Opinion
Case No. 3:17–mj–00137–KFM
12-01-2017
In the MATTER OF the EXTRADITION OF Indea Grace FORDHAM, a.k.a. "Indea Ford"
Steven E. Skrocki, U.S. Attorney's Office, Anchorage, AK, for Plaintiff. Matthew McCrary Scoble, Federal Public Defender's Agency, Anchorage, AK, for Defendant.
Steven E. Skrocki, U.S. Attorney's Office, Anchorage, AK, for Plaintiff.
Matthew McCrary Scoble, Federal Public Defender's Agency, Anchorage, AK, for Defendant.
MEMORANDUM OPINION AND CERTIFICATE OF EXTRADITION
Kevin F. McCoy, United States Magistrate Judge
I. INTRODUCTION
The United States of America, on behalf of the United Kingdom of Great Britain and Northern Ireland, seeks the extradition of Indea Grace Fordham, a.k.a. "Indea Ford" (Fordham), under the extradition treaty between the United States and the United Kingdom. The United Kingdom has accused Fordham of two counts of child abduction in violation of CH84001 sections 1(1) and 4 of the Child Abduction Act 1984, and one count of fraud by false representation in violation of FA06001 section 1(2) of the Fraud Act 2006.
Docket Nos. 1, 2 at 2.
According to the extradition request, (1) Fordham unlawfully took her two children from the United Kingdom without appropriate consent from their father and in violation of a Child Arrangements Order issued by a United Kingdom Family Court, and (2) she unlawfully obtained a replacement passport for one of the children so she could take the child from the United Kingdom by falsely representing that the passport was lost when, in fact, she knew the child's father possessed it under the terms of the Child Arrangements Order.
Docket No. 42–1 at 5–14.
Fordham was arrested in Sitka, Alaska, on this Court's warrant. Fordham filed a motion to deny the request for extradition. The United States opposed. Thereafter, this Court conducted a hearing in accordance with 18 U.S.C. § 3184. Following the hearing, the parties filed post-hearing memoranda.
Docket No. 34.
Docket No. 35.
Docket No. 44.
Docket Nos. 46, 50.
After careful consideration of the evidence adduced at the hearing, as well as the parties' pleadings, this Court certifies to the Secretary of State of the United States the extraditability of Indea Grace Fordham, a.k.a. Indea Ford.
This factual statement is derived from the evidence adduced at the extradition hearing.
A. The United Kingdom Child Arrangements Order
Indea Fordham and Eren Halil were in a relationship for three years before they separated in 2012. The relationship produced two children: G.M.H., born in 2010 and A.L.H., born in 2011. On October 16, 2014, the Dartford Family Court at Dartford ("Dartford Family Court") entered a Child Arrangements Order providing for custody and visitation rights between the parents. The Order directed that the children would live with Fordham and provided Halil with regularly scheduled visitation rights. The Order also required Fordham to maintain custody of G.M.H.'s passport and Halil to maintain custody of A.L.H.'s passport. If either parent wished to take the children out of the United Kingdom for a holiday, the order directed that written notice be provided to the other parent at least two weeks before booking the trip. The written notice was required to identify the destination, the dates of travel, phone numbers for the children during travel, and proof that round-trip tickets would be purchased. If the non-traveling parent consented, he or she could produce the passport in his or her possession so the traveling parent could leave the United Kingdom with both children.
Docket No. 42–1 at 10.
Id. at 15–18.
Id. at 19–23.
Id. at 21–22.
Id. at 22.
Id.
Id.
Id. ; Child Abduction Act 1984, c.37, § 1(3)(a)(ii), (Eng., Wales).
According to Halil, prior to the Child Arrangements Order, Fordham had taken G.M.H. and A.L.H. "away without his knowledge or consent in 2013 for six months."
Docket No. 42–1 at 11.
B. The March 24, 2015, Passport Application for A.L.H.
On March 24, 2015, Fordham submitted a replacement passport application on behalf of A.L.H. to Her Majesty's Passport Office. Fordham represented that a replacement passport was needed because A.L.H.'s original passport was lost. The Passport Office issued a replacement passport to Fordham for A.L.H. on April 16, 2015, based on Fordham's representation that A.L.H.'s original passport was lost.
Id. at 9.
Id.
Id.
