[00:00:04] Speaker 02: Good morning. [00:00:05] Speaker 01: Good morning. [00:00:06] Speaker 01: May it please the court. [00:00:07] Speaker 01: My name is John Klein, and I represent the petitioner appellant, Mr. Rana. [00:00:14] Speaker 01: And I'd like to reserve five minutes, please. [00:00:16] Speaker 02: We'll try to help you, but keep your eye on the clock. [00:00:18] Speaker 01: I will. [00:00:20] Speaker 01: The central question here is whether the known bis in idam provision in the US-India extradition treaty, the double jeopardy provision, I'll call it, just because it's easier to say, [00:00:34] Speaker 01: permits extradition of a man who was acquitted by an American jury for prosecution in a foreign country on that same conduct. [00:00:43] Speaker 01: That's the question here. [00:00:45] Speaker 01: The answer to that question is no. [00:00:48] Speaker 01: And the answer is no for four principal reasons. [00:00:52] Speaker 00: doesn't your statement of the issue assume the answer when you describe the issue as whether he was prosecuted for the same conduct but there's certainly an argument given the language of the treaty that it's for the same offense and that we should do an elements comparison I framed it the way I did because [00:01:15] Speaker 01: I don't think there's any dispute that India seeks to prosecute Mr. Rana for the same conduct on which he was acquitted in this country. [00:01:22] Speaker 00: But perhaps a different charge, right? [00:01:24] Speaker 00: If the offense that the charges they bring against him are different than the charges here, isn't that acceptable under the treaty? [00:01:33] Speaker 01: I certainly agree with Your Honor that the answer to my question turns on the meaning of the word offense in Article 6.1. [00:01:42] Speaker 01: There's no question about that. [00:01:45] Speaker 01: My argument is that the word offense in Article 6.1 refers to conduct rather than elements. [00:01:52] Speaker 01: And that's the point on which I will offer my foregrounds. [00:01:58] Speaker 02: Yeah, I think you have four different reasons why you think that is the case. [00:02:03] Speaker 02: Can we start with the case law? [00:02:05] Speaker 02: As you know, you've got a Fourth Circuit case, an Eleventh Circuit case. [00:02:09] Speaker 02: that say it's acts, deals with elements, not conduct. [00:02:15] Speaker 02: You've got Sendona, which relied on Justice Brennan's concurrence, and Ash, which was basically eroded in Dixon. [00:02:25] Speaker 02: So what's your best argument, given the case law from the second, I'm sorry, the Fourth and Eleventh Circuits seem to suggest that your position is not meritorious. [00:02:35] Speaker 02: What's your argument that that is incorrect? [00:02:38] Speaker 01: Well, let me start with that Fourth Circuit case. [00:02:41] Speaker 01: OK. [00:02:41] Speaker 01: Because I had gone versus Holt. [00:02:42] Speaker 01: Because I think it actually supports my position. [00:02:46] Speaker 01: The reasoning in gone versus Holt turned on the difference between the dual criminality provision in that treaty. [00:02:54] Speaker 01: It was the US-Mexico treaty and the double jeopardy provision, the known BIS provision. [00:03:02] Speaker 01: In that treaty, the dual criminality provision referred to acts. [00:03:06] Speaker 01: And the double jeopardy provision referred to offense. [00:03:10] Speaker 01: And the Fourth Circuit highlighted that difference in language in determining that offense in the double jeopardy provision must refer to something other than acts. [00:03:21] Speaker 01: And the most logical explanation was it refers to elements. [00:03:26] Speaker 01: The government highlighted that point in its brief. [00:03:29] Speaker 01: The Fourth Circuit relied on that point. [00:03:32] Speaker 01: Here we have the converse, the dual criminality provision [00:03:36] Speaker 01: refers to offense. [00:03:38] Speaker 01: So does the double jeopardy provision, Article 6. [00:03:44] Speaker 02: And you talk about double jeopardy, you're talking about the Latin language for that, from your perspective, right? [00:03:54] Speaker 01: I am. [00:03:55] Speaker 01: And to avoid tripping over the language, I'm going to call it double jeopardy, but it's known bis in hidden. [00:04:04] Speaker 01: The dual criminality provision in the US-India treaty uses the word offense. [00:04:10] Speaker 01: So does the double jeopardy provision, Article 6.1. [00:04:15] Speaker 01: If the difference in language was critical in Goan in determining that offense in the double jeopardy provision meant elements, [00:04:23] Speaker 01: the sameness of that language here should produce the opposite conclusion. [00:04:28] Speaker 00: But what about the different use of language within Article 6 itself? [00:04:32] Speaker 00: So 6.1 says offense and 6.b says acts. [00:04:36] Speaker 00: I mean, that's within the same article of the treaty and you're looking to the dual criminality article, which is Article 2, which has preparatory languages for purposes of this article. [00:04:46] Speaker 01: And Article 6.2 addresses a [00:04:50] Speaker 01: situation where the word offense doesn't fit particularly well. [00:04:54] Speaker 01: Article 6-2 addresses a circumstance where the requested state, here