Barapind v. Enomoto ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KULVIR SINGH BARAPIND, 
Petitioner-Appellant,
No. 02-16944
v.
JERRY J. ENOMOTO, United States  D.C. No.
CV-01-06215-OWW
Marshal for the Eastern District of
OPINION
California,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
October 14, 2004—San Francisco, California
Filed March 9, 2005
Before: Mary M. Schroeder, Chief Judge, Alex Kozinski,
Pamela Ann Rymer, Andrew J. Kleinfeld,
Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,
William A. Fletcher, Richard C. Tallman,
Johnnie B. Rawlinson and Consuelo M. Callahan,
Circuit Judges.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by Judge Rymer
3003
3006 BARAPIND v. ENOMOTO
COUNSEL
Jagdip Singh Sekhon, Sekhon & Sekhon, San Francisco, Cali-
fornia, for the appellant.
BARAPIND v. ENOMOTO 3007
Stanley A. Boone, Assistant United States Attorney, Fresno,
California, for the appellee.
OPINION
PER CURIAM:
We consider whether the district court erred in denying
Kulvir Singh Barapind’s habeas corpus petition challenging
the certification of his extradition to India.
FACTS1
Barapind, a native and citizen of India, is a prominent
leader of the All India Sikh Student Federation. The Federa-
tion is dedicated to establishing an independent sovereign
Sikh nation. From the mid-1980s through the early 1990s,
while Barapind was still in India and an active Federation
member, Sikh insurgents frequently clashed with the Indian
government and its supporters, resulting in tens of thousands
of casualties.
In 1993, Barapind came to the United States using a pass-
port bearing a false name and was immediately detained by
the Immigration and Naturalization Service (INS). He applied
for asylum and withholding of deportation, asserting that he
would face persecution if he were returned to India, but the
immigration judge denied relief and ordered him excluded.
On habeas review, a panel of this court affirmed the district
court’s remand to the Board of Immigration Appeals, finding
that the immigration judge committed legal errors. See
Barapind v. Rogers, 114 F.3d 1193 (9th Cir. 1997) (mem.).
1
For a complete description of the facts, see the extradition court’s thor-
ough opinion in In re Extradition of Singh, 170 F. Supp. 2d 982 (E.D. Cal.
2001). We set forth only those facts relevant to this appeal.
3008 BARAPIND v. ENOMOTO
Barapind’s asylum proceedings were then interrupted by
India’s request that the United States extradite him.2
India requested Barapind’s extradition pursuant to its extra-
dition treaty with the United States.3 See Quinn v. Robinson,
783 F.2d 776, 782 (9th Cir. 1986) (“The right of a foreign
sovereign to demand and obtain extradition of an accused
criminal is created by treaty.”). The Treaty provides for extra-
dition of a person suspected of committing certain crimes
when the evidence of the person’s guilt would be sufficient to
bring him to trial in the United States if his crimes had been
committed here. See art. 9. Certification of extradition is law-
ful only when the requesting nation has demonstrated proba-
ble cause to believe the accused person is guilty of
committing the charged crimes. See Quinn, 783 F.2d at 783;
see also Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th
Cir. 2000).
The United States filed a complaint on India’s behalf and
requested a warrant to bring Barapind before an extradition
court for a hearing to determine extraditability. See 18 U.S.C.
§ 3184. The district court issued the warrant, Barapind was
transferred from INS custody and the district court conducted
an extradition hearing.4
India sought Barapind’s extradition based on crimes arising
out of eleven separate incidents. The extradition court denied
2
Barapind unsuccessfully challenged the interruption of asylum pro-
ceedings. See Barapind v. Reno, 225 F.3d 1100, 1114 (9th Cir. 2000).
3
The relevant treaty is, as the parties have stipulated, the Treaty for the
Mutual Extradition of Criminals Between the United States of America
and Great Britain, Dec. 22, 1931, U.S.—Gr. Brit., 47 Stat. 2122, made
applicable to India in 1942, see Treaty Affairs Staff, United States Dep’t
of State, Treaties in Force 132 (1999).
4
The hearing was held before District Judge Oliver W. Wanger. See 18
U.S.C. § 3184. Judge Wanger was also the district judge who considered
and denied Barapind’s petition for a writ of habeas corpus, the decision
currently on appeal before us. See note 5 infra.
BARAPIND v. ENOMOTO 3009
certification of extraditability for the crimes relating to eight
of the incidents, concluding either that India failed to show
probable cause to suspect Barapind of the crimes, or that
extradition was inappropriate because the crimes were cov-
ered by the Treaty’s political offense exception, which bars
extradition for crimes “of a political character.” See art. 6.
The court certified extradition for offenses stemming from the
three remaining incidents.
Barapind petitioned for a writ of habeas corpus, arguing
that the charges for which his extradition was certified were
not supported by probable cause or fell under the political
offense exception.5 The district court denied his petition, and
Barapind appealed. A three-judge panel of this court affirmed,
see 360 F.3d 1061 (9th Cir. 2004), and we subsequently voted
to rehear the case en banc, see 381 F.3d 867 (9th Cir. 2004)
(order).
