Petition for Writ of Certiorari — Oen Yin-Choy v. Robinson

| _ = Web, Woe

FILED

88-1481 me 7 1989

JOSEPH F. SPANIOL, JR,

No. CLERK

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1988

OEN YIN-CHOY,

Petitioner,

VS.

GLEN S. ROBINSON,

United States Marshal

for the Northern District of California,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

_ FOR THE NINTH CIRCUIT

Cepric C. CHAO

Counsel of Record

MICHAEL M. CARLSON

JENNY D. SMITH

MORRISON & FOERSTER

345 California Street

San Francisco, CA 94104

(415) 434-7000

Counsel for Petitioner

Oen Yin-choy

QUESTIONS PRESENTED

1. Does the Extradition Treaty between the United States and

the United Kingdom preclude extradition of an accused from the

United States to Hong Kong when, as a result of the reversion of

Hong Kong to Chinese rule on July 1, 1997, the accused will be

surrendered by the United Kingdom to China, a country with

which the United States has no extradition treaty?

2. Does the Due Process Clause of the Fifth Amendment

require that an accused in an extradition proceeding be provided

the original signed written statements of non-English speaking

witnesses to permit the accused to challenge the accuracy of the

foreign government’s English translations of the witnesses’

statements?

3. Does the Due Process Clause of the Fifth Amendment

require that the accused in an extradition proceeding be permitted

to cross-examine a key witness of the foreign government when

that witness is present at the extradition hearing?

4. What is the proper interpretation of 18 U.S.C. § 3190,

which provides that a United States consular officer may certify

the authenticity of evidence to be presented in an extradition

proceeding: (a) the interpretation of the court below that § 3190

precludes the extradition court from considering any objections to

evidence so certified, or (b) the conflicting and contrary interpre-

tation of the First Circuit in Greci v. Birknes, 527 F.2d 956 (lst

Cir. 1976), which has been followed in practice by numerous

federal district courts?

5. What is the proper interpretation of whether 28 U.S.C.

§ 455(a) requires a district judge who has issued an extradition

order to disqualify himself from hearing a petition for habeas

corpus filed to review that order: (a) the interpretation of the

court below that recusal is not required, or (b) the conflicting and

contrary interpretation compelled by the reasoning of the Fourth

Circuit in Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978)?

6. Does the Ninth Circuit’s decision here regarding the type

of evidence an accused may present in extradition proceedings

conflict with the holding of this Court in Collins v. Loisel, 259

U.S. 309 (1922)?

il

TABLE OF CONTENTS

Apes OF ALITUMORIIUES «26 ccc vccveneisesneeee iv

PRP EU MEP TU nk cc vin nnsnsksscuaenceaertnean l

pe rs cer te to l

CONSTITUTIONAL, STATUTORY AND TREATY

SOD CEN OR TO oo sk ks scccannteseekanmeseens l

SUATEReess OW Bites CARE 26 ivcccscsecencsneueen 2

REASONS FOR GRANTING THE WRIT ........... +

ARGUMENT....... POPTECTET Tt re 6

I. CERTIORARI SHOULD BE GRANTED BE-

CAUSE HONG KONG’S EXTRADITION RE-

QUEST VIOLATES THE US.-U.K. TREATY... 6

A. Hong Kong Cannot Satisfy the Treaty Require-

ment that Mr. Oen Not Be Extradited to a Third

COONEY ook 6nn has 2. Ee wl eeeeeeee 7

B. Hong Kong Cannot Satisfy the Treaty Require-

ment that Mr. Oen Not Be Prosecuted for Addi-

- omen Cae Sn oa wo eee : 8

Il. CERTIORARI SHOULD BE GRANTED TO

CLARIFY THE RIGHT OF THE ACCUSED TO

CHALLENGE THE ACCURACY AND RELIA-

BILITY OF TRANSLATED WRITTEN TESTI-

MORRTE D6 cS a dks CARN Ud UR OR RD eee 1]

Ill. CERTIORARI SHOULD BE GRANTED TO

CLARIFY THE RIGHT OF THE ACCUSED TO

CROSS-EXAMINE WITNESSES PRESENT AT

THE EXTRADITION HEARING .............. 14

IV. CERTIORARI SHOULD BE GRANTED TO RE-

SOLVE A CONFLICT AMONG THE CIRCUITS

REGARDING WHETHER A DISTRICT COURT

HEARING AN EXTRADITION REQUEST MAY

EXCLUDE INCOMPETENT EVIDENCE....... 17

iil

TABLE OF CONTENTS

V. CERTIORARI SHOULD BE GRANTED TO RE-

VI.

SOLVE A CONFLICT AMONG THE CIRCUITS

REGARDING WHETHER A DISTRICT COURT

JUDGE MAY HEAR A HABEAS CORPUS PETI-

TION CHALLENGING THAT JUDGE’S CERTI-

Pree Gr EATRADITABILITY ...........

CERTIORARI SHOULD BE GRANTED TO

CLARIFY WHAT EVIDENCE AN ACCUSED

MAY PRESENT IN OPPOSING HIS EXTRADI-

CONCLUSION ...... DR ee en ha reea a

Page

iV

TABLE OF AUTHORITIES

Cases

Page

Berenyi v. Immigration Director, 385 U.S. 630 (1967).... 13

Bingham v. Bradley, 241 U.S. 511 (1916) ............. 15, 16

Buckley v. Valeo, 424 US. 1 (1976)... 6... cee cues. 20

Caltagirone v. Grant, 629 F.2d 739 (2d Cir. 1980) ....... 16

Chariton v. Kelly, 229 U.S. 447 (1913) ............... 24, 26

Coleman v. Burnett, 477 F.2d 1187 (D.C. Cir. 1973)..... 26

Collins v. Loisel, 259 U.S. 309 (1922) ............. 18, 23, 24

Commodity Futures Trading Comm’n v. Schor, 478 U.S.

eI ns eee one Noes eh ae eed 20

Coy v. Iowa, ____ U.S. , 108 S. Ct. 2798 (1988) ... 15

David v. Attorney General, 699 F.2d 411 (7th Cir.), cert.

emia, MG US. B9d CIOS) 5 oi cv neces dace eucess 21, 23

Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985), cert.

@emiod, S73 US. 1OUG (ISG) oon oc vk cc cede cases 21, 23

Escobedo v. United States, 623 F.2d 1098 (Sth Cir.), cert.

grmeladl, GOP GD. TOG Cie oo oe os ee es 13

Fay ©. TOGM 21d Vie OPe EOE cece cessecnuces 22

Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga.

CR ais eR C Le ie eS Ree ORS e vie 24

Greci v. Birknes, 527 F.2d 956 (Ist Cir. 1976) ......... 17,18

Corin Vv: Shine, 167 US. Vet C1962) once ci cakes. 15, 16

In re Artukovic, 628 F. Supp. 1370 (C.D. Cal. 1986) .... 13

In re Assarsson, 635 F.2d 1237 (7th Cir. 1980), cert. denied,

ae ee ee CU ce eee eee eee as 18

In re D’Amico, 185 F. Supp. 925 (S.D.N.Y. 1960), appeal

dismissed, 286 F.2d 320 (2d Cir.), cert. denied, 366 U.S.

WOR SOMONE os es ee aa eNOS ES EE Re 24

In re Locatelli, 468 F. Supp. 568 (S.D.N.Y. 1979)....... 6

In re Sindona, 450 F. Supp. 672 (S.D.N.Y. 1978) ...... 18, 24

Kentucky v. Stincer, 482 U.S. ___., 107 S. Ct. 2658 (1987) 15

Vv

TABLE OF AUTHORITIES

CASES

Liljeberg v. Health Services Acquisition Corp., __. US.

sinigig I a EE RID ened ciae haan etcwes

Marx & Co. v. Diners Club, Inc., 550 F.2d 505 (2d Cir.),

const. Gamted. 454 TiS. G6i CYSTT) ©. oc ck ccc ewes

Messina v. United States, 728 F.2d 77 (2d Cir. 1984) ....

People v. Gutierrez, 137 Cal. App. 3d 542, 187 Cal. Rptr.

