Fordham v. United States of America

Filing 7

ORDER: re Habeas Corpus Petition 1 (see order for full details). Signed by Judge Sharon L. Gleason on 02/12/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
INDEA GRACE FORDHAM, (a/k/a INDEA
FORD),
Petitioner,
v.

Case No. 3:17-cv-00268-SLG

UNITED STATES OF AMERICA,
Respondent.
ORDER RE HABEAS CORPUS PETITION
Before the Court at Docket 1 is Petitioner Indea Grace Fordham’s Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241. The Government opposed the petition
at Docket 6. Oral argument was not requested and was not necessary to the Court’s
decision.
Ms. Fordham’s Petition seeks to set aside the Certificate of Extradition entered on
December 1, 2017 by Magistrate Judge Kevin McCoy. 1 For the reasons set forth below,
the Petition will be denied.
BACKGROUND
The facts as alleged in the United Kingdom’s Extradition Request are as follows:
Prior to October 2015, Indea Fordham resided in the United Kingdom. She and Eren Halil
were in a relationship for three years and had two children together, G.M.H. and A.L.H. 2
Ms. Fordham and Mr. Halil separated in 2012. In October 2014, the Dartford Family Court

1

Case No. 3:17-mj-00137-KFM, Docket 51 (Certificate of Extradition).

2

Case No. 3:17-mj-00137-KFM, Docket 2 (United Kingdom Extradition Request) at 14.

at Dartford, United Kingdom entered a Child Arrangements Order, which provided that
the children would live with Ms. Fordham and have scheduled visitation with Mr. Halil. 3
The order provides that “[A.L.H’s] passport shall then be forwarded and remain in the
Father’s possession and [G.M.H.’s] passport shall be forwarded to the Mother and remain
in her possession until such point as either parent books a holiday, at which point both
passports will go to the parent leaving the jurisdiction with the children and return back to
each parent at the conclusion of the holiday.” 4 Attached to the order is a warning
regarding the Child Abduction Act 1984, which provides that “no person may . . . remove
the children from the United Kingdom without the written consent of every person with
parental responsibility for the children or the leave of the court.” 5
On March 24, 2015, Ms. Fordham applied for a replacement passport for A.L.H. to
Her Majesty’s Passport Office, representing that A.L.H.’s original passport had been lost.
On April 16, 2015, the passport office issued a new passport for A.L.H. 6
On May 5, 2015, the Dartford Family Court at Maidstone, United Kingdom held a
hearing at which Ms. Fordham’s application for leave to remove the children from the
jurisdiction to live in Alaska was dismissed. 7

3

Case No. 3:17-mj-00137-KFM, Docket 2 (Child Arrangements Order) at 27.

4

Case No. 3:17-mj-00137-KFM, Docket 2 at 28.

5

Case No. 3:17-mj-00137-KFM, Docket 2 at 29.

6

Case No. 3:17-mj-00137-KFM, Docket 2 at 15.

7

Case No. 3:17-mj-00137-KFM, Docket 2 (Child Arrangements and Specific Issue Order) at 31–
32.
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On October 2, 2015, Ms. Fordham left the United Kingdom with G.M.H. and A.L.H.
and flew to Washington Dulles without notifying Mr. Halil in violation of the Child
Arrangements Order, using A.L.H.’s replacement passport. 8 Mr. Halil discovered the
children were gone the following day when he went to pick them up for his regularly
scheduled weekend visit under the Child Arrangements Order. 9 Mr. Halil reported the
children missing and produced the original, not yet expired, passport for A.L.H. 10 On
October 8, 2015, G.M.H. and A.L.H. were made wards of the High Court of Justice Family
Division, and Ms. Fordham was ordered to return the children to the United Kingdom
forthwith. 11
On April 4, 2016, the Bromley Magistrates’ Court in the United Kingdom issued an
arrest warrant for Ms. Fordham, charging her with two counts of child abduction and one
count of fraud related to the application to replace A.L.H.’s passport. 12 On June 16, 2016,
the Head of Extradition from the United Kingdom formally requested that the U.S.
Department of State extradite Ms. Fordham to the United Kingdom to answer for her
pending charges. 13 On April 14, 2017, the United States filed a Criminal Complaint in the
District of Alaska and sought a warrant for Ms. Fordham’s arrest and extradition. 14 The

8

Case No. 3:17-mj-00137-KFM, Docket 2 at 15.

