Lead Opinion
The United States District Court granted a writ of habeas corpus to Lui Kin-Hong (“Lui”), who sought the writ after a magistrate judge certified to the Secretary of State that she may, in her discretion, surrender Lui for extradition to the Crown Colony of Hong Kong. The United Kingdom, on behalf of Hong Kong, had sought Lui’s extradition on a warrant for his arrest for the crime of bribery. Lui’s petition for habeas corpus was premised on the fact that the reversion of Hong Kong to the People’s Republic of China will take place on July 1, 1997, and it will be impossible for the Crown Colony to try and to punish Lui before that date. The United States appeals. We reverse the order of the district court granting the writ of habeas corpus.
The United States argues that Lui is within the literal terms of the extradition treaties between the United States and the United Kingdom, that the courts may not vary from the language of the treaties, and that the certification must issue. Lui argues that the language of the treaties does not permit extradition, an argument which is surely wrong. Lui’s more serious argument is that the Senate, in approving the treaties, did not mean to permit extradition of someone to be tried and punished by a government different from the government which has given its assurances in the treaties.
Lui does not claim that he faces prosecution in Hong Kong on account of his race, religion, nationality, or political opinion. He does not claim to be charged with a political offense. The treaties give the courts a greater role when such considerations are present. Here, Lui’s posture is that of one charged with an ordinary crime. His claim is that to surrender him now to Hong Kong is, in effect, to send him to trial and punishment in the People’s Republic of China. The Senate, in approving the treaties, could not have intended such a result, he argues, and so the court should interpret the treaties as being inapplicable to his case. Absent a treaty permitting extradition, he argues, he may not be extradited.
While Lui’s argument is not frivolous, neither is it persuasive. The Senate was well aware of the reversion when it approved a supplementary treaty with the United Kingdom in 1986. The Senate could easily have sought language to address the reversion of Hong Kong if it were concerned, but did not do so. The President has recently executed a new treaty with the incoming government of Hong Kong, containing the same guarantees that Lui points to in the earlier treaties, and that treaty has been submitted to the Senate. In addition, governments of our treaty partners often change, sometimes by ballot, sometimes by revolution or other means, and the possibility or even certainty of such change does not itself excuse compliance with the terms of the ■ agreement embodied in the treaties between the countries. Treaties contain reciprocal benefits and obligations. The United States benefits from the treaties at issue and, under their terms, may seek extradition to the date of reversion of those it wants for criminal offenses.
Fundamental principles in our American democracy limit the role of courts in certain matters, out of deference to the powers allocated by the Constitution to the President and to the Senate, particularly in the conduct of foreign relations. Those separation of powers principles, well rehearsed in extradition law, preclude us from rewriting the treaties which the President and the Senate have approved. The plain language of the treaties does not support Lui. Under the treaties as written, the courts may not, on the basis of the reversion, avoid certifying to the Secretary of State that Lui may be extradited. The decision whether to surrender Lui, in light of his arguments, is for the Secretary of State to make.
This is not to say American courts acting under the writ of habeas corpus, itself guaranteed in the Constitution, have no independent role. There is the ultimate safeguard that extradition proceedings before United States courts comport with the Due Process Clause of the Constitution. On the facts of this case, there is nothing presenting a serious constitutional issue of denial of due process. Some future case may, on facts amounting to a violation of constitutional guarantees, warrant judicial intervention. This case does not.
We repeat the facts essentially as we stated them in our earlier opinion. United States v. Lui Kin-Hong,
Lui is charged in Hong Kong with conspiring to receive and receiving over U.S. $3 million in bribes from Giant Island Ltd. (“GIL”) or GIL’s subsidiary, Wing Wah Company (‘WWC”). Lui, formerly a senior officer of the Brown & Williamson Co., was “seconded” in 1990 to its affiliated company, the British American Tobacco Co. (Hong Kong) Ltd. (“BAT-HK”), where he became Director of Exports in 1992. The charges result from an investigation by the Hong Kong Independent Commission Against Corruption (“ICAC”). The Hong Kong authorities charge that GIL and WWC, to which BAT-HK distributed cigarettes, paid bribes in excess of HK $100 million (approximately U.S. $14 to $15 million) to a series of BAT-HK executives, including Lui. The bribes were allegedly given in exchange for a virtual monopoly on the export of certain brands of cigarettes to the People’s Republic of China (“PRC”) and to Taiwan. Among the cigarettes distributed were the popular Brown & Williamson brands of Kent, Viceroy, and Lucky Strike. GIL purchased three-quarters of a billion dollars in cigarettes from 1991 to 1994, mostly from BAT-HK.
A former GIL shareholder, Chui To-Yan (“Chui”), cooperated with the authorities and, it is said, would have provided evidence of Lui’s acceptance of bribes. Some of Lui’s alleged co-conspirators attempted to dissuade Chui from cooperating. Chui was later abducted, tortured, and murdered. The ICAC claims that the murder was committed to stop Chui from testifying. Lui is not charged in the murder conspiracy. Lui was in the Philippines (which has no extradition treaty with Hong Kong) on a business trip when the Hong Kong authorities unsuccessfully sought to question him in April 1994. Lui has not returned to Hong Kong since then.
At the request of the United Kingdom (“UK”), acting on behalf of Hong Kong, United States marshals arrested Lui as he got off a plane at Boston’s Logan Airport on December 20,1995. The arrest was for the purpose of extraditing Lui to Hong Kong.
The district court, on April 25, 1996, reversed the order of the magistrate judge and released Lui on bail and conditions. Lui Kin-Hong v. United States,
The magistrate judge commenced extradition hearings on May 28, 1996. Those proceedings, during which evidence was taken, lasted three days. The magistrate judge found that there was probable cause to believe that Lui had violated Hong Kong law on all but one of the charges in the warrant.
After a hearing, the district court issued a memorandum and order granting the writ on January 7, 1997. Lui Kin-Hong v. United States (“Lui Habeas”),
At the time Lui was arrested in Boston in December 1995, more than eighteen months remained before the reversion of Hong Kong to the PRC on July 1, 1997. The various proceedings in our court system have now occupied fifteen of those months, as the magistrate judge and district judge have given careful consideration to the issues.
II.
The extradition request was made pursuant to the Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 8, 1972, 28 U.S.T. 227 (the “Treaty”), as amended by the Supplementary Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 25, 1985, T.I.A.S. No. 12050 (the “Supplementary Treaty”).
Hong Kong’s status as a Crown Colony is coming to an end on July 1, 1997, when Hong Kong is to be restored to the PRC. The impending reversion, at the expiration of the UK’s ninety-nine year leasehold, was formally agreed upon by the UK and the PRC in 1984; the United States was not a party to this agreement. See Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, Dec. 19, 1984, ratified and entered into force May 27, 1985, T.S. No. 26 (1985) (the “Joint Declaration”). Under the terms of the Joint Declaration, the PRC “declares” its “basic policies” with respect to Hong Kong. Id. art. 3. The PRC states that it intends to establish a “Hong Kong Special Administrative Region” (“HKSAR”), id. art. 3(1), which will enjoy a “high degree of autonomy except in foreign and defence affairs.” Id. art. 3(2). In addition, the PRC states that the HKSAR “will be vested with ... independent judicial power, including that of final adjudication” and that the “laws currently in force in Hong Kong will remain basically unchanged.” Id. art. 3(3). These “basic policies” are, accord
United States Senate ratification of the Supplementary Treaty occurred on July 17, 1986, well after the widely publicized signing of the Joint Declaration. See 132 Cong.Rec. 16,819 (1986). Clearly, the Senate was aware of the planned reversion when it approved the applicability to Hong Kong of the Supplementary Treaty.
