U.S. v. Tse

Citation135 F.3d 200
Decision Date07 October 1997
Docket NumberNo. 97-1103,97-1103
Parties48 Fed. R. Evid. Serv. 967 UNITED STATES, Appellee, v. Stephen TSE, Defendant--Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Martin G. Weinberg, with whom Oteri, Weinberg & Lawson, Kimberly Homan, Sheketoff & Homan and Kevin O'Dea, Boston, MA, were on brief, for appellant.

Demetra Lambros, Attorney, U.S. Department of Justice, Washington, DC, with whom Donald K. Stern, United States Attorney, Susan Hanson-Philbrick and June C. Seraydar, Assistant United States Attorneys, Boston, MA, and Nina Goodman, Attorney, Department of Justice, Washington, DC, were on brief, for appellee.

Before STAHL, Circuit Judge, GODBOLD * and CYR, Senior Circuit Judges.

GODBOLD, Senior Circuit Judge.

Stephen Tse appeals from his conviction under 18 U.S.C. § 1959(a)(5) for attempted murder and conspiracy to murder two men, Chao Va Meng and Dai Keung. He was sentenced to 188 months.

Factual Background

The jury was entitled to find the following facts, either undisputed or based on sufficient evidence. During the 1980s Tse was the leader of a powerful crime organization in Boston called Ping On. Ping On had ties to criminal organizations in Hong Kong. It initiated its members in a ritualistic ceremony in which they pledged loyalty and allegiance to the group and each other. Meng and Keung were members of a rival gang. Ping On was involved in a number of criminal activities including illegal gambling operations, extortion, and violent crimes such as assault and attempted murder.

The events leading up to the attempted murders of Meng and Keung were as follows. Tse was away from Boston for a period of time between 1984 and 1986. When he returned he was dissatisfied because rival gangs had infiltrated Ping On territory and were threatening his dominance. A particular circumstance that bothered him was that Meng and Keung were demanding money from one of his gang members, Albert Cheung. Meng and Keung claimed that Cheung owed them money because they had paid him for phony green cards 1 that were never delivered. Keung was also attempting to collect money from another Ping On member, Kwok-Wah Chan, for a cocaine debt. Tse believed that these demands on members of his gang were indirect attacks on the preeminence of his organization and on him. He became increasingly enraged at the actions of several rival gangs as they began to show signs of force within Ping On's territory. On December 29, 1988 things came to a head, and Tse ordered Jimmy Soo Hoo and Kwok-Wah Chan, members of Ping On, to kill Meng and Keung. Tse located Meng and Keung, obtained weapons for Soo Hoo and Chan, and directed them to "do it smart." After a thwarted attempt, Soo Hoo and Chan finally found Meng and Keung in front of a gambling den. They positioned themselves in an adjacent parking lot and opened fire for between 30 seconds and a minute, but they missed their targets.

On December 21, 1993 a multi-count indictment was returned against Stephen Tse charging him with various federal crimes. Counts 1 and 2: participating in a RICO conspiracy and substantive offenses related to this conspiracy in violation of 18 U.S.C. § 1962(c) & (d); Counts 3 and 4: operating an illegal gambling business in violation of 18 U.S.C. § 1955; Count 7: making an extortionate extension of credit in violation of 18 U.S.C. § 892(a); Count 9: conspiracy to bring aliens into the United States in violation of 8 U.S.C. § 1324; Counts 12 and 13: assault with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(3); Counts 14 and 15: attempted murder in aid of a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(5); Count 16: conspiracy to commit murder in aid of a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(5); and Count 17: using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c).

In February 1994 the United States sought extradition of Tse from Hong Kong on Counts 12 through 17. 2 The request was referred to a Hong Kong magistrate. An Assistant United States attorney who was handling Tse's prosecution submitted additional affidavits on March 31, 1994, to support the murder conspiracy charge alleged in Count 16. In one of the affidavits she stated that the United States was seeking extradition "at this time only on Count 16." After an evidentiary hearing the magistrate committed Tse to the Hong Kong authorities to be extradited to the United States to stand trial on the conspiracy to murder charge contained in Count 16.

