Petition — Markham v. Pitchess

Supreme Court, U. &

JAN % 19809

IN THE AX, JR., CLERR

Supreme Court of the United States :

October Term, 1979

“29-1062

GERALD MARKHAM, aka JERRY J. D. MARKHAM,

Petitioner,

vs.

PETER J. PITCHESS, SHERIFF OF LOS ANGELES COUNTY,

and KENNETH C. KELLEK, COUNSEL GENERAL OF CANADA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAELINE ABATE RE and

VICTOR SHERMAN of

NASATIR, SHERMAN & HIRSCH

9911 West Pico Boulevard

Suite 1000

Los Angeles, California 90035

Telephone - (213) 277-3112

Attorney for Petitioner

Dean-Standefer, 326% Main St, Huntington Beach, Ca. 92648 - (714) 536-7161

i

TOPICAL INDEX

Petition for Writ of Certiorari Page

Petitioner prays that a writ issue to

review the judgment of the United

States Court of Appeals for the

Ninth Circuit

:

:

:

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Opinion Below

Jurisdiction

Question Presented

Whether the date a foreign country

makes an extradition demand

is the date utilized to determine

which treaty to apply, rather

than the date of the crime’s

commission?

OL de trae hr este t we cose

Constitutional Provisions and

Statutes Involved

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Reasons for Granting a Writ

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I There is disagreement between various

i Circuit Courts of Appeals with regard

to whether the treaty between the

United States and Canada, effective

March 22, 1976, is retroactive in appli-

cation

Conclusion

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TABLE OF AUTHORITIES CITED

Cases

Galanis v. Pallanck, 568 F.2d 234

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United States v. Flores, 538 F.2d 939

(PEGE ROPER x «bp ee ewe ed 94% Bis Sigh 8 es

United States v. Galanis, 429 F. Supp. 1215

(D.C. Conn. 1977) bP nnae sk abe oi eee oe

U. S. Treaties and

Treaties and Other International Acts Series

22 U.S.T. 737

Sais TEE GRE TED Kadn's soa hp awe veri

T.LA.S. No. 8237 (1971 - effective

Core | Gre ee eee ee

Canadian Statutes

Canadian Criminal Code

NOE MES. as sa xceltes & hades

Narcotics Control Act

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DN PERO. Vober ys), Gage nes

United States Statutes

28 Ui ED is eee iees ee rare Pee

SO Us GREE GEER ia bn FS EN ERED E LORY

Federal Rules of Civil Procedure

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

BUD» coins

GERALD MARKHAM, aka JERRY J. D. MARKHAM,

Petitioner,

VS.

PETER J. PITCHESS, SHERIFF OF LOS ANGELES COUNTY,

and KENNETH C. KELLER, COUNSEL GENERAL OF CANADA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United States of America:

aie,

The petitioner, GERALD MARKHAM, aka JERRY

J. D. MARKHAM, prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Ninth Circuit, filed August 7, 1979, and its order

denying petition for rehearing and suggestion for rehearing

en banc, filed October 9, 1979, which judgment affirmed

the judgment of the United States District Court for the

Central District of California which denied petitioner

habeas corpus relief pursuant to Title 28 of the United

States Code. Section 2241.

OPINION BELOW

The memorandum opinion of the United States Court

of Appeals for the Ninth Circuit was filed on August 7,

1979. Acopy of that memorandum opinion appears in

the appendix hereto as Appendix “‘A.”’ No opinion was

rendered by the United States District Court for the Central

District of California.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on August 7, 1979. A timely petition

for rehearing and suggestion for rehearing en banc was

denied by order filed October 9, 1979. A copy of that

order appears in the appendix hereto as Appendix “B.”

The Court’s jurisdiction is invoked pursuant to Title 28,

United States Code, Section 1254(1) and Rule 22(2) of

the Federal Rules of Civil Procedure.

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QUESTION PRESENTED

__ Whether the date a foreign country makes an extra-

dition demand is the date utilized to determine which

treaty to apply, rather than the date of the crime’s com-

mission?

