FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAHAWWUR HUSSAIN RANA,

Petitioner - Appellant,

v.

W.Z. JENKINS II,

Respondent - Appellee.

No. 23-1827

D.C. No.

2:23-cv-04223-

DSF

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted June 5, 2024

Pasadena, California

Filed August 15, 2024

Before: MILAN D. SMITH, JR. and BRIDGET S. BADE, 

Circuit Judges, and SIDNEY A. FITZWATER, District 

Judge.*

Opinion by Judge Milan D. Smith, Jr.

* The Honorable Sidney A. Fitzwater, United States District Judge for 

the Northern District of Texas, sitting by designation.
2 RANA V. JENKINS

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s denial of 

Tahawwur Hussain Rana’s 28 U.S.C. § 2241 habeas corpus 

petition challenging a magistrate judge’s certification of 

Rana as extraditable to India for his alleged participation in 

terrorist attacks in Mumbai.

Under the limited scope of habeas review of an 

extradition order, the panel held that Rana’s alleged offense 

fell within the terms of the extradition treaty between the 

United States and India, which included a Non Bis in Idem 

(double jeopardy) exception to extraditability “when the 

person sought has been convicted or acquitted in the 

Requested State for the offense for which extradition is 

requested.” Relying on the plain text of the treaty, the State 

Department’s technical analysis, and persuasive case law of 

other circuits, the panel held that the word “offense” refers 

to a charged crime, rather than underlying acts, and requires 

an analysis of the elements of each crime. The panel 

concluded that a coconspirator’s plea agreement did not 

compel a different result. The panel held that the Non Bis in 

Idem exception did not apply because the Indian charges 

contained distinct elements from the crimes for which Rana 

was acquitted in the United States.

The panel also held that India provided sufficient 

competent evidence to support the magistrate judge’s 

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

been prepared by court staff for the convenience of the reader.
RANA V. JENKINS 3

finding of probable cause that Rana committed the charged 

crimes.

COUNSEL

John D. Cline (argued), Law Office of John D. Cline, Seattle, 

Washington; Jennifer L. Williams, Summa LLP, South 

Pasadena, California; for Petitioner-Appellant.

Bram M. Alden (argued), Assistant United States Attorney 

Chief, Criminal Appeals Section; David R. Friedman and 

John J. Lulejian, Assistant United States Attorneys; E. 

Martin Estrada, United States Attorney; Department of 

Justice, Office of the United States Attorney, Los Angeles, 

California; Kerry A. Monaco, Trial Attorney; Rebecca A. 

Haciski, Associate Director; Office of International Affairs; 

Bruce C. Swartz, Deputy Assistant Attorney General; Nicole 

M. Argentieri, Acting Assistant Attorney General, Criminal 

Division; United States Department of Justice, Washington, 

D.C.; for Respondent-Appellee.

OPINION

M. SMITH, Circuit Judge:

Tahawwur Hussain Rana, a Pakistani national, was tried 

in a United States district court on charges related to his 

support for a terrorist organization that carried out largescale terrorist attacks in Mumbai, India. A jury convicted 

Rana of providing material support to a foreign terrorist 

organization and conspiring to provide material support to a 

foiled plot to carry out terrorist attacks in Denmark. 
4 RANA V. JENKINS

However, the jury acquitted Rana of conspiring to provide 

material support to terrorism related to the attacks in India. 

After Rana served seven years in prison for those 

convictions and upon his compassionate release, India 

issued a request for his extradition to try him for his alleged 

participation in the Mumbai attacks. 

Before the magistrate judge who initially decided Rana’s 

extraditability (the extradition court), Rana argued that the 

United States’ extradition treaty with India protected him 

from extradition because of its Non Bis in Idem (double 

jeopardy) provision. He also argued that India did not 

provide sufficient evidence to demonstrate probable cause 

that he committed the charged crimes. The extradition court 

rejected Rana’s arguments and certified that he was 

extraditable. After Rana raised the same arguments in a 

habeas petition in district court (the habeas court), the habeas 

court affirmed the extradition court’s findings of facts and 

conclusions of law. This appeal timely followed, with Rana 

raising both his Non Bis in Idem and probable cause 

arguments. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background 

Rana and David Coleman Headley were childhood 

friends. 1 In adulthood, Rana deserted his post in the 

Pakistani army and moved to Chicago, where he established 

an immigration business. For his part, Headley started 

trafficking heroin, ultimately radicalized, and attended 

1 We recount these facts based on testimony and evidence before the 

extradition court, including testimony and evidence presented in Rana’s 

criminal trial in the Northern District of Illinois. Rana disputes their 

accuracy, as outlined in Section II below. 
RANA V. JENKINS 5

training camps operated by the terrorist organization 

Lashkar-e-Tayyiba (Lashkar). According to Headley’s 

testimony, the pair met in Chicago multiple times over the 

course of three years, plotting to assist Lashkar in terrorist 

attacks that ultimately killed and injured hundreds of people. 

In August 2005, the pair met over several days in 

Chicago, where Headley told Rana about Lashkar’s plans for 

Headley to travel to public places and government facilities 

in India to conduct surveillance for a possible attack. 