ANALYSIS
Because our review of the district court’s decision on ques-
tions of law and mixed questions of law and fact is de novo,
see Quinn, 783 F.2d at 791-92, and because the district court
on habeas review accepted the factual findings of the extradi-
tion court, we focus on the extradition court’s opinion. Thus,
we determine whether the extradition court erred in certifying
extraditability for crimes arising out of three incidents, desig-
nated as FIR 100, FIR 89 and FIR 34.6
5
Decisions of an extradition court are not directly reviewable but may
be challenged collaterally by a petition for habeas corpus. See Mainero v.
Gregg, 164 F.3d 1199, 1201-02 (9th Cir. 1999).
6
“FIR” stands for First Information Report, a summary report prepared
by the Indian police when certain serious crimes are committed. The liti-
gants have used the FIR designations to refer to the incidents from which
Barapind’s charges arise. We follow this convention.
3010 BARAPIND v. ENOMOTO
General Challenges to Extraditability
Barapind asserts two claims applicable to all three inci-
dents.
1. First, he contends that India’s evidence against him was
incompetent. Barapind focuses on the fact that the witness
statements produced by India were unsigned translations, on
which the extradition court should not have relied.
[1] Barapind misunderstands the nature of extradition pro-
ceedings. “With regard to the admissibility of evidence, the
general United States extradition law requires only that the
evidence submitted be properly authenticated.” Emami v.
United States Dist. Court, 834 F.2d 1444, 1451 (9th Cir.
1987). The authentication requirements for documentary evi-
dence are contained in 18 U.S.C. § 3190, which specifies that
“the certificate of the principal diplomatic or consular officer
of the United States resident in such foreign country shall be
proof that [submitted documents] are authenticated in the
manner required.” Here, it is undisputed that the evidence
presented against Barapind was properly authenticated pursu-
ant to section 3190, and the Treaty itself contains no supple-
mentary authentication requirements. We therefore reject
Barapind’s claim that the extradition court erred in relying
upon the authenticated documentary evidence submitted by
India.
[2] Barapind also argues that the evidence against him is
unreliable because it was fabricated or obtained by torture.
The extradition court, however, conducted a careful, incident-
by-incident analysis as to whether there was impropriety on
the part of the Indian government. Its findings that the evi-
dence regarding FIR 100, FIR 89 and FIR 34 was not the
product of fabrication or torture were not clearly erroneous.
See Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir. 1999)
(“Factual determinations by a . . . judge in an extradition pro-
ceeding are reviewed for clear error.”).
BARAPIND v. ENOMOTO 3011
2. Next, Barapind claims that because some of the charges
for which India requested his extradition were deemed to be
political offenses, he cannot be extradited on any charges,
even those not covered by the political offense exception. He
bases his argument on article 6 of the Treaty, which protects
a fugitive from extradition 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 offence of a political character.”
[3] Barapind reads this language as preventing a fugitive’s
extradition if any of his charged offenses were crimes of a
political character. But he can point to no authority for such
a drastic interpretation. Nor is his argument consistent with
the doctrine of specialty, which “prohibits the requesting
nation from prosecuting the extradited individual for any
offense other than that for which the surrendering state agreed
to extradite,” Quinn, 783 F.2d at 783, and which is incorpo-
rated into the terms of the Treaty, see art. 7 (“A person surren-
dered can in no case be . . . brought to trial . . . for any other
crime or offence . . . than those for which the extradition shall
have taken place . . . .” ). The doctrine of specialty suggests
the more general proposition that an extradition court should
consider each offense separately in determining whether an
extradition requisition is based on a political crime. The fact
that some crimes are found to be non-extraditable political
offenses has no bearing on whether certification of extradition
is appropriate for crimes that are not political offenses.
Incident-Specific Challenges
Finding both of Barapind’s universal challenges to the
extradition court’s decision to be meritless, we turn to his
incident-specific claims.
1. FIR 100. India charges Barapind with murder and
attempted murder, alleging that he drove a scooter while a
gunman riding with him killed one man and wounded another.
3012 BARAPIND v. ENOMOTO
Barapind contends that India did not establish probable cause
to believe he committed these crimes.
In reviewing an extradition court’s probable cause determi-
nation for evidentiary sufficiency, we ask whether the court’s
finding was supported by “competent evidence.” See
Mainero, 164 F.3d at 1205 (quoting Zanazanian v. United
States, 729 F.2d 624, 626 (9th Cir. 1984)). To establish proba-
ble cause, India relied in significant part upon a translated
statement of Makhan Ram, the man who was wounded in the
shooting, identifying Barapind as the driver. Barapind
attempted to destroy probable cause by submitting a more
recent affidavit from Makhan wherein he claims that he never
identified Barapind. This affidavit states that the Indian police
forced Makhan to sign a blank sheet of paper, which they sub-
sequently turned into affidavits identifying Barapind.
The extradition court recognized that a fugitive facing
extradition can present his own evidence to explain away the
requesting government’s evidence of probable cause. See
Singh, 170 F. Supp. 2d at 994; see also Mainero, 164 F.3d at1207 n.7 (“Generally, evidence that explains away or com-
pletely obliterates probable cause is the only evidence admis-
sible at an extradition hearing, whereas evidence that merely
controverts the existence of probable cause, or raises a
defense, is not admissible.”). The court concluded, however,
that “the credibility of Makhan Ram’s recantation cannot be
determined without a trial,” Singh, 170 F. Supp. 2d at 1024,
which would exceed the limited mandate of an extradition
court in making a determination of probable cause, as
opposed to ultimate guilt.
