                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-1633

           IN RE:  EXTRADITION OF CURTIS ANDREW HOWARD.

                                             

                    UNITED STATES OF AMERICA,

                      Petitioner, Appellee,

                                v.

                      CURTIS ANDREW HOWARD,

                      Respondent, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Edward F. Harrington, U.S. District Judge]
                                                        

                                             

                              Before

                      Selya, Circuit Judge,
                                          
                 Campbell, Senior Circuit Judge,
                                               
                     and Cyr, Circuit Judge.
                                           

                                             

     Jeffrey A.  Denner, with whom George  Garfinkle and Perkins,
                                                                 
Smith &amp; Cohen were on brief, for appellant.
             
     Victor A. Wild, Assistant  United States Attorney, with whom
                   
A.  John Pappalardo,  United States Attorney,  was on  brief, for
                   
appellee.

                                             

                          June 30, 1993
                                             

          SELYA,  Circuit Judge.   This  appeal presents  several
          SELYA,  Circuit Judge.
                               

issues of first impression in extradition law generally and, more

specifically, regarding  a rather distinctive  extradition treaty

in  force between  the United  States and  the United  Kingdom of

Great  Britain and Northern  Ireland (U.K.).   We must determine,

inter  alia, (1)  whether, under  the treaty,  the second  of two
           

successive  appeals from  a certification  of  extraditability is

within our  jurisdiction;  (2) if  so,  what standard  of  review

governs such appeals; (3) whether the treaty alters the venerable

rule  of  noninquiry; and  (4)  if  so, to  what  extent.   After

grappling with  these, and other, matters,  we eventually address

the merits of the  appeal and conclude that the  determination of

extraditability must stand.

I.  BACKGROUND

          The seeds of  this appeal  were sown on  June 1,  1991,

when  a  policeman discovered  the  mutilated  body of  Catherine

Elizabeth Ayling, a young white female, in the trunk  of a rental

car  abandoned   at   England's  Gatwick   Airport.     Suspicion

immediately  centered  on   respondent-appellant  Curtis   Andrew

Howard,  a  United  States  citizen.    Charges  were  preferred.

Because  Howard   had  returned  to  his   native  land,  British

authorities sought to extradite him.  On June 5, 1991, the United

States Attorney  for the District of  Massachusetts requested and

received from a federal  magistrate judge a warrant for  Howard's

provisional arrest.  See 18 U.S.C.   3184 (1988 &amp; Supp. II 1990);
                        

D. Mass. Loc. Mag. R. 1(e).  Howard was apprehended.  He appeared

                                2

for  an  extradition  hearing  before  the  magistrate  judge  on

September 10, 1991.

          At the hearing Howard did not dispute the  existence of

probable cause  to  believe  he had  murdered  Ayling.    Rather,

Howard, who is black,  argued that he would be  prejudiced during

legal  proceedings  in  the  U.K.  by  reason  of  his  race  and

nationality, a circumstance which, if true, constituted a defense

to  extradition under  the  relevant treaty.   See  Supplementary
                                                  

Extradition  Treaty,   June  25,  1985,  U.S.-U.K.,   art.  3(a),

reprinted in  S. Exec.  Rep. No. 17,  99th Cong., 2d  Sess. 15-17
            

(1986)  (Supplementary  Treaty).   In  support  of this  defense,

Howard proffered evidence of flamboyant publicity surrounding his

case,  sought to  show that  Britons would  likely  be prejudiced

against blacks    particularly  those accused of  murdering young

white  females   and pointed out that England's legal system does

not  make  any provision  for  voir dire  of  prospective jurors.

These proffers did  not sufficiently impress the magistrate:   he

ruled  that  Howard  had  not  established  a  valid  defense  to

extradition   and   thereupon    issued   a   certification    of

extraditability, together with  an order of commitment.1   See 18
                                                              

U.S.C.   3184.

                    

     1The magistrate  found that  all the basic  prerequisites to
extradition  had been fulfilled in that the United States and the
U.K. are parties to  an extradition treaty; a criminal  charge is
pending against Howard  in the  U.K.; the charged  offense is  an
extraditable crime  under the treaty;  the person charged  is the
same  person  whom the  government  wants  extradited; an  arrest
warrant is outstanding; and probable cause exists to believe that
Howard committed the crime.  None of these findings are contested
on appeal.

                                3

          Howard   appealed.     The  district   court  exercised

jurisdiction, reviewed the magistrate's findings for clear error,

and affirmed.  See In re Howard, 791 F. Supp. 31 (D. Mass. 1992).
                               

Howard appeals anew.

II.  THE SUPPLEMENTARY TREATY

          Because the Supplementary  Treaty departs from accepted

extradition protocol, we trace its origins  and spotlight its key

provisions.

          In 1972, the United States  and the U.K. negotiated new

terms   governing  reciprocal   extradition  from   one  nation's

territory  of persons  accused or  convicted of  certain offenses

committed in the other  nation.  See Extradition Treaty,  June 8,
                                    

1972, U.S.-U.K., art. I,  28 U.S.T. 227, 229 (Treaty).  Under the

Treaty, murder was an extraditable offense.  See id. art. III(1).
                                                    

Nonetheless, the Treaty allowed a signatory to refuse extradition

if it regarded  the offense  "as one of  a political  character."

Id.  art. V(c)(i).  This exception sired friction between the two
   

traditional allies when federal judges in the United States began

interpreting it to bar extradition of members of the  Provisional

Irish Republican  Army.  See S.  Exec. Rep. No. 17,  supra, at 2;
                                                          

see also 132 Cong. Rec. 16,558-86 (1986) (collecting cases).
        

          To   ameliorate   this   situation,   the   signatories

negotiated treaty  amendments aimed at eradicating  the political

offense  exception for acts of violence.   See S. Treaty Doc. No.
                                              

8, 99th Cong., 1st  Sess. (1985) (Proposed Supplementary Treaty);

see  also  S. Exec.  Rep. No.  17, supra,  at  2.   However, when
                                        

                                4

President Reagan  submitted the Proposed Supplementary  Treaty to

the Senate, seeking its advice and consent, the document received

mixed   reviews.     See   United  States   and  United   Kingdom
                                                                 

Supplementary Extradition  Treaty:   Hearings  Before the  Senate
                                                                 

Comm.  on  Foreign  Relations,  99th  Cong.,  1st  Sess.  (1985).
                             

