The United States, on behalf of the Government of Canada, has requested the extradition of James William Robertson, a dual citizen of both Canada and the United States. (See Government Ex. 1.) The requesting country seeks Robertson's extradition to serve the remainder of a criminal sentence imposed upon him in Canada and to stand trial on three new charges of violating the conditions of a long-term supervision order imposed against him in that country. The request for extradition is made by the United States on behalf of Canada pursuant to the December 3, 1971 Extradition Treaty Between the United States of America and Canada which entered into force on March 22, 1976, as amended by subsequent Protocols. 27 UST 983, TIAS 8237 (hereinafter "Treaty"); Government Ex. 1 (Doc. No. 40) - U.S. Department of State Certification dated Oct. 28, 2011, Attachments.
Below the court will review the background relating to the request for extradition, the basis for that request, and the legal standards controlling this court's consideration of the request for certification of extradition. In the end, however, the parties dispute only the following two issues material to the pending request for extradition: (1) has Robertson completed serving the criminal sentence imposed in his case by the Canadian court so that he may not be extradited for the requested purpose of completing service of his sentence?*fn1 ; and (2) are the new charges brought against him in Canada for violating the terms of his Long Term Supervision extraditable offenses under the governing Treaty or do they fail as a basis for extradition under the principle of dual criminality because they are not criminal offenses for which he could be prosecuted under the laws of the United States?
For the reasons set forth below, the court finds that the certificate of extradition should be granted only to the extent it is based on Canada's request that Robertson be returned to complete the unserved portion of his sentence.
Following his second trial*fn2 on November 7, 2003, James William Robertson, a dual citizen of Canada and the United States, was found guilty by the Honorable Madam Justice Kilpatrick of the Supreme Court of British Columbia on several "counts of various historical offences ranging from common assault to rape" spanning a twenty-three year period from 1965 to 1988. (Government Ex. 2 (Doc. No. 34), Ex. F at 1.) Thereafter, on January 20, 2005, Robertson was sentenced on the following offenses: (1) sexual assault in violation of the Criminal Code of Canada ("CCC") § 246.1; (2) two counts of indecent assault of a male person upon another male person in violation of CCC § 156; (3) two counts of indecent assault upon a female in violation of CCC § 141(1); (4) three counts of indecent assault upon a female in violation of CCC § 149(1); (5) rape in violation of CCC § 136(a); (6) rape in violation of CCC § 144; (7) common assault in violation of CCC § 231(1); and (8) common assault in violation of CCC § 245(1) to sixteen years imprisonment. (Id. at 1-4; see also Government Ex. 2 (Doc. No. 35), Ex. G.)*fn3 After being credited for eleven years time served in custody while awaiting trial, Robertson effectively was sentenced to five years of additional imprisonment. In addition, a Long-Term Offender designation was entered with respect to count one by Justice Kirkpatrick requiring Robertson "to be placed on supervision in the community for a period of ten years following his release." (Government Ex. 2 (Doc. No. 35), Ex. G.)*fn4 The requesting country alleges that the Long-Term Offender designation in Robertson's case was upheld on appeal. (Complaint For Provisional Arrest (Doc. No. 1) at 4.)
Following his sentencing, Robertson was paroled from prison in Canada after serving an additional twenty-two months in custody. Thereafter, following his service of eighteen months on parole, Robertson was transitioned to "Statutory Release" for the final twenty months of his additional five-year sentence, which was completed on January 19, 2010. On that date, a Long Term Supervision Certificate was issued to Robertson by the Chief of Sentence Management at the William Head Institution advising Robertson of the conditions of his LTSO*fn5 , the identity and contact information for his parole supervisor and an advisement that his failure or refusal to abide by the conditions of the LTSO was an offense under the CCC. (Government Ex. 2 (Doc. No. 35), Ex. I.)
In March of 2010, contrary to the conditions of his Long Term Supervision, Robertson moved from his sister's residence in Richmond, British Columbia without advising his parole supervisor. In addition, he ceased reporting to that officer. Accordingly, on March 31, 2010, a Federal Warrant of Apprehension was issued by the Correctional Services Canada due to Robertson's failure to comply with his required frequency of contact during the term of his Long Term Supervision, in violation of CCC § 753.3(1). In April of 2010, authorities determined that Robertson had entered the United States and was living in South Lake Tahoe, California. Thereafter, on September 23, 2010, Robertson was indicted in Canada on three counts of violating CCC § 753.3(1).*fn6
Not until September 29, 2011, did this court issue an order authorizing the provisional arrest of Robertson pursuant to 18 U.S.C. § 3184 based upon a complaint filed with a view towards extradition filed that same day. (Doc. Nos. 1 & 2.) Robertson was arrested by U.S. Marshals on September 30, 2011. On October 3, 2011, Robertson made his initial appearance before United States Magistrate Judge Kendall J. Newman, contested his extradition and removal to Canada and was ordered detained.*fn7 (Doc. Nos. 8 & 9.)
