No. 13-56080

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ARTHUR J. PATTERSON,

Petitioner-Appellant,

v.

BARBARA WAGNER, WARDEN, Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA DISTRICT COURT NOS. CV 12-9960-ODW & CV 11-5459-ODW

RESPONDENT’S ANSWERING BRIEF

ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division

NANCY B. SPIEGEL Assistant United States Attorney Criminal Appeals Section 1000 United States Courthouse 312 North Spring Street Los Angeles, CA 90012 Telephone: (213) 894-2391 Email: nancy.spiegel@usdoj.gov Attorneys for Respondent-Appellee BARBARA WAGNER, WARDEN

TABLE OF CONTENTS

DESCRIPTION PAGE

I ISSUES PRESENTED ............................................................................. 2 

II STATEMENT OF THE CASE ............................................................... 3 

A.  Jurisdiction, Timeliness, And Bail Status .............................. 3 

1.  The underlying offense ................................................... 4 

2.  Extradition Proceedings ................................................. 5 

3.  Habeas corpus proceedings .......................................... 10 

III SUMMARY OF ARGUMENT ............................................................. 11 

IV ARGUMENT ........................................................................................ 13 

THE DISTRICT COURT PROPERLY DENIED THE HABEAS PETITION BECAUSE THE MAGISTRATE JUDGE CORRECTLY CERTIFIED PETITIONER’S EXTRADITION .............................. 13 

A.  Standard of Review ................................................................ 13 

B.  Legal Framework ................................................................... 13 

1.  General extradition principles ..................................... 13 

2.  Habeas corpus in extradition cases .............................. 18 

C.  The District Court Properly Denied the Habeas Petition Because the Discretionary Statute of Limitations Provision in the Treaty Did Not Bar the Magistrate Judge’s Certification of Extradition ................... 20 

1.  The unambiguous plain language of the statute of limitations provision in the Treaty is discretionary; therefore, the issue of whether

TABLE OF CONTENTS (continued)

DESCRIPTION PAGE

ii

extradition can be denied on this ground is solely within the authority of the Secretary of State ............ 20 

2.  None of the extratextual sources cited by petitioner alters the plain language interpretation of Article 6 as discretionary ................. 34 

3.  Construing Article 6 as discretionary furthers the object and purpose of the Treaty, which is to facilitate the extradition of criminals .......................... 41 

D.  The Status of Forces Agreement Is Not Judicially Enforceable ............................................................................. 44 

V CONCLUSION ...................................................................................... 57 

TABLE OF AUTHORITIES

DESCRIPTION PAGE(S)

iii

FEDERAL CASES: 

Abbott v. Abbott, 560 U.S. 1 (2010) ........................................................... 30, 32, 38, 41

Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990) ........................................................... 20

Air France v. Saks, 470 U.S. 392,105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) ............... 23, 29

Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 1986) ................................................... 18, 19

Bingham v. Bradley, 241 U.S. 511 (1916) ......................................................................... 16

Blaxland v. Comm. Dir. Of Public Prosecutions, 323 F.3d 1198 (9th Cir. 2003) ............................................. 14, 17, 25

Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989) ............ 22, 29

Chubb Ins. Co. of Europe S.A. v. Menlo Worldwide Forwarding, Inc., 634 F.3d 1023 (9th Cir. 2011) ......................................................... 22

Collins v. Loisel, 259 U.S. 309 (1922) ................................................................... 15, 20

Cucuzzella v. Keliikoa, 638 F.2d 105 (9th Cir. 1981) ........................................................... 16

Eastern Airlines v. Floyd, 499 U.S. 530 (1991) ......................................................................... 29

Edye v. Robertson, 112 U.S. 580 (1884) ......................................................................... 49

TABLE OF AUTHORITIES (continued)

DESCRIPTION PAGE(S) FEDERAL CASES:

iv

Eid v. Alaska Airlines, Inc., 621 F.3d 858 (9th Cir. 2010) ........................................................... 22

Emami v. U.S. Dist. Court, 834 F.2d 1444 (9th Cir. 1987) ......................................................... 19

Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993) .......................................................... 18

Extradition of Russell, 789 F.2d 801 (9th Cir. 1986) ........................................................... 19

Factor v. Laubenheimer, 290 U.S. 276 (1933) ......................................................................... 16

Fernandez v. Phillips, 268 U.S. 311 (1925) ....................................................... 16, 18, 19, 20

Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) ........................................................... 18

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ......................................................................... 38

Holmes v. Laird, 459 F.2d 1211 (D.C. Cir. 1972) ............................................... passim

Hosaka v. United Airlines, Inc., 305 F.3d 989 (9th Cir. 2002) ........................................................... 22

In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1992) ........................................................... 54

International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670 ........................................................................... 32

TABLE OF AUTHORITIES (continued)

DESCRIPTION PAGE(S) FEDERAL CASES:

v

Johnson v. Eisentrager, 339 U.S. 763 (1950) ............................................................. 49, 55, 56

Kolovrat v. Oregon, 366 U.S. 187 (1961) ......................................................................... 38

Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir. 1997) ................................................... 14, 17

Mainero v. Gregg, 164 F.3d 1199 (9th Cir. 1999) ................................................... 18, 19

Man-Seok Choe v. Torres, 525 F.3d 733 (9th Cir. 2008) ..................................................... 13, 40

Martinez v. Lamagno, 515 U.S. 417 (1995) ......................................................................... 28

Matter of Burt, 737 F.2d 1477 (7th Cir. 1984) ............................................. 50, 52, 53

McKnight v. Torres, 563 F.3d 890 (9th Cir. 2009) ........................................................... 13

Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) .......... passim

Munaf v. Geren, 553 U.S. 674 (2008) ......................................................................... 45

Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) ......................................................................... 28

Neely v. Henkel, 180 U.S. 109 (1901) ................................................................... 45, 46

TABLE OF AUTHORITIES (continued)

DESCRIPTION PAGE(S) FEDERAL CASES:

vi

Oen Yin-Choy v. Robinson,, 858 F.2d 1040 (9th Cir. 1988) ......................................................... 19

Ornelas v. Ruiz, 161 U.S. 502 (1896) ......................................................................... 15

Prasoprat v. Benov, 421 F.3d 1009 (9th Cir. 2005) ................................................. passim

Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) ................................................... passim

Republic of Iran v. Boeing Co., 771 F.2d 1279 .................................................................................. 54

Sumitomo Shoji America, Inc. v. Avaliano, 457 U.S. 176 (1982) ............................................................. 30, 31, 38

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) ......................................................... 54

Theron v. U.S. Marshal, 832 F.2d 492 (9th Cir. 1987) ........................................................... 19

United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726 (9th Cir. 1975) ........................................................... 15

United States v. Wiebe, 733 F.2d 549 (8th Cir. 1984) ........................................................... 16

Valencia v. Limbs, 655 F.2d 195 (9th Cir. 1981) ........................................................... 15

Vo v. Benov, 447 F.3d 1235 (9th Cir. 2006) ............................................. 19, 23, 25

TABLE OF AUTHORITIES (continued)

DESCRIPTION PAGE(S) FEDERAL CASES:

vii

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) ......................................................................... 29

Zanazanian v. United States, 729 F.2d 624 (9th Cir. 1980) ..................................................... 16, 19

FEDERAL STATUTES: 

18 U.S.C. § 1111(a) ..................................................................................... 9

18 U.S.C. § 3184.................................................................................. 14, 16

18 U.S.C. § 3186........................................................................................ 17

28 U.S.C. § 1291.......................................................................................... 3

28 U.S.C. § 2241.................................................................................... 3, 10

FEDERAL RULE: 

Fed. R. App. P. 4(a)(1)(B) ........................................................................... 3

No. 13-56080

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ARTHUR J. PATTERSON,

Petitioner-Appellant,

v.

BARBARA WAGNER, WARDEN, Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA DISTRICT COURT NOS. CV 12-9960-ODW & CV 11-5459-ODW

RESPONDENT’S ANSWERING BRIEF

Petitioner-Appellant Arthur John Patterson (“petitioner”)

challenges the district court’s (the Honorable Otis D. Wright, II, United

States District Judge) denial of his habeas corpus petition on two

grounds: (1) that his extradition would violate the statute of limitations

provision of the extradition treaty between the United States and the

Republic of Korea (“Treaty”); and (2) the Status of Forces Agreement

(“SOFA”) between the two countries precludes his extradition on double

jeopardy grounds.

