In re Extradition of Jano [1993] FMSC 21; 6 FSM Intrm. 093 (App. 1993) (10 June 1993)

6 FSM Intrm. 93 (App. 1993)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P4-1993

In re the Extradition of MARTIN JANO
______________________________

OPINION

Argued: May 13, 1993
Decided: June 10, 1993

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:

For the Appellant: Marvin Hamilton, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

For the Appellee: Michael Brady, Esq.
Assistant Attorney General
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Extradition
Judicial review of an extradition hearing is by petition for a writ of habeas corpus. In re Extradition of Jano, 6 FSM Intrm. 93, 97 (App. 1993).

Extradition
No Micronesian custom or tradition is applicable to extradition. In re Extradition of Jano, 6 FSM Intrm. 93, 97 (App. 1993).

Courts - Recusal
A justice who was a member of a body that negotiated the Compact and related agreements and who was the one member that signed the Compact and Extradition Agreement is not disqualified from presiding over an extradition proceeding by the circumstance of that participation on the ground that his impartiality might reasonably be questioned. In re Extradition of Jano, 6 FSM Intrm. 93, 97-98 (App. 1993).

Courts - Recusal
Even where the circumstance does not give rise to a reasonable person questioning the justice's impartiality, if there is evidence of actual partiality disqualification would follow. In re Extradition of Jano, 6 FSM Intrm. 93, 98 (App. 1993).

Extradition; Constitutional Law - Due Process
A person for whom extradition is sought must be brought before a justice that evidence of his criminality may be heard and considered so that he may be certified as extraditable. Such a person is entitled to notice of the hearing and an opportunity to be heard and to effective assistance of counsel. In re Extradition of Jano, 6 FSM Intrm. 93, 99 (App. 1993).

Extradition
A person whose extradition is sought can always contest identification. In re Extradition of Jano, 6 FSM Intrm. 93, 100 (App. 1993).

Extradition
A person whose extradition is sought may, at the extradition hearing, introduce evidence that explains the government's evidence of probable cause, but not evidence that contradicts it. In re Extradition of Jano, 6 FSM Intrm. 93, 101 (App. 1993).

Constitutional Law - Due Process
When counsel is allowed such a short preparation time that counsel's effectiveness is impaired then the accused is deprived of due process and effective assistance of counsel. In re Extradition of Jano, 6 FSM Intrm. 93, 101 (App. 1993).

Criminal Law and Procedure - Major Crimes
Ever since the ratification of the constitutional amendment removed from Congress the power to define "major crimes" and substituted for it the power to define "national crimes" the national government has had no general criminal jurisdiction. That jurisdiction now lies with the states. In re Extradition of Jano, 6 FSM Intrm. 93, 102 (App. 1993).

Extradition; Compact of Free Association
By the terms of the Compact and its subsidiary extradition agreement the term "Signatory Government" includes not only the national, but also the state governments of the two nations. Therefore state as well as national law may be used to determine if the offense for which extradition is sought satisfies the dual criminality test-is criminal under the laws of both signatory governments. In re Extradition of Jano, 6 FSM Intrm. 93, 102-03 (App. 1993).

Separation of Powers
Conduct of foreign affairs and the implementation of international agreements are properly left to the non-judicial branches of government. The judicial branch has the power to interpret treaties. In re Extradition of Jano, 6 FSM Intrm. 93, 103 (App. 1993).

Extradition; Treaties
Extradition treaties are to be construed liberally to effect their purpose of surrender of fugitives to be tried for their alleged offenses. In re Extradition of Jano, 6 FSM Intrm. 93, 103 (App. 1993).

Federalism - National/State Power
Nothing in the FSM constitutional framework suggests that a state can unilaterally avoid the effect of a valid international agreement, constitutionally arrived at, between the Federated States of Micronesia and another nation. In re Extradition of Jano, 6 FSM Intrm. 93, 103-04 (App. 1993).

Extradition; Habeas Corpus
The scope of a habeas corpus review of an extradition proceeding is 1) whether the judge had jurisdiction, 2) whether the court had jurisdiction over the extraditee, 3) whether there is an extradition agreement in force, 4) whether the crimes charged fall within the terms of the agreement, and 5) whether there was sufficient evidence to support a finding of extraditability. In re Extradition of Jano, 6 FSM Intrm. 93, 104 (App. 1993).

Extradition
An extradition hearing justice is required to make written findings for two reasons: 1) to meet the "rule of specialty" by which prosecution is limited to those offenses upon which extradition is granted, and 2) to reflect that the offenses for which extradition is granted is criminal in both the requesting and requested countries. In re Extradition of Jano, 6 FSM Intrm. 93, 105 (App. 1993).

Extradition
To satisfy the dual criminality test in extradition matters either national or state law may be used. An exact matching of the offense or elements is not required, but the acts charged must be criminal in both jurisdictions. In re Extradition of Jano, 6 FSM Intrm. 93, 105 (App. 1993).

Statutes of Limitation
The day upon which a crime is committed is to be excluded in the computation of the statute of limitations. In re Extradition of Jano, 6 FSM Intrm. 93, 106 (App. 1993).

Statutes of Limitation
Where the prosecution of an underlying offense is not time-barred, prosecution of conspiracy to commit that offense is not time-barred even if part of the conspiracy extends back in time to a point that would be time-barred. In re Extradition of Jano, 6 FSM Intrm. 93, 107 (App. 1993).

