Chua Han Mow v. United States

• Decision Date: 15 October 1985
• Docket Number: No. C-85-2399-WWS.,C-85-2399-WWS.
• Parties: CHUA HAN MOW, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of California

619 F. Supp. 1332

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

No. C-85-2399-WWS.

United States District Court, N.D. California.

October 15, 1985.

Janet Sherman, Santa Monica, Cal., for petitioner.

Charles B. Burch, Asst. U.S. Atty., San Francisco, Cal., for respondent.

MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

Petitioner, Chua Han Mow, moves to correct his federal sentence to reflect time he served in Malaysian custody allegedly "in connection with" the same acts upon which his federal sentence is based. Petitioner was held in Malaysian custody for two different periods: August 4, 1975 to December 20, 1977; and December 21, 1977 to November 28, 1979. The Attorney General determined that the second period of incarceration was for the same offense as the federal conviction and awarded credit for time served during that period, in accordance with 18 U.S.C. § 3568. At issue in this motion is the first period of custody. Because petitioner has failed to demonstrate his first period of Malaysian detention was in connection with the same acts upon which his current federal sentence is based, his motion will be denied.

I. The Standard of Review for Sentence Correction by the District Court

This court has jurisdiction to correct a federal sentence pursuant to 28 U.S.C. § 2255, which states in pertinent part:

If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law ... the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

Petitioner has moved to correct his federal sentence under section 2255, attacking the lawfulness of his prison term based on the statutory entitlement to credit created by 18 U.S.C. § 3568, which requires the Attorney General to give a federal prisoner "credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed."

The Attorney General bears the initial responsibility for determining when credit is due under section 3568, United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir.1979), and it is only when a prisoner has exhausted his administrative remedies that he has recourse to the district court. Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985). Chua has met this burden; his application for credit for the period August 4, 1975 to December 20, 1977 has been denied by the Attorney General.

Once the executive branch has acted, the district court may review the administrative decision for compliance with section 3568 in order to protect the prisoner's statutory right to credit. United States v. Morgan, 425 F.2d 1388, 1390 (5th Cir.1970); see also United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir.1982). In making its review, the court is not necessarily bound by the administrative findings of fact. See, e.g., Shaw v. Smith, 680 F.2d 1104, 1107 (5th Cir.1982) (whether state custody was due solely to federal action is question of fact for district court to determine); O'Connor v. Attorney General of U.S., 470 F.2d 732, 734 (5th Cir.1972) (same); Morgan, 425 F.2d at 1390 (whether state and federal charges were the "same" is for court to determine); Doyle v. Elsea, 658 F.2d 512, 514-15 (7th Cir.1981) (review of § 3568 administrative decision; no mention of deference to administrative record); Thompson v. Brooks, 510 F.Supp. 223 (S.D. N.Y.1981) (same). In any event, if the initial administrative proceeding does not resolve the prisoner's claim of entitlement to credit, the district court is free to address the issue. See Shaw, 680 F.2d at 1107 (where connection between federal action and state custody unresolved, court could decide the issue); O'Connor, 470 F.2d at 734 (same); Morgan, 425 F.2d at 1390 (similarity between state and federal charges unclear). Here, the Chief of Administrative Systems of the Federal Bureau of Prisons declared that he was "unable to make a determination as to whether the offenses which led to Chua's conviction in the United States are the same as those in Malaysia for which he was ordered detained ...," (Defendant's Opposition, filed March 31, 1985, Declaration of Don Anderson, at ¶ 4) and the government denied petitioner's claim because it was unable to determine the issue from petitioner's papers. Id. Thus the executive branch has not decided the issue. Accordingly, the court may proceed with de novo review of petitioner's motion.

II. Factual Background

Chua Han Mow, a Malaysian citizen, was originally indicted by a federal grand jury on May 16, 1973. He was charged along with six others with conspiring to violate federal laws prohibiting the importation, possession and distribution of heroin. Specifically, the indictment alleged Chua participated in a scheme to smuggle heroin from Malaysia to San Francisco. The acts alleged occurred in 1972 and 1973 in Malaysia and the United States. A federal warrant for Chua's arrest was issued on the same day as the indictment.