2

I

ISSUES PRESENTED

Petitioner was certified for extradition to the Republic of Korea by

a federal magistrate judge to face a murder charge. Article 6 of the

United States-Republic of Korea Extradition Treaty provides, in

relevant part, that “[e]xtradition may be denied . . . when the

prosecution . . . would have been barred because of the statute of

limitations of the Requested State.” The Status of Forces Agreement

(“SOFA”) between Korea and the United States provides, in relevant

part, that “[w]here an accused has been tried . . . by the military

authorities of the United States or the authorities of the Republic of

Korea . . . he may not be tried again for the same offense within the

territory of the Republic of Korea.”

The questions presented here are whether the district court erred

in denying petitioner’s petition for a writ of habeas corpus to review the

magistrate judge’s certification for extradition on the bases (1) that only

the executive branch of the United States government can decide

whether to enforce the discretionary statute of limitations provision in

Article 6 of the United States-Republic of Korea Extradition Treaty and

3

(2) that the Status of Forces Agreement between the two countries is

not judicially enforceable.

II

STATEMENT OF THE CASE

A. Jurisdiction, Timeliness, And Bail Status

The district court had jurisdiction pursuant to 28 U.S.C. § 2241.

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

The district court’s order denying petitioner’s petition for a writ of

habeas corpus was entered on June 14, 2013. (CR 12-9960 21.)1

Petitioner filed a timely notice of appeal on June 18, 2013. (CR 12-9960

2; ER 1.) Fed. R. App. P. 4(a)(1)(B). Petitioner is in custody on this

extradition matter.

1 “CR” refers to the Clerk’s Record in the district court and is

followed by the docket number. “CR 11-5459” refers to the extradition proceedings before the magistrate judge, “CR 12-9960” refers to the habeas proceedings before the district court, and “MJ 11-1037” refers to the proceedings before the duty magistrate judge. “ER” refers to the Excerpts of Record filed by petitioner, “AOB” refers to Appellant’s Opening Brief, “APX” refers to the Appendix filed concurrently with Respondent’s Brief, and “GER” refers to the Government’s Excerpts of Record; all such references are followed by the applicable page references.

4

1. The underlying offense

On April 3, 1997, at approximately 10:00 p.m., Cho Joong-pil, a

Korean college student, was stabbed to death in the restroom of a

Burger King restaurant in Seoul, Republic of Korea (“Korea”). (GER 2.)

Petitioner and Edward Kun Lee (“Lee”) were the only other

persons in the restroom at the time of the murder. (GER 2.) During

interviews, petitioner claimed that Lee was the killer, and Lee claimed

that petitioner was the killer. (GER 2.) Both were covered in blood,

although petitioner’s clothing was more blood-soaked. The murder

weapon was a knife belonging to petitioner that was handled by both

Lee and petitioner on the night of the murder. Petitioner disposed of

the knife after the killing. Petitioner made statements to witnesses in

which he admitted killing the victim. (GER 3.) At the time of the

murder, petitioner was the 17-year-old son of an American serviceman

stationed in South Korea. (ER 10; ER 144.)

Initially, Korean prosecutors accepted petitioner’s claim and used

him as a witness in a murder case against Lee. (GER 2-3.) Petitioner

was convicted of destruction of evidence and sentenced to 12 to 18

months in custody, although he was ultimately released from prison on

5

a “special pardon.” (GER 152-53, 154.) Lee was convicted of murder but

his conviction was subsequently overturned on appeal. (GER 153-54.)

Lee was acquitted following a second trial. (GER 154.)

In 1999, petitioner returned to the United States. (GER 144, 155.)

In 2009, Korean prosecutors determined that the evidence

indicated that petitioner was the killer. (GER 156-57.)

2. Extradition Proceedings

On July 23, 2009, Korea sought and obtained an arrest warrant

for petitioner for the murder of Cho Joong-pil. (GER 156-57.) On

December 24, 2009, Korean authorities sent an extradition request to

the United States government. (GER 141-228.) On May 10, 2011, the

government filed a complaint for an arrest warrant and the extradition

of petitioner (MJ 11-1037 1), and arrested petitioner on May 17, 2011.

(MJ 11-1037 6.) On July 5, 2011, the government filed a request for the

extradition of petitioner in the district court. (CR 11-5459 15.)

On September 6, 2011, the government filed a memorandum of

points and authorities and exhibits in support of extradition. (CR 11-

5459 31, 32.) In its memorandum, the government averred that all

elements for extradition had been met, including that there was

6

probable cause to believe that petitioner committed the offense charged.

On September 16, 2011 and April 5, 2012, the government filed

supplemental exhibits in support of extradition. (CR 11-5456 35, 63.)

On April 10, 2012, petitioner filed an opposition to the

government’s request for extradition in which he contended that there

was no probable cause to believe that he had committed the charged

murder, that the statute of limitations barred extradition, that the

double jeopardy provision of the SOFA barred extradition, and that

extradition should be denied because the murder prosecution in Korea

was brought for a political purpose.2 (CR 11-5456 66.) The government

filed a reply on June 29, 2012, petitioner filed a surreply on September

21, 2012, and the government filed a response to petitioner’s surreply

on October 15, 2012. (CR 11-5459 83, 89, 92.)

On October 30, 2012, United States Magistrate Judge Michael J.

Wilner certified petitioner for extradition and issued an 18-page opinion

explaining his decision in which he analyzed and rejected petitioner’s

arguments. (CR 11-5459 93; ER 9-26.) In his opinion, the magistrate

2 Only the statute of limitations and Status of Forces Agreement

issues are relevant to this appeal.

7

judge first rejected petitioner’s claim that his extradition was barred by

the statute of limitations provision in the Treaty. (ER 14-16.) The

court found that both “the plain text of the treaty and the direct

holdings of several recent Ninth Circuit decisions refute [petitioner]’s

claim.” (ER 14.) As the magistrate judge found, the Treaty provides

that extradition “may” be denied if the offense would have been barred

by the statute of limitations and that the use of the word “may” means

that this provision is a discretionary, not mandatory, exception to

extradition. (ER 14-15.) The magistrate judge specifically rejected

petitioner’s claim that the language of the provision was ambiguous,

stating that “given the clarity of the language in Article 6, there is no

need to turn to supporting materials to interpret its obvious meaning.”

(ER 15-16.) Therefore, only the Secretary of State was authorized to

exercise that discretion while the magistrate judge must certifiy the

individual for extradition. (ER 14-15.) The court held:

[T]he treaty specifically uses a term that, according to binding Ninth Circuit precedent, unambiguously shifts evaluation of a lapse-of-time argument to the discretionary authority of the Secretary of State. The Court cannot rewrite the treaty to turn this into a mandatory condition that would require denial of extradition.

(ER 16.)

8

With regard to petitioner’s argument that, as a dependent of an

American serviceman stationed in South Korea at the time of the

charged crime, he was entitled to the double jeopardy protection3

contained in the SOFA between the two nations,4 the court found that

SOFA could not be used as a defense against extradition and that the

SOFA does not give rise to any substantive rights in an American court.

(ER 17.) Rather, the SOFA sets forth procedures to be followed in

prosecuting Americans in Korean courts for crimes committed there and

expressly provides that “a ‘Joint Committee’ of American and Korean

government representatives serves as the exclusive body through which

disputes under the SOFA are to be adjudicated.” (ER 17.) The court

relied on two analogous, out-of-circuit cases in support of its position.

(ER 18-19).

The magistrate judge then found probable cause to support

petitioner’s extradition on a murder charge equivalent to second-degree

3 Petitioner alleged that his previous conviction for destruction of

evidence included a finding that he did not commit murder.

4 Petitioner also claimed a violation of his speedy trial right but does not raise that issue in this appeal.

9

murder pursuant to 18 U.S.C. § 1111(a) and detailed the evidence set

forth in the extradition request that supported this finding. (ER 20-

21.)5 The court also found adequate evidence to support a charge that

petitioner aided and abetted Lee in committing the murder and

specified the evidence it found sufficient to establish probable cause

under this theory as well. (ER 21.) The magistrate judge, however,

rejected the government’s argument that the evidence was sufficient to

support a finding of probable cause that petitioner committed first-

degree murder because, the court found, first-degree murder requires

proof of premeditation and the evidence presented did not establish this

element.6 (ER 21-23.) The court therefore certified petitioner for

extradition based on its finding that there was probable cause to believe

5 Although the magistrate judge found that the statute of

limitations for second-degree murder is five years and that the Korean murder prosecution of petitioner began more than five years after the crime was committed (ER 14), the court did not, as petitioner erroneously contends, find “that the charge was clearly time-barred.” (AOB 9). Rather, the court held that only the Secretary of State, not the court, had the authority to determine whether to find that extradition was barred under that provision. (ER 14-16.)

6 The government does not agree with this finding but does not argue on appeal that the district court’s denial of the habeas corpus petition should be affirmed on this ground.

