Genevieve Ann-Marie Yapp v. Janet Reno, Attorney General of the United States of America , 26 F.3d 1562 ( 1994 )

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, posses-

sion 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. § 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. § 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. § 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 “[wjhen 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 to international extradition proceedings by its own force or through the Due Process Clause, Neely says it will apply where “provided for by treaty.” 180 U.S. at 123, 21 S.Ct. at 307. Yapp then points to Article 5 of the 1931 Extradition Treaty, which provides that

extradition shall not take place if, subsequently to the commission of the crime or offence or the institution of the penal prosecution or the conviction thereon, exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of the High Contracting Party applying or applied to.

1931 Extradition Treaty, art. 5, 47 Stat. at 2124.¹ Yapp argues that a lapse of time after “the institution of the penal prosecution” must refer to a speedy trial violation. Thus, she .asserts that Article 5 prohibits extradition because Bahamian authorities violated her right to a speedy trial under the Sixth Amendment.

The district court noted that “[m]any civil law countries have statutes of limitations which apply to the time within which a person must begin serving a sentence” and decided that it was “likely that the language of the treaty regarding a lapse of time since the ‘institution of the prosecution’ refers to this limitation rather than to speedy trial.” R.l-9 at 5. The government now similarly argues that Article 5 refers only to the running of either nation’s applicable statute of limitations, not to an alleged speedy trial violation.

Yapp’s argument that Article 5 of the 1931 Extradition Treaty applies to a speedy trial violation by a foreign government, in addition to the running of a statute of limitations, presents a question of first impression in this country. The fact that the 1931 Extradition Treaty remains in force with 30 nations around the world makes this a question of some importance.² We begin our analysis with what Yapp asserts is “the only reported decision even close to being on point here.” Appellant’s Br. at 11.

In the case reported as In re Extradition of Mylonas, 187 F.Supp. 716 (N.D.Ala.1960), the district court considered the meaning of the lapse of time provision in the United States extradition treaty with Greece. Treaty of Extradition, May 6, 1931, U.S.-Greece, art. V, 47 Stat. 2186, 2190. The defendant argued that he was exempt from prosecution due to “lapse of time or other lawful cause” because he had “been deprived of a prompt and speedy trial.” Mylonas, 187 F.Supp. at 721. The district court decided that the lapse of time provision “would apply to any applicable statute of limitations, and should also be held to apply to the provisions for a speedy trial as spelled out in the Sixth Amendment of the Federal Constitution. ...” Id. at 721. After considering the defendant’s case, the district court was “of the opinion that the accused has not been afforded a speedy trial, and that extradition should be denied on that ground, whether the failure to act be said to fall within the exemption due to ‘lapse of time,’ or whether due to ‘other lawful cause.’ ” Id.

Last year in Martin, however, we expressly disapproved of Mylonas. 993 F.2d at 829 n. 8. Yapp submits that we misread Mylo-nas to be holding that the Sixth Amendment’s guarantee of a speedy trial applied in international extradition cases as a matter of constitutional law. In fact, says Yapp, the district court in Mylonas was interpreting the treaty language to import the speedy trial guarantee and make it applicable by agreement of the parties. Whether the holding in Mylonas is construed as interpretation of the Constitution or interpretation of a treaty, we do not find it persuasive.

The Ninth Circuit addressed an argument analogous to Yapp’s in Kamrin v. United States, 725 F.2d 1225 (9th Cir.), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984). In Kamrin, a provision in the United States extradition treaty with Australia granted extradition defendants “the right to use such remedies and recourses as are provided by [the law of the requested State].” Treaty on Extradition, May 14, 1974, U.S.-Austl., art. X, 27 U.S.T. 957, 966. The defendant argued that this provision entitled him to a Fifth Amendment Due Process right to a trial unimpaired by the passage of time. Id. at 1227-28. The court rejected the defendant’s claim, holding that due process rights could not be extended extraterritorially and that the treaty only required “application of the requesting state’s statute of limitations.” Id.. at 1228. The court later rejected a similar argument under the “remedies and re-courses” provision of the United States extradition treaty with Argentina, Treaty on Extradition, Jan. 21, 1972, U.S.-Arg., art. 10, 23 U.S.T. 3501, 3511, holding that where extradition was not barred by the statute of limitations, the “remedies and recourses” provision did not entitle a defendant to additional constitutional protections. In re Extradition of Kraiselburd, 786 F.2d 1395, 1398 (9th Cir.), cert. denied, 479 U.S. 990, 107 S.Ct. 586, 93 L.Ed.2d 588 (1986).

