In Re: Howard v.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1633
IN RE: EXTRADITION OF CURTIS ANDREW HOWARD.
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
CURTIS ANDREW HOWARD,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Cyr, Circuit Judge.
Jeffrey A. Denner, with whom George Garfinkle and Perkins,
Smith & Cohen were on brief, for appellant.
Victor A. Wild, Assistant United States Attorney, with whom
A. John Pappalardo, United States Attorney, was on brief, for
appellee.
June 30, 1993
SELYA, Circuit Judge. This appeal presents several
SELYA, Circuit Judge.
issues of first impression in extradition law generally and, more
specifically, regarding a rather distinctive extradition treaty
in force between the United States and the United Kingdom of
Great Britain and Northern Ireland (U.K.). We must determine,
inter alia, (1) whether, under the treaty, the second of two
successive appeals from a certification of extraditability is
within our jurisdiction; (2) if so, what standard of review
governs such appeals; (3) whether the treaty alters the venerable
rule of noninquiry; and (4) if so, to what extent. After
grappling with these, and other, matters, we eventually address
the merits of the appeal and conclude that the determination of
extraditability must stand.
I. BACKGROUND
The seeds of this appeal were sown on June 1, 1991,
when a policeman discovered the mutilated body of Catherine
Elizabeth Ayling, a young white female, in the trunk of a rental
car abandoned at England's Gatwick Airport. Suspicion
immediately centered on respondent-appellant Curtis Andrew
Howard, a United States citizen. Charges were preferred.
Because Howard had returned to his native land, British
authorities sought to extradite him. On June 5, 1991, the United
States Attorney for the District of Massachusetts requested and
received from a federal magistrate judge a warrant for Howard's
provisional arrest. See 18 U.S.C. 3184 (1988 & Supp. II 1990);
D. Mass. Loc. Mag. R. 1(e). Howard was apprehended. He appeared
2
for an extradition hearing before the magistrate judge on
September 10, 1991.
At the hearing Howard did not dispute the existence of
probable cause to believe he had murdered Ayling. Rather,
Howard, who is black, argued that he would be prejudiced during
legal proceedings in the U.K. by reason of his race and
nationality, a circumstance which, if true, constituted a defense
to extradition under the relevant treaty. See Supplementary
Extradition Treaty, June 25, 1985, U.S.-U.K., art. 3(a),
reprinted in S. Exec. Rep. No. 17, 99th Cong., 2d Sess. 15-17
(1986) (Supplementary Treaty). In support of this defense,
Howard proffered evidence of flamboyant publicity surrounding his
case, sought to show that Britons would likely be prejudiced
against blacks particularly those accused of murdering young
white females and pointed out that England's legal system does
not make any provision for voir dire of prospective jurors.
These proffers did not sufficiently impress the magistrate: he
ruled that Howard had not established a valid defense to
extradition and thereupon issued a certification of
extraditability, together with an order of commitment.1 See 18
U.S.C. 3184.
1The magistrate found that all the basic prerequisites to
extradition had been fulfilled in that the United States and the
U.K. are parties to an extradition treaty; a criminal charge is
pending against Howard in the U.K.; the charged offense is an
extraditable crime under the treaty; the person charged is the
same person whom the government wants extradited; an arrest
warrant is outstanding; and probable cause exists to believe that
Howard committed the crime. None of these findings are contested
on appeal.
3
Howard appealed. The district court exercised
jurisdiction, reviewed the magistrate's findings for clear error,
and affirmed. See In re Howard, 791 F. Supp. 31 (D. Mass. 1992).
Howard appeals anew.
II. THE SUPPLEMENTARY TREATY
Because the Supplementary Treaty departs from accepted
extradition protocol, we trace its origins and spotlight its key
provisions.
In 1972, the United States and the U.K. negotiated new
terms governing reciprocal extradition from one nation's
territory of persons accused or convicted of certain offenses
committed in the other nation. See Extradition Treaty, June 8,
1972, U.S.-U.K., art. I, 28 U.S.T. 227, 229 (Treaty). Under the
Treaty, murder was an extraditable offense. See id. art. III(1).
Nonetheless, the Treaty allowed a signatory to refuse extradition
if it regarded the offense "as one of a political character."
Id. art. V(c)(i). This exception sired friction between the two
traditional allies when federal judges in the United States began
interpreting it to bar extradition of members of the Provisional
Irish Republican Army. See S. Exec. Rep. No. 17, supra, at 2;
see also 132 Cong. Rec. 16,558-86 (1986) (collecting cases).
To ameliorate this situation, the signatories
negotiated treaty amendments aimed at eradicating the political
offense exception for acts of violence. See S. Treaty Doc. No.
8, 99th Cong., 1st Sess. (1985) (Proposed Supplementary Treaty);
see also S. Exec. Rep. No. 17, supra, at 2. However, when
4
President Reagan submitted the Proposed Supplementary Treaty to
the Senate, seeking its advice and consent, the document received
mixed reviews. See United States and United Kingdom
Supplementary Extradition Treaty: Hearings Before the Senate
Comm. on Foreign Relations, 99th Cong., 1st Sess. (1985).