Following  many months  of  strident debate,  the opposing  camps

reached  a compromise,  placing  most violent  crimes beyond  the

political  offense exception's  reach  but  adding certain  novel

safeguards for the  protection of potential extraditees.   See S.
                                                              

Exec. Rep. No. 17, supra, at  4-5.  On July 17, 1986, the  Senate
                        

ratified the  proposed treaty subject  to the addition  of these,

and  other,  amendments.    See  132  Cong.  Rec. 16,819  (1986).
                               

Following approval  of  the  modified version  by  the  House  of

Commons, instruments of ratification  were exchanged on  December

23, 1986.  See  Supplementary Treaty, supra, reprinted at  Hein's
                                                         

No. KAV 2053; see also I.I. Kavass et al., Extradition:  Laws and
                                                                 

Treaties  920.20d-h  (1979 &amp;  Supp. 1989).    At that  point, the
        

Supplementary Treaty went into force.

          An aspect  of the Senate-forged compromise  lies at the

core  of the instant case.  As ratified, the Supplementary Treaty

prohibits  extradition "if the person sought establishes . . . by

a preponderance of evidence that . .  . he would, if surrendered,

be prejudiced at his trial or punished, detained or restricted in

his   personal  liberty   by  reason   of  his   race,  religion,

nationality, or political opinions."  Supplementary  Treaty, art.

3(a).  Appellant's case rests squarely upon this proviso.

                                5

III.  APPELLATE JURISDICTION

          The  Supplementary Treaty  stipulates that  the trier's

findings with regard to an article 3(a) defense  are "immediately

appealable  by either party to  the United States district court,

or  court of  appeals,  as appropriate."   Id.  art.  3(b).   The
                                              

initial question that commands  our attention concerns the extent

of our jurisdiction under  this provision.  We raised  this issue

at oral  argument, as a court  must when it harbors  doubts about

the  existence of  its  subject matter  jurisdiction,  see In  re
                                                                 

Recticel  Foam  Corp.,  859  F.2d  1000,  1002  (1st  Cir.  1988)
                     

(emphasizing  that "a  court  has an  obligation  to inquire  sua

sponte into  its subject matter jurisdiction"),  and directed the

parties to furnish supplemental briefs.2

                        A.  Past Practice.
                                         

          Ordinarily neither  party to an  extradition proceeding

may challenge a decision rendered therein by direct appeal.  This

disability developed  because the  relevant statute, 18  U.S.C.  

3184, does not  contemplate hearings by United  States courts qua
                                                                 

United States courts, see In re  Mackin, 668 F.2d 122, 125-30 (2d
                                       

Cir.   1981)  (collecting  authorities  and  tracing  history  of

extradition proceedings), but,  instead, directs that extradition

matters be heard by "any justice or  judge of the United States,"

any authorized  magistrate, or certain state  judges.  Therefore,

                    

     2It  is,  of  course,  settled that  parties  cannot  confer
subject matter jurisdiction on a federal court by acquiescence or
agreement.   See Insurance Corp. of Ir. v. Compagnie Des Bauxites
                                                                 
De Guinee, 456 U.S. 694, 702 (1982).
         

                                6

an  officer who presides over such a proceeding is not exercising

"any  part of the  judicial power of  the United States."   In re
                                                                 

Kaine,  55 U.S. (14  How.) 103, 120 (1852).   Rather, the officer
     

acts  in a  non-institutional capacity  by virtue  of  a "special

authority."  In re Metzger, 46 U.S. (5 How.) 176, 191 (1847); see
                                                                 

also  Shapiro  v. Ferrandina,  478 F.2d  894,  901 n.3  (2d Cir.)
                            

(applying same principle to  current statutory provision),  cert.
                                                                 

dismissed,  414  U.S. 884  (1973);  Mackin,  668  F.2d at  125-30
                                          

(same);  Jimenez v.  Aristeguieta, 290  F.2d 106,  107 (5th  Cir.
                                 

1961)  (same).  The officer's only tasks are to determine whether

an   individual  is   extraditable,   and  if   so,  to   certify

extraditability to  the ultimate decisionmaker  (the Secretary of

State).  See 18 U.S.C.    3184, 3186 (1988 &amp; Supp. II 1990).
            

          In light of this  curious arrangement, numerous  courts

have  held that 28 U.S.C.   1291, which permits appeals of "final

decisions of  the district courts" (emphasis  supplied), does not
                                 

contemplate appeals from  decisions of judicial officers  sitting

in  extradition matters.   See,  e.g., Ahmad  v. Wigen,  910 F.2d
                                                      

1063, 1065 (2d  Cir. 1990); Quinn v. Robinson, 783  F.2d 776, 786
                                             

n.3 (9th   Cir.), cert. denied,  479 U.S. 882 (1986).   Given the
                              

absence of  any other statutory  hook on which  jurisdiction over

such  appeals can be hung,  a putative extraditee customarily can

challenge  an order  for extradition  only by  collateral attack,

typically through habeas corpus.  See Collins v. Miller, 252 U.S.
                                                       

364, 369 (1920); Koskotas v.  Roche, 931 F.2d 169, 171 (1st  Cir.
                                   

1991).   By the same  token, the  government, if it  fails in  an

                                7

extradition attempt,  cannot appeal,  but  must file  anew.   See
                                                                 

Mackin, 668 F.2d at  128; Hooker v. Klein, 573 F.2d 1360, 1364-68
                                         

(9th Cir.), cert. denied,  439 U.S. 932 (1978); see  also Collins
                                                                 

v. Loisel, 262 U.S. 426, 430 (1923).
         

                        B.  Article 3(b).
                                        

          Appellant   argues   that   the  Supplementary   Treaty

revolutionizes  this  praxis  insofar as  the  extradition target

asserts defenses  cognizable under article 3(a).   The government

argues the inverse, imploring that  neither the President nor the

Senate intended to  work so  abrupt a tergiversation.   We  agree

with appellant that the Supplementary Treaty, which has the force

of  law, U.S.  Const. art.  VI, cl.  2, effects  a sea  change in

established policy.