On November 14, 2011, the government filed a memorandum in support of
extradition. (Doc. No. 17.) On November 15, 2011, counsel on behalf of
Robertson filed an opposition. (Doc. No.
18.) The parties appeared before the undersigned for extradition
hearing on November 16, 2011. See Local Rule 302(b)(8) and 18 U.S.C. §
3184 (authorizing Magistrate Judges to conduct extradition proceedings
under 18 U.S.C. § 3181, et seq.) At that initial hearing the assigned
Assistant United States
Attorney offered into evidence Government Exhibits 1 and 2*fn8
in support of the extradition request. (Id.) Without
objection, those exhibits were admitted into evidence. (Id.) Following
oral argument, the government was ordered to file a reply to
Robertson's opposition to extradition and a further extradition
hearing was scheduled. (Id.)*fn9 On November 30, 2011,
the government filed its reply as ordered. (Doc. No. 25.) Counsel for
Robertson filed a sur-reply in opposition to extradition on December
8, 2011. (Doc. No. 26.) The parties appeared before the court on
December 16, 2011, for further hearing on the extradition request.
Oral argument was heard and the matter taken under
The government asserts three theories in support of Robertson's extradition to Canada under the applicable treaty: (1) that the LTSO is part of the sentence imposed on Robertson in Canada and he can be extradited to finish serving that sentence; (2) that Robertson's violation of the conditions of his LTSO, if committed in the United States could be prosecuted as criminal contempt pursuant to 18 U.S.C. § 401(3) and thus the dual criminality requirement is satisfied and he may be extradited to face the three new charges brought against him in Canada for violating CCC § 753.3(1); and (3) that Robertson's failure to abide by the conditions of the LTSO is also analogous to a failure to register as a sex offender or update that registration as required under the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, et seq. which carries a maximum term of imprisonment of up to ten years under 18 U.S.C. § 2250 and thus dual criminality is satisfied and he may be extradited to face the three new charges brought against him in Canada for violating CCC § 753.3(1).
Robertson disputes the validity of each of the governments' asserted theories for extradition, arguing that: (1) the LTSO is not part of his criminal sentence under Canadian law and therefore cannot serve as the basis for his extradition under the applicable treaty; (2) that the new charges brought against him in Canadian are not substantially analogous to the charge of contempt of court in the United States and the dual criminality requirement prevents his extradition based on those charges; and (3) the new charges brought against him in Canada for violating a long-term supervision order are not analogous to charges brought in the United States under SORNA for failing to register as a sex offender and therefore he cannot be extradited based on those new charges given the dual criminality requirement.
Below, after setting forth the applicable legal standards, the court will address the legal issues presented by this extradition request.
"'Extradition from the United States is a diplomatic process' that is initiated when a foreign nation requests extradition of an individual from the State Department." Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir. 2008) (quoting Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005), cert. denied 546 U.S. 1171 (2006)). See also Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir.) ("[E]xtradition is a matter of foreign policy entirely within the discretion of the executive branch, except to the extent that the statute interposes a judicial function.") (quoting Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997)), cert. denied 549 U.S. 935 (2006). In this regard, extradition from the United States to a requesting country is governed by 18 U.S.C. § 3181 et seq. When a foreign fugitive is found in the United States, the foreign state may submit a formal request for extradition, through diplomatic channels, with certified documentation. An extradition hearing is then held, at which evidence may be submitted. The purpose of the extradition hearing is to determine whether a person arrested pursuant to a complaint in the United States on behalf of a requesting government is subject to surrender to the requesting country under the terms of the applicable treaty and the relevant law. See 18 U.S.C. § 3184. If, after the hearing, the judge determines that extradition is warranted, the judge certifies that decision and evidence in support thereof to the Secretary of State. Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003). However, the final decision of whether to extradite is reserved to the Secretary of State. Id.; see also In re Extradition of Garcia, 188 F. Supp.2d 921, 924 (N.D. Ill. 2002).
Here, in order to establish that the requested extradition of Robertson is warranted, the United States on behalf of Canada must show that the following requirements are met: (1) that an extradition treaty between the United States and Canada is in full force and effect and that Robertson is the individual sought by Canada; (2) that the extradition magistrate has jurisdiction over Robertson; (3) that Robertson may be extradited on the offenses with which he is charged under the terms of the treaty; (4) that there is probable cause to believe Robertson committed the offenses upon which extradition is sought; (5) that the United States has submitted the required documents on behalf of the Government of Canada and those documents have been properly authenticated; and (6) there are no provisions of the treaty which bar the extradition for any of the charges upon which extradition is sought. See generally Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Manta, 518 F.3d at 1140; Prasoprat, 421 F.3d at 1113; Barapind v. Reno, 225 F.3d 1100, 1105 (9th Cir. 2000); Zanazanian v. United States, 729 F.2d 624, 625-26 (9th Cir. 1984); see also In re Extradition of Ortiz, 444 F. Supp.2d 876, 882 (N.D. Ill. 2006).*fn10
Generally, extradition treaties are to be liberally construed so as "to effect the apparent intention of the parties to secure equality and reciprocity between them." Factor v. Laubenheimer, 290 U.S. 276, 294 (1933). See also Valentine v. U.S. ex rel. Neidercker, 299 U.S. 5, 10 (1936) ("Extradition treaties are to be liberally construed so as to effect their purpose, that is, to surrender fugitives for trial for their alleged offenses."); Bingham v. Bradley, 241 U.S. 511, 517 (1916) (affirming order requiring extradition of the subject to Canada where "[a]ll objections savor of technicality"); Wright v. Henkel, 190 U.S. 40, 57 (1903) ("The ordinary technicalities of criminal proceedings are applicable to proceedings in extradition only to a limited extent."); Shapiro v. Ferrandina, 478 F.2d 894, 904 (2d Cir. 1973) ("While again applauding the ingenuity of the argument, we reject it as 'savor[ing] of technicality, [citation omitted], which is peculiarly inappropriate in dealings with a foreign nation."); In Re Extradition of Ortiz, 444 F. Supp.2d at 883.
