Matter of Extradition of Lin

• Decision Date: 14 November 1995
• Docket Number: No. 95-0054.,95-0054.
• Citation: 915 F. Supp. 206
• Parties: In the Matter of the EXTRADITION OF Raymond C. LIN, Defendant.
• Court: U.S. District Court — District of Guam

915 F. Supp. 206

In the Matter of the EXTRADITION OF Raymond C. LIN, Defendant.

No. 95-0054.

District Court of Guam.

November 14, 1995.

Mikel W. Schwab, Assistant U.S. Attorney, Agana, Guam, for plaintiff.

John F. Tarantino, Agana, Guam, for defendant.

MEMORANDUM ORDER

UNPINGCO, Chief Judge.

This matter came before the Court on Tuesday, September 26, 1995, at 11:00 a.m., on detainee's extradition hearing. The Court has considered the facts and arguments raised by the parties in their pleadings and at the extradition hearing. For the reasons which follow, the Court finds the Detainee. Mr. Raymond C. Lin to be extraditable and hereby enters a Certification of Extraditability.

BACKGROUND

Pursuant to 18 U.S.C. § 3184 and the Agreement on Extradition, Mutual Assistance in Law Enforcement Matters and Penal Sanctions Concluded Pursuant to Section 175 of the Compact of Free Association (the "Extradition Treaty"), these extradition proceedings were initiated on September 7, 1995, by the United States Attorney on behalf of the National Government of the Republic of Palau ("Palau"). On January 9, 1995, Palau formally filed a "Request for Extradition" with the United States Department of State. Palau seeks extradition of Mr. Lin to try him for the following alleged offenses: (1) Bribery, 17 Palau National Code § 701; (2) Attempted Bribery, 17 Palau National Code § 104; (3) Conspiracy to Commit Bribery, 17 Palau National Code § 901; and (4) a Violation of the Foreign Investment Act, 28 Palau National Code § 113(b). Mr. Lin was arrested on September 16, 1995, based on a complaint filed in this Court by the United States under 18 U.S.C. § 3184 seeking his extradition to Palau. This Court held an initial appearance hearing on September 18, 1995; as well, at the request of detainee's counsel a detention hearing was held on September 19, 1995 and the extradition hearing on September 26, 1995.

The detainee, Mr. Lin, a 30-year old male, is a citizen of the Republic of China ("Taiwan") who has been a residing in Guam since 1993. Mr. Lin is a graduate of the National Kaoshiung Marine College, Kaoshiung, Taiwan with a degree in fishery. He has been employed by Ting Hong Oceanic Enterprises Co., Ltd. of Taiwan from 1989 to the present. In 1993, Mr. Lin was transferred to Guam to manage Ting Hong's Guam Branch.

DISCUSSION

The United States' extradition process and procedure is set forth in 18 U.S.C. §§ 3181-3195. Under this statutory scheme, the extradition judge conducts a hearing in which the Government must establish the following jurisdictional and legal elements: (1) the Court has jurisdiction over the subject matter and individual; (2) the crime charged is an extraditable offense under the treaty; (3) that there is probable cause that the detainee committed the alleged offenses; and, (4) the detainee has not shown by a preponderance of the evidence a valid defense to the extradition. 18 U.S.C. § 3184; See also Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir.1978), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978); In re Petition of France for the Extradition of Philippe Sauvage, 819 F.Supp. 896, 897 (S.D.Ca. 1993); Matter of Demjanjuk, 603 F.Supp. 1468, 1470 (N.D.OH 1985), citing, Bingham v. Bradley, 241 U.S. 511, 36 S.Ct. 634, 60 L.Ed. 1136 (1916). If based on the evidence presented in the extradition hearing the government establishes these factors then the court may certify a detainee's extraditability.

1. Jurisdiction

There are several procedural and substantive jurisdictional requirements to be met for this Court to hear an extradition case. The statutory authority under 18 U.S.C. § 3184 provides for "any judge of the United States" to hear extradition cases provided: (a) there is an extradition treaty in effect between the United States and the requesting nation; (b) there is a criminal charge pending in the requesting nation; (c) that the detainee before the court is, in fact, the same individual charged in the requesting nation.

