Extradition of Howard, In re, 92-1633

Citation996 F.2d 1320
Decision Date03 May 1993
Docket NumberNo. 92-1633,92-1633
PartiesIn re EXTRADITION OF Curtis Andrew HOWARD. UNITED STATES of America, Petitioner, Appellee, v. Curtis Andrew HOWARD, Respondent, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Jeffrey A. Denner, with whom George Garfinkle and Perkins, Smith & Cohen were on brief, for appellant.

Victor A. Wild, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

This appeal presents several issues of first impression in extradition law generally and, more specifically, regarding a rather distinctive extradition treaty in force between the United States and the United Kingdom of Great Britain and Northern Ireland (U.K.). We must determine, inter alia, (1) whether, under the treaty, the second of two successive appeals from a certification of extraditability is within our jurisdiction; (2) if so, what standard of review governs such appeals; (3) whether the treaty alters the venerable rule of noninquiry; and (4) if so, to what extent. After grappling with these, and other, matters, we eventually address the merits of the appeal and conclude that the determination of extraditability must stand.

I. BACKGROUND

The seeds of this appeal were sown on June 1, 1991, when a policeman discovered the mutilated body of Catherine Elizabeth Ayling, a young white female, in the trunk of a rental car abandoned at England's Gatwick Airport. Suspicion immediately centered on respondent-appellant Curtis Andrew Howard, a United States citizen. Charges were preferred. Because Howard had returned to his native land, British authorities sought to extradite him. On June 5, 1991, the United States Attorney for the District of Massachusetts requested and received from a federal magistrate judge a warrant for Howard's provisional arrest. See 18 U.S.C. § 3184 (1988 & Supp. II 1990); D.Mass.Loc.Mag.R. 1(e). Howard was apprehended. He appeared for an extradition hearing before the magistrate judge on September 10, 1991.

At the hearing Howard did not dispute the existence of probable cause to believe he had murdered Ayling. Rather, Howard, who is black, argued that he would be prejudiced during legal proceedings in the U.K. by reason of his race and nationality, a circumstance which, if true, constituted a defense to extradition under the relevant treaty. See Supplementary Extradition Treaty, June 25, 1985, U.S.-U.K., art. 3(a), reprinted in S.Exec.Rep. No. 17, 99th Cong., 2d Sess. 15-17 (1986) (Supplementary Treaty). In support of this defense, Howard proffered evidence of flamboyant publicity surrounding his case, sought to show that Britons would likely be prejudiced against blacks--particularly those accused of murdering young white females--and pointed out that England's legal system does not make any provision for voir dire of prospective jurors. These proffers did not sufficiently impress the magistrate: he ruled that Howard had not established a valid defense to extradition and thereupon issued a certification of extraditability, together with an order of commitment. 1 See 18 U.S.C. § 3184.

Howard appealed. The district court exercised jurisdiction, reviewed the magistrate's findings for clear error, and affirmed. See In re Howard, 791 F.Supp. 31 (D.Mass.1992). Howard appeals anew.

II. THE SUPPLEMENTARY TREATY

Because the Supplementary Treaty departs from accepted extradition protocol, we trace its origins and spotlight its key provisions.

In 1972, the United States and the U.K. negotiated new terms governing reciprocal extradition from one nation's territory of persons accused or convicted of certain offenses committed in the other nation. See Extradition Treaty, June 8, 1972, U.S.-U.K., art. I, 28 U.S.T. 227, 229 (Treaty). Under the Treaty, murder was an extraditable offense. See id. art. III(1). Nonetheless, the Treaty allowed a signatory to refuse extradition if it regarded the offense "as one of a political character." Id. art. V(c)(i). This exception sired friction between the two traditional allies when federal judges in the United States began interpreting it to bar extradition of members of the Provisional Irish Republican Army. See S.Exec.Rep. No. 17, supra, at 2; see also 132 Cong.Rec. 16,558-86 (1986) (collecting cases).

