# Petition for Writ of Certiorari — Snider v. Seung Lee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1038

## Text

S

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)

11

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..........
py SM St hk i ys | - oon nnnnen
EEE DEEIIOE neecsacinsicsuscorecenssnsnvenmacnan
Pe cticiisersicescusnseiacioncncsconsgentailinaeaidaaas

CONSTITUTIONAL AND STATUTORY
FTE wriiotininsdaseceninnsniasvmananssenbianainieieats

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

13

13
19

19

1V

TABLE OF CONTENTS—continued

B.A Federal Malicious Prosecution Claim
Is Necessary to Protect People Who Are
Injured Due to the Wrongful Initiation
ie >. o covaebaeseeaveneoccoseanness

IID sik oral dons ocdnuneniiateinaiiuiisondaiiipteamemninth
I icici tiie aiirdaninctsitdaiaeimndoouitiebasessineinoniiesniie’

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

21
23

la

la

28a

48a

57a

58a

8la

90a

V

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

v1

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
TE

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

ee ee nenskeesesdneuesues
Restatement (Second) of Torts § 660 cmt. a
eo ienaaearcoioenaielinwes

14

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

2
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

3

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

4

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.

5

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.

6

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.”

7

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

8

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

9

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.

10

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

1]

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

12

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.

13

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

14

(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

15

“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

16

“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,

17
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.

18

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

19

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

20

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

21

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

22

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).

23

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1610%3A1. Public record. Not legal advice.