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August 18, 1992

THOMAS R. VOKES Defendant.

The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

 Dalzell, J.

 August 18, 1992

 Vitor Manuel DeSena Gouveia, a naturalized American citizen, has filed an application for a writ of habeas corpus to prevent his extradition to Portugal to serve a three year, nine month sentence that was imposed upon him in absentia. In his application for the writ, Mr. Gouveia has raised a serious constitutional question about a provision in the International Narcotics Control Act of 1990, now codified at 18 U.S.C. § 3196, that seeks specifically to amend the extradition treaty that has existed between the United States and Portugal since 1908. Assuming the terms of the 1908 Treaty may be held to apply to him, Mr. Gouveia also raises substantial questions about the propriety of applying the 1990 statute to 1985 conduct that was adjudged criminal in Portugal in 1987.


 The Government of Portugal on October 22, 1991, by a Note ultimately delivered to the United States Department of Justice on January 27, 1992, requested the extradition of Mr. Gouveia pursuant to an Extradition Treaty entered into by the United States and Portugal on May 7, 1908, and proclaimed by the President on December 14, 1908, 35 U.S.T. 2071. This Treaty will for convenience be referred to as the "1908 Treaty". The United States, acting as agent for the Government of Portugal, brought the matter before a United States Magistrate Judge pursuant to 18 U.S.C. § 3184, pertaining to the extradition of "fugitives from foreign country to United States."

 This represents the second time Portugal has sought to extradite Mr. Gouveia. In August of 1990, at Magistrate No. 90-0658, Mr. Gouveia was arrested as a result of an earlier Portuguese extradition request. On September 20 of 1990, however, the complaint was dismissed without prejudice because the government learned that Mr. Gouveia was a naturalized U.S. citizen, and the government agrees that the 1908 Treaty does not permit the extradition of United States citizens. Specifically, Article VIII of the 1908 Treaty provides:

Under the stipulations of this Convention, neither of the Contracting Parties shall be bound to deliver up its own citizens or subjects.

 See also Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 81 L. Ed. 5, 57 S. Ct. 100 (l936), which confirmed that this treaty language forbids the extradition of American citizens.

If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met.

 Encouraged by this new law, Portugal has again sought Mr. Gouveia's extradition to serve the sentence that was imposed upon him in absentia on May 5, 1987. The Government of Portugal's October 22, 1991 Note was forwarded to this district on January 30, 1992, and a second complaint and warrant for Mr. Gouveia's arrest were issued. Mr. Gouveia was arrested on May 13, 1992 by the United States Marshal's Service, and on May 19 Judge Ludwig ordered that Mr. Gouveia be released on $ 150,000 bond secured by six properties.

 Following a May 27, 1992 extradition hearing, United States Magistrate Judge Edwin Naythons found that Mr. Gouveia was subject to extradition by virtue of the new § 3196. In the Matter of the Extradition of Vitor Manuel DeSena Gouveia, Magistrate No. 92-0516-M (June 10, 1992). Thereupon, Mr. Gouveia filed the instant application for a writ of habeas corpus against Thomas R. Vokes, the United States Marshal. On June 11, 1992, we stayed Magistrate Judge Naythons' Extradition Order and continued the bail Judge Ludwig had set. *fn1" On June 15, 1992, we held an evidentiary hearing to resolve the question whether Mr. Gouveia was in fact in Portugal at the time of the conduct that the Portuguese court found to have been criminal. The testimony and Mr. Gouveia's passport established that he was in Portugal from March 24 through May 2 in 1985, and the parties now stipulate to this fact.

 Having ordered briefing on the issues discussed in this Memorandum, extensive oral argument was conducted on July 14, 1992. We received supplementary submissions on July 21. For the reasons stated below, we believe Mr. Gouveia is entitled to relief, and we will therefore grant the application for the writ and order Mr. Gouveia's immediate release from custody.

 Legal Analysis

 Mr. Gouveia argues that he is entitled to remain in the United States for three reasons. First, he claims that his conduct is not covered by the terms of the 1908 Treaty. Among other things, he contends that the crime of "attempted counterfeiting" for which he was convicted in absentia in 1987 is not an enumerated offense under the terms of the 1908 Treaty. Second, assuming that his conduct is covered by the 1908 Treaty, Mr. Gouveia argues that § 11 of the International Narcotics Control Act of 1990 should not be applied retroactively to abrogate the protection he enjoys under Article VIII of the 1908 Treaty. Third, in the event that his first two arguments are rejected, Mr. Gouveia asserts that § 11 of the 1990 Act is unconstitutional because it on its face amends Article VIII of the 1908 Treaty in contravention of the treaty-making provisions of art. II, sec. 2 of the United States Constitution.