the United States, either has not prosecuted at all, so there's been no charge, nothing that could be called an offense, or there was a charge and then it was dropped. [00:05:13] Speaker 01: In that circumstance, the treaty uses the term acts. [00:05:20] Speaker 01: I don't believe that the term acts in 6-2 was meant to contrast with offense in 6-1. [00:05:26] Speaker 01: I think, in fact, the two terms mean essentially the same thing, just in different contexts. [00:05:32] Speaker 01: And as evidence of that, if you look, and we cite this in our reply brief, if you look at the Belize and Bolivia treaties, which were negotiated by the same State Department during roughly the same period, [00:05:47] Speaker 01: that when I say the same State Department, I mean during the administration of President Clinton. [00:05:52] Speaker 01: The transmittal letters for those two treaties explain the meaning of the analog to Article 6-2, and they use the word offense. [00:06:01] Speaker 01: I think in Article 6-2, the word acts is suitable to the context, but I don't think it means anything other than offense, and I certainly don't think it was meant to contrast. [00:06:12] Speaker 02: With respect, I thought the State Department's technical analysis on this particular treaty [00:06:17] Speaker 02: that was sent to the Congress in connection with the India Treaty supports the government's interpretation that it really is elements that they're talking about. [00:06:28] Speaker 02: What's your response to that? [00:06:30] Speaker 01: You're right, Your Honor. [00:06:31] Speaker 01: That is what the technical analysis that accompanied the India Treaty says. [00:06:35] Speaker 01: My response to that is because it offers no reasoning whatsoever, this Court should not defer to that analysis. [00:06:43] Speaker 01: And I analogize that circumstance to, for example, Chevron and other deference standards, our deference, Chevron deference, because it—and the case, the treaty-related case that's probably most on point for our position is Hill v. Norton from the D.C. [00:07:01] Speaker 01: Circuit. [00:07:02] Speaker 01: where, again, an executive branch agency, I forget which one, the Department of Interior, I think, offered an interpretation of a treaty but gave no reasoning whatsoever. [00:07:13] Speaker 01: And the DC Circuit declined to defer to that interpretation. [00:07:18] Speaker 01: I think the same thing goes here. [00:07:20] Speaker 01: If there were some reasoning, if the technical analysis—and I'm tempted to put that in air quotes, because there's really no analysis at all—if the technical analysis had offered some reasoning for the conclusion that it reaches, then perhaps deference would be appropriate. [00:07:36] Speaker 01: But it doesn't. [00:07:37] Speaker 01: It's simply an assertion by the executive branch. [00:07:40] Speaker 02: So do you take the position that Chevron actually applies in this case? [00:07:45] Speaker 01: Courts—Chevron, by its terms, does not apply. [00:07:49] Speaker 02: Chevron is a— Neither does our, right? [00:07:53] Speaker 01: Neither does. [00:07:54] Speaker 01: But courts have, including Hill v. Norton and a couple of other cases that we cite, courts have analogized the deference due an executive branch interpretation of a treaty to Chevron deference. [00:08:07] Speaker 01: Hill does that. [00:08:07] Speaker 01: There's a Fifth Circuit case that we cite. [00:08:10] Speaker 01: There's a D.C. [00:08:11] Speaker 01: District Court case that does it. [00:08:13] Speaker 01: And I think that's appropriate. [00:08:15] Speaker 01: because determining the meaning of the treaty is, of course, a judicial function. [00:08:22] Speaker 03: If my colleagues have no objection, could I get you just to succinctly say what your four points are and get that on the record? [00:08:30] Speaker 03: Because I'd like to know whether that obviates any of my questions. [00:08:33] Speaker 01: I'm happy to do that. [00:08:34] Speaker 03: And then after you list those four, perhaps you could address Duarte Acero, which is the 11th Circuit case. [00:08:40] Speaker 03: I believe Judge Smith was interested in that as well. [00:08:42] Speaker 01: Yes. [00:08:43] Speaker 01: So my four points to get those out there. [00:08:46] Speaker 01: Number one is the use of the word offense in Article 2.1, which is the dual criminality provision and the canon of interpretation that the same word and the same enactment or treaty is presumed to have the same meaning. [00:09:05] Speaker 01: It's not an inflexible presumption, but it is at least a presumption. [00:09:11] Speaker 01: The second ground, which Your Honor has already raised, is the Gonn versus Holt case from the Fourth Circuit. [00:09:18] Speaker 01: The reliance on the difference between acts and offense in the dual criminality versus double jeopardy provision in that case seems to me to clearly imply that if the same language is used, the same meaning should be afforded. [00:09:35] Speaker 01: So that's the second ground I was going to raise. [00:09:39] Speaker 01: The third ground. [00:09:41] Speaker 01: I'm going to sort of shorthand this, because I argue it at length in the brief. [00:09:48] Speaker 01: Blockburger is fine for a single sovereign double jeopardy regime, because the