Prasoprat v. Benov

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUWIT PRASOPRAT,  No. 03-57253
Petitioner-Appellant,
v.  D.C. No.
CV 02-08751 HLH
MICHAEL BENOV, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Harry L. Hupp, District Judge, Presiding
Argued and Submitted
October 6, 2004—Pasadena, California
Submission Vacated November 8, 2004
Resubmitted August 15, 2005
Filed August 31, 2005
Before: Harry Pregerson, A. Wallace Tashima, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Tashima
11975
PRASOPRAT v. BENOV 11977
COUNSEL
Barry O. Bernstein, Burbank, California, for the petitioner-
appellant.
11978 PRASOPRAT v. BENOV
Daniel Scott Goodman, Assistant United States Attorney, Los
Angeles, California, for the respondent-appellee.
OPINION
TASHIMA, Circuit Judge:
Suwit Prasoprat, a United States citizen fighting extradition
to Thailand, appeals an order of the district court denying his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2241. Prasoprat contends that his due process rights were
violated when the extradition court denied his motion seeking
discovery of information related to the use of the death pen-
alty in Thailand for drug offenses. He also contends that the
extradition court should have denied his extradition on
humanitarian grounds. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253. We affirm the district court.
Extradition from the United States is a diplomatic process
that is initiated by a request from the nation seeking extradi-
tion directly to the Department of State. Blaxland v. Common-
wealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th
Cir. 2003). “After the request has been evaluated by the State
Department to determine whether it is within the scope of the
relevant extradition treaty, a United States Attorney . . . files
a complaint in federal district court seeking an arrest warrant
for the person sought to be extradited.” Id.
If, after a hearing regarding the evidence of criminality
against a person sought to be extradited, a judge or magistrate
judge
deems the evidence sufficient to sustain the charge
under the provisions of the proper treaty or conven-
tion . . . , he shall certify the same, together with a
copy of all the testimony taken before him, to the
PRASOPRAT v. BENOV 11979
Secretary of State, that a warrant may issue upon the
requisition of the proper authorities of such foreign
government, for the surrender of such person. . . .
18 U.S.C. § 3184. Thus, a magistrate or judge first holds a
hearing to determine “whether (1) the crime is extraditable;
and (2) there is probable cause to sustain the charge.”
Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir.
2000) (footnote omitted) (“Cornejo-Barreto I”).1 The magis-
trate judge “has no discretionary decision to make.” Lopez-
Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997). Rather,
“[i]f the evidence is sufficient to sustain the charge, the
inquiring magistrate judge is required to certify the individual
as extraditable to the Secretary of State and to issue a war-
rant.” Blaxland, 323 F.3d at 1208. The Secretary of State then
determines in her discretion whether the individual will be
surrendered. Id. (citing United States v. Lui Kin-Hong, 110
F.3d 103, 110 (1st Cir. 1997); 18 U.S.C. § 3186).
BACKGROUND
In 1998, a confidential informant reported to an agent of
the Drug Enforcement Administration (“DEA”) that Prasoprat
was involved in heroin trafficking between Bangkok, Thai-
land, and Los Angeles.2 The DEA monitored Prasoprat for
several years and, in 2001, the United States filed a complaint
in the United States District Court on behalf of the Govern-
ment of the Kingdom of Thailand, seeking Prasoprat’s extra-
dition to Thailand pursuant to the extradition treaty between
the United States and Thailand. The complaint alleged that
1
The holding in Cornejo-Barreto I was disapproved of by Cornejo-
Barreto v. Siefert, 379 F.3d 1075 (9th Cir. 2004) (“Cornejo-Barreto II”).
The en banc court, however, later vacated Cornejo-Barreto II and denied
the government’s request to vacate Cornejo-Barreto I. Cornejo-Barreto v.
Siefert, 389 F.3d 1307 (9th Cir. 2004) (en banc).
