Gon v. Holt

Decision Date16 December 2014
Docket NumberNo. 14–6102.,14–6102.
Citation774 F.3d 207
PartiesZHENLI YE GON, Petitioner–Appellant, v. Gerald S. HOLT, U.S. Marshal for the Western District of Virginia; Floyd G. Aylor, Warden of the Central Virginia Regional Jail, Respondents–Appellees, and Eric H. HOLDER, Jr., Attorney General of the United States; Hillary Rodham Clinton, United States Secretary of State; Edwin D. Sloane, United States Marshal for the District of Columbia, Respondents.
CourtU.S. Court of Appeals — Fourth Circuit


ARGUED:Gregory Stuart Smith, Gregory S. Smith, Attorney at Law, Washington, D.C., for Appellant. John Alexander Romano, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF:John C. Lowe, John Lowe, P.C., Bethesda, Maryland, for Appellant. Leslie R. Caldwell, Assistant Attorney General, David A. O'Neil, Acting Deputy Assistant Attorney General, Valinda Jones, Senior Trial Attorney, Criminal Division, United States Department of Justice, Washington, D.C.; Timothy J. Heaphy, United States Attorney, Anthony Giorno, First Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellees.

Before SHEDD and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by published opinion.

Judge SHEDD wrote the opinion, in which Judge FLOYD and Senior Judge DAVIS joined.

SHEDD, Circuit Judge:

In 2008, Mexico sent a request to the United States to extradite Zhenli Ye Gon, a Mexican citizen. Ye Gon's extradition hearing was held before a magistrate judge in the District of Columbia, who determined that Ye Gon was extraditable under the Extradition Treaty Between the United States of America and the United Mexican States 1 (“Treaty”). Ye Gon then filed a habeas corpus petition challenging this determination in the Western District of Virginia, and the district court denied that petition. Ye Gon now appeals the denial, claiming that the magistrate judge lacked jurisdiction to conduct the extradition proceeding and that the Treaty bars his extradition. We affirm.


We begin by reviewing the mechanics of the extradition process generally, as well as the specific requirements imposed by this Treaty. The process of extraditing a non-United States citizen to a foreign nation is conducted largely by the United States Department of State, which receives any requests for extradition from foreign nations and determines whether those requests are governed by a treaty. Mironescu v. Costner, 480 F.3d 664, 665 (4th Cir.2007). If the State Department determines that there is an applicable treaty, it refers the matter to the Justice Department, which in turn reviews the request under the applicable treaty. If the Justice Department deems the request valid, it then refers the matter to the United States Attorney for the district in which the fugitive is believed to be located. Id.

The United States Attorney then files a complaint before a federal justice, judge, or magistrate, seeking a warrant for the fugitive's arrest and a certification that he may be extradited. 18 U.S.C. § 3184. Because the extradition statute provides that this judge may “charg[e] any person found within his jurisdiction” with having committed a foreign crime, id., only judicial officers with jurisdiction over the place where the fugitive is “found” may conduct these extradition proceedings. See Pettit v. Walshe, 194 U.S. 205, 218–19, 24 S.Ct. 657, 48 L.Ed. 938 (1904).

Once the extradition judge has issued the extradition warrant and the fugitive has been apprehended, he is brought before that judge for an extradition hearing. 18 U.S.C. § 3184. The extradition hearing is not a full trial; rather, its purpose is to determine (1) whether there is probable cause to believe that there has been a violation of the laws of the foreign country requesting extradition, (2) whether such conduct would have been criminal if committed in the United States, and (3) whether the fugitive is the person sought by the foreign country for violating its laws. Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir.1976). If the extradition judge determines that the fugitive is extraditable, he must send his certification of extraditability to the Secretary of State, who has the final executive authority to determine whether to extradite the fugitive. 18 U.S.C. §§ 3184, 3186; Plaster v. United States, 720 F.2d 340, 354 (4th Cir.1983) ( “Within the parameters established by the Constitution, the ultimate decision to extradite is, as has frequently been noted, reserved to the Executive as among its powers to conduct foreign affairs.”).