Following many months of strident debate, the opposing camps
reached a compromise, placing most violent crimes beyond the
political offense exception's reach but adding certain novel
safeguards for the protection of potential extraditees. See S.
Exec. Rep. No. 17, supra, at 4-5. On July 17, 1986, the Senate
ratified the proposed treaty subject to the addition of these,
and other, amendments. See 132 Cong. Rec. 16,819 (1986).
Following approval of the modified version by the House of
Commons, instruments of ratification were exchanged on December
23, 1986. See Supplementary Treaty, supra, reprinted at Hein's
No. KAV 2053; see also I.I. Kavass et al., Extradition: Laws and
Treaties 920.20d-h (1979 & Supp. 1989). At that point, the
Supplementary Treaty went into force.
An aspect of the Senate-forged compromise lies at the
core of the instant case. As ratified, the Supplementary Treaty
prohibits extradition "if the person sought establishes . . . by
a preponderance of evidence that . . . he would, if surrendered,
be prejudiced at his trial or punished, detained or restricted in
his personal liberty by reason of his race, religion,
nationality, or political opinions." Supplementary Treaty, art.
3(a). Appellant's case rests squarely upon this proviso.
5
III. APPELLATE JURISDICTION
The Supplementary Treaty stipulates that the trier's
findings with regard to an article 3(a) defense are "immediately
appealable by either party to the United States district court,
or court of appeals, as appropriate." Id. art. 3(b). The
initial question that commands our attention concerns the extent
of our jurisdiction under this provision. We raised this issue
at oral argument, as a court must when it harbors doubts about
the existence of its subject matter jurisdiction, see In re
Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988)
(emphasizing that "a court has an obligation to inquire sua
sponte into its subject matter jurisdiction"), and directed the
parties to furnish supplemental briefs.2
A. Past Practice.
Ordinarily neither party to an extradition proceeding
may challenge a decision rendered therein by direct appeal. This
disability developed because the relevant statute, 18 U.S.C.
3184, does not contemplate hearings by United States courts qua
United States courts, see In re Mackin, 668 F.2d 122, 125-30 (2d
Cir. 1981) (collecting authorities and tracing history of
extradition proceedings), but, instead, directs that extradition
matters be heard by "any justice or judge of the United States,"
any authorized magistrate, or certain state judges. Therefore,
2It is, of course, settled that parties cannot confer
subject matter jurisdiction on a federal court by acquiescence or
agreement. See Insurance Corp. of Ir. v. Compagnie Des Bauxites
De Guinee, 456 U.S. 694, 702 (1982).
6
an officer who presides over such a proceeding is not exercising
"any part of the judicial power of the United States." In re
Kaine, 55 U.S. (14 How.) 103, 120 (1852). Rather, the officer
acts in a non-institutional capacity by virtue of a "special
authority." In re Metzger, 46 U.S. (5 How.) 176, 191 (1847); see
also Shapiro v. Ferrandina, 478 F.2d 894, 901 n.3 (2d Cir.)
(applying same principle to current statutory provision), cert.
dismissed, 414 U.S. 884 (1973); Mackin, 668 F.2d at 125-30(same); Jimenez v. Aristeguieta, 290 F.2d 106, 107 (5th Cir.
1961) (same). The officer's only tasks are to determine whether
an individual is extraditable, and if so, to certify
extraditability to the ultimate decisionmaker (the Secretary of
State). See 18 U.S.C. 3184, 3186 (1988 & Supp. II 1990).
In light of this curious arrangement, numerous courts
have held that 28 U.S.C. 1291, which permits appeals of "final
decisions of the district courts" (emphasis supplied), does not
contemplate appeals from decisions of judicial officers sitting
in extradition matters. See, e.g., Ahmad v. Wigen, 910 F.2d
1063, 1065 (2d Cir. 1990); Quinn v. Robinson, 783 F.2d 776, 786
n.3 (9th Cir.), cert. denied, 479 U.S. 882 (1986). Given the
absence of any other statutory hook on which jurisdiction over
such appeals can be hung, a putative extraditee customarily can
challenge an order for extradition only by collateral attack,
typically through habeas corpus. See Collins v. Miller, 252 U.S.
364, 369 (1920); Koskotas v. Roche, 931 F.2d 169, 171 (1st Cir.
1991). By the same token, the government, if it fails in an
7
extradition attempt, cannot appeal, but must file anew. See
Mackin, 668 F.2d at 128; Hooker v. Klein, 573 F.2d 1360, 1364-68
(9th Cir.), cert. denied, 439 U.S. 932 (1978); see also Collins
v. Loisel, 262 U.S. 426, 430 (1923).
B. Article 3(b).
Appellant argues that the Supplementary Treaty
revolutionizes this praxis insofar as the extradition target
asserts defenses cognizable under article 3(a). The government
argues the inverse, imploring that neither the President nor the
Senate intended to work so abrupt a tergiversation. We agree
with appellant that the Supplementary Treaty, which has the force
of law, U.S. Const. art. VI, cl. 2, effects a sea change in
established policy.
The Supplementary Treaty provides that a finding anent
a so-called article 3(a) defense, involving race, religion,
nationality, or political opinion, "shall be immediately
appealable by either party to the United States district court,
or court of appeals, as appropriate." Supplementary Treaty, art.
