COFFIN, Chief Judge.
Ernest Wolfgang Brauch was arrested in Vermont on July 9, 1979, pursuant to the provisional arrest procedures of Article VIII(1) of the Extradition Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland ("the Treaty"). As required by the Treaty, the government of the United Kingdom subsequently filed a formal request for Brauch's extradition. On September 13, 1979, a hearing on the extradition request was held before a federal magistrate in New Hampshire.
The United Kingdom's extradition request set forth charges against Brauch for violating three provisions of the English criminal laws: seven counts of violating
A. The Commodities Transactions
From 1967 through 1974, Brauch was engaged in commodities trading on the London Commodities Terminal Markets. At different times during this period Brauch maintained trading accounts at five London brokerage houses in the names of several different trading companies.
In 1974 the commodities markets suffered a period of sharp decline. On January 3, 1974, Anthony Gibbs Commodities, Ltd., with whom Brauch had been trading since 1967, made a margin call on the account of one of Brauch's trading companies, Commodities Investment Trust. Brauch responded by sending Gibbs a check for £80,000 drawn on the account of another of Brauch's companies, Neptune Finance, Ltd. The check did not clear, however, and when no further funds were forthcoming, Gibbs, closed out Brauch's trading accounts, which by then had a deficit of £55,000 owing to Gibbs.
Brauch had also traded since 1967 with the brokerage firm of E. Bailey & Company, Ltd. Although Brauch had had difficulties meeting deficiencies in his account during 1973, Bailey allowed him to open a new account and commence trading under the name of Commodities Investment Trust, with the account personally guaranteed by Brauch. On May 15, 1974, Brauch wrote a check drawn on Neptune Finance to Bailey for £103,000 to meet a margin call, but the bank refused to honor the check for want of proper signature. On May 22, in response to a second margin call, Brauch gave Bailey a check for £300,000, signed by one M. Fulton and drawn on the account of Skokie Investments, Ltd., at the Bank of Montreal in the Bahamas. Brauch told Bailey that the check represented proceeds from the sale of some property to Fulton. When Bailey attempted to cash the check, however, it was informed that there were no funds in the Skokie account. Bailey finally closed out Brauch's account and liquidated his holdings in mid-June, resulting in a deficit of £527,825.
The forgery charges arise out of Brauch's dealings with one of these brokers, Cometco Investments, Ltd. As a precondition for allowing Brauch, acting through the name of Histon Developments, Ltd., to establish a trading position, Cometco had demanded that Brauch deposit £84,000. On August 5, 1974, Brauch delivered a check in that amount drawn on the account of Skokie Investments at the Bahamas branch of the Bank of Montreal. On August 7, Cometco learned that the check would not clear and demanded a telex confirmation from the bank that the funds would be received or else Brauch's trading position would be closed out. That same day Cometco received a telex from Skokie Investments assuring it that the proceeds of the check would be paid by August 13 or 14. On August 9, with Brauch's account showing a deficit of £20,000, Cometco again asked for assurances. Brauch reported that the London office of the Bank of Montreal had received a telex that the £84,000 was being sent forthwith. When Cometco confirmed that this telex had been received, it once again permitted Brauch to maintain an active trading account. Finally, after Cometco still had not received the funds by August 15 and Brauch now faced a £60,000 margin call, the Bank of Montreal in London received a third telex stating that the funds were en route to London. Cometco never received the funds, however, and finally closed Brauch's account on August 20, 1974.
These three telexes form the basis of the three counts of uttering forged documents in violation of section 6(1) of the Forgery Act of 1913. The magistrate, after reviewing the evidence before him, concluded that neither Skokie nor the Bank of Montreal had sent any of the three telexes and therefore that Brauch had "sent or caused to be sent" the telexes.
B. The Currency Transactions
The events forming the basis of the currency charges against Brauch occurred while the Exchange Control Act of 1947 was in force in England.
In 1974 Brauch approached a firm of English solicitors and requested that they prepare a power of attorney to him from one Christina Reigleuth, a British citizen. Using this power of attorney, apparently with a forged signature, Brauch approached
Brauch was indicted under both the Exchange Control Act and section 15(1) of the Theft Act of 1968 for each of ten such transactions. The basis for the charges under the Theft Act is that Brauch dishonestly obtained from the Midland Bank British pounds sterling by falsely representing that the currency he offered in exchange was investment currency.
