2003 WL 22670116 (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.

April 9, 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 Principal 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 ... iv

 

INTRODUCTION ... 1

 

STATEMENT OF JURISDICTION ... 4

 

STATEMENT OF THE ISSUES ... 5

 

STATEMENT OF THE CASE ... 8

 

STATEMENT OF FACTS ... 11

 

A. HISTORICAL & POLITICAL CONTEXT EVIDENCE POLTICAL UPRISING ... 11

 

B. KULVIR SINGH BARAPIND ... 13

 

C. ASYLUM PROCEEDINGS ... 15

 

D. EXTRADITION PROCEEDINGS ... 15

 

SUMMARY OF ARGUMENT ... 19

 

A. The Indian Government Failed to Establish Probable Cause. ... 23

 

B. Mr. Barapind is not Extraditable under Article VI of the Treaty. ... 25

 

ARGUMENT ... 24

 

A. STANDARD OF REVIEW ... 24

 

B. UNITED STATES EXTRADITION PROCEDURES ... 26

 

C. THE EVIDENCE DID NOT ESTABLISH PROBABLE CAUSE OF MR. BARAPIND'S GUILT FOR ANY OF THE UNDERLYING OFFENSES ... 28

 

1. Applicable Legal Standards ... 28

 

2. The Government of India's evidence is incompetent and too unreliable to support a showing of probable cause ... 28

 

*ii a. The Government of India's evidence was indiscernible and fatally inconsistent. ... 29

 

i. The Government of India's 1994 submission ... 29

 

ii. The Government's unavailing 1995 explanation of its 1994 submission ... 31

 

iii. The Government of India's misguided 1998 evidence ... 31

 

b. The extradition court erred by not finding that the evidence was incompetent and too unreliable to support a finding of probable cause, given the context of these proceedings ... 32

 

i. Irreconcilable inconsistencies regarding the 1994 submission required that the Government of India produce the originals or copies of the originals to establish that the evidence in the case was competent and reliable ... 32

 

ii. The Government of India's evidence lacks an indicia of reliability ... 36

 

iii. The circumstances of this case do not support lowering the bar for establishing probable cause ... 38

 

D. EVEN IF THE INDIAN GOVERNMENT'S EVIDENCE IS DEEMED COMPETENT AND RELIABLE, IT STILL DOES NOT ESTABLISH THAT MR. BARAPIND PARTICIPATED IN A CONSPIRACY TO MURDER CIVILIANS IN CASE FIR NO. 89 ... 40

 

1. The Indian government's evidence fails to establish a prima facie case that Mr. Barapind was guilty of either murder or conspiracy to murder Kulwant Kaur ... 43

 

2. The habeas court overstepped its jurisdiction when it modified the extradition court's finding in order to affirm the certifying of extradition ... 43

 

E. MR. BARAPIND'S EVIDENCE NEGATES ANY MEEK SHOWING OF PROBABLE CAUSE BY THE INDIAN GOVERNMENT FOR CASES FIR NO. 100 & 34 ... 44

 

1. Applicable Legal Standards ... 44

 

*iii 2. Case FIR No. 100 (October 26, 1991) ... 45

 

a. The affidavits Mr. Barapind submitted on behalf of the government witnesses in which they stated that they never implicated him as a perpetrator explains away probable cause ... 45

 

b. The Government of India did not establish probable cause in Cases FIR No. 52 and FIR No. 87, and for precisely the same reasons, it has failed to do so here ... 49

 

3. The affidavit of the only witness to Case FIR No. 34 attesting that he did not provide the police a statement implicating Mr. Barapind negates any showing of probable cause ... 51

 

F. ARTICLE VI BARS MR. BARAPIND'S EXTRADITION TO INDIA. ... 55

 

1. Applicable Legal Standards ... 55

 

2. The extradition court's narrow interpretation of the political offense exception is inapposite to the language of Article VI and resulted in him wrongly certifying Mr. Barapind's extradition ... 56

 

a. The applicable rules of statutory construction dictate that the phrase "requisition for his surrender" be understood as referring to the entire extradition request ... 56

 

b. The only other possible interpretation of "requisition for surrender" is to interpret it as referring to the entire offense and not the crimes that comprise it ... 59

 

3. Case FIR No.'s 34 & 89 ... 60

 

a. Article VI protects Mr. Barapind from extradition for the Sikh militant separatists' attack on the Indian loyalist politician and the government security forces ... 60

 

b. Article VI protects Mr. Barapind from extradition for the murder of Kulwant Kaur because the offense was purely political ... 63

 

CONCLUSION ... 66

 

*iv TABLE OF AUTHORITIES

 

CASES:

 

Austin v. Healey 5 F.3d 598 (2nd Cir. 1993) ... 34

 

Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000) ... 8, 9, 15, 27, 28

 

Barapind v. Rogers, 1997 U.S. App. Lexis 11532 (9th Cir. 1997) ... 1,8

 

Barnhart v. Sigmon Coal Co., Inc., 122 S.Ct. 941 (2002) ... 37

 

Charlton v. Kelly, 229 U.S. 447 (1913) ... 44, 45

 

Clarey v. Gregg, 138 F.2d 764(9th Cir. 1998) ... 25

 

Collins v. Miller, 252 U.S. 364 (1920) ... 27

 

Cornejo-Barreto v. Seifert, 218 F.3d (9th Cir. 1997) ... 27, 44, 52

 

*v Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981) ... 47, 56

 

Emami v. District Court, 834 F.2d 1444 (9th Cir. 1987) ... 20, 37, 41

 

Escobedo v. United States, 623 F.2d 1098 (5th Cir.,1980) ... 55

 

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 120 S.Ct. 1942 (2000) ... 58

 

Hooker v. Klein, 573 F.2d 1360 (9th Cir. 1978). ... 44

 

In Matter of Extradition of Contreras, 800 F.Supp. 1462 (S.D. Tex. 1992) ... 49, 54

 

In re Doherty, 599 F. Supp. 270 (S.D.N.Y 1984) ... 43, 44, 64

 

In re Extradition of Kraiselburd, 786 F.2d 1395 (9th Cir. 1986) ... 20, 21

 

Kamrin v. United States, 725 F.2d 1225 (9th Cir. 1984) ... 25

 

Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir. 1997). ... 4

 

*vi Mainero v. Gregg, 164 F.3d 1199 (9th Cir. 1999) ... 2, 4, 20, 21, 25, 37, 49

 

Matter of Mackin, 668 F.2d 112 (2nd Cir. 1981) ... 43, 44

 

Matter of Sindona, 450 F.Supp. 672 (S.D.N.Y. 1978) ... 45

 

North Dakota v. United States, 430 U.S. 300, 312 (1983) ... 57

 

Oen Yin Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988) ... 20, 33, 36

 

Ornelas v. Ruiz, 161 U.S. 502 (1896) ... 28, 58

 

Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) ... 24, 25, 27, 55, 56, 58, 61, 63, 64

 

Sakaguchi v. Kaulukukui, 520 F.2d 726 (9th Cir. 1975) ... 43

 

TRW Inc. v. Andrews, 122 S.Ct. 441 (2001) ... 57, 59

 

United States v. Doherty, 786 F.2d 491 (2nd Cir. 1986) ... 43, 44

 

*vii United States v. Hong, 110 F.3d 103 (1st Cir. 1997) ... 29

 

United States v. Menasche, 348 U.S. 528 (1955) ... 57, 59

 

Williams v. Taylor 120 S.Ct. 1479 (2000) ... 58

 

Zanzanian v. United States, 729 F.2d 624 (9th Cir. 1984) ... 1, 2, 20, 36-38

 

Zitto v. Crabtree, 185 F.3d 930, 931 (9th Cir. 1999) ... 24

 

UNITED STATES CODE:

 

18 U.S.C. § 3184 ... 26, 27, 43, 44

 

28 U.S.C. § 2241 ... 4, 10, 24

 

28 U.S.C. § 1291 ... 4

 

28 U.S.C. § 2253. ... 4

 

TREATIES:

 

Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122 ... 2, 3, 6, 8, 17-19, 23, 24-27, 43, 55, 56, 59, 60

 

TREATISES:

 

Bassiouni, International Extradition: United States Law & Practice ... 26, 28

 

*1 INTRODUCTION

As the litigation of appellant Kulvir Singh Barapind's proceedings now enters its second decade, it has become irreproachably that he is a peaceful Sikh leader who the Government of India is willing to capture by any means. Like the suspended asylum proceedings, the underlying extradition proceedings revealed that Mr. Barapind is a high ranking leader of the All India Sikh Student Federation ("Federation"), a peaceful Sikh political organization, whose political will the Indian government was not able to subdue. Transcript of Proceedings ("T.") at 394-414; see Barapindv. Rogers, 1997 U.S. App. Lexis 11532 (9th Cir. 1997). In order to apprehend him, they fabricated evidence and inflicted the crudest forms of torture on his friends and supporters, shamelessly torturing one of them to death in October of 1992. Id; See also Record of Excerpts, Tab 5, Memorandum Decision and Order Re Extradition at 95- 97.

Fortunately, the Indian government's intention has become all too transparent through the shockingly poor quality of the evidence supporting its extradition request. No court confronted with such haphazardly prepared evidence has held that the requesting government has satisfied its burden for establishing probable cause of the relator's guilt of the underlying offense. Cf. Zanzanian v. *2United States, 729 F.2d 624 (9th Cir. 1984) (Hearsay statements recorded by police officers that are detailed and have indicia of reliability establish probable cause); Mainero v. Gregg, 164 F.3d 1199, 1207 (9th Cir. 1999)(Zanzanian represents threshold for establishing probable cause); Emami v. United States, 834 F.2d 1444, 1451 (9th Cir. 1987)(Same).

Not only is the deficiency of the Government of India's evidence unprecedented; the force of Mr. Barapind's obliterating evidence is unprecedented. Mr. Barapind presented an affidavit from every living witness who is not an agent of the Indian government that the statement proffered in the request for extradition on his or her behalf is falsified. Record of Excerpts, Tabs 6-11. In the context of these proceedings, Mr. Barapind's evidence does not merely negate any meager showing of probable cause by the Indian government. Mr. Barapind's evidence establishes, as the extradition magistrate found in two cases, that the Government of India's evidence is fabricated. Record of Excerpts, Tab 5, Memorandum Decision and Order Re Extradition at 76-84.