legislative branch that is drafting the code, enacting the code, can take Blockburger into account, and can make offenses either overlap or not overlap, and therefore be subject to multiple punishments or not. [00:10:10] Speaker 01: in a separate sovereign regime, whether it's federal, state, or here, even more so, two different countries. [00:10:16] Speaker 01: It makes no sense at all. [00:10:18] Speaker 01: It is pure coincidence whether the elements of an Indian offense and a U.S. [00:10:23] Speaker 01: offense overlap or don't overlap. [00:10:26] Speaker 03: And... I want you to go to point four. [00:10:28] Speaker 03: I'm trying to keep you from... Yes, yes. [00:10:30] Speaker 01: One of us. [00:10:31] Speaker 01: Thank you. [00:10:34] Speaker 01: My fourth point is the Headley plea agreement, which [00:10:38] Speaker 01: I think quite clearly takes the position. [00:10:42] Speaker 03: You covered that extensively in your brief. [00:10:44] Speaker 01: I did. [00:10:44] Speaker 03: So I understand where you're going. [00:10:45] Speaker 01: Okay, good. [00:10:45] Speaker 03: And would you mind going to Duarte, which Judge Smith was asking about? [00:10:49] Speaker 01: Duarte interprets a different treaty, not an extradition treaty. [00:10:55] Speaker 01: It talks about prosecution within the same country, not between two different countries. [00:10:59] Speaker 01: And most significantly, significantly to me in that case, the Colombian government had declined to extradite the petitioner or defendant or whatever he was in that case. [00:11:12] Speaker 01: taking the view that the double jeopardy provision applied to conduct rather than elements. [00:11:20] Speaker 01: So I don't think, bottom line is, I don't think Duarte has anything to do with this case at all. [00:11:26] Speaker 01: It's not an extradition case. [00:11:27] Speaker 01: It construes a different kind of a treaty. [00:11:30] Speaker 01: And in the extradition context in that case, the Colombian government— I thought Duarte did deal with non-bis and indom. [00:11:41] Speaker 01: I don't think so. [00:11:42] Speaker 02: It did not. [00:11:43] Speaker 01: I believe it dealt with a different treaty. [00:11:47] Speaker 02: But it used the language, non bis indendum, did it? [00:11:51] Speaker 01: I don't know if it did or not. [00:11:54] Speaker 01: I know ultimately it was construing not an extradition treaty, but a different treaty that involved prosecution within the same country. [00:12:02] Speaker 02: Do you think that the distinction between an extradition treaty and a different type of treaty is [00:12:09] Speaker 02: if you will, important here, determinative, what you're feeling? [00:12:13] Speaker 01: I do. [00:12:13] Speaker 01: I don't think that 11th Circuit case has any application here. [00:12:18] Speaker 02: Because it's a different kind of treaty. [00:12:19] Speaker 01: It's a different kind of treaty. [00:12:20] Speaker 01: And in the extradition context, as I'm recalling the facts of that case, the Colombian government, based on a conduct analysis, had declined to extradite. [00:12:32] Speaker 01: So that's sort of the short end. [00:12:36] Speaker 01: I'll take another look at my brief, and I may have more to say in rebuttal. [00:12:44] Speaker 03: What do you do with Abbott that we are to give substantial weight to the State Department's interpretation? [00:12:52] Speaker 01: I think as a general interpretive principle, that is, of course, the law. [00:12:59] Speaker 01: The Supreme Court said it over and over. [00:13:03] Speaker 01: But I also think that [00:13:05] Speaker 01: As with any standard suggesting deference by the judicial branch to an executive interpretation, a lot depends on the analysis itself. [00:13:18] Speaker 01: A reasonable analysis, a thoughtful analysis, an analysis that actually analyzes, I think, would be due considerable deference. [00:13:27] Speaker 01: An analysis that is really just an ipsy dixit, to use another Latin phrase, I don't think is entitled to deference at all. [00:13:37] Speaker 01: I'll also say this. [00:13:38] Speaker 01: I think both the notion of deference and the notion of [00:13:46] Speaker 01: interpreting a treaty in favor of extradition, which is another sort of a principle that the government invokes. [00:13:51] Speaker 01: I think those are a bit like the rule of lenity in the criminal context, which is they come in, if they come in at all, they come in at the end of the process, after you've looked at the text of the treaty and done a textual analysis. [00:14:05] Speaker 02: And I think— What role, if any, should the fact that the government of India construes the treaty in the same way that our government does? [00:14:15] Speaker 01: The construction we have from the government of India is one written by the prosecutor in the case. [00:14:23] Speaker 01: Of course he's going to take the position that the treaty permits the extradition of Mr. Rana. [00:14:29] Speaker 02: But we just view that simply as a document of advocacy, not one of reasoned position for interpreting the treaty. [00:14:36] Speaker 01: I think that's exactly what it is. [00:14:38] Speaker 01: It is a piece of advocacy. [00:14:40] Speaker 00: Why do the technical notes need to contain substantial or even just some