The United States does not have an extradition treaty with the PRC. However, on December 20,1996, the United States signed an extradition treaty with the government of the nascent HKSAR, which provides for reciprocal post-reversion extradition. See Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders, Dec. 20, 1996 (the “New Treaty”). The New Treaty will not enter into force until the Senate gives its advice and consent. It was submitted to the Senate on March 3, 1997. See 143 Cong.Rec. S1846 (daily ed. Mar. 3,1997).
A. United States Extradition Procedure
In the United States, the procedures for extradition are governed by statute. See 18 U.S.C. ch. 209. The statute establishes a two-step procedure which divides responsibility for extradition between a judicial officer
It is then within the Secretary of State’s sole discretion to determine whether or not the relator should actually be extradited. See 18 U.S.C. § 3186 (“The Secretary of State may order the person committed under section[ ] 3184 ... of this title to be delivered to any authorized agent of such foreign government ____”) (emphasis added). The Secretary has the authority to review the judicial officer’s findings of fact and conclusions of law de novo,
Thus, under 18 U.S.C. § 3184, the judicial officer’s inquiry is limited to a narrow set of issues concerning the existence of a treaty, the offense charged, and the quantum of evidence offered. The larger assessment of extradition and its consequences is committed to the Secretary of State. This bifurcated procedure reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, such as questions of the standard of proof, competence of evidence, and treaty construction, yet simultaneously implicate questions of foreign policy, which are better answered by the executive branch. Both institutional competence rationales and our constitutional structure, which places primary responsibility for foreign affairs in the executive branch, see, e.g., United States v. Curtiss-Wright Export Corp.,
In implementing this system of split responsibilities for extradition, courts have developed principles which ensure, among other things, that the judicial inquiry does not unnecessarily impinge upon exeeu-tive prerogative and expertise. For example, the executive branch’s construction of a treaty, although not binding upon the courts, is entitled to great weight. Factor v. Laubenheimer,
interpret extradition treaties to produce reciprocity between, and expanded rights on behalf of, the signatories: “[Treaties] should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them. For that reason, if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred.”
Howard,
Another principle that guides courts in matters concerning extradition is the rule of non-inquiry. More than just a principle of treaty construction, the rule of non-inquiry tightly limits the appropriate scope of judicial analysis in an extradition proceeding. Under the rule of non-inquiry, courts refrain from “investigating the fairness of a requesting nation’s justice system,” id. at 1329, and from inquiring “into the procedures or treatment which await a surrendered fugitive in the requesting country.” Arnbjornsdottir-Mendler v. United States,
Lui contends that, on July 1, 1997, the reversion of Hong Kong to the PRC will result in his being subjected to trial and punishment by a regime with which the United States has no extradition treaty. This future event, Lui argues, operates retroactively to render his extradition illegal, as of today, because, he says, extradition is only legitimate where trial and punishment will be administered by the regime with which the United States has a treaty.
Although Lui is correct that the government has conceded that he will not be tried before reversion, it is also quite possible that the scenario he depicts will not arise. The new extradition treaty with the HKSAR may be approved by the United States Senate, establishing a continuity of treaties through and beyond July 1, 1997.
All of these questions involve an evaluation of contingent political events. The Supreme Court has said that the indicia of a non-justiciable political question include:
a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudieial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate*112 branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr,
The principles of reciprocity and liberal construction also counsel against construing the Treaties so as to prohibit Lui’s extradition. Hong Kong, through the United Kingdom, has entered bilateral treaties with the United States. The United States has sought extradition of criminals from Hong Kong in the past, and may wish to continue to do so up until July 1, 1997. If the executive chooses to modify or abrogate the terms of the Treaties that it negotiated, it has ample discretion to do so. However, if this court were to read a cut-off date vis-a-vis extraditions to Hong Kong into the Treaties, it would risk depriving both parties of the benefit of their bargain.
None of these principles, including non-inquiry, may be regarded as an absolute. We, like the Second Circuit, “can imagine situations where the relator, upon extradition, would be subject to procedures or punishment so antipathetic to a federal court’s sense of decency as to require reexamination of the principiéis]” discussed above. Gallina v. Fraser,
B. The Treaties
There is no dispute that the Treaty, as supplemented by the Supplementary Treaty, is currently in effect and is applicable to Hong Kong. The district court, in granting Lui’s habeas petition, reasoned that “the Treaty, by its own terms, does not allow the extradition of a person to Hong Kong if the Crown Colony of Hong Kong is unable to try and to punish that person.” Lui Habeas,
1. Overview
We begin our analysis of the Treaties with a brief overview of the Treaties’ operative provisions. Article I of the Treaty states the basic reciprocal compact, providing that:
Each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offense within Article III, committed within the jurisdiction of the other Party.
Treaty, art. I.
Article III contains the “dual criminality” requirement, a requirement that is “central to extradition law and [one that] has been embodied either explicitly or implicitly in all prior extradition treaties between the United States and Great Britain.” Brauch v. Raiche,
Extradition shall be granted for an act or omission the facts of which disclose an*113 offense within any of the descriptions listed in the Schedule annexed to this Treaty ... or any other offense, if: (a) the offense is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty....
Treaty, art. III(l). The annexed Schedule lists twenty-nine general crimes, including bribery, the crime of which Lui is accused. See Treaty, Schedule, No. 23.
Article V contains various affirmative defenses, including the “political offense” exception. As a general matter, the political offense exception “is now a standard clause in almost all extradition treaties of the world.” I Bassiouni, supra, at 384. The political offense exception in the Treaty prohibits extradition where “(i) the offense for which extradition is requested is regarded by the requested Party as one of a political character; or (ii) the person sought proves that the request for his extradition has in fact been made with a view to try or punish him for an offense of a political character.” Treaty, art. V(l)(c).
The Supplementary Treaty narrows the availability of this political offense exception. It lists a range of crimes — all crimes of violence — that may not be regarded as political offenses for the purpose of raising the political offense exception. See Supplementary Treaty, art. 1. The Supplementary Treaty also offers an affirmative defense to fugitives sought for crimes of violence who, by virtue of its article 1, are unable to raise the political offense exception. See Supplementary Treaty, art. 3(a), (b). Such a fugitive may block extradition by establishing:
by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.
Id. art. 3(a).
The procedural requisites of an extradition request are specified in article VII of the Treaty. The request must be accompanied by, inter alia, a description of the fugitive, a statement of facts of the offense, and the text of the law under which he is charged. See Treaty, art. VII(2). For accused (as opposed to already convicted) fugitives, the request must also include a valid arrest warrant and “such evidence as, according to the law of the requested Party, would justify his committal for trial if the offense had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers.” Id. art. VII(3).
Article XII contains the “specialty” requirement, a common feature of extradition treaties. Specialty has two basic components. First, the requesting state may not try the fugitive for any crimes other than the specific crime for which extradition was sought and granted. Second, the requesting state may not re-extradite the fugitive to a third state. See Treaty, art. XII.
