Appendix — Austin v. Healy

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1996—August Term, 1992

(Argued: July 14, 1993 Decided: September 21, 1993)

Docket No. 93-2308

MICHAEL AUSTIN,

Petitioner-A ppellant,

—vVv.—

CHARLES HEALEY, United States Marshal

for the Eastern District of New York,

Respondent-A ppellee.

Before:

MAHONEY, MCLAUGHLIN and Jacops,

Circuit Judges.

VICTORIA TOENSING, Washington, DC (Joseph E.

diGenova, Steven L. Zelinger, Suzanne M. Dobhrer,

Manatt, Phelps & Phillips, Washington, DC, of counsel),

for Petitioner-A ppellant.

CHARLES E. Rose, Assistant United States Attorney,

Eastern District of NY (Barbara Underwood, Chief As-

sistant United States Attorney, Eastern District of New

York, Peter A. Norling, David C. James, Assistant United

States Attorneys, of counsel), for Respondent-A ppellee.

McLAuUGHLIN, Circuit Judge:

Petitioner Michael Austin appeals from a judgment

entered in the United States District Court for the Eastern

District of New York (Edward R. Korman, J.) denying

his petition for a writ of habeas corpus. By his petition,

Austin sought review of the order of the extradition mag-

istrate (Zachary M. Carter, M.J.) certifying his extra-

ditability to the United Kingdom to face murder charges.

In this appeal, Austin’s principal challenge is to the

jurisdiction of the extradition magistrate. He attacks a

local court rule that automatically assigns extradition pro-

ceedings to magistrate judges. Austin reads the extradition

statute, 18 U.S.C. § 3184 (Supp. 1992), to require that

an Article III judge personally assign a magistrate to a

particular extradition matter, and thereafter retain super-

visory authority over the case. Alternatively, he argues

that the automatic designation of magistrates to conduct

extradition proceedings violates “Article III of the Con-

stitution.

Finding no infirmity in the procedure of the district

court, or in the proceedings below, we affirm.

BACKGROUND

On March 5, 1992, two unidentified assailants assas-

sinated David George Wilson, a British accountant and

commodities broker, in his garage in Lancashire, England.

According to British authorities, Wilson’s murder stemmed

from his involvement with Austin and others in an inter-

national investment fraud scheme. At the extradition

hearing, the government provided the following account

of the events leading up to the British government’s re-

quest for Austin’s extradition.

Posing as a Mexican Army colonel, Austin represented

that he had influence with the Mexican government and

had access to a large supply of Marlboro cigarettes man-

ufactured in Mexico. Austin engaged Wilson to line up

ee eee

— ss

ee ee ee

European investors for the cigarettes, which were to be

shipped from the United States. The investors were asked

to open letters of credit in Austin’s favor when the ship

set sail for Europe. The cigarettes, however, never

existed; Austin’s plan was to have the ship scuttled while

at sea and to abscond with the investors’ money.

Repeated shipping delays made some investors suspi-

cious and they asked the Dutch and British authorities to

investigate Austin. Upon information provided by the

Dutch, the British arrested Wilson and questioned him

about his role in the scam. After he was released, Wilson

admitted to Austin that he was cooperating with the

police.

His plan unraveling, Austin decided that Wilson knew

too much and had to be eliminated. By telephone and fax

from his office in New York City, Austin arranged for

extensive surveillance of Wilson in the days immediately

preceding the killing. Austin also told other business asso-

ciates that he intended to hire assassins to kill Wilson

because Wilson owed him money and because Wilson was

cooperating with the police. After Wilson’s murder,

Austin became a suspect in the murder investigation in

England.

On April 1, 1992, the Magistrate’s Court at Lanca-

shire issued a warrant for Austin’s arrest on the charge of

conspiracy to murder Wilson.’ Because Austin was still

in the United States, the United Kingdom requested

Austin’s provisional arrest by diplomatic note to the State

Department for purposes of extradition. On behalf of the

British government, the United States Marshal filed a

complaint in the Eastern District seeking Austin’s provi-

sional arrest.

Pursuant to an Eastern District local court rule, the

matter of Austin’s extradition was assigned directly to a

1On August 27, 1992, the Magistrate’s Court issued a second

arrest warrant, adding the substantive crime of murder.

magistrate judge. See Rule 9 of the Rules for Magistrate

Judges, United States District Courts for the Eastern and

Southern Districts of New York (“Rule 9”).° Based upon

the Marshal’s complaint, the diplomatic note and the

British arrest warrant, Magistrate Judge A. Simon Chrein

issued the provisional arrest warrant on April 3, 1992.

Austin was then arrested in New York City on July 15,

1992.

The following January, an extradition hearing was con-

ducted before Magistrate Judge Zachary W. Carter (the

“extradition magistrate”). Relying primarily upon docu-

ments and affidavits from England, the extradition mag-

istrate concluded that there was probable cause to believe

Austin committed the crimes charged. Accordingly, in an

order dated January 29, 1993, he certified Austin’s extra-

ditability to the United Kingdom.

On March 2, 1993, Austin filed the present petition for

a writ of habeas corpus in the district court, challenging

the order of extraditability. Austin argued that: (1) the

admission of multiple layers of hearsay during the extra-

dition hearing violated the Due Process Clause and the

extradition treaty; (2) the evidence was insufficient to

support a finding of probable cause; and (3) the extradi-

tion magistrate erred when he denied certain requests for

discovery. Notably, Austin did not attack Rule 9. In a

written decision, the district court rejected each of

Austin’s three contentions and denied Austin’s petition.

Austin now appeals.

DISCUSSION

“Extradition is the process by which a person charged

with or convicted of a crime under the law of one state is

arrested in another state and returned for trial and pun-

2 Rule 9 provides: “Pursuant to 18 U.S.C. Sec. 3184 magistrates

are empowered to issue warrants for the apprehension of persons

and conduct hearings and consider the evidence in the extradition

proceedings referred to therein.”

ishment.” Restatement (Third) of the Foreign Relations

Law of the United States § 474, at 556-57 (1987).

Extradition is primarily a function of the executive branch,

and the judiciary has no greater role than that mandated

by the Constitution, or granted to the judiciary by Con-

gress. See Martin v. Warden, Atlanta Pen., 993 F.2d 824,

828-29 (11th Cir. 1993).

Accordingly, on appeal from the denial of habeas cor-

pus in extradition proceedings, the scope of our review is

quite limited. We consider only: (1) whether the judicial

officer who conducted the extradition proceedings had

jurisdiction; (2) whether the offense charged is extra-

ditable under the terms of the treaty; and (3) whether

there was sufficient evidence to support the finding of

probable cause to extradite. See Fernandez v. Phillips,

268 U.S. 311, 312 (1925); Ahmad v. Wigen, 910 F.2d

1063, 1064 (2d Cir. 1990). Austin concedes that mur-

der and conspiracy to murder are extraditable offenses

under the treaty. Accordingly, we address only the magis-

trate’s jurisdiction and the sufficiency of the evidence.

I. Jurisdiction of the Extradition Magistrate

Austin’s primary argument on appeal is that the extra-

dition magistrate lacked jurisdiction. In support of this

position, Austin contends that: (1) Rule 9’s automatic

designation of magistrate judges to conduct extradition

proceedings contravenes the relevant extradition statute,

18 U.S.C. § 3184; and (2) Rule 9’s automatic designation

violates Article III of the Constitution. Because he now

believes that these too affect jurisdiction, he adds claims

that: (3) the Marshal’s complaint failed to adequately

apprise Austin of the charges against him; and (4) there

was no probable cause to support his provisional arrest.

At the outset, we emphasize that Austin raises his four

“jurisdictional” arguments for the first time in this appeal,

despite the general rule that “a federal appellate court

does not consider an issue not passed upon below.” Sin-

gleton v. Wulff, 428 U.S. 106, 120 (1976). Because this

ei et

rule is one of prudence (and does not limit our jurisdic-

tion), however, we retain considerable discretion to decide

questions not raised initially in the district court. See

Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 56 (2d

Cir. 1992).

We see no reason to depart from the general rule of for-

feiture with respect to Austin’s third argument that the

complaint was inadequate and his fourth, that his provi-

sional arrest was illegal. Although he stipples his briefs

with references to “subject matter jurisdiction,” neither

claim affects the extradition court’s jurisdiction, see /n re

Adutt, 55 F. 376, 379 (C.C. Ill. 1893) (defect in extradi-

tion complaint is “not a matter going to the jurisdiction of

the [magistrate] to entertain the complaint”); Sewell v.

United States, 406 F.2d 1289, 1292 (8th Cir. 1969)

(challenge to arrest without probable cause was waivable

defect going only to personal jurisdiction), which is con-

ferred by section 3184 and Rule 9. See In re Demjanjuk,

603 F.Supp. 1468, 1469 (N.D. Ohio), appeal dismissed,

762 F.2d 1012 (6th Cir. 1985); In re Extradition of

Singh, Nos. 87-6160G-01, 87-6161G-01, 1988 WL 151438

(D.N.J. Feb. 17, 1988). Accordingly, we decline to con-

‘sider them at this late hour. See Jhirad v. Ferrandina,

536 F.2d 478, 486 (2d Cir.) (“Non-jurisdictional objec-

tions must, of course, be timely raised or they are waived.”’),

cert. denied, 429 U.S. 833 (1976).

We distinguish, however, Austin’s first and second con-

tentions, his statutory and constitutional challenges. These

claims raise purely legal issues, see, e.g., Roosevelt v. EJ.

Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5

(D.C. Cir. 1992), the resolution of which may affect “the

proper administration of judicial business.” Glidden Co. v.

Zdanok, 370 U.S. 530, 536 (1962) (plurality opinion).

Moreover, because Austin’s second claim, the constitu-

tional argument, implicates the balance struck by our

Constitution among the three branches of government,

notions of forfeiture or waiver “cannot be dispositive.”

Commodity Futures Trading Comm'n v. Schor, 478 US.

