U.S. v. Doherty

• Decision Date: 13 March 1986
• Docket Number: No. 499,D,499
• Citation: 786 F.2d 491
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joseph Patrick Thomas DOHERTY, Defendant-Appellee. ocket 85-6248.
• Court: U.S. Court of Appeals — Second Circuit

Page 491

786 F.2d 491

UNITED STATES of America, Plaintiff-Appellant, v. Joseph Patrick Thomas DOHERTY, Defendant-Appellee.

No. 499, Docket 85-6248.

United States Court of Appeals Second Circuit.

Argued Dec. 4, 1985.

Decided March 13, 1986.

Thomas E. Moseley, Asst. U.S. Atty., for the S.D. of N.Y. (Rudolph W. Giuliani, U.S. Atty., for the S.D. of N.Y., Steven E. Obus, Asst. U.S. Atty., for the S.D. of N.Y., of counsel), for plaintiff-appellant.

Mary Boresz Pike, New York City, (Somerstein & Pike, New York City), for defendant-appellee.

Before FRIENDLY, CARDAMONE and WINTER, Circuit Judges.

FRIENDLY, Circuit Judge: ^*

On this appeal we are required to deal, as we were in Matter of Mackin, 668 F.2d 122 (2 Cir.1981), with an attempt by the Government to escape from the long held principle that when an extradition magistrate acting under 18 U.S.C. Sec. 3184 ¹ refuses The request for extradition here at issue arose out of facts set forth in detail in the opinion of District Judge Sprizzo, sitting as an extradition magistrate. See Matter of Doherty, 599 F.Supp. 270 (S.D.N.Y.1984). The extraditee, Joseph Patrick Thomas Doherty, was a member of the Provisional Irish Republican Army ("PIRA"). On May 2, 1980, at the direction of the IRA, he and three other members of PIRA took over a private house in Belfast, holding a family hostage in the process, as part of an operation to ambush a convoy of British soldiers. A few hours later a car stopped in front of the house. Five members of the Special Air Service of the British Army emerged carrying machine guns. The two groups fired at each other; in the exchange of gunfire, Captain Westmacott of the British group was killed. Doherty was arrested and held in a Belfast prison pending trial for murder, attempted murder, illegal possession of firearms and ammunition, and belonging to the IRA, a proscribed organization. After the trial but before the decision, he escaped from prison in an operation devised by PIRA and ultimately made his way to the United States. A few days after the escape, he was convicted in absentia of the offenses charged.

to certify a person sought to be extradited under an extradition treaty, the Government's sole recourse is to submit a request to another extradition magistrate. In Mackin the attempted escape route was an appeal of the denial of certification to this court; we held that an appeal did not lie. Here the attempted escape route is an action for a declaratory judgment under 28 U.S.C. Sec. 2201, followed by an appeal to this court if the judge in the declaratory judgment action refused to take jurisdiction or ruled adversely to the Government. Although the question is closer than that decided in Mackin, we hold that this route also does not exist.

Pursuant to Article VIII of the Treaty of Extradition between the United States of America and the United Kingdom of Great Britain and Northern Ireland, 28 U.S.T. 227, T.I.A.S. No. 8468 (effective Jan. 21, 1977) ("the Treaty"), the United Kingdom submitted a request for Doherty's extradition for the offenses of which he was convicted and other offenses allegedly committed in the course of the escape from prison. Doherty was arrested in New York City by INS officials under a provisional warrant of arrest. Later the United Kingdom filed a formal request in accordance with Article VII of the Treaty in the District Court for the Southern District of New York. The matter was referred to Judge Sprizzo, who elected to sit as the extradition magistrate. The only debatable issue was whether Doherty came within Article V(1)(c)(i) of the Treaty, which provides that extradition should not be granted if "the offense for which extradition is requested is regarded by the requested Party as one of a political character."

In Mackin we rejected a contention by the Government that determination whether a particular offense is within the political offense exception is solely for the executive branch, see 668 F.2d at 132-37, and the Government has not renewed that contention here. Judge Sprizzo engaged in a careful analysis of the political offense exception.

