Petition for Writ of Certiorari — Snider v. Seung Lee

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03-973 FEB3- 200

IN THE

Supreme Court of the United States

KENZI NORIS ELIZABETH SNIDER,

Petitioner,

Vv.

SEUNG LEE.

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

JEFFREY T. GREEN J. SAMUEL TENENBAUM*

SARAH O’ ROURKE SCHRUP NORTHWESTERN UNIVERSITY

NORTHWESTERN SCHOOL OF LAW

UNIVERSITY BLUHM LEGAL CLINIC

SUPREME COURT 375 East Chicago Avenue

PRACTICUM Chicago, IL 60611

375 East Chicago Avenue (312) 503-8576

Chicago, IL 60611

(312) 503-8576

Counsel for Petitioner

February 3, 2010 * Counsel of Record

Ret SS SRNR

WILSON-EPES PRINTING Co., Inc. — (202) 789-0096 — VWVASHINGTON, D.C. 20002

QUESTIONS PRESENTED

I. Whether a plaintiff can use an acquittal by a

foreign tribunal to satisfy the favorable termination

requirement in a Bivens malicious prosecution claim

against an FBI Agent who coerced her confession in

the United States, where that confession resulted in

her extradition to the foreign country.

Il. Whether a Fourth Amendment malicious

prosecution claim is a cognizable Bivens action when

a federal Agent coerces a defendant to falsely confess

and uses that false confession to obtain an order for

extradition.

(1)

PARTIES TO THE PROCEEDING

The Petitioner is Kenzi Noris Elizabeth Snider.

Respondent is Sueng Lee, Federal Bureau of

Investigation Agent.

TABLE OF CONTENTS

QUESTIONS PRESENTED.......................... iteeiad

PARTIES TO THE PROCEEDINGS .......0..........

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CONSTITUTIONAL AND STATUTORY

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STATEMENT OF THE CASE.......000000............000-

I. FACTUAL ALLEGATIONG..........................

if, PROCEEDINGS AND DECISIONS

SUIMMARY OF THE ARGUMENT .......00000........

RE ciicicnsnininctaniitnaieninmasninnsenntandioins

I. THE FOURTH CIRCUITS HOLDING

THAT AN ORDER OF EXTRADITION

QUALIFIES AS A FINAL JUDGMENT

THAT ACTS AS A TERMINATION OF

CRIMINAL PROCEEDINGS IS _ IN

CONTRAVENTION OF THIS COURT'S

LOGIC IN HECK V. HUMPHREY, AND

AT LEAST FIVE OTHER CIRCUITS..........

Il. THIS COURT SHOULD FIND FOURTH

AMENDMENT MALICIOUS

PROSECUTION CLAIMS VALID...............

A. This Court Has Not Decided the Validity

or Scope of a Fourth Amendment

Malicious Prosecution Claim...................

(111)

Page

TABLE OF CONTENTS—continued

B.A Federal Malicious Prosecution Claim

Is Necessary to Protect People Who Are

Injured Due to the Wrongful Initiation

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APPENDIX A: Snider v. United States, 584

if & Fo Ty RS een

APPENDIX B: Snider v. United States, No.

3:07-0335 (S.D.W. Va. Mar. 10, 2008)

(memorandum opinion and order)...................

APPENDIX C: Snider v. United States, No.

3:07-0335 (S.D.W. Va. Feb. 6, 2008)

(memorandum opinion and order) ...................

APPENDIX D: Snider v. United States, 584

F.3d 193 (4th Cir. 2009) (judgment) ....... Sovailionts

APPENDIX E: Snider v. Divittis, No. 3:07-0335

(S.D.W. Va. May 24, 2007) (complaint) ...........

APPENDIX F: Jn the Matter of the Extradition

of Kenzi Noris Elizabeth Snider, Misc. No.

3:02-M-0030 (S.D.W. Va. Oct. 11, 2002)

(memorandum and order) ................................

APPENDIX G.: In the Matter of the Extradition

of Kenzi Noris Eliz eth Snider, Misc. No.

3:02-MC-30 (S.D.W. Va. Mar. 11, 2002)

RIES AN MRED NE

Page

28a

48a

57a

58a

8la

90a

TABLE OF AUTHORITIES

CASES Page

Albright v. Oliver, 510 U.S. 266 (1994) ....... 20

Am. Banana Co. v. United Fruit Co.,

ee ee i 19

Baker v. McCollan, 443 U.S. 137 (1979)...... 21

Benson v. McMahon, 127 U.S. 457 (1888)... 16, 17

Bingham v. Bradley, 241 U.S. 511 (1916)... 17

Caplan v. Vokes, 649 F.2d 1336

Le IRR ee oe eC RRR I 15

Charlton v. Kelly, 229 U.S. 447 (1913)........ 16, 17

Collins v. Loisel, 259 U.S. 309 (1922).......... 16

Fernandez v. Phillips, 268 US. 311

LRRD IR PAR een men Re Ren ae eM fe 16

Gauger v. Hendle, 349 F.3d 354, 359

BE I atten icc urtacgra eg ert ees ae

Harris v. Bornhorst, 513 F.3d 503

(6th Cir. 2008), cert. denied, 128 S. Ct.

