FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR JOHN PATTERSON,

Petitioner-Appellant,

v.

BARBARA WAGNER, Warden,

Respondent-Appellee.

No. 13-56080

D.C. No.

2:12-cv-09960-ODW

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright II, District Judge, Presiding

Argued and Submitted

November 21, 2014—Pasadena, California

Filed May 4, 2015

Before: William A. Fletcher and Jay S. Bybee, Circuit

Judges, and David A. Ezra, District Judge.*

Opinion by Judge W. Fletcher

* The Honorable David A. Ezra, District Judge for the U.S. District

Court for the Western District of Texas, sitting by designation.
2 PATTERSON V. WAGNER

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s dismissal of Arthur

Patterson’s habeas corpus petition challenging a magistrate

judge’s order certifying him for extradition to South Korea

for prosecution for murder.

Patterson argued that his extradition would violate the

1998 extradition treaty between the United States and South

Korea because his prosecution would be barred by the statute

of limitations in the United States, and thus would violate the

treaty’s lapse-of-time provision. The panel held that the

treaty’s lapse-of-time provision, which states that extradition

“may be denied” when the prosecution would have been

barred by the statute of limitations in the United States, does

not impose a mandatory bar to extradition.

Patterson also argued that his extradition would violate

the double-jeopardy provision of the Status of Forces

Agreement (SOFA) governing American military personnel,

and their dependents, in South Korea. The panel disagreed

with the premise that rights conferred by the SOFA may be

enforced by the judiciary to block extradition.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PATTERSON V. WAGNER 3

COUNSEL

Craig Anthony Harbaugh (argued), Isaacs/Friedberg, LLP,

Los Angeles, California, for Petitioner-Appellant.

Nancy Spiegel (argued), Assistant United States Attorney,

Los Angeles, California, for Respondent-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

As a teenager, Arthur Patterson was convicted in a South

Korean court of destroying evidence in connection with a

murder. After serving his prison term, Patterson left Korea

for the United States. The South Korean government now

seeks to prosecute him for the murder itself and requests that

the United States extradite him. Over Patterson’s objections,

a magistrate judge certified him for extradition. Patterson

filed a petition for a writ of habeas corpus to challenge the

certification order. The district court denied Patterson’s

petition.

Patterson argues that his extradition would violate (1) the

extradition treaty between the United States and South Korea

and (2) the Status of Forces Agreement governing American

military personnel and their dependents in South Korea. We

conclude that neither the treaty nor the agreement bars

extradition. We therefore affirm.
4 PATTERSON V. WAGNER

I. Background

In 1997, Arthur Patterson, a seventeen-year-old son of an

American serviceman stationed in South Korea, was involved

in some manner in the murder of a Korean college student,

Cho Joong-pil, in a Burger King restroom in Seoul. Patterson

and his friend Edward Lee followed Cho into the restroom

and came out covered in blood. Afterwards, each accused the

other of having stabbed Cho. Almost twenty years later,

South Korea seeks to prosecute Patterson for murder. Its

extradition request alleges that Cho was stabbed with

Patterson’s knife, that Patterson threw the knife in a sewer

after the stabbing, and that two of Patterson’s friends have

stated that Patterson told them that he killed Cho.

In the immediate aftermath of the murder, South Korean

authorities accepted Patterson’s claim that Lee, not Patterson,

was the murderer. They prosecuted Lee for murder and

Patterson for destruction of evidence. Patterson was

convicted of destruction of evidence and served slightlymore

than a year in prison. In 1999, after his release from prison,

Patterson left South Korea for the United States. Lee was

convicted of murder, but his conviction was overturned on

appeal. The South Korean government prosecuted Lee again,

and he was acquitted.

