Kin-Hong v. United States ( 1997 )

United States Court of Appeals
For the First Circuit
No. 97-1084
UNITED STATES OF AMERICA,
Appellant,
v.
LUI KIN-HONG, a/k/a JERRY LUI,
Appellee.
ERRATA SHEET
ERRATA SHEET
The opinion of the court is corrected as follows:
On p.10, l.18-19, replace "132 Cong. Rec. S9251 (1986)" with "132
Cong. Rec. 16,819 (1986)"
On p.10, n.6, replace "132 Cong. Rec. S9119 (1986)" with "132
Cong. Rec. 16,598 (1986)"
On p.11, l.12, replace "143 Cong. Rec. S1846 (1997)" with "143
Cong. Rec. S1846 (daily ed. Mar. 3, 1997)"
United States Court of Appeals
For the First Circuit
No. 97-1084
UNITED STATES OF AMERICA,
Appellant,
v.
LUI KIN-HONG, a/k/a JERRY LUI,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Alex Whiting, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, and Susan Hanson-Philbrick,
Assistant United States Attorney were on brief, for the United States.
Andrew Good, with whom Harvey A. Silverglate and Silverglate &
Good were on brief, for appellee.
Michael Posner and John Reinstein on brief for Lawyer's Committee
for Human Rights and American Civil Liberties Union of Massachusetts,
amici curiae in support of appellee.
March 20, 1997
LYNCH, Circuit Judge. The United States District
LYNCH, Circuit Judge
Court granted a writ of habeas corpus to Lui Kin-Hong
("Lui"), who sought the writ after a magistrate judge
certified to the Secretary of State that she may, in her
discretion, surrender Lui for extradition to the Crown Colony
of Hong Kong. The United Kingdom, on behalf of Hong Kong,
had sought Lui's extradition on a warrant for his arrest for
the crime of bribery. Lui's petition for habeas corpus was
premised on the fact that the reversion of Hong Kong to the
People's Republic of China will take place on July 1, 1997,
and it will be impossible for the Crown Colony to try and to
punish Lui before that date. The United States appeals. We
reverse the order of the district court granting the writ of
habeas corpus.
The United States argues that Lui is within the
literal terms of the extradition treaties between the United
States and the United Kingdom, that the courts may not vary
from the language of the treaties, and that the certification
must issue. Lui argues that the language of the treaties
does not permit extradition, an argument which is surely
wrong. Lui's more serious argument is that the Senate, in
approving the treaties, did not mean to permit extradition of
someone to be tried and punished by a government different
from the government which has given its assurances in the
treaties.
Lui does not claim that he faces prosecution in
Hong Kong on account of his race, religion, nationality, or
political opinion. He does not claim to be charged with a
political offense. The treaties give the courts a greater
role when such considerations are present. Here, Lui's
posture is that of one charged with an ordinary crime. His
claim is that to surrender him now to Hong Kong is, in
effect, to send him to trial and punishment in the People's
Republic of China. The Senate, in approving the treaties,
could not have intended such a result, he argues, and so the
court should interpret the treaties as being inapplicable to
his case. Absent a treaty permitting extradition, he argues,
he may not be extradited.
While Lis it persuasive. The Senate was well aware
of the reversion when it approved a supplementary treaty with
the United Kingdom in 1986. The Senate could easily have
sought language to address the reversion of Hong Kong if it
were concerned, but did not do so. The President has
recently executed a new treaty with the incoming government
of Hong Kong, containing the same guarantees that Lui points
to in the earlier treaties, and that treaty has been
submitted to the Senate. In addition, governments of our
treaty partners often change, sometimes by ballot, sometimes
by revolution or other means, and the possibility or even
certainty of such change does not itself excuse compliance
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with the terms of the agreement embodied in the treaties
between the countries. Treaties contain reciprocal benefits
and obligations. The United States benefits from the
treaties at issue and, under their terms, may seek
extradition to the date of reversion of those it wants for
criminal offenses.
Fundamental principles in our American democracy
limit the role of courts in certain matters, out of deference
to the powers allocated by the Constitution to the President
and to the Senate, particularly in the conduct of foreign
relations. Those separation of powers principles, well
rehearsed in extradition law, preclude us from rewriting the
treaties which the President and the Senate have approved.
The plain language of the treaties does not support Lui.
Under the treaties as written, the courts may not, on the
basis of the reversion, avoid certifying to the Secretary of
State that Lui may be extradited. The decision whether to
surrender Lui, in light of his arguments, is for the
Secretary of State to make.
This is not to say American courts acting under the
writ of habeas corpus, itself guaranteed in the Constitution,
have no independent role. There is the ultimate safeguard
that extradition proceedings before United States courts
comport with the Due Process Clause of the Constitution. On
the facg presenting a serious constitutional issue of denial
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of due process. Some future case may, on facts amounting to
a violation of constitutional guarantees, warrant judicial
intervention. This case does not.
I.
We repeat the facts essentially as we stated them
in our earlier opinion. United States v. Lui Kin-Hong, 83
F.3d 523 (1st Cir. 1996) (reversing district court's decision
to release Lui on bail).
Lui is charged in Hong Kong with conspiring to
receive and receiving over US $3 million in bribes from Giant
Island Ltd. ("GIL") or GIL's subsidiary, Wing Wah Company
("WWC"). Lui, formerly a senior officer of the Brown &
Williamson Co., was "seconded" in 1990 to its affiliated
company, the British American Tobacco Co. (Hong Kong) Ltd.
("BAT-HK"), where he became Director of Exports in 1992. The
charges result from an investigation by the Hong Kong
Independent Commission Against Corruption ("ICAC"). The Hong
Kong authorities charge that GIL and WWC, to which BAT-HK
distributed cigarettes, paid bribes in excess of HK $100
million (approximately US $14 to $15 million) to a series of
BAT-HK executives, including Lui. The bribes were allegedly
given in exchange for a virtual monopoly on the export of
certain brands of cigarettes to the People's Republic of
China ("PRC") and to Taiwan. Among the cigarettes
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distributed were the popular Brown & Williamson brands of
Kent, Viceroy, and Lucky Strike. GIL purchased three-
quarters of a billion dollars in cigarettes from 1991 to
1994, mostly from BAT-HK.
A former GIL shareholder, Chui To-Yan ("Chui"),
cooperated with the authorities and, it is said, would have
provided evidence of Lui's acceptance of bribes. Some of
Lui's alleged co-conspirators attempted to dissuade Chui from
cooperating. Chui was later abducted, tortured, and
murdered. The ICAC claims that the murder was committed to
stop Chui from testifying. Lui is not charged in the murder
conspiracy. Lui was in the Philippines (which has no
extradition treaty with Hong Kong) on a business trip when
the Hong Kong authorities unsuccessfully sought to question
him in April 1994. Lui has not returned to Hong Kong since
then.
At the request of the United Kingdom ("UK"), acting
on behalf of Hong Kong, United States marshals arrested Lui
as he got off a plane at Boston's Logan Airport on December
20, 1995. The arrest was for the purpose of extraditing Lui
to Hong Kong.1 The government asked that Lui be detained
pending completion of the extradition proceedings. The
1. The most recent warrant for Lui's arrest from the Hong
Kong authorities is dated February 5, 1996; there were
earlier warrants.
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magistrate judge, after a hearing, denied Lui's request to be
released on bail.