EE et a anne R ORR ta R RIA RE 20, 21

Heck v. Humphrey, 512 U.S. 477

SOIR Sos A RE 12, 14, 20, 22

Hooker v. Klein, 573 #©#F.2d ~~ 1360

Ee RR Ls | SPREE: Soar NEWT 15, 16

Hoxha Vv. Levi, 465 F.3d 554

I i een 15

Janetka v. Dabe, 892 F.2d 187

ARR aiereerarmree - Rate Semeiee, ke 14

Jhirad v. Ferrandina, 536 F.2d 478

AS SERRE .. 15, 16, 17

Kjellsen v. Mills, 517 =‘$F.3d = 1232

ae ee eee 21

Kossler v. OCrisanti, 564 F.3d = 181

nr eens 14

Lassiter v. City of Bremerton, 556 F.3d

I ts II ican ocho ec casesnrecineectacteaaames 21

TABLE OF AUTHORITIES—continued

Martin v. Warden, 993 F.2d 824

I io cceemnosousseneoouen

Matter of Assarsson, 635 F.2d 1237

(7th Cir. 1980) ...... 7 Fe EP a Uk eT RAPE

McKenna v. City of Philadelphia, 582 F.3d

I cceuemepnnns

Noel v. United States, 12 F. Supp. 2d 1300

(M.D. Fla. 1998), affd 180 F.3d 274 (11th

IE ooo a idiccuneouteabernenees

Roberts v. Babkiewicz, 582 F.3d 418

Sidali v. INS, 107 F.3d 191 (3d Cir. 1997)..

Singleton v. City of New York, 632 F.2d 185

a 2. os dimeskannneneeenees

United States v. Kirby, 106 F.3d 855

in ccecieienneeumennde

United States v. Lui Kin-Hong, 110 F.3d

a comeaniinniie

Wallace v. Kato, 549 U.S. 384 (2007)...

Wilkins v. DeReyes, 528 F.3d a

ERE at, SIDED cnceccncovessiesccecerccssoeces Cane

STATUTE

I I ion a censanemnvansareusnnntosrtareses

OTHER AUTHORITIES

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Restatement (Second) of Torts § 660 cmt. a

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OPINIONS BELOW

The opinion of the Fourth Circuit is reported at 584

F.3d 193. The district court’s opinion is reported at

2008 U.S. Dist. LEXIS 19212.

JURISDICTION

The judgment of the court of appeals was entered

on October 6, 2009. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

United States Constitution, Amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonab!e searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause... .

18 U.S.C. § 3184:

Whenever there is a treaty or convention for

extradition between the United States and any

foreign government, or in cases arising under

section 3181(b), any justice or judge of the

United States, or any magistrate judge

authorized so to do by a court of the United

States, or any judge of a court of record of

general jurisdiction of any State, may, upon

complaint made under oath, 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, or provided for

under section 3181(b), issue his warrant for the

apprehension of the person so charged, that he

may be brought before such justice, judge, or

magistrate judge, to the end that the evidence of

criminality may be heard and considered.

xxx«*r

If, on such hearing, he deems the evidence

sufficient to sustain the charge under the

provisions of the proper treaty or convention, or

under section 3181(b), he shall certify the same,

together with a copy of all the testimony taken

before him, to the Secretary of State, that a

warrant may issue upon the requisition of the

proper authorities of such foreign government,

for the surrender of such person, according to the

stipulations of the treaty or convention; and he

shall issue his warrant for the commitment of

the person so charged to the proper jail, there to

remain until such surrender shall be made.

STATEMENT OF THE CASE

I. FACTUAL ALLEGATIONS

On March 18, 2001, several exchange students,

including Miss Snider and Miss Penich, went to a

bar in Itaewon, South Korea, where they met and

socialized with a group of United States Army

soldiers. Miss Snider and Miss Penich were the last

among the group to leave the bar. Pet. App. 42a. By

the time Miss Snider and Miss Penich left the bar,

Miss Penich was intoxicated and required assistance

returning to the hotel. Jd. at 43a. Miss Snider

helped Miss Penich to her room and then went to her

own room to sleep. The next morning, on March 19,

2001, Miss Penich was found dead. She had been

stomped to death. /d. at 4la-42a. About a year later,

despite a complete lack of physical evidence tying

Miss Snider to Miss Penich’s murder, Miss Snider

was arrested for Miss Penich’s murder and extradited

to South Korea. After spending nearly ten months in

United States’ jail and six months in South Korean

prison, Miss Snider was exonerated by the Seoul

District Court, but then forced to remain in Korea for

another eighteen months while awaiting appellate

review of her case. Id. at 5la-52a.

Because of the violent nature of Miss Penich’s

death, the crime scene was very bloody. Despite the

bloody scene, no blood or physical evidence was ever

found on Miss Snider’s clothing, in her room, or in the

hallway leading to her hotel room. Pet. App. 7la.

Additionally, following the murder, several witnesses

reported seeing a man loitering in the hallway

outside of Miss Penich’s room, hearing a struggle

coming from Miss Penich’s room, and seeing a man

leave the hotel with blood on his pants. Z/d. at 105a-

107a.

