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In re Extradition of Gon

January 8, 2010

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

Background

On May 13, 2009, the Court issued a Memorandum Opinion in which it denied respondent's request for discovery.*fn1 In the Matter of the Extradition of Zhenly Ye Gon, 613 F. Supp. 2d 92, 100-03 (D.D.C. 2009). In that opinion, I concluded that extradition could not be conditioned upon discovery from Mexico, the demanding state; any "right" to discovery could at most extend to discovery from the United States itself. Id. at 101. I nevertheless reviewed each of the discovery demands made and concluded that respondent's "demands for discovery would fail even if this Circuit were to ultimately conclude that limited discovery from the United States itself may be permitted in an extradition matter." Id.

At a hearing held on September 17, 2009, I directed the parties to submit supplemental briefs addressing "whether, in an extradition hearing, the traditional requirement of producing exculpatory evidence flowing from the Supreme Court's decisions in Brady*fn2 and Giles v. Maryland*fn3 applies." Transcript of Sept. 17, 2009 Hearing at 32.

In his supplemental submission, respondent, despite my request, protests that "he has not made a Brady request for exculpatory evidence, but rather requested information in the government's possession, which could negate probable cause in this matter." Supplemental Memorandum in Support of Respondent's Request for Discovery [#79] ("Supp. Mem.") at 7. He cites to authority in other Circuits that indicates that courts have an inherent power to order discovery and insists that this Court should exercise that power as to information in the possession of the United States itself. Id. at 11. Relying on such an inherent power, he seeks "all information in the government's possession regarding the witnesses identified as having 'recanted' in [respondent's] criminal case," as well as the following:

a. Any and all information, including, but not limited to, documents, witness statements, audio or visual evidence, and/or reports, related to "Emerald Import & Export Company," referred to by Mr. Diaz Lopez in his affidavit and/or the supporting documents submitted therewith;

b. Any and all information, including, but not limited to, documents, witness statements, audio or visual evidence, and/or reports, related to any and all alleged employees of Mr. Ye Gon referenced by Mr. Diaz Lopez in his affidavit and/or the supporting documents submitted therewith;

c. Any and all information, including, but not limited to, documents, witness statements, audio or visual evidence, and/or reports related to any and all of the "shipments" referenced by Mr. Diaz Lopez in his affidavit and/or the supporting documents submitted therewith;

d. Any and all information, including, but not limited to, documents, witness statements, audio or visual evidence, and/or reports related to the use and/or shipment of cash by Mr. Ye Gon or Unimed referenced by Mr. Diaz Lopez in his affidavit and/or the supporting documents submitted therewith;

e. Any and all information, including, but not limited to, documents, witness statements, audio or visual evidence, and/or reports related to the investigation of Mssrs. [sic] Diaz Lopez and/or Ramirez Mandujano by either Mexican or United States law enforcement, including the Mexican Attorney General's Office or any agency, department or office of the United States government, including the United States Embassy in Mexico;

f. Any and all information, including, but not limited to, documents, witness statements, audio or visual evidence, and/or reports related to any investigation of corruption in SIEDO or the PGR by either Mexican or United States law enforcement, or other governmental departments, agencies or offices, including the United States Embassy in Mexico;

g. Any and all information, including, but not limited to, documents, witness statements, audio or visual evidence, and/or reports related to any witness against Mr. Ye Gon who has either recanted or changed their statements and who were not previously identified by the government.

Supp. Mem. at 8-9.

Thus, respondent abjures any reliance on the government's obligation imposed by Brady to produce exculpatory evidence and therefore does not submit any argument as to why this obligation should be imposed on the United States in an extradition ...


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