2003 WL 22670126 (9th Cir.)

 

For opinion see 400 F.3d 744, 381 F.3d 867, 360 F.3d 1061

 

United States Court of Appeals, Ninth Circuit.

 

Kulvir Singh BARAPIND, Appellant,

v.

Jerry J. ENOMOTO, United States Marshal for the Eastern District of Ca, Appellee.

 

No. 02-16944.

August 1, 2003.

 

Appeal from the United States District Court for the Eastern District of California, (CV-F-01-6215-OWW/SMS)

 

Petitioner Kulvir Singh Barapind's Reply Brief

 

Jagdip Singh Sekhon, Jagprit Singh Sekhon, Sekhon & Sekhon, 529 Commercial Street 3rd Floor, San Francisco, CA 94111-3005, Tel: (415) 394-1290, Fax: (415) 394-1293, Attorneys for Petitioner

 

*i TABLE OF CONTENTS

 

TABLE OF AUTHORITIES ... iii

 

INTRODUCTION ... 1

 

ARGUMENT ... 6

 

A. THE GOVERNMENT FAILS TO ADDRESS THE DEFICIENCIES IN ITS EVIDENCE, AND IMPLICITYLY ASKS THE COURT TO IGNORE THE CONTEXT OF THESE PROCEEDIGNS IN CONTRAVENTION OF GOVERNING LAW AND COMMON SENSE. ... 6

 

2. THE GOVERNMENT OF INDIA FAILED TO ESTABLISH PROBABLE CAUSE OF MR. BARPIND'S GUILT ... 13

 

a. The government of India's incompetent and unreliable evidence does not support a finding of probable cause and was explained away by Mr. Barapind's obliterating evidence. ... 13

 

i. CASE FIR NO. 89: The evidence does not establish that Mr. Barapind either murdered or entered into a conspiracy to murder Kulwant Kaur or aided and abetted in her murder. ... 13

 

ii. CASE FIR NO. 100 & 34: Given the context of these proceedings, the affidavits of the eyewitnesses stating that they never implicated Mr. Barapind explains away the Government of India's showing of probable cause based on these witnesses' alleged statements identifying Mr. Barapind as the perpetrator of the underlying offenses. ... 16

 

(a) Case FIR No. 100 ... 16

 

(b) Case FIR No. 34 ... 20

 

*ii B. ARTICLE VI OF THE 1931 TREATY BARS MR. BARAPIND'S EXTRADITION FOR THE OFFENSES AT ISSUE HERE. ... 23

 

1. THE GOVERNMENT OF INDIA INAPPROPRIATELY ATTEMPTS TO DRAG THIS COURT INTO A DEBATE REGARDING APPLICABILITY OF THE POLITICAL OFFENSE EXCEPTION TO INTERNATIONAL TERRORISM. ... 23

 

2. BECAUSE THE REQUISITION OF MR. BARAPIND'S SURRENDER IS TO PUNISH HIM FOR POLITICAL OFFENSES, HE CANNOT BE EXTRADITED ... 26

 

3. CASES FIR NO. 34 & 89 CONSTITUTE NON-EXTRADITABLE POLITICAL OFFENSE. ... 27

 

a. Case FIR No. 34 ... 27

 

b. Case FIR No. 89 ... 29

 

CONCLUSION ... 31

 

*iii TABLE OF AUTHORITIES

 

CASES:

 

Ahmad v. Wigen, 910 F.2d 1062 (2nd Cir. 1990) ... 5, 23, 24

 

Barapind v. Rogers, 1997 U.S. App. LEXIS 11532 (9th Cir. May 15, 1997) ... 3

 

Caplan v. Vokes, 649 F.2d 1336 (9th Cir. 1981) ... 26

 

Charlton v. Kelly, 229 U.S. 447 (1913) ... 17

 

Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988) ... 8

 

Collins v. Loisel, 259 U.S. 309 (1922) ... 18, 22

 

Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000) ... 11

 

Eain v. Wilkes, 641 F2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1980) ... 5, 23, 26

 

Emami v. United States District Court, 8345 F.2d 1444 (9th Cir. 1987) ... 7, 8

 

*iv Franks v. Delaware, 438 U.S. 154 (1978) ... 1, 19, 21

 

Glucksman v. Henkel, 221 U.S. 508 (1911) ... 18

 

Grin v. Shine, 187 U.S. 181 (1902) ... 16

 

Illinois v. Gates, 462 U.S. 213 (1983) ... 1, 18, 19, 22

 

In Matter of Extradition of Contreras, 800 F.Supp. 1462 (S.D. Tex. 1992) ... 12

 

In re Extradition of Platko, 213 F.Supp. 2d 1229 (S.D. Cal. 2002) ... 12

 

In re Oteizay Cortes, 136 U.S. 330 (1890) ... 14, 19

 

In re Petition of France for Extradition of Sauvage, 819 F.Supp. 896 (S.D. Cal. 1993) ... 12

 

Mainero v. Gregg, 164 F.3d 1199 (9th Cir. 1999) ... 12

 

McMullen v. INS, 788 F.2d 591 (9th Cir. 1986) ... 24, 25

 

*v McNamara v. Henkel, 226 U.S. 520 (1913) ... 16

 

Nye & Nissen v. United States, 336 U.S. 613 (1949) ... 15

 

Ornelas v. Ruiz, 161 U.S. 502 (1896) ... 5, 25, 28, 29, 30

 

Quinn v. Robinson 783 F.2d 776 (9th Cir. 1986) ... 3, 5, 18, 23, 24, 25, 27, 29, 30

