Gerald Joseph Caplan appeals from a district court order denying habeas corpus relief in an international extradition proceeding. The United Kingdom seeks Caplan's extradition on 60 charges accusing Caplan and others of theft, forgery, and false accounting in the management of a collapsed London financial firm. In the original extradition proceeding, the district judge, sitting as a committing magistrate under 18 U.S.C. § 3184,2 certified Caplan as extraditable on all but the first of these charges. Caplan's petition for habeas corpus came to be heard before, and was denied by, the same district judge that had conducted the extradition proceeding. We have jurisdiction of this appeal under 28 U.S.C. § 2253. For the reasons set forth below, we remand.

From February 14, 1968, to December 4, 1973, Caplan was the Chairman and Managing Director of what eventually became the London and County Securities Group, Ltd. ("L & C"). L & C was formed as a holding company for a finance company, London & County (Advance & Discount), Ltd. ("A & D"), in which Caplan had held a controlling interest since 1961. L & C acquired the entire interest in A & D in 1969.

In January, 1969, L & C became a public company, with shares first trading on the London Stock Exchange in May, 1969, at 0.25 per share. By May, 1972, the share price had risen to a peak of 4.00 per share. A more or less steady decline in price followed, tracking the downturn in the British economy.

In order to counteract the decline in share prices, Caplan arranged for A & D, through an intricate group of transactions in the names of nominee owners, to buy and hold L & C shares. This practice is labelled "warehousing" in the Government's case, and it is in relation to warehousing transactions that most of the charges against Caplan arise. The warehousing plan did not succeed in stabilizing the share price, and, with the company in disarray, trading in L & C was ultimately suspended on November 30, 1973, at 0.45 per share.

On December 4, 1973, Caplan resigned; a caretaker board of directors took over the following month. On January 11, 1974, on request of the board of directors, the British Department of Trade & Industry appointed inspectors to investigate the affairs of L & C. The investigation included an extensive examination of Caplan, who cooperated with the inspectors.

In November, 1974, after his final session with the Department of Trade & Industry, Caplan and his wife moved to France and applied for permanent resident status. A year later, in November, 1975, the two moved to Monaco where Caplan took part in a business venture. Caplan was forced to resign his Monaco position in January, 1976, in the wake of the public report issued by the Department of Trade & Industry criticizing Caplan's management of L & C; the two then moved to their present residence in Beverly Hills, California.

Caplan was arrested in April, 1978, pursuant to the provisional arrest provisions of the extradition treaty,4 on complaint by the U.S. Attorney on behalf of the government of Great Britain. The Bow Street Magistrate's warrant, dated May 18, 1978, was filed in the district court on June 7, 1978; this warrant set forth the 60 charges on which extradition was sought. Following a hearing held on December 12, 1978, the district court issued a memorandum opinion on February 23, 1979, stating that charges 2 through 60 were extraditable, but reserving certification on the charges pending preparation of findings "adequate to support a determination of 'probable cause'5 as to each element" of the charged offenses. Proposed findings were submitted by the government on March 22, 1979. On July 31, 1979, the district court adopted the findings and certified Caplan as extraditable on Charges 2 through 60.

In August, 1979, Caplan petitioned for a writ of habeas corpus, asserting various challenges to the certification of extraditability. After a hearing in September, 1979, the petition was denied in October, 1979. From that denial this appeal was taken.

Because a certification of extraditability is not a "final order," no direct appeal lies from that decision. Review is therefore available only by way of petition for habeas corpus. Collins v. Miller, 252 U.S. 364, 369, 40 S. Ct. 347, 349, 64 L. Ed. 616 (1920). Our inquiry in reviewing the denial of such a petition, in turn, is more restricted than that afforded in a direct appeal. Thus, as most recently stated in this Circuit:

The scope of review of an extradition order is considerably more restricted than that generally engaged in by an appellate court. On collateral review by habeas corpus, the Court is not permitted to inquire beyond whether (1) the extradition judge had jurisdiction to conduct extradition proceedings; (2) the extradition court had jurisdiction over the fugitive; (3) the treaty of extradition 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. See Fernandez v. Phillips, 268 U.S. 311, 312 (45 S. Ct. 541, 542, 69 L. Ed. 970) (1925).

Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.), cert. denied, 439 U.S. 932, 99 S. Ct. 323, 58 L. Ed. 2d 327 (1978). Recognizing this constraint, Caplan has directed his arguments largely at the fourth category above. He thus argues, first, that extradition on Charges 2 through 21 is barred by the statute of limitations, and second, that the facts found under Charges 22 through 60 do not establish extraditable offenses. We shall examine each contention.