Pe WEUED 455i dae mwanwde dee SGleecE Nea poe ee

Plaster v. United States, 720 F.2d 340 (4th Cir. 1983)....

Quinn v. Robinson, 783 F.2d 776 (9th Cir.), cert. denied,

ip te Oe EL | ener EUG, Vee

Republic of France v. Moghadam, 617 F. Supp. 777 (N.D.

Ce SES Soa avy oo Hd Cdk RAAT Oe ee

Page

Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978) ...21, 22, 23

Rosado v. Civiletti, 621 F.2d L179 (2d Cir.), cert. denied,

ee Ue ee CD one dca venues cases 16

Shapiro v. Ferrandina, 355 F. Supp. 563 (S.D.N.Y.), modi-

fied and aff'd, 478 F.2d 894 (2d Cir.), cert. dismissed, 414

CL. Oe aE occ ccadpavess devenskovunecsce ee

Simmons v. Braun, 627 F.2d 635 (2d Cir. 1980)......... 15

United States v. Artukovic, 170 F. Supp. 383 (S.D. Cal.

SPE cc aw ee huh y aden sk te 10 Ree ee ee 18, 19

United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) ... 20

United States v. Najohn, 785 F.2d 1420 (9th Cir.), cert.

denied, 479 US. 1009 C1966) o.oo cc cnccccccccwccadns 8

United States v. Security Indus. Bank, 459 U.S. 70 (1982) 21

Valentine v. United States, 299 U.S. 5 (1936)........... 5

Van Cauwenberghe v. Biard, ___. U.S. ___., 108 S.. Ct.

OS Ck vx keane bh den oe 5

Zanazanian v. United States, 729 F.2d 624 (9th Cir. 1984) 18

vi

TABLE OF AUTHORITIES

Constitutions, Statutes and Rules

Page

U.S. Constitution, Amendment V ..................... :

18 U.S.C

a dt ai ae apelg ye La ie BORE SIM, £6 bar passim

28 U.S.C

RENE Gos C olay ad epee a pane eae eee 22

Et ere PE ee ety oe

Ne Ss 6's vids FS EU rae eee Be eee l

TES ea 304.2 646 be oe sds adem eae eR Eee l

8a de 55g 5 a aids Kok A warner gra l

re kee ae ho os 40 kee Be ed eee Te Pe

eck ap ales oon whe aes wae RS Ee l

es ods kek ba wake en ee ee 23

a AG she ea 4 Wid AS yaw aw ae He l

aN ev? 22

eee Oe WED, AGM. oc coc cc secede vbucavacuses ae

RS TN 4 sie oe Cee ame a oe 22

ee COM WOON. gs sas ee oe ck Cokes dan sadewn 22

pe EEUU GO. CUP WER. ok ck nace ccGcaevabsvaws 22

i TN as ka oewrk eens we waenes pa

SO ES a Ek re 22

Treaties

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,

[eam ae We. 22f, CLAS. No. 0468 .......066 003. passim

Vil

TABLE OF AUTHORITIES

TREATIES

cage

Supplementary Treaty Concerning the Extradition Treaty

Between the Government of the United States of America

and the Government of Great Britain and Northern Ire-

land, December 23, 1986 (132 Cong. Rec. S9120 (daily

ed. July 16, 1986))....... ccc cece ccc cececeeceeuee. 10

Foreign Statutes

Hong Kong Theft Ordinance

RNS aes va Nie snag were tee ees 2

DEG RC ON Gace erie cs oe ee cae 2

Other Authorities

Kester, Some Myths of United States Extradition Law, 76

(eo: LJ. 14461. CISGS) ....c 5. ee ere Te Pree es

Note, Extradition Reform: The Role of the Judiciary in

Protecting the Rights of a Requested Individual, 1X B.C

ye oe ee ae |) ne 5

Reform of the Extradition Laws of the United States: Hear-

ings on H.R. 2643 Before the Subcomm. on Crime of the

House Comm. on the Judiciary, 98th Cong., Ist Sess. 34

Do | | EAR De Spe ren a oh ay eee SS.

132 Cong. Rec. $9257 (daily ed. July 17, 1986) ....... 8

5 Wigmore, Wigmore on Evidence

§ 1393 (Chadbourn Rev. 1974) .............. 13

7 Wigmore, Wigmore on Evidence

Ae ee, eae es | ar 20

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1988

OEN YIN-CHOY,

Petitioner,

VS.

GLEN S. ROBINSON,

United States Marshal

for the Northern District of California,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Oen Yin-choy respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered in this

action on October 5, 1988. The Ninth Circuit affirmed the

decision of the United States District Court for the Northern

District of California denying Mr. Oen’s petition for a writ of

habeas corpus. That petition was filed to challenge the district

court’s Certification of Extraditability, which approved the extra-

dition of Mr. Oen to Hong Kong.’

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 858 F.2d 1400, and is

reprinted in the Appendix hereto. The relevant orders of the

district court have not been reported and are also reproduced in

the Appendix.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1) to

review the Ninth Circuit’s decision. This petition is timely filed

following the Ninth Circuit’s denial, on December 7, 1988, of

Mr. Oen’s petition for rehearing and its rejection of the suggestion

for rehearing en banc. See Sup. Ct. R. 20.4. The Ninth Circuit

had jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. The

district court had subject matter jurisdiction pursuant to 28

U.S.C. § 1331, in that Mr. Oen’s petition for a writ of habeas

corpus was a civil action arising under 28 U.S.C. § 2241.

CONSTITUTIONAL, STATUTORY AND TREATY

PROVISIONS INVOLVED

This suit involves application and interpretation of the Extradi-

tion Treaty Between the Government of the United States of

' All parties to Mr. Oen’s action seeking a writ of habeas corpus are

listed in the caption. The habeas action sought review of the earlier

extradition proceedings which were initiated by the United States

Attorney on behalf of the government of the United Kingdorn and the

Hong Kong Crown Colony.

2

America and the Government of the United Kingdom of Great

Britain and Northern Ireland, June 8, 1972, 28 U.S.T. 227,

T.LA.S. No. 8468 (the “Treaty”). More specifically, this suit

involves Article XII(1) of the Treaty, which prohibits the country

requesting extradition from subsequently “extraditing” the ac-

cused to a third country, or from proceeding against the accused

for offenses other than those which formed the basis of the

original extradition request. This suit also involves the Hong Kong

Theft Ordinance §§ 19(1)(a) and 21(1), the Due Process Clause

of the Fifth Amendment to the United States Constitution,

18 U.S.C. § 3190, and 28 U.S.C. § 455(a). The relevant portions

of each of these provisions are set forth in the Appendix.

STATEMENT OF THE CASE

The Hong Kong government is seeking to have Mr. Oen

extradited from the United States to Hong Kong. Mr. Oen is a

United States permanent resident with Indonesian citizenship.

Until 1986 he was the majority shareholder and chairman of the

board of Union Bank of Hong Kong. The Hong Kong government

has charged Mr. Oen with six counts of “false accounting” in

connection with five Union Bank loans and with one count of

publishing a false statement in the bank’s 1984 annual report.”

On March 6, 1987, at the request of the Hong Kong Crown

Prosecutor, the United States Attorney for the Northern District

of California filed a complaint for Mr. Oen’s provisional arrest on

the Hong Kong charges. On April 15, 1987, after Mr. Oen’s arrest

and release on bail, the United States Attorney filed the Hong

Kong government’s Request for Extradition (the “Request”’),

>The Hong Kong government claims that the loans were false

because their proceeds were not disbursed directly to the named borrow-

ers and because the loan proceeds were disbursed in a complicated

manner. The loan proceeds allegedly were used to repay a letter of credit

issued by Union Bank to Borewell Trading Company Ltd. (“Borewell”)

and to repay depositors in Union Bank’s offshore deposit, or Asian

Currency Unit (“ACU”), accounts. The Hong Kong government claims

the annual report was false because a footnote therein included these

five loans among the bank’s assets.

3

supported by written “affirmations” (i.e., affidavits) submitted at

that time.

