In Re Extradition of Curtis Andrew Howard. United States of America v. Curtis Andrew Howard

1320 delivered);

cargo Helly never Nippon er v. Kaisya, F.Supp. Yesen 130 210-11 In re EXTRADITION OF Curtis (S.D.N.Y.1955) (same); Corp. Rockwell Int’l Andrew HOWARD. Spirit, F.Supp. v. Incotmns 707 M/V America, UNITED STATES of (limitation (S.D.Tex.1989) valid where Petitioner, Appellee, warehouse); Neal, damage occurred in F.Supp. (suggesting at 1149 & n. 3 limitation misconduct); valid even in case willful HOWARD, Respondent, Curtis Andrew Emery Freight Corp., Air Schiff Appellant. (D.Mass.1971) (distin F.Supp. No. 92-1633. guishing uphold Philco to limitation where no shown); wrong intentional Rocky Ford cf. United States Appeals, Court of Vans, States, Moving Inc. v. United First Circuit. (8th Cir.1974) (refusing apply 3,May Heard law). deviation doctrine outside maritime Decided June rulings apply These though federal even serious, (as negligence here was these show) cases special the absence of some

indication, impute courts will not to commer- limitation) parties (agreeing

cial liability to a litigate degree intent to to which loss-

causing negligence ordinary, gross, was

egregious. We add that we have found a dicta, suggests,

case that that the willful

nature of might misconduct máke differ- Lines, Inc., ence. v. Howard Van Glickfeld (9th Cir.1954); Schiff, cf. But, F.Supp. at 1059. we need not de-

cide whether or not agree with that dicta

for, case, in this there showing is no

willfulness. reasons,

For these the district court’s de- liability

termination that the limitation was

inapplicable in this case is reversed. The

judgment is vacated and the case is remand- ed for proceedings further consistent with (Our opinion. disposition of the case unnecessary

makes it to consider Hill’s cross-

appeal.)

So ordered.

1323 Denner,

Jeffrey George A. with whom Gar- Perkins, finkle and Smith & Cohen were on brief, appellant. for Wild, Atty., Victor A. Asst. U.S. with Pappalardo, Atty., A. was whom John brief, appellee. for on SELYA, Judge, Before Circuit CAMPBELL, Judge, Senior Circuit and CYR, Judge. Circuit SELYA, Judge. Circuit appeal presents This several issues first and, generally impression in extradition law regarding specifically, more a rather distinc- treaty in tive extradition force between Kingdom of United States and the United (U.K.). and Ireland Great Britain Northern (1) whether, determine, alia, inter We must treaty, the second of two succes- under the of extradita- appeals from a certification sive (2) so, jurisdiction; if what bility our is within (3) governs appeals; of-review such standard treaty the venerable rule whether the alters (4) so, if to what extent. noninquiry; other, these, mat- grappling with After ters, eventually the merits of the address that the determination appeal and conclude extraditability must stand.

I. BACKGROUND appeal sown on of this were The seeds 1, 1991, discovered policeman when June Elizabeth body of Catherine the mutilated female, in the trunk of Ayling, young white England’s at Gatwick car abandoned a rental immediately on centered Airport. Suspicion How- Andrew respondent-appellant Curtis Charges ard, citizen. were a United States Howard had returned preferred. Because land, sought to British authorities his native the United him. On June extradite Massachu- Attorney the District of for requested setts and received from a federal extradition from territory per- one nation’s magistrate judge a for sons accused or warrant Howard’s convicted of certain offenses provisional § committed the other nation. arrest. See 18 U.S.C. See Extradi- &, (1988 8, 1972, U.S.-U.K., I, 1990);' Treaty, tion June art. Supp. D.Mass.Loc.Mag.R. II 1(e). (Treaty). 28 U.S.T. Under apprehended. ap- Howard was He Treaty, murder anwas extraditable offense. peared hearing an extradition before III(l). Nonetheless, See id. art. magistrate judge September on signatory allowed to refuse if it hearing dispute At the Howard did not regarded political the offense “as one of a probable existence of cause to believe he had V(c)(i). exception character.” Id. art. This Rather, Howard, Ayling. murdered who is sired friction between the two traditional al- black, argued prejudiced that he would be judges lies when federal the United States during legal proceedings in the U.K. rea- began interpreting it to bar extradition of nationality, son of his race and a circum- Republican members of the Provisional Irish which, true, stance 'a constituted defense to Army. 2; S.Exee.Rep. See treaty. extradition under the relevant 16,558-86 (1986) (col- see also 132 Extradition June cases). lecting 1985, U.S.-U.K., 3(a), reprinted situation, To signato ameliorate this S.Exee.Rep. Cong., No. 99th 2d Sess. 15- negotiated treaty ries (1986) amendments aimed at (Supplementary Treaty). 17 sup- In eradicating political exception offense for defense, port proffered of this Howard evi- 8, S.Treaty acts of violence. See Doc. No. flamboyant publicity dence surrounding (1985) Cong., (Proposed 99th 1st Sup Sess. case, sought his to show that Britons would plementary Treaty); S.Exee.Rep. see also likely prejudiced against particu- be blacks — 17, However, supra, No. at 2. when Presi larly murdering young those accused of white Reagan dent Proposed Supple submitted the pointed England’s females —and out that le- mentary Treaty Senate, seeking to the its gal system any provision not does make consent, advice and the document received jurors. prospective prof- voir dire of These mixed reviews. See United States and Unit sufficiently impress magis- fers did not Kingdom ed. Supplementary Extradition trate: ruled that had he Howard not estab- Treaty: Hearings the Senate Comm. lished valid defense to extradition and Before Relations, Foreign on Cong., 99th 1st Sess. thereupon issued a certification of extradita- (1985). Following many months strident bility, together with an order commit- debate, opposing camps reached a com § ment.1 See 18 U.S.C. promise, placing beyond most violent crimes appealed. Howard The district court exer political exception’s offense reach but jurisdiction, magistrate’s cised reviewed the adding safeguards certain novel pro- for the error, findings for clear and affirmed. See potential tection of extraditees. See S.Exec. Howard, (D.Mass.1992). F.Supp. In re 791 31 17, Rep. 17,1986, July at 4-5. On appeals Howard anew. proposed treaty Senate ratified the sub- ject these, other, to the addition of and II. THE SUPPLEMENTARY TREATY 16,819 amendments. 132 Supplementary Treaty Because the de- (1986). Following approval of the modified parts accepted protocol, extradition Commons, version the House of instru- origins spotlight key provi- trace its and its exchanged of ratification were ments on De- sions. 23, Supplementary cember 1986. See Trea- In the United ty, supra, reprinted 2053; States and the U.K. at Hein’s No. KAV negotiated governing reciprocal al, new terms see also I.I. Kavass et Extradition: Laws person The prereq- charged person found that all the basic is the same whom the uisites to extradited; extradition had been fulfilled in that the government wants an arrest warrant parties United States and the U.K. are outstanding; probable is cause exists to be- treaty; charge pending extradition against a criminal is lieve that Howard committed the crime. None U.K.; charged in the Howard offense findings appeal. of these are contested on treaty; extraditable crime under the