3(b). This appeal provision, which apparently finds its genesis
in an earlier (failed) attempt to alter the protocol prohibiting
direct appeals in extradition matters, see 132 Cong. Rec. 16,599
(1986), is couched in plain language and, in our view, means
precisely what it says. See Sumitomo Shoji America, Inc. v.
Avagliano, 457 U.S. 176, 180 (1982) (explaining that a treaty's
literal language must be given effect unless patently contrary to
the signatories' intentions and expectations). In crafting the
8
appeal provision, the drafters carefully drew a distinction
between hearings held under 18 U.S.C. 3184 and appeals taken to
courts cloaked with the judicial power of the United States. In
discussing the former, the document refers to "the competent
judicial authority" who is "[i]n the United States."
Supplementary Treaty, art. 3(b); see also id. arts. 2, 3(a). By
contrast, in discussing appeals, the treaty refers to United
States courts by name. See id. art. 3(b). The same distinction
recurs in the legislative history. See, e.g., S. Exec. Rep. No.
17, supra, at 8. That is a significant datum, for, if the
language of a treaty is at all ambiguous, courts may look to
legislative history in interpreting its provisions under
virtually the same rules that obtain when courts interpret
statutes. See Factor v. Laubenheimer, 290 U.S. 276, 294-95
(1933).
The other straws in the interpretive wind bend in the
same direction. The Supplementary Treaty stipulates that the
"Federal Rules of Appellate Procedure or Civil Procedure, as
appropriate, shall govern the appeals process." Supplementary
Treaty, art. 3(b). And, again, the legislative history
reinforces the point, indicating that the disputed provision "is
not intended to make the Federal rules generally applicable to
the extradition hearing itself, but only to the appeal of a
decision under article 3(a)." S. Exec. Rep. No. 17, supra, at 8.
In short, the text of article 3(b), taken as a whole, suggests
not only that an appeal thereunder represents an entry into the
9
federal courts but also that extradition proceedings involving
article 3 differ in kind from those involving only 18 U.S.C.
3184.
We rule, therefore, that the Supplementary Treaty marks
a clean break from the ancient prohibition on direct appeals in
extradition matters; where article 3 is implicated, the
Supplementary Treaty contemplates at least one appeal as of
right. Accord In re McMullen, 981 F.2d 603, 609 (2d Cir. 1993)
(en banc). Moreover, because the Supplementary Treaty explicitly
identifies United States courts, not judges or justices, as the
appellate authority, see Supplementary Treaty, art. 3(b), it
unlocks the gate which has historically barred extradition
matters from proceeding further through the federal courts in the
same manner as other cases.
C. Successive Appeals.
Our jurisdictional odyssey is not yet ended. Noting
that article 3(b) provides for appeals to the district court or
court of appeals, the government asserted below that this
disjunctive language restricts the parties to one bite of the
apple and rules out successive appeals (such as Howard essays).
In this court, however, the government backtracks, appearing to
concede that, notwithstanding Howard's earlier appeal, we have
jurisdiction over this appeal. But, since this point implicates
appellate jurisdiction and is non-frivolous, see post (Campbell,
J., concurring), we are not at liberty simply to accept the
government's concession. See supra note 2. We proceed to ponder
10
the point.
We think the language of article 3(b) dictates a
construction antithetic to that which the government urged below.
Because the Supplementary Treaty contemplates the initiation of
extradition proceedings before either a district judge or a
magistrate judge, see S. Exec. Rep. No. 17, supra, at 5, 6, 8,
article 3(b) prudently provides for review by the "district
court, or court of appeals, as appropriate." In other words, the
disjunctive "or" is to be read not as an unusual, but
understated, restriction on the number of appeals; rather, the
term specifies that the ordinary sequence of appeals should
apply. This conclusion is supported by the reference in article
3(b) to the "appeals process," as well as by the legislative
history. See S. Exec. Rep. No. 17, supra, at 8.
We will not cart coal to Newcastle. Not even so much
as a solitary word or phrase in the Supplementary Treaty
intimates an intent to prohibit successive appeals and it is
not the courts' business to rewrite a treaty's text.3
Accordingly, we hold that article 3(b) permits successive
appeals, see, e.g., United States v. Van Fossan, 899 F.2d 636,
637-38 (7th Cir. 1990) (holding that, in the absence of an
express provision prohibiting successive appeals, the criminal
misdemeanor statute, 18 U.S.C. 3402 (1988), permits them);
3We appreciate the force of the policy considerations
mentioned by Judge Campbell, see post (Campbell, J., concurring),
but we believe that such matters must be left to those charged
with negotiating, executing, and ratifying treaties.
11
United States v. Forcellati, 610 F.2d 25, 28 (1st Cir. 1979)
(similar), cert. denied, 445 U.S. 944 (1980), to be given
expedited consideration, however, as article 3(b) itself
provides, "at every stage."
