Opposition Brief — Washington v. Pang

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No. 97-688

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

STATE OF WASHINGTON,

Petitioner,

MARTIN SHAW PANG,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Washington

RESPONDENT’S BRIEF IN OPPOSITION

JOHN HENRY BROWNE

RITA JOAN GRIFFITH*

TIMOTHY KARAM DOLE

Browne & Ressler

Exchange Building

Penthouse Suite

821 Second Avenue

Seattle, WA 98104-1540

(206) 624-7364

Attorneys for Respondent

* Counsel of Record

Byron S. Apams - (202) 347-8203 - WasninGron, D.C. 20005

QUESTIONS PRESENTED

Fundamental to extradition law and even more basic than

the Rule of Specialty is the principle that if a requested

country expressly denies extradition on a given charge, the

extraditee has standing to object to prosecution on that

charge.

In this case, the United States requested Martin Pang’s

extradition on five counts; Brazil expressly denied

extradition on four of the five counts. In holding that the

State of Washington could not prosecute Martin Pang on

those four counts for which extradition was denied, the

Washington Supreme Court has merely given legal effect to

the conditions of extradition imposed by Brazil. The

questions presented are:

1. Whether a defendant has standing, under an

extradition treaty, to object to prosecution on charges for

which extradition was explicitly denied in the Extradition

Order and for which there was no subsequent, post-

extradition consent to prosecute.

2. Whether United States v. Rauscher, 119 U.S. 407

(1886), and basic principles of extradition law would

prohibit the United States from prosecuting an extraditee on

charges for which extradition and permission to prosecute

were expressly requested and repeatedly denied by the

extraditing country.

(i)

ied

TABLE OF CONTENTS

Page

a I og 6b nb 6A be ee i

UT RUM on ok vn nc cue eke pink Vv

I eS ae 1

UUme: SOUT UE Ge kee cee elk. 2

REASONS FOR DENYING THE WRIT ............. 5

I. SINCE THE EXTRADITING NATION EXPLICITLY

AND REPEATEDLY DENIED THE UNITED STATES

PERMISSION TO PROSECUTE THE EXTRADITEE ON

THE FOUR CHARGES AT ISSUE, DEFENDANT

CLEARLY HAS STANDING TO OBJECT TO

PROSECUTION ON SAID CHARGES ........... 6

A. U.S. Courts Must Enforce Any Treaty-Based

Conditions Imposed by the Extraditing Nation .. 6

B. The Difficulty in This Case Has Not Been Brazil’s

Failure to Make Its Position Clear, But Refusal by

Uc. Ueercene 06 Accest i .............. 10

C. The Standing-Without-Protest Circuit Split Does Not

Apply to Charges For Which Extradition Was

Expressly Requested and Denied .......... 11

Il. HONORING AN EXTRADITING NATION’S

RESTRICTIONS IS A PRINCIPLE EVEN MORE

FUNDAMENTAL THAN THE RULE OF SPECIALTY

AND ONE WITHOUT WHICH NO EXTRADITION

TREATY WOULD MAKE SENSE ........... 13

EE CRS ek Or ON ee SS ek Saxe ks 15

TABLE OF AUTHORITIES

Cases Page

Casey v. Dep’t of State, 980 F.2d 1472 (D.C. Cir. Ee

Fiocconi v. Attorney Gen., 462 F.2d 475 (2nd Cir.), cert.

denied, 409 U.S. 1059 (1972) .............. 9, 11, 12

Greene v. United States, 154 F. 401 (Sth Cir.), cert. denied, 492

MO ME RP eg a ok a ee a ee CS 7

Johnson v. Browne, 205 U.S. 309 (1907) ........... 7, 10

McGann v. U.S. Board of Parole, 488 F.2d 39 (3rd Cir. 1973)

2 EVE Eee cle Pee sO ee oO a a ee 7

Roe v. Wade, 410 U.S. 113, rehg. den., 410 U.S. 959 (1973)

iON eed a ee Wie aa ae eas bw ol os en 14

Shapiro v. Ferrandina, 478 F.2d 894 (2nd Cir.), cert. dismissed,

EG TEs, DE Ca 8 6 ee as Ce ee 7

United States v. Alvarez-Machain, 504 U.S. 655 (1992)

chad ct Pee CRED EAs be CO es 9, 12

United States v. Andonian, 29 F.3d 1432 (9th Cir. 1994), cert.