Prior to the hearing on the Request, Mr. Oen challenged the

district court’s jurisdiction to order his extradition, arguing that

Hong Kong had not satisfied and could not satisfy the prerequi-

sites to extradition set forth in the Treaty. Because of the

scheduled transfer of Hong Kong to China in July 1997, Hong

Kong could not satisfy the Treaty’s requirements that Mr. Oen

not be extradited to a third country or tried for offenses other than

those on which he was extradited.

Mr. Oen also moved to have the district court exclude ten of

the Hong Kong government’s affirmations. Those affirmations

were written in English, but were signed by witnesses who neither

spoke nor read English. Mr. Oen argued that the affirmations had

not been properly sworn, as required by the Treaty, and that their

admission would violate his due process rights. Alternatively,

Mr. Oen moved for production of the original written signed

Chinese-language witness statements that were the basis for the

ten English-language affirmations. Mr. Oen argued that at a

minimum, due process entitled him to challenge the accuracy of

the Hong Kong government’s translation of the witnesses’

testimony.

Finally, Mr. Oen made more than 180 separate objections to

the competence and admissibility of statements made in the

affirmations submitted by the Hong Kong government.

The district court refused to consider any of Mr. Oen’s objec-

tions to the Hong Kong government’s evidence and denied Mr.

Oen’s motion for production of the Chinese-language witness

statements. The district court also denied Mr. Oen’s request to

cross-examine the Hong Kong police officer who was present in

court and whose written testimony formed the basis for the court’s

decision to admit the ten translated affirmations. The court also

rejected Mr. Oen’s argument that Hong Kong had not satisfied

the prerequisites to extradition under the Treaty. On September

4, 1987, the district court filed a Certification of Extraditability.

There being no appeal from that Certification, Mr. Oen, on

September 10, 1987, filed his petition for writ of habeas corpus.

4

Pursuant to the “related case” rule of the District Court for the

Northern District of California, the habeas petition was reas-

signed from the judge originally designated to hear the habeas

matter to the Honorable Robert H. Schnacke, who had decided

the extradition request. Mr. Oen moved for disqualification of

Judge Schnacke, pursuant to 28 U.S.C. § 455(a), since habeas

was the only means to review Judge Schnacke’s extradition

rulings. On October 6, 1987, Judge Schnacke denied the motion

for disqualification, and on November 13, 1987, he denied Mr.

Oen’s habeas petition.

Mr. Oen filed a timely appeal to the Court of Appeals for the

Ninth Circuit. On October 5, 1988, the Ninth Circuit affirmed

the district court’s denial of Mr. Oen’s habeas petition, and on

December 7, 1988, denied Mr. Oen’s petition for rehearing and

rejected his suggestion for rehearing en banc. On December 12,

1988, the Ninth Circuit stayed extradition pending the filing and

resolution of this petition for writ of certiorari. (App. P at A-56.)°

REASONS FOR GRANTING THE WRIT

This petition presents an important and unresolved question of

federal law regarding the meaning and application of the Treaty

between the United States and the United Kingdom. This is-

sue—regarding the impact on the Treaty of the scheduled 1997

reversion of Hong Kong to the People’s Republic of China—wiill

arise in every extradition request made by Hong Kong between

now and 1997. It has not been addressed by any appellate court

other than the Ninth Circuit in this matter. Mr. Oen submits that

the decision of the Ninth Circuit is in error, and that the

unresolved question about the meaning of the Treaty is of such

exceptional importance that it should be settled by this Court.

* All references to the Appendix to this petition are denominated

“App.,” followed by the unique letter assigned to each item. References

to the Clerk’s Record, United States District Court for the Northern

District of California, are denominated by “CR,” followed by the district

court’s docket control number assigned to the document in question and

the page number within that document.

5

This petition also presents a number of important questions

regarding the constitutional protections available to the accused,

and the evidentiary and procedural rules to be applied, in extradi-

tion proceedings. Questions of this type have not been addressed

by this Court for 53 years, since its decision in Valentine v. United

States, 299 U.S. 5 (1936). The law now being applied by the

lower federal courts has developed in the context of this Court’s

pre-1936 decisions. Both commentators and the United States

Congress have suggested that the resulting U.S. extradition law is

outdated and in need of reform. See, e.g., Kester, Some Myths of

United States Extradition Law, 76 Geo. L.J. 1441, 1441-43, 1491-

93 (1988); Note, Extradition Reform: The Role of the Judiciary

in Protecting the Rights of a Requested Individual, 1X B.C. Int’

& Comp. L. Rev. 293, 293-95 (1986); Reform of the Extradition

Laws of the United States: Hearings on H.R. 2643 Before the

Subcomm. on Crime of the House Comm. on the Judiciary, 98th

Cong., Ist Sess. 34 (1983) at 1, 31 (statement of Rep. Hughes),

34-35 (statement of Dep. Ass’t Att’y Gen. Olsen), 194-95 (anal-

ysis by Prof. Bassioun1).

During the 53 years since Valentine, there have been far-

reaching changes in both the procedural and the constitutional

protections applicable to individuals accused of criminal acts. As

a result of these changes, substantial tension now exists between

the due process rights afforded to an accused who will be tried

in this country and the rights that the lower federal

courts—following this Court’s pre-1936 decisions—afford an ac-

cused who will be extradited to another country to stand trial. See

Kester, supra, 76 Geo. L.J. at 1442, 1444-46.* This tension has

resulted in numerous conflicting decisions by the lower courts as

they try to apply those older opinions in the context of modern

* Although extradition proceedings are often characterized as not

strictly criminal in nature, the full “coercive power of the state’’ is

brought to bear on a person sought for extradition, and his liberty is

significantly restricted by pretrial detention, the need to post bail, and

the potential that he will be removed to a foreign state to stand trial on

the criminal charges. Kester, supra, 76 Geo. L.J. at 1445-47; cf. Van

Cauwenberghe v. Biard, US. , 108 S. Ct. 1945, 1951

(1988).

oo

6

procedural protections. Several such conflicts are presented by

this petition.

The past 53 years also have seen a dramatic increase in the

number of extradition requests processed by the United States,

with even greater increases expected in the future. See 1983

Hearings on H.R. 2643 at 34, 42-44 (testimony of Dep. Ass’t

Att’y Gen. Olsen); Kester, supra, 76 Geo. L.J. at 1443. This

growth in the importance of international extradition makes it

essential that this Court resolve the conflicting lower court deci-

sions and clarify extradition law as sought by this petition.

ARGUMENT

I. CERTIORARI SHOULD BE GRANTED BECAUSE

HONG KONG’S EXTRADITION REQUEST VIOLATES

THE U.S.-U.K. TREATY

Extradition requests made to the United States by Hong Kong

are presently governed by the Treaty. (App. A at A-1.) The

United States courts only have jurisdiction to order extradition of

a person to Hong Kong pursuant to the terms and conditions of

that Treaty. See In re Locatelli, 468 F. Supp. 568, 570 (S.D.N.Y.

1979). See also Treaty, Art. I.

Because of the United Kingdom’s plan to surrender sovereignty

_ over Hong Kong to China in 1997, Hong Kong cannot satisfy two

of its obligations under the Treaty: the requirement that an

extradited individual not be extradited to a third country and the

requirement that an extradited individual be tried only on the

charges for which he is extradited. The district court should have

denied extradition because of Hong Kong’s failure to satisfy these

conditions. Although the district court erroneously granted extra-

dition, it did recognize Mr. Oen’s arguments as raising significant

issues of first impression: “I suspect we have a matter that the

[appellate] courts are going to want to look at.” (CR 12 at 1589.)

Indeed, these important questions of international law will arise in

every extradition request by the Hong Kong government for the

next eight years. For that reason, certiorari should be granted.

7

/

A. Hong Kong Cannot Satisfy the Treaty Requirement that.

Mr. Oen Not Be Extradited to a Third Country

The first precondition to extradition that was not satisfied here

is found in Article XII(1) of the Treaty, which provides:

A person extradited shall not be detained or proceeded

against in the territory of the requesting Party for any offense

Other than an extraditable offense established by the facts in

respect of which his extradition has been granted, or on

account of any other matters, nor be extradited by that Party

to a third State—

(a) until after he has returned to the territory of the

requested Party; or

(b) until the expiration of thirty days after he has

been free to return to the territory of the requested

Party.

