Sunday, August 07, 2005

Extradition Subject Keith Maydak Petitions Canada's Minister of Justice To Protest Unlawful Confinement Ten Months Past The Maximum Sentence

After detaining Keith Maydak for two years and one month for a probation-type violation that carries a maximum of two years, Canada nevertheless extradited him to the United States to "complete" the sentence. Despite assuring Canada that Maydak would receive credit for the detention, the United States courts refuse to sentence him or provide him a bail hearing.

Maydak lodged the following petition to Canada on August 7, 2005:

August 7, 2005

Hon. Irwin Cotler
Minister of Justice
c/o Department of Justice – Canada
International Assistance Group
284 Wellington Street
Ottawa, ON K1A OH8
via facsimile 1.613.957.8412 and 1.613.941.7865

In re: Extradition to the United States

Dear Justice Minister Cotler:

I am in receipt of the letter dated April 1, 2005, from Janet Henchey, General Counsel of the International Assistance Group, that responds to my petition to lodge a protest and / or to revoke the surrender order in this matter. Unfortunately, the communication neither formally denies my petition nor addresses the gravity of Canada’s deliberate indifference[1] to the present situation that includes indefinite detention and a complete deviation from normal procedure. As such, for the reasons discussed below, I am once again petitioning your office to lodge a protest with the United States of America and / or to revoke the surrender order. As I intend to seek judicial review from any failure to intervene and / or to transmit information to the United Nations’ High Commissioner for Human Rights,[2] I request an appealable decision by the Minister of Justice.

In fact, I allowed your office to surrender me prior to an Application for Leave to Appeal to the Supreme Court of Canada based on the representations of your predecessor, and the information the Federal Prosecution Service provided to the British Columbia Court of Appeal, as to what would happen in terms of procedure and fairness on my return. However, as I predicted in my submissions to your predecessor, I am now being subjected to bizarre procedural actions that are not warranted under the statutory paradigm. Of course, the actions originate from the presiding judge who, as explained by the United States Marshals Service to Canadian immigration officials, sought protection because he believes, albeit erroneously, that I pose a threat to him.

I. Canada’s complicity in indefinite detention constituting cruel and unusual treatment
and punishment

In United States v. Johnson, [2002], 170 CCC(3d) 538 (Ont. C.A.), the Ontario Court of Appeals held that detaining a person for longer than the prospective penalty on extradition is capable of being unjust or oppressive. Your predecessor distinguished this case by asserting that I would receive credit for the detention during the extradition proceedings. In addition, it was said that I could receive an additional year of supervised release.[3]

At the judicial review hearing, the panel of judges pointedly asked your counsel, Deborah Strachan, what would happen on return to the United States. Ms. Strachan unambiguously represented that a hearing would promptly occur and that I would be released shortly thereafter. Based on this, the Court of Appeal found my submissions that I would be subjected to arbitrary and prolonged confinement to be meritless.

Presently, I have been in the United States for over nine months, and have been detained, in totem, ten months past the maximum prospective sentence. No end to the detention appears in sight notwithstanding no basis in fact or law to justify the confinement.

While both Canada’s Charter of Rights and Freedoms and the United States of America’s Constitution prohibit arbitrary detention and due process violations, it appears that the agents of the United States, along with your staff, are attempting to justify the indefinite detention by claiming that procedural protections (i.e., a formal sentencing hearing necessary to comport with due process) must occur prior to my release. Of course, such a position appears blatantly absurd especially in light of the fact that I have repeatedly stipulated to the maximum penalty.

I went so far as to waive my right to contest the supervised release allegations since no point exists in continuing to litigate a moot case. Nevertheless, I remain detained based on procedural gamesmanship.

The Court with precedental authority over my case, the United States Court of Appeals for the Third Circuit, made it clear that detaining a person longer than the maximum constitutes cruel and unusual punishment. Sample v. Diecks, 885 F2d 1099 (3d Cir. 1989). Canada’s Charter also prohibits this type of cruel treatment. Nevertheless, Canada remains willing to allow the United States to inflict the cruel and unusual treatment without protest.