The district court, on April 25, 1996, reversed the
order of the magistrate judge and released Lui on bail and
conditions. Lui Kin-Hong v. United States, 926 F. Supp. 1180(D. Mass. 1996). The district court held that the reversion
of Hong Kong to the PRC on July 1, 1997, raised complex legal
issues that would result in protracted proceedings and
presented a "special circumstance" overriding the presumption
against bail. Id. at 1189. That court also found that there
were conditions of release that would adequately ensure Lui's
presence at future proceedings. Id. at 1196. This court
reversed the district court and, on May 14, 1996, ordered Lui
held pending the resolution of the extradition certification
issue. Lui, 83 F.3d at 525.
The magistrate judge commenced extradition hearings
on May 28, 1996. Those proceedings, during which evidence
was taken, lasted three days. The magistrate judge found
that there was probable cause to believe that Lui had
violated Hong Kong law on all but one of the charges in the
warrant.2 Magistrate Judge Karol, pursuant to 18 U.S.C.
3184, issued a careful decision certifying Lui's
extraditability on August 29, 1996. In re Extradition of Lui
2. The magistrate judge found the government had not met its
burden of showing probable cause as to Count 2, concerning a
payment of HK $1,953,260 made on or about October 21, 1988.
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Kin-Hong ("Lui Extradition"), 939 F. Supp. 934 (D. Mass.
1996). On September 3, 1996, Lui filed an amended petition
for a writ of habeas corpus, the only avenue by which a
fugitive sought for extradition (a "relator") may attack the
magistrate judge's decision,3 with the district court.
After a hearing, the district court issued a
memorandum and order granting the writ on January 7, 1997.
Lui Kin-Hong v. United States ("Lui Habeas"), --- F. Supp. --
-, 1997 WL 37477 (D. Mass. Jan. 7, 1997). The district
court reasoned that, because the Crown Colony could not try
Lui and punish him before the reversion date, the extradition
treaty between the United States and the UK, which is
applicable to Hong Kong, prohibited extradition. Id. at ---,
*4-*5. Because no extradition treaty between the United
States and the new government of Hong Kong has been confirmed
by the United States Senate, the district court reasoned, the
magistrate judge lacked jurisdiction to certify
extraditability. See id. at ---, *5-*11. The district court
denied the government's motion for reconsideration on January
13, 1997. This court then stayed the district court's order
and expedited the present appeal.
3. Due to the limited function of an extradition proceeding,
there is no direct appeal from a judicial officer's
certification of extraditability. See Collins v. Miller, 252
U.S. 364, 369-70 (1920). A habeas petition is therefore the
only mechanism by which a relator may seek review.
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At the time Lui was arrested in Boston in December
1995, more than eighteen months remained before the reversion
of Hong Kong to the PRC on July 1, 1997. The various
proceedings in our court system have now occupied fifteen of
those months, as the magistrate judge and district judge have
given careful consideration to the issues.
II.
The extradition request was made pursuant to the
Extradition Treaty Between the Government of the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland, June 8, 1972, 28 U.S.T.
227 (the "Treaty"), as amended by the Supplementary Treaty
Between the Government of the United States of America and
the Government of the United Kingdom of Great Britain and
Northern Ireland, June 25, 1985, T.I.A.S. No. 12050 (the
"Supplementary Treaty").4 The original Treaty was made
applicable to Hong Kong, among other British territories, by
an exchange of diplomatic notes on October 21, 1976. 28
U.S.T. at 238-41.5 The Supplementary Treaty is applicable to
4. We refer to the Treaty and the Supplementary Treaty as
"the Treaties."
5. By its terms, the Treaty applies to the UK, and, in
addition, to "any territory for the international relations
of which the United Kingdom is responsible and to which the
Treaty shall have been extended by agreement between the
Contracting Parties embodied in an Exchange of Notes."
Treaty, art. II(1)(a).
The Treaty permits either the UK or the United States,
upon six months written notice, to terminate the application
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Hong Kong by its terms. Supplementary Treaty, art. 6(a) &
Annex.
Hong Kong's status as a Crown Colony is coming to
an end on July 1, 1997, when Hong Kong is to be restored to
the PRC. The impending reversion, at the expiration of the
UK's ninety-nine year leasehold, was formally agreed upon by
the UK and the PRC in 1984; the United States was not a party
to this agreement. See Joint Declaration of the Government
of the United Kingdom of Great Britain and Northern Ireland
and the Government of the People's Republic of China on the
Question of Hong Kong, Dec. 19, 1984, ratified and entered
into force May 27, 1985, T.S. No. 26 (1985) (the "Joint
Declaration"). Under the terms of the Joint Declaration, the
PRC "declares" its "basic policies" with respect to Hong
Kong. Id. art. 3. The PRC states that it intends to
establish a "Hong Kong Special Administrative Region"
("HKSAR"), id. art. 3(1), which will enjoy a "high degree of
autonomy except in foreign and defence affairs." Id. art.
3(2). In addition, the PRC states that the HKSAR "will be
vested with . . . independent judicial power, including that
of final adjudication" and that the "laws currently in force
in Hong Kong will remain basically unchanged." Id. art.
of the Treaty as to any territory to which the Treaty was
extended under article II(1)(a). Id. art II(2). To date, to
our knowledge, neither party has attempted to invoke this
provision to terminate the application of the Treaty to Hong
Kong.
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3(3). These "basic policies" are, according to the Joint
Declaration, to "remain unchanged for 50 years." Id. art.
3(12).
United States Senate ratification of the
Supplementary Treaty occurred on July 17, 1986, well after
the widely publicized signing of the Joint Declaration. See
132 Cong. Rec. 16,819 (1986). Clearly, the Senate was aware
of the planned reversion when it approved the applicability
to Hong Kong of the Supplementary Treaty.6 The Supplementary
Treaty does not contain an exception for relators who can
show that their trial or punishment will occur after the date
of reversion. Indeed, the Supplementary Treaty is entirely
silent on the question of reversion.
The United States does not have an extradition
treaty with the PRC. However, on December 20, 1996, the
United States signed an extradition treaty with the
government of the nascent HKSAR, which provides for
reciprocal post-reversion extradition. See Agreement Between
the Government of the United States of America and the
Government of Hong Kong for the Surrender of Fugitive
Offenders, Dec. 20, 1996 (the "New Treaty"). The New Treaty
will not enter into force until the Senate gives its advice
6. See, e.g., 132 Cong. Rec. 16,598 (1986) (statement of
Sen. Hatch) (commenting on applicability of Supplementary
Treaty to Hong Kong).
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and consent. It was submitted to the Senate on March 3,
1997. See 143 Cong. Rec. S1846 (daily ed. Mar. 3, 1997).
A. United States Extradition Procedure
In the United States, the procedures for
extradition are governed by statute. See 18 U.S.C. ch. 209.
The statute establishes a two-step procedure which divides
responsibility for extradition between a judicial officer7
and the Secretary of State. The judicial officer's duties
are set out in 18 U.S.C. 3184. In brief, the judicial
officer, upon complaint, issues an arrest warrant for an
individual sought for extradition, provided that there is an
extradition treaty between the United States and the relevant
foreign government and that the crime charged is covered by
the treaty. See id. If a warrant issues, the judicial
officer then conducts a hearing to determine if "he deems the
evidence sufficient to sustain the charge under the
provisions of the proper treaty." Id. If the judicial
officer makes such a determination, he "shall certify" to the
Secretary of State that a warrant for the surrender of the
relator "may issue." Id. (emphases added). The judicial
officer is also directed to provide the Secretary of State
with a copy of the testimony and evidence from the
extradition hearing. Id.
7. The judicial officer may be any federal judge, any
authorized magistrate, or any state judge of a court of
general jurisdiction. See id. 3184.