C. Fordham's Application to Modify the Child Arrangements Order Denied
On May 5, 2015, the Dartford Family Court at Maidstone ("Maidstone Family Court") in the United Kingdom resolved separate applications from Halil and from Fordham regarding the Child Arrangements Order. Halil asked for a new Child Arrangements Order and Fordham asked for court permission to remove G.M.H. and A.L.H. from the United Kingdom to live with her in Alaska. The Maidstone Family Court heard testimony from seven witnesses. At the conclusion of the hearing, the Court denied Halil's application for a new Child Arrangements Order and rejected Fordham's request to remove G.M.H. and A.L.H. from the United Kingdom to Alaska. The Court ruled that the Dartford Family Court Child Arrangements Order of October 16, 2014, remained in full force and effect. Fordham was present with counsel when the Maidstone Family Court rejected her request to modify the Child Arrangements Order so that she could lawfully remove G.M.H. and A.L.H. from the United Kingdom to Alaska.
Id. at 24–27.
Id. at 25, 26.
Id. at 26.
Id.
Id.
Id. at 25, 26.
D. Fordham Leaves the United Kingdom with G.M.H. and A.L.H. Without Halil's Consent and in Violation of the Child Arrangements Order; G.M.H. and A.L.H. Declared Wards of the United Kingdom Court
On October 2, 2015, Fordham flew from London Heathrow to Washington Dulles with G.M.H. and A.L.H., without Halil's consent and in violation of the Child Arrangements Order, using A.L.H.'s replacement passport. Fordham never advised Halil that she was leaving the United Kingdom for the United States with G.M.H. and A.L.H. as required under the Child Arrangements Order, nor did she satisfy any of the other requirements of the Child Arrangements Order. Halil discovered that G.M.H. and A.L.H. were missing on the morning of October 3, 2015, when he went to Fordham's home to pick up the two children for a regularly scheduled weekend visit in accordance with the Child Arrangements Order.
Id. at 9–10.
Id. at 10.
Id.
Halil reported G.M.H. and A.L.H. missing and produced the original, not yet expired, passport for A.L.H. Thereafter, on October 8, 2015, G.M.H. and A.L.H. were made wards of the High Court of Justice Family Division and Fordham was ordered to immediately return G.M.H. and A.L.H. to the United Kingdom.
Id. at 10, 28–29.
Id. at 30–33.
United Kingdom law enforcement confirmed that Fordham had left the United Kingdom with G.M.H. and A.L.H. on October 2, 2015, and that she was staying with her father in Virginia. Her father, when contacted by United Kingdom law enforcement, represented by e-mail that Fordham had return tickets to the United Kingdom booked for October 13, 2015. When Fordham failed to return with G.M.H. and A.L.H. on that flight, United Kingdom law enforcement communicated with Fordham by email and reiterated her obligation to immediately return G.M.H. and A.L.H. to the United Kingdom.
Id. at 11–12.
Id. at 12.
Id.
E. Fordham Charged With Child Abduction and Fraud
On April 16, 2016, the Bromley Magistrates' Court issued an arrest warrant for Fordham, charging her with two counts of Child Abduction in violation of sections 1(1) and 4 of the Child Abduction Act 1984 and one count of fraud in connection with the application to replace A.L.H.'s passport in violation of sections 1 and 2 of the Fraud Act 2006. F. United Kingdom's Extradition Request
Id. at 34–36.
On June 16, 2016, the United Kingdom tendered a diplomatic note to the Department of State requesting Fordham's extradition to answer two counts of child abduction in violation of sections 1(1) and 4 of the Child Abduction Act 1984 and one count of fraud by false representation in violation of section 1(2) of the Fraud Act 2006. On April 14, 2017, the government filed the Complaint with this Court for Fordham's arrest and extradition. On April 18, 2017, Fordham was arrested in Sitka, Alaska. This Court conducted Fordham's initial appearance on April 19, 2017. This Court released Fordham on strict conditions of release pending resolution of the extradition request.
Id. at 1.
Docket No. 1.
Docket No. 14.
Docket No. 9.
Docket Nos. 17, 31.
On November 6, 2017, this Court conducted an extradition hearing pursuant to 18 U.S.C. § 3184.
Docket No. 44.
III. FORDHAM'S CHALLENGE TO EXTRADITION, THE GOVERNMENT'S RESPONSE, AND § 3184 HEARING
A. Fordham's Challenge
Fordham makes two challenges to this international extradition request.
Docket No. 34.
First, Fordham contends that she cannot lawfully be extradited on the child abduction counts. She asserts that the child abduction counts do not satisfy the dual criminality requirement because the American international parental kidnapping statute provides an affirmative defense that "the defendant was fleeing an incidence or pattern of domestic violence," an affirmative defense that is not provided for in the United Kingdom child abduction statute. In her post-hearing memorandum, Fordham expanded her dual criminality challenge to encompass the argument that the child abduction statute can be violated by intentional or reckless conduct, while the American international parental kidnapping statute requires an intent to obstruct the lawful exercise of parental rights.
Id. at 2, 3.
