Petition — Kember v. United States

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81-2241 PILED

JUN. 3 1982

Ho. eet oa STEVAS,

In THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

JANE KEMBER and

MORRISON BUDLONG,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

RICHARD H. KIRSCHNER, Esq.

RICHARD H. KIRSCHNER,

A Professional Corporation

Fourth Floor

10850 Wilshire Boulevard

Los Angeles, CA 90024

(213) 474-6555

Attorney for Petitioners

JANE KEMBER and

MORRISON BUDLONG

QUESTIONS PRESENTED FOR REVIEW

l. Did the Court err by effec-

tively invalidating Article XII, Anglo-

American Extradition Treaty of 1977,

through an interpretation contrary to

both the explicit language of the

Treaty, and the express view of the

Lord Chief Justice of England relat-

ing to the facts of this case?

(a) Was the admission of

evidence in the District Court,

which the British specifically

rejected as a basis for extra-

dition, a violation of Article

XII of the Treaty?

(b) Did the prosecutor mis-

lead the British court when he

assured it the defendants would

be tried “solely” on second de-

gree District of Columbia burg-

lary charges and thereafter,

during the trial offered evidence

of a massive conspiracy to steal

important Government documents

which he assured the British

Court he would not do?

2. Did the Court violate Article

XII of the Treaty by punishing defen-

dants for non-extradited offenses?

3. Did the Court invalidate the

Treaty by permitting the trial court to

consider facts barred from considera-

tion by the Treaty in determining

whether to divest itself of jurisdic-

tion?

ii.

TOPICAL INDEX

Page

TABLE OF AUTHORITIES v.

OPINION BELOW 1

JURISDICTION 1

STATEMENT OF THE CASE 1

REASONS FOR GRANTING THE WRIT 1l

Article XII of the Anglo-

American Extradition Treaty

of 1977 was Invalidated

When Evidence of "Facts in

Respect of Which" Extradi-

tion was Specifically Denied

Were Introduced Into Evi-

dence 12

Defendants Were Punished

For Non-Extradited Offenses

in Violation of the Treaty 24

The Holding That the Dis-

trict Court Did Not Abuse

Its Discretion By Failing

to Divest Itself of Juris-

diction Ignores the Impact

of the Extradition Treaty

Upon What May Be Consider-

ed a “Legitimate Federal

Concern." 27

CONCLUSION

iii.

APPENDIX

OPINION

United States Court of Appeals

for the District of Columbia Cir.

Filed March 5, 1982

ORDER

United States Court of Appeals

for the District of Columbia Cir.

Filed April 15, 1982

[Rehearing denied.]

ORDER

United States Court of Appeals

for the District of Columbia Cir.

Filed April 15, 1982

[Suggestion for Rehearing en banc

denied. ]

iv.

TABLE OF AUTHORITIES

Cases

Ficconni v. Attorney

General of the United

States

462 F.2d 475 (2nd Cir.

1972)

Foster v. Neilson

27 U.S. 253 (1829)

Johnson v. Browne

205 U.S. 309 (1907)

Regina v. Aubrey-Fletcher,

ex parte Ross-Munro [1968]

No. 1 Q.B. 620

Regina v. Governor of

Pentonville Prison, ex

Budlong [1980]

All.Er. 701

United Mine Workers v.

Gibbs

383 U.S. 715 (1966)

United States v. Flores

538 F.2d 959 (2d Cir.

1976)

United States v. Heldt

__U.S.App.D.C.__,

~_F.2a__ (1981)

United States v. Jackson

562 F.2d 789 (D.C.

Cir. 1977)

Page

22,24

16,17

4 ’ 22-23 ’