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It is then within the Secretary of State's sole
discretion to determine whether or not the relator should
actually be extradited. See 18 U.S.C. 3186 ("The Secretary
of State may order the person committed under section[]
3184 . . . of this title to be delivered to any authorized
agent of such foreign government . . . .") (emphasis added).
The Secretary has the authority to review the judicial
officer's findings of fact and conclusions of law de novo,8
and to reverse the judicial officer's certification of
extraditability if she believes that it was made
erroneously.9 See 4 Abbell & Ristau, International Judicial
Assistance: Criminal - Extradition 13-3-8(2), at 266-69
(1995); Note, Executive Discretion in Extradition, 62 Colum.
L. Rev. 1313, 1316-25 (1962). The Secretary may also decline
to surrender the relator on any number of discretionary
grounds, including but not limited to, humanitarian and
8. While not required to by statute, the Department of
State routinely accepts written submissions from relators in
conjunction with its review of extraditability. 4 Abbell &
Ristau, International Judicial Assistance: Criminal --
Extradition, 13-3-8(5), at 274 (1995).
9. Although at first glance, this procedure might appear to
be of questionable constitutionality because it subjects
judicial decisions to executive review, rendering them non-
final, cf. Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), it
has been held that the judicial officer in an extradition
proceeding "is not exercising 'any part of the judicial power
of the United States,'" and instead is acting in "a non-
institutional capacity." United States v. Howard, 996 F.2d
1320, 1325 (1st Cir. 1993) (quoting In re Kaine, 55 U.S. (14
How.) 103, 120 (1852)).
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foreign policy considerations. See 4 Abbell & Ristau, supra,
13-3-8(3), at 269-73; II Bassiouni, International
Extradition: United States Law and Practice 601-04 (1987).
Additionally, the Secretary may attach conditions to the
surrender of the relator. See Jimenez v. United States
District Court, 84 S. Ct. 14, 19 (1963) (Goldberg, J.,
chambers opinion) (denial of stay) (describing commitments
made by Venezuelan government to United States Department of
State as a condition of surrender of fugitive); 4 Abbell &
Ristau, supra, 13-3-8(4), at 273-74; II Bassiouni, supra,
at 604.10 The State Department alone, and not the judiciary,
has the power to attach conditions to an order of
extradition. See, e.g., Emami v. United States District
Court, 834 F.2d 1444, 1453 (9th Cir. 1987); Demjanjuk v.
Petrovsky, 776 F.2d 571, 584 (6th Cir. 1985). Of course, the
Secretary may also elect to use diplomatic methods to obtain
fair treatment for the relator. See, Note, supra, at 1325-
26; cf. In re Normano, 7 F. Supp. 329, 329 (D. Mass. 1934).
Thus, under 18 U.S.C. 3184, the judicial
officer's inquiry is limited to a narrow set of issues
concerning the existence of a treaty, the offense charged,
and the quantum of evidence offered. The larger assessment
10. The United States has, for example, imposed conditions
as to the type of trial the relator would receive (e.g., in
civil, rather than martial law, court) and as to security
arrangements for the relator. 4 Abbell & Ristau, supra,
13-3-8(4), at 273 n.1.
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of extradition and its consequences is committed to the
Secretary of State. This bifurcated procedure reflects
the fact that extradition proceedings contain legal issues
peculiarly suited for judicial resolution, such as questions
of the standard of proof, competence of evidence, and treaty
construction, yet simultaneously implicate questions of
foreign policy, which are better answered by the executive
branch. Both institutional competence rationales and our
constitutional structure, which places primary responsibility
for foreign affairs in the executive branch, see, e.g.,
United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
319-22 (1936), support this division of labor.
In implementing this system of split
responsibilities for extradition, courts have developed
principles which ensure, among other things, that the
judicial inquiry does not unnecessarily impinge upon
executive prerogative and expertise. For example, the
executive branch's construction of a treaty, although not
binding upon the courts, is entitled to great weight. Factor
v. Laubenheimer, 290 U.S. 276, 295 (1933); cf. United States
v. Howard, 996 F.2d 1320, 1330 n.6 (1st Cir. 1993) (deference
to executive in extradition context stems, at least in part,
from fact that executive wrote and negotiated operative
documents). Another principle is that extradition treaties,
unlike criminal statutes, are to be construed liberally in
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favor of enforcement because they are "in the interest of
justice and friendly international relationships." Factor,
290 U.S. at 298. These principles of construction require
courts to:
interpret extradition treaties to produce
reciprocity between, and expanded rights
on behalf of, the signatories:
"[Treaties] should be liberally construed
so as to effect the apparent intention of
the parties to secure equality and
reciprocity between them. For that
reason, if a treaty fairly admits of two
constructions, one restricting the rights
which may be claimed under it, and the
other enlarging it, the more liberal
construction is to be preferred."
Howard, 996 F.2d at 1330-31 (quoting Factor, 290 U.S. at 293-
94).
Another principle that guides courts in matters
concerning extradition is the rule of non-inquiry. More than
just a principle of treaty construction, the rule of non-
inquiry tightly limits the appropriate scope of judicial
analysis in an extradition proceeding. Under the rule of
non-inquiry, courts refrain from "investigating the fairness
of a requesting nation's justice system," id. at 1329, and
from inquiring "into the procedures or treatment which await
a surrendered fugitive in the requesting country."
Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683
(9th Cir. 1983). The rule of non-inquiry, like extradition
procedures generally, is shaped by concerns about
institutional competence and by notions of separation of
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powers. See United States v. Smyth, 61 F.3d 711, 714 (9th
Cir. 1995).11 It is not that questions about what awaits the
relator in the requesting country are irrelevant to
extradition; it is that there is another branch of
government, which has both final say and greater discretion
in these proceedings, to whom these questions are more
properly addressed.12
11. One commentator has analogized the rule of non-inquiry
to the "act of state" doctrine, which prohibits United States
courts from judging the governmental acts of a foreign
country performed within its own territory. See Semmelman,
Federal Courts, The Constitution, and The Rule of Non-Inquiry
in International Extradition Proceedings, 76 Cornell L. Rev.
1198 (1991). The "act of state" doctrine, the Supreme Court
has said, "arises out of the basic relationships between
branches of government in a system of separation of powers.
It concerns the competency of dissimilar institutions to make
and implement particular kinds of decisions in the area of
international relations." Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 423 (1964). This court has doubted,
in dicta, that the rule of non-inquiry is constitutionally
mandated. Howard, 996 F.2d at 1330 n.6. Whether the
doctrine is constitutionally mandated is immaterial here.
12. Nor is it true, as Lui suggests, that the rule of non-
inquiry is only appropriate where the existence of a treaty
reflects a substantive judgment about the fairness of another
nation's procedures. The United States has maintained, over
time, extradition treaties with some of the world's most
oppressive and arbitrary regimes. See 18 U.S.C. 3181
(listing treaties of extradition and dates entered into).
The rule of non-inquiry expresses no judgment about a foreign
nation's ability and willingness to provide justice; it
simply defers that assessment to the second part of every
extradition proceeding -- review of extraditability and
determination of the appropriateness of surrender by the
Secretary of State. Indeed, a leading commentator, in
discussing the scope of the Secretary's discretion under 18
U.S.C. 3186, has argued that it is precisely "because of
the rule of non-inquiry" that it is appropriate for the
Secretary to exercise discretion on humanitarian grounds. II
Bassiouni, supra, at 602 (emphasis added).