2. Analysis
Both the district court and Lui focus on four Treaty provisions in concluding that the Treaty is inapplicable to Lui. See Lui Habeas,
The Warrant Requirement
The district court understood the warrant requirement of article VII(3) to serve the purpose of permitting “the request
There is nothing in the language of article VII(3), or the rest of article VII, which indicates that the warrant requirement serves the greater function attributed to it by the district court. Indeed, the warrant requirement appears to do nothing more than to help the judicial officer in the requested country to confirm that there are in fact charges properly pending against the relator in the requested country, and that the relator is actually the person sought. It does not authorize the investigation which the district court envisioned, and indeed such an investigation is foreclosed by the rule of non-inquiry. A warrant was provided by the Hong Kong authorities here, and Lui does not attack its validity or authenticity. The warrant requirement was plainly satisfied.
The Dual Criminality Requirement
The district court understood the purpose of the dual criminality requirement, as stated in article III of the Treaty, to be “to provide the requested sovereign with the opportunity to examine the substantive law of the requesting sovereign in the context of the Treaty.” Lui Habeas,
There is nothing in the text of article III of the Treaty that supports this sweeping conclusion. The dual criminality requirement, by its plain terms, is satisfied if the crime of which the relator is accused appears on the annexed Schedule or is punishable in both countries by at least one year’s imprisonment. Bribery, as noted above, appears on the annexed Schedule.
The purpose of the dual criminality requirement is simply to ensure that extradition is granted only for crimes that are regarded as serious in both countries. See United States v. Saccoccia,
The dual criminality requirement is satisfied here.
The Political Offense Exception
The district court also relied on article 3(a) of the Supplementary Treaty, which, it stated, requires the judicial officer “to examine the reasons for the requesting sovereign’s desire to try and to punish the relator.” Lui Habeas,
The Supplementary Treaty article 3(a) defense is simply inapplicable here. Supplementary Treaty article 3(a) describes a defense which is available only to fugitives charged with one of the crimes specified in article 1 of the Supplementary Treaty, all of which are crimes of violence. Lui’s alleged crime — bribery—is not among the crimes enumerated in the Supplementary Treaty’s article 1.
Indeed, the very purpose of the Supplementary Treaty was to cabin the political offense exception so that perpetrators of certain violent offenses would be precluded from avoiding extradition simply because their criminal activity was inspired by political motivation. See Howard,
Lui properly does not claim that he is entitled to the article V(l)(c) political offense exception.
Moreover, article 3(a) allows the judicial officer to make only a narrowly circumscribed inquiry. “[A]n extradition target must establish by a preponderance of the evidence that, if he were surrendered, the legal system of the requesting country would treat him differently from other similarly situated individuals because of his race, religion, nationality, or political opinions.” Howard,
The Rule of Specialty
The district court understood the Treaty’s specialty provision to signify that “the Treaty allows only for extradition for offenses that can be tried and punished by the requesting sovereign.” Lui Habeas,
The rule of specialty literally has no application here. The rule has two basic requirements: that the relator be tried for the crimes charged in the extradition warrant and that the relator not be re-extradited to another country. There is no claim that either of these is violated. Indeed, as the district court properly recognized, Lui is not arguing that the reversion itself would constitute a de facto re-extradition from Hong Kong to China in violation of the specialty provision. Lui Habeas,
The essence of Lui’s argument is rather different: it is that the fact that he cannot be tried and punished by the same government which gave the Treaty assurances contravenes the rationale behind the specialty provisions and so undermines confidence that this is the result the Senate intended in giving its consent. The responses to that argument are largely those outlined at the beginning of this opinion. We add only our thoughts directed to the specialty clause itself.
If Lui’s position were correct, the enforceability of many extradition treaties to which the United States is a party would be thrown into grave doubt. Regimes come and go, as, indeed, do states. Moreover, 18 U.S.C. § 3184, which defines the role of the courts in the extradition process, gives no discretion to the judicial officer to refuse to certify extraditability on the ground that a treaty partner cannot assure the requested country that rights under a treaty will be enforced or protected. See Saccoccia,
The Ninth Circuit, writing in 1988, also rejected a similar argument made by a fugitive who fought extradition by arguing that the United States would be unable to compel Hong Kong’s compliance with the specialty obligation because, although he would face trial in the Crown Colony, his imprisonment might extend past the reversion date. ‘Were the Treaty to be interpreted as [the fugitive] asks, extradition to Hong Kong would be the exception rather than the rule because it would be limited in practice only
Of course, Lui may express his concerns about the post-reversion enforceability of specialty to the Secretary of State, who, in her discretion, may choose not to surrender him. We note that the newly signed, as yet unratified, extradition treaty between the United States and the HKSAR provides that specialty protection “shall apply to fugitive offenders who have been surrendered between the parties prior to the entry into force” of the new treaty. New Treaty, arts. 16, 20. It is not the role of the judiciary to speculate about the future ability of the United States to enforce treaty obligations.
III.
Lui also challenges the determination of the magistrate judge that there was probable cause to believe that Lui had violated Hong Kong law on eight of the nine charges in the warrant. Although the district court declined to review this issue, we do reach it.
Lui protests that we lack power to reach this issue, and that we must remand to the district court for further findings. However, the issue was fully briefed and argued to the district court. The record is complete. This is a habeas corpus appeal, in which the district court was not the fact finder but had only a review function over the findings made by the magistrate judge. The function to be exercised by the district court is more akin to appellate review, and is done on the same record as is before us. Under these circumstances, the district court had no greater institutional competence to perform this review task than do we. That the district court declined to reach the issue does not deprive us of the power to do so.
While it is true that, as a general matter, federal courts of appeals do not rule on issues not decided in the district court, Singleton v. Wulff,
The traditional formulation is that, on habeas corpus review of a certification of extraditability, the court only examines the magistrate judge’s determination of probable cause to see if there is “any evidence” to support it. Fernandez,
Recently, some other appellate courts, while retaining the traditional formulation, have apparently engaged in a more rigorous review of the evidence presented before the judicial officer, thus raising questions about the actual content of the “any evidence” standard. See, e.g., Sidali,
There is no reason to predict a resolution of this issue here. Whatever the prism through which this record is reviewed, ranging from a strictly construed “any evidence” standard to de novo review, our conclusion is that the government has met' its burden.
The purpose of the evidentiary portion of the extradition hearing is to determine whether the United States, on behalf of the requesting government, has produced sufficient evidence to hold the person for trial. The standard of sufficiency is derived from United States law, including the Treaty between the United States and the UK. Under 18 U.S.C. § 3184, the judicial officer must determine whether the evidence of criminality is “sufficient to sustain the charge under the provisions of the proper treaty or convention.” The Treaty requires that:
Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party ... to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party....
Treaty, art. IX(1). “United States courts have interpreted this provision in similar treaties as requiring a showing by the requesting party that there is probable cause to believe that the accused has committed the charged offense.” Quinn,
Probable cause means whether there is sufficient evidence to warrant a man of reasonable caution in the belief that ... an*118 offense • has been committed by the accused.
Supplementary Treaty, art. 2. The actual trial, if any, is in the foreign court, and it is not the purpose of the extradition hearing to determine whether the evidence is sufficient to justify conviction. Thus it is the probable cause determination which is subject to our review.
