brought across the
East River to the Southern District. The argument fails to take account of the Court’s
reasoning in Pettit. The Court emphasized that, under the provisions of the
applicable treaty, the evidence of Walshe’s criminality must suffice
to justify his commitment for trial “according to the laws of the
place where the fugitive or person so charged shall be
found”—in that case, Indiana. Thus, transportation to New
York for a hearing would entail having the sufficiency of the evidence assessed
under a totally different body of laws. Here, however, both the Southern and
the Eastern Districts are within the state of New York and would apply, insofar
as is relevant to an extradition hearing, identical law. Shapiro thus does not
fall within the Pettit rule. II. Competence and Weight of the Evidence. In attacking the weight and competence of the evidence before the
extraditing magistrate, Shapiro labors under two sets of difficulties. First,
the function of the extraditing magistrate is not to decide guilt or innocence
[*901] but merely to
determine whether there is “competent legal evidence which …
would justify his apprehension and commitment for trial if the crime had been
committed in that state.” Collins v. Loisel, 259 U.S. 309, 315, 42
S.Ct. 469, 471, 66 L.Ed. 956 (1922). See also Benson v. MacMahon, 127 U.S. 457, 463, 8 S.Ct.
1240, 32 L.Ed. 234 (1888); 4 Hackworth, Digest of International Law 115-18
(1942). Thus, evidence of alibi or of facts contradicting the demanding
country’s proof or of a defense such as insanity may properly be
excluded from the Magistrate’s hearing. Charlton v. Kelly, 229 U.S. 447, 456, 33
S.Ct. 945, 57 L.Ed. 1274 (1913). Second, the magistrate’s decision is
not itself appealable. Collins v. Miller, 252 U.S. 364, 369, 40
S.Ct. 347, 64 L.Ed. 616 (1920); Jimenez v. Aristeguieta, 290 F.2d 106 (5 Cir.
1961), [FN3] and review of his decision generally must be pursued by writ of
habeas corpus, 4 Hackworth supra, at 174-75 (1942), which, at least in theory,
is more restricted than review on appeal. The habeas judge can only
“inquire whether the magistrate had jurisdiction, whether the offense
charged is within the treaty and, by a somewhat liberal extension, whether
there was any [competent] evidence warranting the finding that there was
reasonable ground to believe the accused guilty.” Fernandez v.
Phillips, 268 U.S. 311,
312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); see also Charlton v. Kelly,
supra,
229 U.S. at 456, 33 S.Ct. 945; Gallina v. Fraser, 177 F. Supp. 856,
867 (D.Conn.1959); aff’d, 2 Cir., 278 F.2d 77 (1960), cert. denied,
364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 74 (1960); Jimenez v. Aristeguieta, 311 F.2d 547, 555 (5
Cir. 1962). The guiding principle is furnished by Article V of the present
Treaty which provides that “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, … to justify his committal for
trial… .” As both parties recognize, the phrase “the
laws of the place where the person sought shall be found” refers to
the laws of the state where the arrest occurs rather than to the laws of the
United States. [FN4] FN3. The Jimenez court reasoned that it did
not have jurisdiction under the general appeal statute, 28 U.S.C. §
1291, although there as here a district judge had presided at the extradition
hearing, since such a decision is not encompassed in the term “appeals
from all final decisions of the district courts of the United States,”
(emphasis added) but was the decision of a district judge sitting as
magistrate. Although this approach is criticized in 61 Mich.L.Rev. 383 (1962),
it seems sound in light of the fact that 18 U.S.C. § 3184 permits the
hearing to be conducted by a magistrate or a judge of a state court of record
or for that matter, by a judge of a court of appeals or a justice of the
Supreme Court. The accident that a district judge has elected to conduct the
hearing should not provide a basis for appealability that would not otherwise
exist. FN4. This was explained by the Supreme Court
in Pettit v. Walshe, supra, 194 U. S. at 217, 24 S.Ct. at 661: But as there are no common-law crimes of the
United States, and as the crime of murder, as such, is not known to the
national government, except in places over which it may exercise exclusive
jurisdiction, the better construction of the treaty is that the required
evidence as to the criminality of the charge against the accused must be such
as would authorize his apprehension and commitment for trial in that state of
the Union in which he is arrested. See also Wright v. Henkel, 190 U.S. 40, 58-63, 23
S.Ct. 781, 47 L.Ed. 948 (1903). Shapiro argues first that there was insufficient competent
evidence before the magistrate to satisfy New York’s test for
sufficiency of the evidence necessary to hold a defendant prior to trial since
New York’s recently enacted Criminal Procedure Law § 180.60,
subd. 8 (McKinney’s Consol.Laws, c. 11-A 1971) provides that, at a preliminary
hearing and subject to an exception not here material, “only
non-hearsay evidence is admissible to demonstrate reasonable cause to believe
that the defendant committed a felony,” while here Judge Pollack based
his finding primarily, [*902] indeed entirely, [FN5] on written statements and
records of testimony of persons not before him and not subject to
cross-examination by Shapiro. FN5. Although Shapiro testified at the
hearing, Judge Pollack’s opinion does not suggest that his decision
rested on any inculpatory information arising from this testimony. While the argument is ingenious, it runs afoul of Collins v.
Loisel, supra, 259 U.S. at 317, 42 S.Ct. 469, as well as of good sense. Dealing
with the Extradition Treaty with Great Britain, 8 Stat. 572, 576 (1842), whose
language differs from the treaty with Israel in form but not in substance, Mr.
Justice Brandeis said that the treaty’s reference to
“evidence of criminality” referred “to the scope of
the evidence or its sufficiency to block out those elements essential to a
conviction,” not “to the character of the evidence or to the
rules governing admissibility.” He added, even more pertinently: Thus, unsworn statements of absent witnesses
may be acted upon by the committing magistrate, although they could not have
been received by him under the law of the State on a preliminary examination. Furthermore, 18 U.S.C. § 3190 provides that, subject to
proper certification, to be discussed below, “[d]epositions, warrants,
or other papers or copies thereof … shall be received and admitted as
evidence …” in extradition hearings, which would override the
New York statute with respect to the inadmissibility of hearsay in any event. Beyond
this, the principle Shapiro asks us to adopt would run counter to one of the
prime objects of bi-lateral extradition agreements, namely, “to
obviate the necessity of confronting the accused with the witnesses against
him; … [requiring] the demanding government to send its citizens to
another country to institute legal proceedings, would defeat the whole object
of the treaty.” Bingham v. Bradley, 241 U.S. 511, 517, 36 S.
Ct. 634, 637, 60 L.Ed. 1136 (1916); Note, United States Extradition Procedures,
16 N.Y.Law Forum 420, 442-43 (1970). Counsel contends this consideration has
lost force in the era of the jet airplane and rightly reminds us that what we
here decide would apply equally if Shapiro were an American rather than an
Israeli citizen. But even today the transportation of witnesses thousands of
miles has elements of trouble and expense, and a further appropriate rejoinder
to counsel’s reminder is that extradition is always a two-way street. Struggling to avoid the force of all this, Shapiro’s able
counsel says “our argument does not, of course, go to admissibility or
competence; it relates to sufficiency.” We fail to see any basis for
this characterization. The New York statute on which he relies itself speaks in
terms of “admissible” evidence to demonstrate reasonable
cause in a felony hearing; a prior section defining “reasonable
cause,” N.Y.Crim.Proc.L. § 70.10, subd. 2, expressly provides
that in general “apparently reliable evidence may include or consist
of hearsay.” The recent addition to § 180.60, subd. 8 barring
use of hearsay evidence in preliminary hearings in felony cases thus is not a
matter of sufficiency, which is independently defined, but rather a restriction
on the kind of evidence in hearings relating to particularly serious crimes. In
extradition hearings, see Collins v. Loisel, supra, this is precisely
the sort of issue to be determined by national rather than by state law. [FN6] FN6. We note in passing that hearsay evidence
of the type in question here would be admissible in preliminary hearings under
the American Law Institute’s Model Code of Pre-Arraignment Procedure
§ 330.4(4) (Tent. Draft 1972) and the Proposed Amendments to the
Federal Rules of Criminal Procedure § 51(a), reprinted at 48 F.R.D.
567 (1970). The former conditions admissibility on a determination by the
presiding judge that “it would impose an unreasonable burden on one of
the parties” to require direct testimonial proof. The commentary for
each of these rules gives the example of a distant primary witness as the
principal rationale for a flexible standard. The commentary to the ALI Model
Code, at 88-90, states that “most” states do not use the
normal rules of evidence at the preliminary hearing stage, although it cites
three states contra. [*903] A more troubling problem is whether the certification
procedures actually used in this case were sufficient to place the documents
and testimony at Blumberg’s Israeli trial before the extraditing
magistrate. The statute, 18 U.S.C. § 3190, begins by saying that the
“[d]epositions, warrants, or other papers or copies thereof offered in
evidence upon the hearing of any extradition case” shall be received
if “properly and legally authenticated so as to entitle them to be
received for similar purposes by the tribunals of the foreign country from
which the accused party shall have escaped… .” This can be
established by testimony of an expert in the law of the demanding country, see,
e. g., Argento v. Horn, 241 F.2d 258, 263 (6 Cir.), cert. denied, 355 U.S. 818,
78 S.Ct. 23, 2 L.Ed.2d 35 (1957); 6 Whiteman, Digest of International Law 968
(1968), but no independent testimony of Israeli law was proffered here. Section
3190 continues-and it is upon this that the government has chosen to rely-that
“the certificate of the principal diplomatic or consular officer of
the United States resident in such foreign country shall be proof that the
same, so offered, are authenticated in the manner required,” and such
a certification is conclusive. See 6 Whiteman, supra, at 969-70; 1 Moore,
Extradition 499-501 (1891). The difficulty stems from the arguable
incompleteness of the American Ambassador’s certification. Three separate certificates were executed by the Ambassador. All
are on Foreign Service Form No. 36, entitled “Certificate to be
Attached to Documentary Evidence Accompanying Requisitions in the United States
for Extradition.” There follows: AMERICAN FOREIGN SERVICE --------------------- (Place and date) I,--------------,----------------of the United States of America
at --------------hereby certify that the annexed papers, being ----------
---------------------------------------------------------------------- proposed
to be used upon an application for the extradition from the United States of
-------------, charged with the crime of ------------- alleged to have been
committed in --------------, are properly and legally authenticated so as to
entitle them to be received in evidence for similar purposes by the tribunals
of --------------, as required by the Act of Congress of August 3, 1881. In witness whereof I hereunto sign my name and cause my seal of
office to be affixed this ---------- day of ------------------. (Month and year) -------------------------------------------- ------------ of the United States of America. The first certificate describes the annexed papers as “an
affidavit by Eli Nathan, Senior Deputy State Attorney, Ministry of Justice,
Jerusalem,” which contains translations of various provisions of the
Israeli criminal code; Shapiro raises no question about this. The two other
certificates are rather similar. One describes the attached papers as
“a Statement of Charge, Application for [*904] Arrest and
Order to Compel Attendance”; these are in Hebrew. The other describes
the annexed papers as “certified translations of Statement of Charge,
Application for Arrest and Order to Compel Attendance”; these
attachments are in English. Shapiro raises no question concerning the certification of the
three documents specifically mentioned in the two latter certificates. His
point is that these establish only that he is sought for certain crimes in
Israel, but not that there is sufficient, or any, evidence of his guilt. For
that one must look to the other papers attached, [FN7] and he says that as to
these, not mentioned in the certificate, there is no certification that they
were “properly and legally authenticated so as to entitle them to be
received” on a hearing in Israel. FN7. Some of these attachments were documents
received in evidence at Blumberg’s trial. The Government characterizes
much of the rest as testimony at that trial. The statements of the various
witnesses seem to be answers to questions posed by lawyers for the Israeli
Government and Blumberg; the attorneys’ questions, however, are omitted,
with the result that the testimony appears as a series of monologues. While again applauding the ingenuity of the argument, we reject it
as “savor[ing] of technicality,” Bingham v. Bradley, supra, 241 U.S. at 517, 36
S.Ct. 634, which is peculiarly inappropriate in dealings with a foreign nation.