19,20,21

United States v. Kember

648 F.2d 1354

(D.C. Cir. 1980) 9-10,30-31

United States v. Rauscher

119 U.S. 407 (1886) 17-a,18,;22

United States v. Sobell

142 F.Supp. 515

(S.D.N.Y¥. 1956),

aff'd, 244 F.2d 520

(24 Cir. 1957),

cert.den., 355 U.S. 873

(1958) 18

Statutes

United States Code

Title 18, Section 371 2

Title 18, Section 641 2

Title 18, Section 1503 2

Title 18, Section 2511

(l)(a) 2

22 District of Columbia

Code, Section 1801 (b) 2

Rules

Rules of Evidence

Rule 801(d) (2) (E) 2l-a

Treaties

Anglo-American Extradition

Treaty of 1935

12 U.S.T. 482 (1936) 13,14,15,24

Anglo-American Extradition 6, 7, 11,12,

Treaty of 1977, . 13,14,15,17,

Article XII (1) 18,19,21,22,

28 U.S.T. 227 23,24,25,26,

T.I.A.S. No. 8468 27,29.

vi.

Canadian-American

Extradition Treaty,

Article xii

20 U.S.T. 983 (1976) 14

Miscellaneous

Extradition Negotiations

{United States/United nee

Minutes (1969)

Geneva Convention,

Article xIII 20

vii.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

JANE KEMBER and

MORRISON BUDLONG,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

RICHARD H. KIRSCHNER, on behalf

of JANE KEMBER and MORRISON BUDLONG,

petitions for a Writ of Certiorari to

review the judgment of the United

States Court of Appeals for the Dis-

trict of Columbia Circuit in this

OPINION BELOW

The opinion of the Court of

Appeals is reported at _U.S.App.

D.C... _ F.2d __—s (March 5, 1982).

JURI ION

The Judgment of the Court of

Appeals affirming the conviction was

entered on March 5, 1982. A Peti-

tion for Rehearing and Suggestion

for Rehearing En Banc was denied on

April 15, 1982; the mandate was

stayed until June 4, 1982.

STATEMENT OF THE CASE

In August 1978, the defendants

and nine other employees of the

Church of Scientology were indicted

in the United States District Court

for the District of Columbia. The

indictment, in 28 counts, charged

the defendants with conspiracy to

burglarize Government offices ard

steal Government documents, 18 USC

371, interception of oral communi-

cations, 18 USC 2511(1) (a), theft

of Government documents, 18 USC

641, obstruction of justice, 18

USC 1503, and second degree burg-

lary, 22 D.C. Code 1801(b).

Kember and Budlong were resid-

ing in England, and the United

States commenced extradition pro-

ceedings requesting the United King-

dom to extradite them on all the

charges. After lengthy extradition

hearings before the Bow Street

Stipendiary Magistrate, Kember and

Budlong were ordered extradited on

only the purely local District of

Columbia charges of second degree

burglary. The Magistrate's

Extradition Order states the defen-

dants were extradited for the crimes

of “burglary as set out in Schedule

A annexed." Schedule A alleges, in

10 counts, that defendants “entered

an office(s]) in the District of

Columbia with intent to steal pro-

perty, i.e., photocopy paper, which

was the property of the United States

of America." During the extradition

proceedings before the Divisional

Court of the Queen's Bench Division

of the High Court of Justice, defen-

dants urged that it was likely that

when extradited they wou 4 be put on

trial and/or punished for something

other than aiding and abetting a bur-

glary of photocopy paper. In address-

ing this contention, Mr. Justice

Griffiths, in an opinion joined by

the Lord Chief Justice of England,

stated,

"rf [the defendants] were osten-

sibly tried for burglary, but in

fact punished for the commission

of a different offense, I should

regard that as flagrant bad

faith."

. f tonville

on ’

During the United Kingdom extradition

proceedings, the prosecutor who was to

handle the case at trial assured the

English court these defendants would

be tried “solely on the burglary covnts

of the indictment." The representa-

tion was made to assuage the English

court and assure the defendants would

not be tried for the non-extradited

offenses of conspiracy to burgle,

stealing Government documents, ob-

struct justice, intercept wire com-

munications, and the other substan-

tive non-extradited offenses charged

in the original indictment.

