The opinion of the court was delivered by: BARRY TED MOSKOWITZ
Philippe Sauvage is a faith healer from Brittany, France. On December 28, 1990, Sauvage, who's name is Gouezh in Brittany, appeared on the French TV show, "If We Were Told Everything", and discussed his alleged powers to heal the incurable through prayer. An organization named "OJD" accepted money from seriously ill people in return for Sauvage's faith healing services. Numerous persons were not healed and filed complaints with the French authorities. An investigating magistrate in Paris issued an international warrant for the arrest of Sauvage for swindling persons in violation of Section 405 of the French Penal Code. Sauvage was arrested pursuant to that warrant in Escondido, California. France now seeks his extradition.
In order for this court to certify Sauvage's extraditability, the government must establish: 1) the existence of a warrant for Sauvage's arrest; 2) the existence of a treaty providing for extradition for the charged offense for which the warrant was issued; 3) that Sauvage is the person named in the warrant; 4) that there is probable cause to believe that Sauvage committed the offense charged; and 5) that the facts alleged would also constitute an offense in the United States (dual criminality). 18 U.S.C. § 3184, Treaty of Extradition, Jan. 6, 1909, U.S.-Fr., T.S. No. 561. The defendant concedes that a warrant exists, that he is the person named in the warrant and the offense charged is covered in a valid extradition treaty between the United States and France. Sauvage contests, however, the existence of probable cause and dual criminality.
In support of its extradition request, the government filed the French prosecutor's request for extradition, the Findings of Claude Linas, the investigating magistrate in Paris, a list of approximately 200 complainants and the statements of five witnesses. At a hearing held on January 19 to 21, 1993, the defendant offered evidence as to the elements of Section 405 of the French Penal Code from a French attorney practicing criminal law and evidence explaining the circumstances of the charges against Sauvage. From the record, the following facts emerge.
Philippe Sauvage is a native of Brittany, France. He engages in the practice of faith healing. He contends that God has given him the power to heal the incurable through prayer. Sauvage and his mother have been engaged in this practice for many years. The name "Sauvage" is the French equivalent of "Gouezh" in the language of Brittany - thus the defendant's actual name is Philippe Gouezh.
On December 28, 1990, the defendant appeared on the popular French TV show, "If We Were Told Everything", hosted by Patrick Sabatier. While the government did not present detailed evidence as to what was actually said or represented, it appears that the defendant told of his powers of healing through prayer. Five persons appeared along with Sauvage and told the audience that they had suffered from incurable diseases and cancer but had been cured by Sauvage's prayers. The record is devoid of any evidence as to what the five persons actually represented, what their pre-existing conditions were, and whether any such ailments had in fact existed but were then in remission. In a fraud or swindling case, proof of the actual representations is crucial. Here, the court was not given a transcript of the TV presentation or even a detailed synopsis. However, it appears that Sauvage made no mention of payment for his prayer services and he did not provide an address or phone number for people to contact him. There was no evidence presented that Sauvage was soliciting prayer healing business on the show.
According to the prosecutor and investigating magistrate, the television station received "millions" of letters and phone calls following the broadcast from people seeking to contact Sauvage so they or their relatives could be healed. In response, the television station broadcasted Sauvage's address.
The letters sent to the television station were gathered by Sauvage's friend, Marie-Josee Peiffer, who contends she was cured by Sauvage's prayers. Peiffer organized a company called "Ordalie Jugement de Dieu" (OJD) (the Ordeal by God's Judgment) to select persons for Sauvage to pray for and collect payments for his services. Certain letters were selected and their authors normally were contacted by Peiffer or other persons connected with OJD. One declarant, Jeanne Virleux, stated that a person claiming to be Sauvage himself called her from his car phone and directed her to call his office for an appointment to speak to his assistant. Many persons also called Sauvage's phone number in Plouaret, Brittany, where a woman answered and gave them Sauvage's address in Nanterre.
OJD agents allegedly identified approximately 500 persons who could possibly benefit from Sauvage's prayers. OJD personnel would contact these people, interview them and request a lock of hair, a photograph, and sometimes a sample of the person's writing all of which were to be given to Sauvage who allegedly could work his miracles through prayer without ever meeting the afflicted. The OJD agents further required a downpayment of from 6,000 to 30,000 francs in order for Sauvage to begin his healing efforts. Some portion of the funds collected were to be used for charitable purposes. Those seeking Sauvage's help were also required to sign an "Intercession Protocol", explaining what the patients could expect from Sauvage. The Protocol was sometimes signed before paying the downpayment, and at other times, it was not signed until after the downpayment had already been paid. The "Intercession Protocol" read in part,
3) Aknowledging [sic] that, concerning the exclusively metaphysical dimension in which such an intercession could be set up, I am not expecting any kind of effect, physically or concretely perceptible and I admit completely and without any reserves that from a materialistic point of view it should be totally chimerical to fear or to expect the coming of any demonstrable or even simply objectivable[sic] event and similarly, regarding the exclusive spiritualistic perspective inside of which Philippe Gouezh is taking place, such an expectation would be the very constitutive element of a highly blasphemous approach.
(Def. Ex. A., emphasis in original).
Some people complained to the French authorities that they paid money to OJD and had not been healed, but rather, their condition had deteriorated. The police sent a letter to all persons who had contacted Sauvage, explaining that the arraignment judge had charged Sauvage, among others, with fraud, false advertising, and illegal practice of medicine. The police asked whether any person wished to file a complaint. A list of the names of approximately 200 complainants was submitted to the court as an appendix to the French prosecutor's request for extradition. The government submitted declarations from only five of those complainants. The French prosecutor also stated in his request for extradition that "an important stock of war weapons" were discovered in Sauvage's residence. In fact, two guns, a handgun and a hunting rifle of forbidden caliber, were found. No request for extradition is brought for firearms violations.
According to the evidence presented, OJD agents advised Jean Papin, Jeanne Virleux, Djedligua Merbouche, and Fabrice Marchal that the afflicted person should discontinue his or her chemotherapy or other traditional medical treatment. However, Jeanine Girault stated that OJD's agents did not advise her to discontinue the physiotherapy prescribed for her paralysis.
OJD agents also told the persons contacted that some of the funds collected would go to charitable organizations and causes. It is not clear as to the proportion of the funds that were represented to go to charitable causes. OJD collected approximately five million francs. The evidence is clear that at least 300,000 francs of the money collected was donated to various charitable causes related to the preservation of the environment, certain animal species, and native peoples
and 900,000 francs was used in some form for the purpose of preservation of the Inuit peoples in Greenland. OJD funds were also used to purchase a boat and a Mercedes. The boat, a 34-foot motor vessel, was allegedly used in the resettlement of the Inuit natives in Greenland. The government submitted no evidence to show that Sauvage directly received any funds from OJD or even possessed the Mercedes. However, Sauvage appears to have been provided with subsistence from OJD while he was in Greenland planning for the opening of an "archeotherapy center" where more wealthy patients could stay for healing. Sauvage allegedly prayed for some of the people while he was residing in Greenland.
Notwithstanding OJD's promises of curative prayer by Sauvage. The five persons noted in the declarations among other subscribers were not healed and two of the five afflicted ...