Petition — Jhirad v. Ferrandina

i ‘

* JUN %4

4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

Miiv1n EpuHraim Jurrap,

Petitioner,

VY.

Tuomas F. Ferranpixna, United States Marshal

Southern District of New York,

Respo ndent.

PETITION FOR WRIT OF CERTIORARI

Epwarp L. Sapowsky

Attorney for Petitioner

100 Park Ave.

New York, New York

(212) 953-1800

Tenzer, GREENBLATT, FaALLon & Kaplan

of Counsel

i976

TABLE OF CONTENTS

PPO POPOL TTT TV TT OTETT UTE T OTE TTe

2200 ee Pa Artery) OO ee een, oie ee

SD UN, ec is cvand heen eeds ceaheaees

PEED -iVuceavekdansdecekendsdeensad cas

Statute of Limitations and Tolling Provision ......

I I a of ei Bae on ot ae

PS GOD GOD bi ek cceccscctedceeasdeces

I I SO aL a ra a te

REASONS FOR GRANTING THE WRIT:

I,

Il.

III.

The Magistrate who heard and decided the lim-

itations issue in the habeas corpus proceeding

had no subject matter jurisdiction and acted in

direct violation of this Court’s decision in

ee Uh CED Ndcuheetewenebausbeueekene

There is a conflict in the circuits and within the

Second Circuit itself respecting the construc-

tion of 18 U.S.C. § 3290 which requires resolu-

ee ee en ND No dekenveusnceeskseuees Gee

The application of the novel doctrine of “Con-

structive Flight” to the interpretation of 18

U.S.C. § 3290, without prior notice to Jhirad,

violated his constitutional guarantee of due

MOND 4500cusnskscincancckseeteenéinskeies

12

ii TABLE OF CONTENTS

PAGE

[V. The Extradition Treaty and the Constitutional

Guarantee of Equal Protection under the Law

required the application of the bevond a reason-

able doubt standard—rather than mere pre-

ponderance of the evidence—to the trial of the

limitations issue in the habeas corpus proceed-

Dt sbasusddbuescusGkn cadibk bekbesecusdecea 19

V. There was no evidence in the record to sustain

the Magistrate's finding that Jhirad decided not

to return to India out of fear of prosecution .. 23

VI. The Magistrate was incorrect as a matter of

law in finding probable cause to hold petitioner

el EN oS oe Laced cued bs nabend éave és 23

VII. The uncontradicted evidence established that

Jhirad was being sought by the Government of

India to punish him for pro-Israel political aec-

tivity, in violation of Article Six of the Ex-

SY I is 6 condat cas neibitesesbeuas 25

SE dil ie a ee ee ee cL une bel <és 28

TasiLe or Cases

American Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18

cheteieccéenheadahesetepk tb 4i¥as6d0-69 11

Bolling v. Sharpe, 347 U.S. 497 (1954) ............ 21

Brouse v. U.S., 68 F, 2d 294 (1st Cir. 1933) ..... 13, 15, 21

Bruce v. Bryan, 136 Fed, 1022 (4th Civ. 1905) ...... 13

Pahler v. United States, 33 F. 2d 383 (%h Cir. 1929) 9 21

Cole v. Arkansas, 333 U.S. 196 (1948) ............. 16

TABLE OF CONTENTS iii

PAGE

Colling v. State, 217 N.W. 87, 116 Neb. 308 ......... 13

Collins y. Loisel, 259 U.S. 309, 317 (1922) .......... 24

Din v. United States, 232 F. 2d 283 (9th Cir. 1956),

ee ee RE SD ae, esdbanvcdbevedeeee 21

Donnell v. U.S., 229 F. 2d 560 (Sth Cir. 1956) ...13, 15, 21

Eaton v. Tulsa, 415 U.S. 697 (1974) .........00.00- 16

Emery v. State, 295 N.W. 417, 188 Neb. 776 ........ 13

Ferebee v. U.S., 295 Fed. 850 (4th Cir. 1924) ...... 13

Fernandez v. Phillips, 268 U.S. 311, 312 (1925) ..... 9

Forthoffer v. Swope, 103 F. 2d 707 (9th Cir. 19389) . .13, 15

Graham v. Richardson, 403 U.S. 365 (1971) ........ 21

Green v. U.S., 188 F. 2d 48 (D.C, Cir. 1951), cert.

se I CRED Seerccececewcccescves 13

Henderson v. Morgan, U. S. Supreme Court, no off.

rep., June 17, 1976, No. 74-1529 ............... 16

In Re Winship, 397 U.S. 358, 363 (1970) ........... 21

King v. U.S., 144 F.2d 729 (8th Cir. 1944) cert.

eh ED x cota ce ues eecuctuegese 12

Louisville & Nashville Ry. v. Mottley, 211 U.S, 149

PR Ci icekaed shen cnndnnes Pitan sd besesssese 11

Mansfield, Coldwater & Lake Michigan Ry. v. Swan,

fe Se & Lf. FPP orTTTT TTT Tiere 11

Matter of Bruce, 132 Fed. 390 (Cir. Ct. Md. 1904)... 18

Matter of Oliver, 333 U.S. 257 (1948) ............. 16

McNutt v. G.M.A.C., 298 U.S. 178, 189 (1936) ...... 11

Mullaney v. Wilbur, 421 U.S. 684 (1975) ........... 21

iv TABLE OF CONTENTS

PAGE

Parnell v. State, 339 So. West 2d 49 (Texas Court of

Crimmal Appeal 1600) o0occsscsesecueesuneuel 24

People v. Cohen, 352 Tll. 380, 182 N.E. 608 (1933) .. 24

People v. Kohut, 30 N.Y. 2d 183 (1972) ............ 21

People v. Reynolds, 214 App. Div. 21, 34-35 (2d Dept.

BOEB) no ccccccccsescecsessuuneeesnunnen nn 24

People v. Von Cseh, 9 A.D. 2d 660 (N.Y. App. Div.,

Firet Dept. 1900) ...ccvccccosuussusueueeeeeee 24

Rabe v. Washington, 405 U.S. 313 (1972) .......... 16

Renner v. Renner, 181 A. 191, 13 N.J. Mis. 749 ...... 13

Sayne v. Shipley, 418 F. 2d 679, 685-686 (Sth Cir.

