Genevieve Ann-Marie Yapp v. Janet Reno, Attorney General of the United States of America

282-83, 106 (opinion S.Ct. at U.S. scrutiny analysis strict articulated in Croson. J.) Powell, (emphasis original).26 See Metro Dade’s gross evidence statistical Cincinnati, City Jansen v. 977 F.2d disparities population between the Hispan- (6th Cir.1992), cert. ics in Metro Dade and qualified the relevant -, 124 L.Ed.2d 254 pool, coupled labor Peightal’s with failure to (“ ‘although employment initial opportunities contrary adduce evidence, statistical satisfies coupled hiring goals may (cid:127)with burden some Croson’s compelling requirement. interest individuals, they innocent do not impose the Evidence that Metro Dade adequately con- type injuries same layoffs, intrusive implemented sidered and alternative reme- job result loss of expectancy, securi dies to relief, race-conscious taken in tandem ty, ”) seniority, and (quoting Long involve’ flexibility with the and limited duration of the City Saginaw, 1192, 1196-97 (6th Plan, our determination that the EEOC defi- Cir.1990)). The district court found that the applied by nition as Metro Dade was not Plan require layoffs did not pose did not over-or-under-inclusive, and our conclusion an absolute bar hiring of non-minori that the Plan did not unnecessarily burden Thus, disappointed ties. non-minority appli parties, third leads us to hold that the Plan cants under this Plan type shoulder a satisfies the narrow tailoring requirement diffuse burden similar approved to that mandated Croson. Accordingly, we AF- Wygant. Fullilove and FIRM judgment of the district court. Further, study conducted the Hu- AFFIRMED. man Services on Institute behalf Metro prior Dade suspicions confirmed firefighter

written test had an adverse im-

pact upon and that minorities the test was

not predictor a valid subsequent job per- Specifically,

formance. 85% of white males

taking the passed, examination compared Hispanic 23% males.27 Given the test’s unreliability and its impact adverse Genevieve YAPP, minorities, Ann-Marie say we cannot Peightal Petitioner-Appellant, should be entitled relief upon based rigid rank-ordering produced from such a flawed examination Metro Dade’s de- RENO, Attorney Janet General of parture from rankings placed these an undue the United America, States of upon onus Peightal. From foregoing, Respondent-Appellee. hold that the Plan did unduly not burden non-minority applicants. No. 92-4905. Having analyzed Metro Dade’s consider- United States Appeals, Court of implementation

ation and of alternative rem- Eleventh Circuit. edies, the relationship between remedy prior discrimination, and impact Aug. 3, 1994. upon the Plan parties, third we conclude that the Plan is narrowly tailored.

CONCLUSION

From the foregoing, we hold that Metro

Dade’s Plan prongs survives both Weber, 193, 208, In Steelworkers v. challenge, directly it is not to this (1979), 61 L.Ed.2d 480 case. approved Court challenged hiring program in part program because the did "unnecessarily passing 27. The 56%, rate for black males was trammel employees.” interest the white passing the female rate was 42%. Because Weber did equal protec- not involve an De- Public Federal Bryn, G. Asst.

Brenda FL, Miami, appellant. fender, for Office, Butler, Attorney’s Mary K. U.S. Hertz, Mullenhoff, Linda Collins M. Jeanne Miami, FL, appellee. for Attys., Asst. CARNES, Circuit COX Before Judge. *, Senior Circuit Judges, and WOOD COX, Judge: Circuit

Introduction is whether case issue principal the United provision time lapse of the Common- with States bars Bahamas of The wealth right to a a defendant’s when Amendment the Sixth under by Ba- violated Constitution the district hold that officials. hamian time lapse of correctly decided running of either refers of limitations applicable statute nation’s right to constitutional not to violations speedy trial. Background I. Ann-Marie Genevieve April