The Government of India's failure to meet its burden of establishing probable cause of his guilt is not Mr. Barapind's sole defense. Article VI of the Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122 ("Treaty"), provides Mr. Barapind *3 protection from extradition for a "crime or offense" of a political character, or if 'the requisition for his surrender was made with a view to try or punish him for a crime or offense of a political character." Art. VI, Treaty for the Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122 (1932). Article VI's application to this case resulted in the extradition magistrate finding that six of the eleven offenses underlying the request were unextraditable. Record of Excerpts, Tab 5, Memorandum Decision and Order Re Extradition at 97-116. The extradition court failed however to grant Mr. Barapind the full scope of Article VI's protection that he was entitled. The extradition court certified Mr. Barapind's extradition for two offenses involving attacks directed exclusively at political targets, and did so even though the record contained no evidence of a non-political motive. Id. Moreover, the extradition magistrate failed to apply Article VI's plain language imperative that Mr. Barapind "shall not be surrendered" because his "requisition for his surrender" included offenses that the magistrate found to be of a political character. Id.

For these reasons, the extradition magistrate incorrectly certified Mr. Barapind's extradition for the offenses at issue herein. Mr. Barapind now seeks reversal of the dismissal of his petition for writ of *4 habeas corpus, and an order directing the district court to vacate the extradition magistrate's certification of his extradition to India.

STATEMENT OF JURISDICTION

Mr. Barapind challenged the certification of his extradition pursuant to § 2241 of Title 28 of the United States Code in the United States District Court for the Eastern District of California. Lopez-Smith v. Hood, 121 F.3d 1322, 1324 (9th Cir. 1997)(Relator may challenge certification of extradition through petition for writ of habeas corpus). On September 18, 2001, the district court entered a final order dismissing Mr. Barapind's petition. Record of Excerpts, Tab 2., Memorandum & Order Denying Petition for Writ of Habeas Corpus. On September 30, 2002, Mr. Barapind filed a timely notice of appeal seeking review of the denial his § 2241 challenge to extradition. Record of Excerpts, Tab 20. Thus, this Court has jurisdiction to consider Mr. Barapind's appeal under 28 U.S.C. §§ 1291 and 2253. Mainero v. Gregg, 164 F.3d 1199, 1202 (9th Cir. 1999); 28 U.S.C. § 1291; § 2253.

*5 STATEMENT OF THE ISSUES

The issues presented by appellant Mr. Barapind are:

1. Whether the Government of India's evidence established probable cause for certifying Mr. Barapind's extradition for the offenses in question here, considering that:

a. the Government of India's showing rests on an initial submission of documents in English that allege to be affidavits of eyewitness, and:

i. the affidavits are not signed nor dated; and

ii. the only explanation provided by the government is that the documents are not signed because the documents are not in fact affidavits but are translations of statements;

iii. but, there is no certification of translation in the record for the statements;

iv. and the Government of India never produced the original statements in the witnesses' native language.

b. and, the Government of India's second submission of documents consisted of English translations of alleged statements taken in 1998, approximately six to seven years after the incident in question;

c. and, the extradition court found that the Government of India had falsified evidence and had tortured a witness to death in this case, and did so in a wider context in which they engaged in a pattern and practice of such conduct.

*6 2. Whether, especially given the context of these proceedings, Mr. Barapind's evidence obliterated the Government of India's showing of probable cause, in cases FIR NO. 34 and 100 considering:

a. each witness upon whom the government relied provided an affidavit that they did not identify Mr. Barapind as a perpetrator of the offense, and:

i. the affidavit was in the native language of the witness, accompanied by a certified translation; ii. the affidavit was extremely detailed;

iii. and, the witness was willing to come from India to the United States but was unable to because he was denied a travel visa.

b. and they never provided the government with a statement that Mr. Barapind was a perpetrator;

c. and, that the government's evidence was fabricated.

3. Whether there existed probable cause of Mr. Barapind's guilt for the murder or conspiracy to murder Kulwant Kaur in FIR No. 89 considering that Mr. Barapind did not murder her and all the evidence in the record establishes that she was not a target of the perpetrator's attack on the government sponsored government insurgents.

4. Whether Article VI protects Mr. Barapind from surrender to India for the underlying offenses, because the request for his extradition included what the extradition court found to be non-extraditable political offenses and the Treaty bars extradition of a relator whose "requisition for surrender" is made with a view to punish him for offenses that are of a political character.

*7 5. Whether case FIR No. 100 is a non-extraditable political offense given that it took place during a violent political uprising, and considering that:

a. it allegedly involved an ambush by Sikh militant separatists on a leader of the opposition and Indian security force personnel;

b. the attack was similar to others conducted by Sikh militant separatist;

c. and every piece of evidence evinces a political motive on behalf of the militant separatists, including the fact that:

i. the Government of India charged the offense under its security legislation promulgated in response to the Sikh insurgency;

ii. and that the militant separatists escaped with the weapons of the victims indicates that the attack was politically motivated.

6. Whether under Article VI, Mr. Barapind can be certified for the murder of Kulwant Kaur in FIR No. 89 considering that the extradition court concluded the offense was politically motivated and occurred within the context of a violent political uprising, and:

a. that the evidence establishes that Mr. Barapind did not murder her or conspire to murder her;

b. and that the evidence supports the conclusion that Mr. Barapind's motivation was exclusively political.

*8 STATEMENT OF THE CASE

Mr. Barapind arrived in the United States on April 25, 1993, at Los Angeles, California without proper documentation. See Barapind v. Rogers, 1997 U.S. App. Lexis 11532 (9th Cir. 1997). He was arrested bythe Immigration and Naturalization Service ("INS") immediately upon his arrival. Id. INS thereafter attempted to exclude and deport him to India. Mr. Barapind sought relief from return to India by applying for asylum pursuant to § 208 of the Immigration and Nationality Act. Id.; see also Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000).

On September 18, 1997, the Office of the United States Attorney, acting on behalf of the Government of India, filed a complaint for the extradition of Mr. Barapind to India in the United States District Court for the Eastern District of California (Fresno). Record of Excerpts, Tab 16. At that time Mr. Barapind's asylum proceedings were before the Board of Immigration Appeals pursuant to a remand order by the United States District Court for the Central District of California modified by this Court. See Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000). The extraditionrequest was made under the Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122, and triggered by a November 29, 1994 diplomatic note formally filed with the Department of State by the Embassy *9 of India. Record of Excerpts, Tab 14, Government of India's Exhibit 2. The extradition complaint sought Mr. Barapind's extradition for eleven different incidents that took place between June of 1991 and November of 1992 in Punjab, India. Id. The eleven incidents involved allegations of murder, conspiracy to murder, attempted murder, and robbery. Id. Based on the filing of the extradition complaint the Magistrate Judge for the United States District Court issued a warrant for Mr. Barapind's arrest executed by the United States Marshal. See In the Matter of: Extradition ofKulbir Singh,98-CV-5489, "Arrest Warrant Issued for Kulbir Singh by Magistrate Judge Dennis L. Beck" (September 18, 1997). Eventually, the Honorable Oliver W. Wanger, United States District Court Judge for the Eastern District of California presided over the proceedings. Id., Docket Number 31.

After the initiation of the extradition proceedings Mr. Barapind filed an action seeking declaratory and habeas relief on the grounds that he could not be extradited until his asylum proceedings were adjudicated in accordance with the Refugee Act of 1980. See Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000). This Court dismissed the proceedings without prejudice for Mr. Barapind to renew his challenge, on the grounds that his claim was not ripe for consideration as the Secretary of State had not yet decided to surrender him to India pursuant to a certification of extradition. Id.

*10 Judge Wanger then, acting as the judicial officer under 1 8 U.S.C. § 3184, conducted the extradition hearing on February 9, 13, 14, 15, and 16, 2001. The extradition court heard oral argument on March 1, 2001.

On August 27, 2001, the extradition court issued its judgment and order denying extradition in eight of the underlying offenses. Record of Excerpts, Tab 5. The extradition court certified extradition on two of the offenses. Id. He also certified extradition as to one of the alleged murdersin a third offense. Id. On September 1 8, 2001, the extradition court entered a "Certification and Order of Extraditability" based on its August 27, 2001, judgment and order. Record of Excerpts, Tab 4.

On September 18, 2001, Mr. Barapind filed a petition for writ of habeas corpus pursuant to § 2241 of Title 28 of the United States Code challenging the certification of his extradition to India. Record of Excerpts, Tab 3. District Court Judge Wanger presided over the habeas proceedings reviewing the legality of his own decision. On September 1 8, 2002, Judge Wanger entered a final order dismissing Mr. Barapind's petition. Record of Excerpts, Tab 1.

This appeal follows.

*11 STATEMENT OF FACTS

A. HISTORICAL & POLITICAL CONTEXT EVIDENCE POLTICAL UPRISING

The Sikh religion was founded in Punjab during the 16th century by Nanak, the first of a succession often living gurus. T. at 21. The Punjab, which is now divided between present day Pakistan and India, has since remained the epicenter of the religion. T. at 23. At present, the Sikh population in India is estimated at 20 million, constituting approximately two percent of the entire population of India. T. at 20.

Since the British's carving out India as a modern nation state, Sikhs have been involved in a protracted struggle with the central government to protect their interests. The conflict has varied in degrees of intensity and violence. Estimates of the death toll from 1984 to 1994 alone range from 30,000 to 100,000. Record of Excerpts, Tab 5 at 102 (citing Deposition of Cynthia K. Mahmood). The demands of Sikh nationalists have ranged from the expansion of state rights to the secession of the Punjab province from India and the creation of an independent nation state to be named Khalistan.

The most recent episode of the Punjab conflict was at its most violent during 1991-1992, the period of the underlying offenses. T. at 47; T. *12 at 49-50. During this period, the Indian security forces intensified their brutal crack down against militant separatists and those who sympathized with their cause. Id. In response, Sikh militant separatists, including the Khalistan Commando Force, targeted Indian security forces and their supporters. T. at 52-53. They committed assassinations of political leaders and Indian nationalists. T. at 52-53. Some militant separatists also attacked civilians, and engaged in bombings. Id; T. at 71-74; T. at 78-81.