In 2009, South Korean prosecutors obtained a warrant for

Patterson’s arrest and sent an extradition request to the United

States government. In 2011, the U.S. government sought and

obtained an arrest warrant and arrested Patterson. The

government then filed a complaint in federal district court

seeking Patterson’s extradition to South Korea. Patterson

opposed extradition. He argued that because the murder

occurred in 1997, and because he had already been tried and
PATTERSON V. WAGNER 5

convicted of a crime related to the murder, two international

agreements bar extradition for the prosecution South Korea

now seeks to bring.

A magistrate judge rejected Patterson’s arguments and

certified him for extradition. Patterson then filed a petition

for a writ of habeas corpus. The district court denied the

petition, and Patterson timely appealed.

II. Discussion

A. Extradition

A state party to an extradition treaty ordinarily must

comply with a request of another state party to arrest and

deliver a person sought by that state for criminal prosecution. 

See Restatement (Third) of the Foreign Relations Law of the

United States § 478 (1987 & 2014 Supp.). Extradition rests

on the premise that “[a]ll nations have a common interest in

the repression of crime.” 1 John Bassett Moore, A Treatise

on Extradition and Interstate Rendition § 3 (1891).

“[E]xtradition is a diplomatic process carried out through

the powers of the executive, not the judicial, branch.” 

Blaxland v. Commonwealth Dir. of Pub. Prosecutions,

323 F.3d 1198, 1207 (9th Cir. 2003). Under the federal

extradition statute, 18 U.S.C. § 3184, the country seeking

extradition must first file a request with the State Department. 

Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). “After the

request has been evaluated by the State Department to

determine whether it is within the scope of the relevant

extradition treaty, a United States Attorney, if so instructed,

files a complaint in federal district court seeking an arrest
6 PATTERSON V. WAGNER

warrant for the person sought to be extradited.” Blaxland,

323 F.3d at 1207.

After the United States has sought an arrest warrant for

the person to be extradited (known as the “relator”), a federal

or state judicial officer must hold a hearing to determine

whether to certify the relator for extradition. 18 U.S.C. §

3184. The role of the judge is “very limited.” Vo, 447 F.3d

at 1237. The judge must determine whether there is

“‘evidence sufficient to sustain the charge under the

provisions of the proper treaty or convention,’ or, in other

words, whether there is probable cause.” Id. (quoting

18 U.S.C. § 3184) (citation omitted). If the judge determines

that there is probable cause, he or she “is required to certify

the individual as extraditable to the Secretary of State.” 

Blaxland, 323 F.3d at 1208. The Secretary then decides, in

the exercise of his or her discretion, whether to extradite the

relator to the requesting country. Vo, 447 F.3d at 1237.

“The authority of a . . . judge serving as an extradition

judicial officer is . . . limited to determining an individual’s

eligibility to be extradited . . . .” Id. As part of the

determination of eligibility for extradition, “the district or

magistrate judge must . . . assess whether any of the

applicable treaty provisions bar extradition of the alien for

any of the charged offenses.” Barapind v. Reno, 225 F.3d

1100, 1105 (9th Cir. 2000). Because an extradition

certification is not a final order subject to appellate review,

judicial review of the decision of the extradition judge is by

habeas corpus. Prasoprat v. Benov, 421 F.3d 1009, 1013 (9th

Cir. 2005). Our review of the district court’s interpretation of

the relevant international agreements is de novo. Kamrin v.

United States, 725 F.2d 1225, 1227 (9th Cir. 1984).
PATTERSON V. WAGNER 7

B. Potential Bars to Extradition

Patterson argues that two agreements between the United

States and South Korea bar his extradition. First, he argues

that his extradition would violate the extradition treaty

between the two countries because his prosecution for murder

would be barred by the statute of limitations in the United

States, and thus would violate the treaty’s lapse-of-time

provision. Second, he argues that his extradition would

violate the double-jeopardy provision of the Status of Forces

Agreement governing American military personnel, and their

dependents, in South Korea. We address each argument in

turn.

1. Extradition Treaty

Patterson first argues that the 1998 extradition treaty

between the United States and South Korea prohibits his

extradition because his prosecution would be untimely. The

question is whether the treaty’s lapse-of-time provision,

which states that extradition “may be denied” when the

prosecution would have been barred by the relevant statute of

limitations in the United States, imposes a mandatory bar to

extradition. We conclude that it does not impose a mandatory

bar.