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Lui contends that, on July 1, 1997, the reversion
of Hong Kong to the PRC will result in his being subjected to
trial and punishment by a regime with which the United States
has no extradition treaty. This future event, Lui argues,
operates retroactively to render his extradition illegal, as
of today, because, he says, extradition is only legitimate
where trial and punishment will be administered by the regime
with which the United States has a treaty.
Although Lui is correct that the government has
conceded that he will not be tried before reversion, it is
also quite possible that the scenario he depicts will not
arise. The new extradition treaty with the HKSAR may be
approved by the United States Senate, establishing a
continuity of treaties through and beyond July 1, 1997.13
The United States government may choose to extend the current
Treaty by executive agreement.14 To the extent that Lui's
13. The government does not argue that, absent any other
action and of their own accord, the Treaties would continue
beyond reversion to apply to Hong Kong. Accordingly, on the
facts of this case, we find the discussion of the state
succession doctrine in Terlinden v. Ames, 184 U.S. 270(1902), a case heavily relied upon by the district court, see
Lui Habeas, --- F. Supp. at ---, 1997 WL 37477, at *4-*5, to
be of little assistance to Lui. Of course, the discussion in
Terlinden of the rule of non-inquiry is relevant, and
supports our analysis.
14. It may be argued that this alternative infringes upon
the Senate's prerogative, under the Treaty Clause, U.S.
Const., art. II, 2, to give its advice and consent. But it
is hardly an appropriate judicial task to attempt to resolve
a hypothetical and not ripe dispute between the legislature
and the executive.
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argument depends on the fairness of the procedures he will be
subjected to, he asks this court to decide that the PRC will
not adhere to the Joint Declaration with the UK, in which it
declared its intention to maintain Hong Kong's legal system
for fifty years.
All of these questions involve an evaluation of
contingent political events. The Supreme Court has said that
the indicia of a non-justiciable political question include:
a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or a lack of
judicially discoverable and manageable
standards for resolving it; or the
impossibility of deciding without an
initial policy determination of a kind
clearly for nonjudicial discretion; or
the impossibility of a court's
undertaking independent resolution
without expressing lack of respect due
coordinate branches of government; or an
unusual need for unquestioning adherence
to a political decision already made; or
the potentiality of embarrassment from
multifarious pronouncements by various
departments on one question.
Baker v. Carr, 369 U.S. 186, 217 (1962). While not all of
these ingredients are present here, several are. Moreover,
unlike many "political questions," whose resolution, absent
judicial determination, must await the vagaries of the
political process, here there is a statutory scheme which
provides for the resolution of these questions by an
identified member of the executive branch. The case for
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judicial resolution is thus weaker than with many such
questions.
The principles of reciprocity and liberal
construction also counsel against construing the Treaties so
as to prohibit Lui's extradition. Hong Kong, through the
United Kingdom, has entered bilateral treaties with the
United States. The United States has sought extradition of
criminals from Hong Kong in the past, and may wish to
continue to do so up until July 1, 1997. If the executive
chooses to modify or abrogate the terms of the Treaties that
it negotiated, it has ample discretion to do so. However, if
this court were to read a cut-off date vis-a-vis extraditions
to Hong Kong into the Treaties, it would risk depriving both
parties of the benefit of their bargain.
None of these principles, including non-inquiry,
may be regarded as an absolute. We, like the Second Circuit,
"can imagine situations where the relator, upon extradition,
would be subject to procedures or punishment so antipathetic
to a federal court's sense of decency as to require
reexamination of the principle[s]" discussed above. Gallina
v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960). This is not such
a case. Lui is wanted for economic, not political,
activities whose criminality is fully recognized in the
United States. His extradition is sought by the current Hong
Kong regime, a colony of Great Britain, which, as Lui himself
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points out, is one of this country's most trusted treaty
partners. Moreover, Lui has been a fugitive from Hong Kong
since 1994. He has been subject to extradition since
entering the United States in December 1995. That now only a
few months remain before the reversion of Hong Kong is partly
attributable to strategic choices made by Lui himself. There
is nothing here which shocks the conscience of this court.
B. The Treaties
There is no dispute that the Treaty, as
supplemented by the Supplementary Treaty, is currently in
effect and is applicable to Hong Kong. The district court,
in granting Lui's habeas petition, reasoned that "the Treaty,
by its own terms, does not allow the extradition of a person
to Hong Kong if the Crown Colony of Hong Kong is unable to
try and to punish that person." Lui Habeas, --- F. Supp. at
---, 1997 WL 37477, at *5. The government counters that the
terms of the Treaty clearly allow Lui's extradition. There
is nothing in the plain language of the Treaties that would
permit the construction made by the district court. The
principles discussed above argue persuasively against reading
judicially created limitations into the Treaties' unambiguous
text.
1. Overview
We begin our analysis of the Treaties with a brief
overview of the Treaties' operative provisions. Article I of
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the Treaty states the basic reciprocal compact, providing
that:
Each Contracting Party undertakes to
extradite to the other, in the
circumstances and subject to the
conditions specified in this Treaty, any
person found in its territory who has
been accused or convicted of any offense
within Article III, committed within the
jurisdiction of the other Party.
Treaty, art. I.
Article III contains the "dual criminality"
requirement, a requirement that is "central to extradition
law and [one that] has been embodied either explicitly or
implicitly in all prior extradition treaties between the
United States and Great Britain." Brauch v. Raiche, 618 F.2d
843, 847 (1st Cir. 1980). Article III, in relevant part,
provides that:
Extradition shall be granted for an
act or omission the facts of which
disclose an offense within any of the
descriptions listed in the Schedule
annexed to this Treaty . . . or any other
offense, if: (a) the offense is
punishable under the laws of both Parties
by imprisonment or other form of
detention for more than one year or by
the death penalty . . . .
Treaty, art. III(1). The annexed Schedule lists twenty-nine
general crimes, including bribery, the crime of which Lui is
accused. See Treaty, Schedule, No. 23.
Article V contains various affirmative defenses,
including the "political offense" exception. As a general
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matter, the political offense exception "is now a standard
clause in almost all extradition treaties of the world." I
Bassiouni, supra, at 384. The political offense exception in
the Treaty prohibits extradition where "(i) the offense for
which extradition is requested is regarded by the requested
Party as one of a political character; or (ii) the person
sought proves that the request for his extradition has in
fact been made with a view to try or punish him for an
offense of a political character." Treaty, art. V(1)(c).
The Supplementary Treaty narrows the availability
of this political offense exception. It lists a range of
crimes -- all crimes of violence -- that may not be regarded
as political offenses for the purpose of raising the
political offense exception. See Supplementary Treaty, art.
1. The Supplementary Treaty also offers an affirmative
defense to fugitives sought for crimes of violence who, by
virtue of its article 1, are unable to raise the political
offense exception. See Supplementary Treaty, art. 3(a), (b).
Such a fugitive may block extradition by establishing:
by a preponderance of the evidence that
the request for extradition has in fact
been made with a view to try or punish
him on account of his race, religion,
nationality, or political opinions, or
that he would, if surrendered, be
prejudiced at his trial or punished,
detained or restricted in his personal
liberty by reason of his race, religion,
nationality or political opinions.
Id. art. 3(a).
