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Patrick Joseph Mccabe v. United States of America

April 5, 2011

PATRICK JOSEPH MCCABE,
PETITIONER.
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DENYING PETITION FOR 12 WRIT OF HABEAS CORPUS (re: dkt. #1)

Petitioner Patrick Joseph McCabe ("Petitioner"), a former Catholic priest in Dublin, Ireland, is wanted by the Republic of Ireland on nine counts of indecent assault on six minors and 18 one count of attempted indecent assault on one minor. The minors are boys ranging from ages ten 19 to fourteen years old at the time of the alleged crimes. The United States, representing the 20 Nandor J. Vadas held an extradition hearing at which Petitioner was represented by counsel. On 22 Extraditability (hereafter "Extradition Order"). Presently before the Court is Petitioner's petition 24 for a writ of habeas corpus seeking to prevent extradition. The United States Government 25 Order, the Court concludes that the petition for writ of habeas corpus must be DENIED.

Republic of Ireland, requests the extradition of Petitioner. On January 31, 2011, Magistrate Judge 21 February 22, 2011, Magistrate Judge Vadas issued an Order Granting Request for Certificate of 23 ("Government") opposes the petition. Finding no merit to Petitioner's challenges to the Extradition 26

I.BACKGROUND

Both parties have adopted the factual findings made in the Extradition Order. See

Pet'n for Writ of Habeas Corpus at 2 [dkt. #1] ("Petitioner adopts the magistrate judge's factual 4 findings concerning the extradition warrants and evidence presented at the extradition hearing."); 5 see also United States Opp'n to Pet'n at 1 [dkt. #10] ("The respondent adopts the factual findings 6 made by Magistrate Judge Nandor Vadas in the Order."). Accordingly, the Court adopts those 7 factual findings in full for purposes of reviewing the habeas petition. 8

9 established to prove that Petitioner sexually molested six young school boys, between the period of 10

Ireland for Patrick McCabe ("Extradition Request"), attached as Exh. D to Pet'n for Writ of 14 Habeas Corpus [dkt. #1-2]. Petitioner has "admitted that he had a fetish for formal shirts and ties 15 worn by young boys, that these images sexually aroused him, and that he was unable to control his 16 urges." See In Re McCabe, 2011 U.S. Dist. LEXIS 22400, *4. 17

In 1988, Irish police filed their first allegations of misconduct against Petitioner; that same

18 year, Petitioner left the jurisdiction in which charges had been lodged. Id. at *3. Petitioner's 19 location was unknown to Irish law enforcement until 2003, when Interpol reported that Petitioner 20 was living in Alameda, California. Id. Officers of An Garda Siochana, the national police force of 21 the Republic of Ireland, interviewed Petitioner over three days from November 7-9, 2007. At those 22 interviews, Petitioner confirmed that he had been a priest for the Archdiocese for the City of 23 Dublin, Ireland from 1961 to 1983, and stated that he left the priesthood against his will in 1988 24 because of allegations of child sex abuse. Id. at *4. 25

As detailed in the factual findings of the Extradition Order, probable cause has been

1973 and 1981, while he was a Catholic priest in various parishes around Dublin, Ireland. See In re McCabe, 2011 U.S. Dist. LEXIS 22400, *1-20 (N.D. Cal. Feb. 22, 2011) (identifying evidence in support of each of the ten offenses against the six young boys); see also Extradition Request by 13

Between October 2, 2009 and May 5, 2010, two Irish district courts issued ten warrants for Petitioner's arrest on the nine counts for indecent assault and one count of attempted indecent 27 assault, all crimes against the Common Law of Ireland. Id. at *20 (citing authenticated warrants 28 and informations in Part 3(a) and 3(b) of the Extradition Request). 3 foreign countries" if the United States has a "treaty of extradition with such foreign government."4

See 28 U.S.C. § 3181 et seq. Extradition is "a diplomatic process that is initiated by a request from 5 the nation seeking extradition directly to the Department of State. See Prasoprat v. Benov, 421 6 F.3d 1009, 1012 (9th Cir. 2005). "After the request has been evaluated by the State Department to 7 determine whether it is within the scope of the relevant extradition treaty, a United States Attorney 8

II. LEGAL STANDARDS IN HABEAS CHALLENGES TO EXTRADITION

Federal statute provides for the extradition "of persons who have committed crimes in

. . . files a complaint in federal district court seeking an arrest warrant for the person sought to be 9 extradited." See Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th 10

shall "certify the same, together with a copy of 12 all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the 13 requisition of the proper authorities of such foreign government, for the surrender of such person, 14 according to the stipulations of the treaty or convention." 28 U.S.C. § 3184. 15

16 that decision is not a final order." See Emami v. United States Dist. Court for Northern Dist., 834 17 F.2d 1444, 1447 (9th Cir. 1987). Instead, "a habeas petition is the only available avenue to 18 challenge an extradition order." See Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006). Extradition 19 must be based on "competent evidence" sufficient to establish probable cause under United States 20 law. See Zanazanian v. United States, 729 F.2d 624, 626 (9th Cir. 1984). Section 3190, which 21 controls the admissibility of evidence in extradition proceedings, is clear that "[d]epositions, 22 warrants, or other papers or copies thereof . . . shall be received and admitted as evidence [at an 23 extradition] hearing for all the purposes of such hearing if they shall be properly and legally 24 authenticated . . . ." See 18 U.S.C. § 3190. "The usual rules of evidence do not apply in 25 extradition hearings and, unless the relevant treaty provides otherwise, the only requirement for 26 evidence is that it has been authenticated." See Manta v. Chertoff, 518 F.3d 1134, 1145 (9th Cir. 27 2008). 28

Cir. 2003). If the district or magistrate judge "deems the evidence sufficient to sustain the charge 11 under the provisions ...


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