[4] The extradition court was supported by competent evi-
dence in finding that Barapind did not obliterate India’s show-
ing of probable cause, as Makhan’s more recent affidavit
constituted conflicting evidence, the credibility of which
could not be assessed without a trial. Because extradition
courts “do[ ] not weigh conflicting evidence” in making their
BARAPIND v. ENOMOTO 3013
probable cause determinations, Quinn, 783 F.2d at 815, we
find no basis for overturning the extradition court’s decision
that probable cause of Barapind’s guilt existed with respect to
FIR 100.
2. FIR 89. The extradition court also certified extradita-
bility for an incident involving four murders allegedly com-
mitted by Barapind and three accomplices after they invaded
a house. Barapind’s group went to the home of Sohan Singh
and his wife looking for Sohan’s three sons, who were
thought to be police collaborators. Barapind immediately shot
and killed two of the sons, and the group asked Sohan’s wife
where the third son was. She told the assailants that he was
sleeping in another room. Barapind’s accomplices went to the
room and killed the third son along with his wife, Kulwant
Kaur.
Before the extradition court, Barapind argued that he could
not be extradited based on the crimes arising out of this inci-
dent, as they were non-extraditable political offenses under
article 6 of the Treaty. The court agreed that the murders of
the three sons were political offenses, but it certified extradi-
tion for the murder of Kulwant. Barapind challenges this cer-
tification.
[5] To determine whether the political offense doctrine bars
extradition, we apply a two-prong “incidence test.” For a
crime to qualify as “one of a political character,” Treaty art.
6, there must be: “(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’ ‘in the
course of,’ or ‘in furtherance of’ the uprising,” Quinn, 783
F.2d at 797 (footnotes and citations omitted).
[6] There is no real doubt that the crimes Barapind is
accused of committing occurred during a time of violent polit-
ical disturbance in India. As the extradition court noted,
“[t]ens of thousands of deaths and casualties” resulted
3014 BARAPIND v. ENOMOTO
between the mid-1980s and early 1990s as Sikh nationalists
clashed with government officers and sympathizers in Punjab.
Singh, 170 F. Supp. 2d at 1032. Substantial violence was tak-
ing place, and the persons engaged in the violence were pur-
suing specific political objectives. Cf. Quinn, 783 F.2d at 807.
The dispute between the parties concerns the “incidental
to” prong, which asks whether Barapind’s crimes were “caus-
ally or ideologically related” to the political uprising. Id. at
809. In Quinn, we discussed the “incidental to” analysis in
depth, stating that extradition courts should focus not on the
types of acts alleged, but rather on the motivation for those
acts. See id. at 809-10.
The extradition court found that it was not bound by
Quinn’s discussion of the “incidental to” prong. This part of
our opinion was “dicta,” the court stated, because Quinn’s
extraditability was ultimately based on his failure to satisfy
the “uprising” prong. The court explained that our discussion
of “incidental to” was not necessary to our ultimate disposi-
tion of Quinn, and our ruling on the issue was therefore not
binding. See Singh, 170 F. Supp. 2d at 998.
[7] The extradition court operated under a mistaken under-
standing of what constitutes circuit law. 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,7
regardless of whether it was in some technical sense “neces-
sary” to our disposition of the case.8 See Cetacean Cmty. v.
7
Any statement to the contrary in McMullen v. INS, 788 F.2d 591, 598
(9th Cir. 1986), is overruled.
8
The partial dissent claims that our “discussion about dicta is dicta.”
Dissent at 3028. However, we need not go back very far to find an en banc
court—the body charged with “maintain[ing] uniformity of the court’s
decisions,” Fed. R. App. P. 35(a)—announcing a binding legal principle
BARAPIND v. ENOMOTO 3015
Bush, 386 F.3d 1169, 1173 (9th Cir. 2004); Miranda B. v.
Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam);
United States v. Johnson, 256 F.3d 895, 914-16 (9th Cir.
2001) (en banc) (Kozinski, J., concurring). The extradition
court thus erred in concluding that it was not required to fol-
low Quinn.9
for three-judge panels and district courts to follow even though the princi-
ple was technically unnecessary to the court’s disposition of the case
before it. In Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc),
we held that “where the reasoning or theory of our prior circuit authority
is clearly irreconcilable with the reasoning or theory of intervening higher
authority,” id. at 893, three-judge panels and district courts “should con-
sider themselves bound by the intervening higher authority and reject the
prior opinion of this court as having been effectively overruled,” id. at
900. Of course, this holding was not strictly necessary to our disposition
of the case, for we were sitting en banc and thus were not required to fol-
low prior circuit law in any event. Nevertheless, we announced the rule to
guide three-judge panels and district courts in deciding which precedents
were binding on them.
Likewise, in Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th
Cir. 1987) (en banc), we held that a three-judge panel faced with contra-
dictory controlling precedents “must call for en banc review.” See id. at
1478-79. Again, this holding, which we subsequently reaffirmed en banc,
see United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en
banc) (per curiam), would have been non-binding “dicta” by the dissent’s
definition. See dissent at 3029.