Headley proposed using Rana’s immigration business as a 

front for Lashkar’s surveillance activities, with Headley 

posing as an “immigration consultant” for Rana in Mumbai. 

To sweeten the deal for Rana, Headley offered to help 

resolve Rana’s status as a deserter from the Pakistani army. 

In June 2006, Headley again met with Rana in Chicago, 

elaborating on his involvement with Lashkar. After agreeing 

to open a Mumbai branch of his immigration business, Rana 

helped Headley complete a successful application for an 

Indian business visa, which contained several inaccuracies. 

Headley used the visa to travel to India under the pretense of 

operating the Mumbai branch of Rana’s business. Although 

Headley rented an apartment, hired a secretary, and signed a 

lease for the branch, little to no immigration work occurred 

there. 

In July 2007, Headley stayed at Rana’s Chicago home, 

informed him about the surveillance he had conducted while 

in India, and showed Rana a video Headley had taken of the 

Taj Mahal Palace Hotel. Rana helped Headley secure a fiveyear multi-entry Indian visa. Utilizing that visa, Headley 

traveled to India multiple times between September 2007 

and March 2008, conducting further surveillance of potential 

targets. In May 2008, Headley informed Rana about the 
6 RANA V. JENKINS

surveillance he conducted in Mumbai, identifying possible 

attack targets, including the Taj Mahal Palace Hotel. 

In the fall of 2008, Headley warned Rana to avoid India, 

where attacks were imminent, and arranged for Rana to meet 

with one of their co-conspirators in Dubai. During a later 

intercepted conversation, Rana told Headley that their coconspirator in Dubai had confirmed the upcoming attacks. 

The lease on the Mumbai office expired in November 2008, 

and neither Rana nor Headley renewed it. 

Lashkar carried out massive terrorist attacks throughout 

Mumbai, including at the Taj Mahal Palace Hotel, between 

November 26 and 29, 2008. The attacks killed 166 people, 

injured 239, and resulted in more than $1.5 billion in 

property damage. Rana commended the terrorists who 

carried out the attacks and stated that the people of India 

“deserved it.” 

After the terrorist attacks in India were completed, 

Headley and Lashkar began plotting new, but ultimately 

unsuccessful, attacks in Denmark and India. Headley once 

again used the immigration business as a cover to conduct 

surveillance, this time in Denmark. Headley kept Rana 

apprised of his surveillance activities, and Rana 

communicated directly with Headley’s Lashkar contacts. 

II. Procedural Background

On October 3, 2009, United States law enforcement 

arrested Headley in Chicago. Headley pled guilty to twelve 

terrorism-related charges in the Northern District of Illinois, 

including multiple counts related to the Mumbai attacks and 

the foiled Denmark plot. Headley agreed to cooperate with 

the United States, and his plea agreement contained a nonextradition provision. 
RANA V. JENKINS 7

Law enforcement also arrested and indicted Rana on 

October 18, 2009. Rana was tried on three counts: 

conspiracy to provide material support to terrorism in India, 

18 U.S.C. § 2339A, conspiracy to provide material support 

to terrorism in Denmark, id., and providing material support 

to a foreign terrorist organization, id. § 2339B. Headley 

testified for the prosecution. On June 9, 2011, the jury 

convicted Rana of the terrorism conspiracy related to 

Denmark and providing material support to Lashkar but 

acquitted him of the terrorism conspiracy related to India. 

On January 17, 2013, the district court sentenced Rana to 14 

years in prison. After serving seven years of prison time, 

Rana’s motion for compassionate release was granted during 

the COVID-19 pandemic. 

While Rana was in United States custody, the Indian 

government charged Rana, accusing him of conspiring to 

plan and carry out the Mumbai attacks. On August 28, 2018, 

an Indian judge issued a warrant for Rana’s arrest on charges 

related to the attacks, including (1) conspiracy to (a) wage 

war, (b) commit murder, (c) commit forgery for the purpose 

of cheating, (d) use as genuine a forged document or 

electronic record, and (e) commit a terrorist attack; 

(2) waging war; (3) murder; and (4) committing a terrorist 

act.2 India subsequently requested Rana’s extradition. 

One day after Rana was granted compassionate release, 

the United States filed a complaint for his provisional arrest 

in response to India’s extradition request. On May 16, 2023, 

2 We have simplified the charges for the purposes of this opinion. Some 

of the charges, including conspiracy to wage war and conspiracy to 

commit a terrorist act, were brought as multiple charges under separate 

provisions of India’s Penal Code and Unlawful Activities Prevention 

Act. 
8 RANA V. JENKINS

the extradition court certified Rana’s extradition pursuant to 

18 U.S.C. § 3184 and rejected Rana’s claims that (1) his 

extradition to India was barred under the Non Bis in Idem 

provision of the Extradition Treaty Between the Government 

of the United States of America and the Government of the 

Republic of India (the Treaty) and (2) India’s evidence 

against Rana failed to establish probable cause that Rana 

committed the offenses for which the certification of 

extradition was sought. 