During the extradition proceed-

ings, the British government was pre-

sented, inter alia, with facts relat-

ing to a conspiracy involving earlier

burglaries i/ and a 1974 "bugging"

incident. The British rejected and

refused extradition on these facts,

finding the only extraditable charges

to be the purely local District of

Columbia second degree burglary

charges. Once the defendants were

extradited to the United States to

stand trial, the Government's true

intention to try the defendants on

all of the charges in the indictment

became apparent:

"These ten burglaries have

been charged as part of a

massive conspiracy against

the United States. The

Burglaries earlier than those

charged in the ten counts upon

which extradition was granted.

“defendants will be tried only on

ten District of Columbia charges,

evidence of the remaining fourteen

United States co-defenses with

which they are charged will be

admissible at their trial. Simi-

larly, in view of the evidence

and the case law, defendants will

be tried on a conspiracy theory."

(Government's Opposition to De-

fendant's Motion for an Order Di-

vesting the Court of Jurisdiction.)

This statement was a harbinger of the

evidence at trial.

The trial court issued an order

which correctly reflected the relation-

ship between the Anglo-American Extra-

dition Treaty and the facts upon which

the defendants could be proceeded

against:

"1. The defendants were extradit-

ed pursuant to the Anglo-American

Extradition Treaty for burglary

upon a finding that there was suf-

ficient evidence of their partici-

pation as aiders and abettors, and

that aiders and abettors are liable

as principals.

"2. There was a deliberate exclu-

sion from the extradition or

of a conspiracy Charge.

ene

"4. Aiding and abetting is a con-

cept distinct from that of conspi-

racy. The essence of aiding and

abetting is participation, while

the essence of conspiracy is agree-

ment.

"5. To allow the Government to

proceed under a conspiracy theory

would contravene the extradition

order which specifically precluded

conspiracy proceedings against the

defendants and would thus violate

the Anglo-American Extradition

Treaty."

(Order, Oct. 21, 1980.)

However, facts relating to the

conspiracy involving earlier burg) aries

and the 1974 interception of wire com-

munications incident were introduced

during the course of the trial. 2/ It

is defendant's contention that evidence

of these facts were "facts in respect

of which" extradition was specifically

rejected by the British and, therefore,

may not be used as a basis to "proceed

Testimony of Michael Meisner and

Exhibits 5, 8-12, 17, 19-25, 37-50,

40-47 .

6-a.

against the defendants,"

Article XII, Anglo-American Extra-

dition Treaty of 1977, provides, in

pertinent part:

"A person shall not be detained

or proceeded against in the ter-

ritory of the requesting party

for any offense other than an

extraditable offense established

by the facts in respect of which

his extradition has been granted

Extradition was granted only for the

purely local burglary charges, Extra-

dition was not granted with respect to

any of the other charges contained in

the indictment. Consequently, intro-

duction of facts relating to the con-

spiracy involving earlier burglaries

and the 1974 bugging incident were

"facts in respect of which" extradi-

tion was specifically rejected, and

therefore could not be used as a basis

to "proceed against the defendants."

Prior to the surrender of the de-

fendants to the custody of the United

States, their nine co-defendants were

convicted of various offenses charged

in the indictment, They appealed, and

the convictions were affirmed, United

States v. Heldt, U.S.App.D.C. , __

F.2d =(1981).

During the trial of defendants,

several of the convicted co-defendants,

who had been subpenaed to testify for

the Government under grants of use im-

munity, refused to testify and were

held in civil contempt by the District

Court. They appealed on the ground, in-

ter alia, that because defendants were

extradited and arraigned only on "lo-

cal" charges, the Court lacked juris-

diction to try them and the Court

therefore had no jurisdiction to compel

the co-defendants’ testimony. The

Appellate Court, in United States v.