 

Sakaguchi v. Kaulukukui, 520 F.2d 726 (9th Cir. 1975) ... 7

 

Sandhu v. Burke, 2000 U.S. Dist. Lexis 3584 (S.D.N.Y. 2000) ... 12

 

Spinelli v. United States, 393 U.S. 410 (1969) ... 18

 

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ... 26

 

United States v. Fernandez-Morris, 99 F.Supp.2d 1358 (S.D. Fla. 1999) ... 13

 

United States v. Leon, 468 U.S. 897 (1984) ... 2

 

*vi United States v. Menasche, 348 U.S. 528 (1955) ... 26

 

Zanazanian v. United States, 729 F.2d 624 (9th Cir. 1984) ... 7, 8, 9

 

UNITED STATES CODE:

 

18 U.S.C. § 3184 ... 18, 21

 

INDIAN CODE:

 

The Indian Penal Code section 108 ... 15, 16

 

TREATIES:

 

Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122 ... 21

 

UNITED STATES FEDERAL GOVERNMENT INFORMATION

 

U.S. Department of State's County Reports on Human Rights Practices for 1992: India, ... 28

 

*1 INTRODUCTION

The government of India has no choice but to ask this Court to "rubber stamp" Kulvir Singh Barapind's extradition to India. For if this Court exercises any meaningful review of the lower courts' decision certifying Mr. Barapind's surrender to India, the government's case collapses. [FN1]

 

    FN1. As this Court is aware, the Honorable Oliver W. Wagner sal both as the extradition magistrate pursuant to 18 U.S.C. § 3184 and the habeas judge. Accordingly, because of this posture, Mr. Barpaind submits that the

 

    habeas court's decision should be read as an explanation of the extradition magistrate's decision with respect to Mr. Barapind's challenges.

 

 

 

The Indian government bases its entire argument in support of affirming the lower courts' decision regarding probable cause on a deferential standard of review. A deferential standard of review to an extradition court playing a role akin to that of a United States magistrate reviewing a request for a warrant, however, does not preclude this Court from exercising its function as a Court of Appeals:

Deference to the magistrate, however, is not boundless. It is clear, first, that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware, 438 U.S. 154 (1978). Second, the courts must also insist that the magistrate purport to "perform his 'neutral and detached' function and not serve merely as a rubber stamp for the police." Aguilar v. Texas, supra, at 111. See Illinois v. Gates, supra at 239 ... Third, reviewing courts will not defer to a warrant based on an affidavit that does not "provide the magistrate with a substantial basis for determining *2 the existence of probable cause." Illinois v. Gates, 462 U.S., at 239. "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Ibid. See Aguilar v. Texas, supra, at 1 14-1 15; GiordeneUo v. United States, 357 U.S. 480 (1958); Nathanson v. United States, 290 U.S. 41 (1933). Even if the warrant application was supported by more than a "bare bones" affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistarte's probable-cause determination reflected an improper analysis of the totality of the circumstances, Illinois v. Gates, supra, at 238-239, or because the form of the warrant was improper in some respect.

United States v. Leon, 468 U.S. 897, 914-917 (1984). In this case, all the grounds that mandate scrutiny are present. The proof that the Government of India falsified evidence in its extradition request is overwhelming, resulting in the extradition court denying certification of three offenses. See Petitioner's Record of Excerpts, Volume I, Tab 5 at 76-85, 95-97; Petitioner's Principal Brief at 38-39; Amicus Curiae at 8-22. With regard to one of the crimes the extradition court certified Mr. Barapind's extradition, the evidence, even if believed, does not support a reasonable belief of his culpability. Petitioner's Principal Brief at 40-43. Finally, the extradition court was uneven in viewing the Indian government's evidence in the totality of the circumstances. The extradition court aptly contextualized Case FIR *3 No. 87 and denied extradition, yet at the same time, inexplicably failed to consider the same prevailing circumstances in Case FIR No.'s 34 and 100. See Petitioner's Principal Brief at 49-51; 53.

Moreover, the extradition court did not exercise its role as a finder of fact in a manner that warrants deference. See Out tin v. Robinson, 783 F.2d 776, 790-791, 815 (9th Cir. 1986). The extradition court in two of the offenses in question here, expressly declined to resolve issues of credibility necessary to evaluate the Indian government's probable cause showing. Petitioner's Record of Excerpts, Volume I, Tab 5 at 86: 22-28; 87: 1-9; 88: 23-28; 89: 1-4; 94: 18-28; 95: 1-15. Consequently in determining whether there is any credible evidence submitted by the Indian government supporting probable cause this Court will not be disturbing any affirmative findings of the extradition court. Fn light of substantiated allegations of fabrication and the incomplete nature of the extradition court's analysis, the standard of review does not insulate its evidence from the scrutiny of this Court. And rightly so, as this Court has already acknowledged during the course of these proceedings that Mr. Barapind's life may very well be at stake. Barapind v. Rogers, 96-*4 55541, 1997 U.S. App. LEXIS 1 1532, at *2-*3 (9th Cir. May 15, 1997).

In defense of the extradition court's application of the political offense exception to Cases FIR No.'s 89 and 34, the government again relies on distraction. The government argues that offenses for which Mr. Barapind seeks exception to extradition should be analyzed as acts of international terrorism where the accused intentionally targeted a civilian population, and that affording Mr. Barapind Article VI's protection under these circumstances may lead to granting asylum to a foreign terrorist who commits an act similar to that of the Oklahoma City bomber. Brief for Appellee at 31-42.