833, 851 (1986). Accordingly, we will exercise our dis-

cretion to address these two questions, despite Austin’s

failure to raise them in the district court.

A. Rule 9 and the Extradition Statute

Austin argues that Rule 9’s automatic relegation of

extradition to a magistrate judge contravenes 18 U.S.C.

§ 3184. Section 3184 provides that magistrates may con-

duct extradition proceedings if “authorized so to do by a

court of the United States.” Austin reads this statutory

langauge * to require a specific delegation of authority to

a magistrate by a district judge for each extradition mat-

ter. Accordingly, Austin maintains, Rule 9’s omnibus des-

ignation violates the statute. We find it incomprehensible

that if a statute authorizes a court to delegate responsi-

bility, it cannot do so as a corporate body (by rule) and

must act only through individual judges on a case-by-case

basis.

Austin directs our attention to the Federal Magistrates

Act. Even though “extradition” is not expressly referred

to in the Act, Austin posits that an extradition proceeding

is a “hearing” authorized under section 636(b)(1)(B)

8 In relevant part, the statute reads:

Whenever there is a treaty or convention for extradition be-

tween the United States and any foreign government, any

justice or judge of the United States, or any magistrate au-

thorized 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, charging any person

found within his jurisdiction, with having committed within

the jurisdiction of any such foreign government any of the

crimes provided for by such treaty or convention, issue his

warrant for the apprehension of the person so charged, that he

may be brought before such justice, judge, or magistrate, to

the end that the evidence of criminality may be heard and

considered.

18 U.S.C. § 3184.

of the Act. 28 U.S.C. § 636(b)(1)(B) (1988). That

section, Austin continues, requires a special delegation of

authority to a magistrate, and provides for de novo review

by the district judge. We reject Austin’s statutory argu-

ment for two reasons.

Section 3184 speaks of authorization by a “court.” 28

U.S.C. § 636(b)(1)(B), by contrast, refers to designation

by “a judge.” Hence, on its face section 3184 does not

support a requirement of special delegation. See Ward v.

Rutherford, 921 F.2d 286 (D.C. Cir. 1990) (by its “plain

meaning,” similar D.C. local court rule provided the

“authoriz[ation]” contemplated by section 3184), cert.

dismissed, 111 S. Ct. 2844 (1991). Cf. Grin v. Shine, 187

U.S. 181, 186 (1902) (“we are not bound to import words

into [section 3184] which are not found there”).

Nor does the Federal Megistrates Act support Austin’s

argument. Section 636(a) of that Act expressly bestows

upon magistrates “all powers and duties conferred or

imposed upon United States commissioners.” 28 U.S.C.

§ 636(a). And, prior to the Act, extradition proceedings

were conducted by commissioners. See Pub. L. No. 90-

578, § 301(a), 82 Stat. 1108 (1968) (substituting “mag-

istrate” for “commissioner” in section 3184). Historically,

it was never required that a commissioner be appointed in

a particular extradition case, so long as he was appointed

“in all cases of extradition.” In re Farez, 8 Fed. Cas.

1007, 1008 (C.C.S.D.N.Y. 1870) (No. 4645). See |

John Bassett Moore, Moore on Extradition 448-49 (1891).

This is not without significance. We find nothing in the

Federal Magistrates Act that changed this longstanding

convention.

B. Article Ill

Austin’s next argument plunges us into the “constitu-

tional quandary” that is Article III. Northern Pipeline

Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50,

112 (1982) (White, J., dissenting). Article III nourishes

two intersecting values in our constitutional system: first,

it protects the institutional integrity of the judiciary by

safeguarding its independence against encroachment by

the political branches; second, it guarantees litigants the

personal right to have their claims adjudicated by judges

cloaked with that independence. See Commodity Futures

Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986)

(citations omitted).

Austin believes that section 3184, as implemented by

Rule 9, both (1) infringes upon the institutional integrity

of the judiciary, and (2) violates his personal right to adju-

dication before an Article III judge. According to Austin,

“t]he Constitution requires that a United States citizen

who could be denied his liberty through extradition to a

foreign country have his case heard by a judge imbued

with the independent judicial power guaranteed by Arti-

cle III.” We do not agree that either the judiciary’s insti-

tutional rights, or Austin’s personal rights, are jeopardized

-when magistrates conduct extradition proceedings at the

direction of an Article HI court.

1. Institutional Interests

We reject the notion that judicial independence is com-

promised when extradition hearings are conducted by

magistrates authorized by rule of court. “Article III, § 1

safeguards the role of the Judicial Branch in our tripartite

system by barring Congressional attempts ‘to transfer

jurisdiction [to non-Article III tribunals] for the purpose

of emasculating constitutional courts,’ and thereby pre-

venting ‘the encroachment or aggrandizement of one

branch at the expense of the other.’” Schor, 478 U.S. at

850 (brackets in Schor) (citations omitted). At the same

time, however, we will not read Article III to “unduly

constrict Congress’ ability to take needed and innovative

action pursuant to its Article I powers.” /d. at 851.

Accordingly, when we evaluate a congressional dele-

gation of authority to a non-Article III officer, we eschew

10a

“doctrinaire reliance on formal categories,” Thomas v.

Union Carbide Agric. Prods. Co., 473 U.S. 568, 587

(1985), and instead, weigh a number of competing factors

with the goal of preserving the values embodied in

Article II:

Among the factors upon which we have focused are

the extent to which the “essential attributes of judi-

cial power” are reserved to Article III courts, and

conversely, the extent to which the non-Article III

forum exercises the range of jurisdiction and powers

normally vested only in Article III courts, the origins

and importance of the right to be adjudicated, and the

concerns that drove Congress to depart from the

requirements of Article III.

Schor, 478 U.S. at 851. Upon consideration of these fac-

tors, we conclude that a general authorization to magis-

trates of the authority to conduct extradition hearings does

not violate Article III.

Extradition magistrates do not exercise powers tradi-

tionally “reserved to Article III courts.” To the contrary,

the function performed by the judicial officer in certify-

ing extraditability has not historically been considered an

exercise of the “judicial power of the United States” at

all. See In re Extradition of Howard, 996 F.2d 1320,

1325 (1st Cir. 1993) (“an officer who presides over such

a proceeding is not exercising ‘any part of the judicial

power of the United States’”) (quoting In re Kaine, 55

U.S. (14 How.) 103, 119 (1852) (Curtis, I., concur-

ring) ); Ward, 921 F.2d at 288 n.2 (“Extradition, akin to

a preliminary hearing, does not implicate ‘the essential at-

tributes of judicial power’ and it certainly has not nor-

mally been vested only in Article III courts.”) (emphasis

in original); Martin, 993 F.2d at 828 (“An extradition

proceeding is not an ordinary Article III case or con-

troversy.”).

The judicial officer conducting an extradition hearing

is said to act in a “non-institutional capacity by virtue of

lla

a ‘special authority,” Howard, 996 F.2d at 1325 (quot-

ing In re Metzger, 46 U.S. (5 How.) 176, 191 (1847)),

an authority that has been delegated to the judiciary by

Congress in section 3184. See Martin, 993 F.2d at 828.

The function of the judicial officer is simply to certify

extraditability to the Secretary of State, who holds the

ultimate power to extradite at his discretion. See United

States v. Doherty, 786 F.2d 491, 499 n.10 (2d Cir. 1986).

Indeed, as Judge Friendly explained in In re Mackin, 668

F.2d 122, 125-30 (2d Cir. 1981), orders certifying extra-

ditability are non-appealable precisely because they do

not emanate from constitutional courts.

Neither do we consider the “origins and importance” of

extradition hearings to weigh in Austin’s favor. We have

repeatedly noted, for example, that an extradition hearing

is not a criminai prosecution: the order of extraditability

expresses no judgment on Austin’s guilt or innocence.

See, e.g., Melia v. United States, 667 F.2d 300. 302 (2d

Cir. 1981); Simmons v. Braun, 627 F.2d 635, 636 (2d

Cir. 1980); Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d

Cir.), cert. denied, 429 U.S. 833 (1976). Rather, an ex-

tradition hearing is “of the character of those preliminary

examinations which take place every day in this country

before an examining or committing magistrate for the

purpose of determining whether 2 case is made out which

will justify the holding of the accused . . . to ultimately

answer to an indictment, or other proceeding, in which he

shall be finally tried upon the charge made against him.”

Benson v. McMahon, 127 U.S. 457, 463 (1888).

Finally, a brief review of the “concerns that drove

Congress” in 1848 to grant judges and magistrates (then

commissioners) their current role in the extradition pro-

cess demonstrates that Congress reacted, in part, to “the

public clamor for judicial involvement in the extradition

process.” Jacques Semmelman, Federal Courts, The Con-

stitution, and the Role of Non-Inquiry in International

Extradition Proceedings, 76 Cornell L. Rev. 1198, 1208

(1991). See generally 1 M. Cherif Bassiouni, Interna-

12a

tional Extradition 51 (2d rev. ed..1987) (“The 1848 Act

was designed to limit executive power... . The under-

lying theory was that the judiciary should have the author-

ity to review executive action so that fundamental. in-

dividual liberty would not be improperly infringed.” );

Mackin, 668 F.2d at 134-35 (in which Judge Friendly

chronicles how executive abuse of its nearly absolute dis-

cretion in extradition matters led Congress in 1848 to

enact what is now section 3184). Thus, by section 3184,

Congress interposed the judiciary between the executive

and the individual.

The procedures challenged here adequately safeguard

the integrity of the judicial branch. Magistrates are

appointed and are subject to removal by Article III courts.

28 U.S.C. § 631(a) & (1) (1988). Section 3184 permits

extradition proceedings by magistrates only after an Arti-

cle IIIf court has authorized them. 18 U.S.C. § 3184.

Finally, and most significantly, Rule 9 was promulgated

by Article III judges. Because the authority to designate

magistrates to hear extradition matters remains exclu-

sively within the judiciary, we see no potential for tres-

pass by the executive: “Thus, the only conceivable danger

of a ‘threat’ to the ‘independence’ of the magistrate comes

from within, rather than without the judicial department.”