(Emphasis added.) (App. A at A-2-A-3.) Thus, Hong Kong is

prohibited from surrendering Mr. Oen to a “third State” until

“after he has returned to the territory of the requested Party [the

United States]” or until thirty days after he is given the freedom

to return to the United States. Extradition cannot be granted

unless the country requesting extradition guarantees this protec-

tion to the accused.

Mr. Oen is accused of crimes carrying a maximum cumulative

sentence of 49 years. (See App. D at A-8; CR 13 at Conyngham

Aff. 99 15-16.)° If extradited and convicted, Mr. Oen could be

incarcerated in Hong Kong through July 1, 1997, when sover-

eignty over Hong Kong passes to China. (App. T at A-77-A-78.)

As a result of the United Kingdom’s surrender of Hong Kong,

Mr. Oen, in effect, will have been extradited to a third state,

China, in violation of Article XII(1). The Hong Kong govern-

ment has refused to guarantee that this will not happen. There-

fore, the Hong Kong government did not satisfy Article XII(1) of

> Each crime charged in the seven-count complaint has a potential

sentence of seven years’ imprisonment. (App. D at A-8; CR 13 at

Conyngham Aff. 9{ 15-16.)

amma

8

the Treaty, and the district court lacked jurisdiction to issue a

certification of extraditability.

The Ninth Circuit held there was no violation of Article

XII(1), because the surrender of Mr. Oen to China in 1997

would not be an “extradition.” (App. F at A-13.) Under the

Ninth Circuit’s reasoning, the Treaty prohibits Hong Kong from

formally extraditing Mr. Oen and others in his situation to third

countries, yet permits an informal “surrender” of such persons.

The Ninth Circuit’s formalistic distinction between “extradition”

and “surrender” renders meaningless the undertakings set forth in

Article XII(1), and ignores the overriding intent of the United

States that persons extradited from this country not be transferred

to nations having systems of justice far different from ours.°

B. Hong Kong Cannot Satisfy the Treaty Requirement that

Mr. Oen Not Be Prosecuted for Additional Offenses

The pending transfer of Hong Kong to China also precludes

satisfaction of the doctrine of “specialty.”’ That doctrine prohibits

the country requesting extradition from prosecuting the ac-

cused—once extradited—for any offense other than that for

which the surrendering country agreed to extradite him. Quinn v.

Robinson, 783 F.2d 776, 783 (9th Cir.), cert. denied, 479 U.S.

882 (1986). This principle of international law is codified in

Article XII of the Treaty, which prohibits detention, trial, or

prosecution for any offenses other than those which form the basis

for the extradition order. Quinn, 783 F.2d at 783. (See also

App. A at A-2.) Specialty is based on comity, and requires that

the requesting state “live up to whatever promises it made in

order to obtain extradition.” United States v. Najohn, 785 F.2d

1420, 1422 (9th Cir.), cert. denied, 479 U.S. 1009 (1986). The

° During the Congressional debates concerning the Supplementary

U.S.-U.K. Extradition Treaty of 1986, Senator John Kerry expressed

the Senate Foreign Relations Committee's intent: “[The United States ]

will not extradite a fugitive to a system of justice unacceptable to us,”

i.é., a nation that does not “respect these fundamental individual

safeguards” of “human nights and civil liberties.” 132 Cong. Rec. $9257

(daily ed. July 17, 1986).

9

person facing extradition is entitled to raise objections based on

the doctrine of specialty. /d.

The undisputed evidence presented below by Professor Chiu,

an expert on Chinese law, established that the unique features of

Chinese law and the ambiguities in Hong Kong’s transition to

Chinese control will allow the Chinese government to assert

jurisdiction over crimes that occurred in Hong Kong before 1997.

(App. T at A-82.) Even if Mr. Oen is tried in Hong Kong before

1997, Chinese law and practice would permit his retrial and

resentencing after 1997.’ (Id. at A-83-A-84.) This is significant

because the Chinese criminal justice system reiects the Western

principle of nulla poena sine lege (no punishment without a pre-

existing prohibitory rule). (/d. at A-89.) Chinese criminal law

also is drafted in general terms (id. at A-88) and contains a

provision that where no crime specifically covers a given act, a

person may be punished according to the most closely analogous

existing statute. (Jd. at A-89.) Thus, if Mr. Oen is extradited,

convicted, and subsequently passed into Chinese custody, he will

be subject to retrial under Chinese law for offenses other than

those for which he has been extradited. Since Hong Kong cannot

guarantee that China will not prosecute him for additional of-

fenses, his extradition would violate Article XII(1) of the Treaty

and the doctrine of specialty.

The Ninth Circuit found no Treaty violation, stating that the

Treaty is binding only upon the United Kingdom and Hong Kong,

but not upon third states. (App. F at A-14.) Yet, the fact that

China is not bound by the Treaty’s commitments is precisely why

Hong Kong’s refusal to guarantee that Mr. Oen will not be

transferred to China constitutes a fundamental violation of the

Treaty. The Ninth Circuit states that under Mr. Oen’s treaty

interpretation, extradition to Hong Kong “would be the exception

rather than the rule.” (/d.) The Ninth Circuit ignores the

’ Chinese criminal procedure does not prescribe any time limit on the

reopening of a previously decided case. (App. T at A-83.) There is no

barrier under Chinese law to the ex post facto application of Chinese law

and procedure to acts committed in Hong Kong pnor to 1997. (/d. at A-

84-A-85.)

ee ee

10

judiciary’s fundamental responsibility to uphold the law as it is

written. If the executive branch is uncomfortable with the terms

of the existing Treaty, then it can negotiate with the United

Kingdom a modification to the Treaty, subject to Senate review

and approval, that resolves the troubling issue of the status of

extradited U.S. prisoners when Hong Kong reverts to China.

Until such renegotiation takes place, however, the rule of spe-

cialty is U.S. law and should have been applied to bar extradition

here.

During the debates concerning the Supplementary Treaty Con-

cerning 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, ratified and

entered into force December 23, 1986 (132 Cong. Rec. $9120

(daily ed. July 16, 1986)), the Senate Foreign Relations Com-

mittee found “particularly disturbing” the executive branch’s

contention that Northern Ireland’s judicial system was fair. 132

Cong. Rec. $9257 (July 17, 1986). If the Senate found controver-

sial the notion of extraditing alleged IRA terrorists to a country

under British rule, it is inconceivable that the Senate would

intend that a 70-year old man in ill health, accused of accounting

offenses, can be surrendered to China, whose criminal justice

system is radically different from ours and has never been ex-

amined by our Senate.®

Finally, the Ninth Circuit mistakenly assumed that the U.K.-

China Joint Declaration regarding the 1997 reversion of Hong

Kong (“Joint Declaration’) and the proposed Basic Law of the

Hong Kong Special Administrative Region (“Basic Law”) guar-

antee that the existing laws and judicial system of Hong Kong will

remain intact after 1997. (App. F at A-14.) However, as a leading

commentator on these matters has stated:

A joint declaration is more an announcement of intention

rather than a binding treaty... , the document amounts to a

mere unilateral declaration of policy by the PRC towards the

* See Senator Pete Wilson’s October 19, 1988, letter to Secretary

Shultz (reflecting disagreement with the Ninth Circuit’s Treaty inter-

pretation). (App. Y at A-113-A-114.)

11

Hong Kong people....Should Beijing renege on _ its

promises later, the British government would be in no posi-

tion to help the people of Hong Kong other than to give

moral support.

(App. BB at A-126.) (See also id. at A-127-A-129; App. W at

A-107; App. X at A-110-A-112.) The Basic Law has been

criticized for failing to implement important provisions of the

Joint Declaration. (App. AA at A-118-A-123.) Moreover, since

the Basic Law grants the Standing Committee of the National

People’s Congress of the People’s Republic of China the power to

invalidate any existing Hong Kong laws that it finds inconsistent

with the Basic Law, and to interpret the meaning of the provisions

of the Basic Law, it is China, not Hong Kong, that has the power

to decide whether Hong Kong’s existing laws remain in effect

after 1997. (See App. Z at A-115-A-117; App. BB at A-125-A-

131.) Thus, neither the Joint Declaration nor the Draft Basic Law

can mitigate Hong Kong’s failure to satisfy the rule of specialty as

required by the Treaty.