CONSTITUTIONAL PROVISIONS

AND

STATUTES INVOLVED

Article 18 of the 1971 treaty of extradition between

the United States and Canada provides, in part:

“(2) This treaty shall terminate and replace

any extradition agreements and provisions on

extradition in any other agreement in force

between the United States and Canada; except

that the crimes listed in such agreements and

committed prior to entry into force of this

treaty, shall be subject to extradition pursuant

to the provisions of such agreements.” (T.I.A.S.

No. 8237.)

STATEMENT OF THE CASE

The petitioner was charged on June 4, 1975 with

violating the following laws of Canada:

(a) Importing hashish, contrary to

Section 5(1) of the Narcotics Control Act;

(b) Possession with intent to traffic

in hashish, contrary to Section 4(2) of the

sili

Narcotics Control Act; and

(c) Conspiracy to import hashish,

contrary to Section 423(1)(b) of the Canadian

Criminal Code.

A trial was set for May 4, 1976, and petitioner and

his co-defendant were released pending hat trial. Peti-

tioner had given the Canadian government both the

Canadian address of a relative and his address within the

United States. Petitioner failed to appear for trial on

May 4, 1976, and a warrant for his arrest was issued.

Petitioner returned to the United States and lived

at the address given to the Canadian government. He

maintained a California Driver’s License. On January 13,

1978, petitioner was issued a traffic violation by the River-

side Sheriff's Department. A record check revealed the

Canadian arrest warrant, precipitating the filing of extra-

dition proceedings. |

On January 13, 1978, United States District Court

Judge Laughlin E. Waters signed a complaint and issued

a warrant for the arrest of petitioner. Petitioner was

released on bond April 29, 1978.

On April 28, 1978, the United States District Court

for the Central District of California, the Honorable Robert

Firth presiding, ordered petitioner extradited. Judge Firth

revoked petitioner’s bond and ordered petitioner remanded

to custody awaiting receipt of the surrender warrant from

the Secretary of State.

On May 10, 1978, petitioner filed a Petition for Writ

of Habeas Corpus. On May 17, 1978, United States District

Judge Robert M. Takasugi set bail and petitioner is presently

at liberty on bond.

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On June 29, 1978, the Honorable Robert J.

Kelleher denied petitioner’s Petition for Writ of

Habeas Corpus. A timely Notice of Appeal was filed

July 3, 1978.

On July 5, 1978, attorney Wilfred Hearn, Assist-

ant United States Attorney and Victor Sherman of Nasatir,

Sherman & Hirsch, attorneys for petitioner, stipulated that

“pending an appeal of the denial of the Petition for Writ

of Habeas Corpus, further proceedings in the matter of

extradition of GERALD MARKHAM, No. CV 78-1802-RJK

are stayed until the Court of Appeals issues a ruling in this

case.” The stipulation was accepted by Judge Kelleher on

July 12, 1978.

On February 12, 1979, the United States Court of

Appeals for the Ninth Circuit dismissed the within appeal

for lack of jurisdiction. The Ninth Circuit Court stated

that “the District Court Judge indicated the later entry

of a formal order when he announced his ruling. There

is no such order.”” The Ninth Circuit Court went on to

add that ‘“‘Counsel, upon causing such an order to be filed,

may renew the appeal by filing a new notice of appeal.”

On March 8, 1979, a new Notice of Appeal was filed

with the United States District Court for the Central Dis-

trict of California. The parties stipulated that the records

and briefs would be transferred to a new number and the

case would be submitted to the same panel on the briefs

previously filed.

On August 7, 1979, the United States Court of Appeals

for the Ninth Circuit affirmed the District Court’s ruling

denying petitioner’s Petition for Writ of Habeas Corpus.

A timely petition for rehearing was filed and denied on

ae

October 9, 1979. On November 14, 1979, the Ninth

Circuit Court of Appeals ordered that the judgment

be filed and spread. On November 26, 1979, petitioner

filed a petition to recall the mandate and stay the man-

date pending the filing of a Writ of Certiorari to the

United States Supreme Court. This petition has not yet

been ruled upon.

REASONS FOR GRANTING A WRIT

I

There Is Disagreement Between Various Circuit

Courts of Appeals With Regard To Whether The

Treaty Between The United States And Canada,

Effective March 22, 1976, Is Retroactive In Ap-

plication.

