conflict with internationally accepted standards of human rights as set forth in such documents as the Final Act of the Helsinki Conference on Security and Cooperation in Europe and the Universal Declaration of Human Rights, which states that "Everyone has the right to leave any country, including his own, and to return to his country."

...

[I]n relation to General Grigorenko . . . while we don't know of any relationship between the two actions, we believe that the same principles of human rights are applicable and, therefore, the general statement would have to be the same.

Dept. of State News Briefing, DPC 50, Mar. 16, 1978, p. B-17.

Speaking on the Senate floor on March 21 in reference to the two cases, Senator H. John Heinz III condemned the Soviet Union's "continuing harassment of its own citizens in violation of all accepted standards of human rights" and declared that it was the "responsibility of the United States to nurture that spark [of freedom, "ignited" by "the Solzhenitsyns, the Shcharanskys, the Grigorenkos, and the Rostropoviches" of the Soviet Union], to feed it and help it grow with our moral and material support."

Cong. Rec., Vol. 124, No. 41 (daily ed., Mar. 21, 1978),

p. S4284.

Authority to Issue and Sign Warrants for Return to U.S.

Under date of October 13, 1978, Secretary of State Cyrus R. Vance delegated to the Legal Adviser of the Department of State all the authority and functions vested in the Secretary of State by Executive Order 11517, relating to issuance and signature of warrants appointing agents to return fugitives from justice extradited to the United States. Notwithstanding the delegation of authority, the Secretary or Deputy Secretary may at any time exercise any authority conferred upon the Secretary of State by Executive Order 11517.

Delegation of Authority No. 142, Fed. Reg., Vol. 43, No. 212, Nov. 1, 1978, p. 50981.

The delegation of authority superseded an earlier delegation to the Deputy Secretary of State (No. 130 of July 22, 1974), ibid., Vol. 39, No. 150, Aug. 2, 1974, p. 27922.

For E. O. 11517, Mar. 19, 1970, see 3 CFR 1966-1970 Comp. (1971), p. 906. See, further, in regard to warrants for extradition from the United States, 18 U.S.C. 3186, and Whiteman, Digest of International Law, Vol. 6 (1968), pp. 1047-1048.

Content of Warrant

Some time after the United States Government had surrendered Jacques Rene Berenguer on extradition to the Government of Italy in June 1978 to stand trial for the offenses of murder and aggravated robbery (see, post), it was noticed that the warrant for his extradition signed by Deputy Secretary of State Warren Christopher had mentioned only the first crime and not the second. The Embassy of Italy expressed concern to the Department of State (in a note of November 13, 1978) that Berenguer's trial for aggravated robbery might be prevented from a procedural standpoint because that crime had not been specified in the warrant for his surrender. The Embassy asked whether a "new" (i.e., corrected) warrant could be issued that mentioned both crimes, or whether a statement could be obtained, "clarifying that although the crime of aggravated robbery was omitted in the original warrant of surrender, it should be considered as included therein since the extradition had been granted by the appropriate... authorities for both crimes." The Department of State confirmed that the extradition had been for both crimes, in its reply of November 15, 1978, reading in part as follows:

On April 13, 1978, the United States District Court for the Middle District of Pennsylvania issued a Certificate of Extraditability and Order of Commitment finding Mr. Berenguer extraditable to Italy to stand trial for the offenses of murder and aggravated robbery. The Deputy Secretary of State after reviewing the finding of the United States District Court authorized the extradition of Mr. Berenguer to Italy to stand trial on both the murder and aggravated robbery charges.

The Extradition Warrant issued by the Department of State to the Embassy of Italy, while mentioning only the charge of murder, does not limit or modify the Deputy Secretary of State's determination that Mr. Berenguer may be tried in Italy on both offenses.

It is hoped that this note resolves any ambiguity associated with the inadvertent omission of the aggravated robbery charge in the Extradition Warrant issued to the Embassy of Italy.

Dept. of State File Nos. P79 0108-1330 and P79 0009-0654.