There is no dispute that payments of over HK $21 million (approximately U.S. $3 million) and unsecured loans of HK $10 million (approximately U.S. $1.4 million) were made to Lui, that the payments were made into foreign bank accounts in Lui’s name, and that the payments were not made directly by check but through a series of steps which made them more difficult to trace. There is also no dispute that the payments were made on the dates charged. The timing is significant. The payments coincided with the knowledge that Lui was being considered as Director of Exports for BAT-HK and with his appointment to that position in 1992.
Two competing theories explaining the purpose of the payments were presented to the magistrate judge. The government argued that the payments were bribes. Although Lui had no burden to produce any evidence at all and the burden of showing probable cause rested entirely on the government, Lui did present an explanation for the loans and payments, primarily in the affidavit of Hung Wing Wah (“Hung”), a former GIL director and sole proprietor of GIL’s subsidiary, WWC.
Hung stated he was told by Chen that, because of the substantial profits generated by the business relationship Lui had been instrumental in establishing, Chen had agreed to pay Lui for his assistance and would continue paying Lui as long as the relationship continued to generate such substantial profits. Hung indicated that the sums paid to Lui bore a reasonable relationship to the magnitude of Chen’s profits. And finally, Hung stated that the unsecured short term loans had been made to Lui so that Lui could invest in the then-booming Hong Kong stock market. Hung stated that both the principal and interest were repaid shortly after the loans were made. During the hearing before the magistrate judge, Lui’s counsel indicated that Lui would testify, and described what that testimony would be. This description matched the testimony given by Hung. Lui ultimately declined to testify.
Lui argued that the government’s evidence was insufficient to support an inference of bribery and that there was, in any event, an innocent explanation. The government argued that the undisputed facts were sufficient to establish probable cause, and that the explanation was inherently implausible. In addition, the government argued, it had two “smoking gun” statements directly saying the payments were bribes. We return to
The magistrate judge concluded that the explanation proffered by Lui’s counsel — “to the effect that the payments represented a gratuitous gesture of gratitude by one of GIL’s former principals for Lui’s assistance in introducing him to a supplier of Japanese cigarettes in 1987, some six years before the last payments were made” — was inherently implausible. Lui Extradition,
In addition, the two statements, which Lui argues were inadmissible, were properly admitted at the probable cause stage of the extradition hearing and further support a finding of probable cause.
The first statement was given to Hong Kong investigators in July 1994 by Chui, one of Lui’s alleged coconspirators. Chui was one of the principals of GIL until April 1993. In his statement, Chui implicated himself and other principals of GIL in a scheme to bribe Lui and others to secure favorable allocations of cigarettes from BAT-HK. According to Chui, GIL began paying bribes to Lui when they first anticipated that Lui might eventually become an important BAT-HK decision-maker. Chui was murdered in Singapore nine months after giving this statement.
The second statement was made by Francis McNamara Haddon-Cave, who worked with Chui. Haddon-Cave testified in Hong Kong in October 1995 at a hearing to determine the sufficiency of the evidence to commit one of Lui’s alleged coconspirators for trial on a charge of conspiracy to bribe Lui. Haddon-Cave testified that he was hired by Chui to work as a consultant for GIL and began working there in October 1992. One of Haddon-Cave’s responsibilities was to foster relationships between GIL and major suppliers like BAT-HK. Haddon-Cave testified that Chui told him in Lui’s presence that Lui was “our man” and an important link with GIL. Lui, then BAT-HK’s Director of Exports, did not deny it. Haddon-Cave further testified that later, outside of Lui’s presence, Chui told him that Lui was “on the take” and had become wealthy as a result of the payments that distributors made to him to secure favorable allocations of cigarettes.
The framework for determining admissibility of evidence here is determined by the Treaty itself and by United States legal rules governing admissibility in extradition proceedings. Pursuant to federal statute, documents offered as evidence in an extradition hearing:
shall be received and admitted as evidence ... for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped____
18 U.S.C. § 3190.
In probable cause hearings under American law, the evidence taken need not meet the standards for admissibility at trial. Indeed, at a preliminary hearing in federal court a “finding of probable cause may be based upon hearsay in whole or in part.” Fed.R.Crim.P. 5.1(a). This is because a “preliminary hearing is not a minitrial of the issue of guilt,” Coleman v. Burnett,
Under Hong Kong law, the Haddon-Cave statement and the Chui statement present separate and distinct issues. The Haddon-Cave statement was ruled inadmissible at the Hong Kong trial of Chong Tsoi-Jun (“Chong”), an alleged co-conspirator, on an objection that it was not made in furtherance of the conspiracy.
As to the Chui statement, a Hong Kong High Court judge issued a declaration that the statement was inadmissible hearsay. On appeal, the Hong Kong Court of Appeal vacated this ruling, finding that Lui’s request for a declaratory judgment was not justicia-ble in the Hong Kong courts, but that even if it were, the judge’s grant of the declaration would be an abuse of discretion. The Court of Appeal reasoned that the issue of the admissibility of the Chui statement in the extradition proceeding was a matter for the United States court to decide. The court noted, however, that the parties agreed that the statement was inadmissible hearsay under Hong Kong law. In light of the Hong Kong court’s statement that the admissibility of the Chui statement in the extradition hearing is a matter for the United States court to decide, admission of the statement into evidence cannot be viewed as a sign of disrespect for a sister court.
The focus on admissibility is, we think, misplaced, both based on these facts and on larger, institutional concerns about the operation of habeas corpus in extradition certifications. While in Manzi we “recognized that serious due process concerns may merit review beyond the narrow scope of inquiry in extradition proceedings,” there is no serious due process issue here. See Manzi,
Inherent in the probable cause standard is the necessity of a determination that the evidence is both sufficiently reliable and of sufficient weight to warrant the conclusion. The probable cause standard does not even require that the government make
No such concerns about reliability are implicated here. First, the statements themselves were neither involuntary nor obtained under questionable circumstances. Further, the Hong Kong courts did not rule that either statement was untrue or otherwise east doubt on the statements’ credibility. Each statement was thought inadmissible in Hong Kong on grounds pertaining to hearsay. The Haddon-Cave statement was deemed inadmissible because it did not meet one of the requirements for admissibility of a co-conspirator’s statement. The Chui statement was thought inadmissible because the declarant was dead. The Hong Kong government alleges that Chui was involved in the conspiracy until he became a government informant and witness and that he was murdered in order to prevent him from testifying. GIL directors, including Hung and Chong, allegedly tried to dissuade Chui from cooperating with the ICAC. We need not reach the issue of whether the statement of a declarant, murdered to keep him from testifying, might be admissible at a criminal trial in the United States, cf. United States v. Houlihan,
One final argument need not detain us long. Lui argues, from his counsel’s tactical decision not to present his testimony at the extradition hearing, that he was precluded from testifying. He argues that the magistrate judge drew an unfavorable inference, in violation of his Fifth Amendment rights, from his failure to testify. The argument misapprehends what happened. The magistrate judge did no such thing. Lui presented testimony from Hung and five other affiants, as well as argument of counsel attempting to explain the payments and loans. The magistrate judge disbelieved the explanation, as it was within his discretion to do. There is nothing in this objection.
For these reasons we reverse the grant of habeas corpus by the district court. We continue in effect the requirement that Lui be held without bail. If Lui wishes to file a petition for rehearing and/or a petition for rehearing en banc with this court, he must do so within 14 calendar days. See Fed.R.App.P. 40(a) & 35(c). We stay, in any event, delivery of the certification of extradit-ability to the Secretary of State during this 14 calendar day period to permit Lui to seek relief from the United States Supreme Court.
