Gon v. Holder

• Decision Date: 25 November 2013
• Docket Number: Case No. 7:11–CV–00575.
• Citation: 985 F.Supp.2d 733
• Parties: ZHENLI YE GON, Petitioner, v. Eric HOLDER, Jr., et al., Respondents.
• Court: U.S. District Court — Western District of Virginia

985 F.Supp.2d 733

ZHENLI YE GON, Petitioner,

v.Eric HOLDER, Jr., et al., Respondents.

Case No. 7:11–CV–00575.

United States District Court,

W.D. Virginia,

Roanoke Division.

Nov. 25, 2013.

Gregory Stuart Smith, Law Offices of Gregory S. Smith, Washington, DC, John Christian Lowe, John Lowe P.C., Bethesda, MD, for Petitioner.

John Philip Dominguez, U.S. Attorney's Office, Valinda Jones, U.S. Department of Justice, Washington, DC, Alexander Francuzenko, Broderick Coleman Dunn, Lee Brinson Warren, Cook Craig & Francuzenko, Fairfax, VA, for Respondents.

MEMORANDUM OPINION

JAMES C. TURK, Senior District Judge.

Petitioner, Zhenli Ye Gon (“Ye Gon”), filed this petition for habeas corpus under 28 U.S.C. § 2241 challenging the decision to extradite him to Mexico to face criminal charges for drug-related offenses (including importation into Mexico of psychotropic substances, the transportation and manufacture of psychotropic substances, and possession of such substances for the purpose of producing narcotics), participation in organized crime, weapons offenses, and money laundering. The case has been fully briefed and is ripe for disposition. The Court has considered the legal memoranda filed and the applicable law. The court heard oral argument on the case on November 14, 2013, and also notes the record contains the transcript of the hearing held before Magistrate Judge Ballou on October 9, 2012. For the reasons stated herein, Respondents' Motion to Dismiss Certain Respondents is GRANTED and the petition is DENIED.

I. FACTUAL FINDINGS AND PROCEDURAL BACKGROUNDA. The Mexican Criminal Charges Against Ye Gon

The D.C. District Court (the “extradition court”) gave a detailed and comprehensive discussion of the background of this case, including the factual underpinnings of the Mexican charges against Ye Gon, in its extradition decision. See In re Extradition of Ye Gon, 768 F.Supp.2d 69, 73–79 (D.D.C.2011). The factual findings of the extradition court are entitled to significant deference on habeas review. Haxhiaj v. Hackman, 528 F.3d 282, 287 (4th Cir.2008). The Court adopts the factual findings of the extradition court as its own, unless otherwise noted herein, and will discuss the facts as needed in the context of the legal arguments raised.

Ye Gon's lengthy legal path began when the United States government filed a criminal complaint on July 16, 2007 in the D.C. District Court charging him with violating American drug laws relating to the importation of illegal drugs. Ye Gon was arrested in Maryland on July 24, 2007, and transferred to the custody of the Marshal in the District of Columbia. He remained in custody during the pendency of the criminal proceedings. The Government filed a superseding indictment on November 16, 2007 charging Ye Gon with a single count of conspiring to aid and abet the manufacture of 500 grams or more of methamphetamine, knowing that it was to be imported into the United States from Mexico, in violation of 21 U.S.C. §§ 959, 960, and 963, and 18 U.S.C. § 2. See United States v. Ye Gon, Cr. No. 07–181, Superseding Indictment, Count One, 2008 WL 6692157 (D.D.C. November 6, 2008); ECF No. 42–2, Ex. F–63–65. The Government also sought the forfeiture of all money and property that constituted or derived from the illegal activity alleged in the single-count superseding indictment. Id. The criminal case remained pending until 2009 when the Government moved to dismiss all charges without prejudice. Eventually, with the Government's consent, the court dismissed all criminal charges with prejudice under Fed.R.Crim.P. 48(a).

Ye Gon was initially detained during his criminal case in the District of Columbia. While the case was still pending, he was moved to a detention facility in Orange, Virginia, which is located in the Western District of Virginia.

The extradition case began on September 15, 2008 with the Government filing a complaint in the D.C. District Court to extradite Ye Gon to Mexico (“Extradition Complaint”) to face prosecution on drug charges, money laundering, and the illegal possession of guns. The extradition court conducted extensive proceedings, including a multi-day evidentiary hearing, before issuing a certificate of extraditability on February 7, 2011. Ye Gon, 768 F.Supp.2d 69.

