In re Ahn
| Decision Date | 09 May 2022 |
| Docket Number | Case No. CV 19-5397-FLA (JPR) |
| Parties | In the MATTER OF the EXTRADITION OF Christopher Philip AHN, A Fugitive from the Government of the Kingdom of Spain. |
| Court | U.S. District Court — Central District of California |
John J. Lulejian, AUSA - Office of US Attorney, Criminal Division, Los Angeles, CA, for United States of America.
Ekwan E. Rhow, Jumin Lee, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg Rhow PC, Los Angeles, CA, Naeun Rim, Manatt Phelps and Phillips LLP, Los Angeles, CA, for Christopher Philip Ahn.
RELUCTANT CERTIFICATION OF EXTRADITABILITY
In April 2019, the U.S. Attorney's Office for the Central District of California, acting on behalf of the Kingdom of Spain, filed a Complaint requesting the extradition of Christopher Philip Ahn, a middle-aged U.S. citizen and Marine Corps veteran with no criminal record. Ahn is among a small group of men, all or some of them part of an organization called Free Joseon,1 accused of a host of crimes arising from their entry into the North Korean embassy in Madrid, Spain, on February 22, 2019. In part because of his participation in the embassy incident, North Korea wants to kill Ahn. I must decide whether to certify his extradition to Spain, where North Korea can much more easily murder him. Although I conclude that the law requires me to certify, I do not think it's the right result, and I hope that a higher court will either tell me I'm wrong or itself block the extradition.
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After Ahn was arrested, the United States filed a formal request for extradition, supported by documentation from Spain, and then a revised such request. In the three years since the case was filed the parties have submitted various memoranda and evidence relating to the extradition, which the Court has carefully read, in most instances many times. On May 25, 2021, the Court conducted an extradition hearing, at which Ahn appeared with counsel. The Court heard sworn testimony from Tufts Professor Sung-Yoon Lee and an unsworn statement from Cynthia Warmbier2 as well as argument from both parties.
Ahn does not dispute that he and others, including Adrian Hong Chang, a former TED fellow and longtime activist against North Korea's ruling Kim family, entered the embassy that day in February 2019. As discussed in greater depth below, Ahn claims the group was asked by unidentified residents there to help them defect; indeed, Hong and Ahn had previously been involved in similar efforts. The United States seems to suggest that the group might instead have intended to terrorize the embassy residents and steal information; no one disputes that when the group finally left, after about four and a half hours, they took with them computer drives, a cell phone, and other electronic information — which they promptly turned over to the FBI. Spain has diplomatic relations with North Korea. The United States, on the other hand, has declared North Korea a state sponsor of terrorism, and with very few exceptions, bars North Koreans from entering the country.
Ahn has raised several challenges to his extradition. He argues that probable cause is lacking, in part because much of the evidence the government relies on — namely, the statements of the North Koreans who were inside the embassy that day — is not "competent."3 He also challenges the existence of "dual criminality," a requirement in extradition law that the "essential character" "of the acts criminalized by the laws of each country are the same and the laws are ‘substantially analogous.’ " Manta v. Chertoff, 518 F.3d 1134, 1141 (9th Cir. 2008) (quoting Oen Yin–Choy v. Robinson, 858 F.2d 1400, 1404 (9th Cir. 1988) ). Finally, he argues that even if the Court finds probable cause to extradite on all or some of the charges, it should decline to do so under a "humanitarian exception" to extradition.
Spain seeks Ahn's extradition on six counts: breaking and entering, making threats, causing injury, illegal restraint, criminal organization, and robbery with violence or intimidation. At the hearing the Court denied the request for extradition on robbery with violence or intimidation because the United States had offered no definition or explanation for the requirement that the robbery have been "for profit," nor any evidence that the group took anything from the embassy for financial gain, the commonsense understanding of the phrase.4 (May 25, 2021 Hr'g Tr. at 97-99.)5 The Court also rejected Ahn's dual-criminality argument because any required intent, which he argued the government had no evidence of, may be inferred from action, see Manta, 518 F.3d at 1142-43 (), and the government's evidence — including, as explained below, a civilian witness's testimony of one of the embassy entrants wielding a gun over a man on the ground — provided probable cause of any necessary specific intent. (Tr. at 65.) And any affirmative defense based on lack of intent, including that Ahn believed he was acting at the behest of or in coordination with the U.S. government (see ECF No. 175 at 32-33 ), may not be considered by the extradition court. See, e.g., Santos v. Thomas, 830 F.3d 987, 993 (9th Cir. 2016) (en banc); In re Extradition of Fordham, 281 F. Supp. 3d 789, 799 (D. Alaska 2017) (). So, what remained to be decided after the hearing was whether probable cause existed to extradite Ahn on the other five charges and, if so, whether the Court should nonetheless refuse to certify extradition on humanitarian grounds. The Court must also resolve various evidentiary issues.
