          United States Court of Appeals
                     For the First Circuit

No. 13-2444

                        ALEXANDER HILTON,

                     Petitioner, Appellant,

                               v.

  JOHN KERRY, United States Secretary of State; ERIC H. HOLDER,
   United States Attorney General; JOHN GIBBONS, United States
               Marshal, District of Massachusetts,

                     Respondents, Appellees.


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

         [Hon. Timothy S. Hillman, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
               Howard and Kayatta, Circuit Judges.



     Monica R. Shah, with whom Norman Zalkind and Zalkind Duncan &
Bernstein LLP were on brief, for appellant.
     Theodore B. Heinrich, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellees.


                          June 12, 2014
             LYNCH, Chief Judge.            This is an appeal from a denial of

a habeas corpus petition asking the court to block extradition.

             Upon    receiving       an    official    request           from    the    United

Kingdom, the United States sought extradition of Alexander Hilton,

a United States citizen, to face an attempted murder charge in

Scotland.      Hilton argued that, because of his mental health

problems, he may not be extradited because extradition would cause

him   an   increased    risk     of       suicide,    and     so       violate    his    Fifth

Amendment     right     to     due        process     under        the     United       States

Constitution.        In addition, Hilton argued that he may not be

extradited because trial under the Scottish jury system requires

only a simple majority for conviction and that would violate his

U.S. constitutional rights.1               After a hearing, a magistrate judge

found      Hilton     extraditable          and      issued        a     Certificate       of

Extraditability.       See 18 U.S.C. § 3184.

             Hilton then filed a petition for a writ of habeas corpus,

seeking to block extradition.              See 28 U.S.C. § 2241; see also In re

Extradition     of    Howard,    996       F.2d     1320,   1325         (1st    Cir.    1993)

(explaining that "neither party to an extradition proceeding may

challenge a decision rendered therein by direct appeal").                                  The

district     court    denied    the        petition.        See        Hilton    v.     Kerry,


      1
         Hilton also alleged a derivative violation of this
country's treaty obligations under the United States-United Kingdom
extradition treaty, Extradition Treaty Between the United States of
America and the United Kingdom of Great Britain and Northern
Ireland, U.S.-U.K., Mar. 31, 2003, S. Treaty Doc. No. 108–23.

                                            -2-
No. 13-11710-TSH, 2013 WL 5755485 (D. Mass. Oct. 22, 2013).      We

affirm the district court.

                                 I.

A.         Allegations

           Hilton attended the University of St. Andrews in Scotland

from September 2009 through March 2011. United Kingdom authorities

allege that on or about March 5, 2011, Hilton attempted to murder

a fellow student, Robert Forbes, by spiking a bottle of wine with

methanol, giving the bottle to Forbes, and encouraging him to drink

the contents.    Because of Hilton's continuous encouragement, the

allegations continue, Forbes drank most of the contents of the

bottle.   Forbes was later hospitalized.   According to the request

for extradition, a treating neurologist "is of the opinion that if

[Forbes] had not received medical treatment then he may have

sustained kidney failure or other neurological deficit. Due to the

high levels of acid in his blood this would have resulted in his

death."   Forbes is alleged to have lost initially his eyesight as

a result of the incident, though it has since improved.      Forbes

continues to require and receive medical treatment.

           Following the incident, police recovered evidence that

Hilton had purchased a plastic funnel and glass measuring jug from

a local store.    In addition, police recovered Hilton's laptop,

analysis of which showed that a user had on March 7, 2011 -- two

days after the poisoning but two days before Forbes' condition was


                                -3-
diagnosed -- accessed web pages containing information regarding

methanol poisoning and the long term effects thereof. In addition,

analysis showed that, on an unknown date, a user had conducted

Google search for "methanol mixed with ethanol."

          Scottish authorities interrogated Hilton for five hours

on March 11, 2011 but did not charge him at that time.    On March

15, 2011, Hilton sought and received a leave of absence from St.

