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17. U.S. brief to the U.S. Court of Appeals for the Third Circuit in Hoxha v. Levi, 371 F. Supp. 2d 651 (E.D. Pa. 2005)


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NO. 05-3149

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

KRENAR HOXHA,

Appellant

v.

TROY LEVI,

Appellee

APPEAL FROM JUDGMENT IN HABEAS CORPUS MATTER ENTERED

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF PENNSYLVANIA AT CIVIL NO. 05-CV-1211,

ON MAY 25, 2005, BY THE HONORABLE BERLE M. SCHILLER

BRIEF FOR APPELLEE UNITED STATES OF AMERICA

PATRICK L. MEEHAN

United States Attorney

ROBERT A. ZAUZMER

Assistant United States Attorney

Chief of Appeals

PAUL MANSFIELD

Assistant United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

(215) 861-8670


TABLE OF CONTENTS

STATEMENT OF SUBJECT MATTER JURISDICTION....................................... 1

STATEMENT OF APPELLATE JURISDICTION. . . . . . . . . . . . 2

STATEMENT OF ISSUES.................................................................................. 3

STATEMENT OF THE CASE.............................................................................. 4

STATEMENT OF FACTS................................................................................... 6

A. Evidence Regarding the Murders................................................... 6

B. Criminal Proceedings................................................................... 11

STATEMENT OF RELATED CASES................................................................. 17

SUMMARY OF ARGUMENT............................................................................. 18

ARGUMENT..................................................................................................... 21

I. THE MAGISTRATE JUDGE PROPERLY EXERCISED HIS DISCRETION IN DENYING HOXHA’S REQUEST TO HAVE INDIVIDUALS TESTIFY BY TELEPHONE IN ORDER TO NEGATE PROBABLE CAUSE................................ 21

II. THE EXTRADITION TREATY BETWEEN THE UNITED

STATES AND THE REPUBLIC OF ALBANIA IS IN

FULL FORCE AND EFFECT.......................................................... 39

III. THE DISTRICT COURT CORRECTLY REJECTED

HOXHA’S CLAIM FOR HABEAS RELIEF, WHICH

WAS PREDICATED ON HIS CONTENTION THAT

HE FACES A SUBSTANTIAL THREAT OF TORTURE IF

EXTRADITED TO ALBANIA.......................................................... 47

A. The Decision About Whether to

Extradite Hoxha in Light of his

Humanitarian Exception Claims Rests

Entirely with the Secretary of State................................... 49

B. Hoxha’s Claim that Habeas Relief Is

Appropriate Here through a Cause of

Action Under the Administrative

Procedure Act to Review His Claim

Under the FARR Act and the Torture

Convention Is Incorrect...................................................... 63

1. Hoxha’s effort to present a cause

of action under the APA should be

denied at this time.................................................... 63

2. An order of surrender is not

subject to judicial review.......................................... 68

CONCLUSION.................................................................................................. 77



TABLE OF AUTHORITIES

Cases

Abu Eain v. Adams,

529 F. Supp. 685 (N.D. Ill. 1980)................. 27

Ahmad v. Wigen,

910 F.2d 1063 (2d Cir. 1990).................. 37, 58

Auguste v. Ridge,

395 F.3d 123 (3d Cir. 2005)............... 48, 54, 70

Block v. Community Nutrition Institute,

467 U.S. 340 (1984)............................... 74

Castellano-Chacon v. INS,

341 F.3d 533 (6th Cir. 2003)...................... 70

Charlton v. Kelly,

229 U.S. 447 (1913)........................... 22, 25

Collins v. Loisel,

259 U.S. 309 (1922)....................... 23, 25, 26

Cornejo-Barreto v. Seifert,

218 F.3d 1004 (9th Cir. 2000)............. 63, 64, 65

Cornejo-Barreto v. Siefert,

379 F.3d 1075, vacated as moot,

389 F.3d 1307 (9th Cir. 2004)..................... 65

Eain v. Wilkes,

641 F.2d 504 (7th Cir. 1981)...................... 28

In re Extradition of Atuar,

300 F. Supp. 2d 418 (S.D. W. Va. 2003),

aff'd, 2005 WL 3134081

(4th Cir. Nov. 23, 2005).............. 29, 30, 34, 57


Gallina v. Fraser,

177 F. Supp. 856 (D. Conn. 1959),

aff’d, 278 F.2d 77 (2d Cir. 1960)................. 37

Gibbs v. Cross,

160 F.3d 962 (3d Cir. 1998)....................... 47

Goldstar (Panama) S.A. v. United States,

967 F.2d 965 (4th Cir. 1992)...................... 69

Heckler v. Chaney,

470 U.S. 821 (1985)............................... 75

Holmes v. Laird,

459 F.2d 1211 (D.C. Cir. 1972).................... 37

Hooker v. Klein,

573 F.2d 1360 (9th Cir. 1978)............. 25, 26, 27

In Extradition of Contreras,

800 F. Supp. 1462 (S.D. Tex. 1992)............ 29, 30

Jimenez v. United States District Court,

84 S. Ct. 14 (1963)............................... 52

In re Kaine,

55 U.S. 103 (1852)................................ 51

Kamara v. Attorney General,

420 F.3d 202 (3d Cir. 2005)....................... 72

Lincoln v. Vigil,

508 U.S. 182 (1993)............................... 75

In re Lincoln,

228 Fed. 70 (E.D.N.Y. 1915)....................... 38

In re Locatelli,

468 F. Supp. 568 (S.D.N.Y. 1979).............. 27, 38

Lopez-Smith v. Hood,

121 F.3d 1322 (9th Cir. 1997)................. 61, 62


Martin v. Warden, Atlanta Pen.,

993 F.2d 824 (11th Cir. 1993)................. 51, 58

National Park Hospital Association v. Department of Interior,

538 U.S. 803 (2003)............................... 65

Neely v. Henkel,

180 U.S. 109 (1901)............................... 37

Ntakirutimana v. Reno,

184 F.3d 419 (5th Cir. 1999).................. 52, 57

Oen Yin-Choy v. Robinson,

858 F.2d 1400 (9th Cir. 1988)..................... 24

Ogbudimkpa v. Ashcroft,

342 F.3d 207 (3d Cir. 2003)....................... 72

Peroff v. Hylton,

563 F.2d 1099 (4th Cir. 1977)..................... 59

Pfeifer v. United States Bureau of Prisons,

468 F. Supp. 920 (S.D. Cal. 1979),

aff’d, 615 F.2d 873 (9th Cir. 1980)............... 37

Philadelphia Gear Corp. v. Philadelphia Gear de Mexico, S.A.,

44 F.3d 187 (3d Cir. 1994)........................ 45

Plaster v. United States,

720 F.2d 340 (4th Cir. 1983)...................... 51

Prasoprat v. Benov,

421 F.3d 1009 (9th Cir. 2005)............. 52, 57, 62

Quinn v. Robinson,

783 F.2d 776 (9th Cir. 1986)...................... 15

Raffington v. Cangemi,

399 F.3d 900 (8th Cir. 2005)...................... 70


Ramos v. Diaz,

179 F. Supp. 459 (S.D. Fla. 1959)................. 38

Reno v. Catholic Social Serv., Inc.,

509 U.S. 43 (1993)................................ 66

In re Requested Extradition of Smyth,

61 F.3d 711 (9th Cir. 1995)....................... 59

Reyes-Sanchez v. Attorney General,

369 F.3d 1239 (11th Cir. 2004).................... 70

Saavedra Bruno v. Albright,

197 F.3d 1153 (D.C. Cir. 1999).................... 73

Shapiro v. Ferrandina,

478 F.2d 894 (2d Cir. 1973)....................... 24

Sidali v. INS,

107 F.3d 191 (3d Cir. 1997)................... passim

Matter of Sindona,

450 F. Supp. 672 (S.D.N.Y. 1978),

aff’d, 619 F.2d 167 (2d Cir. 1980)............ 25, 26

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004)............................... 69

Tenet v. Doe,

125 S. Ct. 1230 (2005)............................ 66

Terlinden v. Ames,

184 U.S. 270 (1902)....................... 39, 40, 42

Texas v. United States,

523 U.S. 296 (1998)............................... 64

Totten v. United States,

92 U.S. 105 (1876)................................ 66


United States ex rel. Grano v. Anderson,

446 F.2d 272 (3d Cir. 1971)....................... 22

United States ex rel. Petrushansky v. Marasco,

325 F.2d 562 (2d Cir. 1963)....................... 26

United States ex rel. Saroop v. Garcia,

109 F.3d 165 (3d Cir. 1997).................... 39-45

United States v. Baez,

349 F.3d 90 (2d Cir. 2003)........................ 53

United States v. Kin-Hong,

110 F.2d 103 (1st Cir. 1997)...................... 52

United States v. Kin-Hong,

110 F.3d 103 (1st Cir. 1997).......... 23, 57, 58, 59

United States v. Serafini,

233 F.3d 758 (3d Cir. 2000)....................... 21

United States v. Weaver,

267 F.3d 231 (3d Cir. 2001)....................... 47

United States v. Wiebe,

733 F.2d 549 (8th Cir. 1984).................. 23, 24

In re Wadge,

15 F. 864 (S.D.N.Y 1883).......................... 26

Webster v. Doe,

486 U.S. 592 (1988)................................................................... 75

Wesson v. U.S. Penitentiary,

305 F.3d 343 (5th Cir. 2002).......................................................... 70

Whitman v. American Trucking Assns., Inc.,

531 U.S. 457 (2001)....................................................................... 67


Statutes and Rules

5 U.S.C. §§ 701(a)(1), (2)......................... 73, 74, 75

5 U.S.C. § 702 ............................................ 73

5 U.S.C. § 704 ............................................ 64

8 U.S.C. § 1231.................................... 19, 48, 71

18 U.S.C. § 1384........................................... 56

18 U.S.C. § 3181................................... 41, 42, 43

18 U.S.C. §§ 3181-95....................................... 21

18 U.S.C. § 3184............................ 1, 38, 49, 50, 74

18 U.S.C. § 3186................................... 51, 74, 76

18 U.S.C. § 3190........................................... 23

28 U.S.C. § 1491(a)(1)..................................... 66

28 U.S.C. § 2241(a)......................................... 1

28 U.S.C. § 2253(a)......................................... 2

22 C.F.R. § 95.2(b)................................ 54, 55, 75

22 C.F.R. § 95.3(b)........................................ 59

22 C.F.R. § 95.4........................................... 71

Fed. R. Crim. P. 5.1(a).................................... 23

Fed. R. App. P. 32(a)(7)................................... 78

Other

136 Cong. Rec. S17486, S17492 (Oct. 27, 1990).............. 70


STATEMENT OF SUBJECT MATTER JURISDICTION

This matter commenced with the official request of the Republic of Albania for the extradition of Krenar Hoxha for the murder of three Albanian citizens in the Republic of Albania in 1996. The United States Magistrate Judge had jurisdiction over the extradition request pursuant to 18 U.S.C. § 3184. The district court had jurisdiction over appellant Krenar Hoxha’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(a) and (c)(4).


