Opposition Brief — Sidali v. Immigration & Naturalization Service

Suprema YOUN, V.0e

FILED

No. 97-399

In the Supreme Court of the United States

OCTOBER TERM, 1997

MEHMET SEMIH SIDALI, PETITIONER

IMMIGRATION AND NATURALIZATION SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

DAVID S. KRIS

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in declining to

vacate its judgment after the case became moot.

TABLE OF CONTENTS

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I

TABLE OF AUTHORITIES

Cases:

Clarke v. United States, 915 F.2d 699 (D.C. Cir.

SPOT PiisnsiiieasiinceniisukinstCthaiibscksdspcbuiatadacss divabassueessesocss

Ghanatchi, In re, 705 F.2d 1315 (11th Cir. 1988) .......

Independent Union of First Attendants v. Pan

American World Airways, Inc., 966 F.2d 457

Oo Rs SID REISR. EEE STEN Sania lian 7 re

Mahoney v. Babbitt, 113 F.3d 219 (D.C. Cir. 1997) .

Robinson v. California, 371 U.S. 905 (1962) ............

United States v. Munsingwear, Inc., 340 U.S. 36

IIE bales iadisa Gapnsiniuiccidac<dbuaeuetuasoncinedoniviséekehckelucasecise

U.S. Bancorp Mortgage Co. v. Bonner Mall Part-

MOTERID, BID UG. 15 GB] oocccccvscosicceosccecsscssossrcess

Treaty and statute:

Treaty on Extradition and Mutual Assistance in

Criminal Matters, June 7, 1979, U.S.-Turkey,

82 U.S.T. 311, T.I.A.S. No. 9891, 1981 WL 178195 ...

SP PENIS INI since ca cubiccctanuudshunidbadesdsscwcsicansdiceseasbabesuns

Miscellaneous:

138A C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure (1997 Supp.) ........sssccee00000-

(iT)

)

Jn the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-399

MEHMET SEMIH SIDALI, PETITIONER

v.

IMMIGRATION AND NATURALIZATION SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

me,

OPINIONS BELOW

The order of the court of appeals denying peti-

tioner’s motion to dismiss (Pet. App. la) is unpub-

lished. The opinion of the court of appeals reversing

the grant of habeas corpus relief from the certifica-

tion of extraditability (Pet. App. 3a-22a) is reported at

107 F.3d 191. The opinion of the district court grant-

ing habeas corpus relief from the certification of

extraditability (Pet. App. 44a-66a) is reported at 914

F, Supp. 1104. The opinion of the magistrate judge

certifying extraditability (Pet. App. 23a-43a) is re-

ported at 899 F. Supp. 1342.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

May 28, 1997. A petition for rehearing was denied on

July 24, 1997. Pet. App. 2a. The petition for a writ of

certiorari was filed on September 3, 1997. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(*).

STATEMENT

A United States magistrate judge in the District of

New Jersey certified petitioner’s extraditability to

Turkey, pursuant to 18 U.S.C. 3184 and the applicable

treaty,’ after finding probable cause to believe that

petitioner had committed rape and murder in that

country. Pet. App. 23a-48a. The district court

granted habeas corpus relief from the certification of

extraditability. Jd. at 44a-66a. The court of appeals

reversed the grant of habeas corpus relief. Jd. at 3a-

22a. While a petition for rehearing was pending, the

Turkish criminal proceedings against petitioner were

dismissed, and the magistrate judge granted the gov-

ernment’s motion to dismiss the extradition com-

plaint. Jd. at 68a; see id. at 73a-74a. The court of

appeals denied petitioner’s motion to dismiss the

appeal as moot. Jd. at la.

1. In 1971, petitioner was charged in Turkey with

the rape and murder of a 15-year-old girl who had been

living at his house in Mersin, Turkey. He was acquit-

ted by the three-judge trial court, but the appellate

! Treaty on Extradition and Mutual Assistance in Criminal

Matters, June 7, 1979, U.S.-Turkey, 32 U.S.T. 3111, T.I.A.S.

