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In re Extradition of Harshbarger

March 4, 2009

IN THE MATTER OF THE EXTRADITION OF MARY BETH HARSHBARGER


The opinion of the court was delivered by: Mannion, M.J.

MEMORANDUM AND ORDER

Pending before the Court is the United States' (the Government's) request for the extradition of Mary Beth Harshbarger, (Doc. No. 2), pursuant to the Treaty on Extradition, Dec. 3, 1971, U.S.-Canada, T.I.A.S. No. 8237 (as amended by protocols of 1988 and 2001)*fn1 and Title 18, United States Code, Section 3184. Having considered the parties' submissions, oral argument, the Treaty, statutory law, and case law, the Court finds that there is sufficient evidence to support Harshbarger's extradition to Canada to face the (single) charge of causing death by criminal negligence which has been brought against her there.

For the reasons elaborated below, and in compliance with Section 3184 and the Treaty, the Court will order her extradition and commitment to the United States Marshal until she is surrendered to the Canadian authorities.

I. PROCEDURAL AND FACTUAL HISTORY

The Government filed an ex parte complaint (the "Complaint") seeking, on behalf of the government of Canada, the extradition of Mary Beth Harshbarger to Canada for alleged crimes committed in the Canadian province of Newfoundland and Labrador on or about September 14, 2006. (Doc. No. 1.)

In addition to the Complaint, the Government also filed: (1) a request for extradition, Doc. No. 2; (2) the Declaration of Susan Torres, an Attorney-Adviser in the Office of the Legal Adviser, United States Department of State (hereinafter the "State Department"), with the diplomatic note of the Canadian Government to the State Department requesting extradition, and copies of the treaties and protocols governing United States-Canadian extradition, Doc. No. 3; (3) the affidavits of Stephen R. Dawson ("Dawson Aff."), the Senior Crown Attorney (Acting) at the Special Prosecutions Office in the provincial Department of Justice, a criminal information (hereinafter the "Information") supported by an affidavit sworn by Constable Doug Hewitt before Canadian Justice of the Peace Donna Antle (hereinafter "Hewitt Aff. #1"), a Warrant of Arrest signed by Canadian Justice of the Peace Pamela Arnold, the affidavit of Constable Douglas Hewitt (hereinafter "Hewitt Aff. #2"), the affidavit of Lambert Greene, and a picture of the accused,*fn2 Doc. No. 4 & Exh. A; and (4) a proposed order sealing the Government's eighty-six page 5-part filing, Doc. No. 5. The Court signed the proposed order. Id.

The gravamen of the Complaint and the related filings is that on or about September 14, 2006, during a hunting trip in Newfoundland,*fn3 defendant Mary Beth Harshbarger, an American citizen, in a criminally negligent manner caused the death of her husband, Mark Harshbarger, when she allegedly mistook him for a bear*fn4 while he was coming out of the woods, and shortly after sunset,*fn5 shot and killed him. The Canadian authorities have since charged her with violating Sections 219(1) and 220(a)*fn6 of the Criminal Code of Canada (relating to criminal negligence*fn7 causing death of another -- where a firearm is used in the commission of the offense), and Section 86(1) of the Criminal Code of Canada*fn8 (relating to the commission of an offense in conjunction with the careless use of a firearm). Each offense, under Canadian statutory law, carries a penalty or potential penalty in excess of one year imprisonment.*fn9

After the tragic death of Mark Harshbarger, Mary Beth Harshbarger was interviewed. She stated that "she thought she was shooting at a black bear when she shot [her husband]," who was some "200 feet" away when shot. See Dawson Aff. ¶¶ 12, 15. Canadian authorities conducted an investigation into the alleged crimes. The Canadian authorities went as far as to re-enact the events on September 16, 2006, i.e., two days after the incident, and again, one year later, on September 13, 2007. After conducting their investigation, the Royal Canadian Mounted Police investigator concluded: "it was too dark to hunt safely at 7:55 p.m. [the time Mark Harshbarger was shot]." Id. ¶ 14; Hewitt Aff. #2, ¶ 21 (same); see also id. ¶ 16(ii) (concluding that Constable Hewitt "thought it plausible that Mary Beth Harshbarger may have felt that she was shooting at a bear. In my opinion, the lighting conditions were too dark to have fired a shot."); id. ¶ 16(iii) (stating that Cpl. Thibault concluded: "it is quite plausible that Mary Beth Harshbarger felt she was looking at a bear. Based on his observations and years of hunting experience, under the conditions as presented during this exercise, that he would not have taken a shot as it was just too dark"); id. ¶ 16(iv) (stating that Cpl. Eady concluded: "[t]hat even when looking through the scope of the rifle used in the incident, all that he could see was a dark mass"). Six months following the second reenactment and more than one and one-half years after the 2006 incident, on April 30, 2008, Hewitt swore an information before a Canadian Justice of the Peace and a warrant for the arrest of the defendant was issued. Id. ¶ 22. Thereafter, the Canadian government contacted the State Department and requested extradition. Id. ¶ 23. The State Department filed this action more than two years after the underlying events, and long after the defendant had apparently lawfully returned home, to the United States.*fn10 The Government alleges that the defendant may currently be found in Meshoppen, Wyoming County, Pennsylvania -- a location within the jurisdiction of the Court. Complaint ¶ 4.

