fought extradition to the united states he was charged with premeditated murder only that case went all the way to the canadian supreme court of justice mr graham was not successful he was extradited when mr graham arrived in south dakota  was in district court the district court dismissed the charge that's been the subject of another eighth circuit appeal i'm not really prepared to talk about today but the district court the federal district court had no jurisdiction to hear that charge so mr graham was indicted in state court in south dakota for premeditated murder and also for felony murder and that's what makes this a very interesting appeal because after his extradition proceedings were completed he was indicted for something that is he should have been returned to canada and the fact that he was not returned to canada deprived him of no your honor so we're reviewing the issue now that the court in canada might have reviewed which is whether the district or whether the state court or any court in the united states would have jurisdiction over a felony murder charge because that should have been reviewed in canada by the canadians but it's too late and he was already convicted then as things turned out as fate would have it he was acquitted a jury acquitted mr graham of premeditated murder but they convicted him of felony murder based on kidnapping  criminality and the four cases we cited are looking at whether the law in one country is substantially analogous to the law in another country so that we can say that these these two laws are or even get there it seems to me that issue under the treaty and here we have an extradition for a specific crime and ultimately a prosecution for that crime and another crime with no intervening return to canada and in the mean time when the second crime is added we have a consent consent to waiver of  specialty from the extraditing country what case is that the extraditing country can't approve the expansion in this manner in other  words the extra there was no violation of the extraditing order the prosecution that all of them and lee occurred was consistent with that but in the meantime the extraditing country approved the addition of of  other charges i don't see where that violates any of the cases you're relying on it doesn't violate the principle of specialty your honor you violate the principle of criminality that's what's so important about this appeal is that the only if we say that canadians authorities were wrong in granting the way you know the consent waiver well your honor what happened was that the canadian judiciary you're saying the canadian courts and the canadian ministry of justice misinterpreted ever consider this issue when the canadian courts consider mr graham's extradition to justice yes your honor so that's where we are it was some judicial review i don't know i don't care i guess whether it was judicial review or not the the operative word to use in canada operative to issue the specially document issue that is it as a diplomatic maneuver your honor the principle especially has no basis in law and has no basis in the extra does it doesn't do that your honor because design for it does not your honor it's a diplomatic principle it's based only on the rule of comedy but my client is relying on a treaty and we've shown particularly in our reply brief why the treaty creates rights so the treaty is equivalent to a federal law the my opposing counsel position is not even based on law it's based on what your honor is referring to which is a diplomatic principle of specialty which is not based on any treaty at machine whether the extraditing country would regard the prosecution prosecution as a breach of the treaty you only have standing to step in to to make the argument on behalf of the extraditing country you don't have let's see where the most recent cases actually lain are versus turner eighty four at second three eighty five at page three hundred eight and then there's another eighth circuit case u s versus therion eight thirteen f second one forty  oliver as mccain to mccain cases in that case was about an extradition treaty between the united states and mexico in that case found that that's a very strange case that case found that the extradition treaty does not prohibit kidnapping essentially the dea agents just brought somebody crossed the border with no procedure at all that's called rendition it's not really extradition once you have an extradition proceeding you rely on an extradition treaty then you have to enforce the provisions of the treaty and a very important provision in that treaty is dual criminality and that says a you can't put me on trial for something that's not a crime in my country article two treaties quote conduct which constitutes an offen punishable by both contra countries right yes that's that's the provision you're relying on it says that it doesn't say criminals that say elements of a criminal statute says conduct which constitutes an  facts don't focus on the conduct focus on whether the crime that the united the federal code call felony murder can be found on the books of the canadian that's your argument right yes you are and the treaty says conduct doesn't say what's in the criminal code well the case law says criminality and that is a dual criminality provision and i replaced in the earlier version of the treaty he replaced a list of extraditable offenses and that gets back to another argument that i've tried to make is the difference between a crime which is a mens rea and an actor so the acts that we're talking about are just an act this race and the problem that the canadian supreme court had the bail in court case which is in the appendix the problem they had with felony murder it's not that they didn't have a felony murder law is that they used to have a felony murder law and then they said well we can't do this anymore because there's no mens rea and it doesn't make any sense so there's a very solid case law in canada and we had an expert testify for mr graham who claims that he has appeared twenty five times before the canadian supreme court of justice the opposing counsel did not provide expert testimony on the canadian law at all to this kind of conduct aren't you well i have to to compare it to the u s law i have to show that these two laws are substantially analogous that's what dual criminality requires so we have to was a one page document that the opposing counsel included as an addendum to their briefs and they got the canadian the south dakota prosecutors got the canadian prosecutors to agree to this but that bypassed the canadian judiciary so i don't think we can just talk about the mccain case but the alvarez mccain case discussed that's a rendition case with an extradition treaty so that's a very strange case because there was an ex through an extradition treaty and they found that the treaty doesn't i don't know your honor offhand because i don't think specialty is an important issue in this case i thought that the key decision that this court should follow are the lane or versus turner case in the u s versus theory on case and those cases say that a and then it went on to say the defendant could raise an argument that the asylum country could have raised that it was outside the scope of the treaty but even if you're correct that  operative extraditing order yes but that's only for premeditated murder and that he was tried for premeditated murder and acquitted he was acquitted but there's no question it's not the go to