IDGD) ..ccccccccccccscsesesucecesseeneenennEE 9

Smith v. O'Grady, 312 U.S. 329 (1941) ............. 16

Speiser v. Randall, 357 U.S. 513, 525-526 (1968) .... 21

State v. Estrada, 114 A. 2d 323, 35 N.J. Super. 459... = 13

State v. Fowler, 196 A. BG GES occcvcceccecueaceuns 13

State v. Lem Woon, 107 P. 974, 57 Or. 482 .......... 13

State v. McKenzie, 174 A. 2d 318 ........c cece eeees 13

State v. Miller, 87 S.W. 484, 188 Mo. 370 .......... 13

State v. Washburn, 48 Mo. 240 .......cccccccccccecs 13

State v. Williams, Del. Gen. Sess. 6 A. 2d 299, 6

Terry Gl... vccccccccsecessusuun een nnn 13

Streep v. U.8., 100 USM. 198 (IRS) cs0seeeeeeee 12, 13, 15

Taylor v. State, 292 N.\ 933, 1388 Neb. 156 ........ 13

Tinsley v. Bauer, 271 P. 2c 110 (Calif, 1954) ....... 24

Toussie v. United States, 39. U.S, 112, 114 (1970) .. 18

TABLE OF CONTENTS v

PAGE

United States v. Belimex Corp., 340 F.Supp. 466, 468-

EN poe inb cca theres cc eee oe 00 21

U.S. v. Smith, Conn. 4 Day 121, 27 Fed. Cas.1158 ... 13

Wingo v. Wedding, 418 U.S. 461 (1974) ............ 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .......... 21

STATUTES

EE IEEE OT PEPE EEE 5)

ee cece cane pnesoceceveses 4,19

Te eke eee cneconeucesoesess 5, 7, 20, 23

reer enc dawdedeccseccscoeccces passim

ED secs cc cetcccdecccceccceees 10, 11

eee ecu edchescccévcesoscecesse 3

ieee ee ees cesccccceseecees 3, 6, 7,8

EEE AE 6, 10, 11

OTHER AUTHORITIES

Moore’s Federal Practice, §§ 0.60[4], 12.23 ......... 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

+

Eviszan Epxraim J HIRAD,

Petitioner,

, A

Tuomas E. Ferranpina, United States Marshal

Southern District of New York,

Respondent.

+.

PETITION FOR WRIT OF CERTIORARI

Petitioner Elijah Ephraim Jhirad respectfully requests

this Court to issue a writ of certiorari to review the judg-

ment and opinion of the United States Court of Appeals

for the Second Circuit entered in this international extradi-

tion case on April 12, 1976.

Opinions Below

1. District Court Memorandum and Order Denying

Jhirad’s First Petition for Writ of Habeas Corpus.

355 F. Supp. 1155 (S.D.N.Y. 1973).

2. Magistrate’s Opinion and Decision Following § 3184

Extradition Hearing. Not officially reported.

Docket No. 72 MCA 1214 April 12, 1973.

2

3. District Court Opinion and Order Denying Jhirad’s

Second Petition for Writ of Habeas Corpus.

362 F. Supp. 1057 (S.D.N.Y. 1973).

4. Second Cireuit Court of Appeals Opinion and Order

Reversing Prior District Court Orders and Remand-

ing Case for Further Findings.

486 F. 2d 442 (2d Cir. 1973).

5. District Court Opinion and Order Denying Jhirad’s

Application for Order Barring Further Hearing before

Magistrate and for Pre-Hearing Discovery.

377 F. Supp. 34 (S.D.N.Y. 1974).

6. Magistrate’s Additional Findings on Hearing Follow-

ing Remand.

Not Officially Reported.

Docket Nos. 72 MCA 1214 and 73 Civ. 1630 (KTD)

April 26, 1974.

~]

.

District Court Opinion and Order Denying Jhirad’s

Third Petition for Writ of Habeas Corpus.

401 F. Supp. 1215 (S.D.N.Y. 1975).

8. Second Cirenit Court of Appeals Opinion and Judg-

ment Affirming District Court Orders Following Re-

mand.

F. 2d (2d Cir. 1976).

Docket No. 75-2102 April 12, 1976.

% Second Cireuit Memorandum and Order Denying

Jhirad’s Petition for Rehearing.

F. 2d —— (2d Cir. 1976).

Docket No. 75-2102 May @1, 1976.

The foregoing opinions, memoranda and findings, being

voluminous, are reprinted in a separately bound appendix

submitted simultaneously herewith.

Jurisdiction

The judgment of the Second Cireuit Court of Appeals

was made, entered and filed on April 12, 1976. A timely

petition for rehearing was denied on May @1, 1976. This

petition for certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C. § 1254

(1). The jurisdiction of the courts below was invoked

under 28 U.S.C. § 2241.

Questions Presented

1. Did the United States Magistrate have subject mat-

ter jurisdiction to hear and decide an evidentiary issue

respecting the statute of limitations in petitioner’s habeas

corpus proceeding, despite this Court’s decision in Wingo

v. Wedding.

2. Does 18 U.S.C. § 3290 toll the running of the statute

of limitations whenever the accused is absent from the ju-

risdiction; or is proof of flight with the intention to avoid

prosecution required. (There is a split in the cireuits on

this issue.)

3. Did the lower courts’ application of the concededly

novel doctrine of “constructive flight” to 18 U.S.C. § 3290

—without any prior notice and only after the close of the

trial of the limitations issue—deprive petitioner of his con-

stitutional right to due process of law.

4. Did the extradition treaty and the constitutional

right to equal protection of the laws require the applica-

tion of the beyond a reasonable doubt standard of proof to

the trial of the limitations issue; or was proof by a mere

preponderance of the evidence sufficient.

5. Was there any evidence in the record to sustain the

Magistrate’s finding that petitioner determined not to re-

4

turn to India because of fear of prosecution in mid-Sep-

tember 1966.

6. Did the absence of any evidence either that a portion

of the Naval Prize Fund was missing or that an eligible

recipient had failed to receive his share require the Magis-

trate to find no probable cause for extradition.

7. Did petitioner demonstrate that the Indian request

for his extradition was, in fact, politically motivated and

therefore barred by the extradition treaty itself.

Treaty Provisions

India relies upon the British/American Extradition

Treaty of 1931 (acceded to by Great Britain on behalf of

its tion Colony of India in 1942) and upon an exchange of

diplomatic notes in 1967 between the United States De-

partment of State and the Indian Embassy in Washington,

D.C. confirming the continuing validity of that treaty be-

tween the United States and the Republic of India. Its

provisions being voluminous, the treaty is reproduced in

the separately bound appendix submitted simultaneously

herewith.