analysis of the State Department's position? [00:14:50] Speaker 00: Because aren't the technical notes just the State Department's statement of what it understands the treaty to mean? [00:14:57] Speaker 00: It is. [00:14:58] Speaker 00: Right? [00:14:58] Speaker 00: So they're not going to do a big analysis. [00:14:59] Speaker 00: They're sending notes to Congress saying, this is what we think the treaty means. [00:15:02] Speaker 00: This is it. [00:15:03] Speaker 00: Here's our understanding. [00:15:05] Speaker 00: It doesn't seem that you were suggesting earlier that we really shouldn't give any weight to those technical notes or analysis, and you denigrated them and saying, oh, they're not even really analysis. [00:15:16] Speaker 00: They're just too succinct, too terse to provide any weight to what the treaty means. [00:15:22] Speaker 01: Two responses to that, Your Honor. [00:15:24] Speaker 01: One is I think sometimes technical analyses actually do analyze a bit. [00:15:28] Speaker 01: This one does not. [00:15:30] Speaker 00: But does that matter? [00:15:31] Speaker 00: Is there a case law that says that they have to say a certain amount? [00:15:35] Speaker 01: Well, it matters to this extent. [00:15:37] Speaker 01: The State Department is saying what its position is on this treaty. [00:15:42] Speaker 01: Perhaps that's entitled to some deference, even without any analysis. [00:15:47] Speaker 01: I'll tell you what undercuts that, though, is Mr. Headley's case. [00:15:51] Speaker 01: The problem is the government seems to be willing to take the position that this treaty means whatever it needs it to mean. [00:16:00] Speaker 01: Because in Mr. Headley's case, [00:16:02] Speaker 01: The U.S. [00:16:03] Speaker 01: attorney for the Northern District of Illinois, a highly respected lawyer who I've tried cases against, got up and said, under the treaty, Mr. Headley is protected for conduct. [00:16:19] Speaker 02: And I am— But I thought in Headley's case, though, that part of his plea was specifically that he would not be extradited. [00:16:28] Speaker 02: Doesn't that undercut your argument there? [00:16:31] Speaker 02: What difference does it make what the US attorney said in that case? [00:16:34] Speaker 01: Because what the US attorney said was that it was the treaty that called for that conclusion. [00:16:41] Speaker 01: If this had simply been a negotiated plea agreement with no reference to the treaty and protections that clearly extended beyond the treaty, that might be one thing. [00:16:52] Speaker 01: Although even then, there'd have to be some discussion with the criminal division under the justice manual. [00:16:58] Speaker 01: But here, both the plea agreement itself [00:17:01] Speaker 01: and Mr. Fitzgerald's explanation of the treaty at the plea colloquy referred specifically to the treaty. [00:17:09] Speaker ?: OK. [00:17:09] Speaker 02: Do you want to save? [00:17:11] Speaker 02: We've taken you well past where you wanted to go. [00:17:13] Speaker 02: Do you want to save the balance of your time for rebuttal? [00:17:15] Speaker 01: I'll save my remaining two minutes and 52 seconds. [00:17:17] Speaker 02: Very well. [00:17:18] Speaker 02: Thank you. [00:17:18] Speaker 02: Thank you. [00:17:20] Speaker 02: All right. [00:17:21] Speaker 02: So we're now going to hear from Mr. Alden, correct? [00:17:26] Speaker 04: Correct. [00:17:28] Speaker 04: Good morning. [00:17:28] Speaker 04: Good morning, Your Honors. [00:17:29] Speaker 04: May it please the Court, Bram Walden for the United States. [00:17:33] Speaker 04: I've joined a council table by AUSA John LeLegend, who handled this matter in the lower courts. [00:17:40] Speaker 04: The lower courts here got it right. [00:17:43] Speaker 04: Rana is extraditable to India under the plain provisions of the treaty, and India has established probable cause to prosecute him for his role in terrorist attacks that resulted in 166 deaths and 239 injuries. [00:18:00] Speaker 03: Counsel, let's say we probably agree with your position. [00:18:04] Speaker 03: What do we do with Clary v. Gregg, Ninth Circuit precedent? [00:18:09] Speaker 03: How do we rule in your favor without violating that precedent? [00:18:12] Speaker 04: Clary v. Gregg is entirely about dual criminality. [00:18:16] Speaker 04: And there's no real dispute here on dual criminality, which is to say both the United States and India make this specific conduct criminal. [00:18:26] Speaker 04: In the dual criminality context, this court has held, as has the Supreme Court, that the analysis should look to the conduct underlying the offense. [00:18:37] Speaker 04: Otherwise, virtually nothing would be extraditable [00:18:40] Speaker 04: and it would contravene the intent of the parties. [00:18:43] Speaker 04: And ultimately, that is the purpose of treaty interpretation, and something that I think Rana is really losing sight of, which is that this court's only role, and that is what the Supreme Court has said in Sumitomo Shoji and in Abbott, is to interpret the intent of the parties. [00:19:00] Speaker 04: Here, the parties agree on the meaning of this treaty provision, the non-BIS provision in Article 6.1, [00:19:07] Speaker 04: both parties have now stated what they intended, that that provision be interpreted based