The United States government proceeded against Tse solely on Count 16, and Tse entered an agreed guilty plea to this charge. The district court rejected the plea agreement, and Tse withdrew his plea. After this withdrawal the Consul General of the United States presented a diplomatic note to the Governor and Government Secretariat of Hong Kong on May 20, 1996 explaining that new evidence had been discovered and requesting permission to prosecute Tse on the attempted murder charges alleged in Counts 14 and 15. The Consul General received a note from the Government Secretariat of Hong Kong consenting to this request. Tse was then tried by jury on Counts 14 through 16. The jury returned a guilty verdict on all three Counts.

Tse appeals.

Discussion
A. Tse's extradition and the principle of specialty.

Tse contends that the district court erred by denying his motion to dismisss 14 and 15 because he was not extradited on those Counts. Tse urges that by trying him for offenses other than the one listed in the amended extradition request the district court violated the doctrine of specialty. The doctrine of specialty is grounded in international comity and generally requires that a requesting country not prosecute a defendant for offenses other than those for which extradition was granted. See U.S. v. Saccoccia, 58 F.3d 754, 766 (1st Cir.1995), cert. denied, 517 U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996). "A district court's interpretation of the principle[ ] ... [of] specialty traditionally involves a question of law and is, therefore, subject to plenary review in the court of appeals." Id. at 767.

The government contends that Hong Kong waived the rule of specialty by consenting to Tse's prosecution in the written note responding to the Consul General's request. The note from the Government Secretariat of Hong Kong stated:

[t]he offences of conspiracy to murder and attempted murder are both extraditable offences within the meaning of Article III of the Treaty and are offences established by the facts in respect of which extradition was granted within the meaning of Article XII of the Treaty. There accordingly can be no objection to ... Tse being prosecuted in the United States of America for the offences which comprise Counts 14, 15, and 16 of [the indictment], namely the offences of attempted murder of Chao Va Meng and Dai Keung and conspiracy to murder Chao Va Meng and Dai Keung.

Because the doctrine of specialty is concerned with comity rather than the rights of the defendant, "the protection [of specialty] exists only to the extent that the surrendering country wishes." U.S. v. Najohn, 785 F.2d 1420, 1422 (9th Cir.1986); accord Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir.1973). 3 If Hong Kong consented to the prosecution of Counts 14 and 15 Tse's position must fail.

Tse challenges the validity of Hong Kong's consent by suggesting that the letter is not from the proper authority because it is unsigned and does not indicate which department of the Government Secretariat prepared it. Moreover, he asserts that the Government Secretariat is not of consular status and has no authority to interpret the extradition treaty. Despite Tse's assertions the note appears to be an official response from the Hong Kong government, and this court has no power to require Hong Kong to follow a particular procedure in granting a diplomatic request. See Najohn, 785 F.2d at 1423 (Because defendant did not "obtain a Swiss judgment prohibiting Swiss consent to further prosecution we are justified in regarding the statement of the [Swiss] executive branch as the last word of the Swiss government" even though the Swiss government's consent to further prosecution was not court-approved like the order of extradition.).

Even if the diplomatic note from Hong Kong did not serve to waive the doctrine of specialty, the conduct underlying the attempted murder charges was sufficiently similar to that of the conspiracy charge to comport with the doctrine. "The inquiry into specialty boils down to whether ... the surrendering state would deem the conduct for which the requesting state actually prosecutes the defendant as interconnected with (as opposed to independent from) the acts for which he was extradited." Saccoccia, 58 F.3d at 767; see also U.S. v. Sensi, 879 F.2d 888, 895-96 (D.C.Cir.1989) ("What the doctrine of specialty requires is that the prosecution be based on the same facts as those set forth in the request for extradition.") (internal quotation and citation omitted). In the present case the facts used to prove the attempted murder charges were identical to those in the conspiracy charge. Both charges arose out of a single chain of events that culminated in the shootout on December 29, 1988. Article XII of the treaty between Hong Kong and the United States forbids prosecution for "any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted." 28 U.S.T. 227, 233. This language recognizes that a single set of facts can give rise to more than one extraditable offense and that the treaty allows prosecution for those offenses, even if they were not specifically mentioned in the extradition document. The prosecution of Tse for attempted murder did not violate the doctrine of specialty.

B. Jury...

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