Our opinion provides a supervisory function similar to Miller and
Atonio by instructing three-judge panels and district courts about how to
determine what law is binding on them. It thus constitutes authoritative
circuit law. See Miller, 335 F.3d at 904 (Tashima, J., concurring)
(“[W]hen the en banc court exercises its supervisory authority over three-
judge panels, its decisions should be recognized as authoritative and bind-
ing,” even with respect to matters that are “not necessary to the decision
of the case.”).
9
Because the offenses at issue in this case present relatively straightfor-
ward 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 a political uprising, “[a]ll that the
courts should do is determine whether the conduct is related to or con-
nected 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.
3016 BARAPIND v. ENOMOTO
[8] The court nonetheless reached the correct result, as
Barapind failed to demonstrate that Kulwant’s murder was a
political offense. Indeed, even though it mislabeled the Quinn
articulation of “incidental to” as dicta, the court properly con-
cluded that Barapind’s proffered evidence would not satisfy
the Quinn formulation. See Singh, 170 F. Supp. 2d at
1036-37. Under Quinn, a court may not rely on a fugitive’s
mere assurance that a crime had some political purpose.
Rather, the fugitive has the burden of showing a factual nexus
between the crime and the political goal. In this case, all we
know about Kulwant is: (1) she was the wife of a suspected
police collaborator; and (2) Barapind’s crew did not intend to
kill her based on any of her political beliefs or affiliations. But
we do not know why Barapind’s accomplices did, in fact, kill
Kulwant. Was it an accident? Was it because she attempted
to interfere with the murder of her husband? Or were the men
attempting to eliminate witnesses who could later identify
them—and, if so, why didn’t they also kill Sohan and his
wife?
[9] Barapind has not answered any of these questions. As
the extradition court noted, he has provided no evidence at all
to explain the motive for Kulwant’s murder. See Singh, 170
F. Supp. 2d at 1036. Without such evidence, there is no basis
for finding that the murder was a political offense under
Quinn. Because Barapind failed to prove that his charge fell
under the political offense exception, the extradition court
properly certified his extraditability for Kulwant’s murder.
Barapind also argues that there was insufficient evidence to
establish probable cause of his guilt. He was not in the room
when Kulwant was killed, and he contends that India did not
show he shared his accomplices’ intent to kill her. The extra-
dition court, however, found that Barapind came to the house
with his accomplices, personally shot and killed two men and
waited while the accomplices went to kill the third man and
Kulwant. While these facts alone might not be sufficient to
prove beyond a reasonable doubt that Barapind shared his
BARAPIND v. ENOMOTO 3017
accomplices’ intent to murder Kulwant, they do provide com-
petent evidence for finding probable cause of Barapind’s guilt
as an accomplice or co-conspirator.10 See Quinn, 783 F.2d at
815; see also Collins v. Loisel, 259 U.S. 309, 316 (1922)
(“The function of the committing magistrate is to determine
whether there is competent evidence to justify holding the
accused to await trial, and not to determine whether the evi-
dence is sufficient to justify a conviction.”).
3. FIR 34. Finally, the extradition court certified extradi-
tion based on India’s allegation that Barapind was one of the
men responsible for committing four murders that occurred
during a shootout between Sikh insurgents and an Indian gov-
ernment officer, a former officer and their bodyguards. The
strongest evidence India produced to support its charges was
the affidavit of a police inspector who claimed that an eye-
witness, Nirmal Singh, identified Barapind as one of the
shooters. Barapind responded with an affidavit from Nirmal
stating that he never identified Barapind or any other partici-
pant in the shootout. The extradition court determined that
Barapind’s evidence was insufficient to destroy probable
cause, concluding that a trial would be required to determine
who was telling the truth. See Singh, 170 F. Supp. 2d at 1028.
The court was justified in making this decision. See Quinn,
783 F.2d at 815; see also pages 3025-26 supra.
Barapind also claims that the crimes included in FIR 34
constituted political offenses. The extradition court recog-
nized that all of the victims were agents or former agents of
the Indian government, and that India charged violations of its
Terrorist and Disruptive Activities Act (TADA). Neverthe-
less, the court found that Barapind did not establish that the
charged crimes were political offenses, as “[w]hether this
10
The extradition court certified Barapind’s extradition based on his
charge of murder under Sections 302 and 34 of the Indian Penal Code.
Section 34 provides that a person is guilty of a “criminal act . . . done by
several persons in furtherance of the common intention of all.”
3018 BARAPIND v. ENOMOTO
attack was a domestic terrorist attack or politically motivated
cannot be determined.” Singh, 170 F. Supp. 2d at 1035.
[10] As noted above, however, the extradition court incor-
rectly concluded that it was not bound by Quinn’s interpreta-
tion of the political offense exception. Further, unlike its
discussion of FIR 89, see Singh, 170 F. Supp. 2d at 1036-37,
the extradition court’s discussion of FIR 34 did not explain
how the court would apply Quinn’s “incidental to” analysis to
Barapind’s case. This is particularly important given that
there is at least some evidence, including the affiliation of the
victims with the Indian government and India’s charging of
TADA violations, that might suggest the crimes were political
offenses. We remand for consideration of how the Quinn
political offense analysis applies to the crimes charged in FIR
34.