Article 6 of the extradition treaty between the United

States and South Korea provides, in part:

Lapse of Time

Extradition may be denied under this Treaty

when the prosecution or the execution of

punishment of the offense for which
8 PATTERSON V. WAGNER

extradition is requested would have been

barred because of the statute of limitations of

the Requested State had the same offense

been committed in the Requested State.

Extradition Treaty, U.S.-S. Kor., art. VI, June 9, 1998,

T.I.A.S. No. 12,962 (“Treaty”) (emphasis added). That is, if

a person cannot be prosecuted for a crime in the United States

because the relevant statute of limitations has expired,

extradition to South Korea for that crime “may be denied.” 

Id.

The parties agree that Patterson has been certified for

extradition for a crime for which he cannot now be

prosecuted in the United States. The magistrate judge

certified Patterson for extradition only for second-degree

murder, concluding that the evidence did not support a

finding of probable cause for premeditated murder. The

magistrate judge then applied the five-year federal statute of

limitations for second-degree murder, see 18 U.S.C. §

3282(a), for the purpose of addressing the lapse-of-time

provision of Article 6. The government challenges neither

the finding of probable cause nor the application of the

federal statute of limitations. However, the government

contends that the lapse-of-time provision of Article 6 is not

judicially enforceable.

We begin with the text of the treaty. Medellin v. Texas,

552 U.S. 491, 506 (2008) (“The interpretation of a treaty, like

the interpretation of a statute, begins with its text.”). Article

6 provides, “Extradition may be denied.” Treaty, art. VI

(emphasis added). The normal reading of “may” is

permissive, not mandatory. The most natural reading of

Article 6, therefore, is that untimeliness is a discretionary
PATTERSON V. WAGNER 9

factor for the Secretary of State to consider in deciding

whether to grant extradition. That is, the Secretary “may”

decline to extradite someone whose prosecution would be

time-barred in the United States, but he or she is not required

to do so. Under this reading, there is no mandatory duty that

a court may enforce. Cf. Trinidad y Garcia v. Thomas,

683 F.3d 952, 960 (9th Cir. 2012) (en banc) (Thomas, J.,

concurring) (“[I]t is the Secretary’s role, not the courts’, to

determine whether extradition should be denied on

humanitarian grounds . . . .” (internal quotation marks

omitted)).

This reading of Article 6 is consistent with our decision

in Vo. In that case, Vo was arrested in the United States for

bombing the Vietnamese embassy in Thailand. 447 F.3d at

1238–39. When Thailand sought to extradite him, Vo argued

that the relevant treaty barred his extradition. The treaty

stated that extradition “may be denied when the person sought

is being or has been proceeded against” (i.e., prosecuted) in

the extraditing country for a related crime. Id. at 1238

(emphasis added). We rejected Vo’s argument that the “maybe-denied” language barred the judge from certifying his

extradition, holding that the language meant that a proceeding

for a related crime was a discretionary factor to be considered

by the Secretary of State in deciding whether to extradite. Id.

at 1246. We wrote that, as a general matter,

[t]he two types of exception [i.e., mandatory

and discretionary] are characterized by

different language in extradition treaties. The

use of “shall” language in a treaty indicates a

provision constitutes a mandatory

exception. . . . The use of “may” language in
10 PATTERSON V. WAGNER

a treaty indicates a provision constitutes a

discretionary exception.

Id. at 1246 n.13.

Patterson contends that our reading of “may be denied” in

Vo does not apply to that same language in Article 6. 

Patterson argues that evidence from the treaty’s drafting and

negotiating history demonstrate that, despite the use of the

“may-be-denied” language, Article 6 was intended to be a

mandatory bar to untimely extradition requests. Patterson

further argues that the magistrate judge erred by ignoring this

evidence. We agree with Patterson that extra-textual

evidence is relevant to treaty interpretation, but we disagree

with him on the significance of that evidence in this case.

