THOMAS J. WARD, PETITIONER V. PATRICK J. ATTRIDGE, UNITED STATES MAGISTRATE, ET AL. No. 90-949 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The Respondents In Opposition TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-7a) is not yet reported. The opinion of the district court (Pet. App. 13a-17a) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 7, 1990. The petition for a writ of certiorari was filed on December 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether Article III and the Due Process Clause of the Fifth Amendment prohibit assigning to a federal magistrate the task of determining whether to issue a certificate of extraditability to the Secretary of State in international extradition proceedings. STATEMENT This case involves an extradition request for petitioner presented by the United Kingdom to the United States. Petitioner maintains that Article III of the Constitution and the Due Process Clause prohibit assigning to a federal magistrate the task of determining whether to issue a certificate of extraditability to the Secretary of State in international extradition proceedings. The district court and the court of appeals rejected petitioner's claim. 1. In May 1989, a Metropolitan Stipendiary Magistrate in the Bow Street Magistrate's Court, United Kingdom, issued a warrant for petitioner's arrest. Petitioner was charged with several violations of the Theft Act of 1968 arising out of his role in a scheme to support the price of Guinness PLC stock during a hostile takeover of the Distillers Company PLC by Guinness early in 1986. Gov't C.A. Br. 2-4. In July 1989, the United Kingdom submitted an extradition request to the Department of State seeking the arrest and extradition of petitioner for violations of the British Theft Act. Pet. App. 13a; Gov't C.A. Br. 4. In accordance with the treaty governing extradition between the United States and the United Kingdom, the United States thereafter filed a complaint, pursuant to 18 U.S.C. 3184, in the United States District Court for the District of Columbia seeking a certificate of extraditability. Pet. App. 14a. The procedure for international extradition has remained essentially unchanged for approximately 140 years. Extradition from the United States occurs only pursuant to a treaty between the requesting nation and the United States. 18 U.S.C. 3181. Section 3184, whose predecessor was enacted in 1848 to implement extradition treaties with Great Britain and France, see In re Kaine, 55 U.S. (14 How.) 103, 109 (1853), adopts the procedure for extradition. /1/ Under that statute, an international extradition hearing is initiated by the filing of a sworn complaint charging the commission of a crime in the requesting country. Upon the filing of the complaint and the issuance of a warrant for the arrest of the individual whose extradition is sought, Section 3184 allows "any justice or judge of the United States, or any magistrate authorized to do so by a court of the United States" to hold a hearing. The statute provides that "(i)f, on such hearing, (the judicial officer) deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same * * * to the Secretary of State." Section 3184 does not authorize the judicial officer to order extradition; instead, pursuant to 18 U.S.C. 3186, the Secretary of State makes the ultimate decision. After the Secretary of State orders extradition, the extradited person may challenge the Secretary's order by seeking a writ of habeas corpus. In that proceeding, the petitioner may challenge the jurisdiction of the extradition court, the validity and scope of the treaty with the requesting country, and the sufficiency of the evidence supporting the finding of extraditability. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Caplan v. Vokes, 649 F.2d 1336, 1340 (9th Cir. 1981). 2. Pursuant to 18 U.S.C. 3184 and Local Rule 501(a)(5) of the United States District Court for the District of Columbia, the district court assigned the matter, In re Extradition of Thomas Joseph Ward, a Fugitive from the United Kingdom and Northern Ireland, Misc. No. 89-207, to a magistrate, respondent Patrick Attridge, for hearing and decision. Pet. App. 2a, 14a. /2/ Petitioner objected to the referral of his extradition proceedings to a magistrate and moved to have the proceedings conducted by a district judge. Relying on 28 U.S.C. 1331, 1361, 1651, and 2241, petitioner also initiated this independent action seeking writs of habeas corpus and prohibition to prevent a magistrate from presiding over his extradition proceedings. The magistrate stayed the extradition hearing pending the district court's disposition of petitioner's claim for collateral relief. Pet. App. 2a. The district court denied the petition for a writ of habeas corpus or prohibition. Pet. App. 13a-17a. The court held that since an extradition proceeding does not adjudicate the guilt or innocence of the person sought to be extradited, an Article III judge need not preside over the proceeding. The court reasoned that an extradition proceeding is closely analogous to other preliminary proceedings over which magistrates may lawfully exercise jurisdiction. Pet. App. 16a-17a. The court also noted that the magistrate's finding that an individual is extraditable does not constitute a final decision that a person will be extradited, because under 18 U.S.C. 3186 only the Secretary of State may order extradition. Pet. App. 17a. 