Opinion
1:01-cv-06215 OWW.
October 24, 2005
MEMORANDUM DECISION AND ORDER ON REMAND FROM THE COURT OF APPEALS RE: EXTRADITION
I. INTRODUCTION
This matter is before the court on limited remand from the Court of Appeals for the Ninth Circuit's en banc decision in Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005) ( en banc). The Government of India sought extradition of Petitioner KULBIR SINGH BARAPIND ("Petitioner") for criminal charges arising out of eleven separate incidents. The district court certified for extradition charges arising out of three of the incidents. The decisions certifying extradition for charges arising out of two of the three incidents were affirmed. The charges in First Information Report No. 34 (FIR 34) were remanded for the district court to apply the political offense analysis from Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986).
A First Information Report is a summary report of crimes charged prepared by the Indian police. "FIR" is the designation that has been used throughout this litigation to refer to the discrete incidents out of which the criminal charges arose for which extradition is sought.
II. PROCEDURAL HISTORY
Kulbir Singh Barapind ("Petitioner") brings this petition for writ of habeas corpus challenging certification of his extradition to India. In ruling on the petition, a lengthy review was conducted of all the charges for which India sought extradition. In re Extradition of Singh, 170 F. Supp. 2d 982 (E.D. Cal. 2001). The charges, including numerous counts of murder, attempted murder, and robbery, arose out of eleven incidents that took place in the state of Punjab, India, during a time period when Sikh insurgents sought to establish a new homeland, Khalistan. Id. at 986. Criminal charges relating to three of the eleven incidents were certified for extradition. Petitioner challenged these determinations on appeal to the Court of Appeals for the Ninth Circuit. Originally, the panel affirmed the extradition order in all respects. 360 F.3d 1061 (9th Cir. 2004). After an en banc hearing, all of the district court's determinations were affirmed, with the exception of the decision regarding the charges in FIR 34. The Court of Appeals reversed the certification and order for extradition for FIR 34 crimes and ordered a limited remand to the district court with instructions to apply the Ninth Circuit ruling in Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) (" Quinn") to determine if the extraditable crimes charged in FIR 34 were covered by the political offense exception. See Barapind, 400 F.3d at 753.On June 24, 2005, a scheduling conference was held to schedule proceedings on remand. ( See Doc. 38, Scheduling Order) The parties stipulated to amend the petition to substitute Antonio Amador, currently the United States Marshal for the Eastern District of California, as custodian of Petitioner, in place and stead of the former U.S. Marshal, Jerry J. Enomoto. They agreed the evidentiary record was complete. On August 29, 2005, the parties filed opening briefs: "Brief in Support of Petitioner's Writ of Habeas Corpus," (Doc. 40) and "Government's Brief to FIR 34 on Remand," (Doc. 39). On September 6, 2005, Petitioner filed a reply titled "Petitioner's Reply Brief in Support of Petitioner's Writ of Habeas Corpus." (Doc. 41, Petitioner's Opp.) On September 12, 2005, the Government filed a reply titled "Government's Reply Brief to Barapind's Opening Brief." (Doc. 42, Government's Opp.)
Oral argument was heard on September 19, 2005. Jagdip Singh Sekhon, Esq., appeared on behalf of Petitioner. Stanley A. Boone, Esq., Assistant United States Attorney, appeared on behalf of the Government of India.
III. BACKGROUND
The incident giving rise to the charges in FIR 34 occurred on April 26, 1992. Petitioner and three other men, armed with AK-47 rifles, shot and killed four occupants of a "gypsy" vehicle in the village Garhi Mohan Singh. See Singh, 170 F. Supp. 2d at 1035. The four victims were Balwant Singh Sarhal, a former member of India's legislative assembly ("MLA"); Amar Nath Kanugo of the Deputy Commissioner Office in Jahander; Suda Ram, a constable; and Jasbir Singh, another constable. The gypsy vehicle came from the side of the village. Petitioner and the other assailants were present in the village at the time and opened fire on the vehicle, killing all four occupants. After the attack, petitioner and the other assailants took the constables' weapons and left. Id.