10

that petitioner committed or aided and abetted the crime of second-

degree murder. (ER 25.)

3. Habeas corpus proceedings

On November 20, 2012, petitioner filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241, in which he sought relief

from the extradition certification order. (CR 12-9960 1.) Petitioner filed

his memorandum of points and authorities in support of his petition on

January 18, 2013. (CR 12-9960 10.) The government filed its

opposition to the habeas petition on March 1, 2013 and petitioner filed a

reply on May 15, 2013. (CR 12-9960 13, 19.)

On June 14, 2013, the district court filed a written order denying

the petition. (CR 12-9960 21; ER 6-8.) In its order, the court chastised

petitioner for failing to acknowledge the appropriate standard of review

of a habeas petition in an extradition proceeding, pointing out that the

scope of the district court’s habeas review in an extradition case is

“severely limited.” (ER 6.) The court then explained that it had

authority to consider only whether: (1) the magistrate judge had

jurisdiction over petitioner; (2) the Treaty was in force and the charged

crime fell within the terms of the Treaty; and (3) there is any competent

11

evidence to support the magistrate judge’s probable cause

determination. (ER 6.) The court found that only the probable cause

determination was in dispute and determined that the “evidence is

more than sufficient” to support the magistrate judge’s finding of

probable cause to support the charge of second-degree murder. (ER 8.)

The district court also addressed petitioner’s arguments that both

the statute of limitations provision in the Treaty and the SOFA’s

prohibition against double jeopardy should preclude his extradition

even though these arguments were not cognizable on habeas review.

(ER 8.) Based on its review of the magistrate judge’s ruling, the

arguments of the parties, the record and relevant legal authority, the

court concluded that the magistrate judge “properly applied the

relevant law” to petitioner’s case and therefore that the petition must be

denied. (ER 8.)

III

SUMMARY OF ARGUMENT

The district court’s denial of the habeas petition should be

affirmed. The court did not err in its finding that the extradition judge

properly certified petitioner’s extradition to Korea. On appeal,

12

petitioner challenges his extradition on the same two grounds he raised

before the magistrate judge during the extradition proceedings and the

district judge on habeas review. Neither contention has merit as both

the magistrate judge and district court have already correctly found.

Petitioner first contends that he cannot be extradited to Korea

because his extradition would violate the statute of limitations

provision of the extradition treaty between the United States and the

Republic of Korea. Petitioner is incorrect. As the magistrate judge

found when certifying extradition and the district court affirmed on

habeas review, the magistrate judge was obligated to certify the case for

extradition even if the Korean prosecution would violate the United

States statute of limitations. Because the statute of limitations

provision in the Treaty is discretionary rather than mandatory, only the

executive branch, personified by the Secretary of State, has the

authority to exercise discretion to deny extradition on that ground.

Second, petitioner’s claim that his extradition would violate the double

jeopardy provision of the SOFA also fails. The SOFA at issue here

specifically provides for enforcement of its provisions only by a Judicial

13

Commission. The SOFA does not create an individual right; nor is it

judicially enforceable. The only authorities on point support this view.

IV

ARGUMENT

THE DISTRICT COURT PROPERLY DENIED THE HABEAS PETITION BECAUSE THE MAGISTRATE JUDGE CORRECTLY

CERTIFIED PETITIONER’S EXTRADITION

A. Standard of Review

“We review de novo whether the district court erred in denying a

habeas corpus petition challenging certification of an extradition order;

we review factual questions, as determined by the extradition

magistrate judge, for clear error.” McKnight v. Torres, 563 F.3d 890,

892 (9th Cir. 2009) (citations omitted); Man-Seok Choe v. Torres, 525

F.3d 733, 741 (9th Cir. 2008); Prasoprat v. Benov, 421 F.3d 1009, 1013

(9th Cir. 2005); Quinn v. Robinson, 783 F.2d 776, 791-92 (9th Cir. 1986).

B. Legal Framework

1. General extradition principles

This Court has recognized that “extradition is a diplomatic process

carried out through the powers of the executive, not the judicial

branch.” Blaxland v. Comm. Dir. Of Public Prosecutions, 323 F.3d

1198, 1207 (9th Cir. 2003) (citing Lopez-Smith v. Hood, 121 F.3d 1322,

14

1326 (9th Cir. 1997)). It is “a matter of foreign policy entirely within

the discretion of the executive branch, except to the extent that [a]

statute interposes a judicial function.” Lopez-Smith, 121 F.3d at 1326

(citation omitted).

Title 18 U.S.C. § 3184 provides for an extradition hearing before a

United States justice, judge, or magistrate judge. Under Section 3184,

if the judge “deems the evidence sufficient to sustain the charge under

the provisions of the proper [extradition] treaty or convention . . . [then]

he shall certify the same, . . . to the Secretary of State . . . .” 18 U.S.C.

§ 3184. An extradition hearing is only a preliminary hearing designed

solely to determine whether the person arrested is subject to surrender

to the requesting country under the terms of the applicable treaty,

relevant statutes (i.e., 18 U.S.C. § 3184 et seq.), and relevant case law.

The extradition hearing is not intended to determine whether the

evidence is sufficient to justify conviction, for that determination will be

made by the foreign court that handles the case. See Collins v. Loisel,

259 U.S. 309, 316 (1922); Quinn v. Robinson, 783 F.2d at 815; Valencia

v. Limbs, 655 F.2d 195, 198 (9th Cir. 1981). The extradition magistrate

need only determine whether there is probable cause that the fugitive

15

committed the offense or offenses for which extradition is sought.

Ornelas v. Ruiz, 161 U.S. 502, 512 (1896). Addressing this context, this

Court has said that “[t]he magistrate's function is to determine whether

there is ‘any’ evidence sufficient to establish reasonable or probable

cause.” United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726,

730-31 (9th Cir. 1975).

In order to issue a certificate of extraditability, the extradition

magistrate must determine that the following elements are present: (1)

the extradition magistrate has jurisdiction to conduct extradition

proceedings; (2) the extradition magistrate has jurisdiction over the

fugitive; (3) an extradition treaty is in force; (4) the fugitive is being

sought for offenses for which the applicable treaty permits extradition;

and (5) there is sufficient evidence to establish that the individual

appearing before the extradition magistrate is the fugitive who is

charged and reasonable ground to believe the accused guilty (the

probable cause requirement). See 18 U.S.C. § 3184; Quinn, 783 F.2d

776, 783, 790 (9th Cir. 1986); Zanazanian v. United States, 729 F.2d

624, 625-26 (9th Cir. 1980).

16

When interpreting an extradition treaty, the extradition

magistrate must construe its provisions liberally, in a manner favoring

the obligation to surrender the accused. See Factor v. Laubenheimer,

290 U.S. 276, 293-94, 298, 303 (1933); United States v. Wiebe, 733 F.2d

549, 554 (8th Cir. 1984); Cucuzzella v. Keliikoa, 638 F.2d 105, 107 n.3

(9th Cir. 1981) (“treaties should be construed to enlarge the rights of

the parties”). Moreover, the obligation to surrender the accused to be

tried for his alleged offenses “should be construed more liberally than a

criminal statute or the technical requirements of criminal procedure.”

Factor, 290 U.S. at 298. Accordingly, “[f]orm is not to be insisted upon

beyond the requirements of safety and justice,” Fernandez v. Phillips,

268 U.S. 311, 312 (1925), and objections that “savor of technicality” do

not find favor in extradition proceedings, see Bingham v. Bradley, 241

U.S. 511, 517-18 (1916).

If the magistrate judge decides that the elements necessary for

extradition are present, the court “is required to certify the individual

as extraditable to the Secretary of State.” Blaxland, 323 F.3d at 1208;

Lopez-Smith, 121 F.3d at 1326. “The magistrate has no discretionary

decision to make.” Lopez-Smith, 121 F.3d at 1326. The discretionary

17

decision to surrender the accused to the requesting nation rests with

the Secretary of State pursuant to 18 U.S.C. § 3186. Id.7 The Secretary

of State is not required to grant extradition but may, in his or her

discretion, decline extradition for reasons that are not available to the

courts. See 18 U.S.C. § 3186; Prasoprat, 421 F.3d at 1012. Because

extradition is a matter of foreign policy, “the executive branch’s

ultimate decision on extradition may be based on a variety of grounds,

ranging from individual circumstances, to foreign policy concerns, to

political exigencies.” Blaxland, 323 F.3d at 1208. “We have long held

that it is the Secretary’s role, not the courts’, to determine whether

extradition should be denied on humanitarian grounds or on account of

the treatment that the fugitive is likely to receive upon his return to the

requesting state.” Trinidad y Garcia v. Thomas, 683 F.3d 952, 960 (9th

Cir. 2012) (Thomas, J., concurring) (quotation and citation omitted).