1325 (1979 “any exercising part of the proceeding is not Supp.1989). & 920.20d-h and Treaties In judicial power States.” re United Supplementary point, At (14 How.) 103, 120, Kaine, 14 L.Ed. into force. went (1852). Rather, the officer acts a non- Senate-forged compro- aspect An “special capacity virtue of institutional case. As core of the instant mise lies at the How.) (5 authority.” Metzger, re Treaty prohibits ratified, Supplementary (1847); 176,191,12 Shapi -L.Ed. 104 see also sought establishes person “if the (2d Ferrandina, n. ro v. ... by preponderance ... of evidence Cir.) principle current stat (applying same would, surrendered, prejudiced his if he dismissed, 414 U.S. utory provision), cert. or restricted punished, or detained trial L.Ed.2d 133 race, liberty by reason of his personal his (same); Mackin, 668 F.2d at 125-30 Jimenez opinions.” nationality, political religion, (5th Aristeguieta, 290 F.2d Cir. Appellant’s art. Supplementary 1961) (same). are to The officer’s tasks proviso. squarely upon this case rests whether an individual is extradita determine ble, so, extraditability certify III. APPELLATE JURISDICTION (the Secretary of ultimate decisionmaker Treaty stipu (1988 State). §§ & See 18 U.S.C. findings regard to trier’s with lates that the 1990). Supp. II ap “immediately are an article defense In, light arrange-. of this curious party pealable by either to the United ment, that 28 numerous courts have held court, appro appeals, as or court of district permits appeals § “fi U.S.C. 3(b). question The initial priate.” Id. (emphasis nal decisions of the district courts” attention concerns that commands our contemplate appeals from supplied), does not jurisdiction provi under this extent of our judicial sitting in extradi decisions of officers argument, at oral raised this issue sion. We See, e.g., Wigen, v. 910 tion matters. Ahmad it harbors doubts about as a court must when (2d Cir.1990); 1063, 1065 Quinn v. Rob F.2d jurisdic subject of its matter the existence (9th inson, 776, Cir.), n. 3 cert. 783 786 tion, Corp., 859 F.2d In re Recticel Foam see denied, 882, 271, 479 107 S.Ct. 93 U.S. Cir.1988) (1st 1000, 1002 (emphasizing that “a (1986). 247 the absence of L.Ed.2d Given sponte obligation inquire sua court has an jurisdic statutory on which other hook jurisdiction”), subject and di into its matter appeals hung, puta can be a tion over such supplemental parties to furnish rected the challenge customarily can an extraditee tive briefs.2 only by at order for extradition collateral tack, corpus. typically through habeas See A. Practice. Past 364, 369, Miller, 40 v. 252 U.S. S.Ct. Collins party an ex Ordinarily 349, (1920); neither 347, 64 616 Koskotas v. L.Ed. (1st Cir.1991). may challenge Roche, 169, a decision proceeding By tradition 171 931 F.2d token, appeal. This dis in government, therein direct it fails rendered the same attempt, appeal, ability developed because the relevant stat cannot but extradition Mackin, 3184, ute, F.2d at contemplate § must file anew. See does not 18 U.S.C. Klein, 1360, 128; 573 F.2d 1364-68 qua Hooker v. hearings by States courts United United (9th denied, Cir.), 932, Mackin, cert. 439 U.S. 99 S.Ct. courts, In re see States Cir.1981) see also (2d 58 L.Ed.2d 327 Collins (collecting authori 125-30 Loisel, 618, 619, v. 262 U.S. S.Ct. history pro tracing of extradition ties and (1923). 67 L.Ed. but, instead, ceedings), that extradi directs “any justice heard or tion matters be 3(b). B. Article States,” any authorized judge of the United judges. Supplementary Appellant argues certain state There that the magistrate, or praxis insofar as fore, presides revolutionizes who over such an officer Guinee, is, course, Compagnie parties Corp. des Bauxites de cannot con- Ir. It settled that 2099, 2104, 694, 702, subject jurisdiction 456 U.S. 102 S.Ct. on a federal court fer matter agreement. by acquiescence Insurance L.Ed.2d 492 or target cogni- Appellate eral or Civil asserts defenses Rules Procedure extradition Procedure, government appropriate, govern The zable as shall inverse, imploring that argues Supplementary Treaty, neither appeals process.” 3(b). And, nor the Senate intended to history President again, legislative art. abrupt tergiversation. agree We work so point, indicating that the dis- reinforces the Supplementary appellant with that the Trea- puted provision “is not intended to make the Const, law, ty, which has the force generally applicable Federal rules to the ex- VI, change art. cl. effects sea estab- itself, hearing only appeal to the tradition but policy. lished 3(a).” decision under S.Exee. short, Rep. at 8. In the text Treaty provides Supplementary 3(b), whole, suggests not of article taken as finding that a anent a so-called article appeal represents that an thereunder race, defense, involving religion, nationality, entry into the federal courts but also political opinion, immediately or “shall be proceedings involving article 3 appealable by party to the either United involving only differ kind from those court, appeals, or court of States district § U.S.C. appropriate.” Supplementary art. 3(b). appeal provision, apparent This rule, therefore, Supplementa- We that the (failed) ly genesis finds its in an earlier at ry Treaty marks a clean break from the tempt protocol prohibiting to alter the direct prohibition appeals ancient on direct in extra- matters, appeals Cong. in extradition see 132 matters; implicated, dition where article 3 is 16,599 (1986), plain Rec. is couched in lan Supplementary Treaty contemplates and, view, guage precisely our means what appeal right. least one as of In re Accord America, says. Shoji it See Sumitomo Inc. McMullen, (2d Cir.1993) 176, 180, Avagliano, (en banc). Moreover, Supple- because the (1982) 2374, 2377, (explaining 72 L.Ed.2d 765 mentary Treaty explicitly identifies United treaty’s language given that a literal must be courts, judges justices, not as the patently contrary effect unless signato- appellate authority, see Trea- expectations). ries’ intentions and In craft- 3(b), ty, gate it unlocks the which has ing appeal provision, the drafters careful- historically barred extradition matters ly hearings drew a distinction between held proceeding through further the federal § appeals under 18 U.S.C. 3184 and taken to courts in the same manner as other cases. judicial power courts cloaked with the former, discussing In United States. the the Appeals. C. Successive competent judicial document refers to “the jurisdictional odyssey yet Our is not authority” who is the “[i]n United States.” 3(b) Noting provides ended. that article 3(b); Supplementary Treaty, art. see also id. appeals ap to the district court or court of 2, contrast, By arts. in discussing ap- peals, government the asserted below that peals, treaty the refers to United States disjunctive language parties this restricts the 3(b). by courts name. See id. art. The same apple to one bite of the and rules out sucees-' legislative distinction history. recurs the (such appeals sive essays). as Howard See, 17, e.g., S.Exec.Rep. No. at 8. court, however, government this báek- datum, for, significant That ais if the lan- tracks, that, appearing to concede notwith guage treaty ambiguous, of a is at all courts standing appeal, Howard’s earlier we have may legislative history look to interpreting jurisdiction But, appeal. over this since this provisions virtually its the same rules point implicates appellate jurisdiction and is interpret that obtain when courts statutes. non-frivolous, J., post (Campbell, see concur Laubenheimer, 276, See Factor v. 290 U.S. ring), liberty we simply accept are not at to 294-95, 191, 196, 54 S.Ct. 78 L.Ed. 315 government’s supra concession. See proceed ponder note 2. point. We to interpretive other straws in the The wind bend in 3(b) the same direction. Sup language We think the of article plementary Treaty stipulates that the “Fed- dictates a construction antithetic to that here, appellate juris- path urged below. Be- was followed government Treaty diction attaches. Supplementary cause contem- proceed- initiation of plates the magis- judge or a a district