The United States Court of Appeals for the Ninth

Circuit, by its opinion in this case, establishes a rule

with regard to extradition proceedings that has far-

ranging implications. The court determined that the

date the foreign country makes an extradition demand

is the date utilized to determine which treaty to apply,

rather than the date of either the crime’s commission

or the indictment by the foreign government of the

person for which extradition is sought.

This approach hes been expressly criticized by the

United States Court of Appeals for the Second Circuit

in Galanis v. Pallanck, 568 F.2d 234, 239 (2d Cir. 1977).

Both this case and the Second Circuit case cited

above deal with the treaty between the United States

he

and Canada enacted in 1971 which became effective

on March 22, 1976. Article 18 of this treaty provides,

in part: :

*“(2) This treaty shall terminate and

replace any extradition agreements and

provisions on extradition and any other

agreement in force between the United

States and Canada; except that the crimes

listed in such agreements and committed

prior to entry into force of this treaty shall

be subject to extradition pursuant to the

provisions of such agreements.” (T.1.A.S.

No. 8237.) (Emphasis added.)

The offense petitioner allegedly committed is said

to have occurred on June 3, 1975. In fact, petitioner

was charged on June 4, 1975. Therefore, the extradi-

tion treaty in force at the time the offense was committed

was the previous extradition treaty and not the 1971 treaty.

This is precisely the issue the court dealt with in United

States v. Galanis, 429 F. Supp. 1215 (D.C. Conn. 1977), hold-

ing that where the crime “charged was allegedly committed

prior to the entry into force of the 1971 treaty . . . by the

very terms of the treaty this proceeding is governed by the

previous extradition treaty in force.”

The United States Court of Appeals for the Second

Circuit in Galanis v. Pallanck, supra, reaffirmed this hold-

ing, stating that “the prime objective of the language in

Aritcle 18(2) of the treaty with Canada was to preclude

such ex post facto designations of offenses as extraditable.”

568 F.2d at 238.

The Ninth Circuit, in its opinion in the within case,

ls

has failed to deal with the ex post facto implications

of its present application of law.

In fact, almost identical language in the treaty

between the United States and Spain (22 U.S.T. 737

T.LA.S. 7136 [1971] ) has likewise been interpreted in

United States v. Flores, 538 F.2d 939 (2d Cir. 1976),

to apply the treaty in effect when the offense was com-

mitted.

In United States v. Flores, supra, the defendant

was indicted in the United States in 1973 for conspiracy

to violate the narcotics laws between January 1, 1968

and April 30, 1971. Violations of narcotics laws were

not extraditable offenses under the previous treaty.

The High Court of Spain refused extradition for offenses

committed prior to Spain’s ratification of the new treaty,

stating as follows:

“The defense argument includes the state-

ment that (during the period between January

6, 1968 and April 30, 1971) neither the treaty

of 1904 nor the treaty of 1970, now in force,

was applicable. With respect to the extradition

treaty of May 29, 1970 between Spain and the

United States of America, in force since June

16, 1971, that statement is correct, and there-

fore the objection based on the lack of retro-

active effects of the said treaty is pertinent

and admissible.”

Thus, the attempt at extradition in November of 1973,

after the treaty became effective, would not lie for

offenses prior to ratification of the treaty.

Clearly, the most obvious ramification of the court’s

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opinion is the nullification of any proscription against

ex post facto laws or provisions in any treaty.

The Ninth Circuit interprets Article 18 of the

treaty between the United States and Canada as

applying strictly to those offenses listed in the original

1842 treaty and inapplicable to any offense not listed

in that original treaty. Yet, without a “clause to the

contrary,” treaties are assumed to be retroactive in

application. Thus, the Ninth Circuit Court’s opinion

would allow countries to extradite United States citi-

zens at any time in the future by merely adding an

offense to a new treaty.

It is conceivable that a group of persons could

become subject to extradition based upon a political

whim. This strikes at the very heart of our constitu-

tional prohibition against ex post facto laws. It is

suggested that the issues described herein necessitate

a Clear explanation of this issue by the United States

Supreme Court.