          The Supplementary  Treaty provides that a finding anent

a  so-called  article  3(a) defense,  involving  race,  religion,

nationality,   or  political   opinion,  "shall   be  immediately

appealable by either  party to the United States  district court,

or court of appeals, as appropriate."  Supplementary Treaty, art.

3(b).  This appeal provision, which apparently finds its  genesis

in an earlier (failed) attempt  to alter the protocol prohibiting

direct appeals in extradition matters, see 132 Cong.  Rec. 16,599
                                          

(1986),  is couched  in plain  language and,  in our  view, means

precisely  what it  says.   See Sumitomo  Shoji America,  Inc. v.
                                                              

Avagliano, 457 U.S. 176,  180 (1982) (explaining that a  treaty's
         

literal language must be given effect unless patently contrary to

the signatories'  intentions and expectations).   In crafting the

                                8

appeal  provision,  the  drafters carefully  drew  a  distinction

between hearings held under 18 U.S.C.   3184 and appeals taken to

courts cloaked with the judicial power of the  United States.  In

discussing  the former,  the  document refers  to "the  competent

judicial   authority"   who   is   "[i]n   the   United  States."

Supplementary Treaty, art. 3(b); see also id. arts. 2,  3(a).  By
                                             

contrast,  in discussing  appeals,  the treaty  refers to  United

States courts  by name.  See id. art. 3(b).  The same distinction
                                

recurs in the legislative history.  See, e.g., S. Exec.  Rep. No.
                                             

17, supra,  at 8.    That is  a significant  datum,  for, if  the
         

language of a  treaty is  at all  ambiguous, courts  may look  to

legislative   history  in   interpreting  its   provisions  under

virtually  the  same  rules  that obtain  when  courts  interpret

statutes.   See  Factor v.  Laubenheimer,  290 U.S.  276,  294-95
                                        

(1933).

          The other straws in  the interpretive wind bend  in the

same  direction.   The Supplementary  Treaty stipulates  that the

"Federal  Rules of  Appellate  Procedure or  Civil Procedure,  as

appropriate, shall  govern the appeals  process."   Supplementary

Treaty,  art.   3(b).    And,  again,   the  legislative  history

reinforces the point, indicating  that the disputed provision "is

not intended to  make the Federal  rules generally applicable  to

the  extradition  hearing itself,  but only  to  the appeal  of a

decision under article 3(a)."  S. Exec. Rep. No. 17, supra, at 8.
                                                          

In  short, the text  of article 3(b), taken  as a whole, suggests

not only that an  appeal thereunder represents an entry  into the

                                9

federal courts  but also  that extradition  proceedings involving

article 3 differ in  kind from those involving  only 18 U.S.C.   

3184.

          We rule, therefore, that the Supplementary Treaty marks

a clean break from  the ancient prohibition on direct  appeals in

extradition   matters;  where   article  3  is   implicated,  the

Supplementary  Treaty  contemplates at  least  one  appeal as  of

right.  Accord In re  McMullen, 981 F.2d 603, 609 (2d  Cir. 1993)
                              

(en banc).  Moreover, because the Supplementary Treaty explicitly

identifies United  States courts, not judges or  justices, as the
                                

appellate authority,  see  Supplementary Treaty,  art.  3(b),  it
                         

unlocks  the  gate  which  has  historically  barred  extradition

matters from proceeding further through the federal courts in the

same manner as other cases.

                     C.  Successive Appeals.
                                           

          Our jurisdictional  odyssey is  not yet ended.   Noting

that article 3(b) provides  for appeals to the district  court or
                                                                 

court  of  appeals,  the  government  asserted  below  that  this

disjunctive  language restricts  the parties to  one bite  of the

apple and rules  out successive appeals (such  as Howard essays).

In this  court, however, the government  backtracks, appearing to

concede that,  notwithstanding Howard's  earlier appeal,  we have

jurisdiction over this appeal.  But, since  this point implicates

appellate jurisdiction and is non-frivolous,  see post (Campbell,
                                                      

J.,  concurring),  we are  not at  liberty  simply to  accept the

government's concession.  See supra note 2.  We proceed to ponder
                                   

                                10

the point.

          We  think  the  language  of article  3(b)  dictates  a

construction antithetic to that which the government urged below.

Because  the Supplementary Treaty  contemplates the initiation of

extradition  proceedings  before either  a  district  judge or  a

magistrate judge,  see S. Exec. Rep.  No. 17, supra, at  5, 6, 8,
                                                   

article  3(b)  prudently provides  for  review  by the  "district

court, or court of appeals, as appropriate."  In other words, the

disjunctive  "or"  is  to   be  read  not  as  an   unusual,  but

understated, restriction  on the  number of appeals;  rather, the
                                        

term  specifies  that the  ordinary  sequence  of appeals  should
                                             

apply.   This conclusion is supported by the reference in article

3(b)  to the  "appeals process,"  as well  as by  the legislative

history.  See S. Exec. Rep. No. 17, supra, at 8.
                                         

          We will not cart  coal to Newcastle.  Not  even so much

as  a  solitary  word  or  phrase  in  the  Supplementary  Treaty

intimates  an intent to prohibit  successive appeals    and it is

not   the  courts'   business  to   rewrite  a   treaty's  text.3

Accordingly,  we  hold  that  article  3(b)  permits   successive

appeals,  see, e.g., United States  v. Van Fossan,  899 F.2d 636,
                                                 

637-38  (7th Cir.  1990)  (holding that,  in  the absence  of  an

express  provision prohibiting  successive appeals,  the criminal

misdemeanor  statute, 18  U.S.C.    3402  (1988), permits  them);

                    

     3We  appreciate  the  force  of  the  policy  considerations
mentioned by Judge Campbell, see post (Campbell, J., concurring),
                                     
but  we believe that such  matters must be  left to those charged
with negotiating, executing, and ratifying treaties.

                                11

United  States v.  Forcellati, 610  F.2d 25,  28 (1st  Cir. 1979)
                             

(similar),  cert.  denied,  445  U.S. 944  (1980),  to  be  given
                         

expedited   consideration,  however,   as  article   3(b)  itself

provides, "at every stage."