Andrews, citing, among other things, his personal and medical

circumstances (see infra).   Hilton left Scotland and returned to

his home in Massachusetts on March 22, 2011.   On October 11, 2012,

the British Embassy submitted a diplomatic note formally requesting

that Hilton be extradited.     Hilton was charged with attempted

murder in Scotland, and a warrant for his arrest was issued on

December 2, 2012.   On February 12, 2013, the United States filed a

complaint seeking an arrest warrant and the extradition of Hilton.

Hilton was arrested on February 13, 2013.

B.        Hilton's Mental Health Problems

          Hilton, now age 22, has a long history of mental illness

including suicidal thoughts and ideation.   According to Dr. Judith

G. Edersheim, a psychiatrist retained by Hilton's counsel to

evaluate Hilton, Hilton suffers from "a primary psychotic disorder,

a primary disorder of thought," with diagnostic considerations

pointing to schizophrenia, delusional disorder, or generalized

psychotic disorder.


                                -4-
            After    his   arrest,     Hilton     was    transferred       to   Wyatt

Detention   Facility.        Immediately,       Hilton    began     to    engage   in

suicidal behaviors. Officials placed Hilton on suicide watch. His

attorneys   report    that    Hilton     became    increasingly          despondent,

refusing nutrition.        While detained, Hilton also expressed overt

psychotic   thoughts,       including    auditory,        visual,    and     tactile

hallucinations.

            In Dr. Edersheim's opinion, Hilton's suicidal thoughts

and ideations worsen whenever he is away from his home and the set

of supports his family has put in place.                She opines further that

extradition to Scotland would greatly increase Hilton's risk of

suicide.

C.          Extradition Proceedings and Bail

            Ten days after his arrest, Hilton filed a motion to

permit visits from his treating psychologists.                    The Government

assented, and, based upon a showing of medical necessity, the

magistrate judge granted the motion the same day.                 Around the same

time, Hilton filed a motion for release from custody on bail

pending extradition proceedings, arguing, among other things, that

his psychiatric illness was severely exacerbated as soon as he was

placed in custody.         After a hearing, the magistrate judge found

that special circumstances existed overriding the presumption

against granting bail in extradition proceedings and that Hilton




                                        -5-
did not pose a serious risk of flight or danger to the community.

She ordered him released on conditions on March 4, 2013.2

            The magistrate judge held an extradition hearing on March

7, 2013.    On May 3, 2013, she issued a decision finding Hilton

extraditable      to    Scotland     and,   soon   after,   a   Certificate   of

Extraditability.        The decision found that Hilton conceded that a

valid treaty exists between the United States and the United

Kingdom, that the charged crime of attempted murder is covered by

the treaty, and that probable cause exists for the charged crime.

Relying    upon   the    rule   of    non-inquiry,    the   decision   rejected

Hilton's argument that, by subjecting him to Scottish criminal

procedure, extradition would violate his constitutional rights and,

as a consequence, certain provisions of the extradition treaty.

The decision also rejected Hilton's argument that extradition

should be barred on humanitarian grounds, reasoning that, under the

federal extradition statute, such considerations were properly

addressed to the Secretary of State.           The magistrate judge ordered

a stay of the Certificate of Extraditability so that Hilton could

diligently pursue a habeas petition.




     2
       Hilton's current release is set to end upon the termination
of habeas proceedings. In the extradition proceedings below, the
magistrate judge appears to have left open whether, under the
extradition statute, she retains authority to order release for the
period after habeas proceedings have terminated but prior to
extradition. The Government has not challenged before this court
the earlier order granting release. We do not address the issue.

                                        -6-
D.           Habeas Proceedings

             Hilton filed a petition for a writ of habeas corpus on

July 16, 2013, again seeking to prevent his extradition.                See 28

U.S.C.   §   2241.   In   his   petition,      Hilton   claimed    first   that

extradition should be blocked because of certain features of

Scotland's criminal procedure, and second that extradition would

violate his constitutional rights because of the risk he would

commit suicide if extradited.        Hilton, 2013 WL 5755485, at *2-3.

The district court denied Hilton's petition on October 22, 2013.

