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HERBAGE v. MEESE

September 20, 1990

ALEX HERBAGE, Plaintiff,
v.
EDWIN MEESE III, et al., Defendants


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE

 Pending before the Court are the federal defendants' *fn1" motions to dismiss, the British defendants' *fn2" motions to dismiss, and plaintiff's oppositions thereto. For the reasons set forth below, defendants' motions are granted and this case is dismissed.

 I. BACKGROUND

 Plaintiff Alex Herbage is currently an inmate at the Federal Medical Center in Rochester, Minnesota. In 1986, Herbage, a British citizen, was indicted in the United States District Court for the Middle District of Florida on twenty-three counts of mail fraud and two counts of interstate or foreign transportation of fraudulently obtained money or property. The British government extradited Herbage to the custody of the United States in December, 1986. In August 1987, Herbage pled guilty to three counts of mail fraud and was sentenced to three consecutive five-year terms. He preserved the right to challenge the court's jurisdiction and duly appealed. In August 1988, the United States Court of Appeals for the Eleventh Circuit affirmed his conviction. United States v. Herbage, 850 F.2d 1463 (11th Cir. 1988), cert. denied, 489 U.S. 1027, 109 S. Ct. 1158, 103 L. Ed. 2d 217 (1989).

 The plaintiff sets forth three "causes of action" (hereinafter referred to as "counts") arising from the events leading to his arrest and extradition. In the first cause of action, he alleges that defendants Meese, Ogren, Merkle, Hardy, Twiss, Hurd, Hetherington, Hoddinott, Wilson-Smith, Spokes and others conspired to violate his due process rights by knowingly and falsely stating that the United States had made a valid "provisional request" for his extradition, a necessary prerequisite to such proceedings. It was on the basis of this request -- made under the United States-United Kingdom Treaty of Extradition ("US-UK Treaty") *fn3" -- that a London Magistrate had issued the provisional warrant under which he was arrested. Because that basis is false, Herbage claims, his constitutional rights were violated.

 In his second count plaintiff asserts that defendants Hardy, Hoddinott, Wilson-Smith, Spokes and unknown others conspired to ensure that defendant Hardy knowingly gave false testimony, under oath, as to the nature of United States law and the nature of the charges against plaintiff before the Magistrate who conducted the extradition hearings in London.

 In his third and final count, Herbage contends that defendants Meese, Ogren, Merkle, Hardy, Twiss, Williams, Solis, Layne, and others, conspired to violate his constitutional rights by having him arrested, detained, arraigned, convicted, and ultimately sentenced for the alleged commission of offenses other than those set out in his extradition warrant, in violation of the "principle of specialty," a fundamental tenet of international law.

 For relief, plaintiff seeks a declaratory judgment that all requests for the extradition of those British citizens accused of offenses under U.S. laws be made pursuant to a valid treaty of extradition and not in violation of the principle of specialty. He also requests that the Court establish two conditions for the trial of extradited individuals: that the crime be one that is extraditable under the US-UK Treaty, and that the crime be one with which he was charged in the extradition proceedings. Plaintiff further seeks a declaratory judgment detailing the invalid bases on which he was arrested and convicted. Second, he asks for a declaration that various defendants violated the laws and Constitution of the United States when they falsely and knowingly caused the provisional warrant to be issued against him. Third, he asks for a declaratory judgment that various defendants violated the laws and a treaty of the United States when they conspired to have defendant Hardy give knowingly false testimony to the Magistrate conducting the extradition hearing. Fourth, he would have the Court issue a declaration that the defendants violated his due process rights by having him arrested, charged, convicted, and sentenced for offenses other than those charged in the extradition warrant, in violation of the principle of specialty. Plaintiff also asks the Court to enjoin the defendants from "any further illegal acts or conspiracies, intended to deprive the Plaintiff of all rights due." Finally, he asks for compensatory damages in the amount of two million dollars and punitive damages in the amount of ten million dollars. *fn4"

 II. DISCUSSION

 In viewing a motion to dismiss, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Hishon v. King & Spaulding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). In evaluating the complaint, the court must accept as true the factual allegations set forth therein, Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 411, 106 S. Ct. 1922, 1924, 90 L. Ed. 2d 413 (1986), and draw therefrom all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 A. Federal Defendants

 The federal defendants have moved to dismiss this action on the following grounds: *fn5" plaintiff's complaint fails to meet the requisite heightened pleading standard in cases alleging conspiracies to commit constitutional violations; plaintiff does not state a claim as required by Fed. R. Civ. P. 8(a); venue is improper in this district; the predicate of plaintiff's claim -- that his extradition occurred in violation of a treaty -- is res judicata; and, lastly, in any event, defendants are protected by absolute and qualified immunity. Because, inter alia, the complaint fails to meet the heightened pleading requirement for constitutional claims, it must be dismissed. All other contentions have been considered but this ruling makes it unnecessary to address them, other than the issue of res judicata, see infra.

 Conspiracy to deprive him of his constitutional rights is the gravamen of Herbage's complaint. He charges that certain federal defendants, along with certain British defendants, *fn6" conspired to deprive him of his rights to due process, under the Fifth Amendment, by knowingly making the false assertion that the provisional warrant had been issued in response to a valid provisional request from the United States. Plaintiff further accuses defendant Hardy, a DOJ trial attorney, of conspiring with British defendants to give false testimony concerning the nature of U.S. law to the Magistrate at the extradition hearing. Finally, Herbage claims that all the federal defendants conspired to violate his due process rights when they subjected him to the ...


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