81 F.3d 808 (9th Cir. 1996), 93-17262, Wang v. Reno

Docket Nº:93-17262.
Citation:81 F.3d 808
Party Name:D.A.R. 4282 WANG Zong Xiao, Plaintiff-Appellee, v. Janet RENO, in her capacity as Attorney General of the United States; Michael J. Yamaguchi, in his capacity as United States Attorney for the Northern District of California; Reginald L. Boyd, in his capacity as United States Marshal for the Northern District of California; Doris Meissner, in her c
Case Date:April 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 808

81 F.3d 808 (9th Cir. 1996)

D.A.R. 4282

WANG Zong Xiao, Plaintiff-Appellee,


Janet RENO, in her capacity as Attorney General of the

United States; Michael J. Yamaguchi, in his capacity as

United States Attorney for the Northern District of

California; Reginald L. Boyd, in his capacity as United

States Marshal for the Northern District of California;

Doris Meissner, in her capacity as Commissioner of the

Immigration and Naturalization Service, and David Ilchert,

in his capacity as District Director for the Immigration and

Naturalization Service, Defendants-Appellants.

No. 93-17262.

United States Court of Appeals, Ninth Circuit

April 12, 1996

Argued and Submitted April 11, 1995.

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[Copyrighted Material Omitted]

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John S. Koppel, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for defendants-appellants.

Cedric C. Chao (argued), John D. Danforth and Ruth N. Borenstein, on the brief, Morrison & Foerster, San Francisco, California, for plaintiff-appellee.

R. William Ide III, Douglas R. Young, Tamar Pachter, and Kelly A. Randall, American Bar Association, Chicago, Illinois, as amicus curiae.

Barry P. Helft, Ephraim Margolin, San Francisco, California, National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice, as amici curiae.

Appeal from the United States District Court for the Northern District of California; William H. Orrick, Jr., District Judge, Presiding, D.C. No. CV-90-00350-WHO.

Before: SCHROEDER, REINHARDT [*] and TROTT, Circuit Judges.



The district court found that United States officials and prosecutors engaged in an extraordinary pattern of misconduct that violated the Fifth Amendment due process rights of Wang Zong Xiao ("Wang"), a prosecution witness brought to the United States to testify falsely in an international drug conspiracy case. To remedy the constitutional violations, and to protect Wang from future torture in China for his refusal to testify falsely, the district court permanently enjoined the Attorney General of the United States, and other Justice Department officials ("government")

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from removing Wang from the United States or from returning him to the custody of officials from the People's Republic of China ("PRC" or "China"), see Xiao v. Reno, 837 F.Supp. 1506, 1511-44 (N.D.Cal.1993) ("Wang II "). The government appeals the district court's exercise of jurisdiction and issuance of a permanent injunction. We affirm.


United States officials brought Wang Zong Xiao, a citizen of China, to San Francisco in December 1989 to serve as a federal prosecution witness in an international drug conspiracy trial against Leung Tuk Lun, Chico Wong, and Andrew Wong. Wang had allegedly been involved in the conspiracy known as the "Goldfish" case. Federal officials arranged for his parole into the United States in order to obtain his testimony regarding Leung's direct involvement with the heroin conspiracy. The Leung trial ended in a mistrial, however, after Wang changed his testimony and revealed that Chinese authorities had brutally coerced him into falsely implicating Leung. Wang's decision not to perjure himself may have saved him in the American court; however, the public disclosure of Wang's truthful testimony removed any possibility that he would receive leniency in China and raised the possibility that he would be executed there.

As described in more than thirty pages in the district court's opinion, Wang II, 837 F.Supp. at 1511-44, the events leading up to Wang's parole into the U.S. are as follows. On March 12, 1988, PRC police officials arrested Wang in Shanghai for his participation in a heroin transaction. The police kicked him, dragged him along the street, blindfolded him, and took him to an interrogation room. At Wang's first interrogation, which lasted from 5:00 p.m. to 10:00 p.m., PRC officials beat him and used an electric cattle prod to shock him several times. At his second interrogation, which immediately followed the first and lasted until 7:00 a.m. the next day, officials forced him to stand for up to one hour at a time despite his requests for sleep, refused to provide food or drink, and abused him verbally, including telling him that he was "like a piece of meat on our chopping board; we can chop you any way we want." After Wang's second interrogation, officials allowed him to sleep for one hour before shocking him with a cattle prod, and interrogating him almost continuously for another seventeen hours. This pattern of interrogation continued for close to a month, during which officials interrogated Wang more than thirty times and forced him to give multiple confessions. On at least five occasions, the interrogations were videotaped.