So ordered.
Before TORRUELLA, Chief Judge, and SELYA, BOUDIN, STAHL
ORDER OF EN BANC COURT
The suggestion for the holding of a rehearing en bane having been carefully considered by the judges of this Court in regular active service and a majority of said judges not having voted to order that the appeal be heard or reheard by the Court en bane,
It is ordered that the suggestion for rehearing en banc be denied.
Notes
. The most recent warrant for Lui's arrest from the Hong Kong authorities is dated February 5, 1996; there were earlier warrants.
. The magistrate judge found the government had not met its burden of showing probable cause as to Count 2, concerning a payment of HK $1,953,260 made on or about October 21, 1988.
. Due to the limited function of an extradition proceeding, there is no direct appeal from a judicial officer's certification of extraditability. See Collins v. Miller, 252 U.S. 364, 369-70,
. We refer to the Treaty and the Supplementary Treaty as "the Treaties.”
. By its terms, the Treaty applies to the UK, and, in addition, to "any territory for the international relations of which the United Kingdom is responsible and to which the Treaty shall have been extended by agreement between the Contracting Parties embodied in an Exchange of Notes.” Treaty, art. II(l)(a).
The Treaty permits either the UK or the United States, upon six months written notice, to terminate the application of the Treaty as to any territory to which the Treaty was extended under article II(l)(a). Id. art 11(2). To date, to our knowledge, neither party has attempted to invoke this provision to terminate the application of the Treaty to Hong Kong.
. See, e.g., 132 Cong.Rec. 16,598 (1986) (statement of Sen. Hatch) (commenting on applicability of Supplementary Treaty to Hong Kong).
. The judicial officer may be any federal judge, any authorized magistrate, or any state judge of a court of general jurisdiction. See id. § 3184.
. While not required to by statute, the Department of State routinely accepts written submissions from relators in conjunction with its review of extraditability. 4 Abbell & Ristau, International Judicial Assistance: Criminal — Extradition, § 13-3-8(5), at 274 (1995).
.Although at first glance, this procedure might appear to be of questionable constitutionality because it subjects judicial decisions to executive review, rendering them non-final, cf. Hayburn’s Case,
. The United States has, for example, imposed conditions as to the type of trial the relator would receive (e.g., in civil, rather than martial law, court) and as to security arrangements for the relator. 4 Abbell & Ristau, supra, § 13 — 3— 8(4), at 273 n.l.
. One commentator has analogized the rule of non-inquiry to the "act of state" doctrine, which prohibits United States courts from judging the governmental acts of a foreign country performed within its own territory. See Semmel-man, Federal Courts, The Constitution, and The Rule of Non-Inquiry in International Extradition Proceedings, 76 Cornell L.Rev. 1198 (1991). The “act of state” doctrine, the Supreme Court has said, "arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations.” Banco Nacional de Cuba v. Sabbatino,
. Nor is it true, as Lui suggests, that the rule of non-inquiry is only appropriate where the existence of a treaty reflects a substantive judgment about the fairness of another nation's procedures. The United States has maintained, over time, extradition treaties with some of the world's most oppressive and arbitrary regimes. See 18 U.S.C. § 3181 (listing treaties of extradition and dates entered into). The rule of non-inquiry expresses no judgment about a foreign nation's ability and willingness to provide justice; it simply defers that assessment to the second part of every extradition proceeding — review of extraditability and determination of the appropriateness of surrender by the Secretary of State. Indeed, a leading commentator, in discussing the scope of the Secretary’s discretion under 18 U.S.C. § 3186, has. argued that it is precisely “because of the rule of non-inquiry” that it is appropriate for the Secretary to exercise discretion on humanitarian grounds. II Bassiouni, supra, at 602 (emphasis added).
. The government does not argue that, absent any other action and of their own accord, the Treaties would continue beyond reversion to apply to Hong Kong. Accordingly, on the facts of this case, we find the discussion of the state succession doctrine in Terlinden v. Ames,
. It may be argued that this alternative infringes upon the Senate's prerogative, under the Treaty Clause, U.S.Const., art. II, § 2, to give its advice and consent. But it is hardly an appropriate judicial task to attempt to resolve a hypothetical and not ripe dispute between the legislature and the executive.
. Article IX(1), in turn, states that extradition shall not be granted if the evidentiary showing required by article VII(3) is not made by the requesting party.
. Even if he had attempted to assert the political offense exception, he would likely have been unsuccessful since "[c]riminal conduct in the nature of financial fraud ... traditionally has been considered outside the 'political offense’ exception.” Koskotas v. Roche,
. There is no unfairness to Lui. He has had full opportunity to address the issue of whether there is probable cause for extradition before the magistrate judge and full opportunity to address the magistrate judge's determination before the district court. In the extradition proceedings before the magistrate judge, Lui filed a 45 page memorandum on the probable cause issue accompanied by a copious appendix. He also filed motions to exclude certain of the government’s evidence, called witnesses, and presented both live testimony and testimony by affidavit.
. Antiterrorism and Effective Death Penalty Act ("AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214 (1996)
. The one exception to this was the October 1988 payment alleged in Count II, as to which the magistrate judge found a lack of probable cause.
. Lui chose not to testily on his own behalf, as was his prerogative. The magistrate judge properly excluded the polygraph evidence offered by Lui to corroborate his testimony. The polygraph evidence was not relevant, there being no such testimony in evidence to corroborate. Whether it would be admissible if he did testify, we do not address.
. The statement in the magistrate’s opinion that Lui adduced only counsel's argument and not explanatory evidence, Lui Extradition,
. Lui does not rely on the language of 18 U.S.C. § 3190. Most courts reviewing the language have concluded that § 3190 requires only that the evidence meet any authentication requirement imposed by a foreign tribunal, not that it be admissible, much less that it be admissible at trial. See Oen Yin-Choy,
Dissent follows.
Dissenting Opinion
(dissenting).
Because I do not believe that the panel’s opinion reaches the correct result, and because I believe that this case raises numerous difficult and complex questions of law that warrant the full court’s considered attention, I would grant the petition. I there
I. The Treaty Language
The extradition request in this case was made by authorities of the British Crown Colony of Hong Kong pursuant to two bilateral treaties dating from 1972 — a primary agreement and a supplemental treaty — that both the United States and the United Kingdom have signed and ratified.
“In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain,
(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State—
(a) until after he has returned to the territory of the requested Party; or
(b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.
The difficult question Lui’s case presents is whether a certification of extraditability pursuant to the US-UK bilateral extradition treaty and 18 U.S.C. §§ 3181, 3184 can issue in these circumstances. For the reasons that follow, I believe it cannot.
On its face, Article XII of the treaty prohibits a requesting Party from trying and punishing the relator for crimes other than those for which he has been extradited. Moreover, it prohibits a requesting Party from extraditing the relator to a third-party sovereign. As I read Article XII, therefore, the fairest and most reasonable inference to be drawn from the treaty’s language is that it allows only for extradition for offenses that will be tried and punished by the requesting sovereign.
This is not the case we have before us. Thus, in my view, the district court correctly concluded that the most reasonable inference from Article XII’s language is that the treaty “prohibits a person from being extradited to Hong Kong if Hong Kong, as a Crown Colony of the United Kingdom, is unable to try and to punish him.”
