Man-Seok Choe v. Torres

• Decision Date: 29 April 2008
• Docket Number: No. 06-56634.,06-56634.
• Parties: MAN-SEOK CHOE, Petitioner-Appellant, v. Adam N. TORRES, U.S. Marshal, in his official capacity, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

525 F.3d 733

MAN-SEOK CHOE, Petitioner-Appellant, v. Adam N. TORRES, U.S. Marshal, in his official capacity, Respondent-Appellee.

No. 06-56634.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2007.

Filed April 29, 2008.

William J. Genego, Nasatir, Hirsch, Podberesky & Genego, Santa Monica, CA, for the petitioner-appellant.

Daniel J. O'Brien, Assistant U.S. Attorney; George S. Cardona, Acting U.S. Attorney; Thomas P. O'Brien, Assistant U.S. Attorney; Daniel Scott Goodman, Assistant U.S. Attorney, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; R. Gary Klausner, District Judge, Presiding. D.C. No. CV-06-06745-RGK.

Before: ALEX KOZINSKI, Chief Judge, JOHNNIE B. RAWLINSON, Circuit Judge, and HAROLD BAER, JR.,^* Senior District Judge.

OPINION

KOZINSKI, Chief Judge:

We consider whether the district court erred in denying Man-Seok Choe's habeas corpus petition challenging certification of his extradition to the Republic of Korea.

Facts

Choe is a Korean citizen and a resident of Los Angeles. In the 1990s, he traveled frequently to Korea on business, where he was acquainted with important political figures. During one of his visits to Korea, Choe learned that he was under criminal investigation. Choe thereupon left Korea in secret and returned to Los Angeles. After Korea requested Choe's extradition, the United States took him into custody. Pursuant to 18 U.S.C. § 3181 et seq., Magistrate Judge Marc L. Goldman determined that Choe was subject to surrender under the terms of the Extradition Treaty Between the Government of the United States of America and the Government of the Republic of Korea, June 9, 1998 ("Treaty"), and certified two crimes for extradition.¹ Choe then petitioned the district court for a writ of habeas corpus. The district court summarily denied his petition, relying on the magistrate judge's determination that Choe is extraditable. Choe appeals.²

Analysis

Because the district court denied Choe's petition in a minute order, we review the magistrate judge's memorandum and order certifying the crimes for extradition. Barapind v. Enomoto, 400 F.3d 744, 748 (9th Cir.2005) (en banc) (per curiam).

1. Acceptance of Bribe Through Good Offices

Article 2 of the Treaty provides that an "offense shall be an extraditable offense if ... it is punishable under the laws" of both nations. Treaty art. 2(1). This is known as the "dual criminality" requirement. Clarey v. Gregg, 138 F.3d 764, 765 (9th Cir.1998). In determining whether Korea has satisfied the dual criminality requirement, we consider "the totality of the conduct alleged." Treaty art. 2(3); see also Clarey, 138 F.3d at 766 ("The primary focus of dual criminality has always been on the conduct charged; the elements of the analogous offenses need not be identical."); Emami v. U.S. Dist. Court, 834 F.2d 1444, 1450 (9th Cir.1987) ("[A]ll the principle of dual criminality requires is that the particular acts alleged constitute a crime in both jurisdictions."); In re Russell, 789 F.2d 801, 803 (9th Cir. 1986) ("[T]o satisfy the `dual criminality' requirement, ... [i]t is enough that the conduct involved is criminal in both countries."). We review de novo the determination that an offense is extraditable. United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.1987).

The extradition papers allege that Choe improperly influenced the Korean government on behalf of Alsthom Co. Alsthom submitted a bid to supply the Korean government with high speed rail cars for a national rapid transit railway system. The papers allege that Choe promised Myung Soo Hwang, who was then the secretary general of the ruling party and a member of the National Assembly, a "sufficient reward" if Hwang exerted his influence on Alsthom's behalf and the bid were successful. Alsthom won the contract and promptly paid Choe over $11 million; Choe, in turn, paid Hwang approximately $400,000.

It's clear that this alleged conduct—promising and then paying a bribe to a public official in exchange for an official act—is a crime under U.S. law. Choe's conduct, if committed in the United States, would be punishable under several statutes including: 18 U.S.C. § 201(b), which makes it illegal to bribe any public official in order to influence his official actions; 18 U.S.C. § 666(a)(2), which makes it a crime to bribe recipients of federal funds; and 18 U.S.C. §§ 1343, 1346, which allow for prosecution of individuals who deprive citizens of the honest services of a public official. See United States v. Blumeyer, 114 F.3d 758, 765 (8th Cir.1997). In short, the "totality of the conduct alleged," Treaty art. 2(3), is "punishable under the laws" of both nations, id. art. 2(1).

