Vo v. Benov, 04-56689.

• Decision Date: 22 May 2006
• Docket Number: No. 04-56689.,04-56689.
• Citation: 447 F.3d 1235
• Parties: Van Duc VO, a/k/a Vo Van Duc, Nguyen Tran Van and Trang Van Nguyen, Petitioner-Appellant, v. Michael L. BENOV, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1235

447 F.3d 1235

Van Duc VO, a/k/a Vo Van Duc, Nguyen Tran Van and Trang Van Nguyen, Petitioner-Appellant, v. Michael L. BENOV, Warden, Respondent-Appellee.

No. 04-56689.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2005.

Filed May 22, 2006.

As Amended June 5, 2006.

W. Michael Mayock, Law Offices of W. Michael Mayock, Pasadena, CA, for the appellant.

Debra W. Yang, United States Attorney, Steven D. Clymer, Special Assistant United States Attorney, Daniel S. Goodman, Assistant United States Attorney, Los Angeles, CA, for the appellee.

Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding. D.C. No. CV-04-05543-DDP.

Before STEPHEN REINHARDT, ALEX KOZINSKI, and MARSHA S. BERZON, Circuit Judges.

REINHARDT, Circuit Judge.

Van Duc Vo, a naturalized U.S. citizen fighting extradition to Thailand, appeals an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Vo asserts that the crime with which he was charged was a political offense and thus not a valid basis for extradition under the terms of the extradition treaty between the United States and Thailand. He also contends that the extradition court violated his due process rights by failing to make a finding whether he had been "proceeded against" under the terms of the treaty and by not denying his extradition on that ground. Because we find that the crime with which Vo was charged is not protected by the political offense exception and that Vo's arguments as to the "proceeded against" clause of the treaty do not present a claim that is cognizable on this appeal, we affirm the district court.

I. Background

A. The Extradition Process

An extradition court—in this case the magistrate judge exercises very limited authority in the overall process of extradition. As we have explained, "[e]xtradition is a matter of foreign policy entirely within the discretion of the executive branch, except to the extent that the statute interposes a judicial function." Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir.1997) (citing In re Metzger, 46 U.S. (5 How.) 176, 188, 12 L.Ed. 104 (1847)). Extradition from the United States is initiated when the nation seeking extradition makes a request directly to the State Department. Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003). "After the request has been evaluated by the State Department to determine whether it is within the scope of the relevant extradition treaty, a United States Attorney ... files a complaint in federal district court seeking an arrest warrant for the person sought to be extradited." Id. Upon the filing of a complaint, a judicial officer (typically a magistrate judge) issues a warrant for an individual sought for extradition, provided that an extradition treaty exists between the United States and the country seeking extradition and the crime charged is covered by the treaty. 18 U.S.C. § 3184. After the warrant issues, the judicial officer conducts a hearing to determine whether there is "evidence sufficient to sustain the charge under the provisions of the proper treaty or convention," id., or, in other words, whether there is probable cause.

If the judicial officer determines that there is probable cause, he "is required to certify the individual as extraditable to the Secretary of State." Blaxland, 323 F.3d at 1208 (emphasis added) (citing Lopez-Smith, 121 F.3d at 1326). After an extradition magistrate certifies that an individual can be extradited, it is the Secretary of State, representing the executive branch, who ultimately decides whether to surrender the fugitive to the requesting country. Id.; see Quinn v. Robinson, 783 F.2d 776, 789 (9th Cir. 1986).¹ The authority of a magistrate judge serving as an extradition judicial officer is thus limited to determining an individual's eligibility to be extradited, which he does by ascertaining whether a crime is an extraditable offense under the relevant treaty and whether probable cause exists to sustain the charge. See Prasoprat v. Benov, 421 F.3d 1009, 1014 (9th Cir.2005); Blaxland, 323 F.3d at 1208 (quoting United States v. Lui Kin-Hong, 110 F.3d 103, 110 (1st Cir.1997)). Part of determining whether the offense is extraditable is examining whether it falls within the political offense exception. If it does, the individual is not eligible for extradition. Quinn, 783 F.2d at 787.