• The purpose to be gleaned behind Article XII’s words also supports the position that Lui cannot be certified for extradition in the current circumstances. This circuit has indicated that “[t]he existence of such [an extradition] treaty between the United States and another country indicates that, at least in a general sense, the executive and legislative branches consider the treaty partner’s justice system sufficiently fair to justify sending accused persons there for trial.” In re Extradition of Howard,
In this particular instance, I agree with the district court that the US-UK bilateral treaties are “premised on the trust running between the United States and the United Kingdom.” Lui,
In arriving at my conclusion I am mindful of the Supreme Court’s seminal extradition decision in Terlinden v. Ames,
The situation in Terlinden, however, is different than the one raised by Lui’s case. In Terlinden, the question was whether or not the Kingdom of Prussia continued to have an independent existence and whether its treaty obligations could be exercised in the name of its King notwithstanding the fact that he had subsequently acquired “the title of German Emperor.” Id. at 284,
In my view, the Supreme Court in Terlin-den makes a distinction between a state’s “power ... to carry out its treaty obligations” (a determination on which the judiciary must defer to the political branches), id. at 288,
If it be assumed in the case before us, and the papers presented on the motion for a stay advise us that such is the fact, that the commissioner, on hearing, deemed the evidence sufficient to sustain the charges, and certified his findings and the testimony to the Secretary of State, and a warrant for the surrender of Terlinden on the proper requisition was duly issued, it cannot be successfully contended that the courts could properly intervene on the ground that the treaty under which both governments had proceeded, had terminated by reason of the adoption of the constitution of the German Empire, notwithstanding the judgment of both governments to the contrary.
Id. at 289-90,
Therefore, contrary to the panel opinion’s suggestion, the district court correctly concluded that Terlinden teaches that this court has jurisdiction to examine whether the Hong Kong extradition request fulfills the obligations undertaken by the United Kingdom under the treaty. See Lui,
As I read it, Article XII indicates that the United States and the United Kingdom undertook an agreement to extradite relators but only for trial and punishment in the courts and prisons of each other. Because it is conceded that the extradition request in this case will result in Lui’s being tried and punished under the courts of another sovereign, my reading of Articles I and XII of the treaty convince me that the British Hong Kongese authorities fail to live up to the obligations undertaken by the United Kingdom. If Lui may be extradited at all pursuant to the bilateral US-UK extradition treaties, I read the relevant treaty provisions to say that this may occur only if the United Kingdom or authorities accountable to it retain exclusive jurisdiction over Lui’s person following Hong Kong’s reversion to China. Because the Crown Colony will surrender custody over Lui and jurisdiction over his criminal case to the Chinese successor regime, I am of the opinion that the extradition request in this peculiar set of circumstances constitutes a violation of the relevant treaty terms. As such, I believe that no certification of extraditability can issue from this court pursuant to the US-UK extradition treaty and 18 U.S.C. §§ 3181, 3184.
II. The Re-extradition Prohibition
Lui’s case also presents a difficult question with respect to whether the United Kingdom’s surrender of sovereignty over Hong Kong to China in July 1997 would effect an impermissible re-extradition with respect to Lui under the terms of Article XII. For the reasons that follow, I believe it would.
Article XII in relevant part provides that “[a] person extradited [to a requesting Party] shall not ... be extradited by that Party to a third State.” Here, upon reversion, the United Kingdom will surrender sovereignty
The plain meaning and derivations of the words “extradite” and “extradition” help lead me to conclude that the surrender contemplated for Lui would constitute another extradition. The dictionary definition of “extradite” is, “To deliver up, as to another state or nation.” Funk & Wagnalls New Comprehensive International Dictionary of the English Language 450 (1978). “Extradition” is alternatively defined in dictionaries as, “The surrender of an accused person by a government to the justice of another government, or of a prisoner by one authority to another,” id., as “the surrender of an alleged fugitive from justice or criminal by one state, nation, or authority to another,” The Random House Dictionary of the English Language 685 (2d ed.1987), and as, “The surrender or delivery of an alleged criminal usu[ually] under the provisions of a treaty or statute by one country, state, or other power to another having jurisdiction to try the charge.” Webster’s Third International Dictionary 806 (1986).
Legal usage has followed the word’s plain meaning. Black’s Law Dictionary defines “extradition” by closely paraphrasing the formula given in Terlinden, wherein the Supreme Court defined “[ejxtradition” as “the surrender by one nation to another of an individual accused or convicted of an offence outside its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender.”
International practice is consistent with this legal usage of the term. Prohibitions on re-extradition, like that found in Article XII, are fundamental features of “many [extradition] treaties” that are generally interpreted to give force to the broad principle of international law that “a person extradited to one state may not be extradited or otherwise surrendered to a third state for prosecution.” Restatement (Third) of Foreign Relations Law § 477 cmt. d.
The operative plain meaning of the word, its legal usage, international practice, and its etymological derivation all indicate that the surrender which the record shows and the government concedes is contemplated for Lui would constitute another extradition. Upon reversion, the United Kingdom will surrender sovereignty to China as well as surrender jurisdiction over and custody of criminal defendants like Lui. Using the Terlinden definition, on the peculiar circumstances in this case, upon reversion: (1) Lui will be “surrender[ed] by one nation to another”; (2) he will be “an individual accused ... of an offence outside [the extraditing authority’s] own territory,” because authority over that territory will pass from the United Kingdom to China; (3) the offenses for which Lui is accused “will be within the territorial jurisdiction” of the receiving authority, viz., China; and (4) the receiving authority, under Sino-British international agreements, specifically the Joint Declaration regarding reversion, will be “competent to try and to punish him.”
Having canvassed the relevant sources that help to illuminate the meaning of the word “extradition,” I believe that the revealed reality that the Crown Colony will surrender custody over Lui and jurisdiction over his criminal case to the Chinese successor regime contemplates another extradition in violation of Article XII of the US-UK bilateral extradition treaty. A decision of
In Oen, the United States Attorney, acting on behalf of the United Kingdom and the Crown Colony of Hong Kong, initiated extradition proceedings against Oen in April 1987, a full decade before the scheduled date of reversion. Id. at 1403. Oen was charged with false accounting and publishing a false statement, extraditable offenses under Article III of the US-UK extradition treaty. Id. at 1405. Oen argued that if he was extradited and convicted then the possibility existed that he would remain incarcerated beyond July 1, 1997, the date of reversion. He argued that this hypothetical scenario would have the effect of extraditing him to China in violation of Article XII of the treaty. Id. at 1403.
The Ninth Circuit disagreed and concluded that the Terlinden definition of “extradition” meant that “[n]either deportation nor surrender other than in response to a demand pursuant to Treaty constitutes extradition.” Id. at 1404. Having thus rephrased the Ter-linden definition, the Ninth Circuit panel concluded that “even if Oen becomes subject to Chinese authority pursuant to a reversion of sovereignty upon cession and termination of the British lease of Hong Kong, he will not have been extradited to China.” Id. (emphasis added).
I find the Oen court’s conclusion unsatisfactory for three reasons. First, as my previous discussion elaborates, it does not follow from either the commonly settled meaning of the word “extradition” or the term’s operative legal usage, as manifested by the Supreme Court’s definition in Terlinden. Instead it proceeds upon a rearticulated and truncated sense of the term that does not correspond to Terlinden and that cuts against international practice and the meaning that the term and its French and Latin cognates have carried since Roman antiquity.