Docket No. 50 at 3.
Second, Fordham contends the evidence presented at the extradition hearing is not competent to sustain a probable cause determination on either the two child abduction counts or the one fraud by false representation count.
As to the child abduction counts, Fordham argues that her conduct was not unlawful because Section 1(4) of the Child Abduction Act 1984 precludes liability if the parent is "a person in whose favor there is a residence order with respect to the child" who takes the child "out of the United Kingdom for a period of less than one month" and because Section 1(5) of the Child Abduction Act precludes liability if the other person "unreasonably refused to consent." Fordham contends that Halil's consent was not necessary because (1) Halil unreasonably refused to consent to her travel with the children to the United States and (2) Fordham initially did not intend to exceed the 30–day limit when she departed. At most, the argument continues, Fordham's conduct constituted unlawful retention of the children outside the United Kingdom, which is not punishable by the Child Abduction Act 1984.
Docket No. 34 at 15, 16.
Id.
Id. at 16.
As to the fraud by false representation count, Fordham alleges that her representation was not false and that the government has failed to provide sufficient competent evidence establishing the she knew the passport was not lost or misplaced when she applied for the replacement.
Id.
Fordham's motion to deny the extradition request proffers a number of factual allegations. First, Fordham contends that Halil has a history of violence, and claims Halil verbally and physically abused Fordham, G.M.H., and A.L.H. Second, Fordham alleges that she applied for the replacement passport only after Halil informed her that A.L.H.'s passport was lost.
Docket No. 34 at 4–7.
Id. at 7.
B. The Government's Response
Docket No. 35.
First, as to the child abduction counts, the government contends that dual criminality does not require that the scope of liability be the same in both nations. In particular, the availability of an affirmative defense in one jurisdiction, but not the other, does not defeat the dual criminality principle. It is enough if the statutes are substantially analogous and are designed to reach the same type of conduct. Additionally, the government contends that Fordham's proffer regarding verbal and physical abuse relates to an affirmative defense on the merits that does not explain away or obliterate probable cause. Competent evidence, the government's argument continues, establishes probable cause to believe Fordham violated the Child Abduction Act 1984.
Id. at 10, 11.
Id. at 11–12.
Id. at 12, 14–15.
Second, as to the fraud by false representation count, the government contends competent evidence supports the probable cause determination that Fordham obtained the passport by falsely representing it was lost. Her proffered explanation regarding A.L.H.'s allegedly lost passport goes to the merits of her defense, but does not explain away or obliterate probable cause.
Id. at 19.
C. The § 3184 Hearing
1. The government
At the § 3184 hearing, the government properly authenticated and this Court granted the government's motion to admit Exhibits 1 through 4.
Government Exhibit 1 is comprised of documents attested to by Julian Gibbs, Head of the Extradition Section of the United Kingdom Home Office. Exhibit 1 consists of copies of:
• The arrest warrant issued by the Bromley Magistrates' Court;
• The deposition and testimony of Detective Inspector Simon Revill detailing his investigation;
• The birth certificate of G.M.H.;
• The birth certificate of A.L.H.;
• The October 16, 2014, Dartford Family Court Child Arrangements Order;
• The May 5, 2015, Maidstone Family Court Order denying Fordham's application to remove G.M.H. and A.L.H. from the United Kingdom to Alaska;
• A.L.H.'s original passport;
• The October 8, 2015, order declaring G.M.H. and A.L.H. wards of the Court and directing Fordham to immediately return both children to the United Kingdom, issued by the High Court of Justice Family Division;
• A witness statement from Penny Fordham attesting to the accuracy of the images of her daughter Indea Grace Fordham, and further attesting that her daughter is married to Kenneth Ford and is now known as Indea Ford;
• The deposition and sworn statement of Andrew Glover, Barrister and Specialist Extradition Prosecutor with the Crown Prosecution Service, attesting to the United Kingdom Child Abduction statute and the United Kingdom Fraud statute.
A copy of Exhibit 1 appears in the record at Docket No. 42–1.
Government Exhibit 2 is comprised of a document attested to by Julian Gibbs, Head of the Extradition Section of the United Kingdom Home Office. Exhibit 2 is a copy of Eren Halil's witness statement confirming (1) the photographs appearing in government Exhibit 1 both accurately depict images of Indea Grace Fordham, and (2) that Fordham was present with counsel for the May 5, 2015, Maidstone Family Court hearing.
Docket No. 2 at 60–61.
A copy of Exhibit 2 appears in the record at Docket No. 2 at pages 60–61.