9

Case No. 3:17-mj-00137-KFM, Docket 2 at 16.

10

Case No. 3:17-mj-00137-KFM, Docket 2 at 16.

11

Case No. 3:17-mj-00137-KFM, Docket 2 (High Family Court Order) at 33–34, 40.

12

Case No. 3:17-mj-00137-KFM, Docket 2 (U.K. Arrest Warrant) at 11–12.

13

Case No. 3:17-mj-00137-KFM, Docket 2 (U.K. Request) at 7.

14

Case No. 3:17-mj-00137-KFM, Docket 1 (Compl.).

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court issued the warrant, and on April 18, 2017, Ms. Fordham was arrested in Sitka,
Alaska. 15
On April 26, 2017, Magistrate Judge Kevin McCoy held a detention hearing and
released Ms. Fordham from custody. 16 Thereafter, both parties filed briefing on the
extradition request. 17 Ms. Fordham argued that the extradition request should be denied
because “the offense of child abduction under the Abduction Act does not satisfy the dual
criminality requirement of the United Kingdom-United States Extradition Treaty, as the
conduct does not constitute a crime under the laws of the United States when the
defendant is ‘fleeing an incidence or pattern of domestic violence.’” 18 She also asserted
that the Child Abduction Act “does not apply to persons who take a child outside the
United Kingdom with the appropriate consent but retain the child beyond the period for
which authorization is granted.” 19
On November 6, 2017, Magistrate Judge Kevin McCoy conducted an extradition
hearing pursuant to 18 U.S.C. § 3184. 20 At the hearing, Ms. Fordham “elected not to

15

Case No. 3:17-mj-00137-KFM, Docket 14 (Arrest Warrant).

16

Case No. 3:17-mj-00137-KFM, Docket 17 (Order Setting Conditions of Release).

17

Case No. 3:17-mj-00137-KFM, Docket 27 (Mem. re Extradition Scope); Case No. 3:17-mj00137-KFM, Docket 34 (Mot. to Deny Request for Extradition); Case No. 3:17-mj-00137-KFM,
Docket 34-1 (Child Abduction Act 1984); Case No. 3:17-mj-00137-KFM, Docket 34-2 (Nicolaou
case); Case No. 3:17-mj-00137-KFM, Docket 35 (Opp. to Mot. to Deny Request for Extradition).
18

Case No. 3:17-mj-00137-KFM, Docket 34 at 2–3 (quoting 18 U.S.C. § 1204)).

19

Case No. 3:17-mj-00137-KFM, Docket 34 at 3 (citing Nicolaou [2011] EWHC 1647 U.K.)
(emphasis in original).

20

Case No. 3:17-mj-00137-KFM, Docket 44 (Minute Entry for Hearing on Mot. to Deny Request
for Extradition).
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present any evidence . . . in support of (1) the allegations of verbal and physical abuse
by Halil or (2) the allegation that Halil told her A.L.H,’s passport was lost. Nor did she
proffer or present evidence that the Maidstone Family Court failed or refused to consider
these allegations.” 21 Prior to the hearing, the Government filed a witness statement of
Mr. Halil, in which he stated “at no point did I tell Indea that I had lost of mislaid [A.L.H.’s]
passport. Indea did not inform me or consult me that she had requested a new passport
. . . either.”22 The Government did not present any additional evidence at the hearing
apart from its original filing of the extradition request. 23
On December 1, 2017, the magistrate judge issued a Memorandum Opinion and
Certification of Extradition. 24 The court found that dual criminality existed because “[t]he
essential character of the criminal acts criminalized by the laws of each country is the
same and the laws are substantially analogous.” 25 Relying on the documents from the

21

Case No. 3:17-mj-00137-KFM, Docket 51 (Mem. Opinion and Cert. of Extradition) at 11. Ms.
Fordham asserts that she took the children out of the United Kingdom with her in violation of the
Child Arrangements Order because of Mr. Halil’s history of domestic violence towards her and the
children. However, at an extradition hearing, the fugitive “is not permitted to introduce evidence
on the issue of guilt or innocence but can only offer evidence that tends to explain the
government’s case of probable cause.” Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978).
22

Case No. 3:17-mj-00137-KFM, Docket 35-1 (Halil’s Witness Statement dated October 12, 2017)
at 5.
23

Case No. 3:17-mj-00137-KFM, Docket 42 (Supp. Filings of Exhibits). Upon request of the court,
the Government refiled copies of the attachments of the Complaint consisting of documents from
the United Kingdom. The documents submitted at Docket 42 are the same documents submitted
with the initial complaint at Docket 2 except Docket 2 includes a formal supplement containing
Mr. Halil’s statement on Ms. Fordham’s identity dated September 16, 2016, additional evidence
of the identity of Ms. Fordham, and a copy of the extradition treaty between the United States and
the United Kingdom.
24

Case No. 3:17-mj-00137-KFM, Docket 51.