Yapp’s argument is seemingly better than those presented in Kamrin and Kraiselburd, however, because it relies on Article 5’s reference to a lapse of time after “institution of the penal prosecution.” Such language would at least appear amenable to the interpretation Yapp suggests. However, “in United States tradition the primary object of interpretation is to ‘ascertain the meaning intended by the parties’; ‘the ordinary meaning of the words of the agreement’ is a factor to be taken into account, as are the preparatory materials.” Restatement (Third) of Foreign Relations Law of the United States § 325 reporter’s note 4 (1986) (quoting Restatement (Second) of Foreign Relations Law of the United States §§ 146, 147 (1965)).

Weighing heavily against Yapp’s position is the fact that for over a century, the term “lapse of time” has been commonly associated with a statute of limitations violation. See, e.g., Restatement (Third) § 476 cmt. e; I John B. Moore, A Treatise on Extradition and Interstate Rendition § 373 (1891). The text of the latest Restatement refers to the expiration of “the applicable period of limitation” as a ground for refusing extradition; nowhere does it mention the defendant’s right to a speedy trial. Restatement (Third) § 476(l)(d). The preratification materials accompanying the 1990 Extradition Treaty with The Bahamas likewise make explicit that the term “lapse of time” in the new treaty refers to the applicable statute of limitations, with no indication that this interpretation represents a change from the 1931 Extradition Treaty. S. Treaty Doc. No. 17, at VII (“Article 6 mandates the denial of extradition if prosecution is barred by the statute of limitation of the Requesting State-”); S.Exec.Rep. No. 29, at 7 (“This article requires that the requested state deny extradition if the requesting State’s statute of limitation bars the prosecution of the offense in question.”).³

Moreover, interpreting a lapse of time “subsequently to ... the institution of the penal prosecution” to invoke the right to a speedy trial would ultimately conflict with the rule of non-inquiry in international extradition cases. As we noted in Martin, the rule of non-inquiry “precludes extradition magistrates from assessing the investigative, judicial, and penal systems of foreign nations when reviewing an extradition request.” 993 F.2d at 829. Determining whether a statute of limitations has run requires a mathematical calculation that can usually be performed simply by referring to the applicable statutory provision. A speedy trial inquiry would require a district judge or magistrate judge, generally unfamiliar with foreign judicial systems and the problems and circumstances facing them, to assess the reasonableness of a foreign government’s actions in an informational vacuum. We do not think the parties who negotiated the 1931 Extradition Treaty would have intended to abrogate the rule of non-inquiry without stating their intention to do so more explicitly.

We agree with the district court that Article 5’s reference to a lapse of time after “the institution of the penal prosecution” is meant simply to clarify that a statute of limitations can run, in certain circumstances, even after criminal proceedings have begun. As the district court noted, civil law countries often have statutes of limitations applying to the time in which a person must begin serving his sentence. See 4 Michael Abbell & Bruno A. Ristau, International Judicial Assistance § 13-2-4(18), at 96 n. 3 (1990). Including such a provision in a treaty between two common law countries might seem unusual, but under United States law an arrest, which could qualify as “the institution of the penal prosecution” for the purposes of Article 5, does not toll the statute of limitations. In re Extradition of Assarsson, 687 F.2d 1157, 1161 n. 8 (8th Cir.1982); Powell v. United States, 352 F.2d 705, 707 n. 5 (D.C.Cir.1965). Likewise, a statute of limitations is not tolled by an indictment that is dismissed for failure to prosecute. United States v. Peloquin, 810 F.2d 911, 912-13 (9th Cir.1987); United States v. DiStefano, 347 F.Supp. 442, 444-45 (S.D.N.Y.1972).