As indicated by its title, the form was clearly designed to cover all material
needed under 18 U.S.C. § 3190. Although the explicit reference was
only to the Statement of Charge, Application for Arrest and Order to Compel
Attendance, this was doubtless due to lack of further space on the form and the
Ambassador must have known that such documents alone would serve no purpose.
The third certificate, which is of particular importance, is affixed with an
official, embossed seal of the American Embassy in Israel, to which is attached
a ribbon binding the certificate, the translator’s affidavit, the
arrest orders, and 23 pages of translation from the charge. The
translator’s certificate, in turn, is bound by a separate ribbon,
affixed by a seal of the Ministry of Foreign Affairs, to the entire body of
papers. Many of the papers bear legends such as “Rubber Stamp:
District Court of Tel Aviv-Jaffa, checked by Yosef Levi and found true to the
original” followed by Levi’s signature. It is unlikely in the
last degree that the Ambassador would have allowed his deal to be attached to
only a portion of the “certified translations” before the
translator had himself attached and sealed his own certificate to the entire
body of translated material. While the government should be able to spare the
courts from having to spend time on questions of this sort, in the absence of
any showing that the documents were not authentic or not of the sort admissible
in Israel for purposes of establishing the sufficiency of the evidence, we are
unwilling to order Shapiro’s release pending more satisfactory
certification. [FN8] FN8. In contrast, the certificate relating to
the papers in Hebrew is bound by ribbon and seal only to the first three pages
of the documents, which in turn are bound to the remaining papers only by
removable metal clips. Whether the latter papers were earlier bound to the
certificate by another ribbon and seal, as with the translations, which was
removed for convenience at a later point, is a matter of little importance,
since for those not versed in Hebrew the documents are of only ceremonial
value. Finally, so far as concerns this phase of the case, Shapiro
contends that Judge Pollack committed an error of law in failing to pass upon
the credibility of the evidence before him, as revealed in various statements
at the hearing such as “the assertion … is a matter of
credibility and that is an issue that I don’t have to pass
on,” and in refusing to allow Shapiro to produce certain witnesses
from Israel to testify on his behalf. As indicated above, we are restrained on
this appeal both by the [*905] limited nature of the magistrate’s hearing
and by the standards of review on habeas corpus. The magistrate’s
function is to determine whether there is “any” evidence
sufficient to establish reasonable or probable cause, Fernandez v. Phillips,
supra,
268 U.S. at 311, 45 S. Ct. at 541, and the extraditee’s right to
introduce evidence is thus “limited to testimony which explains rather
than contradicts the demanding country’s proof, and its precise scope
is largely in the Commissioner’s discretion.” United
States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2 Cir. 1963), cert.
denied, 376 U.S. 952, 84 S.Ct. 969, 11 L. Ed.2d 971 (1964) (extradition order
valid despite refusal to allow certain witnesses to testify); see also Charlton
v. Kelly, supra, 229 U.S. at 461, 33 S.Ct. 945; Collins v. Loisel, supra, 259 U.S. at 315-316,
42 S.Ct. 469. The judge’s refusal to examine the credibility of the
testimony and statements included in the translated material was clearly
proper, since the declarants were not before him. Furthermore, the testimony
and witnesses excluded by him were offered to prove, variously, that one
declarant of an inculpatory statement had once blackmailed Shapiro’s
father and that certain fraudulent statements alleged to have been made by Shapiro
had not in fact been made. If allowed, such statements would in no way
“explain”—or, as the district judge put it,
“obliterate”—the government’s evidence, but
would only pose a conflict of credibility. Such a contest, the judge
permissibly ruled, should properly await trial in Israel. Further discussion of the sufficiency of the evidence as to each
offense named in the charge will be made below. III. Extraditability of the Particular Offenses. Shapiro’s next complaint concerns the failure to rule
whether each offense charged was listed in the extradition treaty, was criminal
under the laws of New York and was supported by sufficient evidence. Judges Pollack and Gurfein appear to have differed in their views
of their duties in this regard. Judge Pollack limited his role to determining
whether Shapiro himself was extraditable for any of the offenses charged; [FN9]
Judge Gurfein on the other hand, referred without citation to “the
recognized rule that the country of asylum may limit the trial of the fugitive
in the demanding country to those crimes which have been shown to be
extraditable offenses in law and where probable cause has been shown on the
evidence.” We think that Judge Gurfein was right but that he did not
pursue his inquiry far enough. FN9. He characterized the hearing as being
limited to deciding “whether the evidence submitted evinces probable
cause to suppose that the specified extraditable offenses or any of them were
committed by Shapira [sic].” 352 F.Supp. at 644. The “principle of specialty,” long recognized in
international law, provides that “the requisitioning state may not,
without the permission of the asylum state, try or punish the fugitive for any
crimes committed before the extradition except the crimes for which he was
extradited.” Friedmann, Lissitzyn & Pugh, International Law 493
(1969); see generally 1 Moore, Extradition 194-259 (1891). In United States
v. Rauscher, 119 U.S. 407,
7 S.Ct. 234, 30 L.Ed. 425 (1886) the Supreme Court established the rule of
domestic law that the courts of this country will not try a defendant
extradited from another country on the basis of a treaty obligation for a crime
not listed in the treaty. While this determination might appear to be limited
to circumstances indicating a possible evasion of the treaty, the principle has
been extended to bar prosecution for crimes listed in the treaty but for which
extradition, for whatever reason, was not granted. See Johnson v. Browne, 205 U.S. 309, 27 S.Ct.