Rana sought collateral review in the habeas court by 

filing a petition pursuant to 28 U.S.C. § 2241. The habeas 

court rejected Rana’s same arguments, denying his petition 

on August 10, 2023. The habeas court, however, stayed 

Rana’s extradition pending this timely appeal. 

JURISDICTION AND STANDARD OF REVIEW

The extradition court had jurisdiction pursuant to 18 

U.S.C. § 3184. The habeas court had jurisdiction pursuant 

to 28 U.S.C. § 2241(a). We have jurisdiction pursuant to 28 

U.S.C. §§ 1291, 2253(a). 

“We review de novo the district court’s denial of a 

habeas petition in extradition proceedings.” United States v. 

Knotek, 925 F.3d 1118, 1124 (9th Cir. 2019). We evaluate 

“factual questions, as determined by the extradition 

magistrate judge, for clear error.” McKnight v. Torres, 563 

F.3d 890, 892 (9th Cir. 2009). 

“The scope of habeas review of an extradition order is 

severely limited.” Artukovic v. Rison, 784 F.2d 1354, 1355–

56 (9th Cir. 1986). We can review only “whether: (1) the 

extradition magistrate judge had jurisdiction over the 

individual sought, (2) the treaty was in force and the 

accused’s alleged offense fell within the treaty’s terms, and 
RANA V. JENKINS 9

(3) there is any competent evidence supporting the probable 

cause determination of the magistrate judge.” Knotek, 925 

F.3d at 1124 (citation, internal quotation marks, and 

alterations omitted). Rana challenges only the latter two 

issues, and we address them in turn.

ANALYSIS

I. Rana’s alleged offense fell within the Treaty’s terms. 

Article 1 of the Treaty states that the United States and 

India “agree to extradite to each other . . . persons who, by 

the authorities in the Requesting State are formally accused 

of, charged with or convicted of an extraditable offense 

. . . .” One exception is “when the person sought has been 

convicted or acquitted in the Requested State for the offense 

for which extradition is requested,” codified at Article 6(1). 

Rana argues that he cannot be extradited based on conduct 

for which he was acquitted in the United States because the 

word “offense” refers to underlying acts. The government 

argues that “offense” refers to a charged crime and requires 

an analysis of the elements of each charged crime. Thus, 

according to the government, the Treaty permits Rana’s 

extradition because the Indian charges contain distinct 

elements from the crimes for which he was acquitted in the 

United States. 

Treaty interpretation begins with the Treaty’s plain text, 

but we also consider its negotiations, drafting history, and 

post-ratification understanding of the signatory nations. 

Medellín v. Texas, 552 U.S. 491, 506–07 (2008). Here, the 

Treaty’s plain terms, the post-ratification understanding of 

the signatories, and persuasive precedent all support the 

government’s interpretation. Rana argues, however, that, 

based on the government’s interpretation of the Treaty in 

Headley’s plea agreement, we should judicially estop the 
10 RANA V. JENKINS

government from advocating for its current interpretation of 

the Treaty. We decline to do so. 

A. The plain text of the Treaty supports a meaning 

of “offense” that denotes a charged crime defined 

by its elements. 

The parties refer us to several provisions both within and 

outside the Treaty that assist us in interpreting Article 6(1): 

Article 6(2), Article 2, and the United States’ other 

extradition treaties. We address each source in turn. 

First, Article 6, when read as a whole, compels a reading 

of “offense” that requires comparing the elements of each 

country’s crimes. We begin with the text. 3 Article 6 

contains two provisions. Paragraph 1, the provision we are 

tasked with interpreting, states in full: “Extradition shall not 

be granted when the person sought has been convicted or 

acquitted in the Requested State for the offense for which 

extradition is requested.” (emphasis added). The subsequent 

provision, Paragraph 2, states: “Extradition shall not be 

precluded by the fact that the authorities in the Requested 

State have decided not to prosecute the person sought for the 

acts for which extradition is requested . . . .” (emphasis 

added). As is apparent, Paragraph 1 uses the word “offense,” 

while the very next provision uses the word “acts.” When 

treaties use differing language in parallel provisions, it 

“implies that the drafters of the [Treaty] understood the 

word[s] [] to mean something different . . . for they 

otherwise logically would have used the same word in each 

article.” Air France v. Saks, 470 U.S. 392, 398 (1985); 

3 The government points to Black’s Law Dictionary, which defines 

“offense” as a “violation of the law” or “crime.” Black’s Law Dictionary 

1300 (11th ed. 2019). This definition does not aid our inquiry because it 

begs the question of how we should compare similar crimes.
RANA V. JENKINS 11

Hosaka v. United Airlines, Inc., 305 F.3d 989, 995 (9th Cir. 

2002). Thus, the most natural reading of Paragraph 1 

compels a definition of “offense” that is distinct from “acts.” 

