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In re Extradition of Gon

May 13, 2009

IN THE MATTER OF THE EXTRADITION OF ZHENLY YE GON


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

In this extradition proceeding, defendant has made many arguments that he claims preclude his extradition to Mexico. In my view, it is necessary to resolve many of the issues he raises before the hearing so the hearing can be directed to the precise issue that will remain--probable cause--once all the other issues are resolved.

I. Staying the Proceedings to Await the Resolution of the Criminal Case Against the Defendant in this Court

The defendant has been indicted in this Court in Criminal Case No. 07-181 and seeks an "indefinite deferral" of this extradition. See [#25].*fn1 That would mean that, at a minimum, proceedings on the extradition would be stayed until the conclusion of his jury trial, presently scheduled to begin June 22, 2009 before Judge Sullivan.

Whatever advantages or disadvantages might accrue from such a stay, it is clear that the Treaty provides that the extradition proceedings should proceed first and that the party which has custody of the defendant, the "Requested Party," may, after granting the extradition, defer the surrender of the person sought until the conclusion of the criminal proceedings in the state of the Requested Party or "the full execution of the punishment that has been imposed." Extradition Treaty, U.S.-Mexico, May 4, 1978, 31 U.S.T. 5059, Art. 15 ("Treaty").

The Treaty therefore requires that the extradition proceeding go forward, despite the pendency of criminal proceedings in the courts of the "Requested Party," i.e. the United States. Once it is completed and, if successful, the executive branch will then decide whether it should be deferred pending the conclusion of the criminal case before Judge Sullivan, to include the defendant's serving whatever sentence Judge Sullivan may impose. Cf. Sindona v. Grant, 619 F.2d 167, 176 (2d Cir. 1980).

II. Request for Bail

Defendant requests that he be admitted to bail. It is, however, unnecessary to reach the question of his possible entitlement. The defendant is being held without bond in the matter before Judge Sullivan and a detainer has been filed against him by the Immigration and Customs Enforcement Agency. Simply put, he cannot be released. Indeed, if I were to order him released, he would remain in custody and might lose credit for the time he will have served in this case. I will therefore save him from his own improvidence and deny his request for bail.

III. Warrant for Arrest

Defendant challenges the sufficiency of the showing made before this Court issued a warrant for his arrest, arguing that it did not establish probable cause. The Treaty, however, does not require that any showing of probable cause be made before a provisional arrest warrant issues. Instead, the application need only contain (a) a description of the offense for which the extradition is requested; (b) a description of the person sought and his whereabouts; (c) an undertaking to formalize the request for extradition; and (d) a declaration of the existence of a warrant for arrest issued by a judge or a judgment of conviction against the person sought. Treaty, Art. 11, ¶ 1.

In this case, the defendant was in custody in the United States and there was no need for a provisional arrest warrant. Instead, the government of Mexico provided a 604 page single-spaced document that sets out the detailed determinations made by the Mexican judge who issued the warrant and the evidence upon which he relied. If the upcoming hearing establishes that the previous showing was sufficient to establish probable cause, then the warrant was most certainly based on probable cause. If not, the defendant will be released irrespective of the validity of the issuance of the warrant. Therefore, defendant's attack on the warrant need not be considered.

IV. Motive, Persecution, and Torture

The defendant, citing the fact that in the extradition papers he is described by certain persons as "El Chino," the Chinaman, claims that he has been victimized by racial discrimination and that he will be tortured if extradited. Any claim that the prosecution in Mexico is improperly motivated or that he will be tortured can only be addressed by the Secretary of State, once this Court fulfills its narrow obligation to ascertain whether Mexico has shown probable cause for the defendant's arrest. Ordinola v. Hackman, 478 F.3d 588, 604-05 (4th Cir.), cert. denied, 128 S.Ct. 373 (2007); Hoxha v. Levi, 465 F.3d 554, 563-64 (3d Cir. 2006).*fn2 See also Munaf v. Geren, 128 S.Ct. 2207, 2225 (2008) (concern that transfer of petitioners to Iraqi custody would lead to torture was serious but was to be addressed by the political branches, not the judiciary); Kiyemba v. Obama, 561 F.3d 509, 514 (D.C. Cir. 2009).

V. Political Question

Article 5 of the Treaty provides the following: "Extradition shall not be granted when the offense for which it is requested is political or of a political character." Treaty, Art. 5, ¶ 1. Using an unfortunate "kitchen sink" approach, defendant, charged in Mexico with drug, firearm and money laundering offenses, attempts to avail himself of this exception. Defendant's counsel asserts:

Pursuant to both the treaty and Convention, an Extradition being politically motivated shall be barred. Petition should be dismissed. As a matter procedures, the U.S. prosecutors may need to show cause to this Honorable Court why this Mexican Extradition request against "El Chino" should not be returned to Mexican Government for impermissible mis-identification as well as for apparent racial discrimination. Noticeably, in deciding the issue of sufficiency of extraditibility, according to both the Treaty and the Convention, it is the law of the requested State which governs. The law of the United States has long outlawed any racial discrimination, such as using humiliating and insulting racial slur to misidentify the suspect of alleged criminality. [#25] at 8.