D. Recapitulation.
To sum up, the language and legislative history of the
Supplementary Treaty make it clear that the appeal right provided
by article 3(b) implicates a "decision[] of the district court"
within the meaning of 28 U.S.C. 1291. In this sense, then,
article 3(b) breaks with traditional practice by authorizing
direct appeals to the federal courts from certain determinations
regarding extradition. What is more, the pertinent treaty
provision permits successive appeals from a magistrate judge's
decision to the district court and thereafter to the court of
appeals. Because that path was followed here, appellate
jurisdiction attaches.
IV. STANDARD OF REVIEW
Having cleared the jurisdictional hurdle, we turn next
to appellant's asseveration that the district court employed a
faulty standard of review. Because this presents a purely legal
question, requiring an interpretation of the Supplementary
Treaty, our review is plenary. See, e.g., United States v.
Washington, 969 F.2d 752, 754 (9th Cir. 1992), cert. denied, 113
S. Ct. 1945 (1993); Quinn, 783 F.2d at 791.
A. Principles Governing Review.
Determinations concerning article 3(a) defenses "shall
12
be immediately appealable by either party" through the
instrumentality of "filing a notice of appeal." Supplementary
Treaty, art. 3(b). But, though this article grants rights of
appeal, it does not mention standards of review. We look,
therefore, to first principles.
Absent a specific statutory directive to the contrary,
appeals in the federal court system are usually arrayed along a
degree-of-deference continuum, stretching from plenary review at
one pole to highly deferential modes of review (e.g., clear
error, abuse of discretion) at the opposite pole. At the "no
deference" end of the continuum lie appeals involving
unadulterated questions of law, the resolution of which
customarily entails de novo review. See, e.g., Liberty Mutual
Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757 (1st
Cir. 1992). At the other end of the continuum lie appeals
involving straight factual determinations, the resolution of
which customarily entails acceptance of the trier's judgment in
the absence of palpable error. See, e.g., Cumpiano v. Banco
Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990) (holding
that appellate courts "ought not to upset findings of fact or
conclusions drawn therefrom unless, on the whole of the record,
[the appellate judges] form a strong, unyielding belief that a
mistake has been made"); see also Fed. R. Civ. P. 52(a).
There are, however, difficulties in classification.
Many cases involve what courts term "mixed" questions questions
which, if they are to be properly resolved, necessitate combining
13
factfinding with an elucidation of the applicable law. The
standard of review applicable to mixed questions usually depends
upon where they fall along the degree-of-deference continuum:
the more fact-dominated the question, the more likely it is that
the trier's resolution of it will be accepted unless shown to be
clearly erroneous. See, e.g., United States v. Mariano, 983 F.2d
1150, 1158-59 (1st Cir. 1993); Roland M. v. Concord Sch. Comm.,
910 F.2d 983, 990-91 (1st Cir. 1990), cert. denied, 111 S. Ct.
1122 (1991).
Given that the Supplementary Treaty is silent on the
subject, we presume that the framers, in providing for appeals to
the federal courts, intended ordinary standards of review to
apply. See S. Exec. Rep. No. 17, supra, at 8 ("Nothing in
article 3(b) is to be interpreted as . . . upsetting established
rules of appellate procedure."); see also Gioiosa v. United
States, 684 F.2d 176, 179 (1st Cir. 1982) (discussing standard of
review in appeal from magistrate to district court). Because
issues of the sort envisioned in article 3(a) are typically fact-
specific, appellate review of findings anent such issues will,
absent an error of law, most often proceed under the clear-error
rubric. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 289-
90 (1982) (reviewing district court findings anent race
discrimination for clear error); Beasley v. Health Care Serv.
Corp., 940 F.2d 1085, 1088 (7th Cir. 1991) (similar in respect to
discrimination based on religious beliefs); Rendon v. A T & T
Technologies, Inc., 883 F.2d 388, 392 (5th Cir. 1989) (similar;
14
discrimination based on national origin); Gierbolini-Colon v.
Aponte-Roque, 848 F.2d 331, 333 (1st Cir. 1988) (similar;
political discrimination); but cf. Bose Corp. v. Consumers Union
of United States, Inc., 466 U.S. 485, 514 (1984) (holding that
clearly erroneous standard does not apply to review of quasi-
legal "finding" of actual malice in First Amendment context).
This conclusion is buttressed by analogy to traditional
habeas corpus practice in the extradition field. When a party
collaterally challenges a magistrate's determination of
extraditability, judicial review is sharply circumscribed. See,
e.g., Fernandez v. Phillips, 268 U.S. 311, 312 (1925); In re
Manzi, 888 F.2d 204, 205 (1st Cir. 1989) (per curiam), cert.
denied, 494 U.S. 1017 (1990). The most prominent exception is
for a claim that the crime constitutes a non-extraditable
political offense. Review of political offense determinations
follows the continuum analysis described above. See Quinn, 783
F.2d at 790-91 & n.9. Because defenses under article 3(a) are
analogous to political offense determinations indeed, the
fundamental compromise undergirding the Supplementary Treaty
treated the one as a replacement for the other common sense
suggests that the same standard of review should apply.