First, the Government presented a properly authenticated declaration by Elizabeth M. Kiingi an attorney-advisor in the Office of Legal Advisor for the United States Department of State (the "State Department Declaration") declaring that the Extradition Treaty between the United States and Palau is in full force and effect. Second, to show a pending criminal charge in Palau, the requesting nation, the Government presented several properly authenticated documents. Specifically, the following items were offered: the State Department Declaration, the government of Palau's "Request for Extradition", and the Republic of Palau's Warrant of Arrest, signed by Arthur Ngiraklsong, Chief Justice, Supreme Court. The authentication requirements set out in 18 U.S.C. § 3190 have been met. The Department of State Declaration was properly authenticated by virtue of an attached Certificate of Authentication signed by Warren Christopher, United States Secretary of State. The documents provided by the Republic of Palau are properly authenticated as evidenced by a Certificate of Authentication signed by Richard G. Watkins, resident representative of the United States at Koror, Palau. And lastly, at the initial hearing on September 18, 1995, the detainee conceded that he was the individual charged. As all jurisdictional requirements have been met this Court has jurisdiction over the extradition proceedings of Mr. Lin.

2. Extraditable Offense

Closely related to the jurisdictional inquiry above is the question of whether the offenses charged are extraditable "treaty offenses". To make this showing the extradition court must find that the treaty is in full force and effect and that the crimes charged fall within the terms of the treaty. Quinn v. Robinson, 783 F.2d 776, 782-783 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986); See also Oen Yin-Choy v. Robinson, 858 F.2d 1400 (9th Cir.), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020, reh. denied, 492 U.S. 927, 109 S.Ct. 3267, 106 L.Ed.2d 612 (1988). As this Court has already set out its finding that the Extradition Treaty is in full force and effect the analysis in this section will focus on the second part of the required showing.

A court's inquiry of whether the offense comes within the terms of the treaty will vary based on the provisions set out in the treaty. In this case, pursuant to Article II of the Extradition Treaty an offense is extraditable if it is listed as an extraditable offense in the Schedule of Offenses and meets the requirement of dual criminality, or, if it is not listed, it nevertheless satisfies the dual criminality requirement.

The offenses of bribery, attempted bribery and conspiracy to commit bribery are all listed in the Schedule of Offenses. See Extradition Treaty, Appendix A, Schedule of Offenses, para. 10; Extradition Treaty Title II Extradition, Art. II Extraditable Offenses, para. 3(a). The additional requirement of dual criminality requires a more probing inquiry.

The dual criminality doctrine, for extradition purposes, is the requirement that the charged conduct be illegal in both the requesting and requested nations. Quinn, 783 F.2d at 783. The proper inquiry centers on the alleged conduct and does not require the finding of identical criminal statutes or counterparts. Bozilov v. Seifert, 983 F.2d 140, 142 (9th Cir.1993). In practice the court's role is to compare the law of the surrendering state with the law of the requesting state; if the conduct alleged is subject to criminal prosecution in both states the dual criminality requirement is met. United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir.1995); see also Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922) ("It is enough (to satisfy the requirement of dual criminality) if the particular act charged is criminal in both jurisdictions"). At the extradition hearing the Court conducted a comparison of the charged provisions of the Palau National Code with similar provisions of federal law. Peters v. Egnor, 888 F.2d 713, 716 (10th Cir.1989) (holding that in determining the dual criminality issue a full-blown or extensive review of the foreign nation's criminal law is not required or appropriate). Based on this examination, and its further research and reexamination the Court has found that the essential elements of both the Palau offense of bribery and the equivalent United States Federal offense are indistinguishable. Therefore, as to the charge of bribery the doctrine of dual criminality is satisfied. Compare 17 PNC § 701 and 18 U.S.C. § 201.

With respect to the charge of attempted bribery, the Palau offense of attempt requires that the defendant intend to commit the underlying offense yet the attempt must "fall short of actual completion". Under United States federal law, criminal attempt is similar but requires a somewhat more direct and immediate connection to the intended crime, a "substantial step". United States v. Nelson, 66 F.3d 1036 (9th Cir.1995) (a finding of attempt requires evidence of intent to violate the crime and a "substantial step" toward the completion of the crime). Therefore, there is a distinction in the relative connection between the actual act and the underlying "attempted" crime. Despite this, based on the facts and evidence presented, in this case, the dual criminality requirement is still met. United States v. Khan, 993 F.2d 1368, 1372 (9th Cir.1993) (holding that dual criminality was satisfied, despite differences, because defendant could have been charged with offense in both countries); Bozilov, 983 F.2d at 142. Based on the alleged actions Mr. Lin could be charged under both Palau and United States law for attempted bribery.

Next, as to the charge of conspiracy, the U.S. and Palau crimes are identical in that they both require an agreement and intent to commit the underlying crime. Compare 17 PNC § 901 and United States v. Mesa-Farias, 53 F.3d...