In air- after an The Bahamas arrested revealed allegedly inspection customs port in a brown powder grams cocaine over clothing. her under bag concealed paper permanent national a Jamaican Yapp, charged States, was of the United resident drugs, posses- dangerous exportation * designation. Wood, Jr., U.S. Cir- Senior Harlington Honorable Circuit, sitting by Judge the Seventh cuit dangerous drugs (the sion of with intent supply “1931 Treaty”). In Au- Dangerous Act, violation of the Drugs gust 1990,the United States complaint filed a Bah.ReV.Stat.Law, (1965), ch. 223 as amend- for Yapp’s extradition and a request- motion (1980) (Bah.) (current ed Act No. 1 version ing that a certification of her extraditability (1988)). Bah.Rev.Stat.Law, ch. 213 and commitment be forwarded to the Secre- day, next arraigned she in Magistrate’s was tary of in State accordance with 18 U.S.C. Court in and Nassau released on bond on the (1988) § 3184 and Article 8 of the 1931 Ex- condition that she return for July trial in Treaty. tradition A issued, warrant was and Yapp then traveled to the United Yapp was arraigned arrested and a days few States. later in the United States District Court for Yapp states that the Bahamian authorities Southern District of Florida. green confiscated her during card her arrest. At a hearing April the magistrate says She arraignment, that after her judge accepted parties’ stipulations and police did not green card, return the but found that purposes for the of 18 U.S.C. gave receipt her a green with her card num- there was sufficient evidence that: it, ber on promising her that she would be (1) there charges were pending against Yapp able to receipt use the to travel. Yapp also (2) Bahamas; Yapp was the person states that the Bahamian copied authorities (3) sought extradited; to be proba- there was her telephone number, work the telephone ble cause to believe Yapp that committed the number and address of girlfriend a crimes with which she charged was in The whom she staying Miami, and the Bahamas as named in the extradition com- sister, address her Jacqueline Yapp. (4) plaint; and the charged offenses were Yapp says that Miami, after returning to crimes for which the United States was re- spoke she with an official in the U.S. Immi- quired to seek pursuant extradition to Arti- gration Office and was told that she would cles and 5 of the 1931 Extradition to need resolve her case in The Bahamas magistrate judge also found Yapp before she could green recover her card. had charged within the Bahamian six- According Yapp, she airport went to the month statute of limitations. attempted and purchase a ticket to Nassau day before scheduled, her trial was but Yapp moved dismiss the extradition the airline would not green honor the card complaint (1) grounds that: right her receipt she given had been in The Bahamas. to speedy trial under the Sixth Amendment says Yapp she then lawyer called her in the to the United States Constitution had been Bahamas and was told that he attempt would violated authorities, Bahamian see Barker to obtain a continuance. Yapp insists that Wingo, 514, 530-33, 92 again she tried without fly success to 2192-93, (1972) 33 L.Ed.2d 101 (announcing Nassau on the day scheduled of her trial. weighed factors to be in determining a Yapp’s lawyer was able to obtain a speedy continu- violation); trial and Article 5 of ance until However, October 1986. Yapp the 1931 Extradition barred extradi- appear failed for trial in (a) October tion: applicable when the statute of limi- a warrant for her arrest was issued in The tation in country either run, (b) had when Bahamas. the defendant’s right constitutional to a speedy trial had been Yapp argued violated. II. Procedural History government’s Bahamian failure to In May government seek her The Baha- July 1986 until mas filed a request April formal 1988 and its green confiscation her card, under prevented force her from returning to between the United States Bahamas, and the Common- The violated her trial wealth The Bahamas. Extradition Treaty, rights. The opposed Yapp’s 22, 1931, Dec. U.S.-U.K., Stat. con- motion on grounds that United States tinued in Agreement, court could impose force the U.S. constitutional 7-Aug. 17, 1978, U.S.-Bah., 30 U.S.T. to a speedy upon courts, Bahamian failed to ground alternatively, had sonable guilty." to believe the accused violation. speedy trial (quoting to establish failed Id. at 828 Fernandez v. Phillips, 541, 542, Yapp’s mo- judge denied magistrate (1925)). Deciding case, complaint, 69 L.Ed. 970 however, dismiss tion to requires interpret extraditable, certified also us to her to be found to 18 U.S.C. extraditability pursuant her Treaty. Treaty interpreta argument Yapp’s Addressing § 3184. presents question law, subject 5 of the to de Howard, extradition, magistrate judge her barred novo review. In re Extradition of (1st Cir.1993); barred held that 996 F.2d had Merit, (9th Cir.), of limitations statute an when States v. alleged violations denied, , 244, apply did not run and cert. - U.S. 113S.Ct. 121 trial under speedy right a (1992). Determining a defendant’s L.Ed.2d 178 whether a the Because Constitution. right speedy the United defendant's to a trial has been to a right the judge held magistrate question fact; violated is a mixed of law and States Constitution trial the speedy findings we review the law de novo and courts the Bahamian imposed on not be could fact for clear error. United States v. Prem Treaty, he de- Extradition 1931 under 13, 749, ises Located at Route 754 had estab- Yapp whether to consider clined (11th Cir.1991); Wragge, United States v. (11th Cir.1990). trial violation. speedy a lished 893 F.2d 1296. 1298 n. 4 court for district petitioned then Yapp The district corpus. of habeas