From the outset of this case, the Indian government has alleged that Petitioner committed the acts underlying the extradition request as a member of the Khalistan Commando Force ("KCF"). As its name suggests, the KCF is a Sikh militant organization that seeks the secession of the Punjab province from India and the creation of an independent nation named Khalistan. During the period of the offenses underlying the extradition request, the KCF was engaged in a struggle with the Indian government in hopes of achieving its goal of independence. The resulting violence occurred overwhelmingly in Punjab. The struggle began in June 1984 with an event that became known as the "Golden Temple Massacre." Indian armed forces attacked Sikh rebels who had taken refuge in the Golden Temple, the holiest of Sikh shrines, resulting in the killing of at least 500 individuals.
Dr. Cynthia Mahmood, Petitioner's expert during the extradition hearing, acknowledged that Sikh militants did not have a formal military organization, command structure, uniforms, or a revolutionary army. Id. at 991-92. She agreed the Punjab had an historically high crime rate and cultural history of murder and revenge killings.
A decade of violence followed. Sikh militants engaged in bombings, assassinations, and other terrorist activities against the Indian government, its local collaborators, security forces, and innocent civilians. See Singh, 170 F. Supp. 2d at 991. The Indian government responded to the Sikh independence movement with counterinsurgency efforts, including efforts by Indian security forces to suppress Sikh militants. These efforts resulted in human rights abuses, extrajudicial "encounter" killings, detentions without trial, and torture. By 1994, Indian security forces succeeded in containing the armed Sikh insurgency. See id. at 986-87, 988-92.
Dr. Mahmood, petitioner's expert, testified that Petitioner is a folk hero in the nature of a "saint-soldier." He is a religious-populist hero who has great popular support among Sikh separatists. Id. at 992. All charges brought against him are described in detail in the initial district court decision. Id. at 999-1013. FIR 34 charges Petitioner with four counts of murder under India Penal Code Sections 302 and 34, committed on April 16, 1992. India also charged Petitioner under India's Terrorist and Disruptive Activities (Prevention) Act ("TADA"). India seeks to extradite Petitioner for the murder charges only.
In response to armed strife in the Punjab, the Indian Government enacted TADA in May 1985. See Navkiran Singh, The Terrorist Laws, Law Publishers, Def. Ex. 4. TADA granted police sweeping powers to arrest, detain, interrogate, and charge suspects accused of being terrorists or engaging in "disruptive activities." Singh, 170 F. Supp. 2d at 989. TADA's purpose was to suppress "speech or actions" that "disrupt or challenge the territorial integrity of India." Id. at 1031 (citing U.S. Department of State's 1991 Human Rights Report for India, p. 1394).
The district court originally found sufficient cause existed to believe Petitioner was a perpetrator of the crimes charged in FIR 34. Singh, 170 F. Supp. 2d at 1010-11. This holding was affirmed on appeal and is not in dispute. Barapind, 400 F.3d at 752. The district court's holding that Petitioner did not meet his burden to establish that these charges fell within the political offense exception was reversed. Singh, 170 F. Supp. 2d at 1035 ("Whether this attack was a domestic terrorist attack or politically motivated cannot be determined."); 400 F.3d at 753. It must be determined whether the FIR 34 charges fall within Quinn's interpretation of the political offense exception. 783 F.2d 776.
IV. LEGAL STANDARD
The right of a foreign sovereign to demand and obtain extradition of an accused criminal is created by treaty. See Quinn, 783 F.2d at 782. The parties stipulate that Article VI of the United States' extradition treaty with Great Britain applies. Article VI provides that a fugitive criminal shall not be extradited if the offense is of a political character. The treaty does not define what constitutes a political offense.
Treaty for the Mutual Extradition of Criminals Between the United States of America and Great Britain, Dec. 22, 1931, U.S.-Gr. Brit., T.S. No. 849 (1932), 47 Stat. 212 ("Treaty").
Article VI of the Treaty provides:
A fugitive criminal shall not be surrendered if the crime or offense in respect of which his surrender is demanded is one of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for a crime or offense of a political character.
T.S. No. 849, 47 Stat. 212, Art. VI.
The policies behind the political offense exception to extradition are to: (a) protect the right of individuals "to resort to political activism to foster political change;" (b) help prevent individuals from being returned to countries where they may be subjected to unfair punishments because of their political opinions; and (c) promote the notion that governments should not intervene in the internal political struggles of other nations. Quinn, 783 F.2d at 793.
There are two categories of political offenses: pure political offenses and relative political offenses. Quinn, 783 F.2d at 793. Pure political offenses, which are not at issue here, include treason, espionage, and sedition. Pure offenses "are acts aimed directly at the government [citation] and have none of the elements of ordinary crimes [citation]." Id. Relative political offenses are otherwise common crimes committed in connection with a political act or for a political motive. Id.
