Yapp v. Reno

• Decision Date: 03 August 1994
• Docket Number: No. 92-4905,92-4905
• Parties: Genevieve Ann-Marie YAPP, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1562

26 F.3d 1562

Genevieve Ann-Marie YAPP, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States of America, Respondent-Appellee.

No. 92-4905.

United States Court of Appeals Eleventh Circuit.

Aug. 3, 1994.

Brenda G. Bryn, Asst. Federal Public Defender, Miami, FL, for appellant.

Mary K. Butler, U.S. Attorney's Office, Jeanne M. Mullenhoff, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COX and CARNES, Circuit Judges, and WOOD ^*, Senior Circuit Judge.

COX, Circuit Judge:

Introduction

The principal issue in this case is whether the lapse of time provision in the United States extradition treaty with the Commonwealth of The Bahamas bars extradition when a defendant's right to a speedy trial under the Sixth Amendment to the United States Constitution has been violated by Bahamian officials. We hold that the district court correctly decided that the lapse of time provision refers only to the running of either nation's applicable statute of limitations and not to violations of the constitutional right to a speedy trial.

I. Background

In April 1986, Genevieve Ann-Marie Yapp was arrested in The Bahamas after an airport customs inspection allegedly revealed over 100 grams of cocaine powder in a brown paper bag concealed under her clothing. Yapp, a Jamaican national and a permanent resident of the United States, was charged with exportation of dangerous drugs, possession of dangerous drugs with intent to supply in violation of the Dangerous Drugs Act, Bah.Rev.Stat.Law, ch. 223 (1965), as amended by Act No. 1 (1980) (Bah.) (current version at Bah.Rev.Stat.Law, ch. 213 (1988)). The next day, she was arraigned in Magistrate's Court in Nassau and released on bond on the condition that she return for trial in July 1986. Yapp then traveled to the United States.

Yapp states that the Bahamian authorities confiscated her green card during her arrest. She says that after her arraignment, the police did not return the green card, but gave her a receipt with her green card number on it, promising her that she would be able to use the receipt to travel. Yapp also states that the Bahamian authorities copied her work telephone number, the telephone number and address of a girlfriend with whom she was staying in Miami, and the address of her sister, Jacqueline Yapp.

Yapp says that after returning to Miami, she spoke with an official in the U.S. Immigration Office and was told that she would need to resolve her case in The Bahamas before she could recover her green card. According to Yapp, she went to the airport and attempted to purchase a ticket to Nassau the day before her trial was scheduled, but the airline would not honor the green card receipt she had been given in The Bahamas. Yapp says she then called her lawyer in the Bahamas and was told that he would attempt to obtain a continuance. Yapp insists that she again tried without success to fly to Nassau on the scheduled day of her trial.

Yapp's lawyer was able to obtain a continuance until October 1986. However, Yapp failed to appear for trial in October 1986, and a warrant for her arrest was issued in The Bahamas.

II. Procedural History

In May 1988, the government of The Bahamas filed a formal request for extradition under the 1931 Extradition Treaty in force between the United States and the Commonwealth of The Bahamas. Extradition Treaty, Dec. 22, 1931, U.S.-U.K., 47 Stat. 2122, continued in force by Extradition Agreement, Mar. 7-Aug. 17, 1978, U.S.-Bah., 30 U.S.T. 187 (the "1931 Extradition Treaty"). In August 1990, the United States filed a complaint for Yapp's extradition and a motion requesting that a certification of her extraditability and commitment be forwarded to the Secretary of State in accordance with 18 U.S.C. Sec. 3184 (1988) and Article 8 of the 1931 Extradition Treaty. A warrant was issued, and Yapp was arrested and arraigned a few days later in the United States District Court for the Southern District of Florida.

At a hearing in April 1991, the magistrate judge accepted the parties' stipulations and found that for the purposes of 18 U.S.C. Sec. 3184, there was sufficient evidence that: (1) there were charges pending against Yapp in The Bahamas; (2) Yapp was the person sought to be extradited; (3) there was probable cause to believe that Yapp committed the crimes with which she was charged in The Bahamas as named in the extradition complaint; and (4) the charged offenses were crimes for which the United States was required to seek extradition pursuant to Articles 3 and 5 of the 1931 Extradition Treaty. The magistrate judge also found that Yapp had been charged within the Bahamian six-month statute of limitations.