The government's argument is ridiculous. Cases FIR No. 89 and 34 involved attacks targeting armed political opponents in during an uprising. Record of Excerpts, Volume II, Tab 15, Exhibits D and K. A civilian bystander was a victim in Case FIR No. 89. Id. Exhibit D. However, her killing is not attributable to Mr. Barapind, as the evidence established it was not intended and wholly occurred outside the presence of Mr. Barapind. Id. The government's obfuscation notwithstanding, Cases FIR No.'s 89 and 34 did not involve international terrorism or the indiscriminate murder of *5 civilians for the purposes of creating social chaos. Cf. Ouinn v. Robinson, 783 F.2d 776 (9th Cir. 1986)(American citizen relator accused of placing bomb on bus in England targeting civilians where there was no political uprising); Eain v. Wilkes, 641 F2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1980)(Non-Israeli citizen placing bomb on bus in Israel targeting civilians in order to create social chaos); Ahmad v. Wigen, F.2d 1062 (2nd Cir. 1990)(Same). As a result the cases warrant a straightforward application of the American incidence test to determine extraditability. See Ornelas v. Ruiz, 161 U.S. 502 (1895).

Application of the governing law to Mr. Barapind's case establishes that there was not probable cause to support a reasonable belief that he committed any of the offenses at issue before this Court, and additionally Article VI excepts from extradition Cases FIR No.'s 89 and 34. The lower courts' decision to the contrary should be reversed.

*6 ARGUMENT

A. THE GOVERNMENT FAILS TO ADDRESS THE DEFICIENCIES IN ITS EVIDENCE, AND IMPLICITYLY ASKS THE COURT TO IGNORE THE CONTEXT OF THESE PROCEEDIGNS IN CONTRAVENTION OF GOVERNING LAW AND COMMON SENSE.

A remarkable feature of the Indian government's extradition request is that the proffer of probable cause in each case is based exclusively on a single piece of paper that it fails to explain. Petitioner's Record of Excerpts, Volume II, Tab 15, Exhibit A-1, B-1, C-1, D-1, E-1, F-1, G-1, H-1, J-1, K-1, L-1. In each case, the government's probable cause rests on a singular document initially identified as an "affidavit". Id. Each "affidavit", however, is facially not what the government purports. The document is typed in English, not the language of the affiant, and it is neither signed nor dated. Id. A year after the submission of the affidavits, ostensibly in response to this problem, the government recharacterized each "affidavit" as an "accurate English translation of [a] statement given in Punjabi to the magistrate or entered in the case diary of an investigating officer." Petitioner's Record of Excerpts, Volume II, Tab 13 at 2. The government's recharacterization, however, conflicts facially with the evidence, which bore the title "affidavit" with places for the affiant's signature and a date. Moreover, there were no accompanying certificates of translation to *7 corroborate the government's recasting of the evidence. See Petitioner's Principal Brief at 29-39.

In its brief the government nowhere acknowledges or explains the deficiencies of the evidence or how the resulting inconsistent representations impact the evidence's competence and reliability. The government simply reverts to callings its evidence "affidavits", and implicitly urges this Court to ignore the inconsistent explanations as to what exactly is its evidence and to find that it is reliable and competent because this Court has held that hearsay statements can establish probable cause. See Brief for Appellee at 21, fn. 16 ("It is clear that reliance on the documents in this case is consistent with the law and is more reliable than, for instance, the documents relied upon in Zanazanian and Emairn.") However, in this case, unlike in the previous cases where this Court has credited hearsay statements as being reliable, the Indian government has failed to explain the nature of its evidence. Cf. Sakaguchi v. Kaulukukui, 520 F.2d 726 (9th Cir. 1975) (Overwhelming hearsay evidence established probable cause); Zanazanian v. USA, 129 F.2d 624 (9th Cir. 1984) (MuItiple police reports detailing accomplices confessions established probable cause); Emami v. United States District Court, 8345 F.2d 1444 (9th Cir. 1987)(Sworn affidavit by prosecutor containing fifty-two pages of summaries of witness statements *8 established probable cause); Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988)(Ten witness statements translated from Chinese to English establish probable cause).

Thus the government's submission lacks all the identifiable characteristics that may provide an indicia of reliability and that would counsel in favor of deeming its hearsay statements competent and reliable. See Zanazanian (Detail and consistency of multiple police reports enough to warrant probable cause finding); Ewami v. United States District Court, 8345 F.2d 1444 (9th Cir. 1987)(Detail of prosecutor's lengthy summary of investigation established probable cause); Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988)(Multiple witness statements of colleagues established probable cause).

The Indian government had ample opportunity to address the deficiencies in its evidence. Record of Excerpts, Tab 5 at 83: 26-28; 84: 1-3. A contemporaneous certification of translation, or better yet, the production of the original documents may have filled the gap in the evidence, at least for an initial prima facie showing of probable cause. However, in this case, both are glaringly absent and, and remarkably, despite compelling allegations of fabrication, without any explanation from the government. See also Petitioner's Record of Exceipt, Tab 5 at 83: 26-28, 84:1-3 (Extradition *9 court concluding that Indian's government failure to offer explanations regarding conflicts in evidence undermined showing of probable cause); Transcript of Proceedings (T.) at 528: 9-12.

