In the Matter of the Requested Extradition of Kevin John Artt United States of America v. Kevin John Artt, in the Matter of the Requested Extradition of Pol Brennan United States of America v. Pol Brennan, in the Matter of the Requested Extradition of Terence Damien Kirby United States of America v. Terence Damien Kirby

183 F.3d 944, 99 Daily Journal DAR 8497, 99 Cal. Daily Op. Serv. 6664, 1999 U.S. App. LEXIS 19684

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 1999
• Docket: 97-10386
• Status: Published

Opinion

183 F.3d 944 (9th Cir. 1999)

In the Matter of the Requested Extradition of Kevin John Artt
UNITED STATES OF AMERICA Appellee,
v.
KEVIN JOHN ARTT, Appellant.
In the Matter of the Requested Extradition of Pol Brennan
UNITED STATES OF AMERICA, Appellee,
v.
POL BRENNAN, Appellant.
In the Matter of the Requested Extradition of Terence Damien Kirby
UNITED STATES OF AMERICA, Appellee,
v.
TERENCE DAMIEN KIRBY, Appellant.

No. 97-10386 No. 97-10387 No. 97-10390

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 14, 1998 San Francisco, California
Filed October 9, 1998
Amended November 17, 1998
Filed August 18, 1999

Appeal from the United States District Court for the Northern District of California Charles A. Legge, District Judge, Presiding. D.C. Nos. Cr-92-00151-MISC-CAL, CR-93-00032-MISC-CAL, CR-94-00086-1-MISC-CAL.

Before: GOODWIN, B. FLETCHER, and D.W. NELSON, Circuit Judges.

ORDER

The amended opinion in this case, published at 158 F.3d 462 (9th Cir. 1998), is withdrawn, and the Government's petitions for rehearing are granted.

Oral argument will be heard at 10:00 am on Tuesday, September 28, 1999, in San Francisco, California. No additional briefing is required.

(1) Does Article 3(a) of the Supplementary Treaty apply to Kirby's Cranmore Gardens conviction? If Article 3(a) does not apply to the Cranmore Gardens conviction, why should Kirby not be extradited to serve his sentence on that conviction under the treaties?(2) Assuming "use of a bomb" would require more than possession with intent under Bailey v. United States, 516 U.S. 137 (1995), does the broader language "involving the use of a bomb" include possession with intent under United States v. Contreras, 895 F.2d 1241 (9th Cir. 1989)? In particular, if "involving the use of a bomb" does not include possession with intent, what conduct less than actually detonating a bomb might fall within the language of Article 1 of the Supplementary Treaty?

(3) Assuming that appellants must establish a prima facie case in order to introduce general statistical evidence under the Aquino Clause (Article 3(a), clause 1 of the Supplementary Treaty), what are the elements of a prima facie case? What evidence indicates that the appellants here have established a prima facie case?

(4) Assuming the appellants can establish a prima facie case, how does evidence of systemic bias in the Diplock court system demonstrate prejudice in a particular case? Why does a United States court examining the general validity of an entire court system for extradition purposes not raise non-justiciable political questions?