3. Petitioner appealed the denial of the writs of prohibition and habeas corpus, and the court of appeals affirmed the district court's order. Pet. App. 1a-7a. /3/ The court of appeals agreed with the district court that an extradition proceeding does not resolve the guilt or innocence of the fugitive and is akin to a preliminary proceeding on the question whether there is probable cause to hold a defendant to answer for an offense. Id. at 3a. The court ruled that authorizing a magistrate to conduct an extradition proceeding "does not threaten the judicial branch with encroachment by a coordinate branch of government," because magistrates are appointed and supervised by Article III judges. Pet. App. 4a. Turning to petitioner's "core argument," the court held that petitioner did not have a personal right to have an Article III judge preside over his extradition proceeding. The court reasoned that this Court has never held that an Article III court must decide every federal question; that an extradition proceeding is preliminary in nature; and that, by filing a petition for a writ of habeas corpus in federal district court, petitioner may obtain review of the magistrate's decision by an Article III court. Pet. App. 5a-7a. ARGUMENT Petitioner contends that Article III and the Due Process Clause bar a magistrate from presiding at an international extradition proceeding. 1. As this Court has explained, "Article III does not confer on litigants an absolute right to the plenary consideration of every nature of claim by an Article III court." CFTC v. Schor, 478 U.S. 833, 848 (1986). For example, "the Constitution does not require that all persons charged with federal crimes be tried in Art. III courts." Swain v. Pressley, 430 U.S. 372, 382-383 (1977); see Palmore v. United States, 411 U.S. 389, 402 (1973) ("Very early in our history, Congress left the enforcement of selected criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III."). Congressional delegation of a judicial function to a non-Article III officer violates Article III only if it intrudes on "the role of the independent judiciary within the constitutional scheme of tripartite government," Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 583 (1985), or violates a litigant's "right to have claims decided by judges who are free from potential domination by other branches of government. United States v. Will, 449 U.S. 200, 218 (1980); see CFTC v. Schor, 478 U.S. at 848. a. Assigning magistrates to preside over extradition hearings is permissible because, like other miscellaneous functions performed by Judicial Branch officers, conducting extradition hearings does not threaten the judiciary's role vis-a-vis the other branches of government. As this Court long ago held, an extradition proceeding is "of the character of those preliminary examinations which take place every day in this country before an examining or committing magistrate for the purpose of determining whether a case is made out which will justify the holding of the accused." Benson v. McMahon, 127 U.S. 457, 463 (1888). Conducting preliminary hearings and issuing search warrants are analogous functions that have routinely been assigned by statute, rule, and practice to federal magistrates. These are ancillary functions that the courts are authorized to perform, even though they do not constitute the exercise of the "judicial Power" itself. Morrison v. Olson, 487 U.S. 654, 687, 681-682 & n.20 (1988). These functions may be assigned to magistrates because they do not "lie at the core of the historically recognized judicial power." Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 70 (1982) (opinion of Brennan, J.). Like a search warrant, an extradition order simply grants an Executive Branch officer the authority to take action; it does not compel that action, which the Executive Branch officer may decline to take at his option. Indeed, because Congress could have committed the task of making a determination of extraditability entirely to the Secretary of State, the fact that non-Article III officers participate in the hearing process does not raise concerns of Executive Branch encroachment on Judicial Branch prerogatives. Thomas v. Union Carbide Agric. Products Co., 473 U.S. at 589. Besides being consistent with the practice in other analogous areas, the assignment of extradition hearing to magistrates has a substantial pedigree. Magistrates and their predecessors, commissioners, have held international extradition hearings for more than 140 years, and the procedure has never been thought to raise constitutional objections based on Article III. The historical acceptance of that settled practice, without any indication that it has generated interbranch friction, suggests that the practice does not raise significant separation of powers concerns. b. Because presiding over an extradition hearing is not one of the "'essential attributes' of judicial power," Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. at 81 (opinion of Brennan, J.), the assignment of that task to a magistrate did not deprive petitioner of any constitutionally based right to an Article III judge. Making a determination of extraditability, like making a determination of probable cause in the case of a search warrant application, or making a removal determination in a proceeding to transfer under Fed. R. Crim. P. 40, does not constitute a final adjudication of