This statement confuses an offense of a political character with the supposed motivation of the demanding State and seems to argue that, since American law prohibits racial discrimination, a discriminatory motive renders the crimes charged in Mexico "political." That is absurd and, as just explained, the demanding State's motive in seeking extradition (assuming it could be divined) is irrelevant.

In any event, to invoke the exception in the treaty, defendant has to show that at the time of the alleged offense there was a violent political disturbance such as war, revolution, or rebellion and that the offense was committed in the course of and incidental to the violent political disturbance. Ordinola, 478 F.3d at 611 (Traxler, J., concurring) ("Virtually every court to encounter the question of whether the alleged crime is a relative political offense has applied this two-pronged test."). See, e.g., Barapind v. Enomoto, 400 F.3d 744, 750 (9th Cir. 2005) (en banc) ("To determine whether the political offense doctrine bars extradition, we apply a two-prong incidence test. For a crime to qualify as one of a political character . . . there must be: (1) the occurrence of an uprising or other violent political disturbance at the time of the charged offense, and (2) a charged offense that is incidental to in the course of, or in furtherance of' the uprising.") (internal quotations omitted); Escobedo v. United States, 623 F.2d 1098, 1104 (5th Cir. 1980) ("This circuit defines a political offense under extradition treaties as an offense committed in the course of and incidental to a violent political disturbance, such as war, revolution and rebellion. An offense is not of a political character simply because it was politically motivated.") (citations omitted). Obviously, defendant cannot even pretend to meet these requirements.

VI. Non Bis In Idem*fn3

Article 6 of the Treaty provides: "Extradition shall not be granted when the person sought has been prosecuted or has been tried and convicted or acquitted by the requested Party for the offense for which extradition is requested." Treaty, Art. 6.

Defendant attempts to avail himself of this provision but, as the government correctly points out, the Article is phrased in the past tense ("has been prosecuted"). Phrased as it is in the past tense, the words "has been prosecuted" should not be interpreted to "encompass the yet-to-be completed criminal case in the United States." Memorandum in Opposition to Ye Gon's Preliminary "Explanation" and Motion to Vacate Order of Arrest ("Gov's Opp.") at 20.

The government's point that the words "has been prosecuted" should not extend to a case yet to be tried has much to recommend it. Under any other interpretation, the words "has been prosecuted" means that a criminal prosecution need only to have been initiated in the Producing State and that its mere existence precludes the extradition for that same offense. Attributing that intent to the signatories is strange for it would attribute to the signatories an intention to provide a protection that is certainly much greater than is, for example, provided to a defendant in the United States who, to invoke the double jeopardy clause, must first be placed in jeopardy by the impaneling of a jury. United States v. Andrews, 146 F.3d 933, 941 (D.C. Cir. 1998). Moreover, as a matter of domestic law, there is no provision in American law that precludes prosecution by one sovereign merely because another sovereign has initiated a prosecution. Yet, if the tense of the words "has been prosecuted" is ignored, it would mean that the signatories meant to preclude a prosecution because each sovereign had, for example, issued a complaint or indictment for the defendant for "the offense for which extradition is requested." A defendant would thereby be protected from prosecution and extradition merely because both sovereigns issued arrest warrants or indicted the defendant for the same offense. Interpreting the words "has been prosecuted" to mean the culmination of the prosecution by conviction or acquittal avoids that unnatural result.

By the same token, a treaty is a contract between countries and, if possible, every word of their agreement must be given effect. See Iceland S.S. Co., Ltd.-Eimskip v. U.S. Dep't of Army, 201 F.3d 451, 458 (D.C. Cir. 2000). The words "has been prosecuted" appear in addition to the words "has been tried and convicted or acquitted by the requested state," suggesting that the phrase "has been prosecuted" must mean something other than being tried or acquitted. The nice question of its exact meaning can be avoided in this case because, even if the two charging instruments in themselves trigger the protection of this Article, it is clear beyond all question that they do not charge the same offenses.

As the government suggests, a Blockburger*fn4 analysis that inquires whether the two offenses claimed to be the same for the purposes of the double jeopardy clause contains the same elements provides a principled manner of resolving that question, particularly since it can be based on familiar case law that protects the same interest as the Article in question--protecting a person from two prosecutions for the same crime. In Rezaq v. United States, 134 F.3d at 1121, 1127-28 (D.C. Cir. 1998), cert. denied, 525 U.S. 834 (1998), the court of appeals used the Blockburger analysis to reject a claim by a defendant who was prosecuted in the United States that he had already been convicted of the same offense in Malta. There is every reason to suppose that, confronted with the identical question here, the court of appeals would use the same ...


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