ings either before IV. STANDARD OF REVIEW 17, supra, S.Exec.Rep. No. judge, trate see jurisdictional Having cleared the 3(b) 5, 6, 8, prudently provides for at hurdle, appellant’s turn next to assevera court, or court of by the “district review employed faulty tion that the district court words, In other appropriate.” appeals, as presents standard of review. Because not as an disjunctive “or” is to be read legal question, requiring interpre purely understated, unusual, on the restriction but Supplementary Treaty, our re tation of the rather, speci- appeals; the term number of See, plenary. e.g., view is United States appeals ordinary sequence of fies that (9th Cir.1992), Washington, supported apply. This conclusion should — denied, -, U.S. 113 S.Ct. cert. 3(b) “ap- to the by in article the reference (1993); Quinn, L.Ed.2d 651 legislative peals process,” as well Rep. supra, at history. S.Exec. Governing Principles A. Review. Not not cart coal Newcastle. willWe concerning article de- Determinations solitary phrase in word or so much as even immediately appealable fenses “shall be an in intimates instrumentality through party” either appeals it is prohibit successive tent —and “filing appeal.” Supplementary .a notice treaty’s to rewrite not the courts’ business 3(b). But, though this article 3(b) that article Accordingly, we hold text.3 grants rights appeal, it does not mention see, e.g., United appeals, permits successive look, therefore, to review. We standards of Fossan, F.2d 637-38 States v. Van principles. first (7th Cir.1990) that, (holding in the absence prohibiting successive provision express specific statutory directive Absent a statute, misdemeanor appeals, the criminal contrary, appeals in the federal court them); (1988),' permits § 3402 18 U.S.C. along degree- usually arrayed system are Forcellati, United States continuum, stretching ple of-deference Cir.1979) denied, (1st (similar), cert. pole highly deferential nary review at one (1980), 63 L.Ed.2d 778 error, {e.g., clear abuse of modes of review consideration, however, as given expedited discretion) pole. At the “no opposite at the 3(b) every stage.” “at provides, itself appeals lie end of the continuum deference” law, questions of involving unadulterated Recapitulation.