539, 51 L.Ed. 816 (1907); Greene v. United States, 154 F. 401, 407-408
(5 Cir. 1907); see generally 1 Moore, supra, at 245-256. [*906] This self-imposed restraint, however, need not necessarily
imply that in the converse situation, when courts of this country are examining
an extradition request from a foreign nation, we should seek to impose limits
on the scope of subsequent prosecution of a person who is to be extradited for
at least one crime in any event. Since such a ruling can only be advisory in
character, and in certain circumstances might cause embarrassments to the
executive branch in the conduct of foreign affairs, arguably it should be left
to the Secretary of State to determine whether to seek to impose any
limitations since he alone will have the duty of making a response if the
requesting state chooses not to follow our limitations. [FN10] FN10. While this argument was made with
respect to prosecutions in the United States by Chief Justice Waite in his
dissent to United States v. Rauscher, supra, 119 U.S. at 434-436,
7 S.Ct. 234, and was there rejected, such rejection need not be dispositive in
the converse case here presented. Quite arguably, the Executive’s
responsibilities and need for flexibility are greater when the extradition is
to another country, in which the sole effective remedies are diplomatic ones,
than in the case of extradition to this country where the courts can see to it
that the Executive lives up to our international obligations. A number of considerations, however, lead us to conclude that a
judicial determination of extraditability as to separate offenses, even if the
extraditability of the person is conceded or is independently determined, is a
proper exercise of judicial authority in a case such as this. As a matter of international law, the principle of specialty has
been viewed as a privilege of the asylum state, designed to protect its dignity
and interests, rather than a right accruing to the accused. See 1 Oppenheim,
International Law 702 (8th ed. Lauterpacht 1955); United States ex rel.
Donnelly v. Mulligan, 76 F.2d
511 (2 Cir. 1935) (extraditing country may consent to further extradition
to third country). This is reflected in the terms of the Treaty with Israel
itself, which states that an extraditee shall not be tried “for any
offense other than that for which extradition has been granted,”
(emphasis added), rather than for any offenses “listed in the
Treaty.” Moreover, while the conduct of foreign affairs is almost
exclusively an executive function, extradition has, at least in the United
States, see 2 O’Connell, International Law 803 (1965), been generally
a matter of judicial competence. While we have no doubt that the Secretary of
State could, if he wished, narrow the terms of extradition approved by the
magistrate, see 18 U.S.C. § 3186, [FN11] we see little reason why a
prior judicial determination would be viewed by him as an unwanted intrusion
upon executive power. Indeed, on at least one occasion the Secretary has
indicated a willingness to adopt the findings of an extradition magistrate as
to the sufficiency of the evidence in some but less than all of the crimes
charged. Letter, Secretary of State to Ambassador of Venezuela, printed in 6
Whiteman, supra, at 1051. Purely as a practical matter it would seem reasonable
for the courts of this country to make an initial finding of extraditability of
particular offenses. As will appear below, Shapiro calls upon us to determine
whether the acts charged constitute criminal offenses under the laws of New
York. [FN12] Such a [*907] task of ascertaining and, if necessary,
interpreting local law is particularly suited to the capacities of the judicial
branch. FN11. A Note written in 1962 indicates that
the Secretary refused extradition after certification only twice in the prior
twenty-one years, in each instance under treaty provisions explicitly granting
him such discretion. The Note concludes, however, that the Secretary has the
power to make “a de novo examination of the case to determine whether
the requirements of the treaty have been met.” Note, Executive
Discretion in Extradition, 62 Colum.L.Rev. 1313, 1328-29 (1962). FN12. The requirement of “double
criminality”—l;that is, that the offense for which a person is
extradited must be punishable as such under the laws of both the requesting and
the requested nation-has been described as a “solution” to
the problem of ascertaining relative standards of gravity: “The
understanding at the basis of extradition treaties is that the procedure will
be employed only in cases of ‘grave offenses’. The reason for
this is that the trouble involved is only justified by the turpitude attaching
to the act. However, what is ‘grave’ to one country is not to
another.” O’Connell, supra, at 794. The rule has
been adopted in various formulations by the Supreme Court. “The
general principle of international law is that in all cases of extradition the
act done on account of which extradition is demanded must be considered a crime
by both parties … .” Wright v. Henkel, supra, 190 U.S. at 58, 23
S.Ct. at 785; Collins v. Loisel, supra, 259 U.S. at 312, 42 S.Ct. 469. But
see Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct.
191, 78 L.Ed. 315 (1933), discussed infra at notes 19-21. Having concluded that the extradition magistrate should have
culled extraditable from non-extraditable offenses, we must still determine
whether his failure to do this is curable on a writ of habeas corpus in a case
where extradition for at least one offense was proper. In two cases decided in
1916, not cited to us for this proposition by counsel, the Supreme Court
indicated that in extradition matters the writ could test only the validity of
the detention of the individual; thus, if a petitioner were found properly
extraditable on any ground a federal habeas court’s inquiry would be
at an end: “[I]f only one [crime] is extraditable by the treaty, this
does not render [the] appellant’s detention unlawful, since it is not
to be presumed that the demanding government will suffer him to be tried or
punished for any offense other than that for which he is surrendered, in
violation of … the treaty …” Bingham v. Bradley, 241 U.S. 511, 514-515, 36
S.Ct. 634, 636, 60 L.Ed. 1136; Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60
L.Ed. 861. Later, however, the Supreme Court on at least one occasion accepted
without comment the finding of a lower federal court on a habeas petition that
the evidence before the magistrate sufficed as to one count in an extradition
proceeding but not as to another. Collins v. Loisel, supra, 259 U.S. at 311, 42
S.Ct. 469. Thus, especially since no appeal will lie from the
magistrate’s order, see note 3 supra, a habeas court will
properly look beyond the mere legality of detention. A final problem is whether our implementation of the principle of
specialty entails a determination of the extraditability of acts or a more
detailed examination of the extraditable nature of the charged crimes. The
Israeli Government’s charge against Shapiro, as it appears in
certified translation, contains nineteen separate “counts.”
Each of these relates to a factual transaction or series of transactions
alleged to have been perpetrated by Shapiro or with his complicity, and as to
each of these, two, three, or four separate violations of cited portions of
Israel’s criminal law are charged. As will appear below, as to every
count at least one of the violations charged would not, standing alone, support
an extradition order, for want of compliance with the Treaty, lack of a
complementary crime under New York law, failure to demonstrate probable cause,
or unavailability of a text of the Israeli law charged. Under a limited
interpretation of our function, we might reasonably deem each act or series of
acts an “offense” which is extraditable if any one of the
criminal code provisions cited is violated, provided such violation meets the
test of extraditability. On the other hand, violations of each of the separate
laws cited might be considered an “offense,” in which case it
would be incumbent upon us not only to determine whether the acts complained of
would be criminal if performed in New York, see note 12 supra, but also to assess
whether the facts and law cited could correspond to a parallel legal violation
if performed here. The former position finds some support in Justice
Brandeis’ opinion in Collins v. Loisel, supra, 259 U.S. at 312, 42
S.Ct. at 470, in which he stated: [*908] “The law does not require that
the name by which the crime is described in the two countries shall be the
same; nor that the scope of the liability shall be co-extensive, or, in other
respects, the same in the two countries. It is enough if the particular act
charged is criminal in both jurisdictions.” See also Bryant v.
