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United States

decided: December 23, 1981.

IN THE MATTER OF THE REQUESTED EXTRADITION OF DESMOND MACKIN BY THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND UNITED STATES OF AMERICA, PETITIONER-APPELLANT
v.
DESMOND MACKIN, RESPONDENT-APPELLEE; DESMOND MACKIN, PETITIONER, AGAINST GEORGE V. GRANT, UNITED STATES MARSHAL FOR THE SOUTHERN DISTRICT OF NEW YORK, RESPONDENT



Appeal by the United States from the decision of a magistrate appointed by the District Court for the Southern District of New York and alternative petition for mandamus relating to such decision. The decision denied a request by the Government of the United Kingdom of Great Britain and Northern Ireland for the extradition of a member of the Provisional Irish Republican Army on the ground that the offense for which extradition was sought was of a political character within the pertinent exception in the applicable extradition treaty. Petition for habeas corpus by the extradite and motion for immediate release. Appeal of the United States dismissed for want of jurisdiction; alternative petition for mandamus denied in part and dismissed in part. Extraditee's petition for habeas corpus and attendant motion dismissed for want of jurisdiction.

Before Feinberg, Chief Judge, and Friendly and Pierce, Circuit Judges.*fn*

Author: Friendly

This appeal by the United States and an alternative request by it for mandamus consolidated therewith*fn1 relate to a decision of United States Magistrate Naomi Reice Buchwald (the Magistrate) of the District Court for the Southern District of New York dated August 13, 1981. The decision denied a request by the Government of the United Kingdom of Great Britain and Northern Ireland for the extradition of Desmond Mackin pursuant to Article VIII of the Extradition Treaty (sometimes hereafter the Extradition Treaty or the Treaty) between the United States and the United Kingdom. The Treaty, which is the successor to the very limited provision in Article 27 of Jay's Treaty, 8 Stat. 116, 129 (1794), and Article X of the Webster-Ashburton Treaty of 1842, 8 Stat. 572, 576-77, was signed on June 8, 1972 and entered into force on January 21, 1977, 28 U.S.T. 227, T.I.A.S. 8468. After the request had been submitted to the United States through diplomatic channels, a Special Assistant United States Attorney for the Southern District of New York, acting for and on behalf of the United Kingdom, filed an appropriate complaint in the District Court for the Southern District of New York pursuant to 18 U.S.C. § 3184.*fn2 Mackin was arrested under authority of an order of a district judge under that statute and has been held in custody since then. The complaint was referred to the Magistrate by a judge of the District Court for the Southern District of New York pursuant to Rule 9 of that court's Magistrates Rules.

The requested extradition was based upon Mackin's indictment in Northern Ireland on charges of attempted murder, on March 16, 1978, of a British soldier, Stephen Wooton, in Anderson stown, Belfast, Northern Ireland; wounding Wooton with intent to do grievous bodily harm, contrary to Section 18 of the Offenses Against the Person Act of 1861; and possession of firearms and ammunition with intent, in contravention of Section 14 of the Firearms Act (Northern Ireland) 1969. Mackin was arrested in Northern Ireland after the incident but was released on bail and failed to appear for trial there, entered the United States illegally and was apprehended by the Immigration and Naturalization Service.*fn3

After taking extensive evidence, receiving briefs and hearing argument, the Magistrate delivered a lengthy and thorough opinion. She concluded that the United Kingdom had satisfied its burden, under Article IX(1) of the Treaty, of producing evidence "sufficient according to the law of the requested Party ... to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party ..." with respect to the first and third of the offenses charged.*fn4 However, the Magistrate declined to issue the certificate to the Secretary of State provided for by 18 U.S.C. § 3184 on the ground that the offenses charged came within Article V(1)(c)(i) of the Treaty, which states:

(1) Extradition shall not be granted if:

(c)(i) the offense for which extradition is requested is regarded by the requested Party as one of a political character ....

The Magistrate pointed to cases holding or indicating that the political offense exception is not limited to "purely" political offenses against a government, such as treason, sedition and espionage, but extends also to "relative" political offenses, to wit, crimes against persons or property which are incidental to a war, revolution, rebellion or political uprising at the time and site of the commission of the offense, see Ornelas v. Ruiz, 161 U.S. 502, 16 S. Ct. 689, 40 L. Ed. 787 (1896); In re Castioni, (1891) 1 Q.B. 149 (1890); In re Meunier, (1894) 2 Q.B. 415 (1894); In re Ezeta, 62 F. 972, 977-1002 (N.D.Cal.1894); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5 Cir. 1971), cert. denied, 405 U.S. 989, 92 S. Ct. 1251, 31 L. Ed. 2d 455 (1972); Abu Eain v. Wilkes, 641 F.2d 504, 518-23 (7 Cir. 1981), cert. denied, 454 U.S. 894, 102 S. Ct. 390, 70 L. Ed. 2d 208 (1981). She found that: (1) at the time of the offenses charged against Mackin the Provisional Irish Republican Army (PIRA) was conducting a political uprising in the portion of Belfast where the offenses were committed; (2) that Mackin was an active member of PIRA; and (3) that the offenses committed against the British soldier were incidental to Mackin's role in the PIRA's political uprising in Belfast. Accordingly, she concluded that the crimes for which Mackin was indicted were "of a political character" within the meaning of Article V(1)(c)(i) of the Treaty.

