Cheng Na-Yuet v. Hueston

• Decision Date: 28 March 1990
• Docket Number: No. 87-2236-Civ-WMH.,87-2236-Civ-WMH.
• Citation: 734 F. Supp. 988
• Court: U.S. District Court — Southern District of Florida
• Parties: In re Jennie CHENG NA-YUET a/k/a Jennie Pau a/k/a Hortensia Nolan, Petitioner, v. Willard J. HUESTON, Daniel J. Horgan, and Edwin Meese, Respondents.

734 F. Supp. 988

In re Jennie CHENG NA-YUET a/k/a Jennie Pau a/k/a Hortensia Nolan, Petitioner, v. Willard J. HUESTON, Daniel J. Horgan, and Edwin Meese, Respondents.

No. 87-2236-Civ-WMH.

United States District Court, S.D. Florida, Miami Division.

March 28, 1990.

Fine, Jacobson, Schwartz, Nash, Block & England, for petitioner.

Dexter W. Lehtinen, U.S. Atty., Donna A. Bucella, Asst. U.S. Atty., for respondents.

FINAL JUDGMENT DENYING PETITION FOR WRIT OF HABEAS CORPUS

HOEVELER, District Judge.

I Background

On July 28, 1987, Jennie Pau Cheng Na-Yuet, a/k/a Jennie Pau, a/k/a Hortensia Nolan (hereinafter "Petitioner"), was arrested in Miami at the request of the United Kingdom, and on behalf of the British Crown Colony of Hong Kong. An extradition hearing was held before a United States Magistrate on October 15, 1987, at which Petitioner was held extraditable to Hong Kong on charges of kidnapping. Petitioner then sought review of the Magistrate's Order by petition for habeas corpus.¹ On March 30, 1988, District Judge Alcee Hastings remanded the matter for hearing on the grounds that "newly discovered evidence cast substantial doubt on the sufficiency of the evidence presented at the extradition hearing to establish probable cause that Pau committed the offense."²

Pursuant to the order of remand, an evidentiary hearing was held before a United States Magistrate on July 11, 1988. After reviewing the new evidence, the Magistrate determined that the government of Hong Kong had presented ample evidence of probable cause, and that Petitioner had not presented evidence sufficient to negate or explain the showing of probable cause. Accordingly, in an Order dated July 26, 1988, the Magistrate reaffirmed the original Order of Extradition from which the parties were given 10 days to file written objections before Judge Hastings. On August 1, 1988, Petitioner filed her objections to the Magistrate's Extradition Order, and on May 31, 1989, the matter was transferred to United States District Judge William Hoeveler.

II Scope of Review

On Petition for writ of habeas corpus, the scope of this Court's review of the Magistrate's extradition order is strictly limited to a determination of "whether the magistrate had jurisdiction, whether the offence sic charged is within the extradition treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). In conducting this review, findings of fact are reviewed under a "clearly erroneous" standard, Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986), and legal questions are reviewed de novo. Kamrin v. United States, 725 F.2d 1225, 1227 (9th Cir.), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984).

Extradition to Hong Kong is governed by the Extradition Treaty between the United States and United Kingdom of Great Britain and Northern Ireland (hereinafter the "Treaty"), June 8, 1972, 28 U.S.T. 227, T.I.A.S. No. 8468, and by the Supplementary Treaty Concerning 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 (hereinafter the "Supplementary Treaty"), ratified and entered into force December 23, 1986 (132 Cong.Rec.S. 9120 (daily ed. July 16, 1986)).

Petitioner does not contend that the offense charged is not within the Treaty. Rather, Petitioner presents three lines of argument in opposition to extradition. First, Petitioner maintains that failure to give precedence to a request by the government of Panama for her extradition is in violation of Article III of the Panama Extradition Treaty,³ Article X of the United States-United Kingdom Extradition Treaty, and the Due Process Clause of the United States Constitution. Second, Petitioner asserts that the Magistrate lacked jurisdiction to certify extradition. Finally, Petitioner claims that the Magistrate erroneously determined that the government of Hong Kong had successfully demonstrated probable cause.