Cee, Dae at Be ee ce 8,9

United States v. Cuevas, 847 F.2d 1417 (9th Cir. 1988), cert.

ee ee Ue eee. ca ee ee 8

United States v. Diwan, 864 F.2d 715 (11th Cir.), cert. denied,

Ie Wi ee a rg oe ores es 9

United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988), reh’g

GUE, TIF Ce Pree os C5 RR OS SS 12

United States v. Khan, 993 F.2d 1368 (9th Cir. 1993) .... 11

United States v. Najohn, 785 F.2d 1420 (9th Cir.) (per curium),

cert. denied, 479 U.S. 1009 (1986).............. 7, 41

United States v. Puentes, 50 F.3d 1567 (11th Cir.), cert. denied,

ESO Dake WO) CEN a ii Fs 12

United States v. Rauscher, 119 U.S. 407 (1886) ....... 8-12

United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989) ..... g

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) ....... 9

Constitutions

Wun SNE AEs V8) Oe Be ce oe Chee ee 8

TABLE OF AUTHORITIES—Continued

Statutes and Rules

BS US. Ue 6 bn co we WN SER 9,12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-688

STATE OF WASHINGTON,

Petitioner,

Vv.

MARTIN SHAW PANG,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Washington

RESPONDENT’S BRIEF IN OPPOSITION

The respondent Martin Shaw Pang respectfully requests that

this Court deny the petition for writ of certiorari seeking

review of the Washington Supreme Court’s opinion in this

case, 132 Wn.2d 852, 940 P.2d 1293 (1997), reproduced in

Petitioner’s Appendix (Pet. App.) l1a-94a, 102a-104a.

TREATY INVOLVED

The petition cites only Article XXI of the Treaty of

Extradition between Brazil and the United States, as though

that were the sole provision relevant to the determination of

what charges Martin Pang can be prosecuted on following

extradition. Article I sets forth the primary conditions under

which the parties have agreed to extradite:

Each Contracting State agrees, under the conditions

established by the present Treaty and each in accordance

with the legal formalities in force in its own country, to

deliver up, reciprocally, persons found in its territory

who have been charged with or convicted of any of the

crimes or offenses specified in Article II of the present

Treaty...; provided that such surrender shall take place

only upon such evidence of criminality as, according to

the laws of the place where the fugitive or person so

charged shall be found, would justify his commitment for

trial if the crime or offense had been there committed.

Pet. App. 107a-108a.

STATEMENT OF THE CASE

Martin Shaw Pang stands accused of setting fire to his

parents’ Seattle warehouse on January 5, 1995. Four

firefighters who had entered the burning building died

combating the fire. On May 8, 1995, the United States sent

a Petition for Extradition to Brazil, where Mr. Pang had

traveled in mid-February 1995. Extradition was requested on

four counts of first-degree felony-murder and one count of

first-degree arson. Pet. App. 6a.

In the extradition proceedings, Mr. Pang argued that the

felony-murder charges were non-extraditable under the terms

of the Treaty, since (a) unintentional homicide is not included

in the agreement’s list of extraditable offenses, and (b) dual

criminality had not been established since the U.S. had

presented no evidence of intent to kill, a prerequisite for

murder charges under Brazilian law. Secondly, Mr. Pang

asked that his extradition be conditioned on a pledge by the

U.S. to honor his right to a sentencing cap of 30 years

ee ee

Pry rae ae inal

imprisonment, a right guaranteed by Brazil’s 1988

Constitution to all criminal defendants in Brazil.

On December 18, 1995, the Brazilian Supreme Court issued

its Extradition Order to extradite on the arson charge, but to

“exclude from the grant of extradition the charges of murder

in the first degree.” Pet. App. 25a. In a second vote, a

different Court majority declined to impose the 30-year

sentencing limit requested, ruling the U.S. was not bound to

honor a Brazilian constitutional right created decades after the

1960s Treaty was ratified. Rather, U.S. courts could give

Mr. Pang, if convicted of the arson, any sentence up to life

imprisonment.’ Pet. App. 25a.