Government Exhibit 3 is comprised of documents attested to by Julian Gibbs, Head of the Extradition Section of the United Kingdom Home Office Government. Exhibit 3 consists of copies of:
• The second deposition and sworn statement of Andrew Glover, Barrister and Specialist Extradition Prosecutor with the Crown Prosecution Service of Government, attesting that an unreasonable withholding of consent defense does not apply if the children were taken from the Kingdom in violation of a Court order;
• A second witness statement of Eren Halil denying that he ever told Fordham that A.L.H.'s passport was missing or misplaced and explaining why the United Kingdom Family Court placed one passport with him and one passport with Fordham.
Exhibit 3 appears in the record at Docket No. 35–1 at pages 1–8.
Exhibit 4 consists of the declaration of Elizabeth M. Kiingi, an attorney with the Office of the Legal Advisor for the U.S. Department of State, attesting to the authenticity of the diplomatic notes and the extradition treaty between the United States and the United Kingdom. A copy of Exhibit 4 appears in the record at Docket No. 2 at pages 62–83.
This Court admitted government Exhibits 1 through 4 at the § 3184 extradition hearing without objection from Fordham.
2. Fordham
Fordham elected not to present any evidence at the § 3184 extradition hearing in support of (1) the allegations of verbal and physical abuse by Halil or (2) the allegation that Halil told her A.L.H.'s passport was lost. Nor did she proffer or present evidence that the Maidstone Family Court failed or refused to consider these allegations, all of which predated the May 5, 2015 proceeding, where her application to remove G.M.H. and A.L.H. from the United Kingdom to Alaska was rejected.
IV. ANALYSIS
For this Court to certify that Fordham is extraditable, the government must establish (1) the extradition judge has jurisdiction to conduct the proceeding, (2) the extradition court has jurisdiction over the fugitive, (3) the individual named in the complaint is the individual before the court, (4) the extradition treaty is in full force and effect, (5) the crime falls within the terms of the treaty, and (6) there is competent evidence supporting a finding of extraditability. As part of this process, this Court must evaluate and resolve Fordham's dual criminality and probable cause challenges, as they are the only contested issues in this matter.
Manta v. Chertoff , 518 F.3d 1134, 1140 (9th Cir. 2008).
For the reasons set forth below, this Court rejects Fordham's dual criminality and probable cause challenges and certifies to the Secretary of State of the United States the extraditability of Indea Grace Fordham, a.k.a. "Indea Ford."
A. This Court Has Jurisdiction
A magistrate judge sitting in the District of Alaska has jurisdiction to conduct an extradition hearing pursuant to 18 U.S.C. § 3184 and Local Magistrate Rule 3(b)(1). Fordham does not contest this Court's jurisdiction.
B. This Court Has Jurisdiction Over Indea Grace Fordham
The District Court has jurisdiction over a fugitive found within its jurisdictional boundaries. Fordham was arrested on this Court's warrant in Sitka, Alaska, which is within the District of Alaska. Accordingly, this Court has jurisdiction over Fordham, a conclusion that she does not contest.
Docket No. 14.
C. Indea Grace Fordham is the Person the United Kingdom Seeks to Extradite
Indea Grace Fordham now goes by the name Indea Ford, having taken a new surname following her marriage to Kenneth Ford. This Court has reviewed the images of Indea Grace Fordham, and concludes Indea Grace Fordham and Indea Ford are the same person and she is the person sought to be extradited by the United Kingdom. Fordham does not contest identity.
Government Exhibit 1 at 25; Docket No. 42–1 at 38.
Government Exhibit 1 at 25, 26, 27; Docket No. 42–1 at 37–42.
D. Extradition Treaty in Full Force and Effect
An international extradition request requires the government to establish the existence of a valid treaty between the United States and the requesting government. The declaration of Elizabeth M. Kiingi, an attorney with the Office of the Legal Adviser for the U.S. Department of State, attests to the existence of the extradition treaty that is in full force and effect between the United States and the United Kingdom and to appropriate diplomatic notes formally requesting the extradition of Indea Grace Fordham. A copy of the treaty is appended to Kiingi's affidavit.
Government Exhibit 4.
Id.
The State Department's determination that a valid extradition treaty is currently in effect is entitled to deference. The exchange of diplomatic notes between the United States and a foreign government is compelling evidence that both governments believe the treaty exists. For all these reasons, this Court finds that there is a valid extradition treaty presently in effect between the government of the United States and the government of the United Kingdom of Great Britain and Northern Ireland. Fordham does not contest the validity of the extradition treaty.
See Then v. Melendez , 92 F.3d 851, 854 (9th Cir. 1996) (the continuing validity of an extradition treaty presents a political question for the State Departments of the two countries).
Id.