Responding to the Government's ex parte filing, this Court issued a memorandum and order directing the United States Marshal to serve a summons on the defendant. (Doc. No. 6.*fn11 ) The order also provided that the sealing order be lifted on the Government's filing after service of the summons. Id. The summons was returned on January 7, 2009. (Doc. No. 7.) It directed the defendant to attend a hearing on January 16, 2009. The defendant appeared with private counsel. At that hearing, the Court heard defendant's motion for bail, which was not contested by the Government. The Court granted bail subject to numerous restrictive conditions. (Doc. No. 8.) Furthermore, after hearing from the parties, the Court issued an order setting a briefing schedule and a date for the statutory evidentiary hearing, i.e., the extradition hearing. (Doc. No. 10.) The parties filed timely briefs. (Defendant's filing (Doc. No. 12 & Doc. No. 14); the Government's filing (Doc. No. 13, refiled Doc. No. 15, re-refiled Doc. No. 16).) Thereafter, the hearing took place on February 13, 2009. The Court took the parties' briefing and representations at oral argument under advisement, and this decision follows.

II. LEGAL STANDARD

Extradition between the United States and Canada is controlled by treaty and statutory authority, as interpreted by case law. See Treaty on Extradition, Dec. 3, 1971, U.S.-Canada, T.I.A.S. No. 8237 (as amended by protocols of 1988 and 2001*fn12 ); 18 U.S.C. §3184. Article 2 of the 1971 Treaty was replaced by Article 1 of the First Protocol. Article 1 provides for extradition under the so-called "dual criminality" standard, i.e., "[e]xtradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment." First Protocol art. 1.*fn13

The statutory framework for extradition is controlled by Section 3184, which provides:

Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b), any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181(b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate judge, to the end that the evidence of criminality may be heard and considered.... If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. 18 U.S.C. §3184.

Consistent with the Treaty and Section 3184, a federal court will order extradition, if: (1) the Court has subject matter jurisdiction over the proceedings (and, concomitantly, the presiding judicial officer adjudicating the proceeding is authorized to conduct the proceedings); (2) the Court has personal jurisdiction over the defendant; (3) the person before the Court is the person identified or named in the Government's extradition request; (4) an in-force and in-effect treaty exists between the requesting state and the United States; (5) the alleged crime or crimes are covered by that treaty; and (6) the competent evidence put forward by the Government supports a finding as to probable cause for the crime or crimes for which extradition is sought. See In re Ortiz, 444 F. Supp. 2d 876, 881-82 (N.D. Ill. 2005) (Denlow, M.J.).

The parties do not contest: (1) the Court's jurisdiction (and, concomitantly, the authority of the presiding judicial officer in these proceedings); (2) the assertion of personal jurisdiction over the defendant by the Court; (3) that the defendant is the person named or identified in the Government's extradition request, and (4) that the Treaty is in-force and ineffect.

The parties do contest, in part, whether: (5) the alleged crimes meet the dual criminality standard; and, the parties also contest (6) whether the Government has put forward sufficient evidence to establish probable cause as to each of the alleged crimes.

Under 18 U.S.C. §3184, a judicial officer is required to make a determination as to whether the evidence submitted is "sufficient to sustain the charge under provisions of the proper treaty or convention." Article 8 of the Treaty states that "[t]he determination that extradition should or should not be granted shall be made in accordance with the law of the requested State ...." Treaty art. 8 (emphasis added). Likewise, Article 10 provides that "[e]xtradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory ...." It follows that:

[t]he standard of probable cause [to be applied] in an extradition hearing is established by federal law. The assessment to be made is therefore similar to the one in a preliminary hearing under the Federal Rule of Criminal Procedure 5.1. This Court is not required to determine whether [the defendant] is guilty, but merely whether there was competent legal evidence which would justify ...


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