CONCL JSION

This petition presents fundamental issues regard-

ing the application of extradition treaties between the

United States and foreign countries. Currently, the

United States Court of Appeals for the Ninth Circuit

and the United States Court of Appeals for the Second

Circuit are using different standards in applying those

provisions of the treaty of 1971 between the United

States and Canada.

For this reason, it is respectfully requested that a

—- 10—

Writ of Certiorari issue to review the judgment and order

of the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

MICHAELINE ABATE RE

and

VICTOR SHERMAN of

NASATIR, SHERMAN & HIRSCH

Attorneys for Petitioner

oe

“—_"

INDEX TO APPENDIXES

Opinion of the Court of Appeals

for the Ninth Circuit filed

po A SE Oe A ]

Order Denying Petition for Rehear-

ing filed by the Court of Appeals

for the Ninth Circuit on October 9,

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’ APPENDIX “A”

OPINION OF THE COURT BELOW

In the United States Court of Appeals for the Ninth

Circuit.

CA NO. 79-2543

GERALD MARKHAM, aka J. D. MARKHAM,

Petitioner/Appellant, vs. PETER J. PITCHESS,

SHERIFF OF LOS ANGELES COUNTY, and KENNETH

C. KELLER, COUNSEL GENERAL OF CANADA, Respond-

ents/Appellees.

[Filed August 7, 1979]

Appeal from the United States District Court

for the Central District of California.

Before: CHAMBERS, TANG, Circuit Judges, and

TURRENTINE,* District Judge.

TURRENTINE, District Judge:

In 1975, petitioner Markham was arrested in Canada

and charged with importation of hashish oil. Prior to trial,

petitioner fled to the United States. While stopped for a

traffic violation in California during 1978, the existence

of a Canadian arrest warrant was discovered and extradition

procedures were instituted. Markham sought habeas

corpus relief pursuant to Title 28 of the United States Code,

*The Honorable Howard B. Turrentine, United States District Judge for

the Southern District of California, sitting by designation.

Appendix de

section 2241, contending that marijuana trafficking was

not an extraditable offense within the meaning of the

applicable treaty. Markham now appeals denial of

habeas corpus relief.

The Webster-Ashburton Treaty of August 19, 1842,

8 Stat. 572 (1872), as amended, 44 Stat. 2100 (1925),

between the United States and Canada, provides for the

extradition of persons committing “[c] rimes and offenses

against the laws for the suppression of the traffic in

narcotics.” In 1971 the Treaty was amended to specifically

include, in the annexed schedule, marijuana-related crimes,

27 U.S.T. 983, 998,! and the amendment became effective

in 1976. |

Markham argues that this new provision, because

effected after the alleged crime, should not apply. How-

ever, extradition in Markham’s case began in 1978, well

after the effective date of the amendment. This circuit

has focused on the date of extradition demand to determine

what treaty to apply, rather than the date of the crime’s

commission. Cleugh v. Strakosch, 109 F.2d 330, 335

(9th Cir. 1940).? In Galanis v. Pallanck, 568 F.2d 234,

239 (2d Cir. 1977), the Court of Appeals for the Second

Circuit criticized this approach, and relied instead on

1 the Amended Treaty includes

Item number 26 of the Schedule to

“(o] ffenses against the laws relating to the traffic in, production, manu-

facture, or importation of narcotic drugs, Cannabis Sativa L. hallucino-

genic drugs, amphetamines, barbiturates, cocaine and its derivatives.

27 U.S.T. 983, 988 (emphasis added).

2Thus it was held that when an extradition demand followed the effective

date of a treaty, “[i]t [was] immaterial . . . that two of the nineteen

crimes for which appellee’s extradition [was] sought were committed

before [the new treaty was in force.].” 109 F.2d 330, 335.

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Appendix 3.

the date extradition proceedings actually commenced.? Re-

gardless of which view is adopted, it appears that the date

of the crime’s commission, albeit before the effective date

of the newly-amended Treaty, is irrelevant. Because both

the Canadian extradition demand and proceedings followed

the new Treaty, the amendment applies.

Markham further argues that the newly-amended

Treaty, by its own terms, is supplanted by the original

1842 Treaty provisions. The general rule is that “‘extra-

dition treaties, unless they contain a clause to the contrary,

cover offenses committed prior to their conclusion.”