Indian security forces were lead by the Punjab Police, but bolstered with military units and irregular forces. T. at 45-51. The Indian government used both judicial and extrajudicial measures to combat the Sikh separatists. T. at 43-51. The central Indian government dismissed the Punjab state government, instituting President's Rule, and passed legislation, including the Terrorists and Disruptive Activities (Prevention) Act ("TADA"). T. at 43-45. TADA gave the Indian security forces wide latitude to arrest and detain suspected Sikh separatists, and their possible supporters, without trial and without the right to confront the evidence upon which their detention was based. Id.

However, international observers, governments and human rights organization, were most disturbed by extrajudicial tactics widely and unabashedly employed by the Indian security forces. T. at 46-49; T. at 52-54. *13 These included extrajudical executions, known as "fake encounters", arrests and brutal torture of Sikh separatists and their supporters. Id. The government also recruited civilians as counterinsurgents and informants to violently crush the movement. Id.

B. KULVIR SINGH BARAPIND

Mr. Barapind, although viewed as an enemy by the government of India, is considered to be a "hero" by the Sikh community. T.at 63. Kulvir Singh Barapind is an orthodox Sikh and native of the Punjab province of India. Id.

Mr. Barapind served as the Secretary of the All India Sikh Students Federation ("Federation"). T. at 402. He is still recognized as its Secretary, although he has been in detention in the United States since April of 1993. T. at 402.; T. at 418. The Federation is an international organization and states that its purpose is to peacefully advance the demand for an independent and sovereign nation separate from India. T. at 56-57. Mr. Barapind has presided over the Federation along with its other senior leaders. T. at 402-415. He participated in political decisions such as policies regarding elections campaigns. Id. At this time, Mr. Barapind is the only surviving senior leader of the Federation who is not in the custody of the Indian government. Id. The Indian government has alleged that Mr. *14 Barapind was also a member of the Khalistan Commando Force, the armed wing of the Khalistan movement. T. at 424: 24-25; T. at 425: 1-7.

Mr. Barapind was arrested and tortured on numerous occasions by the Indian security forces after becoming politically active. And as a result, he eventually fled from his home. See Barapind v. Rogers, 1197 U.S. App. Lexis 11532 (9th Cir. 1997). The Indian security forces pursued him unrelentingly. They arrested, tortured and in some cases murdered Mr. Barapind's family members and supporters. T. at 378-81; T. at 418-22; Record of Excerpts, Tab 5 at 57-61; 95-97. The security forces even offered rewards to those arrested in exchange for help to apprehend Mr. Barapind. T. at 421-22.

He finally escaped from India to the United States. See Barapind v. Rogers, 1197 U.S. App. Lexis 11532 (9th Cir. 1997). Mr. Barapind used an alias to travel to the United States. He arrived in the United States at Los Angeles in April 1993. Id. The Immigration and Naturalization Service ("INS") immediately arrested him. Id. Mr. Barapind has remained in custody since that time. He is presently in the custody of the United States Marshal.

*15 C. ASYLUM PROCEEDINGS

The laborious history of the litigation of Mr. Barapind's attempt to secure asylum is set forth in this Court's decisions in Bampindv. Rogers, 1997 U.S. App. Lexis 11532 (9th Cir. 1997)(Administrative agencies incorrectly denied Mr. Barapind asylum) and Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000)(Mr. Barapind's challenge of denial of right to seek asylum only ripe if the government decides to surrender him to India).

D. EXTRADITION PROCEEDINGS

The Office of the United States attorney initiated extradition proceedings on behalf of the Government of India on or about September 18, 1997, in the United States District Court for the Eastern District of California. See Record of Excerpts, Tab 16, Complaint for Extradition for Kulvir Singh Barapind. The United States District Court Magistrate Judge issued a warrant upon the filing of the complaint and the U.S. Marshal assumed custody over Mr. Barapind from INS. See In the Matter of: Extradition of Kulbir Singh, 98-CV-5489, "Arrest Warrant Issued for Kulbir Singh by Magistrate Judge Dennis L. Beck" (September 18, 1997). The complaint sought Mr. Barapind's extradition for eleven different incidents that took place between June of 1991 and November of 1992 in India's Punjab Province. Record of Excerpts, Tab 16. The eleven incidents involved *16 multiple allegations of murder, conspiracy to murder, attempted murder, and robbery. Id.

The case was initially assigned to Magistrate Snyder. However, by agreement of the parties, Judge Wanger assumed jurisdiction and presided over the extradition proceedings. See In the Matter of: Extradition ofKulbir Singh, 98- CV-5489, Docket No. 5; Record of Excerpts, Tab 5, Memorandum Decision and Order Re Extradition at 4. After dismissing Mr. Barapind's challenge to the BIA's decision to hold his asylum proceedings in abeyance, Judge Wanger assumed his role as the judicial officer under 18 U.S.C. § 3184 and presided over the extradition proceedings. Id.

Through attorney's in India Mr. Barapind conducted an investigation focusing on alleged statements of eyewitnesses that constituted the only evidence provided by the Government of India in support of its extradition request. T. at 117-] 9; T. at 165-66. The investigators spoke to each living eyewitness who was not an agent of the Indian government and who the Government of India alleged had implicated Mr. Barapind in the offenses. T. at 115 to 162; 163 to 239. Each of these witnesses stated that he or she never provided the Government of India, or anyone for that matter, a statement that Mr. Barapind committed the offense at issue. See Record of Excerpts, Tabs 6-11. The investigation further revealed that the sole civilian *17 who did not provide such an affidavit or statement was dead, having been tortured to death in custody by the Indian government security forces. Relator's Exhibits 14, 15, 16, 17, 18; Memorandum Decision and Order Re Extradition at 74; 95-97. These affidavits and sworn statements were ultimately presented at the February 2001 extradition hearing. At the hearing Mr. Barapind also presented evidence that relating to the political offense exception to extradition provided for in Article VI of the Treaty. See T. at9-114; 240-68; 277-310; 331-32; 337-423.

The extradition hearing was conducted on February 9, 13, 14, 15, and 16, 2001. The extradition court heard oral argument on March 1, 2001. Id. at 1.

On August 27, 2001, the extradition court issued its judgment and order. Record of Excerpts, Tab 5. The extradition court denied Mr. Barapind's extradition for Case FIR No. 52 (June 26, 1991), Case FIR No. 87 (October 5, 1991), and Case FIR No. 220 (October 13, 1992) on the grounds that Mr. Barapind's evidence undermined any showing of probable cause by the Government of India. Id. at 76-97. With regard to the balance of the offenses the extradition court held that there was sufficient evidence to establish probable cause.

*18 Based on the testimony of expert and percipient witnesses, the extradition court also determined that there was a violent political uprising in the Punjab during the commission of the offenses between 1991 and 1992. Record of Excerpts, Tab 5 at 101-03. As a result, the extradition court concluded that the "uprising" component of the political offense was satisfied that triggered its application of Article VI. Id. The extradition court thereafter found that Case FIR No. 23 (February 16, 1992), Case FIR No. 113 (October 31, 1992), Case FIR No. 114 (November 1, 1992), Case FIR No. 94 (June 1, 1991), and Case FIR No. 193 (November 4, 1991), were all offenses incidental to the political uprising in the Punjab between 1991 and 1992, and thus were non-extraditable offenses under Article VI of the governing treaty. Id. at 103- 116.

The extradition court certified Mr. Barapind's extradition for Case FIR No. 100 (October 26, 1991), Case FIR No. 34 (April 26, 1992) and for the murder of Kulwant Kaur in case FIR No. 89 (September 6, 1992).

*19 SUMMARY OF ARGUMENT

Mr. Barapind challenges the certification of his surrender to India on the grounds that: 1) the evidence did not establish probable cause of his guilt for the underlying offenses; and, 2) he is not extraditable under Article VI of the Treaty which provides that political offenses are excepted from extradition.

A. THE INDIAN GOVERNMENT FAILED TO ESTABLISH PROBABLE CAUSE.

If the Indian government's evidence is deemed competent and reliable it is unimaginable what a requesting government could submit that would not meet the threshold standard for establishing probable cause. Here, the Indian government initially submitted English documents purporting to be affidavits on behalf of eyewitnesses that were not signed or dated. Record of Excerpts, Tab 15, Government of India's Exhibit 1. Some months after the initial submission, the Indian government claimed that the "affidavits" are not affidavits after all, but instead are statements the eyewitnesses provided in their native language that were translated into English. Record of Excerpts, Tab 13, Government of India's Exhibit 3. The Indian government never submitted a statement or certification from a *20 translator to prove its contention. Nor were the original Punjabi documents or, even copies of the originals, proffered.

Such incomprehensible, slipshod evidence has never been held to establish probable cause of a relator's guilt. Cf. Mainero v. Gregg, 164 F.3d 1199 (9th Cir. 1999)(Detailed statements by witnesses provided to Mexican and United States government officials in the presence of counsel establish probable cause); Oen Yin-Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988)(Translated statements with certification establish probable cause); Emami v. United States, 834 F.2d 1444 (9th Cir. 1987)(Swom affidavitby requesting government's prosecutor who took statements of witnesses establishes probable cause); In re Extradition ofKraiselburd, 786 F.2d 1395 (9th Cir. 1986)(Even after handwriting analysis is rebutted, requesting government submitted enough competent and reliable evidence to establish probable cause); Zanzanian v. United States, 729 F.2d 624 (9th Cir. 1984) (Hearsay statements recorded by police officers that are detailed and have indicia of reliability establish probable cause). The only evidence the Government of India submitted to salvage its request were June 1998 "statements" made six to seven years after the incidents at issue, relating to eight of the eleven offenses. Statements provided so far removed from the incidents standing alone had no probative value. The 1998 submission, *21 indeed, only served to underscore the absence of the originals of the initial submission that were necessary for the Government of India to establish probable cause. Id.

Likewise, if Mr. Barapind's evidence in this case is deemed not to have obliterated that of the Government of India's, it is unfathomable to imagine what could have. In each case where the eyewitness was not an agent of the Government of India, Mr. Barapind presented on their behalf a sworn and signed affidavit in the affiant's native language with a certified translation. Record of Excerpts, Tab 6-13. In these affidavits the witnesses who constituted the government's only evidence, unequivocally denied having identified Mr. Barapind as the perpetrator of the offenses in question. Id. Mr. Barapind provided such affidavits in cases FIR No.'s 34 and 10(!j both which are at issue here. Record of Excerpts, Tab 9-10, Relator's ExhibitlO-1; Tab 11, Relator's Exhibit 13. In these cases Mr. Barapind explained away the Government of India's only evidence with evidence that was far more competent and reliable, especially within the context of this case. See Mainero v. Gregg, 164 F.3d 1199 (9th Cir. 1999) (When relator directly rebuts requesting government's evidence court turns to remaining evidence to see if it establishes probable cause); In re Extradition of Kraisdburd, 786 F.2d 1395 (9th Cir. 1986)(Same).