Given the corrupt and chillingly brutal conduct of the Indian government in this case -- a context radically different to that of Zanazanian and its progeny where the context counseled in favor and not against probable cause - the government's silence is deafening. The extradition court in two of the cases underlying the extradition request in which certification was denied did so based on evidence of fabrication. Petitioner's Record of Excerpts, Volume I, Tab 5 at 76-84; see Petitioner's Brief at 38-39; Amicus Brief at 8-14. In a third case where certification was denied the extradition magistrate concluded that the Indian government tortured a witness to death. Id. at 95-97; see Petitioner's Brief at 38-39; Amicus Brief at 12-14. These findings were made against a backdrop of evidence that the Indian government engaged in a pattern and practice of such conduct. Id; See Amicus Brief at 15-22.

The attempt by the Indian government to fill the gap in its probable cause showing and answer charges of fabrication through a second round of documents collected in 1998 has had the opposite of its intended effect. To accept its 1998 submission as an adequate substitute for the *10 originals or copies of originals of its initial submission, the Court would have to accept the following claim: originals of its initial submission do exist, however, the government has chosen not to produce the originals or copies of those "affidavits" but instead engaged in the far more troublesome and far less probative exercise of securing statements from the alleged affiants to "verify" the existence of the originals. Indeed, in response to a direct inquiry by the extradition court, the government of India's explanation before the extradition court of the 1998 submission in lieu of the missing originals is wholly inadequate:

Your Honor, we don't know the answer to - well, I guess the answer is it has not been ascertained whether they exist, at least to our knowledge. When the defect was brought to the Indian government's attention, what the Indian government did was procure the new photograph identifications. 1 don't know if that means that the original photos had been misplaced and the original statements misplaced or that India thought that would be simply sufficient to satisfy a requirement that - our point is it doesn't exist in the Treaty, but nonetheless is sufficient to support some sort of notion that there be signed photographs. So I don't know why India did it the way it did it.

T. at 528: 9-31 (Emphasis supplied). This implausibility is fatally compounded by the fact that the 1998 submissions purport to be translations of original statements, but the translations contain original signatures of the alleged affiants. Petitioner's Record of Excerpts, Tab 12.

*11 The Indian government admittedly has no explanations. Id. Ironically, the Indian government's very own witnesses, however, do. Each of the witnesses who was not in the employ or associated with the government of India, other than a witness who its security forces tortured to death, averred that they had never implicated Mr. Barapind as a perpetrator of any offense. Petitioner Record of Excerpts, Volume II, Tabs 6-11. They further uniformly stated that the statement attributed to them by the Indian government was a fabrication. Id. In some instances the government's witnesses alleged that the Indian security forces had forcibly secured their signatures on various documents, some blank and others that they did not have the opportunity to read. Id., Tabs 8-9. Case FIR No. 100 involves such abuse. Id., Tab 9.

It is out of step with the law and counter to common sense to certify Mr. Barapind's extradition based exclusively on a singular, indiscernible typed piece of paper, when it has been established that the requesting government has manufactured and misrepresented such documents as witness statements against Mr. Barapind; and, moreover, in a wider context, has a pattern of practice of such fabrication. See Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1008 (9th Cir. 2000)(Approving of district court "isolating] any possible taint the alleged tortured could have on the *12 evidence supporting probable cause determination [and] considering] the sufficiency of the evidence without challenged confessions); Mainero v. Gregg, 164 F.3d 1199, 1206-1209 (9th Cir. 1999)(Evaluating allegations of torture, and determining there exists ample independent showing of probable cause supported by evidence "independent of statements allegedly obtained through torture."); In Matter of Extradition of Contreras, 800 F.Supp. 1462 (S.D. Tex. 1992)(Refusing to afford government's statements any weight in light of recantations submitted by relator, and evaluating probable cause based on untainted evidence); Sandhu v. Burke, 2000 U.S. Dist. Lexis 3584 at *45-*46 (Due to allegations of fabrication against requesting government, evaluating probable cause based on physical evidence). Because the government's "affidavits" are not competent and are unreliable, and represent the only evidence in each of the respective cases, the extradition court should have refused to certify Mr. Barapind's extradition on the grounds that the government failed to establish probable cause. See In re Extradition of Platko, 213 F.Supp. 2d 1229, 1239-1240 (S.D. Cal. 2002)(Prosecutors allegations not supported by affidavits fails to establish probable cause); In re Petition of France for Extradition of Sauvage, 819 F.Supp. 896, 902-903 (S.D. Cal. 1993) (Refusal to certify extradition due to lack of reliable independent evidence supporting prosecutor's affidavit); *13 United States v. Fernandez-Morris, 99 F.Supp.2d 1358, 1368-69 (S.D. Fla. 1999)(same).

Although Mr. Barapind's appeal is readily resolvable in his favor based on the facial incompetence and unreliability of the government's evidence, he was able to secure rebuttal evidence that mandates reversing the decision of the lower courts certifying his surrender to India.

2. THE GOVERNMENT OF INDIA FAILED TO ESTABLISH PROBABLE CAUSE OF MR. BARPIND'S GUILT.

a. The government of India's incompetent and unreliable evidence does not support a finding of probable cause and was explained away by Mr. Barapind's obliterating evidence.

i. CASE FIR NO. 89: The evidence does not establish that Mr. Barapind either murdered or entered into a conspiracy to murder Kulwant Kaur or aided and abetted in her murder.