United States v. Raddatz, 447 U.S. 667, 685 (1980)

(Blackmun, J., concurring).

2. Personal Rights

We also reject Austin’s claim that his personal rights

under Article III were violated. Although the contours of

such a right are vague, it has been described as the “right

to have claims decided by judges who are free from

potential domination by other branches of government.”

United States v. Will, 449 U.S. 200, 218 (1980). Article

III does not, however, “confer on litigants an absolute

right to the plenary consideration of every nature of claim

by an Article III court.” Schor, 478 U.S. at 848. See

Palmore v. United States, 411 U.S. 389, 407 (1973).

13a

As our discussion makes clear, section 3184, coupled

with Rule 9’s authorization procedure, does not leave

room for unwelcome intrusion by the political branches

into the extradition process. Although we agree that

“extradition without an unbiased hearing before an inde-

pendent judiciary [is] highly dangerous to liberty,” In re

Kaine, 55 U.S. (14 How.) 103, 112 (1852), embracing

this sentiment does not require that we demand further

safeguards to individual liberty than those already chosen

by Congress and the judges of the Eastern District. See

Samuel T. Spear, The Law of Extradition 270 (3rd ed.

1885).

In sum, we hold that Article III is not violated when a

magistrate conducts extradition proceedings pursuant to

Rule 9. Accord Ward v. Rutherford, 921- F.2d 286. 289

(D.C. Cir. 1990) (Article IT not offended by section

3184 or local rule authorizing magistrates to conduct ex-

tradition proceedings ).

Il. Sufficiency of the Evidence

Finally, Austin renews the argument made to the dis

trict court (and properly preserved) that the evidence

presented at his extradition hearing did not warrant the

finding of extraditability. Austin argues that the evidence

relied upon by the extradition magistrate was neither “re-

liable” nor “credible.” He also faults the district court

for failing to scrutinize the extradition magistrate’s deter-

mination in this regard. Finally, Austin argues that the

evidence was insufficient to support probable cause to be-

lieve that Austin was guilty of murder and conspiracy to

murder. We find no merit to these contentions.*

Austin’s challenge to the reliability and credibility of

the evidence is misdirected. “The credibility of witnesses

* Austin also argues that documentary evidence was improperly

admitted against him under the relevant statute. 28 U.S.C. § 2190.

Because this non-jurisdictional argument is made for the first time

on appeal, we decline to consider it. See Jhirad, 536 F.2d at 426.

l4a

and the weight to be accorded their testimony is solely

within the province of the extraditing magistrate.” Quinn

v. Robinson, 783 F.2d 776, 815 (9th Cir.), cert. denied,

479 U.S. 882 (1986). It is clear to us from the record of

the proceedings, moreover, that the extradition magistrate

did in fact make such a determination: “[WJhile those

affidavits contain hearsay, there’s a level of consistency

among those affidavits that comes from several different

quarters that the Court believes renders that information

reliable.” Transcript of Magistrate’s Decision at 5. Habeas

review in the district court is not an occasion to review

such a determination. See Melia v. United States, 667 F.2d

300, 302 (2d Cir. 1981) (“The scope of [habeas] review

is limited and should not be converted into a de novo re-

view of the evidence.” ).

Nor are we persuaded that the evidence was insufficient

to support probable cause to extradite. No doubt, the evi-

dence tying Austin to the shooting of Wilson is circum-

stantial, and less than overwhelming. However, the

foreign government is not required to present its entire

case in this country. See Quinn, 783 F.2d at 815. The

evidence presented need only “support a reasonable belief

that [Austin] was guilty of the crime[s] charged.” Ahmad,

910 F.2d at 1066. We agree with the district court that

the evidence presented to the magistrate sufficed for this

limited purpose.

CONCLUSION

Accordingly, the judgment of the district court is

affirmed.

l5a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

93 CV 910

MICHAEL AUSTIN,

ess Petitioner,

—against—

CHARLES E. HEALEY, United States Marshal

for the Eastern District of New York,

Respondent.

CORRECTED MEMORANDUM AND ORDER

[Filed Apr. 20, 1993]

Korman, J.

Petitioner Michael Austin seeks a writ of habeas corpus

to challenge his extradition to Great Britain in connection

with the murder of David Wilson. Petitioner argues that

the admission of multiple layers of hearsay during the de-

termination of probable cause at the extradition hearing

held before Magistrate Carter was contrary to the Due

Process Clause and the terms of the extradition treaty

with the United Kingdom. Petitioner also attacks the

finding of probable cause, arguing that the evidence was

insufficient with or without the challenged hearsay state-

ments. In addition, petitioner argues that Magistrate

Carter's denial of certain discovery sought by petitioner

that would have “vitiated the probable cause determina-

tion” also violated the Due Process Clause. As set out

below, none of these claims provides a basis for the re-

lief petitioner seeks.

The British Treaty

Petitioner argues that portions of the statements of four

witnesses recounting threats by Austin against Wilson

l6a

admitted in the extradition hearing were not competent

evidence under the terms of the extradition treaty with

the United Kingdom because they contained multiple

layers of hearsay.

The Federal Rules of Evidence, which petitioner con-

tends would bar the testimony at issue here, do not apply

in extradition proceedings. Fed. R. Evid. 1101(d)(3).

There is no blanket prohibition against the presentation of

hearsay evidence in an extradition hearing. Collins v.

Loisel, 259 U.S. 309, 317 (1922). Rather, the weight to

be given hearsay evidence, provided it otherwise meets the

requirements for admissibility, is committed to the discre-

tion of the reviewing magistrate. Quinn v. Robinson,

783 F.2d 776, 815 (9th Cir.), cert. denied, 479 U.S. 882

(1986); Melia v. United States, 667 F.2d 300, 302 (2d

Cir. 1981).

This is only logical; the elimination of “hearsay from

extradition proceedings would run counter to one of the

primary objectives of bilateral extradition treaties, namely,

‘to obviate the necessity of confronting the accused with

the witnesses against him . . . [requiring] the demanding

government to send its citizens to another country to insti-

tute legal proceedings would defeat the whole object of

the treaty.’” Zanazanian v. United States, 729 F.2d 624,

626-27 (9th Cir. 1984), citing Sakaguchi v. Kaulukukui,

520 F.2d 726, 728 (9th Cir. 1975). See also Melia v.

United States, 667 F.2d at 302 (“an extradition hearing

118 U.S.C. §3190, the statute governing evidence in an extra-

dition hearing, states that:

“Depositions .. . shall be received . . . if they shall be properly

and legally authenticated so as to entitle them to be received

for similar purposes by the tribunals of the foreign country

from which the accused party shall have escaped, and the cer-

tificate of the principal diplomatic or consular officer of the

United States resident in such foreign country shall be proof

that [they] are authenticated in the manner required.”

Petitioner does not dispute in this proceeding that the affidavits

admitted into evidence at the extradition hearing before the Magis-

trate met the requirements for admission set out in § 3190.

17a

is not the occasion for an adjudication of guilt or in-

nocence. Rather, its purpose is to determine whether

there is reasonable ground to believe that the person

whose extradition is sought is guilty, that is, whether there

is sufficient evidence to justify extradition under the ap-

propriate treaty”) (citations omitted).

The terms of the extradition treaty currently in force

between the United Kingdom and the United States do not

prohibit the introduction of hearsay—or, for that matter,

multiple hearsay—statements in an extradition hearing.

Article VII, Paragraph 5 of that treaty states in relevant

part that:

“any deposition or statement or other evidence given

on oath or affirmed . . . shall be received in evi-

dence in any proceedings for extradition:

(a) if it is authenticated . . . by being certified by

a judge, magistrate or other competent authority of

the requesting party. . .; and

(b) where the requesting Party is the United King-

dom, by being sealed with the official seal of the

appropriate Minister and certified by the principal

diplomatic or consular officer of the United States

of America in the United Kingdom. . . .”

United States-United Kingdom Extradition Treaty, Janu-

ary 1, 1977, 28 U.S.T. 227.

While the extradition treaty stipulates that statements

admitted into evidence be sworn, the treaty does not im-

port a requirement that evidentiary materials meet the

standards of the Federal Rules of Evidence relating to

the exclusion of hearsay. Treaty extradition obligations

are contractual and should be construed liberally in the

interests of comity. Factor v. Laubenheimer, 290 U-S.

276, 293-94 (1933); United States ex rel. Sakaguchi vy.

Kaulukukui, 520 F.2d at 731. The treaty states that

the witness statements should be “given under oath,” and

18a

not that such statements meet the requirements for admis-

sibility at trial in a United States court. In fact, as recog-

nized by petitioner in his papers submitted in the present

proceeding, sworn affidavits, expressly permitted under

the terms of the treaty, are themselves hearsay. There

is thus no convincing way to connect the “oath” require-

ment in the treaty with a bar against hearsay testimony in

the extradition proceeding.

Moreover, “oath” clauses in extradition treaties, in-

cluding the ones in the current treaty with the United

Kingdom and its predecessor, have not been interpreted

as prohibiting either hearsay or “double hearsay” testi-

mony. See, e.g., Emami v. United States District Court

for the Northern District of California, 834 F.2d 1444,

1451 (9th Cir. 1987) (requirement in treaty with

Germany that statements be under oath did not preclude

admission of hearsay statements in sworn affidavit);

Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986)

(treaty with United Kingdom did not preclude admis-

sibility of double hearsay identification of police officer).

Indeed, in Collins v. Loisel, supra, which dealt with the

predecessor treaty with Great Britain, the Supreme Court

held that the unsworn statements of absent witnesses could

be acted upon by the committing magistrate—even though

that treaty, like the present one, contained a requirement

that statements admitted in extradition hearings be under

oath. 259 U.S. at 317.