*22 The Government of India, however, benefited from the extradition court's generous deference to its evidence that was unjustified both under the controlling law and under the circumstances of this case. In two cases the extradition concluded that the Government of India's evidence was falsified. Record of Excerpts, Tab 5 at 76-84. In a third case the extradition court determined that the Indian government tortured to death a witness to the incident in their effort to coax an admission that Mr. Barapind was a perpetrator. Id. at 95-97. Other witnesses testified that the Indian security forces arrested and tortured them because they were associated with Mr. Barapind. T. at 377-80; T. at 420-423. Others, including a member of the Indian parliament, testified that they were arrested under false pretexts by the Indian security forces, who fabricated evidence against them because they, like Mr. Barapind, supported Khalistan. T. at 284-89; T. at 298-302. Thus, granting any allowance to the Government of India given the facts of this case is unwarranted. And under the governing legal standards, the Government of India failed to meets its burden for establishing probable cause. Id.

*23 B. MR. BARAPIND IS NOT EXTRADITABLE UNDER ARTICLE VI OF THE TREATY.

Article VI of the Treaty prohibits the surrender of a relator under two circumstances. The first is if the "crime in respect of which his surrender is demanded is one of a political character." Art. VI, Treaty for the Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122 (1932). The second is if "the requisition for his surrender has, in fact, been made with a view to try to punish him for a crime or offense of a political character." Id. In this case, the extradition magistrate has determined that Case FIR Nos. 23, 89, 94, 113, 114, and 193 all were of a political character. Memorandum Decision and Order Re Extradition at 97 118. Therefore, the "requisition for [Mr. Barapind's] surrender" was made "with a view to try or punish him for a crime or offense of a political character." Accordingly, Mr. Barapind cannot be extradited under Article VI.

In addition, two of the offenses at issue in this appeal, analyzed individually, fall within the purview of Article VI. FIR No. 34 and FIR No. 89 were offenses involving attacks on opponents of the Khalistan movement. Record of Excerpts, Tab 5, 39-43; 55-57. The extradition court aptly found that these offenses occurred during the course of an ongoing violent political uprising. Id. at 99-103. And because the exclusive motivation evidenced by *24 the assailants' actions was political, cases FIR No. 34 and 89 were incidental to the uprising. See Quinn v. Robinson, 783 F.2d 776, 809-810 (9th Cir. 1986) (Act causally or ideologically linked to uprising are protected under political offense exception unless evidence is presented that the perpetrators were motivated by "purely personal reasons"). Mr. Barapind as a result could not be extradited for the offenses under Article VI of the Treaty. Thus, the extradition court erred by certifying Mr. Barapind's extradition for case FIR No. 34 and 89.

ARGUMENT

A. STANDARD OF REVIEW

The Court of Appeals reviews de novo a district court's denial of a petition for writ of habeas corpus filed pursuant to § 2241 of Title 28 of the United States Code. Zitto v. Crabtree, 85 F.3d 930, 931 (9th Cir. 1999) (per curiam). The issues before this court are thus in the same posture as those before the habeas court, and as a result require that the Court review the findings of the extradition court. See Quinn v. Robinson, 783 F.2d 776, 792 (9th Cir. 1986).

The scope of habeas review is limited to whether the extradition magistrate "had jurisdiction, whether the offense charged is within the treaty, and by a somewhat liberal extension, whether there was any evidence *25 warranting the finding that there were reasonable ground to believe the accused was guilty." Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir. 1999)(quoting Quinn v. Robinson, 783 F.2d 776, 790 (9th Cir. 1986)).

Mr. Barapind here challenges his certification for extradition on two grounds. His first challenge is to the extradition magistrate's finding that probable cause existed of his guilt for the offenses at issue here. His second challenge is that he is protected from extradition pursuant to the political offense exception set forth in Article VI of the Treaty.

The factual determinations, including a finding that there exists probable cause of the relator's guilt are reviewed for clear error. Id. Thus a reasonable ground to support a probable cause finding by the extradition magistrate must be upheld if there is competent evidence in the record to support it. Id.

Review of the applicability of the political offense exception is a mixed question of law and fact. See Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986). Issues requiring the interpretation of Article VI are reviewed de novo. Clareyv. Gregg, 138 F.2d 764, 765 (9th Cir. 1998)(Court reviews de novo questions of the interpretation of an extradition treaty); Kamrin v. United States, 725 F.2d 1225 (9th Cir. 1984)(same). The facts supporting Mr. Barapind's assertion that Article VI of the governing treaty prevents his *26 extradition are not in dispute. Because the issue involves application of law to undisputed facts, this Court conducts de novo review. Id.

B. UNITED STATES EXTRADITION PROCEDURES

An extradition request is ordinarily initiated by the filing of a diplomatic note by a foreign government to the Department of State, as in this case. Bassiouni, International Extradition: United States Law & Practice, p. 659. The Department of State and then the Department of Justice determine whether the request is covered by the governing treaty between the requesting country and the United States. Id. If the request falls within the provisions of the treaty, it is forwarded to the Office of the United States Attorney for the judicial district where the person sought is located. Id, p. 657. The US Attorney then'files a complaint on behalf of the requesting government with the appropriate United States district court judge or magistrate within the judicial district, seeking an arrest warrant for the person sought, or the "relator". Id., pp. 662-63

The judge or magistrate then assumes the role of a judicial officer as provided in § 3184 of Title 18 of the United States Code. 18 U.S.C. § 3184 (2000). If there is a finding that there is an extradition treaty between the United States and the requesting foreign government and the crime charged in the complaint is covered by the treaty, the presiding judge *27 issues a warrant for the relator's arrest. Id. Once a warrant issues, the extradition magistrate conducts a hearing to determine "whether (1) the crime is extraditable [under the governing treaty]; and (2) there is probable cause to sustain the charge." See Quinn, 783 F.2d at 787." Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 1997). If these two requirements are met, the extradition magistrate must certify the individual as extraditable to the Secretary of State. Barapind v. Reno, 225 F.3d 1100, 1105.; 18 U.S.C. § 3184 (2000). The relator is not entitled to a direct appeal of an extradition magistrate's decision of certification. Barapind v. Reno, 225 F.3d at 1105. The relator, however, may seek collateral review of the order through habeas corpus review pursuant to 28 U.S.C. § 2241. See Collins v. Miller, 252 U.S. 364, 369-70(1920).

Upon the certification of extradition by the magistrate and conclusion of any judicial review afforded to the relator, the Secretary of State, within his discretion, determines whether or not the relator should actually be extradited. See Barapind v. Reno, 225 F.3d at 1106; 18 U.S.C. § 3186 (2000). [FN1] The Secretary has the authority to review the judicial officer's *28 findings of fact and conclusions of law de novo, and to reverse the judicial officer's certification of extraditability if he believes that it was made erroneously. Bassiouni, International Extradition: United States Law and Practice., pp. 765-767 (1996) The Secretary may also decline to surrender the relator on any number of discretionary grounds, including, but not limited to, humanitarian and foreign policy considerations. Id. The Secretary also has discretion to attach conditions to the surrender of the relator. Id.

 

    FN1. The sole regulations limiting the Secretary of State's discretion in extradition were promulgated as a result of the Congress' implementation of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 3 of the Convention prohibits the United States surrendering an individual to a requesting government if he is likely to face torture. The United States became a full state party to the Convention in November 1994. See U.N. Doc. 571 Leg. SER. E/13.IV.9 (1995). See Barapind v. Reno, 225 F.3d at 1105-1106.

 

 

 

C. THE EVIDENCE DID NOT ESTABLISH PROBABLE CAUSE OF MR. BARAPIND'S GUILT FOR ANY OF THE UNDERLYING OFFENSES.

1. Applicable Legal Standards

Probable cause [is] a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it." Orenals v. Ruiz, 161 U.S. 502, 512 (quoting 1 Burr's Trial, 11). "The evidence must be both sufficiently reliable and of sufficient weight to warrant the conclusion." United States v. *29 Hong, 11O F.3d 103, 121 (1st Cir. 1997) (rehearing denled, 1997 U.S. App. Lexis 7587).

2. The Government of India's evidence is incompetent and too unreliable to support a showing of probable cause.

a. The Government of India's evidence was indiscernible and fatally inconsistent.

i. The Government of India's 1994 submission

The initial submission of evidence by the government was presented through an affidavit of Satish Kumar Sharma, an officer of the Punjab Police. Record of Excerpts, Tab 15, Government of India's Exhibit 1. Attached to Officer Sharma's affidavit were the documents evidencing that criminal charges had been filed against Mr. Barapind for each of the offenses underlying the extradition request and the evidence supporting the charges. Id.

The Indian government's attempt to establish probable cause of Mr. Barapind's guilt in each of the cases constituting the extradition request hangs by the thread of what were identified as "affidavits". Id. In each case there are two "affidavits", both in English. Id. The first "affidavit" in each case describes the incident and alleges that Mr. Barapind was a perpetrator. Id. In the second "affidavits", a witness identifies Mr. Barapind through a *30 photograph of him, but does not allege that the individual in the photograph was the perpetrator. Id.

The documents bear the heading "Affidavit". Id. Commensurate with the title, all the "affidavits" provide a space for the signature of the affiant, and a date. Id. However the "affidavits" are neither signed nor dated. Id. Moreover, the second "affidavit" in each case that purports to identify Mr. Barapind avers that the affiant has signed the back of the photograph affixed to it. Id. In each case, the back of the photograph contains no signature. Id.

In the initial submission, Officer Sharma described the evidence as "affidavits", but offered no further representation of what the documents represented and specifically why the "affidavits" did not contain signatures. Id. The initial submission is supplemented by a statement of another Punjab Police Officer, Dinkar Gupta. Officer Gupta's affidavit states that "all the available documents of cases under which extradition of Kulbir Singh ... is being sought are complete in every respect." Record of Excerpts, Tab 15 at 14.