United States, 167 U.S. 104,
108, 17 S.Ct. 744, 42 L.Ed. 94 (1897). This reasoning, however, was directed to
the problem arising when the law of one jurisdiction gives a name for a certain
criminal act which differs from the name for the same act in the law of the
asylum state. [FN13] In situations where the laws of both the requesting and
the requested party appear to be directed to the same basic evil, the contrary
rule is applicable. [FN14] In United States v. Rauscher, supra, 119 U.S. 407, 7 S.Ct. 234,
for example, the Court acknowledged that prosecution for the crime not
specified in the order of extradition might well have been based on exactly the
same evidence presented to the magistrate in extradition proceedings in
Britain, but concluded that the extraditing state has the privilege of granting
or refusing extradition irrespective of whether it has already decided to
extradite for another criminal charge based on the same acts. Id. at 431-432, 7 S.Ct.
234. Since different legal characterizations of an act or series of acts can
lead to increased or cumulative punishment, as will appear below in this case,
or to punishment for “political” crimes, cf. Karadzole v.
Artukovic, 247 F.2d 198 (9 Cir.), rev’d mem., 355 U.S. 393, 78 S.Ct.
381, 2 L.Ed.2d 356 (1957), the asylum state, in this case through the Secretary
of State, see 18 U.S.C. § 3186, [FN15] may wish to exercise its
privilege of assessing the probable severity of treatment likely to be accorded
the extraditee. Nothing in this court’s opinion in United States v.
Paroutian, 299 F.2d 486 (2 Cir. 1962), is to the contrary. There the United
States procured the extradition of the defendant from Lebanon on an indictment
which charged only a conspiracy to violate the drug laws, and then proceeded to
prosecute him for the substantive crimes of receipt and concealment of heroin.
The court concluded that “the test whether trial is for a
‘separate offense’ should be not some technical refinement of
local law, but whether the extraditing country would consider the offense
actually tried ‘separate.’ ” In that case the Lebanese
government had specified that Paroutian was being extradited for
“trafficking in narcotics,” and thus no affront to the
extraditing country was foreseeable. See also Fiocconi v. Attorney General, 462 F.2d 475 (2 Cir.
1972). In situations like the present, however, where the crimes charged appear
to be cognates of similarly named offenses in the United States, we are faced
with neither a mere lack of parallelism in nomenclature, as in Collins v.
Loisel, supra, nor with crimes so factually intertwined as to constitute a
logical whole, as in United States v. Paroutian, supra. Rather, [*909] the multiple
characterizations of the acts charged raise potential problems of greatly
increased punishment through successive sentences or, under circumstances not
present here, of “political” punishment for minor criminal
offenses. [FN16] Thus, as a matter of domestic law implementing the
international principle of speciality, see American Law Institute, Restatement
(Second) of Foreign Relations Law of the United States, § 3, Comment h
(1965) it is appropriate for us to inquire into the extraditability of the
offenses charged, as well as of the acts on which the offenses are based. FN13. In Collins v. Loisel, the petitioner
Collins fought extradition from Louisiana to India on the ground that the crime
alleged to have been committed by
him—“cheating”—did not appear in the list
of extraditable crimes in the applicable treaty, nor was it a crime recognized
in Louisiana. The Court determined that “cheating”, as
defined in the Indian Penal Code, contained the same elements as the crime of
“obtaining property by false pretenses,” recognized by both
the treaty and Louisiana, and thus extradition would lie for one accused of
committing that offense. FN14. The Treaty itself indicates that the
extraditing nation may inquire into the nature of the crime charged as well as
of the act committed. Article XIII prohibits prosecution of one extradited
“for any offense other than that for which extradition has been
granted,” (emphasis added) while Article II lists as extraditable
“offenses” 31 different genera or categories of crimes. Writing in 1891, Professor Moore criticized
the application of the principle of specialty when it prohibited prosecution
for a lesser included offense, thus implying that the principle was strictly
interpreted to bar prosecution for crimes other than those charged even if
based upon the same acts. 1 Moore, supra, at 246-51. FN15. See note 11 supra. FN16. Crimes deemed
“political” in character are generally not extraditable,
either because of a specific provision in a treaty, see, e. g., the Treaty with
Israel, Article VI, or as a matter of sovereign discretion, see Hyde, International
Law 572 (1922). While Shapiro has stated that his uncle is a well-known
political figure in Israel, thus implying a political motivation for his
prosecution or extradition, Judge Pollack concluded that “it has not
been credibly established that the Charge or the purpose of the extradition is
political in character,” 352 F.Supp. at 644, and Shapiro has not
attacked that conclusion here. The basic scheme alleged to have been contrived by Shapiro and
Blumberg was described by Judge Pollack as follows: [Blumberg and Shapiro] organized Shahak
Investment Fund, Ltd., Shaham Investment Fund, Ltd. and Otzar Merkazi, Ltd. in
each of which Shapira owned 55% of the stock and Blumberg owned 45% of the
stock; both were the active directors. Seemingly, the activity initially was like
that conducted previously by Shapira, i.e., financial broking for a commission
from the institutions which received the money. However, customers would be
steered to invest their money in Shaham or other private companies against a
guarantee by Otzar Merkazi. Shaham invested in foreign securities with the
money provided by such customers. Shaham paid the interest to the customers and
a commission to Shahak. The customer would be conditioned by a recital of
various banks with whom business had been done and the rates of interest they
paid and then Otzar Merkazi was included as paying a higher rate, similar to
what private firms would pay. Otzar Merkazi’s business stationery
announced that they were Bank’s Brokers and carried an ambiguous
reference to a company connected with Hapoel Hamizrachi, the religious party in
Israel. Persons doing business with Otzar Merkazi testified that they were led
to believe that they were dealing with and guaranteed as to repayment by a bank
or an affiliate of a bank, or that Otzar Merkazi’s guaranty was
essentially the guaranty of Hapoel Hamizrachi. The fact that Otzar Merkazi was
the personal company of Shapira and Blumberg with little or no assets was
allegedly concealed from the investors. In short, it is now claimed by the
investors that they were led to believe that Otzar Merkazi was something other