on the elements of the offense and not based on the conduct underlying those crimes. [00:19:20] Speaker 04: That is consistent with long-standing Supreme Court double jeopardy precedent, obviously in both [00:19:28] Speaker 04: the Gamble case and the Dinesby case, where there were separate sovereigns, the Supreme Court has said there is no double jeopardy limitation. [00:19:38] Speaker 04: And when we construe the word offense, it is construed to mean crime. [00:19:43] Speaker 04: In the double jeopardy context, which is what the parties were interpreting and incorporating into their treaty provision in Article 6.1, there is no limitation whatsoever [00:19:56] Speaker 04: on successive prosecutions by separate sovereigns. [00:20:00] Speaker 04: So absent this treaty, there would be no limitation double jeopardy-wise at all. [00:20:06] Speaker 04: So when you look at this treaty and are interpreting what the parties intended, it was a very narrow exception to the rule that there would otherwise be no limitation at all. [00:20:17] Speaker 02: Let me ask you this, counsel. [00:20:20] Speaker 02: Taking the government's position, [00:20:22] Speaker 02: that it's really elements that we're looking at, elements of a crime. [00:20:27] Speaker 02: Let's say that the element of the crime for which Mr. Rana was prosecuted but not convicted were exactly the same as the elements of the crimes charged in India. [00:20:42] Speaker 02: Would that be a situation where there would in effect be double jeopardy and he would not be extraditable? [00:20:47] Speaker 04: There wouldn't be a double jeopardy bar under the Constitution, but yes. [00:20:53] Speaker 04: There would not under the Constitution, but there would under the treaty. [00:20:57] Speaker 02: Okay, so basically, if we look at this as the government argues and arguably the case law says, we look at elements. [00:21:06] Speaker 02: You don't have that situation here. [00:21:08] Speaker 02: You have different elements under Indian law for which he's being charged, so you don't have double jeopardy. [00:21:14] Speaker 02: But the government concedes that if they were the same elements of the same crimes, then in fact, he would not be extraditable. [00:21:20] Speaker 04: That's exactly right, Your Honor. [00:21:22] Speaker 04: And that is what the parties intended. [00:21:24] Speaker 04: And Rana has never even attempted to make an argument that he could satisfy that standard. [00:21:30] Speaker 04: he concedes effectively that that standard cannot be met, that he cannot show that the same elements for which India seeks to prosecute him were the same elements that he was prosecuted for in Chicago. [00:21:43] Speaker 04: To go back to some of the other points that your honors were making, [00:21:47] Speaker 04: Judge Smith, I do agree that the Fourth Circuit and the Eleventh Circuit have both rendered decisions that are relevant here. [00:21:55] Speaker 04: Duarte Acero, the Eleventh Circuit decision, didn't specifically use the words non bis in idem, but it did use the words double jeopardy in analyzing the provision of the convention that was at issue in that case. [00:22:08] Speaker 02: Non bis in idem in Latin is double jeopardy basically, right? [00:22:11] Speaker 04: Effectively. [00:22:12] Speaker 04: It's like not the same thing twice. [00:22:16] Speaker 04: In the Duarte Ossera case, the 11th Circuit looked at the provision of a convention that limited successive prosecutions based on the same offense and said that triggers an elements-based analysis for double jeopardy purposes. [00:22:32] Speaker 04: That is exactly the argument we have advanced here, and it is exactly the argument that the Fourth Circuit [00:22:38] Speaker 04: adopted in Yigon. [00:22:40] Speaker 04: Council points to the fact that Yigon based its analysis somewhat on the distinction between the word acts in the dual criminality clause that Clary v. Gregg was talking about versus the word offense in the non-bis provision. [00:22:57] Speaker 04: But that was not at all the basis of the Fourth Circuit's opinion. [00:23:01] Speaker 04: And I want to just point to exactly where the Fourth Circuit drew this distinction, which was [00:23:09] Speaker 04: at page 1286 of their opinion, and they are pointing out that, sorry, that's the Duarte-Acer opinion, it's 1286, where it actually makes the point that I just made, and then in the Fourth Circuit's opinion in Yigan, they specifically say that [00:23:32] Speaker 04: The most natural reading of offense as distinct from acts is that offense refers to the definition of the crime itself with no pointing to which specific provision it was in as the basis for the analysis. [00:23:47] Speaker 04: What the Fourth Circuit held was that because there were two words at some point in the treaty that were different, the court had to interpret them differently. [00:23:56] Speaker 04: And I think Judge Beatty's point is really pertinent here, which is that here the two words that are different appear in adjoining provisions of the same article of the treaty, which would make this an even stronger case under cases like McMaster, which have said that when you have two different words in the same exact article or [00:24:15] Speaker 02: adjoining provisions that that should be an