Statute of Limitations and Tolling Provision

18 U.S.C. § 3282. Offenses not capital

Exeept as otherwise expressly provided by law, no per-

son shall be prosecuted, tried, or punished for any offense,

not capital, unless the indictment is found or the informa-

tion is instituted within five years next after such offense

shall have been committed.

18 U.S.C. § 3290. Fugitives from justice

No statute of limitations shall extend to any person flee-

ing from justice.

5

Extradition Statutes

18 U.S.C. § 3181. Scope and limitation of chapter

The provisions of this chapter relating to the surrender

of persons who have committed crimes in foreign countries

shall zontinue in force only during the existence of any

treaty of extradition with such foreign government.

18 U.S.C. § 3184. Fugitives from foreign country to

United States

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, or any magis-

trate authorized so to do by a court of the United States,

or any judge of a court of record of general jurisdiction of

any State, may, upon complaint made under oath, charg-

ing any person found within his jurisdiction, with having

committed within the jurisdiction of any such foreign gov-

ernment any of the crimes provided for by such treaty or

convention, issue his warrant for the apprehension of the

person so charged, that he may be brought before such

justice, judge, or magistrate, to the end that the evidence

of criminality may be heard and considered, If, on such

hearing, he deems the evidence sufficient to sustain the

charge under the provisions of the proper treaty or con-

vention, he shall certify the same, together with a copy

of all the testimony taken before him, to the Secretary

of State, that a warrant may issue upon the requisition

of the proper authorities of such foreign government, for

the surrender of such person, according to the stipulations

of the treaty or convention; and he shall issue his warrant

for the commitment of the person so charged to the

proper jail, there to remain until such surrender shall be

made.

Habeas Corpus Statutes

28 U.S.C. § 2241. Power to grant writ

(a) Writs of habeas corpus may be granted by the Su-

preme Court, any justice thereof, the district courts and

any circuit judge within their respective jurisdictions.

The order of a circuit judge shall be entered in the records

of the district court of the district wherein the restraint

complained of is had.

28 U.S.C. § 2243. Issuance of writ; return; hearing

decision

A court, justice or judge entertaining an application for

a writ of habeas corpus shall forthwith award the writ or

issue an order directing the respondent to show cause

why the writ should not be granted, unless it appears from

the application that the applicant or person detained is

not entitled thereto. * * °

The court shall summarily hear and determine the facts,

and dispose of the matter as law and justice require.

Statement of the Case

Petitioner Elijah Ephraim Jhirad—former Judge Ad-

voecate General of the Indian Navy—opposes extradition

proceedings, instituted by the Government of India, on a

charge of misappropriating from a Naval Prize Fund the

rupee equivalent of $1,600 in September, 1961.

Jhirad—an Indian Jew by birth—rose to the highest

civilian post in the Indian Navy in 1947 following dis-

tinguished war time service and admission to the bar at

Great Britain’s Lincoln’s Inn. Following his semi-retire-

ment in 1964—three years after the Prize Fund in question

had been completely distributed—Jhirad continued iis

active international law practice. In July 1966, he left

7

India with his family to attend a World Jewish Congress

in Brussels, to be followed by a business/vacation stay in

Europe. At the invitation of the Israeli Government, he

and his family emigrated to Israel in 1967, becoming a

citizen and Special Adviser to that government on Mari-

time Affairs. (Jhirad is an internationally recognized

scholar on the law of the sea.) In 1971, the Jhirad family

emigrated to the United States, where he is a Managing

Editor for Warren Gorham & Lamont. Jhirad is pres-

ently applying for United States citizenship, having been

a permanent resident for five years.

India first filed its charges against Jhirad, in absentia,

in 1968. India filed its complaint in extradition in the

District Court for the Southern District of New York, in

August 1972, pursuant to the British/American Extradi-

tion Treaty of 1931 (Appendix A and B). In April 1973,

the United States Magistrate, following a hearing pur-

suant to 18 U.S.C. § 3184, found probable cause to hold

Jhirad for extradition on four of the original fifty-two

charges (Appendix D)—the remaining counts being barred

by the Treaty’s application (Article 5, Appendix A, at

page 6a) of the American statute of limitations (18 U.S.C.

§ 3282).°

Jhirad tested both the Magistrate’s jurisdiction and the

validity of his determination by means of petitions for a

writ of habeas corpus, brought before and after the § 3184

hearing, in the District Court pursuant to 28 U.S.C. § 2241.

He took a consolidated appeal to the Second Circuit from

the denial of both writs (Appendix C and E).

The Court of Appeals (Jhirad 1) reversed and remanded

to the District Court for further findings on Jhirad’s intent

in leaving India in July 1966 (Appendix F)—holding (a)

* Later decisions by the District Court and the Court of Ap-

peals barred two more of the charges on the same ground. Ap-

pendix J, at page 92a.

8

that the statute of limitations had run unless the tolling

provision (18 U.S.C. $3290) applied and (b) that that

turned on whether Jhirad had left India for the purpose

of avoiding prosecution.* Over Jhirad’s objection, the Dis-

trict Court directed the Magistrate to hear and determine

this issue (Appendix G).

Following an evidentiary hearing in January 1974, the

Magistrate found (Appendix H) that Jhirad left India

without intention to flee from prosecution; but the Magis-

trate then invented a doctrine of so-called “constructive

flight”, found that Jhirad had decided not to return to

India in “mid-September 1966”, and concluded that the run-

ning of the limitations period had been thereby tolled just

days before it would otherwise have expired—on Septem-

ber 25 and 27, 1961—with respect to the last two charges

outstanding.

Jhirad’s third petition for a writ of habeas corpus to the

District Court—again pursuant to 28 U.S.C. § 2241—hav-

ing been denied (Appendix I), he appealed again to the

Second Circuit. In an utterly inexplicable reversal of its

earlier construction of § 3290, the panel in Jhirad IT held

Jhirad’s innocent motivation in departing from India was

irrelevant and that his mere absence—coupled with his al-

leged decision not to return for fear of prosecution—was

sufficient to trigger the tolling provision. (Appendix J).

Jhirad’s application for rehearing—on the ground (a)

that the hearing and determination by the Magistrate of

an evidentiary issue in the habeas corpus proceeding vio-

lated the jurisdictional requirements of 28 U.S.C. § 2243

and (b) that the invention of the doctrine of “constructive

flight” only after that hearing violated due process require-

* The Jhirad I panel noted that there was a substantial con-

flict in the cireuits on whether § 3290 was triggered by mere ab-

sence from the jurisdiction or whether proof of intent to avoid

prosecution was required. As a result of the decision in Jhirad II,

that conflict still remains.