Miss Snider, the soldiers, and the five other

students traveling with Miss Penich were questioned

during the initial investigation, but the Korean police

made no arrests. Pet. App. 43a-44a. Given the

absence of any evidence linking Miss Snider to the

crime and the presence of evidence indicating a male

perpetrator, the Korean police had no reason to

suspect that Miss Snider murdered Miss Penich. Id.

at 71a. Because the Korean authorities were unable

to make any arrests, the FBI and the Korean

government suffered intense political scrutiny for

their failure to solve the crime. Jd. at 73a-74a; id. at

107a-108a. The Korean investigation continued over

the next several months, but with no demonstrable

leads and no arrests. While Korean investigators

were struggling, FBI Agents Mark Mansfield and

Seung Lee traveled to South Korea to assist the

Korean authorities. Jd. at 46a. Although Mansfield

was part of the initial murder investigation in South

Korea, Lee was new to the case. /d. at 45a-46a.

Neither Lee nor Mansfield had ever investigated a

homicide before. Id. After conducting some

investigatory work in South Korea, the Agents

returned to the United States. Nearly a year after

Miss Penich’s murder, in February 2002, Mansfield

and [ee contacted Miss Snider and requested that

she meet them at a Ramada Hotel in Huntington,

West Virginia. /d. at 48a.

Prior to Miss Snider’s interrogation, while looking

through reports and statements, Mansfield noticed a

large boot print on the back of a copy of Miss Snider’s

original statements to Korean police during the week

of the murder. Pet. App. 46a. Hoping that the print

was related to the content on the other side of the

statements, thereby incriminating Miss Snider,

Mansfield and Lee asked the Korean detectives who

prepared the papers to explain the presence of the

footprint. Jd. at 46a. The detectives explained that

the paper that the statement was written on had

been used during boot print testing and then later

reused to copy Miss Snider’s statement. /d. Thus,

the presence of the print on the statement was mere

coincidence. Despite having no evidence implicating

Miss Snider and because of the intense political

pressure to solve the crime, Mansfield and Lee

focused their investigation on Miss Snider and made

plans to interrogate her. Jd. at 73a-74a; id. at 107a-

108a. In advance of their meeting with her, the

Agents developed a “lesbian theory” of the crime, in

which Miss Snider supposedly killed Miss Penich in a

jealous, romantic rage. Id. at 95a-96a.

Based on their self-proclaimed “lesbian theory” and

notwithstanding FBI Behavior Analyst Mark

Safarik’s suggestion that the killer was likely male,

eyewitness accounts that likewise suggested a male

perpetrator, and the complete lack of any physical

evidence linking Miss Snider to the crime, Mansfield

and Lee interrogated Miss Snider over the course of

three days in February 2002. Pet. App. 47a.

On the first day of the interrogation, February 4,

2002, the Agents focused on building a rapport with

Miss Snider; they led her to believe that the purpose

of their meeting with her was so that she could help

them solve her fniend’s murder. Pet. App. 78a; id. at

49a. Mansfield later described this as a fmendly,

“getting-to-know-you” session. /d. at 92a. Miss

Snider was susceptible to such rapport-building

tactics because she already knew Mansfield from the

initial Korean investigation. Jd. at 76a; id. at 92a.

None of the sessions were audio or videotaped

because the Agents were trained not to record

interrogations. /d. at 100a-10la. Similarly, no log or

notes were kept. Jd. at l1lla. Miss Snider brought a

friend with her to the hotel; however, the Agents

would not allow her to bring her friend into the

interrogation room and took Miss Snider to another

floor of the hotel, alone. Jd. at 77a. Although the

interrogation took place in Lee’s hotel room, the

Agents did permit Miss Snider to leave the room

briefly to speak with her fnend. /d.

At the end of the first day of the interrogation, the

Agents asked Miss Snider to complete a “homework

assignment,” by writing down what she remembered

of the events from the night of the murder. Pet. App.

49a. Miss Snider completed the assignment, and the

statement indicated her innocence. I/d.

On the second day of the interrogation, Miss Snider

brought her “homework assignment” to the Agents,

along with ice cream to share. Pet. App. 78a-79a. A

few hours into this second questioning session, the

Agents shifted tactics. Divittis moved to the bed

where Miss Snider was sitting, and the Agents told

Miss Snider that her account of the night of the

murder was inconsistent. /d. at 80a.

When the interrogation became hostile, Miss Snider

asked the Agents if she needed a lawyer. She stepped

outside the room for about ten seconds and then

reentered. Pet. App. 80a-8la. The Agents replied

that a lawyer would make things harder on her

because they would be unable to say that she

cooperated with the investigation. /d. at 120a-121a.

They recommended that she cooperate without a

lawyer present. Jd. Wishing to demonstrate her

innocence and believing that contacting a lawyer

would compromise her ability to do so, Miss Snider

relented. Jd. At that time, Lee and Mansfield placed

themselves between Miss Snider and the door,

blocking her ability to exit the room. Id. at 85a.

Next, the Agents discussed the phenomenon of

“repression” with Miss Snider. Pet. App. 96a-98a.