Last, but surely not least, appellant's contention that
district court review under article 3(b) must always be de novo
is at war with the words and purposes of the Supplementary
Treaty. The treaty expresses a strong interest in expediting
extradition matters. See Supplementary Treaty, art. 3(b)
15
(providing for "immediate[]" appeals and requiring "expedited
consideration at every stage"). The legislative history is in
the same vein. See, e.g., 132 Cong. Rec. 16,607 (1986)
(admonishing that the treaty's safeguards should not afford
"protracted sanctuary in the United States"). Wholesale de novo
review not only would ignore the factfinder's superior vantage
point for judging the intricacies of a contested case but also
would be wasteful, engendering unwarranted delays in the
extradition process.
In general, then, reviewing courts should apply the
clearly erroneous standard to the trier's findings of fact in
situations where article 3 of the Supplementary Treaty is in
play.
B. Applying the Principles.
In this case, the district court treated the
magistrate's finding that no cognizable article 3(a) defense
existed as factual in nature and applied the clearly erroneous
test. As to appellant's principal claim that, if extradited,
he would suffer prejudice on account of his race or nationality
we endorse the district court's choice of a standard of review.
The claim in question challenged the magistrate's underlying
factual determination that, on the evidence adduced, appellant
had not proved meaningful prejudice. This fact-intensive finding
evokes clear-error review.4
4Since this is a successive appeal, we evaluate for
ourselves whether clear error characterized the magistrate's
factual finding that appellant failed to prove the existence of
16
There is, however, a second facet of appellant's claim,
as to which the district court chose the wrong standard of
review. The magistrate held that article 3(a) does not
necessarily bar extradition whenever a respondent shows the
existence of some preformed ideas in the requesting nation but
that the biases must rise to a level where they actually
prejudice the respondent before article 3(a) affords relief.5
The soundness of this analysis which depends upon whether the
terms employed in article 3(a) encompass all nationality-based
and race-based biases or only those directly affecting a
particular respondent involves interpretation of the
Supplementary Treaty. Treaty interpretation is a purely legal
exercise as to which, under the criteria limned above, see supra
Part IV(A), no deference is due to the trier. Accordingly, the
district court should have scrutinized the magistrate's ruling on
this issue de novo.
That the district court failed to afford plenary review
on this aspect of the case does not mean that we must remand. To
do so would needlessly throw the helve after the hatchet. See
Gioiosa, 684 F.2d at 179. Rather, because the question is
cognizable prejudice under article 3(a). See infra Part VI.
5In a second branch of his analysis, the magistrate found
that, in any event, the weight of the evidence against Howard was
so great that no decisionmaker would be distracted from it by
whatever slight biases might exist. We express no opinion on the
appropriateness of this analytic approach as appellant "does not
suggest that the [magistrate] was expected to ignore the weight
of the probable cause evidence" in making his article 3(a)
determination. Appellant's Brief at 25.
17
quintessentially legal and this court is fully capable of
deciding it without any further development of the record, we can
simply address and resolve it. See, e.g., Societe Des Produits
Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 642 (1st Cir.
1992); Gioiosa, 684 F.2d at 179.
V. PREJUDICE UNDER THE SUPPLEMENTARY TREATY
With this preface, we proceed directly to the treaty-
interpretation question, affording plenary review.
A. Traditional Practice.
A sovereign's right to obtain the extradition of an
accused is created by treaty; where there is no treaty, a
requested nation has no duty to extradite. See Factor, 290 U.S.
at 287. Indeed, federal courts have stated that no branch of
government has authority to surrender an accused to a foreign
country except in pursuance of a statute or treaty. See Quinn,
783 F.2d at 782 (collecting cases).
An extradition treaty does more than bridge this gap.
The existence of such a treaty between the United States and
another nation indicates that, at least in a general sense, the
executive and legislative branches consider the treaty partner's
justice system sufficiently fair to justify sending accused
persons there for trial. See Glucksman v. Henkel, 221 U.S. 508,
512 (1911); Neely v. Henkel (No. 1), 180 U.S. 109, 123 (1901).
In habeas corpus proceedings, this rationale has produced the
rule of noninquiry a doctrine which forbids judicial
authorities from investigating the fairness of a requesting
18
nation's justice system when considering whether to permit
extradition to that nation. See Glucksman, 221 U.S. at 512;
Manzi, 888 F.2d at 206 (collecting cases).6
Of course, the signing of a treaty does not forever put
to rest questions concerning the fairness of another country's
legal framework. For example, an extradition target may present
such issues to the Secretary of State the official who
ultimately decides whether a person found to be extraditable
should in fact be extradited. See 18 U.S.C. 3186. But,
traditionally, in extradition cases, the judiciary neither asks,
nor seeks to answer, questions about the sensitivities and
sophistication of courts abroad.7
B. Scope of Article 3(a).
The Supplementary Treaty openly alters this traditional
practice. It requires judges to shun extradition if the accused
6The government suggests that the Constitution mandates the
rule of noninquiry. We disagree. The rule did not spring from a
belief that courts, as an institution, lack either the authority
or the capacity to evaluate foreign legal systems. Rather, the
rule came into being as judges, attempting to interpret
particular treaties, concluded that, absent a contrary indication
in a specific instance, the ratification of an extradition treaty
mandated noninquiry as a matter of international comity. No
doubt the rule exemplifies judicial deference to executive
authority, see Koskotas, 931 F.2d at 174, but it is a deference
stemming at least in part from the fact that the executive is the
branch which most likely has written and negotiated the document
being interpreted.
