Chua Han Mow v. U.S.

• Citation: 730 F.2d 1308
• Decision Date: 12 April 1984
• Docket Number: No. 83-1925,83-1925
• Parties: CHUA HAN MOW, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1308

730 F.2d 1308

CHUA HAN MOW, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 83-1925.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 15, 1983.

Decided April 12, 1984.

Janet Sherman, Nasatir, Sherman & Hirsch, Los Angeles, Cal., for petitioner-appellant.

Joesph P. Russoniello, U.S. Atty., Dennis M. Nerney, Asst. U.S. Atty., Sandra Teters, San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before HUG, PREGERSON, and NORRIS, Circuit Judges.

HUG, Circuit Judge:

Chua appeals the order denying his 28 U.S.C. Sec. 2255 motion to vacate his prison sentence. Chua alleges various procedural errors and constitutional violations in his prosecution for violating United States laws against importation and distribution of controlled substances. We affirm.

I BACKGROUND

On May 16, 1973, Chua Han Mow, a Malaysian citizen, was charged along with six others with violating United States laws against importation and distribution of controlled substances. Chua was in Malaysia at this time. Two of Chua's codefendants who were in the United States were arrested and eventually pled guilty to one count each. They each received a 10-year sentence, and they each served approximately three years before being deported.

On August 4, 1975, Chua was arrested by Malaysian authorities and incarcerated in Malaysia until October 1, 1977, pursuant to the Malaysian Emergency Ordinance of 1969. On November 2, 1977, a superseding indictment in the United States was returned against Chua and others. Chua was charged with violating 21 U.S.C. Secs. 846 and 963 (Count I--conspiracy to import heroin) and 21 U.S.C. Sec. 959 (Counts II and III--distribution of heroin). Chua was arrested by Malaysian authorities a second time on December 21, 1977. He remained incarcerated in Malaysia until he was extradited to the United States on November 28, 1979.

At his arraignment, Chua pled not guilty. On April 20, 1980, Chua withdrew his plea of not guilty and pled guilty to Counts I and III. Count II was dismissed along with a separate indictment from New York. Chua was sentenced to thirty years imprisonment--15 years each on Counts I and III to run consecutively.

A notice of appeal was filed, but then Chua requested that his appeal be dismissed. Chua sought collateral relief through a Rule 35 motion requesting the court to modify the sentence. This motion was denied.

In 1981, Chua filed pro se a motion in the sentencing court pursuant to 28 U.S.C. Sec. 2255 seeking to vacate his sentence. This motion was denied. Chua's notice of appeal from this order was dismissed as untimely filed. On August 30, 1982, Chua filed a petition for writ of habeas corpus in the District Court for the District of Kansas. He raised the same issues which are raised in the current motion. That court dismissed the habeas corpus action without prejudice on the grounds that the pro se motion pursuant to section 2255 filed with the sentencing court had not exhausted the section 2255 remedy.

On November 22, 1982, Chua filed a second section 2255 motion in the sentencing court. The court denied the motion and this appeal followed.

II SUCCESSIVE SECTION 2255 MOTIONS

Two of Chua's contentions, that his guilty plea was not voluntary and that the United States lacked jurisdiction over the The Supreme Court has held that a second hearing on a section 2255 motion may be denied on the basis of a previous section 2255 motion only if:

crimes, were raised by Chua in a previous section 2255 motion. When Chua raised these claims in his second section 2255 motion, the sentencing court held that the claims were barred by the court's previous determination on the merits of the claims.

(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). This court requires that "[i]f the district court dismisses a petition on the basis of a prior adjudication, it must make a specific finding that the ends of justice would not be served by reaching the merits." Tannehill v. Fitzharris, 451 F.2d 1322, 1324 (9th Cir.1971) (emphasis added). There is no indication that the district court in this case made this specific finding.

Although the district court erred in denying two of Chua's claims on the basis of the previous section 2255 motion without making the specific finding that the ends of justice would not be served by reaching the merits, this court must still affirm "if the motion, files, and records in the case conclusively showed the motion to be without merit." United States v. Donn, 661 F.2d 820, 824 (9th Cir.1981) (citing Sanders, 373 U.S. at 15, 83 S.Ct. at 1077).