the merits of a dispute, but only a preliminary determination whether certain predicates for further action have been satisfied. To be sure, in the case of extradition, the further proceedings will not be conducted before an Article III judge. But that does not change the preliminary character of the extradition hearing and the limited nature of the inquiry conducted at that time. In addition, the extradition proceeding is not the last opportunity for an extraditee to have his claims addressed by an officer of the Judicial Branch. The Secretary of State's final decision to order extradition is subject to review by an Article III judge through habeas corpus. For that reason, any right that petitioner may have to adjudication by an Article III judge is adequately protected by the availability of judicial review of the essential features of the extradition decision on collateral review. 2. Petitioner contends that the decision below conflicts with Gomez v. United States, 109 S. Ct. 2237 (1989), and United States v. Raddatz, 447 U.S. 667 (1980). Pet. 6-7. Gomez held that 28 U.S.C. 636(b)(3), which allows district courts to assign to magistrates "such additional duties as are not inconsistent with the Constitution and laws of the United States," does not authorize the delegation to magistrates of jury selection at felony trials. The Court found that the structure and legislative history of the statute showed that Congress did not intend to allow magistrates to preside over any aspect of a felony criminal trial. Because of the statutory basis for its decision, the Court expressly declined to decide whether Article III permits a magistrate to preside at jury selection. 109 S. Ct. at 2246 n.25. Thus, Gomez is a purely statutory decision interpreting Section 636(b)(3). That case is inapposite here, because Congress expressly provided in 18 U.S.C. 3184 that a magistrate may preside over international extradition proceedings. United States v. Raddatz, supra, on which petitioner also relies, actually undermines his claim. In Raddatz, this Court rejected an Article III challenge to a magistrate's authority to hear a suppression motion in a criminal case and to make proposed findings and recommendations to the district court concerning the proper disposition of the motion. The Court held that the delegation of suppression hearings to a magistrate "does not violate Art. III so long as the ultimate decision is made by the district court." 447 U.S. at 683. The court emphasized that "the entire process takes place under the district court's total control and jurisdiction." Id. at 681. Justice Blackmun, concurring, stressed that because the magistrate is subject to the control of the Article III court, "the only conceivable danger of a 'threat' to the 'independence' of the magistrate comes from within, rather than without, the judicial department." 447 U.S. at 685. Here, too, magistrates act under the authority of the district court, and the magistrate's decision in the extradition hearing is subject to review by an Article III court in a habeas corpus proceeding. /4/ Nor, because of the nature of proceedings under Section 3184, is there any threat to the independence of the magistrate. /5/ Accordingly, petitioner's Article III claim is without merit. 3. Petitioner contends that authorizing a magistrate to preside over an international extradition proceeding violates the Due Process Clause. Pet. 16-19. He asserts that Ng Fung Ho v. White, 259 U.S. 276 (1922), and Neely v. Henkel, 180 U.S. 109 (1901), hold that due process includes the right of a citizen of the United States to have an Article III judge determine whether he will remain in this country. The court of appeals correctly rejected that argument. As the court of appeals explained, Ng Fung Ho v. White, supra, held that "a resident of the United States who proffers sufficient evidence of his citizenship may not be deported by executive order alone, but must be accorded a judicial trial on the issue of citizenship." Pet. App. 6a n.4. That decision therefore has little bearing on the question whether a citizen can be extradited after a hearing before a neutral and detached decisionmaker. Because a citizen may not be deported, a deportation order constitutes a determination that the deportee is not a citizen. Thus, the determination whether a person is subject to deportation implicates a vital liberty interest. By contrast, an international extradition proceeding determines only that there is sufficient evidence to warrant an individual's surrender to stand trial for offenses the individual is charged with in another country. In Neely v. Henkel, supra, this Court specifically rejected the claim that the extradition statute was unconstitutional because "it does not secure to the accused, when surrendered to a foreign country for trial in its tribunals, all of the rights, privileges, and immunities that are guaranteed by the Constitution to persons charged with the commission in this country of crime against the United States." 