Id. at *5. The court rejected Hilton's claim for relief based upon

Scotland's jury system, reasoning that the rule of non-inquiry

prevented it from looking into the fairness of the procedures that

await Hilton if he is extradited.      Id. at *2-3.      The district court

also rejected Hilton's claim based upon his mental health issues,

observing that "humanitarian concerns, such as the one Hilton

raises, surrounding extradition are exclusively within the purview

of the Secretary of State."       Id. at *4.    Hilton had argued that his

mental health claim was predicated on an alleged violation of his

due process rights, as opposed to humanitarian concerns, citing

Plaster v. United States, 720 F.2d 340, 348 (4th Cir. 1983) and In

re Burt, 737 F.2d 1477, 1482-87 (7th Cir. 1984).                  The district

court reasoned, however, that, "[u]nlike [in] Plaster and Burt, in

Hilton's case there is no action by the United States beyond the

extradition proceeding that might violate Hilton's due process


                                    -7-
rights."     Hilton, 2013 WL 5755485, at *4.                  The district court

ordered a stay of its decision denying habeas relief pending

appeal.

                                         II.

             The   United    States      judiciary     has    a    limited      role   in

extradition proceedings.            "Extradition is an executive, not a

judicial, function."        Martin v. Warden, Atlanta Pen, 993 F.2d 824,

828 (11th Cir. 1993).          "Because extradition is a creature of

treaty, 'the power to extradite derives from the President's power

to conduct foreign affairs.'"            Ordinola v. Hackman, 478 F.3d 588,

606 (4th Cir. 2007) (quoting Sidali v. I.N.S., 107 F.3d 191, 194

(3d Cir. 1997)); see U.S. Const. art. II, § 2, cl. 2; see generally

United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-22

(1936).

             As such, "[e]xtradition is a matter of foreign policy

entirely within the discretion of the executive branch, except to

the extent that the statute interposes a judicial function."

Lopez-Smith    v.    Hood,    121     F.3d     1322,   1326       (9th   Cir.    1997),

superseded    by    regulation      on    other   grounds         as   recognized      by

Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000).                              A

judicial officer who presides over an extradition proceeding "is

not exercising 'any part of the judicial power of the United

States,'" In re Extradition of Howard, 996 F.2d at 1325 (quoting In

re Kaine, 55 U.S. (14 How.) 103, 120 (1852)), but instead "acts in


                                         -8-
a non-institutional capacity by virtue of a 'special authority,'"

id. (quoting In re Metzger, 46 U.S. (5 How.) 176, 191 (1847)).

A.          Federal Extradition Statute

            Extradition proceedings in the United States are governed

by statute.     See 18 U.S.C. § 3184.     "The statute establishes a

two-step procedure which divides responsibility for extradition

between a judicial officer and the Secretary of State."       United

States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997) (footnote

omitted).    Once a formal complaint is filed, the judicial officer3

must determine whether there is an extradition treaty between the

United States and the relevant foreign government and whether the

crime charged is covered by that treaty.         18 U.S.C. § 3184.

Assuming both questions are answered in the affirmative, the

judicial officer issues a warrant for the arrest of the individual

sought for extradition (commonly referred to as the "relator").

Id.   If a warrant issues, the judicial officer then conducts a

hearing to determine whether "the evidence [is] sufficient to

sustain the charge under the provisions of the . . . treaty."    Id.

If it is, the judicial officer "shall certify" to the Secretary of

State that a warrant for the surrender of the named individual "may

issue."     Id. (emphases added).   The judicial officer must also



      3
         "[A]ny justice or judge of the United States, or any
magistrate judge authorized so to do by a court of the United
States, or any judge of a court of record of general jurisdiction
of any State" may serve as the judicial officer. 18 U.S.C. § 3184.

                                 -9-
provide to the Secretary of State a copy of all testimony and

evidence from the extradition hearing.               Id.

              The   statute   commits    to    the   sole    discretion    of    the

Secretary of State the ultimate decision of whether to extradite.