*31 ii. The Government's unavailing 1995 explanation of its 1994 submission

On March 6, 1995, Officer Sharma attempted to salvage the initial submission through a "supplemental affidavit", stating that:

Immediately following my previous affidavit is sworn [a] statement of Mr. Dinkar Gupta, Sr. Supt. Of Police, Jalandhar, listing attachments, including statements of witnesses and police officers which are the part of the request with respect to the statements of the witnesses and police officers, each is [an] accurate English translation of his statement given in Punjabi to the magistrate or entered in the case diary of an investigating officer.

Excerpts of Record, Tab 13, Government's Exhibit 3 at 2. The explanation was unconvincing. In their 1993 affidavits neither Officer Sharma nor Officer Gupta claimed that the "affidavits" were translations of statements recorded by a magistrate or investigating officer. To the contrary Officer Sharma described the documents as "affidavits", and consistent with his description there were spaces provided for the affiant's signature and a date. Additionally, Officer Gupta described the documentation as "complete in every respect." Record of Excerpts, Tab 15 at 14.

iii. The Government of India's misguided 1998 evidence

The difficulties with the evidence prompted the Government of India to submit a second round of "statements" ostensibly collected in *32 1998. Record of Excerpts, 12, Government of India's Exhibit 4. Although there were eleven offenses, "statements" were submitted for only eight of the eleven cases. Id. The content of these "statements" collapsed the information provided in those initially submitted by describing the incident and identifying Mr. Barapind as the perpetrator by signing the back of affixed photographs in one document. Id. The Government of India represented these "statements" as original translations. Id. at However, again, no originals were provided. Moreover, again, the Government of India's representation of its evidence was not consistent with its contents, as these "statements" contained original signatures of the witness that belied the representation that these were translations of originals.

b. The extradition court erred by not finding that the evidence was incompetent and too unreliable to support a finding of probable cause, given the context of these proceedings.

i. Irreconcilable inconsistencies regarding the 1994 submission required that the Government of India produce the originals or copies of the originals to establish that the evidence in the case was competent and reliable.

In this case it is entirely unclear as to what the government's evidence in fact represents. The extradition magistrate understandably made no conclusive finding in this respect. Initially in 1994, the Government of *33 India described its cornerstone evidence as "affidavits". The documents in fact were titled affidavits and had spaces for the affiants' signature as well as a date. Yet the documents were unsigned. The Government of India in 1995 responded to these fatal flaws by reinventing the "affidavits" as translations, albeit uncertified, of original statements made either before a magistrate or recorded by a police investigator.

However, because there was no certification of a translation accompanying, the Government of India's explanation cannot justify granting any weight to the otherwise incompetent and unreliable evidence. Oen Yin Choy v. Robinson, 858 F.2d 1400, 1405-1406 (9th Cir. 1988)(When government relies exclusively on translations, translations must be certified when there are no originals in order to establish competence and reliability).

The Government of India in 1998 attempted to save its case through a second round of evidence. It consisted of purported translations of statements for eight of the eleven cases. However, these contained original signatures of the affiants, which was inconsistent with the Government of India's representation that the documents were translations of originals. Furthermore the evidentiary weight of statements provided so far removed from the offense in question is nil.

*34 The fact that the Government of India resorted to collecting "statements" in 1998 to rehabilitate its 1994 submission only heightened the unreliability surrounding its evidence. There was no credible explanation as to why the Government of India would resort to collecting "statements" ranging from five and one-half to seven years after the underlying offenses instead of producing the originals or copies of the original evidence.

The inconsistent representations regarding the initial submission combined with the proffering of the 1998 statements in place of the originals require to reconcile the inconsistencies demanded an explanation. Austin v. Healey, 5 F.3d 598, 605 (2nd Cir. 1993)(Consistency of evidence factor in evaluating reliability). The Government of India never provided one. On March 1, 2001, when asked directly by the Court as to the whereabouts of the originals, the government conceded that that it did not know the whereabouts. T. at 528: 9-21.

The extradition court's reason for forgiving the Indian government for the failings of its evidence and its failure to produce originals of the "affidavits" was based on a misunderstanding of the record. The extradition court excused the Government of India's flimsy evidence and the absence of original documents based on the belief that Officer Sharma reported "that each witness identified Barapind from personal *35 knowledge, without regard to the photographs." Record of Excerpts, Tab 5 at 67: 14-16. The extradition court's conclusion is the result of a patent misreading of the Sharma affidavit. The Sharma affidavit nowhere states that "each witnesses identified Mr. Barapind from personal knowledge."

The closest Officer Sharma comes to stating what the extradition court perceived was:

Accused Kulbir Singh alias Kulbira was identified by the witnesses at the time of respective occurrences then and there as set forth in their respective affidavits contained in annexures A/1, B/1, C/1, D/1, E/1, F/1, G/1, H/1, J/1, K/1/ and L/2. Photographs of Kulbir Singh alias Kulbira(fugifive) are annexed to these affidavits.

Record of Excerpts, Tab 15 at 12 (emphasis added). Contrary to the extradition court's conclusion nowhere does Mr. Sharma state that the eyewitnesses' identification was made from personal knowledge without the assistance of Mr. Barapind's photograph. In fact, the statement suggests that the eyewitnesses identified Mr. Barapind through a photograph. The extradition court's premise for forgiving the absence of the originals in this case is not supported by the record.

The absence of the originals seals the fate of the Government of India's evidence as incompetent and too unreliable to warrant a finding that it establishes probable cause of Mr. Barapind's guilt for the offenses in the *36 extradition request. Cf. Oen Yin Choy v. Robinson, 858 F.2d 1400, 1405-1406 (9th Cir. 1988)(Relator's challenge of failure to produce originals not sustained where government provided certified translations and extradition magistrate reasonably held that there were no original statements of witnesses but simply summary of notes and statements of police investigators.)

ii. The Government of India's evidence lacks an indicia of reliability.

The district court privileged the Government of India with an unprecedented forgiving standard for establishing probable cause. Indeed, the Government of India's evidence is completely void of the characteristics that this Court has held warrant affording admissible hearsay statements evidentiary weight in a probable cause determination of a relator's guilt.

Zanazanian v. United States, 729 F.2d 624 (9th Cir. 1984), articulates the minimum threshold for hearsay evidence that satisfies probable cause. Zanazanian involved an extradition request by Sweden. The requesting government submitted hearsay statements by police officers that were summaries of statements of percipient witnesses. The relator challenged the competency and reliability of the evidence. The Court of *37 Appeals concluded that the evidence in Zanazanian was competent and reliable:

While we acknowledge that the extra hearsay step might in certain cases result in decreased reliability, we believe that the reports in this case are sufficiently reliable to be deemed competent.

These reports are not, as Zanazanian contends, merely fragments of half-forgotten conversations. They are abundant in detail, containing specifics of time and place, price and quantity. Moreover, they appear to have been prepared on the basis of tape recordings and notes made during the actual interrogation. Each report indicates that the interrogation was recorded. Each contains a statement that the suspect approved the tape or that he had listened to a reading of the officer's notes and approved. Under the circumstances, we cannot say they are significantly less reliable than a signed witness's statement or transcript, the customary forms for reporting the results of police interrogations in this country.

Zanazanian v. United States, 729 F.2d 624, 627 (9th Cir. 1984). Recently Mainero v. Gregg 164 F.3d 1199 (9th Cir. 1999), recognized Zanazanian to represent the baseline for what is competent and reliable evidence. Mainero v. Gregg, 164 F.3d 1199, 1206-1207 (9th Cir. 1999) (Detailed hearsay statements of witnesses represented by counsel made before foreign and United States government officials constitute competent and reliable evidence); see also Emami v. District Court, 834 F.2d 1444, 1451 (9th Cir. 1987).

*38 By deeming the Government of India's evidence competent and reliable enough to establish probable cause of Mr. Barapind's guilt the extradition magistrate lowered the bar to an unprecedented level far below Zanazanian. Firstly, as discussed above, unlike in Zanazanian, due to the Government of India's inconsistent explanations, in this case it is unclear what the Government of India's evidence represents. Secondly, the statements in this case are skimpy, not abundant in detail. Finally, with regard to the 1998 submission, the fact that the statements were secured six to seven years after the offenses at issue undermines any probative value, and only cements the need for the originals of the initial submission. As a result, all the factors that made the evidence in Zanazanian competent and reliable are not present in this case.

iii. The circumstances of this case do not support lowering the bar for establishing probable cause.

Given the circumstances of this case the Indian government is not entitled to a more forgiving standard for competency and reliability than that established by Zanazanian. With regard to two of the offenses, Case FIR No. 52 (June 26, 1991) and Case FIR No. 87 (October 5, 1991), the extradition court sustained Mr. Barapind's allegations of fabrication. Record of Excerpts, Tab 5 at 76-84. With regard to a third offense, Case FIR No. *39 220 (October 13, 1992), the extradition court concluded that the Government of India tortured a witness to death. Record of Excerpts, Tab 5 at 95-97. Two witnesses at the extradition hearing testified that they suffered torture at the hands of the Indian security forces seeking Mr. Barapind's capture. T. at 338-91; T. at 419-23. The extradition court made these findings and considered the evidence in the context of crediting testimony that the Government of India routinely fabricated evidence to provide grounds for arrest of Sikh separatists such as Mr, Barapind and engaged in extreme human rights violations to quell the Khalistan movement.

In the context of these proceedings the scrutiny of the Government of India should have been heightened, not relaxed. Accordingly, the extradition court erred by lowering the bar for establishing probable cause through competent and reliable evidence and finding that the Government of India satisfied its burden.

*40 D. EVEN IF THE INDIAN GOVERNMENT'S EVIDENCE IS DEEMED COMPETENT AND RELIABLE, IT STILL DOES NOT ESTABLISH THAT MR. BARAPIND PARTICIPATED IN A CONSPIRACY TO MURDER CIVILIANS IN CASE FIR NO. 89.

1. The Indian government's evidence fails to establish a prima facie case that Mr. Barapind was guilty of either murder or conspiracy to murder Kulwant Kaur.