STATEMENT OF APPELLATE JURISDICTION

This Court has jurisdiction over this appeal from the denial of a writ of habeas corpus pursuant to 28 U.S.C. § 2253(a), which provides that a final order issued by a district judge in a habeas corpus proceeding is subject to review by the United States Court of Appeals for the circuit in which that district is situated. Sidali v. INS, 107 F.3d 191, 196 (3d Cir. 1997).


STATEMENT OF ISSUES

1. Did the district court permissibly exercise its discretion in denying the defendant’s motion to allow testimony via teleconference with Albania when there was sufficient evidence in the record to establish probable cause?

2. Did the district court correctly rule that the extradition treaty between the United States and the Republic of Albania is valid?

3. Did the district court correctly reject Hoxha’s claim for habeas relief, which was predicated on his contention that he faces a substantial threat of torture if

extradited to Albania?


STATEMENT OF THE CASE

Krenar Hoxha is sought by the Republic of Albania in connection with the murder of three Albanian citizens on September 27, 1996. Hoxha is alleged to have killed a father, his wife, and one of their children. A warrant for his arrest was issued on November 13, 1996, by the Court of First Instance of Fieri Judicial District in the Republic of Albania.

Hoxha was arrested in the Eastern District of Pennsylvania on November 10, 2004, pursuant to a complaint and warrant of arrest issued by United States Magistrate Judge Thomas J. Rueter. The extradition proceeding commenced before United States Magistrate Judge Jacob P. Hart on January 19, 2005. The hearing continued on February 4, 2005. At that time, in addition to relying on Albania’s original submission, the court reviewed and considered Albania’s second submission. Magistrate Judge Hart made a finding of probable cause, and issued a Certification of Extraditability and Order of Commitment on February 9, 2005.


Hoxha filed a petition in the district court for a writ of habeas corpus, which was denied by United States District Judge Berle Schiller on May 25, 2005. Hoxha is presently in custody pursuant to the Order of Commitment.


STATEMENT OF FACTS

A. Evidence Regarding the Murders.

Krenar Hoxha was born on March 26, 1970, in Albania, and became a naturalized United States citizen on January 17, 2002. The Republic of Albania seeks to try Hoxha for the murder of husband and wife Ilmi and Roza Kasemi, and their son Eltion Kasemi.

The murders at issue took place in the early morning hours of September 27, 1996. The Albanian authorities presented numerous statements which established probable cause that Krenar Hoxha was the perpetrator.


In the Albanian government’s theory of the case, the background was provided by Murat Kasemi, the brother of one of the murder victims, Ilmi Kasemi. Murat stated that 20 years earlier, Ilmi had a relationship with Mimoza Hoxha, a sister of the defendant. However, Ilmi and Mimoza never married because Hoxha’s parents disapproved. The two married others and raised separate families. App. 150. However, it was alleged, it came to Krenar Hoxha’s attention that Ilmi and Mimoza continued an extramarital relationship, and that Krenar Hoxha therefore set out to harm Ilmi Kasemi.[1]

A friend and former co-worker of Ilmi Kasemi, Rahman Sheqeri, provided a statement which supported these assertions. Shequri said that he saw Krenar Hoxha on September 12, 1996 (two weeks before the murders) near the house of Ilmi Kasemi. Hoxha was with another person. Sheqeri’s declaration stated:

Krenar Hoxha had a pistol. He directed it towards me and I moved the direction of the pistol with my hand and asked him what he was doing. Krenar was very agitated and his face was pale. He asked me who I was. I told him “I am Rahman, didn’t you recognize me.” Krenar told me to go away and not to disturb them. The other man lied flat on the ground so that I could not recognize him.

App. 139-40. Sheqeri stated that the next day he told Ilmi Kasemi about this occurrence because they worked together, though “I didn’t know that Ilmi had a problem with the sister of Krenar.” Sheqeri said:


I told him that may be they have come for anybody else (girl), because there was a wedding reception in the neighborhood. But Ilmi stressed that Krenar had come for him. I would like to emphasize that the night I saw Krenar he was in front of the house of Ilmi Kasemi 50 meters away from his house. Ilmi told me before that Krenar Hoxha had beaten him up, while he was in Greece.

App. 140.

Murat Kasemi, Ilmi’s brother, corroborated Sheqeri. He told authorities that on the morning after the murders took place “Rahman Sheqeri told me that he had seen Krenar Hoxha around September 12-13, 1996. Krenar was with another person, around 11:00 PM, 50 meters away [from] Ilmi’s house.” App. 151.

The murders took place on September 27, 1996, in the family home of Ilmi Kasemi. Ilmi was killed, along with his wife, Roza, and their son, Eltion. Ilmi and Roza’s 10-year-old daughter, Matilda, survived, as she lay terrified and unnoticed in her bed. Matilda stated that day that the killings took place at about 2 a.m. She said that she did not know the shooter, but could recognize him if she saw him again. App. 115.


Shortly after the crime, Daut Hoxha, a cousin of Krenar Hoxha, told the authorities that during the night in question, Krenar Hoxha came to Daut’s house and asked him to hide a weapon, which was concealed in a rain-soaked black bag. Daut left the bag in a corridor in his house, and Krenar left. Daut Hoxha said that Krenar returned at 5 a.m. At that time, they transferred the gun to a blue bag, and took it to the house of Daut’s cousin, Fetah Hoxha. Daut Hoxha told the police that he went into Fetah’s house by himself and put the gun in a sofa in Fetah’s home. App. 164-65.

On September 29, 1996, acting on this information, authorities found the gun exactly where Daut Hoxha said it was -- in a blue bag, in a couch in Fetah Hoxha’s home. Ballistics tests revealed that the gun was the same one used in the murders. App. 169.


Daut Hoxha’s statement was corroborated in part by several witnesses -- Fetah Hoxha, Bajame Hoxha, and Ardjana Hoxha -- although Daut, Bajame, and Ardjana later recanted their statements. Fetah Hoxha (who did not recant) confirmed at the time of the murders that Daut Hoxha came to his home at 7 a.m. on September 27, 1996, two days before the murder weapon was found in Fetah’s couch.[2] Fetah Hoxha said that he did not pay attention to whom accompanied Daut and what Daut did at the house. App. 143.

Bajame Hoxha, the wife of Daut Hoxha, confirmed her husband’s story that Krenar had twice come to the home during the early morning hours of September 27, 1996, a rainy night. Bajame said that at around 3 a.m. she heard Krenar Hoxha identifying himself as “Nari” as he knocked on the door of her house. According to Bajame Hoxha,

Daut opened the door and he came in. I saw that it was Krenar in the corridor because I left the bedroom door opened. What my husband and Krenar said I didn’t hear, but I want to say that Krenar did not stay long, only some moments and off he went. When Daut came to sleep I asked him who it was and he told me that it was Krenar. I asked him what did he want and Daut answered that it was not my business.

App. 156.


Bajame continued that she awoke at 6 or 6:30 a.m., and went to milk a cow. When she returned after 15-20 minutes, she saw Krenar Hoxha leaving her house. She said that at that time she found an empty, black plastic bag in the corridor of her house, which was wet from the rain. She washed it and hung it outside to dry. App. 156.

Finally, Ardjana Hoxha, a sister of Daut, said that she too observed Krenar Hoxha in Daut’s home during the early morning hours. She said that at around 6:30 a.m. on the morning of September 27, 1996, she heard the voice of Krenar Hoxha talking to her brother Daut Hoxha. The men were in the sitting room of Daut Hoxha’s residence. According to Ardjana’s statement, Daut seemed very concerned and asked Krenar Hoxha what he did, and Hoxha replied “nothing, nothing, you will learn later.” App. 147.

B. Criminal Proceedings.


Krenar Hoxha was tried and convicted in absentia by the Court of First Instance of Judicial Circle Fier (“Court of First Instance”). Although he was sentenced to life imprisonment, his conviction was overturned by the Appeal Tribune of Vlore because he did not receive notice of the aggravated circumstances. After the second examination of the case, Hoxha was sentenced to 22 years imprisonment, a sentence that was later reduced to 14 years and 8 months. App. 72-113. That sentence was vacated as well, due to Hoxha’s absence from his first trial in Albania. Specifically, the Appeal Tribunal of Vlore noted that “[Hoxha] was denied the constitutional right to be called and to attend the proceedings,” and therefore “the procedural acts of the adjudication of the first instance and the decision are absolutely invalid, thus making the entire judicial process inexistent.” App. 102.

The Republic of Albania seeks Hoxha’s extradition pursuant to an extradition treaty between the United States and Albania (the “Extradition Treaty”). Under the terms of that treaty, which has been in force since 1935, the two countries have agreed to “upon requisition duly made as herein provided, deliver up to justice any person who may be charged with, or may have been convicted of, any of the crimes or offenses specified in Article II of the present treaty . . . .” Persons charged or convicted of murder are explicitly subject to extradition. App. 246-47.


Hoxha was arrested in the Eastern District of Pennsylvania on November 10, 2004, pursuant to a complaint and warrant of arrest issued by Magistrate Judge Rueter. The extradition proceeding commenced before Magistrate Judge Jacob P. Hart on January 19, 2005. At the commencement of the proceedings on that day, Magistrate Judge Hart ruled that the extradition treaty between the United States and the Republic of Albania was valid. App. 319-20.

Judge Hart stated that he had reviewed the extradition package obtained from Albania and believed that an additional showing of probable cause needed to be made in order to make the finding that extradition of the defendant was appropriate. Judge Hart provided the government two weeks in order to make an additional showing.

