Courts should likewise be so responsive to the wishes of the United States and Mexican governments.
If the matter was of such importance in the first instance it leads me to question why the Department of Justice did not make an earlier application to have this matter heard by another judicial officer. The conclusion I draw is that the United States Government was content to have this matter heard by me but, now that I have declined to issue a certificate of extraditability, the United States Government thinks that the importance is such that the matter be referred to a United States District Judge rather than me continuing to exercise jurisdiction.
It is well-established that the denial of a certificate of extraditability is not a final decision and there is no res judicata effect. The Government is free to refile, as in this instance it has. See, e.g., United States v. Doherty, 786 F.2d 491 (2d Cir. 1986); Hooker v. Klein, 573 F.2d 1360, (9th Cir. 1978).
Regardless of how a respondent may categorize the fairness of the procedure the fact is that, quoting from In re Extradition of Tafoya, 572 F. Supp. 95 (W.D. Tex. 1983): "the government is merely taking a second bite at the extradition apple - because it had no right to appeal...." 572 F. Supp. at 98.
The question here is simply who should hear the extradition proceeding. There is no authority for the proposition suggested by the United States that a second extradition request should automatically go to another judicial officer. It is true that in United States v. Doherty the court stated, talking about the Government filing another extradition request, "its sole recourse, as discussed supra, has been to file another request - a request that must be considered de novo by the new extradition magistrate, who will give the opinion of the previous magistrate only such weight as he would give to an opinion of a respected judge in an unrelated case." 786 F.2d at 501.
What is missing from the cases cited by the Government is the procedure in effect in each District Court and the general custom and practice of each District Court, with regard to assignment of extradition proceedings. Nothing suggests to me that there is any need or imperative for a second judicial officer to consider a second extradition request. I appreciate the circumstances surrounding this matter. I understand that I may give some consideration to my prior ruling although I must consider any second request de novo. This is explicit in Doherty and In re Extradition of Atta, 706 F. Supp. 1032, 1035 & N.2 (E.D.N.Y. 1989).
The circumstances here seem to me to be akin to those in a civil action where a judicial officer at the beginning of a case hears a motion to dismiss and denies it and thereafter is asked to entertain a motion for summary judgment. There is no reason why after the development of a full record a judicial officer should be required to set aside and have the matter reassigned. Likewise, if a judicial officer enters a final decision and an appellate court reverses and remands, there is nothing per se in the reversal and remand which would require a judicial officer to ask that the matter be reassigned.
In the District of New Jersey extradition matters are assigned to the United States magistrate judges. These are given a magistrate judge's number and heard by the duty magistrate judge. It just so happens that when the request to extradite came in, I was the duty magistrate judge. It also so happened that when the United States made its second request to extradite, I was again the duty magistrate judge. The matter is properly before me under the General Rules of Court.
I appreciate my obligations, and I appreciate the manner in which a further extradition application must be considered. The question simply is whether I should ask that this be reassigned to another magistrate judge or to another district judge. Obviously, if I were to ask for reassignment, I would in effect (although the United States suggests it is not asking me to do it) recuse myself. In this regard I am mindful of the legislative history of Section 455 of Title 28 of the United States Code. This provides, in the context of recusal that, "no judge, of course, has a duty to sit where his impartiality might be reasonably questioned. However, the new test [for recusal] should not be used by judges to avoid sitting on difficult or controversial cases." I have no intention of asking that this matter be reassigned because I might find it difficult or I might find something troublesome about it.
In addition, reassignment as sought by the Government would create a situation where one district judge sits as extradition judge. If a certificate is issued another district judge would be called upon to review what a coordinate judicial officer did, albeit on a limited basis, My assumption would be, although I was not privy to the drafting of the General Rules, that this may be one reason why extraditions were assigned to magistrate judges, to avoid the situation where one coordinate judge reviews what another does.
This motion is troublesome to me for several reasons. It suggests a request made by the Executive Branch through the Justice Department and the State Department, that the Judicial Branch "bend" or ignore established rules of proceeding to further the perceived national interest of the United States.
The motion also appears to demonstrate a misunderstanding or disdain for the entire magistrate judge system. Many extradition proceedings appear to be heard by magistrate judges in the first instance and the suggestion in the motion papers that this matter is so important that an Article III judge should hear it frankly makes no sense given the General Rules and the manner in which extradition proceedings are generally conducted.
The traditions of our Government and country include a number of concepts. Central to those are separation of powers and judicial independence.
I appreciate the concerns Mr. Tarnoff expressed in his declaration. I have the greatest respect for what the Executive Branch of the Government is doing or attempting to do in foreign affairs and for the relationship between the United States and Mexico. I have no wish to deprecate any interest, any sovereign interest, of either government. But it appears that under these circumstances, to paraphrase George Kennan, we would be best served by measuring up to our own traditions. I see no reason why we should not do so here. Therefore, the motion is denied, and we will begin the hearing.
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