American courts use the "incidence test" to determine whether an offense that is not purely political falls within the political offense exception. The incidence test has two requirements: "(1) the occurrence of an uprising or other violent political disturbance at the time of the charged offense, and (2) a charged offense that is `incidental to' . . . the uprising." Id. at 797 (internal citations omitted). The first prong of the test is not at issue; it is not disputed that the acts of violence (murder) alleged occurred during the course of a political uprising. See Barapind, 400 F.3d at 750 ("There is no real doubt that the crimes Barapind is accused of committing occurred during a time of violent political disturbance in India. Tens of thousands of deaths and casualties resulted between the mid-1980s and early 1990s as Sikh nationalists clashed with government officers and sympathizers in Punjab." (quoting Singh, 170 F. Supp. 2d at 1032)).
The sole issue in this case involves the second prong, i.e., whether the FIR 34 offenses were committed incidental to the uprising.
A. The Quinn Interpretation
In Quinn, the Ninth Circuit adopted a "liberal nexus standard" for evaluating the second prong of the incidence test. 783 F.2d at 809-10. Quinn held that, for an offense to be incidental to the uprising, it must be "related to or connected with the insurgent activity." Id. at 810. There must "be a nexus between the act and the uprising." Id. at 809. Other factors that weigh in favor of a finding that the crime was committed incident to the uprising include "membership in an uprising group;" "similarity of the charged offense to other acts committed by the uprising group;" and "the degree of control over the accused's acts by some hierarchy within the group. . . ." 783 F.2d at 810. The act must be limited by the geographic confines of the uprising and must be contemporaneous with the uprising. Id. It is not necessary to show proof of potential or actual effectiveness of actions in achieving political ends; direct proof of the accused's political motive; or membership in any uprising group. 783 F.2d at 809. However, Quinn also states that "the `incidental to' component is not satisfied by `any connection, however feeble, between a common crime and a political disturbance. . . .'" Id. "The act must be causally or ideologically related to the uprising." Id.
The Quinn court gave a number of examples of situations where no nexus should be found, even under the liberal standard, including criminal acts committed for purely personal reasons, such as vengeance or vindictiveness, and acts of international terrorism. Acts of violence against civilians can, under certain unspecified circumstances, fall under the political offense exception:
Acts of international terrorism "are committed abroad, not in the country run by a government that is the target of the uprising," and "seeks to promote chaos and is not political." Singh, 170 F. Supp. 2d at 996 (citing Quinn, 783 F.2d at 805-06).
Under the liberal nexus test we have traditionally applied, or even under a strict nexus standard, there is no justification for distinguishing, as [ In re Doherty, 599 F. Supp. 270 (S.D.N.Y. 1984)] suggests, between attacks on military and civilian targets. The "incidental to" component, like the incidence test as a whole, must be applied in an objective, non-judgmental manner. It is for the revolutionaries, not the courts, to determine what tactics may help further their chances of bringing down or changing the government. All that the courts should do is determine whether the conduct is related to or connected with the insurgent activity. It is clear that various "non-military" offenses, including acts as disparate as stealing food to sustain the combatants, killing to avoid disclosure of strategies, or killing simply to avoid capture, may be incidental to or in furtherance of an uprising. To conclude that attacks on military are protected by the exception, but that attacks on private sector institutions and civilians are not, ignores the nature and purpose of the test we apply, as well as the realities of contemporary domestic revolutionary struggles.Quinn, 783 F.2d at 810 (emphasis added).
Quinn found bombings by Irish separatists that primarily targeted unarmed civilians were "incidental to" the political uprising (although no uprising was found to exist). Id. at 811. The accused in Quinn was a member of the Irish Republican Army charged with murder and conspiracy to cause explosions. Id. at 781. The victims who were injured by bombs linked to Quinn were:
The court ultimately held that no uprising existed and that therefore, the crimes with which Quinn was charged did not fall within the political offense exception and were extraditable. Id. at 813.
— a Roman Catholic Bishop in the British Armed Forces;
— a Senior Treasury Prosecuting Counsel; and
— a security guard who was injured by a mail bomb directed at the Chairman of the Daily Express newspaper in London.Id. at 783-84.
