USCA1 Opinion

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,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

This

appeal presents

several

issues of first impression in extradition law generally and, more

specifically, regarding
in

force between

a rather distinctive

the United

Great

Britain and Northern

inter
_____

alia, (1)
____

States and

successive

appeals from

within our

jurisdiction;

the United

Ireland (U.K.).

whether, under

the treaty,

a certification
(2) if

so,

extradition treaty

of

Kingdom of

We must determine,
the second

of two

extraditability is

what standard

of

review

governs such appeals; (3) whether the treaty alters the venerable

rule

of

noninquiry; and

grappling with

(4)

if

so, to

these, and other, matters,

the merits of the

what

extent.

After

we eventually address

appeal and conclude that the

determination of

extraditability must stand.

I.
I.

BACKGROUND
BACKGROUND
The seeds of

when

this appeal

policeman discovered

the

were sown on
mutilated

June 1,

body of

Elizabeth Ayling, a young white female, in the trunk

car

abandoned

immediately

at

England's

centered

Howard,

United

Because

Howard

on

citizen.

returned

to

Catherine

of a rental

Airport.

respondent-appellant

States
had

Gatwick

Charges
his

native

1991,

Suspicion

Curtis
were

Andrew

preferred.

land,

British

authorities sought to extradite him.

On June 5, 1991, the United

States Attorney

Massachusetts requested and

for the District of

received from a federal

provisional arrest.

magistrate judge a warrant for

See 18 U.S.C.
___

D. Mass. Loc. Mag. R. 1(e).

Howard's

3184 (1988 & Supp. II 1990);

Howard was apprehended.

He appeared

for

an

extradition

hearing

before

the

magistrate

judge

on

September 10, 1991.

At the hearing Howard did not dispute the
probable cause

to

believe

Howard, who is black,

legal

proceedings

he had

murdered

Ayling.

argued that he would be

in

the

U.K.

by

reason

existence of

Rather,

prejudiced during
of

his

race

and

nationality, a circumstance which, if true, constituted a defense

to

extradition under

Extradition

Treaty,

reprinted in
_________ __
(1986)

the

relevant treaty.

June

S. Exec.

(Supplementary

25,

1985,

Rep. No. 17,

Treaty).

See
___

Supplementary

U.S.-U.K.,

99th Cong., 2d

In

support

art.

3(a),

Sess. 15-17

of this

defense,

Howard proffered evidence of flamboyant publicity surrounding his

case,

sought to

show that

against blacks
white
not

particularly

females
make

any provision

that

Howard

extradition

and

for

those accused of

be prejudiced

murdering young

voir dire

of

prospective jurors.

not sufficiently impress the magistrate:

had

not

thereupon

extraditability, together with

U.S.C.

likely

and pointed out that England's legal system does

These proffers did

ruled

Britons would

established
issued

a
a

valid

defense

certification

an order of commitment.1

he

to

of

See 18
___

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.

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.
II.

THE SUPPLEMENTARY TREATY

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
terms

governing

territory

reciprocal

of persons

extradition

accused or

committed in the other

1972, U.S.-U.K., art. I,

and the U.K. negotiated new

nation.

from

convicted of

one

certain offenses

See Extradition Treaty,

___

28 U.S.T. 227, 229 (Treaty).

Treaty, murder was an extraditable offense.

nation's

June 8,

Under the

See id. art. III(1).

___ ___

Nonetheless, the Treaty allowed a signatory to refuse extradition

if it regarded
Id.
___

the offense

art. V(c)(i).

"as one of

a political

character."

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
Irish Republican

Army.

See S.
___

Exec. Rep. No. 17,

Provisional

supra, at 2;
_____

see also 132 Cong. Rec. 16,558-86 (1986) (collecting cases).

___ ____
To

ameliorate

negotiated treaty
offense

situation,

exception for acts of violence.

also
____

the

amendments aimed at eradicating

8, 99th Cong., 1st

see
___

this

signatories

the political

See S. Treaty Doc. No.

___

Sess. (1985) (Proposed Supplementary Treaty);

S. Exec.

Rep. No.

17, supra,
_____

at

2.

However, when

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,
_____________________________
Following

many months

of

99th

Cong.,

strident debate,

1st

Sess.

the opposing

(1985).

camps

reached

a compromise,

political

placing

offense exception's

safeguards for the

and

other,

reach

4-5.

amendments.
of

See
___
the

132

See
___

to the addition
Cong.

by

the

novel

See S.
___

Senate

of these,

Rec. 16,819

modified version

Commons, instruments of ratification

23, 1986.

adding certain

On July 17, 1986, the

proposed treaty subject

Following approval

but

crimes beyond

protection of potential extraditees.

