Matter of Extradition of Cheung, 3:96 M 158(JGM).

• Decision Date: 30 April 1997
• Docket Number: No. 3:96 M 158(JGM).,3:96 M 158(JGM).
• Citation: 968 F.Supp. 791
• Court: U.S. District Court — District of Connecticut
• Parties: In the Matter of EXTRADITION OF John CHEUNG.

Page 791

968 F.Supp. 791

In the Matter of EXTRADITION OF John CHEUNG.

No. 3:96 M 158(JGM).

United States District Court, D. Connecticut.

April 30, 1997.

COPYRIGHT MATERIAL OMITTED

Richard A. Reeve, Federal Public Defender's Office, New Haven, CT, for John Cheung.

Christopher F. Droney and Jeffrey A. Meyer, U.S. Attorney's Office, New Haven, CT, for U.S.

RULING ON REQUEST FOR EXTRADITION

MARGOLIS, United States Magistrate Judge.

On December 20, 1996, this Magistrate Judge issued a warrant for the arrest of John Cheung ["Cheung" or "defendant"], to answer an extradition complaint. The complaint charges him with the commission of offenses involving financial deception for which a request for extradition to Hong Kong was made pursuant to a treaty between the United States and the United Kingdom. (Dkt.# # 1-3, 15). The United States Attorney's Office for the District of Connecticut ["the Government"] is pursuing Cheung's extradition in response to a formal request from the Government of the United Kingdom ["U.K."] which is, in turn, acting on behalf of the Government of Hong Kong.¹

Cheung was arrested on December 26, 1996 and presented before U.S. Magistrate Judge William I. Garfinkel; the Government filed a motion for pretrial detention that day and an Order of Temporary Detention was entered. (See Dkt. # # 4-9, 11, 15). On December 31, 1996, the Federal Public Defender's office was appointed to represent Cheung. (Dkt.# 10). On January 7, 1997, the Government filed a pre-hearing memorandum of law regarding extradition. (Dkt.# 12).²

On January 9, 1997, the parties participated in a telephonic status conference with this Magistrate Judge in which separate hearings were scheduled on the issues of bond and extradition. On January 17, 1997, a hearing was held after which Cheung's request for release on bail was denied and the Government's motion for pretrial detention was granted. (Dkt.# # 19-20).³ Defendant filed multiple motions for continuance of extradition, which were granted over the Government's objection. (See Dkt. # 13 & 1/17/97 endorsement thereon, Dkt. # # 16, 21-22, 24-27).

The parties filed additional comprehensive briefs with respect to the pertinent issues of law regarding extradition in general and the unique legal issues at issue here. On March 14, 1997, defendant filed a pre-hearing memorandum in opposition to extradition to Hong Kong. (Dkt. # 28).⁴ On March 21, 1997, the Government filed its response to defendant's pre-hearing memorandum. (Dkt. # 29).⁵

On March 26, 1997, a hearing was held during which exhibits and oral argument were received. (Dkt.# # 31-33).⁶ Posthearing briefs were filed by both sides on April 7, 1997 (Dkt.# # 34-35),⁷ by defendant on April 11, 1997 (Dkt.# 37), and by the Government on April 15, 1997 (Dkt.# 38).⁸

I. DISCUSSION

Extradition of fugitives from a foreign country is governed by 18 U.S.C. § 3184, which provides, in pertinent part:

Whenever there is a treaty ... for extradition between the United States and any foreign government ... any magistrate authorized to do so by a court of the United States, ... may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty ... issue his warrant for the apprehension of the person so charged, that he may be brought before such ... magistrate, to the end that the evidence of criminality may be heard and considered.... If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty, ... he shall certify the same, together with a copy of all testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty.

Last summer, the Second Circuit upheld the constitutionality of this statute. Lo Duca v. United States, 93 F.3d 1100 (2d Cir.) (Newman, C.J.), cert. denied, ___ U.S. ___, 117 S.Ct. 508, 136 L.Ed.2d 399 (1996).

It is well-settled law that a certificate of extraditability may issue:

if the [court] has jurisdiction of the subject-matter and of the accused, and the offence charged is within the terms of the treaty of extradition, and the [court] ... has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition.

Ornelas v. Ruiz, 161 U.S. 502, 508-09, 16 S.Ct. 689, 691, 40 L.Ed. 787 (1896); Bingham v. Bradley, 241 U.S. 511, 516-17, 36 S.Ct. 634, 637, 60 L.Ed. 1136 (1916); Ahmad v. Wigen, 910 F.2d 1063, 1064 (2d Cir.1990) ("the Supreme Court has adhered steadfastly to [this] legal principle for more than a century"). See also Marzook v. Christopher, 1996 WL 583378, at *4 (S.D.N.Y. Oct.10, 1996) ["Marzook II"].⁹ The three requirements for extradition are discussed separately below.

