United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on a Petition for Relief under 28
U.S.C. § 2241, (Doc. No. 1), challenging a magistrate
judge's Certification and Committal for Extradition,
(Case No. 3:16-mj-434, Doc. No. 13), and the government's
Response, (Doc. No. 2). For the reasons that follow, this
Court will deny the Petition.
Andain Martin, a.k.a. “Kevin Omar Brown, ” is the
subject of an extradition request by the Government of the
United Kingdom based on charges of murder, violent disorder,
and manslaughter. (Case No. 3:16-mj-434, Doc. No. 2: Comp. at
1-3). Pursuant to 18 U.S.C. § 3184, a magistrate judge
held a hearing at which Petitioner conceded that the judicial
officer was authorized to conduct the proceeding, the court
had jurisdiction over him, the applicable treaty was in full
force and effect, the alleged crimes were covered by the
applicable treaty, and there was probable cause to support
the violent disorder charge. (Id., Doc. No. 11: Mem.
at 1-3; Doc. No. 12: Hr'g Tr. at 2-3). Thus, Petitioner
only contested the sufficiency of the evidence on the charges
of murder and manslaughter. (Id.). After reviewing
the summaries of the investigating officer and witnesses from
the United Kingdom and hearing the arguments of counsel, the
magistrate judge concluded the evidence was sufficient to
sustain all three charges under the relevant standard, (Case
No. 3:16-mj-434, Doc. No. 12: Hr'g Tr. at 14), but stayed
the extradition Order to enable Petitioner to seek review,
(Id., Doc. No. 13: Certification and Committal for
Extradition at 2). In the instant Petition followed, again
only challenging the sufficiency of the facts supporting the
murder and manslaughter charges. (Doc. No. 1 at 4).
STANDARD OF REVIEW
extradition hearing is not a full trial, but is limited to
determining: “(1) whether there is probable cause to
believe that there has been a violation of the laws of the
foreign country requesting extradition, (2) whether such
conduct would have been criminal if committed in the United
States, and (3) whether the fugitive is the person sought by
the foreign country for violating its laws.” Ye Gon
v. Holt, 774 F.3d 207, 210 (4th Cir. 2014). Filing a
petition for writ of habeas corpus under 28 U.S.C. §
2241 is the only way to challenge an extradition decision and
“is limited to determining whether the extradition
judge had jurisdiction, whether the charged offense is an
extraditable offense under the applicable treaty, and whether
there is any evidence warranting the conclusion that probable
cause exists for the violation of the foreign country's
laws.” Id. at 211. To overturn a presumptively
valid extradition order, a petitioner bears the burden of
proving by a preponderance of evidence that he is being held
in violation of the Constitution, laws, or treaties of the
United States. Skaftouros v. United States, 667 F.3d
144, 158 (2d Cir. 2011) (quoting Fernandez v.
Phillips, 268 U.S. 311, 312 (1925)). Here, the only
issue is whether there is any evidence warranting the
magistrate judge's conclusion that probable cause exists
for the British murder and manslaughter charges.
Aiding and Abetting Theory Petitioner argues the evidence is
insufficient to extradite him because he did not inflict the
knife wounds which caused the victim's death and the
murder and manslaughter charges do not allege a theory of
aiding and abetting. (Doc. No. 1: Motion at 3-4). Petitioner
concedes that American law does not require such explicit
language in a charging instrument and has not shown that
British law does. (Id. at 4); see also United
States v. Day, 700 F.3d 713, 720 (4th Cir. 2012)
(“as this court and other courts have repeatedly held-a
defendant may be convicted of aiding and abetting under an
indictment which charges only the principal offense.”)
(internal quotation marks and citations omitted).
U.S.C. § 2, it appears that British law holds an
accessory “liable to be tried, indicted, and punished
as a principal offender” and “a person charged as
a principal may be convicted even though the real case
against him was that he was an accessory.” (Case No.
3:16-mj-434, Doc. No. 2: Comp. at 32, Alison Claire Riley,
Crown Prosecution Service Extradition Prosecutor, Aff.).
Thus, Petitioner may be held criminally responsible for the
killing if he voluntarily participated in the alleged murder
or manslaughter with the intent to violate the law. Fifth
Circuit Pattern Jury Inst. § 2.04 (2015).
recording of the attack on the victim is evidence from which
a trier of fact could reasonably infer Petitioner's
criminal responsibility. A summary of the recording describes
Petitioner and three others as “chasing” a second
group of males, including the victim. (Case No. 3:16-mj-434,
Doc. No. 2: Comp. at 13, Gary Waite, Metropolitan Police
Detective Constable, Aff.). Petitioner is carrying a bottle
and a companion is carrying a broom. (Id.). When the
victim falls to the ground, Petitioner smashes the bottle on
the victim's head. (Id. at 14). Petitioner's
companions immediately kick, beat with the broom, and
repeatedly stab the victim. (Id. at 14-15).
Petitioner and his three companions then run from the scene.
(Id. at 15). Therefore, the Court finds that
Petitioner has failed to carry his burden to show there is no
evidence to support the magistrate judge's determination
that there is probable cause to believe he is responsible for
the alleged murder or manslaughter.
Murder Mens Rea
further claims there is no evidence of malice aforethought,
which would be required to prove a violation of 18 U.S.C.
§ 1111, the analogous federal murder charge. (Doc. No.
1: Motion at 4). Under American law, “[t]o kill
‘with malice aforethought' means either to kill
another person deliberately and intentionally, or to act with
callous and wanton disregard for human life.” Fifth
Circuit Pattern Jury Inst. § 2.52A, B (2015). Murders
under § 1111(a) may be premediated (first degree) or not
(second degree). Id. The presence or absence of
malice must be inferred from all the facts and circumstances
surrounding a killing. United States v. Flemming,
739 F.2d 945, 947 (4th Cir. 1984). Under British law, murders
may be committed “with intent to kill or cause
grievious bodily harm.” (Case No. 3:16-mj-434, Doc. No.
2: Complaint at 25, Riley Aff.). “Grievious bodily harm
means injury which is really serious but not necessarily
dangerous to life.” (Id. at 26).
recording described above is evidence from which a trier of
fact could reasonably infer that Petitioner, or someone aided
and abetted by him, acted the requisite intent. Therefore,
the Court finds that Petitioner has failed to carry his
burden to show there is no evidence to support the magistrate