7 Section 3186 provides that the “Secretary of State may order the

person committed under sections 3184 or 3185 of this title to be delivered to any authorized agent of such foreign government, to be tried for the offense of which charged.”

18

2. Habeas corpus in extradition cases

The decision to certify an individual as extraditable cannot be

challenged on direct appeal. Rather, a habeas petition is the only

available avenue to challenge an extradition order. Mainero v. Gregg,

164 F.3d 1199, 1201-02 (9th Cir. 1999).

In reviewing the denial of a habeas petition in an extradition case,

this Court recognizes that the scope of the district court’s habeas review

of an extradition order is “severely limited.” Mainero, 164 F.3d at 1205;

Artukovic v. Rison, 784 F.2d 1354, 1355-56 (9th Cir. 1986). Habeas

review cannot take the place of a writ of error and is not a means for

rehearing what the magistrate judge has decided. 8 E.g., Fernandez v.

Phillips, 268 U.S. 311, 312 (1925). This Court has repeatedly held

similarly. See Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006);

Prasoprat , 421 F.3d at 1013; Mainero, 164 F.3d at 1205; Oen Yin-Choy

v. Robinson, 858 F.2d 1040, 1402-03 (9th Cir. 1988); Theron v. U.S.

8 A central feature of extradition law provides one basis for the

limitation on judicial review. A magistrate judge hearing an extradition matter does not sit as a court but rather as a judicial officer authorized to hear the matter by statute. See, e.g., Extradition of Howard, 996 F.2d 1320, 1325 (1st Cir. 1993).

19

Marshal, 832 F.2d 492, 495 (9th Cir. 1987) (abrogated on other grounds,

United States v. Wells, 519 U.S. 492, 495 (1997)); Extradition of Russell,

789 F.2d 801, 803 (9th Cir. 1986); Quinn, 783 F.2d at 790; Emami v.

U.S. Dist. Court, 834 F.2d 1444, 1447 (9th Cir. 1987); Artukovic, 784

F.2d at 1356.

The district court’s habeas review of an extradition order is

limited to “whether the magistrate [judge] had jurisdiction, whether the

offense charged is within the treaty and, by a somewhat liberal

extension, whether there was any evidence warranting the finding that

there was reasonable ground to believe the accused was guilty.”

Mainero, 164 F.3d at 1205-06 (citing Quinn, 783 F.2d at 790 (quoting

Fernandez, 268 U.S. at 312)); see also Vo, 447 F.3d at 1240. A

“reasonable ground exists where the record contains “competent

evidence to support the conclusion that there was probable cause to

believe the petitioner guilty.” Zanazanian, 729 F.2d at 626 (9th Cir.

1984). A probable cause finding “must be upheld if there is any

competent evidence in the record to support it.” Quinn, 783 F.2d at 791

(citations omitted); see also Collins, 259 U.S. at 317.

20

The reviewing court is not permitted to inquire beyond whether

the elements necessary for extradition have been satisfied. Fernandez,

268 U.S. at 312; Quinn, 783 F.2d at 790; Mainero, 164 F.3d at 205.

“[C]onsideration of the procedures that will or may occur in the

requesting country is not within the purview of a habeas corpus judge.”

Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990).

C. The District Court Properly Denied the Habeas Petition Because the Discretionary Statute of Limitations Provision in the Treaty Did Not Bar the Magistrate Judge’s Certification of Extradition

1. The unambiguous plain language of the statute of limitations provision in the Treaty is discretionary; therefore, the issue of whether extradition can be denied on this ground is solely within the authority of the Secretary of State

Article 6 of the Treaty provides:

Extradition may be denied under this Treaty when the prosecution or the execution of punishment of the offense for which extradition is requested would have been barred because of the statute of limitations of the Requested State had the same offense been committed in the Requested State.9

9 As used herein, the “Requesting State” is Korea and the

“Requested State” is the United States.

21

Extradition Treaty Between the Government of the United States of

America and the Government of the Republic of Korea, U.S.-S.Kor., art.

6, June 9, 1998, S. Treaty Doc. No. 106-2 (“the Treaty”) (emphasis

added) (APX 9).

The magistrate judge certified petitioner for extradition based on

the court’s finding that there was probable cause to believe that

petitioner committed or aided and abetted second-degree murder. (ER

25.) The magistrate judge also found that, under federal law, the

statute of limitations for bringing such a charge is five years from the

date of the crime. (ER 14.) There is no dispute that the Korean

prosecution of petitioner for murder began more than five years after

the killing. Based on the foregoing, petitioner contends that the

Republic of Korea’s extradition request is barred under the statute of

limitations provision of the Treaty. However, the plain text of the

Treaty and the direct holdings of several Ninth Circuit decisions refute

petitioner’s claim.

Where the language of a treaty is clear on its face, courts are

powerless to divine a different meaning through an examination of

other sources:

22

“The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellin v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). And, where the text of a treaty is clear, a court has “no power to insert an amendment” based on consideration of other sources. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989).

Chubb Ins. Co. of Europe S.A. v. Menlo Worldwide Forwarding, Inc.,

634 F.3d 1023, 1026 (9th Cir. 2011); see also Eid v. Alaska Airlines, Inc.,

621 F.3d 858, 866 (9th Cir. 2010) (same). Cf. Hosaka v. United Airlines,

Inc., 305 F.3d 989, 993-94 (9th Cir. 2002) (“If the plain text is

ambiguous, we look to other sources to elucidate the treaty’s meaning,

including the purposes of the treaty, its drafting history, the

postratification understanding of the contracting parties and the

decisions of the courts of other signatories.”) (citation omitted)

(emphasis added). In Chan, the Supreme Court explained:

We must thus be governed by the text [of the treaty] - solemnly adopted by the governments of many separate nations - whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous, see, e.g., Air France v. Saks, 470 U.S. 392,105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). But where the text is clear, as it is here, we have no power to insert an amendment.

490 U.S. at 134.

23

This Court has explicitly considered the meaning of the word

“may” as used in an extradition Treaty. In Vo, 447 F.3d at 1246, this

Court stated:

Extradition treaties often provide for the general extraditability of individuals who commit offenses that are recognized as crimes in both the requesting and the requested states, subject to enumerated exceptions. These exceptions are of two general types: mandatory exceptions (including political offenses) and discretionary exceptions.

The Court explained that the word “shall” in a treaty indicates a

mandatory exception, and “may” indicates a discretionary exception:

The two types of exception are characterized by different language in extradition treaties. The use of “shall” language in a treaty indicates a provision constitutes a mandatory exception. For instance, Article 3(1)(a) of the Treaty provides, “[e]xtradition shall not be granted when: the offense for which extradition is sought is a political offense.” The use of “may” language in a treaty indicates a provision constitutes a discretionary exception. Article 5(2) of the Treaty, for example, provides “[e]xtradition may be denied when the person sought is being or has been proceeded against in the Requested State for the offense for which extradition is requested.”

Id. at 1246 n.13. Of course, “[i]f an individual falls within a mandatory

exception, the United States cannot extradite him to the requesting

country and the magistrate may not certify him as extraditable.” Id. at

1246. In contrast, “[i]f an individual falls within a discretionary

24

exception . . . the United States can choose not to extradite him to the

requesting country, but it is under no obligation to the relator to do so.”

Id. Accordingly, “[w]hen requested by the United States, the magistrate

must certify [for extradition] an individual even though he may be

subject to a discretionary exception.” Id. (emphasis added).

Similarly, in Prasoprat , 421 F.3d at 1014, the relevant treaty

stated that the requested nation “may refuse extradition” in the event

that the offense involved the potential application of the death penalty

in the requesting nation. This Court determined that the treaty

“clearly provides that the executive branch holds the authority for

determining extradition,” and that, assuming all other elements of

extradition were found, the court “must certify the individual as

extraditable” without analyzing the discretionary exception to

extradition in the treaty.

Therefore, when an extradition treaty contains a discretionary

provision, it is for the executive branch of the United States through the

Secretary of State to exercise that discretion; the magistrate judge

hearing the extradition is prohibited from doing so. The Vo Court

concluded that a person who falls into a discretionary exception to

25

extradition “can still be extradited if the Secretary of State so decides.”

Id. at 1246; see also Blaxland v. Commonweath Dir. of Pub.

Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003) (“Once a magistrate

judge confirms that an individual is extraditable, it is the Secretary of

State, representing the executive branch, who determines whether to

surrender the fugitive.”). The Prasoprat Court emphasized that the

magistrate judge “simply does not have the authority to consider foreign

policy concerns and other issues that may affect the executive branch’s

decision whether to extradite.” 421 F.3d at 1017. See Blaxland, 323

F.3d at 1208 (stating that “the executive branch’s ultimate decision on

extradition may be based on a variety of grounds, ranging from

individual circumstances, to foreign policy concerns, to political

exigencies”).

The language used in the statute of limitations provision of the

Treaty here is identical to that used in Vo and Prasoprat.10 With the

10 Petitioner objects to the magistrate judge’s reliance on these

cases for its interpretation of the term “may” as used in the Treaty. (AOB 38-40.) However, the fact that the defendants in those cases did not challenge the discretionary nature of the provisions at issue has no bearing on this Court’s finding that the term “may” is a discretionary one. Furthermore, the fact that the Vo Court’s discussion is contained

(continued . . . .)

26

use of the word “may,” the Treaty expressly creates a discretionary

exception to extradition reserved to the executive branch of government.

However, despite the use of the discretionary word “may” in Article 6 of

the Treaty, petitioner continues to insist that the provision “was meant

to serve as a mandatory bar to extradition.” (AOB 18-19). Petitioner

misconstrues not only the discretionary nature of Article 6 as a whole

but also the import of each of the sentences contained in the provision.

The first sentence of Article 6 provides that extradition “may” be denied

if the statute of limitations would bar prosecution in the requested

state. The next two sentences explain how to properly calculate the

statute of limitations for purposes of this provision. The second

sentence provides for excluding the time when the person sought to be

extradited was a fugitive from justice and the third sentence provides

for excluding time when any other act or circumstance would toll the

statute of limitations according to the laws of either party to the Treaty.

These provisions are not, as petitioner contends, exceptions to a

mandatory bar of extradition. (AOB 19-20). They do not restrict the

in a footnote does not mean, as petitioner contends, that it is insignificant. (AOB 40.)

27

discretion of the executive branch to ultimately grant or deny

extradition but rather merely provide the parameters for determining

when the limitations period should be tolled. The ultimate question of

whether a criminal can be extradited even if his crime was committed

outside the limitations period remains within the discretion of the

executive branch because of the word “may” in the first sentence of

Article 6. The latter two sentences of the provision certainly do not

constrain the magistrate judge’s decision to certify the case for

extradition. It is the word “may” in the first sentence of the provision

that requires the magistrate judge to leave the ultimate question of

whether the petitioner should be extradited despite a possible violation

of the applicable statute of limitations up to the discretion of the

executive branch. Indeed, the discretionary language of this provision

prohibits the magistrate judge from denying certification on this basis.

While acknowledging that “may” is ordinarily meant to be a

permissive rather than mandatory term, petitioner then argues that

this is not always the case. (AOB 20-21). However, the authorities

petitioner cites in support of his claim have nothing to do with treaty

interpretation—certainly not interpretation of the Treaty at issue

28

here—are mere dicta contained in footnotes (one in a dissent), and are

neither relevant nor persuasive here. See Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 432 n.9 (1995) (footnote in tort case involving a

federal employee); Nat’l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 692 n.12 (2007) (dicta in footnote found in dissent in case

involving action against Environmental Protection Agency (EPA)). In

addition, the meaning of the terms “may” and “shall” in other provisions

of the Treaty has no bearing on the meaning of the term “may” in

Article 6 that is at issue here.11

Furthermore, because there is no ambiguity in the language of

Article 6 of the Treaty, the magistrate judge’s interpretation of the

Treaty was “governed by the text” and he had “no power” to rewrite the

Treaty through a consideration of other sources. Chan, 490 U.S. at 134.

Petitioner contends, however, that the magistrate judge erred in relying

on the plain language of Article 6 in determining that the statute of

limitations provision is a discretionary one. While admitting that

11 The government does not concede that petitioner’s

interpretation of these other provisions is accurate, as these other provisions are not at issue in this appeal. (AOB 21-23.)

29

courts are required to analyze the plain language of a treaty in order to

interpret its meaning, petitioner erroneously insists that courts are also

required to look beyond the text and consider other sources even where

the plain language of the text is not ambiguous. (AOB 16-17.)

However, the authorities petitioner relies on do not support this

contention. Although courts “may look beyond the written words to the

history of the treaty, the negotiations, and the practical construction

adopted by the parties,” Eastern Airlines v. Floyd, 499 U.S. 530, 535

(1991) (quoting Air France v. Saks, 470 U.S. 392, 396 (1985)), and

“[o]ther general rules of construction may be brought to bear on difficult

or ambiguous passages,” id. (quoting Volkswagenwerk

Aktiengesellschaft v. Schlunk 486 U.S. 694, 700 (1988)), none of these

cases requires consultation with extratextual sources especially where,

as here, the plain text of the Treaty provision is unambiguous. See

Abbott v. Abbott, 560 U.S. 1, 9-23 (2010) (text of Hague Convention

provided primary basis for majority’s holding although Court also

discussed extratextual sources and treaty’s objects and purposes);

Medellin v. Texas, 552 U.S. 491, 506-07 (2008) (employing text-based

approach to interpretation of Vienna Convention) (citations omitted);

30

Sumitomo Shoji America, Inc. v. Avaliano, 457 U.S. 176, 180 (1982)

(“The clear import of treaty language controls unless ‘application of the

words of the treaty according to their obvious meaning effects a result

inconsistent with the intent or expectations of its signatories.’”)

(citations omitted).

Petitioner argues that Medellin, which was decided after Vo,

stands for the proposition that courts must look beyond the text of even

unambiguous treaties to divine their meaning. (AOB 41-42.) Medellin,

far from undercutting Vo, however, actually supports it. In Medellin,

the Court employed a text-only approach in its interpretation of the

treaty at issue, stating, “we have to confess that we do think it rather

important to look to the treaty language to see what it has to say about

the issue.” 552 U.S. at 514. Petitioner therefore seems to have

confused the positions of the majority and the dissent in Medellin; it

was the majority that based its holding on the text of the treaty, and

the dissent that argued for looking elsewhere. Medellin was therefore a

defeat for the broad analysis petitioner argues it commands.

Contrary to petitioner’s argument, Medellin neither changed the

law nor pushed it away from the primacy of textual analysis. The Court

31

began by declaring: “The interpretation of a treaty, like the

interpretation of a statute, begins with its text.” Id. at 506-07. That

the Court stated that it also considers other sources in interpreting

treaty provisions does not mean that a court must do so in every case

and petitioner’s contention to the contrary cannot be reconciled with the

actual language of the Medellin decision. The Medellin Court

consistently emphasized its reliance on the text of the treaty, and the

Court’s history of putting the text first: “The interpretive approach

employed by the Court today- resorting to the text- is hardly novel.” Id.

at 514.12

Medellin also supports the magistrate judge’s holding that the

statute of limitations provision of the Treaty is discretionary in a more

direct fashion. Medellin held that the treaty at issue there was not

directly enforceable in court because it did not use the words “shall

comply,” precisely the same reasoning that the Vo Court employed:

12 Furthermore, Sumitomo does not require consideration of

legislative intent, as petitioner contends, but rather stands for the proposition that the United States’ interpretation of a treaty “is entitled to great weight.” 457 U.S. at 184-85; see also Medellin, 552 U.S. at 513 (quoting Sumitomo).

32

“The Article is not a directive to domestic courts. It does not provide

that the United States ‘shall’ or ‘must’ comply . . . .” Medellin, 552 U.S.

at 508.

Petitioner’s contention that Abbott requires a court interpreting a

treaty to consult sources other than the language of the treaty itself

(AOB 42-43) is also unavailing because that is not what the Court held

in that case. Rather, in construing the definition of the “rights of

custody” provision in the Hague Convention on the Civil Aspects of

International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670 S.

Treaty Doc. No. 99-11, the Abbott majority actually held: “The

Convention defines ‘rights of custody,’ and it is that definition that a

court must consult. This uniform, text-based approach ensures

international consistency in interpreting the Convention.” 560 U.S. at

12. That the Court also considered the State Department’s view on the

issue, as well as the views of other Convention members, and the

objects and purposes of the Convention cannot fairly be interpreted to

mean that a magistrate judge must consider a host of other sources

when interpreting a treaty provision, especially where, as here, the

provision at issue is unambiguous.

33

In sum, petitioner’s contention that the magistrate judge was

required to consider sources other than the language of the Treaty and

relevant case law in interpreting the statute of limitations provision at

issue here simply lacks merit. Although the magistrate judge was

certainly free to consider other sources, it was not required to do so.