The hearing continued on February 4, 2005. At that time, in addition to relying on Albania’s original submission, the court reviewed and considered Albania’s second submission. Magistrate Judge Hart made a finding of probable cause, and issued a Certification of Extraditability and Order of Commitment on February 9, 2005.


Hoxha filed his habeas petition on March 13, 2005. In that petition, he argued that: (1) The magistrate judge prohibited him from presenting testimony that would have negated probable cause; (2) the extradition treaty between the United States and the Republic of Albania had been voided by successor governments; and (3) Hoxha would face reprisals and death if he is extradited to the Republic of Albania.

In denying Hoxha’s habeas petition, the district court determined that Hoxha’s argument that the magistrate judge incorrectly refused to allow live testimony from witnesses in Albania was unpersuasive and irrelevant. The court noted that the credibility of witnesses and relevant facts were matters that should be determined by an Albanian court. The court also emphasized that “[r]ather than permissibly seeking to explain the evidence put forth by the Albanian authorities, Hoxha seeks to try this matter in the United States by contradicting the evidence against him.” App. 8 n.1. The district court concluded that this was something Hoxha could not do, and that even accepting testimony as recanted, probable cause existed to certify Hoxha as extraditable.

In determining that the extradition treaty between the United States and Albania was valid, the district court


relied upon declarations from American officials regarding the continued vitality of the treaty, as well as the conduct of the Albanian government in continuing to recognize the treaty.

Finally, Hoxha contended in his habeas petition that he should not be extradited because he would face torture and possible death should he be returned to Albania. In support of this argument, he relied on Article III of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (“Convention Against Torture”). Hoxha further argued that the district court should create a “humanitarian exception” that would allow the court to ignore the extradition order because of the actions to which Hoxha might be subjected in Albania.

The district court concluded that Hoxha’s argument failed to “square with the law,” and that it was a matter clearly committed to the discretion of the Secretary of State. The district court stated:


[W]hile the judicial branch is charged with deciding whether an individual is extraditable, the decision to extradite the individual rests with the executive branch. Quinn v. Robinson, 783 F.2d 776, 789 (9th Cir. 1986). It is within the sole discretion of the Secretary of State to refuse to extradite an individual on humanitarian grounds in light of the treatment and consequences that await that individual.

App. 12.

In rejecting Hoxha’s invitation to create a judicial humanitarian exception to the laws of extradition, the district court stated:

In sum, the separate branches of government each have clearly defined roles in the extradition process. It is the duty of the judicial branch to ensure that the individual sought is subject to extradition, while it is the duty of the executive branch, which possesses great power in the realm of foreign affairs, to ensure that extradition is not sought for political reasons and that no individual will be subject to torture if extradited.

App. 12-13.


STATEMENT OF RELATED CASES

The government is not aware of any other related case or proceeding that is completed, pending, or about to be presented before this Court or any other court or agency, state or federal.


SUMMARY OF ARGUMENT

1. The district court correctly concluded that there was a sufficient showing to support the magistrate judge’s conclusion that there was probable cause to believe that Krenar Hoxha had committed the offenses for which he was charged in Albania, and Hoxha does not dispute that. Rather, Hoxha asserts that the court should have permitted him to present evidence negating the showing of probable cause. However, it is clear from the record that it was unnecessary for the magistrate judge to allow several witnesses to testify by telephone from Albania. While Hoxha clearly wanted to retry his case in the United States, that is simply beyond the minimal showing that the Republic of Albania had to make.

2. The district court was correct in concluding that the Extradition Treaty between the United States and Albania is valid. The government provided declarations from United States officials stating that the treaty is currently in force between the United States and Albania.


3. Finally, Hoxha argues that the district court’s order denying his habeas petition should be overturned because he faces a substantial threat of torture if the Secretary of State decides to extradite him to Albania. There appear to be two elements to Hoxha’s argument: (1) he contends that this Court should create a “humanitarian exception” to the extradition provisions in the applicable treaty with Albania, and should apply it in light of his torture threat allegation; and (2) he argues that his extradition is forbidden by Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (“the FARR Act”) (codified at 8 U.S.C. § 1231 note), implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Torture Convention”) (1465 U.N.T.S. 85 (1987); 1830 U.N.T.S. 320 (1994)). Hoxha claims that the FARR Act and the Torture Convention may be enforced through the Administrative Procedure Act (“the APA”) (5 U.S.C. § 704).


The district court correctly rejected Hoxha’s “humanitarian exception” argument. The question of whether or not an extradition should be declined for humanitarian reasons lies exclusively within the jurisdiction of the Secretary of State under the “Rule of Non-Inquiry.” That rule establishes that, once the Judicial Branch has found a fugitive extraditable, the determination whether to carry out the extradition from the United States is committed to the discretion of the Secretary, who takes into account pertinent legal, humanitarian, and foreign relations issues in making her decision.

Hoxha’s claim based on the FARR Act, the Torture Convention, and the APA is similarly unavailing because, under the Rule of Non-Inquiry, the Secretary’s surrender decision is unreviewable, and the President and Congress gave no indication in these instruments that they meant to radically change extradition law by overriding that doctrine.


ARGUMENT

I. THE MAGISTRATE JUDGE PROPERLY EXERCISED HIS DISCRETION IN DENYING HOXHA’S REQUEST TO HAVE INDIVIDUALS TESTIFY BY TELEPHONE IN ORDER TO NEGATE PROBABLE CAUSE.

Standard of Review

The district court’s decision upholding the magistrate judge’s determination not to permit testimony via teleconference from Albania is reviewed for abuse of discretion. See United States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

Discussion

Hoxha contends that the magistrate judge erred in refusing to allow the testimony of witnesses in Albania via a teleconference in order to negate probable cause. This argument is meritless.


In response to a complaint by the United States seeking the extradition of a person sought for prosecution by another country, the extradition court is authorized to conduct only a “limited inquiry.” Sidali v. INS, 107 F.3d 191, 194 (3d Cir. 1997), citing 18 U.S.C. §§ 3181-95. The extradition court is to determine only if the individual who has been arrested in the United States, pursuant to an extradition request from a foreign government, is subject

to surrender to that country. Charlton v. Kelly, 229 U.S. 447, 460 (1913). The extradition court therefore conducts an adversarial hearing to determine only whether there is “evidence sufficient to sustain the charge [against the fugitive] under the provisions of the proper treaty or convention.” Sidali, 107 F.3d at 195, quoting 18 U.S.C.

3184.

Evidence “sufficient to sustain the charge” is evidence that would establish “probable cause” that the fugitive committed the charged crimes:

[T]he probable cause standard applicable in extradition proceedings is identical to that used by courts in federal preliminary hearings. The burden of the government is to offer evidence that would support a reasonable belief that the defendant was guilty of the crime charged. The magistrate judge in an extradition proceeding is, therefore, to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.

Sidali, 107 F.3d at 199 (internal citations and punctuation

omitted); accord United States ex rel. Grano v. Anderson, 446 F.2d 272, 273 (3d Cir. 1971) (applying probable cause


standard in domestic extradition proceedings); United States v. Wiebe, 733 F.2d 549, 553 (8th Cir. 1984) (“The probable cause standard applicable in extradition proceedings is defined in accordance with federal law and has been described as evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.”) (internal punctuation omitted).


Documents and hearsay evidence alone may support a finding of probable cause. Collins v. Loisel, 259 U.S. 309, 317 (1922); United States v. Kin-Hong, 110 F.3d 103, 120 (1st Cir. 1997) (an extradition hearing “does not require a higher standard of evidence than a probable cause hearing,” which “a finding of probable cause may be based upon hearsay in whole or in part,” quoting Fed. R. Crim. P. 5.1(a)); see also 18 U.S.C. § 3190 (providing that “depositions, warrants, or other papers or copies thereof . . . shall be received and admitted as evidence” in extradition hearings). “Ordinarily questions regarding the weight and sufficiency of the evidence presented at an extradition hearing simply are not reviewable in habeas corpus proceedings.” Wiebe, 733 F.2d at 553.

On habeas review, “any evidence” that establishes probable cause is sufficient to support a finding of probable cause, as the extradition magistrate is not authorized to assess the credibility of the evidence supporting an extradition request, but must accept it at face value. See Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1406-07 (9th Cir. 1988); Shapiro v. Ferrandina, 478 F.2d 894, 905-05 (2d Cir. 1973).

Notably, in this matter, Hoxha does not dispute that the information provided by Albanian authorities, if accepted at face value, presented probable cause of the accusation against him. See Br. 24-25 (“Mr. Hoxha’s challenge to probable cause is not whether there was reasonable grounds to believe the accused guilty, but rather the method utilized by the magistrate in coming to that conclusion . . . .”).


Hoxha instead argues that the magistrate judge should have permitted him to offer testimony by telephone from Albania from several witnesses, in order to negate the showing of probable cause. The magistrate judge did not abuse his discretion in declining to hear that testimony.

A fugitive’s right to controvert the evidence introduced against him is “limited to testimony which explains rather than contradicts the demanding country’s proof.” Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978). The district court in Matter of Sindona, 450 F. Supp. 672 (S.D.N.Y. 1978), aff’d, 619 F.2d 167 (2d Cir. 1980), discussed the distinction between contradictory and explanatory evidence and cited the established authority for the proposition that an extradition hearing should not be transformed into a full trial on the merits:


The distinction between ‘contradictory evidence’ and ‘explanatory evidence’ is difficult to articulate. However, the purpose behind the rule is reasonably clear. In admitting ‘explanatory evidence,’ the intention is to afford an accused person the opportunity to present reasonably clear-cut proof which would be of limited scope and having some reasonable chance of negating a showing of probable cause. The scope of this evidence is restricted to what is appropriate to an extradition hearing. The decisions are emphatic that the extraditee cannot be allowed to turn the extradition hearing into a full trial on the merits. The Supreme Court has twice cited with approval a district court case which aptly summarizes the relevant considerations. The Supreme Court decisions are Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 66 L.Ed. 956 (1922), and Charlton v. Kelly, 229 U.S. 447, 461, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). The district court opinion is In re Wadge, 15 F. 864, 866 (S.D.N.Y 1883) in which the court dealt with the argument of an extraditee that he should be given an extensive hearing in the extradition proceedings:

‘If this were recognized as the legal right of the accused in extradition proceedings, it would give him the option of insisting upon a full hearing and trial of his case here; and that might compel the demanding government to produce all its evidence here, both direct and rebutting, in order to meet the defense thus gathered from every quarter. The result would be that the foreign government though entitled by the terms of the treaty to the extradition of the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, under all the disadvantages of such a situation, and could not obtain extradition until after it had procured a conviction of the accused upon a full and substantial trial here. This would be in plain contravention of the intent and meaning of the extradition treaties.’