Requirements for Extradition Under the Treaty
As a threshold matter, we note that habeas corpus review of a magistrate's extradition order is more limited than direct appeal, which is not available in extradition cases. Greci v. Birknes, 527 F.2d 956, 958 (1st Cir. 1976). The scope of our inquiry, therefore, is limited to determining "whether the magistrate had jurisdiction, whether the offense charged is within the treaty and by a somewhat liberal construction, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). Although appellant asserts that he is entitled to relief under each of these grounds for habeas corpus, the heart of his argument is that the magistrate misapplied the choice of law and "double criminality" principles embodied in the Treaty in determining whether the offenses charged were extraditable.
Article III of the Treaty provides:
This section of the Treaty imposes on all extraditable offenses a requirement of "double criminality"—that is, an offense for which extradition is sought must be a serious crime punishable under the laws of both countries. The requirement that the acts alleged be criminal in both jurisdictions is central to extradition law and has been embodied either explicitly or implicitly in all prior extradition treaties between the United States and Great Britain since the Jay Treaty of 1794. See Collins v. Loisel, 259 U.S. 309, 311, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922) (construing the Webster-Ashburton Treaty of 1842).
Two interpretive difficulties arise from the double criminality concept: when extradition is sought from the United States, what law should the extradition magistrate apply in determining whether the double criminality test is satisfied; and what degree of congruity is required between the corresponding English and American criminal offenses? The magistrate in this case
A. Choice of Law
Under appellant's view of the proper extradition procedure, the Treaty language "punishable under the laws of both Parties" requires a magistrate to look first to federal law and then, if there is no federal provision comparable to the offense for which extradition is sought, to state law representing a consensus view of the states. New Hampshire law, he argues, is "idiosyncratic" and therefore inappropriate for determining extraditability under a treaty that refers not to the "law of the place where the fugitive is found", but to the "law of the United States".
The Supreme Court decisions construing the predecessor treaties between the United States and Great Britain, while venerable, are hardly clear in defining the proper approach to the choice of substantive law for the purposes of determining extraditability. In Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903), the Court noted that it was the law of the states to which courts were to refer for "specific definitions" of the crimes subject to extradition. Construing a provision requiring that the offense for which extradition was sought be a crime "[against] the laws of both countries", the Court stated: "[W]hen by the law of Great Britain, and by the law of the State in which the fugitive is found [the acts] are made criminal, the case comes fairly within the treaty . . . ." Id. at 61, 23 S.Ct. at 786. See also Collins v. Loisel, supra (assuming that the asylum state's law was controlling); Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861 (1916).
In Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933), the Court addressed the choice of law principle implicit in Wright and Collins that extraditability could be established only on the basis of the asylum state's law. Examining the provisions of the extradition treaty with Great Britain then in force, the Court found that with respect to those offenses enumerated in the treaty, the United States and Great Britain had agreed that such offenses were "generally recognized as criminal in both countries" and that the only inquiry into the criminality of the acts alleged was that "necessary to make certain that the offense charged is one named in the treaty." Id. at 300, 54 S.Ct. at 198. The Court held, therefore, that absent an express requirement that the enumerated offenses be criminal under the laws of the asylum state, a fugitive could not escape extradition by showing that such an offense would not be punishable under that state's law. Id.
Although it is clear that Factor held criminality in the asylum state was not a necessary precondition to extraditability, it is not clear whether the Court also meant that a finding of criminality under that state's law was always sufficient to justify extradition. Part of the rationale offered by the Court for its decision in Factor was a desire to avoid construing that treaty so that "the right to extradition from the
Appellant notes that the trend of modern extradition treaties, in response to the growth of a body of federal and more uniform state substantive law, has been to include provisions referring to the law of the United States rather than to the law of the individual asylum state. Concomitant with this trend, appellant argues, recent cases have declined to apply asylum state law when treaty provisions refer to the law of the United States. Appellant finds particular support for this argument in our decision in Greci v. Birknes, supra, 527 F.2d 956. In Greci we construed the probable cause requirement of the 1973 extradition treaty between the United States and Italy, which requires that there be sufficient evidence to justify the fugitive's commitment for trial under the law of "the requested Party". We concluded that the reference to the law of the requested party mandated application of the federal probable cause standard.