Choe nevertheless contends that the offense isn't extraditable because Article 2 of the Treaty further requires that the Korean and U.S. laws be "substantially analogous."³ Choe argues that the Korean law under which he has been charged—Acceptance of Bribe Through Good Offices⁴— isn't "substantially analogous" to any U.S. law. The Korean statute provides: "Any person who receives, demands or promises any money or interest in connection with a mediation of matters belonging to the duties of the public official, shall be punished...." Choe points out that this language seems to criminalize conduct that we would consider mere lobbying. According to Choe, the vague phrase "in connection with a mediation of matters belonging to the duties of the public official" is broad enough to cover the activities of a lobbyist who helps provide access to public officials in a legitimate attempt to influence their official actions.

But Choe misconceives the meaning of the term "substantially analogous." Just three months before the Treaty was signed, we adopted the following definition: "[W]hen the laws of both the requesting and the requested party appear to be directed to the same basic evil, the statutes are substantially analogous." Clarey, 138 F.3d at 766 (internal quotation marks and citation omitted). Korea's statute is "directed to the same basic evil" as our bribery laws, namely, the corruption of public officials. The fact that the Korean law is broader than ours, and thus punishes conduct that would not be unlawful here, is of no consequence, so long as the particular conduct Choe is charged with is prohibited in both countries. Id.

Choe further contends that the United States⁵ hasn't established probable cause that he committed the acts with which he's charged. The Treaty requires "such information as would provide reasonable grounds to believe that the person sought has committed the offense for which extradition is requested." Treaty art. 8(3)(c). The magistrate judge found that the United States satisfied this requirement, and we must uphold that finding if "competent evidence" supports it. Zanazanian v. United States, 729 F.2d 624, 626 (9th Cir.1984).

The magistrate judge's memorandum and order discusses the extensive evidence that Alsthom paid Choe $11 million for his services, but doesn't mention any evidence that Choe promised Hwang a reward, that Choe gave Hwang anything, or even that Choe met with Hwang. Though the extradition papers accuse Choe of doing these things, accusations are not evidence. See In re Sauvage, 819 F.Supp. 896, 902-03 (S.D.Cal.1993). This failure is particularly significant because the Korean prosecutor who prepared the extradition papers had before him the complete statement of Ki Choon Ho, Choe's alleged accomplice in the crime, yet there's no indication in the papers that Ho implicated Choe in bribing Hwang.

To be sure, the magistrate judge had evidence that Choe may have committed some violation of the Acceptance of Bribe Through Good Offices statute. That statute prohibited Choe from "receiv[ing]" Alsthom's money "in connection with a mediation of matters belonging to the duties of the public official," so it's likely that Choe violated the Korean law the moment he allegedly took Alsthom's money, whether or not he then paid any of it over to Hwang. But the Treaty isn't satisfied by proof that Choe probably committed some violation of the statute; it requires probable cause that Choe committed the particular acts of which he's accused, namely, bribing Hwang. See Treaty art. 8(3)(c); see also 18 U.S.C. § 3184 (extradition requires "evidence sufficient to sustain the charge" leveled against the fugitive) (emphasis added); Quinn v. Robinson, 783 F.2d 776, 787 (9th Cir.1986) (section 3184 requires probable cause to believe the accused committed the particular "charged offense").

Because there's no competent evidence to support the magistrate judge's finding of probable cause that Choe committed the particular acts "for which extradition is requested," Treaty art. 8(3)(c), we reverse the district court's denial of habeas corpus as to this offense.⁶

2. Stowaway Control Act

Choe's petition for a writ of habeas corpus seeks relief from the magistrate judge's certification for Choe's violation of the Stowaway Control Act and, curiously, the parties discuss this issue at length in their briefs. But the magistrate judge did not certify this offense for extradition, so Korea can't prosecute Choe for it, see Treaty art. 15(1)(a), p. 741-42 infra, and the United States can't appeal the magistrate judge's adverse determination, see United States v. Doherty, 786 F.2d 491, 501-03 (2d Cir.1986). The issue is thus not properly before us and we do not consider it.

3. Offering Bribe

After Korean authorities launched an investigation into Choe's lobbying activities, Choe allegedly bribed a Korean police officer, Yoon Ki Jeon, to exert his influence to close the investigation. Such conduct, if proven, would violate a Korean statute titled Offering Bribe. Choe concedes that this is an extraditable offense but claims that the evidence does not support probable cause. As discussed above,...