The U.S. spent the next several months attempting to

persuade different Brazilian officials to void their high court’s

ruling that the four felony-murder charges were not

extraditable offenses. Pet. App. 32a-35a. In each instance,

the U.S. was informed that Executive Branch officials lack

authority under the Brazilian Constitution’s Separation of

Powers to permit the U.S. to disregard the Court Order.

First, on February 22, 1996, the U.S. formally asked

Brazil’s Ministry of Foreign Relations for permission to

prosecute Mr. Pang on the four felony-murder charges. Pet.

App. 26a. Five days later, the Brazilian Ministry officially

denied the request, attaching a certified copy of the Court’s

Extradition Order and explaining that Brazil’s Executive

“does not have jurisdiction to interpret or establish limits

regarding the scope of the decisions handed down by the

Judicial Branch.” Pet. App. 27a.

' Although the death penalty was never an issue in this case, Article VI of

the Treaty does bar extradition of defendants facing that sentence.

On March 1, 1996, the U.S. filed an extraordinary

Embargos de Declaragao motion in the Brazilian Supreme

Court, characterizing the Extradition Order as obscure and

self-contradictory. Pet. App. 27a. On March 27, 1996,

Brazil’s Justices unanimously denied the motion, reasserting

the clarity and finality of its original decision to “exclude

from the grant of extradition the charges of murder in the first

degree.” Pet. App. 29a-32a.

In early March 1996, U.S. Secretary of State Warren

Christopher, traveling in Brazil, “personally ask[{ed] the

Brazilian government to extradite Martin Pang without

restriction.” Pet. App. 33a. In a letter dated May 21, 1996,

President Clinton asked Brazil’s President for leave to

prosecute on the felony-murder charges. Pet. App. 40a.

Meanwhile, U.S. Justice Department officials had contacted

Brazil’s Minister of Justice, Nelson Jobim. On September 26,

1996, Minister Jobim responded to Attorney-General Janet

Reno that Brazil’s Constitution gives its Judiciary “exclusive

jurisdiction” in these matters:

Decisions granting or denying extraditions may not be

appealed, and the Executive Branch may not limit or

make comments of any kind regarding the content or

scope of rulings handed down by that Court, which is the

highest authority of an independent branch of

government. Consequently, any interpretive statement

the Executive Branch might make would be

unenforceable.

Pet. App. 41a (emphasis added).

Then, in a letter dated October 29, 1996, Brazil’s President

responded directly to President Clinton:

Despite the personal interest I took in the issue, the

consideration of the alternatives at hand clearly indicated

that room for action by the Executive branch is very

limited, since a decision has already been taken by the

Supreme Court.... | understand [Minister Jobim’s] letter

provides the American government with a broad and

clear picture of the Brazilian legal position on the issue.

Pet. App. 44a (emphasis added).

On February 21, 1997, Mr. Pang’s Brazilian attorneys sent

Minister Jobim a letter, placing him on notice that his letter

to the U.S. Attorney-General had caused an American judge

on November 12, 1996, to conclude that Brazil’s Executive

had implicitly granted the U.S. permission to violate the terms

of the Brazilian Federal Supreme Court’s Extradition Order

and to prosecute Mr. Pang on the four felony-murder charges.

Pet. App. 47a. Five days later, Mr. Jobim responded:

I’d like to inform you that at no time did I provide any

type of interpretation on the content and reach of the

decision passed by the Federal Supreme Court. Thus, I

ratify all the words used in said correspondence, its only

objective being to clarify to Ms. Janet Reno, Attorney-

General of the United States, some aspects of the

Brazilian Constitutional system.

Pet. App. 48a (emphasis added).

REASONS FOR DENYING THE WRIT

Petitioner’s first query seeks to characterize this case as an

ideal vehicle for the resolution of a split among the federal

circuits over whether an extraditee has standing to object to

prosecution on charges for which extradition was not granted,

absent affirmative protest by the extraditing nation. The truth

is that no U.S. federal court has ever denied an extraditee

standing to challenge the prosecution of an offense in a case

such as this, where extradition was specifically petitioned by

the U.S. and then expressly and repeatedly denied by the

extraditing country, both in the Extradition Order and in all

subsequent communications.