9

ments—was similarly denied (Appendix L). This peti-

tion followed.

The net result of all of the foregoing is that Jhirad faces

extradition to India to stand trial on a charge of misap-

propriating $1,600 fifteen years ago.* India nonetheless

persists in pursuing this stale and trivial charge. Nor

does it deny that it subjected Jhirad, while in India, to

enormous harassment because of his outspoken defense of

Zionist and Israeli causes at a time when India was a

staunch member of the Arab bloc. Jhirad has therefore

argued from the outset—and urges again in this Court—

that the true motivation of the Government of India in

seeking his extradition still is, in faet, political retribu-

tion—in plain violation of Article 6 of the Treaty upon

which it relies (Appendix A, at page 6a).

REASONS FOR GRANTING THE WRIT

The Magistrate who heard and decided the

limitations issue in the habeas corpus pro-

ceeding had no subject matter jurisdiction

and acted in direct violation of this Court’s

decision in Wingo v. Wedding.

Article 5 of the Treaty (Appendix A, page 6a) provides

that the American statute of limitations is a bar to extradi-

tion. The Magistrate nonetheless held Jhirad for extra-

dition to India; and the latter sought to test the legality

of that detention by petition for the writ of habeas corpus.

Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Sayne v.

Shipley, 418 F. 2d 679, 685-686 (5th Cir. 1969). The Dis-

* India concedes, as it must, that it can only try Jhirad on

precisely those charges on which he is extradited in accordance

with Article 7 of the Treaty. Appendix A, at page 7a.

10

trict Court denied Jhirad’s petition for the writ. The

Court of Appeals reversed and remanded the case for fur-

ther findings of fact respecting the limitations issues raised

by Jhirad in his petition. On the remand, over the objec-

tion of Jhirad, the District Court directed the Magistrate

to hold the evidentiary hearing called for by the Court of

Appeals. (Appendix G, page 70a; 377 F.Supp., at page

37.)

The Magistrate had no subject matter jurisdiction over,

and no authority to conduct, an evidentiary hearing in a

habeas corpus proceeding under 28 U.S.C. § 2243. Wingo v.

Wedding, 418 U.S. 461 (1974).

In Wingo, this Court held that Section 2243 requires evi-

dentiary hearings in habeas corpus proceedings to be held

personally before a federal judge, despite the attempt (in

that case) of a district court to grant that authority to a

United States magistrate pursuant to the court’s rule-mak-

ing power under 28 U.S.C. § 636(b)(3). This court phrased

the issue before it in Wingo as follows:

“The question here is whether Federal Magistrates

are authorized to conduct evidentiary hearings in fed-

eral habeas corpus cases.”

The Second Cireuit Court of Appeals, below, responded

by suggesting (a) that Wingo “arose in the wholly differ-

ent context of a domestic criminal prosecution” and (b)

“revolved around an interpretation of an entirely different

statute ... 28 U.S.C. § 636(b)”.

Wingo, however, arose in precisely the same context as

the case at bar—that is, in a federal habeas corpus pro-

ceeding. That the one proceeding was brought to test the

legality of the detention of the petitioner following state

court criminal proceedings and the other was brought to

test the legality of the detention of the petitioner following

extradition proceedings is a distinction without a differ-

ence. In each case the sole issue was what judicial officer

11

was authorized by law to conduct an evidentiary hearing

within the federal habeas corpus proceeding itself. This

Court, in Wingo, made no exceptions to its flat and un-

equivocal command that 28 U.S.C. § 2243 “requires that the

District Judge personally hold evidentiary hearings in fed-

eral habeas corpus cases... .”

Moreover, Wingo (id not “revolve” around an “interpre-

tation” of § 636(b). This Court simply concluded that that

statute—pursuant to which the district court in Wingo had

sought to proceed—could not and did not override the re-

quirement of § 2243 that the district judge personally hold

the evidentiary hearing. In the instant case, the district

judge did not even purport to act pursuant to authority in

assigning the magistrate the task of holding the eviden-

tiary hearing. The instant case is, therefore, an even more

egregious breach of the Wingo doctrine than was Wingo

itself.

The Court of Appeals suggested that “Jhirad would thus

impose a bifureated structure on international extradition

proceedings. ...” It is not Jhirad that imposes the bifur-

cated structure but rather the Extradition Treaty, which

incorporates the domestic statute, together with the clear

dictate of this Court in Wingo.

The Court of Appeals was incorrect in suggesting that

Jhirad had failed to object to the Magistrate holding the

evidentiary hearing in the habeas corpus proceeding, and

that such objections were non-jurisdictional. Jhirad did

object (Appendix H, at page 74a); but more impor-

tantly, the objection plainly goes to the subject matter ju-

risdiction of the Magistrate; and such objections may be

raised at any time. Moore’s Federal Practice, §§ 0.60[4],

12.23; Mansfield, Coldwater & Lake Michigan Ry. v. Swan,

111 U.S. 379, 382 (1884); Louisville & Nashville Ry. v.

Mottley, 211 U.S. 149 (1908); McNutt v. G.M.A.C., 298

U.S. 178, 189 (1936); American Fire & Cas. Co. vy. Finn,

341 U.S. 6, 17-18 (1951) ; ef. F.R. Civ. P. 12 (h)(3).

12

There is a conflict in the circuits and within

the Second Circuit itself respecting the con-

struction of 18 U.S.C. § 3290 which requires

resolution by this Court.

Jhirad is still being held for extradition to India—on

the last two of the original 52 charges brought against

him—because of the construction and application by the

lower courts of the tolling provision (18 U.S.C. § 3290) to

the running of the five-year limitations period (ineorpo-

rated by reference into the Extradition Treaty). There is

a substantial conflict respecting the proper construction

of that statute not only between the various circuit courts

but between the two panels of the Second Cireuit which

considered Jhirad’s appeals (Jhirad I and Jhirad IT) from

the District Court’s denial of his petition for a writ of

habeas corpus.

Section 3290 of Title 18 provides that:

“No statute of limitations shall extend to any per-

son fleeing from justice.”

The disagreement between the circuits and between the

two panels of the Seeond Cireuit revolves around the

meaning of the word “fleeing”. The issue is whether mere

absence—or staying away—from the jurisdiction is suff-

cient to activate the tolling provision and, thus, stop the

running of the limitations period or whether, on the other

hand, the prosecution is required to present sufficient proof

that the accused left the jurisdiction with the intent of

avoiding prosecution.