Gallina v. Fraser, 177 F. Supp. 856, 864 (D. Conn. 1959)

aff'd, 278 F.2d 77 (2d Cir.), cert. denied 364 U.S. 85]

(1960) (emphasis added). The 1976 newly-amended

Treaty does contain a “‘clause to the contrary” (Article

18), but this clause is inapplicable to the facts in Markham’s

case. Article 18 provides: o

“(2) This Treaty shall terminate and replace

any extradition agreements and provisions on

extradition in any other agreement in force

between the United States and Canada; except

that the crimes listed in such agreements and

committed prior to entry into force of this

Treaty shall be subject to extradition pursuant

to the provisions of such agreements.” 27 U.S.T.

993, 995 (1976) (emphasis added).

3In Galanis, both the crime’s commission and the Canadian extradition

demand came before the effective date of the amended Treaty. None-

theless, the appellate court concluded that the fact that actual extradition

proceedings began after the amendment was one reason for applying the

new provisions,

Appendix 4.

Petitioner relies on this language for the sweeping

proposition that the amendment is inapplicable to all

crimes committed prior to 1976. However, Article 18

clearly dictates that the 1842 Treaty provisions must

apply only to crimes which were (1) listed in or covered

by that earlier Treaty, and (2) committed prior to 1976.

In the instant case, only the requirement that the crime

be committed prior to the date of the newly-amended

Treaty has been satisfied. Therefore, because marijuana

trafficking is not listed in the original 1842 Treaty, appli-

cation of the newly-amended Treaty is not barred.

Having concluded that the 1976 amendment to

the Webster-Ashburton Treaty does apply, it becomes

unnecessary to consider whether, as Markham suggests,

extradition would be improper under the original Treaty

provisions. The Court has also reviewed petitioner’s

claims that his extradition would violate the Sixth Amend-

ment right to a speedy trial, and the constitutional protec-

tion against discriminatory prosecutions and finds these

contentions lacking in merit.

For the foregoing reasons we affirm the District

Court’s denial of Markham’s petition for relief under

Title 28 of the United States Code, section 2241.

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Appendix APPENDIX “‘B” 5.

ORDER DENYING

PETITION FOR REHEARING

In the United States Court of Appeals for the Ninth

Circuit.

No. 792543.

GERALD MARKHAM, aka J. D. MARKHAM, Peti-

tioner-Appellant, vs. PETER J. PITCHESS, Sheriff of

Los Angeles County, and KENNETH C. KELLER, Counsel

General of Canada, Respondents-Appellees.

[Filed October 9, 1979]

Before: CHAMBERS and TANG, Circuit Judges, and

TURRENTINE, District Judge.

The panel as constituted above has voted to deny the

petition for rehearing. Judge Tang has voted to reject the

suggestion for rehearing en banc and Judges Chambers and

Turrentine have recommended rejection of the same.

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has requested

a vote on the suggestion for rehearing en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

STATE OF CALIFORNIA )

COUNTY OF ORANGE

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, State of California,

over the age of eighteen years and not a party to the within action or proceeding;

that

My business address is 32642 Main Street, Huntington Beach, California 92648,

that on JANUARY Ps 1980, I served the within PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT (Markham vs. Pitchess) on the following named parties by

depositing the designated copies thereof, enclosed in a sealed envelope with

postage thereon fully prepaid, in the United States Post Office in the City of

Huntington Beach, California, addressed to said parties at the addresses as

follows:

Solicitor General of the United States U. S. Court of Appeals

Washington, D. C. 20530 Ninth Circuit

3 copies U. S. Court of Appeals & Courthouse

Seventh & Mission Streets

U. S. Department of Justice San Francisco, California 94101

Washington, D. C. 20530 1 copy

1 Copy

U. S. District Court

United States Attorney Central District of California

Central District of California 312 North Spring Street

312 North Spring Street Los Angeles, California 90012

Los Angeles, California 90012 1 copy

3 copies

I declare under penalty of perjury that the foregoing is true and correct.

a

Executed on J ae 1980, at HUNTINGTON BEACH, CALIFORNIA.

D. A. Standefer

Dean-Standefer, 326% Main Street, Huntington Beach, Ca. 92648

(714) 536-7161

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