450 F. Supp. at 685. The extent to which the defendant may offer explanatory proof is largely within the discretion of the committing judicial officer. Hooker v. Klein, 573 F.2d at 1369; United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir. 1963) (and cases cited therein). However, some matters are clearly contradictory and thus impermissible. The fugitive may not introduce evidence which: conflicts with the evidence submitted on behalf of the demanding state, Collins v. Loisel, 259 U.S. 309, 315-17 (1922); establishes an alibi, Abu Eain v. Adams, 529 F. Supp. 685 (N.D. Ill. 1980); sets up an insanity defense, Hooker v. Klein, 573 F.2d at 1369; or impeaches the credibility of the demanding country’s witnesses, In re Locatelli, 468 F. Supp. 568 (S.D.N.Y. 1979). He is limited to introducing explanatory evidence.

In this case, Hoxha asserts that particular testimony on which the Albanian authorities relied should not be considered, because those witnesses recanted their testimony and were prepared to so attest in a telephone conference. This is an instance of an effort to contradict rather than explain evidence, and the American court was not required to consider it. The magistrate judge performed his role in determining (as is uncontested) that the Albanian government set forth a statement of probable cause; it would not be appropriate for him to weigh the credibility or impeachment of witnesses.


The weight of authority holds that a mere claim that an accusing witness has recanted, even that the witness made the original inculpatory statement under duress, is not sufficient to defeat a showing of probable cause. Notably, in Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981), the magistrate judge found the relator extraditable on the basis of accomplices’ statements provided by the State of Israel, along with corroborating evidence, and declined to consider later statements recanting the accusations. The Seventh Circuit affirmed, holding that accomplice testimony is sufficient to support a finding of probable cause and is more than sufficient if corroborated by reliable evidence. Id. at 510 nn. 5, 6. The appellate court found that the magistrate permissibly refused to admit evidence of recantation because “[t]he later statements do not explain the government’s evidence, rather they tend to contradict or challenge the credibility of the facts implicating petitioner in the bombing. Therefore, the magistrate properly decided that such a contest should be resolved at trial in Israel. The alleged recantations are matters to be considered at trial, not the extradition hearing.” Id. at 511-12.


As Hoxha observes, Br. 26-27, a few magistrate judges have determined that evidence of recantation which entirely negates accusatory statements may be considered in an extradition proceeding. These decisions were canvassed at length in In re Extradition of Atuar, 300 F. Supp. 2d 418, 428-31 (S.D. W. Va. 2003), aff’d, 2005 WL 3134081 (4th Cir. Nov. 23, 2005) (not precedential). In Atuar, the magistrate judge agreed with the precedent set forth above that “[t]he Court may not admit and consider evidence submitted by Relator which merely conflicts with or contradicts evidence submitted by the United States on the issue of probable cause or impeaches the credibility of witnesses,” but added that “the Court may admit and consider explanatory evidence submitted by Relator if it would clearly negate or obliterate probable cause.” Id. at 427.


The court’s review of cases found that where an accusation was immediately recanted, or was rejected by judicial authorities in the foreign country, the recantation could be considered as negating probable cause. For example, in In Extradition of Contreras, 800 F. Supp. 1462 (S.D. Tex. 1992), the magistrate found an absence of probable cause where alleged accomplices’ confessions and accusations were immediately recanted at the first opportunity in a judicial hearing, within a matter of days. Id. at 1465.

The Atuar court concluded:

The following rule is apparent. A statement of a relator’s alleged accomplice or coconspirator recanting an earlier statement inculpating relator is contradictory and therefore not admissible in extradition proceedings. If it is evident, however, that the inculpating statement was coerced and not made voluntarily, the recanting statement is admissible, and consideration is given to which of the statements is more reliable in view of the totality of the evidence. Important factors in assessing which statement is more reliable are (1) whether a Court in the requesting State has determined that the inculpating statement was coerced and involuntary; (2) where, when and under what circumstances the alleged accomplice or coconspirator made his initial statement inculpating relator; (3) where, when, whether at first opportunity or later, and under what circumstances the alleged accomplice or coconspirator recanted his earlier statement; and (4) whether either statement is corroborated by other evidence.

Atuar, 300 F. Supp. 2d at 431. In Atuar itself, the magistrate judge found that the recantation, which came years after the fact, was not sufficient to defeat the showing of probable cause.


In this case, the evidence offered by Hoxha clearly goes to contradict the evidence, not, in the phraseology of Atuar, “obliterate” it. Notably, there was a good deal of probative evidence which was never recanted. For example, Murat Kasemi explained the pertinent background of tension between his family and Krenar Hoxha, which Daut Hoxha in his original statement reported as well. Rahman Sheqeri provided critical information regarding bad blood between Krenar Hoxha and a murder victim, stating that Krenar Hoxha appeared with a gun near Ilmi Kasemi’s house two weeks before the murders. Sheqeri’s credibility is bolstered by the fact that he recounted this occurrence to Kasemi’s brother, Murat, immediately after the murders took place. Thus, there has been no contradiction of the showing of probable cause of motive and intent.


As for Daut Hoxha, who linked Krenar Hoxha to the murder weapon just minutes after the crime occurred, he may have retracted his statement, but independent and as yet unchallenged evidence corroborated his initial statement to the police. For instance, the chronology he provided -- that Krenar Hoxha first came to his house with the gun in the middle of the night, and then returned to transfer the gun to Fetah Hoxha’s house at approximately 5 a.m. -- roughly matched with the statements of independent witnesses regarding the timing of the murders (as reported by Matilda Kasemi and Murat Kasemi[3]) and with Fetah Hoxha’s recollection that Daut Hoxha and another man came to his house at 7 a.m.

Further, it is notable that, even though Bajame Hoxha and Adriana Hoxha have recanted their statements as well, those initial accounts interlocked with Daut’s in stating that Krenar came to the house twice during the early morning hours.[4]


Most importantly, Daut’s statement is confirmed by the fact that the actual murder weapon was found exactly where he said he and Krenar took it, in a blue sack in a couch in Fetah Hoxha’s house.


All of this evidence -- the proof of motive and intent, the fact that Krenar Hoxha was seen with a gun near the victims’ home two weeks earlier, the statements suggesting that Krenar Hoxha immediately disposed of the murder weapon, and the discovery of the murder weapon where one of the key witnesses reported it would be -- readily amounts to a case of probable cause warranting extradition for trial pursuant to the treaty. This is not a case, as described in Atuar, in which recantations were immediate and “obliterated” the case. Rather, the initial statements of Daut, Bajame, and Ardjana Hoxha were upheld by an Albanian court, and not recanted at the outset; and those statements are consistent with other evidence which has not been recanted.[5] In these circumstances, it was within the court’s discretion to decline to consider contradictory evidence and to permit the extradition to proceed.


While correctly holding that the evidence presented probable cause, the district court, App. 6-8, provided only a brief summary of the sources of the evidence and not all of the probative details (which are recounted at length in the statement of facts at the outset of this brief). One statement was imprecise. The district court stated that “[i]n finding probable cause existed, however, Judge Hart assumed that Daut’s statements implicating Hoxha were untrue.” App. 7. The magistrate judge, quite properly, did not make that assumption. Rather, the judge merely considered the fact (which the Albanian prosecutor had readily acknowledged in the submission to the United States, App. 123) that Daut Hoxha had recanted his statement.

At the first hearing in the matter, the judge did suggest that he would ignore Daut Hoxha’s statement entirely. App. 324-25. But once all arguments were made, the court agreed with the government that Daut Hoxha’s statement added to the showing of probable cause given the fact that it was corroborated. Specifically, at the conclusion of all proceedings, the magistrate judge stated:

I’m going to issue my ruling, and I’m going to find that there is probable cause to extradite the defendant.


And I will again reiterate, number one, that I am making this determination, even with respect to the fact – with respect to the fact - that if Daut Hoxha were here, would say that his statements were untrue.

However, you know, one cannot ignore the fact the statements of other people, including the fact that the gun was found precisely where Mr. Hoxha said it was going to be found, there is independent evidence that places Mr. - that places the defendant at the location where the gun was found, that there is evidence of a relationship between the defendant and the deceased . . . .

App. 368. The magistrate judge’s approach was exactly right. He could take into account the fact that Daut Hoxha recanted his statements, but was still left with sufficient evidence which both suggested Krenar Hoxha’s perpetration of the murders and indicated that Daut Hoxha’s initial account was the accurate one. At that point, a showing of probable cause had been made, and it would be inappropriate to take evidence in an effort to resolve the varying accounts and conflicting evidence of guilt.


Hoxha notes that the lower courts that found there was adequate probable cause also described the Albanian case against Hoxha as “weak” and stated that a case beyond a reasonable doubt has yet to be set forth. Br. 29. But the fact that the case at this time may not meet the reasonable doubt test has no bearing with respect to the probable cause determination. Hoxha is not charged, and therefore will not be tried, in the United States. Rather, he will be tried in the Republic of Albania, which was where the alleged offense was committed. At that time, the disputes regarding testimony and evidence may be fully resolved under the appropriate local law.[6]


Finally, Hoxha hints that Albania’s desire for his extradition may be motivated by an ulterior purpose. See Br. 28. That is not relevant to the issue before the court.

It is not a part of the court proceedings nor of the hearing upon the charge of the crime to exercise discretion as to whether the criminal charge is a cloak for political action, nor whether the request is made in good faith. Such matters should be left to the

Department of State.

In re Lincoln, 228 Fed. 70, 74, (E.D.N.Y. 1915). This jurisprudential rule is termed the “Rule of Non-Inquiry” (a rule discussed at greater length below). Indeed, the extradition statute, 18 U.S.C. § 3184, gives a court no authority to inquire into such matters. In Ramos v. Diaz, 179 F. Supp. 459, 463 (S.D. Fla. 1959), the court clearly stated that the motive of the demanding government in an extradition proceeding is not controlling; the circumstances surrounding the offense when it occurred are dispositive. See also In Re Locatelli, 468 F. Supp. 568, 575 (S.D.N.Y. 1979).