No. 9891, 1981 WL 178195.

3

court reversed the acquittal.’ After a retrial, peti-

tioner was again acquitted, but the appellate court

again reversed, citing “sufficient and convincing evi-

dence” of petitioner’s guilt. Pet. App. 5a-8a.

On December 17, 1976, four days after the appellate

court’s decision, petitioner applied for a passport.

Mistakenly believing that petitioner had been acquit-

ted, the Turkish government permitted him to leave

the country. Petitioner has lived in the United

States since January 1977. Pet. App. 8a.

The Turkish government issued an absentia arrest

warrant for petitioner in March 1977. Pet. App. 28a.

2. On October 31, 1994, the United States filed an

extradition complaint, on behalf of Turkey, charging

petitioner with rape and murder, which are extra-

ditable offenses under the extradition treaty between

the two countries. Pet. App. 9a. A magistrate judge

conducted a hearing to ascertain whether there was

“evidence sufficient to sustain the charge[s],” 18

U.S.C. 3184, and thus whether petitioner was subject

to extradition. Pet. App. 9a. The magistrate judge

found that the Section 3184 standard was satisfied on

two independent grounds: first, because petitioner

had already been convicted of rape and murder by the

Turkish appellate court, and, second, because the

United States had established probable cause, aside

from the conviction, to believe that petitioner had

committed the crimes. /d. at 10a, 33a-34a, 41a.2 The

® Under Turkish law, “verdicts of acquittal may be ap-

pealed to the Supreme Court of Appeals.” Pet. App. 6a.

3 The magistrate judge noted that the government had

shown, among other things, “that the victim lived in [peti-

tioner’s] home; that she was raped and strangled; that (peti-

tioner] had the opportunity to commit the crime; that

[petitioner] was the only man living in the home at the time;

4

magistrate judge therefore entered an order of extra-

dition. Jd. at 10a, 41a.

Petitioner challenged the extradition order by

seeking a writ of habeas corpus. Pet. App. lla. The

district court granted habeas corpus relief. Jd. at 12a,

44a-66a. The court held that the government had

failed to establish either that petitioner was actually

convicted of rape and murder or that there was

probable cause to believe that he had committed those

crimes. Jd. at 12a, 57a-65a.

The court of appeals reversed. Pet. App. 3a-22a.

First, the court held that petitioner’s Turkish con-

viction was “per se probable cause” to warrant his

extradition. Jd. at 18a. The court rejected peti-

tioner’s argument that the Turkish appellate court

had merely remanded the case for a third trial on the

issue of guilt; instead, the court concluded that the

appellate court, consistent with Turkish law, had

remanded the case only for the imposition of sentence.

Id. at 14a-18a. Second, the court held that the

magistrate judge’s alternative finding—that probable

cause existed, aside from the conviction, to believe

that petitioner committed rape and murder—was ade-

quately supported by competent evidence in the

record. Jd, at 18a-2la. The court therefore concluded

that petitioner “may be extradited” to Turkey. /d. at

4a.

3. On April 10, 1997, six weeks after the Third

Circuit entered its judgment, a Turkish court “de-

cided to abolish the case against [petitioner] because

the statute of limitations has expired.” Pet. App. 74a.

that there was no conclusive proof that anyone else had entered

the house; and that blood was discovered on [petitioner's]

pajama sleeve shortly after the crime.” Pet. App. 34a.

5

The court’s order indicates that petitioner was

represented by counsel in that proceeding. See id. at

88a-90a. On that same day, petitioner filed a petition

for rehearing in the court of appeals. Jd. at 76a. He

subsequently filed a motion to dismiss the appeal as

moot.