Exec. Rep. No. 17, supra, at

_____
ratified the

most violent

the

(1986).
House

were exchanged on

of

December

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
core

of the Senate-forged compromise

of the instant case.

prohibits

lies at the

As ratified, the Supplementary Treaty

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

nationality, or political opinions."

3(a).

of

his

race,

Supplementary

religion,

Treaty, art.

Appellant's case rests squarely upon this proviso.

5

III.
III.

APPELLATE JURISDICTION
APPELLATE JURISDICTION
The

Supplementary Treaty

stipulates that

findings with regard to an article 3(a) defense

appealable
or

by either party to

court of

appeals,

of our jurisdiction under

at oral
the

existence of

its

Recticel Foam Corp.,

_____________________
(emphasizing
sponte into

that "a

Id.
___

court

3(b).

We raised

must when it harbors

subject matter
859

art.

The

our attention concerns the extent

this provision.

argument, as a court

are "immediately

the United States district court,

as appropriate."

initial question that commands

the trier's

F.2d

doubts about

jurisdiction,

1000,

has an

this issue

1002

obligation

its subject matter jurisdiction"),

(1st

see In re
___ ______
Cir.

to inquire

1988)

sua

and directed the

parties to furnish supplemental briefs.2

A.
A.
Ordinarily neither

Past Practice.
Past Practice.
_____________
party to an

extradition proceeding

may challenge a decision rendered therein by direct appeal.

disability developed
3184, does not

because the

relevant statute, 18

contemplate hearings by United

This

U.S.C.

States courts qua

___

United States courts, see In re Mackin, 668 F.2d 122, 125-30 (2d
___ _____________

Cir.

1981)

(collecting

authorities

extradition proceedings), but,

tracing

history

of

instead, directs that extradition

matters be heard by "any justice or

any authorized

and

judge of the United States,"

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
Kaine,
_____
acts

part of the
55 U.S. (14
in a

How.) 103, 120 (1852).

In re
_____

Rather, the officer

by virtue

of

a "special

In re Metzger, 46 U.S. (5 How.) 176, 191 (1847); see

_____________
___

Shapiro
_______

v. Ferrandina,
__________

(applying same principle to

dismissed,
_________

the United States."

non-institutional capacity

authority."
also
____

judicial power of

414

U.S. 884

478 F.2d

894,

901 n.3

(2d Cir.)

current statutory provision),

(1973);

Mackin,
______

668

F.2d at

cert.
_____

125-30

(same);
1961)
an

Jimenez v.
_______
(same).

is

extraditability to

extraditable,

See 18 U.S.C.
___

extradition matters.

1063, 1065 (2d

n.3 (9th

such

See,
___

e.g., Ahmad
____ _____

courts

supplied), does not

v. Wigen,
_____

hook on which

910 F.2d

Given the

jurisdiction over

a putative extraditee customarily can

for extradition

364, 369 (1920); Koskotas v.

________

sitting

F.2d 776, 786

479 U.S. 882 (1986).

any other statutory

By the same

certify

(the Secretary of

Cir. 1990); Quinn v. Robinson, 783

_____
________

an order

to

decisions of judicial officers

typically through habeas corpus.

1991).

Cir.

1291, which permits appeals of "final

appeals can be hung,

challenge

so,

curious arrangement, numerous

Cir.), cert. denied,

_____ ______

absence of

if

the district courts" (emphasis

______

contemplate appeals from

in

107 (5th

3184, 3186 (1988 & Supp. II 1990).

held that 28 U.S.C.

decisions of

and

the ultimate decisionmaker

In light of this
have

F.2d 106,

The officer's only tasks are to determine whether

individual

State).

Aristeguieta, 290
____________

only by

collateral attack,

See Collins v. Miller, 252 U.S.

___ _______
______

Roche, 931 F.2d 169, 171 (1st

_____

token, the

government, if it
7

fails in

Cir.

an

extradition attempt,

cannot appeal,

Mackin, 668 F.2d at

______

but

must file

anew.

See
___

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.
B.
Appellant
revolutionizes

argues

this

asserts defenses

Article 3(b).
Article 3(b).
____________
that

praxis

the

insofar as

Supplementary
the

extradition target

cognizable under article 3(a).

argues the inverse, imploring that

Senate intended to

work so

Treaty

The government

neither the President nor the

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
a

so-called

nationality,

article
or

Treaty provides that a finding anent

3(a) defense,

political

appealable by either

opinion,

"shall

party to the United States

or court of appeals, as appropriate."

3(b).

involving

race,
be

religion,

immediately

district court,

Supplementary Treaty, art.

This appeal provision, which apparently finds its

in an earlier (failed) attempt

genesis

to alter the protocol prohibiting

direct appeals in extradition matters, see 132 Cong.