a writ V.Discussion magis- adopted petition denied Henkel, 21 180 Neely v. U.S. In Recommendation, Report and judge’s trate (1901), Supreme 448 45 L.Ed. S.Ct. not trial is speedy right “the holding that said: Court proceedings, to extradition applicable not does in this case issue at a crime commits citizen an American When Yapp 1. R. 1-11 at require otherwise.” complain country, cannot he foreign in a court. district judgment of appeals of trial modes such to submit to required of that as the laws punishment and to such Appeal Issues on III. people, own for its may prescribe country Article 5 is whether issue threshold by for provided a different mode unless extradition bars country treaty stipulations between rights under speedy trial a defendant’s when States. and the United by violated been have Amendment the Sixth Thus, we have 21 at Id. at bar does If 5 officials. Bahamian tried in “[wjhen is a defendant held circumstances, under these only to is entitled country, he or she foreign Amend- Yapp’s Sixth whether issue is second accorded for protections procedural violat- has speedy trial been right to a ment Martin, F.2d at 830. We 993 eign law.” ed. refused, of con aas matter accordingly have Review law, recognize IV. Standards stitutional pro international trial in speedy v. year Martin noted last As we Amendment the Sixth either ceedings under Pen, Warden, F.2d 824 993 Atlanta the Fifth Process Due or the function Cir.1993), is an executive 829; also Sabatier see Id. at Amendment. magistrate aof corpus review and habeas Cir.1978) (1st Dabrowski, 869 F.2d extraditability is limit judge’s certification to extradi (Sixth not Amendment had magistrate deciding “whether toed Ferrandina, 536 Jhirad proceedings); tion charged the offense whether jurisdiction, Cir.) (same), (2d cert. n. 9 F.2d liberal and, by a somewhat within 97, L.Ed.2d any evidence extension, there whether was rea- there finding that warranting Conceding points, Yapp argues these Yapp’s argument that Article 5 of the 1931 that while the guarantee Sixth Amendment’s Treaty applies to a trial of a speedy may apply to interna violation foreign government, in addition tional proceedings by its own to running of a limitations, statute of force or through Clause, the Due Process presents question impression of first in this says Neely apply will “provided where country. The fact that the 1931 Extradition by treaty.” 21 S.Ct. at 307. Treaty remains in force with 30 nations Yapp points then to Article 5 of the 1931 around the world question makes this a Treaty, provides importance.2 some begin analysis our if, extradition shall place not take subse what asserts is “the reported quently to the commission of the crime or decision even being close to point here.” offence or the penal pros institution of the Appellant’s Br. at 11. ecution or thereon, the conviction exemp punishment or In reported the case as In re Extradition acquired by lapse time, according Mylonas, F.Supp. (N.D.Ala.1960), High laws of the Contracting Party the district court considered applying applied to. in the United 47 Stat. at States treaty extradition with Greece. Trea- 2124.1 argues that lapse of time ty Extradition, of 6,May 1931, U.S.-Greece, after “the institution penal prosecu- V, art. 2186, 47 Stat. 2190. The defendant tion” must speedy refer ato trial violation. argued that he exempt from prosecution Thus, she prohibits 5 .asserts “lapse due to of time or other lawful cause” extradition because Bahamian authorities vi- because he had deprived “been a prompt olated her speedy to a trial under the speedy and Mylonas, trial.” F.Supp. 187 at Sixth Amendment. 721. The district court decided that The district court “[m]any noted that civil lapse provision apply any “would law countries have statutes of limitations applicable limitations, statute of and should apply to the time within per- which a also be apply held to provisions to the for a begin son must serving a sentence” and de- speedy spelled trial as out in the Sixth cided it “likely that was language Amendment the Federal Constitu- treaty regarding lapse of time since the tion. ...” Id. at 721. considering After ‘institution of the prosecution’ refers to this case, defendant’s the district court was rather than to “of speedy trial.” R.l- opinion 9 at government 5. The the accused now not similarly ar- has been gues that speedy trial, Article 5 refers afforded a and running that extradition of either nation’s applicable should statute limita- denied on ground, be whether the tions, not to an alleged speedy trial violation. failure to act be said to fall within exemp- parties properly agree that the 1931 treaty provides Extra- new that the 1931 Extradition Treaty dition between United States and the Trealy applies any proceedings Kingdom in remains force between the pending when treaty the new into enters force. United States and the Commonwealth of The 1990 Treaty, 20(4), art. Treaty S. Tuttle, Bahamas. In re Extradition 20; Doc. S.Exec.Rep. No. see also No. 1992); Bowe, 1317 Cir. United States v. Cong., (1992). 102d 2d Sess. 13 App.Cas. 500, (P.C.1989) 1990 525-27 (appeal Bah.); taken from Legal see also Office of the 2. The remains in the Advisor, State, Dep't in Treaties Force 13 force between the United States the follow- and (1993). The signed United States has and rati- ing Bahamas, Barbados, 30 countries: The Bur- a new treaty Bahamas, fied with The (Myanmar), Cyprus, Gambia, ma Fiji, see Treaty, Gha- U.S.-Bah., na, Grenada, India, Guyana, Jamaica, S. (1991) Kenya, Cong., Doc. No. 102d 1st Sess. Lesotho, (the Malawi, Malta, Malaysia, Mauritius, Treaty”), "1990 Extradition but the Nauru, Pakistan, Nigeria, new yet Guinea, has Papua entered into force. New See Seychelles, Leone, Regarding Recent Actions Lanka, Singapore, Sierra Treaties to which the Sri Swaziland, Party, Tanzania, United States is a Tonga, 1598 & I.L.M. n. 6 Trinidad Toba- (1992); 20(1) (2), go, and Zambia. See 18 § U.S.C.A. 3181 note event, S. Doc. (West No. at 19. In (Treaties Supp.1994) Extradition). seemingly than better argument is Yapp’s time,’ due to whether or ‘lapse of due ” Kraiselburd, in Kamrin presented those Id. cause.’ lawful ‘other 5’s ref- however, it relies because however, Martin, express- year Last “institution of time after to a erence F.2d at 829 Mylonas. disapproved ly Such penal prosecution.” Mylo- that we misread Yapp submits 8.n. inter- appear amenable least would at Amend- holding that the Sixth nas to However, “in Yapp suggests. pretation applied speedy trial aof guarantee ment’s object of primary tradition States matter of cases as international to ‘ascertain interpretation is fact, says Yapp, the In law. constitutional ordinary mean- parties’; ‘the by the intended interpreting Mylonas was district agreement’ is a factor words of ing of the import treaty language account, prepara- as are into to be taken it and make guarantee (Third) of Restatement tory materials.” the hold- Whether parties. agreement of the United States Law Foreign Relations interpretation is construed ing Mylonas (1986) (quoting Re- reporter’s § note of a interpretation the Constitution (Second) Foreign Relations Law statement persuasive. not find treaty, we do (1965)). §§ States of the United argument an addressed Circuit The Ninth Kamrin v. United Yapp’s in analogous to Yapp’s position is heavily against Weighing (9th Cir.), cert. F.2d 1225 century, the term over a that for the fact 83 L.Ed.2d 32 commonly associat “lapse time” Kamrin, in the United (1984). In violation. of limitations a statute ed with Australia e; I cmt. See, § 476 e.g., Restatement right to “the defendants granted extradition Moore, on Extradition A Treatise B. John pro as are recourses remedies use such Rendition and Interstate requested State].” the by law of [the vided to refers the of the latest Restatement text 1974, 14, Extradition, May U.S.- Treaty on period of limita applicable “the expiration of 957, X, The defen Austl., 27 U.S.T. art. extradition; refusing ground tion” aas entitled him argued that this dant defendant’s it mention the does nowhere a right Due Process to Fifth Amendment to a speedy Restatement right a trial. to of time. Id. by passage unimpaired the trial 476(l)(d). materials preratification The rejected the defen 1227-28. court Treaty Extradition the 1990 accompanying rights claim, holding process that due dant’s explicit make likewise Bahamas with The extraterritorially and extended not be could in the new “lapse of time” term the of “application required treaty only of limi applicable statute treaty refers the limitations.” statute state’s requesting interpre tations, no with indication rejected a simi later at 1228. court Id.. change from represents tation and re- the “remedies argument under lar 17, Doc. No. Treaty. S. Extradition ex the United States provision of courses” (“Article the denial mandates at VII Argentina, treaty with tradition by the is barred prosecution 10, 21, 1972, U.S.-Arg., art. Extradition, Jan. Requesting statute 3511, 3501, that where holding 23 U.S.T. (“This 29, at 7 State-”); No. S.Exec.Rep. by the statute barred deny state requested requires that article limitations, and recourses” the “remedies statute requesting State’s if the to addi a defendant entitle provision did not the of- bars of limitation In re Ex protections. tional constitutional question.”).3 fense in 1395, 1398 Kraiselburd, 786 F.2d tradition of lapse Moreover, interpreting (9th Cir.), cert. ... institution “subsequently 93 L.Ed.2d according to the lapse time come barred Treaty been in force 3. Had extradition, Requesting State.” requested Yapp’s laws in Bahamas when The (empha- argu- at 6 S.Treaty No. appears have foreclosed Doc. that would it ment bars here. new added). makes sis prosecution has be- all "when penal prosecution” right Assarsson, invoke to a 687 F.2d speedy ultimately trial would (8th conflict with Cir.1982); 1161 n. 8 Powell v. United non-inquiry the rule of in international extra- (D.C.Cir.1965). 707 n. 5 Martin, dition cases. As we noted the Likewise, a statute of limitations is not tolled non-inquiry rule of “precludes extradition by an indictment that is dismissed for failure magistrates assessing investigative, prosecute. Peloquin, judicial, systems and penal foreign nations F.2d Cir.1987); 912-13 reviewing when request.” an extradition DiStefano, States v. F.Supp. 444-45 F.2d at 829. Determining whether a statute (S.D.N.Y.1972). requires limitations run a mathemati- Thus, “lapse hold that of time” cal usually calculation that can performed provision in Article 5 of the 1931 Extradition simply referring to the statuto- Treaty refers to running of a statute of ry provision. speedy A inquiry would limitations and not to a defendant’s Sixth require judge magistrate district judge, Amendment speedy to a Having trial. generally foreign unfamiliar with judicial sys- held, so we need not decide whether the problems tems and the and circumstances actions the Bahamian authorities violated them, facing to assess the reasonableness of Yapp’s right to a trial under the test foreign government’s actions in an informa- established in Wingo.4, note, Barker v. We tional vacuum. do not think parties We however, Yapp may argu- address her negotiated who the 1931 point ment on this Secretary State, would have abrogate intended to the rule of who exercises much broader discretion in non-inquiry stating without their intention to international extradition cases than do the do so explicitly. more Martin, federal courts. See 993 F.2d at 829. agree district Arti- Additionally, the courts of The Bahamas cle 5’s reference to a of time after “the might afford Yapp pre- another forum for institution of penal prosecution” is meant senting a argument similar under the Baha- simply clarify that a statute of limitations mian constitution.5 run, can circumstances, certain even after proceedings criminal begun. Conclusion have As the noted, district court civil law countries often stated, For the judgment reasons have statutes of limitations applying to the the district court is AFFIRMED. time in person a begin which must serving his sentence. See 4 Michael Abbell & Bruno CARNES, Circuit Judge, dissenting: Ristau, A. International Judicial Assistance 13-2-4(18), § opinion, at The 96 n. 3 in the course of in- Including terpreting