Conviction in Absentia

[hawthorne]

I’d be interested in the answers to your questions, but I’ve been trying to avoid hijacking the thread, Gfactor. My posts directly involve something in the Staff Report, even though it’s a small something.

Bricker
My position is that the Staff Report in question adequately addressed the minor, collateral, tangential issue of Mexico’s response to Mr. Chapman’s conduct with a description that was completely accurate.

I’m aware that’s your position. But I’m sure you’re aware that wasn’t what I was asking.

Let’s try again. In your post #14, you attempted to justify the way you had referred to Chapman by saying

The article was drafted before Mexico raised the issue of Duane “Dog” Chapman’s conduct,

I put it to you that this is false and your posts 17 and 19 are attempts to evade admitting it.

[John_W.Kennedy]

@Gfactor

I hate to continue the hijack, but I have been wondering about the principle of double criminality in the Chapman case. His conduct would not have resulted in a one year prison sentence here in the US.

Really? A Mexican national kidnapping another Mexican national on US soil would not rate a one-year prison sentence in the US?

[Bricker]

@John W. Kennedy

Really? A Mexican national kidnapping another Mexican national on US soil would not rate a one-year prison sentence in the US?

In the US, bail agents have a right to take fugitives into custody; the fugitive agress to this as part of his bail condition. So while there is no GENERAL right to “kidnap” on US soil, if the facts of this particular case were duplicated here, there would be no crime.

[Bricker]

@hawthorne

I’m aware that’s your position. But I’m sure you’re aware that wasn’t what I was asking.

Let’s try again. In your post #14, you attempted to justify the way you had referred to Chapman by saying I put it to you that this is false and your posts 17 and 19 are attempts to evade admitting it.

Oy vey.

When I wrote the phrase, “… Mexico raised the issue…” I was referring to Mexico’s notification to the United States. The phrase “raised the issue” is not one that would be used to refer to an arrest, but rather to the publication or notification of other parties ABOUT an issue.

In like manner, if you were arrested for felony assault, I would not say the Commonwealth of Virginia “raised the issue” of felony assault with you. But if you later applied for a gun permit, I might well say the Commonwealth of Virginia “raised the issue” of your felony arrest in connection with your application. “Raised the issue,” implies a later action predicated on some antecedent event.

So, no - when I said, “The article was drafted before Mexico raised the issue of Duane “Dog” Chapman’s conduct,” that was not false. Mexico had already arrested Chapman, yes, but they had not RAISED THE ISSUE by requesting Chapman be held for extradition.

Now, I certainly acknowledge that “raised the issue” is not a term noted for its rigorous precision. And I certainly understand that someone else might read it differently than I intended it. Nonetheless, considering the VERY SLIGHT CONNECTION this had to the report, I believed, and still do, that it was an appropriate commentary on Chapman’s Mexican hijinks.

[Gfactor]

@Bricker

In the US, bail agents have a right to take fugitives into custody; the fugitive agress to this as part of his bail condition. So while there is no GENERAL right to “kidnap” on US soil, if the facts of this particular case were duplicated here, there would be no crime.

And given that Chapman couldn’t be prosecuted here on the facts of the case, the double (or dual) criminality requirement seems a pretty good defense to extradition:

"Dual criminality refers to the characterization of the relator's criminal conduct insofar as it constitutes an offense under the law of the respective states . . . 'Double criminality' is in effect a reciprocity requirement which is intended to ensure each of the respective states that they (and the relator) can rely on corresponding treatment, and **no state shall use its processes to surrender a person for the conduct which it does not characterize as criminal**." 

United States v. Fernandez, 99 F. Supp. 2d 1358, 1369 (S.D. Fla., 1999), Citing United States v. Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995) (Emphasis added.)

[Northern_Piper]

I’d always understood the dual criminality principle as relating generally to the statutory definition of the alleged offence in issue, not to the particular facts of the case. The comparison is between the offences as written, in this case the offence of kidnapping, which both countries have. How far the principle of double criminality includes defences such as lawful authority, with differing definitions of lawful authority, I’m not sure.