Kember, 648 F.2d 1354 (D,.C.Cir, 1980),

held that the District Court had the

power to proceed and therefore the con-

tempt citations were valid, but as to

defendants Kember and Budlong there

was a second question:

",. . ,The subsequent question if

the power to proceed exists [is]

would exercise of that power in

the setting presented, constitute

an abuse of discretion.

"The U.S. District Court for the

District of Columbia should decline

to try local offenses when those

offenses have been disassociated

from any federal charges prior to

trial and retention of the case

would not comport with the ‘'respon-

sibilities of the District Court

with respect to matters of federal

concern,"

The Court further commented:

"Our decision today, therefore,

does not preclude defendants Kem-

ber and Budlong if they are con-

victed, from claiming that

the District Court abused its dis-

cretion by trying them on wholly

local offenses for which they were

extradited, We express no opinion

on that issue, noting only that the

ag uliar oblems of extradition

atts this an atypical case.”

oe & Sis added.)

Hence the jurisdiction issue was

narrowly defined:

"Did the Federal District Court

abuse its discretion when it pro-

ceeded to try appellants Kember

and Budlong solely on the local

charges, their prosecution on the

federal charges and the legitimate

federal concern having been barred

as a resuit of the operation of

the extradition proceedings?"

Thereafter, the defendants were

tried and found guilty on nine counts

of burglary.

During the sentencing process the

District Court, in violation of the

Treaty, considered all of the charges

in the indictment and meted out sen-

tences almost identical to the nine

co-defendants earlier tried and sen-

tenced. 3/

3 The defendants were sentenced to con-

current terms of inpetocement of two

to six years.

10.

REASONS FOR GRANTING THE WRIT

The Appellate Court's decision

means an extraditee from the United

Kingdom may be proceeded against in

the United States on the basis of facts

rejected by the British. The opinion

thus invalidates Article XII of the

Treaty, which states, in pertinent part:

any Fenée established by the

bien bes been grented.°

This language makes it clear that ex-

traditees may not be tried or punished

for facts upon which extradition was re-

jected.

The Appellate Court's opinion also

concludes that an extraditee may be

punished for non-extradited offenses.

Finally, the Appellate Court's

holding that the District Court did not

abuse its discretion by failing to divest

ll.

itself of jurisdiction ignores the im-

pact of the Extradition Treaty on what

may be considered a "legitimate fed-

eral concern."

ARTICLE XII OF THE ANGLO-AMERICAN

EXTRADITION TREATY OF 1977 WAS IN-

VALIDATED WHEN EVIDENCE OF “FACTS

IN RESPECT OF WHICH” EXTRADITION

WAS SPECIFICALLY DENIED WERE IN-

TRODUCED INT) EVIDENCE.

The Anglo-American Extradition

Treaty of 1977, Article XII(1),28 U,S.T.

227,T.1.A.S.No.8468, is part of the law

of the United States and,

"shall be observed and fulfilled

with good faith. . .by the United

States of America and by the citi-

zens of the United States of Amer-

ica and all of the persons subject

to the jurisdiction thereof."

(Proclamation by President Ford,

Nov.17, 1976; see, Foster v. Neil-

son, 27 U.S. 253 (1

The 1977 Treaty provides that a person

may not be “detained or proceeded

against" for any “offense other than an

extraditable offense established by the

12.

facts in respect of which his extradi-

tion has been granted. . ." The plain

meaning of the words is that a defen-

dant may only be tried upon the facts

which the English magistrate found suf-

ficient to warrant extradition. A for-

tiori, facts upon which extradition was

denied may not be used to "proceed

against" them. In interpreting Article

XII of the current Treaty, it is impor-

tant that the language used represents

a significant change from the language

of the previous Anglo-American Extradi-

tion Treaty of 1935, 12 U,.S.T.482 (1936).