than it was. As may be surmised, the loans soured and Otzar Merkazi became
bankrupt. 352 F.Supp. at 643. Count One. The first count describes the general fraudulent scheme
followed by Shapiro and Blumberg, on the basis of which they are charged with
two conspiracy violations. As to the latter, a “conspiracy to
defraud,” the government concedes in its brief that the violation is
punishable in Israel by only three years imprisonment. Under Article II of the
treaty, persons sought for conspiracies, attempts, and certain enumerated
substantive crimes are extraditable only if such conspiracy, attempt, or crime
is “punishable under the laws of both Parties by a term of
imprisonment exceeding three years,” (emphasis added) and thus this
violation is not itself extraditable. The count also charged, however, a
“conspiracy to commit a felony,” [*910] which is punishable
in Israel by more than three years. Shapiro demonstrates convincingly that
under the law of New York a conspiracy to commit the particular felonies here
involved would be punishable by less than three years, and argues that he thus
cannot be extradited for this offense. [FN17] However, this fails to recognize
that in limiting extraditable conspiracies and attempts to those punishable by
more than three years, the applicable paragraph of the Treaty refers not to
“the laws of the place where the person sought shall be
found,” as when defining the standards for assessing the probability
that the extraditee committed the act, but to “the laws of both
parties.” (Emphasis added.) Since the United States rather than New
York is a party to the Treaty, the Treaty impels us to look to the laws of the
federal government, 18 U.S.C. § 371, under which a conspiracy to
commit a felony is punishable by five years imprisonment. [FN18] FN17. The felony of deceit, or larceny by
false pretences, is a Class D felony in New York, N.Y.Penal L. §
155.35, McKinney’s Consol .Laws, c. 40. A conspiracy to commit a Class
D felony is Conspiracy in the Third Degree, itself a Class A Misdemeanor,
N.Y.Penal L. § 105.05, for which the maximum sentence is one year,
N.Y.Penal L. § 70.15(1). Judge Gurfein, while not disputing this
analysis, declined to rule the conspiracy charge not extraditable on the ground
that “where the substantive offense is charged as well, there is no
reason either in logic or in the literal language to require the demanding
country to drop the conspiracy count.” The Treaty, however, quite
clearly treats conspiracies as crimes which must be separately extraditable.
See Article II, which states that attempts and conspiracies are extraditable
“provided such attempts or such conspiracy are punishable under the
laws of both Parties by a term of imprisonment exceeding three years.”
FN18. Although the question of whether federal
or state law should serve as referent in determining the gravity of a
conspiracy or attempt was argued below, neither counsel has brought to our
attention any case dealing with interpretation of a similar provision, nor have
we found one. However, reference to state law for delineation of the
substantive elements of a crime and to federal law—when there is
some-as a gauge for its gravity appears to us quite reasonable. While state law
is more likely than federal to provide criminal provisions by which
complementarity can be assessed, see note 4 supra, the makers of the
Treaty might well have desired that, where possible, a uniform standard should
determine the relative gravity of an offense. Counts two through seventeen. These counts charge separate factual
events or series of events, each typically based upon the testimony or
statement of a separate individual alleged to have been defrauded by Shapiro
and/or Blumberg. Each count charges first that the events related constitute
“deceit under aggravating circumstances.” As to this offense,
Shapiro concedes that the crime is punishable under both the laws of Israel and
of New York. The counts also charge a commission of “forgery”
or of “use of a forged document.” Neither the events alleged
in the charges nor those mentioned in the testimony of the alleged victims,
however, constitute crimes of forgery as that offense is defined in New York.
See N.Y.Penal Law, Art. 170, “Forgery and Related Offenses.”
An essential element of forgery under New York law is that the defendant use or
make an instrument which “purports to be an authentic creation of its
ostensible maker or drawer, but which is not either because the ostensible
maker or drawer is fictitious or because, if real, he did not authorize the
making or drawing thereof.” N.Y.Penal Law § 170.00(4). A
characteristic example of the acts alleged to have been committed by Shaprio,
however, is the following (taken in this instance from Count One, to which the
other counts refer): “By printing, signing and uttering letters of
guarantee on forms with the said heading [of Otzar Merkazi], the accused
persons made forged documents, purporting to be what they were not and likely
to mislead; and they used the same with intent to defraud.” It is
clear from this charge and from the facts as stated above that neither Shapiro
[*911] nor Blumberg is
charged with misrepresenting the authenticity of the documents in question,
since the documents purporting to be letters of guarantee from Otzar Merkazi
were, in fact, letters of guarantee from Otzar Merkazi, an actual organization.
Their crime was rather one of misrepresenting the nature of that entity; such
an offense sounds in deceit, also charged, but not in forgery. The Government does not dispute this reasoning, but attempts to
avoid the force of the argument by citing language in Factor v. Laubenheimer, 290 U.S. 276, 301, 54
S.Ct. 191, 78 L.Ed. 315 (1933), which is claimed to overrule earlier
assumptions that the principle of “double criminality” [FN19]
would be enforced by American courts absent contrary provisions in that regard.
The Government contends that the fact that the acts are not criminal as forgery
in New York is thus irrelevant. We do not read Factor so broadly. [FN20] The
Court noted that an article of the treaty with Great Britain there in question
“singles out for exceptional treatment certain of the offenses named,
which in terms are brought within the obligation of the treaty only if they are
made criminal by the laws of both countries,” 290 U.S. at 290, 54
S.Ct. at 194, thus inferring that the makers of the treaty did not intend the
requirement of double criminality to apply to crimes not thus singled out.
Beyond that, the Court was concerned that an opposite ruling “would
restrict the reciprocal operation of the treaty,” 290 U.S. at 300, 54
S.Ct. at 198, since, while Great Britain had a unified body of law under which
criminality might be assessed, a culprit seeking asylum in the United States
might easily find a single state having laws differing from the vast majority
and attempt to have his criminality measured against this atypical example.