They also provided her with disturbing information

and photos of the crime scene and asked her leading

questions to help her “recall” repressed memories.

Id. at 49a-50a. They hypothesized that there was a

lesbian encounter between Miss Snider and Miss

Penich that triggered the attack, though there was no

evidence that either woman had any homosexual

tendencies. Jd. at 88a-89a. Though Miss Snider

became visibly upset by the interrogation and

maintained her innocence, the Agents yelled at her,

called her a liar, and insisted that her inability to

recall the murder was attributable to “repression.”

Id. at 49a-50a. The Agents further misrepresented

the potential penal consequences under Korean law,

which included the death penalty: they told Snider

that extradition to South Korea would be difficult and

that the charged suspect would be treated leniently

Id. at 91a-92a; id. at 110a.

With the agent-fueled misrepresentation of the

consequences of a confession, and after five hours of

interrogation in which Miss Snider was no longer

able to discern her true memories from those

suggested to her by the Agents, she finally acquiesced

and accepted the version of the murder proffered by

the Agents. Pet. App. 92a-94a; id. at 50a. At no time

during the interrogation was Miss Snider read her

Miranda rights. Jd. at 72a-73a.

After Miss Snider accepted the Agents’ view of

events, the Agents asked her to return for a third day

of interrogation. Pet. App. 85a. After a sleepless

night, Miss Snider returned and the Agents told her

that they would like to get her confession in writing.

Id.: id. at 121a. Mansfield handwrote the confession,

which Miss Snider signed. Id. at 86a.

After Miss Snider’s interrogation, an investigation

was undertaken to find physical evidence linking

Miss Snider to the murder. Miss Snider’s DNA was

not found on the body or at the crime scene. Pet.

App. 83a-85a; id. at 87a. No blood stains were found

on the clothing that Miss Snider wore on the night of

the murder, even though she was wearing the same

pants the night of the murder and the morning after

the murder when Miss Penich’s body was discovered.

Id. at 99a-100a; id. at 122a-123a. While physical

evidence implicating Miss Snider was never found,

the investigation revealed semen in Miss Penich’s

underwear and Type B blood, the same as Miss

Penich’s, near the South Korean hotel’s exit, even

though there was no evidence that Miss Snider left

the hotel that night or was otherwise near the exit.

Id. at 103a; id. at 7la. In addition, a blood Type A

hair was found under Miss Penich’s head, which did

not match Miss Snider, Miss Penich, or Miss Penich’s

roommate. /d. at 104a.

On February 28, 2002, extradition proceedings

were initiated before the United States District Court

for the Southern District of West Virginia. Pet. App.

5la. Miss Snider was extradited on December 20,

2002. Id. Other than the confession, no evidence was

developed or introduced tying Miss Snider to the

murder. Jd. at. 39a. In fact, during the hearing,

expert witness Richard Ofshe testified that the

prepared statement that Miss Snider signed was

“deeply troubling,” that it had “elements... that

suggest strongly that it could be a false confession,”

and that there was a “lack of independent

corroboration of [Miss Snider] having perpetrated the

crime.” Jd. at 129a.

Miss Snider was acquitted by the Seoul District

Court on June 19, 2003, and her acquittal was upheld

both by the appeals court and by the Korean Supreme

Court. Pet. App. 39a-40a.

Il. PROCEEDINGS AND DECISIONS BELOW

On May 24, 2007, Miss Snider filed a complaint

against Agents Divittis, Mansfield, and Lee in the

United States District Court for the Southern District

of West Virginia. Pet. App. 38a. In the complaint,

Miss Snider alleged that the false confession elicited

from her by the Agents resulted in her extradition to

South Korea and her imprisonment for more than

fifteen months for a crime that she did not commit.

Id. at 40a.!

Miss Snider stated five claims against the Agents:

(1) a Fifth Amendment claim of coerced confession;

(2) a Fifth Amendment claim for deprivation of the

right to a fair trial, wrongful extradition, and

wrongful imprisonment; (3) a Fifth Amendment claim

for failure to intervene; (4) a Fourth Amendment

claim for false imprisonment; and (5) a Sixth

Amendment claim for denial of counsel. Pet. App.

41a-42a.

On March 10, 2008, the District Court dismissed all

of the above claims on statute of limitations grounds,

except for the Fifth Amendment claim for deprivation

of the mght to a fair trial, wrongful extradition, and

wrongful imprisonment. Pet. App. 28a-47a.

Agent Lee filed a Motion to Dismiss, or in the

alternative, for Summary Judgment on grounds of

qualified immunity. The District Court denied the

motion, reasoning that:

Taking Plaintiffs version of the facts as true for

this inquiry, there were psychological influences

from the officers that resulted in her coerced

confession; Plaintiff was entitled, but not

permitted, to consult with an attorney; and the

officers failed to intervene to protect her. These

facts, if true, establish that Defendant Lee

violated at least one constitutional right.

Pet. App. 36a-37a. The court further held that

“officers are not entitled to coerce a confession, that

1 Defendants Divittis and Mansfield are not parties to this

action because they were not served until very recently and

were not part of the District Court or Fourth Circuit

proceedings.

individuals in custodial interrogations are entitled to

counsel, and that officers have a duty to intervene to

protect certain individuals in circumstances where

they may be harmed by another officer.” Jd. at. 37a.