In the earlier Treaty, the equivalent

provision to Article XII of the current

Treaty provides, in pertinent part:

"A person surrendered can in no

case be kept in custody or brought

to trial in the territories of the

High Contracting Party to whom the

surrendcr is made for any other

or offenses, or On account

of any ma s, than those

13.

"f which extradition shall have

taken place. . a

It should be noted that Article XII of

the current Treaty also differs from the

comparable provisions in the almost con-

temporaneous Canadian-American Extradi-

tion Treaty which states only:

"A person shall not be detained,

of the requesting state for an of

fense other than that for which

extradition has been granted."

(Article XII, 20 U.S.T.983 (1976)

Thus, the language in the current

Anglo-American Extradition Treaty sets

a more stringent requirement concerning

what the requesting party may do with

regard to the proceedings against the

extraditee, once extradition has been

granted. Such a change cannot be mean-

ingless, Had the United States and the

United Kingdom wished to provide only

the same protection as the 1935 Treaty,

they could have, and surely would have

14,

done so. It follows, therefore, that

_ when interpreting Article XII of the

current Treaty the Court must find that

the law of the United States extends

some greater measure of protection than

it did under the 1935 Treaty.

The British government refused to

extradite defendants for a conspiracy

involving earlier burglaries and the

interception of wire communications in-

volving a 1974 “bugging” incident.

Nevertheless, facts relating to the

earlier burglaries and “bugging" inci-

dent were introduced during the course

of the trial. It is defendants' con-

tention that evidence of these facts

were “facts in respect of which" ex-

tradition was specifically refused by

the British, and, therefore, may not be

used as a basis to “proceed against the

defendants," without invalidating the

15.

the Treaty, The argument is not that

evidence of these facts were not sub-

mitted to the British and therefore

cannot be used during the course of

the United States proceedings, but

rather, these were facts "in respect

of which" extradition was specifically

denied, Neither Regina v. Aubrey~

Fletcher, ex parte Ross-Munro [1968]

No. 1Q.B. 620, nor the Minutes of the

Extradition Negotiations between the

United States and the United Kingdom

held in 1969 address this issue.

In fact, this issue is the con-

verse of that presented in Regina v.

Aubrey-Fletcher, supra. The Aubrey~

Fletcher Court framed the issue in

terms of whether:

"(the person extradited] can be

put in peril of conviction on any

facts other than those put for-

ward to secure his surrender."

Id,, at 626-629,

16.

Our situation relates to facts which

were “put forward to secure [extradi-

tees'] surrender," but which facts were

rejected by the British as a basis for

extradition. Consequently, the con-

cerns which the Aubrey~<Fletcher court

found so alarming are not present in the

instant case. In short, prohibitinc

evidence of facts which were rejected

by the requisitioned state does not in-

terfere with the ordinary procedures and

laws of evidence in the requisitioning

state.

Contrary to the Appellate Court's

assertion, Article XII does not "merely

recognize and apply" the principal of

specialty.

The Anglo-American Extradition

Treaty limits the trial of an accused

to the extradited crimes comprised of

the "facts" for "which, . .extradition

17.

"has been granted." However, at trial

facts relating to the non-extradited

offenses, which facts had been pre-

sented to the British magistrate and

rejected, were admitted into evidence

in the United States.

An accused may be tried only upon

the issues of fact for which extradi-

tion was granted and none other, United

States v. Rauscher, 119 U.S. 407, 421

(1886), Justice Miller speaking succinc-

tly describes the jurisdiction of the

Court when trying the extradited offen-

der:

". . «It is impossible to conceive

of the exercise of jurisdiction in

such a case for any other purpose

than that mentioned in the Treaty,

and ascertained by the proceedings

under which the party is extradit-

ed without an implication of fraud

upon the rights of the party ex-

tradited, and of bad faith to the

country which permitted his extra-

dition."