2
The details of the DEA’s investigation are not pertinent to this appeal
because Prasoprat does not challenge the finding that there was probable
cause that he committed the offense.
11980 PRASOPRAT v. BENOV
Prasoprat and another individual were wanted in Thailand for
drug offenses that are covered by the extradition treaty. Praso-
prat was ordered detained by a magistrate judge.
Prasoprat filed a motion for discovery, seeking information
allegedly in the government’s “exclusive possession” that
related to the use of the death penalty in Thailand as punish-
ment for drug offenses. Prasoprat argued that the extradition
request violated the extradition treaty because the offense for
which extradition was sought was punishable by death in
Thailand but not in the United States.3 He therefore sought an
order “for the government to disclose any information that the
death penalty is the punishment for drug convictions in Thai-
land.”
The magistrate judge denied Prasoprat’s discovery motion.
He reasoned that the extradition treaty explicitly placed the
authority to examine the issue of the death penalty in deter-
mining extradition within the executive branch, not the judi-
cial branch. The court thus ruled that discovery regarding the
availability of the death penalty was not appropriate.
Following an extradition hearing, the magistrate judge
determined that the government had established probable
cause to sustain the narcotics charges. The court therefore
entered an extradition certification, ordering that Prasoprat
was extraditable and certifying the matter to the United States
Secretary of State to issue a warrant to extradite Prasoprat.
3
Prasoprat also argued that Thailand’s extradition request violated Arti-
cle 3 of the treaty, which provides that extradition shall not be granted
when the offense is a political offense, or when it is established that extra-
dition is requested for political purposes. Extradition Treaty with Thai-
land, Dec. 14, 1983, U.S.-Thail., art. 3, 1983 U.S.T. Lexis 418, available
at http://www.usextradition.com/thailand_bi.htm. Prasoprat contended that
his extradition was sought for political purposes. He does not raise this
issue on appeal.
PRASOPRAT v. BENOV 11981
Prasoprat then filed this petition for a writ of habeas cor-
pus. The magistrate judge submitted a report and recommen-
dation to the district court, recommending that the petition be
denied. The district court adopted the report and denied Praso-
prat’s petition. See Prasoprat v. Benov, 294 F. Supp. 2d 1165
(C.D. Cal. 2003). Prasoprat filed a timely notice of appeal.
The district court issued a certificate of appealability on two
grounds: (1) the extradition court’s denial of Prasoprat’s dis-
covery request for information regarding the death penalty in
Thailand for drug possession; and (2) the extradition court’s
refusal to deny extradition on humanitarian grounds.
STANDARD OF REVIEW
The decision to certify a person as extraditable is not sub-
ject to direct appeal but may be challenged collaterally
through habeas corpus review. Barapind v. Enomoto, 400
F.3d 744, 748 n.5 (9th Cir. 2005) (en banc) (per curiam);
Cornejo-Barreto I, 218 F.3d at 1009. The district court’s
habeas review of an extradition order is limited to: (1)
whether the extradition court had jurisdiction to conduct the
proceeding and jurisdiction over the individual sought; (2)
whether the extradition treaty was in force and the crime fell
within the treaty’s terms; (3) whether there was probable
cause that the individual committed the crime; and (4)
whether the crime fell within the political offense exception.
Id. at 1009-10; Mainero v. Gregg, 164 F.3d 1199, 1205 (9th
Cir. 1999); see also Fernandez v. Phillips, 268 U.S. 311, 312
(1925) (stating that “habeas corpus is available only to inquire
whether the magistrate had jurisdiction, whether the offense
charged is within the treaty and . . . whether there was any
evidence warranting the finding that there was reasonable
ground to believe the accused guilty”).