Criminal Law and Procedure - Dismissal; Extradition
Where a court has dismissed a criminal case for lack of jurisdiction over the crimes for which the defendant was charged, the dismissal does not act as a discharge so as to preclude extradition on the charge. "Discharge" requires both personal and subject matter jurisdiction. In re Extradition of Jano, 6 FSM Intrm. 93, 107-08 (App. 1993).

Extradition
Where the extradition agreement specifically requires that the requesting government's statute of limitations be used to determine extraditability, a general provision cannot be read to apply the statute of limitations of the requested government. In re Extradition of Jano, 6 FSM Intrm. 93, 108 (App. 1993).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

ISSUES PRESENTED

1. Prior to becoming a justice of this court, the trial judge was a member of the body negotiating the Compact of Free Association with its separate Agreement on Extradition, and signed on behalf of the Federated States of Micronesia: Might his impartiality in the present case reasonably be questioned because of his earlier position? We hold that his impartiality might not reasonably be questioned. See Part II infra.

2. Did the trial judge err in denying Jano's motions for continuance of the extradition hearing? Did the denials render assistance of counsel ineffective? We hold that it was error and the denials rendered assistance of counsel ineffective. See Part III infra.

3. Are further findings by the trial court required? We hold that findings must be made as to whether the offenses charged in the indictment are crimes punishable in the FSM. See Part V infra.

4. By amendment ratified on July 2, 1991, Congress was deprived of its power to define major crimes: Does this circumstance make the offenses charged in the indictment "not punishable," in the FSM so that "dual criminality," a prerequisite for extradition, cannot exist? We hold that the amendment does not have that result. See Part IV infra.

5. Is an offense for which an indictment was returned on August 25, 1992 barred by the United States five year statute of limitations, if the alleged criminal act occurred on August 25, 1987? We hold that it is not barred. See Part VI infra.

6. The Extradition Agreement provides that extradition is not granted in cases in which the person has been "convicted, discharged or acquitted by the requested government for the offense for which extradition is requested": Is a dismissal of an information for lack of subject matter jurisdiction a "discharge" under this provision? We hold that it is not. See Part VII infra.

7. Is an offense rendered not punishable in the FSM if the FSM statute of limitations bars the prosecution, so that "dual criminality," a requirement under the extradition agreement, does not exist? We hold that the proper answer is "no." See Part VIII infra.

PROCEDURAL BACKGROUND

On August 25, 1992 the United States grand jury for Maryland returned a true bill indicting Martin Jano on five counts. These counts charge the offenses of conspiracy, mail fraud and money laundering.

In January, 1993 extradition proceedings were filed in the trial division of this court. After proceedings in open court on January 27, 1993 with the Federated States of Micronesia represented by the Assistant Attorney General, and Mr. Jano appearing in person with counsel, the trial judge found sufficient evidence to sustain the charges in the indictment, committed Mr. Jano to the Pohnpei State jail, and certified the record to the Secretary of External Affairs.

Judicial review of extradition proceedings is by habeas corpus. In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993). Martin Jano's petition for a writ was heard in the trial division pursuant to FSM Appellate Rule 22(a) on March 4, 1993. This matter is now before us on the appeal of Mr. Jano from the trial division's denial of the petition.

I. INTRODUCTION

The issue of disqualification is considered first because if recusal were found proper all other decisions would be affected. We conclude, however, that the trial judge is not disqualified.

The next issue addressed is whether the court erred in denying a continuance because this too affects other issues. We conclude that error occurred requiring a limited remand.

Whether the crimes in the indictment are punishable under the laws of the FSM is determined adverse to Martin Jano's position. This issue is addressed third in order because of its basic importance. The remaining issues are addressed in the order presented in Jano's brief.

In addressing these issues we keep in mind that this is the first time that an extradition from the Federated states of Micronesia has been contested. Thus, on most of these issues, there is no previous FSM case law to guide us. There also is no Micronesian custom or tradition applicable to extradition. In re Extradition of Jano, 6 FSM Intrm. at 25 (citing Semens v. Continental Air Lines, Inc., [1985] FMSC 3; 2 FSM Intrm. 131, 140-41 (Pon. 1985)). It is appropriate then to look to U.S. case law not only to decide the issues of U.S. law before us (e.g., whether the statute of limitations in the U.S. has run), but also for guidance in interpreting the extradition statute, Pub. L. No. 5-22 (to be codified at 12 F.S.M.C. 1401-1410), particularly since it was largely drawn from 18 U.S.C. §§ 3181-3195. Whstatute is bors borrowed from another jurisdiction the presumption is that it will be given the same construction as that of the original jurisdiction. Kallop v. FSM, [1989] FMSC 22; 4 FSM Intrm. 170, 174 (App. 1989); Carlos v. FSM, 4 FSM Intrm. 17, 26, reh'g denied, 4 FSM Intrm. 32 (App. 1989); Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 509, 517 (App. 1984); Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984).

II. RECUSAL

At the extradition hearing on January 27, 1993 Jano moved for the disqualification of the justice on the ground that his impartiality might reasonably be questioned, pursuant to 4 F.S.M.C. 124(1) and the Code of Judicial Conduct of the American Bar Association, Canon 3C(1). The circumstance giving rise to the motion was the justice's participation (ten years before his judicial appointment) as a member of the body from the Federated States of Micronesia which negotiated the Compact of Free Association with the United States. Of special concern was that the justice was the one representative of the FSM who signed the Compact and its separate Agreement on Extradition, Mutual Assistance in Law Enforcement Matters and Penal Sanctions Concluded Pursuant to Section 175 of The Compact of Free Association ("Extradition Agreement") on behalf of the FSM.