Rules of Evidence may not be used to

17-a.

circumvent the clear mandate of the

Treaty. The Government may not do in-

directly what it is prohibited from do-

ing directly. In a manner of speaking,

the Extradition Treaty prohibits the

admission of evidence relating to other

crimes, wrongs or acts, since a person

may not be “proceeded against" for any

offense other than the extradited of-

fense established by the facts in re-

spect of which his extradition has been

granted. If the United States acts in

violation of the Treaty, which it has

done in the case at bar, "the courts

will find themselves without jurisdic-

tion over the defendant." United

States v. Rauscher, supra; United

States v 11, 142 F.Supp.515, 524

(S.D.N.¥. 1956), aff'd, 244 F.2a 520

(2a Cir. 1957), cert.den., 355 U.S.

873 (1958).

18.

The language of Article XII of the

1977 Treaty makes it clear that defen-

dants may not be tried or punished bas-

ed upon facts which extradition was re-

jected, The foregoing Treaty provision

must he construed with the "highest good

faith" not only in relation to the par-

ties of the Treaty, but also as to the

defendants who are, in essence, third

party beneficiaries of the arrangement.

Johnson v. Browne, 205 U.S. 309, 321

(1907).

United States v. Flores, 538 F.2d

959 (24 Cir. 1976), is inapposite. In

that case, the Court held the doctrine

of specialty "has never been construed

to permit foreign intrusion into the

evidentiary procedural rules of the re-

quisitioning state. . ." (538 F.2d at

944). In Flores, the defendant was ex-

tradited from Spain for conspiracy to

19.

sell narcotics, The Spanish High Court

limited extradition to "acts committed

between September 3, 1970, and April 30,

1977, excluding any previous or subse-

quent acts," (Id., at 942) The Second

Circuit upheld the trial judge's deci-

sion to permit evidence of a conspiracy

prior and subsequent to those dates, on

its interpretation of the specialty doc-

trine and on the fact that Flores was

extradited pursuant to the "Geneva Con-

vention," Article XIII of which states;

"Nothing in the present Article

shall be construed as an undez~

taking on the part of the high

contracting parties to adopt in

criminal matters any form or

method of proof contrary to their

laws."

Id., at 945.

The Appellate Court's reliance on Flores

is misplaced. First, the extradition of

defendants was not granted pursuant to

the "Geneva Convention," but pursuant to

20.

the Anglo-American Extradition Treaty

which contains very different language

from that quoted in Flores. The latter

Treaty specifically states that defen-

dants may not be “detained or proceeded

against” for any offense other than an

extraditable offense established by the

facts in respect of which his extradi-

tion has been granted. The plain mean-

ing of the words is that defendants may

only be tried upon the facts which the

English magistrate found sufficient to

warrant their extradition and not facts

which he rejected. A fortiori, the

facts upon which the extradition was

denied, i.e., the earlier conspiracy to

burgle and the earlier bugging incident

may not be used to "proceed against"

them. Defendants may not be tried on

them. Nor may they be "proceeded

against" for those other extradition-

21.

rejected crimes.

Thus, the argument is not that the

Government may not use Rule 801(d) (2) (E)

to introduce evidence to support the

facts with respect of which extradition

was granted, but that the Government may

not use a rule of evidence to expand the

scope of facts upon which the defendants

may be “detained or proceeded against,”

For this would be permitting the Govern-

ment to do indirectly what it cannot do

directly and reduce the protections the

Treaty provides to a mere sham and mock-

ery. It would make meaningless the

limitation of the Court's jurisdiction

imposed by the Treaty.

Placing aside the language of the

current Treaty, even under the doctrine

of specialty, which enables the asylum

state to specify (only) the crimes upon

which the court of the requesting

2l1-a.

country may proceed, added credence is

given to the kind of limitation contain-

ed in the current Anglo-American Extra~-

dition Treaty. In Ficconni v, Attorney

General of the U.S., 462 F.2d 475 (2d

Cir, 1972), the court held the defen-

dants were properly tried on a supersed-

ing indictment filed after extradition

from Italy which specified charges dif-

ferent from those presented for extra-

dition. The Court said the principal

inquiry under the doctrine of specialty,

as interpreted by United States v,

Rauscher, supra, was whether the re-

quested Government would regard such

prosecution as a breach of faith.