Case FIR No. 89 involved the killing of three government counter-insurgents -- brothers Karamjit Singh, Paramjit Singh and Kashmir Singh -- and Kulwant Kaur, the wife of counterinsurgent Kashmir Singh. The extradition court certified Mr. Barapind's surrender for the murder of Ms. Kaur. The habeas court amended the certification for conspiracy to murder Ms. Kaur. See Petitioner's Principal Brief at 40-43; see Petitioner's *14 Record of Excerpts, Volume I, Tab 2 at 14: 13-15. The government now suggests that Mr. Barapind's extradition is certifiable on the grounds that he aided and abetted in Ms. Kaur's murder. Brief for Appellee at 22-23. [FN2] The extradition court's factual findings, however, preclude a determination that there is probable cause of Mr. Barapind either murdering Ms. Kaur, or conspiring or aiding and abetting in her murder. See In re Oteizay Cot-res, 136 U.S. 330, 334 (1890) (Competent legal evidence required to establish the relator committed crime for which he is accused in order to certify extradition).

 

    FN2. The government's distinction between conspiracy and aiding and abetting, although astray, is oflittle significance here because in either case the evidence does not establish that Mr. Barapind and his alleged cohorts had a common intention to murder Kulwant Kaur.

 

 

 

The extradition court's concluded that the perpetrators of the offense shot dead Paramjit Singh and Kashmir Singh in the presence of their parents in the upstairs of their home. They then ascertained the whereabouts of Karamjit Singh from his mother. The counterinsurgents1 mother stated that Karammjit was in the downstairs of the home. Mr. Barapind remained with the counterinsurgents' parents while the rest of the perpetrators allegedly went to the downstairs of the home searching for the remaining counterinsurgent Karamjit Singh. "Kulwant [with Karamjit Singh] was killed when Barapind's accomplices allegedly broke into her bedroom in *15 order to kill her husband."' Petitioner's Record of Excerpts, Tab 5 at 111: 27-28; 112: 1 (Emphasis supplied).

The government now appears to concede that Mr. Barapind alleged actions establish that he did not murder Ms. Kaur. The factual findings, however, also establish that there was no conspiracy amongst the perpetrators to murder. The conspiracy was to murder the counterinsurgents. Moreover, the extradition court's findings do not support a probable cause finding that Mr. Barapind aided and abetted in Ms. Kaur's murder because there was no evidence of an intent on behalf of Mr. Barapind or any one of the other alleged perpetrators to murder Ms. Kaur. They "broke into the bedroom in order to kill her husband." Id; Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)(Showing of aiding and abetting requires that accused associate himself with the venture, "that he participate in it as is something that he wishes to bring about, that he seek by his action to make it succeed."). The Indian Penal Code similarly requires such a showing of intent to conclude that an individual was an abettor. [FN3] Accordingly, even if *16 the government's allegations are believed, the evidence does not establish probable cause that Mr. Barapind murdered, conspired to murder, or aided and abetted in Ms. Kaur's murder. See McNamara v. Henkel, 226 U.S. 520, 525 (1913)(Inference proper only if evidence goes unexplained). Therefore, the extradition court erred in certifying Mr. Barapind's extradition for the murder of Kulwant Kaur. Grin v. Shine, 187 U.S. 1 81, 197 (1902)(Evidence needs to establish prima facie case of criminality to warrant certification).

 

    FN3. The Indian Penal Code similarly defines an abettor under its § 108:

 

 

    A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or

 

    knowledge as that of the abettor.

 

 

    IPC §108.

 

 

 

ii. CASES FIR NO. 100 & 34: Given the context of these proceedings, the affidavits of the eyewitnesses stating that they never implicated Mr. Barapind explains away the Government of India's showing of probable cause based on these witnesses' alleged statements identifying Mr. Barapind as the perpetrator of the underlying offenses.

(a) Case FIR No. 100

As in every offense involving alleged statements on behalf of witnesses who were not associated with the government of India, in Case FIR No. 100 Mr. Barapind presented affidavits on behalf of Makhan Ram and Kulwant Singh disavowing the statements presented by the government of India on its behalf allegedly implicating him. Petitioner's Record of Excerpts, Volume II, Tab 9 & 10.

*17 The extradition court determined that Mr. Barapind's evidence did not explain away the evidence supporting probable cause in Case FIR No. 100, because a trial is necessary to more completely analyze the veracity of the competing evidence. Brief tor Appellee at 25-26. [FN4] The government now asks the Court to affirm the extradition court's decision in deference to its role as the fact finder.

 

    FN4. The government seems to implicitly argue either that the extradition court did not consider Mr. Barapind's rebuttal evidence in Case FIR No.'s 89 and 34 or that it should not have considered it. However, it is clear by the Fact that the extradition court concluded that Mr. Barapind's evidence directly "explained away" that of the government of India's and through its detailed weighing of the rebuttal evidence, that the extradition court considered it admissible explanatory evidence. Petitioner's Record of Excerpts, Tab 5 at 85-89; 93-95; see also Tab 2 at 12: 12-18; Tab 2 at 13: 15-28 (Extradition court considered and weighed evidence); See also Charlton v. Kelly, 229 U.S. 447, 461 (1913)(Rebutal evidence "explaining matters referred to by the witnesses for the Government" is admissible rebuttal evidence.); Franks v. Delaware, 438 U.S. 154 (1978)(Evidence that government has fabricated evidence in support of probable cause showing must be weighed.)