In sum, the presentation of probable cause by Albanian authorities was sufficient to permit extradition, and the magistrate judge was not required to consider contradictory evidence.


II. THE EXTRADITION TREATY BETWEEN THE UNITED STATES AND THE REPUBLIC OF ALBANIA IS IN FULL FORCE AND EFFECT.

Standard of Review

Where a fugitive challenges the validity of an extradition treaty, this Court will “review legal conclusions on a plenary basis and factual findings for clear error. Interpretations of foreign law are subject to plenary review and may be resolved by reference to any relevant information.” United States ex rel. Saroop v. Garcia, 109 F.3d 165, 167 (3d Cir. 1997) (citations omitted).

Discussion

Hoxha contends that the district court erred as a matter of law in upholding the magistrate judge’s determination that the extradition treaty between the Republic of Albania and the United States of America is in effect. This argument is without merit. It is dispositive that the conduct of both countries demonstrates the ongoing validity of the 1933 treaty.


The decision in Terlinden v. Ames, 184 U.S. 270 (1902), is controlling. There, Germany requested the extradition from the United States of a person, pursuant to an 1852 treaty between the United States and the Kingdom of Prussia (which was subsumed into the German state in 1871). The fugitive asserted that the treaty had been terminated upon the demise of the Prussian state, but the Supreme Court disagreed. The Court relied on the fact that both the United States and Germany had continued to act with the understanding that the 1852 treaty remained in effect. “[O]n the question whether [the extradition] treaty has ever been terminated, governmental action in respect to it must be regarded as of controlling importance.” Id. at 285. The Court added that “the question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and [] the courts ought not to interfere with the conclusions of the political department in that regard. . . . The decisions of the Executive Department in matters of extradition, within its own sphere, and in accordance with the Constitution, are not open to judicial revision . . . .” Id. at 288.


This Court adhered to Terlinden in United States ex rel. Saroop v. Garcia, 109 F.3d 165 (3d Cir. 1997). In that case, citing a 1931 treaty between the United States and Great Britain, the United States sought extradition of a suspect from the nation of Trinidad and Tobago, which had gained its independence from Britain. The defendant filed a habeas petition, arguing that the treaty was never ratified by the new state. This Court disagreed, concluding that “[t]he nations’ conduct proves dispositive.” Id. at 171.

The Court reviewed a series of legislative enactments in Trinidad and Tobago which suggested adherence to the treaty, albeit without expressly confirming it. The Court then added:

It is also of some consequence that Trinidad and Tobago surrendered Saroop to the United States under a diplomatic request premised on the 1931 extradition treaty. No objection was made. It is evident that Trinidad and Tobago found the request proper under an existing extradition agreement.


For its part, there is ample evidence the United States believes there is an extradition treaty with the independent nation of Trinidad and Tobago. The United States Congress has listed all its bilateral extradition treaties in 18 U.S.C. § 3181. This includes an extradition treaty with Trinidad and Tobago signed in 1931 and entered in force in 1935. Furthermore, the United States recorded the 1931 extradition treaty in the U.S. State Department's “Treaties in Force” publication. In the past, the United States State Department, through its Office of the Legal Advisor, has represented to the courts that there is a valid extradition treaty between the United States and Trinidad and Tobago.

Id. at 172 (citations omitted).

The unrebutted evidence submitted to the court in this case likewise demonstrated the unambiguous and conclusive view of both nations that the treaty with Albania is in effect.[7] The government introduced into evidence the Declaration of Virginia P. Prugh, who is an Attorney-Adviser in the Office of the Legal Adviser for the Department of State, Washington, D.C. Attorney-Adviser Prugh stated that the 1935 treaty was in full force and effect, adding:

In accordance with Article IX of the Treaty, the Government of the United States appears in court in the United States on behalf of Albania, and represents the interests of Albania in any proceeding that arises out of an Albanian request for extradition. Albania provides the same legal representation in its courts on behalf of the United States with regard to extradition requests made by the United States.

App. 285.


In further support of its position, the government also introduced into evidence the Declaration of Robert E. Dalton, the Assistant Legal Adviser for Treaty Affairs in the Office of the Legal Adviser of the Department of State, Washington, D.C. In this declaration, Assistant Legal Adviser Dalton stated:

The United States Government considers that the Extradition Treaty between the United States of America and Albania that was signed at Tirana March 1, 1933, and entered into force November 14, 1935, (49 Stat. (pt.2), 3313, Treaty Series 902), is currently in force between the United States of America and Albania.

App. 301-02. Dalton also explained that the treaty with Albania remains listed both in 18 U.S.C. § 3181 and the State Department’s “Treaties in Force” publication. App. 302.


For its part, Albania’s belief in the continued existence of the treaty was demonstrated by its very request for extradition. Moreover, the government showed that Albania has sent persons to the United States pursuant to the treaty. Andrew Levchuk, an attorney with the Office of International Affairs, U.S. Department of Justice, provided a statement to the court that since 2003, he had been assigned to handle on behalf of the Department of Justice extradition requests between the United States and the Republic of Albania. In that affidavit, he reported that in 2004, the United States on behalf of the State of Wisconsin obtained the extradition from Albania of a man charged with attempted murder. App. 510-11. Levchuk further stated in his affidavit that he had been informed by David A. Lewis, Department of Justice Resident Legal Adviser at the United States Embassy in Albania, that the Albanian High Court retained jurisdiction of the matter and issued a ruling affirming the fugitive’s extradition on December 17, 2004. The affidavit stated that according to Lewis,

the High Court majority opinion addressed and rejected five defense arguments against the continuing validity of the 1935 Treaty: 1) that the 1935 Treaty is unconstitutional; 2) that the current constitution of 1998 has not ratified the 1935 treaty; 3) that the Kingdom of Albania is a different state than the Republic of Albania; 4) that the 1935 Treaty was abolished by Anti-Fascist Council Congress in 1944; and 5) that the 1935 Treaty was only valid for 5 years.

App. 511.[8]



In sum, the district court was correct in concluding that there was more than sufficient evidence of the existence of an extradition treaty between the United States and Albania. Hoxha’s arguments with respect to the extradition treaty are meritless. In addition to the fact witnesses in Albania he wanted to question via teleconference with regard to the probable cause issue, he contends that he was prejudiced by not being permitted to present the testimony via teleconference of Luan Xhuveli, an attorney who had represented Hoxha in Albania. According to Hoxha, Xhuveli would have testified that the extradition treaty between the United States and the Republic of Albania was no longer in effect. First of all, the magistrate judge had the benefit of the legal opinion of Xhuveli, which was attached to Hoxha’s Motion to Dismiss Extradition. Second, in light of his representation of Hoxha on the murder charges in Albania, Xhuveli’s thoughts about the extradition treaty were not that of an independent expert with no interest in the outcome of the matter. Third, the magistrate judge had the benefit of declarations from United States officials regarding the validity of the treaty as exhibited in the continued conduct of both governments. In light of that, Xhuveli’s historical commentary, though interesting, was rightly unpersuasive to the magistrate judge. For all of these reasons, the magistrate judge and the district court properly concluded that the treaty is in force.


III. THE DISTRICT COURT CORRECTLY REJECTED HOXHA’S CLAIM FOR

HABEAS RELIEF, WHICH WAS PREDICATED ON HIS CONTENTION THAT HE FACES A SUBSTANTIAL THREAT OF TORTURE IF EXTRADITED TO ALBANIA.

Standard of Review

This Court exercises plenary review of the district court’s interpretation of a provision of law. Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998). The district court’s factual findings are reviewed for clear error. United States v. Weaver, 267 F.3d 231, 235 (3d Cir. 2001).

Discussion


Finally, Hoxha argues that the district court’s order denying his habeas petition should be overturned because he assertedly faces a substantial threat of torture if the Secretary of State decides to extradite him to Albania. Br. 33-36. There appear to be two elements to Hoxha’s argument: (1) he contends that this Court should create a “humanitarian exception” to the extradition provisions in the applicable treaty with Albania, and should apply it in light of his torture threat allegation; and (2) he argues that his extradition is forbidden by Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (“the FARR Act”), codified at 8 U.S.C. § 1231 note, implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Torture Convention”) (1465 U.N.T.S. 85 (1987); 1830 U.N.T.S. 320 (1994)).[9] Hoxha claims that the FARR Act and the Torture Convention may be enforced through the Administrative Procedure Act (“the APA”), 5 U.S.C. § 704.


As we now show, the district court correctly rejected Hoxha’s “humanitarian exception” argument. The question of whether or not an extradition should be declined for humanitarian reasons lies exclusively within the jurisdiction of the Secretary of State under the “Rule of Non-Inquiry.” That rule establishes that, once the Judicial Branch has found a fugitive extraditable, the determination whether to carry out the extradition from the United States is committed to the discretion of the Secretary, who takes into account pertinent legal, humanitarian, and foreign relations issues in making her decision.

Hoxha’s claim based on the FARR Act, the Torture Convention, and the APA is similarly unavailing because, under the Rule of Non-Inquiry, the Secretary’s surrender decision is unreviewable, and the President and Congress gave no indication in these instruments that they meant to radically change extradition law by overriding that doctrine.

A. The Decision About Whether to Extradite Hoxha in Light of his Humanitarian Exception Claims Rests Entirely with the Secretary of State.

As explained above, Magistrate Judge Hart’s February 9, 2005 certification held Hoxha extraditable under 18 U.S.C. § 3184. App. 375-78. In issuing this order, the magistrate judge found that there is currently in force an extradition treaty between the United States and Albania, the relevant criminal charges constitute extraditable offenses under that treaty, and there is probable cause to believe that Hoxha committed the offenses for which extradition is sought. App. 376-77.


Under the statutory scheme governing extraditions, having made these findings, the magistrate judge’s function was complete. See 18 U.S.C. § 3184; Sidali v. INS, 107 F.3d 191, 194-195 (3d Cir. 1997) (describing operation of extradition mechanism). The magistrate judge therefore properly committed Hoxha to the custody of the United States Marshal, “pending final disposition of this matter by the Secretary of State and surrender to designated agents of the Government of the Republic of Albania.” App. 377-78.

A magistrate judge’s determination of extraditability is not itself appealable. See Sidali, 107 F.3d at 195. The fugitive may, however, proceed by seeking a habeas writ from the district court, but only on “extremely limited” grounds (whether the magistrate judge had jurisdiction, the offense charged is within the applicable treaty, and there was evidence establishing a reasonable ground to believe the accused is guilty). Id.