In the federal system, the following courts have held

that proof of intent to avoid prosecution at the time of

the accused’s departure from the jurisdiction is required

before the tolling provision is triggered. Streep v. U.S.,

13

160 U.S. 128 (1895); Brouse v. U.S., 68 F. 2d 294 (1st Cir.

1933) ; Forthoffer v. Swope, 103 F. 2d 707 (9th Cir. 1939) ;

Donnell v. U.S., 229 F. 2d 560 (5th Cir. 1956) ; ef. Ferebee

v. U.S., 295 Fed. 850 (4th Cir. 1924).

Similarly, the state courts appear invariably to construe

the phrase “fleeing from justice” as requiring proof of in-

tent to avoid prosecution. State v. Washburn, 48 Mo. 240;

U.S. v. Smith, Conn. 4 Day 121, 27 Fed. Cas. 1158; Colling

v. State, 217 N.W. 87, 116 Neb. 308; State v. Miller, 87

S.W. 484, 188 Mo. 370: State v. Lem Woon, 107 P. 974, 57

Or. 482; Renner v. Renner, 181 A. 191, 13 N.J. Mis. 749;

State v. McKenzie, 174 A. 2d 318; State v. Fowler, 194

A. 2d 558; Taylor v. State, 292 N.W. 233, 138 Neb. 156;

State v. Estrada, 114 A. 2d 323, 35 N.J. Super. 459; State

v. Williams, Del. Gen. Sess. 69 A. 2d 299, 6 Terry 61;

Emery v. State, 295 N.W. 417, 138 Neb. 776.

The following cases have been cited by the courts below

as holding that § 3290 requires no showing of the accused’s

intent in leaving the jurisdiction but only proof of his

mere physical departure. Matter of Bruce, 132 Fed. 390

(Cir. Ct. Md. 1904), aff’d sub nom. Bruce v. Bryan, 136

Fed. 1022 (4th Cir. 1905); King v. U.S., 144 F. 2d 729 (8th

Cir. 1944), cert. den. 324 U.S. 854 (1945); Green v. U.S.

188 F. 2d 48 (D.C. Cir. 1951), cert. den. 341 U.S. 955

(1951).

The Second Cireuit panel in Jhirad I, relying upon

Streep, supra, held squarely that proof of the accused’s

intention to avoid prosecution in leaving che jurisdiction

was required before the tolling provision was triggered.

The Jhirad I panel explained that:

“It does not appear to us to be unreasonable to pro-

vide for tolling of the statute of limitations when a

person leaves the place of his alleged offense to avoid

prosecution or arrest and for not tolling the statute

14

when a person without such purpose of escaping pun-

ishment merely moves openly to another place of resi-

dence.”

On the remand, the Magistrate expressly found that

Jhirad left India in July 1966 ‘‘for the primary and

immediate purpose of attending a World Jewish Confer-

ence in Brussels” and that “he did not leave India for the

immediate purpese of avoiding prosecution. . . .” The

Magistrate then went on to find that Jhirad had deter-

mined net to return to India in mid-September, just days

before tue five-year limitations period was due to expire

on the last two charges presently outstanding against him.

The Magistrate concluded that this determination by

Jhirad not to return was the equivalent of a “constructive

flight” sufficient to trigger the application of the tolling

provision.

The findings and the conclusion of the Magistrate were

affirmed by both the District Court and by the Court of

Appeals.

It is plain that—despite lip service to the decision in

Jhirad -—the panel in Jhirad II has in fact come down on

the side of the line of cases holding that mere absence

from the jurisdiction—without proof that the accused left

for the purpose of avoiding prosecution—is enough to trig-

ger the application of the tolling provision.

The Jhirad II panel affirmed, but then ignored, the

Magistrate's specific finding that Jhirad left India in July,

1966 without intention to flee; the panel said that “the sole

issue being contested was Jhirad’s intent in absenting him-

self from India in August and September 1966”. But no

evidence had ever been submitted by either Jhirad or the

Government of India on that issue. Neither the Magis-

trate, the District Court or the Second Cireuit panel in

Jhirad II was able to point to any event that occurred, or

circumstance that arose, after Jhirad left India which

15

would support a finding that he determined not to return

in September 1966 for fear of prosecution. Without ex-

ception, every fact or circumstance relied upon by the

lower courts occurred or arose prior to Jhirad’s departure

from India in July 1966; and the Magistrate, as affirmed

on appeal, has found those facts and circumstances in-

sufficient to support a finding of flight to avoid prosecu-

tion.

Since the District Court and the Court of Appeals left

undisturbed the Magistrate’s finding that Jhirad’s de-

parture was for innocent motives, the facts and circum- |

stances in the record which oceurred or arose prior to

that departure could not possibly be the basis for a find-

ing that Jhirad decided—a full two months later—not to

return to India for fear of prosecution. This is par-

ticularly so because Jlurad was under no duty to return;

nor had India requested his return. In short, what the

Jhirad II panel plainly did was hold that Jhirad’s mere

leaving the jurisdiction—when coupled with his failure to

return—was sufficient to trigger the application of the

tolling provision.

Indeed, the whole notion of “constructive flight” ap-

plied in Jhirad II is antithetical to the construction of

the statute in Streep, Brouse, Forthoffer, Donnell and

Jhirad I, for, under those cases, the inquiry—and the

extradition proceeding itself—would have come to a halt

the moment the court found Jhirad’s departure free of

motivation to avoid prosecution. But the panel in Jhirad II

looked beyond; and what they found, and relied upon,

was an alleged failure to return—which in the context of

this case is but the other side of the coin of physical

departure—e.g., the mere absence standard.

There is, therefore, a conflict not only between the

circuits on the proper construction of 18 U.S.C. § 3290;

there is a conflict between the two panels of the Second

Cireuit which considered the case at bar. The statute in-

16

volved is one of wide application; and the resolution of

the conflict in the interpretation of that statute may only

be had by this Court granting certiorari to review the

decision below.

The application of the novel doctrine of

“Constructive Flight” to the interpretation

of 18 U.S.C. § 3290, without prior notice to

Jhirad, violated his constitutional guarantee

of due process.

Pursuant to its construction of 18 U.S.C. § 3290, the

Court of Appeals in Jhirad I remanded the case to the

District Court ‘‘to make findings on the issue of intent’’

of Jhirad in leaving India in order to determine whether

or not the running of the limitations period—which other-

wise had concededly expired—had been tolled.