F. Child Abduction Constitutes an Extraditable Offense Under the Treaty
Fordham's first challenge to extradition centers on the claim that child abduction in violation of CH84001 section 1(1) and 4 of the Child Abduction Act 1984 does not constitute an extraditable offense under the treaty because it does not satisfy the dual criminality requirement. This is so, the argument continues, because the American international parental kidnapping statute provides an affirmative defense that "the defendant was fleeing an incidence or pattern of domestic violence," an affirmative defense that is not provided for in the United Kingdom child abduction statute.
Docket No. 34 at 2, 3.
1. Legal standard for dual criminality
"Dual criminality requires that an accused be extradited only if the alleged conduct is considered criminal under the laws of both the surrendering and requesting nations." This does not mean that the elements of the offense purportedly committed in the United Kingdom must be identical to the elements of the similar offense in the United States. Indeed, "differences between statutes aimed at the same category of criminal conduct do not defeat dual criminality." It is enough if the type of conduct is criminal in both countries. Dual criminality "exists if the ‘essential character’ of the acts criminalized by the laws of each country are the same and the laws are ‘substantially analogous.’ "
United States v. Anderson , 472 F.3d 662, 670 (9th Cir. 2006) (quoting Clarey v. Gregg , 138 F.3d 764, 765 (9th Cir. 1998) ; United States v. Saccoccia , 18 F.3d 795, 800 n.6 (9th Cir. 1994) ).
Manta , 518 F.3d at 1141.
Clarey , 138 F.3d at 765.
Matter of Extradition of Russell , 789 F.2d 801, 803 (9th Cir. 1986).
Manta , 518 F.3d at 1141 (quoting Oen Yin–Choy v. Robinson , 858 F.2d 1400, 1404 (9th Cir. 1988) ).
It is settled that the dual criminality requirement does not encompass possible "affirmative defenses or procedural rules that would bar prosecution by the requesting or requested party." To do so would transform a probable cause evaluation by the requested state into a trial on the merits in the requested state. Because an extradition hearing is not a trial on the merits, defenses available in the requested state that are not available in the requesting state do not undermine dual criminality.
In re Extradition of Camelo–Grillo , 2017 WL 2945715 at *2 (C.D. Cal. July 10, 2017) (citing Manta , 518 F.3d at 1141 ).
Gallo–Chamorro v. United States , 233 F.3d 1298, 1307 (11th Cir. 2000) ; United States v. Sensi , 879 F.2d 888, 894 (D.C. Cir. 1989).
2. The essential character of the criminal acts criminalized by the laws of each country is the same and the laws are substantially analogous
(a) The United Kingdom Child Abduction Act
Section 1 of the United Kingdom Child Abduction Act (the Act) prohibits a parent "connected with a child under the age of sixteen" from taking or sending "the child out of the United Kingdom without the appropriate consent." Section 1(3) of the Act defines the meaning of "the appropriate consent" to include "consent of ... the child's father, if he has parental responsibility" or "leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989." Section 1(4) provides the Act is not violated if a child is taken or sent out of the United Kingdom without appropriate consent "for a period of less than one month" by a person "named in a child arrangements order as a person with whom the child is to live." Section 1(4A) of the Act provides that Section 1(4) "does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part II of the Children Act 1989." The maximum sentence for violation of the Child Abduction Act is seven years' imprisonment.
Child Abduction Act 1984, c.37, § 1(1), (Eng., Wales).
Child Abduction Act 1984, § 1(3).
Child Abduction Act 1984, § 1(4).
Child Abduction Act 1984, § 1(4A).
Child Abduction Act 1984, § 4(1).
(b) 18 U.S.C. § 1204
Title 18 United States Code Section 1204 outlaws international parental kidnapping in the United States. Section 1204(a) provides, "[w]hoever removes a child from the United States ... with intent to obstruct the lawful exercise of parental rights shall be ... imprisoned not more than 3 years[.]" Section 1204(b)(1) defines the term "child" to mean "a person who has not attained the age of 16 years." Section 1204(b)(2) defines "parental rights" to include "visiting rights ... whether arising by operation of law, court order, or legally binding agreement of the parties." Section 1204(c)(2) provides, "[i]t shall be an affirmative defense ... that ... the defendant was fleeing an incidence or pattern of domestic violence."
(c) The child abduction statute satisfies the dual criminality requirement and constitutes an extraditable offense under the treaty
A review of the two statutes readily demonstrates that both laws criminalize the same essential conduct. Both outlaw the removal of a child under the age of 16 from one country to another by one parent in violation of a court order and/or in a manner that interferes with the other parent's custodial or visitation rights. The laws are substantially analogous because they operate to reach and criminalize the same type of conduct. Finally, both satisfy the treaty requirement that the offenses in each country be punishable "for a period of one year or more or by a more severe penalty."