Second, Petitioner urges this Court to construe the text of

this particular treaty so as to allow post-extradition

prosecution on any and all charges requested in the

extradition petition—even in cases where the requested nation

has expressly denied extradition on specific charges. Such a

construction is absurd on its face, since it would render

meaningless Brazil’s extradition proceedings and its ruling.

Neither Question Presented raises a genuine question of law

in need of clarification by this Court. Certiorari should

therefore be denied.

I. SINCE THE EXTRADITING NATION EXPLICITLY

AND REPEATEDLY DENIED THE UNITED STATES

PERMISSION TO PROSECUTE THE EXTRADITEE ON

THE FOUR CHARGES AT ISSUE, DEFENDANT

CLEARLY HAS STANDING TO OBJECT TO

PROSECUTION ON SAID CHARGES

A. U.S. Courts Must Enforce Any Treaty-Based

Conditions Imposed by the Extraditing Nation

All the Washington Supreme Court has done in this case is

to uphold one of the most elemental principles of extradition

jurisprudence: that when a requested nation, pursuant to a

treaty provision, refuses to extradite on a particular charge,

the requesting country can neither disregard’ nor second-

guess’ that decision. As the Washington Supreme Court

noted:

We conclude without question that under the Treaty,

Brazil, as the requested state, has sole authority to

determine whether a particular offense is extraditable.

Pet. App. 68a.‘

2 See United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.) (per curium),

cert. denied, 479 U.S. 1009 (1986) (“Because the surrender of the

defendant requires the cooperation of the surrendering state, preservation

of the institution of extradition requires that the petitioning state live up to

whatever promises it made in order to obtain extradition.”); Shapiro v.

Ferrandina, 478 F.2d 894, 905 (2nd Cir. 1973) (“the principle [of specialty]

has been extended to bar prosecution for crimes listed in the treaty but for

which extradition, for whatever reason, was not granted).

> In Johnson v. Browne, 205 U.S. 309 (1907), this Court ruled that

“{w]hether the crime came within the provision of the treaty was a matter

for the decision of the Dominion authorities, and such decision was final by

the express terms of the treaty itself.” Jd at 316. See also Casey v. Dep't

of State, 980 F.2d 1472, 1477 (D.C. Cir. 1992) (“This deference is

necessary to further international comity—a goal the Supreme Court has

emphasized in a variety of contexts.”); McGann v. U.S. Board of Parole,

488 F.2d 39, 46 (3rd Cir. 1973) (“[Johnson] precludes any review of the

Jamaican court’s decision as to the extraditable nature of the offense”);

Greene v. United States, 154 F. 401, 408 (Sth Cir. 1907), cert. denied, 207

U.S. 596 (“[The treaty provision simply emphasizes] what must, upon

reason and principle, be true as to the whole—that the decision of the

authorities of the government in whose jurisdiction the fugitive shall be

found is necessarily final... [and] the courts of this country cannot review

a decision of foreign authorities against extradition”).

* Article XI of the U.S.-Brazil Extradition Treaty expressly provides that

“(t]he determination that extradition based upon the request therefor shouid

or should not be granted shall be made in accordance with the domestic law

of the requested State.” Pet. App. 1 15a.

In the landmark extradition case, United States v. Rauscher,

119 U.S. 407 (1886), this Court made clear that the U.S.

could not reasonably expect its own extradition orders to be

honored abroad unless U.S. courts zealously enforced as the

“supreme law of the land” the extradition orders of its treaty

partners. /d. at 419 (citing U.S. CONST., art. VI, cl. 2).

This axiomatic policy of respect for restrictions imposed by

extraditing countries is rooted in “principles of international

comity: to protect its own citizens in prosecutions abroad, the

United States guarantees that it will honor limitations placed

on prosecutions in the United States”°—whether or not U.S.

courts agree with those limitations. The fact that there are

more extraditions today than four decades ago, see Pet. 9,

simply underscores the importance of Judiciaries everywhere

enforcing good faith compliance with extradition obligations.

The Rule of Specialty is designed to prevent countries from

petitioning extradition on one set of charges and then later, in

bad faith, prosecuting the extraditee on a second set of

charges not raised during the extradition proceedings, as

occurred in Rauscher.© The question of law in this case,

> United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994), cert.

denied, 513 U.S. 1128 (1995) (citing United States v. Cuevas, 847 F.2d

1417, 1426 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989)).