We review de novo the district court’s denial of a habeas
petition in extradition proceedings. Cornejo-Barreto I, 218
F.3d at 1009; see also Barapind, 400 F.3d at 748 (reviewing
de novo the district court’s decision on questions of law and
11982 PRASOPRAT v. BENOV
mixed questions of law and fact). The district court’s denial
of a discovery request in an extradition case is reviewed for
an abuse of discretion. Emami v. United States Dist. Court,
834 F.2d 1444, 1452 (9th Cir. 1987).
DISCUSSION
On appeal, Prasoprat raises two issues. First, he contends
that the extradition court abused its discretion in denying his
motion for discovery regarding the use of the death penalty in
Thailand for drug offenses. Second, he argues that the extradi-
tion court should have denied extradition on humanitarian
grounds.
I. Discovery Motion
[1] “An extradition proceeding is not a trial[.]” Emami, 834
F.2d at 1452. Thus, “discovery in an international extradition
hearing is limited and lies within the discretion of the magis-
trate.” United States v. Kraiselburd (In re Extradition of Krai-
selburd), 786 F.2d 1395, 1399 (9th Cir. 1986); see also, e.g.,
Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991) (stating
that, “in an extradition proceeding, discovery is not only dis-
cretionary with the court, it is narrow in scope”); cf. Oen Yin-
Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988)
(“Although there is no explicit statutory basis for ordering
discovery in extradition proceedings, the extradition court has
the inherent power to order such discovery procedures as law
and justice require.”).
[2] The issue regarding which Prasoprat sought discovery
— the use of the death penalty in Thailand — was outside the
purview of the magistrate judge. Article 6 of the extradition
treaty between the United States and Thailand deals with cap-
ital punishment and states:
When the offense for which extradition is sought is
punishable by death under the laws of the Request-
PRASOPRAT v. BENOV 11983
ing State and is not punishable by death under the
laws of the Requested State, the competent authority
of the Requested State may refuse extradition unless:
(a) the offense is murder as defined under
the laws of the Requested State; or
(b) the competent authority of the Request-
ing State provides assurances that it will
recommend to the pardoning authority of
the Requesting State that the death penalty
be commuted if it is imposed.
In the case of the United States of America, the com-
petent authority is the Executive Authority.
Extradition Treaty with Thailand, Dec. 14, 1983, U.S.-Thail.,
art. 6, 1983 U.S.T. Lexis 418, available at
http://www.usextradition.com/thailand_bi.htm. The treaty
thus clearly provides that the executive branch holds the
authority for determining extradition when the death penalty
is involved.
[3] The only purpose of the extradition hearing is for the
magistrate judge to determine whether the crime is extradit-
able and whether there is probable cause to support the
charge. Cornejo-Barreto I, 218 F.3d at 1009. If those require-
ments are met, the judicial officer must certify the individual
as extraditable to the Secretary of State. Id.; see also Blax-
land, 323 F.3d at 1208 (stating that “American judicial offi-
cers conduct a circumscribed inquiry in extradition cases” and
that, “[i]f the evidence is sufficient to sustain the charge, the
inquiring magistrate judge is required to certify the individual
as extraditable to the Secretary of State and to issue a war-
rant”).
[4] Thus, discovery of information regarding the use of the
death penalty in Thailand, like the issue itself, is not relevant
11984 PRASOPRAT v. BENOV
to the magistrate judge’s inquiry. Even if such evidence were
in the government’s exclusive possession, it would not be rel-
evant to the magistrate judge’s decision regarding whether to
certify Prasoprat as extraditable. Cf. Emami, 834 F.2d at 1452
(in deciding discovery issues in extradition hearings, one con-
sideration is “ ‘whether the resolution of the contested issue
would be appreciably advanced by the requested discovery’ ”)
(quoting Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir.
1986)).