We do not view our holding in Greci as controlling in this case.
B. Comparability of Offenses
Appellant argues that in addition to determining extraditability by reference to the wrong substantive law, the magistrate did not apply a rigid enough congruity analysis to the offenses for which the government seeks extradition. Specifically, appellant asserts that the magistrate should have determined not only if appellant's acts would be considered criminal in the United States as well as in England, but that he should also have compared each English offense with a corresponding American offense and determined that the elements, purposes, and punishments of those offenses were "substantially analogous". According to appellant's theory, if provisions defining two offenses punish similar conduct but differ in the scope of their liability, the double criminality requirement is not satisfied.
The Supreme Court decisions on this issue do not support the view advanced by appellant. In Collins v. Loisel, supra, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956, the appellant argued that the offense for which India sought extradition, "cheating", which could be based on a false representation of performance of some future act, was not comparable to the offense of false pretenses under Louisiana law because the latter offense required a misrepresentation of a past or present fact. The Court rejected this argument, stating:
Similarly, in Kelly v. Griffin, supra, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861, Canada had requested extradition for charges of perjury. Under Canadian law, conviction of the crime of perjury did not require proof that the false statements were material, while under the law of the asylum state, Illinois, materiality was a necessary element of the offense. The Court found no significance, however, in the mere possibility that some false statements might fall within the scope of the Canadian law that would not constitute perjury in Illinois. Id. at 14, 36 S.Ct. at 489. Because the statements
We find Judge Friendly's opinion in Shapiro v. Ferrandina, supra, 478 F.2d 894, on which appellant relies for the proposition that extradition can be based only upon the comparability of the offenses rather than the mutual criminality of the acts on which they are based, to be distinguishable. Invoking the "rule of specialty", which provides that a fugitive may not be tried by the requesting country for any offenses other than those for which extradition was granted, Judge Friendly scrutinized the elements of each of the crimes for which the Israeli government had requested extradition and demanded strict correspondence of each charge to some felony under United States law. This approach was prompted by a concern that "the multiple characterizations of the acts charged raise potential problems of greatly increased punishment through successive sentences." Id. at 909. In this case, however, Great Britain has sought extradition for only a single offense for each of the alleged acts of appellant.
1. The Check Charges. The check charges in the English indictment were based upon appellant's alleged use of bad checks to gain a "pecuniary advantage, namely the evasion of a debt." The magistrate found that the appellant's scheme to forestall the liquidation of his commodities trading accounts would constitute a felony under both the New Hampshire consolidated theft statute, R.S.A. 637:4,
Although we do not accept appellant's argument that strict congruity of offenses is necessary to meet the test of double criminality, we agree that the offenses of the two countries must be substantially analogous. In this instance both of the provisions—section 16(1) of the English theft act and R.S.A. 638:4—punish conduct
2. The Forgery Charges. The forgery counts in the English indictment, charging appellant with uttering forged documents, on their face fall within the schedule of Treaty offenses, which includes "an offense relating to counterfeiting or forgery". The magistrate found that appellant's acts forming the basis of these charges, sending or causing to be sent telexes to Cometco's London bank assuring it that the check tendered by appellant was backed by sufficient funds, would constitute an offense under both the federal wire fraud statute, 18 U.S.C. § 1343,
Section 638:1 III provides that the utterance of a forged writing with intent to defraud is a class B felony under the statute if the "writing" is or purports to be "a check, an issue of stocks, bonds, or any other instrument representing an interest in or a claim against property, or a pecuniary interest in or claim against any person or enterprise." The crucial question is whether the telexes informing the London branch of the Bank of Montreal that funds credited to Cometco's account were en route to London constituted documents representing a pecuniary interest in property or a claim against the bank. We agree with the
3. The Currency Charges. The government's argument for extradition for appellant's acts in connection with his currency transactions rests solely on the English charges that these transactions were violative of section 15(1) of the Theft Act of 1968. The magistrate found the double criminality test satisfied because the acts supporting these charges would also have constituted felonies under the New Hampshire theft statute, R.S.A. 637:4. Appellant argues that even though the English charges are denominated violations of that country's theft act, they rest solely on the alleged violations of the Exchange Control Act, which was enacted to further monetary policies peculiar to Great Britain and has no analogue in American law. Thus, appellant's brief asserts that "but for the system of exchange controls, Brauch would have been a shrewd business man." We reject this argument. The significant common element in section 15(1) of the Theft Act of 1968 and R.S.A. 637:4 is "deception". It is depriving another of property by means of deception that both statutes proscribe as criminal behavior. We do not think that the double criminality requirement extends so far as to require that the reason particular conduct constitutes deception be some substantive law common to both jurisdictions.
