Barapind v. Enomoto

• Decision Date: 09 March 2005
• Docket Number: No. 02-16944.,02-16944.
• Citation: 400 F.3d 744
• Parties: Kulvir Singh BARAPIND, Petitioner-Appellant, v. Jerry J. ENOMOTO, United States Marshal for the Eastern District of California, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.3d 744

Kulvir Singh BARAPIND, Petitioner-Appellant, v. Jerry J. ENOMOTO, United States Marshal for the Eastern District of California, Respondent-Appellee.

No. 02-16944.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 14, 2004.

Filed March 9, 2005.

COPYRIGHT MATERIAL OMITTED

Jagdip Singh Sekhon, Sekhon & Sekhon, San Francisco, CA, for the appellant.

Stanley A. Boone, Assistant United States Attorney, Fresno, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-01-06215-OWW.

Before SCHROEDER, Chief Judge, KOZINSKI, RYMER, KLEINFELD, HAWKINS, THOMAS, GRABER, W. FLETCHER, TALLMAN, RAWLINSON and CALLAHAN, Circuit Judges.

Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge RYMER.

OPINION

PER CURIAM.

We consider whether the district court erred in denying Kulvir Singh Barapind's habeas corpus petition challenging the certification of his extradition to India.

FACTS¹

Barapind, a native and citizen of India, is a prominent leader of the All India Sikh Student Federation. The Federation is dedicated to establishing an independent sovereign Sikh nation. From the mid-1980s through the early 1990s, while Barapind was still in India and an active Federation member, Sikh insurgents frequently clashed with the Indian government and its supporters, resulting in tens of thousands of casualties.

In 1993, Barapind came to the United States using a passport bearing a false name and was immediately detained by the Immigration and Naturalization Service (INS). He applied for asylum and withholding of deportation, asserting that he would face persecution if he were returned to India, but the immigration judge denied relief and ordered him excluded. On habeas review, a panel of this court affirmed the district court's remand to the Board of Immigration Appeals, finding that the immigration judge committed legal errors. See Barapind v. Rogers, 114 F.3d 1193 (9th Cir.1997) (mem.). Barapind's asylum proceedings were then interrupted by India's request that the United States extradite him.²

India requested Barapind's extradition pursuant to its extradition treaty with the United States.³ See Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir.1986) ("The right of a foreign sovereign to demand and obtain extradition of an accused criminal is created by treaty."). The Treaty provides for extradition of a person suspected of committing certain crimes when the evidence of the person's guilt would be sufficient to bring him to trial in the United States if his crimes had been committed here. See art. 9. Certification of extradition is lawful only when the requesting nation has demonstrated probable cause to believe the accused person is guilty of committing the charged crimes. See Quinn, 783 F.2d at 783; see also Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir.2000).

The United States filed a complaint on India's behalf and requested a warrant to bring Barapind before an extradition court for a hearing to determine extraditability. See 18 U.S.C. § 3184. The district court issued the warrant, Barapind was transferred from INS custody and the district court conducted an extradition hearing.⁴

India sought Barapind's extradition based on crimes arising out of eleven separate incidents. The extradition court denied certification of extraditability for the crimes relating to eight of the incidents, concluding either that India failed to show probable cause to suspect Barapind of the crimes, or that extradition was inappropriate because the crimes were covered by the Treaty's political offense exception which bars extradition for crimes "of a political character." See art. 6. The court certified extradition for offenses stemming from the three remaining incidents.

Barapind petitioned for a writ of habeas corpus, arguing that the charges for which his extradition was certified were not supported by probable cause or fell under the political offense exception.⁵ The district court denied his petition, and Barapind appealed. A three-judge panel of this court affirmed, see 360 F.3d 1061 (9th Cir.2004), and we subsequently voted to rehear the case en banc, see 381 F.3d 867 (9th Cir.2004) (order).