In the instant case, the Lord

Chief Justice of England stated that:

"If [the defendants] were vusten-

sibly tried for burglary, but in

fact punished for the commission

of a different offense, I should

regard that as flagrant bad faith.”

22.

Regina v. Governor of Pentonville

son, ex parte ong, Supra.

This statement is surely evidence that

the requested Government would consider

any attempt to use procedural rules to

evade the meaning of their extradition

order and the Anglo-American Extradition

Treaty as a breach of faith. The doc-

trine of specialty is not controlling

here since it is not only the undertak-

ing of the United States Government in

the English court, Regina v. Governor

of Pentonville Prison, supra, which

would be violated, but the Treaty,

which is the law of the United States

and which limits the power of the

courts, Still, the question which

arises under the doctrine is relevant

because it relates to the question of

the sort of actions the prosecution may

take after extradition. The question

23.

to be asked under the doctrine, Ficcon-

ni, supra, and the answer to be provided

by the Lord Chief Justice of England

show that the interpretation of the lan-

guage of Article XII advanced by defen-

dants is thoroughly consistent with the

doctrine. The limitation defendants

seek on evidence that may be used at

trial is one to which the United States

agreed in the Treaty, more comprehensive

than the limitation in the earlier

Treaty of 1935. The limitation is not

one, it must be emphasized, on the Rules

of Evidence or the procedure by which

evidence may be admitted. Rather, it

is a substantive limitation on the facts

which may be used to try defendants.

B. DEFENDANTS WERE PUNISHED FOR NON-

EXTRADITED OFFENSES IN VIOLATION

OF THE TREATY.

The Treaty specifically prohibits

24.

these defendants from being punished for

any crime other than the one for which

they were extradited, i.e., second de-

gree burglary. Article XII states:

"A person shall not be detained

- « «for any offense other than

the extraditable offense. . ."

considered and we submit should [sic]

"this Court has personally experi-

enced review in which it has been

indicated that consideration ought

to be given, to what are compar-

able centences meted out by other

judges sitting in this very Court,

The District Court thereafter meted

out sentences almost identical to the

nine co-defendants earlier tried and

sentenced.

Likewise, the Probation Department

for the District Court of the District

of Columbia, in violation of the Treaty,

did not limit itself to a consideration

of the charges for which the defendants

were extradited when recommending its

sentence guidelines. In fact, sentenc-

ing recommendations and guidelines of

the Probation Department took into ac-

count the entire panoply of facts and

26.

allegations contained in the unexpur-

gated indictment and elsewhere. In the

words of the highest court in England,

". . ,if [the defendants] were os-

tensibly tried for burglary, but in

fact punished for the commission of

a different offense, I should re-

gard that as flagrant bad faith."

pegine v. Governor o le

son, sup . as s .

The Lord Chief Justice's fears became

reality when the trial court improperly

imposed sentence and thus violated the

Treaty.

C. | THE HOLDING THAT THE DISTRICT COURT

DID NOT ABUSE ITS DISCRETION BY

FAILING TO DIVEST ITSELF OF JURIS-

DICTION IGNORES THE IMPACT OF THE

EXTRADITION TREATY UPON WHAT MAY

BE CONSIDERED A “LEGITIMATE FEDERAL

CONCERN."