Once a fugitive has been found extraditable by the Judicial Branch, by statute responsibility transfers to the Secretary of State, and the decision whether the fugitive will actually be surrendered is committed to her discretion. See 18 U.S.C. § 3186 (“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”) (emphasis added).

As this statutory provision reflects, the surrender of a fugitive to a foreign government is “purely a national act . . . performed through the Secretary of State,” within the Executive’s “powers to conduct foreign affairs.” See In re Kaine, 55 U.S. 103, 110 (1852); Plaster v. United States, 720 F.2d 340, 354 (4th Cir. 1983) (“Within the parameters established by the Constitution, the ultimate decision to extradite is, as has frequently been noted, reserved to the Executive as among its powers to conduct foreign affairs”); Martin v. Warden, Atlanta Pen., 993 F.2d 824, 829 (11th Cir. 1993).


This Court has further explained that “[t]he Secretary exercises broad discretion and may properly consider factors affecting both the individual defendant as well as foreign relations -- factors that may be beyond the scope of the magistrate judge’s review.” Sidali, 107 F.3d at 195 n.7. Thus, as the courts have recognized, in determining whether or not to extradite a particular fugitive, the Secretary takes into account humanitarian claims and applicable statutes, treaties, or policies regarding appropriate treatment in the receiving country. See Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005); Ntakirutimana v. Reno, 184 F.3d 419, 430 (5th Cir. 1999).

Significantly, “[t]he Secretary may . . . decline to surrender the relator on any number of discretionary grounds, including but not limited to, humanitarian and foreign policy considerations. Additionally, the Secretary may attach conditions to the surrender of the relator. . . . Of course, the Secretary may also elect to use diplomatic methods to obtain fair treatment for the relator.” United States v. Kin-Hong, 110 F.2d 103, 109-10 (1st Cir. 1997).


One type of condition the Secretary may place on an extradition is a demand that the requesting country provide assurances regarding the individual’s proper treatment. See Jimenez v. United States District Court, 84 S. Ct. 14, 16-17 n.10 (1963) (Goldberg, J., in chambers) (describing commitments made by foreign government to Department of State as a condition of surrender); United States v. Baez, 349 F.3d 90, 92-93 (2d Cir. 2003) (referring to assurances provided by United States upon extradition of fugitive by another country).

In his habeas petition seeking review of the magistrate judge’s determination of extraditability, Hoxha contended that he cannot be extradited because he faces, in the words of his appellate brief, “a substantial threat of torture” in Albania. Br. 36. Hoxha asserts that, under such circumstances, his extradition should be barred by an implicit “humanitarian exception” to be read into the applicable extradition treaty with Albania. Additionally, Hoxha claims that his extradition is forbidden by Section 2242 of the FARR Act, implementing the Torture Convention.


In carrying out the responsibilities of the United States under the Torture Convention, Section 2242(a) of the FARR Act provides that it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” In addition, Section 2242(b) directs “the heads of the appropriate agencies” to “prescribe regulations to implement the obligations of the United States under Article 3” of the Torture Convention. That article provides that no state party to the convention shall extradite a person to another nation “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” S. Treaty Doc. 100-20, at 20 (1988). This Court has explained that the central issue under Article 3 and the FARR Act is whether it is “more likely than not” that a person would be tortured. Auguste v. Ridge, 395 F.3d 123, 149 (3d Cir. 2005).


State Department regulations provide that “the Secretary is the U.S. official responsible for determining whether to surrender a fugitive to a foreign country by means of extradition.” 22 C.F.R. § 95.2(b). When allegations regarding torture have been made in extradition cases, “appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant.” Id. at § 95.3(a). Thereafter, “[b]ased on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions.” Id. at § 95.3(b).

The Department of State’s decision-making process in extradition cases often raises sensitive issues when a fugitive makes torture claims. In assessing such claims, the State Department may need to weigh conflicting evidence from various sources regarding the situation in the requesting country. It may need to decide whether to raise with foreign officials the often delicate question of possible mistreatment, and, if so, with which officials and in what format. The State Department must then determine whether to seek assurances from the requesting country in order to protect the fugitive. Necessarily, it must also determine whether such assurances are likely to be reliable and credible.


These determinations made by the State Department can depend on various factors, ranging from an evaluation of the requesting country’s government and its degree of control over particular actors within its judicial system, to predictions about how the foreign regime is likely to act in practice, in light of its past assurances and behavior, to assessments of whether confidential diplomacy or public pronouncements would best protect the safety of the fugitive. These determinations are all inherently discretionary, and intrinsically within the power of the Executive to engage in highly sensitive foreign relations.

In sum, before deciding whether or not to actually direct Hoxha’s surrender to Albania, the State Department must investigate and analyze a variety of facts and considerations, including humanitarian concerns, as well as the governing law in the FARR Act and State Department regulations, and possibly engage in sensitive diplomatic communications and actions regarding whether assurances should be sought. While a magistrate judge has certified to the Secretary that Hoxha is extraditable under 18 U.S.C. § 1384, the Secretary has to date made no decision regarding Hoxha’s extradition.


Because extradition matters necessarily implicate the foreign relations of the United States and have traditionally been entrusted to the broad discretion of the Executive, the federal courts have for many years adhered to a Rule of Non-Inquiry regarding humanitarian claims against extradition to a foreign country. Under this doctrine, “it is the role of the Secretary of State, 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.” Prasoprat, 421 F.3d at 1016; accord Ntakirutimana, 184 F.3d at 430. Under “the well established rule of non‑inquiry . . . [i]nquiry is prohibited into the conditions and treatment which a relator might face upon extradition.” In re Extradition of Atuar, 300 F. Supp. 2d 418, 432 (S.D. W. Va. 2003), aff’d, 2005 WL 3134081 (4th Cir. Nov. 23, 2005) (not precedential). Thus, “[h]umanitarian considerations are not within the province of the Court. Rather, they are for consideration of the Department of State.” Id. at 426 (citations omitted).


Because of this rule, the courts “refrain from investi­gating the fairness of a requesting nation’s justice system.” Kin‑Hong, 110 F.3d at 110. For example, courts are not to accept evidence regarding the requesting country’s “law enforcement procedures and its treatment of prisoners;” such evidence is irrelevant and improper on a habeas petition challenging extradition. Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990):

The interests of international comity are ill‑served by requiring a foreign nation . . . to satisfy a United States district judge concerning the fairness of its laws and the manner in which they are enforced. It is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds.

Id. (citation omitted).

The Rule of Non-Inquiry “is shaped by concerns about institutional competence and by notions of separation of powers.” Kin-Hong, 110 F.3d at 110. As explained above, “[e]xtradition is an executive, not a judicial, function. The power to extradite derives from the President’s power to conduct foreign affairs.” Martin, 993 F.2d at 828. Cf. Sidali, 107 F.3d at 195 n.7 (“The Secretary exercises broad discretion and may properly consider factors affecting both the individual defendant as well as foreign relations . . . .”).


In light of the structure of our government, this rule makes good sense because, as the federal courts have themselves recognized, they are “ill‑equipped . . . to make inquiries into and pronouncements about the workings of foreign countries’ justice systems.” In re Requested Extradition of Smyth, 61 F.3d 711, 714 (9th Cir. 1995). “It is not that questions about what awaits the relator in the requesting country are irrelevant to extradition; it is that there is another branch of government, which has both final say and greater discretion in these proceedings, to whom these questions are more properly addressed.” Kin-Hong, 110 F.3d at 111.

Moreover, as discussed earlier, the State Department has a greater range of choices than the courts in responding to an extradition request and in protecting a fugitive after extradition. See Peroff v. Hylton, 563 F.2d 1099, 1102 (4th Cir. 1977) (“The need for flexibility in the exercise of Executive discretion is heightened in international extradition proceedings . . . .”). With respect to torture claims, the State Department’s regulations provide that the Secretary may make extradition of a particular fugitive subject to specified conditions. 22 C.F.R. § 95.3(b).


Accordingly, judicial review of a decision by the Secretary of State to extradite a particular individual to a requesting foreign country would place the federal courts in an unfamiliar and inappropriate position. For example, if the Secretary of State accepted the assurance of a specific foreign government that, despite a history of human rights abuses in that country, a particular fugitive will not be tortured, a court could evaluate that decision only by second‑guessing the expert opinion of the State Department that such an assurance can be trusted. It is difficult to contemplate how judges would make such a prediction, lacking any practical ability to communicate with the foreign government and its officials, or to weigh the current situation within that country. Further, requiring the Secretary of State to disclose in judicial proceedings the fact that she sought assurances about torture from a foreign government, and the nature of those assurances, could itself be highly problematic.


Despite the Rule of Non-Inquiry, Hoxha urges this Court to create a “humanitarian exception” to extradition as a matter of law when a fugitive asserts that he faces a substantial threat of torture in the receiving country. Br. 36, quot­ing Lopez‑Smith v. Hood, 121 F.3d 1322, 1326‑27 (9th Cir. 1997). The district court here correctly rejected this argument, holding that a decision concerning whether or not humanitarian concerns justify declining a particular extradition “is a matter clearly committed to the discretion of the Secretary of State. . . . It is within the sole discretion of the Secretary of State to refuse to extradite an individual on humanitarian grounds in light of the treatment and consequences that await that individual.” Id. at 11-12.

The district court’s conclusion was compelled by the precedent of this Court. In Sidali, 107 F.3d at 191 n.7, the Court noted that the petitioner there had urged the Court to uphold the grant of habeas relief against extradition on “humanitarian grounds unrelated to the finding of probable cause . . . .” The Court denied this contention: “[I]t is the function of the Secretary of State -- not the courts -- to determine whether extradition should be denied on humanitarian grounds.” Id.


This Court’s precedent is consistent with the law in other Circuits. For example, the Ninth Circuit rejected a “humanitarian exception” argument in Prasoprat, 421 F.3d at 1016, explaining that, although that court has “cited the possibility of a humanitarian exception to extradition; . . . we have never actually relied on it to create such an exception.” Id. (citation omitted). Accord Lopez-Smith, 121 F.3d at 1326 (this theory for an exception is “frequently quoted (but not followed) dictum”). The Ninth Circuit concluded that “[o]nce the magistrate judge determines that the crime is extraditable and there is probable cause to sustain the charge, it is the Secretary of State, representing the executive branch, who determines whether to surrender the fugitive.” Prasoprat, 421 F.3d at 1016 (citation and footnote omitted).