25

Case No. 3:17-mj-00137-KFM, Docket 51 at 14. The court also found that the affirmative
defense that “the defendant was fleeing an incidence or pattern of domestic violence” available
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United Kingdom, the magistrate judge held that there was competent evidence of
probable cause “to sustain two charges of child abduction . . . and one charge of fraud by
false representation . . . presently pending against her in the United Kingdom under the
extradition treaty between United Kingdom of Great Britain and Northern Ireland and the
United States of America.” 26 The court concluded that “Indea Grace Fordham, a.k.a.
Indea Ford, is extraditable under the aforesaid treaty, and that further proceedings in
extradition may be conducted.” 27 On December 28, 2017, Ms. Fordham filed the petition
for writ of habeas corpus that instituted this case. 28
SCOPE OF REVIEW
“The scope of review of an extradition order is considerably more restricted than
that generally engaged in by an appellate court.” 29 “The district court’s habeas review of
an extradition order is limited to whether: (1) the extradition magistrate had jurisdiction
over the individual sought, (2) the treaty was in force and the accused’s alleged offense
fell within the treaty’s terms, and (3) there is ‘any competent evidence’ supporting the
probable cause determination of the magistrate.” 30

under the U.S.’s International Parental Kidnapping Crime Act (18 U.S.C. § 1204) was not
applicable in an extradition hearing since an extradition hearing is not a trial on the merits. Case
No. 3:17-mj-00137-KFM, Docket 51 at 14–15.
26

Case No. 3:17-mj-00137-KFM, Docket 51 at 23.

27

Case No. 3:17-mj-00137-KFM, Docket 51 at 23. The court further found that Ms. Fordham’s
defense that she at most unlawfully retained the children and did not abduct the children at the
time she left London Heathrow was “a defense on the merits that does not explain away or
obliterate probable cause.” Case No. 3:17-mj-00137-KFM, Docket 51 at 21.
28

Docket 1 (Habeas Petition) at 1.

29

Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978).

30

Santos v. Thomas, 830 F.3d 987, 1001 (9th Cir. 2016) (citation omitted) (quoting Vo v. Benov,

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Whether an offense comes within a treaty is based on “whether it is listed as an
extraditable crime and whether the conduct is illegal in both countries,” which is a question
of law reviewed de novo. 31 “Purely factual questions in extradition cases are reviewed
under the clearly erroneous standard.”32 “Because the magistrate’s probable cause
finding is thus not a finding of fact in the sense that the court has weighed the evidence
and resolved disputed factual issues, it must be upheld if there is any competent evidence
in the record to support it.” 33
DISCUSSION
Ms. Fordham does not appear to dispute that the magistrate had jurisdiction; nor
does she dispute that a valid treaty was in effect at the time of the extradition hearing.
Ms. Fordham asserts two arguments in her petition: (1) child abduction is not an
extraditable offense because there is no dual criminality; and (2) there is not probable
cause to find that Ms. Fordham violated the Child Abduction Act or committed the offense

447 F.3d 1235, 1240 (9th Cir. 2006) (internal citation omitted)); see also Zanazanian v. United
States, 729 F.2d 624, 625–26 (9th Cir. 1984) (“Our inquiry on petition for writ of habeas corpus
challenging an extradition order is limited to whether: 1. the extradition judge had jurisdiction to
conduct proceedings; 2. the extradition court had jurisdiction over the fugitive; 3. the extradition
treaty was in full force and effect; 4. the crime fell within the terms of the treaty; and 5. there was
competent legal evidence to support a finding of extraditability.”).
31

Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986).

32

Id.

33

Id.