Our conclusion is supported by our decisions in Kraisel-
burd and Lopez-Smith. In Kraiselburd, the petitioner made a
“blanket discovery request” for Argentina, the requesting
country, to produce its entire file on the crime with which he
was charged. Kraiselburd, 786 F.2d at 1399. The magistrate
granted the motion only “to the extent it related to the ques-
tion whether there existed probable cause tying appellant to
the murders.” Id. On appeal from the district court’s denial of
the habeas petition, we concluded that, “[b]ecause the purpose
of the extradition hearing is simply to determine whether
there exists probable cause that the fugitive committed the
offense charged, the magistrate properly limited discovery.”
Id. Under Kraiselburd, therefore, the magistrate judge may
limit discovery to issues related to the purpose of the extradi-
tion hearing.
[5] Similarly, in Lopez-Smith, the petitioner sought to pres-
ent evidence regarding whether discretion should be exercised
to extradite him. On appeal, we stated that the magistrate
judge properly excluded evidence addressing the exercise of
discretion “because the magistrate judge has no discretion.”
Lopez-Smith, 121 F.3d at 1326. Because discretion belonged
to the Secretary of State, Lopez-Smith stated that it was “for
the Secretary to decide what evidence might have a bearing
upon its exercise. There is no reason why the magistrate judge
should decide what evidence might be useful to the Secretary
of State.” Id. As in both Kraiselburd and Lopez-Smith, the
PRASOPRAT v. BENOV 11985
evidence that Prasoprat sought in his motion for discovery
was not relevant to the extradition judge’s limited inquiry.
Prasoprat urges us to rely on Demjanjuk v. Petrovsky, 10
F.3d 338 (6th Cir. 1994), in which government attorneys
failed to disclose “exculpatory information in their possession
during [denaturalization proceedings] culminating in extradi-
tion proceedings.” Id. at 339. The evidence sought by Dem-
janjuk, however, related to whether he was in fact the
individual who had committed the extraditable offense and
thus concerned the probable cause determination. See In re
Extradition of Drayer, 190 F.3d 410, 415 (6th Cir. 1999)
(stating that Demjanjuk would require the United States to
“turn over any exculpatory materials in its possession that
would undercut a finding that there was probable cause to
believe that” the petitioner committed the crime charged by
the requesting country).
[6] By contrast, in the case at bench, the information sought
by Prasoprat does not relate to an issue within the scope of the
magistrate judge’s authority to examine. When the offense for
which extradition is sought is punishable by death, the ques-
tion of whether to refuse extradition on that basis is within the
authority of the executive branch, not the judicial branch.4 We
accordingly conclude that the extradition court did not abuse
its discretion in denying the motion seeking discovery on the
use of the death penalty in Thailand.
II. Humanitarian Exception
[7] Prasoprat’s second contention is that the extradition
court should have denied extradition on humanitarian
4
Prasoprat’s assertion that the Executive branch has “exclusive posses-
sion” of information concerning the use of the death penalty in Thiland for
drug offenses, if true, would bolster the Executive’s claim that it has the
expertise to exercise the authority granted to the Requested State by Arti-
cle 6 of the treaty.
11986 PRASOPRAT v. BENOV
grounds. We have long adhered to the rule of non-inquiry —
that it is the role of the Secretary of State, not the courts, to
determine whether extradition should be denied on humanitar-
ian grounds or on account of the treatment that the fugitive is
likely to receive upon his return to the requesting state. See
Blaxland, 323 F.3d at 1208 (stating that, “judges generally
‘refrain from examining the penal systems of requesting
nations, leaving to the Secretary of State determinations of
whether the defendant is likely to be treated humanely’ ”)
(quoting Lopez-Smith, 121 F.3d at 1327); see also Barapind
v. Reno, 225 F.3d 1100, 1105-06 (9th Cir. 2000) (stating that
“[m]any courts, including ours, have adhered to the general
rule that it is not the role of the courts, but rather the Secretary
of State, to determine whether extradition should be denied on
humanitarian grounds”). The rule of non-inquiry is based on
the principle that the Secretary of State’s exercise of discre-
tion regarding whether to extradite an individual may be
based not only on “considerations individual to the person
facing extradition” but “may be based on foreign policy con-
siderations instead.” Lopez-Smith, 121 F.3d at 1326. “The
need for flexibility in the exercise of Executive discretion is
heightened in international extradition proceedings which
necessarily implicate the foreign policy interests of the United
States.” Emami, 834 F.2d at 1454 (quoting Escobedo v.
