Prasoprat v. Benov

• Decision Date: 31 August 2005
• Docket Number: No. 03-57253.,03-57253.
• Citation: 421 F.3d 1009
• Parties: Suwit PRASOPRAT, Petitioner-Appellant, v. Michael BENOV, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.3d 1009

Suwit PRASOPRAT, Petitioner-Appellant, v. Michael BENOV, Warden, Respondent-Appellee.

No. 03-57253.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2004.

Submission Vacated November 8, 2004.

Resubmitted August 15, 2005.

Filed August 31, 2005.

COPYRIGHT MATERIAL OMITTED

Barry O. Bernstein, Burbank, CA, for the petitioner-appellant.

Daniel Scott Goodman, Assistant United States Attorney, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding. D.C. No. CV 02-08751 HLH.

Before: PREGERSON, TASHIMA, and PAEZ, Circuit Judges.

TASHIMA, Circuit Judge:

Suwit Prasoprat, a United States citizen fighting extradition to Thailand, appeals an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Prasoprat contends that his due process rights were violated when the extradition court denied his motion seeking discovery of information related to the use of the death penalty in Thailand for drug offenses. He also contends that the extradition court should have denied his extradition on humanitarian grounds. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm the district court.

Extradition from the United States is a diplomatic process that is initiated by a request from the nation seeking extradition directly to the Department of State. Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir.2003). "After the request has been evaluated by the State Department to determine whether it is within the scope of the relevant extradition treaty, a United States Attorney ... files a complaint in federal district court seeking an arrest warrant for the person sought to be extradited." Id.

If, after a hearing regarding the evidence of criminality against a person sought to be extradited, a judge or magistrate judge

deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention ..., he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person....

18 U.S.C. § 3184. Thus, a magistrate or judge first holds a hearing to determine "whether (1) the crime is extraditable; and (2) there is probable cause to sustain the charge." Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir.2000) (footnote omitted) ("Cornejo-Barreto I").¹ The magistrate judge "has no discretionary decision to make." Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir.1997). Rather, "[i]f the evidence is sufficient to sustain the charge, the inquiring magistrate judge is required to certify the individual as extraditable to the Secretary of State and to issue a warrant." Blaxland, 323 F.3d at 1208. The Secretary of State then determines in her discretion whether the individual will be surrendered. Id. (citing United States v. Lui Kin-Hong, 110 F.3d 103, 110 (1st Cir.1997); 18 U.S.C. § 3186).

BACKGROUND

In 1998, a confidential informant reported to an agent of the Drug Enforcement Administration ("DEA") that Prasoprat was involved in heroin trafficking between Bangkok, Thailand, and Los Angeles.² The DEA monitored Prasoprat for several years and, in 2001, the United States filed a complaint in the United States District Court on behalf of the Government of the Kingdom of Thailand, seeking Prasoprat's extradition to Thailand pursuant to the extradition treaty between the United States and Thailand. The complaint alleged that Prasoprat and another individual were wanted in Thailand for drug offenses that are covered by the extradition treaty. Prasoprat was ordered detained by a magistrate judge.

Prasoprat filed a motion for discovery, seeking information allegedly in the government's "exclusive possession" that related to the use of the death penalty in Thailand as punishment for drug offenses. Prasoprat argued that the extradition request violated the extradition treaty because the offense for which extradition was sought was punishable by death in Thailand but not in the United States.³ He therefore sought an order "for the government to disclose any information that the death penalty is the punishment for drug convictions in Thailand."

The magistrate judge denied Prasoprat's discovery motion. He reasoned that the extradition treaty explicitly placed the authority to examine the issue of the death penalty in determining extradition within the executive branch, not the judicial branch. The court thus ruled that discovery regarding the availability of the death penalty was not appropriate.

Following an extradition hearing, the magistrate judge determined that the government had established probable cause to sustain the narcotics charges. The court therefore entered an extradition certification, ordering that Prasoprat was extraditable and certifying the matter to the United States Secretary of State to issue a warrant to extradite Prasoprat.