Rec. 16,599

___
(1986),

is couched

precisely

what it

in plain
says.

Avagliano, 457 U.S. 176,

_________

language and,

in our

view, means

See Sumitomo Shoji America, Inc. v.

___ ______________________________
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

appeal

provision,

the

drafters carefully

between hearings held under 18 U.S.C.

drew

distinction

3184 and appeals taken to

courts cloaked with the judicial power of the

United States.

discussing

to "the

judicial

the former,
authority"

the
who

document refers
is

"[i]n

the

contrast,

in discussing

States courts

by name.

appeals,

See id. art. 3(b).

___ ___

recurs in the legislative history.

17, supra,
_____

at 8.

the treaty

That is

States."
3(a).

refers to

By

United

The same distinction

See, e.g., S. Exec.

___ ____

a significant

competent

United

Supplementary Treaty, art. 3(b); see also id. arts. 2,

___ ____ ___

In

datum,

Rep. No.

for, if

the

language of a
legislative
virtually
statutes.

treaty is

at all

ambiguous, courts

may look

history

in

interpreting

its

provisions

same

rules

that obtain

when

courts

the
See
___

Factor v.
______

Laubenheimer,
____________

290 U.S.

to

under

interpret

276,

294-95

the interpretive wind bend

in the

(1933).
The other straws in
same

direction.

"Federal

The Supplementary

Rules of

Appellate

appropriate, shall
Treaty,

art.

Procedure or

govern the appeals

3(b).

And,

again,

reinforces the point, indicating

not intended to
the

extradition

In

hearing itself,

short, the text

not only that an

Civil Procedure,

process."
the

that the

as

Supplementary

legislative

history

that the disputed provision "is

make the Federal

decision under article 3(a)."

Treaty stipulates

rules generally applicable

but only

to

the appeal

to

of a

S. Exec. Rep. No. 17, supra, at 8.

_____

of article 3(b), taken

as a whole, suggests

appeal thereunder represents an entry

into the

federal courts

but also

article 3 differ in

that extradition

proceedings involving

kind from those involving

only 18 U.S.C.

3184.

We rule, therefore, that the Supplementary Treaty marks

a clean break from
extradition

matters;

Supplementary
right.

the ancient prohibition on direct

where

Treaty

article

contemplates at

is

appeals in

implicated,

least

one

appeal as

Accord In re McMullen, 981 F.2d 603, 609 (2d

______ _______________

(en banc).

of

Cir. 1993)

Moreover, because the Supplementary Treaty explicitly

identifies United

States courts, not judges or

______

appellate authority,
unlocks

the

the

gate

see
___

justices, as the

Supplementary Treaty,

which

has

historically

art.

barred

3(b),

it

extradition

matters from proceeding further through the federal courts in the

same manner as other cases.
C.
C.

Successive Appeals.
Successive Appeals.
__________________

Our jurisdictional
that article 3(b) provides
court

of

appeals,

disjunctive

government

asserted

out successive appeals (such

notwithstanding Howard's

jurisdiction over this appeal.

concurring),

we are

government's concession.

court or
__
that

one bite

this

of the

as Howard essays).

earlier appeal,

But, since

not at

Noting

backtracks, appearing to

appellate jurisdiction and is non-frivolous,

J.,

below

the parties to

court, however, the government

concede that,

not yet ended.

for appeals to the district

language restricts

apple and rules

In this

the

odyssey is

liberty

See supra note 2.

we have

this point implicates

see post (Campbell,

___ ____
simply to

accept the

We proceed to ponder

___ _____
10

the point.
We

think

the

language

of article

3(b)

dictates

construction antithetic to that which the government urged below.

Because

the Supplementary Treaty

extradition

proceedings

magistrate judge,
article

3(b)

contemplates the initiation of

before either

see S. Exec. Rep.

___

prudently provides

district

No. 17, supra, at

_____

for

review

court, or court of appeals, as appropriate."

disjunctive

"or"

is

to

understated, restriction
term

specifies

apply.
3(b)

that the

to the

on the

not

5, 6, 8,

"district

In other words, the

as

an

unusual,

number of appeals;
______

ordinary

"appeals process,"

sequence
________

but

rather, the

of appeals

should

as well

as by

the legislative

See S. Exec. Rep. No. 17, supra, at 8.

___
_____
We will not cart

read

by the

This conclusion is supported by the reference in article

history.

as

be

judge or

solitary

word

or

coal to Newcastle.
phrase

in

the

Not

even so much

Supplementary

Treaty

intimates

an intent to prohibit

not

courts'

the

Accordingly,
appeals,
637-38

we

business
hold

that

successive appeals

to

rewrite

article

see, e.g., United States

___ ____ _____________
(7th Cir.

express

1990)

misdemeanor

statute, 18

3(b)

treaty's

permits

v. Van Fossan,
__________

(holding that,

provision prohibiting

and it is

in

successive

899 F.2d 636,

the absence

successive appeals,

U.S.C.