In addition, three bombs linked to Quinn that did not injure any victims were found in the foyer adjacent to the loading platform at Aldershot Railway Station in Hampshire County, England; in an attache case in the archway entrance to the Kings Arms Public House in Warminster, England; and in a black bag on the front step of the Charco-Burger Grill on Heath Street in London. Quinn was also charged with the murder of a police officer during the course of a police chase. The police officer who was shot by Quinn was helping another officer chase Quinn. Id. Quinn held that these crimes were committed "incidental to" the unproven uprising, id. at 811, relying on the following factors: (a) Quinn's co-conspirators had been tried and convicted of political crimes; (b) Quinn had already been convicted of and served a sentence for his membership in the Irish Republican Army; and (c) there was no evidence that Quinn committed the crimes for other than political reasons. Id. The court emphasized that the incidental to prong did not turn on a distinction between attacks on military and civilian targets. Id. at 810. The incidental to prong focuses on whether the criminal acts are "related to or connected with" the insurgent activity. The Barapind majority recognizes even under Quinn, "a court may not rely on a fugitive's mere assurance that a crime had some political purpose" to find that relationship or connection. Barapind, 400 F.3d at 751. Instead, the petitioner bears the burden to produce evidence that shows "a factual nexus between the crime and the political goal;" to show "the conduct is related to or connected with the insurgent activity." Id.; see Quinn, 783 F.2d at 809 ("We believe the traditional liberal construction of the requirement that there be a nexus between the act and the uprising . . . is appropriate.").
Judge Rymer in her Barapind dissent, recognizes Quinn's holding regarding the civilian/military distinction is contrary to the holdings in numerous cases. Barapind, 400 F.3d at 756 (Rymer, J., dissenting) (citing Ahmad v. Wigen, 726 F. Supp. 389, 405-08 (E.D.N.Y 1989) (condemning the slaughter of innocent civilians as not worthy of protection as a political offense), aff'd, 910 F.2d 1063, 1066 (2d Cir. 1990); Eain v. Wilkes, 641 F.2d 504, 520-21 (7th Cir. 1981) (observing that "the indiscriminate bombing of a civilian populace is not recognized as a protected political act even when the larger `political' objective of the person who sets off the bomb may be to eliminate the civilian population of a country"); In re Extradition of Marzook, 924 F. Supp. 565, 577 (E.D.N.Y. 1989) (stating that `attacks targeted at civilians do not advance any political motive other than as terrorist acts'); In re Extradition of Demjanjuk, 612 F. Supp. 544, 570 (N.D. Ohio 1985) (noting that "[t]he civilian status of victims is also significant because the United States does not regard the indiscriminate use of violence against civilians as a political offense"), aff'd sub nom., Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985)); see also In re Extradition of Atta, 706 F. Supp. 1032, 1039-42 (E.D.N.Y. 1989) (rejecting implication of Quinn holding that acts of violence against civilians, if politically motivated, fall under political offense exception); In re Matter of Doherty, 599 F. Supp. 270, 275 (D.C.N.Y. 1984) (noting that conduct such as detonating a bomb in a department store, public tavern, or a resort hotel "would clearly be well beyond the parameters of what and should properly be regarded as encompassed by the political offense exception. . . .").
The Ninth Circuit, en banc, in a 6-5 decision, pronounced that Quinn's formulation of the "incidental to" prong was not dicta, whether or not technically necessary to decide the issues before the court:
In Quinn, the proper scope of "incidental to" was an issue presented for review. We addressed the issue and decided it in an opinion joined in relevant part by a majority of the panel. Consequently, our articulation of "incidental to" became law of the circuit, regardless of whether it was in some technical sense "necessary" to our discussion of the case.Barapind, 400 F.3d at 750-51. Quinn must be applied. It is the law of the Circuit.
V. ANALYSIS
Petitioner argues that the alleged FIR 34 killings meet the Quinn interpretation of the "incidental to" prong. India rejoins that Barapind did not present sufficient evidence to support his claim that the killings were committed "incidental to" the uprising, whether or not Quinn is applied.
Under Quinn, the FIR 34 murders are incidental to the Sikh uprising, if the crimes were "related to or connected with" the Sikh independent Khalistan movement. Quinn, 783 F.2d at 810. Here, the four victims include: Singh Sarhal, a Sikh who was a former legislative assembly member; Kanugo, a then-active representative of the Deputy Commissioner's office; and Suda Ram and Jasbir Singh, two armed constables. Any connection, however attenuated, between these murders and the Sikh Khalistan movement will not suffice. Quinn at 809. The killings must bear some causal or ideological relationship to the uprising. Id. It is Petitioner who must produce evidence that shows some factual nexus between the murders and the Sikh independence movement. Barapind, 400 F.3d at 751.