even stronger basis to say there must be different meanings to those two words. [00:24:39] Speaker 02: but was arguably eroded in Dixon, and then they cited the internal DOJ Petit policy. [00:24:47] Speaker 02: What's your comment about that case? [00:24:50] Speaker 02: Since that one does seem to take an interpretation different than either Duarte Acero or Egon. [00:24:58] Speaker 04: Correct, Your Honor. [00:24:59] Speaker 04: And the three foundations of Sindona have been eroded. [00:25:03] Speaker 04: In fact, [00:25:04] Speaker 04: Elcock, which was a case that came out of a district court in the Second Circuit after Cendona, didn't even apply Cendona after its three foundations had been eroded. [00:25:16] Speaker 04: And I agree with Your Honor completely that the first foundation was Justice Brennan's concurrence in Ash, which was then really repudiated by the Supreme Court's decision in Dixon. [00:25:28] Speaker 04: The second foundation was this idea that foreign nations might not be familiar with the American double jeopardy jurisprudence and the way that Blockberger analyzes elements. [00:25:40] Speaker 04: That's not true here. [00:25:41] Speaker 04: We know based on India's own analysis and their own common law, [00:25:46] Speaker 04: that originates from Britain just like ours, that they too use an elements-based jeopardy jurisprudence. [00:25:53] Speaker 04: And the third foundation, the government's Pettit policy, that actually cuts in favor of the government because it shows that the United States knows exactly how to limit itself [00:26:04] Speaker 04: when double jeopardy constitutionally does not. [00:26:08] Speaker 04: If the United States had wanted to impose that same limitation here, it could have negotiated that with India, and it didn't do so. [00:26:18] Speaker 04: A few other points that opposing counsel raised that I did want to address. [00:26:22] Speaker 04: I think, Judge Smith, you pointed out that Chevron deference is not something that applies in this context. [00:26:28] Speaker 04: I think that's absolutely imperative to realize that this is about interpreting two parties like a contract. [00:26:36] Speaker 04: This is a contract and what they intended. [00:26:39] Speaker 04: Both parties agree. [00:26:40] Speaker 04: This is not about interpreting an agency regulation that is intended solely to regulate the public or solely to interpret a statute. [00:26:49] Speaker 04: This is about interpreting a contract between two parties who both agree as to the meaning of that contract. [00:26:57] Speaker 04: In that context, it makes perfect sense to afford substantial weight, as the Supreme Court has said in Abbott, as it said in Sumitomo Shoji, as this court has reiterated in other case law, to the views of the parties, because ultimately, again, the only role of the court is to interpret the language of the treaty in a way that advances and really implements those parties' views. [00:27:22] Speaker 00: So your opposing counsel suggested, or I understood his remarks, to suggest that the views of the parties perhaps are not entitled to deference or much weight because they're changing, depending on the circumstances. [00:27:38] Speaker 00: So in India, the prosecutor who wants to have Mr. Rana extradited and prosecuted is saying, oh, this is what the treaty means, and so we should look at that with a grain of salt. [00:27:47] Speaker 00: And here, the United States has taken a, you know, based on their interpretation of the remarks at the Headley plea colloquy, has taken a different position. [00:27:57] Speaker 00: So if the two states who are involved are taking differing interpretations based on expediency, why do we give that much weight? [00:28:07] Speaker 04: The United States has not taken different positions because the United States' only formal position that it has ever articulated [00:28:16] Speaker 04: in advance of ratification of this treaty in a report to the Senate that had to ratify the treaty that was formalized and adopted in the Senate record was the technical analysis position. [00:28:29] Speaker 04: This court, nor the Supreme Court, has never deferred to an off-the-cuff statement that a U.S. [00:28:35] Speaker 04: attorney has made during the course of a plea colloquy, nor has it deferred to something that was written in a single defendant's plea agreement. [00:28:43] Speaker 04: What it has deferred to and what the Supreme Court has deferred to is the formal official analysis that was in the technical analysis and that opposing counsel agrees clearly supports the government's position here. [00:28:56] Speaker 04: So I do not believe that the United States has taken differing positions. [00:29:00] Speaker 04: As to India, I admit that this position was adopted in connection with this case, but nothing precludes this court from giving deference to that either. [00:29:11] Speaker 04: In fact, in Sumitomo Shoji, what was given deference to was an amicus brief that the government had filed in that case. [00:29:19] Speaker 04: And the same thing happened in Abbott. [00:29:21] Speaker 04: where it was an amicus brief that the United States had filed in that specific case articulating its position, the Supreme Court gave deference to both of those briefs over the objection of the