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In the Matter of the Extradition of Misc. Zhenly Ye

February 9, 2011

IN THE MATTER OF THE EXTRADITION OF MISC. ZHENLY YE GON, A/K/A ZHENLI YE GON, A/K/A ZHENLI YE, A/K/A EL CHINO.


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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case is before me for a certificate of extraditability. On September 15, 2008, the United States, acting on behalf of the Government of the United Mexican States ("Mexico"), pursuant to its formal request for the extradition of Zhenly Ye Gon ("Ye Gon"), filed a complaint. Complaint For Arrest With a View Towards Extradition (18 U.S.C. § 3184) [#1] ("Compl."). Hearings were held before me on February 2, May 14, and June 3, 2010.

BACKGROUND

Extradition proceedings are governed by 18 U.S.C. § 3184, et. seq.,*fn1 and the terms of the extradition treaty between the country requesting extradition and the country in which the individual is found -- here, the extradition treaty between Mexico and the United States. See Extradition Treaty, U.S.-Mex., May 4, 1978, 31 U.S.T. 5059, T.I.A.S. No. 9656 ("Treaty"). When presented with a complaint for extradition, by statute, a judge or magistrate judge must hold a hearing to consider the evidence of criminality presented by the requesting country and to determine whether it is "sufficient to sustain the charge[s] under the provisions of the proper treaty or convention." 18 U.S.C. § 3184. If the judge finds the evidence sufficient, he or she must "certify the same" to the Secretary of State, who makes the final decision whether to surrender the individual "according to the stipulations of the treaty." Ward v. Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990). Significantly, "[a]n extradition hearing is not the occasion for an adjudication of guilt or innocence." Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984) (internal quotation marks and citations omitted). Rather, it is a preliminary examination, similar to that conducted by a magistrate judge in the context of a criminal defendant being held on a domestic charge,*fn2 "to determine whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation." United States v. Kember, 685 F.2d 451, 455 (D.C. Cir. 1982), cert. denied, 459 U.S. 832 (1982).

An extradition certification is in order, therefore, where: 1) the judicial officer is authorized to conduct the extradition proceeding; 2) the court has jurisdiction over the fugitive; 3) the applicable treaty is in full force and effect; 4) the crimes for which surrender is requested are covered by the applicable treaty; and 5) there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is sought. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925); see also Foster v. Goldsoll, 48 App. D.C. 505, 517 (1919). Based on the following findings of fact, I conclude that those requirements are satisfied in this case.

FINDINGS OF FACT*fn3

1. Ye Gon is a Chinese national with Mexican citizenship who owned and operated businesses in and around Mexico City, Mexico. Aff. ¶¶ 32-36; Apdx. D at D-1, D-2(a), D-2(b), D-3, D-4.

2. Among those businesses was a pharmaceutical importing and brokering company named Unimed Pharm Chem ("Unimed"). Aff. ¶¶ 32-35; Apdx. D at D-2(a), D-2(b), D-3.

3. From 2003 to July 2005, Unimed legally imported 33.875 tons of ephedrine, pseudoephedrine, and pseudoephedrine hydrochloride pursuant to a permit from COFEPRIS.*fn4 Aff. ¶ 37; Apdx. D at D-5(a), D-5(b).

4. Ephedrine, pseudoephedrine, and pseudoephedrine hydrochloride are classified as psychotropic substances under Mexican health laws, and it is unlawful to import, transport, possess with intent to manufacture, or manufacture such psychotropic substances without a COFEPRIS permit. Apdx. B at 4-9; Apdx. D at D-49.

5. On September 24, 2003, Ye Gon contracted with a Chinese company named Chifeng Arker Pharmaceutical Technology Co., Ltd. ("Chifeng Arker") to buy an "intermediate" chemical identified as "hydroxy benzyl-N-methylacetethamine"*fn5 which, according to the contract, was a precursor chemical that could be used to produce pseudoephedrine or pseudoephedrine hydrochloride. Aff. ¶¶ 37-40; Apdx. D at D-6(a).

6. Ye Gon and his senior chemist, Bernardo Mercado Jimenez ("Jimenez"), both signed the contract on behalf of Unimed. Apdx. D at D-6(a).

7. According to the terms of the contract, Chifeng Arker agreed to sell and Unimed agreed to purchase a minimum of 50 tons of the chemical annually. Aff. ¶ 38; Apdx. D at D-6(a).

8. The contract also called for Chifeng Arker to provide technical support to aid Unimed in the actual production of pseudoephedrine, to include "workshop housing design." Aff. ¶ 39; Apdx. D at D-6(a), D-6(b).

9. The Mexican government never issued a permit to Unimed or Ye Gon to manufacture psychotropic substances such as pseudoephedrine. Aff. ¶ 35; Apdx. D at D-5(a).

