In Re: Howard v.
Case Date: 06/30/1993
Court: United States Court of Appeals
Docket No: 92-1633
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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 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 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 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. 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). 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. 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. 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 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. 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. 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 V. PREJUDICE UNDER THE SUPPLEMENTARY TREATY With this preface, we proceed directly to the treaty- interpretation question, affording plenary review. A. Traditional Practice. 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). 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. 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 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 discer |