treaty such a issue, treaty language a two has between improved common might unusual, countries it. I law describe majority’s seem modi- but arrest, under United States law an of which fication the 1931 as an qualify could as “improvement” “the penal institution of because contracting prosecution” purposes for the obviously of Article states view it such. That much does not toll the statute of limitations. In re is from negotiation clear their recent 4. We need not address the submitted declaration 5. The Constitution of the Commonwealth of The argument by Department provides after oral of Bahamas right State. criminal defendants with a Harris, hearing Declaration to "a fair Dep’t of Robert K. within a reasonable of Const, Ill, § time.” Bah. 1994). Privy ch. (May State Decl. The No. 9408327-1 interpreted has language Council identical in the purports represent Declaration Depart- require analysis Jamaican constitution to an legal interpretation ment's of the Wingo. criteria articulated in Barker v. See 1931 Extradition While the Declaration Prosecutions, Bell v. Director App. Pub. supports holding, our presented it was not to the (P.C.) Jam.) Cas. (appeal 951-53 taken from district part court below and is not a of the (acknowledging desirability applying Record question case. this whether such constitution, Wingo Barker criteria "to "supplemental Declaration constitutes authori- unwritten, protects or written which an accused ty” may which be submitted at such late date oppression by delay proceed- from in criminal pursuant Fed.R.App.P. 28(j). ings"). omitted). (internal (1991) marks How- quote treaty, not of a new adoption ever, inappropriate for a case, particularly “it is to this retroactively applicable from the clear a deviation court to sanction in re- revisions similar incorporates textual this Na- between import of solemn majority opinion effects that the to those sult ... there foreign sovereign, when and a tion original interpretation through its words application of the no indication that is to alter Contracting are free treaty. states treaty according to their obvious of the they any way language in or amend with the reason, effects result inconsistent I not. For are fit. Courts see signatories.” of its expectations or intent dissent. States, v. United Maximov (1963); TEXT 10 L.Ed.2d 184 THE I. TREATY’S 83 S.Ct. Foreign Re- see also Restatement 5 of 325(1) (1986) (“An internation- Law lations provides: interpreted good to be agreement al if, place shall not take The extradition ordinary mean- with the in accordance faith of the the commission subsequently to context given to its terms in their ing to be or the institution or crime offence (Em- light object purpose.” and in of its there- or the conviction prosecution penal added.)). phasis punish- on, prosecution or exemption from time, “lapse majority says phrase acquired by been ment treaties, has, High Con- time” in other of the according to laws “commonly a statute to. associated with Party applying applied or tracting Maj. op. at 1567. limitations violation.” Extradition, U.S.- Dec. Treaty on interpreting we are not is true. But That (“1931 U.K., 47 Stat. are inter- phrase “lapse of time.” We added). face, Ar- its Treaty”) (emphasis On modi- phrase “lapse of time” as preting the where, under prohibits ticle “subsequently ... phrase law, “exemption fied or Bahamian penal prosecution.” of the institution has been punishment or prosecution case, treatise, au- or majority points to no (1) subsequent to: by lapse of time” acquired thority any kind “associates” offence”; or or the crime commission of “the with, restricts much less language distinctive (2) penal prosecution”; of the “the institution to, limitation. statutes of Speedy conviction thereon.” The “the Constitu- United States Trial Article 5’s distinctive —“subse that, in of the United States is a “law” penal ... the institution quently circumstances, due bars some for a was included prosecution” presumably “the institution of time” after “lapse statutes, Treaties, should be like reason. See, e.g., Doggett v. prosecution.” penal treated as no words are so that construed — U.S.-,-, redundant, or mere sur- being meaningless, (1992). Thus, 2686, 2689, 520 120 L.Ed.2d Hud Int’l v. E.g., Containers plusage. Itel — natural given its 1095, text U.S.-,-, dleston, 113 S.Ct. incorporate Constitu- meaning, would (1993) (refusing to 1100, 122 L.Ed.2d protections. speedy trial way tion’s in a convention an international read super of its some construing a would make treaty, construing as “In Pet.) (2 Neilson, fluous); 27 U.S. Foster v. statute, to deter- to its terms we first look (Marshall, 310-11, 253, 7 L.Ed. v. Alva- meaning.” United States its mine (“But C.J.) these words insertion of rez-Machain, U.S.-,-, 112 S.Ct. of the arti materially the construction affects When a 2188, 2193, 119 L.Ed.2d surplusage. rejected They cannot ambiguous or is cle. particular cannot meaning.... We They plain have a beyond the written difficult, may look “we carelessly unad or say they were inserted negotiation history of to consider words” according understand them visedly, and must intent. parties’ other evidence Washing import.”); Cross 530, their obvious 534- Floyd, 499 to Airlines v. Eastern Cir.1990) (noting ton, 1489, 1493, 113 L.Ed.2d that treaties should not be lapses construed so as to 5’s Article reference to of time that meaningless), render clause inconsistent or penal occur after “the institution of pros- rt. 499 U.S. clarify S.Ct. ecution” was added to that a statute of ce (1991); 113 L.Ed.2d may United continue to run after arrest or cf. Menasche, 528, 538-39, States 75 after the dismissal an indictment for fail- (1955) (“The prosecute. Maj. 99 L.Ed. 615 op. ure to at 1568. The principle statutory cardinal construction is therefore concludes that Article 5’s destroy. duty to save and not to It lapse provisions is our to three of them— —all effect, give if possible, every to applications clause and refer to various of statutes of word of a statute rather than to emasculate limitation. section, an entire as the Government’s inter However, if Article 5 had been intended (Citations