Magistrate Carter treated the testimony at issue here

in the appropriate manner. He stated at the hearing that

he would “examine each out of court statement and

layer of out of court statement to determine whether or

not there are any indicia of reliability that have been

recognized.” Based on his review of those statements,

Magistrate Carter concluded that “while the affidavits con-

tain hearsay, there’s a level of consistency among those

affidavits that come from several different quarters that

the Court believes renders that information reliable.”

19a

Petitioner nonetheless takes the position that Magis-

trate Carter should have excluded the evidence at issue

outright. According to petitioner, the treaty permits one

level of sworn hearsay, but no more. He bases his argu-

ment on United States v. Zanazanian, 729 F.2d 624 (9th

Cir. 1984), as well as on the history and purposes of the

hearsay rule. However, not only does Zanazanian per-

mit the introduction of “double hearsay” (in that case in

the form of unsworn police reports relating to statements

of unsworn suspects made to police implicating the pe-

titioner), which the Court of Appeals there found to be

reliable, but the challenged statements in the present case

may fall within exceptions to the hearsay rule. And, al-

‘though the Zanazanian court contrasted the Swedish

treaty at issue there—which does not require that wit-

ness statements be sworn—with the British treaty, which

does, the Court of Appeals for the Ninth Circuit did so

in the context of a discussion of treaty admissibility re-

quirements, not of the standards for determining the com-

petence or reliability of particular evidence. Indeed, that

same court has also held that a double hearsay identifica-

tion of a photograph was admissible and competent evi-

dence in an extradition hearing under the British treaty.

Quinn v. Robinson, 783 F.2d at 815.

Petitioner also attempts to connect a bar against “mul-

tiple” hearsay contained in affidavits during an extradi-

tion hearing with the oath requirement in the treaty by

citing the history and purposes of the hearsay rule. See

Petitioner's Memorandum of Law at 21-22. This argu-

ment, too, is flawed. The Fourth Amendment provides

that “no warrant shall issue, but upon probable cause,

supported by oath or affirmation.” Nevertheless, hearsay

within hearsay may be included in affidavits considered

in determining the existence of probable cause. See, e.g.,

United States v. Wylie, 705 F.2d 1388, 1390 (4th Cir.

1983); United States v. Wilson, 479 F.2d 936, 941 (7th

Cir. 1973); United States v. McCoy, 478 F.2d 176, 179

(10th Cir.) (“[a]s concerns so called double hearsay...

20a

when a magistrate receives an affidavit which contains

hearsay on hearsay, he need not summarily reject this

double hearsay information, but is rather called on to

evaluate such information as well as all other informa-

tion in the affidavit in order to determine whether the

informant gathered his information in a reliable way and

from reliable sources”), cert. denied, 414 U.S. 828

(1973).

Such hearsay may be considered because, as suggested

by the quotation selected by petitioner, the policy under-

lying the rule that issues should not be “tried other than

by oath,” see United States v. Costello, 221 F.2d 668,

678 (2d Cir. 1955), is directed primarily to the relia-

bility of testimony at trial, and the right to confront and

cross-examine witnesses there. The same concerns do

not attach with equal force to a probable cause determi-

nation in an extradition hearing, where the issue is not

whether an individual, may be held answerable for a

crime, but rather whether he or she may be held for trial,

and there is no right to confront or cross-examine wit-

nesses. Instead, the standards for the admissibility and

consideration of evidence are similar to “those applicable

in preliminary examinations which take place every day

in this country for the purpose of determining whether

a case is made out which will justify the holding of the

accused.” Benson v. McMahon, 127 U.S. 457, 463

(1888); Sidona v. Grant, 619 F.2d 167, 175 (2d Cir.

1980).

That standard—probable cause to believe the sus-

pect has committed a crime—traditionally has been

decided by a magistrate in a non-adversary proceed-

ing on hearsay and written testimony. . . The use of

an informal procedure is justified not only by the

lesser consequences of a probable cause determina-

tion but also by the nature of the determination it-

self. It does not require the fine resolution of con-

flicting evidence that a reasonable doubt or even a

2la

preponderance standard demands, and credibility de-

terminations are seldom critical in deciding whether

the evidence supports a reasonable belief in guilt.

Gerstein v. Pugh, 420 U.S. 103, 121 (1975). See Sim-

mons v. Braun, 627 F.2d 635, 636 (2d Cir. 1980).

Accordingly, the critical issue before the Magistrate was

whether the evidence before him was sufficient to estab-

lish probable cause that petitioner committed the crime

for which the United Kingdom seeks to extradite him.

The Magistrate’s Determination of Probable Cause

Petitioner also argues that the circumstantial evidence

presented by the government provided insufficient grounds

for the determination of probable cause. In particular,

petitioner focuses on the Magistrate’s alleged failure to

consider all the other people who had a motive to kill

Wilson and the “triple and quadruple” hearsay statements

in the record.* In addition, petitioner argues that certain

Statements relating to threats against Wilson and the

retention of a private investigator by Austin under the

name “McMillan” to locate Wilson and provide surveil-

lance photographs of him were intrinsically unreliable and

lacked probative value.*

The scope of review of an extradition determination

in a habeas corpus proceeding is limited. That review is

confined to:

2 These statements are characterized by petitioner as triple or

quadruple hearsay because petitioner counts the underlying, sworn

statement of the affiant as hearsay. _

8 Petitioner also offers arguments relating to the supposedly

“illogical” way the crime was committed, if it was Austin who

committed it, since Wilson’s daughter, who could also possibly

have identified Austin, was present at Wilson’s house at the time

of the murder and was not herself killed. (This amounts to an

argument that if Austin really knew what he was doing, he would

have arranged to have two people killed rather than one—hardly

a compelling theory).

- 22a

whether the judge who conducted the extradition

hearing had jurisdiction to do so, whether the extra-

dition court had jurisdiction, whether the alleged of-

fense was covered by an extradition treaty, and

whether the extradition judge was presented with

evidence which warranted a finding that there was

reasonable ground to believe that the accused was

guilty.

Melia v. United States, 667 F.2d at 302; Ahmad vy.

Wigen, 910 F.2d 1063, 1064-65 (2d Cir. 1990). To

establish the basis for extradition under 18 U.S.C.

§ 3184, evidence must be produced that is “sufficient to

cause a person of ordinary prudence and caution to con-

scientiously entertain a reasonable belief of the accused’s

guilt.” In re Atta, 706 F. Supp. 1032, 1050 (E.D.N.Y.

1989), aff'd sub nom Ahmad v. Wigen, 910 F.2d 1063,

1066 (“[i]f the evidence would support a reasonable be-

lief that Ahmad was guilty of the crime charged, it suf-

ficed” ) .*

The record of the extradition proceeding was made

before Magistrate Carter. No new evidence was presented

in this habeas corpus proceeding. Magistrate Carter’s as-

sessment of the evidence is set out at pp. 2-7 of the Tran-

script of Criminal Cause for Extradition Hearing held on

January 29, 1993. I agree with him that the evidence

#18 U.S.C. § 3184 sets out the requirements for extradition:

Whenever there is a treaty ... for extradition ...any...

magistrate authorized so to do by a court of the United States

... May, upon complaint made under oath, charging any person

found within his jurisdiction, with having committed within

the jurisdiction of any such foreign government any of the

crimes provided for by such treaty or convention, issue his

warrant for the apprehension of the person so charged, that

he may be brought before such . . . magistrate, to ihe 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 convention, he shall certify the same...

23a

presented during the proceeding provided a sufficient

basis to order petitioner’s extradition. In addition to the

evidence of threats against David Wilson made by peti-

tioner (including evidence the admissibility of which peti-

tioner does not challenge), and evidence indicating that

Austin knew Wilson was cooperating with the police,

there is substantial evidence that links petitioner to the

surveillance of David Wilson and his home conducted in

the time period immediately preceding the murder.

Specifically, the affidavits relating to the surveillance

during the days before the murder submitted by the gov-

ernment at the extradition hearing indicate that Austin

contacted Peter Meese, a commodities broker, on Febru-

ary 20, 1992 and asked him to locate a private detective

to trace Wilson. He told Meese to tell the detective to

expect a telephone call from an American named “Mc-

Millan.” Meese did so, contacting a detective named

John Henry Nunn, and informing Austin. Austin later

contacted Meese again and told him that he had found

Wilson already, but had contacted Nunn and spoken with

him anyway. Peter Meese Affidavit at pp. 219-222. Ac-

cording to Nunn, a person with an American accent call-

ing himself “McMillan” contacted Nunn and spoke with

him twice. John Henry Nunn Affidavit at pp. 260-261.

On February 24, 1992, June Hellewell, another private

investigator, received a telephone call from a person iden-

tifying himself as “McMillan.” “McMillan” provided

Hellewel with Wilson’s telephone and fax numbers and

asked her to trace his address and to have someone take

an associate to Wilson’s residence. Hellewell found Wil-

son’s address for “McMillan,” and subcontracted the

work of showing and photographing the residence to

another private investigator, Paul La-Vey. June Hellewell

Affidavit at pp. 262-266. “McMillan” contacted La-Vey

and asked him to photograph the residence and take his

associate “Paul Harris” to see it. On March 1, 1992, at

“McMillan’s” request, La-Vey photographed Wilson’s resi-

——eeee a

24a

dence. At the request of McMillan’s “associate,” who

identified himself as “Paul Harris,” he faxed the direc-

tions to Wilson’s house to the fax number O101 212

7503973. Paul La-Vey Affidavit at pp. 268-275; Helle-

well Affidavit at p. 266; Exhibits 19, 23. Documentary

and affidavit evidence indicates that this fax number, lo-

cated in New York City, was used by Austin. Meese

Affidavit at p. 219; Joseph Martin Worden Affidavit at

pp. 534-537; Trevor Taylor Affidavit at pp. 549-550;

Exhibits 35, 39, 44. La-Vey described “McMillan” as

having an American accent, and his associate “Paul Har-

ris” as having an English accent. La-Vey Affidavit at

pp. 288-289.