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The procedural requisites of an extradition request
are specified in article VII of the Treaty. The request must
be accompanied by, inter alia, a description of the fugitive,
a statement of facts of the offense, and the text of the law
under which he is charged. See Treaty, art. VII (2). For
accused (as opposed to already convicted) fugitives, the
request must also include a valid arrest warrant and "such
evidence as, according to the law of the requested Party,
would justify his committal for trial if the offense had been
committed in the territory of the requested Party, including
evidence that the person requested is the person to whom the
warrant of arrest refers." Id. art. VII(3).15
Article XII contains the "specialty" requirement, a
common feature of extradition treaties. Specialty has two
basic components. First, the requesting state may not try
the fugitive for any crimes other than the specific crime for
which extradition was sought and granted. Second, the
requesting state may not re-extradite the fugitive to a third
state. See Treaty, art. XII.
2. Analysis
Both the district court and Lui focus on four
Treaty provisions in concluding that the Treaty is
inapplicable to Lui. See Lui Habeas, --- F. Supp. at ---,
15. Article IX(1), in turn, states that extradition shall
not be granted if the evidentiary showing required by article
VII(3) is not made by the requesting party.
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25
1997 WL 37477, at *5-*7. We address these provisions in
turn, concluding that the obligation of the United States to
extradite Lui, specified in article I of the Treaty, is not
undermined by any of these provisions. We base our analysis
on the plain language of the Treaty. United States v.
Alvarez-Machain, 504 U.S 655, 663 (1992); Sumitomo Shoji Am.,
Inc. v. Avagliano, 457 U.S. 176, 180 (1982). Underlying this
analysis is the court's awareness of the limited role of the
judiciary in extradition proceedings.
The Warrant Requirement
The district court understood the warrant
requirement of article VII(3) to serve the purpose of
permitting "the requested sovereign to know that the relator
has been accused . . . pursuant to the laws of the requesting
sovereign, and that he will be tried and punished in
accordance with that sovereign's laws." Lui Habeas, --- F.
Supp. at ---, 1997 WL 37477, at *6. In this case, the
district court reasoned, since Lui would not be tried in
accordance with the present Hong Kong regime's laws, the
warrant requirement was not met. Id.There is nothing in the language of article VII(3),
or the rest of article VII, which indicates that the warrant
requirement serves the greater function attributed to it by
the district court. Indeed, the warrant requirement appears
to do nothing more than to help the judicial officer in the
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requested country to confirm that there are in fact charges
properly pending against the relator in the requested
country, and that the relator is actually the person sought.
It does not authorize the investigation which the district
court envisioned, and indeed such an investigation is
foreclosed by the rule of non-inquiry. A warrant was
provided by the Hong Kong authorities here, and Lui does not
attack its validity or authenticity. The warrant requirement
was plainly satisfied.
The Dual Criminality Requirement
The district court understood the purpose of the
dual criminality requirement, as stated in article III of the
Treaty, to be "to provide the requested sovereign with the
opportunity to examine the substantive law of the requesting
sovereign in the context of the Treaty." Lui Habeas, --- F.
Supp. at ---, 1997 WL 37477, at *6. The court stated that
the requirement serves to "underscore[] the expectation
running through the Treaty that [Lui] is to be tried, judged,
and punished in accordance with the laws of the requesting
sovereign." Id.There is nothing in the text of article III of the
Treaty that supports this sweeping conclusion. The dual
criminality requirement, by its plain terms, is satisfied if
the crime of which the relator is accused appears on the
annexed Schedule or is punishable in both countries by at
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least one year's imprisonment. Bribery, as noted above,
appears on the annexed Schedule.
The purpose of the dual criminality requirement is
simply to ensure that extradition is granted only for crimes
that are regarded as serious in both countries. See United
States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995) ("The
principle of dual criminality dictates that, as a general
rule, an extraditable offense must be a serious crime (rather
than a mere peccadillo) punishable under the criminal laws of
both the surrendering and the requesting state.");
Restatement (Third) of the Foreign Relations Law of the
United States 476, cmt. d (1987); id. 475, cmt. c.
The dual criminality requirement is satisfied here.
The Political Offense Exception
The district court also relied on article 3(a) of
the Supplementary Treaty, which, it stated, requires the
judicial officer "to examine the reasons for the requesting
sovereign's desire to try and to punish the relator." Lui
Habeas, --- F. Supp. at ---, 1997 WL 37477, at *6. In this
case, stated the district court, article 3(a) "underscores
again the Treaty's requirement and expectation that
extradition . . . may not take place if the requesting
sovereign . . . is unable to try and punish Lui in the
relatively few days left before its reversion to China." Id.-28-
28
The Supplementary Treaty article 3(a) defense is
simply inapplicable here. Supplementary Treaty article 3(a)
describes a defense which is available only to fugitives
charged with one of the crimes specified in article 1 of the
Supplementary Treaty, all of which are crimes of violence.
Lui's alleged crime -- bribery -- is not among the crimes
enumerated in the Supplementary Treaty's article 1.
Indeed, the very purpose of the Supplementary
Treaty was to cabin the political offense exception so that
perpetrators of certain violent offenses would be precluded
from avoiding extradition simply because their criminal
activity was inspired by political motivation. See Howard,
996 F.2d at 1324-25. Because this contraction of the time-
honored political offense exception stirred up a great deal
of controversy during negotiations, a compromise position was
ultimately agreed upon, so that fugitives barred from
invoking the political offense defense might still claim the
protection of the more limited defense of article 3(a). See
id. at 1324 (discussing negotiating history and legislative
history).
Lui properly does not claim that he is entitled to
the article V(1)(c) political offense exception.16 The
16. Even if he had attempted to assert the political offense
exception, he would likely have been unsuccessful since
"[c]riminal conduct in the nature of financial
fraud . . . traditionally has been considered outside the
'political offense' exception." Koskotas v. Roche, 931 F.2d
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29
Supplementary Treaty article 3(a) defense was unavailable to
him, and thus, however much article 3(a) might ever, as the
district court stated, "require[] the court to examine the
reasons for the requesting sovereign's desire to try and to
punish the relator," Lui Habeas, --- F. Supp. at ---, 1997 WL
37477, at *6, it certainly does not do so here.
Moreover, article 3(a) allows the judicial officer
to make only a narrowly circumscribed inquiry. "[A]n
extradition target must establish by a preponderance of the
evidence that, if he were surrendered, the legal system of
the requesting country would treat him differently from other
similarly situated individuals because of his race, religion,
nationality, or political opinions." Howard, 996 F.2d at
1331. Lui made no such showing of discrimination, and the
district court, in making its own predictions about the post-
reversion justice system in Hong Kong, exceeded the narrow
inquiry permitted by article 3(a).
The Rule of Specialty
The district court understood the Treaty's
specialty provision to signify that "the Treaty allows only
for extradition for offenses that can be tried and punished
by the requesting sovereign." Lui Habeas, --- F. Supp. at --
-, 1997 WL 37477, at *6-*7. Because the specialty obligation
cannot be enforced by the United States after reversion,
169, 172 (1st Cir. 1991) (citing cases).
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30
reasoned the district court, article XII is violated ab
initio, and Lui cannot be extradited. Id. at *7.
The rule of specialty literally has no application
here. The rule has two basic requirements: that the relator
be tried for the crimes charged in the extradition warrant
and that the relator not be re-extradited to another country.
There is no claim that either of these is violated. Indeed,
as the district court properly recognized, Lui is not arguing
that the reversion itself would constitute a de facto re-
extradition from Hong Kong to China in violation of the
specialty provision. Lui Habeas, --- F. Supp. at ---, 1997
WL 37477, at *12 n.15; see also Oen Yin-Choy v. Robinson, 858
F.2d 1400, 1403-04 (9th Cir. 1988).