3402

text.3

of

an

the criminal

(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
__________

(similar),

cert.
_____

denied,
______

expedited

consideration,

445

F.2d 25,

U.S. 944

however,

as

28 (1st

(1980),
article

Cir. 1979)

to

be

3(b)

given

itself

provides, "at every stage."

D.
D.
To sum

Recapitulation.
Recapitulation.
______________

up, the language and legislative history of the

Supplementary Treaty make it clear that the appeal right provided

by article 3(b)
within the
article

implicates a "decision[] of the

meaning of 28

3(b)

U.S.C.

breaks with

direct appeals to the

traditional

extradition.

provision

permits successive

appeals.

What

practice

is more,

that

the

appeals from a

district court

Because

In this

sense, then,

by authorizing

federal courts from certain determinations

regarding

decision to the

1291.

district court"

pertinent

magistrate judge's

and thereafter to

path

was

treaty

followed

the court

of

here,

appellate

Having cleared the jurisdictional hurdle, we

turn next

jurisdiction attaches.
IV.
IV.

STANDARD OF REVIEW
STANDARD OF REVIEW

to appellant's
faulty

standard of review.

question,
Treaty,

asseveration that

requiring
our

Washington,
__________

an

review is

the district court

employed a

Because this presents a purely legal

interpretation

plenary.

See,
___

of

the

Supplementary

e.g., United States v.

____ ______________

969 F.2d 752, 754 (9th Cir. 1992), cert. denied, 113
_____ ______

S. Ct. 1945 (1993); Quinn, 783 F.2d at 791.

_____
A.
A.

Principles Governing Review.

Principles Governing Review.
___________________________

Determinations concerning article 3(a)

12

defenses "shall

be

immediately

appealable

instrumentality of

"filing a

Treaty, art. 3(b).

appeal,

it does

by

But,
not

either

party"

through

notice of appeal."

though this article

mention standards

of

the

Supplementary

grants rights
review.

We

of

look,

therefore, to first principles.

Absent

a specific statutory directive to the contrary,

appeals in the federal

court system are usually arrayed

degree-of-deference continuum, stretching from plenary

one

pole to

highly

error, abuse
deference"

deferential modes

of discretion)
end

unadulterated

of

the

questions

customarily entails de
__

of

of

law,

lie
the

novo review.
____

1992).

involving

At

straight factual

which customarily
the

the other

absence of

end

of the

the "no

involving

resolution

978 F.2d

of

which

750, 757 (1st

continuum

entails acceptance of the

See,
___

At

appeals

determinations,

palpable error.

pole.

clear

See, e.g., Liberty Mutual

___ ____ _______________

Ins. Co. v. Commercial Union Ins. Co.,

_________
__________________________
Cir.

review at

review (e.g.,
____

at the opposite
continuum

along a

the

lie appeals

resolution

of

trier's judgment in

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

[the appellate judges]

form a strong,

whole of the record,

unyielding belief that

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

standard of review applicable

upon
the

where

they fall

of

the applicable

law.

The

to mixed questions usually depends

along the

degree-of-deference continuum:

more fact-dominated the question, the more likely it is that

the trier's resolution of it will

clearly erroneous.

See, e.g., United States v. Mariano, 983 F.2d

___ ____ _____________
_______

1150, 1158-59 (1st Cir.

910 F.2d

be accepted unless shown to be

1993); Roland M. v. Concord Sch. Comm.,

_________
___________________

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,

apply.

See S.
___

intended

Exec.

ordinary standards

Rep. No.

17, supra,
_____

article 3(b) is to be interpreted as .

rules

of

appellate procedure.");

at

of review

to

8 ("Nothing

in

. . upsetting established

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 factspecific, 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

discrimination

for clear

district

court

findings

error); Beasley
_______

anent

race

v. Health Care Serv.

__________________

Corp., 940 F.2d 1085, 1088 (7th Cir. 1991) (similar in respect to
_____
discrimination based on

religious beliefs);

Technologies, Inc., 883

__________________

F.2d 388, 392 (5th Cir.

14

Rendon v. A T & T
______
_________

1989) (similar;

discrimination
Aponte-Roque,
____________

based
848

on national

F.2d

331,

333

political discrimination); but cf.

___ ___
of United States, Inc., 466
_______________________
clearly

origin);
(1st

Gierbolini-Colon v.
________________

Cir.