pretation requires.” and internal limitation, refer statutes of it would omitted.)). quote marks have least eleven words shorter. It would have read: suggested The district court that Article specific lapses 5’s reference of time that if, place extradition shall not take occur after the penal prose- institution of the subsequently to the commission of the cution clarify was offence, added Article 5 exemption crime or prosecu- from incorporates civil law punishment countries’ statutes of tion or acquired by has been limitation, time, which unlike the statutes of limita- according to the laws of the tion of common law High countries such as the Contracting Party applying ap- or United States Kingdom, plied and the United re- to. strict the time in which person begin must Such a truncated version of Article 5 would serving his sentence. The district court’s every possible have covered statute of limita- hypothesis unpersuasive. The 1931 Extra- scenario, posited including two dition adopted by common two majority. A statute limitation that countries, law the United and the applies after arrest or after dismissal of an Kingdom. See 1931 Extradition indictment prosecute for failure certainly gained When The Bahamas its inde- “exemption accords pun- from or pendence from Kingdom, the United “lapse ishment” due to “subsequent- of time” Treaty was continued in force an ex- ly to the commission of the crime or offence.” change of notes between the United States Thus, contrary majority’s suggestion, and The Agreement Bahamas. See for the drafters 5 did not need to Application Continued to the Bahamas of the specifically “clarify that a statute of limita- Kingdom States-United Treaty of run, circumstances, tions can in certain even December 7-Aug. after criminal proceedings begun.” have