                       D.  Recapitulation.
                                         

          To sum  up, the language and legislative history of the

Supplementary Treaty make it clear that the appeal right provided

by article 3(b)  implicates a "decision[] of the  district court"

within the  meaning of 28  U.S.C.   1291.   In this  sense, then,

article  3(b)  breaks with  traditional  practice  by authorizing

direct appeals to the  federal courts from certain determinations

regarding  extradition.    What  is more,  the  pertinent  treaty

provision  permits successive  appeals from a  magistrate judge's

decision to the  district court  and thereafter to  the court  of

appeals.    Because  that   path  was  followed  here,  appellate

jurisdiction attaches.

IV.  STANDARD OF REVIEW

          Having cleared the jurisdictional hurdle, we  turn next

to appellant's  asseveration that  the district court  employed a

faulty  standard of review.  Because this presents a purely legal

question,  requiring  an   interpretation  of  the  Supplementary

Treaty,  our  review is  plenary.   See,  e.g., United  States v.
                                                              

Washington,  969 F.2d 752, 754 (9th Cir. 1992), cert. denied, 113
                                                            

S. Ct. 1945 (1993); Quinn, 783 F.2d at 791.
                         

                 A.  Principles Governing Review.
                                                

          Determinations concerning article 3(a)  defenses "shall

                                12

be   immediately  appealable   by  either   party"  through   the

instrumentality of  "filing a  notice of appeal."   Supplementary

Treaty, art. 3(b).   But,  though this article  grants rights  of

appeal,  it does  not  mention standards  of  review.   We  look,

therefore, to first principles.

          Absent  a specific statutory directive to the contrary,

appeals in the federal  court system are usually arrayed  along a

degree-of-deference continuum, stretching from plenary  review at

one  pole to  highly  deferential modes  of  review (e.g.,  clear
                                                         

error, abuse  of discretion)  at the opposite  pole.  At  the "no

deference"  end   of   the  continuum   lie   appeals   involving

unadulterated  questions   of  law,  the   resolution  of   which

customarily entails de  novo review.   See, e.g., Liberty  Mutual
                                                                 

Ins.  Co. v. Commercial  Union Ins. Co.,  978 F.2d  750, 757 (1st
                                       

Cir.  1992).   At  the other  end  of the  continuum  lie appeals

involving  straight factual  determinations,  the  resolution  of

which customarily  entails acceptance of the  trier's judgment in

the  absence of  palpable error.   See,  e.g., Cumpiano  v. Banco
                                                                 

Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990) (holding
                     

that appellate courts  "ought not  to upset findings  of fact  or

conclusions  drawn therefrom unless, on the  whole of the record,

[the appellate judges]  form a strong,  unyielding belief that  a

mistake has been made"); see also Fed. R. Civ. P. 52(a).
                                 

          There  are,  however,  difficulties in  classification.

Many cases involve what courts term "mixed" questions   questions

which, if they are to be properly resolved, necessitate combining

                                13

factfinding  with  an elucidation  of  the applicable  law.   The

standard of review applicable  to mixed questions usually depends

upon  where  they fall  along the  degree-of-deference continuum:

the  more fact-dominated the question, the more likely it is that

the trier's resolution of it will  be accepted unless shown to be

clearly erroneous.  See, e.g., United States v. Mariano, 983 F.2d
                                                       

1150, 1158-59 (1st Cir.  1993); Roland M. v. Concord  Sch. Comm.,
                                                                

910 F.2d  983, 990-91 (1st Cir.  1990), cert. denied, 111  S. Ct.
                                                    

1122 (1991).

          Given that  the Supplementary  Treaty is silent  on the

subject, we presume that the framers, in providing for appeals to

the  federal courts,  intended  ordinary standards  of review  to

apply.   See S.  Exec.  Rep. No.  17, supra,  at  8 ("Nothing  in
                                           

article 3(b) is to be interpreted as .  . . upsetting established

rules  of  appellate procedure.");  see  also  Gioiosa v.  United
                                                                 

States, 684 F.2d 176, 179 (1st Cir. 1982) (discussing standard of
      

review in  appeal from  magistrate to district  court).   Because

issues of the sort envisioned in article 3(a) are typically fact-

specific, appellate  review of  findings anent such  issues will,

absent  an error of law, most often proceed under the clear-error

rubric.  See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 289-
                                             

90  (1982)   (reviewing  district   court  findings   anent  race

discrimination  for clear  error); Beasley  v. Health  Care Serv.
                                                                 

Corp., 940 F.2d 1085, 1088 (7th Cir. 1991) (similar in respect to
     

discrimination based on  religious beliefs);  Rendon v. A  T &amp;  T
                                                                 

Technologies, Inc., 883  F.2d 388, 392 (5th Cir.  1989) (similar;
                  

                                14

discrimination  based  on national  origin);  Gierbolini-Colon v.
                                                              

Aponte-Roque,  848  F.2d  331,  333  (1st  Cir.  1988)  (similar;
            

political discrimination); but cf.  Bose Corp. v. Consumers Union
                                                                 

of  United States, Inc., 466  U.S. 485, 514  (1984) (holding that
                       

clearly  erroneous standard does  not apply  to review  of quasi-

legal "finding" of actual malice in First Amendment context).

          This conclusion is buttressed by analogy to traditional

habeas  corpus practice in the  extradition field.   When a party

collaterally   challenges   a   magistrate's   determination   of

extraditability, judicial review is sharply  circumscribed.  See,
                                                                

e.g.,  Fernandez v.  Phillips, 268  U.S. 311,  312 (1925);  In re
                                                                 

Manzi,  888 F.2d  204, 205  (1st Cir.  1989) (per  curiam), cert.
                                                                 

denied,  494 U.S. 1017 (1990).   The most  prominent exception is
      

for  a  claim  that  the  crime  constitutes  a  non-extraditable

political offense.   Review  of political  offense determinations

follows the continuum analysis  described above.  See  Quinn, 783
                                                            

F.2d at  790-91 &amp; n.9.   Because defenses under  article 3(a) are

analogous  to  political  offense  determinations    indeed,  the

fundamental  compromise  undergirding  the  Supplementary  Treaty

treated the one  as a replacement  for the other    common  sense

suggests that the same standard of review should apply.

