United States District Court, D. Alaska
ORDER RE HABEAS CORPUS PETITION
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 1 is Petitioner Indea Grace Fordham's
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241. The Government opposed the petition at Docket 6.
Oral argument was not requested and was not necessary to the
Court's decision.
Ms.
Fordham's Petition seeks to set aside the Certificate of
Extradition entered on December 1, 2017 by Magistrate Judge
Kevin McCoy.[1] For the reasons set forth below, the
Petition will be denied.
BACKGROUND
The
facts as alleged in the United Kingdom's Extradition
Request are as follows: Prior to October 2015, Indea Fordham
resided in the United Kingdom. She and Eren Halil were in a
relationship for three years and had two children together,
G.M.H. and A.L.H.[2]Ms. Fordham and Mr. Halil separated in
2012. In October 2014, the Dartford Family Court at Dartford,
United Kingdom entered a Child Arrangements Order, which
provided that the children would live with Ms. Fordham and
have scheduled visitation with Mr. Halil.[3]The order provides
that “[A.L.H's] passport shall then be forwarded
and remain in the Father's possession and [G.M.H.'s]
passport shall be forwarded to the Mother and remain in her
possession until such point as either parent books a holiday,
at which point both passports will go to the parent leaving
the jurisdiction with the children and return back to each
parent at the conclusion of the holiday.”[4] Attached to the
order is a warning regarding the Child Abduction Act 1984,
which provides that “no person may . . . remove the
children from the United Kingdom without the written consent
of every person with parental responsibility for the children
or the leave of the court.”[5]
On
March 24, 2015, Ms. Fordham applied for a replacement
passport for A.L.H. to Her Majesty's Passport Office,
representing that A.L.H.'s original passport had been
lost. On April 16, 2015, the passport office issued a new
passport for A.L.H.[6]
On May
5, 2015, the Dartford Family Court at Maidstone, United
Kingdom held a hearing at which Ms. Fordham's application
for leave to remove the children from the jurisdiction to
live in Alaska was dismissed.[7]
On
October 2, 2015, Ms. Fordham left the United Kingdom with
G.M.H. and A.L.H. and flew to Washington Dulles without
notifying Mr. Halil in violation of the Child Arrangements
Order, using A.L.H.'s replacement passport.[8] Mr. Halil
discovered the children were gone the following day when he
went to pick them up for his regularly scheduled weekend
visit under the Child Arrangements Order.[9] Mr. Halil
reported the children missing and produced the original, not
yet expired, passport for A.L.H.[10] On October 8, 2015,
G.M.H. and A.L.H. were made wards of the High Court of
Justice Family Division, and Ms. Fordham was ordered to
return the children to the United Kingdom
forthwith.[11]
On
April 4, 2016, the Bromley Magistrates' Court in the
United Kingdom issued an arrest warrant for Ms. Fordham,
charging her with two counts of child abduction and one count
of fraud related to the application to replace A.L.H.'s
passport.[12] On June 16, 2016, the Head of
Extradition from the United Kingdom formally requested that
the U.S. Department of State extradite Ms. Fordham to the
United Kingdom to answer for her pending
charges.[13] On April 14, 2017, the United States
filed a Criminal Complaint in the District of Alaska and
sought a warrant for Ms. Fordham's arrest and
extradition.[14] The court issued the warrant, and on
April 18, 2017, Ms. Fordham was arrested in Sitka,
Alaska.[15]
On
April 26, 2017, Magistrate Judge Kevin McCoy held a detention
hearing and released Ms. Fordham from custody.[16] Thereafter,
both parties filed briefing on the extradition
request.[17] Ms. Fordham argued that the extradition
request should be denied because “the offense of child
abduction under the Abduction Act does not satisfy the dual
criminality requirement of the United Kingdom-United States
Extradition Treaty, as the conduct does not constitute a
crime under the laws of the United States when the defendant
is ‘fleeing an incidence or pattern of domestic
violence.'”[18] She also asserted that the Child
Abduction Act “does not apply to persons who take a
child outside the United Kingdom with the appropriate consent
but retain the child beyond the period for which
authorization is granted.”[19]
On
November 6, 2017, Magistrate Judge Kevin McCoy conducted an
extradition hearing pursuant to 18 U.S.C. §
3184.[20] At the hearing, Ms. Fordham
“elected not to present any evidence . . . in support
of (1) the allegations of verbal and physical abuse by Halil
or (2) the allegation that Halil told her A.L.H, 's
passport was lost. Nor did she proffer or present evidence
that the Maidstone Family Court failed or refused to consider
these allegations.”[21] Prior to the hearing, the
Government filed a witness statement of Mr. Halil, in which
he stated “at no point did I tell Indea that I had lost
of mislaid [A.L.H.'s] passport. Indea did not inform me
or consult me that she had requested a new passport . . .