While “[t]he interpretation of a treaty . . . begins with its

text,” Medellin, 552 U.S. at 506, it does not end there. 

Because the purpose of treaty interpretation is to “give the

specific words of the treaty a meaning consistent with the

shared expectations of the contracting parties,” Air France v.

Saks, 470 U.S. 392, 399 (1985), courts — including our

Supreme Court — look to the executive branch’s

interpretation of the issue, the views of other contracting

states, and the treaty’s negotiation and drafting history in

order to ensure that their interpretation of the text is not

contradicted by other evidence of intent. See Abbott v.

Abbott, 560 U.S. 1, 15–20 (2010) (examining these factors

following its textual analysis); Medellin, 552 U.S. at 508–13

(same); see also Vo, 447 F.3d at 1246 n.13 (consulting a letter

of submittal from the Secretary of State).

In this case, the extra-textual evidence, considered as a

whole, reinforces the interpretation of Article 6 for which the
PATTERSON V. WAGNER 11

government argues. Patterson points to evidence that he

contends shows that both the Senate and the executive branch

understood Article 6 to impose a mandatory bar. But this

evidence falls short of establishing that either the Senate or

the executive branch understood the treaty in this way.

First, Patterson argues that the Senate Report

accompanying the treaty shows that the Senate understood

Article 6 to be mandatory. He points to the Report’s

summary, which states, “The Treaty with the Republic of

Korea precludes extradition of offenses barred by an

applicable statute of limitations.” S. Exec. Rep. No. 106-13,

at 5 (1999) (“Report”). Patterson argues that this language

shows that the lapse-of-time provision of Article 6 is

mandatory, not permissive. But the body of the Report calls

that reading into question. The more detailed technical

analysis of the treaty, contained in the body of the Report,

describes Article 6 in permissive terms, stating that

extradition “may be denied” and explaining that the Korean

and U.S. statutes of limitations operate so differently that

“this provision could be very difficult to implement.” Id. at

14. The technical analysis points to three extradition treaties

that have what it characterizes as “similar provisions.” Id.

Tellingly, two of those treaties use the word “shall,” and one

uses the word “may.” Compare Extradition Treaty, U.S.-Fr.,

art. 9(1), Apr. 23, 1996, S. Treaty Doc. No. 105-13 (“shall”),

and Extradition Treaty, U.S.-Japan, art. IV(3), Mar. 3, 1978,

31 U.S.T. 892 (“shall”), with Extradition Treaty, U.S.-Lux.,

art. 2(6), Oct. 1, 1996, S. Treaty Doc. No. 105-10 (“may”). 

When parties to a treaty intend to make an exception to

extradition mandatory, in other words, they know how to

state that it “shall” apply.
12 PATTERSON V. WAGNER

Second, Patterson argues that the hearings on the treaty

show that the Senate understood Article 6 to be mandatory. 

He points to an exchange between Senator Rod Grams and

John Harris, the Acting Director of the Office of International

Affairs at the Department of Justice, during the Senate

hearing. But to the extent the exchange supports either

reading of Article 6, it only weakly supports Patterson’s

contention that the Senate understood the provision to be

mandatory, and it shows fairly clearly that the executive

branch understood it to be permissive. The exchange is as

follows:

SENATOR GRAMS:

Article 6 of the proposed treaty bars

extradition in cases where the law of the

requested State would have barred the

crime due to a statute of limitations

having run out.

. . .

So the question is are you confident

that this article of the treaty adequately

insures that fugitives cannot simply run

out the clock by fleeing to Korea?

MR. HARRIS:

Senator, this article of the treaty was the

subject of considerable negotiation. As

you may recall, of the treaties that were

before the Senate last fall, most of them

had slightly different language. Many of
PATTERSON V. WAGNER 13

our most modern extradition treaties flatly

state that the statute of limitations of the

requesting State will apply.

