Smyth

Dissent by Judge NOONAN; Dissent by Judge REINHARDT.

The panel has voted to deny appellee’s petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes in favor of en banc consideration. Fed.R-App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

dissenting from failure to take en banc,

1. The Article II Appellate Court. This case presents an issue of unusual significance for the Judicial Branch of the government: if a court of appeals established under Article III erroneously believes that it may and must act as an Article II court, and does so act, what is the validity of its decision?

This issue is posed by the panel decision in this case. The panel proclaims that it has jurisdiction of the appeal because of the Supplementary Treaty between the United States and the United Kingdom (hereafter the Treaty), Article 3(a). Matter of Requested Extradition of Smyth, 61 F.3d 711, 713 (9th Cir.1995). The panel goes on to declare “the rules of evidence and civil procedure that govern federal court proceedings heard under the authority of Article III of the United States Constitution do not apply in extradition hearings that are conducted under the authority of a treaty enacted pursuant to Article II. Cf. Fed.R.Evid. 1101(d)(3).” Id. at 720-721 . The reference is to the proviso that the Federal Rules of Evidence are inapplicable to proceedings for extradition. The proviso, however, makes no reference to *1434 the applicability…

dissenting from failure to take en banc,

I join in Judge NOONAN’s dissent from the court’s failure to take this case en bane because I am in general agreement with it. However, I write separately in order to point out several additional errors in the panel’s opinion that are equally or more serious. Judge Noonan explains convincingly why the panel is mistaken when it concludes that the district court erred in its imposition of rebut-table presumptions because they “improperly shifted the burden of proof from Smyth to the government in contravention of the treaty provision.” I see a further fundamental error, which is at least as serious, in the panel’s analysis of those presumptions. The panel is just plain wrong, and inexplicably so, when it asserts that the presumptions “do not directly address that prong of Article 3(a) requiring the person sought for extradition to establish that the retaliation or detention would be on account of ‘race, religion, nationality or political opinions.’ ” Matter of the Requested Extradition of Smyth, 61 F.3d 711, 717 (9th Cir.1995). The language of the first presumption imposed by the district court belies this statement. That presumption reads…