The extradition magistrate held that the Indian government established probable cause that Mr. Barapind was a perpetrator of the underlying crime in FIR No. 89, the murder of three brothers who were armed operatives of the Indian government and Kulwant Kaur, the wife of one of the victims. Record of Excerpts, Tab 5 at 84-85. The extradition magistrate concluded that the murder of the three counterinsurgents was unextraditable under the political .offense exception. Id. at 110-13. The court did however certify Mr. Barapind's extradition for the murder of Kulwant Kaur. Id. The reviewing district court amended the extradition magistrate's decision. Record of Excerpts, Tab 2 at 14- 15. The district court seemed to conclude that although there was no evidence that Mr. Barapind murdered Kulwant Kaur, the evidence established that he "was an active participant in the home invasion and lethal attacks, from which membership in a conspiracy can be inferred." Id. at 14: 13-15. The Government of India's not only does not support the conclusion that Mr. Barapind murdered *41 Kulwant Kaur; there is no evidence that Mr. Barapind entered a conspiracy to murder her. Emami v. District Court, 834 F.2d 1444, 1452 (9th Cir. 1987)(Evidence must establish prima facie case for alleged crime).

The Government of India alleges that on September 6, 1992, Mr. Barapind and the co-assailants entered the home of the armed counterinsurgents. Record of Excerpts, Government of India's Exhibit 1, Tab 15 at D-l. They there confronted Sohan Singh and Gurmail Kaur, and their sons Paramjit Singh and Kashmir Singh. Id. Both Paramjit Singh and Kashmir Singh were in the employ of the government security forces. Id. Mr. Barapind, in the presence of Sohan Singh and Gurmail Kaur, allegedly shot and killed Paramjit Singh and Kashmir Singh before they could load their rifles. Id. Mr. Barapind and his co-assailants then allegedly asked the parents about Karamjit Singh, the third counterinsurgent. The parents divulged that he was in another portion of their home. Id. Mr. Barapind's co-assailants then allegedly searched out and murdered Karamjit Singh and, during the course of the attack, killed his wife Kulwant Kaur. Id.

At the extradition hearing Mr. Barapind argued that the offense fell within the Article VI exception to extradition because the murdering of the counterinsurgents was incidental to the ongoing political uprising in the Punjab. See Record of Excerpts, Tab 5 at 39-44; 110-113.

*42 To establish a prima facie case for conspiracy, the evidence at the hearing must establish that Kulwant Kaur's murder was an "act done by several persons in furtherance of common intention." Record of Excerpts, Tab 15, Government of India's Exhibit 1 at 16. The evidence is clear that the attack by the Sikh militants was targeted exclusively at the counterinsurgents and intended not to harm civilians in the home. Mr. Barapind is alleged to have shot and killed two of the counterinsurgents without harming their parents. Moreover, Mr. Barapind and the militants asked the parents solely about Karamjit Singh, the third counterinsurgent, evidencing that they were concerned exclusively about his whereabouts as he was the remaining counterinsurgent they were targeting. It is also clear that there is neither evidence nor allegations that Mr. Barapind, or any of the co-assailants, knew that Karamjit Singh was married and his wife Kulwant Kaur was in the home at the time of the attack.

As the extradition court conceded, there is no evidence of what transpired when Kulwant Kaur was killed. The district court's finding therefore that a "common intention" to murder Kulwant Kaur could be inferred from the record has not an iota of support. The Government of India did not provide any evidence to establish probable cause of Mr. Barapind's *43 guilt to murder, or conspire to murder Kulwant Kaur. The extradition magistrate's and district court's conclusions to the contrary were error.

2. The habeas court overstepped its jurisdiction when it hmodified the extradition court's finding in order to affirm the certifying of extradition.

The district court erred in a second respect. The district court erred by modifying the extradition court's order of certifying Mr. Barapind's surrender from murder to the separate and different crime of conspiracy to murder.

The issue of the grounds for certification of extradition is within the exclusive province of the extradition magistrate pursuant to 18 U.S.C. § 3184. 18 U.S.C. § 3184 (2000). The requesting country may not appeal a denial of certification. Matter ofMackin, 668 F.2d 112 (2nd Cir. 1981); United States v. Doherty, 786 F.2d 491 (2nd Cir. 1986).A relator may only challenge a certification of extradition through habeas. Sakaguchi v, Kaulukukui, 520 F.2d 726, 729-30 (9th Cir. 1975). The district court considering a habeas challenge is limited to the issues of: "1) whether the extradition judge had jurisdiction to conduct the proceeding; 2) whether the extradition court had jurisdiction over the individual sought; 3) whether the extradition treaty was in force; 4) whether the crime fell within the treaty's terms; 5) whether there was probable cause that the individual sought *44 committed the crime; and 6) whether the crime was within the political offense exception." Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009-1010. If the extradition court's certification is not supported by the record, the habeas court has the authority to grant the relator's petition, but does not have the jurisdiction to amend the certification of extradition. Matter of Mackin, 668 F.2d 112 (2nd Cir. 1981); United States v. Doherty, 786 F.2d 491 (2nd Cir. 1986). The requesting government's remedy if a request for extradition is denied is to refile for the relator's extradition pursuant to § 31S4. Hooker v. Klein, 573 F.2d 1360 (9th Cir. 1978).

In this case, the district erred by amending the § 3184 magistrate's findings and certifying Mr. Barapind's extradition for conspiracy to murder when the extradition magistrate only so did for murder. Id.

E. MR. BARAPIND'S EVIDENCE NEGATES ANY MEEK SHOWING OF PROBABLE CAUSE BY THE INDIAN GOVERNMENT FOR CASES FIR NO. 100 & 34.

1. Applicable Legal Standards

A relator may challenge a showing of probable cause with evidence that explains away or completely obliterates the requesting government's evidence. See Charlton v. Kelly, 229 U.S. 447, 457-58 (1913). However, evidence that merely contradicts or raises a defense to the *45 government's evidence, is inadmissible at the extradition hearing. Id. Thus testimony that "contradict[s] the testimony for the prosecution" is inadmissible. On the other hand, the relator may present "witnesses for explaining matters referred to by witnesses of the government." Charlton v. Kelly, 229 U.S. 447, 461 (1913).

If the relator's evidence obliterates the requesting country's showing of probable cause by "negating" it, then extradition should be denied due to the requesting government's failure to meet its burden of proof. See Matter of Sindona, 450 F.Supp. 672, 685 (S.D.N.Y. 1978), petition for writ of habeas corpus dismissed, Sindona v. Grant, 461 F.Supp. 199 (S.D.N.Y. 1978), affirmed, Sindona v. Grant, 619 F.2d 167 (2nd Cir. 1980).

2. Case FIR No. 100 (October 26, 1991)

a. The affidavits Mr. Barapind submitted on behalf of the government witnesses in which they stated that they never implicated him as a perpetrator explains away probable cause.

FIR No. 100 involves allegations that Mr. Barapind and a co-assailant, while driving on a motorcycle, shot and killed Sahib Singh and injured his companion Makhan Ram. The government's case rests on the alleged statements of one of the victims of the attack Makhan Ram, and *46 Kulwant Singh, who was not an eyewitness. Record of Excerpts, Tab 15, Government of India's Exhibit 1 at E-1; E-2.

The government offered two sets documents ascribed to Makhan Ram. The first set was submitted with the extradition request in 1994, the second in 1998. Record of Excerpts, Tab 15, Government of India's Exhibit 1 at E-1, E-7; Record of Excerpts, Tab 12 at 20. The two 1994 "affidavits", one which describes the incident and the other that identifies Mr. Barapind, suffer from the defects exhibited in all the other "affidavits" included in that submission. It is in English. It is unsigned. It is undated.

The 1998 "statement" also shares the same defects of those submitted along with it. The "statement" purports to be a translation of an original but contains Makhan Ram's original signature in Punjabi. More importantly it was secured seven years after the incident and as a result it has no probative value.

The only other piece of evidence submitted by the Government of India is found in its 1994 submission. Record of Excerpts. Tab 15 at E-2. It is an "affidavit" by a police officer named Inderjit Singh who states that Kulwant Singh identified Mr. Barapind as one the assailants. Id.

*47 Mr. Barapind at the extradition hearing offered affidavits from both Makhan Ram and Kulwant Singh. Record of Excerpts, Tab 9, Relator's Exhibit 10; Id., Tab 10, Relator's Exhibit 11.The affidavits proffered by Mr. Barapind provided that the affiants never implicated Mr. Barapind as the perpetrator of the murder of Sahib Singh and that the government's evidence was fabricated. Id. These detailed affidavits were in Punjabi, the native language of Makhan Ram and Kulwant Singh, with certified translations. The affidavits were also signed and dated. Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981), cert. denied, 454 U.S. 894 (1981)(Extradition court to compare relative reliability of evidence).

Here the Government of India relied on the statements of two alleged witnesses, one of whom was.a victim and thus would be biased against an alleged perpetrator, and another who has no alleged bias. [FN2] Both witnesses, Makhan Ram and Kulwant Singh, stated that they did not provide Statements implicating Mr. Barapind as the perpetrator, and as a result, corroborated the others' sworn statement that the Government of India fabricated its evidence. Finally they were willing to travel to the United *48 States and testify at the extradition hearing, but were not granted permission by the United States Consular in India. Record of Excerpts, Tab 5 at 73.

 

    FN2. The extradition court engages in extensive discussion of Makhan Ram's potential biases. Record of Excerpts, Tab 5 at 86-88. However, as a victim of the crime in question, if Makhan Ram had any bias, it would be against the perpetrator who shot him. Therefore the fact that Makhan Ram in his position of the victim provided an affidavit in support of Mr. Barapind operates to support the credibility of the obliterating evidence.

 

 

 

The overall quality, or lack thereof, of the Government of India's evidence becomes more disconcerting in the belabored context of this case. The Government of India's willingness to fabricate evidence as pretext to arrest political dissidents and the more specific evidence of its relentless at all costs pursuit of Mr. Barapind, including resorting to torture and extortion to capture him, mandates a conclusion that the government's evidence was falsified.

Given the overwhelming disparity of the competency and reliability of the evidence in favor of Mr. Barapind, and the totality of circumstances of this case, the evidence presented by Mr. Barapind at minimum completely obliterated any shaky showing of probable cause the Indian government proffered. The affidavits of Makhan Ram and Kulwant Singh submitted by Mr. Barapind thus compelled a finding that the Government of India failed to meet its burden of proof for establishing probable cause because the affidavits absolutely dismissed the only evidence the Government of India offered in support of its request. Accordingly, the Government of India cannot establish probable cause based on the evidence it presented with regard to FIR No. 100. cf. In Matter of Extradition of *49 Contreras, 800 F;Supp. 1462 (S.D. Tex. 1992) (When government's only evidence is obliterated by recantations, government fails to establish probable cause); see also Mainero v. Gregg, 164 F.3d 1199 (9th Cir. 1999)(Requesting government established probable cause even after recanting evidence explains away part of the evidence, but record is replete with other evidence).

b. The Government of India did not establish probable cause in FIR No. 87, and for precisely the same reasons, it has failed to do so here.

