United States v. Doherty

• Decision Date: 25 June 1985
• Docket Number: No. 85 Civ. 935-CSH.,85 Civ. 935-CSH.
• Citation: 615 F. Supp. 755
• Parties: UNITED STATES of America, Plaintiff, v. Joseph Patrick Thomas DOHERTY, Defendant.
• Court: U.S. District Court — Southern District of New York

615 F. Supp. 755

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

No. 85 Civ. 935-CSH.

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

June 25, 1985.

Rudolph W. Giuliani, U.S. Atty., New York City, for United States; Thomas E. Moseley, Asst. U.S. Atty., New York City, of counsel.

Somerstein & Pike, New York City, for defendant; Mary Boresz Pike, New York City, of counsel.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

In this action the United States, on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland ("U.K."), seeks by the vehicle of declaratory judgment a collateral review of an order denying extradition.

The U.K. sought the extradition from the United States of defendant Joseph Patrick Thomas Doherty. It based that extradition request upon Doherty's conviction in Northern Ireland for murder, attempted murder, alleged possession of firearms and ammunition, and other crimes. The matter came before District Judge John E. Sprizzo of this Court, sitting as an "extradition magistrate," First National City Bank of New York v. Aristeguieta, 287 F.2d 219, 220 (2d Cir.1960), vacated as moot, 375 U.S. 49, 84 S.Ct. 144, 11 L.Ed.2d 106 (1963), pursuant to 18 U.S.C. § 3184.¹ Judge Sprizzo refused to certify Doherty to the Secretary of State for extradition. Matter of Doherty by Government of United Kingdom, 599 F.Supp. 270 (S.D.N.Y.1984). Finding that Doherty committed the underlying acts as a member of the Provisional Irish Republican Army ("PIRA"), Judge Sprizzo concluded that Doherty's extradition was barred by the "political offense" exception contained in the relevant extradition treaty.²

The U.K. was dissatisfied with that result. But it did not appeal Judge Sprizzo's order, unquestionably because grants or denials of requests for extradition are not appealable by either party under federal law. Matter of Mackin, 668 F.2d 122 (2d Cir.1981).

The proposed extraditee Mackin, like Doherty a PIRA member, was sought for extradition by the U.K. under circumstances identical to those at bar. Following a magistrate's decision denying the request, the United States on behalf of the U.K. took an appeal, which the Second Circuit dismissed for lack of appellate jurisdiction.

In Mackin Judge Friendly wrote, during the course of a comprehensive and scholarly opinion:

"The extraditee may seek a writ of habeas corpus, the denial or grant of which is appealable, see note 8, supra, 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, supra, 573 F.2d 1360 at 1365-66 9th Cir.1978; In re Gonzalez, 217 F.Supp. 717 (S.D.N.Y.1963); Ex parte Schorer, 195 F. 334 (E.D.Wis. 1912). Both these remedies are inconsistent with the notion that the original orders were appealable. If the grant of a request were appealable, habeas corpus would not lie since that writ cannot be used as a substitute for an appeal. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947). If denial of a request were appealable, a second request would ordinarily be defeated by the principle of res judicata. See Hooker v. Klein, supra, 573 F.2d at 1367-68."

668 F.2d at 128 (emphasis in original).

Nor has the U.K. sought the assistance of the United States in refiling its extradition request with another judge, as Mackin points out it can. Rather, the U.K. seeks collateral review in this Court of Judge Sprizzo's order by invoking the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. Subject matter jurisdiction is posited upon 28 U.S.C. § 1331.³

Invocation of the Declaratory Judgment Act will lead, the Government contends, "to an authoritative construction of key treaty provisions." I do not flatter myself that this is a reference to me. Clearly what the U.K. is aiming for is a decision on the merits of the extradition request rendered by an Article III judge, whose decision is appealable under existing statutes to higher courts.

Doherty's contention is that the U.K. as requesting party may not avail itself of the Declaratory Judgment Act to seek collateral review of Judge Sprizzo's denial of extradition. In consequence, in addition to challenging subject matter jurisdiction (fn. 3, supra), Doherty argues that the complaint fails to state a claim upon which relief can be granted. I directed that these questions be first considered before briefing or consideration of the merits.