7The judiciary has, however, explicated a number of other
limitations on extradition. See, e.g., Manzi, 888 F.2d at 207(explaining that the principle of double criminality bars
extradition unless the offense is a crime in both countries);
Quinn, 783 F.2d at 792-810 (discussing origin of, and basis for,
political offense exception in extradition proceedings).
19
either establishes that the request "has in fact been made with a
view to try or punish him on account of his race, religion,
nationality or political opinions," or if he proves that "he
would, if surrendered, be prejudiced at his trial or punished,
detained or restricted" on account of any of these factors.
Supplementary Treaty, art. 3(a). These phrases cannot be brushed
aside as a series of scrivener's errors: to the exact contrary,
Congress intended the words to authorize inquiry into the
attributes of a country's justice system as that system would
apply to a given individual. See S. Exec. Rep. No. 17, supra, at
4-5; 132 Cong. Rec. 16,798-803 (1986). Moreover, Congress
evidently knew that its command reversed years of extradition
practice forbidding judicial investigation into such areas. See
132 Cong. Rec. 16,800 (1986) (describing article 3(a) as "a very
broad, and far reaching provision"); id. at 16,806 (labelling
this aspect of the treaty "historic").
Still, the article 3(a) defense, though a refreshing
zephyr to persons resisting extradition, is not of hurricane
force; its mere invocation will not sweep aside all notions of
international comity and deference to the requesting nation's
sovereignty. At least four principles rein in the winds of
change. First, elementary rules of construction dictate that the
defense not be construed so expansively as to negate the
remainder of the treaty. See, e.g., Factor, 290 U.S. at 292-93.
The rule of noninquiry developed from the assumption that an
extradition treaty, by its very existence, constitutes a general
20
acceptance of another country's legal system. See supra Part
V(A). By like token, the existence of an overall agreement on
extradition must inform the workings of the article 3(a) defense,
limiting its applicability to specific problems encountered by
specific respondents, as opposed to general grievances concerning
systemic weaknesses inherent in every case. Otherwise, the
extradition treaty actually becomes an impediment to extradition,
in other words, a non-extradition treaty. See 132 Cong. Rec.
16,607 (1986).
Second, controlling precedent requires that, where
possible, we interpret extradition treaties to produce
reciprocity between, and expanded rights on behalf of, the
signatories:
[Treaties] should be liberally construed so
as to effect the apparent intention of the
parties to secure equality and reciprocity
between them. For that reason, if a treaty
fairly admits of two constructions, one
restricting the rights which may be claimed
under it, and the other enlarging it, the
more liberal construction is to be preferred.
Factor, 290 U.S. at 293-94. These principles of reciprocity and
liberal construction have particular force here because the
United States, unlike the U.K. and certain other nations, has no
available machinery for prosecuting those who commit crimes
abroad but who are, nonetheless, non-extraditable. See 132 Cong.
Rec. 16,587 (1986).
Third, article 3(a) requires an accused to establish
that he would, if surrendered, be "prejudiced" on account of
particular factors. In our view, this word denotes that only
21
those preformed ideas relative to race, nationality, and the like
which are of sufficient magnitude actually to affect the
accused's situation, i.e., to "prejudice" him, trigger the
special prophylactic protections of the Supplementary Treaty.
Finally, the legislative history suggests that, in
insisting upon the inclusion of article 3(a), the Senate was
concerned largely with the special Diplock court system
applicable to those accused of terrorist acts in Northern
Ireland. See 132 Cong. Rec. 16,806-19 (1986). There is no
indication that the defense was meant as a slur upon, much less
an indictment of, the British legal system.
For these four reasons, we conclude that the soil of
this case is particularly inhospitable to a rambling
interpretation of article 3(a). We hold, therefore, that, in
order to avail himself of the article 3(a) defense, an
extradition target must establish by a preponderance of the
credible evidence that, if he were surrendered, the legal system
of the requesting country would treat him differently from other
similarly situated individuals because of his race, religion,
nationality, or political opinions. It is not enough simply to
show some possibility that preformed ideas might exist; rather,
under the terms of the Supplementary Treaty, the bias must rise
to the level of prejudicing the accused. See generally William
M. Hannay, Committee Report: An Analysis of the U.S.-U.K.
Supplementary Extradition Treaty, 21 Int'l Law. 925 (1987).
C. Appellant's "Per Se Prejudice" Argument.
22
We now face the task of applying the prejudice standard
in this case. The record reveals that the magistrate paid
careful attention to an array of facts that sometimes pointed in
different directions. For instance, he found that there were
some negative articles about Howard, that some Britons might be
biased against black Americans, and that the U.K. does not
utilize a voir dire procedure to screen venirepersons.
Nonetheless, in the magistrate's eyes, these facts did not
establish an article 3(a) defense because countervailing
considerations mitigated their negative impact, rendering any
bias de minimis. Appellant excoriates this finding, complaining
that it rests upon a faulty legal premise. He asserts that
article 3 effectively eclipses the rule of noninquiry; that the
evidence he tendered constitutes per se proof of prejudice which
irrebuttably establishes an article 3(a) defense; and that the
Supplementary Treaty does not countenance consideration of
countervailing factors in mulling whether a defense is extant.