dissent who said we should not be deferring to something that was developed for purposes of litigation. [00:29:37] Speaker 02: I gather there is also nothing in the record that shows that the government of India has taken an opposite and contrary position to the one that's taken in this case. [00:29:46] Speaker 04: That's absolutely correct, Your Honor. [00:29:49] Speaker 04: And the position it took in this case was developed by the special public prosecutor. [00:29:53] Speaker 04: He formalized it and it was sent to the United States in a diplomatic note. [00:29:58] Speaker 04: That is the official position of India, just as the technical analysis is the official position of the United States. [00:30:05] Speaker 02: Constitution requires the Senate to ratify a treaty that State Department explanations of what was intended. [00:30:14] Speaker 02: It's got to be given a fair amount of deference because it's it is the explanation of the government of what it intended. [00:30:22] Speaker 02: for the senators can consider it in determining whether to ratify the treaty, right? [00:30:28] Speaker 04: That's absolutely right. [00:30:29] Speaker 04: Absolutely right. [00:30:30] Speaker 04: And it goes back to the same point I've been making, which is what the Supreme Court said in Sumitomo Shoji. [00:30:36] Speaker 04: Our role is limited to giving effect to the intent of the treaty parties. [00:30:40] Speaker 04: When the parties to treaty both agree as to the meaning of a provision, we must defer [00:30:46] Speaker 04: absent extraordinarily strong contrary evidence. [00:30:50] Speaker 04: And it is exactly for that reason, which is that we are interpreting the intent of the parties. [00:30:55] Speaker 04: This is a formal position that is given to the Senate that has the role to play constitutionally in ratifying this treaty. [00:31:03] Speaker 02: And I gather just in passing, as you know, your opposing counsel has argued that there's not competent evidence supporting probable cause. [00:31:11] Speaker 02: They have an extremely difficult burden to meet, but I gather [00:31:15] Speaker 02: that it's the government's position that they don't come close to meeting that, that basically this is like probable cause in connection with a criminal indictment. [00:31:25] Speaker 02: The fact that the person providing evidence that underlies the probable cause's credibility is attacked doesn't matter. [00:31:33] Speaker 02: Is that correct? [00:31:34] Speaker 04: I would go even further to say, in a criminal case, when you have a magistrate actually evaluating probable cause for criminal purposes and a prosecution that's going to happen here, it is actually more defense-friendly than in a case when you're merely determining whether the magistrate can extradite. [00:31:53] Speaker 04: And at this stage in particular, when the habeas case and the habeas court was merely evaluating whether there was any competent evidence that could have supported the magistrate judges finding a probable cause. [00:32:08] Speaker 04: So the law, as Your Honor is suggesting, is extraordinarily favorable to the government [00:32:15] Speaker 04: on habeas review where Rana must, quote, completely obliterate probable cause. [00:32:21] Speaker 04: That is what the case law holds. [00:32:23] Speaker 04: There is no way he has met that, which is probably why the reply brief effectively gave up on that argument. [00:32:29] Speaker 04: The evidence is overwhelming to support probable cause, that low standard that Rana knew about what was going to happen in India between 2006 and 2008. [00:32:42] Speaker 04: He met with Headley multiple times. [00:32:44] Speaker 04: There is documentary evidence that supports Headley's testimony, including the fake visa applications that were provided so that Headley could operate a fraudulent business in India in order to conduct surveillance in order to carry out those terrorist attacks. [00:33:02] Speaker 04: There was a phone call, of course, after the fact where Rana said that he was informed about what was going on by one of their co-conspirators in Pakistan. [00:33:12] Speaker 04: And his praise for what was carried out in a gruesome terrorist attack that killed 166 people, injured 239 more, and cost India 1.5 billion. [00:33:24] Speaker 02: It was primarily at the Taj Mahal Hotel, right? [00:33:26] Speaker 04: Primarily at the Taj Mahal Palace Hotel, but the terrorists attacked a number of bars, restaurants, the Habad House. [00:33:35] Speaker 04: There were other targets in India that they were attacking in Mumbai, and it was their 9-11. [00:33:42] Speaker 04: It was a devastating attack over the course of multiple days that resulted, as I have said, in 166 deaths, including six Americans. [00:33:51] Speaker 04: That is why India wants to prosecute this case, and under the extradition treaty has every right to do so. [00:33:58] Speaker 03: Opposing counsel maintains that it is important that his client was acquitted of certain charges in the Northern District of Illinois trial. [00:34:10] Speaker 03: I take it your position is the fact that someone wasn't proved guilty beyond a reasonable doubt doesn't mean there was not probable cause. [00:34:18] Speaker 04: Absolutely your honor and to the extent he wants to raise humanitarian