180 U.S. at 122. The Court found that a citizen of the United States has no greater due process rights in connection with a crime committed against another country than that nation is willing to accord its own citizens. For that reason, the Court concluded that "(w)hen an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States." Id. at 123. Neely therefore does not support petitioner's claim that he is entitled to a hearing before an Article III judge before being extradited to the United Kingdom. Petitioner asserts that the court of appeals erred in failing to employ the due process calculus set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), Pet. 17-18 & n.18, although he does not explain how use of that calculus would help him. Under Mathews, the process due before an individual may be deprived of an interest protected under the Due Process Clause is determined by reference to three factors: "(f)irst, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." 424 U.S. at 335. Here, petitioner's interest in not being extradited, although significant, is not of the same magnitude as the interest of a criminal defendant in this country or a person facing loss of citizenship. And petitioner makes no showing that a hearing before an Article III judge would decrease the risk of an erroneous deprivation of the interest involved. As noted, the determination in an extradition proceeding that sufficient evidence supports delivery of an individual to the requesting country is essentially the same as the determination that a magistrate frequently makes in issuing arrest and search warrants and in conducting preliminary hearings under Fed. R. Crim. P. 5.1. Moreover, at the hearing petitioner will have the right to counsel and the right to present evidence and cross-examine witnesses. And petitioner's right to petition for a writ of habeas corpus before an Article III judge provides another layer of procedural protection against an erroneous determination that he is subject to extradition. Finally, the United States has a significant interest in the efficient operation of extradition proceedings. The United States has bilateral extradition treaties with dozens of countries, and the government's ability to obtain extradition from those countries depends in part on the manner in which it discharges its responsibilities when another country requests extradition. By freeing district judges from presiding over extradition proceedings, the use of magistrates increases the efficiency of the judicial system generally and extradition proceedings specifically. In short, the extensive procedural protection that petitioner will receive before being extradited, when coupled with the significant government interest in efficient extradition, outweighs petitioner's interest in being extradited only after a hearing before an Article III judge. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /6/ ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney JANUARY 1991 /1/ With grammatical changes, the pertinent language of Section 3184 is virtually identical to the text of the original law that was enacted in 1848. See Act of Aug. 12, 1848, ch. 167, 9 Stat. 302. Section 1 of the original Act became Section 5270 of the Revised Statutes in 1878. Section 5270 in turn became 18 U.S.C. 651 in the 1940 edition of Title 18 of the United States Code, and later became 18 U.S.C. 3184 in the 1948 codification. In 1968, the "technical amendments" in the Federal Magistrate Act changed the word "commissioner" to "magistrate" in Section 3184. See Federal Magistrates Act, Pub. L. No. 90-578, Section 301(a)(3), 82 Stat. 1115. /2/ Local Rule 501(a)(5) provides that "(t)he United States Magistrates appointed by this Court pursuant to 28 U.S.C. Section 631 shall have the duty and power to * * * (c)onduct international extradition proceedings." /3/ Respondents moved for summary affirmance of the district court's order. The court of appeals initially granted the motion, Pet. App. 11a-12a, but later granted a petition for rehearing and agreed to hear an appeal from that order on the merits. The court of appeals refused, however, to stay extradition proceedings before the magistrate while the appeal was pending. Id. at 8a-10a. /4/ Petitioner argues that under Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the availability of habeas corpus to review the decision of the magistrate cannot cure a constitutional defect in the referral of a matter to non-Article III officer. Pet. 14-16. Raddatz, however, makes clear that the availability of an Article III judge to review a magistrate's decision safeguards against the kind of incursion on the magistrate's authority that might violate Article III. /5/ Petitioner contends that the decision below conflicts with the decisions of other circuits. Pet. 12-13. The short answer to that claim is that none of the cases cited involved the issue presented by this case. Two of those decisions held that a defendant need not object to the delegation of jury selection to a magistrate in order to obtain the benefit of this Court's decision in Gomez, an issue quite distinct from the issue in this case and one that is currently pending before the Court for resolution. See United States v. Martinez-Torres, 912 F.2d 1552 (1st Cir. 1990); United States v. France, 886 F.2d 223 (9th Cir. 1989), cert. granted, 110 S. Ct. 1921 (1990). The other cases, like Gomez, simply involve an interpretation of the Magistrates Act. See United States v. Williams, 919 F.2d 266 (5th Cir. 1990); Clark v. Poulton, 914 F.2d 1426 (10th Cir. 1990); Olympia Hotels Corp. v. Johnson Wax Development Corp., 908 F.2d 1363 (7th Cir. 1990); United States v. Curry, 767 F.2d 328 (7th Cir. 1985); Banks v. United States, 614 F.2d 95 (6th Cir. 1980). /6/ The Solicitor General is disqualified in this case.