Government Exhibit 4 (Extradition Treaty, U.K.–U.S., art. 2(1), Dec. 16, 2004).
Fordham's first contention is that a statutory affirmative defense available in the United States that is not statutorily available in the United Kingdom defeats dual criminality and precludes extradition. Her second contention is that differences in mens rea requirements between the United States and the United Kingdom also defeat dual criminality and preclude extradition. As to the second contention, Fordham argues that extradition is precluded because the United Kingdom child abduction statute can be violated intentionally or recklessly, while the American international parental kidnapping statute requires intentional conduct—namely, an intent to obstruct the lawful exercise of parental rights. Neither of these challenges is persuasive.
Here is why.
First, there is no requirement that "the scope of liability shall be coextensive" between the two countries. Second, "[t]he primary focus of dual criminality always has been on the conduct charged; the elements of the analogous offenses need not be identical." Third, the availability of affirmative defenses in one jurisdiction but not in the other does not defeat dual criminality; the focus of the inquiry in the requested state is on the conduct charged and not on possible defenses. Finally, courts routinely reject extradition challenges based on affirmative defenses. As the Supreme Court long ago made plain, "[t]he law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries."
Collins v. Loisel , 259 U.S. 309, 312, 42 S.Ct. 469, 66 L.Ed. 956 (1922).
Clarey , 138 F.3d at 766.
Gallo–Chamorro , 233 F.3d at 1307 ; Sensi , 879 F.2d at 894.
Charlton v. Kelly , 229 U.S. 447, 457–62, 33 S.Ct. 945, 57 L.Ed. 1274 (1913) (rejecting insanity challenge to extradition); Hooker v. Klein , 573 F.2d 1360 (9th Cir. 1978) (court may properly reject evidence related to affirmative defenses such as alibi or insanity); Matter of Extradition of Powell , 4 F.Supp.2d 945, 959–60 (S.D. Cal. 1998) (affirmative defense of duress best resolved in the requesting state); Camelo–Grillo , 2017 WL 2945715 (affirmative defense based on double jeopardy barred extradition); Matter of Extradition of Sidali , 899 F.Supp. 1342, 1347 (D.N.J. 1995) (same).
Collins , 259 U.S. at 312, 42 S.Ct. 469 ; Bozilov v. Seifert , 983 F.2d 140, 142 (9th Cir. 1992).
For all of these reasons, this Court finds that the child abduction statute satisfies the dual criminality requirement and otherwise qualifies as an extraditable offense under the treaty between the United States and the United Kingdom.
G. The United Kingdom's Extradition Request is Supported by Competent Evidence Establishing Probable Cause that Fordham Violated the Child Abduction Act 1984 and the Fraud Act 2006
Fordham's second challenge centers on her claim that competent evidence does not support her extradition for violating CH84001 section 1(1) and 4 of the Child Abduction Act 1984 or for violating FA06001 section 1(2) of the Fraud Act 2006.
As to the child abduction counts, Fordham argues that her conduct was not unlawful because (1) Section 1(4) of the Child Abduction Act 1984 bars liability if the parent is "a person named in a child arrangements order as a person with whom the child is to live" who takes the child "out of the United Kingdom for a period of less than one month," and (2) because Section 1(5) of the Child Abduction Act precludes liability if the other parent "unreasonably refused consent." Fordham contends that Halil's consent was not necessary because he unreasonably refused to consent to her travel with the children to the United States and because she did not intend to exceed the 30–day limit when she departed. At most, the argument continues, Fordham's conduct constituted unlawful retention of the children outside the United Kingdom, which is not punishable by the Child Abduction Act 1984.
Docket No. 34 at 15, 16.
Id.
Id. at 16.
As to the fraud by false representation count, Fordham alleges that her representation was not false and that the government has failed to provide sufficient competent evidence establishing she knew A.L.H.'s passport was not lost or misplaced when she applied for the replacement.
Id.
1. Legal standard for competent evidence of probable cause
The probable cause determination made at an extradition hearing is akin to the probable cause assessment reached by a grand jury or at a Federal Rule of Criminal Procedure 5.1 preliminary hearing. Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply, and the court may rely on properly authenticated written evidence. If the evidence is sufficient to sustain an extraditable charge at the probable cause hearing, the inquiring magistrate judge is required to certify the individual as extraditable to the Secretary of State and to issue a warrant.
Santos v. Thomas , 830 F.3d 987, 991 (9th Cir. 2016).
Id. at 992.
Barapind v. Enomoto , 400 F.3d 744, 748 (9th Cir. 2005) (per curiam) (en banc).
Prasoprat v. Benov , 421 F.3d 1009, 1012 (9th Cir. 2005).