[Gfactor]

@Northern Piper

I’d always understood the dual criminality principle as relating generally to the statutory definition of the alleged offence in issue, not to the particular facts of the case. The comparison is between the offences as written, in this case the offence of kidnapping, which both countries have. How far the principle of double criminality includes defences such as lawful authority, with differing definitions of lawful authority, I’m not sure.

That’s part of what puzzles me, too. But it seems that in some cases, at least, they do look to the facts of the case:

That is, the requested country’s authorities, in determining whether the crime with which a person has been charged corresponds with a crime under local law, may want to know not simply whether the abstract legal elements of the offence correspond to an offence under domestic law, but also whether the particular factual conduct alleged, including the mental state, would be punishable if committed in the requested state. The corresponding domestic offence may not be immediately recognisable from the relevant statutory provision of the requesting state, and it may be necessary to look to the alleged conduct to determine whether there is an applicable domestic offence. An inadequate description of the acts of the accused may not enable a requested country to determine whether the conduct is in fact punishable under the laws of that country.

Griffith, Gavan; Harris, Claire --- "Recent Developments in the Law of...

[CBEscapee]

@Bricker

In the US, bail agents have a right to take fugitives into custody; the fugitive agress to this as part of his bail condition. So while there is no GENERAL right to “kidnap” on US soil, if the facts of this particular case were duplicated here, there would be no crime.

The facts of the case are that Chapman was in México and broke Mexican law. There are no bounty hunters here. It is illegal for civilians to make arrests. Why should Chapman be afforded any special considerations?

[Bricker]

@CBEscapee

The facts of the case are that Chapman was in México and broke Mexican law. There are no bounty hunters here. It is illegal for civilians to make arrests. Why should Chapman be afforded any special considerations?

Because the name ‘Chapman’ derives from the Old Norse Chuffmann, meaning “one who has trouble breathing,” and as a civilized nation, we must give a certain preference to the disabled.

Or, in the alternative, what the heck are you talking about? Who said Chapman should be given any special consideration?

[John_W.Kennedy]

@Bricker

In the US, bail agents have a right to take fugitives into custody; the fugitive agress to this as part of his bail condition. So while there is no GENERAL right to “kidnap” on US soil, if the facts of this particular case were duplicated here, there would be no crime.

Do Mexican bounty hunters have legal status in the US?

[Bricker]

@John W. Kennedy

Do Mexican bounty hunters have legal status in the US?

I don’t see why not. Although some states have bounty hunter registration or licensing requirements, others do not, and the right of a bail agent to secure a fugitive across state lines, anywhere in the country, is a matter of common law precedent.

I’d be interested in learning any specific authority to the contrary, but so far as I can see, there would be no legal bar to a Mexican bounty hunter operating in the US.

[Gfactor]

Aha: http://writ.news.findlaw.com/commentary/20030710_covey.html (explaining a previous court ruling that rejected my argument)

from the case:

The argument of Kear seems to run that a Canadian peremptorily arresting, somewhere in the United States, a person who had jumped bail in Canada, and returning him to appear before a Canadian court, would not be guilty of kidnapping under 18 U.S.C. § 1201. The rationale advanced, however, depends solely on cases relating to seizures within the United States for return to appear before a federal or state court. Those cases are simply inapposite to a situation such as the one which confronts us, where considerations of sovereignty and the crossing of an international boundary intervene [**9] and there is neither a superimposed structure like the federal government in its relationship with the several states nor any full faith and credit clause (Article IV, Section 1 of the United States Constitution) and its requirement of aid and assistance in enforcement of the laws of sister states.

Consequently, we do not accept the contention that 18 U.S.C. § 1201 would, in contradiction of its plain terms, be held not to reach bounty-hunting abductions across international boundaries, absent a rule of law making such abductions legal. That critical distinction destroys Kear’s argument that, reciprocally treated, his conduct [*184] was not a crime under American law. It is not, we accept, so long as the behavior does not extend beyond national boundaries. Here, however, the international dividing line, and, hence, the sovereignty of a foreign power were infringed.

Such American authority as there is would seem collaterally to tend the other way. See Villareal v. Hammond, 74 F.2d 503, 506 (5th Cir. 1934) (“In violation of the sovereignty of the state (Mexico) where he had sought asylum, they (Appellants) seized him unlawfully, and with force and arms took him unlawfully [**10] out of that state and into another (Texas) to dispose of him at their will and pleasure to obtain a reward.”).

