NELSON, Circuit Judge:
Gerald Joseph Caplan appeals from a district court order denying habeas corpus relief in an international extradition proceeding. The United Kingdom seeks Caplan's extradition on 60 charges accusing Caplan and others of theft, forgery, and false accounting in the management of a collapsed London financial firm. In the original extradition proceeding, the district judge, sitting as a committing magistrate under 18 U.S.C. § 3184,
From February 14, 1968, to December 4, 1973, Caplan was the Chairman and Managing Director of what eventually became the London and County Securities Group, Ltd. ("L & C"). L & C was formed as a holding company for a finance company, London & County [Advance & Discount], Ltd. ("A & D"), in which Caplan had held a controlling interest since 1961. L & C acquired the entire interest in A & D in 1969.
In January, 1969, L & C became a public company, with shares first trading on the London Stock Exchange in May, 1969, at £ 0.25 per share. By May, 1972, the share price had risen to a peak of £ 4.00 per share. A more or less steady decline in price followed, tracking the downturn in the British economy.
In order to counteract the decline in share prices, Caplan arranged for A & D, through an intricate group of transactions in the names of nominee owners, to buy and hold L & C shares. This practice is labelled "warehousing" in the Government's case, and it is in relation to warehousing transactions that most of the charges against Caplan arise. The warehousing plan did not succeed in stabilizing the share price, and, with the company in disarray, trading in L & C was ultimately suspended on November 30, 1973, at £ 0.45 per share.
On December 4, 1973, Caplan resigned; a caretaker board of directors took over the following month. On January 11, 1974, on request of the board of directors, the British Department of Trade & Industry appointed inspectors to investigate the affairs of L & C. The investigation included an extensive examination of Caplan, who cooperated with the inspectors.
In November, 1974, after his final session with the Department of Trade & Industry, Caplan and his wife moved to France and applied for permanent resident status. A year later, in November, 1975, the two moved to Monaco where Caplan took part in a business venture. Caplan was forced to resign his Monaco position in January, 1976, in the wake of the public report issued by the Department of Trade & Industry criticizing Caplan's management of L & C; the two then moved to their present residence in Beverly Hills, California.
Caplan was arrested in April, 1978, pursuant to the provisional arrest provisions of the extradition treaty,
In August, 1979, Caplan petitioned for a writ of habeas corpus, asserting various challenges to the certification of extraditability. After a hearing in September, 1979, the petition was denied in October, 1979. From that denial this appeal was taken.
Because a certification of extraditability is not a "final order," no direct appeal lies from that decision. Review is therefore available only by way of petition for habeas corpus. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920). Our inquiry in reviewing the denial of such a petition, in turn, is more restricted than that afforded in a direct appeal. Thus, as most recently stated in this Circuit:
Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978). Recognizing this constraint, Caplan has directed his arguments largely at the fourth category above. He thus argues, first, that extradition on Charges 2 through 21 is barred by the statute of limitations, and second, that the facts found under Charges 22 through 60 do not establish extraditable offenses. We shall examine each contention.
I. Charges 2 through 21.
Under our treaty with the United Kingdom, Caplan cannot be extradited on any charge for which "prosecution ... has become barred by lapse of time according to the law of the requesting or requested Party."
Charge 2 involves a fictitious bank account maintained between February, 1968, and December, 1973, straddling the limitations period. Charges 3 through 21 allege acts taking place no later than April, 1973. Caplan cannot be extradited on the pre-May-1973 offenses unless the statute of limitations was tolled. The applicable tolling provision, 18 U.S.C. § 3290, provides
The government advances two reasons for its contention that Caplan intended to evade arrest by moving from England. First, it argues, because the British Department of Trade and Industry conducted an investigation of the affairs of L & C — including an extensive examination of Caplan — Caplan had a clear understanding that criminal charges might ensue. The inference that Caplan left because of the possibility of criminal charges stemming from the investigation, however, is negated by the facts. Caplan was first questioned by the Department in June, 1974. He listed his house for sale in early July, 1974. Thereafter, he delayed his departure from England for several months to allow the investigation to be completed. It is also clear that Caplan had been planning to leave England for several months prior to his departure. In fact, Caplan and his wife applied for non-residence classification with the British government several months before departure. In preparing the application, they gave the government the address to which they planned to and did in fact move. In France, Caplan conducted business under his true name. When Caplan was forced to resign from his business in Monaco, he moved to this country where he at all times used his true name and address. Finally, the evidence showed that Caplan returned to England in February, 1975, for a one-week period and in 1977 for a stop-over during an international flight. During this entire period, Caplan never had notice that he was wanted for arrest or that criminal charges were contemplated. These facts belie the government's contention that Caplan left to avoid prosecution. Certainly Caplan did not cause any delay by "unacceptable conduct."