Il. CERTIORARI SHOULD BE GRANTED TO CLARIFY

THE RIGHT OF THE ACCUSED TO CHALLENGE

THE ACCURACY AND RELIABILITY OF TRANS-

LATED WRITTEN TESTIMONY

The bulk of the probable cause “evidence” against Mr. Oen is

contained in ten English-language “affirmations” (i.e., affidavits)

signed by Chinese-speaking witnesses whe do not speak or read

English. (See CR 10 at 975-985; CR 11 at 1295-99.) Although

these affirmations resulted from a flawed and highly questionable

police interview and translation process, and were replete with

odd locutions, grammatical and syntactical errors, and incoherent

passages, Mr. Oen was denied the opportunity to examine the

witnesses’ written Chinese statements on which the English

affirmations were based. Denying Mr. Oen the opportunity to

challenge the accuracy of the government’s translations violated

due process and undermined the integrity of the extradition

court’s probable cause finding. Certiorari should be granted to

clarify the due process requirements for presenting translated

testimony in extradition proceedings, an issue that will repeatedly

arise.

12

Mr. Oen presented uncontested testimony of an expert in

Chinese-to-English translation, who, after analyzing the errors in

syntax and grammar present in the ten affirmations, concluded

that more than one translator was involved in drafting them, that

at least one of the translators was of dubious ability, and that

there may be more serious translation errors than those readily

apparent to the reader of the English texts. (App. R at A-63-A-

64.) Accordingly, Mr. Oen sought the exclusion of the ten

affirmations or, alternatively, the production of the original wnit-

ten witness statements from which the affirmations were derived.

The extradition court initially ruled as follows:

[T]he defense is certainly entitled to see the orginal [ writ-

ten witness statements] and compare the original to the

translation and to verify the translation.

The defense has made a fairly strong case that there are,

obviously, areas of I won’t say incompetent translation, but

translation that raises substantial question about the compe-

tency of the translator.

(App. G at A-23.)

After initially denying the existence of any Chinese wmitten

statements (CR 11 at 1103 n.1; App. G at 24), the government

conceded their existence (CR 12 at 1405-06; App. I at A-30), but

continued to resist their production on the ground that if Mr. Oen

were given the witnesses’ original statements,

the Court would thereafter be provided by the defense with a

detailed list of the differences between the contents of these

statements and the submitted affirmations.

(CR 12 at 1515.) Of course, the government’s concession of

“differences” between the original written statements and the

affirmations only made more urgent Mr. Oen’s request for pro-

duction; Mr. Oen’s expert had correctly concluded that the

translations were flawed. The cause of these flaws was revealed by

the government’s disclosure of the questionable process by which

the ten affirmations were created—a process rife with opportunity

for misunderstandings, poor translations, and police biases to

13

adversely affect the reliability and competence of the

affirmations.’

Mr. Oen should have been allowed to examine the written

Chinese statements and to challenge the accuracy of the transla-

tions. Since the exact connotation given to foreign words may

determine whether probable cause exists, fairness requires that

foreign-language testimony submitted against an accused be ac-

curately translated. See People v. Gutierrez, 137 Cal. App. 3d 542,

546-47, 187 Cal. Rptr. 130 (1982); 5 Wigmore, Wigmore on

Evidence § 1393 at 146 (Chadbourn Rev. 1974). Likewise, due

process requires that a party facing extradition be given the

opportunity to challenge the accuracy of the government’s trans-

lations and to offer his own translations. [In re Artukovic, 628

F. Supp. 1370, 1376 (C.D. Cal. 1986). See also Escobedo v.

United States, 623 F.2d 1098, 1103 (Sth Cir.), cert. denied, 449

U.S. 1036 (1980).

The Ninth Circuit sidestepped this issue by assuming that the

district court’s finding that there were no original written Chinese

statements was not clearly erroneous. (App. F at A-16-A-17.)

This is a total misreading of the record.'? Chief Inspector Ip Lau

” The ten affirmations were created as follows: the witnesses gave oral

statements in Cantonese, which were transcribed in Chinese by police

officers; the written Chinese statements were reviewed and signed by the

witnesses; these written statements were then translated into English by

different police officers; the English translations were given to still other

police officers who altered them and converted them into English-

language “affirmations.” (App. V at A-99-A-103; CR 12 at 1453-55,

1521-24.) The alterations were purportedly made so that the statements

would progress in a more “coherent” manner in English. (App. U at A-

97.) Police officers made further changes in the text of the affirmations,

purportedly to improve their coherency and grammar. (/d.) Thus, by the

time the government submitted the affirmations, the witnesses’ original

statements had been re-worked by four layers of police personnel.

'° Although this Court generally is reluctant to set aside reasonable

conclusions of lower courts on purely factual issues, it “has not hesitated

to undertake independent examination of factual issues when constitu-

tional claims may depend on their resolution.” Berenyi v. Immigration

Director, 385 U.S. 630, 636 (1967). Here, due process is implicated by

14

Chuen’s affidavit clearly refers to signed written witness State-

ments in Chinese:

Evidence elicited from the interview would then be recorded

in the statement format. Whenever draft statements had

been prepared they would be handed to the witnesses for

them to make any correction, deletion or insertion, if they so

required. The statements would then be finalized or rewritten

if necessary prior to the witnesses signing them.

(App. V at A-101; emphasis added.) Moreover, the case agent,

Lulu Yui, submitted an affidavit that unequivocally demonstrated

that the ten challenged affirmations were based upon the wit-

nesses’ written Chinese statements. (App. U at A-95.)

Given Mr. Oen’s undisputed evidence regarding the affirma-

tions’ unreliability and given the government’s revelations regard-

ing the flawed interview/translation process, due process required

production of the original witness statements to enable Mr. Oen

to test whether the ten affirmations accurately reflected the

witnesses’ testimony.

II. CERTIORARI SHOULD BE GRANTED TO CLARIFY

THE RIGHT OF THE ACCUSED TO CROSS-EX-

AMINE WITNESSES PRESENT AT THE EXTRADI-

TION HEARING

Mr. Oen sought to cross-examine the case agent, Lulu Yui,

who had submitted key affidavit testimony'' (App. U at A-93-A-

98) and who was present in the courtroom during the extradition

hearing. (App. I at A-36-A-37.) Although the extradition court

initially stated that cross-examination was appropriate, it denied

the refusal to permit Mr. Oen to challenge the accuracy of the translated

testimony that was at the heart of the government’s case.

''Agent Yui’s affidavit was the linchpin for admission of the ten

challenged English-language affirmations, which in turn were essential

to the court’s finding of probable cause. Yui oversaw the process by

which the English-language affirmations were crafted by the Hong Kong

police. She drafted and edited a number of them personally. (App. U at

A-95-A-98.) Without her testimony, the ten affirmations were, in the

court’s view, “totally meaningless.” (App. G at A-23-A-24.)

15

the defense request when the government “strongly” objected.

(/d.) This denial was a deprivation of due process.

In Grin v. Shine, 187 U.S. 181, 184 (1902), this Court

observed that extradition procedures are governed by “well-

settled principles of criminal procedure... .”” One of the oldest of

these principles is the accused’s nght to be confronted with the

witnesses against him.

This language [regarding confrontation] “comes to us on

faded parchment”... with a lineage that traces back to the

beginnings of Western legal culture.

Coy v. Iowa, ___. U.S. ___.,, 108 S. Ct. 2798, 2800 (1988)

(citations omitted). The mght of cross-examination has been

described as “the principal means by which the believability of a

witness and the truth of his testimony are tested...” and the

“greatest legal engine ever invented for the discovery of truth.”

Kentucky v. Stincer, 482 U.S. , 107 S. Ct. 2658, 2662 (1987)

(quoting Davis v. Alaska, 415 U.S. 308, 316 (1974) and Califor-

nia v. Green, 399 U.S. 149, 158 (1970)). It is “essentially a

‘functional’ right designed to promote reliability in the truth-

finding functions of a criminal trial.” /d.