D. customarily de of which resolution entails See, e.g., Liberty Mutual Ins. review. language legislative novo up, the To sum Co., F.2d Ins. 978 v. Commercial Union make it Co. history Supplementary the of Cir.1992). (1st 750, of At the other end by 757 right provided arti- appeal clear that involving straight appeals 3(b) the continuum lie the dis- implicates “decisionf] of cle determinations, the resolution of meaning of factual 28 U.S.C. trict court” within the 3(b) acceptance customarily sense, then, entails § In this palpable in judgment the absence practice by authoriz- trier’s traditional breaks with See, e.g., Cumpiano v. Banco Santan from error. appeals to the federal courts ing direct (1st 148, Rico, 152 Cir. 902 F.2d der Puerto regarding extradition. determinations certain 1990) “ought (holding appellate that courts more, treaty provision pertinent What is or conclusions upset findings of fact not to magistrate permits appeals from successive unless, whole of the on the therefrom court and drawn judge’s to the district decision strong, record, judges] form a appellate appeals. [the Because to the court of thereafter charged with those must be left to such matters appreciate policy consider- 3. We force executing, ratifying Judge Campbell, post negotiating, treaties. see ations mentioned (Campbell, J., concurring), we believe that but 1328

unyielding apply quasi-legal has been not belief that mistake dard does review made”); Fed.R.Civ.P. “finding” see also of actual malice in First Amend- context). ment however, are, difficulties in There Many classification. cases involve what conclusion is buttressed This questions questions courts term “mixed” — analogy corpus practice to traditional habeas which, resolved, they properly are to be in party the extradition field. When a collat factfinding combining necessitate with an erally challenges magistrate’s determina applicable elucidation of the law. The stan extraditability, judicial tion of review is applicable questions dard of review to mixed - See, sharply e.g., circumscribed. Fernandez usually depends upon they along fall where 311, 312, 541, Phillips, 268 U.S. 45 S.Ct. degree-of-deference continuum: 542, Manzi, 69 L.Ed. 970 In re 888 question, more fact-dominated the the more (1st Cir.1989) 204, curiam), (per 205 likely it that it the trier’s resolution of will denied, 1017, 1321, cert. 494 U.S. 110 S.Ct. clearly accepted to be erro unless shown (1990). prominent 108 L.Ed.2d 496 The most See, Mariano, e.g., neous. United States exception is for a claim that the crime consti (1st 1150, Cir.1993); 983 F.2d 1158-59 Ro political tutes a non-extraditable offense. Comm., land M. v. Sch. 910 F.2d Concord — political Review of offense determinations fol (1st Cir.1990), denied, 990-91 cert. analysis lows the continuum described above. -, S.Ct. 113 L.Ed.2d 230 Quinns See 783 F.2d at 790-91 & n. 9. Be 3(a) cause defenses are analo Given that Trea gous political offense determinations —in ty subject, presume is silent on the that deed, compromise the fundamental under- framers, providing appeals in for girding Supplementary Treaty treated courts, ordinary federal intended standards replacement the one as a for the other— apply. S.Exec.Rep. of review to suggests common sense that the same stan 3(b) (“Nothing in article is to be apply. dard of review should as n ... interpreted upsetting established appellate procedure.”); rules of see also least, Last, surely appellant’s not but con- States, Gioiosa v. United court tention district review arti- undér' (1st Cir.1982) (discussing standard of review 3(b) always cle must be de novo is at war court). appeal in to district purposes Supple- with the words and Because issues of the sort envisioned arti mentary treaty expresses The Treaty. typically fact-specific, appellate cle are strong expediting interest extradition'mat- will, findings anent review such issues 3(b) Supplementary Treaty, ters. See law, proceed absent an error of most often (providing appeals “immediate[ ]” for and re- See, e.g., under the clear-error -rubric. Pull quiring “expedited every .consideration at Swint, man-Standard v. 289- stage”). legislative history is in the 1781, 1790-91, L.Ed.2d See, 16,607 e.g., same vein. (1982) (reviewing findings district court an (1986) (admonishing treaty’s safe- error); ent race discrimination for clear guards'should “protracted not afford sanctu- Beasley Corp., v. Health Care Serv. States”). ary in the United Wholesale de (7th (similar Cir.1991) respect ignore novo review not would the fact- beliefs); religious to discrimination based on superior vantage point judging finder’s Inc., Technologies, Rendon v. AT T& 883 the intricacies of a contested case but also (5th Cir.1989) 388, (similar; 392 dis wasteful, engendering would be unwarranted origin); crimination based on national Gier delays process. in the extradition 331, Aponte-Roque, v. bolini-Colon (1st Cir.1988) then, (similar; general, reviewing political courts 333 discrimi should nation); apply clearly Corp. but v. the erroneous- standard the Bose Consumers cf. States, Inc., 485, findings fact in Union United 466 trier’s of situations where U.S. 514, 1949, 1967, Supplementary Treaty 80 502 article 3 of the L.Ed.2d (1984) (holding clearly play. that erroneous stan-