 

 

 

The extradition court's status as a fact tinder, however, was not implicated by this case. It is universally true that a trial would help any magistrate to more completely explicate competing evidence in evaluating probable cause. However, an extradition court is required to determine whether a requesting government has met its burden for establishing probable cause of a relator's guilt warranting a certification of extradition, and in the exercise of its function, also determine whether the relator's rebuttal evidence explains away the requesting government's evidence. See *18 18 U.S.C. § 3 184 (Extradition court must hear and consider evidence of criminality before relator's extradition may be certified); Collins v. Loisel, 259 U.S. 309, 314-316 (1922); Clucksman v. Henkel, 221 U.S. 508, 512 (191 1). As has been oft repeated, including by the Indian government, the role is not unlike that played by a United States district court magistrate when considering whether to issue a search warrant. See Spinelli v. United States, 393 U.S. 410, 419 (1969)(Magistrates duty to determine probable cause); Illinois v. Gates, 462 U.S. 213, 236 (1983)(same).

The responsibility for such a determination falls squarely on the extradition court. See Oninn v. Robinson, 783 F.2d at 791, 815. And it is by virtue of the extradition court fulfilling its judicial responsibility that appellate courts afford its findings deferential standard of review. Id. at 790-791.

However, here, despite the fact that the government's defense of the extradition court's decision relies entirely on granting its findings deference, the extradition court patently abrogated its judicial function by concluding it could not weigh the competing evidence. Petitioner's Record of Excerpts, Volume I, Tab 5 at 88: 23-28; 89: 1-4. The extradition court simply punted.

*19 No less important than the fact that extradition court declined to make a finding, are the reasons it provided for not so doing. The extradition court concluded that the evidence was a wash, and that "the competence of India's probable cause evidence requires a trial to resolve the existing material credibility disputes.1' Record of Excerpts, Tab 5 at 89: 1-3. The fact that the extradition court held Makhan Rain's and Kulwant Singh's affidavits submitted by Mr. Barapind materially upended the government of India's evidence so that it could not conclude the Indian government's evidence was competent, established that in the face of Mr. Barapind's evidence, the government of India failed to meet its burden of providing competent and reliable evidence in support of probable cause. In re Oteizay Cortes, 136 U.S. 330, 334 (1890) (Competent legal evidence required to support probable cause); see Franks v. Delaware, 438 U.S. 154 (1978)(Probable cause not established if accused presents material evidence of fabrications, unless untainted evidence enough to meet government's burden or government provides explanation). The affidavits of Makhan Ram and Kulwant Singh submitted by Mr. Barapind declaring that the already teetering Indian government submissions were fabrications, in the context of these proceedings, in fact, compelled such a finding. See Petitioner's Principal Brief at 44-49; Amicus Curiae Brief at 8-22; see also Illinois v. *20 Gates, 462 U.S. 212 (1983)(Probable cause must be evaluated in the totality of the circumstances). The extradition court thus erred by certifying Mr. Barapind's extradition in Case FIR No. 100.

(b) Case FIR No. 34

Case FIR No. 34 involves the weakest feint at probable cause by the Indian government. In this case its showing relies on an unsigned, undated English document titled "affidavit" assigned to a policeman, who purportedly states that Nirmal Singh identified Mr. Barapind as the perpetrator of the offense. Petitioner's Record of Exceipts, Volume II, Tab 15, Exhibit K. Unlike the other cases comprising the extradition request, the Indian government did not attempt to bolster FIR No. 34 with, albeit inherently flawed, photograph identifications and a misguided 1998 supplemental statement. Id.

As the extradition court astutely noted, Mr. Barapind presentes the only affidavit of an eyewitness of the underlying offense. Petitioner's Record of Excerpts, Volume I, Tab 5 at 93-95. In that affidavit Nirmal Singh denied ever identifying Mr. Barapind as a perpetrator of the underlying offense. Petitioner's Record of Excerpts, Volume II, Tab 11.

The extradition court, nonetheless, certified Mr. Barapind's extradition for the offense. In so doing, like in Case FIR No. 100, the *21 extradition court failed to perform its judicial function. The extradition couit concluded that the effect of Mr. Barapind's evidence was that he could not make a credibility finding regarding the evidence without a trial. Record of Excerpts, Volume I, Tab 5 at 94: 18-28; 95: 1-15. However, as previously discussed, the burden of proof was the government of India's. See 18 U.S.C. § 3 184; Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122, Art. IX. By virtue of the fact that the extradition court could not find that the scales tipped in favor of its evidence, it follows that the government failed to establish probable cause of Mr. Barapind's guilt for the underlying offense. See Franks v. Delaware, 438 U.S. I 54 (1978)(Warrant cannot issue unless government establishes probable cause through untainted evidence, or government presents evidence for examination).

As pointed out in Mr. Barpaind's principal brief, the habeas court's rational for upholding its decision is based on a bolstering of the Indian government's evidence that has no support in the record. The habeas court revealed that it mistakenly believed that "SI Pal, Nirmal Singh identifies Mr. Barapind through a photograph." Petitioner's Record of Excerpts, Volume I, Tab 2 at 13: 13-14. The habeas court misread the *22 record. "SI Pal" nowhere states that "Nirmal Singh identified Mr. Barapind through a photograph."

Ultimately, in the context of these proceedings, a finding that a facially precarious statement by an Indian police officer alleging Nirmal Singh identified Mr. Barapind as a perpetrator, could still be credited after the submission of a 'ksworn, notarized authenticated affidavit of Nirmal Singh," would be in a word, unthinkable. See Petitioner's Principal Brief at 51-54; Amicus Curiae Brief at 8-22; Illinois v. Gates, 462 U.S. 213 (1983)(Magistrate must evaluate probable cause by examining totality of circumstances.) The extradition court thus erred by certifying Mr. Barapind's extradition for the offenses alleged in Case FIR No. 34. See Collins v. Loisel, 259 U.S. 309 (1922)(Evidence must establish probable cause of relator's guilt to support certification of extradition).