See id. § 3186 ("The Secretary of State may order the person

committed under section[] 3184 . . . to be delivered to any

authorized agent of such foreign government, to be tried for the

offense . . . charged." (emphasis added)).                   "The Secretary may

.    .   .   decline   to   surrender    the    relator      on   any   number   of

discretionary grounds, including but not limited to, humanitarian

and foreign policy considerations." Kin-Hong, 110 F.3d at 109. In

addition, the Secretary may attach conditions to the relator's

release.      See Jimenez v. U.S. Dist. Court for S. Dist. of Fla.,

Miami Div., 84 S. Ct. 14, 19 (1963) (Goldberg, J., chambers

opinion) (denying stay of extradition and describing commitments

made by Venezuelan government to United States Department of State

as a condition of surrender of fugitive).

B.            Rule of Non-Inquiry

              Judicial involvement in the extradition process is also

constrained by the "rule of non-inquiry."                  "[T]his doctrine bars

courts from evaluating the fairness and humaneness of another

country's criminal justice system, requiring deference to the

Executive Branch on such matters."             Khouzam v. Att'y Gen. of U.S.,

549 F.3d 235, 253 (3d Cir. 2008); see also Munaf v. Geren, 553 U.S.


                                        -10-
674, 700 (2008) ("Such allegations are of course a matter of

serious concern, but in the present context that concern is to be

addressed       by   the    political        branches,        not    the    judiciary.");

Glucksman v. Henkel, 221 U.S. 508, 512 (1911) ("We are bound by the

existence of an extradition treaty to assume that the trial will be

fair."); Neely v. Henkel, 180 U.S. 109, 123 (1901) ("In the

judgment of Congress these [treaty] provisions were deemed adequate

to the ends of justice in cases of persons committing crimes in a

foreign country . . . and subsequently fleeing to this country. We

cannot    adjudge       that      Congress    in    this      matter   has    abused    its

discretion, nor decline to enforce obedience to its will as

expressed . . . .").           The rule of non-inquiry "serves interests of

international        comity       by   relegating        to    political     actors     the

sensitive foreign policy judgments that are often involved in the

question of whether to refuse an extradition request."                          Hoxha v.

Levi, 465 F.3d 554, 563 (3d Cir. 2006); see also Koskotas v. Roche,

931 F.2d 169, 174 (1st Cir. 1991) (observing that "extradition

proceedings 'necessarily implicate the foreign policy interests of

the United States'" (quoting Escobedo v. United States, 623 F.2d

1098,    1105    (5th      Cir.    1980))).4        As   this       court   explained    in


     4
        The rule of non-inquiry is related to the "act of state"
doctrine, which "in its traditional formulation precludes the
courts of this country from inquiring into the validity of the
public acts a recognized foreign sovereign power committed within
its own territory." Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398, 401 (1964); see Kin-Hong, 110 F.3d at 111 n.11 (noting
parallel); see also First Nat'l City Bank v. Banco Nacional de

                                             -11-
Kin-Hong, 110 F.3d at 111, "[i]t is not that questions about what

awaits the relator in the requesting country are irrelevant to

extradition; it is that there is another branch of government,

which   has    both   final   say   and    greater   discretion   in   these

proceedings, to whom these questions are more properly addressed."

See also Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990) ("It is

the function of the Secretary of State to determine whether

extradition should be denied on humanitarian grounds."); Escobedo,

623 F.2d at 1107 ("[T]he degree of risk to [the relator's] life

from extradition is an issue that properly falls within the

exclusive purview of the executive branch." (quoting Sindona v.

Grant, 619 F.2d 167, 174 (2d Cir. 1980))).

                                    III.

              On appeal, Hilton argues first that, in light of his

severe psychological impairments and high risk of suicide, his

extradition to Scotland would violate his Fifth Amendment right to

due process.     As presented here, this claim amounts to a challenge

to the conditions awaiting him in Scotland, and is barred by the

rule of non-inquiry.      Next, on appeal Hilton presses an argument

not fully developed below regarding whether his medical condition

precludes placing him in custody -- either in the United States or



Cuba, 406 U.S. 759, 769 (1972) (plurality opinion) (explaining that
the act of state doctrine was "fashioned because of fear that
adjudication would interfere with the conduct of foreign
relations").