ANALYSIS

Because our review of the district court's decision on questions of law and mixed questions of law and fact is de novo, see Quinn, 783 F.2d at 791-92, and because the district court on habeas review accepted the factual findings of the extradition court, we focus on the extradition court's opinion. Thus, we determine whether the extradition court erred in certifying extraditability for crimes arising out of three incidents, designated as FIR 100, FIR 89 and FIR 34.⁶

General Challenges to Extraditability

Barapind asserts two claims applicable to all three incidents.

1. First, he contends that India's evidence against him was incompetent. Barapind focuses on the fact that the witness statements produced by India were unsigned translations, on which the extradition court should not have relied.

Barapind misunderstands the nature of extradition proceedings. "With regard to the admissibility of evidence, the general United States extradition law requires only that the evidence submitted be properly authenticated." Emami v. United States Dist. Court, 834 F.2d 1444, 1451 (9th Cir.1987). The authentication requirements for documentary evidence are contained in 18 U.S.C. § 3190, which specifies that "the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that [submitted documents] are authenticated in the manner required." Here, it is undisputed that the evidence presented against Barapind was properly authenticated pursuant to section 3190, and the Treaty itself contains no supplementary authentication requirements. We therefore reject Barapind's claim that the extradition court erred in relying upon the authenticated documentary evidence submitted by India. Barapind also argues that the evidence against him is unreliable because it was fabricated or obtained by torture. The extradition court, however, conducted a careful, incident-by-incident analysis as to whether there was impropriety on the part of the Indian government. Its findings that the evidence regarding FIR 100, FIR 89 and FIR 34 was not the product of fabrication or torture were not clearly erroneous. See Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir.1999) ("Factual determinations by a ... judge in an extradition proceeding are reviewed for clear error.").

2. Next, Barapind claims that because some of the charges for which India requested his extradition were deemed to be political offenses, he cannot be extradited on any charges, even those not covered by the political offense exception. He bases his argument on article 6 of the Treaty, which protects a fugitive from extradition if "he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for a crime or offence of a political character."

Barapind reads this language as preventing a fugitive's extradition if any of his charged offenses were crimes of a political character. But he can point to no authority for such a drastic interpretation. Nor is his argument consistent with the doctrine of specialty, which "prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite," Quinn, 783 F.2d at 783, and which is incorporated into the terms of the Treaty, see art. 7 ("A person surrendered can in no case be ... brought to trial ... for any other crime or offence ... than those for which the extradition shall have taken place...."). The doctrine of specialty suggests the more general proposition that an extradition court should consider each offense separately in determining whether an extradition requisition is based on a political crime. The fact that some crimes are found to be non-extraditable political offenses has no bearing on whether certification of extradition is appropriate for crimes that are not political offenses.

Incident-Specific Challenges

Finding both of Barapind's universal challenges to the extradition court's decision to be meritless, we turn to his incident-specific claims.

1. FIR 100. India charges Barapind with murder and attempted murder, alleging that he drove a scooter while a gunman riding with him killed one man and wounded another. Barapind contends that India did not establish probable cause to believe he committed these crimes.

In reviewing an extradition court's probable cause determination for evidentiary sufficiency, we ask whether the court's finding was supported by "competent evidence." See Mainero, 164 F.3d at 1205 (quoting Zanazanian v. United States, 729 F.2d 624, 626 (9th Cir.1984)). To establish probable cause, India relied in significant part upon a translated statement of Makhan Ram, the man who was wounded in the shooting, identifying Barapind as the driver. Barapind attempted to destroy probable cause by submitting a more recent affidavit from Makhan wherein he claims that he never identified Barapind. This affidavit states that the Indian police forced Makhan to sign a blank sheet of paper, which they subsequently turned into affidavits identifying Barapind.

The extradition court recognized that a fugitive facing extradition can present his own evidence to explain away the requesting government's evidence of probable cause. See Singh, 170 F.Supp.2d at 994; see also Mainero, 164 F.3d at 1207 n. 7 ("Generally, evidence that explains away or completely obliterates probable cause is the only evidence admissible at an extradition hearing, whereas evidence that merely controverts the existence of probable cause, or raises a defense, is not admissible."). The court concluded, however, that "the...