The district court’s final discussion on this point in the case at bar is therefore correct: “In sum, the separate branches of government each have clearly defined roles in the extradition process. It is the duty of the judicial branch to ensure that the individual sought is subject to extradition, while it is the duty of the executive branch, which possesses great power in the realm of foreign affairs, to ensure that extradition is not sought for political reasons and that no individual will be subject to torture if extradited.” App. 12-13.

B. Hoxha’s Claim that Habeas Relief Is Appropriate Here through a Cause of Action Under the Administrative Procedure Act to Review His Claim Under the FARR Act and the Torture Convention Is Incorrect.

Hoxha also contends, Br. 34-35, that this Court should direct the grant of his habeas petition under the Administrative Procedure Act because the Torture Convention and Section 2242 of the FARR Act prohibit his extradition in light of the alleged substantial threat of torture in Albania. This argument fails for the same reasons articulated by the district court in rejecting Hoxha’s argument for a humanitarian exception to extradition: nothing in the FARR Act or the APA abrogates the Rule of Non-Inquiry (and the Torture Convention does not itself create judicially enforceable rights for individuals).

1. Hoxha’s effort to present a cause of action under the APA should be denied at this time.



Hoxha cites the Ninth Circuit’s decision in Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000), and argues that this Court may review his torture-based claims under the APA, 5 U.S.C. §§ 701-706. The issue of whether the APA affords a right of judicial review of an extradition surrender decision by the Secretary of State is in one sense premature, because the Secretary has not yet made a determination on whether to surrender Hoxha notwithstanding his assertion that he will be tortured in Albania. The APA provides for judicial review of “final agency action,” 5 U.S.C. § 704, but there has been no such action by the Secretary at this stage. See Texas v. United States, 523 U.S. 296, 300 (1998) (“a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all”). Indeed, in Cornejo-Barreto, upon which Hoxha relies, the Ninth Circuit panel actually held only that the FARR Act/Torture Convention claim was not ripe because the Secretary of State had not yet made a surrender decision. See 218 F.3d at 1016 (dismissing habeas petition as unripe in the absence of any “final agency action” by the Secretary).[10]


Significantly, however, neither Hoxha’s brief nor the Cornejo-Barreto decision addresses the question of whether dismissal on lack of ripeness is appropriate at this point when dismissal of Hoxha’s FARR Act/Torture Convention claim would also be required on non-justiciability grounds in light of the Rule of Non-Inquiry. Ripeness doctrine draws “both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” National Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003), quoting Reno v. Catholic Social Serv., Inc., 509 U.S. 43, 57 n.18 (1993). But the Supreme Court has held that, when faced with a threshold, categorical “rule designed not merely to defeat the asserted claims, but to preclude judicial inquiry,” a court may dismiss a cause of action based on that rule before addressing other, potentially dispositive jurisdictional limitations. Tenet v. Doe, 125 S. Ct. 1230, 1235 n.4 (2005) (addressing whether a cause of action brought to enforce an alleged espionage contract must be dismissed under Totten v. United States, 92 U.S. 105 (1876), before considering a potential jurisdictional objection under the Tucker Act, 28 U.S.C. § 1491(a)(1)). The Rule of Non-Inquiry, which serves to maintain a proper distribution of functions between the Judicial and Executive Branches and to preclude judicial review of matters confided wholly to the Secretary of State, represents such a categorical legal rule.



The traditional ripeness concerns are also not so one-sided as to mandate postponement of a judicial holding that the Rule of Non-Inquiry applies to a Torture Convention/FARR Act claim in the extradition setting. While it is true that the absence of a decision by the Secretary of State would preclude judicial review now of any action she might later take, the issue of whether judicial review of a surrender decision by the Secretary of State is barred by the Rule of Non-Inquiry constitutes a pure question of law. Cf. Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 479 (2001) (pure issue of statutory interpretation was fit for judicial decision, without further factual development). And, postponing a decision that the Rule of Non-Inquiry applies, insofar as it incorrectly supposes an additional round of judicial review in the event of a subsequent habeas petition, would disrupt extradition law and practice, and inflict independent hardship on the Executive Branch’s ability to fulfill its international obligations. Traditionally, a decision by the Secretary of State to extradite results in the speedy transfer of the fugitive without prior notice to him and without delays that would permit further judicial review. This practice, which is predicated on the Rule of Non-Inquiry and which has been presumed and articulated to foreign governments during negotiation of extradition treaties, permits the Executive Branch to implement extradition determinations and to fulfill this nation’s treaty commitments promptly once the Secretary of State has considered the legal and policy-based factors bearing on her decision.

These considerations counsel in favor of a holding now that, once it is determined that the magistrate judge properly certified Hoxha as extraditable, and because there is no judicial review of humanitarian issues in international extradition cases, the judicial function in extradition is at an end.

2. An order of surrender is not subject to judicial review.

Under the Rule of Non-Inquiry, any surrender order issued by the Secretary of State would not properly be subject to judicial review. As the district court concluded, and as explained above, that rule establishes that claims about how a fugitive will be treated by the receiving country are properly made to the Secretary of State, and are not appropriate for judicial consideration.


The Rule of Non-Inquiry therefore defeats Hoxha’s claim for habeas relief unless he can demonstrate that the Torture Convention, the FARR Act, or the APA abrogates it. Actually, the opposite is true -- there is no evidence that the President or Congress meant to, or did, carry out a radical change in extradition practice by suddenly making the Secretary’s surrender decisions judicially reviewable. Rather, the evidence points to the conclusion that the political branches intended to continue in force longstanding federal law and efficient extradition processes compatible with international law enforcement cooperation.

Hoxha urges this Court to order habeas relief on the basis of Article 3 of the Torture Convention itself. This claim is wrong because the Torture Convention does not provide Hoxha with any judicially enforceable rights. A treaty is an agreement between or among two or more nations, and is “not presumed to create rights that are privately enforceable.” Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992). A treaty that is not self-executing does not create obligations enforceable in the federal courts, even when, by its terms, that treaty protects individual civil rights. See Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).


This Court has already held unequivocally that the Torture Convention is not self‑executing. See Auguste, 395 F.3d at 132-33 & n.7, 140. Accord, e.g., Raffington v. Cangemi, 399 F.3d 900, 903 (8th Cir. 2005); Reyes‑Sanchez v. Attorney General, 369 F.3d 1239, 1240 n.1 (11th Cir. 2004); Castellano-Chacon v. INS, 341 F.3d 533, 551 (6th Cir. 2003).

The ruling in Auguste is plainly right because, in approving the Torture Convention, the Senate specifically stated that Articles One through Sixteen are not self‑executing. 136 Cong. Rec. S17486, S17492 (Oct. 27, 1990); Auguste, 395 F.3d at 132. And, as the Fifth Circuit has noted, habeas relief is not available for an alleged violation of a treaty which is not self‑executing. See Wesson v. U.S. Penitentiary, 305 F.3d 343, 348 (5th Cir. 2002).


The FARR Act too cannot serve as the basis for overriding the Rule of Non-Inquiry, given that it evinces the opposite intent. Section 2242 of the Act expressly provides that “nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Torture Convention or this section . . . except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).” Pub. L. 105‑277, § 2242(d) (codified at 8 U.S.C. § 1231 note). This statement clearly establishes that, by passing the FARR Act, Congress did not intend to create for the first time, without any explanation, judicial review of extradition determinations by the Secretary of State. And no other provision in the FARR Act even hints that Congress meant to eliminate the well-accepted Rule of Non-Inquiry governing extradition matters.

The State Department’s regulations implementing Section 2242 also reflect the lack of any right to judicial review: “Decisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review.” 22 C.F.R. § 95.4.


Outside the extradition context, this Court has ruled that, in passing the FARR Act, Congress did not evince a sufficiently clear intent to eliminate traditional habeas review in federal district courts for removal of aliens under the immigration laws. See Ogbudimkpa v. Ashcroft, 342 F.3d 207, 214-21 (3d Cir. 2003). That ruling is not controlling here, though, because the Court’s analysis turned in substantial part on historical practice and the absence of evidence of a Congressional intent to remove the remedy of habeas review in removal cases. Id. By contrast, as demonstrated above, in the extradition realm, there is a substantial historical practice embodied in the Rule of Non-Inquiry covering the types of habeas claims raised by Hoxha here, and no evidence that Congress meant in the FARR Act to override that history.[11]

Furthermore, nothing in the APA can be read as abrogating the Rule of Non-Inquiry; indeed, several APA provisions demonstrate that judicial review of extradition surrender determinations is inappropriate.


The APA generally provides that “[n]othing herein . . . affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground . . . .” 5 U.S.C. § 702. This provision incorporates both express and implied preclusions of judicial review. See Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 (D.C. Cir. 1999). As stated by the Administrative Conference of the United States in proposing this language for the APA, the courts should “refuse to decide issues about foreign affairs, military policy and other subjects inappropriate for judicial action.” Id. The Administrative Conference also noted that “much of the law of unreviewability consists of marking out areas in which legislative action or traditional practice indicate that courts are unqualified or that issues are inappropriate for judicial determination.” Id. The Rule of Non-Inquiry regarding extradition determina­tions is one instance in which the courts have “marked out” such an area.


Further, the APA provides that judicial review is precluded where “statutes preclude judicial review,” or where “agency action is committed to agency discretion by law.” 5 U.S.C. §§ 701(a)(1), (2). To qualify under the first provision, the statute in question need not expressly bar judicial review; rather, the Supreme Court has explained that APA review can be fore­closed by virtue of “the collective import of legislative and judicial history behind a particular statute [or] by inferences of intent drawn from the statutory scheme as a whole.” Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984).

This exception to judicial review applies here because, as described above, the extradition statutes give the Secretary discretion over the ultimate decision about extradition. See 18 U.S.C. §§ 3184, 3186. Moreover, the courts’ repeated application of the Rule of Non-Inquiry constitutes a “judicial history” of not reviewing such determinations. And, as noted earlier, Section 2242 of the FARR Act provides that nothing in that statute shall be construed as reversing this history.