“McMillan” again contacted La-Vey on March | and

March 4 and asked for further photographs of Wilson

and his residence. La-Vey Affidavit at pp. 275-278.

La-Vey replied that he would do so, but that he required

further payment. La-Vey did not hear from “McMillan”

again. /d. at p. 288. Wilson was murdered on March 5.

The evidence introduced by the government is suffi-

cient to support the finding of probable cause. The argu-

ments raised by petitioner are more appropriately ad-

dressed at trial than during the habeas review of the de-

termination of probable cause in an extradition hearing.

The Additional “Exculpatory” Discovery Sought by

Petitioner

Petitioner claims that the failure of the government to

turn over certain exculpatory materials amounted to a

denial of due process. Specifically, petitioner seeks “all

exculpatory evidence . . . including . . . any evidence in-

dicating that individuals other than Hector Portillo may

have had a motive to murder David Wilson or may have

threatened Wilson, directly or indirectly.” °

5 “Hector Moretta Portillo” was a pseudonym used by petitioner.

For the purposes of this proceeding, petitioner Michael Austin

does not contest that he used the name Hector Portillo. Petitioner’s

Memorandum of Law at 4, n.2.

lel

25a

Evidence presented by the party opposing extradition

is admitted solely for the purpose of explaining, if pos-

sible, the evidence that has been presented to support the

showing of probable cause. Collins v. Loisel, 259 U.S.

at 316-!7. A party against whom extradition is sought

is not entitled as a matter of right to Brady materials,

because Brady has no application in international extra-

dition proceedings. Merino v. United States Marshal, 326

F.2d 5, 13 (9th Cir. 1963), cert. denied, 377 U.S. 872

(1964). Accordingly, the extent of discovery allowed in

an extradition proceeding lies within the sound discretion

of the Magistrate Judge. Quinn v. Robinson, 783 F.2d

at 817 n.41.

The materials sought by petitioner were the subject of

a previous motion by the petitioner to compel, resulting

in a direction by the court that United States Attorney

inquire of Great Britain whether there was any informa-

tion concerning specific threats or any other type of con-

duct by anyone other than Austin that would indicate an

intention to do David Wilson harm. The British prosecu-

tor replied that he had no such information regarding any

threats or specific acts directed against Wilson or the

Wilson family, and that certain reports in the press, in-

cluding one with respect to which the court requested

information, were “wildly inaccurate.”

Petitioner appears to have received substantially what

he sought. Moreover, any materials not discovered would

not have been admissible in the extradition hearing un-

less they were “explanatory” of the evidence presented by

the United States Attorney. The failure to conduct an

exhaustive investigation of all possible exculpatory infor-

mation at petitioner’s request and to turn such informa-

tion over to petitioner does not entitle him to habeas

corpus relief. Cf. United States v. Williams, —— U.S.

——, 112 S.Ct. 1735, 1744-45 (1992),

26a

Petitioner’s request for a writ of habeas corpus is there-

fore denied.

So ORDERED

s/ Edward R. Korman

EDWARD R. KORMAN

United States District Judge

Dated: Brooklyn, New York

April 19, 1993

27a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the Sth day of No-

vember one thousand nine hundred and ninety three.

Docket Number: 93-2308

MICHAEL AUSTIN,

Petitioner-A ppellant,

CHARLES HEALEY, United States Marshal

for the Eastern District of New York.

Respondent-A ppellee

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein by

petitioner-appellant, pro se, Michael Austin.

Upon consideration by the panel that decided the ap-

peal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges of the court in

regular active service and to any other judge that heard

28a

the appeal and that no such judge has requested that a

vote be taken thereon.

FOR THE COURT,

ELAINE B. GOLDSMITH,

Clerk

By: /s/ Carolyn Clark Campbell

CAROLYN CLARK CAMPBELI

Chief Deputy Clerk

29a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Docket No. 92-0695M

IN THE MATTER OF THE EXTRADITION

OF MICHAEL AUSTIN, also known as

“Colonel! Hector Moretta Portillo”

CERTIFICATION AND ORDER OF

EXTRADITABILITY

Having held an extradition hearing on January 26,

1993, and after considering the evidence, the Memoranda

of both counsel and the arguments of both counsel, this

court finds and certifies to the Secretary of State as

follows:

1. This court has jurisdiction to conduct extradition

proceedings pursuant to Title 18, United States Code,

Section 3184.

2. There is an Extradition Treaty between the United

States of America and the United Kingdom, entered into

force on January 21, 1977, Title 28, United States Code,

Section 227; TIAS 8468. This Treaty was in full force

and effect at all times relevant to this extradition matter.

3. This court has jurisdiction over MICHAEL AUS-

TIN, also known as “Colonel Hector Moretta Portillo.”

4. MICHAEL AUSTIN, also known as “Colonel Hec-

tor Moretta Portillo.” has been charged in the United

Kingdom with the murder of and conspiracy to murder

David Wilson, which murder occurred on or about March

5, 1992.

30a

5. The above-specified crimes, alleged to have been

committed in the United Kingdom, are enumerated

within said Treaty.

6. The “Hector Portillo” sought by the United King-

dom and the person brought before this court, who has

given his name as MICHAEL AUSTIN, are one and the

same person.

7. There is probable cause to believe that MICHAEL

AUSTIN, also known as “Colonel Hector Moretta Por-

tillo” has committed the crimes charged.

8. The evidence before this court is sufficient to jus-

tify the committal of MICHAEL AUSTIN, also known as

“Colonel Hector Moretta Portillo,” for trial, on felony

charges of murder and conspiracy to murder, had the

offense with which he is accused been committed in any

state within the United States.

9. The requirement of “double criminality” has been

satisfied.

10. The pertinent text and statute of limitations for

the crimes with which MICHAEL AUSTIN, also known

as “Colonel Hector Moretta Portillo,” has been charged

are set forth in the documents prepared by the United

Kingdom.

THEREFORE, I certify that I have found MICHAEL

AUSTIN, also known as “Colonel Hector Moretta Por-

tillo,” extraditable to the United Kingdom, and by prior

warrant have committed him to the custody of the United

States Marshal for the Eastern District of New York

pending the issuance of an Extradition Warrant by the

United States Secretary of State.

3la

I further order that this Certificate of Extraditability

and Order of Commitment, together with a copy of all

evidence presented in this case, including the formal ex-

tradition documents received in evidence, be forwarded

to the Secretary of State by the Clerk of this Court.

Date: January 29, 1993

Brooklyn, New York

s Zachary W. Carter

ZACHARY W. CARTER

United States Magistrate Judge

Eastern District of New York

32a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a Stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the 21st day of

September, one thousand nine hundred and ninety-three.

PRESENT: Hon. J. DANIEL MAHONEY,

Hon. JosePpH M. MCLAUGHLIN,

Hon. DENNIS G. JACoBs,

Circuit Judges.

93-2308

MICHAEL AUSTIN,

Petitioner-A ppellant,

-V.-

CHARLES HEALEY, United States Marshal

for the Eastern District of New York,

Respondent-A ppellee.

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York and was argued by counsel.

33a

ON CONSIDERATION WHEREOPF, it is now hereby

ORDERED, ADJUDGED and DECREED that the

judgment of the district court be and it hereby is affirmed

in accordance with the opinion of this court.

ELAINE B. GOLDSMITH

Clerk

By: /s/ Edward J. Guardaro

EDWARD J. GUARDARO

Staff Attorney

Dated: November 18, 1993

34a

CONSTITUTIONAL, TREATY, STATUTORY AND

RULE PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

ARTICLE III.

Section |. The judicial Power of the United States,

shall be vested in one supreme Court, and in such in-

ferior Courts as the Congress may from time to time

ordain and establish. The Judges, both of the supreme

and inferior Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times, receive for their

Services, a Compensation, which shall not be diminished

during their Continuance in Office.

Section 2. The judicial Power shal! extend to all

Cases, in Law and Equity, arising under this Constitu-

tion, the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—to all

Cases affecting Ambassadors, other public Ministers and

Consuls;—to all Cases of admiralty and maritime Juris-

diction;—to Controversies to which the United States

shall be a Party;—to Controversies between two or more

States;—between a State and Citizens of another State;

between Citizens of different States;—between Citizens

of the same State claiming Lands under Grants of differ-

ent States, and between a State, or the Citizens thereof,

and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Min-

isters and Consuls, and those in which a State shall be

Party, the supreme Court shall have original Jurisdiction.

In all the other Cases before mentioned, the supreme

Court shall have appellate Jurisdiction, both as to Law

and Fact, with such Exceptions, and under such Regula-

tions as the Congress shall make.

————————————EEE

35a

The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; and such Trial shall be held in

the State where the said Crimes shall have been com-

mitted; but when not committed within any State, the

Trial shall be at such Place or Places as the Congress

may by Law have directed.

Section 3. Treason against the United States, shall

consist only in levying War against them, or in adher-

ing to their Enemies, giving them Aid and Comfort. No

Person shall be convicted of Treason unless on the Testi-

mony of two Witnesses to the same overt Act, or on

Confession in open Court.

The Congress shall have Power to declare the Punish-

ment of Treason, but no Attainder of Treason shall work

Corruption of Blood, or Forfeiture except during the Life

of the Person attainted.

* * ad

AMENDMENT IV.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

AMENDMENT V.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

36a

EXTRADITION TREATY BETWEEN

THE GOVERNMENT OF THE UNITED STATES

OF AMERICA AND THE GOVERNMENT OF THE

UNITED KINGDOM OF GREAT BRITAIN AND

NORTHERN IRELAND

28 U.S.T. 229; T.LA.S. No. 8468

The Government of the United States of America and

the Government of the United Kingdom of Great Britain

and Northern Ireland:

Desiring to make provision for the reciprocal extradi-

tion of offenders:

Have agreed as follows:

ARTICLE I

Each Contracting Party undertakes to extradite to the

other, in the circumstances and subject to the conditions

specified in this Treaty, any person found in its territory

who hus been accused or convicted of any offense within

Article Il, committed within the jurisdiction of the other

Party.