The essential ingredient of due process in the trial of

any issue is adequate notice of the issues to be tried—

particularly where personal liberty is at stake. U.S. Con-

stitution, 5th, Sixth and Fourteenth Amendments; Cole

v. Arkansas, 333 U.S. 196 (1948); Matter of Oliver, 333

U.S. 257 (1948); Smith v. O’Grady, 312 U.S. 329 (1941);

Rabe v. Washington, 405 U.S. 313 (1972); Eaton v. Tulsa,

415 U.S. 697 (1974).

Based upon the opinion in Jhirad I, Jhirad and his

counsel went into the Magistrate’s hearing on the remand

in the belief that the issue on trial was ‘‘the intent of the

appellant in leaving India’’. 486 F.2d, at pages 444-445.

The District Court—prior to the hearing—thought so too.

Appendix G, at page 66a, 377 F.Supp., at page 35.

As a result, both Jhirad and India offered evidence di-

rected only to the issue of Jhirad’s intent in departing

from India in July of 1966. But the Magistrate deter-

mined the application of the tolling provision on a com-

pletely different fact issue—the timing and motivation of

17

Jhirad’s determination months later not to return to India

—an issue which the Magistrate articulated for the first

time only after the hearing was over.

Jhirad was denied due process of law by the failure of

the court to inform him in advance of the hearing what

issues were to be tried. Cf. Henderson v. Morgan, U.S.

Supreme Court, no off. rep., June 17, 1976, No. 74-1529.

The invention of the doctrine of ‘‘constructive flight’’

by the Magistrate only after the close of the hearing on

remand was enormously prejudicial to Jhirad, for the

Magistrate determined the issue based upon a single piece

of testimony he himself elicited from Jhirad while the

latter was on the witness stand. In response to the Magis-

trate’s question respecting Jhirad’s prior trips abroad,

Jhirad responded from recollection—as it later turned out,

incorrectly—that he had ‘‘normally’’ gone abroad for

about a month at a time ‘‘because I couldn’t take more

than that time off when I was with Naval Headquarters’’.

The Magistrate, although expressly finding that Jhirad

left India in July 1966 to attend a World Jewish Confer-

ence and without intent to avoid prosecution, went on to

conclude that Jhirad decided not to return to India ‘‘some-

time in the middle of September’’ 1966 solely because

Jhirad had by that time been away from India longer than

his supposedly ‘‘normal’’ stay. This decision not to re-

turn, said the Magistrate, triggered the tolling provision.

This was a wholly irrational conclusion. First, the

Magistrate simply ignored Jhirad’s testimony that his

prior stays abroad had been limited by the fact that he

was then on active duty in the Navy while, when he left in

July 1966, he was for the first time free of his active Naval

duties and under no necessity to return at any given time.

Second, Jhirad’s recollection on the stand that he normally

had stayed away in prior years for about a month was

simply incorrect. As he demonstrated in his affidavit to

the Second Circuit on his application for reargument, his

18

passports—one of which is in the custody of the District

Court, another in the custody of India, and the third in his

own possession—conclusively demonstrate that he had as

often as not gone abroad in the past for two or three

months at a time. But, ignorant of the issue actually

being tried, Jhirad testified from mere recollection and

had no opportunity to present the true facts.

In short, the Magistrate’s failure to articulate the issue

to be tried in advance of the hearing did not merely

result in a non sequitur in the Magistrate’s reasoning;

it amounted to a trap. The result was critical to Jhirad’s

liberty, for the decision to find Jhirad guilty of “con-

structive flight’’ in mid-September 1966 permitted the

Magistrate—and thereafter the District Court and the

Court of Appeals—to hold that the running of the limi-

tations period (on the last two charges upon which India

seeks extradition) had beeen tolled just days before the

five-year period would have expired on September 25

and September 27, 1966.

Indeed we suggest the very doctrine of “constructive

flight” itself is irrational and a violation of Jhirad’s con-

stitutional right to due process of law. There is concededly

no judicial precedent for the doctrine of “constructive

flight’. We suggest that the following considerations re-

quire a construction of the tolling provision limited to a

determination of the accused's intent in leaving the juris-

diction at the time of his actual departure:

(a) This Court declared in Toussie vy. United States,

397 U.S. 112, 114 (1970), that “criminal limitation stat-

utes are ‘to be liberally interpreted in favor of repose’

[citations omitted].”’ If that clearcut statement of policy

has any meaning at all, it must require that the tolling

provision—which is already a sharp infringement on the

policy of repose—be narrowly construed in favor of the

accused.

19

(b) The lower courts were unable to enunciate a ra-

tional policy argument in support of the creation of this

new legal fiction—‘constructive flight”. This pointless

reaching out beyond the plain meaning of the statutory

language is thus but one more step in the direction of

making the law incomprehensible to the layman and un-

predictable even to the lawyer.

(c) The words of the statute itself—‘fleeing from jus-

tice”—as well as the ordinary dictionary definition of the

verb “to flee’’, clearly refer to the time of departure !»om

the jurisdiction as the only relevant point.

(d) Inherent in the lower courts’ focus on Jhirad’s de-

cision not to return to India is the incorrect assumption

that he was under some obligation to return or, at least

that he had been requested to return and had refused.

But just the opposite is true. He was under no obliga-

tion to return to India at all. Indeed, tne record is clear

that he left with the express permission of the Indian Navy,

the Indian Finance Ministry and the Indian Passport Of-

fice—authority from each of whom was required and

obtained before he traveled abroad. Far from “fleeing’’,

Jhirad was at all times traveling openly on an Indian

passport until 1967 when he emigrated to Israel—well

after the five year limitations period had run. Appendix

H, at pages 77a-78a.

IV.

The Extradition Treaty and the Constitu-

tional Guarantee of Equal Protection under

the Law required the application of the

beyond a reasonable doubt standard—rather

than mere preponderance of the evidence—

to the trial of the limitations issue in the

habeas corpus proceeding.

The District Court, in applying the statute of limitations

(18 U.S.C. § 8282) and the tolling provision (18 U.S.C.

20

§ 3290) in accordance with Article 5 of the Extradition

Treaty was require. to make findings of fact to determine

whether or not Jhirad was a “person fleeing from justice’’—

thus tolling the running of the limitations period. The

Magistrate, however, refused to hold India to the same

burden of proof on this issue as would be required of the

prosecution in a domestic criminal case—thereby depriving

Jhirad (a permanent resident alien) of the due process

and equal protection of the laws guaranteed him by the

United States Constitution.