The essence of Lui's argument is rather different:
it is that the fact that he cannot be tried and punished by
the same government which gave the Treaty assurances
contravenes the rationale behind the specialty provisions and
so undermines confidence that this is the result the Senate
intended in giving its consent. The responses to that
argument are largely those outlined at the beginning of this
opinion. We add only our thoughts directed to the specialty
clause itself.
If Lui's position were correct, the enforceability
of many extradition treaties to which the United States is a
party would be thrown into grave doubt. Regimes come and go,
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as, indeed, do states. Moreover, 18 U.S.C. 3184, which
defines the role of the courts in the extradition process,
gives no discretion to the judicial officer to refuse to
certify extraditability on the ground that a treaty partner
cannot assure the requested country that rights under a
treaty will be enforced or protected. See Saccocia, 58 F.3d
at 766-67.
The Ninth Circuit, writing in 1988, also rejected a
similar argument made by a fugitive who fought extradition by
arguing that the United States would be unable to compel Hong
Kong's compliance with the specialty obligation because,
although he would face trial in the Crown Colony, his
imprisonment might extend past the reversion date. "Were the
Treaty to be interpreted as [the fugitive] asks, extradition
to Hong Kong would be the exception rather than the rule
because it would be limited in practice only to extraditions
for crimes which could be punished for a term expiring before
the reversion date." Oen Yin-Choy, 858 F.2d at 1404.
Indeed, if we interpreted the specialty provision in this
way, we would be forced to conclude that any relator
extradited from the United States to Hong Kong at any point
since the signing of the Joint Declaration, was, if he faced
a term of imprisonment upon conviction that could conceivably
extend past the date of reversion, sent to Hong Kong in
violation of the Treaty.
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Of course, Lui may express his concerns about the
post-reversion enforceability of specialty to the Secretary
of State, who, in her discretion, may choose not to surrender
him. We note that the newly signed, as yet unratified,
extradition treaty between the United States and the HKSAR
provides that specialty protection "shall apply to fugitive
offenders who have been surrendered between the parties prior
to the entry into force" of the new treaty. New Treaty,
arts. 16, 20. It is not the role of the judiciary to
speculate about the future ability of the United States to
enforce treaty obligations.
III.
Lui also challenges the determination of the
magistrate judge that there was probable cause to believe
that Lui had violated Hong Kong law on eight of the nine
charges in the warrant. Although the district court declined
to review this issue, we do reach it.
Lui protests that we lack power to reach this
issue, and that we must remand to the district court for
further findings. However, the issue was fully briefed and
argued to the district court. The record is complete. This
is a habeas corpus appeal, in which the district court was
not the fact finder but had only a review function over the
findings made by the magistrate judge. The function to be
exercised by the district court is more akin to appellate
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33
review, and is done on the same record as is before us.
Under these circumstances, the district court had no greater
institutional competence to perform this review task than do
we. That the district court declined to reach the issue does
not deprive us of the power to do so.
While it is true that, as a general matter, federal
courts of appeals do not rule on issues not decided in the
district court, Singleton v. Wulff, 428 U.S. 106, 120
(1976), we do have discretion to address issues not reached
by the district court when the question is essentially legal
and the record is complete. Quinn v. Robinson, 783 F.2d 776,
814 (9th Cir. 1986); cf. Howard, 996 F.2d at 1329 ("That the
district court failed to afford plenary review on this aspect
of the case does not mean that we must remand . . . .
Rather, because the question is quintessentially legal and
this court is fully capable of deciding it without any
further development of the record, we can simply address and
resolve it.") (citations omitted). Such is the case here.
We have before us the parties' memoranda on probable cause to
the district court and the magistrate judge as well as the
completed evidentiary record. In the interest of conserving
judicial resources and mindful of the policy that extradition
matters be handled expeditiously, we see no reason for
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34
further delay.17 Cf. Fernandez v. Phillips, 268 U.S. 311,
312 (1925) (Supreme Court reviews probable cause
determination of judge certifying extradition without
intermediate court passing on the question).
The traditional formulation is that, on habeas
corpus review of a certification of extraditability, the
court only examines the magistrate judge's determination of
probable cause to see if there is "any evidence" to support
it. Fernandez, 268 U.S. at 312; see also Sidali v. INS, ---
F.3d ---, ---, 1997 WL 74506, *9 (3d Cir. 1997); Then v.
Melendez, 92 F.3d 851, 854 (9th Cir. 1996). This circuit has
interpreted the "any evidence" standard quite literally,
conducting a fairly deferential review of the magistrate's
findings. See Koskotas v. Roche, 931 F.2d 169, 176 (1st Cir.
1991); United States v. Manzi, 888 F.2d 204, 205 (1st Cir.
1989); Brauch, 618 F.2d at 854; Greci v. Birknes, 527 F.2d
956 (1st Cir. 1976).
Recently, some other appellate courts, while
retaining the traditional formulation, have apparently
17. There is no unfairness to Lui. He has had full
opportunity to address the issue of whether there is probable
cause for extradition before the magistrate judge and full
opportunity to address the magistrate judge's determination
before the district court. In the extradition proceedings
before the magistrate judge, Lui filed a 45 page memorandum
on the probable cause issue accompanied by a copious
appendix. He also filed motions to exclude certain of the
government's evidence, called witnesses, and presented both
live testimony and testimony by affidavit.
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35
engaged in a more rigorous review of the evidence presented
before the judicial officer, thus raising questions about the
actual content of the "any evidence" standard. See, e.g.,
Sidali, --- F.3d at ---, 1997 WL 74506, at *9; Ludecke v.
Marshal, 15 F.3d 496, 497-98 (5th Cir. 1994); Peters v.
Egnor, 888 F.2d 713, 717-18 (10th Cir. 1989). The Supreme
Court last addressed the scope of a court's authority on
habeas corpus review of a finding of extraditability in 1925,
when it said that "the alleged fugitive from justice has had
his hearing" and that "habeas corpus is available only to
inquire" into a very limited list of issues. See Fernandez,
268 U.S. at 312. The existence of "any evidence warranting
the finding that there was reasonable ground to believe the
accused guilty" was one of only three issues that the
Fernandez court said might permissibly be reached on habeas.
Id. At that time, the scope of habeas corpus review of all
proceedings was very limited, and Fernandez's strictures on
review in extradition proceedings, including the deferential
"any evidence" standard, may simply reflect that generally
narrower view of the writ. See In re Extradition of Burt,
737 F.2d 1477, 1484 (7th Cir. 1984) ("[T]he broad language of
Fernandez, which on its face would appear to restrict the
scope of inquiry here, must be construed 'in the context of
its time and in the context of subsequent development of the
scope of habeas corpus review.'" (citation omitted)). Since
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36
1925, and until the enactment of the AEDPA in 1996,18 habeas
corpus in other contexts has expanded to become a "second
look" at most substantive and procedural issues. Similarly,
courts reviewing certifications of extraditability, while
continuing to cite Fernandez, have actually engaged in review
of issues beyond those enumerated by the Supreme Court in
1925. See Kester, Some Myths of United States Extradition
Law, 76 Geo. L.J. 1441, 1473 (1988); see also 4 Abbell &
Ristau, supra, 13-3-6, at 255-57. Thus, it is arguable
that the "any evidence" standard is an anachronism, and that
this court should engage in a more searching review of the
magistrate's probable cause findings.
There is no reason to predict a resolution of this
issue here. Whatever the prism through which this record is
reviewed, ranging from a strictly construed "any evidence"
standard to de novo review, our conclusion is that the
government has met its burden.