From May 1973, until his eventual arrest in August 1975, attempts were made to apprehend Chua in Malaysia, where warrants were also pending against him. (Petitioner's Suppl. to § 2255 Motion, filed March 19, 1985, Ex. I at 84 (Dept. of Justice memo)). Declassified federal documents released to petitioner pursuant to the Freedom of Information Act indicate federal drug enforcement officers had a strong and continuing interest in capturing Chua during this period. On May 24, 1973, a joint Malaysian-American "round-up" operation in Penang, Malaysia, based upon Malaysian warrants (Id.), failed to net Chua, who had gone into hiding.

While Malaysian and American authorities were tracking down Chua, United States officials had also begun preliminary procedures to extradite him, in apparent anticipation of his eventual apprehension. (Id.) A Department of Justice memorandum, probably written in June 1973, described the situation: "It is uncertain at this time, exactly what legal measures the government of Malaysia can bring against the subjects of these investigations. If adequate legal actions cannot be brought attempts will be made to extradite." (Id.) By January 1975, extradition efforts had officially started through the government of Thailand, since there was no Malaysian-American extradition treaty in effect at the time. (Id. at 72 (telex from American Embassy, Malaysia), 79 (Dept. of Justice investigation report), 81 (same), 96 (same)).

On August 4, 1975, Chua was arrested by Malaysian police, apparently without the assistance of federal agents. A month later, he was convicted of violating the Malaysian Emergency Ordinance of 1969 and was subsequently imprisoned in Malaysia for a period of two years, commencing October 2, 1975, and continuing until October 1, 1977. His conviction was based upon his drug smuggling activities in Malaysia since 1960.

While Chua was in prison, United States officials continued their efforts to extradite him. (Id. at 75 (Dept. of Justice investigation report)). An amendment to Malaysia's Extradition Ordinance of 1958, effective January 1977, permitted Malaysian officials to accept "direct requests from any foreign country for the extradition of a fugitive criminal." (Id. at 96 (Dept. of Justice investigation report)). In September 1977, the United States formally requested the extradition of Chua. (Id. at 72 (telex from American Embassy, Malaysia), 95 (same)).

Chua completed his Malaysian prison term on October 1, 1977. Upon his release, Malaysian officials ordered him restricted to the Province of Bundi for another two years, which was apparently customary procedure. (Petitioner's Suppl. to § 2255 Motion, filed November 22, 1982, Exhibit B, Transcript of Extradition Proceedings, at 4 (Cross-Examination of Tan Khik Seng)). A month after his release, on November 2, 1977, a federal grand jury returned a superseding indictment against him and others. The new indictment charged Chua with participating in the same 1972-73 heroin smuggling operation that formed the basis of the 1973 indictment. A day after the indictment, a new arrest warrant was also issued for Chua.

On December 21, 1977, Chua was again arrested by Malaysian authorities, this time based solely upon a request from the United States. (Id. at 10 (Direct-Examination of Tan Khik Seng); see also Petitioner's Suppl. to § 2255 Motion, filed March 19, 1985, Ex. I at 72 (telex from American Embassy), 95 (same)). He remained incarcerated in Malaysia until he was extradited to the United States on November 28, 1979. Chua pled guilty on April 20, 1979 to two of three counts pending against him in the superseding indictment. This Court sentenced him to thirty years in prison — 15 years on each count, to run consecutively.

Petitioner now moves this Court, pursuant to 18 U.S.C. § 3568, for an order requiring the Attorney General to credit his federal sentence with the time he spent in Malaysian detention from August 4, 1975 to December 20, 1977. Petitioner has already received credit for his second period of incarceration in Malaysia, from December 21, 1977 to November 28, 1979. Since Petitioner has exhausted his administrative remedies in seeking credit for his first period of detention, his present motion is properly before the court.

III. The Statutory Criteria for Determining Whether Credit is Due

Under 18 U.S.C. § 3568, the Attorney General must give a federal prisoner "credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." Petitioner claims his Malaysian detention from August 4, 1975 to December 20, 1977 was "in connection with" his later federal conviction and therefore he is entitled to credit for this time. Petitioner has the burden to...