The justice denied the motion holding that the circumstance of his participation did not disqualify him. We conclude that this ruling was certainly within the limits of sound discretion.

At the hearing and on appeal, however, Jano contends that the justice relied on the wrong standard to decide the matter. Jano infers from the justice's remarks that he denied the motion because actual prejudice had not been shown. Jano relies on the following statement by the justice in inviting us to draw this inference: "Unless you can really show by evidence that there is impartiality."

We concede that this one statement might indicate that the justice was deciding the motion on the ground of personal bias or prejudice, 4 F.S.M.C. 124(2), and not upon a ground that his impartiality might reasonably be questioned, 4 F.S.M.C. 124(1). The statement taken in context, however, satisfies us that the justice ruled on the ground raised by the motion.

First, the motion was in writing, supported by an affidavit of counsel and by a memorandum of points and authorities. The parties then argued the matter in open court. The arguments focused on the appearance of partiality. That ground was therefore clearly before the justice.

Secondly, an examination of the entire passage in which the statement appears reflects the attention of the justice on the proper ground. The justice, in ruling, said,

The agreement was negotiated by a group legally designated which included the present judge presiding. I honestly don't believe - I don't feel that fact compromises my impartiality. . . . I don't think that just because one of us is part of the legally constituted body that negotiated the Compact, should necessarily be disqualified. Unless you can really show by evidence that there is impartiality, or there is partiality in the hearing we have started this morning.

Tr. at 38.

We understand the justice as saying that the role as negotiator does not give rise to a reasonable person questioning his impartiality, however, if there was evidence of partiality (there was none), the question would be different, and disqualification would follow. In his latter comment beginning with "unless" he is speaking of actual bias, not appearance. The justice then closed his comments by saying, "I therefore deny the motion."

We find no error in the justice's refusal to disqualify himself and his denial is affirmed.

Subsequent to the extradition hearing, Jano sought judicial review by habeas corpus. In that proceeding before the same justice on March 4, 1993, Jano assigned the denial of recusal motion as error, and objected to the same justice hearing the matter on habeas corpus review.

Because this court, hearing an appeal from the denial of a writ of habeas corpus can review de novo all errors of law in the original hearing, Williams v. Lockhart, [1990] USCA8 37; 893 F.2d 191, 192 (8th Cir. 1990), we will not pass upon the question of recusal on habeas corpus review. This decision is based on the salutary principle that appellate courts should decide only those issues necessarily before them.

III. DUE PROCESS

A. The Extradition Hearing

On January 27, 1993 upon the call of the case at 10:00 o'clock a.m. and a statement by the clerk that the purpose of the hearing was to determine the sufficiency of the evidence to certify the record for extradition, counsel appearing for Martin Jano announced that she had understood the hearing was on the issue of release pending such a hearing. No motion for release was pending and the notice for the hearing was for the purpose as stated by the clerk. The attorney then requested a continuance, on the ground of inadequacy of time. She represented that the notice and extradition documents of over 100 pages had been served on the Public Defender's office at about 2:00 o'clock p.m. the day before. The documents included the memorandum of the government citing numerous cases, and time had not been adequate to prepare and to decide upon and summon witnesses. She stated that another staff attorney represented Mr. Jano, and that he was not in the state, but in Yap. The lawyer grounded her motion on due process and effective assistance of counsel considerations.

The motion was opposed by the government and denied by the court.

After an oral presentation by the government requesting certification, the lawyer for Martin Jano argued that counts in an FSM information involving the same acts as alleged in the Maryland indictment had earlier been dismissed, and that the offenses charged are not shown to be within the jurisdiction of this court.

After further arguments by the government, and it appearing that the Public Defender did not have all necessary documents, she again requested a continuance so she could adequately prepare and so the presentation could be in a manner "in which justice will be served." Again the government opposed the continuance. The court granted a continuance until 3:00 o'clock p.m. the same day. The hearing was then recessed at 11:11 a.m.

By the time the hearing continued the Public Defender had filed motions that the justice recuse himself and that the complaint for extradition be dismissed based on the dismissal of the FSM case against Jano. Both motions were denied.

B. Reasoning

The procedure governing extradition states that the person charged with an offense by a foreign government shall be brought before the justice or judge "to the end that the evidence of criminality may be heard and considered." 12 F.S.M.C. 1402. Certification is issued if the justice "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty." Id.

The proceeding thus requires a consideration of the sufficiency of the evidence and of the requirements of the treaty.

Jano is entitled to notice of the hearing and an opportunity to be heard - the essence of due process - and to the assistance of counsel. Cf. In re Iriarte (II)[1983] FMSC 2; , 1 FSM Intrm. 255, 260 (Pon. 1983). The parties do not dispute this.

The issue is whether the notice was adequate to prepare for the hearing. In considering this issue we take as true the representations of the staff attorney that she was misinformed by her office as to the purpose of the January 27 hearing, told that another staff attorney would represent Jano, and had less than four working hours to prepare.

When required to proceed, because of the denial of a continuance, the lawyer was energetic and diligent, raising the issues of disqualification, of the effect of the dismissal of the FSM case against Jano, and of the removal of major crimes jurisdiction from the FSM court. For habeas corpus review those issues have been preserved, and no objection has been made to the additional issues of the effect of statutes of limitations and of the requirement of written findings and conclusions. These are legal issues which the parties agree we can review de novo. The interpretation of a petition for a writ of habeas corpus "is clearly a matter of law, subject to de novo review." Williams v. Lockhart, [1990] USCA8 37; 893 F.2d 191, 192 (8th Cir. 1990).