The purpose of the evidentiary portion of the
extradition hearing is to determine whether the United
States, on behalf of the requesting government, has produced
sufficient evidence to hold the person for trial. The
standard of sufficiency is derived from United States law,
including the Treaty between the United States and the UK.
18. Antiterrorism and Effective Death Penalty Act
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996)
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37
Under 18 U.S.C. 3184, the judicial officer must determine
whether the evidence of criminality is "sufficient to sustain
the charge under the provisions of the proper treaty or
convention." The Treaty requires that:
Extradition shall be granted only if
the evidence be found sufficient
according to the law of the requested
Party . . . to justify the committal for
trial of the person sought if the offense
of which he is accused had been committed
in the territory of the requested Party .
. . .
Treaty, art. IX(1). "United States courts have interpreted
this provision in similar treaties as requiring a showing by
the requesting party that there is probable cause to believe
that the accused has committed the charged offense." Quinn,
783 F.2d at 783 (separate opinion of Reinhardt, J.) (citing
cases). The Supplementary Treaty defines probable cause:
Probable cause means whether there
is sufficient evidence to warrant a man
of reasonable caution in the belief
that . . . an offense has been committed
by the accused.
Supplementary Treaty, art. 2. The actual trial, if any, is
in the foreign court, and it is not the purpose of the
extradition hearing to determine whether the evidence is
sufficient to justify conviction. Thus it is the probable
cause determination which is subject to our review.
There is no dispute that payments of over HK $21
million (approximately US $3 million) and unsecured loans of
HK $10 million (approximately US $1.4 million) were made to
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38
Lui, that the payments were made into foreign bank accounts
in Lui's name, and that the payments were not made directly
by check but through a series of steps which made them more
difficult to trace. There is also no dispute that the
payments were made on the dates charged. The timing is
significant. The payments coincided with the knowledge that
Lui was being considered as Director of Exports for BAT-HK
and with his appointment to that position in 1992.19 The
loans were made within three days of Lui's leaving his
employment at Brown & Williamson and BAT-HK. It is not
contested that BAT-HK was the major supplier of cigarettes to
GIL and WWC, that Brown & Williamson prohibits its employees
from accepting "inducements" from those with whom it does
business and requires disclosure statements to be completed,
and that Lui failed to disclose any of these payments on his
disclosure form. The dispute between the government and Lui
is basically over the purpose of these payments.
Two competing theories explaining the purpose of
the payments were presented to the magistrate judge. The
government argued that the payments were bribes. Although
Lui had no burden to produce any evidence at all and the
burden of showing probable cause rested entirely on the
government, Lui did present an explanation for the loans and
19. The one exception to this was the October 1988 payment
alleged in Count II, as to which the magistrate judge found a
lack of probable cause.
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39
payments, primarily in the affidavit of Hung Wing Wah
("Hung"), a former GIL director and sole proprietor of GIL's
subsidiary, WWC.20 In essence, Hung said that, in or around
1987, prior to Lui's employment with Brown & Williamson, he
and Lui first began discussing "cigarette business matters."
Hung stated that these discussions eventually led to the
establishment of a profitable business relationship in which
Hung purchased Japanese cigarettes and resold them at a
profit for the account of Chen Ying-Jen ("Chen"), a former
GIL principal. The payments to Lui's foreign bank accounts
were filtered through Chen's account.
Hung stated he was told by Chen that, because of
the substantial profits generated by the business
relationship Lui had been instrumental in establishing, Chen
had agreed to pay Lui for his assistance and would continue
paying Lui as long as the relationship continued to generate
such substantial profits. Hung indicated that the sums paid
to Lui bore a reasonable relationship to the magnitude of
Chen's profits. And finally, Hung stated that the unsecured
short term loans had been made to Lui so that Lui could
invest in the then-booming Hong Kong stock market. Hung
20. Lui chose not to testify on his own behalf, as was his
prerogative. The magistrate judge properly excluded the
polygraph evidence offered by Lui to corroborate his
testimony. The polygraph evidence was not relevant, there
being no such testimony in evidence to corroborate. Whether
it would be admissible if he did testify, we do not address.
-40-
40
stated that both the principal and interest were repaid
shortly after the loans were made. During the hearing before
the magistrate judge, Lui's counsel indicated that Lui would
testify, and described what that testimony would be. This
description matched the testimony given by Hung. Lui
ultimately declined to testify.
Lui argued that the government's evidence was
insufficient to support an inference of bribery and that
there was, in any event, an innocent explanation. The
government argued that the undisputed facts were sufficient
to establish probable cause, and that the explanation was
inherently implausible. In addition, the government argued,
it had two "smoking gun" statements directly saying the
payments were bribes. We return to these two statements and
Lui's attack on them later.
The magistrate judge concluded that the explanation
proffered by Lui's counsel -- "to the effect that the
payments represented a gratuitous gesture of gratitude by one
of GIL's former principals for Lui's assistance in
introducing him to a supplier of Japanese cigarettes in 1987,
some six years before the last payments were made" -- was
inherently implausible. Lui Extradition, 939 F. Supp. at
955.21 The implausibility of the explanation does give
21. The statement in the magistrate's opinion that Lui
adduced only counsel's argument and not explanatory evidence,
Lui Extradition, 939 F. Supp. at 955, is obviously an
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41
credence to the government's theory. See United States v.
Burgos, 94 F.3d 849, 867 (4th Cir. 1996) (implausible tales
to the finder of fact can rationally be viewed as
circumstantial evidence of guilt). Without consideration of
the two "smoking gun" statements, the magistrate judge was
fully warranted in finding probable cause.
In addition, the two statements, which Lui argues
were inadmissible, were properly admitted at the probable
cause stage of the extradition hearing and further support a
finding of probable cause.
The first statement was given to Hong Kong
investigators in July 1994 by Chui, one of Lui's alleged co-
conspirators. Chui was one of the principals of GIL until
April 1993. In his statement, Chui implicated himself and
other principals of GIL in a scheme to bribe Lui and others
to secure favorable allocations of cigarettes from BAT-HK.
According to Chui, GIL began paying bribes to Lui when they
first anticipated that Lui might eventually become an
important BAT-HK decisionmaker. Chui was murdered in
Singapore nine months after giving this statement.
The second statement was made by Francis McNamara
Haddon-Cave, who worked with Chui. Haddon-Cave testified in
Hong Kong in October 1995 at a hearing to determine the
oversight. Among other items, the Hung Wing Wah affidavit
was admitted into evidence and considered by the magistrate
judge.
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42
sufficiency of the evidence to commit one of Lui's alleged
co-conspirators for trial on a charge of conspiracy to bribe
Lui. Haddon-Cave testified that he was hired by Chui to work
as a consultant for GIL and began working there in October
1992. One of Haddon-Cave's responsibilities was to foster
relationships between GIL and major suppliers like BAT-HK.
Haddon-Cave testified that Chui told him in Lui's presence
that Lui was "our man" and an important link with GIL. Lui,
then BAT-HK's Director of Exports, did not deny it. Haddon-
Cave further testified that later, outside of Lui's presence,
Chui told him that Lui was "on the take" and had become
wealthy as a result of the payments that distributors made to
him to secure favorable allocations of cigarettes.
The framework for determining admissibility of
evidence here is determined by the Treaty itself and by
United States legal rules governing admissibility in
extradition proceedings. Pursuant to federal statute,
documents offered as evidence in an extradition hearing:
shall be received and admitted as
evidence . . . for all the purposes of
such hearing if they shall be properly
and legally authenticated so as to
entitle them to be received for similar
purposes by the tribunals of the foreign
country from which the accused party
shall have escaped . . . .