According to the court, Lee clearly “played a role in

the initiation of the criminal proceedings” against

Miss Snider, and Miss Snider “establishe[d] a basis

for her claims” so that summary judgment was

precluded. Id. at 46a.

The District Court found that, viewing the facts in

the light most favorable to the Miss Snider, there

were genuine issues of material fact as to whether

Agent Lee violated Miss Snider’s clearly established

constitutional rights. Therefore, Agent Lee was not

entitled to qualified immunity. Pet. App. 38a.

On October 6, 2009, the Fourth Circuit found that

Lee was entitled to summary judgment on the basis

of qualified immunity because Miss Snider failed to

show a_ well-established constitutional violation.

Without deciding if the Constitution guarantees a

right to be free from malicious prosecution, the Court

held that even if a malicious prosecution cause of

action exists, Miss Snider failed to make out a valid

claim because she failed to show that she met one

element of the cause of action: “favorable termination

of the criminal proceeding flowing from the seizure.”

Pet. App. 12a. The Court rejected Miss Snider’s

argument that her acquittal by the South Korean

Supreme Court served as the favorable termination of

the criminal proceeding flowing from her seizure in

the United States. The court instead found that:

[T]he extradition hearing did not terminate in

Snider's favor [and] [ijt is the extradition

proceeding to which we must look for

determining whether Snider was successful for

purposes of a malicious prosecution claim under

the Fourth Amendment because her seizure was

effected only for the purpose of conducting the

extradition hearing.

Pet. App. 16a (emphasis in original).

Concurring in judgment only, Judge Stamp

accepted Miss Snider’s argument that her acquittal in

South Korea constituted favorable termination of the

criminal proceeding against her. Judge Stamp noted

that viewing Miss Snider’s arrest as solely for the

purpose of the extradition hearing was “an overly

narrow characterization of the reasons underlying

Snider’s seizure” and that “the extradition hearing

was merely a means of prosecuting the broader

criminal action against Snider.” Pet. App. 20a

(Stamp, J., concurring).

SUMMARY OF THE ARGUMENT

The Fourth Circuit erred by holding that the

extradition order constituted a “final judgment” that

terminated the criminal proceeding against Miss

Snider. Pet. App. 16a. Although a foreign tribunal

acquitted Miss Snider of all charges, the Fourth

Circuit nevertheless held that she could not satisfy

the “favorable termination” requirement of a Bivens

malicious prosecution claim. These holdings diverge

from Second, Third, Seventh, Ninth and Eleventh

Circuit precedent regarding the character and scope

of extradition proceedings. Furthermore, the Fourth

Circuit’s decision misunderstands the nature of

extradition hearings. An extradition order merely

constitutes a finding of probable cause and does not

terminate the criminal proceeding.2 The Fourth

Circuit’s holdings also disregard the fundamental

purpose of the favorable termination requirement of a

malicious prosecution claim: to prevent people from

challenging guilty verdicts through malicious

prosecution civil suits. Heck v. Humphrey, 512 U.S.

477, 484 (1994). Because Miss Snider was acquitted,

she is not challenging a guilty verdict through a

malicious prosecution § claim. Therefore, the

extradition order should not prevent her from seeking

redress for violations of her constitutional rights.

Under the Fourth Circuit’s logic, government Agents

may coerce confessions from American citizens

without fear of malicious prosecution as long as those

citizens are tried outside the United States.

This case also provides this Court with the

opportunity to clarify the scope of a federal malicious

prosecution cause of action. In Wallace v. Kato, this

Court declined to take a position on the validity of

malicious prosecution claims under § 1983. 549 U.S.

384, 390 n.2 (2007). As a result, the law of malicious

prosecution varies drastically by circuit, with half the

circuits recognizing a federal malicious prosecution

cause of action. Although federal law provides causes

of action for constitutional violations similar to

malicious prosecution, none of these claims provides

remedy for the entire length of detention or

incarceration. A federal malicious prosecution cause

of action is thus necessary to supplement these

remedies. See Heck, 512 U.S. at 484 (stating that

malicious prosecution “permits damages for

confinement imposed pursuant to legal process”).

2 An order denying extradition would clearly be a favorable

termination since it would end the criminal proceedings and

establish that not even probable cause exists.

The Court should use this opportunity to clarify the

requisite elements of a federal malicious prosecution

claim. Because the prevalence of extradition

hearings will continue to affect a large number of

citizens, this Court should find that extradition

orders do not constitute an unfavorable termination

in a malicious prosecution claim.

ARGUMENT

I. THE FOURTH CIRCUITS HOLDING THAT

THAT AN ORDER OF EXTRADITION

QUALIFIES AS A FINAL JUDGMENT THAT

ACTS AS A TERMINATION OF CRIMINAL

PROCEEDINGS IS IN CONTRAVENTION

OF THIS COURT'S LOGIC IN HECK V.

HUMPHREY, AND AT LEAST FIVE OTHER

CIRCUITS.