Jano requests, for the due process violation he contends occurred, a new hearing. Believing that Jano has had ample opportunity now to raise objections to the extradition documents at or since the hearing of January 27, 1993, we only consider his intent to call witnesses. In his brief he makes some references to this and in oral argument was asked exactly who he proposed to call, for what purpose, and under what authority.

We do not believe that the testimony of the witnesses named in the brief or in argument must be heard on the matters represented. Specifically examining the authorities cited by Jano we find:

David v. Attorney General, [1983] USCA7 83; 699 F.2d 411 (7th Cir. 1983): The person whose extradition was sought was given an opportunity to contradict identification testimony. Id. at 416. Identification of the one arrested as the one named in the complaint for international extradition may always be contested at the extradition hearing. See, e.g., In re Demjanjuk, 603 F. Supp. 1468, 1471 (N.D. Ohio 1985). See also W.C. Crais III, Annotation, Necessity and Sufficiency of Identification of Accused as the Person Charged, to Warrant Extradition, 93 A.L.R.2d 912 (1964). Jano here does not contest identification.

Shapiro v. Ferrandina, 355 F. Supp. 563, 572 (S.D.N.Y.), aff'd as modified[1973] USCA2 215; , 478 F.2d 894 (2d Cir. 1973): The general rule is that testimony can be received to explain, but not contradict, proof of probable cause. Sayne v. Shipley, [1969] USCA5 1358; 418 F.2d 679 (5th Cir. 1969), cert. denied, 451 U.S. 938 (1981). The person whose extradition was sought did not have a right to a hearing at which a finding had to be made that he was in the requesting country at the time the crime was committed. The court stated the habeas corpus proceeding fully protected the due process rights of the person.

Collins v. Loisel, [1922] USSC 109; 259 U.S. 309, 315-16[1922] USSC 109; , 42 S. Ct. 469, 472[1922] USSC 109; , 66 L. Ed. 956, 960 (1922): The person was permitted to testify fully to things "which might have explained ambiguities or doubtful elements in the prima facie case made against him."

United States ex rel. Petrushansky v. Marasco, [1963] USCA2 549; 325 F.2d 562, 567 (2d Cir. 1963), cert. denied, 376 U.S. 952 (1964) held that the hearing officer could properly exclude testimony of two witnesses who said they had spoken over the telephone to the deceased (alleged to have been murdered) on November 14th - a date two days after the date the killing was alleged to have occurred and a time Petrushansky was absent from the requesting country.

Under these authorities Jano now states that at the extradition hearing he was entitled to the opportunity to offer testimony from one who signed a certificate of authority, from another (corroborating) who received payment on behalf of the government for the issuance of the certificate, and from another that Jano had followed all proper steps in order to do business.

As we said we cannot conclude that Jano would have a right to have these witnesses heard. However, the admission of testimony on behalf of the one whose extradition is sought is a matter of the hearing officer's discretion, United States ex rel. Petrushansky v. Marasco, 325 F.2d at 567; Hooker v. Klein, [1978] USCA9 464; 573 F.2d 1360, 1369 (9th Cir. 1978), so the matter should first properly be presented in that forum.

The following authority clarifies whether testimony is admissible:

While the process of definition is difficult in the area of "probable cause" perhaps it is enough to say that what tends to obliterate probable cause may be considered but not what merely contradicts it. The improbability or the vagueness of testimony may destroy the probability of guilt, but the tendering of witnesses who testify to an opposite version of the facts does not. The latter must await trial on the merits. And exclusion of evidence relating to the defense is not error.

Shapiro v. Ferrandina, 355 F. Supp. at 572.

A good example of what is meant by receiving testimony "to explain" evidence of probable cause is Republic of France v. Moghadam, 617 F. Supp. 777 (N.D. Cal. 1985). In that case the person whose extradition was sought introduced evidence that his sole accuser had repudiated her affidavit. Since the recantation took place under circumstances that made it more reliable than the original affidavit, it "negat[ed] the only evidence of probable cause." Id. at 783. See also In re Extradition of D'Amico, discussed infra, Part V.

Hartman v. FSM, [1991] FMSC 28; 5 FSM Intrm. 224, 232-34 (App. 1991) was decided in part on the question of whether one defendant was deprived of the effective assistance of his counsel because of the short preparation time available to counsel. We concluded that he had not been, based on an examination of the surrounding circumstances and then upon whether prejudice could be gleaned from the trial record.

In the present case we accept counsel's assertion that she incorrectly believed the hearing was one for release. We do not impute in this case shortcomings in the administration of the Public Defender's office to Jano, although they are deplored. Thus at 10:00 o'clock a.m. counsel was required to proceed in a hearing for which she had not prepared. The circumstances at that time indicated that her effectiveness would be impaired.

An examination of the transcript reveals that, although hastily and incompletely, counsel did raise issues of the effect of the elimination of major crimes on the jurisdiction of the court, and the effect of the earlier FSM case. With adequate preparation time those issues could have been addressed more completely, together with the statute of limitation issue now raised on appeal and witnesses might have been proffered.

Employing the criteria of Hartman we conclude that Jano was deprived of due process and the effective assistance of counsel. The transcript gives us a sense of haste present in the hearing. The justice characterized the matter as urgent.

The manner in which a decision of the court is reached is important for the authority that the decision enjoys. Although our conclusion is based on Hartman, the underlying spirit is nicely stated by Mr. Justice Frankfurter:

The validity and moral authority of a conclusion largely depend on the mode by which it was reached. . . . No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done.