As noted above, in this case the only points of dispute between the parties are whether Robertson may be extradited on the new offenses with which he is charged in Canada for violating the terms of his LTSO and also to serve an allegedly partially unfulfilled sentence under the terms of the applicable extradition treaty. There are, however, several aspects to these disputed issues.
The notion of dual criminality - the requirement that the offense for which extradition is sought by the requesting country "is generally recognized as criminal in both countries" - is long recognized, well-established and is common in all extradition treaties. Factor, 290 U.S. at 300; Clarey v. Gregg, 138 F.3d 764, 765 (9th Cir.) ("'Dual criminality requires that an accused be extradited only if the alleged criminal conduct is considered criminal under the laws of both the surrendering and requesting nations.'") (quoting United States v. Saccoccia, 18 F.3d 795, 800 n. 6 (9th Cir. 1994)), cert. denied 525 U.S. 853 (1998). Here, Article 2 of the extradition treaty between the United States and Canada specifically incorporates the dual criminality requirement, providing as follows:
Extradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment. (Treaty (Govt. Exhibit 1 (Doc. No. 40) at sequential p. 11), Article 2.)
The principle of dual criminality "does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions." Collins v. Loisel, 259 U.S. 309, 312 (1922). Accordingly, each element of the offense upon which the requesting country seeks extradition need not be identical to the elements of a similar offense in the United States, so long as the conduct involved is criminal in both countries. Man-Seok Choe v. Torres, 525 F.3d 733, 737 (9th Cir. 2008) ("Choe's conduct [bribery of a public official], if committed in the United States would be punishable under several statutes . . ."), cert. denied 555 U.S. 1139 (2009); Clarey, 138 F.3d at 766 ("The primary focus of dual criminality has always been on the conduct charged; the elements of the analogous offense need not be identical."); Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1404 (9th Cir. 1988) ("[D]ual criminality exists if the 'essential character' of the acts criminalized by the law of each country are the same and if the laws are 'substantially analogous.'"); Emami v. U.S. District Court, 834 F.2d 1444, 1450 (9th Cir. 1987) ("[A]ll the principle of dual criminality requires is that the particular acts alleged constitute a crime in both jurisdictions."); In re Russell, 789 F.2d 801, 803 (9th Cir.1986) ("[T]o satisfy the 'dual criminality' requirement, . . . [i]t is enough that the conduct involved is criminal in both countries." ); see also Hu Yau-Leung v. Soscia, 649 F.2d 914, 918 (2d Cir. 1981) ("This is consistent with the proper 'double criminality' inquiry: if the individual had committed the same acts in the United States, would a crime have been committed and would it have been a felony?")
Below, the court will apply these legal principles in considering Robertson's contention that the governing treaty does not provide for his extradition because: (1) he has completed serving his criminal sentence imposed by the Canadian courts and there is no criminal sentence for him to complete serving; and (2) the new charges brought against him in Canada for violating the terms of his LTSO have no analogy under the laws of the United States and therefore fail to satisfy the dual criminality requirement.
A. Has Robertson Served His Sentence Or Is He Extraditable To Complete Serving His LTSO Term Under Article 9(4) of the Treaty?
As noted above, the United States on behalf of Canada first seeks Robertson's extradition on the grounds that he must be returned under the governing Treaty to serve the nine years, nine months and eighteen days remaining under the LTSO that was imposed by the Canadian courts as part of his criminal sentence and from which he has absconded. (Government Mem. in Supp. of Extradition (Doc. 17) at 2; Government Reply (Doc. No. 22) at 13-19.)
Under Article 1 of the governing Treaty, the United States and Canada have agreed "to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with, or convicted of, any of the offenses covered by Article 2 of this Treaty committed within the territory of the other, . . . . (Treaty, Government Ex. 1 (Doc. No. 40) at 17).*fn11 The Treaty also provides in relevant part:
When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence passed against him in the territory of the requesting State, by a statement showing how much of the sentence has not been served, and by evidence ...