In short, there is mutuality between the two statutes, each punishing as kidnapping the transportation of someone (a) “out of Canada against his will” or (b) “in foreign commerce” while “seize[d], confine[d] . . . or abduct[ed].”

Turning now to whether there was a breach of Canadian law when Kear returned the bail jumper, Jaffe, to an American court, we first observe that, in charging Kear with kidnapping and seeking his extradition, Canadian authorities manifestly believe that he violated the Canadian statute. We should not rush to insert ourselves and possibly preempt the Canadian courts who doubtless are better prepared to answer the question than we are. We should be slow to restrict the application of the Treaty in that fashion. n6

It should not be overlooked that the circumstances in Canada differ markedly in at least one other salient respect from those in the United States in that the practice of bonding for compensation is not permitted. n7 Consequently, those who go security for someone being admitted to bail are relatives, friends or acquaintances acting for non-monetary reasons. That may, in substantial part, explain the Canadian determination to prosecute Kear. Even, however, were professional bonding permitted in Canada, nevertheless, Canada permissibly might take a dim view of aliens descending upon it and abducting persons located within its borders, without prior resort to legal process or to Canadian officials. It is a function for the Canadian courts to determine whether abrupt seizure and transportation across the international border is or is not a criminal offense under a statute which facially at least plainly extends to such behavior.

Cf. Collier v. Vaccaro, 51 F.2d 17, 19 (4th Cir. 1931) (“There is evidence to support the contention of the Canadian government that Vaccaro forcibly arrested Price in Canada and forcibly carried him across the boundary into the United States. Even if he had the right to make the arrest in Canada for crime committed in his presence, he had no right to carry Price forcibly out of Canada and into the United States; and, if he did so, he violated the statute against kidnapping. To arrest a man for crime is one thing; to carry him out of his country and away from the protection of the laws of his domicile is another and very different thing.”)

Finally, we discard as ineffectual Kear’s argument that Jaffe, on being admitted to bail, formally consented for all time to his [*185] being summarily recaptured. (The application for a bail bond signed by Jaffe accorded to the surety “the right to apprehend, arrest and surrender the principal to the proper officials at any time as provided by law.”) Whether Kear can employ such a relation forward (a sort of “nunc pro tunc”), to create “present” consent at a time when Jaffe was obviously not willing to return to Florida is, at [**13] best, a question to be raised by way of defense in the Canadian criminal proceedings. It is not a proper basis for frustrating extradition.

That is particularly the case inasmuch as, even assuming that the contract to consent was irrevocable, as between the parties to it (Jaffe and the surety), it did not bind the Government of Canada, which was not a party. That sovereign power was free to assert that there was in fact no consent by Jaffe to his capture, on that fatal day in Toronto, for purposes of Canadian Criminal Code § 247(1) (b), however much Jaffe may have earlier contracted with his surety not to change his mind.

In sum, circumstances justifying extradition have been established. The denial of a writ of habeas corpus by the district court accordingly was proper. The Canadian court may listen sympathetically to Kear as he seeks to portray himself as someone caught in a complexity of intricate international law beyond his imagination or comprehension. The fact that his cohort Johnson may have posed as a member of the Ontario police force might make things a bit awkward, but in all events the matter is one of defense or mitigation to be raised in the Canadian courts. [**14] It is not a grounds for refusing to honor the Canadian request for extradition. n8

Kear v. Hilton, 699 F.2d 181; 1983 U.S. App. LEXIS 30894 (4th Cir. 1983).

Dunno how I missed this (other than I’m sick (chicken pox)) the first few times I searched.

[Bricker]

@Bricker

I don’t see why not. Although some states have bounty hunter registration or licensing requirements, others do not, and the right of a bail agent to secure a fugitive across state lines, anywhere in the country, is a matter of common law precedent.

I’d be interested in learning any specific authority to the contrary, but so far as I can see, there would be no legal bar to a Mexican bounty hunter operating in the US.

And now I have learned I was wrong in the above!

[Northern_Piper]

@John W. Kennedy

Do Mexican bounty hunters have legal status in the US?