          Last, but surely not least, appellant's contention that

district court review under  article 3(b) must always be  de novo
                                                                 

is  at war  with  the words  and  purposes of  the  Supplementary

Treaty.  The  treaty expresses  a strong  interest in  expediting

extradition  matters.    See  Supplementary  Treaty,  art.   3(b)
                            

                                15

(providing  for  "immediate[]" appeals  and  requiring "expedited

consideration at  every stage").   The legislative history  is in

the  same  vein.    See,  e.g.,  132  Cong.  Rec.  16,607  (1986)
                              

(admonishing  that  the  treaty's  safeguards  should not  afford

"protracted sanctuary in the United States").   Wholesale de novo
                                                                 

review not  only would  ignore the factfinder's  superior vantage

point  for judging the intricacies  of a contested  case but also

would  be   wasteful,  engendering  unwarranted  delays   in  the

extradition process.

          In  general,  then, reviewing  courts should  apply the

clearly erroneous  standard to  the trier's  findings of  fact in

situations  where article  3  of the  Supplementary Treaty  is in

play.

                   B.  Applying the Principles.
                                              

          In   this  case,   the  district   court  treated   the

magistrate's  finding that  no  cognizable  article 3(a)  defense

existed  as factual in  nature and applied  the clearly erroneous

test.  As to  appellant's principal claim   that,  if extradited,

he would suffer prejudice on account of his race or nationality  

we endorse the district  court's choice of a standard  of review.

The  claim  in  question challenged  the  magistrate's underlying

factual determination  that, on  the evidence  adduced, appellant

had not proved meaningful prejudice.  This fact-intensive finding

evokes clear-error review.4

                    

     4Since  this  is  a   successive  appeal,  we  evaluate  for
ourselves  whether  clear  error  characterized  the magistrate's
factual  finding that appellant failed  to prove the existence of

                                16

          There is, however, a second facet of appellant's claim,

as  to which  the  district court  chose  the wrong  standard  of

review.    The  magistrate  held  that  article  3(a)   does  not

necessarily  bar  extradition  whenever  a  respondent shows  the

existence  of some preformed  ideas in the  requesting nation but

that  the biases  must  rise  to  a  level  where  they  actually

prejudice  the respondent  before article  3(a)  affords relief.5

The soundness of this  analysis   which depends upon  whether the

terms employed  in article  3(a) encompass  all nationality-based

and  race-based  biases  or   only  those  directly  affecting  a

particular   respondent       involves   interpretation   of  the

Supplementary Treaty.   Treaty  interpretation is a  purely legal

exercise  as to which, under the criteria limned above, see supra
                                                                 

Part IV(A), no deference is  due to the trier.  Accordingly,  the

district court should have scrutinized the magistrate's ruling on

this issue de novo.
                  

          That the district court failed to afford plenary review

on this aspect of the case does not mean that we must remand.  To

do so  would needlessly throw the  helve after the hatchet.   See
                                                                 

Gioiosa,  684 F.2d  at  179.   Rather,  because the  question  is
       

                    

cognizable prejudice under article 3(a).  See infra Part VI.
                                                   

     5In  a second branch  of his analysis,  the magistrate found
that, in any event, the weight of the evidence against Howard was
so great that  no decisionmaker  would be distracted  from it  by
whatever slight biases might exist.  We express no opinion on the
appropriateness of this analytic  approach as appellant "does not
suggest  that the [magistrate] was expected  to ignore the weight
of  the  probable cause  evidence"  in  making  his article  3(a)
determination.  Appellant's Brief at 25.

                                17

quintessentially  legal  and  this  court  is  fully  capable  of

deciding it without any further development of the record, we can

simply address and resolve  it.  See, e.g., Societe  Des Produits
                                                                 

Nestle,  S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 642 (1st Cir.
                                    

1992); Gioiosa, 684 F.2d at 179.
              

V.  PREJUDICE UNDER THE SUPPLEMENTARY TREATY

          With this  preface, we proceed directly  to the treaty-

interpretation question, affording plenary review.

                    A.  Traditional Practice.
                                            

          A  sovereign's right  to obtain  the extradition  of an

accused  is  created  by treaty;  where  there  is  no treaty,  a

requested nation has no duty to extradite.  See Factor, 290  U.S.
                                                      

at 287.   Indeed, federal  courts have stated  that no branch  of

government  has authority to  surrender an  accused to  a foreign

country except in pursuance  of a statute or treaty.   See Quinn,
                                                                

783 F.2d at 782 (collecting cases).

          An extradition  treaty does more than  bridge this gap.

The  existence of  such a  treaty between  the United  States and

another nation indicates that,  at least in a general  sense, the

executive  and legislative branches consider the treaty partner's

justice  system sufficiently  fair  to  justify  sending  accused

persons there for trial.  See Glucksman  v. Henkel, 221 U.S. 508,
                                                  

512 (1911); Neely v.  Henkel (No. 1),  180 U.S. 109, 123  (1901).
                                    

In  habeas corpus  proceedings, this  rationale has  produced the

rule  of   noninquiry      a  doctrine  which   forbids  judicial

authorities  from  investigating  the  fairness  of  a requesting

                                18

nation's  justice  system  when  considering  whether  to  permit

extradition  to that  nation.   See Glucksman,  221 U.S.  at 512;
                                             

Manzi, 888 F.2d at 206 (collecting cases).6
     

          Of course, the signing of a treaty does not forever put

to rest  questions concerning  the fairness of  another country's

legal framework.   For example, an extradition target may present

such  issues to  the  Secretary  of  State     the  official  who

ultimately  decides whether  a  person found  to be  extraditable

should  in fact  be extradited.    See 18  U.S.C.    3186.   But,
                                      

traditionally, in extradition cases, the  judiciary neither asks,

nor  seeks  to  answer,  questions about  the  sensitivities  and

sophistication of courts abroad.7

                    B.  Scope of Article 3(a).
                                             

          The Supplementary Treaty openly alters this traditional

practice.   It requires judges to shun extradition if the accused

                    

     6The government suggests that the  Constitution mandates the
rule of noninquiry.  We disagree.  The rule did not spring from a
belief that courts, as an  institution, lack either the authority
or the capacity to  evaluate foreign legal systems.   Rather, the
rule  came   into  being  as  judges,   attempting  to  interpret
particular treaties, concluded that, absent a contrary indication
in a specific instance, the ratification of an extradition treaty
mandated  noninquiry  as a  matter of  international comity.   No
doubt  the  rule  exemplifies  judicial  deference  to  executive
authority, see Koskotas,  931 F.2d at 174, but it  is a deference
                       
stemming at least in part from the fact that the executive is the
branch which most likely has  written and negotiated the document
being interpreted.