 We will consider all three of these contentions.

 A. Scope of Review

 Mr. Gouveia has filed his application for the writ because the Magistrate Judge's finding of extraditability is not subject to direct appeal, Collins v. Miller, 252 U.S. 364, 369-70, 64 L. Ed. 616, 40 S. Ct. 347 (1920), and thus collateral review is possible only through a habeas corpus proceeding. Hooker v. Klein, 573 F.2d 1360, 1364 (9th Cir.), cert. denied, 439 U.S. 932, 58 L. Ed. 2d 327, 99 S. Ct. 323 (1978). The Supreme Court has held that the inquiry into extradition orders is, in this collateral proceeding, restricted:

Habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.

 Fernandez v. Phillips, 268 U.S. 311, 312, 69 L. Ed. 970, 45 S. Ct. 541 (1925).

 The Supreme Court has also held that the sufficiency of the evidence establishing the accused's criminality is not reviewable on habeas corpus. Grin v. Shine, 187 U.S. 181, 192, 47 L. Ed. 130, 23 S. Ct. 98 (1902). As the Court stated in Fernandez, the writ "is not a means for rehearing what the magistrate already has decided." Id.

 There is little question that the issues Mr. Gouveia raises are within the scope Fernandez permits us. If, as he argues, § 11 of the 1990 Act cannot apply to him, he could not be deemed within the Treaty's scope. Additionally, under a favorable ruling on any of these issues, the Magistrate Judge would have had no jurisdiction to do in 1992 what he was legally disabled from doing in 1990.

 Because we believe we must consider all three of the issues Mr. Gouveia proffers, we find that we are on largely uncharted seas. No case has been brought to our attention that involved a statute whose express terms and purpose were to amend the language of extant bilateral treaties between the United States and foreign powers. *fn2" The United States has advised us that, in addition to the 1908 Treaty, § 11 of the 1990 Act would amend thirty-three others that contain the same language as Article VIII of the 1908 Treaty. *fn3" The government has also advised that there are forty-five other extradition treaties that "are silent as to the extradition of nationals." Government's Memorandum of Law at 21-22. By contrast, since l936, extradition treaties, apparently without exception, provide that "Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be deemed proper to do so." Art. 9 of the May 4, 1978, extradition treaty between the United States and Mexico, cited and discussed in United States v. Alvarez-Machain, U.S. , 112 S. Ct. 2188, 2193 (1992).

 B. Have The Requirements of the 1908 Treaty Been Met Here?

 At the outset, our inquiry here is limited to whether the crimes charged are contemplated under the terms of the 1908 Treaty and whether Mr. Gouveia should be bound over and returned to Portugal in accordance with the Treaty. See Bingham v. Bradley, 241 U.S. 511, 516-17, 60 L. Ed. 1136, 36 S. Ct. 634 (1916); McNamara v. Henkel, 226 U.S. 520, 523, 57 L. Ed. 330, 33 S. Ct. 146 (1913); Ornelas v. Ruiz, 161 U.S. 502, 508-09, 40 L. Ed. 787, 16 S. Ct. 689 (1896).

 Mr. Gouveia's first argument under the 1908 Treaty is "that there has not been sufficient proof that he committed the crime of which he was convicted while he was actually in Portugal", as required under Art. I of the 1908 Treaty. Memorandum of Law in Support of the Granting of the Writ of Habeas Corpus at 3 ("Gouveia's Memorandum of Law"). Article I provides, in relevant part, that the Contracting Parties

. . . shall, upon mutual requisition duly made as herein provided, deliver up to justice any person who may be charged with or may have been convicted of any of the crimes specified in Article II of this Convention committed within the jurisdiction of one of the Contracting Parties while said person was actually within the jurisdiction when the crime was committed, and who shall seek an asylum or shall be found within the territories of the other. . . . (emphasis added).

 Acknowledging, as he must, that Mr. Gouveia "clearly was in Portugal during the time when some of the activity with regard to the crime were [sic] occurring," Gouveia's Memorandum of Law at 4, he nonetheless contends that our inquiry must establish that he in fact was in Portugal "when the crime was actually committed."