ARTICLE Il

(1) This Treaty shall apply:

(a) in relation to the United Kingdom: to Great

Britain and Northern Ireland, the Channel Islands,

the Isle of Man, and any territory for the interna-

tional relations of which the United Kingdom is

responsible and to which the Treaty shall have

been extended by agreement between the Con-

tracting Parties embodied in an Exchange of

Notes; and

(b) to the United States of America:

and references to the territory of a Contracting Party

shall be construed accordingly.

(2) The application of this Treaty to any territory in

respect of which extension has been made in accordance

with paragraph (1) of this Article may be terminated by

37a

either Contracting Party giving six months’ written notice

to the other through the diplomatic channei.

ARTICLE III

(1) Extradition shall be granted for an act or omission

the facts of which disclose an offense within any of the

descriptions listed in the Schedule annexed to this Treaty,

which is an integral part of the Treaty. or any other

offense, if:

(a) the offense is punishable under the laws of both

Partics by imprisonment or other form of deten-

tion for more than one year or by the death

penalty; :

(b) the offense is extraditable under the relevant law,

being the law of the United Kingdom or other

territory to which this Treaty applies by virtue of

sub-paragraphs (1)(a) of Article II; and

the United States of America.

(2) Extradition shall also be granted for any attempt

or conspiracy to commit an offense within paragraph (1!)

of this Article if such attempt or conspiracy is one for

which extradition may be granted under the laws of both

Parties and is punishable under the laws of both Parties

by imprisonment or other form of detention for more

than one year or by the death penalty.

(3) Extradition shall also be granted for the offense of

impeding the arrest or prosecution of a person who has

committed an offense for which extradition may be

granted under this Article and which is punishable under

the laws of both Parties by imprisonment or other form

of detention for a period of five years or more.

(4) A person convicted of and sentenced for an of-

fense shall not be extradited therefor unless he was sen-

tenced to imprisonment or other form of detention for a

38a

period of four months or more, or, subject to the provi-

sions of Article 1V, to the death penalty.

ARTICLE IV

If the offense-for which extradition is requested is pun-

ishable by death under the relevant law of the requesting

Party, but the relevant law of the requested Party does not

provide for the death penalty in a similar case, extradi-

tion may be refused unless the requesting Party gives as-

surances. satisfactory to the requested Party that the death

penalty will not be carried out.

ARTICLE V

(1) Extradition shall not be granted if:

(a) the person sought would, if proceeded against in

the territory of the requested Party for the offense

for which his extradition is requested, be entitled

to be discharged on the grounds of a previous

acquittal or conviction in the territory of the re-

questing or requested Party or of a third State; or

(b) the prosecution for the offense for which extradi-

tion is requested has become barred by lapse of

time according to the law of the requesting or

requested Party; or

is regarded by the requested Party as one of

a political character; or

(ii) the person sought proves that the request for

his extradition has in fact been made with a

view to try or punish him for an offense of a

political character.

(2) Extradition may be refused on any other ground

which is specified by the law of the requested Party.

39a

ARTICLE VI

If the person sought should be under examination or

under punishment in the territory of the requested Party

for any other offense, his extradition shall be deferred

until the conclusion of the trial and the full execution of

any punishment awarded to him.

ARTICLE VII

(1) The request for extradition shall be made through

the diplomatic channel, except as otherwise provided in

Article XV.

(2) The request shall be accompanied by:

(a) a description of the person sought, his nationality,

if known, and any other information which would

help to establish his identity;

(b) a statement of the facts of the offense for which

extradition is requested;

(i)

(ii)

(iii)

and

(d) (i)

defining that offense;

prescribing the maximum punishment for that

offense; and

imposing any time limit on the institution of

proceedings for that offense;

where the requesting Party is the United

Kingdom, a statement of the legal provisions

which establish the extraditable character of

the offense for which extradition is requested

under the relevant law, being the law of the

United Kingdom or other territory to which

this Treaty applies by virtue of sub-paragraph

(1)(a) of Article II;

(ii) where the requesting Party is the United

States of America, a statement that the of-

40a

fense for which extradition is requested, con-

Stitutes a felony under the law of the United

States of America.

(3) If the request relates to an accused person, it must

also be accompanied by a warrant of arrest issued by a

judge, magistrate or other competent authority in the

territory of the requesting Party and by such evidence as,

according to the law of the requested Party, would justify

his committal for trial if the offense had been committed

in the territory of the requested Party, including evidence

that the person requested is the person to whom the war-

rant of arrest refers.

(4) If the request relates to a convicted person, it

must be accompanied by a certificate or the judgment of

conviction imposed in the territory of the requesting

Party and by evidence that the person requested is the

person to whom the conviction refers and, if the person

was sentenced, by evidence of the sentence imposed and

a statement showing to what extent the sentence has not

been carried out.

(5) The warrant of arrest, or the judicial document

establishing the existence of the conviction, and any dep-

osition or statement or other evidence given on oath or

affirmed, or any certified copy thereof shall be received

in evidence in any proceedings for extradition:

(a) if it is authenticated in the case of a warrant by

being signed, or in the case of any other original

document by being certified, by a judge, magis-

trate or other competent authority of the request-

ing Party; or in the case of a copy by being so

certified to be a true copy of the original; and

(b) where the requesting Party is the United Kingdom,

by being sealed with the official seal of the appro-

priate Minister and certified by the principal dip-

lomatic or consular officer of the United States of

America in the United Kingdom; and where the

4la

requesting Party is the United States of America,

by being sealed with the official seal of the De-

partment of State for the Secretary of State; or

be permitted by the law of the requested Party.

ARTICLE VIII

(1) In urgent cases the person sought may, in accord-

ance with the law of the requested Party, be provisionally

arrested on application through the diplomatic channel

by the competent authorities of the requesting Party. The

application shall contain an indication of intention to re-

quest the extradition of the person sought and a statement

of the existence of a warrant of arrest or a conviction

against that person, and, if available, a description of the

person sought, and such further information, if any, as

would be necessary to justify the issue of a warrant of

arrest had the offense been committed, or the person

sought been convicted, in the territory of the requested

Party.

(2) A person arrested upon such an application shall

be set at liberty upon the expiration of forty-five days

from the date of his arrest if a request for his extradition

shall not have been received. This provision shall not

prevent the institution of further proceedings for the ex-

tradition of the person sought if a request is subsequently

received.

ARTICLE IX

(1) Extradition shall be granted only if the evidence

be found sufficient according to the law of the requested

Party either to justify the committal for trial of the per-

son sought if the offense of which he is accused had been

committed in the territory of the requested Party or to

prove that he is the identical person convicted by the

courts of the requesting Party.

42a

(2) If the requested Party requires additional evidence

or information to enable a decision to be taken on the

request for extradition, such evidence or information shall

be submitted within such time as that Party shall require.

ARTICLE X

If the extradition of a person is requested concurrently

by one of the Contracting Parties and by another State

or States, either for the same offense or for different

offenses, the requested Party shall make its decision in so

far as its law allows, having regard to all the circum-

stances, including the provisions in this regard in any

Agreements in force between the requested Party and the

requesting States, the relative seriousness and place of

commission of the offenses, the respective dates of the

requests, the nationality of the person sought and the

possibility of subsequent extradition to another State.

ARTICLE XI

(1) The requested Party shall promptly communicate

to the requesting Party through the diplomatic channel

the decision on the request for extradition.

(2) If a warrant or order for the extradition of a per-

son sought has been issued by the competent authority

and he is not removed from the territory of the requested

Party within such time as may be required under the law

of that Party, he may be set at liberty and the requested

Party may subsequently refuse to extradite him for the

same offense.

ARTICLE XII

(1) A person extradited shall not be detained or pro-

ceeded against in the territory of the requesting Party

for any offense other than an extraditable offense estab-

lished by the facts in respect of which his extradition has

been granted, or on account of any other matters, nor be

extradited by that Party to a third State—

43a

(a) until after he has returned to the territory of the

requested Party; or

(5) until the expiration of thirty days after he has

been free to return to the territory of the requested

Party.

(2) The provisions of paragraph (1) of-this Article

shall not apply to offenses committed, or matters arising,

after the extradition.

ARTICLE XIII

When a request for extradition is granted, the requested

Party shall, so far as its law allows and subject to such

conditions as it may impose having regard to the rights

of other claimants, furnish the requesting Party with all

sums Of money and other articles—

(a) which may serve as proof of the offense to which

the request relates; or .

(b) which may have been acquired by the person

sought as a result of the offense and are in his

possession.

ARTICLE XIV

(1) The requested Party shall make all necessary ar-

rangements for and meet the cost of the representation

of the requesting Party in any proceedings arising out

of a request for extradition.

(2) Expenses relating to the transportation of a person

sought shall be paid by the requesting Party. No pecu-

niary claim arising out of the arrest, detention, examina-

tion and surrender of a person sought under the provisions

of this Treaty shall be made by the requested Party

against the requesting Party.

ARTICLE XV

A request on the part of the Government of the United

States of America for the extradition of an offender who

44a

is found in any of the territories to which this Treaty has

been extended in accordance with paragraph (1) of Ar-

ticle II niay be made to the Governor or other competent

authority of that territory, who may take the decision

himself or refer the matter to the Government of the

United Kingdom for their decision.

ARTICLE XVI

(1) This Treaty shall be ratified, and the instruments

of ratification shall be exchanged at Washington as soon

as possible. It shall come into force three months after

the date of the exchange of instruments of ratification."”

(2) This Treaty shall apply to any offense listed in the

annexed Schedule committed before or after this Treaty

enters into force, provided that extradition shall not be

granted for an offense committed before this Treaty enters

into force which was not an offense under the laws of both

Contracting Parties at the time of its commission.

(3) On the entry into force of this Treaty the provi-

sions of the Extradition Treaty of December 22, 1931'”

shall cease to have effect as between the United Kingdom

and the United States of America.