The Fourth Circuit’s decision diverges from Second,

Third, Seventh, Ninth, and _ Eleventh Circuit

precedent regarding the character and scope of

extradition proceedings. The Fourth Circuit held

that a defendant acquitted by a foreign tribunal is

barred from bringing a malicious prosecution claim

because an order of extradition is a “final judgment”

constituting an unfavorable termination of criminal

proceeding. This holding misstates the purpose of an

extradition order, which does not terminate the

criminal proceeding. Review by this Court is

warranted to correct the circuit split created by the

Fourth Circuit’s decision.

Malicious prosecution generally requires a plaintiff

te show four elements: “(1) the defendant initiated of

maintained a criminal proceeding; (2) the criminal

proceeding terminated in plaintiffs favor; (3) the

proceeding was not supported by probable cause; and

(4) the plaintiff suffered deprivation of liberty

consistent with the concept of seizure as a

consequence of a legal proceeding.” Pet. App. 17a

(Stamp, J., concurring). The favorable-termination

requirement of the underlying criminal proceeding is

the threshold issue for a malicious prosecution claim.

Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989).

This requirement prevents plaintiffs from challenging

a guilty verdict through a civil suit. Heck, 512 U.S. at

485. The relevant inquiry for this element of a

malicious prosecution claim is the termination of the

entire criminal proceeding. See Kossler v. Crisanti,

564 F.3d 181, 188 (3d Cir. 2009). Terminations are

favorable where “their final disposition is such as to

indicate the accused is not guilty.” Singleton v. City

of New York, 632 F.2d 185, 193 (2d Cir. 1980); see

also Restatement (Second) of Torts § 660 cmt. a

(1977). Terminations are unfavorable only where

they tend to indicate guilt. See Singleton, 632 F.2d at

193; Kossler, 564 F.3d at 187.

Unlike a final judgment, an extradition order

continues, rather than terminates, the criminal

proceeding. The purpose of an extradition hearing is

not to adjudicate the merits of the case, but rather to

determine whether there is probable cause to

prosecute. Despite the preliminary nature of such

hearings, the Fourth Circuit held that an extradition

order is a “final judgment.” Pet. App. 16a. The Court

further held that “because [Miss Snider’s] seizure was

effected only for the purposes of conducting the

extradition hearing,” the extradition proceeding was

the relevant inquiry for purposes of a malicious

prosecution claim. Jd. In the extradition hearing, the

magistrate judge found probable cause and ordered

Miss Snider’s extradition. The Fourth Circuit held

that the extradition order constituted an unfavorable

“final judgment” that barred Miss Snider’s malicious

prosecution claim, despite her ultimate acquittal in

South Korea. Although the Fourth Circuit correctly

noted that final judgments are appropriate rulings

for the favorable termination requirement, it

departed from other circuits in holding that

extradition orders constitute final judgments.

The Second, Third, Seventh, Ninth, and Eleventh

Circuits have specifically stated that extradition

orders do not constitute final judgments. Jhirad v.

Ferrandina, 536 F.2d 478, 482 (2d Cir. 1976); Matter

of Assarsson, 635 F.2d 1237, 1246-47 (7th Cir. 1980);

Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir. 1978);

Hoxha v. Levi, 465 F.3d 554, 560 (3d Cir. 2006); Noel

v. United States, 12 F. Supp. 2d 1300, 1302 (M.D. Fla.

1998), affd 180 F.3d 274 (11th Cir. 1999). As the

Ninth Circuit has state., an extradition hearing

“signals the start, rather than the conclusion, of

litigation of the fugitive’s guilt or innocence. As

opposed to a final judgment, it is truly an

interlocutory order, more akin to a _ preliminary

hearing on criminal charges.” Hooker, 573 F.2d at

1367 (emphasis added). Furthermore, “it cannot be

said that an order of extraditability constitutes a

final judgment for purposes of res judicata,” nor for

purposes of 18 U.S.C. § 3184. Id. at 1368; see also

Caplan v. Vokes, 649 F.2d 1336, 1340 (9th Cir. 1981)

(“Because a certification of extraditability is not a

‘final order,’ no direct appeal lies from. that

decision.”).

Because the vast majority of circuits have

recognized that extradition proceedings do not

determine guilt or innocence, are sui generis, are not

appealable, and do not use procedural safeguards

present at trials, the Fourth Circuit erroneously

concluded that the extradition hearing was the

“termination of the criminal proceeding” that

defeated Miss Snider’s claim for relief. Because

extradition hearings do not determine the guilt or

innocence of the accused, an extradition order is

neither a final judgment nor a termination of the

criminal proceedings. Assarsson, 635 F.2d at 1246;

Hooker, 573 F.2d at 1367. The Seventh Circuit noted

that an extradition order “does not constitute a final

judgment on the guilt or innocence of the accused.”

Assarsson, 635 F.2d at 1246-47 (emphasis added).

Instead, the purpose of extradition hearings is

limited to determining “whether there is ‘competent

legal evidence which .. . would justify {the accused’s]

apprehension and commitment for trial if the crime

had been committed in [the forum] state.” Hooker,

573 F.2d at 1367 (quoting Collins v. Loisel, 259 U.S.

309, 315, (1922)). This Court has _ likewise

acknowledged that an extradition hearing requires

only a showing of probable cause. Benson v.