* See Rauscher, supra, 119 U.S. at 422 (“{Because] it is for a limited and

defined purpose that the [extradition] transfer is made, it is impossible to

conceive of the exercise of jurisdiction in such as case for any other purpose

than that mentioned in the treaty, and ascertained by the proceedings under

which the party is extradited, without an implication of fraud upon the

rights of the party extradited, and of bad faith to the country which

permitted his extradition. No such view of solemn public treaties between

the great nations of the earth can be sustained by a tribunal called upon to

give judicial construction to them.”).

however, is even more basic than that: Can the U.S. request

extradition on one set of charges, have its request flatly

rejected, and then, contrary to the requested country’s wishes,

nevertheless prosecute the extraditee on that same first set of

rejected charges? The answer is obviously no, and no federal

court has ever suggested otherwise.

Indeed, in judging the validity of post-extradition charges,

U.S. case law uniformly sets forth as the “essential” judicial

task “to determine, as best one can, whether the surrendering

state would regard the prosecution as a breach” so as “to

prevent the United States from violating international

obligations.” See Fiocconi v. Attorney Gen., 462 F.2d 475,

480 (2nd Cir.), cert. denied, 409 U.S. 1059 (1972).’

If an individual extraditee is deemed to have standing under

the Rule of Specialty® and U.S. domestic law’ to challenge

” See also, e.g., Van Cauwenberghe v. Biard, 486 U.S. 517, 525 (1988)

(“the principle operates to ensure that the receiving state does not abuse the

extradition processes of the extraditing state”); Andonian, 29 F.3d at 1435

(“Our concern is with ensuring that the obligations of the requesting nation

are satisfied.”); United States v. Sensi, 879 F.2d 888, 895 (D.C. Cir. 1989)

(holding that “the standard” is “whether the requested state had objected or

would object to prosecution”); United States v. Diwan, 864 F.2d 715, 721

(11th Cir.), cert. denied, 492 U.S. 921 (1989) (“the objective of the rule is

to insure that the treaty is faithfully observed by the contracting parties”).

® The Rauscher Court characterized the Rule of Specialty as a “right

conferred upon persons brought from a foreign country into this under

[extradition] proceedings.” 119 U.S. at 424 (emphasis added).

* As Chief Justice Rehnquist recently noted, this Court has ruled that a U.S.

domestic statute, now codified as 18 U.S.C. §3192, imposes the Rule of

Specialty on every extradition treaty to which the U.S. is a party. Alvarez-

Machain, 504 U.S. 655, 660 (1992) (citing Rauscher, 119 U.S. at 423); see

also Fiocconi, supra, 462 F.2d at 482.

charges not requested in an international extradition petition,

as this Court found in Rauscher, then, a fortiori, an extraditee

has standing to challenge charges requested and denied by the

requested country. The Court made this very argument in

Johnson v. Browne, 205 U.S. 309 (1907):

While the escape of criminals is, of course, to be very

greatly deprecated, it is still most important that a treaty

of this nature between sovereignties should be construed

in accordance with the highest good faith, and that it

should not be sought by doubtful construction of some of

its provisions to obtain the extradition of a person for one

offense and then punish him for another and different

offense. Especially should this be the case where the

Government surrendering the person has refused to make

the surrender for the other offense on the ground that

such offense was not one covered by the treaty.

Id. at 321 (emphasis added).

B. The Difficulty in This Case Has Not Been Brazil’s

Failure to Make Its Position Clear, But Refusal by

U.S. Officials to Accept It

As the Statement of the Case above makes clear, Brazil has

steadfastly held that the four felony-murder charges are not

extraditable offenses under the terms of the U.S. Brazil

Extradition Treaty. Brazil said no during the extradition

proceedings and post-extradition when the United States

continued efforts to pressure Brazilian officials into granting

permission to prosecute Mr. Pang on these charges."