Because “acts” in Paragraph 2 refers to uncharged 

conduct, “offense” in Paragraph 1 must refer to something 

other than uncharged conduct. Rana argues that “acts” in 

Paragraph 2 means the same thing as “offense[s]” as used in 

Paragraph 1. This argument is unpersuasive. As Rana 

concedes in his reply brief, “Article 6(2) refers to instances 

where the requested state has declined to prosecute, meaning 

that the acts at issue may never have coalesced into an 

offense under the laws of that state.” We thus read “offense” 

as a charged crime, with elements, as distinct from 

uncharged “acts” or conduct.4 

Second, Rana points to Article 2’s dual criminality 

provision, which uses “offense” to refer to underlying 

conduct. Article 2 states that “[a]n offense shall be an 

extraditable offense if it is punishable under the laws in both 

Contracting States by deprivation of liberty, including 

imprisonment, for a period of more than one year or by a 

more severe penalty.” Binding Ninth Circuit precedent 

instructs that, for purposes of the dual criminality provision, 

“the elements of the analogous offenses need not be

identical.” Clarey v. Gregg, 138 F.3d 764, 766 (9th Cir. 

1998). Rana argues that because “offense” is used to refer 

4 Rana’s argument that similar treaties’ submittal letters refer to “acts” 

as “offenses” when explaining similar provisions does not cut in his 

favor. While it is possible (although unlikely) that “acts” and “offenses” 

are intended as synonyms in Article 6, that reading does not necessarily 

mean that they both refer to “conduct.” It is equally as likely that both 

words refer to crimes consisting of elements.
12 RANA V. JENKINS

to conduct in Article 2, it must also refer to conduct in Article 

6. 

While Rana is correct that typically “identical words 

used in different parts of the same act are intended to have 

the same meaning,” Sorenson v. Secretary of the Treasury, 

475 U.S. 851, 860 (1986), Article 2 contains limiting 

language. It instructs that “offense” is to be interpreted 

“[f]or the purposes of this Article” “whether or not the laws 

in the Contracting States place the offense within the same 

category of offenses or describe the offense by the same 

terminology.” In other words, the Treaty explicitly states 

that for the purposes of the dual criminality provision, 

whether the offenses in each state use the same terminology 

(or, in other words, elements) is irrelevant. See Knotek, 925 

F.3d at 1131 & n.12 (explaining that a similar provision in 

the extradition treaty with the Czech Republic incorporated 

the rule that, for the purposes of dual criminality, “[t]he 

elements of one offense ‘need not be identical to the 

elements of a similar offense in the United States’”). No 

such limiting language exists in Article 6. 

Moreover, despite Rana’s argument that “offense” 

consistently means “acts” in Article 2, multiple provisions 

seem to reference the elements of a crime when using 

“offense.” For example, Article 2, Paragraph 4 of the Treaty 

states: “Extradition shall be granted for an extraditable 

offense regardless of where the act or acts constituting the 

offense were committed.” The Treaty here acknowledges 

that various acts make up an offense. The contracting states 

could have drafted language requiring that extradition shall 

be granted for an extraditable offense “regardless of where 

the offense was committed,” but they did not. Further, 

Paragraph 2 of Article 2 states: “An offense shall also be an 

extraditable offense if it consists of an attempt or a 
RANA V. JENKINS 13

conspiracy to commit, aiding or abetting, counselling or 

procuring the commission of or being an accessory before or 

after the fact to, any offense described in paragraph 1.” 

Here, Article 2, Paragraph 2 refers to an offense as 

something that includes elements, such as aiding and 

abetting or conspiracy. 

Third, this interpretation is further supported by 

comparing treaties that specifically use the word “acts” in 

their Non Bis in Idem provisions. For example, the U.S. 

Extradition Treaty with Italy uses the word “acts” in its Non 

Bis in Idem provision, as did the 1971 Extradition Treaty 

between the United States and France. When the United 

States and France rewrote their extradition treaty in 1996, 

they changed the Non Bis in Idem provision to use the term 

“offense.” These examples demonstrate that, when the 

United States and its allies want to protect similar conduct

from being dually prosecuted in each nation, they use 

language to evince that intent. They did not do so here, and 

we see no reason to ignore the Treaty’s plain terms.

B. The State Department’s technical analysis 

supports an elements approach. 

The post-ratification understanding of the signatories 

confirms this reading. “It is well settled that the Executive 

Branch’s interpretation of a treaty ‘is entitled to great 

weight.’” Abbott v. Abbott, 560 U.S. 1, 15 (2010) (quoting 

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 

185 (1982)). Here, the United States Departments of State 

and Justice submitted a technical analysis to Congress based 

on their notes in negotiating the Treaty. The analysis states 

that Article 6, Paragraph 1 “applies only when the person 

sought has been convicted or acquitted in the Requested 

State of exactly the same crime that is charged in the 
14 RANA V. JENKINS

Requesting State. It is not enough that the same facts were 

involved.” (emphasis added). We give this interpretation 

substantial weight.5 

Prior to the Supreme Court's overruling of Chevron 

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984), see Loper Bright Enters. v. Raimondo, 144 

S. Ct. 2244 (2024), Rana argued that Chevron’s likely 

impending demise would undermine the precedent requiring 

us to defer to the Executive Branch’s interpretation of the 

Treaty. But because the logic underpinning Chevron 

deference is entirely distinct from the logic underpinning a 

deference to the Executive in matters of foreign affairs, see 

U.S. Const. art. II, § 2; Haig v. Agee, 453 U.S. 280, 293–94 

(1981) (“[T]he generally accepted view [is] that foreign 

policy was the province and responsibility of the 

Executive.”), Loper Bright has no effect on our decision 

here. 