Given that an extradition hearing is not a trial on the merits of the crime alleged in the requesting country, the accused's right to present evidence is limited. "[T]he person charged is not to be tried in this country for crimes [she] is alleged to have committed in the requesting country. That is the task of the ... courts of the other country." Accordingly, evidence offered to negate guilt on the merit of the charges is inadmissible. Instead, evidence from the accused is restricted to that which "explains away or completely obliterates probable cause." Stated another way, it does not encompass evidence that "merely controverts the existence of probable cause, or raises a defense."
Santos , 830 F.3d at 992 (quoting Eain v. Wilkes , 641 F.2d 504, 508 (7th Cir. 1981) ).
Collins , 259 U.S. at 316, 42 S.Ct. 469.
Mainero v. Gregg , 164 F.3d 1199, 1207 n.7 (9th Cir. 1999).
Santos , 830 F.3d at 992 (quoting Mainero , 164 F.3d at 1207 n.7 ).
2. Competent evidence establishes probable cause that Fordham violated the Child Abduction Act when she removed G.M.H. and A.L.H. from the United Kingdom to Alaska
Competent evidence establishes probable cause to believe that Fordham violated the Child Abduction Act 1984 when she removed G.M.H. and A.L.H. from the United Kingdom to the United States. This Court concludes that government Exhibits 1 through 4 were properly authenticated and thereafter admitted without objection at the extradition hearing. These documents readily establish probable cause to believe that Fordham violated CH84001 Section 1(1) and 4 of the Child Abduction Act.
On October 16, 2014, the Dartford Family Court entered a Child Arrangements Order providing for custody and visitation rights between the parents. The Order directed that the children would live with Fordham and provided Halil with regularly scheduled visitation rights. The Order also required Fordham to maintain custody of G.M.H.'s passport and Halil to maintain custody of A.L.H.'s passport. If either parent wished to take the children out of the United Kingdom for a holiday, the Order directed that written notice be provided to the other parent at least two weeks before booking the trip. The written notice was required to identify the destination, the dates of travel, phone contact information for the children during travel, and proof that round-trip tickets would be purchased. If the non-traveling parent consented, he or she could produce the passport in his or her possession so the traveling parent could leave the United Kingdom with both children.
Docket No. 42–1 at 19–23.
Id. at 21–22.
Id. at 22.
Id.
Id.
On May 5, 2015, the Maidstone Family Court in the United Kingdom rejected Fordham's application to modify the Child Arrangements Order so she could lawfully remove G.M.H. and A.L.H. from the United Kingdom to live with her in Alaska. The Maidstone Family Court heard testimony from seven witnesses. At the conclusion of the hearing, the Court denied Fordham's request to remove G.M.H. and A.L.H. from the United Kingdom to Alaska. The Court ruled that the October 16, 2014 Dartford Family Court Child Arrangements Order remained in full force and effect. Fordham was present with counsel when the Maidstone Family Court rejected her request to remove G.M.H. and A.L.H. from the United Kingdom to Alaska.
Id. at 24–27.
Id. at 26.
Id.
Id.
Id. at 25, 26.
On October 2, 2015, Fordham flew from London Heathrow to Washington Dulles with G.M.H. and A.L.H. without Halil's consent and in violation of the Child Arrangements Order using the replacement passport she acquired by misrepresenting that A.L.H.'s original passport was lost. Fordham never advised Halil that she was leaving the United Kingdom for the United States with G.M.H. and A.L.H., nor did she satisfy any of the other requirements of the Child Arrangements Order. Halil discovered that G.M.H. and A.L.H. were missing on the morning of October 3, 2015, when he went to Fordham's home to pick up the two children for a regularly scheduled weekend visit in accordance with the Child Arrangements Order.
Id. at 9.
Id. at 10.
Id.
Investigation confirmed that Fordham left the United Kingdom for the United States with G.M.H. and A.L.H. on October 2, 2015, that she failed to return with them to the United Kingdom, and that she was residing with them in Sitka, Alaska, when she was arrested on April 18, 2017.
Docket Nos. 12, 14.
Fordham elected not to present evidence at the extradition hearing. Implicit in that election was a recognition that evidence proffered in her motion to deny the request for extradition did not explain away or obliterate probable cause on the two child abduction counts. Fordham's proffered defense was that her conduct constituted, at most, an unlawful retention of G.M.H. and A.L.H. outside the United Kingdom, but not an unlawful removal of the children from the United Kingdom. This Court respectfully concludes that Fordham's proffer, even if accepted without evidentiary support, would be a defense on the merits that does not explain away or obliterate probable cause. Assessing the merits of Fordham's defense is a task best left to the courts in the United Kingdom.