 Mr. Gouveia claims that he was not physically in Portugal for the entire time that the Criminal Court of Lisbon, Third Criminal Chamber, found was the period of the alleged conspiracy with two Portuguese nationals. This Portuguese Court unquestionably did find that acts in furtherance of the counterfeiting conspiracy took place between March 24 and May 2, when Mr. Gouveia was in Portugal. *fn4"

 We conclude that, as to this point, Mr. Gouveia asks us to draw too fine a line. As noted earlier, the Supreme Court has held that "the sufficiency of such evidence to establish the criminality of the accused for the purposes of extradition cannot be reviewed upon habeas corpus." Grin v. Shine, supra, 187 U.S. at 192. There clearly was, within the meaning of 18 U.S.C. § 3184, "the evidence of criminality" that is required for extradition. Given the modest requirements of § 3184, to say nothing of the limit the Supreme Court has placed upon us in Grin v. Shine, we a fortiori cannot question whether, in fact, the Portuguese Court was correct in finding Mr. Gouveia guilty. Having established that he "was actually within the jurisdiction" during most, if not all, of the period "when the crime was committed" in the view of the Third Criminal Chamber of Lisbon, our inquiry on this point is surely complete. *fn5"

 Mr. Gouveia's more substantial argument under the 1908 Treaty is that he was not convicted of an extraditable crime. Mr. Gouveia points out that the Third Criminal Chamber in Lisbon found Mr. Gouveia guilty "concerning the crime of counterfeiting currency in the attempted form". See the official translation of the transcript of the proceedings of Accusation no. 1830/86, attached to the October 7, 1988 certificate of the United States Ambassador, at 25. Mr. Gouveia calls our attention to the offenses listed in Art. II of the 1908 Treaty, and makes the ingenious argument that by mentioning "attempt" only at P 2 when it included "attempt to commit murder", the Treaty excluded all other attempt crimes. Mr. Gouveia buttresses this argument by examining all of the Treaties negotiated during the administration of Theodore Roosevelt, and finds that in six of them extradition was not permitted for any attempt except attempted murder, but that in four *fn6" there was a wholesale provision including attempts to commit any enumerated crime. For example, Article II, § 23 of the Treaty with Guatemala provides:

Extradition shall also be granted for the attempt to commit any of the crimes and offenses above enumerated, when such attempt is punishable as a felony by the laws of both contracting parties.

 Although the United States acknowledges that this is a weighty argument, *fn7" it replies by referencing us to the last phrases of Article I of the 1908 Treaty, which provide:

. . . that such surrender shall take place only upon such evidence of criminality as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension for trial if the crime or offense had been there committed.

 The government correctly points out that the conduct the Third Criminal Chamber of Lisbon found criminal would also make all of the defendants guilty of counterfeiting under United States law, 18 U.S.C. § 474 ("Whoever prints . . . any engraving, photograph, print, or impression in the likeness" of any United States currency "or any part thereof . . . shall be fined . . . or imprisoned . . . ."). The government also points out that even if Mr. Gouveia were not present for every act of the conspiracy, he would still run afoul of 18 U.S.C. § 2(a)("Whoever . . . aids, abets, counsels, commands, induces or procures [the commission of an offense against the United States] is punishable as a principal.").

 The Supreme Court has instructed that "the law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of liability be coextensive". Collins v. Loisel, 259 U.S. 309, 312, 66 L. Ed. 956, 42 S. Ct. 469 (1922). This rule stems from the reality that penal codes vary widely in the descriptions they use for the same criminal conduct, and therefore the United States's obligations under its extradition treaties should not be hostage to the choice of language contracting countries have used in their criminal codes.

 For example, in the recent case of United States v. Sensi, 279 U.S. App. D.C. 42, 879 F.2d 888 (D.C. Cir. 1989), the defendant was extradited from the United Kingdom to the United States where he was charged with mail fraud. Mail fraud is not an enumerated crime under the extradition treaty between the United States and Great Britain. The British Magistrate nevertheless extradited the defendant on the theory that mail fraud was analogous to theft, which was an enumerated crime under the Treaty. The defendant argued that under United States law mail fraud does not require theft as an element of the offense, and therefore mail fraud could not constitute an enumerated crime. The Court of Appeals for the District of Columbia Circuit rejected this argument and held:

The fact that a hypothetical person could be convicted of mail fraud in the United States absent a theft is irrelevant to this case, in which the 'offense' was theft. . . . In the present case, the question is whether Sensi's alleged acts would constitute a crime in the United Kingdom. The British magistrate found that his acts consisted of stealing money and that those acts would justify committal for trial under United Kingdom law had they been committed in the United Kingdom.