We have a few in which it was not

possible to reach that resolution. In this

case, because of the specific provisions of

Korean law, we did agree that the statute

of limitations of the requested State would

apply. But, as you have indicated, the

specific language in the article is crafted

so that those factors which toll the statute

of limitations under the law of the

requesting State would be given weight.

Report at 37 (emphasis added).

The import of the italicized portion of Senator Grams’s

question is not clear. Senator Grams may have thought that

Article 6 was a mandatory bar, as indicated in the italicized

words, but he may have been speaking imprecisely. But even

if Senator Grams was speaking precisely, he may have

considered himself to have been informed to the contrary, and

persuaded and corrected, by Mr. Harris’s answer. And even

if he was speaking precisely, and even if he did not change

his view after hearing Mr. Harris’s answer, Senator Grams

was not speaking for the full Senate. By contrast, the import

of Mr. Harris’s words, given on behalf of the executive

branch, is fairly clear. He stated that Article 6 was the subject

of “considerable negotiation,” and that the “specific language

in the article is crafted” to give “weight” to a statute of

limitations determination. Id.
14 PATTERSON V. WAGNER

Additional evidence of the executive branch’s

interpretation of Article 6 shows that the executive branch has

interpreted Article 6 to grant discretion to the government to

which the extradition request is made. The State

Department’s official submittal letter,which accompanied the

treaty when President Clinton submitted it to the Senate,

described the treaty provisions. See S. Treaty Doc. No. 106-

2, at v (1999). In that letter, Deputy Secretary of State Strobe

Talbott explained that “Article 6 permits extradition to be

denied” when the prosecution would be untimely. Id. at vii

(emphasis added). The submittal letter’s use of the word

“permits” rather than “requires” indicates that the executive

branch believed that Article 6 was permissive rather than

mandatory.

Taken as a whole, the extra-textual evidence reinforces

the natural reading of Article 6. Under that reading, the

Secretary of State may choose, in his or her discretion,

whether to grant or deny extradition in a case where the

statute of limitations in the United States has expired. 

Federal courts thus have no authority under Article 6 to

dictate to the Secretary of State what he or she must do in

such a case.

2. Status of Forces Agreement

Patterson next argues that the Status of Forces Agreement

(“SOFA”) governing American military personnel and their

dependents in South Korea prohibits his extradition. 

Specifically, he argues that his extradition to Korea would

expose him to double jeopardy in contravention of the SOFA,

and that the SOFA confers a judicially enforceable right not

to be extradited. The premise of Patterson’s argument is that
PATTERSON V. WAGNER 15

rights conferred by the SOFA may be enforced by the

judiciary to block extradition. We disagree with this premise.

The United States and South Korea entered into the SOFA

in 1966 pursuant to the mutual defense treatybetween the two

countries. Under the agreement, U.S. military personnel and

their dependents in Korea are entitled to enumerated rights,

including, as relevant here, the right “not [to] be prosecuted

or punished more than once for the same offense.” Facilities

and Areas and the Status of United States Armed Forces in

Korea, U.S.-S. Kor., July 9, 1966, 17 U.S.T. 1677, 1780

(“SOFA”). The parties agree that the SOFA applies to

Patterson, as he was the dependent of an American

serviceman stationed in South Korea at the time of the

murder.

Patterson argues that his prosecution in South Korea for

murder would violate the SOFA provision protecting against

double jeopardy. He argues that his conviction for

destruction of evidence required a finding by the South

Korean court in that proceeding that he did not commit the

murder for which extradition is now sought. This is so, he

argues, because the statute under which he was convicted

prohibits the destruction of evidence in connection with “a

criminal . . . case against another.” Criminal Act, Act No.

293, Sept. 18, 1953, art. 155(1), amended by Act No. 5057,

Dec. 29, 1995 (S. Kor.) (emphasis added). Thus, Patterson

argues, the South Korean court was required to find in his

earlier criminal trial that he was not the person who murdered

Cho.