B. The Extradition Treaty

The United States signed an extradition treaty with Thailand in 1983. Three articles of the treaty are relevant to Vo's appeal. As is typical of many extradition treaties, the Thai treaty contains a "political offense" exception. In Article 3, the treaty provides that "[e]xtradition shall not be granted when: (a) the offense for which extradition is sought is a political offense; or (b) it is established that extradition is requested for political purposes." Treaty Between the Government of the United States of America and the Government of the Kingdom of Thailand Relating to Extradition, Dec. 14, 1983, U.S.-Thail., 1983 U.S.T. LEXIS 418 [hereinafter Treaty], at art. 3(1). Two other articles in the Treaty describe circumstances in which the requested state may choose to deny extradition. Article 4 states, "[t]he Requested State may refuse to extradite a person claimed for a crime which is requested by its laws ... provided it shall proceed against the person for that crime according to its laws." Article 5(2) states, "[e]xtradition may be denied when the person sought is being or has been proceeded against in the Requested State for the offense for which extradition is requested."

C. Vo's Offense

Vo, a naturalized United States citizen who was born in Vietnam, came to the United States in 1980 to escape the regime in his home country. Vo belongs to the Government of Free Vietnam (GFVN), based in Garden Grove, California, which Vo asserts is "an organization deemed a terrorist entity by both Vietnam and the United States." The stated purpose of the GFVN is to "[d]ismantle the Communist dictatorship of the Socialist Republic of Vietnam by a peaceful, practical and persistent approach." Although the GFVN insists that its activities are peaceful, its members have been linked to several incidents of terrorism in Vietnam and elsewhere.

In 2001, Vo visited Thailand. Between June 15, 2001 and June 19, 2001, Vo and an accomplice jointly devised a plan to plant explosives at the Vietnamese embassy in Bangkok. Early in the morning of June 19, the anniversary of the formation of the South Vietnamese Army, Vo and his accomplice met and, carrying two bags and one backpack, took a taxi to the embassy. On the way, Vo took one bag and separated from the accomplice, but instructed the accomplice to take the remaining packages—which contained ammonium nitrate and diesel fuel, the explosive mixture known as ANFO that was used in the 1995 Oklahoma City bombing—and implement their plan to bomb the embassy. At around 4 a.m., Vo's accomplice arrived at the Vietnamese embassy in Bangkok with the two packages. He placed one, a box containing approximately three kilograms of ANFO, just outside the perimeter wall of the embassy, and threw the other, a back-pack containing approximately five kilograms of the material, over the wall. The bombs included cell phones that were wired to function as triggers when called. Subsequent investigation showed that Vo's accomplice called the cell phones connected to the bombs after he delivered them to the embassy, but that the bombs failed to detonate. Vo flew to Los Angeles later that day.

Shortly after the attempted bombing, Thai police arrested Vo's accomplice, Phan Nguyen Thanh Si. In a statement to police investigators, Si implicated Vo as the organizer of the crime. Si's confession also associated the GFVN with the bombing attempt. Further police investigation revealed that Vo's latent fingerprints were on some papers inside one of the packages, and that Si and Vo had been seen buying the cellular phones that were found connected to the bombs. Although Vo does not deny being involved in the bombing plot, there is some dispute over whether he intended the bombs to explode. Vo claims that he decided at the last minute not to detonate the explosives, and, to that end, he had ensured that the detonators were removed and that the ignition match and the gunpowder were wet. He contends that he arranged for the planting of the bombs at the embassy only so that "the repressive Communist government of Vietnam would be sent a message they would understand." However, Si's confession states that Vo told him "to ignite" the bombs, and Thai forensic examiners determined that the bombs were still capable of going off at the time they were found. It is undisputed that had the bombs exploded, they were powerful enough to kill or injure people within a 10-15 meter (approximately 33-39 feet) radius.

D. Proceedings Below

Vo was arrested in California in October 2001, and he has been detained without bail ever since. Initially, charges were brought against him in the Central District of California for conspiring to use a weapon of mass destruction outside the United States in violation of 18 U.S.C. § 2332a(b). Vo consented to an information instead of an indictment because he intended to plead guilty to the charge, but plea negotiations fell apart and a criminal trial was scheduled. However, in June 2002, following the commencement of extradition proceedings, the U.S. Attorney's office, pursuant to a request from Thailand, moved for dismissal of the criminal charge and the district court granted the motion. That month, the United States filed a complaint seeking an extradition arrest warrant for Vo. The warrant was issued and Vo, already in custody on the United States criminal charge, was arrested on that warrant. In August, the United...