(4) Either of the Contracting Parties may terminate

this Treaty at any time by giving notice to the other

through the diplomatic channel. In that event the Treaty

shall cease to have effect six months after the receipt of

the notice.

In witness whereof the ‘undersigned, being duly au-

thorized thereto by their respective Governments, have

signed this Treaty.

Done in duplicate at London in the English language

this 8th day of June, 1972.

1 Jan. 21, 1977.

2TS 849: 47 Stat. 2122.

45a

For the Government of the United States of America:

/s/ W. H. Annenberg '

For the Government of the United Kingdom of Great

Britain and Northern Ireland:

/s/ Anthony Kershaw '*

*W. H. Annenberg.

* Anthony Kershaw.

46a

SUPPLEMENTARY TREATY CONCERNING THE

EXTRADITION TREATY BETWEEN THE

GOVERNMENT OF THE UNITED STATES OF AMERICA

AND THE GOVERNMENT OF THE UNITED KINGDOM

OF GREAT BRITAIN AND NORTHERN IRELAND,

SIGNED AT LONDON ON 8 JUNE 1972

Reprinted in /nternational Judicial Assistance

Volume 5 (1990)

The Government of the United States of America and

the Government of the United States of America and the

Government of the United Kingdom of Great Britain and

Northern Ireland;

Desiring to make more effective the Extradition Treaty

between the Contracting Parties, signed at London on

8 June 1972 (hereinafter referred to as “the Extradition

Treaty”);

Have resolved to conclude a Supplementary Treaty and

have agreed as follows:

ARTICLE 1

For the purposes of the Extradition Treaty, none of the

following shall be regarded as an offense of a political

character:

(a) an offense for which both Contracting Parties have

the obligation pursuant to a multilateral international

agreement to extradite the person sought or to submit

his case to their competent authorities for decision as to

prosecution;

(b) murder, voluntary manslaughter, and assault caus-

ing grievous bodily harm;

tion, including taking a hostage;

(d) an offense involving the use of a bomb, grenade,

rocket, firearm, letter or parcel bomb, or any incendiary

device if this use endangers any person;

47a

(e) an attempt to commit any of the foregoing offense

or participation as an accomplice of a person who com-

mits or attempts to commit such an offense.

ARTICLE 2

Nothing in this Supplementary Treaty shall be inter-

preted as imposing the obligation to extradite if the ju-

dicial authority of the requested Party determines that the

evidence of criminality presented is not sufficient to sus-

tain the charge under the provisions of the treaty. The

evidence of criminality must be such as, according to the

law of the requested Party, would justify committal for

trial if the offense had been committed in the territory

of the requested Party.

In determining whether an individual is extraditable

from the United States, the judicial authority of the

United States shall permit the individual sought to pre-

sent evidence on the questions of whether:

(1) there is probable cause;

(2) a defense to extradition specified in the Extradi-

tion Treaty or this Supplementary Treaty, and within the

jurisdiction of the courts, exists; and

(3) the act upon which the request for extradition is

based would constitute an offense for extradition is based

would constitute an offense [sic] punishable under the

laws of the United States.

Probable cause means whether there is sufficient evi-

dence to warrant a man of reasonable caution in the

belief that:

(1) the person arrested or summoned to appear is the

person sought;

(2) in the case of a person accused of having com-

mitted a crime, an offense has been committed by the

accused; and

48a

(3) in the case of a person alleged to have been con-

victed of an offense, a certificate of conviction or other

evidence of conviction or criminality exists.

ARTICLE 3

(a) Notwithstanding any other provision of this Sup

plementary Treaty, extradition shall not occur if the per-

son sought establishes to the satisfaction of the competent

judicial authority by a preponderance of the evidence that

the request for extradition has in fact been made with

a view to try or punish him on account of his race, religion,

nationality, or political opinions, or that he would, if

surrendered, be prejudiced at his trial or punished, de-

tained or restricted in his personal liberty by reason of

his race, religion, nationality, or political opinions.

(b) In the United States, the competent judicial au-

thority shall only consider the defense to extradition set

forth in paragraph (a) for defenses listed in Article 1 of

this Supplementary Treaty. A finding under paragraph

(a) shall be immediately appealable by either party to

the United States district court, or court of appeals, as

appropriate. The appeal shall receive expedited consid-

eration at every stage. The time for filing a notice of

appeal shall be 30 days from the date of the filing of the

decision. In all other respects, the applicable provisions

of the Federal Rules of Appellate Procedure or Civil

Procedure, as appropriate, shall govern the appeals process.

ARTICLE 4

Article VIII, paragraph (2) of the Extradition Treaty

is amended to read as follows:

(2) A person arrested upon such an application shall

be set at liberty upon the expiration of sixty days from

the date of his arrest if a request for his extradition shall

not have been received. This provision shall not prevent

the institution of further proceedings for the extradition

of this person sought if a request for extradition is subse-

quently received.

49a

ARTICLE 5

This Supplementary Treaty shall apply to any offense

committed before or after this Supplementary Treaty en-

ters into force, provided that this Supplementary Treaty

shall not apply to an offense committed before this Sup-

plementary Treaty enters into force which was not an

offense under the laws of both Contracting Parties at the

time of its commission.

ARTICLE 6

This Supplementary Treaty shall form an integral part

of the Extradition Treaty and shall apply:

(a) in relation to the United Kingdom: to Great Britain

and Northern Ireland, the Channel Islands, the Isle of

Man and the territories for whose international relations

the United Kingdom is responsible which are listed in

the Annex to this Supplementary Treaty;

(b) to the United States of America;

and references to the territory of a Contracting Party shall

be construed accordingly.

ARTICLE 7

The Supplementary Treaty shall be subject to ratifica-

tion and the instruments of ratification shall be exchanged

at London as soon as possible. It shall enter into force

upon the exchange of instruments of ratification. It shall

be subject to termination in the same manner as the Ex-

tradition Treaty.

ANNEX

Anguilla; Bermuda; British Indian Ocean Territory;

British Virgin Islands; Cayman Islands; Falkland Islands;

Falkland Island Dependencies; Gibraltar; Hong Kong;

Montserrat; Pitcairn, Henderson, Ducie and Oeno Islands;

St. Helena; St. Helena Dependencies; The Sovereign Base

Areas of Akrotiri and Dhekelia in the Island of Cyprus;

and Turks and Caicos Islands.

50a

EXTRADICTION ACT

18 U.S.C. $§ 3181-3196 (1992)

18 U.S.C. § 3184 (1992)

§ 3184. Fugitives from foreign country to United States

Whenever there is a treaty or convention for extradi-

tion between the United States and any foreign govern-

ment, any justice or judge of the United States, or any

magistrate authorized so to do by a court of the United

States, or any judge of a court of record of general ju-

risdiction of any State, may, upon complaint made under

oath, charging any person found within his jurisdiction,

with having committed within the jurisdiction of any such

foreign government any of the crimes provided for by such

treaty or convention, issue his warrant for the appre-

hension 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.

Such complaint may be filed before and such warrant may

be issued by a judge or magistrate of the United States

District Court for the District of Columbia if the where-

abouts within the United States of the person charged are

not known or, if there is reason to believe the person will

shortly enter the United States. If on such hearing, he

deems the evidence sufficient to sustain the charge under

the provisions of the proper treaty or convention, he shall

certify the same, together with a copy of all the testimony

taken before him, to the Secretary of State, that a war-

rant may issue upon the requisition of the proper authori-

ties of such foreign government, for the surrender of such

person, according to the stipulations of the treaty or con-

vention; 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.

(As amended, Nov. 18, 1988, Pub.L. 100-690, Title VII,

§ 7087, 102 Stat. 4409; Nov. 29, 1990, Pub.L. 101-647,

Title XVI, § 1605, 104 Stat. 4843.)

S5la

18 U.S.C. §$ 3190 (1992)

§ 3190. Evidence on hearing

Depositions, warrants, or other papers or copies thereof

offered in evidence upon the hearing of any extradition

case shall be received and admitted as evidence on such

hearing for all the purposes of such hearing if they shall

be properly and legally authenticated so as to entitle them

to be received for similar purposes by the tribunals of the

foreign country from which the accused party shall have

escaped, and the certificate of the principal diplomatic

or consular officer of the United States resident in such

foreign country shall be proof that the same, so offered,

are authenticated in the manner required.

(June 25, 1948, ch. 645, 62 Stat. 824.)

52a

FEDERAL MAGISTRATES ACT

28 U.S.C. § 636 (1992)

§ 636. Jurisdiction, powers, and temporary assignment

(a) Each United States magistrate serving under this

chapter shall have within the territorial jurisdiction pre-

scribed by his appointment—

(1) all powers and duties conferred or imposed

upon United States commissioners by law or by the

Rules of Criminal Procedure for the United States

District Courts;

(2) the power to administer oaths and affirma-

tions, issue orders pursuant to section 3142 of title

18 concerning release or detention of persons pend-

ing trial, and take acknowledgements, affidavits, and

depositions;

(3) the power to conduct trials under section

3401, tithe 18, United States Code, in conformity

with and subject to the limitations of that section;

and

(4) the power to enter a sentence for a misde-

meanor or infraction with the consent of the parties.

(b)(1) Notwithstanding any provision of law to the

contrary—

(A) a judge may designate a magistrate to hear

and determine any pretrial matter pending before the

Court, except a motion for injunctive relief, for judg-

ment on the pleadings, for summary judgment, to

dismiss or quash an indictment or information made

by the defendant, to suppress evidence in a criminal

case, to dismiss or to permit maintenance of a class

action, to dismiss for failure to state a claim upon

which relief can be granted, and to involuntarily dis-

miss an action. A judge of the court may reconsider —

any pretrial matter under this subparagraph (A)

where it has been shown that the magistrate’s order

is clearly erroneous or contrary to law.