Documents like a technical analysis help us understand 

the negotiators’ intent in creating a binding agreement with 

another nation. We defer to those documents because they 

state what the drafters meant when they wrote the treaties at 

issue. As we explained in Patterson v. Wagner, 785 F.3d 

1277 (9th Cir. 2015):

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, 

5 This interpretation is further supported by India’s similar reading of the 

Treaty. The Indian opinion that Rana claims the government overlooks 

is a dissenting opinion from the Indian Supreme Court and lacks the force 

of law. 
RANA V. JENKINS 15

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.

Id. at 1281–82 (internal citations omitted); see, e.g.,

Manrique v. Kolc, 65 F.4th 1037, 1043 (9th Cir. 2023) 

(utilizing technical analysis as “strong evidence” of the 

United States’ intent). 

On the other hand, Chevron deference relied primarily 

on an agency’s policy expertise, rather than its insight into 

Congress’s intent. See Chevron, 467 U.S. at 865–66 

(explaining that judges, who are not policy experts, should 

defer to an agency’s wise policy expertise). Loper Bright

held that this long-standing rationale was flawed because the 

Administrative Procedure Act’s (APA) mandate that 

reviewing courts determine “all relevant questions of law” 

means that courts must “exercise independent judgment in 

determining the meaning of statutory provisions.” 144 S. Ct. 

at 2262. This reasoning does not touch, let alone undermine, 

the principle that we are to give deference to the Executive 

Branch’s understanding of its own treaties.

Rana makes similar arguments based on his view that the 

Supreme Court is likely to also undermine Auer deference, 

as articulated in Auer v. Robbins, 519 U.S. 452 (1997). The 

Supreme Court rejected the opportunity to do so in Kisor v. 

Wilkie, 588 U.S. 558 (2019), and we have no reason to 

believe that the possibility of overruling Auer would 

materially affect this case in any way. Auer does not apply 

here because we are not reviewing an agency’s interpretation 
16 RANA V. JENKINS

of its own regulation. Based on Kisor, however, Rana argues 

that the State Department’s interpretation must reflect “fair 

and considered judgment.” Id. at 579.6 Even if Auer did 

apply, the State Department’s technical analysis need not 

“be supported with reasoning and analysis,” as Rana 

contends, because it is merely a recounting of the Executive 

Branch’s understanding of the treaty it negotiated. 

Rana refers us to Hill v. Norton, 275 F.3d 98 (D.C. Cir. 

2001), as persuasive authority that we need not defer to the 

Executive’s interpretation of treaties. In that case, the D.C. 

Circuit held that the failure of the Secretary of the Interior to 

include a certain bird species on a list of birds protected by 

the Migratory Bird Treaty Act was arbitrary and capricious 

under the APA. Id. at 99. That case, however, is distinct for 

two reasons. First, Hill involved review of post-ratification 

implementation of a treaty via regulations, not a technical 

analysis explaining the intent of the drafters. Id. The 

Secretary of the Interior’s regulations did not evince a preratification intent. Second, the Secretary’s implementing 

regulation contradicted the clear, unambiguous terms of the 

treaty, which is, as stated above, not the case here. See id. at 

106.

The plain meaning of the Treaty is supported by the 

Executive’s understanding of its terms at the time of 

drafting. We defer to that understanding. 

6 Rana also argues that we could only defer to the State Department’s 

interpretation of an ambiguous treaty. We come to our conclusion 

primarily based on the unambiguous plain text of the Treaty, so this 

argument makes no difference. 
RANA V. JENKINS 17

C. Persuasive case law supports an elements 

approach.

The Fourth Circuit considered a similar treaty provision 

in Zhenli Ye Gon v. Holt (Ye Gon), 774 F.3d 207 (4th Cir. 

2014), and required an elements-based analysis. The Non 

Bis in Idem provision there stated that the requested country 

shall not extradite a fugitive who “‘has been prosecuted or 

has been tried and convicted or acquitted’ in that country, if 

that prosecution or trial was ‘for the offense for which 

extradition is requested.’” Id. at 211. The Fourth Circuit 

interpreted “offense” to mean “the definition of the crime.” 

Id. at 215. 

The Fourth Circuit compared the Non Bis in Idem 

provision to the dual criminality provision of the treaty. Id. 

The dual criminality provision prevented extradition for 

crimes unless they were “wilful acts . . . punishable in 

accordance with the laws of both Contracting Parties.” Id. 

Because the dual criminality provision used the word “acts” 

and the Non Bis in Idem provision used the word 

“offense[s],” the Fourth Circuit held that “offenses” “must 

be something other than the acts underlying those offenses.” 

Id. The most natural reading of “offenses,” the Fourth 

Circuit explained, is the definition of the crime, supporting 

the double jeopardy approach outlined in Blockburger v. 

