Matter of Extradition of Sandhu

• Decision Date: 15 April 1993
• Docket Number: No. 90 Cr.Misc. No. 1.,90 Cr.Misc. No. 1.
• Citation: 886 F. Supp. 318
• Parties: In the Matter of the EXTRADITION OF Sukhminder Singh SANDHU, a/k/a "Sukhi," and Ranjit Singh Gill, a/k/a "Kukki," Respondents.
• Court: U.S. District Court — Southern District of New York

886 F. Supp. 318

In the Matter of the EXTRADITION OF Sukhminder Singh SANDHU, a/k/a "Sukhi," and Ranjit Singh Gill, a/k/a "Kukki," Respondents.

No. 90 Cr.Misc. No. 1.

United States District Court, S.D. New York.

April 15, 1993.

OPINION AND ORDER

ROBERTS, United States Magistrate Judge:

The government of India, pursuant to 18 U.S.C. § 3184 and the treaty of extradition between the governments of the United States and India,¹ seeks the extradition of Sukhminder Singh Sandhu, a/k/a "Sukhi," and Ranjit Singh Gill, a/k/a "Kukki" ("respondents" or "extraditees") for the alleged commission of crimes occurring in 1985 and 1986, in violation of the Indian Penal Code. This case was referred to me by Judge Edelstein as an extradition magistrate pursuant to 18 U.S.C. § 3184.

Presently before the court is respondents' pre-hearing motion; for the reasons set forth below, the motion is denied.

PROCEDURAL HISTORY

Sandhu and Gill were first arrested in this country on May 14, 1987, in the District of New Jersey. Sandhu's arrest was pursuant to a warrant issued by the Central District of California, based upon an extradition complaint filed against him there. Gill was detained by U.S. immigration officials and held in custody until an extradition complaint was filed against him and a warrant of arrest issued in the District of New Jersey. In February 1988, extradition hearings were conducted in the District of New Jersey by Magistrate Ronald J. Hedges. Magistrate Hedges concluded that Sandhu and Gill were extraditable and issued certificates of extraditability. On March 7, 1988, Sandhu and Gill challenged Magistrate Hedges' decision by filing habeas corpus petitions in the Southern District of New York, where they were incarcerated. Subsequently, the government moved to vacate the certificates of extraditability issued by Magistrate Hedges and to renew the case based on the discovery of misconduct by the Special Assistant United States Attorney who had represented the government in the extradition hearings.² The habeas corpus proceedings were held in abeyance while further proceedings before Magistrate Hedges addressed the effect of the misconduct of the Special Assistant.

In November 1988, Magistrate Hedges denied the government's motion to vacate the certificates, adhering to his earlier ruling that extradition was warranted.

Petitions for habeas corpus were filed in the Southern District of New York, and assigned to Judge Sweet. Judge Sweet granted the petitions, on the ground that a confession of an alleged co-conspirator, which had been part of the evidence reviewed by Magistrate Hedges, had later been held invalid by an Indian court. Gill v. Imundi, 747 F.Supp. 1028 (S.D.N.Y.1990). Judge Sweet concluded that the case should be remanded for a new determination of probable cause on extraditability, in order to eliminate the possibility that the probable cause finding would in any way be affected by either the suppression of the co-conspirator's confession or by the misconduct of the Special Assistant. Id.

Judge Sweet stayed the issuance of the writs to permit the government of India to appeal or file a new complaint. Id. The instant complaint was filed in the Southern District of New York in October 1990.

EXTRADITION COMPLAINT

The government of India seeks the extradition of Sandhu and Gill for alleged commission of crimes in violation of the Indian Penal Code. The charges against Sandhu are contained in Counts One through Three,³ and the charges against Gill are set forth in a separate Count One pertaining solely to Gill.

Charges Against Sandhu

Count One of the complaint charges Sandhu with robbery and conspiracy to commit robbery, in violation of §§ 392 and 120B of the Indian Penal Code, in connection with the robbery of the Punjab National Bank in Ahmedabad, India, on January 6, 1986. Complaint ¶¶ 2, 4. A warrant for the arrest of Sandhu on these charges was issued by the Metropolitan Magistrate, Court Number 9, Ahmedabad, India, on or about May 10, 1987. Id. ¶ 3.

Count Two charges Sandhu with murder, attempted murder and "murder in furtherance of a common intention," in violation of §§ 34, 302 and 307 of the Indian Penal Code, in connection with the murders and attempted murders of unarmed police officers and a civilian magistrate at Udaipur, India, on April 16, 1986. Id. ¶¶ 5, 7. A warrant for the arrest of Sandhu on these charges was issued by the Additional Chief Judicial Magistrate, Udaipur, India, on or about January 5, 1987. This warrant was followed by a "petition for issuance of additional process" on or about May 8, 1987; additional process requiring Sandhu to appear to answer the charges was issued by the Additional Chief Judicial Magistrate at Udaipur on or about May 8, 1987. Id. ¶ 6.

