Tahawwur Hussain Rana, a Pakistani national, was tried in a U.S. district court for his role in supporting a terrorist organization responsible for the 2008 Mumbai attacks. While a jury convicted him of providing material support to a foreign terrorist organization and conspiring to support a foiled plot in Denmark, they acquitted him of conspiring to provide material support specifically related to the Mumbai attacks. After serving seven years and receiving compassionate release, India sought Rana's extradition to try him for the Mumbai attacks. Rana filed a habeas petition arguing that the extradition treaty's double jeopardy provision, known as Non Bis in Idem, barred his extradition because he had already been acquitted in the U.S. for the same conduct. The district court denied the petition, and Rana appealed to the Ninth Circuit.
The panel began its analysis by interpreting the plain text of the extradition treaty between the United States and India. The treaty prohibits extradition when a person has been acquitted in the requested state for the 'offense' for which extradition is requested. The court distinguished this from the treaty's subsequent paragraph, which refers to 'acts' when discussing non-prosecution. The panel reasoned that because the drafters used different terms in parallel provisions, 'offense' must refer to a charged crime defined by its legal elements, while 'acts' refers to uncharged conduct. This interpretation was supported by the State Department's technical analysis, which stated the provision applies only when the person has been acquitted of 'exactly the same crime.' The court also relied on persuasive precedent from the Fourth and Eleventh Circuits, which adopted a similar elements-based approach. The panel rejected Rana's argument that the government should be judicially estopped from this interpretation due to a broader reading in a co-conspirator's plea agreement, finding that the government did not persuade a court to accept that prior position. Regarding the probable cause standard, the court held that Rana's attacks on the credibility of the witness, David Headley, were insufficient to 'completely obliterate' the evidence of probable cause. The court noted that extradition proceedings do not allow for the same credibility assessments as a criminal trial, and the magistrate judge's finding of probable cause was supported by competent evidence.
Rana remains subject to extradition proceedings to India. The decision clarifies that the Non Bis in Idem exception in extradition treaties is triggered only when the elements of the foreign charges match the elements of the crimes for which the fugitive was previously convicted or acquitted in the United States. It reinforces the limited scope of habeas review in extradition cases, particularly regarding witness credibility challenges.
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