53a

(B) a judge may also designate a magistrate to

conduct hearings, including evidentiary hearings, and

to submit to a judge of the court proposed findings

of fact and recommendations for the disposition, by

a judge of the court, of any motion excepted in sub-

paragraph (A), of applications for posttrial relief

made by individuals convicted of criminal offenses

and of prisoner petitions challenging conditions of

confinement.

and recommendations under subparagraph (B) with

the court and a copy shall forthwith be mailed to

all parties.

Within ten days after being served with a copy, any party

may serve and file written objections to such proposed

findings and recommendations as provided by rules of

court. A judge of the court shall make a de novo de-

termination of those portions of the report or specified

proposed findings or recommendations to which objection

is made. A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommenda-

tions made by the magistrate. The judge may also re-

ceive further evidence or recommit the matter to the

magistrate with instructions.

(2) A judge may designate a magistrate to serve as a

special master pursuant to the applicable provisions of

this title and the Federal Rules of Civil Procedure for

the United States district courts. A judge may designate

a magistrate to serve as a special master in any civil

case, upon consent of the parties, without regard to the

provisions of rule 53(b) of the Federal Rules of Civil

Procedure for the United States district courts.

(3) A magistrate may be assigned such additional

duties as are not inconsistent with the Constitution and

laws of the United States.

(4) Each district court shall establish rules pursuant

to which the magistrates shall discharge their duties.

S4ia

trary—

(1) Upon the consent of the parties, a full-time

United States magistrate or a part-time United States

magistrate who serves as a full-time judicial officer

may conduct any or all proceedings in-a jury or non-

jury civil matter and orcer the entry of judgment in

the case, when specially designated to exercise such

jurisdiction by the district court or courts he serves.

Upon the consent of the parties, pursuant to their

specific written request, any other part-time magis-

trate may exercise such jurisdiction, if such magis-

trate meets the bar membership requirements set

forth in section 631(b)(1) and the chief judge of the

district court certifies that a full-time magistrate is

not reasonably available in accordance with guide-

lines established by the judicial council of the cir-

cuit. When there is more than one judge of a dis-

trict court, designation under this paragraph shall be

by the concurrence of a majority of all the judges of

such district court, and when there is no such con-

currence, then by the chief judge.

(2) If a magistrate is designated to exercise civil

jurisdiction under paragraph (1) of this subsection,

the clerk of court shall, at the time the action is

filed, notify the parties of the availability of a magis-

trate to exercise such jurisdiction. The decision of

the parties shall be communicated to the clerk of

court. Thereafter, either the district court judge or

the magistrate may again advise the parties of the

availability of the magistrate, but in so doing, shall

also advise the parties that they are free to withhold

consent without adverse substantive consequences.

Rules of court for the reference of civil matters to

magistrates shall include procedures to protect the

voluntariness of the parties’ consent.

(3) Upon entry of judgment in any case referred

under paragraph (1) of this subsection, an aggrieved

55a

party may appeal directly to the appropriate United

States court of appeals from the judgment of the

magistrate in the same manner as an appeal from

any other judgment of a district court. In this cir-

cumstance, the consent of the parties allows a magis-

trate designated to exercise civil jurisdic::»n under

paragraph (1) of this subsection to direct the entry

of a judgment of the district court in accordance

with the Federal Rules of Civil Procedure. Nothing

in this paragraph shall be construed as a limitation

of any party’s right to seek review by the Supreme

Court of the United States.

(4) Notwithstanding the provisions of paragraph

(3) of this subsection, at the time of reference to a

magistrate, the parties may further consent to appeal

on the record to a judge of the district court in the

same manner as on an appeal from a judgment of

the district court to a court of appeals. Wherever

possible the local rules of the district court and the

rules promulgated by the conference shall endeavor

to make such appeal inexpensive. The district court

may affirm, reverse, modify, or remand the magis-

trate’s judgment.

(5) Cases in the district courts under paragraph

(4) of this subsection may be reviewed by the ap-

propriate United States court of appeals upon peti-

tion for leave to appeal by a party stating specific

objections to the judgment. Nothing in this para-

graph shall be construed to be a limitation on any

party’s right to seek review by the Supreme Court of

the United States.

(6) The .ourt may, for good cause shown on its

own motion, or under extraordinary circumstances

shown by an party, vacate a reference of a civil

matter to a r %agistrate under this subsection.

(7) The magistrate shall, subject to guidelines

of the Judicial Conference, determine whether the

56a

record taken pursuant to this section shall be taken

by electronic sound recording, by a court reporter,

or by other means.

(d) The practice and procedure for the trial of cases

before officers serving under this chapter, and for the

taking and hearing of appeals to the district courts, shall

conform to rules promulgated by the Supreme Court pur-

suant to section 2072 of this title.

(e) In a proceeding before a magistrate, any of the

following acts or conduct shall constitute a contempt of

the district court for the district wherein the magistrate

is sitting: (1) disobedience or resistance to any lawful

order, process, or writ; (2) misbehavior at a hearing or

other proceeding, or so near the place thereof as to ob-

struct the same; (3) failure to produce, after having been

ordered to do so, any pertinent document; (4) refusal to

appear after having been subpoenaed or, upon appearing,

refusa! to take the oath or affirmation as a witness, or,

having taken the oath or affirmation, refusal to be ex-

amined according to law; or (5) any other act or conduct

which if committed before a judge of the district court

would constitute contempt of such court. Upon the com-

mission of any such act or conduct, the magistrate shall

forthwith certify the facts to a judge of the district court

and may serve or cause to be served upon any person

whose behavior is *: ough! into questiop under this sec-

tion an order requising s.ch person to .ppear before a

judge of that court upon a day ce: *n to show cause

why he should not be adjudged in contempt by reason

of the facts so certified. A judge of the district court shall

thereupon, in a summary manner, hear the evidence as

to the act or conduct complained of and, if it is such as

to warrant punishment, punish such person in the same

manner and to the same extent as for a contempt com-

mitted before a judge of the court, or commit such per-

son upon the conditions applicable in the case of defiance

of the process of the district court or misconduct in the

presence of a judge of that court.

57a

(f) In an emergency and upon the concurrence of the

chief judges of the districts involved, a United States

magistrate may be temporarily assigned to perform any of

the duties specified in subsection (a) or (b) of this sec-

tion in a judicial district other than the judicial district

for which he has been appointed. No magistrate shall

perform any of such duties in a district to which he has

been temporarily assigned until an order has been issued

by the chief judge of such district specifying (1) the

emergency by reason of which he has been transferred,

(2) the duration of his assignment, and (3) the duties

which he is authorized to perform. A magistrate so as-

signed shall not be entitled to additional compensation

but shall be reimbursed for actual and necessary expenses

incurred in the performance of his duties in accordance

with section 635.

(g) A United States magistrate may perform the veri-

fication function required by section 4107 of title 18,

United States Code. A magistrate may be assigned by a

judge of any United States district court to perform the

verification required by section 4108 and the appointment

of counsel authorized by section 4109 of title 18, United

States Code, and may perform such functions beyond the

territorial limits of the United States. A magistrate as-

signed such functions shall have no authority to perform

any other function within the territory of a foreign country.

(h) A United States magistrate who has retired may,

upon the consent of the ch.° judge of the district in-

volved, be recalled to serve as 4 magistrate in any judicial

district by the judicial councii of the circuit within which

such district is located. Upos recall, a magistrate may re-

ceive a salary for such service in accordance with regula-

tions promulgated by the Judicial Conference, subject to

the restrictions on the payment of an annuity set forth

in section 377 of this title or in subchapter III of chap-

ter 83, and chapter 84, of title 5 which are applicable to

such magistrate. The requirements set forth in subsec-

_ 58a

tions (a), (b)(3), and (d) of section 631, and para-

graph (1) of subsection (b) of such section to the extent

such paragraph requires membership of the bar of the

location in which an individual is to serve as a magistrate,

shall not apply to the recall of a retired magistrate under

this subsection or section 375 of this title. Any other re-

quirement set forth in section 631(b) shall apply to the

recall of a retired magistrate under this subsection or

section 375 of this title unless such retired magistrate met

such requirement upon appointment or reappointment as

a magistrate under section 361.

(As amended Oct 17, 1968, Pub.L. 90-578, Title I,

§ 101, 82 Stat. 1113; Mar. 1, 1972, Pub.L. 92-239, §§ 1,

2, 86 Stat. 47; Oct. 21, 1976, Pub.L. 94-577, § 1, 90

Stat. 2729; Oct. 28, 1977, Pub.L. 95-144, § 2, 91 Stat.

1220; Oct. 10, 1979, Pub.L. 96-82, § 2, 93 Stat. 643;

Oct. 12, 1984, Pub.L. 98-473, Title II, § 208, 98 Stat.

1986; Nov. 8, 1984, Pub.L. 98-620, Title IV, § 402

(29)(B), 98 Stat. 3359; Nov. 14, 1986, Pub.L. 99-651,

Title II, § 201(a)(2), 100 Stat. 3647; Nov. 15, 1988,

Pub.L. 100-659, § 4(c), 102 Stat. 3918; Nov. 18, 1988,

Pub.L. 100-690, Title VII, § 7322, 102 Stat. 4467; Nov.

19, 1988, Pub.L. 100-702, Title IV, § 404(b)(1), Title

X, § 1014, 102 Stat. 4651, 4669; Dec. 1, 1990, Pub.L.

101-650, Title III, § 308(a), 104 Stat. 5112.)

59a

UNITED STATES DISTRICT COURTS

FOR THE SOUTHERN AND EASTERN

DISTRICTS OF NEW YORK

JOINT RULES FOR

GENERAL, CIVIL, CRIMINAL,

ADMIRALTY AND MAGISTRATE

PROCEEDINGS

EFFECTIVE OCTOBER 26, 1983

7th printing—November 199]

Rule 9. Issuance of Warrants and Hearings

Pursuant to 18 U.S.C. Sec. 3184 magistrates are em-

powered to issue warrants for the apprehension of per-

sons and conduct hearings and consider the evidence in

the extradition proceedings referred to therein.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.