In affirming the extradition court, the Ninth Circuit announced

the sweeping rule that an accused in an extradition proceeding

does not have the night of cross-examination, even when the

government witness is present in the courtroom. (App. F at A-18-

A-19.) Neither of the cases relied upon by the Ninth Circuit

reached this result. See Messina v. United States, 728 F.2d 77, 80

(2d Cir. 1984); Simmons v. Braun, 627 F.2d 635, 636 (2d Cir.

1980). Other authority holding that an accused generally does not

have the right to cross-examination in an extradition proceeding is

based upon the practical policy decision that a foreign country

should not be put to the cost and inconvenience of transporting a

witness to this country. See Bingham vy. Bradley, 241 U.S. 511,

517 (1916), cited by Simmons v. Braun. In Bingham, the incon-

venience to the foreign government outweighed the accused’s

right to cross-examination.

By contrast, here, it is undisputed that the government witness

was present in the courtroom, and that no undue cost or inconve-

16

nience could have resulted from cross-examination. (App. I at A-

36-A-37.)

The Ninth Circuit’s new rule goes beyond prior case law, has

no sound policy rationale, and contradicts case authority holding

that an accused facing extradition is entitled to due process. See

Caltagirone v. Grant, 629 F.2d 739, 748 & n.19 (2d Cir. 1980);

Rosado v. Civiletti, 621 F.2d 1179, 1195 (2d Cir.), cert. denied,

449 U.S. 856 (1980). As this Court has stated:

Good faith toward foreign powers, with which we have

entered into treaties of extradition, does not require us to

surrender persons charged with crime in violation of those

well-settled principles of criminal procedure which from time

immemoria! have characterized Anglo-Saxon jurisprudence.

Persons charged with crime in foreign countries, who have

taken refuge here, are entitled to the same defenses as others

accused of crime within our own jurisdiction. . . . These trea-

ties should be faithfully observed, and interpreted with a view

to fulfill our just obligations to other powers, without sacrific-

ing the legal or constitutional rights of the accused.

Grin v. Shine, 187 U.S. at 184. Certiorari should be granted to

reconcile Grin and Bingham, and to clarify that the accused does

have the fundamental right to cross-examine government wit-

nesses present at the extradition hearing.'*

'? The bill before Congress in 1983 designed to reform this nation’s

extradition laws (H.R. 2643) provided the accused the nght to “con-

front and cross-examine witnesses.” Reform of the Extradition Laws of

the United States: Hearings on H.R. 2643 Before the Subcomm. on

Crime of the House Comm. on the Judiciary, 98th Cong., Ist Sess. 34

(1983), at 10. The Justice Department, concurring that our extradition

laws were “very outdated,” supported another bill which differed from

H.R. 2643 on the issue of bail, but otherwise was in general accord. /d.

at 36. None of the extradition reform bills was passed, and attempts at

legislative reform have come to a halt. Kester, Some Myths of United

States Extradition Law, 76 Geo. L.J. 1441, 1442 (1988).

17

IV. CERTIORARI SHOULD BE GRANTED TO RESOLVE

A CONFLICT AMONG THE CIRCUITS REGARDING

WHETHER A DISTRICT COURT HEARING AN EX-

TRADITION REQUEST MAY EXCLUDE INCOMPE-

TENT EVIDENCE

Mr. Oen made over 180 objections to the written affirmations

submitted by the Hong Kong government. (CR 10 at 806-906,

935-39.) The affirmations contained multiple hearsay, statements

lacking foundation, and incompetent opinions. The extradition

court refused to consider these objections and the Ninth Circuit

affirmed that refusal. In the Ninth Circuit’s view, 18 U.S.C.

§ 3190 requires district courts to admit all evidence submitted to

them by a foreign government, as long as a United States consular

officer has certified the evidence as authentic. (App. F at A-17-

A-18.) This holding—which strips district courts of the power to

judge the competency of evidence presented to them—is in direct

conflict with the opinion of the First Circuit in Greci v. Birknes,

527 F.2d 956, 959-60 (1st Cir. 1976), and with the traditional

practices of the federal courts. Certiorari should be granted to

resolve this conflict.

Section 3190 provides that items offered in an extradition

proceeding

shall be received and admitted as evidence on such hearing

for all 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...

and the certificate of the principal diplomatic or consular

officer of the United States resident in such foreign country

shall be proof that the same, so offered, are authenticated in

the manner required.

According to the Ninth Circuit, “authentication is the only

requirement for admissibility of evidence under general United

States extradition law.” (App. F at A-17-A-18.) Thus, Mr. Oen’s

“challenges to the reliability and competency of the evidence

fail.” (dd. at A-18.) This holding means that an extradition court

must unquestioningly accept whatever evidence is spoon fed to it

by a foreign prosecutor.

ccna cai

18

This result was rejected by the First Circuit in Greci v. Birknes.

There, the materials submitted by the foreign government had

been certified by the U.S. Ambassador to Italy under section

3190. 527 F.2d at 959. The accused objected that the evidence

was not sworn as required by the extradition treaty. Jd. at 959-60.

The government argued that the evidence was nonetheless admis-

sible because it had been authenticated under section 3190. /d. at

960. The court rejected this argument. Jd. at 960-61. A direct

conflict exists between the First Circuit’s Greci decision and the

Ninth Circuit’s decision below.

The Ninth Circuit’s decision is likewise in conflict with the

practice traditionally followed by federal courts. This Court has

held that “[t]he function of the committing magistrate [in

extradition] is to determine whether there is competent evidence

to justify holding the accused to await trial... . ” Collins v. Loisel,

259 U.S. 309, 316 (1922) (emphasis added; citations omitted).

Accordingly, district courts hearing extradition requests can

and do exclude incompetent evidence. See, e.g., In re Sindona,

450 F. Supp. 672, 679-80 (S.D.N.Y. 1978) (sustaining accused’s

objections to eight depositions for failure to comply with Treaty

requirements); United States v. Artukovic, 170 F. Supp. 383, 391

(S.D. Cal. 1959) (excluding affidavits “because the affiants

testified to matters of which they couid not possibly have personal

knowledge”). But cf. In re Assarsson, 635 F.2d 1237, 1246 (7th

Cir. 1980), cert. denied, 451 U.S. 938 (1981).

Even the Ninth Circuit in Zanazanian v. United States, 729

F.2d 624 (9th Cir. 1984), indicated that certification of evidence

under section 3190 did not make it automatically admissible. In

Zanazanian, the court considered the admissibility of certain

double hearsay evidence—a police officer’s statement summariz-

ing statements of other witnesses. Although the officer’s state-

ment had been certified under section 3190, it was deemed

admissible only because there were sufficient indicia of the

reliability of the hearsay it contained. /d. at 627-28. If the

Zanazanian court had considered section 3190 certification suffi-

cient, analysis of the reliability of the hearsay would have been

unnecessary.

19

But for the lower courts’ view of section 3190, Mr. Oen’s

objections would have required consideration. First, the Hong

Kong government presented the extradition court with unreliable

multiple hearsay statements, a practice upon which the

Zanazanian decision and others cast doubt. See 729 F.2d at 627.

Unlike the police officer’s statement in Zanazanian, the affirma-

tions here often failed to identify the hearsay declarants whose

statements were repeated.'* The affirmations also purported to

repeat the statements of third persons whose own testimony, also

submitted, did not corroborate the statements.'*

Second, the Hong Kong government presented evidence lack-

ing foundation, a practice rejected in United States v. Artukovic,

170 F. Supp. at 391. The affirmations contained numerous con-

clusory statements by Union Bank personnel imputing responsi-

bility for all aspects of bank transactions to Mr. Oen. Most of this

evidence lacked facts establishing the witnesses’ knowledge of

Mr. Oen’s involvement in Union Bank affairs.'°

—

‘In relation to a repayment of one of the allegedly false loans,

Jonathan Newman, Union Bank’s general manager, testified:

[I]t was indicated to us by members of the management of the

Union Bank of Hong Kong that this token payment could actually

have been made by Mr OEN Yin-choy himself and not the

[ borrowing] company.