I. Charges 2 through 21.

Under our treaty with the United Kingdom, Caplan cannot be extradited on any charge for which "prosecution has become barred by lapse of time according to the law of the requesting or requested Party."6 The relevant statute of limitations appears in 18 U.S.C. § 3282, which bars most non-capital prosecutions where charges have not been brought within five years. See Jhirad v. Ferrandina, 486 F.2d 442, 444 (2d Cir. 1973). Measuring from the date of the London arrest warrant, May 18, 1978, we are concerned under this inquiry with charges involving acts prior to May 18, 1973.

Charge 2 involves a fictitious bank account maintained between February, 1968, and December, 1973, straddling the limitations period. Charges 3 through 21 allege acts taking place no later than April, 1973. Caplan cannot be extradited on the pre-May-1973 offenses unless the statute of limitations was tolled. The applicable tolling provision, 18 U.S.C. § 3290, provides that "no statute of limitation shall extend to any person fleeing from justice." In United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir. 1976), we stated:

(I)n order to establish that an accused was "fleeing from justice" within the meaning of section 3290, the prosecution must meet the burden of proving that the accused concealed himself with the intent to avoid arrest or prosecution. The statute of limitations is made inapplicable whenever an accused flees from justice because the failure to prosecute is attributable to the unacceptable conduct of the accused. The accused should not be responsible, however, for unintentional delays, such, for example, as one caused by an open move to a new residence where the accused is readily accessible to careful law enforcement officers.

The government advances two reasons for its contention that Caplan intended to evade arrest by moving from England. First, it argues, because the British Department of Trade and Industry conducted an investigation of the affairs of L & C including an extensive examination of Caplan Caplan had a clear understanding that criminal charges might ensue. The inference that Caplan left because of the possibility of criminal charges stemming from the investigation, however, is negated by the facts. Caplan was first questioned by the Department in June, 1974. He listed his house for sale in early July, 1974. Thereafter, he delayed his departure from England for several months to allow the investigation to be completed. It is also clear that Caplan had been planning to leave England for several months prior to his departure. In fact, Caplan and his wife applied for non-residence classification with the British government several months before departure. In preparing the application, they gave the government the address to which they planned to and did in fact move. In France, Caplan conducted business under his true name. When Caplan was forced to resign from his business in Monaco, he moved to this country where he at all times used his true name and address. Finally, the evidence showed that Caplan returned to England in February, 1975, for a one-week period and in 1977 for a stopover during an international flight. During this entire period, Caplan never had notice that he was wanted for arrest or that criminal charges were contemplated. These facts belie the government's contention that Caplan left to avoid prosecution. Certainly Caplan did not cause any delay by "unacceptable conduct."

The government also contends that we should find the requisite intent because by moving to France, Caplan made his arrest more difficult. Acceptance of this argument, however, would mark a return to the "mere absence" standard which the Wazney court rejected. His departure from England may have necessitated extradition proceedings, but it did not cause the British government's lengthy delay in initiating prosecution. The government had obtained whatever information it needed from Caplan before his departure. As Caplan notes, adoption of the government's argument would mean that for the duration of the applicable statute of limitations "there was no burden of diligence on the Government and that Caplan simply could not leave England in any manner or under any circumstances."7

The government failed to meet its burden of proving that Caplan concealed himself with intent to avoid arrest or prosecution. Consequently, the district court's finding that Caplan was a "fugitive from justice," thus tolling the statute of limitations under 18 U.S.C. § 3290, was clearly erroneous. Caplan cannot, consistent with the limitations provision in the Extradition Treaty, be extradited on charges 3 through 21, nor on charge 2 to the extent it alleges a violation that did not continue beyond May 18, 1973.8

II. Charges 22 through 60.

In the remaining charges, numbered 22 through 60, Caplan is accused of violating several provisions of the British Theft Act.9 The majority of the charges flow from the practice referred to by the government as "warehousing," involving L & C share purchases in the names of nominee holders and subsequent transfers of funds to cover the costs of the purchases. Other charges concern allegedly improper director loans and allegedly false accounting entries.

Our review of the extradition proceeding in light of the arguments on appeal has uncovered serious shortcomings. Caplan argues that the facts "found"10 by the extradition court do not establish the criminal violations charged.11 The government seems to argue that so long as offenses can be found in United States law that correspond to those charged in the warrant, extradition should be granted without reference to whether the charged offenses constitute crimes in the requesting country. These arguments have focused our attention on the nature of the charges and the requirements they must meet under the treaty in order for extradition to be granted.