1329 record, simply can of the we address Applying Principles. the B. See, e.g., it. Societe des Produits resolve case, court treat the district In this Helvetia, Inc., Nestle, S.A. Casa cognizable finding that magistrate’s no ed the (1st Cir.1992); Gioiosa, 633, F.2d at 642 684 3(a) in na as factual defense existed article clearly test. applied the erroneous ture and that, if ex principal As to appellant’s claim— tradited, prejudice on ac would suffer he THE UNDER SUPPLE- V. PREJUDICE nationality endorse race or count of his —we MENTARY TREATY of a court’s choice standard the district preface, proceed directly to challenged the question With this review. The claim question, affording underlying treaty-interpretation factual determina magistrate’s adduced, that, appellant evidence plenary tion on the review. prejudice. This proved meaningful

had not finding rev evokes clear-error fact-intensive A. Traditional Practice. iew.4 right sovereign’s to obtain the ex A is, however, a facet of There second treaty; tradition of an accused is created claim, district appellant’s as to treaty, requested a nation where is no there wrong of review. court standard chose Factor, has no to extradite. See 290 duty 3(a) that article does not The held Indeed, federal at 54 at 193. U.S. S.Ct. a necessarily extradition whenever re bar govern that no branch of courts have stated pre the existence of some spondent shows authority to surrender an accused ment has requesting in the nation but formed ideas foreign country except pursuance of a to a where must rise to level biases Quinn, treaty. F.2d at statute See respondent actually prejudice the before they cases). (collecting affords relief.5 soundness upon depends whether analysis this —which 3(a) encompass employed in article the terms treaty more An extradition does biases or nationality-based and race-based all bridge gap. The existence such than directly affecting particular re only those treaty and an the United States between interpretation Sup spondent that, in a other nation indicates least —involves Treaty interpretation is Treaty. plementary sense, general legislative the executive and which, under the purely legal exercise as treaty justice partner’s consider the branches IV(A), above, supra see Part limned criteria justify sending ac system sufficiently fair to According to the trier. no is due deference persons for trial. See Glucks there cused ly, court should have scrutinized the district Henkel, S.Ct. man v. ruling this issue de novo. on magistrate’s Neely Henk 55 L.Ed. 830 109, 123, (No. 1), S.Ct. el to af That the district court failed corpus In habeas 45 L.Ed. aspect of the case plenary review on this ford produced has proceedings, this rationale To do must mean that we remand. does not which forbids noninquiry doctrine rule of needlessly after the throw the helve so would —a investigating the from judicial authorities Gioiosa, F.2d at 179. See hatchet. justice sys requesting nation’s fairness of Rather, quintessen question is because the permit ex considering whether tem when fully capable of court is tially legal and this Glucksman, 221 See to that nation. development tradition any further deciding it without it distracted would be appeal, decisionmaker we evaluate this is a successive Since express slight might whether clear error characterized exist. We whatever biases ourselves finding appellant magistrate’s analyt- factual appropriateness opinion of this no on cognizable preju- prove the existence of failed to suggest that approach appellant "does not ic VI. dice Part infra ignore [magistrate] expected was probable evidence” in mak- weight cause magis- analysis, the branch of his 5. In a second 3(a) Appellant’s ing determination. his article event, that, weight any trate in found at Brief that no against great was so Howard evidence 3(a) 705; Still, defense, though at at the article U.S. S.Ct. Manzi cases).6 refreshing zephyr persons resisting a to (collecting at 206 ex tradition, force; is not of hurricane mere its course, treaty a signing does not Of sweep invocation will not aside all notions of questions concerning the put forever to rest comity international and deference to the country’s legal frame- fairness of another requesting sovereignty. At nation’s least target example, work. an extradition For principles change. four rein the winds of Secretary may present issues to the such First, elementary rules of construction dic ultimately who decides State —the official tate that the defense not be construed so person found to be extraditable whether expansively negate as to the remainder of the in fact be extradited. See 18 U.S.C. should See, Factor, 292-93, treaty. e.g., at But, traditionally, § extradition noninquiry 54 S.Ct. at 195. The rule of cases, asks, judiciary neither nor seeks to developed assumption from the that an extra answer, questions about the sensitivities -and existence, treaty, by very dition its consti sophistication of courts abroad.7 general acceptance tutes a of another coun V(A). try’s legal system. supra By Part See 3(a). B. Scope of Article token, agree like the existence of overall openly alters ment on extradition must inform the work practice. requires judges It this traditional 3(a) defense, ings limiting of the article its if to shun extradition either es- accused applicability specific problems encountered request that the “has in fact been tablishes by specific opposed gener respondents, as try punish a view to or him made with on grievances concerning systemic al weakness race, religion, nationality account of his Otherwise, every es inherent case. proves if political opinions,” or he that “he treaty actually extradition becomes an im would, surrendered, prejudiced be at his extradition, words, pediment to in other punished, trial or detained or restricted” on treaty. Cong.Rec. non-extradition See 132 Supplemen- account of of these factors. (1986). 16,607 tary Treaty, phrases These cannot Second, controlling precedent re be brushed aside as series of scrivener’s that, quires possible, interpret where ex contrary, Congress errors: to the exact in- produce reciprocity tradition treaties be inquiry tended the words to authorize into tween, of, expanded rights on behalf country’s justice system the attributes of a as signatories: system apply given would to a individu- 4-5; S.Exee.Rep. liberally al. [Treaties] at should be construed so 16,798-803 Moreover, Cong.Rec. apparent as to effect the intention of the Congress evidently parties equality reciprocity knew that its command to secure reason, years practice treaty reversed of extradition forbid- between them. For that if a judicial constructions, ding investigation fairly into such areas. admits of two one re- (1986) 16,800 (describing stricting may rights See 132 be claimed broad, it, it, very reaching enlarging as “a and far and the other 16,806 provision”); (labelling pre- id. this as- more is to liberal construction “historic”). pect treaty ferred. government suggests part