either.”[22] The Government did not present any
additional evidence at the hearing apart from its original
filing of the extradition request.[23]
On
December 1, 2017, the magistrate judge issued a Memorandum
Opinion and Certification of Extradition.[24] The court
found that dual criminality existed because “[t]he
essential character of the criminal acts criminalized by the
laws of each country is the same and the laws are
substantially analogous.”[25] Relying on the documents
from the United Kingdom, the magistrate judge held that there
was competent evidence of probable cause “to sustain
two charges of child abduction . . . and one charge of fraud
by false representation . . . presently pending against her
in the United Kingdom under the extradition treaty between
United Kingdom of Great Britain and Northern Ireland and the
United States of America.”[26] The court concluded that
“Indea Grace Fordham, a.k.a. Indea Ford, is
extraditable under the aforesaid treaty, and that further
proceedings in extradition may be
conducted.”[27] On December 28, 2017, Ms. Fordham filed
the petition for writ of habeas corpus that instituted this
case.[28]
SCOPE
OF REVIEW
“The
scope of review of an extradition order is considerably more
restricted than that generally engaged in by an appellate
court.”[29] “The district court's habeas
review of an extradition order is limited to whether: (1) the
extradition magistrate had jurisdiction over the individual
sought, (2) the treaty was in force and the accused's
alleged offense fell within the treaty's terms, and (3)
there is ‘any competent evidence' supporting the
probable cause determination of the
magistrate.”[30]
Whether
an offense comes within a treaty is based on “whether
it is listed as an extraditable crime and whether the conduct
is illegal in both countries, ” which is a question of
law reviewed de novo.[31] “Purely factual
questions in extradition cases are reviewed under the clearly
erroneous standard.”[32] “Because the
magistrate's probable cause finding is thus not a finding
of fact in the sense that the court has weighed the evidence
and resolved disputed factual issues, it must be upheld if
there is any competent evidence in the record to support
it.”[33]
DISCUSSION
Ms.
Fordham does not appear to dispute that the magistrate had
jurisdiction; nor does she dispute that a valid treaty was in
effect at the time of the extradition hearing. Ms. Fordham
asserts two arguments in her petition: (1) child abduction is
not an extraditable offense because there is no dual
criminality; and (2) there is not probable cause to find that
Ms. Fordham violated the Child Abduction Act or committed the
offense of Fraud by False Representation.[34] The petition
contains extensive unsworn allegations of domestic violence
and abuse perpetrated by Mr. Halil on Ms.
Fordham.[35]
A.
Dual Criminality
Ms.
Fordham asserts that the United Kingdom's Child Abduction
Act and the United States' international child abduction
statute “do not punish the same ‘basic
evil.'”[36]“Dual criminality requires that an
accused be extradited only if the alleged criminal conduct is
considered criminal under the laws of both the surrendering
and requesting nations.”[37] Dual criminality does not
require that each crime is an “exact duplicate”
of the other; but the two crimes must be “sufficiently
analogous to satisfy dual criminality.”[38]
The
Child Abduction Act 1984 c.37, § 1(1), (Eng., Wales)
prohibits a parent from taking “the child out of the
United Kingdom without the appropriate consent.”