The extradition court merely made a conclusory finding that charges 22 through 60 were sufficient to establish extraditable offenses. The following sentences contain the court's sole finding regarding whether the charged offenses themselves were eligible for extradition:The sixty charges contained in the London arrest warrant are ones enumerated within the Schedule associated with Article III of the extradition treaty appearing at 28 United States Treaties as being of an extraditable nature The charges contained in the London arrest warrant are offenses which are also considered unlawful in this jurisdiction and would subject an offender to a possible sentence in excess of one-year imprisonment.

Two concepts require that an explicit finding be made regarding the extraditability of each charge. First, under the "principle of dual criminality," no offense is extraditable unless it is criminal in both jurisdictions. See Collins v. Loisel, 259 U.S. 309, 312, 42 S. Ct. 469, 470, 66 L. Ed. 956 (1922); Wright v. Henkel, 190 U.S. 40, 58-63, 23 S. Ct. 781, 785-87, 47 L. Ed. 948 (1903). Compare Brauch v. Raiche, 618 F.2d 843, 847-51 (1st Cir. 1980) with Shapiro v. Ferrandina, 478 F.2d 894, 905-09 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S. Ct. 204, 38 L. Ed. 2d 133 (1973). This particular treaty expressly incorporates the dual criminality requirement and, moreover, specifies that the offense must be punishable by imprisonment for more than one year in each country and that it must be a felony under United States law.12 Second, the "principle of specialty" limits prosecution in the requesting country to those extraditable offenses established by the facts on which extradition has been granted by the asylum country. This principle is also expressly incorporated in the treaty.13 Under this principle, the inquiry does not end merely because the accused is found extraditable on one charge. A determination must be made as to whether each specific charge forms the basis for extradition, as the defendant may be prosecuted only on extraditable charges.

The district court's conclusory finding that extraditable offenses had been alleged in Charges 22 through 60 is insufficient especially where, as here, there is doubt regarding the government's legal theory that the alleged conduct is criminal. In a persuasively reasoned opinion, the Second Circuit has held that the principle of specialty mandates a careful culling of extraditable offenses from non-extraditable offenses. Shapiro v. Ferrandina, supra, 478 F.2d at 905-09. This Circuit has acknowledged the same requirement. Cucuzzella v. Keliikoa, 638 F.2d 105, 107 (9th Cir. 1981).

No such culling is evident here. Nothing in the record shows with any specificity that Caplan's alleged acts constitute crimes in England, nor that they constitute corresponding offenses in this country under the dual criminality requirement.

Had a more complete examination of these charges and their satisfaction of treaty requirements been made in the extradition court, we could review the determinations of extraditability as questions of law. The record in this case simply does not permit such review, however, because it contains nothing from which we can discern the extradition court's reasoning as to extraditability. We have before us a group of broad charges, a conclusory finding that all 60 of them satisfy the treaty, and voluminous "Findings of Fact"14 that purportedly supply cause to believe Caplan committed the offenses charged. The record is devoid of coherent legal connections between the factual allegations and extraditable offenses.

We cannot furnish those connections here. Arguments and findings relating to whether each charge satisfies the treaty requirements are part of the record that should be developed in the extradition court in the first instance, where the full adversary participation of counsel permits extensive inquiry into such questions.15 For us to attempt to cure such a substantial deficiency at this stage of the proceedings represents an inefficient and, in the absence of more active participation of counsel, error-prone application of the time and energy of an appellate court.

In our view, an adequate extradition proceeding must include in its record a specific delineation, as to each charge, of the legal theories under the requesting country's law by which the accused's conduct is alleged to constitute an extraditable offense, together with an identification of the corresponding offenses in this country relied on to show that the "dual criminality" requirement has been met.16 Because this proceeding lacks such a record, we are constrained to grant relief to Caplan. This is not to say, however, that a certification of extraditability on charges 22 through 60 should not eventually be made.17 We merely hold that a more complete examination of each charge must take place in connection with such a certification.

Caplan cannot be extradited on charge 1, charges 3 through 21, nor that part of charge 2 alleging a violation that did not continue past May 18, 1973. Caplan's extraditability on the latter part of charge 2, as well as on the remaining charges, has not been sufficiently established. We therefore remand this case to the district court with instructions to discharge the petitioner unless, within a reasonable time not to exceed 90 days, a judge or magistrate certifies his extraditability under 18 U.S.C. § 3184 in conformity with this opinion.18