6. The that the Constitution at least in from the fact that the executive is noninquiry. disagree. We mandates the rule of likely the branch which most has written and courts, spring The rule did not from belief negotiated being interpreted. the document institution, authority as an capacity lack cither the or the legal foreign systems. to evaluate Rath- has, however, judiciary explicated 7. The a num- er, being judges, attempting the rule came into See, e.g., ber of other limitations on extradition. Manzi, treaties, that, interpret particular concluded (explaining prin- 888 F.2d at 207 that the contrary specific absent a stance, indication in a in- ciple criminality of double bars extradition un- treaty ratification of countries); less Quinn, offense is crime in both noninquiry mandated comity. as a matter of international of, (discussing origin 783 F.2d at 792-810 exemplifies judicial No doubt the rule for, political exception and basis offense in extra- Koskotas, authority, deference to executive see proceedings). dition stemming 931 F.2d at but it is a deference Prejudice” 293-94, Appellant’s at Factor, 195- C. ‘Ter Se Argument. lib- reciprocity and principles 96. These force here particular have construction eral applying the now face the task of We States, unlike the U.K. the United because prejudice standard this case. The record nations, has no available other and certain magistrate paid that the careful at reveals commit machinery those who prosecuting array of tention to an facts that sometimes nonetheless, are, non- who abroad but crimes instance, pointed in different For directions. 16,587 Cong.Rec. extraditable. negative he that there some arti found were (1986). Howard, Britons might cles about that some Americans, that against be biased black 3(a) Third, an requires ac article proce not a voir dire the U.K. does utilize would, if surren that cused to establish he Nonetheless, venirepersons. dure to screen particu dered, “prejudiced” on account eyes, did not magistrate’s in the these facts view, this word denotes our lar factors. 3(a) defense because establish article preformed ideas relative to those that countervailing mitigated considerations their race, are of nationality, and like which the any de negative impact, rendering bias min- actually affect the magnitude sufficient finding, Appellant imis. excoriates com him, ie., situation, “prejudice” accused’s upon faulty legal plaining that. it rests prophylactic protections of special the trigger effectively premise. He that article 3 asserts Treaty. Supplementary the noninquiry; the eclipses the rule of that evi per proof of he tendered se dence constitutes history sug Finally, legislative the irrebuttably prejudice which establishes that, insisting upon the inclusion of gests 3(a) defense; Supplemen article and that the 3(a), largely concerned the Senate was tary Treaty countenance consider does not system appli special Diplock court with mulling countervailing factors in ation of acts in accused terrorist to those cable is extant. We concur with whether defense 16,- Ireland. See 132 Northern Supplementary that Trea (1986). indication that There is no 806-19 ground between ty stakes out a middle upon, much a slur was meant as defense aboli noninquiry rule of and the total classic of, sys legal British less an indictment treaty that rule: alters the tradi tion of tem. the rule while simulta tional formulation of Any many aspects it. neously preserving reasons, we conclude For these four run afoul of the interpretation would other particularly inhos of this ease that the soil is constraining principles we have identi four rambling interpretation of article pitable ato supra at 1330-31. fied. See that, therefore, hold, in order to We 3(a) defense, an of the article position avail himself of this middle manifestation One pre it, target 3(a), must establish imposes extradition read de that, if credible evidence ponderance requirement relative to threshold minimis surrendered, legal system of the prejudice. example, he For were the existence of country him different requesting would treat criminal affairs are fre- international because similarly individuals barring ly profile, per from other situated se rule quently high race, nationality, or religion, of his has been because there extradition whenever simply enough opinions. It is undermine the en- political negative publicity not would preformed ideas possibility treaty by making successful article some tire show rather, exist; relegating terms of the virtually might defenses automatic fringe must rise instances. We do the bias to a few treaty partners prejudicing the accused. See think that the intended level of not reasoning Hannay, unproductive a Similar M. Committee so result. generally William Sup any per prohibition on rules out se extradi- Analysis U.S.-U.K. Report: An proffers sug- evidence Treaty, 21 Int’l Law. tion when the accused plementary Extradition relations in the U.K. gesting discordant race points ty prevent receiving of a would him from fair simply or when he to the absence But, treatment abroad. this evidence com- specific procedural device. prises bag. It is true that some of mixed that, magis- while a Consequently, we hold press clippings racial innuendo. contained considering applicability of article trate hand, publicity On the other was merci- 3(a) weigh of the factors cited must each duration, fully part in for the most brief target proof appellant if an offers week; lasting less the U.K.’s Con- than exist, presence, they mere without that their tempt of Act has been invoked and will Court more, conclusively establish an arti- does not any publicity; cut off further untoward How- 3(a) “more,” something cle defense.8 The ard’s counsel himself created some of the indicated, prejudice to the extradi- we have notoriety rousing in his remarks to the Brit- magistrate that the target. tion It follows press; coverage ish the media not uni- was 3(a) require correctly to construed (indeed, formly overwhelmingly negative or actual, respondent-specific preju- showing of newspaper ap- some of the articles describe challenge Appellant’s per dice.9 se and, pellant favorably); finally, publicity therefore, must, reasoning fail. magistrate’s years ago very occurred over two and will be appellant eventually old and if news when THE VI. THE MERITS OF ARTICLE England. trial in comes to On this conflicted 3(a) DEFENSE record, perpetrate did not brings This us to the merits of How finding spurt in clear error that a of mixed challenge ard’s fact-based decision be publicity part by appellant’s created in coun- gives pause.10 low—an issue that us some occurring years ago sel and failed to rise to Nevertheless, seeking in to secure an article prejudice necessary the level of sustain 3(a) defense, target an extradition bears a 3(a) defense. establish, heavy by pre burden. He must concerning evidence in the record would, evidence, ponderance of the that he if supposed shortcomings requesting na- surrendered, prejudiced on account be legal system require tion’s does not a differ- proscribed factor. Trea it, too, Admittedly, ent result for is mixed. 