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of Fraud by False Representation. 34 The petition contains extensive unsworn allegations
of domestic violence and abuse perpetrated by Mr. Halil on Ms. Fordham. 35
A. Dual Criminality
Ms. Fordham asserts that the United Kingdom’s Child Abduction Act and the
United States’ international child abduction statute “do not punish the same ‘basic evil.’” 36
“Dual criminality requires that an accused be extradited only if the alleged criminal
conduct is considered criminal under the laws of both the surrendering and requesting
nations.” 37 Dual criminality does not require that each crime is an “exact duplicate” of the
other; but the two crimes must be “sufficiently analogous to satisfy dual criminality.” 38
The Child Abduction Act 1984 c.37, § 1(1), (Eng., Wales) prohibits a parent from
taking “the child out of the United Kingdom without the appropriate consent.” “Appropriate
consent” includes “consent of . . . the child’s father, if he has parental responsibility.” 39
The International Parental Kidnapping Crime Act (“IPKCA”) under United States law
provides “[w]hoever removes a child from the United States, or attempts to do so, or
retains a child (who has been in the United States) outside the United States with intent
to obstruct the lawful exercise of parental rights shall be fined under this title or

34

Docket 1 at 11, 17, 19.

35

See Docket 1 at 5–8.

36

Docket 1 at 11.

37

Clarey v. Gregg, 138 F.3d 764, 765 (9th Cir. 1998) (quoting United States v. Saccoccia, 18 F.3d
795, 800 n.6 (9th Cir. 1994)).

38

United States v. Khan, 993 F.2d 1368, 1372 (9th Cir. 1993).

39

Child Abduction Act 1984, c.37, § 1(3) (reproduced at Case No. 3:17-mj-00137-KFM, Docket
34-1).

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imprisoned[.]”40 “Parental rights” means the “right to physical custody of the child,”
including “visiting rights” arising from a “court order.” 41 Both acts criminalize the removal
of children from the country by a parent in violation of a court order or without the consent
of the other parent.
Ms. Fordham observes that the IPKCA provides an affirmative defense to victims
of domestic violence and there is no analogous equivalent defense for domestic violence
victims under United Kingdom law. 42 She asserts that the existence of that affirmative
defense “may not, by itself, defeat an extradition request, [but] it is nonetheless relevant
to the dual criminality analysis.” 43 The Government argues that the potential affirmative
defense in U.S. law is irrelevant to determining extraditability. 44 The Court agrees with
the Government on this point. The Supreme Court has held that an extradition hearing
is “confined to the single question of whether the evidence for the state makes a prima
facie case of guilt sufficient to make it proper to hold the party for trial.” 45 “The accused
. . . does not have the right to introduce evidence [at an extradition proceeding] in defense
because that would require the government seeking his extradition ‘to go into a full trial

40

18 U.S.C. § 1204(a).

41

18 U.S.C. § 1204(b).

42

The IPKCA provides that “It shall be an affirmative defense under this section that . . . the
defendant was fleeing an incidence or pattern of domestic violence[.] 18 U.S.C. § 1204(c)(2).

43

Docket 1 at 13.

44

Docket 6 at 14.

45

Charlton v. Kelly, 229 U.S. 447, 461 (1913).

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on the merits in a foreign country.’” 46 Courts have routinely followed this procedure. 47
Accordingly, the United Kingdom’s Child Abduction Act and the United States’ IPKCA
satisfy the dual criminality requirement and the magistrate judge did not err in rejecting
Ms. Fordham’s argument that the potential affirmative defense under the IPKCA
precludes a finding of dual criminality. 48
B. Probable Cause
Ms. Fordham next asserts the magistrate judge erred in his probable cause
determinations. On habeas review, this Court considers whether there is “any competent
evidence” to support the probable cause determinations. 49 Ms. Fordham does not contest
the authenticity of the evidence before the magistrate judge. Rather, she challenges its
sufficiency.
On the child abduction charges, Ms. Fordham asserts that “[t]here is no probable
cause to conclude that Ms. Ford violated the Child Abduction Act, because it is not

46

Santos v. Thomas, 830 F.3d 987, 992 (9th Cir. 2016) (quoting Collins v. Loisel, 259 U.S. 309,
316 (1922) (internal citation omitted)).