To ameliorate this situation, the signatories negotiated treaty amendments aimed at eradicating the political offense exception for acts of violence. See S.Treaty Doc. No. 8, 99th Cong., 1st Sess. (1985) (Proposed Supplementary Treaty); see also S.Exec.Rep. No. 17, supra, at 2. However, when President Reagan submitted the Proposed Supplementary Treaty to the Senate, seeking its advice and consent, the document received mixed reviews. See United States and United Kingdom Supplementary Extradition Treaty: Hearings Before the Senate Comm. on Foreign Relations, 99th Cong., 1st Sess. (1985). Following many months of strident debate, the opposing camps reached a compromise, placing most violent crimes beyond the political offense exception's reach but adding certain novel safeguards for the protection of potential extraditees. See S.Exec.Rep. No. 17, supra, at 4-5. On July 17, 1986, the Senate ratified the proposed treaty subject to the addition of these, and other, amendments. See 132 Cong.Rec. 16,819 (1986). Following approval of the modified version by the House of Commons, instruments of ratification were exchanged on December 23, 1986. See Supplementary Treaty, supra, reprinted at Hein's No. KAV 2053; see also I.I. Kavass et al., Extradition: Laws and Treaties 920.20d-h (1979 & Supp.1989). At that point, the Supplementary Treaty went into force.

An aspect of the Senate-forged compromise lies at the core of the instant case. As ratified, the Supplementary Treaty prohibits extradition "if the person sought establishes ... by a preponderance of evidence that ... he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, or political opinions." Supplementary Treaty, art. 3(a). Appellant's case rests squarely upon this proviso.

III. APPELLATE JURISDICTION

The Supplementary Treaty stipulates that the trier's findings with regard to an article 3(a) defense are "immediately appealable by either party to the United States district court, or court of appeals, as appropriate." Id. art. 3(b). The initial question that commands our attention concerns the extent of our jurisdiction under this provision. We raised this issue at oral argument, as a court must when it harbors doubts about the existence of its subject matter jurisdiction, see In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir.1988) (emphasizing that "a court has an obligation to inquire sua sponte into its subject matter jurisdiction"), and directed the parties to furnish supplemental briefs. 2

A. Past Practice.

Ordinarily neither party to an extradition proceeding may challenge a decision rendered therein by direct appeal. This disability developed because the relevant statute, 18 U.S.C. § 3184, does not contemplate hearings by United States courts qua United States courts, see In re Mackin, 668 F.2d 122, 125-30 (2d Cir.1981) (collecting authorities and tracing history of extradition proceedings), but, instead, directs that extradition matters be heard by "any justice or judge of the United States," any authorized magistrate, or certain state judges. Therefore, an officer who presides over such a proceeding is not exercising "any part of the judicial power of the United States." In re Kaine, 55 U.S. (14 How.) 103, 120, 14 L.Ed. 345 (1852). Rather, the officer acts in a non-institutional capacity by virtue of a "special authority." In re Metzger, 46 U.S. (5 How.) 176, 191, 12 L.Ed. 104 (1847); see also Shapiro v. Ferrandina, 478 F.2d 894, 901 n. 3 (2d Cir.) (applying same principle to current statutory provision), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973); Mackin, 668 F.2d at 125-30 (same); Jimenez v. Aristeguieta, 290 F.2d 106, 107 (5th Cir.1961) (same). The officer's only tasks are to determine whether an individual is extraditable, and if so, to certify extraditability to the ultimate decisionmaker (the Secretary of State). See 18 U.S.C. §§ 3184, 3186 (1988 & Supp. II 1990).

In light of this curious arrangement, numerous courts have held that 28 U.S.C. § 1291, which permits appeals of "final decisions of the district courts" (emphasis supplied), does not contemplate appeals from decisions of judicial officers sitting in extradition matters. See, e.g., Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir.1990); Quinn v. Robinson, 783 F.2d 776, 786 n. 3 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986). Given the absence of any other statutory hook on which jurisdiction over such appeals can be hung, a putative extraditee customarily can challenge an order for extradition only by collateral attack, typically through habeas corpus. See Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Koskotas v. Roche, 931 F.2d 169, 171 (1st Cir.1991). By the same token, the government, if it fails in an extradition attempt, cannot appeal, but must file anew. See Mackin, 668 F.2d at 128; Hooker v. Klein, 573 F.2d 1360, 1364-68 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978); see also Collins v. Loisel, 262 U.S. 426, 430, 43 S.Ct. 618, 619, 67 L.Ed. 1062 (1923).

B. Article 3(b).

Appellant argues that the Supplementary Treaty revolutionizes this praxis insofar as the extradition target asserts defenses cognizable under article 3(a). The government argues the inverse, imploring that neither the President nor the Senate intended to work so abrupt a tergiversation. We agree with appellant that the Supplementary Treaty, which has the force of...

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