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ABU EAIN v. ADAMS

March 28, 1980

ZIYAD ABU EAIN, PETITIONER,
v.
JOHN J. ADAMS, UNITED STATES MARSHAL FOR THE NORTHERN DISTRICT OF ILLINOIS, RESPONDENT.



The opinion of the court was delivered by: McGARR, Chief Judge.

  MEMORANDUM OPINION AND ORDER

On August 21, 1979, petitioner was arrested pursuant to the magistrate's warrant issued in connection with a State of Israel request for his extradition. The magistrate held extradition hearings pursuant to 18 U.S.C. § 3184 comprising seven days of testimony. On December 18, 1979, the magistrate ruled that she had jurisdiction over the subject matter and the person of the defendant; that the extradition treaty was applicable and was complied with; and that there existed probable cause to believe that this petitioner committed the acts alleged in the extradition request. The magistrate's detailed memorandum opinion is clearly supported by ample evidence and is hereby adopted by this court and appended hereto. The cause is before this court on petitioner's request for the issuance of a writ of habeas corpus to prevent his extradition.

  [The writ of] habeas corpus cannot take the place
  of a writ of error. It is not a means for
  rehearing what the magistrate already has
  decided. The alleged fugitive from justice has
  had his hearing and habeas corpus is available
  only to inquire whether the magistrate had
  jurisdiction, whether the offense charged is
  within the treaty and, by somewhat liberal
  extension, whether there was any evidence
  warranting the finding that there was reasonable
  ground to believe the accused guilty.
  Fernandez v. Phillips, 268 U.S. 311, 312 (1925)
  (citations omitted).

A thorough review of the treaty, the Convention on Extradition Between the Government of the United States of America and the Government of the State of Israel, 14 U.S.T. 1707, T.I.A.S. No. 5476, the briefs filed with this court, and the record below clearly demonstrate that the treaty was properly invoked and that the magistrate had jurisdiction over the matter. Petitioner's arguments to this court rest primarily on the issue of probable cause.

Petitioner alleges that the magistrate improperly excluded evidence which would impeach or "explain" the statement of petitioner's alleged accomplice in the bombing. The accomplice's statement implicated the petitioner. The excluded evidence went to the weight of the accomplice's statement. As such, it was properly excluded. Collins v. Loisel, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956 (1922); Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir. 1973), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973); In re Lincoln, 228 Fed. 70, 71 (E.D.N.Y. 1915); Fernandez v. Phillips, supra.

Petitioner next argues that the alleged offense is of a political character and, pursuant to Article VI of the treaty, is not an extraditable offense. The magistrate, properly admitting probative evidence on the issue and properly excluding other proferred evidence, and applying appropriate legal standards, found that the alleged offense was not of a political character. The finding is based on competent evidence and is the result of the application of proper legal standards.

For these reasons and those stated in the memorandum opinion of Magistrate Jurco in "In the Matter of the Extradition of Ziyad Abu Eain," etc., 79 Mont. 175, dated December 18, 1979, petitioner's request for the issuance of a writ of habeas corpus is denied.

            IN THE UNITED STATES DISTRICT COURT
           FOR THE NORTHERN DISTRICT OF ILLINOIS
                     EASTERN DIVISION
IN THE MATTER OF THE EXTRADITION)
                                )
               OF               )
                                )  Magistrate No. 79 Mont. 175
ZIYAD ABU EAIN, also known as   )
ZIYAD ABU AYIN, also known as   )
TARIFI.                         )

MEMORANDUM

Extradition proceedings were commenced by the United States on behalf of the State of Israel under § 3184, 18 U.S.C. and Article X of the Treaty between the United States and Israel which has been in effect since December 5, 1963. Ziyad Abu Eain was arrested on the complaint charges on August 21, 1979 and remains in custody. He is charged to have committed, in Tiberias, Israel, the crimes of murder, punishable by life imprisonment, and causing bodily harm with aggravating intent, punishable by twenty-year imprisonment. Said crimes were allegedly committed by placing an explosive device on May 14, 1979 in a trash bin located on a public street in a market square, which device exploded and caused the death of two young Jewish males and injured thirty-six other persons.

The extradition hearing commenced September 26, 1979 in order to accommodate availability of witnesses for the government and the accused and was adjourned to later dates for the same purpose. The hearing took seven days. Following the closing of evidence, the parties requested and were granted leave to file post-hearing briefs. Later filed motions have been received directed to receipt of additional evidence and exclusion of certain evidence.

The evidence presented must satisfy these necessary elements: (1) that a crime was committed in Israel, (2) that the offense charged is an offense in the United States, (3) that the person arrested and brought before the Magistrate is the person accused of the commission of that offense, (4) that the evidence establishes reasonable grounds to believe the accused is guilty of ...


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