United States, 623 F.2d 1098, 1105 (5th Cir. 1980)).
We have, on occasion, cited the possibility of a humanitar-
ian exception to extradition; however, we have never actually
“relied on it to create” such an exception. Mainero, 164 F.3d
at 1210 (“Assuming that the possibility [of a humanitarian
exception to extradition] exists in the abstract, this is not the
sort of situation . . . for which an exception might be justi-
fied.”); see, e.g., Cornejo-Barreto I, 218 F.3d at 1010 (stating
that “[o]ur research failed to identify any case in which this
theoretical exception has been applied” and declining to con-
sider it); Lopez-Smith, 121 F.3d at 1326-27 (discussing the
“frequently quoted (but not followed) dictum” that a court
may apply a humanitarian exception to extradition, but con-
PRASOPRAT v. BENOV 11987
cluding that “the facts in this case are not so egregious as to
invoke the dictum”).
[8] We therefore agree with the district court that “[a]n
extradition magistrate lacks discretion to inquire into the con-
ditions that might await a fugitive upon return to the request-
ing country.” Prasoprat, 294 F. Supp. 2d at 1171. The
extradition magistrate’s authority has been constrained by
statute and caselaw to a narrow inquiry, such that the magis-
trate judge does not have any discretion to exercise. Once the
magistrate judge determines that the crime is extraditable and
there is probable cause to sustain the charge, “it is the Secre-
tary of State, representing the executive branch, who deter-
mines whether to surrender the fugitive.”5 Blaxland, 323 F.3d
at 1208.
[9] The extradition treaty at issue here repeatedly places the
decision to extradite a person from the United States within
the authority of the executive branch. See, e.g., Extradition
Treaty art. 8 (stating that, “[i]n a case in which the United
States of America is the Requested State, the Executive
Authority shall have the power to extradite its nationals if, in
its discretion, it is deemed proper to do so”); id. art. 13 (when
requests for extradition are made by several states, “the deci-
sion . . . shall be made by the Executive Authority in the
United States of America”). This is in accordance with the
“generally established principle . . . that ‘[t]he Secretary of
State, exercising executive discretion through delegation of
this authority by the President, may refuse to extradite a rela-
tor despite a judicial determination that extradition would be
compatible with the terms of the applicable treaty.’ ” Blax-
5
We note, however, that in light of legislation implementing the United
Nations Convention against Torture, the rule of non-inquiry does not pre-
vent an extraditee who fears torture upon surrender to the requesting gov-
ernment from petitioning for habeas corpus review of the Secretary of
State’s decision to extradite him. Cornejo-Barreto I, 218 F.3d at 1009 n.5,
1016-17.
11988 PRASOPRAT v. BENOV
land, 323 F.3d at 1208 (quoting Lopez-Smith, 121 F.3d at
1326) (alteration in original). The extradition magistrate sim-
ply does not have the authority to consider foreign policy con-
cerns and other issues that may affect the executive branch’s
decision whether to extradite. See id. (stating that “the execu-
tive branch’s ultimate decision on extradition may be based
on a variety of grounds, ranging from individual circum-
stances, to foreign policy concerns, to political exigencies”).
For these reasons, we agree with the district court that the
magistrate judge did not have the authority to refuse to issue
a certificate of extradition on humanitarian grounds.6
[10] The judgment of the district court denying Prasoprat’s
habeas petition accordingly is
AFFIRMED.
6
Prasoprat emphasizes that he is a United States citizen. We have stated,
however, that “United States citizenship does not bar extradition by the
United States.” Quinn, 783 F.2d at 782.