Joint Anti-Fascist Refugee Committee v. McGrath, [1951] USSC 49; 341 U. S. 123, 171-72[1951] USSC 49; , 71 S. Ct. 624, 649[1951] USSC 49; , 95 L. Ed. 817, 854 (1951) (Frankfurter, J., concurring). For a further discussion of this point see Laurence H. Tribe, American Constitutional Law 503 (1978).

C. Due Process Conclusion

Since Jano was unable to offer any evidence during the extradition hearing because of the lack of preparation time the matter is remanded to the trial division. On remand the trial division will set a hearing and permit Jano to proffer evidence. This evidence can be admitted or excluded in accordance with the principles set forth in the foregoing.

IV. WHETHER U.S. CHARGES ARE PUNISHABLE UNDER FSM LAW

A. Signatory Government

Jano contends that he cannot be extradited because the U.S. charges are not punishable under the national laws of the Federated States of Micronesia. He relies on the dual criminality test of section 1(a)(1) of article II of Title Two of the Extradition Agreement between the United States and the Federated States of Micronesia. That test requires that crimes to be extraditable must be "punishable under the laws of both the requesting and requested Signatory Governments . . . ." Id.

Jano rightly points out that ever since the ratification of the constitutional amendment that removed from Congress the power to define "major crimes" and substituted for it the power to define "national crimes" the national government has had no general criminal jurisdiction. That jurisdiction now lies with the states. See In re Ress[1992] FMSC 31; , 5 FSM Intrm. 273 (Chk. 1992) (construing FSM Const. art. IX, § 2(p)). Jano therefore argues that the U.S. charges have no counterpart in FSM national law and that Pohnpei state law cannot be used to satisfy the dual criminality test because the State of Pohnpei is not a "Signatory Government."

The definitions article of the Extradition Agreement states: "'Signatory Governments' means . . . the Government of the United States and the Government of the Federated States of Micronesia." Extradition Agreement tit. 1, art. I, § 2(a). That same section further defines "Government of the United States" to include all of its states, territories, possessions, districts, and commonwealths. Id. "Government of the Federated States of Micronesia" is not further defined there.

Jano relies on this further definition of "Government of the United States" and the lack of a parallel further definition of "Government of the Federated States of Micronesia" to mean that "Government of the Federated States of Micronesia" must be interpreted to mean only the national government of the Federated States of Micronesia.

The immediately preceding section, however, states that "[t]he definition of terms set forth in Article IV of Title Four of the Compact is incorporated in this Agreement." Id. tit. 1, art. I, § 1. Article VI of Title Four of the Compact defines the term "Government of the Federated States of Micronesia." It does not, however, define "Government of the United States." It states: "'Government of the Federated States of Micronesia' means the Government established and organized by the Constitution of the Federated States of Micronesia including all the political subdivisions and entities comprising that government." Compact § 461(c). The Constitution provides for three levels of government: "national, state, and local." FSM Const. art. VII, § 1. The State of Pohnpei is undoubtedly a political subdivision and entity of the Federated States of Micronesia. It is therefore included within the term "Government of the Federated States of Micronesia" as used in the Compact and the Extradition Agreement. Pohnpei state law may thus be used to satisfy the dual criminality test of the Extradition Agreement.

It is only reasonable that the definition in the Compact apply to the Extradition Agreement since the Compact mandated the conclusion of an extradition agreement, Compact §§ 175, 462(c), and they were negotiated together and signed on the same date. The term "Government of the Federated States of Micronesia" was already defined in the Compact. It did not need to be defined again in the Extradition Agreement. It was incorporated therein by reference. Extradition Agreement tit. 1, art. I, § 1. The term "Government of the United States" is not defined in the Compact. Therefore only it needed to be further defined for the purposes of titles two, three, and four of the Extradition Agreement.

B. Other Considerations

While we decide this issue based upon the plain language of the Compact and the Extradition Agreement other authority would lead us to the same result. Other courts have interpreted the phrase "under the law of . . ." to include both state and federal law in the absence of evidence that the contrary was intended. Hu Yau-Leung v. Soscia, [1981] USCA2 455; 649 F.2d 914, 918 (2d Cir.), cert. denied, 454 U.S. 971 (1981); In re Sindona, 584 F. Supp. 1437, 1447 (E.D.N.Y. 1984) (interpreting phrase "punishable by the laws of both Contracting Parties") (both citing Wright v. Henkel, [1903] USSC 172; 190 U.S. 40, 58[1903] USSC 172; , 23 S. Ct. 781, 785[1903] USSC 172; , 47 L. Ed. 948, 954 (1903)); Brauch v. Raiche, [1980] USCA1 102; 618 F.2d 843, 851 (1st Cir. 1980) (can refer to either federal law, law of state where fugitive found, or law of the preponderance of the states). See also United States v. McCaffrey, 1985 L.R. Commonwealth (Const.) 548, 553 (House of Lords, U.K. 1984).

If we were to accept Jano's argument we would be in effect abrogating the Extradition Agreement. Virtually all of the offenses listed in Appendix A - Schedule of Offenses - are state crimes. If state law crimes are not within Title Two, article II, subsection 1(a)(1) of the Agreement then no one could be extradited from the Federated States of Micronesia to the United States for crimes committed there, and no one could be extradited to the Federated States of Micronesia from the United States for crimes committed here. Such a drastic alteration in our nation's foreign relations should not be the responsibility of the judiciary. Conduct of foreign affairs and the implementation of international agreements are properly left to the other branches of government. FSM Const. art. IX, §§ 2(b), 4; art. X, § 2(b).

