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Harshbarger v. Regan

March 29, 2010

MARY BETH HARSHBARGER, APPELLANT
v.
MICHAEL REGAN, UNITED STATES MARSHAL FOR THE MIDDLE DISTRICT OF PENNSYLVANIA; ERIC HOLDER, ATTORNEY GENERAL OF THE UNITED STATES; SUSAN TORRES, ATTORNEY ADVISOR, OFFICE OF THE LEGAL ADVISOR, UNITED STATES DEPARTMENT OF STATE; HILLARY RODHAM CLINTON, SECRETARY OF STATE OF THE UNITED STATES



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 3-09-cv-00587) District Judge: Hon. Thomas I. Vanaskie.

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) February 8, 2010

Before: SLOVITER, ROTH and TASHIMA*fn1, Circuit Judges.

Canada seeks extradition of Mary Beth Harshbarger ("Ms. Harshbarger") for causing the death of her husband in the Canadian wilderness. After a Magistrate Judge found that she was extraditable, Ms. Harshbarger filed a petition for a writ of habeas corpus, which the District Court denied. She appeals.*fn2

I.

In 2006, Ms. Harshbarger traveled from Pennsylvania to Canada for a week-long hunting trip with her husband, Mark Harshbarger, and their two young children. While hunting one evening, Ms. Harshbarger waited in a pickup truck with the children while her husband walked in the brush with a Canadian hunting guide in search of moose. Ms. Harshbarger was to stay with the truck and if a moose or bear presented itself, she was to shoot it. When Mark Harshbarger was walking back to the truck and 200 feet away, Ms. Harshbarger shot him with a rifle, killing him. Ms. Harshbarger asserts that she mistakenly took her husband for a bear emerging from the brush.

On April 20, 2008, Canadian authorities charged Ms. Harshbarger with criminal negligence causing death and carelessly using a firearm in violation of the Criminal Code of Canada.*fn3 The Canadian government requested extradition. On February 13, 2009, a Magistrate Judge held an evidentiary hearing during which the Government introduced the affidavits of Canadian law enforcement officers. Based upon those affidavits, the Magistrate Judge found probable cause to believe that Ms. Harshbarger committed the relevant crime and therefore issued a certificate of extraditability. The Magistrate Judge's findings were:

1. The fact that the defendant was aware her husband was in the bush at the time she took the fatal shot;

2. The defendant's admission to the Canadian authorities that she "should not have fired the shot;"

3. Statements by Canadian investigators to the effect that they would not have taken the fatal shot under all the attendant circumstances;

4. The fact that she took the fatal shot after sunset, notwithstanding the fact that shooting at that time was not, in itself, a violation of law or negligence per se;

5. The fact that her husband, with whom she was traveling, was not wearing orange hunting clothes;

6. The fact that any number of Canadian investigators reenacting the alleged crime saw an ambiguous black mass, from which one might fairly infer that the defendant took her shot notwithstanding that the ...


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