Nicosia v. Wall

¶5PER CURIAM:

¶6In this appeal1 from the denial of a habeas corpus writ in an extradition proceeding, we must initially decide whether the Republic of Panama met its burden of establishing “probable cause that the fugitive is guilty,” or of presenting “evidence sufficient to show reasonable ground to believe the accused guilty.” Sayne v. Shipley, 418 F.2d 679, 685 (5 Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970). The district court held that Panama satisfied treaty obligations with the United States as reflected in 6 Canal Zone Code § 5081:

All persons who have been … accused before the courts of the Republic of Panama as authors … of crimes … against the laws of that Republic, … shall be … delivered to the authorities of the Republic of Panama, upon the demand of the Government of that Republic and compliance with the procedure prescribed in this subchapter.

¶7*1006To be sure, Panama did present more than a naked request for extradition. It supplied our government with documentary materials fairly described as an equivalent of an indictment officially issued by a duly constituted court. We are persuaded by an independent review of the record that the district court did not err in concluding that sufficient evidence was presented to warrant “the finding that there was a reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed 970 (1925).

¶8Notwithstanding our affirmance of this conclusion, it is necessary to remand these proceedings for additional findings in light of the State Department’s recent application of the 1967 United Nations Protocol Relating to the Status of Refugees (19 U.S.T. 6223, TIAS 6577). In three unrelated cases which arose after the rendition of the district court’s judgment in these proceedings, our government delivered notes2 to the Republic of Panama declaring that even though Panama is not a party to the Refugee Protocol, the United States intends to enforce the terms of that protocol and to deny extradition in cases in which it is demonstrated that a fugitive’s life or freedom would be threatened on account of his political opinion.3

¶9It is obvious that there are distinct political overtones in the instant case. The gravamen of Panama’s action is that appellant obtained improper mortgage financing from the Social Security Bank of Panama by virtue of his position as Minister of the Presidencia in the government of Dr. Arnulfo Arias — a position he held from October 1 to October 11, 1968, when the Arias administration was replaced by a provisional government. Appellant introduced, and the district court rejected, the political refugee defense. Although the court made reference to the United Nations Refugee Protocol, it refused to consider its applicability, ruling that this was a matter which “should be up to the Governor [of the Canal Zone] for determination.” In its brief, the government suggests, that the district court erred in refusing to consider it: “[T]he United States Government is of the view that the Refugee Protocol applies to the Canal Zone.” Despite this concession, the government urges that we should affirm the result reached by the district court because under the facts presented by the demanding State the alleged crime comes within a specific exception to the protocol.4

¶10We are disinclined to decide this question in the present posture of these proceedings. We hold that because the government concedes that the political ref*1007ugee protocol is applicable to the Canal Zone, it is necessary for the district court to determine in the first instance whether the facts asserted by the demanding State bring this case within the exception.

¶11Vacated and remanded.