concerns or even concerns about [00:34:25] Speaker 04: the process, the acquittal, the fact that he is facing extradition, those all get raised and can be raised to the Secretary of State. [00:34:33] Speaker 04: That is the person who is empowered to evaluate and balance concerns about potential acquittal, double jeopardy that isn't precluded under the language of the treaty, humanitarian issues, circumstances in India, take all of those things into consideration and determine whether or not to extradite. [00:34:53] Speaker 02: And that's the next step. [00:34:54] Speaker 02: If, arguing though, if we affirm the district court [00:34:58] Speaker 02: then Mr. Rana can appeal to the Secretary of State and make a final appeal before he would actually be extradited. [00:35:04] Speaker 02: Is that right? [00:35:04] Speaker 02: Yes. [00:35:04] Speaker 04: And my understanding is he has already actually made an appeal, and he can pursue that appeal with the executive branch that has the authority and discretion to determine whether to ultimately extradite. [00:35:14] Speaker 02: I understand the Secretary of State basically has carte blanche to decide what he or she is going to consider in making that determination. [00:35:22] Speaker 02: Is that right? [00:35:22] Speaker 04: I share that understanding. [00:35:25] Speaker 04: Thank you. [00:35:25] Speaker 02: Other questions? [00:35:26] Speaker 02: Thank you very much for your argument. [00:35:29] Speaker 02: All right. [00:35:30] Speaker 02: So let's hear again from Mr. Klein. [00:35:35] Speaker 01: A few quick points. [00:35:37] Speaker 01: First, let me talk about the Fourth Circuit case in Gonn versus Holt. [00:35:44] Speaker 01: The distinction between acts in the dual criminality provision and offense in the double jeopardy provision was critical to the decision. [00:35:52] Speaker 01: I'm looking at page 215 of the opinion. [00:35:55] Speaker 01: So as we begin our analysis with the language of the treaty, Article 6 talks about offense. [00:36:02] Speaker 01: Article 2, the dual criminality provision, talks about acts. [00:36:06] Speaker 01: The use of the word offense in this context and acts in another signifies that the offenses to be compared during the known BIS inquiry must be something other than the acts underlying those offenses. [00:36:19] Speaker 01: Again, we have the reverse of that. [00:36:21] Speaker 01: We have offense in both places. [00:36:23] Speaker 01: And the natural inference from this language in Ghana is offense means the same in both places. [00:36:29] Speaker 02: What is your position about the State Department's explanation of the treaty to the Senate? [00:36:39] Speaker 01: The technical analysis you're talking about. [00:36:42] Speaker 02: Only what I've said before, which is... Wasn't enough, didn't say enough. [00:36:47] Speaker 01: It just doesn't provide any analysis. [00:36:51] Speaker 01: if you apply the tools of treaty interpretation that I've suggested, those overcome whatever force the technical analysis might have. [00:37:05] Speaker 01: Let me talk for a minute about Sindona, because we've alluded to that but haven't really discussed it. [00:37:13] Speaker 01: In Sendona, the court concluded that the elements test would not work very well in the extradition context. [00:37:20] Speaker 01: And I think largely for the reasons that I've articulated. [00:37:22] Speaker 01: I think the opinion uses the phrase the quiddity of the requested country or something like that. [00:37:29] Speaker 01: But the bottom line is, it's just a matter of coincidence rather than any sort of forethought or system, whether the elements overlap in the two [00:37:39] Speaker 01: settings. [00:37:39] Speaker 01: So then the court looked to try to find what standard might we apply here. [00:37:45] Speaker 01: And that was the context in which it looked at Judge Justice Brennan's concurrence in Ash v. Swenson. [00:37:51] Speaker 01: It wasn't relying on that as the law. [00:37:53] Speaker 01: It was looking for a standard that could be applied if the elements test wouldn't work. [00:38:00] Speaker 01: In exactly the same way, the court looked to the petite policy of the Department of Justice, which by the way, remains in place to this day. [00:38:08] Speaker 01: It was the court was having rejected the elements test as essentially unworkable. [00:38:13] Speaker 01: It was looking for a standard that could be applied. [00:38:16] Speaker 01: And in looking for a standard, it looked to Justice Brennan's concurrence. [00:38:20] Speaker 01: It looked to the petite policy. [00:38:21] Speaker 01: It did not take either one as the law, as binding in some way. [00:38:26] Speaker 01: They were simply guides in trying to find the standard. [00:38:29] Speaker 02: Very well. [00:38:29] Speaker 01: My time is up. [00:38:30] Speaker 02: Thank you. [00:38:30] Speaker 02: Thank you, counsel. [00:38:32] Speaker 02: Thanks to both counsel for your very learned arguments, very helpful. [00:38:35] Speaker 02: As you can imagine, this is not an everyday case that we get here. [00:38:38] Speaker 02: So we particularly appreciate the scholarly nature of your briefs and your arguments. [00:38:44] Speaker 02: So thank you both. [00:38:44] Speaker 02: The case just argued is submitted.