 879 F.2d at 894 (emphasis in the original).

 While Mr. Gouveia's argument from a comparison of the treaties made during the Theodore Roosevelt administration has much to commend it, we are persuaded that the more practical approach embodied in the District of Columbia Circuit's decision in Sensi represents the better view. For this reason, we decline Mr. Gouveia's invitation to hold that the 1908 Treaty does not, by its terms, apply to him.

 C. Should § 11 of the 1990 Act Apply to Mr. Gouveia?

 Mr. Gouveia argues that "it is clear that the Government is seeking to retroactively apply § 3196 to Mr. Gouveia." Gouveia's Memorandum of Law at 13. He contends that because the International Narcotics Control Act was not effective until November 21, 1990, it cannot be applied "for events which occurred prior to 1987 and that eventually concluded in that year." Id. Mr. Gouveia buttresses this argument by pointing out that this is the second time that extradition proceedings have been commenced against him based upon the same events, and therefore the new law would have to be given retrospective application to affect his rights.

 Again, this is a substantial claim, and one that has occasioned much contention between the parties.

 Although the government seeks to minimize the significance of § 11 of the 1990 Act by saying that it is merely "curative or procedural", Government's Memorandum of Law at 18, this description would seem to be at most half correct. While it is certainly true that, regarding the 1908 Treaty as a contract between Portugal and the United States, the change of § 11 might be deemed "curative or procedural", it strains credulity to regard it that way from Mr. Gouveia's point of view. As he in fact dramatically benefitted in September of 1990 from the application of Article VIII of the 1908 Treaty in contrast to the extradition that § 3196 would allow, the change in law could hardly be more substantive to Mr. Gouveia.

 The conundrum whether § 11 of the 1990 Act is "curative or procedural" or "substantive" stems from the nature of treaties themselves under our Constitution. As will be seen in the next section, the Framers themselves regarded treaties as sui generis, having some characteristics of both contracts between nations and ordinary laws.

 Viewing § 11 of the 1990 Act as amending the 1908 "contract", we could well conclude that Portugal's extradition request here does not implicate problems of retroactivity at all. The Note from the Portuguese Government to the United States State Department was dated October 11, 1991, eleven months after the 1990 Act was adopted. From the point of view of the United States, this Note triggered an immediate obligation on the United States under the 1908 Treaty. The Note created a present duty under the Treaty on the United States to act as Portugal's agent in apprehending Mr. Gouveia and surrendering him to the Portuguese authorities. In this sense, there was nothing retrospective called for of the United States.

 We would be fortified in such a view by the Supreme Court's recitation of the law of international extradition that allows a government to pursue extradition notwithstanding prior unsuccessful efforts. The government calls our attention to the Supreme Court's statement in Collins v. Loisel, 262 U.S. 426, 67 L. Ed. 1062, 43 S. Ct. 618 (1923)("Loisel II"), where the Court observed that "it has been consistently held under the treaties with Great Britain and other countries, that a fugitive from justice may be arrested in extradition proceedings a second time upon a new complaint charging the same crime, where he was discharged by the magistrate on the first complaint or the complaint was withdrawn." Loisel II at 429 (footnote and citations omitted). While acknowledging the potential for "unjustifiable vexation and harassment incident to repeated arrests for the same alleged crime", the Court was willing to accept this harsh result because of its belief that "a high sense of responsibility on the part of the public officials" seeking extradition would prevent abuse. Id. at 429-30.

 Other dicta from the Supreme Court suggest doubt about the government's position here. In The Chinese Exclusion Case, 130 U.S. 581, 32 L. Ed. 1068, 9 S. Ct. 623 (1889), there are statements that would permit the inference that an American citizen who has benefitted from an extant treaty provision cannot be legislatively deprived of that benefit. Although it will be discussed at much greater length in the next section of this Memorandum, it will suffice here to note that the Chinese Exclusion Case involved a claim by a Chinese national, Chae Chan Ping, who was excluded from the United States on his return to San Francisco in 1888 notwithstanding his possession of a certificate entitling him to return under an earlier, but since repealed, statute. Although most of Justice Field's opinion for the Court dealt with legislative history and the political question doctrine in affirming the refusal of reentry to Mr. Ping, two points in Justice Field's opinion suggest that the result might be different here.

 Against Mr. Ping's retroactivity arguments, *fn8" the Court first noted that:

Of course, whatever of a permanent character had been executed or vested under the treaties was not affected by it [the later statute]. In that respect the abrogation of the obligations of a treaty operates, like the repeal of a law, only upon the ...

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