Nor did the magistrate judge ever state that it was prevented from

doing so, but rather concluded that “given the clarity of the language in

Article 6, there is no need to turn to supporting materials to interpret

its obvious meaning.” (ER 15-16.)

The magistrate judge’s interpretation of the Treaty was correct.

Article 6 contains a word—“may”— that, according to binding Circuit

precedent, unambiguously leaves the determination of whether the

applicable statute of limitations should bar extradition to the

discretionary authority of the executive, as represented by the

Secretary of State. As the magistrate judge stated in its certification of

extradition: “The Court cannot rewrite the treaty to turn this into a

mandatory condition that would require denial of extradition.” (ER 16.)

The district court’s denial of petitioner’s habeas corpus petition on this

ground should therefore be affirmed.

34

2. None of the extratextual sources cited by petitioner alters the plain language interpretation of Article 6 as discretionary

Despite the foregoing, petitioner persists in his argument that the

word “may” in Article 6 of the Treaty really means “must,” claiming

first that the legislative history of the provision indicates that the term

was meant to be mandatory. (AOB 23-26.) This argument also fails. In

an attempt to get around the plain text of the Treaty, petitioner points

to a flawed summary of the Treaty and one question asked by a senator

on a related issue. This “legislative history” is insufficient to cast doubt

on the magistrate judge’s interpretation of the word “may” as

discretionary.

In urging this Court to interpret “may” as “must,” petitioner offers

two uses of language inconsistent with the text. First, he points to

language contained in a summary of the Treaty, which states:

The Treaty with the Republic of Korea precludes extradition of offenses barred by an applicable statute of limitations. However, time during which a fugitive has fled prosecution is not to be counted toward the applicable limitation period, or is any other time that would suspend the limitation period under the law of either the Requesting or Requested State.

(APX 36.) However, the use of the term “precludes” in this summary of

the Treaty is completely contradicted by the use of the discretionary

35

word “may” in the actual Treaty provision itself and it is that language

that must control.

Second, petitioner argues that the fact that, during a meeting of

the United States Senate Committee on Foreign Relations on October

20, 1999, Senator Grams “declared that ‘Article 6 of the proposed treaty

bars extradition in cases where the law of the requested State would

have barred the crime due to a statute of limitations having run out’”

demonstrates that the provision was intended to be mandatory. (AOB

at 25) (emphasis added by petitioner). In fact, Senator Grams merely

mentioned the word “bars” in the context of his voicing his concern

regarding whether tolling provisions would be applicable under the

Treaty:

SEN. GRAMS: I just wanted to ask one final question dealing with the statute of limitations.

Article 6 of the proposed treaty bars extradition in cases where the law of the requested State would have barred the crime due to a statute of limitations having run out.

Now South Korea, unlike other treaty partners with similar commitments, also allows the time to continue running on the time limitation, even when charges are filed. Actions that would toll the statute of limitations, therefore, will apply under this treaty.

36

So the question is are you confident that this article of the treaty adequately insures that fugitives cannot simply run out the clock by fleeing to Korea?

(APX 68.) As the actual context of Senator Grams’ remark makes clear,

the Senator was not, as petitioner suggests, stating that the statute of

limitations provision in the Treaty was a mandatory one. This

discussion was not at all concerned with the issue now before this Court

regarding the meaning of the word “may” in the Treaty provision and

the Senator’s use of the word “bars” should not be interpreted as a

definitive statement on the discretionary or mandatory nature of the

Treaty provision as it was clearly not intended that way. The subject of

that discussion was whether or not the statute of limitations period

would be tolled under various circumstances. This discussion was

prompted by the fact that the United States and Korea have different

laws regarding when the statute of limitations would be tolled. This

section of the report, which provides a detailed technical analysis of

each provision of the proposed Treaty, also makes clear that although,

as petitioner states, “Korea insisted on this provision,” the drafters of

the Treaty were “sensitive” to the fact that the implementation of

statutes of limitation in the United States was very different from

37

Korea, particularly with regard to tolling the statute under certain

circumstances. For example, in the United States, the statute is tolled

when criminal charges are filed, but that is not the case in Korea.

Thus, petitioner’s contention that Korea intended Article 6 to impose a

mandatory bar against extradition (AOB 27) is both misleading and

incorrect. Nothing in the Senate Report or any other authority cited by

petitioner evinces any intent or understanding by either party to the

Treaty that the provision be mandatory. In fact, the language of the

Senate Executive Report cited by petitioner suggests the opposite to be

true. Understanding that the two countries implement limitations

provisions differently, the logical inference is that the provision was

meant to be discretionary in order to accommodate these differences.

Despite petitioner’s considerable attempts to twist the

preratification history of the Treaty to support his argument, the fact is

that the legislative history of the statute of limitations provision of the

Treaty is actually silent on the issue of whether that provision is

discretionary or mandatory and thus sheds no light on the issue

currently in dispute.

38

Next, petitioner contends that the government has changed its

position regarding whether Article 6 of the Treaty is discretionary or

mandatory. (AOB 27-32.) Petitioner’s argument on this point is not

supported by the record, as the government has never taken the

position that this provision of the Treaty is mandatory.

It is well settled that the executive branch’s interpretation of a

treaty “is entitled to great weight.” Sumitomo, 457 U.S. at 184-85 n.10;

see also Abbott, 560 U.S. at 15; Medellin, 552 U.S. at 513; Hamdan v.

Rumsfeld, 548 U.S. 557, 719 (2006) (where treaty provision ambiguous

and “susceptible of two plausible, and reasonable, interpretations, our

precedents require us to defer to the Executive’s interpretation”);

Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“[W]hile courts interpret

treaties for themselves, the meaning given them by the departments of

government particularly charged with their negotiation and

enforcement is given great weight.”).

Petitioner first summarizes the technical analysis of the statute of

limitations provision as stated in the Senate Report. (AOB 28-29.)

Absolutely nothing in that summary can fairly be construed to have any

bearing whatsoever on the issue of whether the executive branch found

39

the provision to be mandatory or discretionary. Furthermore, the

testimony contained in the report similarly has no bearing on whether

anyone in the legislature or the executive intended the provision to be

mandatory or discretionary. The fact that John Harris, the Acting

Director of the Office of International Affairs of the Department of

Justice at the time of the Treaty’s ratification, did not correct Senator

Grams when he used the word “bars” when speaking of the statute of

limitations provision cannot fairly be construed to mean that the

executive branch of the government intended that the provision be

mandatory rather than discretionary. Petitioner’s interpretation of this

exchange is absurd, especially when read in its entirety. (See AOB at

30 n.13.) It is abundantly clear that Senator Grams was concerned

about the ability to toll the statute of limitations in the case of a

criminal who was a fugitive. In fact, the remarks by Mr. Harris were in

direct response to Senator Grams’ question about the applicability of

the Treaty provision to fugitives and concerned only the drafting of the

provision in order to account for the case of fugitives. There is nothing

in these statements that can fairly be interpreted as a definitive

40

statement of the executive’s position on whether the provision was

intended to be discretionary or mandatory.

Furthermore, petitioner’s reliance on Man-Seok Choe v. Torres,

525 F.3d 733 (9th Cir. 2008), is entirely misplaced. (AOB 31-32.) In

that case, the government did not argue that courts “do not have the

authority to deny extradition on the basis of the [U.S.-Korea

Extradition] Treaty’s statute of limitations provision because this

provision is couched in discretionary terms” until the “oral argument”

on appeal. Id. at 741 n.9. Because that argument was not raised in the

district court, this Court held that it was waived. Id. However, in that

case, the issue was whether or not the defendant was a fugitive, which

would have tolled the statute of limitations. Therefore, the issue of

whether Article 6 was discretionary or mandatory was not relevant to

the case until the time of oral argument. Id. Furthermore, the

government did contend that the provision was discretionary, thereby

refuting petitioner’s claim that the government has changed its position

with regard to this issue. Petitioner’s claim is simply ridiculous,

especially since petitioner is unable to point to any affirmative

statement by the government in any record that it viewed this provision

41

as mandatory. To the contrary, the government’s position on this issue

has been consistently to the contrary.

As the foregoing demonstrates, the government’s position that

Article 6 is a discretionary provision is not a “shift in position.” (AOB

31.) Rather, as the government has asserted all along, the plain

language of Article 6 of the Treaty is unambiguous and controls here.

Accordingly, it must be interpreted according to its text, and without

reference to other sources. In any event, the record beyond the Treaty

text itself is, on balance, consistent with the text and shows that denial

of extradition based on the running of the statute of limitations is

discretionary, not mandatory.