CONCLUSION
[11] We affirm the district court’s denial of Barapind’s
habeas petition with respect to FIR 100 and FIR 89. We
reverse as to FIR 34. Given that extradition is proper on two
of the grounds specified by the extradition court, we remand
to the district court to determine whether it is necessary and
appropriate to revise its ruling as to FIR 34.
AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
RYMER, Circuit Judge, with whom KLEINFELD, TALL-
MAN, RAWLINSON, and CALLAHAN, Circuit Judges,
join, concurring in the judgment in part and dissenting in part:
This appeal requires us to decide whether there is any com-
petent evidence to support the extradition court’s finding of
probable cause that Kulvir Singh Barapind committed multi-
BARAPIND v. ENOMOTO 3019
ple murders and, if so, whether the crimes charged are of a
“political character” which the extradition treaty between the
United States and India protects from extradition. This, in
turn, requires us to settle the standard by which we determine
that question.
In my view there was competent evidence of the criminal-
ity of Barapind with respect to each of the three incidents at
issue. Given my belief that probable cause also exists on all
three charges, I must decide whether the political offense
exception applies. Although we suggested a standard in Quinn
v. Robinson, 783 F.2d 776, 809-10 (9th Cir. 1986), for
whether an offense is “incidental to” a political uprising and
thus within the exception, we are now sitting en banc and so
are free to consider whether that standard, or some other,
should govern. I believe we should overrule Quinn’s elabora-
tion of the “incidental to” prong and instead follow the
approach articulated by the Supreme Court in Ornelas v. Ruiz,
161 U.S. 502, 511 (1896), by considering the “character of the
foray, the mode of attack, the persons killed or captured, and
the kind of property taken or destroyed.” Applying these fac-
tors, I cannot say that the extradition magistrate had “no
choice” but to hold that the ordinary crimes Barapind commit-
ted against civilian non-combatants were of a political charac-
ter. Id.Accordingly, I would affirm the district court across the
board.
I
The extradition magistrate certified that Barapind is extra-
ditable for three offenses: the murder of Kulwant Kaur as
charged in First Information Report (FIR) 89; the murders of
Balwant Singh Sarhal, Amar Nath Kanugo, Suda Ram and
Jasbir Singh as charged in FIR 34; and the murder of Sahab
Singh, a.k.a. Sahbi, and the attempted murder of Makhan Ram
3020 BARAPIND v. ENOMOTO
as charged in FIR 100. In re Extradition of Singh, 170
F.Supp.2d 982 (E.D. Cal. 2001).
The court accepted expert testimony that there was a civil
war in the Punjab during the 1980s and 1990s, which was at
its zenith in 1991. The Khalistan Commando Force (KCF)
was a militant wing of the Sikh separation movement. KCF
regularly assassinated Punjabi police and members of security
forces. While in college Barapind, a Sikh, was an active mem-
ber of the All India Sikh Student Federation, a group commit-
ted to establishing a sovereign Sikh nation of Khalistan to be
created from the Punjab state. He became president of the
Federation for the District of Jalandhar in 1988.
India’s evidence upon which the extradition magistrate
found probable cause of Barapind’s guilt in FIR 89 shows that
on September 6, 1992, Sohan Singh was sleeping on the roof
of his residence in the village of Tarkham Majera, with his
wife, Gurmail Kaur, and two of their sons, Paramjit Singh and
Kashmir Singh. The third son, Karamjit Singh, and his wife,
Kulwant Kaur, were sleeping in a room in the house. All three
sons were pro-police and had been issued arms and ammuni-
tion. Around 2:00 a.m., four persons, one of whom Sohan
Singh identified as Barapind, came onto the roof. Barapind
shot and killed Kashmir Singh with an AK-47, then shot
Paramjit Singh to death. When the assailants asked where the
third son was, Gurmail Kaur told them he was sleeping in
another room. Barapind stayed on the roof while the others
shot Karamjit Singh and Kulwant Kaur to death.
The evidence in FIR 100 shows that at 7:15 p.m. on Octo-
ber 26, 1991, Makhan Ram and Sahab Singh were about to
cross railway tracks when they encountered two individuals
on a scooter. Makhan Ram identified the driver as Barapind,
and the passenger as Gurdeep Singh, who was holding an
AK-47. Gurdeep Singh opened fire, wounding Makhan Ram
and killing Sahab Singh. Two other individuals also allegedly
participated.
BARAPIND v. ENOMOTO 3021
Finally, the evidence in FIR 34 indicates that around 7:30
p.m. on April 26, 1992, Barapind, Gurdeep Singh, Harminder
Singh, and another young man, armed with AK-47 rifles,
came from the side of the road that leads from the village of
Dhandwar to the village of Garhi Mohan Singh. Balwant
Singh Sarhal, an ex-Member of the Legislative Assembly,
along with Amar Nath Kanugo of the Deputy Commissioner’s
Office, Jalandhar, and two constables, Suda Ram and Jasbir
Singh, came from the side of village Garhi Mohan Singh in
a “gypsy vehicle.” Barapind, Gurdeep Singh and Harminder
Singh opened fire and shot and killed all four occupants. The
assailants then took the constables’ weapons and left.