° To summarize the record, Pet. App. 23a-48a, Brazil has denied the U.S.

request for permission to charge Mr. Pang with the felony-murder charges

at least six times: Brazil’s Supreme Court twice, its Ministry of Foreign

Having reviewed the relevant international communications

in this case, the Washington Supreme Court found as follows:

We conclude from the record in this case that Brazil has

not expressly consented to nor implicitly or explicitly

waived objection to the State of Washington charging

[Mr. Pang] with murder in the first degree.

Pet. App. 54a-55a.

C. The Standing-Without-Protest Circuit Split Does

Not Apply to Charges For Which Extradition Was

Expressly Requested and Denied

Since Brazil has the right under the Treaty to say no to the

four felony-murder charges requested in the U.S. Extradition

Petition, and has in fact done so, U.S. federal law is

unequivocal that Mr. Pang has standing to object to post-

extradition prosecution on these charges."

Had the facts been different in this case—had Brazil, for

instance, been silent’* or ambiguous’ on whether it deemed

the four felony-murder charges extraditable under the

Affairs once, its Justice Ministry twice, and its President once.

"' See, e.g., Najohn, 785 F.2d at 1422 (“However, the person extradited may

raise whatever objections the rendering country might have.”) (citing

Rauscher, 119 U.S. at 419).

2 See Fiocconi, 462 F.2d at 477 (“no response from the Italian government

has yet been received [regarding the post-extradition New York charges]”).

‘3 See United States v. Khan, 993 F.2d 1368, 1374-75 (9th Cir. 1993)

(reversing and dismissing conviction on one count, because the court

refused to “infer an agreement to extradite from Pakistan's silence”).

Treaty—this case might have afforded this Court an

opportunity to expand on its recent comments in United States

v. Alvarez-Machain, 504 U.S. 655 (1992), on the standing-

without-protest question.

There, Chief Justice Rehnquist pointed out that the

Rauscher Court assumed an individual extraditee has standing

to challenge U.S. violation of an extradition treaty whether or

not the extraditing country protests: “[N]o importance was

attached to whether or not Great Britain had protested the

prosecution of Rauscher for the crime of cruel and unusual

punishment as opposed to murder.” 504 U.S. at 667."

Still, even if this Court were to reverse its landmark

Rauscher decision on this point, Mr. Pang would nonetheless

have standing to challenge his prosecution on the felony-

murder charges. Brazil has made clear that it considers these

four charges non-extraditable offenses under the Treaty, and

has therefore repeatedly denied the United States permission

to prosecute Mr. Pang on these charges. Cf. Pet. 9-10. Even

circuits such as the Second and Fifth, which have questioned

standing in cases where new charges were added post-

extradition, would by their own reasoning hold that Mr. Pang

has standing to object to the four felony-murder charges at

issue here. The dispositive concern of these circuits is to give

effect to the intent of the extraditing country. Here, Brazil’s

intent is clear.*°

'* The Eleventh Circuit has, based on this, declared the standing-without-

protest question answered. United States v. Puentes, 50 F.3d 1567, 1574-75

(1 lth Cir.), cert. denied, 116 S.Ct. 341 (1995).

'S See, e.g, Fiocconi, 462 F.2d at 482 (2nd Cir.) (“{Under 18 U.S.C.

§3192], a person who has been extradited should not be tried for an offense

which the foreign country would consider to be outside the limits of its act

of extradition”); United States v. Kaufman, 858 F.2d 994, 1009 (Sth Cir.

Il. HONORING AN EXTRADITING NATION’S

RESTRICTIONS IS A PRINCIPLE EVEN MORE

FUNDAMENTAL THAN THE RULE OF SPECIALTY

AND ONE WITHOUT WHICH NO EXTRADITION

TREATY WOULD MAKE SENSE

Having first sought to deny Mr. Pang standing to object to

prosecution on the barred charges, Petitioner next seeks to

convince this Court that, despite Brazil’s no, the U.S. is under

no obligation under the terms of this particular Extradition

Treaty to honor Brazil’s express conditions of extradition.

To accomplish this, Petitioner narrowly focuses attention on

the language of Article XXI, which bars prosecution for “any

crime or offense committed prior to the request for his

extradition, other than that which gave rise to the request.”