Appellant argues further that the currency transactions could not constitute deprivation of property by deception because there was no victim of the deception; no private individual suffered any loss as a result of his fiscal chicanery. He bases this contention on the workings of the Exchange Control Act, which provided that once currency had been certified as "investment currency" it could not thereafter be "unscrambled" from other legitimate currency. Thus, he argues, the initial purchaser from appellant, and any subsequent purchasers, got exactly what they bargained for: fungible investment currency. The magistrate rejected this argument, holding that there need not be any immediate loss to an identifiable victim, but only the potential for such loss. Because he found in the regulations promulgated under the Exchange Control Act the authority to "unscramble" fraudulent transactions such as those allegedly engaged in by appellant, he concluded that there was a theoretical victim of appellant's scheme.
We do not find the magistrate's "theoretical victim" scenario convincing. Nor can we accept the government's argument that the double criminality requirement is satisfied because the currency scheme comes within the ambit of the crime of obtaining property by false pretenses. It is true that there is some authority for the government's assertion that the crime of false pretenses does not require that the person from whom the property is obtained (in this case, those individuals who exchanged their pounds sterling for appellant's falsely certified investment currency) suffer any financial loss. See United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932); W. LaFave & A. Scott, Handbook on Criminal Law 669-70 & n. 97 (1972). In this case, however, both the English statute under which appellant was charged and the comparable New Hampshire statute criminalize the "deprivation" of another person's property. While those who purchased investment currency from appellant may have been deceived, the facts do not support a finding that they suffered any deprivation of property; they
C. Probable Cause
Article IX(1) of the Treaty provides that "[e]xtradition shall be granted only if the evidence be found sufficient according to the law of the requested Party . . . to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party." The magistrate stated explicitly the evidentiary basis for his findings of extraditability with respect to each of the separate charges against appellant. Our review under these circumstances is limited to determining whether in fact there was "any" evidence providing the magistrate with a "reasonable ground to believe the accused guilty." Fernandez v. Phillips, supra, 268 U.S. at 312, 45 S.Ct. at 542.
We have no difficulty in finding that there was sufficient evidence before the magistrate to support his probable cause findings with respect to the charges arising out of the commodities transactions. Appellant argues that there was no factual basis for the check charges, since he had obtained nothing of value in exchange for his "rubber" checks. But the record supports the magistrate's conclusion that appellant obtained the opportunity to speculate on the commodities markets without further risk of loss to himself, and that his actions therefore deprived his brokers of something of value. Appellant also contends that there was no probable cause to support the forgery charges because no evidence directly connected him with the sending of the telexes. Furthermore, he argues, there is no evidence that the telexes were in fact false. We find neither of these arguments convincing. That the check from Skokie Investments was never paid is sufficient evidence for the purposes of our review that the telexes were false. With respect to the contention that the facts do not link appellant to the telexes, we find the inference drawn by the magistrate—that none of the other parties involved had any plausible reason to send the telexes—to have been a reasonable one based on the underlying facts.
In summary, we affirm the order of extradition for the charges arising under section 16(1) of the Theft Act of 1968 and section 6(1) of the Forgery Act of 1913, but we reverse that part of the order authorizing extradition for charges arising under section 15(1) of the Theft Act of 1968.
Affirmed in part; reversed in part.