III VOLUNTARINESS OF CHUA'S GUILTY PLEA

Chua argues that his guilty plea was not voluntary and intelligent, as required by due process, because the sentencing judge failed to advise him of the consequences of his plea as required by Fed.R.Crim.P. 11. Specifically, Chua claims that he understood the maximum possible sentence he faced to be 15 years. He argues that had he known the maximum sentence was 30 years, he would not have pled guilty.

The district court's findings as to the voluntariness of the guilty plea cannot be set aside unless clearly erroneous. Stone v. Cardwell, 620 F.2d 212, 213-214 (9th Cir.1980). The sentencing court found Chua's plea to be voluntary when the court accepted Chua's guilty plea and when the court denied Chua's first section 2255 motion. These findings are supported by the record. At the plea hearing, the following exchange took place:

THE COURT: Now, you understand that by pleading guilty to two counts, the court may sentence you to a prison sentence of up to 15 years for each count, and, in addition, to a fine of $25,000 in each count? Do you understand that to begin with?

CHUA: Yes, Your Honor. Yes.

The sentencing court's question properly advised Chua of the maximum possible penalty.

Chua argues that as a Malaysian citizen who was not adept at the English language he did not understand the meaning of "counts" or that they could be punished consecutively. The record does not support this assertion. The district court specifically found that Chua had "no language difficulty." The plea hearing transcript supports this finding. The transcript also indicates that Chua understood the meaning of "counts." In response to the court's question about any promises made to induce his guilty plea, Chua stated that he had been "promised to withdraw the plea to Count II and dismiss the indictment against me in New York." From the fact that Chua plea bargained to get a count dismissed, it can be inferred that he understood the nature of "counts."

Chua's other arguments regarding the voluntariness of his guilty plea are also without merit. Specifically, Chua argues that he did not understand that the Government had to prove specific intent to convict him. The sentencing court clearly explained Chua also alleges ineffective assistance of counsel, but this contention is essentially indistinguishable from his assertion that he was not properly informed of the maximum possible sentence to the charges he faced. As discussed earlier, the sentencing court adequately informed Chua of the maximum possible sentence. Furthermore, the court asked Chua at the plea hearing if he was satisfied with his attorney and his attorney's handling of the case. Chua replied affirmatively. Chua also acknowledged that he understood that the length of the prison sentence was entirely up to the judge. "These solemn declarations made in open court carry a strong presumption of verity." United States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir.1983).

                to Chua that the Government had to prove that Chua took part in a scheme "knowing that it was unlawful."    Chua also argues that he had a total lack of understanding of the United States Constitution.  The sentencing court carefully reviewed with Chua the rights he was waiving by pleading guilty.  Chua indicated that he understood these rights and that he understood that he was giving up these rights by pleading guilty.  The plea hearing transcript conclusively shows that Chua's claim that his plea was involuntary is without merit
                

IV JURISDICTION

A. Extraterritorial Jurisdiction

Chua argues that the United States lacked subject-matter jurisdiction to prosecute him because all the unlawful acts he committed were done in Malaysia. We disagree. There is no constitutional bar to the extraterritorial application of penal laws. United States v. King, 552 F.2d 833, 850 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). Although courts have been reluctant to give extraterritorial effect to penal statutes, they have done so when congressional intent to give extraterritorial effect is clear. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922). Section 959 specifically states that it is intended to reach prohibited acts committed outside the territorial jurisdiction of the United States. Sections 846 and 963, the statutory basis for the conspiracy count in this case, do not specifically provide for extraterritorial application. This court, however, has regularly inferred extraterritorial reach of conspiracy statutes on the basis of a finding that the underlying substantive statutes reach extraterritorial offenses. E.g., United States v. Cotten, 471 F.2d 744, 750 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); Brulay v. United States, 383 F.2d 345, 350 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). See also United States v. Layton, 509 F.Supp....