Indeed, the Court mentioned that the crime “with which petitioner is
charged is a crime under the law of many states,” although not that of
Illinois where he was arrested, and was “recognized as such by the
jurisprudence of both countries.” Id. at 299, 54 S.Ct. at
197. New York’s definition of forgery, however, is not at variance
with that of its sister states nor with the “jurisprudence of [this]
country.” See American Law Institute, Model Penal Code §
224.1(1) (Proposed Official Draft 1962); 36 Am.Jur.2d, Forgery § 6, at
684 (1968) (“As a general rule, forgery cannot be committed by the
genuine making of an instrument for the purpose of defrauding.”). As
this circuit has recognized since Factor, at least the broad elements of double
criminality here outlined ordinarily remain a prerequisite for extradition. United
States ex rel. Rauch v. Stockinger, 269 F.2d 681 (2 Cir. 1959). [FN21] Thus,
since the [*912] facts as charged do not make out an offense of forgery as
defined in New York, Shapiro is not extraditable for that crime. FN19. See note 12 supra. While a provision specifically requiring
extradition for listed offenses “only if they are punishable as crimes
or offenses by the laws of both countries” has been included in treaties
signed by the United States, see 6 Whiteman, supra, at 774, the present
Treaty has none. The provision in Article V of the Treaty that
“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 … to justify his committal for trial if the offense of which he
is accused has been committed in that place” might appear to embody or
refer to the rule. However, in Factor v. Laubenheimer, supra, virtually identical
language was found to refer only to “the quantum of proof-the
‘evidence,’ ” 290 U.S. at 291, 54 S.Ct. at 194,
rather than to the definition of criminal acts. FN20. We note in passing that the then
Assistant Legal Adviser of the Department of State, writing in 1968, stated
that “the requirement is generally imposed.” 6 Whiteman, supra, at 773. FN21. Under this view the decision in Factor
is consistent with that of Wright v. Henkel, supra, which phrased the
question before the Court as whether “the complaint and warrant did
not charge an extraditable offense within the meaning of the extradition
treaties between the United States and the United Kingdom of Great Britain and
Ireland, because the offense was not criminal at common law, or by acts of
Congress, or by the preponderance of the statutes of the states.” 190
U.S. at 57, 23 S. Ct. at 784. Counts 2, 5, 7 and 8 also include charges of “false entry
in corporate documents,” a crime punishable in Israel by up to 5 years
imprisonment. Shapiro contends that this crime is not among the list of
extraditable offenses contained in Article II of the Treaty. While no paragraph
of that article lists the offense by name, under proper circumstances the Israeli
offense might constitute the listed crimes of “obtaining money by
false pretenses,” or “fraud … by a director or
officer of any company.” However, with one exception the factual
allegations contained in the charges make no mention of fraudulent conduct
involving false entry; as discussed above, the frauds committed consisted
essentially of misrepresentation of the status of Otzar Merkazi rather than of
the authenticity of the documents or the accuracy of the information contained
therein. The sole exception is Count Two, which states that a letter of
guarantee given a victim “was a corporation document in which a false
entry had been made with intent to defraud.” However, the sole
evidence tending to support the allegations in that transaction was the
testimony of the alleged victim, Schlomo Yafeh, whose recorded statements
contain no reference at all to falsified documents. Thus, while the offense
charged might be extraditable if supported by proper charges and sufficient evidence
tending to show a listed crime, no evidence of this nature was produced. Counts 8 and 11 include charges of “Trickery.”
While an offense so named might constitute an offense under the laws of New
York, [FN22] the certified translation of Israeli law in the record contains no
translation of the applicable criminal provision, nor has the government
offered proof of such law by any other method, see, e. g., Proposed Amendment
to F.R.Crim.P. 26.1. Thus, we are unable to judge whether a complementary crime
exists in the law of New York or of the United States generally, nor can we
assess the sufficiency of the evidence as to this offense. Shapiro is not
extraditable on this charge. FN22. See note 13 supra. Count eighteen. The last two counts refer to a separate criminal
transaction. According to the testimony of one Meir Shatsdrovitski, an employee
of the Bank Agudat Israel, Ltd., Blumberg and Shapiro attempted to avoid or
delay payment on a check overdrawn on the Agudat Bank by paying Shatsdrovitski
to destroy the check after arrival in the Bank before the lack of sufficient
funds was discovered. The count first charges that these acts constituted the
crime of theft. Judge Gurfein found that this alleged offense was not
extraditable since the petition for extradition was filed more than two years
after the date of the alleged offense, at which point the New York statute of
limitations would have run. [FN23] While the “inveterate and
certain” rule is that an appellee who has not filed a notice of cross
appeal may not “attack the decree with a view either to enlarging his
own rights thereunder or of lessening the rights of his adversary,” Morley
Construction Co. v. Maryland Cas. Co., 300 U.S. 185, 191, 57
S.Ct. 325, 328, 81 L.Ed. 593 (1937); Note, 51 Harv.L.Rev. 1058 (1938), we are
reluctant to shield this question from scrutiny. Judge Gurfein, while
discussing the question and concluding in Shapiro’s favor, did not
enter an order barring prosecution for this offense, and there was thus no
adverse decree from which the Government could appeal. Moreover, the Supreme
Court [*913] has admonished that “[t]he ordinary technicalities
of criminal proceedings are applicable to proceedings in extradition only to a
limited extent,” Wright v. Henkel, supra, 190 U.S. at 57, 23
S.Ct. at 785, and under these circumstances our obligation to implement the
Treaty obligations and to avoid the embarrassments which might arise from
leaving intact a correctable error outweigh the usual considerations in
requiring a cross appeal. For a number of reasons we are unpersuaded by the
judge’s disposition. Judge Gurfein concluded that a two-year statute
of limitations applied rather than the five-year limitation applicable to a
“felony” on the ground that the check destroyed by
Shatsdrovitski was “worthless” and thus the theft was only a
“petit larceny.” While the check was drawn on insufficient
funds, it was not necessarily worthless since it undoubtedly still constituted
an enforceable debt between the drawer and the payee, cf. N.Y.U.C.C.
