
USCA1 Opinion

	




                            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 & 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          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 & 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          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 &  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          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.                                  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 & 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).                                  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.                               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.                                 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          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.                           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 &  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 & 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.                             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          V.  PREJUDICE UNDER THE SUPPLEMENTARY TREATY                    With this  preface, we proceed directly  to the treaty-          interpretation question, affording plenary review.                              A.  Traditional Practice.                              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).                              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.                     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          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          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.          Affirmed.          ________                              Concurring Opinion Follows                                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