3. Construing Article 6 as discretionary furthers the object and purpose of the Treaty, which is to facilitate the extradition of criminals

Petitioner posits that a treaty should be interpreted so as to give

effect to its “objects and purposes.” (AOB 32, citing Abbott, 130 S. Ct. at

1995.) However, rather than discussing the objects and purposes of the

Treaty, petitioner cites authorities that discuss the purpose of a statute

of limitations provision, which, as the government agrees, is to bar

belated prosecutions of stale crimes. However, the individual provisions

42

of a Treaty must further the objects and purposes of the Treaty as a

whole. Thus, petitioner’s argument that because the purpose of a

statute of limitations provision is to bar the belated prosecution of a

stale crime, all statute of limitations provisions should be interpreted as

mandatory, is both self-serving and fails to further the objects and

purposes of the Treaty.

The preratification record of the Treaty at issue clearly

demonstrates that the primary object and purpose of the Treaty was to

facilitate the extradition of criminals for prosecution in the United

States and the Republic of Korea:

SEN GRAMS: This treaty is intended to facilitate the extradition of individuals to stand trial in the countries where they are accused of committing felonies, thereby curbing the ability of international fugitives to find safe haven.

. . .

Extradition of criminals, particularly those wanted for terrorism, drug trafficking, and violent crime, has become increasingly important to insure that perpetrators of such heinous crimes are brought to justice.

. . .

43

MS. BOREK:13 The growth in transport of criminal activity, especially violent crime, terrorism, drug trafficking, and the laundering of proceeds of organized crime, has confirmed the need for an increased international law enforcement cooperation effort. Extradition treaties, such as the Treaty with the Republic of Korea, are essential tools in that effort.

This will become the first bilateral extradition treaty between the United States and the Republic of Korea. We do not currently have an extradition treaty in place. This provides the opportunity for fugitives from justice to use each of our countries as a haven from the other, an increasing problem given the continuing rise in transnational crime and ease of travel across borders.

(APX 56-58.)

The only discussion of the statute of limitations provision of the

Treaty was in the context of a concern by both the legislative and

executive members of the U.S. Senate Committee on Foreign Relations

that the provision be worded in such a way that criminals would not be

able to escape justice by fleeing the prosecuting country until the

statute of limitations period had run out. Thus, the interpretation of

this provision as discretionary, allowing for a case-by-case

determination of the applicability of the statute of limitations bar by the

Secretary of State, rather than by a magistrate judge who has limited

13 Jamison S. Borek, Deputy Legal Adviser, Department of State.

44

authority in extradition matters, does comport with the objects and

purposes of the Treaty.

D. The Status of Forces Agreement Is Not Judicially Enforceable

Petitioner argues that the district court should have granted his

petition for a writ of habeas corpus because his extradition would

violate the double jeopardy prohibition contained in the Status of Forces

Agreement (“SOFA”) between the Republic of Korea and the United

States. 14 (AOB 43-52.) Specifically, petitioner contends that the

pending murder charge is barred because his previous conviction for

14 The SOFA provides, in relevant part:

8. Where an accused has been tried in accordance with the provisions of this Article either by the military authorities of the United States or the authorities of the Republic of Korea and has been acquitted, or has been convicted and is serving, or has served, his sentence, or his sentence has been remitted or suspended, or he has been pardoned, he may not be tried again for the same offense within the territory of the Republic of Korea by the authorities of the other State.

(SOFA, art. XXII, ¶ 8; APX 91.)

45

evidence destruction “included a finding that he did not commit

murder.” (AOB 47.)15

Petitioner’s argument fails because, as the magistrate judge

correctly found, petitioner’s reliance on the terms of the SOFA cannot

serve as a defense to certification of extradition.16 An American citizen

accused of a crime in a foreign country cannot resist extradition to that

nation on the ground that the foreign nation’s justice system does not

respect all of the rights accorded under the United States Constitution.

See. e.g., Neely v. Henkel, 180 U.S. 109, 123 (1901) (cited in Munaf v.

15 The government does not concede that the prosecution of

petitioner in the Republic of Korea would violate the Double Jeopardy clause of the U.S. Constitution as petitioner asserts. However, the government does not need to address this issue because petitioner’s assertion of this right under the SOFA is non-justiciable. The magistrate judge did not reach this issue either because it found that petitioner had no substantive rights enforceable in an American court under the SOFA. (ER 17.)

16 The magistrate judge correctly found that, as the dependent of an American serviceman stationed in South Korea at the time of the charged murder, petitioner is and will be entitled to the protections of the SOFA. (ER 16.)

46

Geren, 553 U.S. 674, 697 (2008)).17 Furthermore, the SOFA at issue

here does not confer any substantive individual rights; rather, it

expressly provides that only “a “Joint Committee” of American and

Korean government representatives has the authority to adjudicate

disputes under the SOFA. Finally, the scant case law that is available

on this issue clearly shows that the SOFA does not give a person facing

extradition rights enforceable in a judicial proceeding, and courts have

no jurisdiction to review private claims premised on the SOFA.

17 Petitioner’s claim that Neely supports petitioner’s right to judicial enforcement of the SOFA at issue here (AOB 49-50) is wrong as the actual findings of the Court illustrate. In Neely, the Supreme Court held that habeas corpus was not available to defeat the criminal jurisdiction of a foreign sovereign, even where application of that sovereign’s law would allegedly violate the U.S. Constitution. The petitioner, an American citizen, was accused of violating Cuban law in Cuba. 180 U.S. at 112-13. He was arrested and detained in the United States. Id. at 113. The petitioner claimed that he could not be extradited to Cuba because Cuban law did not provide the full range of rights guaranteed by the U.S. Constitution. Id. at 122. The Supreme Court rejected this claim, finding that the rights guaranteed by the U.S. Constitution “have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country” and therefore the petitioner alleged no claim for which a “discharge on habeas corpus” could issue. Id. at 125. The fact that the SOFA in this case provides for various protections of individual rights similar to those guaranteed by the U.S. Constitution does not thereby give petitioner a judicially enforceable right, and Neely contradicts rather than supports this claim.

47

The SOFA between the United States and the Republic of Korea

specifies the authority and limitations on the Republic of Korea’s

exercise of criminal jurisdiction over American military personnel,

civilian employees, and their dependents.18 The SOFA specifically sets

forth the procedures that each party’s governing authority will

implement in the prosecution of Americans in Korean courts for crimes

committed there. Article XXVIII of the SOFA expressly states that a

“Joint Committee” of American and Korean government representatives

serves as the exclusive body through which disputes under the SOFA

are to be adjudicated.19 The SOFA also provides for a negotiated

18 The United States military presence in South Korea is the

subject of the Mutual Defense Treaty of 1953, 5 U.S.T. 2368, T.I.A.S. No. 3097, which states that U. S. forces are to be deployed “as determined by mutual agreement,” id. art. IV. The mutual agreement implementing the treaty is the Status of Forces Agreement (SOFA) of 1966, 17 U.S.T. 1677, T.I.A.S. No. 6127.

19 1. A Joint Committee shall be established as the means for consultation between the Government of the United States and the Government of the Republic of Korea on all matters requiring mutual consultation regarding the implementation of this Agreement except where otherwise provided[.]

2. The Joint Committee shall be composed of a representative of the Government of the United States and the Government of the Republic of Korea[.] The Joint Committee shall determine its own

(continued . . . .)

48

resolution of disputes between the U.S. and Korea regarding any

possible infringements:

1. If the authorities of the Republic of Korea or the military authorities of the United States believe an infringement of this agreement may have occurred, the appropriate branch, district or similar level prosecutor and the staff judge advocate or appropriate legal officer will seek to resolve the matter within 10 days of either party notifying the other of such infringement. If the matter is not satisfactorily resolved within these 10 days, either party may send written notice to the Joint Committee describing the circumstances and the basis of the alleged infringement.

(SOFA Amendments, art. XXII, ¶ 5(c); APX 232.) Disputes which

cannot be resolved by the prosecutors are to be referred to the Joint

Committee, “composed of a representative of the Government of the

United States and a representative of the Government of the Republic

of Korea.” (SOFA, art. XXVIII, ¶ 2; APX 97.) And if the Joint

procedures, [and] arrange for such auxiliary organs and administrative services as may be required.

3. If the Joint Committee is unable to resolve any matter, it shall refer that matter to the respective Governments for further consideration through appropriate channels.

(SOFA, art. XXVIII; APX 97-98.)

49

Committee cannot resolve the dispute, “it shall refer that matter to the

respective Governments further consideration.” (SOFA, art. XXVIII,

¶ 3; APX 98.) Thus, the SOFA explicitly provides that all disputes shall

be resolved through negotiations between Korea and the U.S., not

through the courts. Accordingly, petitioner's SOFA claims are non-

justiciable.