McMahon, 127 U.S. 457, 462-63 (1888). See also

Collins v. Loisel, 259 U.S. 309, 314-15 (1922);

Charlton v. Kelly, 229 US. 447, 458 (1913);

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

However, the Fourth Circuit concluded that an

extradition order to a foreign tmbunal is an

unfavorable termination of the criminal proceeding,

even where the defendant is acquitted. In essence,

the Fourth Circuit conflated extradition with a

finding of guilt for purposes of a_ malicious

prosecution claim, a conclusion that is inconsistent

with the decisions of all the circuits to have

addressed the issue.

Moreover, extradition hearings cannot terminate a

criminal proceeding because they are not criminal in

nature. The Second, Ninth, and Eleventh Circuits

have found that extradition hearings are sui generis,

neither civil nor criminal. See Jhirad, 536 F.2d at

482; United States v. Kirby, 106 F.3d 855, 867 (9th

Cir. 1996); Martin v. Warden, 993 F.2d 824, 828 (11th

Cir. 1993). Instead, extradition proceedings are an

executive function for which “the judiciary serves [as]

an independent review.” Martin, 993 F.2d at 828.

Additionally, extradition orders cannot serve as

final judgments that terminate a criminal proceeding

because they cannot be appealed. This Court has

long recognized that extradition orders are not

appealable. Benson, 127 U.S. at 462-63. Because any

state, federal, or magistrate judge may issue

extradition orders, such orders “do not... constitute

‘final decisions of a distmct court” and are not

“appealable as of mght under 28 U.S.C. § 1291.”

Jhirad, 536 F.2d at 482; see also Sidali v. INS, 107

F.3d 191, 195 (3d Cir. 1997) (same).

Moreover, because extradition hearings do not

provide the procedural protections afforded at trial,

they cannot render final judgments that terminate

criminal proceedings. This Court has discussed the

procedural differences between extradition hearings

and trials. See Charlton, 229 U.S. at 462; Bingham

v. Bradley, 241 U.S. 511, 517 (1916). Individuals

subjected to extradition hearings are not entitled to

cross examine witnesses. /d. Evidence generally

inadmissible in a criminal proceeding can be

introduced. United States v. Lui Kin-Hong, 110 F.3d

103, 119 (ist Cir. 1997). The magistrate also may

exclude evidence of the accused’s potential defenses.

Charlton, 229 U.S. at 461-62. These procedural

deficiencies reveal that extradition hearings do not

allow courts to consider the merits of the case

because the hearings are intended to serve as the

first stage of the criminal proceeding.

Unhke decisions from other circuits, the Fourth

Circuit’s decision in Snider does not recognize the

lack of procedural protections inherent in extradition

hearings. As Judge Stamp’ concurrence noted, “[the

majority] does not seem...to acknowledge the

circumscribed purpose of an extradition hearing and

the limited ability of a defendant to challenge the

evidence presented against him or her in such a

proceeding.” Pet. App. 2la. It was thus error for the

Fourth Circuit to fail to recognize that the procedural

deficiencies inherent in extradition hearings indicate

that they do not constitute final judgments in

criminal proceedings.

Despite the limited and unique nature of

extradition proceedings, the Fourth Circuit deemed

the extradition hearing a “trial” and held that an

order of extradition is a final judgment. Pet. App.

16a. The Fourth Circuit reasoned that extradition

orders constitute final judgments because, after the

certification by the judicial officer and Secretary of

State, the case is outside the jurisdiction of the

United States judiciary. Jd. Such a conclusion is

inconsistent with the numerous cases holding that

extradition hearings do not determine guilt or

innocence; are sul generis; are not appealable; and do

not afford the same procedural safeguards available

at trial. Consequently, the Fourth Circuit erred in

holding that an extradition order is a final judgment

that unfavorably terminates the criminal proceeding.

Review by this Court is warranted to correct the

circuit split and the Fourth Circuit’s error. Without

clarification from this Court, the constitutional rights

of the many United States citizens subject to

extradition hearings will remain unclear and

circumscribed. Additionally, without guidance from

this Court, an extradition order can serve as

immunity from malicious prosecution claims because

extradited individuals can never satisfy the favorable

termination requirement. The decision regarding

whether extradition orders constitute final judgments

also has broad implications, as it may also apply to

rendition or interstate extradition.

Finally, the principle of comity of nations also

counsels that courts recogmize the validity of the

judgment of a foreign tribunal in this context. See

Am. Banana Co. v. United Fruit Co., 213 U.S. 347,

356 (1909) (“For another jurisdiction, if it should

happen to lay hold of the actor, to treat him according

to its own notions rather than those of the place

where he did the acts, not only would be unjust, but

would be an interference with the authority of

another sovereign, contrary to the comity of nations,

which the other state concerned justly might

resent.”). Thus, the Fourth Circuit erred when it

failed to recognize the validity of Miss Snider’s

acquittal in South Korea for purposes of a malicious

prosecution claim.

i. THIS COURT SHOULD FIND FOURTH

AMENDMENT MALICIOUS PROSECUTION

CLAIMS VALID.