United States, 284 U.S. 299 (1932). Ye Gon, 774 F.3d at 

215. Although the dual criminality provision here also uses 

the word “offense,” it explicitly limits “offense” to mean 

conduct for that provision only. See Knotek, 925 F.3d at 

1131 n.12. Here, the word “acts” is used in the very next 

paragraph in Article 6, leading to an even stronger inference 

that “acts” and “offense[s]” have distinct definitions. See Air 

France, 470 U.S. at 398. 
18 RANA V. JENKINS

Similarly, the Eleventh Circuit in United States v. 

Duarte-Acero, 208 F.3d 1282 (11th Cir. 2000), read the 

word “offense” in a Non Bis in Idem provision to refer 

narrowly to criminal elements, as opposed to “[a] broader 

formulation[,] [which] would have used the word ‘act,’ 

‘action,’ or ‘conduct.’” Id. at 1286; see also United States v. 

Trabelsi, 845 F.3d 1181, 1193 (D.C. Cir. 2017) (Pillard, J., 

concurring in part and concurring in the judgment) 

(endorsing a Blockburger analysis in interpreting whether 

the same “offense” was prosecuted in each country). 

Rana also refers us to Sindona v. Grant, 619 F.2d 167 

(2d Cir. 1980), in which the Second Circuit interpreted 

“offense” to mean underlying conduct. That decision, 

however, is less persuasive for several reasons. First, the 

“same conduct” test in Sindona was, at least in part, based 

on a concurrence by Justice Brennan in Ashe v. Swenson, 397 

U.S. 436 (1970), which the Supreme Court eroded in United 

States v. Dixon, 509 U.S. 688, 704 (1993) (striking down the 

“same conduct” rule for double jeopardy analysis as “wholly 

inconsistent with earlier Supreme Court precedent and with 

the clear common-law understanding of double jeopardy”). 

See Ye Gon, 774 F.3d at 216–17. Second, Sindona relied on 

the policy of the Department of Justice not to try federal 

cases where a state has prosecuted “the same act or acts.” 

619 F.2d at 178 (citing Petite v. United States, 361 U.S. 529, 

530–31 (1960) (per curiam)). The internal DOJ Petite Policy 

has no bearing on what the word “offense” means in the 

Treaty, particularly where the policy does not use the word. 

See Ye Gon, 774 F.3d at 216. Finally, Sindona relied on the 

argument that a foreign country “could hardly be expected 

to be aware of Blockburger.” 619 F.2d at 178. While that 

may have been true in 1980, the Treaty was signed nearly 

twenty years later in 1997. Even if India were not aware of 
RANA V. JENKINS 19

Blockburger, our conclusion that “offense” and “acts” must 

have different meanings stands. Rana has offered no other 

non-elements-based definition of “offense” that would 

distinguish it from Article 6’s use of “acts” in Paragraph 2. 

Thus, nothing in Sindona persuades us that “offense” does 

not refer to a crime’s elements.7 

D. Headley’s plea agreement does not compel a 

different result. 

Rana contends that the government’s interpretation of 

Article 6 in Headley’s plea agreement demonstrates that 

“offense” refers to conduct rather than elements. Headley’s 

plea agreement states: “Pursuant to Article 6 of the 

Extradition Treaty . . . defendant shall not be extradited . . . 

7 Along similar lines, Rana suggests that the government’s interpretation 

of “offense” creates absurd results because there may be local or countryspecific elements included in a crime, such as an effect on interstate 

commerce. The plain language of the Treaty, however, suggests that this 

may be the intended result. In Article 2, Section 3(b), the Treaty states 

that for purposes of the dual criminality provision, an offense is 

extraditable “whether or not the offense is one for which United States 

federal law requires the showing of such matters as interstate 

transportation, or use of the mails or of other facilities affecting interstate 

or foreign commerce, such matters being merely for the purpose of 

establishing jurisdiction in a United States federal court[.]” The 

inclusion of this provision in Article 2 demonstrates that the drafters 

were aware of difficulties in comparing United States and Indian law but 

chose not to include such an exception in Article 6. 

In any event, neither of the terrorism conspiracies for which Rana was 

prosecuted under 18 U.S.C. § 2339A required proof of a local element. 

If, at an appropriate time, we determine it is necessary to carve out a 

jurisdictional-element exception to Blockburger to apply exclusively in 

extradition cases, we may do so. Cf. United States v. Hairston, 64 F.3d 

491, 496 (9th Cir. 1995). At this time, we take no stance on whether 

such an exception would be appropriate or necessary.
20 RANA V. JENKINS

for any offenses for which he has been convicted in 

accordance with this plea.” The next sentence states:

The defendant and the United States 

Attorney’s Office accordingly agree that, if 

defendant pleads guilty to and is convicted of 

all offenses set out in the Superseding 

Indictment, including Conspiracy to Bomb 

Places of Public Use in India (in violation of 

18 U.S.C. § 2332f(a)(2)) . . . then the 

defendant shall not be extradited to the 

Republic of India . . . for the foregoing 

offenses, including conduct within the scope 

of those offenses for which he has been 

convicted . . . (emphasis added).