U.S.-Bah., T.I.A.S. No. 9185. CM law stat- Maj. op. at 1568. That would have been utes of limitation exist in neither the United clear under version of Article 5 that did not States nor Kingdom, the United so such stat- incorporate exemptions “prosecution why utes cannot explain those nations two punishment” acquired after “the institution negotiated treaty specific that makes refer- penal prosecution.”1 lapses ence to of time that occur after the However, the actual is not so short. penal institution of proceedings. lapses refers to of time that occur Recognizing this weakness in crime, the district after commission of lapses analysis, majority court’s the offers its own time that occur penal after the institution of theory. According majority opinion, to the proceedings, lapses of time that occur Treaty 1. The 1990 protections between the Unit- the seeking of the nation extradition. ed States and The Bahamas is even shorter than treaty provides: The new "Extradition shall not text, the “short” version I have set out in the but granted prosecution when all has become accomplishes puipose. the same The 1990 by lapse according barred of time to the in laws Treaty contains no lapses reference to of time Requesting the State.” See Extradition penal prosecu- that occur after the institution of 9, 1990, U.S.-Bah., 6, S.Treaty Doc. addition, tion or after conviction. In the new (1991). Cong., No. 102d Sess. 1st treaty's lapse only of time incorporates treaty extradition at is- and The U.S.-Australian explicitly The conviction. after no reference to in Kamrin contained types of sue three different clearly incorporates commonly time “the institution of the lapses of after type, one provisions: lapse of time unsurprising limitation,” it is that penal prosecution,” that so of “statutes to as referred ques- but Kamrin court never considered of the crime after commission applies treaty incorporated that penal proceedings; tion of whether of institution before protections. In that Speedy Speedy Trial Clause Trial type, as such second ease, only sought after the insti- extradition from the applies Australia protections, that type and a third of penal proceedings; of a citizen accused tution of States U.S. treaty lan- conviction. in The relevant applies after Australia. that crimes “ ‘when the prohibited extradition guage interpretation of Article- majority’s The the offense has become prosecution particular lan- explain the only fails to not according by lapse time laws barred in this case—the reference at issue guage (em- requesting state.’” Id. at acquired after exemptions from original) (quoting the in U.S.- phasis added also penal prosecution” of the “institution —it treaty). The Kamrin Australian lapses to time 5’s reference ignores Article that, face, treaty did not held on its ... “subsequently to conviction.” that occur apply the statute of limitation purport only refers majority that Article 5 insists The state, limita- so the American requested limitation, the Unit- but neither to statutes Citing a inapplicable. Id. period was (nor Kingdom The nor the United ed States defen- provided that clause Bahamas) limitation to applies statutes “ reme- have the to use such ‘shall dant not Although need delay. post-conviction ” provided by’ as are and recourses dies means, it must language what decide this requested, which extradition was state something is clear- something, and that mean argued that the U.S.-Australian also Kamrin The words of limitation.2 ly not statutes treaty incorporated United States enough to in- only broad 5 are not timely rights to a trial. Id. process due they periods, non-statutory limitation clude (quoting the U.S.-Australian include not to them. are too broad to read treaty). The Ninth Circuit refused and re- vague and general “remedies II. SOURCES EXTRINSIC incorporating United courses” at 1228. process protections. Id. due upon extrinsic opinion relies majority interpretation of the The Kamrin court’s interpretation of the justify its sources inappo- U.S.-Australian However, extrinsic none Treaty. far analysis of the different to our site majority opinion turns to which sources of the 1931 U.S.- specific guarantees more Treaty— suggest that the majority itself theAs Bahamian ease—incor- only treaty applicable this admits, Maj. op. at periods. statutory only porates ais 5 of the 1931 Circuit points to a Ninth majority first country. impression of first question wholly different ex interpreted a case it. not decide did Kamrin treaty, v. United Kamrin tradition support next seeks (9th Cir.), opinion cert. 725 F.2d 1225 Foreign Rela- Restatement 85 L.Ed.2d (2d "respect” Cir.1984) (noting is “al- language may n. 5 refer to post-conviction 2. This Lords”). process,” House of ways a doctrine "abuse of due to a decision British doctrine ways Speedy Clause. course, post-con- our Trial Treaty's similar some reference to Of Prison ex Regina v. Governor Pentonville See the "abuse delay to refer to was intended viction Sinclair, App.Cas. All E.R. 366 parte doctrine, also process” that fact would (H.L.1991) (suggesting 5 of the 1931 that Article lapses separate explain Treaty’s reference incorporates British occurring the institution after doctrine, bar a process” could "abuse of can prosecution, a reference I believe penal years waiting to extradite signatory by Speedy governed lapses time refer to ip absentia). generally Den person See convicted Trial Clause. Airlines, F.2d World Seaboard Law, noting treaty provides tions that the Restatement’s dis- The new that “[extradi- granted prosecu- cussion of extradition treaties makes no ref- tion shall not be when all Speedy protections. Trial by lapse erence to tion has become barred course, the Restatement also no according Requesting Of makes the laws in treaty particular are reference State.” See Extradition charged interpreting, any U.S.-Bah., S.Treaty other Doc. No. (1991). treaty Thus, Cong., that contains similar lan- nego- 102d 1st Sess. in that, guage. says tiating drafting treaty, What the Restatement is the new the con- agreements most international ...: tracting post- “[u]nder deleted states reference to person sought prosecution A for or for post-conviction lapses enforcement of a sentence will not be extra- time. This modification is consistent with (d) applicable period dited ... if the of limi- contracting incorporate states’ intent to expired.” tation only statutory periods Restatement limitations in new Foreign treaty, Relations Law 476 Given expressed pre-ratification an intent reported interpreted that no decision has relating treaty. materials to the new This 5,1 treaty language similar to that of Article directly modification also bears on the mean- persuaded treaty language am not ing this treaty. of the found in the 1931 typical agreements.” is of “most international prior language simply If the meant “statutes Indeed, commentary limitation,” Restatement’s opinion as the con- tends, discussing makes clear that it is not then the drafters of the new says: we have before us. It prior would have had no reason to delete that language. prior language Yet the was delet- purposes applying For statutes of lim- ed, probably treaty’s to insure that the new requests itation to for accor- lapse of incorporate only time clause would (l)(d), dance with Subsection the [limita- statutes of limitation. change Such a is with- period generally tions] calculated from power contracting parties, but it alleged the time of the commission of the is not prerogatives within the of this Court. warrant, arrest, offense to the time of the apply We must the relevant 1931 Extradition indictment, step request- or similar in the written, Treaty language actually as it was ing state.... change before the non-retroactive was made Id., emt. Treaty, by e. The 1931 Extradition treaty. in the 1990 contrast, calls for calculation of three differ- majority opinion finally claims that its applicable periods: period ent after com- interpretation of the 1931 offense, is neces- period mission of the after insti- sary to avoid conflict with the “rule of non- penal proceedings, tution of period and the inquiry.” Maj. op. origi- at 1567. That rule Thus, after conviction. at issue in Henkel, Neely nated in case something this envisions different— (1901), 45 L.Ed. 448 which stated: something more—than the run-of-the-mill treaty language discussed the Restate- anWhen American citizen commits a crime majority’s theory ment. The does not ac- foreign country in a complain he cannot count periods for the differences in the three required to submit to such modes of trial specified in punishment and to such as the laws of that country may prescribe people, for its own majority opinion also claims to find provided unless a mode be different support position for pre-ratification for its in the treaty stipulations country between that accompanying materials newly-negotiated and the United States. between the United added). The Bahamas. materials (emphasis Such Id. at 21 S.Ct. at 307 probative are not majority opinion ignores intentions of the The the italicized treaty, drafters of a 1931 and the 1990 language language poses, mate- rather than purport answers, rials do not even question to reflect such of whether the 1931 supporting majori- intentions. Instead of Treaty provides Speedy Trial ty’s theory treaty, about the 1931 protections. the 1990 Clause non-inquiry doc- actually theory. actions contradict that trine’s rationale is that United States citizens abroad should not crimes commit who proce- MENDENHALL and CMI impose American Robert L. unilaterally to