Second, even on its own terms, the Oen court misapplied the meaning of the word “extradition.” Specifically, even if one accepts the Oen view that a surrender must be effectuated in response to a demand pursuant to treaty in order for it to constitute an extradition, then a Hong Kong relator’s pos-treversion surrender would qualify. In view of the- treaty architecture that surrounds the impending reversion and the provisions in the Joint Declaration that address the juridical and legal transfer of sovereignty, it is difficult to see how the Crown Colony will surrender custody over Lui and jurisdiction over his criminal case to the Chinese successor regime in the absence of the demands on his person qua criminal defendant that owe their legal status solely to treaty. See, e.g., Sino-British Joint Declaration, para. 1 (“The Government of the People’s Republic of China declares ... that it has decided to resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997.”).
The Oen court thus did not address itself to the situation in this ease, where it is certain as a practical matter and conceded by the government that the relator’s trial would not be under the courts of the British Crown Colony. Therefore, the Oen decision did not fully address the issue that squarely confronts us today, whether Lui’s surrender to Chinese authorities after reversion for trial will amount to another extradition. Read closely, Oen simply refuses to conclude that a previously convicted, already incarcerated prisoner is extradited upon reversion. This is not the predicament with Lui. I thus believe that Oen is unpersuasive and not on point.
III.
Legislative Intent, Judicial Deference, and Separation of Powers
Lui’s case also presents a difficult question with respect to whether certification of extradition in the circumstances known to the court and conceded by the government would comport with the legislature’s intent in ratifying the US-UK extradition treaties. For the reasons that follow, I do not believe certifying Lui for extradition would accord with legislative intent.
The legislative history surrounding the United States Senate’s ratification of the supplementary treaty, which the district court ably canvassed, indicates that the Senate was concerned about the extent and degree to which it could trust the United Kingdom and its judicial system to be fair and just, ultimately concluding that the United Kingdom’s courts were worthy of confidence. See 99th Cong., 2d Sess., 132 Cong. Rec. 9119-71 (daily ed. July 16, 1986) (reprinting the Senate floor debate on ratification) (cited in Lui,
I reach this conclusion understanding full well that the United States signed an agreement on December 20, 1996 with the government of the fledgling Hong Kong Special Administrative Region (“HKSAR”), the British Crown Colony’s successor, which provides for reciprocal post-reversion extradition. See Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders, Dec. 20, 1996. However, the new treaty constitutes a different bargain than the one voted upon by the Senate when it ratified the US-UK bilateral treaties. Moreover, the new agreement will not enter into force, if it indeed does so, until such time as the Senate, to which the new treaty was submitted on March 3, 1997, gives its advice and consent by a constitutionally required two-thirds vote. See U.S. Const. art. II, § 2; 143 Cong. Rec. § 1846 (daily ed. Mar. 3,1997).
In ratifying the US-UK bilateral extradition treaties, I believe the political branches have .judged the justice system of the United Kingdom and of the British Crown Colony of Hong Kong to be sufficiently fair to send accused persons there for trial. Until such time as the Senate ratifies the US-HKSAR extradition treaty no such similar expression of faith or trust has been made by the political branches with respect to China or to the Chinese successor to the British Crown Colony, which, if he is extradited, will try and punish Lui. The United States currently has no extradition treaty with China, which enjoys extradition relations with but one other country, Russia. Separation of powers principles and judicial self-restraint counsel that this court is not at liberty to interpret Article XII of the US-UK extradition treaty in such a way so as to yield a result for which the Senate did not bargain in ratifying the US-UK extradition treaty and which it is currently debating in the form of the recently submitted US-HKSAR agreement. See 143 Cong. Rec. § 1846 (daily ed. Mar. 3, 1997).
Of special import is the fact that the supplemental US-UK treaty was ratified by the Senate in 1986 at a time when it was fully aware of the widely publicized Sino-British Declaration regarding Hong Kong’s reversion in 1997. The supplemental treaty nonetheless does not limit or otherwise -circumscribe the terms of Article XII of the main treaty. As the panel’s opinion explains, the supplemental treaty, as ratified by the Senate in 1986, “is entirely silent on the question of reversion.” . Op. at 109. Because Article XII, on my reading, allows only for extradition for offenses that can be tried and punished by the requesting sovereign, and because the supplemental treaty does not create any exception for reversion-affected relators like Lui, the treaty, as I read it and as the district court found, indicates that no right to demand extradition and no corresponding duty to surrender Lui exists where it is conceded that Lui will not be tried under courts of the United Kingdom or its dependent territories.
This silence in the face of Article XII’s apparent requirement that relators are only to be tried by the judicial authorities of the two Contracting Parties is telling because the presumption in American and international law is against extraditability in the absence of any treaty-created right or obligation. Applicable Supreme Court precedent and “[t]he principles of international law recognize no right to extradition apart from treaty. While a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled ... the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty.” Factor v. Laubenheimer,
Despite the foregoing, the panel opinion construes the US-UK treaties as requiring Lui’s extradition to Hong Kong by invoking, inter alia, the principles that extradition treaties are to be construed liberally in favor of enforcement, see op. at 110 (citing Laubenheimer,
These arguments, while worthy of consideration, ultimately fail to justify a result that does not correspond to the relevant treaty provisions in Articles I and XII or to the congressional intent reflected therein, viz., that the United States agrees to extradite fugitives sought by authorities in the United Kingdom and its dependent territories to be prosecuted in the courts and under the law of those jurisdictions. I agree with the district court that a refusal to certify Lui for extradition requires no untoward judicial interference with prerogatives constitutionally entrusted in the executive branch of government. On the contrary, separation of powers principles and the prevention of undue encroachment upon the Senate’s constitutional prerogatives counsel against certifying Lui for extradition under the peculiar circumstances present in his case.
Specifically, I do not agree that refusing certification in Lui’s ease along the lines that the district court established implies any judicial arrogation of the executive’s power over our affairs with foreign nations. Under the analysis ably laid out by the district court, the refusal to certify Lui’s extraditability does not stem from any assessment or judgment about the fairness or trustworthiness of the Chinese judicial or penal systems, a determination that the third branch of government is not generally empowered or as qualified as the political branches to make. The district court correctly concluded that the certification question is an entirely legal one and that
it would not matter if China’s legal system were more efficient and humane than either the United States’ or the United Kingdom’s. The bottom line is that the terms of the Treaty do not allow extradition when the requesting sovereign is unable to try and to punish the relator. [And t]he Crown Colony of Hong Kong will be unable to try and to punish Lui prior to reversion.
Lui,
I therefore cannot agree with an interpretation of the US-UK bilateral treaties that would permit circumstances to conspire so as to allow a relator to be extradited to Hong Kong where the practical reality is that China, a sovereign state with which the United States has no extradition treaty, will try and punish Lui. Neither can I agree with the panel opinion’s conclusion that, because Lui’s extradition is sought by the current Hong Kong regime, the right to demand extradition and the correlative duty to surrender him in fact do exist, regardless of what is
The opinion correctly notes that “governments of our treaty partners often change, sometimes by ballot, sometimes by revolution or other means, and the possibility or even certainty of such change does not itself excuse compliance with the terms of the agreement embodied in the treaties between the countries.” Op. at 106. But the instant ease does not raise the question presented by a mere change in government, whether peacefully or violently accomplished. Instead it represents a situation in which sovereignty over a particular territory, Hong Kong, will revert from one sovereign, the United Kingdom, with whom the United States has signed and ratified an extradition treaty, to another sovereign, the People’s Republic of China, with which the United States currently has no such treaty relationship.
