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September 23, 1986.


Appeal from the District Court of the Second Judicial District, State of Idaho, Clearwater County. Honorable Ronald D. Schilling, District Judge. Order denying motion to dismiss grand theft charge and dismissing application for habeas corpus relief, affirmed.

Walters, Chief Judge. Swanstrom, J., concurs. Burnett, Judge, Dissenting.

Author: Walters

Wesley Barnhouse conditionally pled guilty and was convicted in Idaho of grand theft. On appeal, he contends the district court erred in denying his pretrial motion to dismiss and in refusing to grant relief on his petition for habeas corpus. In his motion and petition, Barnhouse asserted that he had been arrested and brought before the court in violation of a due process right to resist extradition. As a result, he requested the court to decline jurisdiction over the Idaho charge and to order Barnhouse removed to Montana where he could resist extradition to Idaho. We hold the court did not err in denying Barnhouse's motion or relief to him under his petition. We affirm the conviction.

Barnhouse was stopped in Umatilla County, Oregon, for a traffic violation. The Oregon police determined there were outstanding felony warrants for Barnhouse's arrest, from Sanders County, Montana, and from Clearwater County, Idaho. Barnhouse appeared before a district Judge in Oregon and was informed of his extradition rights. He waived his right to challenge extradition to Montana, but explicitly refused to waive extradition to Idaho. The Clearwater County prosecutor decided not to pursue extradition from Oregon and informed the Oregon authorities that the state of Idaho would allow Barnhouse to be transported to Montana and would later extradite Barnhouse from that state.

While in transit to Montana, Barnhouse arrived in Boise, Idaho. Assistance was requested from Clearwater County authorities to transport Barnhouse to Montana. The Clearwater authorities chose to arrest Barnhouse and place him in custody in Clearwater County.

The record in this case is not altogether clear how Barnhouse came to be in Idaho. Apparently he was transported from Oregon to Boise by Oregon personnel, because, in Boise, attempts were made to "find a way to get him to Montana." Such an attempt would have been unnecessary if Barnhouse already was in the custody of Montana authorities in transit to that state.

Further, the record does not establish (and Barnhouse does not contend) that the Oregon authorities released him to any Idaho officer -- from Boise or otherwise -- in Oregon, in contravention of Barnhouse's expressed desire to resist extradition to Idaho. There is no indication that Boise had any interest in Barnhouse until he turned up in that city in an attempt "to get him to Montana." In sum, the record does not show that Barnhouse was "seized" while in the custody of either Oregon or Montana authorities. At the hearing on Barnhouse's application for habeas corpus relief, the Clearwater County prosecutor represented:

It's my understanding the normal route of travel to get prisoners over to Montana is through Coeur d'Alene and for some reason Mr. Barnhouse ended up in Boise and it had nothing to do with anything anybody in Idaho did. It was -- that was the way he was sent. He ended up in Boise.

Boise, as I understand it, was at a little bit of a loss of how to get him over to Montana and started calling around the state trying to find a way to get him to Montana.

There is an agreement now between counties and states where they will move prisoners from one county to another in an attempt to save money and trying to get them from one state to another and Clearwater County participates in that. Clearwater County was contacted about transporting Mr. Barnhouse to Montana. Clearwater County was more or less obligated to participate in that and agreed to do so.

Someone -- the jailer in the sheriff's office contacted me. I guess he felt it was a little bit absurd that Clearwater County transport him over to Montana and had to go back over to Montana to get him when we had charges here and they wanted to know if it was legal to arrest him. I advised -- I also felt it was a little bit absurd to transport him to Montana and have to bring him back here when we had charges here. He's within the state. We have the power to arrest him.

Since he was within our jurisdiction he was arrested and brought here. But prior to making the arrest I personally called the sheriff's office in the jurisdiction of Montana where the charges existed, communicated through [sic] the sheriff with [sic] the dispatcher there. The sheriff there [was] asked if they would have any objection in their jurisdiction if we took care of our charges in this jurisdiction and they indicated no problem. That was more a matter of a courtesy than anything to do with the law, I believe, but there was absolutely nothing -- we had nothing to do with bringing him into the state of Idaho.