able See, Corporation, Plaintiffs- sovereigns. foreign protections on dural Appellants, Burt, 1485 n. F.2d In re e.g., Cir.1984). However, does rationale Ba- that The Yapp’s contention not address COMPANY, BARBER-GREENE through agreed, voluntarily hamas Defendant/Cross-Appellant. trials provide speedy to MENDENHALL and CMI Robert from C. persons whom it wished extradite Corporation, Plaintiffs- Court, in Supreme the United States. Appellees, trea- acknowledged that a Neely, specifically sovereign foreign to accord ty may obligate a persons procedural protections to American INDUSTRIES, INC., ASTEC majority nation. The from extradited Defendant-Appellant. much, recognizes as for it concedes opinion 91-1109, 91-1131, 91- Nos. stat- Treaty applies United 92-1244. against The Bahamas utes of Appeals, United States Court course, a nation cases. Of Federal Circuit. voluntarily application submitted has may statutory requirements United States 8, 1994. June agree to United States consti- likewise follow Rehearing As Corrected Grant did requirements. Bahamas tutional Sept. here.3 at issue precisely that

III. CONCLUSION 5 of the 1931 apply

I would written, of its giving effect to each

as it was incorporates Article 5

clauses. Because I re- protections, Trial would

Speedy holding contrary court’s

verse the district in order for that court

and remand the case Yapp’s speedy trial

to determine whether in this

rights were violated case. notes, penal proceedings after convic Depart- institution majority opinion the U.S. 3. As Instead, stating reasoning specif a declaration State has and without ment of submitted tion. here, interprets Department Article 5 that the treaty language the De at issue ic incorporate only stat- Treaty's extradition partment contends limitation. The chosen utes of incorporates statutes of limitation. bar untimely Department’s submis- to consider sion. submission, treaty's] ... as [a "read should not However, even if we were to consider signifi compelling, so encompassing, much less unpersuasive. The I find it would use.” Maxi normal word cant a deviation completely ignores the Department's declaration mov v. United Treaty’s specific and unusual 10 L.Ed.2d lapses that occur after reference

Case Details

Case Name: Genevieve Ann-Marie Yapp v. Janet Reno, Attorney General of the United States of America

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 3, 1994

Citation: 26 F.3d 1562

Docket Number: 92-4905

Court Abbreviation: 11th Cir.