Rana further points to statements made by U.S. Attorney 

Patrick J. Fitzgerald at Headley’s plea colloquy describing 

the above plea provision:

Your Honor, I think that is a summary of 

what is a paragraph that is very specific in 

Paragraph 9 of the agreement . . . . And that 

says if the conduct is conduct within the 

scope of those offenses for which he has been 

convicted in accordance with the plea, then 

according to the treaty, he would not be 

extradited. 

Taking the plea agreement by itself, the language does 

not obviously suggest that “offense” means “conduct.” The 

plea agreement specifies that, for purposes of the agreement, 

offense “include[s] conduct within the scope of those 

offenses,” thus suggesting that “offense” is not co-extensive 
RANA V. JENKINS 21

with “conduct” in every case. Additionally, the “pursuant to 

Article 6” language occurs only in the prior sentence, which 

refers exclusively to offenses. The plea agreement then goes 

on to list the “offenses” for which Headley had been 

indicted, all of which refer to specific statutory criminal 

violations. 

The U.S. Attorney’s comments are less clear. Although 

they do seem to suggest that he interpreted the plea 

agreement to employ a conduct-based test under the Treaty, 

Rana provides no case that suggests that a singular statement 

by a U.S. Attorney interpreting a plea agreement should 

control over both plain language in the Treaty and the 

earlier-in-time contemporaneous understanding of the State 

Department. 

Instead, Rana asks this court to judicially estop the 

Justice Department from changing positions between 

Headley’s and Rana’s proceedings. He also asks that, in the 

alternative, we remand to the district court for production 

and examination of internal Justice Department 

communications. A party is judicially estopped from 

making an argument “when 1) its current position is ‘clearly 

inconsistent’ with its previous position; 2) ‘the party has 

succeeded in persuading a court to accept that party’s earlier 

position’; and 3) the party, if not estopped, ‘would derive an 

unfair advantage or impose an unfair detriment on the 

opposing party.’” Perez v. Discover Bank, 74 F.4th 1003, 

1008 (9th Cir. 2023). 

We decline to estop the government here because, even 

if U.S. Attorney Fitzgerald’s statement was “clearly 

inconsistent” with the interpretation it now advances, it fails 

to meet the latter two prongs. First, the government did not 

persuade the district court to adopt its prior interpretation of 
22 RANA V. JENKINS

the Treaty; it merely asked the district court to approve a plea 

agreement that contained a provision that may have been 

broader than the Treaty. The district court did not explicitly 

accept any interpretation of the Treaty in approving the 

agreement. Second, Rana does not successfully articulate 

why the government would derive an unfair advantage from 

pursuing an interpretation of the Treaty that is supported by 

its plain language and technical analysis. Thus, we also 

decline to remand the case to the district court for production 

and examination of internal Justice Department 

communications. 

We conclude that “offense” in Article 6, Paragraph 1 

requires us to compare the elements of the crime for which 

Rana was acquitted in the United States with the elements of 

the crimes he is charged with in India. Because the parties 

do not dispute that the crimes charged in India have elements 

independent from those under which Rana was prosecuted 

in the United States, the Treaty permits Rana’s extradition. 

II. Competent evidence supports probable cause. 

Article 9.3(c) of the Treaty provides that a request for 

extradition must be supported by “such information as would 

justify the committal for trial of the person if the offense had 

been committed in the Requested State.” The parties agree 

that this standard requires India to provide information “that 

would be sufficient to establish probable cause” that Rana 

committed the alleged crime. Emami v. U.S. Dist. Court for 

N. Dist. of Cal., 834 F.2d 1444, 1447 (9th Cir. 1987). We 

must affirm the probable cause finding so long as “there was 

any evidence warranting the finding that there was 

reasonable ground to believe the accused guilty.” Manrique, 

65 F.4th at 1044.
RANA V. JENKINS 23

Rana attacks the credibility of Headley, who was the 

government’s main witness. Rana argues that the extradition 

court should have discounted Headley’s testimony because 

he (a) is a serial cooperator who returned to criminal activity, 

(b) “received training in manipulation and deception by the 

ISI, Pakistan’s intelligence service,” (c) initially denied 

Rana’s knowledge of Headley’s terrorist activities and then 

only disclosed Rana’s knowledge after Rana’s arrest, 

(d) used Rana for illegal activity without Rana’s knowledge, 

(e) deceived his multiple wives, (f) and told other unrelated 

falsehoods to his associates and a judge.

Questions concerning Headley’s credibility, however, 

are not properly before us. “An accused in an extradition 

hearing has no right . . . to pose questions of credibility as in 

an ordinary trial . . . .” Santos v. Thomas, 830 F.3d 987, 992 

(9th Cir. 2016) (en banc) (quoting Eain v. Wilkes, 641 F.2d 

504, 511 (7th Cir. 1981)). The only evidence an accused can 

introduce “is evidence that ‘explains away or completely 

obliterates probable cause.’” Id. (quoting Mainero v. 

Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir. 1999), superseded 

by statute on other grounds as recognized in Manrique, 65 

F.4th at 1044). Attacks on Headley’s credibility, while 

perhaps compelling to a jury, do not rise to the level of 

“complete[] obliterat[ion]” required to find a lack of 

probable cause. Id. In Barapind v. Enomoto, for example, 

our court sitting en banc rejected the accused’s proffer of a 

“significant” government witness’s complete recantation of 

his identification of the accused. 400 F.3d 744, 749–50 (9th 

Cir. 2005) (per curiam) (en banc). None of the attacks Rana 

proffers regarding Headley’s credibility comes anywhere 

close to a direct recantation of his testimony, and all of them 

would require evaluations of credibility best left for trial. 

See Santos, 830 F.3d at 992. 
24 RANA V. JENKINS

The government correctly notes that the cases to which 

Rana cites largely recite probable cause standards in the 

criminal context outside of extradition proceedings, see

Illinois v. Gates, 462 U.S. 213 (1983); United States v. 

Jensen, 425 F.3d 698 (9th Cir. 2005); United States v. 

Nielsen, 371 F.3d 574 (9th Cir. 2004), and it is unclear why 

those cases apply given the clear, recent precedent 

proscribing the consideration of impeachment evidence in 

extradition proceedings. Rana points to Choe v. Torres, 525

F.3d 733 (9th Cir. 2008), to support his argument that this 

court can consider a credibility challenge to undermine the 

extradition court’s probable cause finding, but that case did 

just the opposite. There, we rejected the petitioner’s 

credibility challenge: “Ho’s lack of credibility is merely a 

weakness in Korea’s case; it does not ‘completely 

obliterate[]’ the evidence of probable cause.” Id. at 740.8 

One district court case cited by Rana, In re Extradition 

of Ameen, 2021 WL 1564520, at *13 (E.D. Cal. Apr. 21, 

2021), relies on Quinn v. Robinson, 783 F.2d 776, 815 (9th 

Cir. 1986), for the proposition that the extradition magistrate 

judge may consider credibility evidence. Quinn makes clear, 

however, that our court may not consider credibility attacks 

on habeas review, even if an extradition magistrate judge 

may consider them. See id. We review Rana’s habeas 

petition here, so we may not consider Headley’s credibility. 

The other out-of-circuit district court case Rana cites, In re 

Mazur, 2007 WL 2122401 (N.D. Ill. July 20, 2007), is also 

clearly distinguishable. There, the court evaluated multiple 

statements surrounding the same event from an individual 

8 We do not consider the likelihood that Rana would die in jail or be 

unable to obtain legal representation in India. We must assume that Rana 

will face a fair trial. Glucksman v. Henkel, 221 U.S. 508, 512 (1911).
RANA V. JENKINS 25

witness. Id. at *21–22. The court rejected the witness’s 

statements because the story changed so substantially 

between statements that it was impossible to believe that the 

story was true and because the witness “admit[ted] that he 

lied under oath” and “that he essentially made up the 

connection between” the petitioner and the criminal activity. 

Id. Rana has not presented similar evidence here.9 Thus, no 

case Rana cites to supports the proposition that this court 

may consider credibility attacks in determining whether the 

extradition judge properly found probable cause. 

Rana’s arguments that the Pakistan Intelligence Service 

paid for the Mumbai office, and that Rana would not have 

checked Headley’s false visa application, rely exclusively on 

an attack on Headley’s credibility, so we reject them. The 

other evidence that Rana offers (apart from his attack on 

Headley’s credibility) does not help him. His arguments that 

(1) the Mumbai office did business, (2) the Mumbai office 

closed around the time of the attack for legitimate reasons, 

and (3) the warning about the impending attacks from 

Headley’s co-conspirator in Dubai disproves Rana’s earlier 

awareness of the attacks, do not upset the finding of probable 

cause. 

First, Rana presents evidence disproving that the 

“Mumbai office did no business,” but that ignores clear 

testimony from the business’s customers, stating that they 

never received the visas for which they paid, and its 

9 Rana argues that Headley’s initial refusal to implicate Rana is similar 

to Mazur, but the extradition court considered Headley’s explanation that 

he initially lied in an attempt to shield his childhood friend but ultimately 

offered up the evidence once he learned Rana was arrested. It is not in 

the province of our court, reviewing a habeas petition, to review that 

credibility determination. See Quinn, 783 F.2d at 815. 
26 RANA V. JENKINS

secretary, stating that “there [was] no business.” Second, 

Rana claims that the Mumbai office closing around the time 

of the attacks does not create an inference that the Mumbai 

office was a sham. Instead, Rana points to evidence that he 

was looking for ways to maintain his business presence in 

Mumbai. Even so, the evidence discussed above is sufficient 

to demonstrate probable cause that the Mumbai office was a 

sham. Finally, Rana argues that the fact that Headley sent a 

third party to warn Rana of the attacks disproves Rana’s 

involvement with the plot. This inference does not 

“obliterate” probable cause; an equally compelling inference 

could be drawn that Headley kept Rana informed of the 

plans. Competent evidence supports the extradition court’s 

finding of probable cause. 

CONCLUSION

The judgment of the district court is AFFIRMED.