16,607 3(a); ty, see also 132 appellant presented testimony affidavits and (1986). Having painstakingly reviewed the suggesting preformed that ideas constitute a papers light in in the case of the burden of particular threat in the circumstances of this proof, say error cannot that clear inheres. system English case because the does not Appellant newspaper introduced numerous provide American-style poten- voir dire of articles, people living jurors. But, affidavits from several tial evidence submitted Britain, testimony in of Paul government Great and appellant’s and elicited from wit- Stevenson, Eng- a senior executive officer of ness on cross-examination indicates that the Equality, legal system Racial English land’s Commission for has a host of other attempt widespread publici- appel- to establish that mechanisms which will be available to interpretation analogies prevailing community prejudice, 8.This finds that the mere existence of relief). instance, itself, practice. federal we have court For in and of does not necessitate routinely presence differing held that the mere devices, note, procedural pretrial publicity, allega passing, governing or 9. We that the rules more, community prejudice, fully tions of without criminal trials in the federal courts seem See, overturning compatible requirement. e.g., does not warrant a criminal convic with such a See, error, defect, Tierney, e.g., ("Any irregu- tion. Neron v. 841 F.2d Fed.R.Crim.P. (1st Cir.) (admonishing against larity the use of or variance which does not affect substan- corpus superimpose procedural rights disregarded.”). habeas federal tial shall be upon merely choices federal, state courts because the that, procedure appellant’s court thinks some "other” 10. We refer claim if denied, "better"), extradited, might prejudiced cert. he would be on account of little, presented any, S.Ct. 102 L.Ed.2d 66 United his race. He evidence Reveron-Martinez, nationality-based suggesting existence of bi- (1st Cir.1988) case, (ruling pretrial publicity, even ases in this and we cannot discern (clear otherwise) though pervasive negative, magistrate's did not warrant a error in the presumption prejudice); finding appellant prove cognizable v. Gul failed to United States lion, (1st Cir.1978) genre. (explaining prejudice of this procedural avenues sub- pattern voir mitigate the absence of and which lant present his Appellant rights traditionally will be able to available in ex- stantive dire. impact pretrial concerning the arguments these alterations re- tradition cases. While during committal relations publicity and race landscape, they configure extradition do the may then renew in the U.K. He proceedings Following map impassable. not render it the pretrial review arguments by requesting the supplies, conclude that that Article 3 we we Court, trial again before the the Crown jurisdiction appellant’s to have consider any again appeal on from judge, and still claims; govern- that the of review standard addition, system English the conviction. novo; ing legal challenge is de that the his potentially of biased for self-excusal provides governing of review his fact-based standard duty to judges are bound jurors and trial error; appellant’s challenge is for clear that concerning jury instructions detailed offer scope of the article arguments the anent impropriety grounding of defendants’ the sup- grandeur which lacks defense envision extraneous on considerations. convictions treaty’s language in port appli- in the or the in voir dire light, in the absence of this Seen and, that, law; analysis, the in the last cable decretory signif- English system is not of the findings enough derive magistrate’s of fact all, jin- not let After courts must icance. rather, amok, but, the record to withstand support must turn from attack. run goism indepen- other sympathetic lawfully up- ear to nations’ Accordingly, the district court ensure how best to judgments about dent of a magistrate’s the issuance certifica- held dealing with matters. criminal fairness extraditability. tion of on even- monopoly has no The United States Affirmed. justice. handed summarize, concerning the evidence To decanted, ambivalent. prejudice, properly CAMPBELL, Senior Circuit LEVIN H. catalogued, others facts we have (concurring). Judge record, adequate support for comprise the conclusion that evidence magistrate’s joining opinion, court’s I am While appellant’s is so exi relating to race of bias by of the troubled resolution “successive our 3(a). Put to animate guous as not 3(b) provides appeals” Article that issue. magistrate weighed the way, the another 3(a) defense, concerning Article finding (albeit not of proof, drew series reasonable race, nationality, politi- religion, or involving inevitable) it, concluded from and inferences immediately appealable opinion, cal “shall be not carried the burden appellant had that by party to the United States district either say that this prejudice. We cannot proving court, appeals, appropriate.” or court alternatives, plausible two between choice language not unclear does hold this We that record, support in the of which finds each appellant receives one that an indicate error. See Anderson clear constitutes court, if appeal to the district appeal i.e., an— 573-74, City, 470 City U.S. Bessemer by mag- was initial decision extradition 1504, 1511, 84 L.Ed.2d 518 105 S.Ct. istrate, appeals if the court of appeal an- to or Rodriguez-Morales, 929 States United by a was initial decision dis- — denied, (1st Cir.1991), cert. pro- meant to rather was judge trict -, 116 L.Ed.2d —but full vide, clumsily, for the federal however Thus, where as here the appellate process. CONCLUSION VII. magis- was decision initial extradition (1) trate, appeal, can United appellant further.11 Article 3 go no needWe (2) court; from the district district Treaty significantly alters allowing government to file confir- decision matory tarry over assertion 11. We do not score, the time. On this materials out of denying appellant's motions magistrate erred in sought to sockdolager appellant neither is that evi- supplement the stay proceedings and to to contest the belat- reopen to counter or the record were addressed These motions dence. requested evidentiary proffer time for discretion, nor ample provided ed he magistrate's vein, now be heard specific purpose. He cannot In the same for their denial. reasons respond. complain no chance discretionary he had magistrate's no error in the sec court; assume, (3) and, I court to this Supreme

this court to the Court writ of In re Antonio L. CORDOVA- certiorari. GONZALEZ, Appellant. interpretation

It is sad but true that this ambiguous language seemingly In re Antonio L. CORDOVA- —while significant what was intended —creates new GONZALEZ, Petitioner. opportunities persons delay their ex- 92-1756, Nos. 92-8038. Historically, tradition. extradition decisions by a.judge appeal- were not Appeals, United States Court able, avoiding potential delays thus First Circuit. appellate Obviously, often attend review. susceptible being the more extradition is March Submitted bogged procedural down in endless maneu- greater vering, danger that essential Decided June charged may witnesses to the crime die or disappear prior and their memories fade thought

trial. It be used to that the interest enforcing

of another civilized nation in its reasonably

criminal law entitled it to the

prompt persons. extradition of accused appeal

present ap- to this court has enabled

pellant delay trial in Great Britain year

another or more.

It have would been useful had the United gone deeply, of America more its us, pros

briefs before into the and cons of the 3(b).

proper interpretation of Article In a impression, interpre- case first espoused by Attorney

tation General can enlightening. tell, I As best can agrees with the court’s

Attorney General i.e.,

reading full feder- appellate process,

al not a truncated

version, However, was intended. the alter- interpretation my colleagues

native —what apple” approach— call the “one bite of the 3(b)’s appeal given

has some Article literal long divorcing

language and the tradition appellate pro-

extradition from the normal could have benefited from a more

cess. We explication

considered of all this the Unit-

ed States. event, separately in I write order 3(b),

emphasize implications of Article it, interpret so that the drafters of

we now con- provisions

future will have no illusions delay,

cerning potential for the inevitable approaches

may whether other would decide

be desirable.

Case Details

Case Name: In Re Extradition of Curtis Andrew Howard. United States of America v. Curtis Andrew Howard

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 30, 1993

Citation: 996 F.2d 1320

Docket Number: 92-1633

Court Abbreviation: 1st Cir.