                He rejected Doherty's contention that it sufficed to show that there was a political conflict in Northern Ireland and that the offense was committed during its course and in furtherance of it.  599 F.Supp. at 274.  He concluded that no act should be regarded as political "where the nature of the act is such as to be violative of international law, and inconsistent with international standards of civilized conduct."    Id. On the other hand, he also rejected the notion that the political offense exception is limited to "actual armed insurrections or more traditional and overt military hostilities."    Id. at 275.  Following the balancing approach of the Seventh Circuit in Eain v. Wilkes, 641 F.2d 504, 519-22, cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981), he concluded that since PIRA has an organization, discipline and command structure, the case was not fairly distinguishable from one in which Captain Westmacott's death occurred during a clash between two fully organized military forces, and held that both the offenses committed in the ambush and those committed in the prison escape were political in character and did not constitute extraditable offenses under the Treaty. 2
                

Spurning any effort to submit the request again to another extradition magistrate, the Government instituted this action against Doherty for a declaratory judgment in the District Court for the Southern District of New York. Subject matter jurisdiction was sufficiently alleged under 28 U.S.C. Sec. 1331 on the ground that the action arose under the Treaty. ³ The complaint alleged the facts and proceedings substantially as stated above. It characterized Judge Sprizzo's decision as "erroneous as a matter of law" and as "arbitrary, capricious and an abuse of discretion." The prayer was for "a Judgment declaring that John Patrick Thomas Doherty is extraditable under the Treaty and directing that this matter be certified to the Secretary of State and granting such other relief as this Court may deem just and proper." The Government moved for summary judgment, submitting seven printed volumes containing the hearing record and selected exhibits in the extradition proceedings before Judge Sprizzo. Doherty cross-moved for dismissal for lack of subject-matter jurisdiction, F.R.Civ.P. 12(b)(1), and for failure to state a claim upon which relief can be granted, F.R.Civ.P. 12(b)(6). In a careful opinion, United States v. Doherty, 615 F.Supp. 755 (S.D.N.Y.1985), Judge Haight rejected the first ground of Doherty's motion, sustained the second, and directed that the complaint be dismissed with prejudice. ⁴ This appeal followed.

DISCUSSION

The Government's position that the denial of a certificate by an extradition magistrate is subject to review by an action for a declaratory judgment is somewhat startling. The established law has been, or at any rate has been thought to be, that

the extraditee in cases of grant and the requesting party in cases of denial [of an extradition request] have alternative, albeit less effective, avenues of relief. The extraditee may seek a writ of habeas corpus, the denial or grant of which is appealable, ... and the requesting party may refile the extradition request. Collins v. Loisel, 262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062 (1923); Hooker v. Klein, ... [573 F.2d 1360, 1365-66 (9 Cir.1978) ]; In re Gonzalez, 217 F.Supp. 717 (S.D.N.Y.1963); Ex parte Schorer, 195 F. 334 (E.D.Wis.1912).

Mackin, 668 F.2d at 128. As developed in Mackin, see id. at 125-27, in its first encounter with this problem in 1847, a year before the predecessor of 18 U.S.C. Sec. 3184 was enacted, the Supreme Court stated that the extradition magistrate was exercising "a special authority, and the law has made no provision for revision of his judgment." In re Metzger, 46 U.S. (5 How.) 176, 191-92, 12 L.Ed. 104 (1847). Metzger was referred to during the debates on the predecessor of Sec. 3184, see Cong. Globe, July 28, 1848, and was followed under the new statute in In re Kaine, 55 U.S. (14 How.) 103, 119-20, 14 L.Ed. 345 (1852) (Curtis, J., concurring). ⁵ While Metzger and Kaine were attempts by extraditees to secure revision of orders granting certificates, the Office of the Attorney General, in response to the objection of a foreign government to a denial of extradition by a district judge under the predecessor of Sec. 3184, advised Secretary of State Seward in 1863 that the decision was "beyond the reach of correction either by executive or judicial power" and suggested that the foreign government submit a new request. See 10 Op. Att'y Gen. 501, 506 (1863). In 1908, Secretary of State Elihu Root advised a foreign ambassador that "[i]f the judicial authorities refuse to commit the fugitive for surrender on the ground that he is a political offender, or for any other reason, the matter is ended." Letter from Secretary Root to Minister Ugarte (Oct. 1, 1908), in 4 G. Hackworth, Digest of International Law 46 (1942).

No one has stated the longstanding principle that the Government's only remedy following denial of an extradition request is to refile the request with another extradition magistrate more clearly than the United States itself. Successive bills aimed at reforming extradition procedure have been introduced in both houses of Congress in recent years, though none has yet been enacted. See generally Bassiouni, Extradition Reform Legislation in the United States: 1981-1983, 17 Akron L.Rev. 495 (1984). One reform common to all of these bills has been a provision requiring that the Attorney General file a complaint seeking extradition with a United States district court (rather than, as under Sec. 3184, with an extradition magistrate), whose order would be appealable by either the Government or the extraditee to the appropriate court of appeals and would be reviewable in...