(similar;

Bose Corp. v. Consumers Union

__________
_______________

U.S. 485, 514

erroneous standard does

1988)

(1984) (holding that

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

collaterally

challenges

extradition field.
magistrate's

determination

extraditability, judicial review is sharply

e.g.,
____

Fernandez v.
_________

Manzi,
_____

888 F.2d

denied,
______
for

Phillips, 268
________

204, 205

494 U.S. 1017 (1990).

claim

that

political offense.

the

crime

Review

F.2d at

790-91 & n.9.

analogous

to

fundamental

political
compromise

treated the one

312 (1925);

In re
_____

Because defenses under

determinations

undergirding

as a replacement

the

non-extraditable

offense determinations

described above.

offense

curiam), cert.
_____

prominent exception is

constitutes

of political

follows the continuum analysis

See,
___

1989) (per

The most

of

circumscribed.

U.S. 311,

(1st Cir.

When a party

See
___

Quinn, 783
_____

article 3(a) are

indeed,

Supplementary

for the other

common

the

Treaty

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

Treaty.

with

The

extradition

the words

and

treaty expresses
matters.

See
___

purposes of
a strong

the

Supplementary

interest in

Supplementary

Treaty,

expediting
art.

3(b)

15

(providing

for

"immediate[]" appeals

consideration at
the

same

every stage").

vein.

(admonishing

that

and

requiring "expedited

The legislative history

See,
___

e.g.,
____

132

the

treaty's

Cong.

Rec.

safeguards

"protracted sanctuary in the United States").

review not

only would

16,607

(1986)

should not

afford

Wholesale de novo
__ ____

ignore the factfinder's

superior vantage

point

for judging the intricacies

of a contested

would

be

unwarranted

wasteful,

engendering

is in

case but also

delays

in

the

extradition process.
In

general,

clearly erroneous
situations

then, reviewing

standard to

where article

courts should

the trier's
of the

findings of

Supplementary Treaty

play.
B.

apply the

Applying the Principles.

fact in

is in

B.
In

this

magistrate's
existed
test.

Applying the Principles.

_______________________
case,

finding that

as factual in
As to

the
no

district
cognizable

nature and applied

appellant's principal claim

court

treated

article 3(a)

the

defense

the clearly erroneous

that,

if extradited,

he would suffer prejudice on account of his race or nationality

we endorse the district
The

claim

in

court's choice of a standard

question challenged

factual determination

that, on

the

magistrate's underlying

the evidence

had not proved meaningful prejudice.

of review.

adduced, appellant

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

review.
necessarily
existence

the

The
bar

district court

magistrate

held

extradition

of some preformed

chose
that

whenever

the wrong
article
a

ideas in the

3(a)

standard

of

does

not

respondent shows

the

requesting nation but

that

the biases

prejudice

must

the respondent

The soundness of this

terms employed
and

race-based

particular

biases

to

level

before article

analysis

in article
or

they

those

involves

actually

affords relief.5

which depends upon

only

Treaty

where
3(a)

3(a) encompass

respondent

Supplementary Treaty.
exercise

rise

whether the

all nationality-based
directly

affecting

interpretation

interpretation is a

of

the

purely legal

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.
do so

would needlessly throw the

Gioiosa,
_______

684 F.2d

at

179.

helve after the hatchet.

Rather,

because the

question

To

See
___

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.
V.

PREJUDICE UNDER THE SUPPLEMENTARY TREATY

PREJUDICE UNDER THE SUPPLEMENTARY TREATY
With this

preface, we proceed directly

to the treaty-

interpretation question, affording plenary review.

A.
A.
A
accused

is

Traditional Practice.
Traditional Practice.
____________________

sovereign's right
created

to obtain

by treaty;

where

the extradition
there

requested nation has no duty to extradite.

at 287.
government

Indeed, federal

country except in pursuance

surrender an

no treaty,

See Factor, 290

___ ______

courts have stated

has authority to

is

of an

that no branch

accused to

of a statute or treaty.

U.S.

of

a foreign

See Quinn,
___ _____

783 F.2d at 782 (collecting cases).

An extradition
The

existence of

such a

treaty does more than

treaty between

bridge this gap.

the United

States and

another nation indicates that,

executive
justice

system sufficiently

512 (1911); Neely v.

_____
habeas corpus

rule

sense, the

and legislative branches consider the treaty partner's

persons there for trial.

In

at least in a general

of

from

to

justify

See Glucksman
___ _________

Henkel (No. 1),

______________

the

accused

v. Henkel, 221 U.S. 508,

______

rationale has

doctrine

investigating

sending

180 U.S. 109, 123

proceedings, this

noninquiry

authorities

fair

which

produced the

forbids

fairness

(1901).

of

judicial

a requesting

18

nation's

justice

extradition

system

to that

when

nation.

considering
See Glucksman,
___ _________

whether

to

221 U.S.

permit

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

legal framework.
such

issues to

ultimately
should

another country's

For example, an extradition target may present

the

Secretary

decides whether

in fact

the fairness of

be extradited.

of

State

the

person found
See 18
___

to be

U.S.C.

official

who

extraditable
3186.