On May 6, 1997, while petitioner’s motion and peti-

tion for rehearing were pending in the court of

appeals, the Turkish government notified the State

Department by diplomatic note that it was “with-

drawing its request for the extradition of [peti-

tioner].” Pet. App. 74a. On May 8, 1997, the United

States moved to dismiss the extradition complaint

against petitioner. /d. at 73a. The complaint was dis-

missed the following day. Id. at 68a.

The United States opposed petitioner’s motion to

dismiss the appeal. Pet. App. 75a-82a. The govern-

ment acknowledged that the extradition case was

moot in light of Turkey’s withdrawal of its request

for extradition. Jd. at 80a.‘ Relying on this Court’s

decision in U.S. Bancorp Mortgage Co. v. Bonner

Mall Partnership, 513 U.S. 18 (1994), however, the

government argued that “the public interest would

[not] be served by a vacatur” of the court of appeals’

decision. Pet. App. 8la. The government noted that

“{ijt appears” that petitioner’s extradition case did

not become moot by “happenstance,” but because peti-

tioner “affirmatively sought the [Turkish court’s]

ruling.” Jd. at 77a (citing United States v. Munsing-

wear, Inc., 340 U.S. 36, 40 (1950)). The government

4 Prior to Turkey’s request for dismissal of the extradition

complaint, the government argued that petitioner’s extradition

case was not moot, because further appellate review of the

decision was possible in Turkey. Pet. App. 76a.

6

also contended that petitioner was responsible for

delaying the court of appeals’ decision by twice

moving for extensions of time in which to file his

brief. Jd. at 77a n.3. Thus, the government argued,

petitioner was not entitled to dismissal or vacatur of

the court of appeals’ opinion. See id. at 77a, 84a-86a.

In response, petitioner asserted that his extradi-

tion case became moot by happenstance, but did not

dispute that he had sought the Turkish court’s

ruling. He claimed that it was merely “the passage of

time” that led to the dismissal of the Turkish prose-

cution on statute of limitations grounds, and that he

was not responsible for delaying proceedings in the

Third Circuit. Reply Mem. 5.° The court of appeals

denied petitioner’s motion to dismiss in an unpub-

lished order (Pet. App. la), and subsequently denied

his petitions for rehearing (id. at 2a, 67a).

ARGUMENT

Petitioner contends (Pet. 12-16) that the court of

appeals erred in denying his motion to vacate the

judgment when the case became moot while his

petition for rehearing was pending. But no decision of

this Court requires vacatur in such circumstances.

Nor does the court of appeals’ unpublished order give

rise to a ripe circuit conflict or otherwise warrant

5 In its Opposition to Appellee’s Motion to Stay Mandate

Pending Rehearing En Banc or Certiorari Petition, filed after

petitioner's Reply Memorandum, the government again stated

that “the event that * * * mooted [petitioner’s] case did not

result from happenstance but occurred because of his own

litigative efforts in Turkey.” Pet. App. 86a. Petitioner has not

disputed in his petition for a writ of certiorari that he

affirmatively sought the dismissal of the case in Turkey. See

Pet. 10-11, 13.

7

review. And, in any event, this case would not be a

suitable vehicle, given its unusual facts and circum-

stances, to consider any rules of general application

regarding vacatur.

1. Petitioner argues (Pet. 12) that United States v.

Munsingwear, Inc., 340 U.S. 36 (1950), required vaca-

tur of the court of appeals’ judgment. But Munsing-

wear does not govern this case. In Munsingwear,

the Court stated that its “established practice” in. a

federal civil case that has become moot “on its way

here or pending our decision on the merits” was “to

reverse or vacate the judgment below and remand

with a direction to dismiss.” Jd. at 39. But this case

did not become moot “on its way” to the Third Cir-

cuit. Nor did it become moot “pending [the Third

Circuit’s] decision on the merits.” It became moot

only after the Third Circuit issued its decision. This

Court has declined to vacate its own decisions in

analogous circumstances. See, e.g., Robinson v. Cali-

fornia, 371 U.S. 905 (1962) (denying request to vacate

decision after being informed on petition for rehear-

ing that appellant died before decision was issued).®

This Court has made clear since Munsingwear,

moreover, that vacatur is not automatic, even when a

case becomes moot before a decision on the merits.

