Wang v. Masaitis

• Citation: 416 F.3d 992
• Decision Date: 27 July 2005
• Docket Number: No. 04-55772.,04-55772.
• Parties: Michael WANG, Petitioner-Appellant, v. Robert MASAITIS, U.S. Marshal, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.3d 992

Michael WANG, Petitioner-Appellant, v. Robert MASAITIS, U.S. Marshal, Respondent-Appellee.

No. 04-55772.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2005.

Filed July 27, 2005.

Hoyt Sze, Office of the Federal Public Defender, Santa Ana, CA, for the petitioner-appellant.

Mark C. Krause, Office of the United States Attorney, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV-03-07470-CAS.

Before FERGUSON, NOONAN, and HAWKINS, Circuit Judges.

Opinion by Judge HAWKINS; Dissent by Judge FERGUSON

MICHAEL DALY HAWKINS, Circuit Judge.

We must decide whether, under the Treaty Clause of the Constitution, the United States may enter into a "treaty" with a non-sovereign entity, such as Hong Kong. We conclude that such a treaty is constitutional, and therefore uphold the validity of the "Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders" ("Extradition Agreement"). We also hold that a magistrate judge has jurisdiction under the Federal Magistrates Act to issue a Report and Recommendation ("R & R") regarding a habeas petition without the defendant's explicit consent.

I. BACKGROUND

In 2003, Hong Kong Magistrate Bina Chainrai issued a warrant authorizing Michael Wang's arrest. The warrant listed eighteen counts of theft (adding up to $15,834,000 in Hong Kong currency) and two counts of dealing with property known or believed to represent proceeds of an indictable offense. After the Hong Kong Department of Justice formally requested Wang's surrender pursuant to the Extradition Agreement, the United States filed a request to extradite him. United States Magistrate Judge Rosalyn M. Chapman held a hearing, found that all of the requirements for the extradition had been met, and issued an order certifying Wang's extraditability.

Wang filed a habeas petition challenging the extradition order, contending (1) that the court lacked subject matter jurisdiction to certify extradition because the Extradition Agreement between the United States and Hong Kong is not a proper "treaty" under the Constitution, and (2) that no probable cause supports certain charges against him. Wang's habeas petition was heard by Magistrate Judge Chapman, who issued a R & R to District Judge Christina A. Snyder. Although Wang did not explicitly consent to Magistrate Judge Chapman's review of his habeas petition, Wang made no objection to her appointment. Judge Snyder conducted a de novo review of the R & R, approved and adopted the R & R, and entered an order denying the petition for habeas corpus.

II. DISCUSSION

On July 1, 1997, the United Kingdom returned sovereignty over Hong Kong to China. See 22 U.S.C. § 5701. The Hong Kong Special Administrative Region ("HKSAR") of China was set up "to enjoy a high degree of autonomy on all matters other than defense and foreign affairs." Id. The transfer of sovereignty implemented a "one country, two systems" policy, "under which Hong Kong will retain its current lifestyle and legal, social, and economic systems until at least the year 2047." Id.

From 1977 to June 30, 1997, extradition relations between the United States and Hong Kong were governed by an extradition treaty between the United States and the United Kingdom. In light of the transfer of sovereignty over Hong Kong from the United Kingdom to China, the United States and Hong Kong concluded the Extradition Agreement, for which President Clinton requested the Senate's advice and consent to ratify "as a treaty." China had already approved Hong Kong entering into the agreement. The Senate subsequently ratified the Extradition Agreement. See 143 Cong. Rec. S 11165 (Oct. 23, 1997).¹

A. Political Question

The government argues that the constitutionality of the Extradition Agreement is a nonjusticiable political question, framing the issue as whether Hong Kong is a "sufficiently sovereign foreign power for the purpose of entering into a treaty." However, this court need not decide the status of Hong Kong's sovereignty. Rather, the constitutional issue that Wang has raised is whether the term "treaty" in the Treaty Clause encompasses agreements with non-sovereigns, such as Hong Kong — and that question is clearly justiciable under Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

The Second Circuit's separation of justiciable and nonjusticiable issues regarding the Hong Kong Extradition Agreement is instructive:

Federal courts lack the authority and institutional competence to make the political judgments involved in ascertaining the legitimacy of foreign systems. Thus, in this case, it is not for the courts to decide whether the HKSAR government is a legitimate government. Instead, our role is limited to answering the prior definitional question: what does the term "foreign government" in the extradition statute mean? More precisely, the question we must answer is whether the government of a subsovereign constitutes a "foreign government" or the government of a "foreign country" for purposes of [18 U.S.C.] § 3184. Put another way, for most purposes of United States foreign relations, the HKSAR government is the government of Hong Kong because it has been recognized as such by the Executive, but it is a "foreign government" within the meaning of the extradition statute only if the judiciary interprets that term to encompass subsovereigns.

Cheung v. United States, 213 F.3d 82, 89 (2d Cir.2000) (citing Baker v. Carr, 369 U.S. at 212, 82 S.Ct. 691). Though we answer a slightly different definitional question — whether the President may enter into a treaty with a non-sovereign under the Treaty Clause — the principle is the same, relying on Baker's distinction between discerning a nation's sovereignty (a political question) and interpreting the impact of that status on the law (a judicial one):

While recognition of foreign governments . . . strongly defies judicial treatment . . . and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory, once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area.

369 U.S. at 212, 82 S.Ct. 691 (footnote omitted). China's sovereignty over Hong Kong (and by corollary Hong Kong's subsovereign status) has been resolved by the executive branch, and we do not question that judgment. However, this court may examine the resulting status of Hong Kong, and decide whether the Treaty Clause applies to Hong Kong as a constitutionally cognizable treaty party.

Baker's six factors to determine whether an issue is a nonjusticiable political question supports finding justiciability here:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217, 82 S.Ct. 691. "Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence." Id. (emphasis added).

Justice Powell distilled the Baker test into three inquiries: "(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?" Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (Powell, J., concurring). In applying the Baker/Goldwater factors, it is important to note that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance," Baker, 369 U.S. at 211, 82 S.Ct. 691, and that "not every matter touching on politics is a political question." Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 229, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (citing Baker, 369 U.S. at 209, 82 S.Ct. 691).

1. No Textually Demonstrable Commitment

The issue here is whether the term "treaty" in the Treaty Clause encompasses agreements with non-sovereigns. On this issue of constitutional interpretation, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department," Baker, 369 U.S. at 217, 82 S.Ct. 691, i.e. to the President. Rather, the text is silent, and the dissent concedes as much. (See Dissent.)

2. No Lack of Judicially Discoverable and Manageable Standards; No Requirement for an Initial Policy Determination

The second Goldwater factor lumps together the second and third Baker inquiries — whether there is "a lack of judicially discoverable and manageable standards" and whether a decision is impossible "without an initial policy determination of a kind clearly for nonjudicial discretion." See Goldwater, 444 U.S. at 999, 100 S.Ct. 533 (Powell, J., concurring). Nowhere do we make an explicit or implicit policy determination that an extradition agreement, or foreign relations generally, with Hong Kong is a good or bad thing. The neutral analysis of the Indian treaty line of cases to...