Yapp moved to dismiss the extradition complaint on the grounds that: (1) her right to a speedy trial under the Sixth Amendment to the United States Constitution had been violated by Bahamian authorities, see Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972) (announcing factors to be weighed in determining a speedy trial violation); and (2) Article 5 of the 1931 Extradition Treaty barred extradition: (a) when the applicable statute of limitation in either country had run, or (b) when the defendant's constitutional right to a speedy trial had been violated. Yapp argued that the Bahamian government's failure to seek her extradition from July 1986 until April 1988 and its confiscation of her green card, which prevented her from returning to The Bahamas, violated her speedy trial rights. The United States opposed Yapp's motion on the grounds that a United States court could not impose the U.S. constitutional right to a speedy trial upon Bahamian courts and alternatively, that Yapp had failed to failed to establish a speedy trial violation.

The magistrate judge denied Yapp's motion to dismiss the extradition complaint, found her to be extraditable, and certified her extraditability pursuant to 18 U.S.C. Sec. 3184. Addressing Yapp's argument that Article 5 of the 1931 Extradition Treaty barred her extradition, the magistrate judge held that Article 5 only barred extradition when an applicable statute of limitations had run and did not apply to alleged violations of a defendant's right to a speedy trial under the United States Constitution. Because the magistrate judge held that the right to a speedy trial in the United States Constitution could not be imposed on the Bahamian courts under the 1931 Extradition Treaty, he declined to consider whether Yapp had established a speedy trial violation.

Yapp then petitioned the district court for a writ of habeas corpus. The district court denied the petition and adopted the magistrate judge's Report and Recommendation, holding that "the right to speedy trial is not applicable to extradition proceedings, and that the treaty at issue in this case does not require otherwise." R. 1-11 at 1. Yapp appeals the judgment of the district court.

III. Issues on Appeal

The threshold issue is whether Article 5 of the 1931 Extradition Treaty bars extradition when a defendant's speedy trial rights under the Sixth Amendment have been violated by Bahamian officials. If Article 5 does bar extradition under these circumstances, the second issue is whether Yapp's Sixth Amendment right to a speedy trial has been violated.

IV. Standards of Review

As we noted last year in Martin v. Warden, Atlanta Pen, 993 F.2d 824 (11th Cir.1993), extradition is an executive function and habeas corpus review of a magistrate judge's certification of extraditability is limited to deciding "whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Id. at 828 (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)). Deciding this case, however, also requires us to interpret the meaning of the lapse of time provision of the 1931 Extradition Treaty. Treaty interpretation presents a question of law, subject to de novo review. In re Extradition of Howard, 996 F.2d 1320, 1329 (1st Cir.1993); United States v. Merit, 962 F.2d 917, 919 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 244, 121 L.Ed.2d 178 (1992). Determining whether a defendant's right to a speedy trial has been violated is a mixed question of law and fact; we review the law de novo and findings of fact for clear error. United States v. Premises Located at Route 13, 946 F.2d 749, 754 (11th Cir.1991); United States v. Wragge, 893 F.2d 1296, 1298 n. 4 (11th Cir.1990).

V. Discussion

In Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901), the Supreme Court said:

When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States.

Id. at 123, 21 S.Ct. at 307. Thus, we have held that "[w]hen a defendant is tried in a foreign country, he or she is entitled only to the procedural protections accorded by foreign law." Martin, 993 F.2d at 830. We have accordingly refused, as a matter of constitutional law, to recognize any right to a speedy trial in international extradition proceedings under either the Sixth Amendment or the Due Process Clause of the Fifth Amendment. Id. at 829; see also Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir.1978) (Sixth Amendment not applicable to extradition proceedings); Jhirad v. Ferrandina, 536 F.2d 478, 485 n. 9 (2d Cir.) (same), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976).

Conceding these points, Yapp argues that while the Sixth Amendment's guarantee of a speedy trial may not apply...