Dr. Mahmood testified that every Sikh male has the name "Singh," which means "lion" and that every Sikh female has the name "Kaur" which means "princess."
Petitioner denied participation in the encounter. He offered the following evidence to establish that the killings were "incidental to" the uprising: (1) Petitioner was a member of a militant separatist organization (the Khalistan Commando Force ("KCF")) seeking the overthrow of Indian control; (2) the attack was similar to other attacks on persons associated with the Indian government and its security forces, carried out by separatists during the same time period; (3) two of the victims were armed in anticipation of such an attack; (4) the assailants took the victims' weapons after the attack; and (5) TADA charges associated with this attack were brought against Petitioner.
The Government of India focused on Petitioner's denial that he is a member of the KCF and his claim he is a member of the All India Sikh Student Federation. However, the Government of India acknowledged during oral argument that this distinction is not relevant as the Student Federation shared the same political objectives as the KCF. It is undisputed that at the time, Petitioner was a Sikh separatist who supported the same cause as the militants.
The "liberal nexus standard" in Quinn, while easily stated, is not as easy to apply. Quinn requires that the offense be "related to or connected with" the insurgent activity. The relationship or connection must have geographic and temporal limitations, i.e., the offense must have been committed in a place within the geographic area of the uprising and must have taken place during the uprising. A mere geographic and temporal relationship, is not enough. A causal nexus is also required. Quinn, 783 F.2d at 809; Barapind, 400 F.3d at 751.
The Circuit Court noted that at present, the issue of the degree of connection required under the Quinn test is an open question:
Because the offenses at issue in this case present relatively straightforward applications of the political offense exception, we have no occasion to consider whether to endorse in all cases Quinn's statement that, in deciding whether an act is incidental to an uprising, "[a]ll that the courts should do is determine whether the conduct is related to or connected with the insurgent activity." 783 F.2d at 810. We leave for another day the question whether some exceptional circumstances might arise in which the relationship between the political goal and the act would be too tenuous to fall under the political offense exception.400 F.3d at 751 n. 9.
Quinn was charged with conspiracy to perpetrate murder. The bombings caused injuries to a Catholic Bishop in the British army, a senior treasury prosecutor, and a security guard who opened a bomb package sent to the editor of a newspaper. Quinn was also linked to attempts to set off explosions in public places, including a train station, a restaurant, and a public house, as well as the murder of a police officer whom Quinn shot and killed while the officer was chasing him.
That Quinn's crimes took place during the alleged political uprising was not alone sufficient to establish the incidental to prong. Something more was required. The Quinn court weighed the following factors in finding that the offenses were committed incidental to an uprising: 1) his membership in an uprising group; 2) the similarity of the charged offense to other acts committed by the uprising group; 3) the degree of control over the accused acts by a hierarchy within the uprising group; 4) Quinn's co-conspirators had been tried and convicted of political crimes with respect to those incidents; 5) Quinn had been convicted of and served a sentence for his membership in the IRA; and 6) there was no evidence Quinn committed the crimes for other than political reasons. Quinn, 783 F.2d at 810-811.
The Quinn court did not require him to produce evidence that the intended victims were actively engaged against the Irish Republican Army's cause. Other courts have characterized the Quinn formulation of the incidental to prong as a lax standard that even allows the killing of civilians to be political offenses if it can be shown that those killings are related to the political uprising in some way. See, e.g., Atta, 706 F. Supp. at 1039-42; Ahmad, 726 F. Supp. at 404-05; see also Barapind, 400 F.3d at 756 (Rymer, J., dissenting). The Quinn court found that placing bombs in a restaurant, a train station, and a bar — under circumstances where the only intended victims were innocent civilians — could be political offenses. All the Quinn decision ultimately required was a showing that Quinn was a member of the IRA; that he conspired with individuals who were involved in the same cause; that he and they had been convicted of political offenses; and an absence of evidence that there was any non-political purpose for the attacks. Arguably, Quinn only requires evidence that the crimes were temporally and geographically within the period of an uprising and that the accused held the status of a revolutionary who participated in crimes during the uprising.