III The Extradition Request By Panama

On October 23, 1987, the government of Panama submitted to the State Department a request for extradition of Petitioner on charges of armed robbery. Petitioner argues that the Department of State has a non-discretionary duty to proceed with the execution of Panama's request. In searching for the source of this "non-discretionary" duty to proceed with Panama's request, Petitioner first cites Article III of the U.S./Panama Treaty which provides in pertinent part that: "the extradition of fugitives under the provisions of this treaty shall be carried out in the United States and in the Republic of Panama, respectively ..." (emphasis added).⁴ Petitioner then points to Article X of the U.S./U.K. Treaty governing extradition to Hong Kong which provides that:

If the extradition of a person is requested concurrently by one of the Contracting Parties and by another State or States, either for the same offense or for different offenses, the requested Party shall make its decision in so far as its law allows, having regard to all the circumstances, including the provisions in this regard in any Agreements in force between the requested Party and the requesting States, the relative seriousness and place of commission of the offenses, the respective dates of the requests, the nationality of the person sought and the possibility of subsequent extradition to another State.

Petitioner claims that the word "shall" of Article III of the Panama/U.S. Treaty imposes upon the State Department a "clear, ministerial, and non-discretionary duty"⁵ to process Panama's request, and that Article X of the U.S./U.K. Treaty provides the standards which the State Department must follow in determining which of the competing extradition requests should be honored. Although there is no record before this Court that reflects the process with which the State Department pursued the Hong Kong request for extradition in preference to the request by Panama, Petitioner maintains that this Court must nevertheless sit in review of State Department's decision.

The law, however, is firmly settled to the contrary, for the ultimate decision to extradite is "within the exclusive prerogative of the Executive in the exercise of its powers to conduct foreign affairs." Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir.1980). As the Seventh Circuit explained in In re Matter of Assarsson, 670 F.2d 722, 725 (7th Cir.1982):

Extradition is a multiphased process. It is initiated when a requesting nation asks the Secretary of State to extradite a fugitive. If the Secretary chooses to honor the request, he may initiate the necessary judicial extradition proceedings by requesting the Justice Department to file a verified extradition complaint in a court having personal jurisdiction over the fugitive. (emphasis added)

There is thus no "non-discretionary duty" on the part of the Government to process requests from foreign states which could form the basis of Petitioner's objection, or create an interest which implicates the Due Process guaranties of the Fifth Amendment.

Although the judiciary has the authority pursuant to 18 U.S.C. Sec. 3184 to conduct hearings and render decisions on the extradition of fugitives sought by foreign governments, the statute provides that such hearing may only proceed "upon complaint made under oath". 18 U.S.C. § 3184. Thus, just as the judiciary cannot compel a prosecutor to file a criminal complaint, the judiciary is powerless to order the executive branch to file a complaint for a fugitive requested by a sovereign nation. It is only after the executive decides to file a complaint that the judiciary obtains jurisdiction over an extradition.

In this case, no complaint seeking an extradition warrant on the basis of the Panamanian request has been filed. It therefore follows that the Government's alleged refusal to "process" Panama's request for extradition can in no way constitute a violation of Article X of the U.S./U.K. Treaty, nor violate Petitioner's right to Due Process under the Fifth Amendment. The decision to process or not to process the Panamanian request remains fundamentally a decision of the executive branch which is clearly beyond the scope of review by this Court on petition for writ of habeas corpus.

IV Hong Kong's Reversion to China in 1997

On July 1, 1997, Hong Kong is scheduled to revert to the People's Republic of China pursuant to the Joint Declaration of the Government of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong with Annexes, Beijing, December 19, 1984, ratified and entered into force May 27, 1985, T.S. No. 26 (1985), Cmnd. 9543 ("Joint Declaration").

Petitioner argues that the Petition for writ of habeas corpus must be granted on the grounds that the Magistrate lacked jurisdiction to certify extradition since the Reversion of the government of Hong Kong to the People's Republic of China in 1997 makes it impossible for Hong Kong to comply with various terms of the Treaty. First, Petitioner maintains that it would be in violation of Article XII of the Treaty which provides Petitioner with certain protections after serving her sentence. Second, Petitioner claims that her extradition would violate Article IV of the Treaty, which allows the United States to deny extradition where the offense for which extradition is sought is punishable by death under the law of the requesting country, but is not so punishable under the law of the requested country.

A. Article XII of the Treaty: Other Offenses

Article XII provides in pertinent part, that:

(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for an

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