We have, of course, the power to interpret treaties. Id. art. XI, §§ 6(b), 7, 8. Our interpretation is consistent with that of other courts. "'Extradition treaties are to be construed liberally to effect their purpose, i.e., the surrender of fugitives to be tried for their alleged offenses.'" United States v. Lehder-Rivas, 668 F. Supp. 1523, 1527 (M.D. Fla. 1987) (quoting United States v. Wiebe, [1984] USCA8 498; 733 F.2d 549, 554 (8th Cir. 1984)). See also Factor v. Laubenheimer, [1933] USSC 147; 290 U.S. 276, 293-94, 303[1933] USSC 147; , 54 S. Ct. 191, 195-96, 199[1933] USSC 147; , 78 L. Ed. 315, 324, 329 (1933) (if a treaty admits of two constructions, the more liberal construction permitting extradition is to be preferred; extradition treaties should be liberally, not strictly construed).

Jano also argues that the Extradition Agreement does not apply in Pohnpei because the State of Pohnpei did not ratify the Compact. This argument is devoid of any merit. Nothing in our constitutional framework even suggests that a state can unilaterally avoid the effect of a valid international agreement, constitutionally arrived at, between the Federated States of Micronesia and another nation.

V. WRITTEN FINDINGS

A. Necessity for Written Findings

Jano contends as error that the justice who heard the extradition failed to make sufficient findings and conclusions. The justice did find that sufficient evidence was presented to sustain the charges against Martin Jano.

The scope of habeas corpus review of an extradition proceeding assists in analyzing this issue. We review 1) whether the judge had jurisdiction, 2) whether the court had jurisdiction over the extraditee, 3) whether there is an extradition agreement in force, 4) whether the crimes charged fall within the terms of the agreement, and 5) whether there was sufficient evidence to support a finding of extraditability. Hooker v. Klein, [1978] USCA9 464; 573 F.2d 1360, 1368 (9th Cir.), cert. denied, 439 U.S. 932 (1978). At issue in this appeal are (4) and (5).

On January 27, 1993 a hearing was held as required by 12 F.S.M.C. 1402. At the conclusion the justice found that there was sufficient evidence to show that the crimes had been committed and there was probable cause that Martin Jano committed them. On the 1st of February the justice certified the record to Secretary of External Affairs that, based on a review of the evidence presented, there was sufficient evidence to sustain the charges. This conclusion follows the language of the statute which sets out the FSM's procedure when extradition is requested of us. 12 F.S.M.C. 1402. And the finding shows that the United States has provided what it is required to show under the agreement. Extradition Agreement, tit. 2, art. II, § 3.

Jano contends that this is insufficient and that findings and conclusions for each count of the indictment must be made. He does not support this assertion by reference to any aspect of the indictment or the accompanying evidence which, for instance, fails to charge an offense under the United States law, or fails to establish an element of the offense charged. Jano is thus seeking a remand only on the ground of the failure to make findings, without any showing of prejudice.

The cases cited by Jano do involve remands for further findings by the trial judge hearing the extradition, but in those cases the extraditees pointed to specific deficiencies which prejudiced them, and the courts agreed.

One case cited is United States ex. rel. D'Amico v. Bishopp, [1960] USCA2 562; 286 F.2d 320 (2d Cir. 1961). The court referred to the need for a specific finding as to the sufficiency of the evidence. However, the exact issue before the court was whether the order of remand issued by the court below (hearing the matter on habeas corpus review) was final and appealable. The court said it was not.

A description of that case is set out fully in In re Extradition of D'Amico, 185 F. Supp. 925 (S.D.N.Y. 1960). The commissioner hearing the extradition had found specifically that the crime was extraditable under the treaty and that D'Amico was the person whose extradition was sought. He then found, "accordingly there is probable cause to believe that the offense charged was committed by [D'Amico]." Treaty and identification were the only defenses asserted by D'Amico before the commissioner. On the first habeas corpus review the writ was dismissed. In re D'Amico, 177 F. Supp. 648 (S.D.N.Y. 1960).
D'Amico was permitted to reopen the habeas corpus proceeding to urge a new point - whether there was "any evidence warranting a finding that there was reasonable grounds to believe the accused guilty of the crimes charged." D'Amico, 185 F. Supp. at 927.

The accusations included kidnapping. The evidence against D'Amico consisted of statements by an accomplice, which were twice retracted, and testimony that the victim had been held in a shack on D'Amico's property. On habeas corpus review D'Amico contended that the shack was seven or eight miles from his residence, isolated, and rarely visited. Therefore, whether the victim was held there was of no probative value in determining D'Amico's involvement.

A second case cited by Jano is Caplan v. Vokes, [1981] USCA9 982; 649 F.2d 1336 (9th Cir. 1981) which is an appeal from a denial by the trial court of a writ of habeas corpus. This case too was remanded for the required findings. Extradition was requested by the United Kingdom on 60 charges of theft, forgery, and false accounting.

The court said, "Our review of the extradition proceeding in light of the argument on appeal has uncovered serious shortcomings." Id. at 1342. Specifically, the court entertained doubts that the alleged conduct was criminal in the United Kingdom. Id. at 1343.

As we said, nothing has been raised before us on the issue of the evidence being inadequate to support the extradition - just the failure to make findings. Jano's authorities fail to support his argument for findings of the nature he seeks since he has not specified any error in the findings that were made. His authorities involve cases in which the courts were directed to specific weaknesses in the hearing judge's findings.