See U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18 (1994) (declining to vacate

court of appeals’ judgment when case was mooted by

settlement after petition for certiorari was granted).

6 Cf. 13A C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure § 3533.10, at 355 (1997 Supp.) (suggesting

that “(t]he most persuasive setting for refusing to vacate a

judicial opinion according to the terms of a settlement” is when

the settlement occurs “after decision by the court of appeals”

rather than when appeal is pending).

8

The Court noted in U.S. Bancorp that “[tJhe principal

condition to which we have looked” to decide whether

to vacate “is whether the party seeking relief from

the judgment below caused the mootness by voluntary

action,” in which case vacatur is ordinarily inappro-

priate. Jd. at 24. By contrast, where mootness arises

from “happenstance—that is to say, where a contro-

versy presented for review has become moot due to

circumstances unattributable to any of the parties”

—there may be “sufficient reason to vacate.” Id. at

23, 25 n.3 (internal quotation marks omitted). It

appears that this case became moot not because of

mere happenstance, but because of petitioner’s own

successful challenge to the criminal proceedings

against him in Turkey. See Pet. App. 77a & n.3, 86a.

The case therefore differs from the situation dis-

cussed in Munsingwear and U.S. Bancorp on that

ground-as well.’

2. Petitioner claims (Pet 12-13) that there is a

conflict among the courts of appeals over whether

vacatur should be ordered when a case becomes moot

between the issuance of the decision and the mandate.

7 Petitioner asserts (Pet. 11, 15-16) that the INS has taken

the position that the Third Circuit’s decision bars his natu-

ralization. The letter that he cites, however, said no such

thing. See Pet. App. 122a-123a. Rather, the letter simply

stated that the INS had recently learned of the Third Circuit’s

decision, which determined that petitioner had been convicted

of rape and murder in Turkey. /d. at 122a. The letter said

nothing about subsequent events, including the dismissal of

those charges against petitioner, and invited petitioner to offer

evidence in support of his naturalization application and in

opposition to the denial. Jd. at 123a. The letter thus did not

give the Third Circuit’s decision preclusive effect. Nor did the

letter suggest that vacatur of that decision would affect the

INS’s administrative determination.

9

But the conflicting cases on which petitioner relies

predate U.S. Bancorp, and appear to rest, at least

in part, on a broader reading of Munsingwear than

may be warranted after U.S. Bancorp. See In re

Ghandtchi, 705 F.2d 1315, 1316 (11th Cir. 1983);

Clarke v. United States, 915 F.2d 699, 706 (D.C. Cir.

1990) (en banc); Independent Union of Flight Atten-

dants v. Pan American World Airways, Inc., 966

F.2d 457, 459 (9th Cir. 1992) (citing Clarke). There is

no need for this Court to consider the supposed

conflict asserted by petitioner until those circuits

have had an opportunity to revisit the issue in light

of U.S. Bancorp. See Mahoney v. Babbitt, 113 F.3d

219, 222 (D.C. Cir. 1997) (suggesting that aspects of

Clarke “may no longer be good law” after U.S. Ban-

corp). And, in any event, because the court of ap-

peals denied vacatur in this case in an unpublished

order without opinion, its action does not give rise

to a concrete conflict with the pre-U.S. Bancorp

decisions.

3. Finally, this case would not be a suitable vehicle

to refine the rules governing vacatur, even if any

further refinement is warranted so soon after U.S.

Bancorp. The case arises in unusual circumstances

that are unlikely to recur. Petitioner does not cite

any other decision involving mootness resulting from

similar events. It thus does not appear likely that

this case would require the Court to articulate any

rules of general application regarding vacatur.

10

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

DAVID S. KRIS

Attorney

DECEMBER 1997