Petitioner then points to the U.S. request for Mr. Pang’s

extradition, and notes, “The murder charges were listed in

that request.” Pet. 18. Thus, by definition, they “gave rise to

the request.” Then comes Petitioner’s surprising conclusion:

“the State of Washington can prosecute Pang for the four

counts of murder because those offenses were listed in the

extradition request.” Pet. 14 (emphasis added). Petitioner’s

formula thus neatly circumvents the fact that Brazil denied the

request for extradition on those charges.

Petitioner’s sophistry would not only render meaningless

the extensive extradition proceedings conducted in Brazil’s

highest federal court, but would also void Brazilian officials’

principled subsequent refusals to grant the U.S. what it so

aggressively sought: permission to prosecute Mr. Pang on the

1988), reh'g denied, 874 F.2d 242 (1989) (since there was “no basis to

conclude” that the charges could offend the requested nation, “hence, this

prosecution does not constitute a breach of the treaty provisions.”).

four felony-murders that the Brazilian Supreme Court had

ruled were non-extraditable offenses under the Treaty.

By force of logic, Petitioner’s construction would also

allow Brazil to disregard any extradition limitations imposed

by the United States. Suppose, for instance, that Brazil

petitioned the extradition of a physician on several charges,

including four first-trimester abortions allegedly performed in

Rio de Janeiro. Although abortion is an extraditable offense

under Article II of this 1960s Treaty, see Pet. App. 108a, Art.

II, §2, and remains a serious crime in Brazil, it has since been

ruled constitutionally protected behavior in the United States.

See, e.g., Roe v. Wade, 410 U.S. 113, rehg. den., 410 U.S.

959 (1973). Were the United States to grant extradition on

the other charges, but to exclude from the grant of extradition

the four abortion counts on grounds that the dual criminality

requirement in Article I of the Treaty had not been satisfied,

the U.S. would surely expect Brazilian courts to uphold its

decision and not allow post-extradition prosecution on the

abortion charges. Under Petitioner’s out-of-context

construction of Article XXI, however, Brazil would be free to

disregard the United States’ Extradition Order.

At the very least it is clear that Brazil, as the other party to

this international agreement, does not share Petitioner’s

views. Brazil’s 1988 Constitution gives its highest judicial

body original and exclusive jurisdiction over all extraditions.

Pet. App. 27a, 41a. Had Brazil’s Justices believed their

determination of the extraditability of each of the five

petitioned charges in this case would have no legal

consequence in the U.S., they need not have wasted their

time. Indeed, if Petitioner’s construction were adopted, what

reason would Brazil’s high court have to review future U.S.

petitions for extradition? More importantly, why would the

Brazilian Justices grant any U.S. extradition petitions,

knowing that the provisions of the U.S.-Brazil Extradition

Treaty were being openly disregarded in American courts?

The fact is that Article XXI is only one of several

provisions in the U.S.-Brazil Extradition Treaty affording

both parties the right to deny extradition for certain offenses.

Indeed, the Treaty’s first article requires (1) that the principle

of dual criminality be met and (2) that the offense for which

extradition is requested be listed among the extraditable

offenses in Article II. Neither of these two primary Treaty

requirements was satisfied in this case. Brazil was therefore

within its Treaty rights to deny extradition on the four felony-

murder charges, and the U.S. cannot now violate Brazil’s

ruling. In the words of the Washington Supreme Court,

Under all the established facts in this case and the

application of international law, treaty law, United States

law, Washington law, and common logic, we must give

good faith recognition to the lawful determination of the

Federal Supreme Court of Brazil, the highest court of that

sovereign democracy, that Petitioner Martin Shaw Pang

was extradited only for prosecution in the State of

Washington for the crime of arson in the first degree,

resulting in four deaths, but not for prosecution for the

four charges of murder in the first degree.

Pet. App. 71a-72a.

CONCLUSION

The Washington Supreme Court has simply enforced United

States compliance with the provisions of this country’s

decades-old treaty with Latin America’s largest sovereign

democracy. Federal case law is uniform that the United

States must honor whatever restrictions are imposed by an

extraditing nation. This principle of extradition law is

axiomatic and should not be called into question by this

Court. Brazil has said no to the four felony-murder charges

requested and certainly has every right to presume that

American courts will give its Treaty-based decision the good

faith recognition it deserves. For these reasons, the petition

for writ of certiorari should be denied.

Respectfully submitted,