The purpose of an extradition hearing is to determine "whether there is ‘evidence sufficient to sustain the charge under the provisions of the proper treaty or convention,’ or, in other words, whether there is probable cause." Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006) (as amended) (quoting 18 U.S.C. § 1384 ). Probable cause, in turn, means "such information as would justify the committal for trial of the person if the offense had been committed in the requested State."6 (Revised Req., Ex. A, Annex to Extradition Treaty, art. X, § D, ECF No. 226-1 ); see Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir. 1986). Probable cause means a "fair probability" that the suspect has committed the charged crime, Garcia v. Cnty. of Merced, 639 F.3d 1206, 1209 (9th Cir. 2011), and the burden of proving its existence rests with the United States, see Barapind v. Enomoto, 400 F.3d 744, 747 (9th Cir. 2005) (en banc) (per curiam). The probable-cause evidence should be "viewed through the lens of common sense." Florida v. Harris, 568 U.S. 237, 248, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013). If the magistrate judge finds probable cause, she "is required to certify the individual as extraditable to the Secretary of State." Vo, 447 F.3d at 1237 (citation omitted); see also Prasoprat v. Benov, 421 F.3d 1009, 1012, 1016-17 & n.5 (9th Cir. 2005) ().
The federal rules of evidence and procedure do not apply in extradition proceedings, see Mainero v. Gregg, 164 F.3d 1199, 1206 (9th Cir. 1999), and therefore hearsay is permitted, Manta, 518 F.3d at 1147. The person whose extradition is sought may present evidence that "explains" the government's evidence but not evidence that "merely ‘contradict[s] the testimony for the prosecution.’ " Santos, 830 F.3d at 992 (quoting Collins v. Loisel, 259 U.S. 309, 316-17, 42 S.Ct. 469, 66 L.Ed. 956 (1922) ). Whether to admit evidence offered by the fugitive is within the "sound discretion" of the Court. Hooker v. Klein, 573 F.2d 1360, 1369 (9th Cir. 1978).
As many courts have observed, "[t]he difference between ‘explanatory’ and ‘contradictory’ is easier stated than applied." Santos, 830 F.3d at 992 ; see also Gill v. Imundi, 747 F. Supp. 1028, 1040 (S.D.N.Y. 1990) (). In practice, the Ninth Circuit has found that explanatory evidence "explains away or completely obliterates probable cause, whereas contradictory evidence ... merely controverts the existence of probable cause, or raises a defense." Santos, 830 F.3d at 992 (cleaned up). Put another way, contradictory evidence is that which would require the Court to make credibility assessments. See id. at 993.
Before the hearing, Ahn sought to introduce his own declaration explaining the events of February 22. (See ECF No. 178.) Although the declaration is under seal, published reports cited by one or both parties have noted Ahn's claim that he entered the embassy with the others because they had received word that one or more of its residents wanted help defecting. In open court, his counsel described the declaration as relaying Ahn's "subjective understanding ... that this was something that had been requested by ... people in the embassy, that they had asked this group, Free Joseon, to stage a kidnapping so that their family members would not face reprisal back in North Korea" (Tr. at 67) based on their defection (id. at 68, 76). (See also ECF No. 226-3 at 83 ().) Ahn argues that the evidence in his declaration is "explanatory" because it "explain[s] ambiguities or doubtful elements" in the government's case and "obliterate[s] probable cause," relying on the Santos standard. According to him, "there is no coherent explanation" for why the group entered the embassy other than Ahn's (Tr. at 75); "the narrative put forth...
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