                                    -12-
in Scotland.      This claim, however, is simply too speculative at

this stage.5      Finally, Hilton claims that his extradition would

violate his constitutional rights because Scotland allows simple

majority jury verdicts, and that because the Senate was never

apprised of the Scottish jury system it did not give its knowing

advice and consent to the United States-United Kingdom extradition

treaty as required by Article II, § 2, cl. 2.             The former claim

fails under the rule of non-inquiry, as this court may not pass

judgment on the merits of the Scottish jury system.             The latter

claim fails because it is not for this court to consider whether

the Senate's advice and consent was substantively adequate.             The

Secretary may choose to assess and credit Hilton's claims that his

mental   health    status   should   bar    extradition   on   humanitarian

grounds, and that he will not receive an adequate jury trial.            We

will not bar extradition on either basis.

A.         Standard of Review

           On appeal from an order denying a petition for a writ of

habeas corpus, this court reviews the district court's legal

conclusions de novo, In re Extradition of Howard, 996 F.2d at 1327,

and any factual findings for clear error, Gomes v. Brady, 564 F.3d

532, 536 (1st Cir. 2009).     Ordinarily, "habeas corpus is available

only to inquire whether the magistrate had jurisdiction, whether


     5
        Whether Hilton raised before the district court precisely
the nuances he raises before us is unclear, but the claim fails
under any standard of review.

                                     -13-
the offense charged is within the treaty, and . . . whether there

was any evidence warranting the finding that there was reasonable

ground to believe the accused guilty."        Koskotas, 931 F.2d at 171

(alteration in original) (quoting Fernandez v. Phillips, 268 U.S.

311, 312 (1925)) (internal quotation marks omitted).         However, as

this court has observed, "serious due process concerns may merit

review   beyond   the   narrow   scope   of   inquiry   in   extradition

proceedings."     In re Extradition of Manzi, 888 F.2d 204, 206 (1st

Cir. 1989); see also Valenzuela v. United States, 286 F.3d 1223,

1229 (11th Cir. 2002) ("Despite our limited role in extradition

proceedings, the judiciary must ensure that the constitutional

rights of individuals subject to extradition are observed.").6

B.        Mental Illness

          Hilton argues that his extradition to Scotland would

result in an increased risk of suicide and would thereby involve

deliberate indifference on the part of the United States officials




     6
        As the Seventh Circuit explained in In re Burt:
     [T]he broad language of Fernandez, which on its
     face would appear to restrict the scope of inquiry
     here, must be construed "in the context of its time
     and in the context of subsequent development of the
     scope of habeas corpus review." Only subsequent to
     Fernandez did the Supreme Court substantially
     redefine the scope of habeas corpus review, which
     previously had been tied to an examination of
     jurisdictional defects, to include an evaluation of
     whether the petitioner is being held in violation
     of any of his or her constitutional rights.
737 F.2d at 1484.

                                  -14-
authorizing the extradition.          Hilton's argument fails under the

rule of non-inquiry.

            Hilton emphasizes that doubts about the ability of the

United States authorities to keep him from committing suicide

during the period leading up to the Secretary's decision whether to

extradite substantiates his claim that he should not be extradited

at all.    Such doubts, however, rest on speculation.

            Hilton's      core   argument    is   that   his    extradition      to

Scotland would result in his suffering from an increased risk of

suicide and, for that reason, that United States officials would

infringe    upon    his    due    process    rights      by    authorizing       the

extradition.     It rests upon on a "state created danger" theory of

due process.     See Rivera v. Rhode Island, 402 F.3d 27, 35 (1st Cir.

2005).     The   argument    is   squarely    foreclosed       by   the   rule   of

non-inquiry.     Whether the conditions Hilton would face would have

deleterious effects on his mental health so as to constitute a bar

to extradition (or require conditions on extradition) is a question

for the Secretary of State and not for this court.

            Hilton contends that the rule of non-inquiry has no

application here because his allegations are directed at United

States officials as opposed to officials from the requesting state.

On Hilton's theory, any challenge to the conditions awaiting an

individual upon extradition could be recast as a challenge to the




                                     -15-
conduct   of   United    States   officials   on   the   basis    of   but-for

causation.     The rule of non-inquiry is not so easily circumvented.