(CR 16.at 1096.) Mr. Newman did not identify the source of this

hearsay.

'* Lee Yue-wing, for example, stated that “OEN Yin-choy instructed

HIOE Mie-joeng in my department to be fully responsible for handling

all matters relating to [ACU deposits].” (CR 15 at 448.) But Ms. Hioe

testified that Lee Yue-wing gave her these instructions. (CR 15 at 570.)

' For example, Paul Kaseger, a member of Union Bank’s Loans

Committee, stated: “I was given to understand when the loans [sic]

applications were presented that all these Indonesian loans had already

been approved by the Chairman....” (CR 15 at 708.) Mr. Kaseger

supplied no basis for this statement.

20

Third, the Hong Kong government presented the extradition

court with unqualified legal conclusions.'° Legal conclusions of

lay witnesses do not constitute competent evidence. See Marx &

Co. v. Diners’ Club, Inc., 550 F.2d 505, 509-10 (2d Cir.), cert.

denied, 434 U.S. 861 (1977); 7 Wigmore, Wigmore on Evidence

§ 1953 at 103 (Chadbourn Rev. 1978).

Because of the Ninth Circuit’s view of section 3190, none of

this incompetent evidence was excluded. That view is in conflict

with the view of at least one other circuit and with the role that

federal courts have traditionally played. Following that view

breaches the obligation of the extradition court to exclude incom-

petent evidence, as set forth in Collins v. Loisel.

Additionally, if the Ninth Circuit’s interpretation of section

3190 were correct, i.e., that section 3190 grants consular offi-

cials—employees of the executive branch—power to determine

the competency of evidence before a court, then section 3190

would violate the separation of powers. The Constitution’s separa-

tion of powers is a “safeguard against the encroachment or

aggrandizement of one branch at the expense of the other.”

Buckley v. Valeo, 424 U.S. 1, 122 (1976). The risk of encroach-

ment on the judiciary’s independence exists when “ ‘any matter

which, from its nature, ...” has traditionally been tried in Article

III courts,” is withdrawn and allocated to a non-Article III

officer. Commodity Futures Trading Comm'n v. Schor, 478 U.S.

833, 854 (1986) (quoting Murray's Lessee v. Hoboken Land and

Improv. Co., 60 U.S. (18 How.) 272, 284 (1856) ).

This Court recognized the Article III character of judging the

quality of evidence in United States v. Klein, 80 U.S. (13 Wall.)

128 (1872). There, the Court found constitutionally infirm a

statute whereby “the court [was] forbidden to give the effect to

‘©The courts below placed heavy reliance on the affirmation of

J.M.H. Grimsdick, the Hong Kong government’s accountant (CR |4 at

238-39), in ruling on the issue of loan falsity. (App. F at A-20; CR 12 at

1559: Nov. 6, 1987 Habeas Petition Hearing Tr. at 18-19.) Much of Mr.

Grimsdick’s testimony consisted of his legal opinions. For example, he

repeatedly opined that the loan forms at issue were “misleading and

false.” (See, e.g., CR 14 at 242.)

21

evidence which, in its own judgment, such evidence should have,

and [was] directed to give it an effect precisely contrary.” /d. at

147. Since, according to the Ninth Circuit, section 3190 contains

the same type of prohibition, that statute contains the same

infirmity. The Ninth Circuit’s interpretation of section 3190

therefore must be rejected. Whenever possible, federal courts

must interpret acts of Congress to avoid constitutional infirmity.

See, e.g., United States v. Security Indus. Bank, 459 U.S. 70, 78-

79 (1982). The First Circuit’s Greci decision correctly interprets

section 3190 and should be followed.

V. CERTIORARI SHOULD BE GRANTED TO RESOLVE

A CONFLICT AMONG THE CIRCUITS REGARDING

WHETHER A DISTRICT COURT JUDGE MAY HEAR

A HABEAS CORPUS PETITION CHALLENGING

THAT JUDGE’S CERTIFICATION OF EXTRADIT-

ABILITY

District Judge Robert H. Schnacke granted the request for

extradition. Judge Schnacke’s decision was not appealable and

could be contested only by a petition for a writ of habeas corpus

under 28 U.S.C. § 2241. Plaster v. United States, 720 F.2d 340,

349 (4th Cir. 1983). When Mr. Oen’s habeas petition, pursuant

to the district court’s “related case” rule, was re- assigned to

Judge Schnacke, Mr. Oen requested Judge Schnacke to disqual-

ify himself under 28 U.S.C. § 455(a). (CR 3, 4.) Judge

Schnacke denied that request. (App. K at A-41.) The Ninth

Circuit affirmed, holding that a judge who presides over an

extradition hearing may hear a habeas petition in the same

matter. (App. F at A-21-A-22.) The Ninth Circuit followed

opinions of the Sixth and Seventh Circuits,'’ but ignored the

conflicting reasoning of the Fourth Circuit’s decision in Rice v.

McKenzie, 581 F.2d 1114 (4th Cir. 1978). Certiorari should be

granted to resolve this conflict regarding whether a district court

'” See Demjanjuk v. Petrovsky, 776 F.2d 571, 577 (6th Cir. 1985),

cert. denied, 475 U.S. 1016 (1986); David v. Attorney Generai, 699 F.2d

411, 416-17 (7th Cir.), cert. denied, 464 U.S. 832 (1983).

22

judge must recuse himself in habeas proceedings initiated to

review his own extradition ruling.'®

In Rice v. McKenzie, petitioner’s habeas petition was assigned

to a district judge who participated in rejection of the same claims

while sitting on the state suprerne court. The Fourth Circuit held

that recusal under section 455(a) was mandated. Relying in part

upon 28 U.S.C. § 47, which prohibits a federal judge from sitting

to hear or determine an appeal in a case he tried, the court

reasoned that the habeas judge was, in effect, being asked to

review proceedings below. Jd. at 1117. In such a case, “the

likelihood of the presence of partiality is sufficiently great to

support a rule of absolute disqualification.” Jd. at 1118. Recusal

under section 455(a) was ordered even though there was no

indication of personal bias or prejudice. /d. at 1115-16. See also

Liljeberg v. Health Services Acquisition Corp., ___ U.S. —_.,

108 S. Ct. 2194, 2203 (1988) (“Scienter is not an element of a

violation of § 455(a).... [T]he purpose of the provision [is] to

promote confidence in the integrity of the judicial process... .’

(citation omitted) ).

The reasoning of Rice v. McKenzie is compelling in the extradi-

tion context. The district judge sits as a reviewing court to review

the extradition proceedings. Shapiro v. Ferrandina, 355 F. Supp.

at 563, 567. The independent review required by a wnt of habeas

corpus, Fay v. Noia, 372 U.S. 391, 423-24 (1963), can be

provided only by a judge who did not hear the extradition

proceedings. “While it is unusual for one District Judge to be

required to review the action of another District Judge, there is no

'8 This issue is avoided in many districts by assigning the extradition

request to a magistrate. See Local Rule (L.R.) S501-1(c), S.D. Cal.;

L.R. 32.1(a)(3), M.D. Ala.; L.R. 19.01(a)(1), D.S.C.; Local Magis-

trate Rule (L.M.R.) 1.(a)(11), E.D. Wash.; L.R. 13.01(a)2, E.D.

Wis.; L.M.R. 1(e), D. Mass.; and L.M.R. 9, S.D.N.Y. and E.D.N.Y. If

the magistrate grants extradition, habeas review occurs before a district

court judge. Other courts assign extradition proceedings to district court

judges but have a different judge hear the habeas proceedings. See

Shapiro v. Ferrandina, 355 F. Supp. 563, 567 (S.D.N.Y.), modified and

aff'd, 478 F.2d 894 (2d Cir.), cert. dismissed, 414 U.S. 884 (1973).

23

escape from the necessity to do so in extradition proceedings

.... Shapiro v. Ferrandina, 355 F. Supp. at 567.