A. JURISDICTION

At the hearing, defense counsel represented that Cheung does not contest personal jurisdiction, as he was found within the State of Connecticut and arrested on December 26, 1996. He has been incarcerated at the New Haven Correctional Center since his arrest.

Accordingly, this court has personal jurisdiction over Cheung.

B. THE EXTRADITION TREATIES

1. IDENTITY OF THE TREATIES

At the present time, there is an extradition treaty in full force and effect between the United States and Hong Kong, as follows: There is an applicable treaty between the United States and the United Kingdom of Great Britain and Northern Ireland found in the 1972 Extradition Treaty [the "Treaty"], Protocol of Signature and Exchange of Notes between the United States of America and the United Kingdom of Great Britain and Northern Ireland, which became effective on January 21, 1977 ["Tias 8468"]. The Treaty and TIAS 8468 are made applicable to Hong Kong by an exchange of notes in Washington, D.C. on October 21, 1976 and the Supplementary Treaty of June 25, 1985 [the "Supplementary Treaty"], which became effective on December 23, 1986, also made applicable to Hong Kong in the Annex to the Supplementary Treaty. Cheung admits the existence of the extradition treaty between the United States and the United Kingdom, and that it presently extends to Hong Kong. (Dkt. # 28, at 2).

2. EXTRADITABILITY UNDER THE TREATIES

The next question is whether the charges against Cheung are extraditable under the terms of the treaty agreements. At the hearing held on March 26, 1997, defense counsel similarly represented that Cheung does not contest that the Hong Kong statutes with which he has been charged, thirty-three counts ("offences") of obtaining property by deception, in violation of Section 17(1) of the Theft Ordinance, Laws of Hong Kong, and one count of evasion of liability by deception, in violation of Section 18(B)(1)(b) of the Theft Ordinance, Laws of Hong Kong, fall within the terms of an applicable treaty, if any.

3. ISSUES RELATED TO REVERSION

a. POTENTIAL LAPSE OF TREATY

Defendant correctly contends that his extradition can only occur pursuant to a valid and enforceable treaty between the United States and the requesting party. Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933). Defendant further contends that because neither the extradition proceedings nor the trial and punishment of Cheung can be completed before Hong Kong's reversion to the People's Republic of China ["PRC"] on July 1, 1997¹⁰, his extradition is improper. In other words, because the treaty could lapse before the occurrence of these events, defendant contends that extradition "would violate the terms of the treaty as an impermissible extradition to the PRC." (Dkt. # 28, at 5). Cheung views the issue as a jurisdictional one. Id.

Many of the arguments made by defendant here with respect to the impending reversion were made by the defendant in Lui Kin-Hong v. United States, 957 F.Supp. 1280 (D. Mass.1997) ["Lui I"]. Indeed, Cheung's pre-hearing memorandum cites Lui I extensively. On March 20, 1997, the United States Court of Appeals for the First Circuit reversed the grant of habeas corpus by the District Court in Lui I. United States v. Lui Kin-Hong, 110 F.3d 103 (1st Cir.1997) ["Lui II"].¹¹ The rejection of Lui I by the First Circuit is discussed more fully below.¹²

In his pre-hearing memorandum, Cheung claims that if this court certifies his extradition, he "will avail himself of the habeas process ... [which] would take several months to complete ... [f]ollow[ed][by] ... an appeal to the Second Circuit ... followed by the filing of a certiorari petition." (Dkt. # 28, at 3). According to Cheung, this "procedural reality ... counsels in favor of this Court denying Cheung's extradition." Id. at 4 (emphasis added). The procedural reality of extradition, however, is governed by statute, 18 U.S.C. § 3184, which is mandatory in the nature of the certification procedure. Thus, when the person to be extradited is apprehended, "he may be brought before such ... magistrate to the end that the evidence of criminality may be heard and considered ... If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, ... he shall certify the same together with a copy of all the testimony taken before him, to the Secretary of State." Id. (emphasis added). Thus, there is nothing in the statute which would warrant non-certification on the basis of anticipated appeals. Moreover, there is nothing in the Treaty or the Supplementary Treaty which provides for non-certification under these circumstances. See Lui II, 110 F.3d at 109 ("Indeed, the Supplementary Treaty is entirely silent on the question of reversion" notwithstanding "United States Senate ratification of the Supplementary Treaty ... well after the widely publicized...