We found him in the state of Idaho and he was arrested on a valid warrant and he's before the court. . . .

In Clearwater County, Barnhouse asserted that he was improperly before the Idaho district court. He moved for dismissal and petitioned for a writ of habeas corpus, requesting release to the custody of Montana authorities. Following a hearing, both requests were denied. Barnhouse subsequently entered a conditional plea of guilty, under I.C.R. 11(a)(2), preserving his right to appeal the adverse pretrial decisions.

We begin by examining the extradition process. Interstate extradition powers emanate from Article IV, Section 2, paragraph 2, of the United States Constitution. Congress implemented this power through Section 3182 of Title 18 of the United States Code. This act provides that upon proper demand the fugitive shall be delivered to an agent of the demanding state. A complementary section empowers the agent to transport the fugitive to the demanding state. 18 U.S.C. 3194. These statutes were designed to permit states to reach out beyond their boundaries and bring offenders to trial. Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193 (1917).

Within those areas of interstate extradition addressed by federal law, it is controlling. Norton v. State, 93 Idaho 648, 649, 470 P.2d 413, 414 (1970), cert. denied,

401 U.S. 936, 91 S.Ct. 918, 27 L.Ed.2d 215 (1971); Smith v. Idaho, 373 F.2d 149, 154 (9th Cir.), cert. denied, 388 U.S. 919, 87 S.Ct. 2139, 18 L.Ed.2d 1364 (1967). The states are free to act within those procedural areas not addressed by federal law. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562 (1916). Most states, including Oregon, Montana and Idaho, have adopted versions of the Uniform Criminal Extradition Act to provide for processing fugitives. See 11 Uniform Laws Annotated 51 (1974).

Barnhouse argues that Idaho's interference with his extradition to Montana deprived him of a right to challenge extradition to Idaho. It is well established that if the accused is found in this state the court has jurisdiction over the prosecution even if the defendant's presence was obtained by force, fraud, mistake, or violation of law. In re Moyer, 12 Idaho 250, 85 P. 897, aff'd, Moyer v. Nichols, 203 U.S. 221, 27 S.Ct. 121, 51 L.Ed. 160 (1906); State v. Hansen, 101 Idaho 350, 612 P.2d 1197 (1980). See also Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); and see generally Annot., 25 A.L.R.4th 157 (1983). Essentially, "the jurisdiction of the court in which the indictment is found is not impaired by the manner in which the accused is brought before it." In re Moyer, supra, 12 Idaho at 259, 85 P. at 900, quoting Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283 (1888). Failure to comply with extradition process ordinarily does not remove jurisdiction. Ker, supra.

In one case a court has found it appropriate to create an exception to this doctrine. In United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), an Italian national was abducted in Uruguay by American agents and brought to New York for prosecution on charges of conspiracy to import narcotics. Toscanino's kidnapping circumvented extradition process under treaties between the United States and Uruguay. Following his abduction and during a twenty-day period, Toscanino was -- on occasion -- knocked unconscious; bound and blindfolded; held incommunicado; deprived of food and water; drugged; tortured with pliers, chemical substances and electrical devices; and "incessantly" interrogated. Reasoning by analogy to the deterrent purpose of the exclusionary rule of evidence, the Second Circuit Court of Appeals found the abduction and subsequent torture of the defendant, if true, to be so egregious as to affect the jurisdiction of the trial court. The appellate court held:

[W]e view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights.

500 F.2d at 275. Toscanino was soon strictly limited to its facts -- characterized by the Second Circuit as "shocking, cruel, inhuman and outrageous" conduct on the part of the government. In United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.1975), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668, the court addressed a claim by Julio Lujan that he had been seized and transported from Bolivia to New York on a narcotics charge, without benefit of formal arrest or extradition process. Lujan urged that Toscanino compelled dismissal of the indictment against him. Disagreeing, the court said:

It requires little argument to show that the government conduct of which [Lujan] complains pales by comparison with that alleged by Toscanino. Lacking from Lujan's petition is any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is ...

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