*23 B. ARTICLE VI OF THE 1931 TREATY BARS MR. BARAPIND'S EXTRADITION FOR THE OFFENSES AT ISSUE HERE.

1. THE GOVERNMENT OF INDIA INAPPROPRIATELY ATTEMPTS TO DRAG THIS COURT INTO A DEBATE REGARDING APPLICABILITY OF THE POLITICAL OFFENSE EXCEPTION TO INTERNATIONAL TERRORISM.

As noted by amid, the offenses in this case do not involve international terrorism. Cf. Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986); Earn v. Wilkes, 641 F2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1980); Ahmad v. Wigen, 910 F.2d 1062 (2nd Cir. 1990). Thus, the issue of the application of the political offense exception to cases involving international terrorism, and the viability of the American incidence test to such acts, is not before the court. The Indian government, nevertheless, insists on dragging this Court into a debate as to the efficacy of the American incidence test that was articulated by this Court in Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) and its sister court in Eain v. Wilkes, 641 F2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1980), where the courts were focused on the issue of international terrorism. Brief for Appellee at 31-42.

The debate is a distraction. None of the cases comprising this extradition request involve the placing of a bomb on a bus or an indiscriminate killing of civilians for the purposes of promoting social chaos. Cf. Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986); *24Eain v. Wilkes, 641 F2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1980); Ahmad v. Wigen, 910 F.2d 1062 (2nd Cir. 1990).

Equally astray is the government's argument that Ouinn has been discredited by McMnllen v. INS, 788 F.2d 591 (9th Cir. 1986). Brief for Appellee at 35- 36. McMullen involved an Irish national's eligibility for asylum and withholding of deportation and whether he was barred from relief as a result of committing serious crimes that were not political offenses. Id. at 593-94. The McMullen court recognized that in the 91'1 Circuit the American incidence test prevailed in extradition proceedings, but did not adopt it for purposes of evaluating whether a non-citizen was barred from relief under the Immigration and Nationality Act due to committing a serious non-political crime:

We conclude that McMullen's analysis puts too much weight on the definition of political offenses in extradition cases because, although it may serve as a guide, the definition does not control our analysis of political offense under § 243(h)(2)(C). When extradition is the issue, the attempt to remove an individual from the requested country is initiated at the specific request of another sovereign, whom the individual contends is seeking to extradite him solely in order to prosecute him for political beliefs. Thus, the analysis in an extradition case turns on the language of the particular treaty, while the political offense analysis in withholding of deportation cases turns on a single standard - the Convention and Protocol.

In addition, in contrast to extradition, deportation is a matter solely between the United States government and the individual seeking withholding of deportation. No other sovereign is *25 involved. The question, therefore, is whether the individual has committed a criminal act that puts him outside the statutory provisions for withholding of deportation under section 243, an act which Congress has determined makes the individual an "undesirable" in the eyes of the law. Moreover, the individual need not be deported to any country specifically seeking to extradite him; all the United States seeks is to expel him form its own borders. Thus, we find ourselves unencumbered by the concerns we expressed in Quinn, 783 F.2d at 804-05 (dicta), that we should be careful not to interfere with political processes in other cultures by extraditing individuals merely because they have committed acts that deeply offend civilized notions of decency and morality. Id. at 793 n.11. When we deport an individual we are not "interfering with any internal struggle" of another nation. Id. at 806 (dicta) (emphasis in original).

McMullen v. INS, 788 F.2d 591, 596 (9th Cir. 1986). Thus, the MeMullen court guided by principles of Chevron deference adopted the United States Department of Justice's approach to evaluating political offenses in the course of adjudicating asylum and withholding of deportation claims, but in no way chipped at Quinn's applicability in the realm of extradition.

In this case, ultimately, the error in the lower courts' decision in its application of the political offense exception was not its adoption of an incorrect test, but that in its application of the incidence test it misinterpreted the record and failed to consider all the relevant evidence. A consideration of all the relevant factors in applying the political offense exception outlined in Ornelas v. Ruiz, 161 U.S. 502 (1896), endorsed both by the Quinn and *26 Eain courts, establishes that Case FIR No.'s 89 and 34 were both excepted from extradition under Article VI of the governing treaty.

2. BECAUSE THE REQUISITION OF MR. BARAPIND'S SURRENDER IS TO PUNISH HIM FOR POLITICAL OFFENSES, HE CANNOT BE EXTRADITED.

The Indian government does not offer an interpretation of Article VI's second clause encompassing the "requisition for his surrender." However, interpretation of Article VI's second clause is required so it is not "rendered superfluous, void or insignificant." TRW Inc. v. Andrews, 534 U.S. 19 (2001); see also United States v. Menasche, 348 U.S. 528, 538-39 (1955) (same). Indeed, "the limitations provision of the treaty, no less than any found in domestic law, represents an important right of the accused." Caplan v. Yokes, 649 F.2d 1336, fn. 7 (9th Cir. 1981).

The only viable interpretation of the clause is to interpret it as referring to the extradition request or, more narrowly, to the offense as opposed to the particular crimes that may comprise it. See Petitioner's Principal Brief at 56- 60. And in either instance, the second clause of the request requires that this Court conclude that the certification of Mr. Barapind's extradition was incorrect and should be reversed. Id.