The extradition judge who conducts the hearing does not do so in his capacity as a judicial officer of the United States. In re Kaine, 55 U.S. 103, 120, 14 How. 103, 14 L.Ed. 345 (1852). The issuance of a certification of extraditability is therefore not a final order within the meaning of 28 U.S.C. § 1291. As a result, and because § 3184 does not provide for direct review of extradition decisions, a fugitive's only avenue to challenge the decision is to file a petition for habeas corpus review under 28 U.S.C. § 2241. See Haxhiaj v. Hackman, 528 F.3d 282, 285–86 (4th Cir.2008); Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir.2007). Habeas corpus review of an extradition case is limited to determining whether the extradition judge had jurisdiction, whether the charged offense is an extraditable offense under the applicable treaty, and whether there is any evidence warranting the conclusion that probable cause exists for the violation of the foreign country's laws. Ordinola, 478 F.3d at 598. It is the State Department's practice to suspend all action on an extradition request once it becomes aware that the fugitive has filed a petition for habeas corpus review. Department of State, 7 Foreign Affairs Manual 1634.3(f), “Judicial Review of a Finding of Extraditability” (2005).

The Treaty in this case obligates Mexico and the United States to extradite persons whom the authorities of the country requesting extradition have charged with committing an offense within that country's territory. Treaty art. 1. The country requesting the return of such a person is termed the “requesting country,” and the country asked to return such a person is called the “requested country.” This mutual obligation to extradite is, however, subject to certain limitations. Those relevant to this case are outlined below.

Article 6 of the Treaty, entitled “Non bis in idem,” 2 is analogous to our constitutional prohibition on double jeopardy. In essence, it prevents a fugitive from being tried for the same offense in two different countries. The provision states that the requested country shall not extradite a fugitive who “has been prosecuted or has been tried and convicted or acquitted” in that country, if that prosecution or trial was “for the offense for which extradition is requested.”

The Treaty also restricts the offenses for which a fugitive may be extradited to those that are criminal in both the United States and Mexico. This limitation is known as “dual criminality,” and it “ensures that the charged conduct is considered criminal and punishable as a felony in both the country requesting the suspect and the country surrendering the suspect.” Ordinola, 478 F.3d at 594 n. 7. The Treaty's version of the dual criminality requirement is set forth in Article 2, which states that [e]xtradition shall take place ... for wilful acts which ... are punishable in accordance with the laws of both Contracting Parties.”

Finally, the Treaty codifies a customary principle of international relations in Article 17, titled “Rule of Specialty.” The rule of specialty is premised on a “norm of international comity.” United States v. Day, 700 F.3d 713, 722 (4th Cir.2012). The Supreme Court has recognized for more than a century that it is generally accepted that extradited persons, once returned to the requesting country, may be tried only for those offenses for which extradition was granted by the requested country. See United States v. Rauscher, 119 U.S. 407, 416–17, 7 S.Ct. 234, 30 L.Ed. 425 (1886). The Treaty makes this rule explicit, stating that [a] person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted.” Treaty art. 17.


Having described the legal landscape in which this appeal arises, we now turn to the facts. Zhenli Ye Gon, a citizen of Mexico, owned and operated pharmaceutical businesses in and around Mexico City, including Unimed Pharm Chem. Beginning in 2003, Unimed legally imported psychotropic substances, including pseudoephedrine, into Mexico, until the Mexican authorities revoked Unimed's authorization to import or manufacture such substances in July 2005. Despite this loss of permission, Ye Gon continued to import these substances, and in October 2005 began construction of a new Unimed pseudoephedrine manufacturing plant in Toluca, Mexico. Once the plant was operational, it manufactured over 600 kilograms a day of a white crystalline powder, which was later tested and found to contain ephedrine, pseudoephedrine, methamphetamine acetate, and other psychotropic substances under Mexican law.

Believing that he was engaged in the large-scale manufacture and distribution of methamphetamine, a Mexican court issued a warrant for Ye Gon's arrest in June 2007. The next month, the United States government filed a criminal complaint against Ye Gon in the United States District Court for the District of Columbia, charging him with illegally importing drugs into the United States. He was arrested in Maryland on this charge in July 2007 and was transferred to the custody of the United States Marshal in the District of Columbia. The government filed a superseding indictment against Ye Gon in November 2007, charging him with conspiring to aid and abet the manufacture of 500 grams or...

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