The government also contends that we should find the requisite intent because by moving to France, Caplan made his arrest more difficult. Acceptance of this argument, however, would mark a return to the "mere absence" standard which the Wazney court rejected. His departure from England may have necessitated extradition proceedings, but it did not cause the British government's lengthy delay in initiating prosecution. The government had obtained whatever information it needed from Caplan before his departure. As Caplan notes, adoption of the government's argument would mean that for the duration of the applicable statute of limitations "there was no burden of diligence on the Government and that Caplan simply could not leave England in any manner or under any circumstances."
The government failed to meet its burden of proving that Caplan concealed himself with intent to avoid arrest or prosecution.
II. Charges 22 through 60.
In the remaining charges, numbered 22 through 60, Caplan is accused of violating several provisions of the British Theft Act.
Our review of the extradition proceeding in light of the arguments on appeal has uncovered serious shortcomings. Caplan argues that the facts "found"
The extradition court merely made a conclusory finding that charges 22 through 60 were sufficient to establish extraditable offenses. The following sentences contain the court's sole finding regarding whether the charged offenses themselves were eligible for extradition:
Two concepts require that an explicit finding be made regarding the extraditability of each charge. First, under the "principle of dual criminality," no offense is extraditable unless it is criminal in both jurisdictions. See Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922); Wright v. Henkel, 190 U.S. 40, 58-63, 23 S.Ct. 781, 785-87, 47 L.Ed. 948 (1903). Compare Brauch v. Raiche, 618 F.2d 843, 847-51 (1st Cir. 1980) with Shapiro v. Ferrandina, 478 F.2d 894, 905-09 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973). This particular treaty expressly incorporates the dual criminality requirement and, moreover, specifies that the offense must be punishable by imprisonment for more than one year in each country and that it must be a felony under United States law.
The district court's conclusory finding that extraditable offenses had been alleged in Charges 22 through 60 is insufficient especially where, as here, there is doubt regarding the government's legal theory that the alleged conduct is criminal. In a persuasively reasoned opinion, the Second Circuit has held that the principle of specialty mandates a careful culling of extraditable offenses from non-extraditable offenses. Shapiro v. Ferrandina, supra, 478 F.2d at 905-09. This Circuit has acknowledged the same requirement. Cucuzzella v. Keliikoa, 638 F.2d 105, 107 (9th Cir. 1981).
No such culling is evident here. Nothing in the record shows with any specificity that Caplan's alleged acts constitute crimes in England, nor that they constitute corresponding offenses in this country under the dual criminality requirement.
Had a more complete examination of these charges and their satisfaction of treaty requirements been made in the extradition court, we could review the determinations of extraditability as questions of law. The record in this case simply does
We cannot furnish those connections here. Arguments and findings relating to whether each charge satisfies the treaty requirements are part of the record that should be developed in the extradition court in the first instance, where the full adversary participation of counsel permits extensive inquiry into such questions.
In our view, an adequate extradition proceeding must include in its record a specific delineation, as to each charge, of the legal theories under the requesting country's law by which the accused's conduct is alleged to constitute an extraditable offense, together with an identification of the corresponding offenses in this country relied on to show that the "dual criminality" requirement has been met.
Caplan cannot be extradited on charge 1, charges 3 through 21, nor that part of charge 2 alleging a violation that did not continue past May 18, 1973. Caplan's extraditability on the latter part of charge 2, as well as on the remaining charges, has not
18 U.S.C. § 3184.
Extradition Treaty, supra note 4, art. IX, § 1. See Benson v. McMahon, 127 U.S. 457, 462-63, 8 S.Ct. 1240, 1242-43, 32 L.Ed. 234 (1888); Sindona v. Grant, 619 F.2d 167, 175 (2d Cir. 1980); Greci v. Birknes, 527 F.2d 956, 958 (1st Cir. 1976).
Extradition Treaty, supra note 4, art. III, § 1.
Extradition Treaty, supra note 4, art. XII, § 1.