In holding that Jhirad’s decision not to return to India

amounted to “fleeing” and that this decision was made

in mid-September 1966—just a few days before the limita-

tions period expired—the Magistrate expressly found that

india had failed to prove the relevant facts beyond a

reasonable doubt. The Magistrate then went on to hold

that (1) the applicable standard was proof by a mere

preponderance of the evidence and that (2) India had met

this burden. Appendix H, at pages 78a-79a, S8la. The

District Court and the Court of Appeals concurred.

In so doing, all of the lower courts agreed that the burden

of proof could not be mere probable cause—that being the

standard only on the hearing of “the evidence of crimi-

nality” under 18 U.S.C. § 3184. There, probable cause is

arguably an appropriate standard, for the accused will

presumably receive a plenary trial on those same issues

when he returns to the country requesting extradition. The

factual issues raised by the Treaty’s application of the

American statute of limitations, however, can never be

raised in India but only in the courts of this country.

Conceding that the “probable cause” standard was in-

applicable to the limitations issue, the lower courts none-

theless refused to hold India to the burden of proof which

the prosecution in any domestic criminal case must meet—

21

that is, proof beyond a reasonable doubt. People v. Kohut,

30 N.Y. 2d 183 (1972); see also United States v. Belimex

Corp., 340 F. Supp. 466, 468-469 (S.D.N.Y. 1971); Buhler

v. United States, 33 F. 2d 383 (9th Cir. 1929); Donnell v.

United States, 229 F. 2d 560 (Sth Cir. 1956); Din v. United

States, 232 F. 2d 283 (9th Cir. 1956), cert. den. 352 U.S.

827; Brouse v. United States, 68 F. 2d 294 (1st Cir. 1933).

There is no judicial precedent on this issue in the con-

text of an international extradition proceeding; but we

suggest that the following constitutional and legal prin-

ciples require that the evidentiary burden on India be

proof beyond a reasonable doubt:

(a) Jhirad—a permanent resident alien since 1971 and

a present applicant for United States citizenship—is, of

course, entitled to due process and equal protection of the

laws as guaranteed by the Fifth and Fourteenth Amend-

ments to the United States Constitution to the same extent

as U.S. citivens. Vick Wo v. Hopkins, 118 U.S. 356 (1886) ;

Graham vy. Richardson, 403 U.S. 365 (1971); Bolling v.

Sharpe, 347 U.S. 497 (1954).

(b) Due process requires the application of the beyond

a reasonable doubt standard because the issue being tried

in this habeas proceeding—the application of the statute

of limitations—directly determines whether or not Jhirad

shall have, or shall lose, his liberty. See Jn Re Winship,

397 U.S. 358, 363 (1970); Mullaney v. Wilbur, 421 U.S. 684

(1975); Speiser v. Randall, 357 U.S. 513, 525-526 (1968).

(c) Under Article 5 of the Treaty and the econstitu-

tional guarantee of equal protection of the law, the domes-

tic criminal statute of limitations, together with its con-

comitant burden of proof, must be applied to Jhirad in

exactly the same manner as it is applied in domestic erimi-

nal proceedings, unless there is a rational basis for dis-

tinguishing between Jhirad on this issue and a domestic

22

criminal Gefendant. The very fact which the courts below

conceded—that the issue of limitations can and will only

be tried in this countrv—(unlike the “evidence of erimi-

nality”)—requires the conclusion that there is no differ-

ence between Jhirad on this issue and domestic criminal

defendants. ‘

It is the Treaty itself which imports into the extradition

proceedings a domestic criminal statute. It is the Treaty

itself which gives the accused the opportunity to rely upon

that domestic statute only once in this country, prior to

the actual extradition. It is, therefore, the Treaty itself

which places Jhirad in exactly the same posture on this

issue as a domestic criminal defendant.

(d) The courts below, in essenee, held that use of the

beyond a reasonable doubt standard would be inconvenient

for the Government of India, given the problems of time

and distance involved. We suggest that due process and

equal protection of the laws are principles which do not

recognize inconvenience to the prosecution as relevant.

Indeed, it is these very problems of time and distance—as

measured from the point of view of the individual accused

seeking to exercise his one opportunity to raise the limita-

tions defense awarded him by the Treaty—which militate

in favor of requiring the Government of India to sustain

its burden by proof beyond a reasonable doubt.

(e) The unavoidable effect of the decision of the courts

below is to sanction two different constructions of pre-

cisely the same criminal statute (18 U.S.C. § 3290) de-

pending upon the status of the individual accused—an

abhorrent result which this Court should overturn.

23

V.

There was no evidence in the record to sus-

tain the Magistrate’s finding that Jhirad

decided not to return to India out of fear of

prosecution.

The lower courts determined that the doctrine of ‘‘con-

structive flight’’ triggers the application of 18 U.S.C.

§ 3290 if the accused, having departed the jurisdiction

innocently, (a) determines not to return, and does so, (b)

out of a fear of prosecution. The Magistrate found that

Jhirad had made this decision with this motivation in mid-

September 1966, just days before the limitations period

would otherwise have expired. There was absolutely no

evidence in the record whatsoever of the occurrence of any

event or circumstance after the departure of Jhirad from

India in July 1966—which the Magistrate expressly found

to have been innocent—upon which to base the conclusion

not only that Jhirad decided in mid-September not to re-

turn, but that he did so out of fear of prosecution. Even

assuming, arguendo, that the Magistrate could properly

infer from the length of Jhirad’s stay abroad by mid-

September that he had decided not to return—an infer-

ence that in truth is but the merest speculation—there was

no evidence whatever upon which to base even an inference

respecting the motivation for that decision. Since the

burden of proof—by whatever standard—was concededly

upon the Government of India, the lack of any evidence on

this issue requires the conclusion that the tolling provision

was not triggered and that the limitations period expired.

Vi.

The Magistrate was incorrect as a matter of

law in finding probable cause to hold peti-

tioner for extradition.

At the § 3184 hearing, the Government of India was re-

quired to make out a prima facie case sufficient ‘‘to block

24

out those elements essential to conviction.’’ Collins v.

Loisel, 259 U.S. 309, 317 (1922). The Indian charge sheets,

or indictments, charged Jhirad with the equivalent of em-

bezzlement, alleging that a portion of the Naval Prize

Fund was missing, that Naval personne] entitled to share

in the Fund had not received their portion and that there

were withdrawals from the Fund that matched deposits in

Jhirad’s account. The Magistrate held that India had

failed to prove either that any money was missing or that

an eligible claimant had not received his share; but he

nonetheless found probable cause to hold Jhirad for extra-

dition. That conclusion was incorrect as a matter of law.

