In re Extradition of Chan Seong-I, 02-25 WJ.
| Decision Date | 14 June 2004 |
| Docket Number | No. 02-25 WJ.,02-25 WJ. |
| Parties | In the Matter of THE EXTRADITION OF Grace CHAN SEONG-I, A/K/A Chan Seong-I, A/K/A Grace Chan, A/K/A Grace S. Chan, A/K/A Grace Stevenson, A/K/A Grace S. Stevenson, and A/K/A Graceseong Stevenson, a Fugitive from the Hong Kong Special Administrative Region of the People's Republic of China. |
| Court | U.S. District Court — District of New Mexico |
Michael Alarid, Jr., Michael Alarid, Jr & Associates, Albuquerque, NM, for Plaintiffs.
Paula G. Burnett, U.S. Attorney's Office, District of New Mexico, Robert D. Kimball, U.S. Attorney's Office, District of New Mexico, Fred C. Smith, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Defendants.
THIS MATTER comes before the Court pursuant to the Complaint [Docket No. 1] seeking the extradition of Grace Chan Seong ("Ms.Chan") from the United States to the Hong Kong Special Administrative Region of the People's Republic of China.
Ms. Chan, the Relator in this matter, is a U.S. citizen residing in the United States. She has been charged in Hong Kong with the crime of Accepting Advantage as an Agent in violation of Section 9(1)(b) of the Prevention of Bribery Ordinance of the law of Hong Kong, a statute that criminalizes private commercial bribery. Ms. Chan's alleged conduct occurred in 1994. At that time, Ms. Chan was employed by Honeywell Ltd. in Hong Kong as the Financial Controller. While in this position, she is alleged to have accepted money from George, Gilbert and Partners Design Consultant Limited (GGPD) and, in return, to have assisted GGPD in securing contracts with Honeywell.
An arrest warrant for Ms. Chan was issued on December 19, 2001 by the Magistrate Court at Eastern Hong Kong. On January 17, 2002, the Hong Kong Department of Justice submitted a formal extradition request to the United States. The Complaint in this matter was filed on October 7, 2002 by Assistant United States Attorney Robert Kimball, acting for and on behalf of the Government of the Hong Kong Special Administrative Region of the People's Republic of China. Concurrently filed with the Complaint were three volumes of supporting documents from the Hong Kong Special Administrative Region. These documents were properly authenticated in accordance with the Agreement with Hong Kong for the Surrender of Fugitive Offenders, Dec. 20, 1996, U.S.-Gr. Brit., S. Treaty Doc. No. 105-3, the treaty at issue in this case and are properly considered by this Court in its determinations in this matter.
The Complaint filed on October 7, 2002 sought the arrest of Ms. Chan in order that she be brought before the Court for a determination of whether the legal requirements for extradition are met in accordance with 18 U.S.C. § 3184 such that she is subject to surrender. An arrest warrant was issued by this Court on October 7, 2002, and Ms. Chan was arrested pursuant to that warrant on October 16, 2002. A hearing on the matter was held on May 21 and 22, 2003.
Extradition is governed by 18 U.S.C. §§ 3181 and 3184. Under § 3181, in order to extradite an individual, the requesting government must establish (1) the existence of an extradition treaty between the United States and the requesting government; (2) that charges for which extradition is sought are extraditable under the treaty; (3) that the Relator is the same individual charged by the requesting government; and (4) that there is probable cause to determine that crimes have been committed and to believe that the Relator committed them. Ross v. U.S. Marshal, 168 F.3d 1190, 1193 (10th Cir.1999); U.S. v. Kin-Hong, 110 F.3d 103 (1st Cir.1997); Republic of France v. Moghadam, 617 F.Supp. 777 (N.D.Cal.1985). Under 18 U.S.C. §§ 3181 and 3184, a judicial officer's inquiry is limited to this narrow set of issues. Kin-Hong, 110 F.3d at 110. The broader assessment of extradition and its consequences is committed to the discretion of the United States Secretary of State. Id.
The government and Ms. Chan have stipulated to the identity element of the extradition requirements; Ms. Chan is the individual sought by the government of Hong Kong for the charges of Accepting Advantage as an Agent. This Court concludes that it has jurisdiction over the person of Ms. Chan. Ms. Chan contends, however, that the government cannot meet its burden of showing probable cause, cannot show that there is a valid treaty for extradition from the United States to Hong Kong, and cannot show that the charges fall within the extradition treaty. Additionally, Ms. Chan argues that extradition would violate her substantive and procedural due process rights and that the extradition statute violates the separation of powers doctrine of the Constitution of the United States of America. Finally, Ms. Chan urges that extradition should be denied based on humanitarian concerns.
The Court is deeply concerned that Ms. Chan was pregnant at the time of the extradition hearing and has small children at home.1 Thus, if I had jurisdiction, I might deny extradition based on humanitarian concerns. However, as noted above, this Court's inquiry is limited to issues concerning the existence of a treaty, the offense charged, and the quantum of evidence offered. Kin-Hong, 110 F.3d at 110. Whether humanitarian concerns should preclude extradition is an issue committed to the sole discretion of the executive branch, specifically the Secretary of State. See Agreement with Hong Kong for the Surrender of Fugitive Offenders, Dec. 20, 1996, U.S.-Gr. Brit., S. Treaty Doc. No. 105-3, Art. 7. Thus, this Court is without jurisdiction to consider Ms. Chan's arguments with regard to humanitarian concerns.