II. The failure to comply with normal procedures to prevent the challenge to the arbitrary
detention

As in Canada, the United States Constitution and criminal statutory provisions require prompt detention hearings to test the lawfulness of confinement. This is no different in supervised release proceedings. Specifically, Federal Rule of Criminal Procedure 32.1 governs supervised release. Rule 32.1(a)(1) requires that a person held in custody for violating probation or supervised release must be taken without unnecessary delay before a magistrate judge. The magistrate judge must inform the person of his rights. See Rule 32.1(a)(3). At that time, a detention hearing occurs and the magistrate judge may release or detain the person under 18 USC §3143(a). See Rule 32.1(a)(6). If detained, a person may seek an expedited detention appeal pursuant to 18 USC §3145.[4]

In my case, United States Marshals lodged me in the Allegheny County Jail on October 30, 2004. On November 1, 2004, it was incumbent upon the Government to schedule a Rule 32.1 hearing. It failed to do so. None of the procedural protections found in Rule 32.1 occurred.

On November 19, 2004, I filed a formal objection with the Court outlining the failure to comply with these provisions. On November 30, 2004, I filed a Petition for Writ of Habeas Corpus at Maydak v. Warden, Allegheny County Jail, 04cv1818 (WDPA). At the December 16, 2004, hearing, I noted my continued objection to ignoring these provisions. To date, the presiding judge ignored the objections and he refuses to address the habeas corpus petition. The Government caused me to be moved from Pennsylvania to Ohio forcing me to file the habeas a second time.

I note that it is the Prosecution’s obligation to immediately schedule a detention hearing when it is realized that the time limits passed. See United States v. Montalvo-Murillo, 495 US 711, 721 (1990) (“Once the Government discovers that the [bail] time limits have expired, it may ask for a prompt detention hearing …”).[5] Nevertheless, the Americans have still not taken this step.

Clearly, the deviation from the procedure in this type of case demonstrates that I am being treated differently in retaliation for my exercise of due process rights.

III. Disavowment of Representations to Canada

During my efforts to secure release, I pointed out the United States’ assurances that I would receive credit for the time spent in Canadian custody. The United States disavowed its representation and claimed that the courts could not look to the amount of time I spent in jail. The Office of United States Attorney[6] went so far as to argue that Paul Hull, the Assistant U.S. Attorney that made the representations, was not competent or authorized to do so. However, the United States certified to Canada that the information was accurate. While the American Government does not deny that I will eventually obtain credit, its actions are meant to vindictively extend my excessive and unlawful detention.

Canada must take the steps to require that the representations made to it constitute more than empty assurances to better the legal position of the United States. Moreover, since other supervised release cases will come before your office, it seems prudent to require the United States to provide truthful details of the situation.

IV. Conclusion

Based on the above, Canada must immediately take steps to protest the conduct of the United States. Otherwise, the integrity of the extradition process will be at risk. The procedural posture of this case clearly infringes upon my right to be free from cruel and unusual treatment that both Canada and the United States are responsible for. No justification exists to continue my detention and the failure of the United States to follow their own procedures demonstrates bad faith. As such, the surrender order must be rescinded immediately.

Respectfully submitted,

Keith Maydak


cc: Deborah Strachan, counsel
Fax: 604.666.1599

[1] Indeed, I understand that the International Assistance Group continues to administer supervised release extradition cases on behalf of the United States of America. Therefore, I trust that the present gamesmanship should cause concerns in all supervised release extraditions.

[2] Any transmittal shall be pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights and the Procedure under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment.
[3] This continues to constitute a fallacy. If additional supervised release is issued, it could result in additional imprisonment because the absolute maximum detention is two years. 18 USC §3583(e)(3). Apparently, the presiding judge intends to use any additional term to continue the game of prolonged detentions under the guise of waiting months for a hearing.
[4] In addition, I was entitled to a preliminary hearing as well. See Rule 32.1(b)(1)(A).

[5] Montalvo-Murillo did not deal with aggravated or intentional failures to hold a prompt detention hearing. My case appears both aggravated and intentional.

[6] The Office of United States Attorney made the disavowments in several cases including: 05-1401 (3d Cir. 2005); 05-1871 (3d Cir.); and 05cv388 (WDPA). Yet, this is the same office that made its representations to Canada which were repeated to the Court of Appeal.