Cohen v. Sheahan

Second Division
September 30, 1998

No. 1-97-1750

BERNARD COHEN, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County.
)
v. )
)
MICHAEL SHEAHAN, Sheriff of )
Cook County, Illinois, ) Honorable
) Thomas R. Fitzgerald,
Respondent-Appellee. ) Judge Presiding.

Modified Upon Denial of Rehearing

JUSTICE RAKOWSKI delivered the opinion of the court:

Federal and Illinois law provide that the Governor of
Illinois must honor a demanding state's request for extradition
where that state presents proper documentation showing that the
person is subject to extradition. In turn, the Illinois Governor
must prepare a rendition warrant reflecting the information that
the demanding state provided. A valid rendition warrant is the
authority upon which the judiciary executes extradition
proceedings.
This appeal turns on whether the rendition warrant, together
with the evidence in the record, satisfactorily shows that
petitioner is extraditable where neither specifies that
petitioner has been charged with a crime in the demanding state.
We find that without such information, petitioner is not subject
to extradition. Accordingly, we reverse.

FACTS
The uncontested facts are gleaned from petitioner's
affidavit filed in support of his petition for writ of habeas
corpus. Petitioner, Bernard Cohen, was driving through Missouri
when he was pulled over by police. The police discovered that
petitioner was hauling 100 kilograms of marijuana in his vehicle.
After being taken to a police station and meeting with an
attorney, petitioner agreed to cooperate with federal authorities
by delivering his vehicle with the marijuana to his contact
person in Chicago. In turn, the federal authorities assured
petitioner that he was not and would not be charged with any
crime or fingerprinted, photographed, or booked, and that he
would be home before he knew it.
Two days later in Chicago, petitioner made his first attempt
to deliver the car and the marijuana, but he was unsuccessful
because the contact person was not at the delivery location.
Likewise, petitioner failed to deliver the vehicle and the drugs
the next day, and, as a consequence, the law enforcement officer
in charge told petitioner that "all deals were off" and that he
was going to jail. Petitioner was ultimately taken to Cook
County jail.
Sometime later, the Governor of Missouri made a demand to
the Governor of Illinois for the extradition of petitioner. The
Illinois Governor prepared a rendition warrant alleging that
petitioner is wanted for trafficking drugs through the State of
Missouri. Respondent, Cook County Sheriff Michael Sheahan,
detained petitioner pursuant to the rendition warrant.
Subsequently, petitioner filed a petition for writ of habeas
corpus. The trial court granted respondent's motion to dismiss,
and petitioner now appeals. We have jurisdiction pursuant to
Supreme Court Rules 601, 602, and 603. 134 Ill. 2d Rs. 601, 602,
603.
DISCUSSION
Extradition proceedings are summary in fashion and encompass
a narrow scope of review. People v. Martin, 208 Ill. App. 3d
857, 860 (1991); People ex rel. Shockley v. Hardiman, 152 Ill.
App. 3d 38, 41 (1987); Beauchamp v. Elrod, 137 Ill. App. 3d 208,
211 (1985); see People v. Cheek, 93 Ill. 2d 82, 90 (1982). See 2
R. Ruebner, Illinois Criminal Procedure 7.34, at 7-86 (2d ed.
1997). The Supreme Court of the United States has mandated that
in a habeas corpus proceeding challenging extradition, the court
of the asylum state may only consider: "(a) whether the
extradition documents on their face are in order; (b) whether the
petitioner has been charged with a crime in the demanding state;
(c) whether the petitioner is the person named in the request for
extradition; and (d) whether the petitioner is a fugitive."
California v. Superior Court, 482 U.S. 400, 408, 96 L. Ed. 2d 332, 341, 107 S. Ct. 2433, 2434 (1987); 2 R. Ruebner, Illinois
Criminal Procedure 7.34, at 7-86 (2d ed. 1997).
Focussing on the second category of review, petitioner
contends that the Illinois Governor's rendition warrant is
legally deficient and cannot be the basis for his extradition
because there is no evidence showing that Missouri charged him
with a crime. Specifically, petitioner argues that the warrant
is deficient because the record fails to contain or identify
either an indictment, an information supported by affidavit, or a