Ms. Chan contends that 18 U.S.C. § 3184 is unconstitutional because it violates the doctrine of separation of powers. At least one court faced with this argument has determined that a United States District Judge, acting in the capacity contemplated by 18 U.S.C. § 3184, should not address challenges to the constitutionality of the statute. In re Extradition of Lahoria, 932 F.Supp. 802 (N.D.Tex.1996). However, every other court that has been faced with the issue has addressed it. Therefore, I will consider Ms. Chan's argument.
Ms. Chan essentially adopts the reasoning of Lobue v. Christopher, 893 F.Supp. 65 (D.D.C.1995) vacated on jurisdictional grounds, 82 F.3d 1081 (D.C.Cir.1996). In a scholarly and thoughtful opinion, United States District Judge Royce C. Lamberth found that 18 U.S.C. § 3184 unconstitutionally confers upon the Secretary of State the authority to review the legal determinations of Article III judges. Lobue, 893 F.Supp. at 78. Judge Lamberth pointed out that similar legislation has been found to be unconstitutional in the past. Id. at 72-73.
In Hayburn's Case, 2 U.S. 408, 2 Dall. 409, 1 L.Ed. 436 (1792), the United States Supreme Court declared unconstitutional a statute that required judges to certify to the Secretary of War the eligibility of Revolutionary War veterans to receive benefits. The Secretary of War then had discretion to either allow or disallow benefits for those veterans certified by the courts. The Supreme Court held that neither the legislative nor executive branches have any constitutional authority to assign nonjudicial duties to the judiciary, and that the duties at issue were nonjudicial because they were subject to review and revision by the executive and the legislature. Id. at 410 n. 2, 2 Dall. 409. The Supreme Court stated that it is unconstitutional for the legislative branch or an executive branch officer to sit as a court of error on the judicial acts or opinions of an Article III court. Id.
In Gordon v. United States, 69 U.S. (2 Wall.) 561, 562, 17 L.Ed. 921 (1864), the Supreme Court struck as unconstitutional the original statute creating the Court of Claims which permitted the executive branch to revise all decisions of the Court of Claims involving the payment of money. Based on these cases, a review of the language of the statute, and a historical review of the decisions of the Secretary of State, Judge Lamberth found 18 U.S.C. § 3184 to be unconstitutional. Lobue, 893 F.Supp. at 78.
Judge Lamberth also looked to United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1851), for support of his ruling. Notwithstanding Judge Lamberth's scholarly analysis, I believe he misconstrued the holding of that case. In Ferreira, the Supreme Court found that it did not have appellate jurisdiction to review decisions of a lower court made pursuant to a statute that directed judges to evaluate the claims of Spanish inhabitants in Florida and forward the evaluations to the Secretary of the Treasury for independent review. Id. at 52, 13 How. 40. The Supreme Court found that the federal courts were operating in a judicial capacity when evaluating claims; however, the judges were acting as commissioners rather than exercising Article III judicial powers. Id. at 48, 13 How. 40. Thus, there was no appellate jurisdiction in the Supreme Court to review the lower court determinations.
The holding of Ferreira and the concept that Article III judges may act in a judicial capacity but not under the powers of Article III has been relied upon by several courts addressing issues raised with respect to 18 U.S.C. § 3184. The Supreme Court in In re Kaine, 55 U.S. (14 How.) 103, 110, 14 L.Ed. 345 (1852), had no difficulty with the concept that extradition was an executive act performed solely by the Secretary of State, but that Congress had the power to vest authority in the judiciary to arrest and commit persons in preparation of extradition. In determining the scope of the Supreme Court's jurisdiction to issue...
To continue reading
Request your trial
-
Wang v. Masaitis
...and Fourth Circuit district courts have also upheld this treaty. In Re Coe, 261 F.Supp.2d 1203 (C.D.Cal.2003); In the Matter of Seong-I, 346 F.Supp.2d 1149 (D.N.M.2004); United States v. Sai-Wah, 270 F.Supp.2d 748 5. As the Supreme Court described in United States v. Lara, 541 U.S. 193, 124......
-
In re Sarellano
...judge must consider properly authenticated documents that the United States submitted with its complaint. In re Extradition of Chan Seong–I, 346 F.Supp.2d 1149, 1161 (D.N.M.2004). Mr. Rios' right to submit evidence in this proceeding, on the other hand, is committed to the presiding judge's......
-
Hoxha v. Levi
...309, 316, 42 S.Ct. 469, 66 L.Ed. 956 (1922)); see also Gouveia v. Vokes, 800 F.Supp. 241, 244 (E.D.Pa.1992); In re Extradition of Chan Seong-I, 346 F.Supp.2d 1149, 1161 (D.N.M.2004). The habeas court does not sit to superimpose its view of the record on that of the extradition magistrate. B......
-
U.S.A v. Hidalgo, Case No. 2:10-mj-165-PMW
...submitted with an extradition complaint must be considered by the court in an extradition hearing." In re Extradition of Grace Chan Seong-I, 346 F. Supp. 2d 1149, 1161 (D.N.M. 2004). The documents filed in this case are accompanied by a certification from the United States Ambassador at the......
-
Due Process, the Sixth Amendment, and International Extradition
...of the laws of the requesting state, and that state's statute does not bar prosecution); see also In re Extradition of Chan Seong-I, 346 F. Supp. 2d 1149, 1157 (D.N.M. 2004) ("The delay in this case and the absence of a statute of limitation on the charged offenses d[id] not violate [petiti......