Are there even such a thing as Mexican bounty hunters? I’ve only heard about them in the US context.

[CBEscapee]

@Northern Piper

Are there even such a thing as Mexican bounty hunters? I’ve only heard about them in the US context.

No

[treis]

@Gfactor

I hate to continue the hijack, but I have been wondering about the principle of double criminality in the Chapman case. His conduct would not have resulted in a one year prison sentence here in the US. And that’s a clear requirement under the treaty with Mexico:
http://www.escapingjustice.com/extraditiontreatyeng.htm

And see, Griffith, Gavan; Harris, Claire --- "Recent Developments in the Law of Extradition" [2005] MelbJlIntLaw 2; (2005) 6(1) Melbourne Journal of International Law 33 (discussing the double criminality requirement, generally).
And of course, the U.S. is not required to extradite its own nationals. See Treaty Art. 9.

I’m sick today, so maybe I’m missing something here.

How does this work with state crimes? I don’t claim to be an expert on bounty hunting laws in all 50 states, but I am pretty sure that some of them don’t allow it. If what the Dog did was legal in one state, but illegal in the next (assuming 1+ year of imprisonment), does that satisfy the treaty?

[hawthorne]

Bricker
When I wrote the phrase, “… Mexico raised the issue…” I was referring to Mexico’s notification to the United States. The phrase “raised the issue” is not one that would be used to refer to an arrest, but rather to the publication or notification of other parties ABOUT an issue.

Thank you for clarifying your position. It is - at best - not at all obvious. It is the sort of thing that makes me approach your posts with suspicion.

The problem is that having clarified what you say you meant, your post #14 is now revealed not to have been a response to my post #13 at all - just to look like one. I said

But if you wanted to avoid a perception that there was an “and” deliberately lacking in this sentence

Bricker
Still, it’s not such a crazy idea – it happens here under certain circumstances.

and that you thought that notions of law outside the US were or ought to be treated as more than quaint, you might have gone with

Six months later he was recaptured in Mexico by a private bounty hunter (specifically, Dog the Bounty Hunter of A&E TV fame, who in the process may have committed serious criminal offences under Mexican law, which doesn’t recognize broad rights for bounty hunters).

and your response was a sham.

I know this is a side issue to the Staff Report, but like I said, it stuck in my craw. I thought it smacked of jingoism and winked at vigilantism. (I don’t much like either of them - although you won’t find my posts about winking at vigilantism by searching.) I still do and being fobbed off isn’t helping my craw any.

[Gfactor]

@treis

How does this work with state crimes? I don’t claim to be an expert on bounty hunting laws in all 50 states, but I am pretty sure that some of them don’t allow it. If what the Dog did was legal in one state, but illegal in the next (assuming 1+ year of imprisonment), does that satisfy the treaty?

For extradition purposes, “Alleged conduct is considered criminal in this country if it would be unlawful under federal statutes, the law of the state where the accused is found, or the law of the preponderance of states.” In re Molnar, 202 F. Supp. 2d 782; 2002 U.S. Dist. LEXIS 22125 (N.D. Ill. 2002); DeSilva v. DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997); Brauch v. Raiche, 618 F.2d 843, 850 (1 Cir., 1980) (issue is whether “the acts upon which the [foreign] charges are based are proscribed by similar criminal provisions of federal law, New Hampshire law, or the law of the preponderance of the states.”).

[Bricker]

@hawthorne

Thank you for clarifying your position. It is - at best - not at all obvious. It is the sort of thing that makes me approach your posts with suspicion.

The problem is that having clarified what you say you meant, your post #14 is now revealed not to have been a response to my post #13 at all - just to look like one. I said
and your response was a sham.

I know this is a side issue to the Staff Report, but like I said, it stuck in my craw. I thought it smacked of jingoism and winked at vigilantism. (I don’t much like either of them - although you won’t find my posts about winking at vigilantism by searching.) I still do and being fobbed off isn’t helping my craw any.

I’m sorry you were confused, and I’m glad everything is all better insofar as your understanding. I hope your craw improves as time goes by as well.

[hawthorne]

If you want to leave it there, that’s fine Bricker. But I note that you haven’t attempted to rebut - or even baldly deny - my claim that your response was a sham.