II
I agree with the majority that India’s affidavits are neither
incompetent nor unreliable on any of the grounds asserted,
and that there is probable cause of Barapind’s guilt on all
three FIRs for reasons the majority explains. I part company
on how we should treat the issue of whether Barapind’s
offenses are of a “political character.”
Barapind argues that Article VI of the extradition treaty
with India bars his extradition because the offenses charged
in FIRs 34 and 89 are of a political character. Article VI pro-
vides:
A fugitive criminal shall not be surrendered if the
crime 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 to punish him for a crime or
offense of a political character.
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). The question for the
habeas court, and thus for us on appeal, is whether the
3022 BARAPIND v. ENOMOTO
offenses charged are non-extraditable crimes within the terms
of the treaty, that is, whether each is “of a political character.”
A
Barapind’s first contention — that the phrase “requisition
for his surrender” in Article VI should be construed as refer-
ring to the entire extradition request — is easily resolved. To
the extent Barapind’s concern is that India might try him for
crimes other than those certified, I agree with the majority
that the doctrine of speciality prohibits the requesting country
from prosecuting the fugitive for any offense except for those
on which the United States agrees to extradite. Thus,
Barapind may only be prosecuted for nonpolitical offenses.
To the extent his point is that the requisition clause prevents
extradition if any offense for which he is charged is political,
it makes little sense because construing the treaty in this way
would skirt the doctrine of speciality and insulate non-
political offenses from extradition. Beyond this, it is within
the sole discretion of the Secretary of State to determine
whether a country’s extradition request is a subterfuge for
punishing the accused for a political crime. Quinn, 783 F.2d
at 789 (citing In re Lincoln, 228 F. 70 (E.D.N.Y. 1915), aff’d
per curiam, 241 U.S. 651 (1916)); Eain v. Wilkes, 641 F.2d
504, 513 (7th Cir. 1981) (also citing Lincoln and Note, Execu-
tive Discretion in Extradition, 62 Colum. L. Rev. 1313, 1323
(1962)).
In default of his preferred reading, Barapind falls back to
a somewhat different interpretation of “requisition for surren-
der” as referring to the underlying incident encompassing the
offense. The effect in this case would be to insulate Barapind
from extradition on FIRs 89 and 34 because in both cases vic-
tims of the offenses included members of the Indian security
forces (against whom there is evidence that the Sikh militant
uprising was directed). This view fares no better. Article VI
of the treaty protects “crime[s] or offense[s]” of a political
character, not the broader incidents in which those crimes or
BARAPIND v. ENOMOTO 3023
offenses occur. If Barapind were correct, a fugitive would be
protected from extradition for all crimes that occur during an
attack so long as the attack had political overtones. In this
way the use of lethal violence against civilians who are inno-
cent parties, for example, would be protected even though it
is the common crime of murder. I do not read the treaty as
permitting any such thing.
B
The more difficult issue is what the treaty (and other trea-
ties like it) mean by the exception for offenses of a “political
character.” The treaty itself affords no help because it doesn’t
define “political.”
Our court wrote extensively on the subject in Quinn. We
noted a confusion about definitions, but observed that it is
“fairly well accepted” that there are two categories of political
offenses — “pure” and “relative.” 783 F.2d at 793. We stated
that “pure” political offenses are acts aimed directly at the
government and have none of the elements of ordinary
crimes, while “relative” political offenses include common
crimes committed in connection with a political act or for a
political motive or in a political context. Id. at 793-94 (cita-
tions omitted). We observed that United States courts have
generally adhered to an “incidence test” with two require-
ments: “(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,’ ‘in the course of,’
or ‘in furtherance of’ the uprising.” Id. at 797 (internal cita-
tions omitted). We declined to embrace limitations adopted by
the Seventh Circuit in Eain, including in particular how it
defined “uprising” as a struggle between organized military
forces, determined the legitimacy of given political objec-
tives, and excluded violent acts against innocent civilians
from the exception. Id. at 802, 808. We concluded that the
incidence test protects acts of domestic violence in connection
with a struggle for political self-determination, but does not
3024 BARAPIND v. ENOMOTO
protect acts of international terrorism. Id. at 806. With respect
to the “incidental to” component, we adopted a “liberal nexus
standard” under which neither proof of the potential or actual
effectiveness of the actions in achieving the group’s political
ends nor of the fugitive’s motive or membership in the upris-
ing group is determinative. Id. at 809. We remarked that “[i]t
is for the revolutionaries, not the courts, to determine what
tactics may help further their chances of bringing down or
changing the government.” Id. at 810. Thus, “there is no justi-
fication for distinguishing . . . between attacks on military and
civilian targets.” Id.The panel in this case and the district court both declined
to follow Quinn’s “incidental to” analysis because Quinn held
that the fugitive failed to meet the “uprising” prong, thereby
making the rest of its discussion dicta. Barapind v. Enomoto,
360 F.3d 1061, 1074 n.2, 1075 (9th Cir. 2004); In re Extradi-
tion of Singh, 170 F.Supp.2d at 998. The panel then agreed
with the extradition magistrate that the political offense
exception is “ ‘inapplicable to shield the knowing effort to kill
or injure unarmed, uninvolved, innocent civilians who are
non-combatants in the struggle.’ ” 360 F.3d at 1075 (quoting
In re Extradition of Singh, 170 F.Supp.2d at 1036 (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, 641 F.2d at 520-21 (observing that
“the indiscriminate bombing of a civilian populace is not rec-
ognized 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 (S.D.N.Y.
