endeavors to parse those cases in which the Supreme Court endorses the principle so as to label the rule dictum. The fact remains, however, that the Supreme Court has yet to disavow the "last in time" principle. Indeed, legal commentators view the principle as settled: "Whatever the arguments, the equality of statutes and treaties in domestic law seems established, and acts of Congress inconsistent with earlier treaty obligations are regularly given effect by the courts." Id.;4 accord Lawrence H. Tribe, American Constitutional Law § 4-5, at 226 (2d ed. 1988).
This case does not require this body of law to be revisited for, as already discussed, there simply is no conflict between § 3196 and the Convention. The United States retains the same authority to refuse a request from Portugal for the surrender of an American citizen as it had before enactment of the statute.
II. The "Retrospective" Application of Section 3196
In a letter submitted to the court shortly before oral argument, petitioner somewhat obliquely challenges the application of 18 U.S.C. § 3196 to persons such as himself, whose alleged criminal conduct and conviction predate the enactment of the statute. Not insignificantly, this challenge does not invoke the Ex Post Facto Clause, or any other constitutional protection. See United States ex rel. Oppenheim v. Hecht, 16 F.2d 955, 956 (2d Cir.) ("Extradition proceedings are not in their nature criminal . . . therefore all talk of ex post facto legislation . . . is quite beside the mark."), cert. denied, 273 U.S. 769, 71 L. Ed. 883, 47 S. Ct. 572 (1927); In re Extradition of McMullen, 769 F. Supp. 1278, 1290-93 (S.D.N.Y. 1991) (rejecting ex post facto challenge to extradition, but granting writ of habeas corpus on bill of attainder grounds), aff'd, McMullen v. United States, 953 F.2d 761 (2d Cir. 1992), and aff'd in part, rev'd in part, In re Extradition of McMullen, 989 F.2d 603 (2d Cir.) (en banc) (reversal pertains to bill of attainder ruling), and cert. denied, 126 L. Ed. 2d 249, 114 S. Ct. 301 (1993).
Neither does it take exception to the "long established rule that 'extradition treaties, unless they contain a clause to the contrary, cover offenses committed prior to their conclusion.'" Galanis v. Pallanck, 568 F.2d 234, 237 (2d Cir. 1977) (quoting Gallina v. Fraser, 177 F. Supp. at 864). Indeed, counsel concedes that if the Secretary of State had been granted power to extradite pursuant to treaty rather than statute, Hilario would not challenge his extradition on this ground.
Instead, in a single sentence in the letter, petitioner submits that "while it is clear . . . that a treaty may be applied retroactively, there is no authority suggesting that a statute may be applied retroactively in this context." (Petitioner's Letter of 5/6/94 at 2.) In fact, petitioner errs in thinking that either an extradition treaty or a statute pertaining to extradition applies retroactively to crimes committed before their enactment.
As the Supreme Court recently stated in Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 114 S. Ct. 1483, 1499 (1994), "[a] statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment." The key inquiry is whether the law "attaches new legal consequences to events completed before its enactment." Id.
Section 3196 attaches no "new legal consequences" to Hilario's 1983 murder of his brother and attempted murder of his son and other brother. These consequences were determined by the courts of Portugal, which ordered Hilario to serve fourteen years in jail for his crimes. All § 3196 does is empower the Secretary of State to surrender Hilario to Portugal so that he may complete this sentence.
Neither can petitioner claim that § 3196 attaches new legal consequences to his status in the United States as a fugitive from Portuguese justice. Although it is unclear when such status began, it was not "completed" before the enactment of § 3196. Rather, it continue until 1993, some three years after the statute went into effect.
In any event, over a century ago, Judge (eventually Justice) Blatchford in In re De Giacomo, 7 F. Cas. 366 (C.C.S.D.N.Y. 1874) (No. 3747), rejected the claim
that a person who has committed a crime abroad and fled to this country has acquired a right of asylum here, as a personal right, so that, under a subsequent law, whether treaty or statute, he cannot be delivered up as a fugitive from justice. If there be any want of power to deliver him up, it must be found in a constitutional restriction upon the power to make a treaty, or to pass a statute, covering extradition for a crime previously committed.
Id. at 369-70 (emphasis added). In fact, the Constitution does not prohibit laws for the extradition of fugitives from foreign justice, even when such fugitives are United States citizens. E.g., Charlton v. Kelly, 229 U.S. at 468.
De Giacomo was relied on by Gallina v. Fraser, 177 F. Supp. at 864, the leading case holding that the law relevant to an extradition proceeding is determined with reference to "the time of the demand" for the surrender, not "the time of the commission of the offense." The "law" at issue in Gallina was an extradition treaty. But, as the highlighted sections of De Giacomo indicate, there is no real distinction to be drawn between treaties and statutes pertaining to extraditions. This is because both serve the same purpose: ensuring that a nation's territory is not "made a place of refuge for criminals." In re De Giacomo, 7 F. Cas. at 169. This concern is activated "by the mere fact of finding the fugitive in such territory . . . without reference to the particular time when the crime was committed." Id. The asylum country does not, after all, determine the guilt or innocence of the fugitive. Neither does it fix his punishment. Its sole focus is on the propriety of his surrender. Thus, the law pertinent to this inquiry, whether reflected in treaty or statute, is IF determined solely with reference to the time surrender is demanded.
Once again, Hilario cites Gouveia v. Vokes to support his retroactivity claim. In Gouveia, the court declined to apply § 3196 to a second extradition request because the earlier request, made prior to the statute's enactment, had been denied for lack of executive power to extradite. 800 F. Supp. at 247-49, 259-60. This court expresses no opinion as to the merits of this conclusion on the facts present in Gouveia. But certainly this case involves no successive demand for extradition such as was crucial to the Gouveia holding.
Because Hilario's surrender was first sought well after the enactment of § 3196, there is no issue of retroactivity in this case.
Because the Secretary of State is lawfully empowered by 18 U.S.C. § 3196 to extradite United States citizens even absent treaty obligation to do so, and because Hilario raises no other objection to his extradition, this court concludes that petitioner's habeas corpus challenge to Magistrate Judge Caden's order certifying his extraditability is without merit. The petition for a writ of habeas corpus is denied. A certificate of probable cause to appeal is granted.
Dated: Brooklyn, New York
June 6, 1994
UNITED STATES DISTRICT JUDGE