court said jurisdiction to conduct this prosecution under the colors the court had jurisdiction by reason of the extraditing order at least to conduct a pretend premeditated murder now if the prosecutor if the local prosecutor says and i want to charge him with rape to the court may be required by rusher to say no i i read i dismiss that charge it's not consistent with a treat i don't know your honor if a court if a judge asked me where is my jurisdiction what i said outset is the operative word the extraditing order that he never returned after that order was issue more than plausible for the supreme court to rule that way and survive the review on a plausible standard your honor or i you know the language yes your honor the to be second guessed and abuse i'm not sure that that's in the record that this court is looking at but the district judge sided with us on that he just went the same way that your honor is going thinking that crimin and i think that i'd like to reserve the balance of my time for any questions because there's a few issues that we haven't really gotten to yet and i'd like to know my time's up also if i have a red light in front of me please the court counsel it's well understood that federal courts are courts of limited jurisdiction they have only the jurisdiction converged by the constitution or statute and he graham claims that the u s can of extradition treaty is a law the land with the same force and effect as a federal statute but assuming that to be true it would simply begs the question of what section of the treaty authorizes a state or federal court to hear his standing claim graham's brief points to know that that's not a provision of the treaty your honor they are the only or that's when the united case gives graham standing and that's really the issue here there's not one once no we have to interpret rauscher gives somebody standing to challenge the united states violation extraditing country in this case canada to hear challenges to the specialty or dual criminality determinations of canada's law enforcement or diplomatic personnel once surrendered the extradite t is not allowed to have the court of the prosecuting country second guess or over rule in this case canada's determinations of its own law or even if it decides it doesn't want to extradite on any legal principle they just want to extradite for diplomatic reasons it doesn't have to have a reason canada doesn't have to have a reason if it just simply decides to consent to extradition any second guessing by a united states court of canada's determination is the sort of the diplomatic equivalent of looking at gift horse in the mouth authorities refute graham's central response of assertion here that criminality confers in some way some standing that specialty doesn't both doctrines are by products of extradition orders create canada didn't have to have a reason to pick him out of the country but in fact extradited him under the treaty says the right that is the vehicle by which the order was was entered for extradition correct the treaty yes and violation of south dakota codified law twenty two sixteen for this act of the canadian judiciary we can ignore it doesn't have to be an act of the canadian just your what i don't think you have any case this unusual situation either because right because there is no law that is that this that the south dakota supreme court's decision is contrary to or violation of that would require overturning it standing determination without the specially document the prosecution was inconsistent with the extraditing order the extraditing order has no force in effect what has the force in effect here is the ultimate determination by the minister of justice that they were going to extradite graham for the reason prosecution there wouldn't have been there you'd say there's no standing under rauscher to and to invoke you can't do that i would say that's exactly the circumstance where rauscher would grandstanding if canada then subsequently objected to the addition of the new charge now here there was no new charge added objection there has to be a some some kind of objection from canada yes that hey wait a minute we didn't extradite him for this reason we extradite him for the as the general conduct is covered and the canadians application of the law there and here right the justice or the executive or whatever it is  who said we go ahead and do it because we prosecute these kind of actions here as well exactly yes the minister of justice said even it frankly even if it wasn't a crime in canada the minister of justice could still say we're going to turn him over anyway so once they've done that can and does prosecute people i'm sure it's somewhere in the record but i can't give an appendix citation and i was i was tied to the federal indictment rightly or to the right on damon charge felony murder or just meditated it's premeditated and as my recollection of the earlier order may have said we disagree that this is an offense under criminality and the minister of justice could still step in and go we don't care as a matter of diplomacy we're turning him over anyway and that gets back to a point as well that mr graham never that in a canadian court right asking graham of challenge this can say he could have but he didn't you could there was a procedure available for he were there but he didn't do it and that's that's where that's where his remedy lies if anywhere  is in canada but he didn't avail himself that of that so his standing and since canada turned him over without objection on the charges for which he was tried he has no standing greater than canada and and at this stage the question is was the south dakota supreme court's decision saying that he had no standing an unreasonable application of clearly established federal law and that gets back to judge locums point with me where is the clearly established federal law there is none the only clearly established federal law is really the law clearly established within the circuit courts that he has no standing including in this court in the gener hers your honor we haven't touched on the concept of a self executing law yet treaties are self executing that's a very basic point in this case is that a extradition treaty is very unlike other treaties other treaties require implementing legislation an extra dition treaty is immediately a us law and is codify it in the us code at eighteen us code thirteen eighty one so should be enforced by this court issued in the court shouldn't just simply rely on the canadian government does this diplomat or political branch can make a decision like the political question doctrine and say nope this is a political issue we're not going we're going to give this person to the u s we're not going to treat it as a legal issue he was extradited we use extradited you're saying that what happened after he was extradited doesn't comply with canadian law so american law wouldn't be applicable but the  canadian minister says he's their earnings your do with him as you see fit i think that's a fair assessment your honor and i know argument is simply that this is a law in my client can enforce his rights under the law and this is the form where he is this is the court that has jurisdiction over him he had no opportunity to do this in canada all this that happened with the premeditated murder occurred after he was already extradited thank you thank you counsel very unusual interesting issues and they've been nicely argued and will take an wondered buys me