The nature of the Government of India's evidence in Case FIR No. 87 is indistinguishable from the evidence at issue in Case FIR No. 100. Record of Excerpts, Tab 5 at 36-39; 80-84. Case FIR. No. 87 turned on the credibility of 1994 submissions by the government of documents purporting to be statements of Rattan Singh. Id.; Record of Excerpts, Tab 15 at C. The 1994 "affidavits" were supplemented by a 1998 statement. Record of Excerpts, Tab 12 at 5. Mr. Barapind countered the government's evidence with an affidavit by Rattan Singh attesting that although he witnessed the underlying offense Mr. Barapind was not one of the perpetrators and that the Government of India's evidence was falsified. Record of Excerpts, Tab 8, Relator's Exhibit 8. The extradition court concluded that Mr. Barapind negated the government's showing of probable cause.

*50 The extradition court reasoned:

India elected not to question Rattan Singh under oath, instead it chose to rely on its position no discovery is permitted in extradition proceedings even if coercion or wrongful means of obtaining evidence is claimed.

In this country, if the Rattan Singh recantations are found to be true in a pretrial suppression hearing, no trial would occur because no other evidence supports the charges against Barapind.

Although contradictory evidence is not to be considered, the extradition judge makes credibility determinations as to the competence of evidence supporting probable cause. Barapind has submitted unrebutted evidence that the Indian police and their agents sometimes used false identifications, false encounter killings, extra-judicial detentions, torture, and coercive methods in their efforts to suppress militant Sikh separatists. It is unlikely that Rattan Singh would expose himself to the risks of criminal prosecution and reprisal by police in his country, India, by giving a "false" affidavit in 2001, declaring he never identified Barapind or anybody else, because he could not do so, much lese "falsely state" he was forced under threat of death to provide his thumb print for the Barapind identifications, knowing his 2001 affidavit would be provided to the Indian government. Rattan has a bias again India because he suffered at the hands of the police. On the totality of circumstances, the January 13, 2001, affidavit of Rattan Singh is credible. It destroys the competence of the evidence and obliterates probable cause for F.I.R. 87.

India has the opportunity to challenge the explanatory (of the circumstances of the taking of the 1998 identification from Rattan Singh) and his obliterating 2001 affidavit. It chose not to do so. The consequence of this election is a failure of proof on the issue of credibility and the competence of evidence underlying F.I.R. 87.

*51 Record of Excerpts, Tab 5 at 82: 20-23; 83: 7-28; 84: 1-3. The extradition magistrate's analysis in cases FIR No. 52 and FIR No. 87 operates to establish that Mr. Barapind obliterated the Government of India's evidence in Case FIR No. 100. Every factor the extradition magistrate set forth counseling against finding probable cause in Case F.I.R. 87 is present in this offense. His analysis in fact applies with more force in this case because here two government witnesses, one of them the victim, corroborated the claim that the Government of India's evidence is untrue and that Mr. Barapind was not a perpetrator of the offense.

3. The affidavit of the only witness to Case FIR No. 34 attesting that he did not provide the police a statement implicating Mr. Barapind negates any showing of probable cause.

In FIR No. 34 the Government of India rests its case on a statement provided by a police officer Surinder Pal who claimed that Nirmal Singh was an eyewitness to the ambush of the politician and his escort of security forces personnel and that he identified Mr. Barapind as an assailant. Record of Excerpts, Tab 15, K-1. In an affidavit proffered by Mr. Barapind, Nirmal Singh, like every living eyewitness who was not an agent of the Government of India, wholly denied ever stating to officer Surinder Pal that Mr. Barapind was a perpetrator of the murders. Record of Excerpts, Tab 11, Affidavit of Nirmal Singh.

*52 In order for extradition to be certified the requesting government, after all the evidence has been taken, must establish probable cause of the relator's guilt. Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1010 (9th Cir. 2000). Through the affidavit of Nirmal Singh, Mr. Barapind countered the government's only evidence with surpassingly more competent and reliable evidence. Therefore the Indian government failed to establish probable cause of Mr. Barapind's guilt for the offense.

First, the affidavit of Nirmal Singh is in his native language, it is properly executed, and it is accompanied with a certified translation. Second, the affidavit of Nirmal Singh is a statement from the actual witness and thus represents one less level of hearsay than the "affidavit" of Surinder Pal. Third, in addition to failing to produce any evidence that Nirmal Singh could identify Mr. Barapind through a photograph, in this case the Indian government did not produce a second "affidavit" from Nirrnal Singh, or from any other witness, as it had in seven other cases, to support its allegations of Mr. Barapind's involvement in the ambush. To the extent that the extradition court found that these second set of documents procured in 1998 bolstered the Government of India's showing of probable cause, the absence of such a document in Case FIR No. 34 torpedos the government's case. Cf. Record of Excerpts, Tab 5 at 84.

*53 As discussed above, in the previous section, perhaps the most convincing analysis of why the Government of India's evidence fails is advanced by the extradition magistrate in Case FIR No. 87. If the Government of India did not establish probable cause for cases FIR No. 52, FIR No. 87, FIR No.220, a fortiori it failed establish probable cause for this offense, where here, unlike the other cases, there is no identification from the witness that Mr. Barapind was a perpetrator.

In light of the Government of India's effort to capture Mr. Barapind at all costs, the stonewalling of discovery, and the disquieting issues of reliability and competence of the government's evidence, Nirmal Singh's affidavit compels the conclusion that the Government of India's evidence was not merely unreliable, but that it was fabricated.

The district court's affirmation of the extradition magistrate's finding was based on a misunderstanding of the record. The district court held that the extradition magistrate's decision was not in error because "according to SI Pal, Nirmal Singh identifies Barapind through a photograph." Record of Excerpts, Tab 2 at 13: 13-14. The district court is incorrect. Officer Surinder Pal nowhere states that Nirmal Singh identified Mr. Barapind through a photograph.

*54 The district court's misreading of the record highlights the problem of the Government of India's evidence in Case FIR No. 34. There is no evidence that Nirmal Singh is in a position to identify Mr. Barapind. In fact, Nirmal Singh in a detailed affidavit confirms that he cannot and credibly claims that he never did. See In the Matter of the Extradition of Contreras, 800 F. Supp. 1462, 1465 (S.D. Tex. 1992)("[I]t is obvious to this Court that if the only evidence of probable cause were confessions, and if sufficiently recanted, then the existence of probable cause would be negated.")

Therefore, the extradition court's ruling that the Indian government established probable cause of Mr. Barapind's guilt was contrary to the law and unsupported by the record. [FN3]

 

    FN3. The extradition court was incorrect in finding that there was no evidence with regard to officer Surinder Pal's fabrication of evidence.

 

    Nirmal Singh's affidavit constituted such evidence. Additionally, at the close of the extradition hearing Tarsem Singh, who is now a citizen of Canada, testified that officer Surinder Pal in his pursuit of Mr. Barapind was a torturer and an extortionist. Tarsem Singh is the father of Sikh refugee Gurtej Singh granted asylum in the United States. Tarsem Singh explained that Surinder Pal arrested and tortured him and his son and offered them a 15,000,000 rupee award for the capture of Mr. Barapind. T. at 421: 14-25; 422: 1-19.

 

 

 

*55 F. ARTICLE VI BARS MR. BARAPIND'S EXTRADITION TO INDIA.

1. Applicable Legal Standards

Article VI of the Treaty provides:

A fugitive criminal shall not be surrendered if the crime in respect of which his surrender is demanded is one of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try to punish him for a crime or offense of a political character.

Article VI., Extradition Treaty of the United States and United Kingdom of 1931, 47 Stat. 2122. There are two types of offenses that may be deemed of a political character. Quinn v. Robinson, 783 F.2d at 793-94. The first type is a "pure" political offense. Id. The second is a "relative" political offense. Id. A "pure" political offense is an act that is "aimed directly at the government" and has no elements of an ordinary crime. Id. Examples of "pure" political offenses include treason, sedition, and espionage. Id.

A "relative" political offense is an ordinary crime that is committed (1) during the course of an uprising or violent political disturbance; (2) and the crime is "incidental" to the uprising. Escobedo v. United States, 623 F.2d 1098, 1104 (5th Cir.) cert. denied, 449 U.S. 1036 (1980). An uprising is present when there is a certain threshold of violence as a result of an indigenous people attempting to achieve a political objective *56 within their homeland. Quinn v. Robinson, 783 F.2d at 797. An offense is incidental to the uprising and thus of political character if it is committed during its course and is causally or ideologically related to the uprising. Id. at 809- 810.

Courts have examined a number of factors in evaluating whether a crime was incidental to an uprising, including whether the perpetrators of the crime were members of a group involved in political violence; the nature of the "foray" and whether it was similar to others involving an "uprising group"; the victims of the offense; and indicia of whether the motives of the perpetrators was political or personal. See Ornelas v. Ruiz, 161 U.S. 502, 511 (1896); Quinn v. Robinson, 783 F.2d 776, 809 (9th cir. 1986); Eain v. Wilkes, 641 F.2d 504, 521 (7th Cir. 1980).

2. The extradition court's narrow interpretation of the political offense exception is inapposite to the language of Article VI and resulted in him wrongly certifying Mr. Barapind's extradition.

a. The applicable rules of statutory construction dictate that the phrase "requisition for his surrender" be understood as referring to the entire extradition request.

Article VI of the governing treaty safeguards a relator from surrender to India in two distinct instances. First, if the "crime in respect of which his surrender is demanded is one of a political character." Second, if *57 "the requisition for his surrender has, in fact, been made with a view to try to punish him for a crime or offense of a political character." No court has analyzed Article VI's clear distinction between "crime" and "requisition for his surrender".