             Hilton points to Plaster and Burt as extradition cases in

which the rule of non-inquiry did not bar consideration of a

petitioner's due process claim based upon the actions of United

States officials.       He mischaracterizes those cases.         Both Plaster

and Burt involved challenges based upon actions or inaction by

United States officials apart from the act of extradition itself.

In Plaster, for example, the petitioner challenged the Government's

alleged breach of an immunity agreement.           720 F.2d at 344-45.     In

Burt, the petitioner challenged extradition on the ground that the

Government had waited fifteen years before deciding to extradite.

737 F.2d at 1485-86.        Here, by contrast, Hilton's challenge is

based only on the fact of extradition itself and seeks to block it.

As the district court explained:

             No case law suggests that courts have the
             authority to go beyond the limited statutorily
             prescribed inquiry when the extradition itself
             is the only action challenged. Instead, the
             case law clearly shows that when humanitarian
             concerns surrounding the extradition are
             raised, including those involving danger to
             the relator's life, they are for the Secretary
             of State to consider.

Hilton, 2013 WL 5755485, at *4.7


     7
       Hilton argues that the principle of reciprocity counsels in
favor of judicial consideration of humanitarian concerns to the
extent that the United Kingdom instructs its courts, when
considering a request for extradition, to take such considerations
into account. See United Kingdom Extradition Act, 2003, 41, § 91

                                    -16-
             In an effort to avoid this outcome, Hilton invokes

Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960).             In that case, the

Second   Circuit    expressed   some      hesitation   toward   the    rule    of

non-inquiry, opining that it could "imagine situations where the

relator, upon extradition, would be subject to procedures or

punishment so antipathetic to a federal court's sense of decency as

to require reexamination of the principle [of non-inquiry]."                  Id.

at 79. This court expressed a similar possible caveat in Kin-Hong.

110 F.3d at 112 ("None of these principles, including non-inquiry,

may be regarded as an absolute.").          No court has yet applied such

a theoretical Gallina exception.          Hoxha, 465 F.3d at 564 n.14.         It

does   not   help   Hilton   here   and    we   decline   to   apply   such    an

exception.

             These arguments may be made to the Secretary.                     In

addition, Hilton may request that the Secretary of State, in an

exercise of discretion, attach conditions to Hilton's extradition

ensuring his safety in Scotland.          It is not the role of this court

to supplant the Secretary's authority to respond to such a request.

Cf. Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1149 (2013)

(holding that harm alleged is not cognizable where it is based upon



(instructing courts to determine whether "the physical or mental
condition of the person is such that it would be unjust or
oppressive to extradite him").     The United Kingdom delegates
consideration of humanitarian concerns to the judiciary while, in
contrast, the United States delegates such considerations to the
executive. That difference is not evidence of lack of reciprocity.

                                    -17-
"speculat[ion] as to how [Executive Branch officials] will exercise

their discretion").

             We turn briefly to Hilton's newly presented argument. As

confirmed by counsel at oral argument, the relief Hilton seeks in

this habeas action is an order barring his extradition to Scotland.

He raises, in further pursuit of that relief, what purports to be

a due process challenge based upon his pre-extradition detention in

the United States.

             Hilton argues specifically that the Government cannot

comply with its obligation to address his high risk of suicide if

he is detained and so pre-extradition detention would result in

"deliberate indifference" to that risk on the part of United States

officials.     Hilton relies on a finding by the magistrate judge in

the order granting Hilton's release following a bail hearing that

Hilton's "serious psychiatric condition is likely to deteriorate if

he is held in custody."         At the bail hearing, the Government

"conceded    that   inpatient   hospitalization   at   a   mental   health

facility may be appropriate in this case" and that "there           are no

federal secure mental health facilities for pretrial detainees

where Hilton could be housed and treated."        At that same hearing,

however, the Government also said it would locate a third-party

inpatient facility at which Hilton's medical needs could be met.

             We disagree with Hilton that he has established that the

Government is unable to provide proper care and safekeeping for


                                  -18-
him.8       We have no reason to expect that the Government, having now

been made acutely aware of Hilton's mental health conditions, will

be insensitive to that issue going forward.       Indeed, we note that

the Government did assent to Hilton's motion to be seen by his

treating psychologist once he began to psychologically deteriorate

after first being taken into custody.       At this juncture, Hilton's

claims concerning the conditions of his pre-extradition detention

are too speculative for this court to consider.        See Clapper, 133

S. Ct. at 1149.       At this stage, Hilton can and should express his

medical concerns to the Secretary, not the judiciary.