Quinn stringently limits the extradition court's role in analyzing an accused's political activities in other countries. Quinn prevents judges from evaluating the goals of political movements elsewhere in the world; 783 F.2d at 804, or the legitimacy of the revolutionaries' political objectives or tactics used to achieve their goals. Id. Quinn found: "the tactics that are used in such internal political struggles are simply irrelevant to the question whether the political offense exception is applicable." Quinn's non-judgmental formulation does not test the efficacy or righteousness of the revolutionary's goals or the acts chosen to accomplish such goals:
It is understandable that Americans are offended by the tactics used by many of those seeking to change their governments. Often these tactics are employed by persons who do not share our cultural and social values or mores. Sometimes they are employed by those whose views of the nature, importance, or relevance of individual human life differ radically from ours. Nevertheless, it is not our place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries in contexts and circumstances that we have not experienced, and with which we can identify only with the greatest difficulty. It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal.Id. at 804-05 (emphasis added).
B. Quinn Applied
Here, under the Quinn factors, Petitioner's evidence is that there was an uprising; he was a revolutionary supporting the uprising; the attack on the gypsy vehicle was similar to other attacks by revolutionaries during the Sikh insurgency; two of the victims were armed constables, whose weapons were stolen after they were shot; and political (TADA) charges were brought in association with these crimes.
Although India does not seek Petitioner's extradition for TADA charges; Singh, 170 F. Supp. 2d at 988, TADA charges are "circumstantial evidence that India considered some FIR cases which included TADA charges as politically motivated." Id. at 1033.
Petitioner has no evidence he or his co-conspirators had been convicted of political crimes or of any reason for the killings. Petitioner has provided no evidence why the attacks were perpetrated; whether the victims were anti-Sikh, or in any way involved in the insurgency, nor as to the purpose of the victims' vehicle trip. There is no evidence that the Jahander district or its district government representative worked with the Indian government or had any connection with the insurgency. Nothing is known about Kanugo, a then-serving district representative's connection, if any, with the Indian government. No evidence is offered about any political activity of victim Sarhal, a former Sikh legislator, or his stance regarding the Khalistan movement. No evidence is presented about the identification, political roles, or affiliations of the other three assailants who acted in concert with Petitioner. Without evidence of any reason why the crimes were committed, the court is left to speculate about whether the murders had any connection with or relation to the insurgency.
The Ninth Circuit's recent discussion of Quinn in Barapind suggests that Petitioner's showing is not sufficient. Barapind explained that Quinn requires a showing of "a factual nexus between the crime(s) and the political goal." Barapind, 400 F.3d at 751, and affirmed the district court's holding that one of the FIR 89 murder charges was extraditable and not within the political offense exception.
FIR 89 involved an incident in which Petitioner and several accomplices went to the home of three brothers who were known armed adversaries of the Sikh movement, and Indian official police collaborators. Singh, 170 F. Supp. 2d 1035-36. Petitioner and his accomplices entered the house where all three brothers were sleeping. They found and shot two of the brothers. Petitioner's accomplices then entered the bedroom of the third brother, where he was sleeping next to his wife. Both were shot dead. Before leaving, the four assailants took the arms and ammunition of the three victims. Id. at 1002-03. The district court held that the murders of the three brothers were political offenses, based on Petitioner's evidence that the victims were paramilitary operatives for the Indian government and opponents of the Khalistan movement.
Petitioner did not meet his burden to present evidence that the murder of the wife of one of the brothers was incident to the uprising. Id. at 1036-37; Barapind, 400 F.3d at 751-52. Petitioner presented no evidence that the wife was an opponent of the Sikh movement or had any activity that aided or abetted her husband's or his brothers' roles as Indian police collaborators. Petitioner presented no evidence that wives and other non-combatants were killed for political reasons during residential attacks similar to the attack in FIR 89. Nor did the murdered wife resist the intruders or have any political role or significance.
There is substantially less evidence about FIR 34. Petitioner provides no evidence that Kanugo, the district Deputy Commissioner's representative, had any role or activity related to the Sikh separatist movement. The former legislator, Kulwant Singh Sarhal, was a Sikh. Nothing is known about whether Sarhal supported or opposed or had anything to do with the Khalistan cause. Nor is any information provided whether the two constables were anything more than escorts in dangerous times or that either had any role in counter-insurgency efforts. The constables were not identified with the Indian government, Indian police, or anti-Sikh enforcement efforts. There is no evidence whatsoever of the purpose of the vehicle trip, all of which makes it impossible to determine without speculating, any political role or purpose for the attack on the Jeep's occupants during their excursion.