We need not reach the question whether the SOFA

forbids Patterson’s prosecution for murder in South Korea. 

A threshold question is whether, even if the double jeopardy
16 PATTERSON V. WAGNER

provision of SOFA forbids the prosecution, we can enforce

that provision by blocking his extradition. We conclude that

the answer to this question is “no.”

For purposes of our decision, we assume that there is no

categorical prohibition against a federal statute, or a treaty or

other international agreement to which the United States is a

party, providing a basis for a judicial order blocking

extradition. Cf. Trinidad y Garcia, 683 F.3d at 956–57. But

it is clear that the SOFA is not such an international

agreement. We agree with the Seventh and D.C. Circuits that

a relator seeking to block extradition by relying on an

international agreement must show, at a minimum, that the

agreement upon which he relies establishes a judicially

enforceable right. See In re Burt, 737 F.2d 1477, 1487–88

(7th Cir. 1984); Holmes v. Laird, 459 F.2d 1211, 1222 (D.C.

Cir. 1972); cf. Edye v. Robertson (Head Money Cases),

112 U.S. 580, 598 (1884) (a treaty, though primarily “a

compact between independent nations,” may contain

“provisions which confer certain rights upon the citizens or

subjects of one of the nations . . . which are capable of

enforcement as between private parties in the courts of the

country”).

Though the SOFA appears to establish individual rights,

we conclude that they are not judicially enforceable. 

Confronted with a similar question regarding the NATO

status of forces agreement, the Seventh and D.C. Circuits

looked to whether the agreement established judicial or

diplomatic mechanisms for adjudicating disputes. Burt,

737 F.2d at 1487–88; Holmes, 459 F.2d at 1222. In Burt, the

Seventh Circuit held that recourse for a violation was

“diplomatic, not judicial,” and on that basis rejected the

relator’s petition for a writ of habeas corpus. 737 F.2d at
PATTERSON V. WAGNER 17

1488. Similarly, in Holmes, the D.C. Circuit held that

because the agreement required the parties to negotiate

disputes “relating to the interpretation or application of this

Agreement,” the “enforcement mechanism” for the assertion

of individual rights under the agreement was “diplomatic

recourse only.” 459 F.2d at 1222.

Here, as in Burt and Holmes, the U.S.-Korea SOFA

establishes diplomatic procedures for resolution of matters

arising under its provisions. It provides that “[a] Joint

Committee shall be established as the means for consultation

between [the United States and South Korea] on all matters

requiring mutual consultation regarding the implementation

of this Agreement except where otherwise provided.” SOFA

at 1704. Amendments adopted in 2001 specify a procedure

by which the Joint Committee’s jurisdiction is invoked: the

state parties have ten days to resolve any complaint at the

local level; the matter is then referred the Joint Committee,

which has 21 days to resolve it; if the Committee cannot do

so, the matter is referred to the two governments. Facilities

and Areas and the Status of United States Armed Forces,

U.S.-S. Kor., art. XXII, ¶¶ 5(c), 9, Jan. 18, 2001, T.I.A.S. No.

13,138. Like the NATO agreement, the SOFA establishes an

enforcement mechanism that is “diplomatic, not judicial.” 

Burt, 737 F.2d at 1488.

The SOFA’s provisions thus establish a diplomatic

conflict resolution scheme with no role for the judiciary. 

Even if prosecution of Patterson for murder violates the

SOFA’s provision protecting against double jeopardy (a

question we do not decide), that provision does not provide

a basis for a court to bar his extradition.
18 PATTERSON V. WAGNER

Conclusion

Because neither the treaty nor the SOFA provides a basis

for a court to bar Patterson’s extradition, the magistrate judge

did not err in certifying him for extradition to South Korea,

and the district court did not err in denying his petition for a

writ of habeas corpus. Our decision does not foreclose

Patterson from seeking relief from the Secretary of State. We

hold only that neither the treaty nor the SOFA provides a

basis for judicial relief.

AFFIRMED.