Extradition of Smyth, Matter of, 94-10495

Decision Date05 January 1996
Docket NumberNo. 94-10495,94-10495
Citation72 F.3d 1433
Parties96 Cal. Daily Op. Serv. 146, 96 Daily Journal D.A.R. 237 In the Matter of the Requested EXTRADITION OF James Joseph SMYTH. UNITED STATES of America, Plaintiff-Appellant, v. James Joseph SMYTH, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Prior report: 61 F.3d 711 (1995).

Before: SNEED, SCHROEDER, and FERGUSON, Circuit Judges.

Dissent by Judge NOONAN; Dissent by Judge REINHARDT.

The panel has voted to deny appellee's petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

NOONAN, Circuit Judge, dissenting from failure to take en banc, with whom Circuit Judges PREGERSON, REINHARDT and O'SCANNLAIN join:

1. The Article II Appellate Court. This case presents an issue of unusual significance for the Judicial Branch of the government: if a court of appeals established under Article III erroneously believes that it may and must act as an Article II court, and does so act, what is the validity of its decision?

This issue is posed by the panel decision in this case. The panel proclaims that it has jurisdiction of the appeal because of the Supplementary Treaty between the United States and the United Kingdom (hereafter the Treaty), Article 3(a). Matter of Requested Extradition of Smyth, 61 F.3d 711, 713 (9th Cir.1995). The panel goes on to declare "the rules of evidence and civil procedure that govern federal court proceedings heard under the authority of Article III of the United States Constitution do not apply in extradition hearings that are conducted under the authority of a treaty enacted pursuant to Article II. Cf. Fed.R.Evid. 1101(d)(3)." Id. at 720-721. The reference is to the proviso that the Federal Rules of Evidence are inapplicable to proceedings for extradition. The proviso, however, makes no reference to the applicability of the Rules of Civil Procedure to extradition proceedings. Rule 1 of the Federal Rules of Civil Procedure states: "These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of every action." Rule 81 contains no exception for extradition. The Federal Rules of Civil Procedure govern an Article III court in such a case. The panel thought otherwise. As it believed that the proceedings were under Article II, neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure were operative in the district court. By the same token, the panel acted as though it was itself an Article II court.

Doing so, the panel misconceived its functions, misinterpreted the Treaty, and put the Ninth Circuit in direct conflict with the First Circuit. The latter court had earlier occasion to interpret the Treaty and to review the history of extradition proceedings. Past practice and precedent held that there was no direct appeal from an extradition order by either the extraditee or by the United States. See In re Extradition of Howard, 996 F.2d 1320, 1325 (1st Cir.1993). The extradition officer was not exercising any part of the judicial authority of the United States. Therefore an unbroken line of precedents held that there could be no direct appeal from this officer's order to an Article III court. Id.

The Treaty "effects a sea change in established policy." Id. at 1326. The government in Howard objected, "imploring that neither the President nor the Senate intended to work so abrupt a tergiversation." Id. The First Circuit was inexorable in its reading of the Treaty. Article 3(b) provided that a finding anent an Article 3(a) defense "shall be immediately appealable by either party to the United States district court, or court of appeals, as appropriate." The language of the Treaty was intended to invoke the judicial power of the United States, that power possessed only by an Article III court. Id. With that power in mind, the Treaty in Article 3(b) specifies that "the Federal Rules of Appellate Procedure or Civil Procedure, as appropriate, shall govern the appeals process." In short, the Treaty makes "a clean break from the ancient prohibition on direct appeals in extradition matters; .... it unlocks the gate which has historically barred extradition matters from proceeding further through the federal courts in the same manner as other cases." Id.

Although the panel in our case was aware of Howard and actually cited it, 61 F.3d at 713, it did not adopt its analysis. The panel acted as an Article II court reviewing the decision of an Article II court. This fundamental misconception tainted all its deliberations. The appropriate remedy for this mistake is vacation of the court's judgment so that the court may address all the issues aware that it is performing the duties of an Article III tribunal.

In Howard, the government lost the argument for Article II standards and Article II jurisdiction and absence of appeal to an Article III court. It has the benefit of Howard now in taking this appeal. Not as a matter of estoppel, but as a matter of consistency and fairness, the government should accept Howard in its entirety and acknowledge error when the court of appeals conducts itself as a creation of Article II.

The court's fundamental misconception also distorted particular rulings of the court as set out more fully in what follows.

2. The Factfinding Appellate Court. As an Article II court, the panel believed itself liberated from precedent. Freed from this burden, the panel found itself empowered to do its own factfinding and free to disregard accepted practice as to the ascertainment of future facts.

Without referring to any standard of review the panel ignored some of the factual findings of the district court, set aside others and even occasionally supplied its own facts. For example, the panel resolved the conflicting testimony as to conditions in the Maze and held (1) that the "strongest evidence of post-return politically motivated mistreatment" was "that the guards yelled racist and religious epithets while mistreating Smyth's fellow Maze escapees who were returned a decade ago." Matter of Requested Extradition of Smyth, 61 F.3d at 722.

This example of appellate factfinding suffers from several defects. The guards did not yell "racist" epithets. "Racist epithets" is a phrase atavistically echoing the colonial past. Use of the phrase suggests that the panel in its imaginative factfinding was out of touch with modern Belfast.

Race is not an issue in this case. Nationality is. The district court did not cite this evidence to show "politically motivated" misconduct but animus on religious and national identity grounds. The panel not only missed the point but conveniently separated the yelling of epithets from the physical attack accompanying them, so that the abuse appears merely verbal rather than integrated with the infliction of bodily injury on the returned prisoners running a gauntlet of attacking guard dogs.

Having misstated Smyth's evidence, the panel then weighed other testimony pointing to improvement in conditions at the Maze. Entirely omitted from this factfinding was any reference to the district court's expressed scepticism about the relevant United Kingdom testimony and any reference to the district court's finding that the same guards who had staged the dog attack, left the prisoners' wounds unattended, and engaged in a cover-up, had been unpunished and were a "continued presence" at the prison. In the Matter of the Requested Extradition of Smyth, 863 F.Supp. 1137 at 1153-1154 (N.D.Cal.1994). Without holding any of these findings to be clearly erroneous, the panel ignored them and made its own findings that there was not sufficient evidence that Smyth would be punished in the Maze on a forbidden ground. 61 F.3d at 722.

Besides misstating and ignoring facts found by the district court, the panel did not acknowledge (1) that inference from past conduct to future behavior is a common method of reasoning in our legal system and (2) that inference-drawing is a type of factfinding, a process by which the presence of one fact leads to a probable estimate of a second fact. Instead, the panel spoke of the district court making an unwarranted "presumption" on the basis of the past misconduct. Id. at 720.

The Supreme Court has observed that prediction based on past experience is "performed countless times each day throughout the American system of criminal justice." Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2957-58, 49 L.Ed.2d 929 (1976). It is a task performed by triers of fact, such as juries. Id. When an appellate court decides to substitute its inferences for those reached by the trial court, it must have some basis for finding the trial court clearly erroneous and some basis for preferring its own findings. The panel did not say how the district court erred factually or why its own factfinding is superior.

The above observations apply to the panel's treatment of the evidence showing that Smyth will be mistreated in prison on the grounds of religion, nationality and political opinions. They also apply to the panel's treatment of the district court's finding that Smyth would be subject to punishment by the security forces after his release from prison on the same grounds. The panel stated: "There was, however, little such evidence. Nearly all of the testimony of harassment of Republican ex-prisoners concerned conduct that occurred in the past." 61 F.3d at 719. The panel then faulted the district court for...

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