10. In 2003, when Ye Gon entered into this contract, Unimed was the fifth largest out of 19 importers of pseudoephedrine and ephedrine in Mexico; the next year, 2004, his company had more than doubled its pseudoephedrine and ephedrine imports, and had risen to third largest among 23 importers. See Ye Gon Trial Exhibit 199 at 17.

11. In 2004, the Mexican government determined that there was being imported into Mexico much more ephedrine and pseudoephedrine than was needed for lawful medical purposes and that, to prevent diversion of those substances for unlawful use, the amount permitted to be imported should be reduced. Aff. ¶¶ 43-44; Apdx. D at D-5(c).

12. Consistent with this policy change, on July 1, 2005, the Mexican Secretary of Health, acting through COFEPRIS, eliminated Unimed and seven other companies as authorized importers of psychotropic substances, including ephedrine and pseudoephedrine. Aff. ¶ 45; Apdx. D at D-9(a).*fn6

13. Despite the loss of permission to import psychotropic substances in July 2005, and despite the fact that he had not been authorized to manufacture psychotropic substances, in October 2005, Ye Gon began to build and equip a manufacturing plant in Toluca, Mexico, with the help of Chinese advisors, as contemplated by the September 2003 contract with Chifeng Arker. Aff. ¶¶ 53, 55-60; Apdx. A ¶¶ 82, 137; Apdx. D at D-6(a), D-19, D-20.

14. Ye Gon also knowingly imported psychotropic substances from China without the required permits on at least four occasions between December 2005 and December 2006. Aff. ¶¶ 63, 66, 72, 75; Apdx. D at D-21(a), D-21(b), D-21(c), D-21(d), D-23(a), D-23(b), D-23(c), D-28(a), D-29(a), D-29(b), D-30(a), D-30(b), D-30( c), D-30(d), D-31(a), D-31(b), D-31( c), D-31(e).

15. On December 5, 2005, a shipment for Unimed arrived at the port of Manzanillo. Aff. ¶ 63.

16. Unimed officials, including Ye Gon and the senior company chemist, Jimenez, certified that the shipment contained 20,000 kilograms of a chemical described as "N-methlyacetilamino" from a Hong Kong company called Emerald Import & Export. Aff. ¶ 63; Apdx. D at D-21(a), D-21(b), D-21(c), D-21(d).

17. The shipment was stopped at customs, however, and the Mexican authorities took samples and ascertained that the certification was false; the substance was not "N-Methly-Acetilamino" but "N-Acetyl Pseudoephedrine." Aff. ¶ 65; Apdx. D at D-22.

18. Under Mexican law, "N-acetyl pseudoephedrine" is a regulated psychotropic substance because it can be used to make pseudoephedrine hydrochloride, which is used for the clandestine formulation of amphetamines. Aff. ¶ 108; Apdx. B at 6-7; Apdx. D at D-22, D-24, D-29(a), D-29(b).

19. The substance "N-methly-acetilamino" is not a recognized chemical substance, but an incomplete name that corresponds to "N-acetyl-pseudoephedrine." 5/14/10 Tr. at 14-15.

20. Chinese authorities indicated that there is no company by the name of Emerald Import & Export registered in Hong Kong. Aff. ¶ 108; Apdx. D at D-38.

21. Ye Gon falsely represented under oath to Mexican customs authorities that Emerald Import & Export was a supplier based in Hong Kong. Apdx. D at D-21(d).

22. On January 3, 2006, another shipment of approximately 29,400 kilograms arrived in Manzanillo for Unimed from Emerald Import & Export. Aff. ¶ 66.

23. The contents were described as "N-methly-acetilamino" in a document certified by Jimenez, although a chemical analysis by Mexican customs authorities indicated that the substance was in fact the same psychotropic substance as the one in the December 2005 shipment. Aff. ¶¶ 66, 68; Apdx. D at D-23(a), D-23(b), D-23(c), D-24.

24. On July 3, 2006, a shipment of a substance that Jimenez certified to be "Hydroxy BenzylN-Methyl Acetethamine" arrived from Hong Kong, again sent by Emerald Import & Export. Aff. ¶¶ 72-73; Apdx. D at D-28(a), D-28(b), D-28(c), D-28(d).

25. "Hydroxy benzyl-N-methyl acetethamine" is the name of the intermediate chemical that Ye Gon contracted to buy from Chifeng Arker in September 2003 to use to produce pseudoephedrine and pseudoephedrine hydrochloride. Aff. ¶ 38; Apdx. D at D-6(a).

26. Tests of samples from the July 3, 2006 shipment revealed that the substance was again actually "N-acetyl-pseudoephedrine" and not "hydroxy benzyl-N-methyl acetethamine." Aff. ¶¶ 75, 108; Apdx. D at D-29(a), D-29(b).