     7The judiciary  has, however,  explicated a number  of other
limitations  on extradition.  See,  e.g., Manzi, 888  F.2d at 207
                                               
(explaining  that  the  principle  of  double   criminality  bars
extradition unless  the offense is  a crime  in both  countries);
Quinn,  783 F.2d at 792-810 (discussing origin of, and basis for,
     
political offense exception in extradition proceedings).

                                19

either establishes that the request "has in fact been made with a

view  to try  or punish  him on  account of  his  race, religion,

nationality  or political  opinions,"  or if  he proves  that "he

would, if surrendered,  be prejudiced at  his trial or  punished,

detained or  restricted"  on account  of  any of  these  factors.

Supplementary Treaty, art. 3(a).  These phrases cannot be brushed

aside as  a series of scrivener's errors:  to the exact contrary,

Congress  intended  the  words  to  authorize  inquiry  into  the

attributes of  a country's  justice system  as that  system would

apply to a given individual.  See S. Exec. Rep. No. 17, supra, at
                                                             

4-5;  132  Cong.  Rec.  16,798-803 (1986).    Moreover,  Congress

evidently  knew that  its command  reversed years  of extradition

practice forbidding judicial investigation  into such areas.  See
                                                                 

132  Cong. Rec. 16,800 (1986) (describing article 3(a) as "a very

broad,  and far  reaching provision");  id. at  16,806 (labelling
                                           

this aspect of the treaty "historic").  

          Still, the article  3(a) defense,  though a  refreshing

zephyr  to persons  resisting  extradition, is  not of  hurricane

force;  its mere invocation will  not sweep aside  all notions of

international comity  and deference  to  the requesting  nation's

sovereignty.    At least  four principles  rein  in the  winds of

change.  First, elementary rules of construction dictate that the

defense  not  be  construed  so  expansively  as  to  negate  the

remainder of the treaty.   See, e.g., Factor, 290 U.S. at 292-93.
                                            

The  rule  of noninquiry  developed from  the assumption  that an

extradition treaty, by its  very existence, constitutes a general

                                20

acceptance  of another  country's legal system.   See  supra Part
                                                            

V(A).  By like  token, the existence of  an overall agreement  on

extradition must inform the workings of the article 3(a) defense,

limiting  its applicability to  specific problems  encountered by

specific respondents, as opposed to general grievances concerning

systemic  weaknesses  inherent in  every  case.   Otherwise,  the

extradition treaty actually becomes an impediment to extradition,

in other words,  a non-extradition  treaty.  See  132 Cong.  Rec.
                                                

16,607 (1986).

          Second,  controlling  precedent  requires  that,  where

possible,   we   interpret   extradition   treaties   to  produce

reciprocity  between,  and  expanded  rights on  behalf  of,  the

signatories:

          [Treaties] should be  liberally construed  so
          as  to effect the  apparent intention  of the
          parties  to  secure equality  and reciprocity
          between them.   For that reason,  if a treaty
          fairly  admits  of  two   constructions,  one
          restricting the  rights which may  be claimed
          under  it,  and the  other enlarging  it, the
          more liberal construction is to be preferred.

Factor,  290 U.S. at 293-94.  These principles of reciprocity and
      

liberal  construction  have  particular force  here  because  the

United  States, unlike the U.K. and certain other nations, has no

available  machinery  for  prosecuting  those  who commit  crimes

abroad but who are, nonetheless, non-extraditable.  See 132 Cong.
                                                       

Rec. 16,587 (1986).

          Third, article  3(a) requires  an accused to  establish

that  he would,  if  surrendered, be  "prejudiced" on  account of

particular factors.   In our  view, this word  denotes that  only

                                21

those preformed ideas relative to race, nationality, and the like

which  are  of  sufficient   magnitude  actually  to  affect  the

accused's  situation,  i.e.,  to  "prejudice"  him,  trigger  the
                           

special prophylactic protections of the Supplementary Treaty.

          Finally,  the  legislative  history  suggests  that, in

insisting upon  the inclusion  of article  3(a),  the Senate  was

concerned  largely   with  the   special  Diplock  court   system

applicable  to  those  accused  of  terrorist  acts  in  Northern

Ireland.   See 132  Cong.  Rec. 16,806-19  (1986).   There is  no
              

indication that the defense was meant  as a slur upon, much  less

an indictment of, the British legal system.

          For these  four reasons, we  conclude that the  soil of

this  case   is   particularly   inhospitable   to   a   rambling

interpretation  of article 3(a).   We  hold, therefore,  that, in

order  to  avail  himself   of  the  article  3(a)  defense,   an

extradition  target  must establish  by  a  preponderance of  the

credible  evidence that, if he were surrendered, the legal system

of the requesting country would  treat him differently from other

similarly  situated individuals  because  of his  race, religion,

nationality, or political opinions.   It is not enough  simply to

show some  possibility that preformed ideas  might exist; rather,

under the terms of  the Supplementary Treaty, the bias  must rise

to the level of  prejudicing the accused.  See  generally William
                                                         

M.  Hannay,  Committee  Report:   An  Analysis  of  the U.S.-U.K.
                                                                 

Supplementary Extradition Treaty, 21 Int'l Law. 925 (1987).
                                

           C.  Appellant's "Per Se Prejudice" Argument.
                                                      

                                22

          We now face the task of applying the prejudice standard

in  this case.    The record  reveals  that the  magistrate  paid

careful  attention to an array of facts that sometimes pointed in

different directions.   For  instance, he  found that there  were

some negative articles about Howard,  that some Britons might  be

biased  against  black  Americans, and  that  the  U.K.  does not

utilize   a  voir   dire  procedure   to   screen  venirepersons.

Nonetheless,  in  the  magistrate's  eyes, these  facts  did  not

establish   an  article   3(a)  defense   because  countervailing

considerations  mitigated  their negative  impact,  rendering any

bias de minimis.   Appellant excoriates this finding, complaining
               

that  it rests  upon a  faulty  legal premise.   He  asserts that

article  3 effectively eclipses the  rule of noninquiry; that the

evidence he tendered constitutes per se proof  of prejudice which
                                       

irrebuttably establishes  an article  3(a) defense; and  that the

Supplementary   Treaty  does  not  countenance  consideration  of

countervailing factors  in mulling  whether a defense  is extant.