warrant supported by an affidavit made before a magistrate.
Before addressing the merits of petitioner's claim, however,
we first dispose of respondent's contention that petitioner
waived this argument since he failed to raise it in the trial
court. The waiver rule which respondent relies upon is a rule of
administrative convenience. People v. Farmer, 165 Ill. 2d 194,
200 (1995). To better marshall the finite resources of the
judiciary, the waiver rule is designed to encourage litigants to
raise all complaints, defenses, or objections in the trial court
for efficient resolution. In re Marriage of Schlam, 271 Ill.
App. 3d 788, 796-97 (1995). However, a reviewing court may
consider issues not properly preserved by the parties where the
goals of reaching a just result and maintaining a sound and
uniform body of precedent override considerations of waiver.
Farmer, 165 Ill. 2d at 200. In light of the invaluable liberty
interests that are implicated as well as the lack of recent
precedent addressing this particular issue, we elect to address
petitioner's contentions.
In its petition for rehearing, however, respondent contends
that our consideration of this issue is patently unfair because
petitioner never raised it in his petition for habeas corpus or
in his response to respondent's motion to dismiss. Respondent
argues that, "by waiting until this case reached the appellate
court to raise the existence of a Missouri charge as an issue,
the petitioner blindsided the respondent." Respondent explains
that, without this issue in controversy in the trial court, there
was no reason to establish the existence of the Missouri charge
because it was immaterial to the proceedings.
We find respondent's complaints of injustice unpersuasive
and without merit. Although respondent may not have been
prompted to introduce evidence of a proper Missouri charge
against the petitioner in the trial court, the issue was squarely
raised on appeal. Respondent should have constructed a
meaningful response to petitioner's allegations. Instead, it
merely raised the waiver shield, expecting the court to ignore
strong, uncontroverted allegations that petitioner's liberty
interests were unduly circumvented. Considering the well-settled
proposition that the waiver rule is limitation on the parties but
not the courts, we fail to understand respondent's allegation
that it was "blindsided." Respondent was well aware that the
lack of a Missouri charge was an issue on appeal. As such, it
should have addressed the substance of petitioner's allegations
and/or requested leave of this court to supplement the record
with evidence of the Missouri charge. It did neither.
Accordingly, having found respondent's contentions unavailing, we
continue with our discussion of whether the rendition warrant and
its supporting papers are sufficient to support extradition.
The absolute right of a state to demand extradition of an
individual who is in another state stems from the extradition
clause of the United States Constitution. See U.S. Const., art.
IV, 2, cl. 2. Pursuant to the extradition clause, Congress
enacted the Extradition Act, requiring asylum states to extradite
fugitives upon a demanding state's proper requisition. See 18
U.S.C. 3181 (1994). However, to facilitate extradition
proceedings, states like Illinois adopted the provisions of the
Uniform Criminal Extradition Act (Act) (725 ILCS 225/1 et seq.
(West 1996)). People ex rel. Hernandez v. Elrod, 86 Ill. 2d 453,
456 (1981).
Before an Illinois Governor can lawfully extradite someone
to another state, the demanding state's requisition must satisfy
the requirements of section 3 of the Act. Section 3 provides,
inter alia, that the demanding warrant must be accompanied by a
copy of an indictment, an information supported by affidavit, or
a warrant supported by an affidavit made before a magistrate.
725 ILCS 225/3 (West 1996). Section 3 further provides that
"[t]he indictment, information, or affidavit made before the
magistrate must substantially charge the person demanded with
having committed a crime under the law of that state *** and ***
be authenticated by the Executive Authority making the demand."
725 ILCS 225/3 (West 1996).
Upon concluding that the requirements of section 3 have been
met by the demanding state, the Governor of Illinois prepares a
rendition warrant for the fugitive's arrest and issues it to the