As indicated above, the United States has appealed from the Magistrate's decision to deny the request of the United Kingdom, and in the alternative has sought mandamus to require her to grant the request. In addition to challenging the Magistrate's conclusion that Mackin's crime was "of a political character", the Government contends that decision whether an offense falls within Article V(1)(c)(i) is committed exclusively to the executive branch. Mackin contends that the Magistrate's order is not appealable because it is not a final decision of a district court of the United States within 28 U.S.C. § 1291 and that this court lacks power to issue a writ of mandamus under 28 U.S.C. § 1651 because of the requirement in that section that such issuance must be "necessary or appropriate in aid of ... (an issuing court's) jurisdiction( ) and agreeable to the usages and principles of law." If a contrary view should be taken on either of these points, Mackin contends that the applicability of Article V(1)(c)(i) is a question for the judicial branch and that the Magistrate's decision on the merits of that issue was correct.

Appealability

Discussion of the appealability of orders granting or denying requests for extradition must go back as far as In re Metzger, 46 U.S. (5 How.) 176, 12 L. Ed. 104 (1847)-a case decided just prior to enactment of the predecessor of the present extradition statute and which doubtless led to that statute's adoption, see notes 6 & 8, infra. Although the extradition treaty with France there at issue, 8 Stat. 580 (1848), unlike the Webster-Ashburton Treaty of the previous year with Great Britain, made no provision that the person whose extradition had been requested should be brought before a judge or magistrate "to the end that the evidence of criminality may be heard and considered", President Polk and Secretary of State Buchanan elected to submit the French Government's extradition request to Judge Betts of the District Court for the Southern District of New York, who, after a hearing, committed Metzger to custody to await the order of the President, see In re Metzger, 17 Fed.Cas. 232 (No. 9511) (D.C.S.D.N.Y.1847). Although the Supreme Court thought that in seeking a hearing before a judicial officer the executive had acted "very properly, as we suppose", 46 U.S. (5 How.) at 188-89, it concluded that the case "was heard and decided by the district judge at his chambers, and not in court" id. at 191. In that role the district judge was exercising "a special authority, and the law has made no provision for revision of his judgment. It cannot be brought before the District or Circuit Court; consequently it cannot, in the nature of an appeal, be brought before this court." Id. at 191-92. Since the Supreme Court thus had no appellate jurisdiction, under the most famous of constitutional decisions it likewise could not issue a writ of habeas corpus on Metzger's behalf. Thus the doctrine of the unappealability of extradition decisions by judges and magistrates was born.*fn5

The prime purpose of the 1848 statute, 9 Stat. 302, which followed immediately on the Metzger decision, was to provide additional judicial officers to handle extradition requests.*fn6 Nothing on the face of the statute or in its legislative history shows an intention to alter the Supreme Court's ruling with respect to appealability.*fn7

That question arose in In re Kaine, 55 U.S. (14 How.) 103, 120, 14 L. Ed. 345 (1852). Kaine was charged by the British Government with a murder in Ireland, apparently in a case having political overtones. Id. at 114-15. The request for extradition was made by the British Consul in New York and heard by a United States commissioner who ordered Kaine to be committed. The Circuit Court declined to issue habeas corpus, and Kaine sought to bring these rulings before the Supreme Court in a number of ways. Justice Curtis, concurring in a careful opinion, concluded that the Commissioner's action was unreviewable on appeal for the reason that, like the judge in Metzger and despite the 1848 statute, he was not exercising "any part of the judicial power of the United States", id. at 119; that the refusal of the Circuit Judge to issue a writ of habeas corpus could not be reviewed since it was not the cause of Kaine's commitment; and that the Supreme Court could not issue the writ on its own account since this would be a prohibited exercise of original jurisdiction.*fn8

The decision in Kaine that the Act of August 12, 1848, was not intended to alter the holding in Metzger regarding the nonappealability of decisions granting extradition was recognized in a 1853 opinion of Attorney General Cushing to Secretary of State Marcy. The Attorney General stated, "Nor can appeal be taken from the decision of Mr. Justice Edmonds to any other court, so as to revise that decision. The judge or magistrate in this case acts by special authority under the act of Congress; no appeal is given from his decision by the act; and he does not exercise any part of what is, technically considered, the judicial power of the United States." 6 Op.Atty.Gen. 91, 96 (1853). Not long thereafter, the common understanding with respect to the appealability of orders denying extradition requests was reflected in another opinion rendered by the Office of the Attorney General to Secretary of State Seward in 1863, 10 Op.Atty.Gen. 501, 506. This stated unequivocally, in response to an objection by a foreign government to a district judge's denial of extradition,

In cases of this kind, the judge or magistrate acts under special authority conferred by treaties and acts of Congress; and though his action be in form and effect judicial, it is yet not an exercise of any part of what is technically considered the judicial power of the United States. No appeal from his decision is given by the law under which he acts, and therefore no right of appeal exists. (Ex-parte Metzger, 46 U.S. (5 How.), 176 (12 L. Ed. 104); U. S. v. Ferreira, 54 U.S. (13 How.), 40-48 (14 L. Ed. 42); in re Kane (sic), 55 U.S. (14 How.), 103, 119 (14 L. Ed. 345), Curtis J.) The decision of Judge Leavitt is thus beyond the reach of correction either by executive or judicial power.*fn9

and suggested that the foreign government submit a new request. Further evidence of the nonappealability of orders granting extradition can be found in a Report of the Senate Judiciary Committee on the nation's ...


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