Thus, we hold that the “lapse of time” provision in Article 5 of the 1931 Extradition Treaty refers to the running of a statute of limitations and not to a defendant’s Sixth Amendment right to a speedy trial. Having so held, we need not decide whether the actions of the Bahamian authorities violated Yapp’s right to a speedy trial under the test established in Barker v. Wingo.⁴, We note, however, that Yapp may address her argument on this point to the Secretary of State, who exercises much broader discretion in international extradition cases than do the federal courts. See Martin, 993 F.2d at 829. Additionally, the courts of The Bahamas might afford Yapp another forum for presenting a similar argument under the Bahamian constitution.⁵

Conclusion

For the reasons stated, the judgment of the district court is AFFIRMED.

1 . The parties properly agree that the 1931 Extradition Treaty between the United States and the United Kingdom remains in force between the United States and the Commonwealth of The Bahamas. In re Extradition of Tuttle, 966 F.2d 1316, 1317 (9th Cir. 1992); United States v. Bowe, 1990 App.Cas. 500, 525-27 (P.C.1989) (appeal taken from Bah.); see also Office of the Legal Advisor, U.S. Dep't of State, Treaties in Force 13 (1993). The United States has signed and ratified a new extradition treaty with The Bahamas, see Extradition Treaty, Mar. 9, 1990, U.S.-Bah., S. Treaty Doc. No. 17, 102d Cong., 1st Sess. (1991) (the "1990 Extradition Treaty”), but the new treaty has not yet entered into force. See Recent Actions Regarding Treaties to which the United States is a Party, 31 I.L.M. 1598 & n. 6 (1992); 1990 Extradition Treaty, art. 20(1) — (2), S. Treaty Doc. No. 17, at 19. In any event, the new treaty provides that the 1931 Extradition Trealy applies to any extradition proceedings pending when the new treaty enters into force. 1990 Extradition Treaty, art. 20(4), S. Treaty Doc. No. 17, at 20; see also S.Exec.Rep. No. 29, 102d Cong., 2d Sess. 13 (1992).

2 . The 1931 Extradition Treaty remains in the force between the United States and the following 30 countries: The Bahamas, Barbados, Burma (Myanmar), Cyprus, Fiji, The Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Lesotho, Malawi, Malaysia, Malta, Mauritius, Nauru, Nigeria, Pakistan, Papua New Guinea, Seychelles, Sierra Leone, Singapore, Sri Lanka, Swaziland, Tanzania, Tonga, Trinidad and Tobago, and Zambia. See 18 U.S.C.A. § 3181 note (West Supp.1994) (Treaties of Extradition).

3 . Had the 1990 Extradition Treaty been in force when The Bahamas requested Yapp’s extradition, it appears that it would have foreclosed the argument Yapp makes here. The new treaty bars extradition only "when all prosecution has become barred by lapse of time according to the laws in the Requesting State.” 1990 Extradition Treaty, art. 6, S.Treaty Doc. No. 17, at 6 (emphasis added).

4 . We need not address the declaration submitted after oral argument by the Department of State. Declaration of Robert K. Harris, U.S. Dep’t of State Decl. No. 9408327-1 (May 17, 1994). The Declaration purports to represent the Department's legal interpretation of Article 5 of the 1931 Extradition Treaty. While the Declaration supports our holding, it was not presented to the district court below and is not a part of the Record in this case. We question whether such a Declaration constitutes "supplemental authority” which may be submitted at such a late date pursuant to Fed.R.App.P. 28(j).

5 . The Constitution of the Commonwealth of The Bahamas provides criminal defendants with a right to "a fair hearing within a reasonable time.” Bah. Const, ch. Ill, § 20. The Privy Council has interpreted identical language in the Jamaican constitution to require an analysis of the criteria articulated in Barker v. Wingo. See Bell v. Director of Pub. Prosecutions, 1985 App. Cas. 937, 951-53 (P.C.) (appeal taken from Jam.) (acknowledging the desirability of applying the Barker v. Wingo criteria "to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings").