783 F.2d 776 (9th Cir. 1986), 83-2455, Quinn v. Robinson

Docket Nº:83-2455.
Citation:783 F.2d 776
Party Name:William Joseph QUINN, Petitioner-Appellee, v. Glen ROBINSON, United States Marshal For the Northern District of California, Respondent-Appellant.
Case Date:February 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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783 F.2d 776 (9th Cir. 1986)

William Joseph QUINN, Petitioner-Appellee,

v.

Glen ROBINSON, United States Marshal For the Northern

District of California, Respondent-Appellant.

No. 83-2455.

United States Court of Appeals, Ninth Circuit

February 18, 1986

Argued and Submitted July 11, 1984.

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Mark N. Zanides, Asst. U.S. Atty., San Francisco, Cal., for respondent-appellant.

Patrick Sarsfield Hallinan, Colleen Mary Rohan, Dale A. Drozd, Hallinan, Osterhoudt

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& Poplack, San Francisco, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, FLETCHER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Pursuant to 18 U.S.C. Sec. 3184 (1982) and the governing treaty between the United States and the United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), Extradition Treaty of June 8, 1972, United States--United Kingdom, 28 U.S.T. 227, T.I.A.S. No. 8468 [hereinafter cited as Treaty ], the United Kingdom seeks the extradition of William Joseph Quinn, a member of the Irish Republican Army ("IRA"), in order to try him for the commission of a murder in 1975 and for conspiring to cause explosions in London in 1974 and 1975. After a United States magistrate found Quinn extraditable, Quinn filed a petition for a writ of habeas corpus. The district court determined that Quinn cannot be extradited because a long-standing principle of international law which has been incorporated in the extradition treaty at issue--the political offense exception--bars extradition for the charged offenses. The United States government, on behalf of the United Kingdom, appeals.

This case requires us to examine the parameters of a foreign sovereign's right to bring about the extradition of an accused who maintains that the offenses with which he is charged are of a political character. Ultimately we must determine whether the political offense exception is applicable to the type of violent offenses Quinn is alleged to have committed. We undertake this task with the aid of very little helpful precedent. The United States Supreme Court has discussed the political offense exception only once, and then during the nineteenth century. See Ornelas v. Ruiz, 161 U.S. 502, 16 S.Ct. 689, 40 L.Ed. 787 (1896). The only time we considered the subject, see Karadzole v. Artukovic, 247 F.2d 198 (9th Cir.1957), the Supreme Court vacated our opinion, see Karadzole v. Artukovic, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958) (mem.), an opinion which, in any event, has subsequently been roundly and uniformly criticized, see Eain v. Wilkes, 641 F.2d 504, 522 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Garcia-Mora, The Nature of Political Offenses: A Knotty Problem of Extradition Law, 48 Va.L.Rev. 1226, 1246 (1962); Lubet & Czackes, The Role of the American Judiciary in the Extradition of Political Terrorists, 71 J.Crim.L. & Criminology 193, 205 (1980). Only one circuit has previously considered in any detail how or whether the exception applies when the accused person or persons have engaged in conduct involving the use of some of the more violent techniques or tactics that have come to mark the activities of contemporary insurgent or revolutionary movements. Eain v. Wilkes, 641 F.2d 504 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). The few opinions of other circuits that have considered the exception shed no light on the difficult questions we must resolve here. 1 Therefore, we must carefully examine

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the historic origins of the political offense exception, analyze the various underpinnings of the doctrine, trace its development in the lower courts and elsewhere, and seek to apply whatever principles emerge to the realities of today's political struggles.

In the case before us, we find, for reasons we will explain in full, that the charged offenses are not protected by the political offense exception. We vacate the writ of habeas corpus and remand to the district court. We hold that Quinn may be extradited on the murder charge but that the district court must consider Quinn's remaining defense to the conspiracy charge before extradition is permitted for that offense. [*]

I. BACKGROUND

  1. The Extradition Treaty

    The right of a foreign sovereign to demand and obtain extradition of an accused criminal is created by treaty. Ramos v. Diaz, 179 F.Supp. 459, 460-61 (S.D.Fla.1959). In the absence of a treaty there is no duty to extradite, see Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78 L.Ed. 315 (1933); Epps, The Validity of the Political Offender Exception in Extradition Treaties in Anglo-American Jurisprudence, 20 Harv.Int'l L.J. 61, 74 (1979); cf. Bassiouni, International Extradition: A Summary of Contemporary American Practice and a Proposed Formula, 15 Wayne L.Rev. 733, 734 (1969) (in Western world, "extradition is a matter of favor or comity rather than a legal duty"), and no branch of the United States government has any authority to surrender an accused to a foreign government except as provided for by statute or treaty. Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78 L.Ed. 315 (1933); Ramos, 179 F.2d at 460-61.

    The extradition treaty between the United States and the United Kingdom provides for the reciprocal extradition of persons found within the territory of one of the nations who have been accused or convicted of certain criminal offenses committed within the jurisdiction of the other nation. Treaty, supra p. 781, at art. I. Murder and conspiracy to cause explosions, the offenses with which Quinn has been charged, are extraditable offenses under the Treaty. Id. art. III(1), (2).

    United States citizenship does not bar extradition by the United States. See Charlton v. Kelly, 229 U.S. 447, 467, 33 S.Ct. 945, 952, 57 L.Ed. 1274 (1913); Escobedo v. United States, 623 F.2d 1098, 1104-

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    07 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980). However, under the doctrine of "dual criminality," an accused person can be extradited only if the conduct complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations. Factor, 290 U.S. at 293, 54 S.Ct. at 195; Caplan v. Vokes, 649 F.2d 1336, 1343 (9th Cir.1981); see, e.g., Treaty, supra p. 781, at art. III(1)(a). In addition, there must be evidence that would justify committing the accused for trial under the law of the nation from whom extradition is requested if the offense had been committed within the territory of that nation. Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978); 18 U.S.C. Sec. 3184 (1982); see, e.g., Treaty, supra p. 781, at art. VII(d). United States courts have interpreted this provision in similar treaties as requiring a showing by the requesting party that there is probable cause to believe that the accused has committed the charged offense. See, e.g., Glucksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 705, 55 L.Ed. 830 (1911); United States ex rel. Sakaguchi v. Kaululukui, 520 F.2d 726, 729-31 (9th Cir.1975). The doctrine of "specialty" prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite. United States v. Rauscher, 119 U.S. 407, 420-21, 7 S.Ct. 234, 241, 30 L.Ed. 425 (1886); Caplan v. Vokes, 649 F.2d at 1343; see, e.g., Treaty, supra p. 781, at art. XII.

    The treaty between the United States and the United Kingdom provides certain exceptions to extradition, notwithstanding the existence of probable cause to believe that the accused has committed the charged offense. In particular, the treaty specifies that "[e]xtradition shall not be granted if ... the offense for which extradition is requested is regarded by the requested party as one of a political character...." Treaty, supra p. 781, at art. V(1)(c).

  2. Factual Background

    Quinn, a United States citizen, was arrested on September 30, 1981 in Daly City, California pursuant to a provisional arrest warrant issued by a United States magistrate upon application of the United States acting for and on behalf of the United Kingdom. On November 4, 1981, the United Kingdom formally requested Quinn's extradition to face charges of the murder of Police Constable Stephen Tibble and conspiracy to cause explosions of a nature likely to endanger human life. 2

    The duration of the conspiracy with which Quinn is charged is from January 1, 1974 to April 3, 1975, the day before Quinn was arrested for questioning regarding separate 1974 offenses of kidnapping and assault. Quinn was, in fact, charged, tried, and convicted at that time in Ireland, in a special court utilized for the trial of political cases, of membership in an outlawed organization--the IRA. He was imprisoned in Dublin as a "special category prisoner"--a political prisoner incarcerated in a manner akin to prisoner-of-war status--until January 2, 1976.

    The evidence before the United States magistrate regarding the conspiracy centered around six specific bombing incidents:

    1. On January 18, 1974, a hollowed-out copy of the Bible containing a bomb was mailed to and received by Bishop Gerard William Tickle in London. At that time, Bishop Tickle was the Roman Catholic Bishop to the British Armed Forces. Quinn's fingerprints were found on the wrapping paper around the bomb, which was defused without causing any harm.

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    2. On January 30, 1974, a letter bomb was sent to the Surrey, England...

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