Defendants urged the District Court

to decline to try local offenses (i.e.,

second degree burglary charges) when

those offenses had been disassociated

from any federal charges prior to trial

and retention of the case would not

27.

comport with the responsibilities of

the District Court with respect to mate

ters of legitimate federal concern. In

United Mine Workers v. Gibbs, 383 U.S,

715 (1966), this Court held that federal

courts should decline to exercise juris-

dictional power in favor of local courts

if such exercise opposes "considerations

of judicial economy, convenience and

fairness to litigants,

In upholding the lower court's ex-

ercise of jurisdiction in this unique

case, it was held:

"The defendants contend that the

District Court abused its discre-

tion because any matters of fed-

eral concern in this case are of

a trivial nature and do not jus-

tify retention of the case in

federal court. We cannot agree.

The defendants were tried for il-

legally entering the United States

Government Offices with intent to

steal property owned by the United

States... These violations of the

District of Columbia Code were of-

fenses against the United States,

prosecuted in the name of the

"United States and were of unique

concern to the United States. Tcit-

ations omitted.]" (At p. 7.)

The limitations imposed in this

"atypical" case, by virtue of the Extra-

dition Treaty block the valid assertion

of a legitimate federal concern in the

instant second degree burglary charges,

The legitimate federal concern lies in

the non-extradited "massive conspiracies

against the United States” to enter

Government offices surreptitiously and

steal sensitive Government documents.

By virtue of the Treaty restrictions,

i.e., burglary with intent to steal pho-

tocopy paper, the District Court should

not have considered the non-extradited

offenses which provide the only legiti-

mate basis for federal concern.

Although the charges in the instant

prosecution involved burglaries committ-

ed with intent to steal Government

29.

property, i.e., photocopy paper, which

surely would be of minimal concern to

the United States, this does not ipso

facto mean that the criminal law con-

tained in the United States Code is ap-

plicable. In fact, it is not, and that

is precisely the reason that the feder-

al government .hose to charge the burg-

lary offenses as local District of Cole

umbia crimes, The Appellate Court has

twice ruled, in United States v. Jackson,

562 F.2d 789 (D.C.Cir,1977), and United

States v. Kember, 648 F.2d 1354 (D.C.

Cir. 1980), that the U.S. District Court

for the District of Columbia should de-

cline to try local offenses when those

offenses have been disassociated from

federal charges prior to trial, and re-

tention of the case would not comport

“with the responsibilities of the Dis-

trict Court with respect to matters of

30.

legitimate federal concern." (Id., at

1355.)

Federal concern surely must relate

to matters of substance and not trivial-

ities. The defendants were not extra-

dited for burglaries with intent to

steal valuable information or secrets

from the Government. Rather, the Bow

Street Magistrate's Court extradited the

defendants for the crimes of burglary

with intent to steal photocopy paper.

Photocopy paper, as opposed to what may

be contained on it, is trivial. The

substantial federal concern is the var-

ious conspiracies alleging burglary and

theft of important Government property,

This substantial federal concern cannot

be considered because this is an “atypi-

cal" case by virtue of the Anglo-Ameri-

can Extradition Treaty, which limited

extradition for second degree burglary

31.

for the purpose of "stealing photocopy

paper." The concern of stealing photo-

copy paper can only be a stalking horse

for Treaty-barred substantial federal

concerns.

Likewise, retention of this case by

the District Court opposed considerations

of judicial economy, convenience and fair-

ness to litigants. The Appellate Court's

statements concerning these issues are

based on sheer speculation and ignore the

uncontested factual statements set forth

in defendant's Petition for Rehearing.

CONCLUSION

For the foregoing reasons, it is

respectfully requested this Petition be

tor Petitioners JANE KEGSR

and MORRISON BUDLONG

32.

Appeals from the United States District Court

for the District of Columbia

(D.C. Criminal No, 78-00401

Argued September 21, 1981 | Judgment entered

Decided March 5, 1982 | qwtis date

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Kember, 487 F. Supp. 1340 (D.D.C.

1980). The defendants also moved to suppress documen-

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offices of Scientology in Los Angeles. This motion was

denied upon the ground that Kember and Budlong had

failed to demonstrate a legitimate expectation of privacy

in the premises searched. Thereafter the defendants went

to trial before a jury.

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