C.             Scotland's Simple Majority Jury Trial

               Hilton argues that extradition for trial in Scotland --

where a simple majority of jurors is sufficient to return a guilty

verdict -- would violate his constitutional rights because the

Senate was not aware of this aspect of Scottish criminal procedure

when it consented to the United States-United Kingdom extradition

treaty.        In effect, Hilton asks this court to declare that the

Senate's "[c]onsent" to the treaty was not sufficiently informed

for purposes of Article II, § 2, cl. 2.       Hilton's claim evinces a

fundamental misunderstanding of our Constitution's separation of

powers.




        8
           We assume without deciding that the "deliberate
indifference" standard applies in the context of pre-extradition
detention.

                                    -19-
          Hilton's argument is built on two premises.       First,

citing Burch v. Louisiana, 441 U.S. 130, 139 (1979) (holding that

conviction on the basis of a five-to-one majority of a six person

jury was inconsistent with the Sixth Amendment right to a jury

trial), Hilton says that, as a legal matter, conviction on the

basis of a simple majority of a fifteen person jury would conflict

with the Sixth Amendment's jury trial requirement. Second, Hilton

asserts that, as a historical matter, the Senate was not informed

of Scotland's jury trial practice prior to consenting to the

treaty.   From this, Hilton infers that his extradition would be

violative of his Sixth Amendment right to a jury trial.

          As to Hilton's first premise, it is well settled that

"surrender of an American citizen required by treaty for purposes

of a foreign criminal proceeding is unimpaired by an absence in the

foreign judicial system of safeguards in all respects equivalent to

those constitutionally enjoined upon American trials."    Holmes v.

Laird, 459 F.2d 1211, 1219 (D.C. Cir. 1972); accord Neely, 180 U.S.

at 123.   The rule of non-inquiry could not stand otherwise.   See

Kin-Hong, 110 F.3d at 110 ("Under the rule of non-inquiry, courts

refrain from 'investigating the fairness of a requesting country's

judicial system' . . . ." (quoting In re Extradition of Howard, 996

F.2d at 1329)).

          Here too Hilton invokes the Gallina exception.       This

argument plainly fails. In Kin-Hong, for example, this court found


                               -20-
that extradition of a relator to Hong Kong was consistent with its

"sense of decency," reasoning that the relator was "wanted for

. . . activities whose criminality is fully recognized in the

United States.     His extradition [was] sought by . . . a colony of

Great Britain, which . . . is one of this country's most trusted

treaty partners."      110 F.3d at 112.       For similar reasons, we find

no occasion to apply the Gallina exception here where extradition

is sought by a country within the United Kingdom.

              As to Hilton's second premise, the suggestion that this

court may sit in judgment of the Senate in its performance of its

advice and consent duties is without basis.                Hilton cites no case

in support of his ambitious conception of the judicial role.                This

lack of support is unsurprising. For "[t]he conduct of the foreign

relations of our government is committed by the Constitution to the

executive and legislative -- 'the political' -- departments of the

government, and the propriety of what may be done in the exercise

of this political power is not subject to judicial inquiry or

decision."     Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918);

cf.   Williams    v.   Suffolk     Ins.   Co.,   38   U.S.    415,   420   (1839)

(observing that, with respect to questions of foreign relations,

"it is not material to inquire, nor is it the province of the Court

to determine, whether the executive be right or wrong.                     It is

enough   to    know,   that   in   the    exercise    of    his   constitutional

functions, he has decided the question").


                                      -21-
            Hilton concedes that the crime charged is covered by the

treaty.     He does not contest that the Senate consented to the

treaty with the requisite number of votes.      See U.S. Const. art.

II, § 2, cl. 2 (requiring that "two thirds of the Senators present

concur").    As to the adequacy of the Senate's consent, that is the

end of the matter.

                                 IV.

            The district court's denial of the petition for a writ of

habeas corpus is affirmed.




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