The rules of statutory construction requires that both the first and second clause of Article V] be afforded meaning. See TRW Inc. v. Andrews, 122 S.Ct. 441 (2001) (Statutes should be construed so that "no clause, sentence or word is rendered superfluous, void, or insignificant"); United States v. Menasche, 348 U.S. 528, 838-539 (1955) (Courts' "duty to give effect, if possible to every word, phrase, sentence, and part of act in pursuance of the legislative purpose.").

The first step in statutory construction is to look to the plain and unambiguous meaning of the language. Barnhart v. Sigmon Coal Co., Inc., 122 S.Ct. 941 (2002) ("First step in statutory construction is to determine whether language at issue has plain and unambiguous meaning"). The second clause of Article VI expressly shifts the focus from the crimes to the "requisition for his surrender". See North Dakota v. United States, 430 U.S. 300, 312 (1983)(Plain language of statute conclusive).

In this case, the requisition for Mr. Barapind's surrender includes crimes or offenses of a political character. The extradition court *58 concluded that Case FIRNo.'s 23, 89, 94, 113, 114, 193 all qualified as crimes or offenses of a political character. Therefore Mr. Barapind's requisition was made "with a view to try or punish him for a crime or offence of a political character." And as a result, "he shall not be surrendered." Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 120 S.Ct. 1942 (2000); Williams v. Taylor, 120 S.Ct. 1479 (2000) (Court gives words of statute their ordinary, contemporary, common meaning).

Interpreting "requisition" as encompassing the entire extradition request Article VI is consistent with the justification of its protection set forth in Quinn v. Robinson, 783 F. 2d 781 (9th Cir. 1986):

First is the belief that individuals have a right to resort to political activism to foster political change ... Second, the exception reflects a concern that individuals - particularly unsuccessful rebels - should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Third, the exception comports with the notion that governments - and certainly their nonpolideal branches - should not intervene in the internal political struggles of other nations.

Quinn v. Robinson, 783 F.2d at 793. Surrendering a relator to the requesting country based on a request that contained political offenses would gut the purpose of Article VI and render its protection a nullity in cases that included political offenses. For example, in this case, surrendering Mr. Barapind to India based on the offenses that the extradition court held were *59 not excepted by Article VI circumvents the protection afforded to him as an unsuccessful political rebel by the Treaty.

Accordingly, the only way to implement Article VI in a manner consistent with its purpose is to interpret it commensurate with its plain language to protect relators from surrender to requesting governments based on extradition requests that include political offenses. The extradition court therefore erred in concluding that the Article VI did not safeguard Mr. Barapind's extradition to India.

b. The only other possible interpretation of "requisition for surrender" is to interpret it as referring to the entire offense and not the crimes that comprise it.

If Court does not interpret "requisition for surrender" as the extradition request, the only viable alternative for the Court is to interpret the language as referring to the underlying incident encompassing the offense. See TRW Inc. v. Andrews, 122 S.Ct. 441 (2001); United States v. Menasche, 348 U.S. 528, 838-539 (1955) (Courts are to give effect to every clause of legislation). Thus, under this alternative, narrower interpretation, the requisition for Mr. Barapind's focuses on the offense, and not the crimes constituting the offense. Therefore once an offense is found to be incidental to a political uprising, Article VI protects the relator from surrender for all the crimes that constitute it. In other words, pursuant to this alternative *60 interpretation, Article VI does not contemplate apportioning motivation for the alleged crimes that are the result of the same incident.

The import of such an interpretation to these proceedings is that it prevents Mr. Barapind's surrender for FIR No. 89 and FIR No. 34. In both cases victims of the offenses included members of the Indian security forces. The extradition court made a finding that attacks by alleged Sikh militants on Indian security forces were incidental to the political uprising and were unextraditable under Article VI. As a result, Mr. Barapind cannot be extradited for any of the crimes alleged in Cases FIR No. 89 and FIR No. 34.

3. Case FIR No.'s 34 & 89

a. Article VI protects Mr. Barapind from extradition for the Sikh militant separatists' attack on the Indian loyalist politician and the government security forces.

Case FIR No. 34 involves an attack that was indistinguishable from attacks that constituted the other offenses. The attack, akin to so many during the uprising, was perpetrated by alleged members of the Khalistan Commando Force on government officials and agents of the Indian security forces, the two sides of the political conflict. Given the temporal and territorial context of this case and the perpetrators and their victims, evidence establishes that it was incidental to the political uprising and therefore excepted from extradition under Article VI of the Treaty.

*61 The Ninth Circuit has outlined that:

...[A] number of factors, though not necessary to the nexus determination, may play a part in evaluating the circumstances surrounding the commission of the offense. For example proof of membership in an uprising group may make it more likely that the act was incidental to the uprising. The similarity of the charged offense to other acts committed by the uprising group, and the degree of control over the accused actions by some hierarchy within the group, may give further credence to the claim that the act was incidental to the uprising. And while the evidence of the accused's political motivation is not required and is usually unavailable, evidence that an act was "committed for purely reasons such vengeance or vindictiveness," may serve to rebut any presumption that a nexus exists. The exception is not designed to protect mercenaries or other acting for non-political motives.

Quinn v. Robinson, 783 F.2d at 810 (citations omitted). Under the framework for evaluating the nexus of an offense to a political uprising this case exhibits not one, but all the factors that counsel in favor of finding that it was incidental. According to the Government of India, the act was perpetrated by the Khalistan Commando Force ("KCF"), a Sikh militant organization that was fighting for Khalistan. [FN4] The offense was typical of the that dominated the Punjab during its occurrence, where the KCF ambushed a former member of the legislative assembly, and three agents of the Indian security forces. T. at 53: 12-18; T. at 264: 12-21. Two of the victims were described as police constables who were assigned to protect the politician. According to the Government of India, the KCF members took the victims' weapons and fled the scene. The Government of India charged each of assailants under its legislation promulgated in response to the Punjab conflict, the Terrorists and Disruptive Activities Act ("TADA"). Record of Excerpts, Tab 15 at K. The record contains no evidence that the offense was not politically motivated.

 

    FN4. The parties stipulated that the Government of India had informed the United States that Mr. Barapind is a member of the Khalistan Commando Force. T. at 424: 24-25; T. at 425: 1 -7.

 

 

    The Khalistan Commando Force ("KCF") was anointed the "defense force" of the Sikh separatist cause. T. at 41: 16-18. The KCF had a

 

    "quasiviolence *62 military command structure and the targets were passed down to the operatives who would actually carry out the missions." T. at 53: 12-14.

 

 

 

The extradition court nonetheless held that Mr. Barapind did not establish by a preponderance.of evidence that the offense fell within the purview of the political offense exception. The court concluded that "whether this attack was a domestic terrorist attack or politically motivated cannot be determined." Record of Excerpts, Tab 5 at 110: 16-17. The extradition court's distinction may possibly be a helpful one in other contexts where there may have been some evidence of a nonpolitical motivation on behalf of the perpetrators. An offense may require additional evidence to establish that it was incidental to a political uprising in an *63 instance where one of the victims of the attack was not an agent of the government or an opponent of the attackers' cause, or if there was some evidence that the incident was not politically motivated.

However, in this case, the only evidence is that the attack by the KCF members was politically motivated and thus incidental to the uprising. FIR No. 34 does not provide any room for a conclusion that the attackers were even in part not politically motivated. Stated differently, given the context, the offense at issue in FIR No. 34 on its face falls comfortably within the Article VI exception as an offense incidental to the Punjab conflict, and there is no evidence in the record to the contrary. Thus, the extradition court erred by certifying Mr. Barapind's extradition on its basis. Quinn v. Robinson, 783 F.2d 776; 783-84 (9th Cir. 1986)(Offenses that are presumptively politically motivated fall within political offense exception unless evidence establishes that actions were motivated by nonpolitical purpose.)

b. Article VI protects Mr. Barapind from extradition for the murder of Kuhvant Kaur because the offense was purely political.

The extradition court concluded that the designs of the perpetrators were to target government sponsored anti-insurgents and therefore their murder of the three brothers was politically motivated and *64 incidental to the uprising. Memorandum at 110-113. The extradition court, however, held that the Article VI protection did not embrace Kulwant Kaur because she was an innocent civilian. Id.

Assuming arguendo that there existed a tenuous showing of probable cause of Mr. Barapind's guilt for Kulwant Kaur's murder, there is no evidence that any of Mr. Barapind's alleged actions at the home were not politically motivated. There is no evidence that Mr. Barapind arrived at the victims' home with the intent to murder Kulwant Kaur, or that he expressed any intent to murder her once at the home.

All of Mr. Barapind's alleged actions exhibited an exclusively political purpose. He first allegedly killed two of the anti-insurgents and then asked about the whereabouts of the third anti-insurgent. Mr. Barapind thereafter remained with the parents. Mr. Barapind did not harm the parents of the insurgents, nor did he ever ask about Kulwant Kaur. Mr. Barapind, thus, never evidenced an intent to harm the "civilians" in the case -- the parents or Kulwant Kaur. To the contrary, when presented with the opportunity to harm civilians he did not. Consequently, Mr. Barapind's actions were all political, and resultantly, nothing he did stripped him of Article VI's protection. See Quinn v. Robinson, 783 F.2d 776, 809-810; see also In re Doherty, 599 F. Supp. 270, 277 (S.D.N.Y 1984).

*65 The district court that considered and dismissed Mr. Barapind's challenge to the extradition magistrate's finding did so on an incorrect reading of the record. The district court held that there was evidence of a non-political motive:

Nor did petitioner establish that the murders were more than revenge killings arising out of a prior family dispute (the murder of one of Petitioner's co-conspirators's [sic] father), even if the brothers were alleged collaborators with the Indian police.

Record of Excerpts, Tab 2 at 16: 1-6. There, however, was no allegation that the father of one of the assailants was murdered by the counterinsurgents or any of the victims in this case. Thus, the district court's rationale for plucking Kulwant Kaur's murder out of the scope of Article VI is without any factual foundation. The extradition and habeas court thus erred by certifying his extradition for Kulwant Kaur's murder.

*66 CONCLUSION

For the foregoing reasons, 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.

 

*67 STATEMENT OF RELATED CASES

Counsel for Kulvir Singh Barapind is aware of the following related cases adjudicated by this Court:

a. Kulvir Singh Barapind v. Reno, 225F.2d 1100 (9th Cir. 2000);

b. Kulvir Singh Barapind v. Rogers, 1997 U.S. App. Lexis 11532 (9th Cir. 1997).