In re Extradition of Froude

          MEMORANDUM AND ORDER CERTIFYING EXTRADITABILITY

          CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

         BACKGROUND

         The Government of Canada has requested the extradition of Kenneth Wayne Froude ("Froude"). Froude opposes extradition.

         On 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.

         On 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.^[1]

         On 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.

         The 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 Brief").

         The 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.

         FINDINGS AND CONCLUSIONS

         I. Jurisdiction

         This 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.

         II. Treaty

         The 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).

         III. Identity

         The Kenneth Wayne Froude appearing before this Court is the same Kenneth Wayne Froude sought by the Government of Canada.

         IV. Request for Extradition; Procedural Requirements

         The Request for Extradition filed with this Court by the Government of Canada complies with the requirements of the Treaty.

         V. Asserted Grounds for Extradition

         Pending 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."^[2]

         The Government of Canada also seeks Froude's extradition to enforce the 3, 409 day term remaining to be served under the LTSO.

         VI. Limited Nature of Present Proceedings

         In 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 proceedings.

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 cause.

Vo v. Benov, 447 F.3d at 1237.

         Thus, 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. 2003).

         "The 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).

         "An 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).

         VII. Government's Evidence

         Evidence submitted by the Government demonstrates the following:

         On 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).

         Then, 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 reoffend; and

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).

         Under 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 ...