27. After samples were obtained from the December 2005 and January 2006 shipments, both shipments were released to a cargo company hired by Ye Gon to transport the shipments to the Unimed warehouse in Mexico City. Aff. ¶¶ 63, 66, 71.

28. Similarly, after samples were obtained from the July 2006 shipment, the shipment was released for transportation by a cargo company to Ye Gon's manufacturing plant in Toluca. Aff. ¶¶ 64, 66, 71-75; Apdx. A ¶¶ 59, 66; Apdx. D at D-26; D-27, D-28(a), D-31(e).

29. In November 2006, Mexican authorities intercepted yet another shipment to Unimed, again purportedly from Emerald Import & Export Co. Aff. ¶¶ 120-122.

30. The shipment, which was intended for delivery to the Toluca plant, was detained and samples of its contents were taken. Aff. ¶¶ 120-122; Apdx. A ¶¶ 59, 62, 66; Apdx. D at D-25(b), D-26, D-27, D-40(a), D-40(b), D-41(a).

31. Expert analysis determined that its contents, which were certified by Jimenez to contain 19,797 kilograms of "hydroxy benzyl N-methyl acetethamine," were instead a chemical mixture containing ephedrine acetate. Aff. ¶¶ 122-123; Apdx. D at D-40(c), D-41(b).

32. Under Mexican law, ephedrine acetate is a psychotropic substance. Aff. ¶ 123; Apdx. B at 6-7; Apdx. D at D-41(b).

33. In a statement dated July 2007, Ye Gon said that this fourth shipment, which was seized by Mexican authorities, was from Chifeng Arker, pursuant to Unimed's contract with Chifeng Arker. Respondent's Request for Hearing and Opposition to Government's Request for Certificate of Extraditability [#112], Exhibit 1 at 3.

34. The Tuluca plant was operational by April 2006. Aff. ¶ 61.

35. According to a plant worker, the plant received daily shipments of a white hard chemical substance that was then heated with hydrochloric acid to form a white crystalline powder. Aff. ¶¶ 61, 83-84; Apdx. A ¶¶ 215, 286; Apdx. D at D-16, D-32.

36. According to Mexican chemical experts, "N-acetyl-pseudoephedrine," which Ye Gon had been secretly importing and transporting to the Unimed warehouse or directly to the Toluca plant, can be converted to pseudoephedrine hydrochloride by treating it with heated hydrochloric acid. Aff. ¶ 65; Apdx. D at D-22.

37. Certain machinery used in that process, and certain areas of the plant, were off limits for many plant personnel. Aff. ¶ 79; Apdx. A ¶ 286; Apdx. D at D-32.

38. That equipment and those areas seemed to be handled exclusively by Jimenez and one or two Chinese consultants. Aff. ¶ 79; Apdx. A ¶ 286; Apdx. D at D-32.

39. In March 2007, Mexican authorities searched the Toluca plant, taking samples from the machines, tanks, barrels, and bags that had been described by plant workers as the place where they produced over 600 kilograms daily of a "white crystalline powder." Aff. ¶ 138; Apdx. D at D-48.

40. In the analyzed samples, Mexican chemical experts identified the presence of ephedrine, pseudoephedrine and ephedrine acetate, as well as methamphetamine acetate, which Mexican law classifies as psychotropic substances. Aff. ¶ 138; Apdx. D at D-48.

41. Under Mexican law, the first three substances are considered to be essential chemical precursors of methamphetamine. Aff. ¶ 138; Apdx. D at D-48.

42. The machinery at the Toluca plant was appropriate for the manufacture of psychotropic substances, such as pseudoephedrine, ephedrine, and ephedrine acetate. Apdx. D at D-49.

43. Ye Gon did not have a permit to produce psychotropic substances in Mexico. Aff. ¶¶ 35, 98; Apdx. A ¶ 274; Apdx. D at D-5(a), D-15.

44. In addition, traces of sulfuric acid were found in the Toluca plant. Aff. ¶ 138; Apdx. D at D-48, p. 6, Sample 40.

45. Because sulfuric acid is classified as an "essential chemical product" by Mexican law, its diversion for the unlawful production of psychotropic substances is a criminal violation of Mexican health laws. Aff. ¶ 138; Apdx. B at 9; Apdx. D at D-48.

46. According to workers at the Toluca plant, the white crystalline powder produced at the plant was bagged and driven away by Ye Gon or his personal driver at the end of the work day. Aff. ¶¶ 81, 85; Apdx. A ¶¶ 215, 286; Apdx. D at D-16; D-32.

47. During the same period of time, the driver was seen arriving at the warehouse and office of Unimed in Mexico City in the evening, where he disabled security cameras. Aff. ...


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