But,

traditionally, in extradition cases, the

judiciary neither asks,

nor

the

seeks

to

answer,

questions about

sensitivities

and

sophistication of courts abroad.7

B.
B.

Scope of Article 3(a).

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

nationality

or punish

him on

or political

would, if surrendered,
detained or

account of

opinions,"

or if

be prejudiced at

restricted"

on account

Supplementary Treaty, art. 3(a).

of

intended

a country's

4-5;

132

evidently

Cong.

Rec.

knew that

to

authorize

these

inquiry

as that

factors.

into

the

system would

See S. Exec. Rep. No. 17, supra, at

___
_____

16,798-803 (1986).
its command

Moreover,

reversed years

practice forbidding judicial investigation

132

punished,

to the exact contrary,

justice system

apply to a given individual.

that "he

These phrases cannot be brushed

Congress

attributes of

he proves

any of

a series of scrivener's errors:

words

race, religion,

his trial or

aside as

the

his

Congress

of extradition

into such areas.

See
___

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,

zephyr

to persons

resisting

force;

its mere invocation will

international comity
sovereignty.

extradition, is

to

four principles

refreshing

not of

not sweep aside

and deference

At least

though a

hurricane

all notions of

the requesting
rein

in the

nation's

winds of

change.

First, elementary rules of construction dictate that the

defense

not

be

construed

remainder of the treaty.

so

expansively

as

to

negate

the

See, e.g., Factor, 290 U.S. at 292-93.

___ ____ ______

The

rule

of noninquiry

developed from

extradition treaty, by its

the assumption

that an

very existence, constitutes a general

20

acceptance
V(A).

of another

By like

country's legal system.

token, the existence of

See
___

supra Part
_____

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,
possible,

we

reciprocity

controlling
interpret

between,

and

precedent

extradition
expanded

requires

that,

treaties

to

rights on

behalf

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

where

produce
of,

the

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.

liberal

construction

United

have

These principles of reciprocity and

particular force

here

because

the

States, unlike the U.K. and certain other nations, has no

available

machinery

for

prosecuting

those

who commit

abroad but who are, nonetheless, non-extraditable.

crimes

See 132 Cong.

___

Rec. 16,587 (1986).

Third, article
that

he would,

if

3(a) requires

surrendered, be

particular factors.

In our

an accused to

establish

"prejudiced" on

view, this word

account of

denotes that

only

21

those preformed ideas relative to race, nationality, and the like

which

are

accused's

of

sufficient

situation,

magnitude

i.e.,
____

to

actually

"prejudice"

to

him,

affect

the

trigger

the

special prophylactic protections of the Supplementary Treaty.

Finally,
insisting upon
concerned

the

legislative

the inclusion

largely

with

the

history

suggests

of article

3(a),

special

Diplock

that, in

the Senate
court

was

system

applicable

to

Ireland.

those

See 132
___

accused

Cong.

of

terrorist

Rec. 16,806-19

indication that the defense was meant

acts

(1986).

in

Northern

There is

as a slur upon, much

no

less

an indictment of, the British legal system.

For these
this

case

is

particularly

interpretation
order

to

credible

himself

target

of

conclude that the

inhospitable

of article 3(a).

avail

extradition

four reasons, we

We
the

must establish

to

hold, therefore,
article
by

3(a)

soil of

rambling

that, in

defense,

an

preponderance of

the

evidence that, if he were surrendered, the legal system

of the requesting country would

treat him differently from other

similarly

because

situated individuals

nationality, or political opinions.

show some

to the level of
Hannay,

race, religion,

It is not enough

possibility that preformed ideas

under the terms of

M.

of his

might exist; rather,

the Supplementary Treaty, the bias

prejudicing the accused.

simply to

See
___

must rise

generally William
_________

Committee Report:
An Analysis of the U.S.-U.K.
____________________________________________________

Supplementary Extradition Treaty, 21 Int'l Law. 925 (1987).

________________________________
C.
C.

Appellant's "Per Se Prejudice" Argument.