§§ 3-413, 3-306, and, since the check was drawn in the amount
of 315,000 Israeli Pounds, worth roughly $90,000, it would be speculative in
the extreme to determine that the value of the property stolen was less than
$250. Theft of property of more than $250 in value constitutes Grand Larceny in
the Third Degree in New York, N.Y.Penal L. § 155.30, for which the
statute of limitations is five years. Also, since the Treaty provision refers
to prosecutions time-barred by “the laws of the requested
Party,” (emphasis added), it might be proper to look to federal,
rather than state law, under which the limiting period is one of five years. 18
U.S.C. § 3282. FN23. Article VI, paragraph 3 of the Treaty
provides that extradition shall not be granted “[w]hen the prosecution
or the enforcement of the penalty for the offense … would be barred by
lapse of time according to the laws of the requested Party had the offense been
committed in its territory.” This count also contains charges of a conspiracy to commit a
felony and a conspiracy to defraud. As discussed above with respect to Count
One, a conspiracy to commit a felony is an extraditable offense, while the
conspiracy to defraud fails to meet the requirement that the offense be
punishable by more than three years imprisonment under the laws of both
parties. [FN24] FN24. As to the final charge in the count, of
“concealment with intent to deceive,” Judge Gurfein ruled
that the crime was not an extraditable offense under the category of offenses
listed in the Treaty. Since no proof of the elements of the crime under Israeli
law was offered, we are unable to conclude whether the crime would be
cognizable under another name, and thus Shapiro is not extraditable for that
offense. Count nineteen. The factual recitation in this count relates an
attempt by Shapiro and Blumberg to induce Meir Shatsdrovitski to alter his
explanation as to the destruction of the overdrawn check. According to
Shatsdrovitski’s account, the two accused approached him after the
affair had been discovered and urged him to tell the police that he had destroyed
the check under orders from a superior in his bank. For this Shapiro is charged
with three violations. First, he is charged with the substantive offense of
“giving false information.” While no crime listed in Article
II of the Treaty directly corresponds to a crime of this name, under certain
circumstances such a crime might constitute the listed crimes of
“perjury” or “false swearing.” However, an
essential element of those crimes under the law of New York is that the false
statement be made under oath, N.Y.Penal L. § 210.00(5), and no
allegation of an oath is either expressly or even inferentially made in the
charging papers. The second violation charged, an “attempt to procure
to [sic: “the”] commission of offense,” refers to an
attempt to commit the crime of “giving false information,”
and thus falls for want of a substantive crime cognizable under the laws of New
York. The third violation, “harassment of witnesses,”
is not, even by a liberal reading of the crimes listed, included among the
extraditable crimes contained in Article II. IV. Sufficiency of the Evidence As stated above, our function on review of the dismissal of a
habeas petition [*914] is limited to determining whether the magistrate had
“any” competent evidence to support his finding, Fernandez
v. Phillips, supra, 268 U.S. 311,
45 S.Ct. 541. Here, the petitioner has successfully demonstrated that the
magistrate took an overly restrictive view of the scope of his powers and
failed to examine the sufficiency of the evidence as to each offense charged.
See note 9, supra. Thus, he urges, we should order his discharge unless the
Government seeks a rehearing before the magistrate on the sufficiency of the
evidence in each particular offense. See Application of D’Amico, 185 F.Supp. 925, 931
(S.D. N.Y.1960), appeal dismissed, 286 F.2d 320 (2 Cir. 1961). An examination of the record and of Judge Pollack’s
opinion, however, convinces us that such a “remand” is
unnecessary. While Judge Pollack did not examine each count and the violations
charged therein, he did review the evidence demonstrating the general scheme
pursued by Shapiro and Blumberg and, as shown by his summary of that scheme
quoted above, he credited this evidence to a considerable extent. Since his
view of the general scheme and conspiracy was based on assessment of the
individual instances of fraud, to conclude that a finding of sufficient
evidence as to the whole did not imply a similar finding as to the constituent
parts would needlessly exalt form over substance. [FN25] FN25. With respect to the crime of
“false entry in corporate documents” charged in Count 2, we
have in Part III already made a determination that the record provides no
evidence tending to show that the crime had been committed by Shapiro. Shapiro argues, however, that as to a number of the individual
offenses charged the record does not contain any evidence of his wrongdoing. He
notes that only five of the alleged victims whose statements are recorded
mentioned having had any direct business contacts with Shapiro, and a number of
the others expressly stated that “Shapiro did not speak to me at
all,” or “I did not know Shapiro at all.” As Judge
Pollack noted, however, under New York law a conspirator is liable as an
accomplice or principal for the criminal acts committed by his co-conspirators
in furtherance of the conspiracy, even if he took no part in the actual
culmination. People v. Collins, 234 N.Y. 355, 137 N.E. 753 (1922); cf. Pinkerton
v. United States, 328 U.S. 640,
66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Developments in the Law-Criminal
Conspiracy, 72 Harv.L.Rev. 920, 993-1000 (1959). Since a conspiracy was both
charged and demonstrable, Judge Pollack was entitled to infer that acts
committed by Blumberg seemingly in furtherance of the conspiracy could be imputed
to Shapiro as well. This inference is strengthened by comments by many
(although not all) of the alleged victims that Shapiro was physically present
or nearby during the perpetration of many of the allegedly fraudulent
statements by Blumberg. To summarize and conclude: We find Shapiro to be extraditable to
Israel for prosecution for the following offenses and only for these:
Conspiracy to commit a felony as charged in Count One; deceit under aggravating
circumstances as charged separately in Counts Two through Seventeen; theft and
conspiracy to commit a felony as charged in Count Eighteen. There remains a question how we should give effect to this
determination. The certification to the Secretary of State is made by the
magistrate; the habeas judge cannot alter this but can only release the
petitioner if he finds there is no legal ground for holding him, not at all the
case here. A suitable method of disposition would thus be to modify the order
of the district court here under review to provide for discharge of the
petitioner unless Judge Pollack or some other magistrate designated under 18
U.S.C. § 3184 certifies within thirty days his extraditability in
accordance with this opinion. As so modified the order is affirmed. No costs. |