law enforcement agencies of Illinois. A valid rendition warrant
"must substantially recite the facts necessary to the validity of
its issuance." 725 ILCS 225/7 (West 1996); see People ex rel.
Ritholz v. Sain, 24 Ill. 2d 168, 171 (1962). See generally
Illinois Criminal Procedure 42.45, at 84 (1971); 35 C.J.S.
Extradition 16, at 436-37 (1960). This requires the rendition
warrant to certify, inter alia, that the demanding state has
charged petitioner with a crime under the law of that state and
that the state provided a copy of an indictment, information, or
a warrant supported by an affidavit made before a magistrate.
See People ex rel. Ritholz, 24 Ill. 2d at 171; People ex rel.
Hackler v. Lohman, 17 Ill. 2d 78, 85, 87 (1959); 725 ILCS 225/3
(West 1996). See also Illinois Criminal Procedure 42.45, at 84
(1971); 35 C.J.S. Extradition 16, at 436-37 (1960). The court
deems the recitals of the rendition warrant as true and accurate
absent a showing that they are false. People ex rel. Agee v.
Elrod, 93 Ill. App. 3d 1038, 1041 (1981); People v. Smith, 12
Ill. App. 3d 9, 12 (1973); People ex rel. Flowers v. Gruenewald,
390 Ill. 79, 82-83 (1945); see 2 R. Ruebner, Illinois Criminal
Procedure 7.34, at 7-87 (2d ed. 1997).
Where the rendition warrant recites the facts necessary to
the validity of its issuance, a prima facie case is made out that
the issuance of the warrant was legal and justified. People ex
rel. Hernandez, 86 Ill. 2d at 457; see People v. Evans, 126 Ill.
App. 3d 812, 815 (1984); People ex rel. Agee, 93 Ill. App. 3d at
1041; Smith, 12 Ill. App. 3d at 12. "This prima facie case for
extradition may be overcome only by proof to the contrary."
People ex rel. Hernandez, 86 Ill. 2d at 457. However, where the
rendition warrant fails to make the requisite certifications, the
rendition warrant is insufficient to be the sole basis for
extradition. People ex rel. Ritholz, 24 Ill. 2d at 171-72;
People ex rel. Coats v. Sain, 24 Ill. 2d 248, 250-51 (1962);
People ex rel. Hackler, 17 Ill. 2d at 172; Evans, 126 Ill. App.
3d at 815. 2 R. Ruebner, Illinois Criminal Procedure 7.34, at
7-87 (2d ed. 1997). Nevertheless, the requisition papers
introduced into evidence during habeas corpus proceedings may
cure a defective rendition warrant. People ex rel. Ritholz, 24 Ill. 2d at 172; People ex rel. Hackler, 17 Ill. 2d at 88-89; see
Evans, 126 Ill. App. 3d at 815.
The rendition warrant in this case provides in pertinent
part:
"The Governor of MISSOURI demands of me
the arrest and delivery of BERNARD H. COHEN
as a fugitive from justice and has tendered
to me proper documentation certified as
authentic and duly authenticated. The
documentation states that this fugitive, on
or about the 6th day of January, 1997, while
personally present in the County of Newton in
the demanding State, committed Class A Felony
of Trafficking Drugs in the Second Degree,
certified to be a crime under the laws of
that State, and thereafter fled that State."
(Emphasis in original.)
Although the warrant claims that petitioner committed a
crime in Missouri, it is silent as to whether a copy of any
document charging petitioner with a crime was presented with
Missouri's demand for extradition as required by section 3.
Consequently, the rendition warrant is legally insufficient to be
the sole basis for extradition because it does not "substantially
recite the facts necessary to the validity of its issuance." 725
ILCS 225/7 (West 1996); 725 ILCS 225/3 (West 1996); see People ex
rel. Ritholz, 24 Ill. 2d at 171-72; People ex rel. Coats, 24 Ill.
2d at 250-51; Smith, 12 Ill. App. 3d at 10-11. See also Illinois
Criminal Procedure 42.45, at 84-85 (1971).
Moreover, the record fails to reveal any documents showing
that Missouri substantially charged petitioner with a crime. See
725 ILCS 225/3 (West 1996). Without a copy of any one of the
proper charging documents in the record to cure the rendition
warrant's deficiency, we cannot find that the Governor of
Illinois was justified in issuing the rendition warrant. See 725
ILCS 225/3 (West 1996); People ex rel. Coats, 24 Ill. 2d at 250-
51; People ex rel. Hackler, 17 Ill. 2d at 89. We therefore
conclude that the rendition warrant and the evidence in the
record are legally insufficient to support the extradition of
petitioner in the instant case. See People ex rel. Coats, 24
Ill. 2d at 250-51; People ex rel. Hackler, 17 Ill. 2d at 89.