Ye Gon filed his petition for a writ of habeas corpus in the Western District of Virginia on February 9, 2011, thereby preventing his referral to the Secretary of State for surrender to the Mexican government. See18 U.S.C. §§ 3184, 3186; see also ECF No. 102 at 12–13 & n. 5 (explaining policy of the Department of State to suspend its review of an extradition order during the pendency of a habeas petition before the district court). Ye Gon also filed a duplicate petition in the D.C. District Court, which issued the extradition decision. This Court, concluding that both district courts had concurrent jurisdiction, transferred this case to the D.C. District Court, which concluded that it did not have jurisdiction over the habeas action and transferred the action back to this Court. The D.C. District Court held that because Ye Gon was detained in a facility in the Western District of Virginia, a habeas petition could only lie against Ye Gon's immediate custodian—in this case, the warden of the facility in Orange, Virginia. ECF Nos. 33, 34. See Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004).

B. Respondents' Motion to Dismiss Certain Respondents

Initially, the Court addresses Respondents' pending motion to Dismiss Certain Federal Respondents, ECF No. 102, in which Respondents seek dismissal of all Respondents except Gerald S. Holt (U.S. Marshal for the Western District of Virginia) and Floyd Aylor (Warden of the Central Virginia Regional Jail where Ye Gon is currently being held). Specifically, they seek dismissal of U.S. Attorney General Eric Holder, Jr., U.S. Secretary of State Hillary Rodham Clinton,¹ and U.S. Marshalfor the District of Columbia Edwin D. Sloane.² Respondents contend that Holder, Clinton, and Sloane are not proper Respondents pursuant to Padilla, which held that the proper respondent in a federal habeas petition is generally “the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” 542 U.S. at 435, 124 S.Ct. 2711. They also rely on a number of other cases applying Padilla.

Ye Gon does not object to dismissing Eric Holder, Jr., ECF No. 103 at 1 n. 1, and Holder is hereby dismissed. As to the other respondents, Ye Gon offers no legal authority to keep U.S. Marshal Sloane and Secretary of State Clinton in this case. Instead, he seems to be concerned that the government may intentionally take some action in any short period in which his case is not technically “pending”— e.g., if his habeas petition is denied, during the time between the denial and his filing of a notice of appeal—or that it may transfer him to frustrate efforts to enforce this Court's orders. His first concern is easily resolved—this Court will stay his extradition from the entry of judgment in this case for a thirty-day period to allow him to file a notice of appeal and seek a longer stay from this Court or the appellate court for the pendency of that appeal. Indeed, at the November 14, 2013 hearing, counsel for Respondents agreed to such a thirty-day stay.

Ye Gon's concern over being transferred is unfounded in light of the “well-established” rule that “jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.” Sweat v. White, 829 F.2d 1121, 1987 WL 44445, at *1 (4th Cir.1987) (unpublished) (citing Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 888 (10th Cir.1985)); see also United States v. Little, 392 F.3d 671, 680 (4th Cir.2004) (jurisdiction is determined at the time the petition is filed). Thus, even if he were transferred after judgment in this case, the Fourth Circuit could still consider his appeal and enforce orders regarding his custody. Cf. Sweat, supra.

In any event, even if his concerns had merit, Padilla and the other cases cited by Respondents show that Sloane and the Secretary of State are not proper Respondents in this case.³ Accordingly, the Court GRANTS the Motion to Dismiss Certain Federal Respondents, ECF No. 102, and DISMISS Attorney General Holder, U.S. Marshal Sloane, and U.S. Secretary of State Clinton from the case. The remaining Respondents are hereby collectively referred to as “the Government” in the Court's analysis below.

II. ANALYSIS AND CONCLUSIONS OF LAWA. General Standard of Review

The extradition of a person found in the United States to Mexico is governed by the provisions of the federal extradition statutes, 18 U.S.C. §§ 3181 et seq., and the Extradition Treaty between the United States and Mexico. See Extradition Treaty, U.S.-Mex., May 4, 1978, 31 U.S.T. 5059, T.I.A.S. No. 9656 (“Treaty”), attached as ECF No. 41, Ex. C (the “Extradition Treaty”). Every extradition request requires the court to find that: 1) the judicial officer has jurisdiction to conduct an extradition proceeding; 2) the court has jurisdiction over the fugitive; 3) the person before the court is the fugitive named in the request for extradition; 4) there is an extradition treaty in full force and effect; 5) the crimes for which surrender is requested are covered by that treaty; and 6) there is competent legal evidence to support the finding of probable cause as to each charge for which extradition is sought. In re Extradition of Rodriguez Ortiz, 444 F.Supp.2d 876, 881–82 (N.D.Ill.2006) (citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925), Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir.1981), and In re Extradition of Fulgencio Garcia, 188 F.Supp.2d 921, 925 (N.D.Ill.2002)). Upon finding sufficient evidence to support extraditing the fugitive, the court then certifies him as...