“Appropriate consent” includes “consent of
. . . the child's father, if he has parental
responsibility.”[39]The International Parental Kidnapping
Crime Act (“IPKCA”) under United States law
provides “[w]hoever removes a child from the United
States, or attempts to do so, or retains a child (who has
been in the United States) outside the United States with
intent to obstruct the lawful exercise of parental rights
shall be fined under this title or
imprisoned[.]”[40] “Parental rights” means the
“right to physical custody of the child, ”
including “visiting rights” arising from a
“court order.”[41] Both acts criminalize the
removal of children from the country by a parent in violation
of a court order or without the consent of the other parent.
Ms.
Fordham observes that the IPKCA provides an affirmative
defense to victims of domestic violence and there is no
analogous equivalent defense for domestic violence victims
under United Kingdom law.[42] She asserts that the existence
of that affirmative defense “may not, by
itself, defeat an extradition request, [but] it is
nonetheless relevant to the dual criminality
analysis.”[43] The Government argues that the potential
affirmative defense in U.S. law is irrelevant to determining
extraditability.[44] The Court agrees with the Government on
this point. The Supreme Court has held that an extradition
hearing is “confined to the single question of whether
the evidence for the state makes a prima facie case of guilt
sufficient to make it proper to hold the party for
trial.”[45] “The accused . . . does not have
the right to introduce evidence [at an extradition
proceeding] in defense because that would require the
government seeking his extradition ‘to go into a full
trial on the merits in a foreign
country.'”[46] Courts have routinely followed this
procedure.[47]Accordingly, the United Kingdom's
Child Abduction Act and the United States' IPKCA satisfy
the dual criminality requirement and the magistrate judge did
not err in rejecting Ms. Fordham's argument that the
potential affirmative defense under the IPKCA precludes a
finding of dual criminality.[48]
B.
Probable Cause
Ms.
Fordham next asserts the magistrate judge erred in his
probable cause determinations. On habeas review, this Court
considers whether there is “any competent
evidence” to support the probable cause
determinations.[49] Ms. Fordham does not contest the
authenticity of the evidence before the magistrate judge.
Rather, she challenges its sufficiency.
On the
child abduction charges, Ms. Fordham asserts that
“[t]here is no probable cause to conclude that Ms. Ford
violated the Child Abduction Act, because it is not unlawful
under the Act to retain a child outside of the United
Kingdom.”[50] Her petition asserts that when she left
the United Kingdom, she only intended to visit relatives for
a short time, and therefore she did not abduct the children
but rather retained the children outside of the United
Kingdom.[51] The Government responds that
“[t]he record amply supports the magistrate judge's
finding of probable cause to believe petitioner violated the
U.K.'s Child Abduction Act.”[52]
Ms.
Fordham relies on a United Kingdom case, Nicolaou
(2011) EWHC 1647 UK, to support her argument.[53] In
Nicolaou, the father took the child out of the
United Kingdom to Cyprus for a three week trip after
obtaining a court order, but then kept the child out of the
United Kingdom for a number of years thereafter. A warrant
was issued for the father's arrest. The United
Kingdom's High Court quashed the warrant because it found
that the father had not abducted the child when he left the
United Kingdom, but rather had impermissibly
retained the child in Cyprus after the three week
holiday. Nicolaou does not support Ms. Fordham's
argument because she did not obtain a court order authorizing
her to leave the United Kingdom. To the contrary, her request
to the court to take the children to Alaska was dismissed.
The
magistrate judge reviewed the exhibits filed by the
Government, including the Child Arrangements Order entered by
the Family Court in the United Kingdom requiring that each
parent would retain one child's passport.[54] The
Government also provided the Child Arrangements and Specific
Issue Order denying Ms. Fordham's request to amend the
Child Arrangements Order that would have allowed her to
relocate to Alaska.[55] Ms. Fordham did not introduce any
evidence at the extradition hearing in an effort to negate
probable cause on the two child abduction counts. The
Court's role on habeas review is to determine if there
was any competent evidence to support the magistrate
judge's probable cause determination; its task is not to
determine whether the evidence is sufficient to justify a
conviction.[56] In this case, there clearly was
...