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18 U.S.C. 3190.22 Proof of such authentication is the
certificate of the principal diplomatic or consular officer
of the United States resident in such foreign country. Id.Additionally, article VII(5) of the Treaty provides that any
evidence given upon oath or affirmation "shall be received in
evidence in any proceedings for extradition" if it is duly
authenticated. Treaty, art. VII(5). Both the Haddon-Cave
testimony and the Chui statement meet this authenticity
requirement and were thus admissible at the extradition
hearing by the terms of the relevant statute and treaties.
Lui argues nonetheless that the two statements were
improperly admitted because they would be inadmissible at
trial under Hong Kong law. Lui argues that it is inherently
unfair to certify that he is extraditable on the basis of
evidence that would be inadmissible in the court where he
would face trial. He also argues that failure to consider
the Hong Kong High Court's declaratory judgment (later
reversed) that the Chui statement would be inadmissible would
evince great disrespect for the judicial system of Hong Kong.
Both of these arguments are misplaced.
22. Lui does not rely on the language of 18 U.S.C. 3190.
Most courts reviewing the language have concluded that 3190
requires only that the evidence meet any authentication
requirement imposed by a foreign tribunal, not that it be
admissible, much less that it be admissible at trial. See
Oen Yin-Choy, 858 F.2d at 1406; Lui Extradition, 939 F. Supp.
at 934 (citing cases).
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In probable cause hearings under American law, the
evidence taken need not meet the standards for admissibility
at trial. Indeed, at a preliminary hearing in federal court
a "finding of probable cause may be based upon hearsay in
whole or in part." Fed. R. Crim. P. 5.1(a). This is because
a "preliminary hearing is not a minitrial of the issue of
guilt," Coleman v. Burnett, 477 F.2d 1187, 1201 (D.C. Cir.
1973); rather, "its function is the more limited one of
determining whether probable cause exists to hold the accused
for trial." Barber v. Page, 390 U.S. 719, 725 (1968). An
extradition hearing similarly involves a preliminary
examination of the evidence and is not a trial. Charlton v.
Kelly, 229 U.S. 447, 461 (1913); Romeo v. Roache, 820 F.2d
540, 544 (1st Cir. 1987). An extradition hearing does not
require a higher standard of evidence than a probable cause
hearing. The special and limited nature of extradition
hearings is manifested in a more lenient standard for
admissibility of evidence. Neither the Federal Rules of
Criminal Procedure, see Fed. R. Crim. P. 54(b)(5), nor the
Federal Rules of Evidence, see Fed. R. Evid. 1101(d)(3),
apply to extradition hearings. The evidence may coU.S. 309,
317 (1922). So American domestic law has already resolved
against Lui any claim that there is a violation of
Constitutional rights from the admission of hearsay evidence
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at a probable cause hearing which would not be admitted at
trial.
Under Hong Kong law, the Haddon-Cave statement and
the Chui statement present separate and distinct issues. The
Haddon-Cave statement was ruled inadmissible at the Hong Kong
trial of Chong Tsoi-Jun ("Chong"), an alleged co-conspirator,
on an objection that it was not made in furtherance of the
conspiracy.
As to the Chui statement, a Hong Kong High Court
judge issued a declaration that the statement was
inadmissible hearsay. On appeal, the Hong Kong Court of
Appeal vacated this ruling, finding that Lui's request for a
declaratory judgment was not justiciable in the Hong Kong
courts, but that even if it were, the judge's grant of the
declaration would be an abuse of discretion. The Court of
Appeal reasoned that the issue of the admissibility of the
Chui statement in the extradition proceeding was a matter for
the United States court to decide. The court noted, however,
that the parties agreed that the statement was inadmissible
hearsay under Hong Kong law. In light of the Hong Kong
court's statement that the admissibility of the Chui
statement in the extradition hearing is a matter for the
United States court to decide, admission of the statement
into evidence cannot be viewed as a sign of disrespect for a
sister court.
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The focus on admissibility is, we think, misplaced,
both based on these facts and on larger, institutional
concerns about the operation of habeas corpus in extradition
certifications. While in Manzi we "recognized that serious
due process concerns may merit review beyond the narrow scope
of inquiry in extradition proceedings," there is no serious
due process issue here. See Manzi, 888 F.2d at 206; see also
Koskotas, 931 F.2d at 174; cf. Burt, 737 F.2d at 1481;
Gallina, 278 F.2d at 78. Lui's liberty interests are
protected by the very existence of "an unbiased hearing
before an independent judiciary." In re Kaine, 55 U.S. (14
How.) 103 (1852).
Inherent in the probable cause standard is the
necessity of a determination that the evidence is both
sufficiently reliable and of sufficient weight to warrant the
conclusion. The probable cause standard does not even
require that the government make its showing by a
preponderance of the evidence. But neither is it toothless.
All evidence does not have the same importance even if it is
authentic and admissible. For example, a confession obtained
by duress is inherently unreliable and would be given little
weight even if the confession were authenticated. See Gill
v. Imundi, 747 F. Supp. 1028, 1042-47 (S.D.N.Y. 1990). The
reliability of the evidence is a factor for the reviewing
court to consider as well, and potentially unreliable
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evidence may be accorded reduced weight by the court.
Restatement, supra, 478.
No such concerns about reliability are implicated
here. First, the statements themselves were neither
involuntary nor obtained under questionable circumstances.
Further, the Hong Kong courts did not rule that either
statement was untrue or otherwise cast doubt on the
statements' credibility. Each statement was thought
inadmissible in Hong Kong on grounds pertaining to hearsay.
The Haddon-Cave statement was deemed inadmissible because it
did not meet one of the requirements for admissibility of a
co-conspirator's statement. The Chui statement was thought
inadmissible because the declarant was dead. The Hong Kong
government alleges that Chui was involved in the conspiracy
until he became a government informant and witness and that
he was murdered in order to prevent him from testifying. GIL
directors, including Hung and Chong, allegedly tried to
dissuade Chui from cooperating with the ICAC. We need not
reach the issue of whether the statement of a declarant,
murdered to keep him from testifying, might be admissible at
a criminal trial in the United States, cf. United States v.
Houlihan, 92 F.3d 1271 (1st Cir. 1996), whatever the
consequence of these facts under Hong Kong law.
Nevertheless, we note that the Chui statement might well be
admissible under United States law as a statement against
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interest. See Fed. R. Evid. 804(b)(3). The magistrate judge
correctly ruled that the two statements were not unreliable.
One final argument need not detain us long. Lui
argues, from his counsel's tactical decision not to present
his testimony at the extradition hearing, that he was
precluded from testifying. He argues that the magistrate
judge drew an unfavorable inference, in violation of his
Fifth Amendment rights, from his failure to testify. The
argument misapprehends what happened. The magistrate judge
did no such thing. Lui presented testimony from Hung and
five other affiants, as well as argument of counsel
attempting to explain the payments and loans. The magistrate
judge disbelieved the explanation, as it was within his
discretion to do. There is nothing in this objection.
For these reasons we reverse the grant of habeas
corpus by the district court. We continue in effect the
requirement that Lui be held without bail. If Lui wishes to
file a petition for rehearing and/or a petition for rehearing
en banc with this court, he must do so within 14 calendar
days. See Fed. R. App. P. 40(a) & 35(c). We stay, in any
event, delivery of the certification of extraditability to
the Secretary of State during this 14 calendar day period to
permit Lui to seek relief from the United States Supreme
Court.
So ordered.
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