United States District Court, C.D. California
IN THE MATTER OF THE EXTRADITION OF KENNETH WAYNE FROUDE, a Fugitive from the Government of Canada,
MEMORANDUM AND ORDER CERTIFYING
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
Government of Canada has requested the extradition of Kenneth
Wayne Froude ("Froude"). Froude opposes
September 23, 2015, the Government of the United States
("Government") filed a sealed "Complaint for
Arrest Warrant and Extradition" pursuant to 18 U.S.C.
section 3184 in In the Matter of the Extradition of
Kenneth Wayne Froude, CR 15-1770M. Froude was arrested
in this District on October 1, 2015.
November 4, 2 015, in the present action, the Government
filed: (a) "Government's Filing of (1) Request for
Extradition, and (2) Redacted Copy of Formal Extradition
Papers" ("Request for Extradition"); and (b)
"Notice to Consolidate" the action with case number
CR 15-1770M. On November 5, 2015, the matter was referred to
the undersigned Magistrate Judge.
March 14, 2016, the Government filed "Government's
Memorandum in Support of Extradition"
("Government's Memorandum"). On March 21, 2016,
Froude filed "Kenneth Wayne Froude's Opposition to
Government's Request for Extradition"
("Opposition"). On April 4, 2016, the Government
filed a Reply.
Court held an extradition hearing on April 11, 2016. On the
same date, the Court issued a Minute Order requiring
supplemental submissions. On May 2, 2 016, the Government
filed the "Government's Supplemental Memorandum in
Support of Extradition" with attached exhibits
("Government's Supplemental Memorandum"). On
May 26, 2016, Froude filed "Kenneth Wayne Froude's
Supplemental Brief, etc." ("Froude Supplemental
Court has read and considered all of the documents submitted
in support of and in opposition to the Request for
Extradition, and has considered the evidence and arguments
presented at the hearing.
Court has jurisdiction to conduct extradition proceedings
pursuant to 18 U.S.C. section 3184, Local Rule 72-1, and
General Order No. 05-07 of the United States Court for the
Central District of California. The Court has jurisdiction
over Froude pursuant to 18 U.S.C. section 3184.
extradition treaty between the United States of America and
the Government of Canada is in full force and effect.
See Treaty on Extradition between the United States
of America and Canada signed at Washington on December 3,
1971, as amended by: (1) an exchange of notes on June 28,
1974 and July 9, 1974, T.I.A.S. No. 8237, 27 U.S.T. 983, 1976
WL 166697; (2) the Protocol Signed at Ottawa on January 11,
1988, Amending the Treaty, etc., which entered into force on
November 26, 1991, 27 I.L.M. 423; and (3) the Second Protocol
Amending the Treaty on Extradition Between the Government of
the United States of America and the Government of Canada,
signed at Ottawa on January 12, 2001, which entered into
force on April 30, 2003 ("the Treaty") (Request for
Extradition, Ex. A, Declaration of Anna Cavnar, ¶ 3, and
exhibits thereto, ECF Dkt. No. 1-3, pp. 3, 7-44).
Kenneth Wayne Froude appearing before this Court is the same
Kenneth Wayne Froude sought by the Government of Canada.
Request for Extradition; Procedural Requirements
Request for Extradition filed with this Court by the
Government of Canada complies with the requirements of the
Asserted Grounds for Extradition
in Canada against Froude are three criminal counts concerning
Froude's alleged failure to comply with the terms of a
Long-Term Supervision Order ("LTSO"), in asserted
violation of Canada Criminal Code section 753.3(1). The three
counts charge: (1) failing to reside at a Community
Correctional Centre or Community-Based Residential Facility
approved by the Correctional Service of Canada; (2) failing
to remain at all times in Canada within the territorial
boundaries fixed by his parole supervisor; and (3) failing
"to obey the law and keep the peace."
Government of Canada also seeks Froude's extradition to
enforce the 3, 409 day term remaining to be served under the
Limited Nature of Present Proceedings
Vo v. Benov, 447 F.3d 1235 (9th Cir.), cert.
denied, 549 U.S. 935 (2006), the Ninth Circuit
emphasized the very limited role of the court in extradition
An extradition court - in this case the magistrate
judge-exercises very limited authority in the overall process
of extradition. As we have explained, "[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." [citations].
Extradition from the United States is initiated when the
nation seeking extradition makes a request directly to the
State Department. [citation]. "After the request has
been evaluated by the State Department to determine whether
it is within the scope of the relevant extradition treaty, a
United States Attorney . . . files a complaint in federal
district court seeking an arrest warrant for the person
sought to be extradited." [citation]. Upon the filing of
a complaint, a judicial officer (typically a magistrate
judge) issues a warrant for an individual sought for
extradition, provided that an extradition treaty exists
between the United States and the country seeking extradition
and the crime charged is covered by the treaty. 18 U.S.C.