On March 14, 1988, Wang stated that Leung was not present during the heroin transaction in question. PRC officials were not satisfied with this response because they wanted him to implicate Leung in the heroin transaction so that there would be no misunderstanding that the heroin came from Hong Kong rather than mainland China. The officials reminded him of the Communist Party policy that if he cooperated, he would receive leniency; if he did not, he would be treated severely. They also told him that if he did not cooperate, he would be shot. Five days later, Wang confessed that Leung was not only present, but that he participated in the breakdown of the heroin bricks into powder form.

When United States prosecutorial officials learned of Wang's confession, they sought to bring him to the United States to testify against Leung. Members of the prosecution team were aware of human rights abuses occurring in the PRC and suspected that Wang might have been tortured when he gave his confession. Evidence strongly suggests that the lead prosecutor knew that a video of Wang's interrogation existed and that Hong Kong officials refused to prosecute Leung because they suspected that Wang's confession had been coerced and was untrue. Nonetheless, the prosecution ignored this evidence, failed to disclose any of it to defense counsel, and arranged for Wang to testify to Leung's involvement in the heroin transaction.

During the negotiations over bringing Wang to the United States, the prosecution team misrepresented to PRC officials that Wang's involvement would be a no-lose situation.

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The prosecution team failed to advise PRC officials about the requirements of the oath, the rigors of cross-examination in an American courtroom, and the possibility that Wang might seek asylum.

In order to expedite the use of Wang as a witness, the prosecution team requested that the PRC delay Wang's transfer to the jurisdiction of the Chinese courts. Had Wang appeared before the Chinese courts, he probably would not have come to the United States and instead would almost certainly have received lenient treatment because of his cooperation with PRC officials. Unfortunately for Wang, the PRC honored the American request.

The federal government paroled Wang into the United States as a witness for the prosecution on December 27, 1989. Five PRC officials accompanied him. Trial began on January 8, 1990. On January 30, Wang made a "personal request" while on the stand, and after a consultation in chambers, the district court judge appointed counsel to represent Wang. Wang's testimony on February 1 and 5 placed Leung at the scene of the heroin delivery. On February 5, Wang filed suit in district court seeking declaratory and injunctive relief, and submitted to the Immigration and Naturalization Service ("INS") a petition for asylum. 1 On February 10, the district court entered a preliminary injunction barring the government from returning Wang to Chinese custody pending his exhaustion of asylum proceedings. On February 13 and 14, Wang testified to the mistreatment he had endured and disavowed his earlier testimony, stating that Leung was not present during the heroin transaction.

On July 29, 1991, the INS District Director denied Wang's asylum request, and on February 18, 1992, it revoked his parole and placed him in exclusion proceedings. The same day, Wang moved for a hearing on his earlier motion for partial summary judgment on his eleventh cause of action, which alleged that the government is "without legal authority over [Wang's] person and may not remove him from the United States or return him to Chinese custody."

Two days later, the district court granted Wang a preliminary injunction on the eleventh cause of action, prohibiting the government from moving forward with exclusion or deportation proceedings under the Immigration and Nationality Act ("INA") pending final adjudication of the motion for partial summary judgment. Four months later, it issued a permanent injunction forbidding the government from placing Wang in exclusion proceedings or taking any further action that could place him in jeopardy of being returned to China. The government appealed both injunctions and the grant of partial summary judgment, alleging that the district court lacked jurisdiction to enjoin exclusion proceedings and that it erred in concluding that the INS lacked jurisdiction to place Wang in exclusion proceedings.

The appeals were consolidated, and on October 30, 1992, we reversed, vacated both injunctions, and instructed the district court to dismiss the eleventh cause of action for lack of jurisdiction. Xiao v. Barr, 979 F.2d 151 (9th Cir.1992) ("Wang I "). 2 On March 2, 1993, the district court dismissed the cause of action as instructed. Xiao v. Reno, 837 F.Supp. 1500 (N.D.Cal.1993).

In April, 1993, the district court conducted a lengthy bench trial on the remaining causes of...

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