For the same reasons, we conclude that the evidence is
insufficient to establish that petitioner is a fugitive. "One is
a fugitive from justice, within the meaning of the extradition
laws, where it is shown that he was in the demanding State on the
date fixed in the charge against him and that he thereafter left
the State, and he is a fugitive from the time of such leaving
regardless of his purpose or motive in leaving." People ex rel.
Shockley v. Hardiman, 152 Ill. App. 3d 38, 45 (1987).
Furthermore, section 2 defines "fugitive" as "any person charged
in that State with treason, felony, or other crime, who has fled
from justice and is found in this State." 725 ILCS 225/2 (West
1996); People ex rel. Shockley, 152 Ill. App. 3d at 45; see
People ex rel. Wortman v. Munie, 354 Ill. 490, 492 (1933); People
ex rel. Leach v. Baldwin, 341 Ill. 604, 610 (1930) ("person
charged by indictment or by affidavit before a magistrate with
the commission within a State of a crime covered by its laws, and
who after the date of the commission of such crime leaves the
State, no matter for what purpose or with what motive *** becomes
*** a fugitive from justice").
In this case, respondent has failed to proffer any evidence
during habeas corpus proceedings indicating that petitioner has
been charged with a crime in Missouri. As such, he cannot be a
fugitive as contemplated by the Act. Consequently, we need not
address petitioner's argument asserting that he is not a fugitive
because he did not voluntarily leave Missouri.
Lastly, petitioner urges this court to grant his petition
for writ of habeas corpus because he has been denied his right to
due process and fundamental fairness. Specifically, petitioner
argues his constitutional rights have been violated because the
authorities reneged on their promise that he would be released
without being charged with any crime in exchange for his
cooperation. This argument is moot in light of the fact that
neither the warrant nor the record reflects the existence of
substantive charges against petitioner.
Moreover, even if the rendition warrant or the record
properly reflected that petitioner was charged with a crime, we
lack the authority to review this issue. As previously stated,
extradition proceedings are summary in fashion and encompass a
narrow scope of review. People v. Martin, 208 Ill. App. 3d 857,
860 (1991); People ex rel. Shockley, 152 Ill. App. 3d at 41;
Beauchamp v. Elrod, 137 Ill. App. 3d 208, 211 (1985); see People
v. Cheek, 93 Ill. 2d 82, 90 (1982). Challenges addressing the
merits of the charges against the accused are outside the scope
of our review. See Beauchamp, 137 Ill. App. 3d at 210. As a
result, "[t]he asylum forum is generally an inappropriate forum
in which to raise constitutional questions that generally are
appropriate only when raised as a defense to the underlying
criminal charge. Such claims must be raised initially in the
courts of the demanding State where an appropriate remedy can be
fashioned." Beauchamp, 137 Ill. App. 3d at 211 (recognizing that
Illinois courts have denied extradition based on a violation of
fundamental fairness only "where there as been an inordinate
delay in the demanding State seeking extradition that is not
attributed to the accused"); see also People ex rel. Bowman v.
Woods, 46 Ill. 2d 572, 575-76 (1970). See generally People ex
rel. Agee v. Elrod, 93 Ill. App. 3d 1038, 1043 (1981) (whether
petitioner's constitutional rights have been violated is not an
issue that is properly reviewable by courts of the rendition
state). Thus, we decline to consider petitioner's constitutional
challenge.
Therefore, for the foregoing reasons, we reverse the circuit
court of Cook County and remand with directions to release the
petitioner from custody.
Reversed and remanded with directions.
McNULTY and TULLY, JJ., concur.