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In re Assarsson

decided: October 31, 1980.

IN THE MATTER OF JAN ALF ASSARSSON, RELATOR-APPELLANT.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 78 C 2175--John F. Grady, Judge.

Before Fairchild, Chief Judge, and Bauer and Wood, Circuit Judges.

Author: Bauer

Relator-appellant Jan Alf Assarsson was ordered extradited to Sweden for trial on charges of arson, fraud, and attempted fraud. The district court denied his petition for a writ of habeas corpus. We affirm.

I

Jan Alf Assarsson is a citizen of Sweden. Having lived in this country since 1960, he is, at present, a permanent resident of the United States. Assarsson conducts an import-export business including the purchase of merchandise for resale in European countries.

During 1974-1975, Continental Trading Company ("Continental"), a Swedish corporation of which Assarsson was a director, purchased large quantities of art reproductions from a Spanish firm and stored them in a public warehouse in Malmo, Sweden. Assarsson insured the stock for fifteen million Swedish crowns on January 9, 1975. The premium was paid on February 13, 1975. On February 18, 1975, the merchandise was destroyed in a fire. Continental filed a claim on March 12, 1975, with the Vegete Insurance Company ("Vegete") for ten million Swedish crowns.

In 1975, another Swedish corporation of which Assarsson was a stockholder and director, Stereo Music Center, A.B. ("Stereo Music"), purchased art reproductions, tape cassettes, iron fittings, and wigs from General Promotions, Inc., a firm operated in the United States by a business associate of Assarsson's. The goods were shipped to and stored in a warehouse in Copenhagen, Denmark. Stereo Music took out insurance early in 1975, but the policy was not effective until the final premium installment was paid on September 18, 1975. On September 19, 1975, fire destroyed the merchandise. On October 3, 1975, Stereo Music filed a claim for thirty-four million Swedish crowns with the Skandia Insurance Company ("Skandia") in Sweden.

Before the September fire, Stereo Music had sold the tape cassettes to Carl Gustaf Bothen, a Swedish businessman. Bothen paid for the cassettes by causing a Letter of Credit in the amount of $190,000 to be issued directly to General Promotions. Almost all of the cassettes sold to Bothen were destroyed in the Copenhagen fire.

An American citizen named Angelo Chionis was arrested just outside the Copenhagen warehouse. Chionis was convicted of the arson and sentenced by a Danish court to ten years in prison. He subsequently made a statement implicating Assarsson in the arson.

After Chionis' arrest and conviction, a two-pronged investigation was undertaken by Swedish authorities: first, to determine whether the Malmo and Copenhagen fires were planned arsons by Continental and Stereo Music (rendering the claims filed with the insurance firms fraudulent) and second, to ascertain whether Assarsson or others misled Bothen as to the value of the cassettes and their potential European selling price in order to induce him to purchase the cassettes and to issue the Letter of Credit. Neither Vegete nor Skandia has paid the claims.

In March, 1976, Malmo Prosecuting Attorney Ragnar Emanuelsson filed a petition for Assarsson's arrest. The petition accused Assarsson of committing gross arson in two instances (Malmo and Copenhagen), attempted gross fraud in two instances (the claims filed with Vegete and Skandia), and gross fraud (against Bothen). Pursuant to that petition, Malmo District Court Judge Ake Roth issued a Ruling dated April 1, 1976. The ruling asserted that Assarsson was "suspected on good grounds" of committing the crimes and declared Assarsson arrested.

On May 15, 1978, the United States Attorney for the Northern District of Illinois, acting on behalf of the Government of Sweden, filed a verified extradition complaint. It alleged that Assarsson was "duly and legally charged in Sweden with having committed the crimes of arson, fraud and attempted fraud." The complaint further alleged that Sweden had demanded Assarsson's surrender through the appropriate diplomatic channels. J.App. at 13-14.*fn1

Magistrate Balog held a hearing on June 30, 1978, pursuant to 18 U.S.C. ยง 3184.*fn2 Assarsson contended that extradition was inappropriate because no "charges" were pending against him under Swedish law. He also argued that the Copenhagen arson was not an extraditable offense under the treaty because it occurred outside Sweden and that there were no reasonable grounds to believe Assarsson guilty of the various alleged offenses. On October 20, 1978, the magistrate denied each of Assarsson's claims and issued an order of commitment directing the United States Marshal to take Assarsson into custody and hold him until his surrender by the United States to Sweden. J.App. at 128-141. The magistrate denied reconsideration of his order on November 21, 1978, ruling that Assarsson had been charged "under the terms of the treaty" even though the time for filing formal criminal charges against Assarsson had been extended until November 1980 by the Swedish court. J.App. at 156.

Assarsson petitioned for a writ of habeas corpus, challenging the legality of the order of extradition on each of the grounds before the magistrate. The district court denied the petition after a hearing and upheld each of the magistrate's determinations.

II

Assarsson first challenges the magistrate's determination, upheld by the district court, that he has been charged with a crime. Although ordered arrested by the Swedish court, a formal document, called a "charge" in the Swedish criminal code, has not yet been filed against Assarsson.*fn3 Assarsson asserts here, as he did before the magistrate and the district court, that since this document has not yet been filed against him, he cannot be extradited.

The magistrate ruled that Assarsson had been charged with crimes "under the terms of the treaty." The district court agreed that

there is a charge here as that term is used in the treaty. I recognize the existence of a very respectable argument to the contrary, but on the balance, I think that however dilatory the procedures that have been initiated by the Swedish Government here indicate that they have accused Mr. Assarsson of these crimes, they have done so in a preliminary way which, under their law, can result in his incarceration under the conditions set forth in their law. It is not a mere case of suspicion; it is a case where probable cause has been found by the Swedish judge; so I believe that there is a pending charge.

Transcript of Proceedings, April 11, 1979, at 91-92; J.App. at 179-80. We do not review the magistrate's determination that Assarsson was "charged," because we hold that it is not reviewable on habeas corpus.

Extradition rulings are not directly appealable. Review is available only by way of a petition for writ of habeas corpus. Collins v. Miller, 252 U.S. 364, 369, 40 S. Ct. 347, 349, 64 L. Ed. 616 (1920). Because the writ is not the equivalent of an appeal, it may be granted only in limited circumstances.

That writ as has been said very often 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 has jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there ...


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