Xiao v. Reno, No. C-90-0350 WHO.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: ORRICK
• Citation: 837 F. Supp. 1506
• Parties: Wang Zong XIAO, Plaintiff, v. Janet RENO, in her capacity as Attorney General of the United States; Michael J. Yamaguchi, in his capacity as United States Attorney for the Northern District of California; Reginald L. Boyd, in his capacity as United States Marshal for the Northern District of California; Chris Sales, in her capacity as Acting Commissioner of the Immigration and Naturalization Service; and David Ilchert, in his capacity as District Director for the Immigration and Naturalization Service, Defendants.
• Docket Number: No. C-90-0350 WHO.
• Decision Date: 06 October 1993

837 F. Supp. 1506

Wang Zong XIAO, Plaintiff,
v.
Janet RENO, in her capacity as Attorney General of the United States; Michael J. Yamaguchi, in his capacity as United States Attorney for the Northern District of California; Reginald L. Boyd, in his capacity as United States Marshal for the Northern District of California; Chris Sales, in her capacity as Acting Commissioner of the Immigration and Naturalization Service; and David Ilchert, in his capacity as District Director for the Immigration and Naturalization Service, Defendants.

No. C-90-0350 WHO.

United States District Court, N.D. California.

October 6, 1993.

837 F. Supp. 1507

COPYRIGHT MATERIAL OMITTED

837 F. Supp. 1508

COPYRIGHT MATERIAL OMITTED

837 F. Supp. 1509

COPYRIGHT MATERIAL OMITTED

837 F. Supp. 1510

Cedric C. Chao, John D. Danforth, Ruth N. Borenstein, Lisa Bradley, Morrison & Foerster, San Francisco, CA, Paul M. Gordon, Law Offices of Paul M. Gordon, Oakland, CA, for plaintiff

John A. Mendez, U.S. Atty., Stephen L. Schirle, Chief, Civil Div., Alberto E. Gonzalez, Sp. Asst. U.S. Atty., San Francisco, CA, Mark C. Walters, Asst. Director, Michele Y.F. Sarko, Alexander H. Shapiro, Attys., Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, DC, for defendants.

TABLE OF CONTENTS
                 Page
                 I. INTRODUCTION ................................................................ 1511
                 II. FINDINGS OF FACT ............................................................ 1512
                 A. The Goldfish Arrests. .................................................... 1512
                 B. The Commencement of the Goldfish Case. ................................... 1514
                 C. The Prosecution Team's May 1988 Trip ............................ 1520
                 D. Wang's September 1988 Trip to San Francisco ..................... 1522
                 E. The Prosecution Team's March 1989 Trip. ......................... 1526
                 F. The September 1989 Trip to Shanghai. ............................ 1532
                 G. The Goldfish Trial ....................................................... 1534
                 H. The Immigration Proceedings .............................................. 1538
                 I. Wang's Prospects if He is Returned to the PRC. ........................... 1541
                III. CONCLUSIONS OF LAW .......................................................... 1544
                 A. Jurisdiction. ............................................................ 1544
                 1. Exhaustion of Administrative Remedies ................................. 1544
                 2. Political Questions Doctrine .......................................... 1546
                 B. Third Cause of Action: Violation of Substantive Due Process. ............. 1547
                 1. Wang's Constitutional Rights Apply to Conduct while He Was in the
                 PRC and as an Alien. ................................................. 1547
                 2. Wang has the Right to be Free from Governmental Conduct that
                 "Shocks the Conscience"............................................... 1550
                 a. The Government Acted With Deliberate Indifference to Wang's
                 Rights. ........................................................... 1551
                 (i) The Government Ignored Clear Indications that the PRC
                 Police Coerced Parts of Wang's Testimony...................... 1551
                 (ii) The Government Attempted to Prevent the PRC from
                 Transferring Wang to the Chinese Court System Until
                 After He Testified in the United States. ..................... 1553
                 (iii) The Government Ignored Problem of Using Wang as a
                 Witness When Prosecution was Declined in Hong Kong............ 1553
                 (iv) The Government Deliberately Failed to Consider the Wang
                 Videotape. ................................................... 1556
                 (v) The Government Failed to Prepare PRC Officials for
                 Cross-Examination. ........................................... 1556
                 (vi) The Government Deliberately Failed to Advise PRC Wang
                 Could Apply for Asylum........................................ 1557
                 (vii) Swenson Lied to the Court About His Knowledge of PRC
                 Mistreatment of Wang. ........................................ 1557
                 (viii) After Wang Testified, Swenson Tried to Cover Up His
                 Failings in the Case. ........................................ 1558
                 (ix) INS Tried to Derail Wang's Asylum Application.................. 1558
                 b. Actions of the Government "Shocks the Conscience" of the Court...... 1559
                