We concur with the magistrate that the Supplementary Treaty
stakes out a middle ground between the classic rule of noninquiry
and the total abolition of that rule: the treaty alters the
traditional formulation of the rule while simultaneously
preserving many aspects of it. Any other interpretation would
run afoul of the four constraining principles we have identified.
See supra at 20-21.
One manifestation of this middle position is that
article 3(a), as we read it, imposes a de minimis threshold
23
requirement relative to the existence of prejudice. For example,
because international criminal affairs are frequently high
profile, a per se rule barring extradition whenever there has
been any negative publicity would undermine the entire treaty by
making successful article 3(a) defenses virtually automatic and
relegating extradition to a few fringe instances. We do not
think that the treaty partners intended so unproductive a result.
Similar reasoning rules out any per se prohibition on extradition
when the accused proffers evidence suggesting discordant race
relations in the U.K. or when he simply points to the absence of
a specific procedural device.
Consequently, we hold that, while a magistrate
considering the applicability of article 3(a) must weigh each of
the factors cited by appellant if an extradition target offers
proof that they exist, their mere presence, without more, does
not conclusively establish an article 3(a) defense.8 The
something "more," as we have indicated, is prejudice to the
8This interpretation finds analogies in prevailing federal
court practice. For instance, we have routinely held that the
mere presence of differing procedural devices, pretrial
publicity, or allegations of community prejudice, without more,
does not warrant overturning a criminal conviction. See, e.g.,
Neron v. Tierney, 841 F.2d 1197, 1199 (1st Cir.) (admonishing
against the use of habeas corpus to superimpose federal
procedural choices upon state courts merely because the federal
court thinks some "other" procedure might be "better"), cert.
denied, 488 U.S. 832 (1988); United States v. Reveron-Martinez,
836 F.2d 684, 687 (1st Cir. 1988) (ruling that pretrial
publicity, even though pervasive and negative, did not warrant a
presumption of prejudice); United States v. Gullion, 575 F.2d 26,
28 (1st Cir. 1978) (explaining that the mere existence of
community prejudice, in and of itself, does not necessitate
relief).
24
extradition target. It follows that the magistrate correctly
construed article 3(a) to require a showing of actual,
respondent-specific prejudice.9 Appellant's per se challenge to
the magistrate's reasoning must, therefore, fail.
VI. THE MERITS OF THE ARTICLE 3(a) DEFENSE
This brings us to the merits of Howard's fact-based
challenge to the decision below an issue that gives us some
pause.10 Nevertheless, in seeking to secure an article 3(a)
defense, an extradition target bears a heavy burden. He must
establish, by a preponderance of the evidence, that he would, if
surrendered, be prejudiced on account of a proscribed factor.
See Supplementary Treaty, art. 3(a); see also 132 Cong. Rec.
16,607 (1986). Having painstakingly reviewed the papers in the
case in light of the burden of proof, we cannot say that clear
error inheres.
Appellant introduced numerous newspaper articles,
affidavits from several people living in Great Britain, and the
testimony of Paul Stevenson, a senior executive officer of
England's Commission for Racial Equality, in an attempt to
9We note, in passing, that the rules governing criminal
trials in the federal courts seem fully compatible with such a
requirement. See, e.g., Fed. R. Crim. P. 52(a) ("Any error,
defect, irregularity or variance which does not affect
substantial rights shall be disregarded.").
10We refer only to appellant's claim that, if extradited, he
would be prejudiced on account of his race. He presented little,
if any, evidence suggesting the existence of nationality-based
biases in this case, and we cannot discern any error (clear or
otherwise) in the magistrate's finding that appellant failed to
prove cognizable prejudice of this genre.
25
establish that widespread publicity would prevent him from
receiving fair treatment abroad. But, this evidence comprises a
mixed bag. It is true that some of the press clippings contained
racial innuendo. On the other hand, the publicity was mercifully
brief in duration, for the most part lasting less than a week;
the U.K.'s Contempt of Court Act has been invoked and will cut
off any further untoward publicity; Howard's counsel himself
created some of the notoriety in his rousing remarks to the
British press; the media coverage was not uniformly or
overwhelmingly negative (indeed, some of the newspaper articles
describe appellant favorably); and, finally, the publicity
occurred over two years ago and will be very old news when and if
appellant eventually comes to trial in England. On this
conflicted record, the magistrate did not perpetrate clear error
in finding that a spurt of mixed publicity created in part by
appellant's counsel and occurring years ago failed to rise to the
level of prejudice necessary to sustain an article 3(a) defense.