47

See Charlton, 229 U.S. at 461–62 (rejecting insanity defense at extradition hearing); Barapind
v. Enomoto, 400 F.3d 744, 749 (9th Cir. 2005) (“Generally, evidence that explains away or
completely obliterates probable cause is the only evidence admissible at an extradition hearing,
whereas evidence that merely controverts the existence of probable cause, or raises a defense,
is not admissible.”); In re Extradition of Santos, 795 F. Supp. 2d 966, 984 (C.D. Cal. 2011)
(“[E]vidence that contradicts or controverts the existence of probable cause is inadmissible,
including evidence establishing a defense or exonerating the accused.” (emphasis in original)).
48

Ms. Fordham’s argument that she should not be extradited because the United Kingdom is a
signatory to the Hague Convention is without merit. See Docket 1 at 15–16. The Hague
Convention is a “civil remedy adopted to effect the return of children brought to other countries.”
United States v. Ventre, 338 F.3d 1047, 1052 (9th Cir. 2003) (emphasis in original). Moreover,
the IPKCA provides that “[t]his section does not detract from The Hague Convention on the Civil
Aspects of International Parental Child Abduction.” 18 U.S.C. § 1204(d).
49

See Santos, 830 F.3d at 1001.

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unlawful under the Act to retain a child outside of the United Kingdom.” 50 Her petition
asserts that when she left the United Kingdom, she only intended to visit relatives for a
short time, and therefore she did not abduct the children but rather retained the children
outside of the United Kingdom. 51 The Government responds that “[t]he record amply
supports the magistrate judge’s finding of probable cause to believe petitioner violated
the U.K.’s Child Abduction Act.” 52
Ms. Fordham relies on a United Kingdom case, Nicolaou (2011) EWHC 1647 UK,
to support her argument. 53 In Nicolaou, the father took the child out of the United Kingdom
to Cyprus for a three week trip after obtaining a court order, but then kept the child out of
the United Kingdom for a number of years thereafter. A warrant was issued for the
father’s arrest. The United Kingdom’s High Court quashed the warrant because it found
that the father had not abducted the child when he left the United Kingdom, but rather
had impermissibly retained the child in Cyprus after the three week holiday. Nicolaou
does not support Ms. Fordham’s argument because she did not obtain a court order
authorizing her to leave the United Kingdom. To the contrary, her request to the court to
take the children to Alaska was dismissed.
The magistrate judge reviewed the exhibits filed by the Government, including the
Child Arrangements Order entered by the Family Court in the United Kingdom requiring

50

Docket 1 at 17.

51

Docket 1 at 8, 17.

52

Docket 6 at 19.

53

See Docket 1 at 17 (Nicolaou reproduced at Case No. 3:17-mj-00137-KFM, Docket 1-1).

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that each parent would retain one child’s passport. 54 The Government also provided the
Child Arrangements and Specific Issue Order denying Ms. Fordham’s request to amend
the Child Arrangements Order that would have allowed her to relocate to Alaska. 55 Ms.
Fordham did not introduce any evidence at the extradition hearing in an effort to negate
probable cause on the two child abduction counts. The Court’s role on habeas review is
to determine if there was any competent evidence to support the magistrate judge’s
probable cause determination; its task is not to determine whether the evidence is
sufficient to justify a conviction. 56 In this case, there clearly was competent evidence in
the record to support the magistrate judge’s probable cause determination regarding Ms.
Fordham’s alleged violations of the Child Abduction Act when she removed G.M.H. and
A.L.H. from the United Kingdom.
On the Fraud Act charge, Ms. Fordham asserts that “[t]he Government has not
provided any evidence that Ms. Ford knew the passport had not been lost or misplaced.”57
The Government filed the Child Arrangements Order and Mr. Halil’s witness statement in
which he confirmed he had possession of A.L.H.’s unexpired passport and that he had
not told Ms. Fordham that he had lost the passport. 58 Accordingly, there was competent

54

Case No. 3:17-mj-00137-KFM, Docket 2 at 14.

55

Case No. 3:17-mj-00137-KFM, Docket 2 at 15.

56

See Collins, 259 U.S. at 316.

57

Docket 1 at 19–20.

58

Case No. 3:17-mj-00137-KFM, Docket 2 at 16, 27; Case No. 3:17-mj-00137-KFM, Docket 351 at 5.
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evidence provided to the magistrate judge to find probable cause that Ms. Fordham
violated the Fraud Act.
CONCLUSION
In light of the foregoing, Ms. Fordham’s Petition for Writ of Habeas Corpus under
28 U.S.C. § 2241 is DENIED. The Clerk of Court is directed to enter a final judgment.
DATED this 12th day of February, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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