Prasoprat then filed this petition for a writ of habeas corpus. The magistrate judge submitted a report and recommendation to the district court, recommending that the petition be denied. The district court adopted the report and denied Prasoprat's petition. See Prasoprat v. Benov, 294 F.Supp.2d 1165 (C.D.Cal.2003). Prasoprat filed a timely notice of appeal. The district court issued a certificate of appealability on two grounds: (1) the extradition court's denial of Prasoprat's discovery request for information regarding the death penalty in Thailand for drug possession; and (2) the extradition court's refusal to deny extradition on humanitarian grounds.

STANDARD OF REVIEW

The decision to certify a person as extraditable is not subject to direct appeal but may be challenged collaterally through habeas corpus review. Barapind v. Enomoto, 400 F.3d 744, 748 n. 5 (9th Cir.2005) (en banc) (per curiam); Cornejo-Barreto I, 218 F.3d at 1009. The district court's habeas review of an extradition order is limited to: (1) whether the extradition court had jurisdiction to conduct the proceeding and jurisdiction over the individual sought; (2) whether the extradition treaty was in force and the crime fell within the treaty's terms; (3) whether there was probable cause that the individual committed the crime; and (4) whether the crime fell within the political offense exception. Id. at 1009-10; Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir.1999); see also Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925) (stating that "habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and ... whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty").

We review de novo the district court's denial of a habeas petition in extradition proceedings. Cornejo-Barreto I, 218 F.3d at 1009; see also Barapind, 400 F.3d at 748 (reviewing de novo the district court's decision on questions of law and mixed questions of law and fact). The district court's denial of a discovery request in an extradition case is reviewed for an abuse of discretion. Emami v. United States Dist. Court, 834 F.2d 1444, 1452 (9th Cir.1987).

DISCUSSION

On appeal, Prasoprat raises two issues. First, he contends that the extradition court abused its discretion in denying his motion for discovery regarding the use of the death penalty in Thailand for drug offenses. Second, he argues that the extradition court should have denied extradition on humanitarian grounds.

I. Discovery Motion

"An extradition proceeding is not a trial[.]" Emami, 834 F.2d at 1452. Thus, "discovery in an international extradition hearing is limited and lies within the discretion of the magistrate." United States v. Kraiselburd (In re Extradition of Kraiselburd), 786 F.2d 1395, 1399 (9th Cir.1986); see also, e.g., Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir.1991) (stating that, "in an extradition proceeding, discovery is not only discretionary with the court, it is narrow in scope"); cf. Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir.1988) ("Although there is no explicit statutory basis for ordering discovery in extradition proceedings, the extradition court has the inherent power to order such discovery procedures as law and justice require.").

The issue regarding which Prasoprat sought discovery — the use of the death penalty in Thailand — was outside the purview of the magistrate judge. Article 6 of the extradition treaty between the United States and Thailand deals with capital punishment and states:

When the offense for which extradition is sought is punishable by death under the laws of the Requesting State and is not punishable by death under the laws of the Requested State, the competent authority of the Requested State may refuse extradition unless:

(a) the offense is murder as defined under the laws of the Requested State; or

(b) the competent authority of the Requesting State provides assurances that it will recommend to the pardoning authority of the Requesting State that the death penalty be commuted if it is imposed.

In the case of the United States of America, the competent authority is the Executive Authority.

Extradition Treaty with Thailand, Dec. 14, 1983, U.S.-Thail., art. 6, 1983 U.S.T. Lexis 418, available at http://www.usextradition.com/thailand — bi.htm. The treaty thus clearly provides that the executive branch holds the authority for determining extradition when the death penalty is involved.

The only purpose of the extradition hearing is for the magistrate judge to determine whether the crime is extraditable and whether there is probable cause to support the charge. Cornejo-Barreto I, 218 F.3d at 1009. If those requirements...