*27 3. CASES FIR NO. 34 & 89 CONSTITUTE NON-EXTRADITABLE POLITICAL OFFENSE.

a. Case FIR No. 34

The government argues that the mere fact that the victims in Case FIR No. 34 were a former government official and members of the Indian security forces does not qualify it as a political offense. Brief for Appellee at 44. The government is in fact correct in that the identity of the victims is not dispositive in determining whether or not an offense is political. See Quinn v. Robinson, 783 F.2d 809-810 (li[A] number of factors, though not necessary to the nexus determination, may play a part.1') However, the evidence before the extradition court was not limited to the identity of the victims. The perpetrators of the offense were Sikh militant insurgents of the Khalistan Commando Force ("KCF"), three of whom are now dead, who were attempting to liberate the Punjab from the control of the Indian government. See Petitioner's Principal Brief at 60-63; Petitioner's Record of Excerpts, Volume II, Tab 15, Exhibit K at 10.The victims were armed opponents of the KCF's cause. Petitioner's Record of Excerpts, Volume II, Tab 15 at 9.The attack was similar to others by Sikh militants directed at its opponents, as evidenced by the fact that the former member of the legislative assembly was being protected by the Indian security forces. T. *28 at 53: 12-18; T. at 264: 12-21; see Petitioner's Record of Excerpts, Volume II, Tab 15, Exhibits J and L; see also U.S. Department oj Stale's Country Reports on Human Rights Practices for 1992: India at 1134-35. Moreover, the KCF assailants collected the arms and ammunition of the victims of the offense, and nothing else, before fleeing the scene. Petitioner's Record of Excerpts, Volume II, Tab 15, Exhibit K at 9. Finally, the offense was charged under the Terrorists and Disruptive Activities (Prevention) Act, which criminalizes offenses against the Indian state. Id. at 1; See Petitioner's Principal Brief at 60-63.

The extradition court failed to consider or even make mention of all these factors. These factors, however, establish that "character of the foray, the mode of attack, the persons killed or captured, and the kind of property taken or destroyed ... was a movement in aid of a political revolt, an insurrection or a civil war." Ornelas v. Ruiz, 161 U.S. at 512. There is no evidence that militates against finding that the offenses fall under Article VI's protection, and thus Case FIR No. 34 is a non-extraditable offense. Id. at 511-512 (Evidence that perpetrators, in addition to attacking military personnel, indiscriminately attacked and robbed civilians, kidnapping three, before fleeing the country with plunder did not compel finding that the offense was political, despite claims by perpetrators that they sought *29 overthrow of Mexican government.); Quinn v. Robinson, 783 F.2d 776, 783-84 (Absence evidence to the contrary, offenses that are facially political are non-extraditable political offenses.)

b. Case FIR No. 89

The extradition court concluded that Case FIR No. 89 constituted a political offense but that Article VI's protection did not extend to Kulwant Kaur, who was not a counterinsurgent. Petitioner's Record of Excerpts, Volume I, Tab 5 at 112-113. Because the offense was presumptively political, to remove Mr. Barapind from Article VI's protection, the lower court had to rely on evidence that rebutted or "negatived" the applicability of the exception. See Ornelas v. Ruiz, 161 U.S. at 511; Quirni v. Robinson, 783 F.2d 776, 783-84.

None of Mr. Barapind's actions evidence a non-political intent as there is zero evidence that Mr. Barapind did anything to harm or that he intended to harm Kulwant Kaur or any other of the civilians in the home. [FN5] To the contrary, the government's own evidence suggests that Mr. Barapind's intent was to protect civilian lives in light of the fact that he did not harm the counterinsurgents' parents. The government in its brief does *30 not identify any evidence that would warrant not granting Mr. Barapind Article VI protection if there is a showing that there is probable cause to establish his criminal guilt for Ms. Kaur's death. [FN6]

 

    FN5. The extradition court itself found the fact that family members were not harmed in other cases a significant factor in its application of the political offense exception. Petitioner's Record of Excerpts. Volume I, Tab 5 at 113: 14-16. He. however, incorrectly attributed Ms. Kaur killing to Mr. B;irapmd.

 

 

 

    FN6. The government did seem to imply that the killing of Ms. Kaur was a "wanton and premeditated attack," Brief of Appellee at 45. However, as discussed herein, the government's position is not supported by the record.

 

 

 

The only evidence identified by the lower courts is based on a misreading of the record. The district court, justifying its certification when it presided as the extradition court, stated that the fact that the murder of the counterinsurgents was related to a "family dispute" removed it from the scope of Article VI. Petitioner's Record of Excerpts, Volume I, Tab 2 at 16: 1-6. However, as explained in Mr. Barapind's principal brief, the lower count was flat wrong. There was no evidence of a family dispute being an impetus for the attack.

The offense was political. Petitioner's Record of Excerpts, Volume I, Tab 5 at 110-113. The evidence does not support a finding that Mr. Barapind exhibited any conduct that would support stripping him of Article VI's exception to extradition, despite Kulwant Kaur's death during the course of the offense. Accordingly, the certification of Mr. Barapind's extradition for Kulwant Kaur's death was incorrect. See Ornelas v. Ruiz, 161 U.S. at 511; Quinn v. Robinson, 783 F.2d 776, 783-84.

*31 CONCLUSION

For the set forth above and in his principal brief, appellant Kulvir Singh Barapind requests that this Court reverse the district court's dismissal of his petition for writ of habeas corpus, and an order directing the district court vacate the extradition magistrate's certification of his extradition to India.