Robert Montgomery Hooker, Appellant-Petitioner v. Frank X. Klein, United States Marshal, N.D. Of California, Appellee-Respondent

concurring:

I concur in the judgment of affirmance of the denial of the writ of habeas corpus, but I have some slightly different ideas from Judge Kelleher.

This extradition business is sui generis and, grounded in equity, I think we can write some rules, at least until overruled by higher authority.

We must agree that the statutes give no right of direct appeal to anybody on an extradition decision, but the “victim” of an extradition order generally gets a pretty broad review under habeas corpus, notwithstanding preachments that it is extremely limited.

I would give the government at least one more shot on extradition when the magistrate has clearly made a wrong ruling, and I think he did here. He let the fugitive put on a pretty fair defense, whereas the fugitive is only entitled to explain or clarify government allegations.

If, on the face of things on the second petition, it appears that a magistrate was clearly right, the second forum should dismiss the petition on that ground. In effect, affirm; although we must not call it that.

If it appears the magistrate may or may not have been right, we ought to give the government a second judge. How many more times, we need not…

This is an appeal from a denial of a petition for a writ of habeas corpus challenging a finding of extraditability and order of commitment entered by the district court on September 21, 1976. While the appeal is taken from the denial of habeas corpus relief, the various issues raised herein bear upon the legality of appellant’s extradition proceedings.

In March of 1975, the Canadian government requested from the United States extradition of appellant Robert Hooker pursuant to the extradition treaty then in force between the two countries. 1 The requesting documents charged Hooker with theft of various corporate assets following the dissolution of a Canadian corporation of which he was one of two principals. Pursuant to 18 U.S.C. § 3184 (1970) 2 and then Rule 501(a)(6) of the Local Rules of Practice for the Northern District of California 3 the *1364 extradition complaint was referred to a magistrate of that court for review and disposition. After conducting a hearing in which he considered evidence submitted on behalf of the Canadian government and rebuttal evidence submitted by appellant, and upon weighing the credibility of certain witnesses testifying on behalf of appellant,…

573 F.2d 1360 Robert Montgomery HOOKER, Appellant-Petitioner, v. Frank X. KLEIN, United States Marshal, N.D. of California, Appellee-Respondent. No. 76-3727. United States Court of Appeals, Ninth Circuit. May 3, 1978. 1 Claudia A. Wilken, Asst. Federal Public Defender (argued), San Francisco, Cal., for appellant-petitioner. 2 Murray R. Stein (argued), of U. S. Dept. of Justice, Washington, D. C., for appellee-respondent. 3 Appeal from the United States District Court for the Northern District of California. 4 Before CHAMBERS and GOODWIN, Circuit Judges, and KELLEHER * , District Judge. KELLEHER, District Judge: 5 This is an appeal from a denial of a petition for a writ of habeas corpus challenging a finding of extraditability and order of commitment entered by the district court on September 21, 1976. While the appeal is taken from the denial of habeas corpus relief, the various issues raised herein bear upon the legality of appellant's extradition proceedings. 6 In March of 1975, the Canadian government requested from the United States extradition of appellant Robert Hooker pursuant to the extradition treaty then in force between the two countries. 1 The requesting documents…