Renewability

Hooker v. Klein, 573 F.2d 1360 (1978), cert. den. 439 U.S. 932, October 30, 1978, was an appeal from denial of a petition for writ of habeas corpus, which challenged a Certification of Extraditability and Order of Commitment by a district judge, issued September 21, 1976. The United States Court of Appeals for the Ninth Circuit was confronted with three issues: (1) whether the United States Government

might renew an extradition request (i.e., before a district judge) after an original request on the same facts had been denied by a court of competent jurisdiction (in this instance, by a United States magistrate); (2) whether, if the request were renewable, what weight, if any, must the court entertaining the second request give to the findings of the first court on the same evidentiary record (i.e., is the first finding on non-extraditability res judicata as to the second proceeding); and (3) what the proper scope of review on appeal is, as to matters concerning extradition proceedings.

District Judge Robert J. Kelleher, sitting by designation, wrote the opinion for the circuit court. He held, as to the first issue, that the government is not barred by constitutional considerations from reinstituting an extradition request, where it determines in good faith that extradition is warranted, regardless of whether earlier requests have been denied on procedural grounds or on the merits after an evidentiary hearing. As to the second issue, it held that, because an extraditing court does not render judgment on the guilt or innocence of the fugitive, but merely whether, inter alia, competent evidence exists, which justifies the apprehension and commitment of the fugitive, the order of the extraditing court cannot be considered a final judgment on the merits, and the doctrine of res judicata is "patently inapplicable." As to the third issue, the Court pointed out that, since an order of extradition cannot be appealed directly under United States law, the scope of review is "considerably more restricted than that generally engaged in by an appellate court," and, "on collateral review by habeas corpus" cannot extend beyond "whether (1) the extradition judge had jurisdiction to conduct extradition proceedings; (2) the extradition court had jurisdiction over the fugitive; (3) the treaty of extradition was in full force and effect; (4) the crime fell within terms of the treaty; and (5) there was competent legal evidence to support a finding of extraditability.”

In a concurring opinion, Senior Circuit Judge Richard H. Chambers suggested that the review of an extradition order, by way of writ of habeas corpus was "pretty broad" and "pretty fair," "notwithstanding preachments that it is extremely limited."

Hooker, a U.S. citizen, had been charged with theft under sec. 294 of the Criminal Code of Canada, by information on Dec. 19, 1974, by a Provincial judge of the Province of British Columbia, and a warrant for his arrest had been issued on the same date. He was later located in California. The Embassy of Canada requested his extradition on Mar. 20, 1975, under art. X of the WebsterAshburton Treaty of Aug. 9, 1842, between the United States and Great Britain (TS 119; 8 Stat. 572; 12 Bevans 82), as supplemented by the Convention on Extradition between the United States and Great Britain, July 12, 1889 (TS 139; 26 Stat. 1508; 12 Bevans 211), as subsequently supplemented. Extradition hearings on the case began on Aug. 5, 1975, before U.S. Magistrate Richard S. Goldsmith, whose order of denial was issued on Apr. 15, 1976. The United States,

on behalf of Canada, filed a second complaint in the Northern District of California before U.S. Judge Alfonzo J. Zirpoli, who held a hearing on Aug. 24, 1976. Memorandum, Acting Legal Adviser Mark B. Feldman to Deputy Secretary Warren Christopher, Jan. 19, 1979, Dept. of State File No. P79 0018-0051.

Convictions in Absentia

On January 26, 1978, the Embassy of the Federal Republic of Germany submitted a request to the Department of State for provisional arrest of Ulrich Richard Ramdohr, in order to enable his subsequent surrender on extradition, which the Embassy formally requested by a note of May 18, after Ramdohr had been arrested in San Francisco on April 23. The extradition request presented the issue, whether the flight of an accused during the course of his trial, and thus his absence at the time of conviction and imposition of sentence, prevented the Secretary of State from authorizing his rendition and delivery to the requesting foreign government. Ramdohr had been present at the beginning of his trial and had been represented by counsel at all stages of the proceedings.

