# Petition — Kember v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0130%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 832 ## Text Office - Su Court, U.S. 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, i. 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 A. 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 ’ 27 19,20,21 30 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 1. 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 2. 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, 3. 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. 4. 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 2 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." Te 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 8. 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." A. 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~