Count Three charges Sandhu with robbery and conspiracy to commit robbery, in violation of §§ 392 and 120B of the Indian Penal Code, in connection with the robbery of the Chembur branch of the New Bank of India at Bombay, India, on April 28, 1986. Id. ¶¶ 8, 10. A warrant for the arrest of Sandhu on these charges was issued by the Metropolitan Magistrate, Bombay, India, on or about May 8, 1987. Id. ¶ 9.

Charges Against Gill

The complaint charges Gill with murder, attempted murder and "murder in furtherance of a common intention," in violation of §§ 34, 302 and 307 of the Indian Penal Code, in connection with the murders of Lalit Maken, a member of the Indian Parliament, his wife, and a constituent of Mr. Maken's on July 31, 1985, in Delhi, India. Id. ¶¶ 17, 19; Resp.Memo at 6. A warrant for the arrest of Gill on these charges was issued by the Chief Metropolitan Magistrate, Tis Hazari Court, Delhi, India, on or about December 6, 1986. The warrant was followed by a "petition for issuance of additional process" on or about April 3, 1987; additional process requiring Gill to appear to answer the charges was issued by the Chief Metropolitan Magistrate, Tis Hazari Court, Delhi, on or about April 29, 1987. Complaint ¶ 18.

RESPONDENTS' PRE-HEARING MOTION

Sandhu and Gill move for the following orders:

1. an order granting them leave to present evidence that if extradited to India, they will be subjected to treatment and procedures "antipathetic to a federal court's sense of decency";

2. an order granting them leave to present evidence that they are refugees, and, if extradited to India, will be subject to persecution;

3. an order denying the extradition request in its entirety on the ground that controlling Indian law compels the government of India to try respondents on charges already lodged against them but for which their extradition has not been sought, thereby violating the extradition treaty and the rule of specialty; and

4. an order granting certain discovery requests.⁴

Resp. Memo at 18-19.

I Examination of Conditions Facing Respondents if Extradited

Respondents request permission to present evidence that if extradited, they will be subjected to treatment and procedures "antipathetic to a federal court's sense of decency." Resp.Memo at 18. This request must be denied under the "rule of non-inquiry," which prohibits the court determining extraditability from examining the requesting country's criminal justice system or taking into account the possibility that the extraditee will be mistreated if returned. See Jacques Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in International Extradition Proceedings, 76 CORNELL L.REV. 1198 (1991).

An extradition magistrate acts only under the special authority of 18 U.S.C. § 3184 and an extradition treaty. Pursuant to § 3184, an extradition magistrate has jurisdiction only to determine whether the crimes charged are covered by the extradition treaty at issue, that the persons before the court are those sought by the extradition request and whether probable cause exists that those requested to be extradited committed the crimes charged. Semmelman, supra, at 1202. If probable cause is found, the extradition magistrate issues a certificate of extradition to the Secretary of State. Id. at 1203. There is no statutory authority or provision in the extradition treaty between the United States and India that confers jurisdiction on an extradition magistrate to inquire into the conditions that might be encountered by an extraditee upon return to India. See id. at 1205 ("all circuits that have considered the issue have adopted the rule of non-inquiry, even when the defendant is a United States citizen"). Accordingly, this court lacks jurisdiction to engage in such an inquiry.

The rule of non-inquiry arises from recognition that the executive branch has exclusive jurisdiction over the country's foreign affairs. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 431-33, 84 S.Ct. 923, 942-43, 11 L.Ed.2d 804 (1964). For this reason, the ultimate decision to deny extradition on humanitarian grounds has been entrusted to the Secretary of State, not to an extradition magistrate. Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir.1990) ("it is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds"); Sindona v. Grant, 619 F.2d 167, 174 (2d Cir.1980) ("the degree of risk to appellant's life from extradition is an issue that properly falls within the exclusive purview of the executive branch").

Relying on Gallina v. Fraser, 278 F.2d 77 (2d Cir.), cert. denied, 364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 74 (1960), respondents contend that authority exists for an examination of conditions by the extradition magistrate when the extraditee can show that he would "be subjected to treatment offensive to a federal court's sense of decency." Resp. Memo at 40. In Gallina, the Second Circuit refused "to inquire into the procedures which await the extraditee upon extradition." Gallina, 278 F.2d at 78. The court observed that existing authority "points clearly to the proposition that the conditions under which a...