1996) (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 the victims is
also significant because the United States does not regard the
indiscriminate use of violence against civilians as a political
BARAPIND v. ENOMOTO 3025
offense”), aff’d sub nom., Demjanjuk v. Petrovsky, 776 F.2d
571 (6th Cir. 1985))).
We need not decide whether Quinn’s “incidental to” dis-
cussion is dicta because we are now en banc. The question for
us is instead whether we should adhere to Quinn’s standard or
overrule it.
i
I believe we must overrule Quinn, because indiscriminate
violence against innocent persons should not qualify for the
political offense exception to extradition, even if politically
motivated. Nor should the propriety of committing common
crimes be left to the perpetrators’ discretion. And civilians are
different from the military. Overruling Quinn would realign
us with the two circuits that have addressed attacks on non-
combatant civilian targets and held them to be unprotected.
See Ahmad, 910 F.2d at 1066 (holding that an attack on a
commercial bus carrying civilians is not a political offense
despite political motivation); Eain, 641 F.2d at 520-21 (recog-
nizing that the civilian status of victims is of significance in
considering the political offense exception).
I believe Quinn must be overruled for the additional reason
that it tries to set the parameters of a “political offense” for
all time and all places. Suffice it to say, as Justice Denman did
in the leading English case In re Castioni, [1891] 1 Q.B. 149:
“I do not think it is necessary or desirable that we should
attempt to put into language in the shape of an exhaustive def-
inition exactly the whole state of things, or every state of
things which might bring a particular case within the descrip-
tion of an offence of a political character.” Id. at 155.
Having overruled Quinn in these respects, I would look to
the Supreme Court’s seminal treatment of whether an offense
falls within a “political character” exception in Ornelas. The
treaty in that case, with Mexico, excepted from extradition
3026 BARAPIND v. ENOMOTO
any “crime or offense of a purely political character.” A band
of armed men passed over the Rio Grande from Texas into
Mexico and attacked about 40 Mexican soldiers, killing and
wounding some, capturing others, and taking their horses. 161
U.S. at 510. The band also violently assaulted private citizens,
burning their houses, and appropriating their money, horses,
and other property. Id. The fugitives’ evidence indicated that
there had been a revolutionary movement on the same border
against the government the year before, and that the purpose
of their expedition was the same as the earlier one. Id. at 511.
The extradition magistrate determined that the acts for which
extradition was sought were not of a purely political character
so as to exclude them from the treaty with Mexico; the district
court disagreed; and the Supreme Court reversed based on the
character of the foray, the mode of attack, the persons killed
or captured, and the kind of property taken or destroyed. Id.
at 511-12.
While the terms of the treaty with Mexico — excepting
crimes or offenses of a “purely” political character — are
slightly narrower than the terms of the treaty with India, the
Court’s approach and the factors that informed its decision are
equally instructive here. The factors that the Court considered
focus on specific political events and the objective acts which
constitute the crimes for which extradition is sought in order
to determine whether those crimes were part of a political
revolt, insurrection, or civil war. Neither the perpetrator’s
state of mind nor choice of tactics is determinative. However,
it matters whether the foray is directly in aid of the uprising,
how it was conducted, whether civilians or military were tar-
geted, and what happened to the victims and their property.
Ornelas also tells us that a habeas court should not disturb
the extradition magistrate’s determination unless it can be said
that the magistrate had “no choice” but to hold that the crime
was of a political character. 161 U.S. at 511.
BARAPIND v. ENOMOTO 3027
Considering the Ornelas factors and applying the standard
of review it prescribes with respect to FIRs 34 and 89, I
would uphold the district court:
FIR 34. There is no evidence explaining the attacks on the
occupants of the gypsy vehicle. Two of the four victims were
constables or “gunmen,” which is arguably consistent with the
KCF’s agenda of targeting Punjabi police and members of
security forces. However, Balwant Singh Sarhal was a former
member of the Legislative Assembly and Amar Nath Kanugo
was then an employee in the Deputy Commissioner’s Office.
The expert witness could not express an opinion as to whether
murder of former government ministers was an act in further-
ance 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. I cannot say that the extradition magis-
trate had no choice but to characterize this encounter as politi-
cal given that it was directed at non-combatant civilians.
FIR 89. Sohan Singh’s sons were “pro-police” collabora-
tors who had been issued uniforms, arms and ammunition by
the police for self-defense. There is evidence that they had
terrorized the area by killing Khalistan militants and robbing
innocent people. The police failed to take action to stop them.
There is no substantial explanation in the record for why
Karamjit Singh’s wife, Kulwant Kaur, was also murdered.
That she was in the wrong place at the right time is one possi-
bility, but this is discounted by the fact that Sohan Singh and
his wife, Gurmail Kaur, who were on the roof with two of
their sons when those sons were murdered, were left
unharmed. The attack occurred at 2:00 a.m. when Barapind
and his three accomplices went onto the roof to kill Paramjit
and Kashmir with AK-47 rifles and then sought out Karamjit.