In David v. Attorney General, the Seventh Circuit refused to

follow Rice v. McKenzie for two reasons. First, the court asserted

that the Rice reasoning would require that any case reversed on

appeal be assigned to a different judge on remand. 699 F.2d at

416. A similar argument was made by the Ninth Circuit here.

(App. F at A-21-A-22.) Second, the David court found that since

habeas petitions under 28 U.S.C. § 2255 are heard by the judge

who presided at the petitioner’s trial, there was no per se impro-

priety in a judge ruling on a collateral attack against his own

decision. 699 F.2d at 416.'” This argument was also the basis for

the Sixth Circuit’s decision in Demjanjuk v. Petrovsky, 776 F.2d

at 577.

Neither argument is persuasive. First, the circumstance of a

district judge presiding over a retrial following a reversal is

inapposite. The judge is not asked to “sit as a reviewing court” of

his own proceedings. Shapiro v. Ferrandina, 355 F. Supp. at 567.

Second, proceedings under section 2255 are not analogous to the

section 2241 challenge of an extradition order. The petitioner in

section 2255 proceedings has a full right of appeal. The only

review of an extradition order is by a habeas petition. This unique

circumstance dictates the fashioning of a special rule for extradi-

tion cases. This Court should grant certiorari to settle whether

such a special rule should be adopted.

VI. CERTIORARI SHOULD BE GRANTED TO CLARIFY

WHAT EVIDENCE AN ACCUSED MAY PRESENT

IN OPPOSING HIS EXTRADITION

In Collins v. Loisel, 259 U.S. 309, 316-17 (1922), this Court

held that the accused in extradition proceedings may introduce

“explanatory” but not “contradictory” evidence on probable

cause. Application of that rule has proved difficult, as illustrated

'’ The David court did recognize, of course, that Rule 4(a) of the

Rules Governing Section 2255 Proceedings was not controlling in

habeas proceedings brought under 28 U.S.C. § 2241. 699 F.2d at 416.

24

by this case. Those difficulties make granting certiorari to clarify

Collins appropriate.

In Collins, this Court stated:

To have witnesses produced to contradict the testimony for

the prosecution is obviously a very different thing from

hearing witnesses for the purpose of explaining matters

referred to by the witnesses for the Government.

259 U.S. at 316-17 (quoting Charlton v. Kelly, 229 U.S. 447

(i913)). Collins has been interpreted to mean that “the accused

has no right to introduce evidence which merely contradicts the

demanding country’s proof.... [T]he accused has the nght to

introduce evidence that is ‘explanatory’ of the demanding coun-

try’s proof.” In re Sindona, 450 F. Supp. 672, 685 (S.D.N-Y.

1978). Accord In re D'Amico, 185 F. Supp. 925, 930 (S.D.N.Y.

1960), appeal dismissed, 286 F.2d 320 (2d Cir.), cert. denied, 366

U.S. 963 (1961).

However, “[t]he distinction between ‘contradictory evidence’

and ‘explanatory evidence’ is difficult to articulate.” Jn re

Sindona, 450 F. Supp. at 685. “Courts have struggled to clarify

the distinction.” Republic of France v. Moghadam, 617 F. Supp.

777, 782 (N.D. Cal. 1985). See also Freedman v. United States,

437 F. Supp. 1252, 1266 (N.D. Ga. 1977). Some courts have

held that “evidence which ‘tends to obliterate probable cause may

be considered....’” Freedman v. United States, 437 F. Supp.

1252, 1266 (N.D. Ga. 1977) (quoting Shapiro v. Ferrandina, 355

F. Supp. at 572); Republic of France v. Moghadam, 617 F. Supp.

at 782.

Mr. Cen presented the district court with evidence that the

Hong Kong government’s theory of probable cause was illogical

and unsupported. The district court refused to consider this

evidence, characterizing it as “contradictory.” The Ninth Circuit

affirmed. This characterization is inconsistent with Collins.

An essential element of the false accounting charges against

Mr. Oen is falsity of the loans; thus, to obtain extradition, the

Hong Kong government must establish probable cause of such

falsity. (See App. D at A-8.) The Hong Kong government based

25

its showing of falsity on the affirmation of its accountant, J.M.H.

Grimsdick. Mr. Grimsdick testified that the loan proceeds were

not disbursed directly to the named borrowers (CR 14 at 241-52),

that he was unable to find written documentation that the named

borrowers requested the loan proceeds to be disbursed as they

were (id. at 242, 244, 246, 248, 250, 252), and that the disburse-

ment pattern was “unduly complex.” (/d. at 384.) He therefore

concluded the loans were false. (Jd. at 385.)

Mr. Oen submitted the affidavit of David Mace, an accountant

and partner of the firm of Arthur Young in Hong Kong. (App. S

at A-68-A-71.) Mr. Mace explained that there are numerous

legitimate commercial loans in which the loan proceeds are not

paid directly to the borrower (id. at A-70), and that such

payments do not suggest that the loans were false. (/d.) Nor do

“complex disbursement patterns” suggest falsity. (Jd.) Moreover,

the Hong Kong government’s evidence established that when its

investigators met with the borrowers, they acknowledged their

indebtedness and discussed repayment.” Mr. Mace testified that

in view of the borrowers’ statements, Mr. Grimsdick’s conclusions

of loan falsity “lack a proper commercial (or logical) basis.” (Jd.

at A-71.)

The distnct court refused to consider Mr. Mace’s testimony.

When it was raised by Mr. Oen’s counsel in the extradition

héaring, the district court stated: “What you are suggesting are

matters of defense that may well be persuasive when this matter

comes to trial in Hong Kong.” (CR 12 at 1566.) When Mr.

Mace’s testimony was raised at the hearing on the habeas peti-

tion, the district court stated: “I am sure that will be valuable

evidence at the trial... [b]Jut we don’t take conflicting evidence

°° Jonathan Newman met twice with Mr. Susanto, the representative

of Sinar, the borrower on Counts | and 2. Mr. Susanto acknowledged

the loans and offered to sell Sinar’s assets to repay them. (CR 16 at

1092-93.) Mr. Newman also met with Mr. Muyono, representing Roxy,

the borrower on Count 3. Mr. Muyono acknowledged the loan and asked

for three more years to pay. (CR 16 at 1093-94, 1096.) Mr. Newman

met with Mr. Salim, representing Gaya, the borrower on Count 4. He,

too, discussed repayment arrangements. (CR 16 at 1095.)

26

here.” (App. L at A-49.) The Ninth Circuit afirmed the district

court’s finding of probable cause on the basis of Mr. Grmsdick’s |

testimony (App. F at A-20), and ignored Mr. Mace’s testimony.

The Ninth Circuit rejected Mr. Oen’s argument for rehearing that

the court was required to consider Mr. Mace’s explanatory evi-

dence. (See Petition for Rehearing, filed in the U.S. Court of

Appeals for the Ninth Circuit, at 12.)

The courts below misinterpreted Collins when they character-

ized Mr. Mace’s testimony as contradictory. Mr. Mace explained

that the facts that the Hong Kong government was relying upon

were not “sufficient to cause a person of ordinary prudence and

caution to conscientiously entertain a reasonable belief of [ Mr.

Oen’s] guilt.” See Coleman v. Burneti, 477 F.2d 1187, 1202

(D.C. Cir. 1973) (defining probable cause).*' Evidence that

explains why the foreign government’s theory of probable cause is

illogical and unsupported should be admitted and considered

under Collins. Such evidence “rebut[s] probable cause.” Collins,

259 U.S. at 316. Certiorari should be granted to correct the

conflicting holding of the Ninth Circuit and to clarify the Collins

rule.

1 : ,

Coleman defines probable cause for preliminary examinations. In

extradition proceedings, probable cause is measured by the standard

applicable in preliminary examinations. Charlton v. Kelly, 229 U.S

460.

ena ii een

27

CONCLUSION

For the above reasons, Mr. Oen respectfully requests this Court

to grant his petition for a wnt of certiorari.

Dated: March 7, 1989

Respectfully submitted,

CEDRIC C. CHAO

Counsel of Record

MICHAEL M. CARLSON

JENNY D. SMITH

MORRISON & FOERSTER

345 California Street

San Francisco, CA 94104

(415) 434-7000

By Cepric C. CHAO

Counsel for Petitioner

Oen Yin-choy