We  concur  with the  magistrate  that  the Supplementary  Treaty

stakes out a middle ground between the classic rule of noninquiry

and  the total  abolition of that  rule:   the treaty  alters the

traditional   formulation  of   the  rule   while  simultaneously

preserving many aspects  of it.   Any other interpretation  would

run afoul of the four constraining principles we have identified.

See supra at 20-21.
         

          One  manifestation  of  this  middle  position is  that

article  3(a),  as we  read it,  imposes  a de  minimis threshold
                                                       

                                23

requirement relative to the existence of prejudice.  For example,

because  international  criminal  affairs  are   frequently  high

profile, a  per se rule  barring extradition  whenever there  has
                  

been any negative  publicity would undermine the entire treaty by

making successful  article 3(a) defenses  virtually automatic and

relegating  extradition to  a few  fringe instances.   We  do not

think that the treaty partners intended so unproductive a result.

Similar reasoning rules out any per se prohibition on extradition
                                      

when  the accused  proffers evidence  suggesting discordant  race

relations in the U.K. or when he simply points to  the absence of

a specific procedural device.

          Consequently,   we  hold   that,  while   a  magistrate

considering the applicability  of article 3(a) must weigh each of

the  factors cited by  appellant if an  extradition target offers

proof that  they exist, their  mere presence, without  more, does

not  conclusively  establish  an  article  3(a)  defense.8    The

something "more,"  as  we have  indicated,  is prejudice  to  the

                    

     8This interpretation finds  analogies in prevailing  federal
court  practice.  For instance,  we have routinely  held that the
mere  presence   of   differing  procedural   devices,   pretrial
publicity, or allegations  of community prejudice, without  more,
does  not warrant overturning a criminal  conviction.  See, e.g.,
                                                                
Neron v.  Tierney, 841  F.2d 1197, 1199  (1st Cir.)  (admonishing
                 
against  the   use  of  habeas  corpus   to  superimpose  federal
procedural choices  upon state courts merely  because the federal
court  thinks some  "other" procedure  might be  "better"), cert.
                                                                 
denied, 488  U.S. 832 (1988); United  States v. Reveron-Martinez,
                                                                
836  F.2d   684,  687  (1st  Cir.  1988)  (ruling  that  pretrial
publicity, even though pervasive and  negative, did not warrant a
presumption of prejudice); United States v. Gullion, 575 F.2d 26,
                                                   
28  (1st  Cir.  1978)  (explaining  that  the  mere existence  of
community  prejudice,  in and  of  itself,  does not  necessitate
relief).

                                24

extradition  target.   It follows  that the  magistrate correctly

construed  article   3(a)  to   require  a  showing   of  actual,

respondent-specific prejudice.9  Appellant's per  se challenge to
                                                    

the magistrate's reasoning must, therefore, fail.

VI.  THE MERITS OF THE ARTICLE 3(a) DEFENSE

          This  brings us  to the  merits of  Howard's fact-based

challenge to  the decision below     an issue that  gives us some

pause.10   Nevertheless,  in seeking  to  secure an  article 3(a)

defense, an extradition  target bears  a heavy burden.   He  must

establish,  by a preponderance of the evidence, that he would, if
                                                             

surrendered,  be prejudiced  on account  of a  proscribed factor.

See  Supplementary Treaty,  art.  3(a); see  also 132  Cong. Rec.
                                                 

16,607  (1986).  Having painstakingly  reviewed the papers in the

case in  light of the burden  of proof, we cannot  say that clear

error inheres.

          Appellant   introduced  numerous   newspaper  articles,

affidavits from several  people living in Great Britain,  and the

testimony  of  Paul  Stevenson,  a senior  executive  officer  of

England's  Commission  for  Racial  Equality, in  an  attempt  to

                    

     9We  note, in  passing,  that the  rules governing  criminal
trials  in the federal courts  seem fully compatible  with such a
requirement.   See,  e.g., Fed.  R. Crim.  P. 52(a)  ("Any error,
                         
defect,   irregularity  or   variance   which  does   not  affect
substantial rights shall be disregarded.").

     10We refer only to appellant's claim that, if extradited, he
would be prejudiced on account of his race.  He presented little,
if  any, evidence suggesting  the existence  of nationality-based
biases in this  case, and we  cannot discern any error  (clear or
otherwise) in  the magistrate's finding that  appellant failed to
prove cognizable prejudice of this genre.

                                25

establish  that  widespread  publicity  would  prevent  him  from

receiving fair treatment abroad.   But, this evidence comprises a

mixed bag.  It is true that some of the press clippings contained

racial innuendo.  On the other hand, the publicity was mercifully

brief in  duration, for the most  part lasting less than  a week;

the U.K.'s  Contempt of Court  Act has been invoked  and will cut

off  any  further  untoward publicity;  Howard's  counsel himself

created  some  of the  notoriety in  his  rousing remarks  to the

British  press;   the  media   coverage  was  not   uniformly  or

overwhelmingly negative (indeed,  some of the newspaper  articles

describe  appellant  favorably);  and,  finally,   the  publicity

occurred over two years ago and will be very old news when and if

appellant  eventually  comes  to  trial  in  England.    On  this

conflicted record, the magistrate  did not perpetrate clear error

in finding  that a spurt  of mixed publicity  created in part  by

appellant's counsel and occurring years ago failed to rise to the

level of prejudice necessary to sustain an article 3(a) defense.