B. Test for Dual Criminality on Remand

There are two reasons for the need of findings: 1) to meet the "rule of specialty" by which prosecution is limited to those offenses upon which extradition is granted, Extradition Agreement tit. 2, art. VIII; and 2) to reflect that the offenses for which extradition is granted is criminal in both the requesting and requested countries, id. tit. 2, art. II, § 1(a)(1)). Caplan v. Vokes, 649 F.2d at 1343.

We are unable to find in the proceedings on January 27, 1993 or in the justice's subsequent certification any statement by him as to the five counts in the indictment upon which extradition was granted being punishable in the FSM. That is, the record of the extradition hearing does not support the treaty's requirement of dual (or double) criminality. The matter must thus be remanded.

On remand the extradition hearing justice must determine if the charges in each of the five counts for which extradition is sought satisfy the test of dual criminality as required by the treaty. Extradition Agreement tit. 2, art. II, § 1(a)(1). As we have discussed supra Part IV, either FSM national law or Pohnpei state law may be used to satisfy this test. This exercise does not require an exact matching of the offense or its elements. "[I]t shall not matter whether the laws of the requesting and requested Signatory Governments place the offense within the same category of offenses or describe an offense by the same terminology." Extradition Agreement tit. 2, art. II, § 1(b). The offenses listed hn Schedule A are described in broad general terms.

We also note that conspiracy to commit or participate in any extraditable offense has specificalen made extraditable. Id. tit. 2, art. II, § 3(7; 3(a). We further note that the Agreement provides that the use of the mails or other forms of interstate commerce or transportation as an element in U.S. crimes is specifically excluded from consideration in the dual criminality test because such elements are used solely to establish federal court jurisdiction in the U.S. Id. tit. 2, art. II, § 3(b).

The extradition hearing justice need only determine that the acts charged in each count are criminal in both jurisdictions. "It is enough if the particular act is criminal in both jurisdictions." Collins v. Loisel, [1922] USSC 109; 259 U.S. 309, 312[1922] USSC 109; , 42 S. Ct. 469, 471[1922] USSC 109; , 66 L. Ed. 956, 958 (1922). Courts have rejected the approach of comparing each offense with a corresponding offense "and determin[ing] that the elements, purposes, and punishments of those offenses were 'substantially analogous.'" Brauch v. Raiche, [1980] USCA1 102; 618 F.2d 843, 850 (1st Cir. 1980). "Rather, dual criminality exists if the 'essential character' of the acts criminalized by the laws of each country are the same and if the laws are 'substantially analogous.'" Theron v. United States Marshal, [1987] USCA9 2071; 832 F.2d 492, 496 (9th Cir. 1987) (citations omitted). "[I]t is only necessary to determine that the acts on which the foreign charges are based are proscribed by similar criminal provisions of [national] law, the law of the asylum state or the law of the preponderance of the states." In re Extradition of Prushinowski, 574 F. Supp. 1439, 1446 (E.D.N.C. 1983). See also Brauch, 618 F.2d at 851.

Therefore in this matter, the justice need only determine if each foreign charge is based on acts which are criminal under either FSM national law, Pohnpei state law, or the law of the preponderance of the states in the FSM in order to satisfy the dual criminality test.

VI. STATUTE OF LIMITATIONS

A. Count Four

Jano argues that extradition cannot be granted as to Count Four (mail fraud) because the indictment was obtained more than five years after the alleged commission of the offense. The Agreement provides that "[e]xtradition shall not be granted: . . . When the prosecution of the offense is barred by the lapse of time according to the laws of the requesting Government." Extradition Agreement tit. 2, art. III, § 1(b). The applicable statute of limitations for mail fraud in the United States, the requesting Government, is five years. 18 U.S.C. § 3282. The alleged mailing took place August 25, 1987. The indictment was returned August 25, 1992. Jano argues that the statute of limitations for mail fraud starts to run on the date of the alleged mailing.

Jano misreads the cases. "In the case of mail fraud the statute starts to run from the date of mailing." United States v. Yejo, 634 F. Supp. 630, 631 (D.P.R. 1986) (emphasis added) (citing United States v. Read, [1981] USCA7 559; 658 F.2d 1225, 1240 (7th Cir. 1981)).

"From" is not the same as "on." "From" only denotes the starting reference point for the computation of time. "[T]he day upon which a crime is committed is to be excluded in the computation of the statute of limitations." N.J. Marini, Annotation, Inclusion or Exclusion of First and Last Day for Purposes of Statute of Limitations, 20 A.L.R.2d 1249, 1252 (1951) (citing Wiggins v. United States, 64 F.2d 950 (9th Cir.), cert. denied, 290 U.S. 657 (1933); United States v. Mathis, 28 F. Supp. 582 (D.N.J. 1939)). See also 21 Am. Jur. 2d Criminal Law § 226, at 414 (1981). "[T]he first day is excluded because it is customary to regard a day as a point in measuring time." Wiggins v. United States, 64 F.2d at 951.

This method of computation has been applied in mail fraud cases. Mail fraud charges are time-barred if they are for "mailings made more than five years before . . . the date the original indictment was returned." Yejo, 634 F. Supp. at 631. United States v. Ashdown, [1975] USCA5 659; 509 F.2d 793 (5th Cir. 1975) involved a number of mailings from January through May 1968. The indictment was returned March 30, 1973. The court ruled that prosecution was time-barred for any mailings that took place before March 30, 1968.

Similarly, in the case before us, for prosecution to be time-barred the mailing must have taken place before August 25, 1987. The alleged mailing took place on August 25, 1987. Extradition and prosecution are thus not barred by the applicable statute of limitations.

