In re Extradition of Jano [1993] FMSC 7; 6 FSM Intrm. 023 (App. 1993) (19 February 1993)

6 FSM Intrm. 23 (App. 1993)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P1-1993

In re the Extradition of MARTIN JANO
___________________________________

ORDER DISMISSING APPEAL

Hearing: February 15, 1993
Decided: February 19, 1993

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:

For the Appellant: Marvin Hamilton, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

For the Appellee: Michael Brady, Esq.
Assistant Attorney General
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Appeal and Certiorari
The well established general rule is that only final judgment decisions may be appealed. A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. In re Extradition of Jano, 6 FSM Intrm. 23, 24 (App. 1993).

Appeal and Certiorari; Extradition
Certifications of extraditability are not final decisions of the trial court since the final decision-making authority rests with the Secretary of External Affairs. Therefore they are not appealable. In re Extradition of Jano, 6 FSM Intrm. 23, 25 App. 1993).

Appeal and Certiorari; Extradition; Habeas Corpus
Judicial review of a certification of extraditability, although not appealable, is available to an accused in custody by seeking a writ of habeas corpus. In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).

Appeal and Certiorari; Extradition; Statutes - Construction
Where the FSM statute governing extradition proceeding is silent on the appealability of extradition proceedings and where the statute has been borrowed from another jurisdiction where extradition proceedings are not appealable it is presumed that the meaning and application of the statute is as it was interpreted by the courts of the source. In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).

Constitutional Law - Judicial Guidance Clause; Extradition
Extradition is founded upon treaties between sovereign nations involving mutual agreements and commitments. There is no counterpart in Micronesia custom and tradition that is applicable. In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This case came before the court on February 15, 1993 on the motion of the government for an order dismissing this appeal.

The contention of the government is that the certification of the trial court following the extradition hearing is not appealable, that judicial review may be by habeas corpus.

The appellant contends that the certification is a final decision appealable, according to the Rules of Appellate Procedure, as either a criminal or a civil matter. He also contends that United States cases are not clear on the point, and that our decision must reflect Micronesian customs and traditions.

We conclude that the motion must be granted. Our reasons are that the certification is not a final decision, that extradition procedures do not provide for appeal, and that custom does not apply.

I. Final Decision

The well established general rule is that only final judgment decisions of trial courts may be appealed. Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 329 (App. 1992); In re Main[1990] FMSC 14; , 4 FSM Intrm. 255, 257-58 (App. 1990).

FSM Appellate Rule 4(a)(1)(A), concerning civil cases, states: "appeals may be taken (A) from all final decisions . . .&#16As thMain cas> case describes, some exceptions exist, but those exceptions do not apply in this case. Concerning criminpeals Appellate Rule 4(b) states that "appeals are permitted from all final decisions&ions #160;.㼠. ."

"

"A 'fieal decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute tdgmenu>Catlin v. United States[1945] USSC 46; , 324 U.S. 229, 233, 233[1945] USSC 46; , 65 S. Ct. 631, 633[1945] USSC 46; , 89 L. Ed. 911, 911, 916 (1945) (also found in 15A Charles A. Wright et al., Federal Practice and Procedure § 3909, at 291 (1992), and described there as "one of the most-quoted judicial statements" on finality of decisions).

That certifications are not final decisions is clear from 12 F.S.M.C. 1402, which posits final decision-making authority in the Secretary of External Affairs. The certification is clearly not final as to the merits of the accusation, nor is it final as to extradition.

The proceedings before the trial judge, insofar as the merits of the accusation is concerned, only determine whether evidence "sufficient to sustain the charge" has been proffered. 12 F.S.M.C. 1402. It is thus in the nature of a probable cause hearing, and has been described as a preliminary hearing. Sayne v. Shipley, [1969] USCA5 1358; 418 F.2d 679, 685 (5th Cir. 1969).

The appellant suggests we suspend the rules, pursuant to FSM Appellate Rule 2, to permit the appeal "for good cause." We find no justification for such an action because of the wealth of precedent of the non-appealability of extradition cases, and because judicial review is available to an accused in custody by seeking a writ of habeas corpus.

II. Extradition Statute and Appealability

The relevant statute, Public Law 5-22 (to be codified as 12 F.S.M.C. 1401-1410), is silent on the appealability of extradition proceedings. This public law is derived from Title 18, sections 3181, et seq. of the United States Code. In particular 12 F.S.M.C. 1402 follows 18 U.S.C. § 3184 with only changes of the names of the countries.

When such a statute is the source of a public law of this nation, it is presumed that the meaning and application of the public law is as it was interpreted by the courts of the source, here the United States. Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984). In the United States extradition proceedings are not appealable. Collins v. Miller, [1920] USSC 69; 252 U.S. 364, 369[1920] USSC 69; , 40 S. Ct. 347, 349[1920] USSC 69; , 64 L. Ed. 616, 618 (1920). (A full history on this point is found in In re Mackin[1981] USCA2 1058; , 668 F.2d 122 (2d Cir. 1981)).

III. Judicial Guidance Clause

The appellant urges that appeal be permitted because this is a case of first impression (in previous extradition cases the accused have waived a hearing on extraditability), because of the need for full and careful deliberation and because an opportunity for full appellate proceedings would be more in harmony with Micronesian custom and tradition.

Appellant supports his appeal to custom with the most general representations as to what, for instance, a Nanmwarki would do. Appellant's representations would be applicable to any grievance made to a Nanmwarki by one of his subjects. Implicitly appellant asks that we take judicial notice of those tendencies and suppositions.

We cannot alter our view that the certification is not appealable because of these representations. We have not been directed to any pattern in custom comparable to extradition. Extradition is founded upon treaties between sovereign nations involving mutual agreements and commitments. We conclude there is no applicable Micronesian custom or tradition. Cf. Semens v. Continental Air Lines, Inc., [1985] FMSC 3; 2 FSM Intrm. 131, 140-41 (Pon. 1985) (plaintiff injured while unloading cargo of airplane; activities found to be markedly nonlocal and international in character; held, there is no applicable Micronesian custom or tradition).

For the reasons stated the motion is granted, and the appeal dismissed.