A. This Court Has Not Decided the Validity

or Scope of a Fourth Amendment

Malicious Prosecution Claim.

This case demonstrates the need for the Supreme

Court to recognize a malicious prosecution cause of

action. In Wallace v. Kato, this Court declined to

take a position on the validity of malicious

prosecution claims under § 1983. 549 U.S. at 390 n.2.

Consequently, although almost every circuit court

has recognized some form of malicious prosecution,

the elements necessary to prove the claim vary by

circuit. This case provides the Court with the

opportunity to clarify the law regarding malicious

prosecutions.

The Wallace decision did not reconcile the diversity

of views left by the six opinion plurality of Albright v.

Oliver, 510 U.S. 266 (1994). Although the Court has

not opined on whether the Fourth Amendment

provides a Bivens claim for malicious prosecution, the

Court has said that the common law of torts

“provide[s} the appropriate starting point for the

inquiry under § 1983.” Heck, 512 U.S. at 483

(citation omitted). Malicious prosecution has long

been recognized by the common law. Id. The Court

in Heck analogized the petitioner’s claim to a claim

for malicious prosecution because the petitioner,

filing pro se, raised a § 1983 violation by a state

investigator who allegedly destroyed exculpatory

evidence. Since the alleged conduct was wrongfully

instituted legal process, not a lack of legal process,

the Court found malicious prosecution the best

analogy. Jd. at 484-85. Although the Court did not

find that the petitioner had a successful claim for

malicious prosecution because his conviction had not

been overturned, it discussed whether the facts fit

into the malicious prosecution framework. The Court

held that a conviction must be reversed, expunged or

declared invalid in order to bring a federal civil action

for allegedly unconstitutional imprisonment—in

essence, a favorable termination requirement. Id. at

489. Furthermore, this Court recognized the

widespread acceptance of malicious prosecution

claims in Albright v. Oliver. 510 U.S. 266, 271 (1994).

Although this Court has not yet recognized a

Fourth Amendment malicious prosecution claim,

many circuit courts have identified a Fourth

Amendment malicious prosecution claim. See

Roberts v. Babkiewicz, 582 F.3d 418 (2d Cir. 2009);

McKenna v. City of Philadelphia, 582 F.3d 447 (3d

Cir. 2009); Harris v. Bornhorst, 513 F.3d 503 (6th Cir.

2008), cert. denied, 128 S. Ct. 2938 (2008); Lassiter v.

City of Bremerton, 556 F.3d 1049 (9th Cir. 2009);

Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008);

Kjellsen v. Mills, 517 F.3d 1232 (11th Cir. 2008).

However, the Fourth Circuit has not yet incorporated

malicious prosecution into federal law.

B. A Federal Malicious Prosecution Claim

Is Necessary to Protect People Who Are

Injured Due to the Wrongful Initiation

of Legal Process.

A federal Fourth Amendment malicious prosecution

claim would apply to events such as rendition and

state extradition and would enable citizens to assert

their constitutional rights.

Federal law, through Bivens, provides causes of

action for constitutional violations similar _ to

malicious prosecution, such as false imprisonment

and false arrest. Section 1983 and Bivens actions are

specifically designed to provide a remedy when the

acts of a public official violate a _ person’s

constitutional rights. Baker v. McCollan, 443 U.S.

137, 142 (1979). The proscriptions against malicious

prosecution and false arrest result from the same

policy interest in_ protecting people from

unconstitutional conduct by state and federal agents.

Because the Court already recognizes false arrest as

a constitutional violation, the Court should likewise

recognize malicious prosecution as a constitutional

tort.

This Court has’ recognized that malicious

prosecution, false arrest, and false imprisonment

implicate different but equally important

constitutional rights:

Reflective of the fact that false imprisonment

consists of detention without legal process, a

false imprisonment ends once the victim becomes

held pursuant to such process—when, for

example, he is bound over by a magistrate or

arraigned on charges.... Thereafter, unlawful

detention forms part of the damages for the

“entirely distinct” tort of malicious prosecution,

which remedies detention accompanied, not by

absence of legal process, but by wrongful

institution of legal process.

Wallace, 549 U.S. at 389-90 (emphasis in original;

citations omitted). A malicious prosecution cause of

action would provide remedy for constitutional

violations for the duration of the legal process.

Because false arrest and false imprisonment claims

only require a showing that legal process was not

followed, such claims can only provide damage

awards for the time of detention before arraignment

or issuance of process. Likewise, a claim for abuse of

process is “limited to the harm caused by the misuse

of process, and does not include harm... resulting

from that process’s being carried through to its lawful

conclusion.” Heck, 512 U.S. at 486 n.5. A malicious

prosecution cause of action would provide remedy for

the entire length of detention or incarceration. See

id. at 484.

As Judge Posner in the Seventh Circuit has

commented, “it is shocking to think that a police

frame-up which lands a person on death row is not a

constitutional tort, though every false arrest made

without probable cause is.” Gauger v. Hendle, 349

F.3d 354, 359 (7th Cir. 2003).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,