Appellant's "Per Se Prejudice" Argument.
_______________________________________
22

We now face the task of applying the prejudice standard

in

this case.

careful

The record

reveals

that the

For

instance, he

some negative articles about Howard,

against

utilize

establish

in
an

the

procedure

3(a)

that
to

magistrate's

mitigated

bias de minimis.
__ _______
it rests

dire

found that there

the

screen

defense

their negative

does not

facts

did

not

countervailing

impact,

rendering any

Appellant excoriates this finding, complaining

upon a

faulty

irrebuttably establishes
Treaty

legal premise.

with the

not

magistrate

asserts that

of prejudice which

3(a) defense; and

countenance

in mulling

He

rule of noninquiry; that the

an article
does

countervailing factors
concur

be

venirepersons.

because

evidence he tendered constitutes per se proof

___ __

We

U.K.

eyes, these

3 effectively eclipses the

Supplementary

were

that some Britons might

Americans, and

article

considerations

article

black

voir

Nonetheless,

that

paid

attention to an array of facts that sometimes pointed in

different directions.

biased

magistrate

consideration

whether a defense
that

that the

of

is extant.

the Supplementary

Treaty

stakes out a middle ground between the classic rule of noninquiry

and

the total

traditional

abolition of that
formulation

preserving many aspects

of
of it.

rule:

the

rule

the treaty
while

alters the

simultaneously

Any other interpretation

would

run afoul of the four constraining principles we have identified.

See supra at 20-21.

___ _____
One
article

3(a),

manifestation
as we

of

this

read it,

middle

imposes

a de
__

position is

that

minimis threshold
_______

23

requirement relative to the existence of prejudice.

because

international

profile, a

per se rule
___ __

criminal

affairs

are

barring extradition

For example,

frequently

high

whenever there

has

been any negative

publicity would undermine the entire treaty by

making successful

article 3(a) defenses

relegating

extradition to

a few

virtually automatic and

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

relations in the U.K. or when he simply points to

race

the absence of

a specific procedural device.

Consequently,

we

considering the applicability

the

factors cited by

hold

that,

while

magistrate

of article 3(a) must weigh each of

appellant if an

extradition target offers

proof that
not

they exist, their

conclusively

something "more,"

establish
as

mere presence, without

an

we have

article

3(a)

indicated,

more, does

defense.8

is prejudice

The
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
construed

target.
article

It follows
3(a)

to

respondent-specific prejudice.9

that the

require

magistrate correctly
showing

Appellant's per
___

the magistrate's reasoning must, therefore, fail.

of

actual,

se challenge to
__

VI.
VI.

THE MERITS OF THE ARTICLE 3(a) DEFENSE

THE MERITS OF THE ARTICLE 3(a) DEFENSE
This

challenge to
pause.10

brings us

Nevertheless,

establish,

an issue that

in seeking

to

target bears

be prejudiced

Supplementary Treaty,
(1986).

case in

Howard's fact-based

gives us some

secure an

article 3(a)

a heavy burden.

He

must

by a preponderance of the evidence, that he would, if

_____

surrendered,

16,607

merits of

the decision below

defense, an extradition

See
___

to the

on account
art.

3(a); see
___

Having painstakingly

light of the burden

of a

proscribed factor.
also 132
____

Cong. Rec.

reviewed the papers in the

of proof, we cannot

say that clear

error inheres.
Appellant

introduced

affidavits from several

testimony

of

Paul

England's

Commission

numerous

newspaper

articles,

people living in Great Britain,

Stevenson,
for

a senior

Racial

executive

Equality, in

an

and the

officer

of

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

receiving fair treatment abroad.

mixed bag.

any

him

from

But, this evidence comprises a

On the other hand, the publicity was mercifully

duration, for the most

the U.K.'s
off

prevent

It is true that some of the press clippings contained

racial innuendo.
brief in

would

Contempt of Court
further

created

some

British

press;

part lasting less than

Act has been invoked

untoward publicity;

of the

notoriety in

the

media

Howard's

his

and will cut

counsel himself

rousing remarks

coverage

was

not

some of the newspaper

describe

and,

favorably);

to the

uniformly

overwhelmingly negative (indeed,

appellant

a week;

finally,

the

or

articles

publicity

occurred over two years ago and will be very old news when and if
appellant

eventually

comes

to

conflicted record, the magistrate

in finding

that a spurt

trial

in

England.

On

this

did not perpetrate clear error

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
shortcomings
require
appellant

of the

in

the record

requesting nation's

a different result for

presented

concerning

affidavits

the

supposed

legal system

does not

it, too, is

mixed.

and testimony

Admittedly,

suggesting

that

preformed

ideas

circumstances

constitute

of this case

submitted

appellant's

by

witness

on

threat

because the English

provide for American-style voir

evidence

particular

the

in

the

system does not

dire of potential jurors.

government

and

cross-examination

But,

elicited

indicates

from

that

the

26

English legal system has a host of other mechanisms which will be

available to
dire.
the

appellant and

which mitigate

the absence

of voir

Appellant will be able to present his arguments concerning

impact

committal

of

pretrial

proceedings in

publicity and
the

U.K.