The United States has traditionally negotiated treaties with the

understanding that they do not create judicially enforceable individual

rights. See Holmes v. Laird, 459 F.2d 1211, 1220, 1222 (D.C. Cir. 1972).

As a general matter, a “treaty is primarily a compact between

independent nations,” and “depends for the enforcement of its

provisions on the interest and honor of the governments which are

parties to it.” Edye v. Robertson, 112 U.S. 580, 598 (1884). If a treaty is

violated, this “becomes the subject of international negotiations and

reclamation,” not the subject of a lawsuit. Id.; see also Johnson v.

Eisentrager, 339 U.S. 763, 769 n.114 (1950) (holding that the 1929

Geneva Convention was not judicially enforceable because, although the

Convention specifies individual rights for prisoners of war, the

50

“responsibility for observance and enforcement of these rights is upon

political and military authorities.”).

As the magistrate judge found in this case, enforcement of the

SOFA at issue here operates in a manner virtually identical to the

SOFA at issue in Holmes and Matter of Burt, 737 F.2d 1477 (7th Cir.

1984). In both cases, U.S. servicemen sought to defeat extradition by

relying on speedy trial and other rights. However, in neither case did

the individual’s SOFA-guaranteed rights serve as a defense to

extradition.

In Holmes, the D.C. Circuit denied as non-justiciable the claims of

U.S. servicemen who contended that their rights under SOFA had been

violated. In that case, servicemen who had been stationed in Germany,

and who were protected under the NATO SOFA, were tried in a

German civilian court for attempted rape. 459 F.2d at 1214. The

servicemen “claimed deprivations of rights secured to them by NATO

SOFA” in their prosecution in Germany. Id. Accordingly, they sought

an injunction prohibiting the military from surrendering them to

Germany to serve their sentences. Id. The district court held that

“even if appellants’ allegations [that their convictions had been obtained

51

in violation of NATO SOFA] were proven, it was beyond the power of

the judiciary to order corrective action.” Id. at 1215. The D.C. Circuit

affirmed on the same grounds. Id. at 1225.

Although “mindful . . . that while a treaty is primarily a compact

between sovereigns, it may also contain provisions which confer certain

rights upon the citizens . . . of one of the nations,” id. at 1221, the court

held there was “no room . . . for operation of these principles when the

corrective machinery specified in the treaty itself is nonjudicial.” Id. at

1222. And “NATO SOFA, which makes provision of the rights claimed,

is explicit that ‘[a]ll differences between the Contracting Parties

relating to the interpretation or application of this Agreement shall be

settled by negotiation.’” Id. Accordingly, the court held that the

appellants’ claims that their rights under NATO SOFA were violated

“cannot be vindicated by the [judicial] process appellants have

solicited.” Id.

The Holmes Court determined that the NATO SOFA called upon

the “Contracting Parties” to negotiate disputes “relating to the

Interpretation or application of this Agreement,” including the assertion

of criminal justice rights. Holmes, 459 F.2d at 1222. From this, the

52

court concluded that “the enforcement mechanism” under which the

soldiers could assert their SOFA rights was “diplomatic recourse only”

as provided by the agreement itself; “In sum, intervention by an

American court into the matters of which appellants complain is

foreclosed by the very terms of the document from which the rights

insisted upon are said to spring.: Id.

Similarly, in Burt, a soldier seeking to avoid extradition argued

that a West German prosecutor’s delay in filing charges against him

constituted a violation of the governing agreement. However, the

Seventh Circuit found that if the German extradition request violated

the NATO SOFA, “it is well settled that the recourse for such a treaty

violation in these circumstances is diplomatic, not judicial.” Id.

Furthermore, the court found that the speedy trial provision of the

SOFA “governs the actions of the prosecuting state, which here is West

Germany (the receiving state), and not the United States. That right is

consequently not enforceable by the United States courts.” Id. at 1487-

88. (emphasis in original). Thus, the court found that “it is well settled

that the recourse for such a treaty violation in these circumstances is

diplomatic, not judicial.” Id.

53

The principles articulated in Holmes and Burt are directly

applicable here. Any double jeopardy protection afforded petitioner by

the SOFA between the United States and South Korea governs the

actions of South Korea in its prosecution of petitioner. Thus, any rights

petitioner may have under the SOFA are enforceable only through

diplomatic channels, not by the courts.

Finally, even if petitioner’s SOFA claim were justiciable,

petitioner still could not advance his SOFA claims in this case because

he is not facing transfer to Korea through the SOFA, but rather through

extradition. No court has ever held that the SOFA had any application

in an extradition proceeding, let alone the application that petitioner

claims: that he cannot be extradited to Korea even if all the extradition

requirements are satisfied if it would not also be in accord with SOFA.

Cf. Burt, 737 F.2d at 1480 (rejecting as non-justiciable serviceman's

claim that “the ‘speedy trial’ provision of the NATO-SOFA Treaty

preclude[s] his extradition,” id. at 1482, and questioning “whether the

provisions of the NATO-SOFA Treaty are even applicable here, since it

would appear that West Germany’s jurisdiction over petitioner attached

54

pursuant to the 1978 [Extradition] Treaty, and not the NATO-SOFA

Treaty,” id. at 1487).

Petitioner’s argument that the SOFA at issue here is self-

executing and therefore judicially enforceable is also unavailing. (AOB

51-52.) The two cases petitioner relies on—Islamic Republic of Iran v.

Boeing Co., 771 F.2d 1279 (9th Cir. 1085), and Medellin, 552 U.S. at

508—do not support his position, as the courts in both of these cases

concluded that the agreements at issue were not self-executing and

therefore created no individual rights of action.

As a matter of law, “[t]reaties of the United States, though the law

of the land, do not generally create rights that are privately enforceable

in courts.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.

Cir. 1984). Indeed, “[a]bsent authorizing legislation, an individual has

access to courts for enforcement of a treaty’s provisions only when the

treaty . . . expressly or impliedly provides a private right of action.” Id.

Where Congress has not enacted authorizing legislation, a treaty gives

rise to a private action only if it is “self-executing”; i.e., if it either

expressly or impliedly creates a private right of action to enforce rights

described in the treaty. In re Estate of Ferdinand E. Marcos Human

55

Rights Litigation, 978 F.2d 493, 503 (9th Cir. 1992) (“no private cause

of action can ever be implied from a non-self-executing treaty”); Islamic

Republic, 771 F.2d at 1283 (non-self-executing international

agreements “are merely executory agreements between the two nations

and have no effect on domestic law absent additional governmental

action”).

In Holmes, where the court analyzed a SOFA agreement

analogous to the agreement at issue here, the court recognized its duty

“to enforce self-executing treaties affecting individual rights,” 459 F.2d

at 1222, but found “no room . . . for operation of these principles when

the corrective machinery specified in the treaty itself is nonjudicial.”

Id. The Holmes court found support for this position in Johnson, 339

U.S. at 789 n.14, where the Supreme Court held that federal courts

lacked habeas corpus jurisdiction to inquire into war-crimes trials by an

American military commission in China of nonresident enemy aliens

captured there. As reported in Holmes, the Supreme Court found that

although the prisoners were entitled to the protection of the Geneva

Convention, the “responsibility for observance and enforcement of these

rights is upon political and military authorities,” not the courts. 459

56

F.2d at 1222 (quoting Johnson, 339 U.S. at 789 n.14.) Thus, the Holmes

court found that the same result applied in that case where the

defendants were claiming rights under the NATO SOFA, the

enforcement mechanism of which was diplomatic recourse only. “In

sum, intervention by an American court into the matters of which

appellants complain is foreclosed by the very terms of the document

from which the rights insisted upon are said to spring.” Holmes, 459

F.2d at 1222.

The magistrate judge and district court in this case correctly

concluded that the SOFA at issue here provides no private right of

action that is judicially enforceable. The SOFA explicitly provides for

its enforcement via diplomatic channels as discussed above in detail.

Thus, the SOFA cannot be deemed to be self-executing and petitioner

has no right to raise his double-jeopardy claim before this or any other

court.

57

V

CONCLUSION

For the foregoing reasons, the district court’s order denying

petitioner’s petition for a writ of habeas corpus should be affirmed.

DATED: May 29, 2014

Respectfully submitted, ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division /s/ Nancy B. Spiegel NANCY B. SPIEGEL Assistant United States Attorney Criminal Appeals Section Attorneys for Respondent-Appellee BARBARA WAGNER

STATEMENT OF RELATED CASES

The government states, pursuant to Ninth Circuit Rule 28-2.6,

that it is unaware of any cases related to this appeal.