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Graham v. Young

United States Court of Appeals, Eighth Circuit

March 30, 2018

John Graham Petitioner - Appellant/Cross Appellee
v.
Darin Young, Warden Respondent - Appellee/Cross Appellant

          Submitted: October 19, 2017

          Appeals from United States District Court for the District of South Dakota - Sioux Falls

          Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         John Graham was extradited from Canada and then convicted of felony murder in violation of South Dakota Codified Laws §§ 22-16-9 and 22-19-1. The state courts upheld his conviction on direct appeal and denied post-conviction relief. Graham filed a petition for a federal writ of habeas corpus, asserting various claims. See 28 U.S.C. § 2254. The district court[1] denied relief but granted a certificate of appealability on Graham's claim that his conviction violated the "dual criminality" provision of the Treaty on Extradition between the United States of America and Canada (the Treaty) because felony murder is not a crime in Canada. Graham appeals, arguing the state courts lacked jurisdiction because felony murder is not a crime in Canada. The State cross-appeals the district court's ruling that he has standing to challenge this alleged Treaty violation. Reviewing these issues de novo, we affirm.

         I. Background

         In February 1976, Anna Mae Aquash's body was discovered in a remote area in South Dakota. She had been shot in the head. In 2003, Graham was indicted in federal court under the Indian Major Crimes Act for the premeditated murder of Aquash. See 18 U.S.C. § 1153. The United States requested that Graham be extradited from Canada to be prosecuted on this charge. In 2007, the Court of Appeal for British Columbia affirmed a lower court's decision granting extradition. United States of America v. Graham, 2007 BCCA 345. Graham was extradited from Canada to South Dakota and the federal prosecution began. After extended litigation, we affirmed dismissal of the federal premeditated murder charge because Graham is a Canadian Indian, and the indictment failed to allege his Indian status, as 18 U.S.C. § 1153 requires. United States v. Graham, 572 F.3d 954, 956 (8th Cir. 2009). Graham remained in custody in South Dakota. In 2009, he was indicted by a Pennington County grand jury on state charges of premeditated murder and felony murder, with a predicate felony of kidnapping.

         Article 2 of the Treaty, as amended, provides that "[e]xtradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment."[2] Article 2 incorporates the international law doctrine of dual criminality -- "an accused can be extradited only if the alleged criminal conduct is considered criminal under the laws of both the surrendering and requesting nations." Murphy v. United States, 199 F.3d 599, 602 (2d Cir. 1999) (quotation omitted). Article 12(1) of the Treaty provides that "[a] person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted" unless "[t]he requested State has consented to . . . detention, trial, punishment for an offense other than that for which extradition was granted [and] such other offense is covered by Article 2."[3] Article 12(1) incorporates the "rule of specialty" adopted by the Supreme Court in United States v. Rauscher, 119 U.S. 407, 422-23 (1886) -- a defendant may only be tried in the requesting country for the offense for which extradition was granted. As is common, Article 12(1)(iii) also provides that the surrendering country may waive that Treaty limitation.

         Before Graham's trial, the United States sent a diplomatic request to Canada for consent to try Graham on both South Dakota charges. In February 2010, the Canadian Minister of Justice replied:

Consent to Waiver of Specialty
Article 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America
United States of America v. John Graham
Having regard to the request from the United States of America dated December 18, 2009, (Diplomatic Note No. 852) and to the provisions of sub-paragraph 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America, I hereby consent to the detention, prosecution and, if he is convicted, punishment of John Graham with respect to the offences which are set forth in the Indictment, No. 09-3953, filed on September 9, 2009, in the Seventh Circuit Court, County of Pennington, namely:
Count 1: Murder while in the Commission of any felony namely kidnapping, in violation of South Dakota Codified Law ...

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