The village where the attack occurred is not ascribed to have any significance in the political strife. 170 F. Supp. 2d at 1010. The assailants, including Petitioner, were present in the village and opened fire on the gypsy vehicle as it drove through the village. There is no evidence whether the other three assailants were combatants or common criminals who had no political role or cause. Petitioner offers no hierarchy evidence that any acts of the assailants were controlled or directed by the KCF or other agency of the Sikh rebel movement. No explanation is offered for the murder of the four victims. Were they murdered because two of the occupants were armed? Because the assailants felt threatened? Because the assailants believed individuals in the vehicle to be supporters of the Indian opposition to Khalistan to make a political statement? Was robbery to obtain weapons the motive for the killings?
On cross-examination, Petitioner's experts could not testify whether Sikh separatists' attacks on and murders of civilians or former government officials were committed in furtherance of the independence movement. Professor Mahmood distinguished such killings from the killings of active government agents and security forces. The latter she acknowledged "could possibly" be political acts, but she could not offer any opinion that killings of civilians or former government officials were presumptively political. Singh, 170 F. Supp. 2d at 1029-30. The record is devoid of evidence that Singh Sarhal or any of the other three victims was an Indian government agent.
Judge Rymer, for the dissenters, has already analyzed the facts of FIR 34 and found them insufficient:
The expert witness could not express an opinion as to whether murder of former government ministers was an act in furtherance of the Khalistan separation movement, so I need not decide whether it would make any difference if this were the object. So far as the record discloses, none of these victims was a combatant. Barapind took the victims' guns, for all that appears, he and his accomplices were taking advantage of a target of opportunity for mayhem, murder, and theft like the marauders in Ornelas. 400 F.3d at 758.
VI. CONCLUSION
Petitioner has not provided evidence as to the reasons for the victims' vehicle's presence at the encounter site, nor that ambushes of gypsy vehicles in Jahander district were presumptively political, or that any victim was anti-Sikh or had any political identity or purpose related to the Sikh uprising. Nothing is known about the other three perpetrators. Petitioner's expert testified that the Punjab had a historically high crime rate and cultural history of non-political murder and revenge killings. There is no evidence as to what prompted Petitioner and the other assailants to open fire on the gypsy vehicle and to murder the four victims and take the weapons. That the attack took place during the uprising is not sufficient.Petitioner's evidence does not show that the FIR 34 crimes were committed incidental to the uprising. There is a failure of proof to establish the political offense exception to extradition under Quinn for the FIR 34 charges. Petitioner is certified to be extradited for the criminal charges in FIR 34.
The prior extradition order for FIR 89 and FIR 100 has been affirmed by the Court of Appeals, certiorari was denied, and the first order remains in full force and effect.
IT IS CERTIFIED that the evidence submitted by the government of India is sufficient to establish probable cause to believe that Kulbir Singh Barapind has committed the offenses of murder of Balwant Singh Sarhal, an ex-member of the Legislative Assembly, Amar Nath Kanugo, Suda Ram, and Jasbir Singh as charged in FIR 34.
The Government of India's petition for extradition of Kulbir Singh Barapind to India IS GRANTED for these specified crimes.
Attorneys for India shall, within five days following date of service of this decision by the Clerk of Court, lodge a form of CERTIFICATION OF EXTRADITABILITY to be transmitted to the Secretary of State of the United States in accordance with this decision and the requirements of law.
Once executed, the Clerk of Court shall transmit to the Secretary of State of the United States: (1) a certified copy of the CERTIFICATION OF EXTRADITABILITY; (2) a copy of all evidence received in these extradition proceedings and certified copy of the testimony taken in the proceedings in February 9, 13, 14, 15, 16, and March 2, 2001; (3) a certified copy of the Memorandum Decision and Order filed September 18, 2001; (4) a certified copy of this Memorandum Decision and Order; and (5) a certified copy of the Complaint and Request for Extradition and Annexures (Exhibits) Thereto.
A warrant may issue upon the requisition of a duly authorized representative of the Government of India for the surrender of Kulbir Singh Barapind in accordance with the terms of the Treaty. Barapind shall continue to be detained pending final outcome of these proceedings.
SO ORDERED.