In my view, this court cannot fail to differentiate between a change in government, which ordinarily does not affect treaty-based obligations, and a change in sovereignty brought about when territory of one sovereign state is ceded and becomes part of the territory of another preexisting state, which generally terminates the effect of treaties of the predecessor state with respect to the territory in question. See Vienna Convention on Succession of States in Respect of Treaties, art. 15. U.N. Doc. A/CONF. 80/31 (1978), 72 Am. J. Int’l L. 971 (1978).
Whatever difficulties may arise in sorting out succession questions in other contexts,
Accordingly, I believe that this court must recognize that the Crown Colony’s present ability to fulfill the requirements imposed by the US-UK extradition treaties can only be assessed in light of the concession that the Crown Colony will not in fact try or punish him and with an eye to the fact that the Chinese successor regime in Hong Kong will not succeed to the Crown Colony’s extradition rights and obhgations. See id. Because of these facts, this court cannot certify Lui for extradition because the Crown Colony’s extradition request fails to five up to the United Kingdom’s promise, as I believe memorialized in the terms of the extradition treaties, to try all relators extradited from the United States in courts under its jurisdiction.
Finally, I am unpersuaded by the panel’s argument that refusing to certify Lui for extradition would be improper because it might mean that “any relator extradited from the United States to Hong Kong at any point since the signing of the Joint Declaration, was, if he faced a term of imprisonment upon conviction that could conceivably extend past the date of reversion, sent to Hong Kong in violation of the Treaty.” Op. at 116.
In the first place, as I explained earher in discussing Oen, Lui’s ease raises a peculiar set of circumstances. The record indicates and the government concedes that Lui will
To conclude, this court faces a situation that my research indicates has no truly analogous counterpart in the annals of modern international law. Because I do not believe that the panel’s opinion reaches the correct result, and because I believe that the full court should hear and consider the numerous difficult legal questions that this ease raises, I would grant the petition for en banc review.
For the foregoing reasons, I respectfully dissent from the denial of the petition.
. See Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 8, 1972, 28 U.S.T. 227 [hereinafter "the treaty”] and Supplemental Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 25, 1985, T.I.A.S. No. 12050 [hereinafter "the supplemental treaty”].
. The supplemental treaty specifically applies to Great Britain and Northern Ireland, the Channel Islands, the Isle of Man, Anguilla, Bermuda, the British Indian Ocean Territoiy, the British Virgin Islands, the Cayman Islands, the Falkland Islands, the Falkland Island Dependencies, Gibraltar, Hong Kong, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St. Helena, the St. Helena Dependencies, the Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus, Turks and Caicos Islands. See Art. 6 & Annex.
. See Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, Dec. 19, 1984, 1984 Gr. Brit. T.S. No. 20 (Cmd.9352) [hereinafter “the Joint Declaration”].
. See Kenneth E. Levitt, Note, International Extradition, The Principle of Specialty, and Effective Treaty Enforcement, 76 Minn. L.Rev. 1017, 1022-24, 1027-28 (1992) ("The principle of specialty allows requesting states to try or punish defendants only for the offenses for which they were extradited____ Most United States extradition treaties currently in force, and all negotiated within the last one hundred years, incorporate the principle of specialty.”).
. The panel opinion relies upon Saccoccia, a case that involved the interpretation of an extradition treaty between the United States and Switzerland, to argue that federal extradition procedures do not give judicial officers the discretion to refuse the issuance of certificates of extraditability “on the ground that a treaty partner cannot assure the requested country that rights Under a treaty will be enforced or protected.” Op. at 115 (citing Saccoccia,
. The derivation of the English word is from the French, Old French and ultimately Latin equivalents. Specifically, the English "extradition” stems from a Latin union of the prefix ex- [out] and traditio [a delivery or surrender], the latter word flowing from traditus, the past participle of tradere [to deliver], which, in turn, stems from the conjunction of trans- [across] and dare [give]. See Funk & Wagnalls New Comprehensive International Dictionary of the English Language 450, 1330 (1978).
. The surrender of sovereignty and Chinese demands on Hong Kongese criminal defendants upon reversion all flow from treaty provisions. The United Kingdom’s sovereignty over Hong Kong stems from cessions of territory made in 1842 (pursuant to the Treaty of Nanking) and 1860 (pursuant to the Convention of Peking) and a ninety-nine year lease contained in the Convention of Beijing, June 9, 1898. See Shawn B. Jensen, International Agreements Between the United States and Hong Kong Under the United States-Hong Kong Policy Act, 7 Temp. Int'i & Comp. L.J. 167, 168-69 (1993); see also 1 Treaties and Agreements with and Concerning China, 1894-1919, 130, No. 1898/11 (1921) (cited in Oen,
. In reaching this conclusion, I am mindful of the United States-Hong Kong Policy Act of 1992 (commonly known as the McConnell Act), codified at 22 U.S.C. §§ 5701-5732. As commentators have explained, this congressional enactment "allows the United States to treat Hong Kong, where appropriate, as a separate entity from the PRC for purposes of U.S. domestic law.” Christopher K. Costa, Comment, One Country — Two Foreign Policies: United States Relations With Hong Kong After July 1, 1997, 38 Vill. L.Rev. 825, 855 (1993). Under the McConnell Act's provisions, "the areas in which separate treatment is appropriate are determined by the terms of the [Sino-British] Joint Declaration .... [which] grants Hong Kong a 'high degree of autonomy’ in nine areas: economic policy, trade, finance, monetary policy, shipping, communica
. The United States recognizes only one statutory exception to this principle. Specifically, 18 U.S.C. § 3181(b) permits "the surrender of persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries without regard to the existence of any treaty of extradition” upon the fulfillment of certain criteria. The instant case involves allegations of economic crimes and thus does not implicate this recently and narrowly drawn exception to the generally operative principle of American and public international law.
As the quotation from Laubenheimer indicates, it should be understood that this opinion draws a distinction between voluntary extradition and ex-traditability as of right or obligation. "[I]t is now clear that apart from a treaty a state has no duty to deliver up a person who has sought asylum within its boundaries. If the state wishes, it can afford him a refuge and protection. ... Of course, a state is under no duty to afford asylum to a fugitive; it may expel him from its territories if it choose, and without complaint from the individual who is expelled." United States ex rel. Donnelly v. Mulligan,
. Although the Convention on Succession presently lacks the requisite signatories for it to enter into force, and although the United States is not a signatory, the Convention is nonetheless viewed as an authoritative statement of the rule governing the succession of states under public international law. See Jensen, supra note 7, at 180-81 (citing Michael Akehurst, A Modem Introduction to International Law 159 (1987) (noting that while the Convention on Succession "is not yet in force ... many of its provisions codify the customary international law on the subject”)).
. See generally D.P. O’Connell, State Succession in Municipal Law and International Law (2 vols. 1967); D.P. O'Connell, The Law of State Succession (1956); Louis Henkin et al., International Law 286 (3d ed.1993); Restatement (Third) of Foreign Relations Law § 208, Reporters’ Note 1.
. See supra note 2.