Although the three brothers were paramilitary operatives and
3028 BARAPIND v. ENOMOTO
opponents of the Khalistan movement, Kulwant Kaur was an
innocent party who was unarmed. There is no evidence that
property was taken. The government does not challenge the
extradition magistrate’s determination that the murders of
Paramjit, Kashmir and Karamjit were linked to the move-
ment’s political intentions, but there is nothing to suggest that
the murder of Kulwant Kaur, a civilian, was committed in aid
of the Khalistan separation movement. In these circum-
stances, I cannot say that the extradition magistrate had no
choice but to hold that Kulwant Kaur’s murder was a political
offense.
For these reasons, I would hold that the district court was
not “palpably erroneous in law” in determining that neither
the offense charged in FIR 34 nor the offense charged in FIR
89 is of a political character. Ornelas, 161 U.S. at 509.
ii
The majority takes a different tack with respect to FIRs 34
and 89, holding that the extradition court operated under “a
mistaken understanding of what constitutes circuit law,” maj.
op., supra at 3014, or, put differently, what is dicta. In its
view, the proper scope of “incidental to” was presented in
Quinn, we addressed the issue and decided it in a published
opinion, and it therefore became the law of the circuit even
though it may not have been necessary “in some technical
sense” to the disposition. I disagree that we need to go there.
We are now sitting en banc, and therefore can declare the law
as we believe it to be regardless of what we have previously
held. This is so no matter whether a particular part of a prior
opinion was necessary to its decision or not. Thus, there is no
point to holding that Quinn’s “incidental to” discussion is, or
is not, dicta; instead, we can, and should, decide whether its
discussion is now the law of the circuit because it ought to be,
and whether the district court got it right or wrong. In short,
the discussion about dicta is dicta.
BARAPIND v. ENOMOTO 3029
iii
In any event, I would not fault the district court for being
mistaken in its understanding of dicta. It stated that the court
in Quinn did not have to reach or apply the “incidental to”
component of the two-part incidence test because Quinn
failed to satisfy the “uprising” prong. In re Extradition of
Singh, 170 F.Supp.2d at 998. We said as much ourselves in
McMullen v. INS, 788 F.2d 591, 596, 598 (9th Cir. 1986)
(calling this part of the Quinn discussion dicta). We have also
described discussions that are unnecessary to a decision as
dicta. See, e.g., United States v. Johnson, 256 F.3d 895, 920
(9th Cir. 2001) (en banc) (Tashima, J., concurring); Export
Group v. Reef Indus., Inc., 54 F.3d 1466, 1471-72 (9th Cir.
1995). So has the United States Supreme Court, see, e.g.,
NLRB v. Int’l Bhd. of Elec. Workers, Local 340, 481 U.S. 573,
591 n.15 (1987) (declaring that a statement in a previous deci-
sion was dictum because it “was unnecessary to the disposi-
tion”); Local 144 Nursing Home Pension Fund v. Demisay,
508 U.S. 581, 592 n.5 (1993) (declaring statements in earlier
cases dicta because they were “uninvited, unargued, and
unnecessary to the Court’s holdings”), and so does Black’s
Law Dictionary, which defines “obiter dictum” as: “A judicial
comment made while delivering a judicial opinion, but one
that is unnecessary to the decision in the case and therefore
not precedential.” Black’s Law Dictionary 1102 (8th ed.
2004).
iv
If pressed to take a position, which the majority’s opinion
unfortunately forces me to do, I would stick with the tradi-
tional understanding of dictum as a statement that is not nec-
essary to the decision.1 Like obscenity, it doesn’t seem fruitful
1
As Judge Posner points out, there are numerous ways to define dictum,
and various reasons why holdings are distinguished from dicta that may
shed light on how a particular passage should be treated. United States v.
Crawley, 837 F.2d 291 (7th Cir. 1988).
3030 BARAPIND v. ENOMOTO
to try to pin down a more precise definition. I would leave it
to panels, and to district courts, to sort out the occasional gra-
tuitous observation from an authoritative holding, as we
always have. They’ll know it when they see it — and if they
see it differently from the active judges on this court, the rem-
edy is a rehearing en banc which vacates the panel opinion
and affords the court as a whole the opportunity to validate a
prior statement or to void it. This is far more benign than the
majority’s approach, which invites overwriting that may be
difficult or impossible to cure.
It is one thing for a court of last resort to announce that
whatever it says in a published opinion is binding, for a court
of last resort regularly sits en banc, has ultimate responsibility
for the efficient administration of justice within its province,
and may not have enough cases to flesh out the rule being
articulated. It is another for an intermediate court such as ours
to make every reasoned discussion in a published opinion
binding whether it is necessary or not. We speak through pan-
els of three, and as Article III judges have authority only to
decide cases and controversies. Everything that ends up in
F.3d cannot possibly be the law of the circuit. Views of two
or three judges in an opinion on matters that are not necessar-
ily dispositive of the case are no different from the same
views expressed in a law review article; neither should be
treated as a judicial act that is entitled to binding effect.
Accordingly, I dissent from the majority’s holding in this
respect as well, for I see no reason to discuss dicta at all, let
alone venture beyond traditional notions of what it is, and
many reasons not to. I also dissent from the majority’s rever-
sal as to FIR 34. However, I agree with its bottom line on FIR
89, and so concur in that part of the judgment.