§ 3184. After the warrant issues, the judicial officer
conducts a hearing to determine whether there is
"evidence sufficient to sustain the charge under the
provisions of the proper treaty or convention, "
id., or, in other words, whether there is probable
Vo v. Benov, 447 F.3d at 1237.
in determining whether the crime is extraditable and whether
probable cause exists, the Magistrate Judge "has no
discretionary decision to make." Prasoprat v.
Benov, 421 F.3d 1009, 1012 (9th Cir. 2005), cert.
denied, 546 U.S. 1171 (2006) (citation and internal
quotations omitted). "If the judge or magistrate judge
concludes that ‘the crime is extraditable, ' and
that ‘there is probable cause to sustain the charge,
' the judge or magistrate judge must certify the
extradition." Manta v. Chertoff, 518 F.3d 1134,
1140 (9th Cir. 2008) (citation omitted). "Once a
magistrate judge confirms that an individual is extraditable,
it is the Secretary of State, representing the executive
branch, who determines whether to surrender the
fugitive." Blaxland v. Commonwealth Director of
Public Prosecutions, 323 F.3d 1198, 1208 (9th Cir.
only purpose of the extradition hearing is for the magistrate
judge to determine whether the crime is extraditable and
whether there is probable cause to support the charge."
Prasoprat v. Benov, 421 F.3d at 1014. If the
evidence is sufficient, "the inquiring magistrate judge
is required to certify the individual as extraditable to the
Secretary of State and to issue a warrant." Id.
at 1012. It is the Secretary of State "who ultimately
decides whether to surrender the [individual] to the
requesting country." Vo v. Benov, 447 F.3d at
1237 (citations, footnote and internal quotations omitted).
extradition proceeding is not a trial; the relevant
determination is confined to whether a prima facie case of
guilt exists that is sufficient to make it proper to hold the
extraditee for trial." Emami v. United States
District Court for the Northern District of California,
834 F.2d 1444, 1452 (9th Cir. 1987). "The function of
the committing magistrate is to determine whether there is
competent evidence to justify holding the accused to await
trial, and not to determine whether the evidence is
sufficient to justify a conviction." Collins v.
Loisel, 259 U.S. 309, 316 (1922); Barapind v.
Enomoto, 400 F.3d 744, 752 (9th Cir. 2005) (citation and
quotations omitted). An extradition proceeding thus
"makes no determination of guilt or innocence, "
but is "designed only to trigger the start of criminal
proceedings against an accused, " and "guilt
remains to be determined in the courts of the demanding
country." Sainez v. Venables, 588 F.3d 713, 717
(9th Cir. 2009), cert. denied, 560 U.S. 958 (2010)
(citation and internal quotations omitted). The country
seeking extradition need not produce all of its evidence, and
the Magistrate Judge does not determine whether there exists
sufficient evidence to convict. Id. at 717;
Quinn v. Robinson, 783 F.2d 776, 815 n.41 (9th
Cir.), cert. denied, 479 U.S. 882 (1986) (noting
"well-established rule that extradition proceedings are
not to be converted into a dress rehearsal for a trial")
(citation and internal quotations omitted).
submitted by the Government demonstrates the following:
March 9, 2006, the Superior Court of Justice in London,
Ontario, Canada, sitting with a jury, found Froude guilty of
one count of breaking and entering with the intent to commit
sexual battery, one count of sexual assault using a weapon
and one count of uttering threats to cause bodily harm
(Request for Extradition, Ex. B, Affidavit of Law of Karen
Shai ["Shai Aff."], ¶ 26, ECF Dkt. No. 1-4, p.
11; Affidavit of Facts of Lisa Manson ["Manson
Aff."] ¶ 3, ECF Dkt. No. 1-4, pp. 78-79). These
crimes occurred in 2004 (id.). On May 5, 2008,
Justice Rady of the Superior Court of Justice designated
Froude as a Long-Term Offender pursuant to Canadian Criminal
Code section 753.1(1) (Shai Aff., ¶ 27, ECF Dkt. No.
1-4, at p. 11, & Ex. G thereto, ECF Dkt. No. 1-4, pp. 42-49;
Manson Aff., ¶ 3, ECF Dkt. No. 1-4, p. 79, & Ex. A
thereto, ECF Dkt. No. 1-4, pp. 87-89).
as now, section 753.1(1) authorized a judge to designate an
offender as a Long-Term Offender when:
a. It would be appropriate to impose a sentence of
imprisonment of two years or more for the offense for which
the offender has been convicted;
b. There is a substantial risk that the offender will
c. There is a reasonable possibility of eventual control of
the risk in the community.
(Shai Aff., ¶ 13, ECF Dkt. No. 1-4, p. 8 & Ex. A
thereto, ECF Dkt. No. 1-4, p. 15).
the version of section 753.1(3) applicable in 2004, if a
court found an offender to be a Long-Term Offender, the court
was required to:
a. Impose a sentence for the offense for which the offender
has been convicted, which sentence must be a minimum
punishment of imprisonment for a term of two years; and
b. Order the offender to be supervised in the community, for
a period not exceeding ten years, in accordance with section
753.2 and the Corrections ...