          The evidence  in  the record  concerning  the  supposed

shortcomings  of the  requesting nation's  legal system  does not

require  a different result for  it, too, is  mixed.  Admittedly,

appellant  presented  affidavits  and testimony  suggesting  that

preformed   ideas  constitute   a   particular   threat  in   the

circumstances  of this case  because the English  system does not

provide for American-style voir  dire of potential jurors.   But,

evidence  submitted   by   the  government   and  elicited   from

appellant's  witness  on  cross-examination  indicates  that  the

                                26

English legal system has a host of other mechanisms which will be

available to  appellant and  which mitigate  the absence  of voir

dire.  Appellant will be able to present his arguments concerning

the  impact  of  pretrial  publicity and  race  relations  during

committal  proceedings in  the  U.K.    He  may  then  renew  the

arguments by requesting pretrial review at the Crown Court, again

before  the trial  judge,  and still  again  on appeal  from  any

conviction.  In  addition, the English system provides  for self-

excusal of  potentially biased jurors  and trial judges  are duty

bound  to  offer   detailed  jury  instructions  concerning   the

impropriety  of grounding  defendants' convictions  on extraneous

considerations.  Seen in this light, the absence of voir dire  in

the  English system is not of decretory significance.  After all,

courts must not let jingoism  run amok, but, rather, must turn  a

sympathetic ear to other nations' independent judgments about how

best  to ensure fairness in  dealing with criminal  matters.  The

United States has no monopoly on even-handed justice.

          To  summarize,  the   evidence  concerning   prejudice,

properly decanted, is ambivalent.  The facts we have  catalogued,

and  others in  the  record, comprise  adequate  support for  the

magistrate's  conclusion that  any evidence  of bias  relating to

appellant's race is so  exiguous as not to animate  article 3(a).

Put  another way, the magistrate weighed the proof, drew a series

of  reasonable (albeit  not inevitable)  inferences from  it, and

concluded that appellant  had not carried  the burden of  proving

prejudice.   We cannot say that this choice between two plausible

                                27

alternatives,  each  of  which   finds  support  in  the  record,

constitutes  clear error.  See Anderson v. City of Bessemer City,
                                                                

470 U.S. 564, 573-74  (1985); United States v. Rodriguez-Morales,
                                                                

929  F.2d 780, 784 (1st Cir. 1991),  cert. denied, 112 S. Ct. 868
                                                 

(1992).

VII.  CONCLUSION

          We  need  go   no  further.11     Article   3  of   the

Supplementary   Treaty  significantly   alters  the   pattern  of

procedural avenues and substantive rights traditionally available

in extradition  cases.   While these alterations  reconfigure the

extradition   landscape,  they  do   not  render  it  impassable.

Following  the map that Article  3 supplies, we  conclude that we

have  jurisdiction  to  consider  appellant's  claims;  that  the

standard of review governing his legal challenge is de novo; that
                                                           

the standard  of review governing his fact-based challenge is for

clear error; that  appellant's arguments anent  the scope of  the

article 3(a) defense  envision a grandeur which lacks  support in

the treaty's language or in the applicable law; and, that, in the

last analysis,  the magistrate's  findings of fact  derive enough

support from  the record to  withstand attack.   Accordingly, the

                    

     11We do  not tarry  over the assertion  that the  magistrate
erred  in denying appellant's motions  to stay proceedings and to
supplement the  evidence.   These motions  were addressed  to the
magistrate's discretion, and he  provided ample reasons for their
denial.   In the same vein,  we see no error  in the magistrate's
discretionary   decision   allowing   the  government   to   file
confirmatory  materials  out  of  time.     On  this  score,  the
sockdolager is that appellant neither sought to reopen the record
to  counter  or  contest  the  belated  evidentiary  proffer  nor
requested time for this specific purpose.  He cannot now be heard
to complain that he had no chance to respond.

                                28

district  court lawfully  upheld the  magistrate's issuance  of a

certification of extraditability.

Affirmed.
        

                    Concurring Opinion Follows  

                                29

            CAMPBELL, Senior Circuit Judge (Concurring).  While
                                                       

  joining  in  the  court's  opinion,  I  am  troubled  by  our

  resolution of  the "successive appeals" issue.   Article 3(b)

  provides that  a finding concerning an  Article 3(a) defense,

  involving race, religion, nationality, or  political opinion,

  "shall  be  immediately appealable  by  either  party to  the

  United  States  district  court,  or  court  of  appeals,  as

  appropriate."   We hold  that this unclear  language does not

  indicate that  an appellant receives only one appeal    i.e.,
                                               

  an appeal to the  district court, if the  initial extradition

  decision was  by a magistrate, or  an appeal to the  court of
                                   

  appeals if the initial extradition decision was by a district

  judge     but rather was meant to  provide, however clumsily,

  for  the full federal appellate process.  Thus, where as here

  the  initial  extradition  decision  was by  the  magistrate,

  appellant  can  appeal, (1)  to  the  United States  district

  court; (2) from  the  district court  to this  court; and,  I

  assume, (3) from  this court to the Supreme  Court by writ of

  certiorari.

            It  is sad but true that this interpretation of the

  ambiguous language     while  seemingly what was  intended   

  creates significant new  opportunities for  persons to  delay

  their extradition.  Historically, extradition decisions  by a

  judge or  magistrate were  not appealable, thus  avoiding the

  potential  delays  which   often  attend  appellate   review.

                               -29-
                                29

  Obviously,  the  more  extradition  is susceptible  to  being

  bogged  down in endless  procedural maneuvering,  the greater

  the danger that essential witnesses  to the charged crime may

  die or disappear and their memories fade prior to trial.   It

  used to  be thought  that the  interest of  another civilized

  nation  in enforcing  its  criminal law  entitled  it to  the

  reasonably  prompt  extradition  of  accused  persons.    The

  present appeal to this court  has enabled appellant to  delay

  trial in Great Britain by another year or more.

            It would have been useful had  the United States of

  America gone more deeply,  in its briefs before us,  into the

  pros and cons  of the proper interpretation  of Article 3(b).

  In  a Treaty  case  of first  impression, the  interpretation

  espoused by  the Attorney  General can  be enlightening.   As

  best I can tell, the Attorney General agrees with the court's
                                              

  reading of the  Treaty, i.e., that the full federal appellate

  process, and not a truncated version, was intended.  However,

  the alternative interpretation    what my colleagues call the

  "one bite of the  apple" approach     has  some appeal  given

  Article  3(b)'s  literal  language  and  the  long  tradition

  divorcing extradition from the  normal appellate process.  We

  could have  benefited from  a more considered  explication of

  all this by the United States.

            In  any  event,  I  write separately  in  order  to

  emphasize  the  implications  of  Article  3(b),  as  we  now

                               -30-
                                30

  interpret it, so that the drafters  of future provisions will

  have no  illusions  concerning the  inevitable potential  for

  delay,  and  may decide  whether  other  approaches would  be

  desirable.

                               -31-
                                31