Compare Docket No. 34 at 3, 13–16 (Fordham's proffer that (1) Halil unreasonably withheld consent to her travel with the children and (2) Fordham did not initially intend to exceed the 30 day limit under Section 1(4A) of the Child Abduction Act 1984) with Docket No. 35–1 at 4 (government Exhibit 3 at ¶ 13, the Affidavit of Barrister-at-Law and Specialist Extradition Prosecutor for the United Kingdom Crown Prosecution Service opining that Fordham's violation of the Child Protective Order precludes her proffered defense as a matter of law).
For all these reasons, this Court concludes that the evidence against Fordham is sufficient to sustain the charge of Child Abduction in violation of CH84001 section 1(1) and 4 of the Child Abduction Act 1984.
3. Competent evidence establishes probable cause that Fordham violated the Fraud Act 2006
Competent evidence establishes probable cause to believe that Fordham violated the Fraud Act 2006 when she obtained a replacement passport for A.L.H. by falsely representing to Her Majesty's Passport Office that A.L.H.'s passport was lost. This Court concludes that government Exhibits 1 through 4 were properly authenticated and thereafter admitted without objection at the extradition hearing. These documents readily establish probable cause to believe that Fordham violated FA06001 section 1(2) of the Fraud Act 2006.
Fraud Act 2006, c.35, § 1(2), (UK).
On March 24, 2015, Fordham submitted a replacement passport application on behalf of A.L.H. to Her Majesty's Passport Office. Fordham represented that a replacement passport was needed because A.L.H.'s original passport was lost. The Passport Office issued a replacement passport to Fordham for A.L.H. on April 16, 2015, based on the representation that the original passport had been lost.
Docket No. 42–1 at 9.
Id.
Id.
Fordham elected not to present evidence at the extradition hearing on the fraud count. Implicit in that election was a recognition that evidence proffered in her motion to deny the request for extradition did not explain away or obliterate probable cause as to the fraud count. This Court respectfully concludes that her proffered defense, even if accepted without evidentiary support, represents a defense on the merits that does not explain away or obliterate probable cause. Whether Fordham's representation was not false because Halil advised her that A.L.H.'s passport was lost is a defense on the merits that is best resolved in the United Kingdom.
For all these reasons, this Court concludes that the evidence against Fordham is sufficient to sustain the charge of fraud by false representation in violation of FA06001 section 1(2) of the Fraud Act 2006.
V. CERTIFICATION AND ORDER
(1) IT IS HEREBY CERTIFIED TO THE SECRETARY OF STATE that the evidence against Indea Grace Fordham, a.k.a. Indea Ford, is sufficient to sustain two charges of child abduction in violation of CH84001 section 1(1) and 4 of the Child Abduction Act 1984 and one charge of fraud by false representation in violation of FA06001 section 1(2) of the Fraud Act 2006 presently pending against her in the United Kingdom under the extradition treaty between United Kingdom of Great Britain and Northern Ireland and the United States of America; that Indea Grace Fordham, a.k.a. Indea Ford, is extraditable under the aforesaid treaty, and that further proceedings in extradition may be conducted.
(2) The extradition request and the supporting documents admitted into evidence during the hearing are properly certified and authenticated. Accordingly, this Court certifies this memorandum opinion and certificate of extradition, as well as government Exhibits 1, 2, 3, and 4 which have been admitted into evidence in this matter, to the Secretary of State, pursuant to 18 U.S.C. § 3184.
(3) THIS COURT HEREBY CERTIFIES that it has found Indea Grace Fordham, a.k.a. Indea Ford, extraditable to the United Kingdom of Great Britain and Northern Ireland. A warrant may be issued, upon the requisition of proper authorities of the United Kingdom of Great Britain and Northern Ireland, for the surrender of Indea Grace Fordham, a.k.a. Indea Ford, according to the extradition treaty.
(4) IT IS FURTHER ORDERED that Indea Grace Fordham, a.k.a. Indea Ford, shall surrender to the United States Marshals Service in Anchorage, Alaska, by noon on December 8, 2017, to be confined thereafter without bail until the surrender of Indea Grace Fordham, a.k.a. Indea Ford, to the government of the United Kingdom of Great Britain and Northern Ireland can be effectuated.
18 U.S.C. § 3184.
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(5) IT IS FURTHER ORDERED that the United States Attorney for the District of Alaska shall obtain all testimony and exhibits presented before this Court and shall deliver forthwith the transcripts and evidence to the Clerk of Court. The Clerk of Court shall forward to the Secretary of State a copy of this Memorandum Opinion and Certificate of Extradition, together with the transcript of the extradition hearing and copies of documents received as evidence.