The Government places primary reliance upon Wacker v. Bisson, 348 F.2d 602 (5th Cir.1965), in which an extraditee whose extradition had been ordered, after unsuccessfully petitioning for a writ of habeas corpus, was permitted by the majority of a Fifth Circuit panel to invoke the Declaratory Judgment Act. Proceeding from that holding, the Government argues that it "seeks literally nothing more than the same right to obtain judicial review of an adverse extradition decision by declaratory judgment that Doherty would have had if the matter had gone the other way." Brief at 2.

That argument raises two questions: (1) was Wacker correctly decided; and (2) assuming that it was, is the converse proposition for which the Government contends a sound one? In the vernacular, is sauce for the goose also sauce for the gander?

I am at liberty to consider the first of these questions, because the Fifth Circuit's decision in Wacker is not binding upon this Court. There is apparently no case directly on point in the Second Circuit. Accordingly I may choose between Judge Wisdom's opinion for the Wacker majority and Judge Rives's dissent. As for the converse proposition now urged by the Government — whether the requesting party may obtain collateral review by declaratory judgment if its extradition request is denied — the case at bar is evidently one of first impression in any court.

In Wacker, the government of Canada sought the extradition of one J. Samuel Wacker. Wacker was arrested under the complaint for extradition and held without bail pending preliminary examination. That detention was tested by a writ of habeas corpus which the district court denied. A United States Commissioner then held an extradition hearing pursuant to § 3184, and certified to the Secretary of State that the evidence was sufficient to sustain the specified charges and thus justify extradition. Wacker brought another writ of habeas corpus, which the district court rejected. At that point Wacker invoked the Declaratory Judgment Act, a procedural remedy which the majority of the Fifth Circuit panel (reversing the district court) held was available to him. Judge Wisdom wrote:

"The underlying policies of the Declaratory Judgment Act support the use of declaratory judgments in extradition cases. It is a useful remedy permitting a direct confrontation between the two real parties in interest, the extraditee and the demanding government, without the triangular complications of habeas corpus." 348 F.2d at 608.

Judge Rives dissented, stating in part:

"The point of holding that the Declaratory Judgment Act has opened a backdoor to review of an extradition order escapes me when the front door provided by the Great Writ grants access to the same court of justice and provides the same scope of relief."

* * * * * *

"It is important that the treaty obligations of the United States be honored without unnecessary delay, and this case well illustrates how permitting review by declaratory judgment in addition to habeas corpus may result in unreasonable, if not interminable delay, not consistent with the prompt performance of our treaty obligations."

Id. at 612-13.⁴

On the issue of the availability of declaratory judgment in extradition proceedings, I prefer Judge Rives's analysis. The extradition statute is an amalgam of law and diplomacy, but with an emphasis upon the latter. "The substantive right of a foreign country to request the return of a fugitive and the duty of the United States to deliver the fugitive depends entirely on the existence of a treaty between the requesting nation and the United States." In re United States, 713 F.2d 105, 107-08 (5th Cir.1983). "Under 18 U.S.C. § 3186, the Secretary of State may not surrender any person to a foreign government unless the person has been found extraditable by a magistrate at a hearing held under 18 U.S.C. § 3184.... These statutory provisions safeguard the fugitive's due process rights." Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980). Once the magistrate determines that the fugitive is subject to extradition and so certifies to the Secretary of State, "the decision to surrender the fugitive then rests in the discretion of the Secretary of State." In re United States, supra, at 108. "The ultimate decision to extradite is a matter within the exclusive prerogative of the Executive in the exercise of its powers to conduct foreign affairs." Escobedo v. United States, supra, at 1105; see also Sindona v. Grant, 619 F.2d 167, 174 (2d Cir.1980). Given the paramount importance of foreign affairs in extradition proceedings, it is not surprising that Congress provided limited (albeit meaningful) due process rights of judicial review. Extradition under § 3184 does not involve a trial court docketing a judgment for possible review by a court of appeals. Rather, it involves the certification of findings and the underlying record by a judge for forwarding to the Secretary of State, so that, in the latter's discretion, further proceedings may be had "according to the stipulations of the treaty or convention." The distinction between "court" and "judge" is central to the concept of extradition; see Judge Friendly's analysis in Mackin, supra, at 668 F.2d 129 n. 11, where the diplomatic elements of extradition are stressed: "However,...