29A Corpus Juris Secundum, Embezzlement §§ 11(b), 11

(e); 26 Am. Jur. 2d, Embezzlement, § 39; People v. Rey-

nolds, 214 App. Div. 21, 34-35 (2d Dept. 1925); People v.

Cohen, 352 Ill. 380, 182 N.E. 608 (1933).

Both India and the Magistrate ultimately relied solely

on evidence of deposits into Jhirad’s bank account which,

standing alone, have no evidentiary value whatsoever in

an embezzlement case. Tinsley v. Bauer, 271 P. 2d 110

(Calif. 1954); Parnell v. State, 339 So. West 2d 49 (Texas

Court of Criminal Appeal! 1959); People v. Von Cseh, 9

A.D. 2d 660 (N.Y. App. Div., First Dept. 1959).

In order to try to show a correspondence between the

deposits into Jhirad’s account and prior withdrawals from

the Fund, both India and the Magistrate were forced to

rely solely upon evidence respecting the time-barred

charges. No such correspondence between withdrawals

and deposits exists at all with respect to the two charges

upon which the extradition is based. Reliance by the

Magistrate solely upon evidence respecting the time-barred

charges violated Jhirad’s right to due process.

25

VII.

The uncontradicted evidence established that

Jhirad was being sought by the Government

of India to punish him for pro-l. cael political

activity, in violation of Article Six of the

Extradition Treaty.

The District Court correctly concluded that Article 6

of the Treaty bars extradition for political offenses and

that:

“A fair reading of the Treaty compels the conclusion

that this Treaty creates a prohibition against politi-

eally motivated extradition, and therefore the Magis-

trate properly allowed evidence to be presented on

this issue.”

The Magistrate found that Jhirad was an “outspoken

apostle of the cause of the new nation of Israel” which

was “unpopular” since India “is aligned with the Arab bloc

of nations.”’

Nonetheless, the iagistrate found no political motiva-

tion in India’s actions against Jhirad, even though the

uncontradicted evidence showed that Jhirad was under

surveillance by the Indian Special Police Establishment

because of his public pro-Israel activity, that his telephone

was tapped, his mail was opened, and that he had been

chastized by the Defense Minister, Krishna Menon, for

having negotiated a pro-Israeli International Convention

on the law of the sea.

These elements, coupled with (a) the extraordinarily

flimsy case brought against Jhirad, (b) the length of time

it has taken India to put it together, (¢c) the amount of

money it has obviously expended, and (d) its continued

pursuit of Jhirad even after 50 of the 52 charges against

him have been time-barred, indicate that India’s requisi-

26

tion for Jhirad’s surrender has, in fact, been made with

a view to punish him for an offense of political character.

The Government of India produced not a single shred of

evidence to contradict this evidence; nor did it in any

way attempt to challenge the necessary inferences which

must be drawn therefrom, despite the fact that India has

known since Jhirad’s bail hearing four years ago that

such a defense would be raised.

The utterly sham character of the charges against Jhirad

is highlighted by the fact that India has apparently not

sought to bring either Admiral Katari or P. L. Sharma

to trial, despite the fact that they were co-administrators

of the Naval Prize Fund in question together with Jhirad.

Either one or the other was required to co-sign each of

the withdrawal slips or checks which India relies upon

as proof of Jhirad’s alleged misappropriation. Yet Sharma

remains undisturbed at his post in the Indian Naval Law

Directorate to this day, while the Admiral appears to be

in quiet retirement, undisturbed by the S.P.E.

The charge is embezzlement from a Naval Prize Fund;

yet the case was begun not by the Navy but by the Special

Police Establishment; the case was presented to the

magistrate in India not by the Navy or the Attorney-

General but by the Special Police Establishment; the chief

witness before the Magistrate in the United States District

Court was not from the Navy but from the Special Police

Establishment; and it is clearly the Special Police

Establishment and not the Indian Navy that wishes to re-

turn Jhirad to India.

Moreover, the sheer implausibility of India’s case simply

boggles the imagination. What India alleges, on the

original 52 counts in its charge sheets, is that Jhirad em-

hezzled well over 40 percent of the Fund. And yet—in a

country of such grinding poverty that 100 rupees may be a

year’s income—there is no evidence of any complaint being

27

made by any claimant until nine vears after the Proclama-

tion of the Fund was issued, when a sailor wrote to the

Navy that he would like a share even though he never filed

a claim. The Government of India has been unabie to

locate a single eligible sailor who did not receive his share

of the Fund.

This Court can nardly close its eyes to the fact that,

on October 10, 1975, India voted in the United Nations

in favor of the resolution equating Zionism with racism—

a blatantly anti-Semitic resolution designed, in part, to

question Israel’s right to existence. Nor should this Court

overlook the overwhelming evidence that India, in this past

year and a half, has virtually become a dictatorship, with

the bulk of its traditional political opposition leadership

behind prison walls. Nor should this Court overlook the

statement by the Indian Attorney-General to the Indian

Supreme Court (as reported in a despatch to the New York

Times, April 27, 1976):

“There is no personal rights law for the time being.”

Under these circumstances, Jhirad, a citizen of Israel to

this day (though since 1971 a permanent resident alien of

the United States), will have little chance of obtaining a

fair trial in India. Indeed, the very fact that the Special

Police Establishment is still seeking Jhirad’s return for

trial on charges limited by the Treaty to $1,600 is perhaps

the most practical demonstration that it is not a claimed

embezzlement which stands behin’ India’s request for ex-

tradition. This Court has no reason to assume that the

Government of India, in pursuing Jhirad half way around

the world for a decade, has been acting frivolously. Since

the two charges for which Jhirad may now be extradited

are plainly frivolous—and yet India’s pursuit continues—

there can no longer be any doubt that politieal retribution

is the real reason behind India’s request.

28

On that ground, the Treaty itself bars extradition: and

the writ should issue.

CONCLUSION

For all of the foregoing reasons, a writ of certiorari

should issue to review the opinion and judgment of

the Court of Appeals for the Second Circuit.

Dated: New York, New York, June 24, 1976.

Respectfully submitted,

Epwarp L. Sapowsky

Attorney for Petitioner, Jhirad

100 Park Avenue

New York, New York 10017

(212) 953-1800

Of Counsel:

TENzER, GREENBLATT FaLtton & Kaptan

Herpert TENZER

Leo Guzik

Sracy L. WaLLacH

Mona D. SHaprro