In addition, review of the Secretary of State’s extradition determinations is precluded because the Secretary’s resolution of a claim under the Torture Convention is otherwise “committed to agency discretion.” 5 U.S.C. § 701(a)(2). The obligation of the United States under Article 3 of the Torture Convention is to refuse extradition if the “competent authorities,” taking into account “all relevant considerations,” determine that it is more likely than not that the fugitive would be tortured. See 22 C.F.R. § 95.2(a). Such a standard “fairly exudes deference” to the decisionmaker. See Webster v. Doe, 486 U.S. 592, 600 (1988).

Also, in determining which kinds of agency action are unreviewable under APA Section 701(a)(2), the Supreme Court has considered whether the actions in question have, by tradition, been left to agency discretion. See Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993). Thus, in Heckler v. Chaney, 470 U.S. 821 (1985), the Court held that an agency’s decision not to bring an enforcement action has traditionally been committed to agency discretion, and accordingly would be presumptively unreviewable under Section 701(a)(2). And, in Webster v. Doe, 486 U.S. 592 (1988), the Court refused to review a decision by the Director of Central Intelligence to terminate an employee in the interests of national security, “an area of executive action ‘in which courts have long been hesitant to intrude.’” Lincoln v. Vigil, 508 U.S. at 192.


As discussed above, the Secretary of State’s extradition decisions have traditionally been “committed to agency discretion,” not only pursuant to the judicial Rule of Non-Inquiry, but also pursuant to statute. See 18 U.S.C. § 3186. Thus, denial of Hoxha’s habeas petition was appropriate in light of the Rule of Non-Inquiry.


CONCLUSION

For the reasons stated above, the government respectfully requests that the judgment of the district court be affirmed.

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

/s Robert A. Zauzmer

ROBERT A. ZAUZMER

Assistant United States Attorney

Chief of Appeals

Pa. Bar No. 58126

/s Paul Mansfield PAUL MANSFIELD Assistant United States Attorney

Pa. Bar No. 48591

Member of New York Bar[12]

United States Attorney’s Office

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

(215) 861-8670


CERTIFICATION

1. The undersigned certifies that this brief contains 13,973 words, exclusive of the table of contents, table of authorities, and certifications, and therefore complies with the limitation on length of a brief stated in Federal Rule of Appellate Procedure 32(a)(7)(B).

2. I hereby certify that the electronic version of this brief sent by e-mail to the Court was automatically scanned by ScanMail Real-Time Scan Monitor, version 3.82, by Trendmirco, and found to contain no known viruses. I further certify that the text in the electronic copy of the brief is identical to the text in the paper copies of the brief filed with the Court.

PAUL MANSFIELD

Assistant United States Attorney


CERTIFICATE OF SERVICE

I hereby certify that two true and correct copies of the Brief of Appellee United States of America have been served by first class mail, postage prepaid, upon:

Thomas Pfender, Esq.

7137 Torresdale Avenue

Philadelphia, PA 19135

________________________________

PAUL MANSFIELD

Assistant United States Attorney

DATED: December 21, 2005.



[1] Hoxha contends in this appeal that no evidence was admitted regarding Ilmi’s continued relationship with Mimoza, and that Mimoza was prepared to testify and deny such a relationship. Br. 17. However, the record shows that an Albanian court which tried Hoxha in absentia found that the relationship continued. App. 73. In any event, as explained below, there was evidence of ill feelings between Krenar Hoxha and Ilmi Kasemi, regardless of the source.

[2] There is an evident translation error on page 143 of the appendix, which states that Daut arrived at “around 7:00 PM.” The actual version in Fetah Hoxha’s native language refers to “0700,” App. 142, a reference to 7:00 a.m. Other original documents and translations in the record confirm that, as is the European custom, the documents employ what Americans refer to as “military time” employing a 24-hour clock.

[3] Matilda said that the murders happened in her home at approximately 2 a.m. App. 115. Her uncle, Murat, who lived nearby, said he heard shots at 1:45 a.m. App. 150. Daut’s statement is illegible with respect to the time that Krenar allegedly first came to his house, App. 164, but Daut’s wife Bajame placed the time at around 3 a.m., App. 155. Thus, all of these statements present a coherent chronology, consistent with the finding of probable cause, that Krenar went to Daut’s house with the gun shortly after the murders.

[4] To be sure, there are possible inconsistencies in the original statements regarding the timing of Krenar’s second visit to Daut’s house and their trip to Fetah’s house to hide the gun. Daut said that Krenar returned to Daut’s house at 5 a.m. App. 164. Ardjana said that she heard Daut and Krenar speaking in the home at around 6:30 a.m., and then she tried to go back to sleep. App. 147. Fetah said that Daut came to Fetah’s home at 7 a.m., though Fetah was not paying much attention. App. 143. Bajame said that she “woke up around 6:00-6:30 a.m., I can’t exactly remember. I went to milk the cow and after 15-20 minutes the moment I was entering the house, I saw [Krenar] at the steps . . . .” App. 156. She said that upon entering the house, Daut and Ardjana woke up, but then went back to sleep. At that time, Bajame found the empty bag in the hallway.

These statements may certainly be reconciled. Forgiving for individuals’ ordinary imprecision in recalling specific times, it may be that Ardjana heard Daut and Krenar speaking before the two men went to Fetah’s house, and then Bajame saw Krenar leaving after he and Daut had returned and Daut had gone back to bed. But most significantly, the magistrate judge was not required to reconcile any inconsistencies. The statements corroborated each other, and were supported by independent evidence, to the extent that a finding of probable cause could be made, leaving for the ultimate trier of fact the task of determining the credible facts.

[5] According to Krenar Hoxha’s counsel, Daut now says that Marcell Chello gave him the gun, and that Chello is now dead. App. 357.

It is unclear when the recantations were made, though it certainly appears that the Albanian court after 2000 was aware of Daut’s recantation and perhaps others. According to the Albanian prosecutor, the recantations were “rejected by the judge since what was declared from them the first time was confirmed by the evidence found shortly after.” App. 123. The affidavits presented by Hoxha in the appendix, in which Daut, Bajame, and Ardjana formally recant their September 1996 statements, were not sworn until February 15, 2005, over eight years after the events at issue, and after the magistrate judge issued his ruling. App. 414, 420, 425. Moreover, the affidavits which were provided in the United States recanting the earlier statements bear inconsistencies of their own. For instance, the new affidavits of Bajame Hoxha (Daut’s wife) and Ardjana Hoxha (Daut’s sister) are oddly similar, to the point that both begin, “I am the sister of Daut Hoxha.” App. 420, 425.

[6] Questions concerning the judicial procedure in the requesting state and the treatment that might be accorded the fugitive in its courts after extradition are not proper matters for consideration by the certifying judicial officer, according to what the Second Circuit refers to as “substantial authority.” Ahmad v. Wigen, 910 F.2d 1063, 1072-73 (2d Cir. 1990). Considering the same issue in a slightly different context, the Court of Appeals for the District of Columbia Circuit said:

What we learn from [Neely v. Henkel, 180 U.S. 109 (1901)] is that a surrender of an American citizen by treaty for purposes of a foreign criminal proceeding is unimpaired by an absence in the foreign judicial system of safeguard in all respects equivalent to those constitutionally enjoined upon American trials.

Holmes v. Laird, 459 F.2d 1211, 1219 (D.C. Cir. 1972). Accord Pfeifer v. United States Bureau of Prisons, 468 F. Supp. 920 (S.D. Cal. 1979), aff’d, 615 F.2d 873 (9th Cir. 1980); Gallina v. Fraser, 177 F. Supp. 856, 866 (D. Conn. 1959), aff’d, 278 F.2d 77 (2d Cir. 1960).

[7] Hoxha cites Terlinden and Saroop, Br. 30-32, but gives them unduly short shrift. He notes this Court’s statement that the court should consider all relevant evidence, but then limits his review of the evidence primarily to the action of the fascist government in Albania in 1944. He ignores entirely the continuing actions of both the United States and Albania in observing the treaty, which the Courts in Terlinden and Saroop viewed as dispositive.

[8] In Saroop, this Court held the treaty with Trinidad and Tobago effective based on the established conduct of the nations (the point argued above), and in the alternative under principles of international comity. In Saroop, the High Court of Trinidad and Tobago directly addressed the validity of the treaty in the fugitive’s case and held that it was in force. This Court held that this judgment was entitled to recognition under principles of comity. This alternative ground also supports the decision in this case. While there has not been a judicial decree in Hoxha’s case in Albania with respect to the treaty, the highest Albanian court has elsewhere upheld the continued application of the treaty. Further, in this particular case, executive officials of that government have acted to enforce the treaty, and their view is entitled to deference as well under principles of comity. See Saroop, 109 F.3d at 169, citing Philadelphia Gear Corp. v. Philadelphia Gear de Mexico, S.A., 44 F.3d 187, 191 (3d Cir. 1994) (“Under the principle of international comity, a domestic court normally will give effect to executive, legislative, and judicial acts of a foreign nation.”).

[9] The United States has ratified this convention. See S. Exec. Rep. No. 101-30 (1990); Auguste v. Ridge, 395 F.3d 123, 130-32 (3d Cir. 2005) (describing ratification history of the Torture Convention).

[10] In Cornejo-Barreto, the original Ninth Circuit panel majority added hypothetically that, if the Secretary of State later decided to extradite Cornejo-Barreto, that decision would be reviewable in the district court pursuant to the APA. For the reasons stated below in this brief, the panel’s statement about the availability of APA review is incorrect as a matter of law, and, in any event, does not bind this Court; it was also dictum, given that the habeas petition under review was dismissed because the Secretary had not yet made her extradition decision. See id. at 1017 (Kozinski, J., concurring); Cornejo‑Barreto v. Siefert, 379 F.3d 1075, 1079 (9th Cir. 2004) (holding that prior panel’s “discussion is advisory and we are not bound by it”), vacated as moot Cornejo‑Barreto v. Siefert, 389 F.3d 1307 (9th Cir. 2004) (en banc) (noting mootness because of Mexico’s decision to withdraw its extradition request, which had dragged on for more than eight years in the U.S. courts).

[11] This Court has noted that the decision in Ogbudimkpa regarding habeas jurisdiction in the removal context has been legislatively overruled. See Kamara v. Attorney General, 420 F.3d 202, 209-10 (3d Cir. 2005).

[12] Also on the brief is Douglas Letter, Appellate Litigation Counsel, United States Department of Justice, Washington, D.C.



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