B. Count One

Jano argues the conspiracy count, Count One, is also not extraditable on statute of limitations grounds. That is, Jano argues a conspiracy prosecution is time-barred if prosecution for the underlying offense (in this case Count Four) is time-barred. While this may be correct we have already ruled that, as a matter of law, prosecution of the underlying offense in Count Four is not time-barred. Where an underlying offense is not time-barred, conspiracy to commit that offense is not time-barred even if part of that conspiracy extends back in time to a point that would be time-barred. See, e.g., United States v. Scop, 846 F.2d 135, 138-39 (2d Cir. 1988); United States v. Andreas, [1972] USCA8 138; 458 F.2d 491 (8th Cir. 1972) (citing United States v. Gross, [1969] USCA8 261; 416 F.2d 1205, 1210 (8th Cir. 1969)). Prosecution of Count One, insofar as it relates to Count Four, is therefore not time-barred either.

VII. DISCHARGE

An information was filed October 14, 1991 encaptioned Federated States of Micronesia v. Martin Jano, Defendant, as FSM Criminal Case No. 1991-500. The defendant's motion to dismiss all six counts, filed October 30, 1991, was heard on March 24, 1992. The order of dismissal was issued that day and entered February 2, 1993, on the ground that the court lacked subject matter jurisdiction over the crimes charged. FSM v. Jano, 6 FSM Intrm. 9 (Pon. 1993).

Jano contends that acts charged in three counts of the FSM information appear in two of the counts of the Maryland indictment, and, according to the Extradition Agreement, he cannot be extradited for those counts. In making this assertion Jano relies on article III, title two of the agreement which provides:

Exceptions to Extradition

1. Extradition shall not be granted:

(a) When the person whose surrender is sought is being prosecuted or has been convicted, discharged or acquitted by the requested Government for the offense for which extradition is requested;

Extradition Agreement tit. 2, art. II, § 1(a).

Jano urges that "dismissal" used in the FSM case has the same meaning as "discharge" in the agreement. In this he relies chiefly on definitions found in legal and lay dictionaries, and in a thesaurus.

We cannot agree with Jano's position. First, the agreement reads "when the person . . . has been . . . discharged" stating an action affecting the person. In the FSM case the court found it had no authority to adjudicate the matter - any action would have been void. Thus, although in some contexts "dismiss" may be a synonym for "discharge," it cannot be in this case in which the matter was dismissed because the court had no authority to adjudicate the crimes of which the defendant was accused.

Secondly, the meaning of "discharge" can be gleaned from the context in which it appears. The agreement says, "convicted, discharged or acquitted." The disposition words "convicted" and "acquitted" can only operate in cases in which a court has jurisdiction of both the party and of the subject matter. This reasoning is consistent with our first reason given, so that both a literal reading of the provision, and a reading of "discharge" in context requires personal and subject matter jurisdiction.

VIII. FSM STATUTE OF LIMITATIONS AND DUAL CRIMINALITY

A. Counts Three and Five

Jano argues that Counts Three and Five are not extraditable on the grounds that they are not punishable in the Federated States of Micronesia because the Federated States of Micronesia statute of limitations is three years. The Extradition Agreement provides that crimes to be extraditable must be "punishable under the laws of both the requesting and requested Signatory Governments . . . ." Extradition Agreement tit. 2, art. II, § 1(a)(1). Jano argues that these counts allege acts more than three, but less than five years earlier than the indictment. The mailing alleged in Count Three took place on August 25, 1989; Count Five took place on January 20, 1989. In light of our reasoning for Count Four, the mailing on August 25, 1989 in Count Three would not be time-barred by a three year statute of limitations were it to apply. Three years, however, is not the applicable statute.

Where there are provisions of both general and specific application, it is the specific provision that should be applied. Cf. Olter v. National Election Comm'r, [1987] FMSC 16; 3 FSM Intrm. 123, 129 (App. 1987). The specific provision in the Extradition Agreement concerning application of statutes of limitations bars extradition when prosecution of the offense is time-barred by "the laws of the requesting Government." Extradition Agreement tit. 2, art. III, § 1(b). Therefore only the statute of limitations of the requesting Government is to be considered. It is five years. 18 U.S.C. § 3282. The Federated States of Micronesia statute of limitations cannot be used to bar extradition on Counts Three and Five.

B. Count One

Jano argues that the conspiracy count, Count One, is also not extraditable on statute of limitations grounds. That is, Jano argues a conspiracy prosecution is time-barred if prosecution for the underlying offenses (in this case Counts Three and Five) is time-barred. As we discussed, supra Part VI, concerning the relation of Count Four to this count, where an underlying offense is not time-barred, conspiracy to commit that offense is not time-barred even if part of that conspiracy extends back in time to a point that would be time-barred. Since we have ruled that, as a matter of law, prosecution of Counts Three and Five is not time-barred, prosecution of Count One is therefore not time-barred either.

IX. SUMMARY

We affirm the extradition hearing justice's denial of the recusal motion of January 27, 1993. We make de novo conclusions of law that Count Four is not barred by the U.S. statute of limitations, that the dismissal of the 1991 case against Jano does not constitute a discharge of him precluding extradition, that the test for dual criminality may be satisfied in the FSM by either national or state law, and that the FSM statute of limitations is irrelevant in determining Jano's extraditability.

Jano is entitled to a hearing at which he has the opportunity to offer evidence, and to findings and conclusions as to the laws in the FSM which fulfill the treaty's requirement of dual criminality.

Martin Jano should be discharged from custody unless the extradition hearing justice within 45 days certifies his extraditability in accordance with this opinion.

A mandate in accordance with this opinion shall issue pursuant to FSM Appellate Rule 41.

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