race
He

may

relations
then

during

renew

the

arguments by requesting pretrial review at the Crown Court, again

before

the trial

conviction.
excusal of
bound

to

impropriety

In

and still

offer

again

on appeal

addition, the English system provides

potentially biased jurors

detailed

of grounding

considerations.
the

judge,

jury

and trial judges

instructions

from

for self-

are duty

concerning

defendants' convictions

the

on extraneous

Seen in this light, the absence of voir dire

English system is not of decretory significance.

courts must not let jingoism

any

in

After all,

run amok, but, rather, must turn

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

properly decanted, is ambivalent.

and

others in

magistrate's

the

of

prejudice,

The facts we have

catalogued,

record, comprise

conclusion that

appellant's race is so
Put

concerning

adequate

any evidence

support for

of bias

exiguous as not to animate

the

relating to

article 3(a).

another way, the magistrate weighed the proof, drew a series

reasonable (albeit

not inevitable)

concluded that appellant

prejudice.

had not carried

inferences from

it, and

the burden of

proving

We cannot say that this choice between two plausible

27

alternatives,
constitutes

each

clear error.

470 U.S. 564, 573-74

929

which

finds

CONCLUSION

support

in

the

record,

See Anderson v. City of Bessemer City,

___ ________
_____________________

(1985); United States v. Rodriguez-Morales,

_____________
_________________

F.2d 780, 784 (1st Cir. 1991),

(1992).
VII.

of

cert. denied, 112 S. Ct. 868

_____ ______

VII.

CONCLUSION
We

Supplementary

need

go

no

Treaty

further.11

significantly

Article
alters

the

of

the

pattern

of

procedural avenues and substantive rights traditionally available

in extradition
extradition
Following
have

cases.

While these alterations

landscape,

they

the map that Article

jurisdiction

to

do

not

render

3 supplies, we

consider

reconfigure the

appellant's

it

impassable.

conclude that we
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

article 3(a) defense

the scope of

envision a grandeur which lacks

the

support in

the treaty's language or in the applicable law; and, that, in the

last analysis,
support from

the magistrate's
the record to

findings of fact

withstand attack.

derive enough

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

certification of extraditability.

Affirmed.
Affirmed.
________

Concurring Opinion Follows

Concurring Opinion Follows

of a

29

CAMPBELL, Senior Circuit Judge (Concurring).

_________________________________
joining

in

the

court's

opinion,

am

troubled

resolution of

the "successive appeals" issue.

provides that

a finding concerning an

be

immediately appealable

United

States

district

appropriate."
indicate that

We hold

by
or

political opinion,

either
court

that this unclear

district court, if the

by a magistrate, or
__

our

Article 3(b)

of

party to

the

appeals,

as

language does not

an appellant receives only one appeal

___

an appeal to the
decision was

court,

by

Article 3(a) defense,

involving race, religion, nationality, or

"shall

While

i.e.,

initial extradition

an appeal to the

court of

appeals if the initial extradition decision was by a district

judge
for

but rather was meant to

provide, however clumsily,

the full federal appellate process.

Thus, where as here

the

initial

appellant

extradition

can

decision

appeal, (1)

court; (2) from

the

assume, (3) from

to

the

district court

was by

the

magistrate,

United States
to this

this court to the Supreme

district

court; and,

Court by writ of

certiorari.
It

is sad but true that this interpretation of the

ambiguous language

while

creates significant new

their extradition.
judge or

opportunities for

delays

intended

persons to

delay

Historically, extradition decisions

magistrate were

potential

seemingly what was

which

not appealable, thus

often

attend

by a

avoiding the

appellate

review.

-2929

Obviously,
bogged

the

more

extradition

down in endless

is susceptible

procedural maneuvering,

the danger that essential witnesses

to

the greater

to the charged crime may

die or disappear and their memories fade prior to trial.

used to

be thought

nation

in enforcing

that the
its

being

interest of

criminal law

It

another civilized

entitled

it to

the

reasonably

prompt

extradition

present appeal to this court

of

accused

persons.

The

has enabled appellant to

delay

trial in Great Britain by another year or more.

It would have been useful had
America gone more deeply,
pros and cons
In

in its briefs before us,

of the proper interpretation

a Treaty

espoused by

the United States of

case

of first

the Attorney

of Article 3(b).

impression, the

General can

into the

interpretation

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.

the alternative interpretation
"one bite of the
Article

what my colleagues call the

apple" approach

3(b)'s

literal

language

divorcing extradition from the

could have

benefited from

However,

has
and

some appeal
the

long

given

tradition

normal appellate process.

a more considered

We

explication of

all this by the United States.

In
emphasize

the

any

event,

implications

write separately
of

-3030

Article

3(b),

in
as

order

to

we

now

interpret it, so that the drafters

of future provisions will

have no

inevitable potential

delay,

illusions
and

desirable.

concerning the

may decide

whether

other

approaches would

for
be

-3131