837 F. Supp. 1511
                 C. Fourth Cause of Action: Violation of the Government's Duty to Protect
                 Its Witnesses. .......................................................... 1559
                 D. Fifth Cause of Action: Failure to Use Ordinary Care. ...................... 1560
                 E. Sixth Cause of Action: Equitable Estoppel Based on Affirmative Governmental
                 Misconduct. ............................................................. 1560
                 F. Seventh Cause of Action: Violation of 18 U.S.C. § 3508. .............. 1561
                 G. Eighth Cause of Action: As Applied Violation of Procedural Due Process. ... 1562
                 H. Ninth Cause of Action: Facial Violation of Procedural Due Process. ........ 1562
                 I. Tenth Cause of Action: Violation of 8 U.S.C. § 1182. ................. 1562
                 J. Twelfth Cause of Action: Violation of the Law of Nationals and International
                 Law. .................................................................... 1563
                 K. Remedy. ................................................................... 1563
                IV. ORDER. ....................................................................... 1564
                

OPINION AND ORDER

ORRICK, District Judge.

I. INTRODUCTION.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

Plaintiff, Wang Zong Xiao ("Wang"), a citizen of the People's Republic of China ("PRC" or "China"), claims he is a victim of a prosecutorial effort conducted in violation of the above canons enunciated by the Supreme Court. Wang filed this lawsuit against the Attorney General of the United States, the United States Attorney for the Northern District of California, the Marshal for the Northern District of California, the Commissioner of the Immigration and Naturalization Service ("INS"), and the INS District Director (collectively "defendants" or "government"), seeking to bar the United States government from returning him to the PRC, where, Wang insists, he faces the death penalty as punishment for providing truthful testimony in an American court of law. The gravamen of Wang's first amended complaint is that the government deprived him of the substantive due process of law that the Constitution of the United States guarantees.

Plaintiff's first amended complaint, filed July 5, 1990, stated twelve causes of action. In accordance with the Ninth Circuit's opinion in Wang Zong Xiao v. Barr, 979 F.2d 151 (9th Cir.1992), this Court, by Memorandum Decision and Order ("Memorandum Decision") filed March 2, 1993, dismissed Wang's eleventh cause of action. Wang's remaining causes of action are for injunctive relief pending final adjudication of asylum application (including federal judicial review), injunctive relief pending final adjudication of asylum application (including federal judicial review), violation of substantive due process, violation of the government's duty to protect its witnesses, breach of the government's duty to exercise ordinary care, equitable estoppel based on affirmative governmental misconduct, violation of 18 U.S.C. § 3508, violation of procedural due process (alleging that § 3508 is unconstitutional as applied to Wang), violation of procedural due process (alleging that § 3508 is unconstitutional as applied to any prisoner from the PRC), violation of 8 U.S.C. § 1182, and violation of the law of nations and international law.

837 F. Supp. 1512

After almost three years of extensive discovery, the Court conducted a thirteen-day trial on Wang's causes of action. The Court hereby sets forth its Findings of Fact and Conclusions of Law, as required by Rule 52(a) of the Federal Rules of Civil Procedure. To the extent that any Findings of Fact are included under Conclusions of Law, they shall be deemed Findings of Fact; and to the extent that any Conclusions of Law are included under Findings of Fact, they shall be deemed Conclusions of Law.

The facts show such clear, flagrant, and shameful violations of Wang's rights under the Constitution that they "shock the conscience" of the Court and deny Wang the due process to which he is entitled. The facts also warrant the exercise of the Court's inherent supervisory power to protect the witnesses appearing before it. To remedy the constitutional violations, and to protect Wang from certain torture and probable death, the Court enjoins defendants from taking any action to return Wang to the custody of the PRC or its representatives.

For jurisdictional reasons, the Court determines that defendants are entitled to judgment on Wang's remaining causes of action.

I. FINDINGS OF FACT.

A. The Goldfish Arrests.

On March 12, 1988, at approximately 2:00 p.m., PRC police officials arrested Wang on the streets of Shanghai. Four men approached Wang, kicked him, and dragged him along in the street and into a waiting car; once in the car, Wang was blindfolded, kicked again, and sworn at by...