United States Magistrate Frederick J. Woelflen (in the Northern District of California) held an extradition hearing on July 7 and issued his Certification of Extraditability and Order of Commitment on July 11, which found Ramdohr extraditable to the Federal Republic of Germany to serve the remainder of his unexecuted sentence (1,923 days) for conviction of fraud (forgery) and embezzlement in the Amtsgericht (District Court) of Munich.

The Department's Legal Adviser, Herbert J. Hansell, recommended to Acting Secretary Warren Christopher on September 7, 1978, that he sign the warrant of extradition. In an accompanying memorandum Mr. Hansell analyzed the legal position on the issue presented as follows:

Where the person sought has been tried and convicted in absentia the courts have held that the decision concerning surrender of the fugitive to the requesting country rests with the Department of State. U.S. courts will not interfere with an extradition of a fugitive who has been convicted in absentia unless there is a prohibition in the relevant treaty. Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960), cert. denied, 364 U.Š. 851 (1960). The 1930 extradition treaty with Germany contains no provision which would prevent extradition in such cases.

As a Department policy, where the person sought has been tried and convicted without having the opportunity to appear or take part in the judicial proceedings, we treat the extradition as if it were for a person only charged with the offense of which he has been convicted in absentia. In such a case, we will extradite, upon submission of evidence of probable cause only for the purpose of a second trial. The purpose of this policy is to ensure that the person

sought will have an opportunity to appear at a trial and make his defense.

However, in this case, extradition to serve the sentence, not for a second trial, follows our own domestic practice. The Supreme Court as recently as 1973 has held that an accused effectively waives his constitutional right to be present at his criminal trial where he voluntarily absents himself from the proceedings after they have begun. Taylor v. United States, 414 U.S. 17 (1973). Given the fact that Ramdohr has had his day in court, his extradition to the F.R.G. in order to serve the remainder of his prison sentence is consistent with the Department's policy towards trial and conviction in absentia.

Dept. of State File No. P79 0096-2257, enclosure to File No. P78 0144-0339. Acting Secretary Christopher signed the warrant on Sept. 8, 1978.

Since Ramdohr's exact whereabouts in the United States were unknown at the time of the Embassy's Jan. 26 note, the Embassy proposed, if there were no objection, to inform the Dept. of Justice directly on possible places of residence. Dept. of State File No. P78 0012-2048. The Embassy's note of May 18 is at Dept. of State File No. P78 0078-0282.

For the Dept. of State's policy on provisional arrests, see the 1975 Digest, pp. 175-176; see, further, Whiteman, Digest of International Law, Vol. 6, (1968), pp. 920-935. In regard to convictions in absentia, see ibid., pp. 1117–1122.

For the Treaty on Extradition between the United States and Germany, signed July 12, 1930 (entered into force Apr. 26, 1931), see TS 836; 47 Stat. 1862; Bevans Treaties and Other International Agreements of the United States of America, 1776–1949, Vol. 8 (1971), p. 214.

U.S. Statutory Time Limit

In Barrett v. United States, 590 F.2d 624, decided December 21, 1978, the United States Court of Appeals for the Sixth Circuit affirmed the District Court's denial of a petition for writ of habeas corpus on the ground that the two-month period prescribed by 18 U.S.C. 3188, for delivery and conveyance out of the United States of a person committed for rendition to a foreign government, began to run from the date the extradition magistrate signed the certificate of extradition and order of commitment.

The appellant, Barrett, had argued that the two-month period began to run from an earlier date upon which a hearing had taken place and the extradition magistrate, finding probable cause for the charge, had ordered him held in custody for surrender and extradition. The Court considered that the two-month limitation was not mandatory since the statute provided for "sufficient cause" to be shown to a judge "why such discharge ought not to be ordered." The Court found no abuse of discretion in the District Judge's ruling, that sufficient cause existed not to order the discharge since the delay had been due to the necessity of preparing a transcript of the hearing proceedings for sub