The evidence in the record concerning the supposed
shortcomings of the requesting nation's legal system does not
require a different result for it, too, is mixed. Admittedly,
appellant presented affidavits and testimony suggesting that
preformed ideas constitute a particular threat in the
circumstances of this case because the English system does not
provide for American-style voir dire of potential jurors. But,
evidence submitted by the government and elicited from
appellant's witness on cross-examination indicates that the
26
English legal system has a host of other mechanisms which will be
available to appellant and which mitigate the absence of voir
dire. Appellant will be able to present his arguments concerning
the impact of pretrial publicity and race relations during
committal proceedings in the U.K. He may then renew the
arguments by requesting pretrial review at the Crown Court, again
before the trial judge, and still again on appeal from any
conviction. In addition, the English system provides for self-
excusal of potentially biased jurors and trial judges are duty
bound to offer detailed jury instructions concerning the
impropriety of grounding defendants' convictions on extraneous
considerations. Seen in this light, the absence of voir dire in
the English system is not of decretory significance. After all,
courts must not let jingoism run amok, but, rather, must turn a
sympathetic ear to other nations' independent judgments about how
best to ensure fairness in dealing with criminal matters. The
United States has no monopoly on even-handed justice.
To summarize, the evidence concerning prejudice,
properly decanted, is ambivalent. The facts we have catalogued,
and others in the record, comprise adequate support for the
magistrate's conclusion that any evidence of bias relating to
appellant's race is so exiguous as not to animate article 3(a).
Put another way, the magistrate weighed the proof, drew a series
of reasonable (albeit not inevitable) inferences from it, and
concluded that appellant had not carried the burden of proving
prejudice. We cannot say that this choice between two plausible
27
alternatives, each of which finds support in the record,
constitutes clear error. See Anderson v. City of Bessemer City,
470 U.S. 564, 573-74 (1985); United States v. Rodriguez-Morales,
929 F.2d 780, 784 (1st Cir. 1991), cert. denied, 112 S. Ct. 868(1992).
VII. CONCLUSION
We need go no further.11 Article 3 of the
Supplementary Treaty significantly alters the pattern of
procedural avenues and substantive rights traditionally available
in extradition cases. While these alterations reconfigure the
extradition landscape, they do not render it impassable.
Following the map that Article 3 supplies, we conclude that we
have jurisdiction to consider appellant's claims; that the
standard of review governing his legal challenge is de novo; that
the standard of review governing his fact-based challenge is for
clear error; that appellant's arguments anent the scope of the
article 3(a) defense envision a grandeur which lacks support in
the treaty's language or in the applicable law; and, that, in the
last analysis, the magistrate's findings of fact derive enough
support from the record to withstand attack. Accordingly, the
11We do not tarry over the assertion that the magistrate
erred in denying appellant's motions to stay proceedings and to
supplement the evidence. These motions were addressed to the
magistrate's discretion, and he provided ample reasons for their
denial. In the same vein, we see no error in the magistrate's
discretionary decision allowing the government to file
confirmatory materials out of time. On this score, the
sockdolager is that appellant neither sought to reopen the record
to counter or contest the belated evidentiary proffer nor
requested time for this specific purpose. He cannot now be heard
to complain that he had no chance to respond.
28
district court lawfully upheld the magistrate's issuance of a
certification of extraditability.
Affirmed.
Concurring Opinion Follows
29
CAMPBELL, Senior Circuit Judge (Concurring). While
joining in the court's opinion, I am troubled by our
resolution of the "successive appeals" issue. Article 3(b)
provides that a finding concerning an Article 3(a) defense,
involving race, religion, nationality, or political opinion,
"shall be immediately appealable by either party to the
United States district court, or court of appeals, as
appropriate." We hold that this unclear language does not
indicate that an appellant receives only one appeal i.e.,
an appeal to the district court, if the initial extradition
decision was by a magistrate, or an appeal to the court of
appeals if the initial extradition decision was by a district
judge but rather was meant to provide, however clumsily,
for the full federal appellate process. Thus, where as here
the initial extradition decision was by the magistrate,
appellant can appeal, (1) to the United States district
court; (2) from the district court to this court; and, I
assume, (3) from this court to the Supreme Court by writ of
certiorari.
It is sad but true that this interpretation of the
ambiguous language while seemingly what was intended
creates significant new opportunities for persons to delay
their extradition. Historically, extradition decisions by a
judge or magistrate were not appealable, thus avoiding the
potential delays which often attend appellate review.
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Obviously, the more extradition is susceptible to being
bogged down in endless procedural maneuvering, the greater
the danger that essential witnesses to the charged crime may
die or disappear and their memories fade prior to trial. It
used to be thought that the interest of another civilized
nation in enforcing its criminal law entitled it to the
reasonably prompt extradition of accused persons. The
present appeal to this court has enabled appellant to delay
trial in Great Britain by another year or more.
It would have been useful had the United States of
America gone more deeply, in its briefs before us, into the
pros and cons of the proper interpretation of Article 3(b).
In a Treaty case of first impression, the interpretation
espoused by the Attorney General can be enlightening. As
best I can tell, the Attorney General agrees with the court's
reading of the Treaty, i.e., that the full federal appellate
process, and not a truncated version, was intended. However,
the alternative interpretation what my colleagues call the
"one bite of the apple" approach has some appeal given
Article 3(b)'s literal language and the long tradition
divorcing extradition from the normal appellate process. We
could have benefited from a more considered explication of
all this by the United States.
In any event, I write separately in order to
emphasize the implications of Article 3(b), as we now
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30
interpret it, so that the drafters of future provisions will
have no illusions concerning the inevitable potential for
delay, and may decide whether other approaches would be
desirable.
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31