United States District Court, W.D. Virginia, Roanoke Division
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For Zhenli Ye Gon, Petitioner: Gregory Stuart Smith, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Greogry S. Smith, Washington, DC; John C. Lowe, John Christian Lowe, LEAD ATTORNEYS, JOHN LOWE, P.C., Bethesda, MD.
For Eric Holder, Jr., Attorney General of the United States, Respondent: John Philip Dominguez, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Sharon Burnham, LEAD ATTORNEY, UNITED STATES ATTORNEYS OFFICE, ROANOKE, VA; Valinda Jones, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE - INTERNATIONAL AFFAIRS, CRIMINAL DIVISION, WASHINGTON, DC.
For Hillary Rodham Clinton, United States Secretary of State, Sheriff Gerald S. Holt, U.S. Marshal for the Western District of Virginia, Edwin D. Sloane, United States Marshal for the District of Columbia, Respondents: John Philip Dominguez, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Valinda Jones, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE - INTERNATIONAL AFFAIRS, CRIMINAL DIVISION, WASHINGTON, DC.
For Floyd Aylor, Warden of the Central Virignia Regional Jail, Respondent: Alexander Francuzenko, LEAD ATTORNEY, Broderick Coleman Dunn, Lee Brinson Warren, Cook Craig & Francuzenko, Fairfax, VA; John Philip Dominguez, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
James C. Turk, Senior United States District Judge.
Petitioner, Zhenli Ye Gon (" Ye Gon" ), filed this petition for habeas corpus under 28 U.S.C. § 2241 challenging the decision to extradite him to Mexico to face criminal charges for drug-related offenses (including importation into Mexico of psychotropic substances, the transportation and manufacture of psychotropic substances, and possession of such substances for the purpose of producing narcotics), participation in organized crime, weapons offenses, and money laundering. The case has been fully briefed and is ripe for disposition. The Court has considered the legal memoranda filed and the applicable law. The court heard oral argument on the case on November 14, 2013, and also notes the record contains the transcript of the hearing held before Magistrate Judge Ballou on October 9, 2012. For the reasons stated herein, Respondents' Motion to Dismiss Certain Respondents is GRANTED and the petition is DENIED.
I. FACTUAL FINDINGS AND PROCEDURAL BACKGROUND
A. The Mexican Criminal Charges Against Ye Gon
The D.C. District Court (the " extradition court" ) gave a detailed and comprehensive discussion of the background of this case, including the factual underpinnings of the Mexican charges against Ye Gon, in its extradition decision. See In re Extradition of Ye Gon, 768 F.Supp.2d 69, 73-79 (D.D.C. 2011). The factual findings of the extradition court are entitled to significant deference on habeas review. Haxhiaj v. Hackman, 528 F.3d 282, 287 (4th Cir. 2008). The Court adopts the factual findings of the extradition court as its own, unless otherwise noted herein, and will discuss the facts as needed in the context of the legal arguments raised.
Ye Gon's lengthy legal path began when the United States government filed a criminal complaint on July 16, 2007 in the D.C.
District Court charging him with violating American drug laws relating to the importation of illegal drugs. Ye Gon was arrested in Maryland on July 24, 2007, and transferred to the custody of the Marshal in the District of Columbia. He remained in custody during the pendency of the criminal proceedings. The Government filed a superseding indictment on November 16, 2007 charging Ye Gon with a single count of conspiring to aid and abet the manufacture of 500 grams or more of methamphetamine, knowing that it was to be imported into the United States from Mexico, in violation of 21 U.S.C. § § 959, 960, and 963, and 18 U.S.C. § 2. See United States v. Ye Gon, Cr. No. 07-181, Superseding Indictment, Count One (D.D.C. November 6, 2008); ECF No. 42-2, Ex. F-63-65. The Government also sought the forfeiture of all money and property that constituted or derived from the illegal activity alleged in the single-count superseding indictment. Id. The criminal case remained pending until 2009 when the Government moved to dismiss all charges without prejudice. Eventually, with the Government's consent, the court dismissed all criminal charges with prejudice under Fed. R. Crim. P. 48(a).
Ye Gon was initially detained during his criminal case in the District of Columbia. While the case was still pending, he was moved to a detention facility in Orange, Virginia, which is located in the Western District of Virginia.
The extradition case began on September 15, 2008 with the Government filing a complaint in the D.C. District Court to extradite Ye Gon to Mexico (" Extradition Complaint" ) to face prosecution on drug charges, money laundering, and the illegal possession of guns. The extradition court conducted extensive proceedings, including a multi-day evidentiary hearing, before issuing a certificate of extraditability on February 7, 2011. Ye Gon, 768 F.Supp.2d 69.
Ye Gon filed his petition for a writ of habeas corpus in the Western District of Virginia on February 9, 2011, thereby preventing his referral to the Secretary of State for surrender to the Mexican government. See 18 U.S.C. § § 3184, 3186; see also ECF No. 102 at 12-13 & n.5 (explaining policy of the Department of State to suspend its review of an extradition order during the pendency of a habeas petition before the district court). Ye Gon also filed a duplicate petition in the D.C. District Court, which issued the extradition decision. This Court, concluding that both district courts had concurrent jurisdiction, transferred this case to the D.C. District Court, which concluded that it did not have jurisdiction over the habeas action and transferred the action back to this Court. The D.C. District Court held that because Ye Gon was detained in a facility in the Western District of Virginia, a habeas petition could only lie against Ye Gon's immediate custodian--in this case, the warden of the facility in Orange, Virginia. ECF Nos. 33, 34.
See Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004).
B. Respondents' Motion to Dismiss Certain Respondents
Initially, the Court addresses Respondents' pending motion to Dismiss Certain Federal Respondents, ECF No. 102, in which Respondents seek dismissal of all Respondents except Gerald S. Holt (U.S. Marshal for the Western District of Virginia) and Floyd Aylor (Warden of the Central Virginia Regional Jail where Ye Gon is currently being held). Specifically, they seek dismissal of U.S. Attorney General Eric Holder, Jr., U.S. Secretary of State Hillary Rodham Clinton, and U.S. Marshal
for the District of Columbia Edwin D. Sloane. Respondents contend that Holder, Clinton, and Sloane are not proper Respondents pursuant to Padilla, which held that the proper respondent in a federal habeas petition is generally " the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." 542 U.S. at 435. They also rely on a number of other cases applying Padilla.
Ye Gon does not object to dismissing Eric Holder, Jr., ECF No. 103 at 1 n.1, and Holder is hereby dismissed. As to the other respondents, Ye Gon offers no legal authority to keep U.S. Marshal Sloane and Secretary of State Clinton in this case. Instead, he seems to be concerned that the government may intentionally take some action in any short period in which his case is not technically " pending" --e.g., if his habeas petition is denied, during the time between the denial and his filing of a notice of appeal--or that it may transfer him to frustrate efforts to enforce this Court's orders. His first concern is easily resolved--this Court will stay his extradition from the entry of judgment in this case for a thirty-day period to allow him to file a notice of appeal and seek a longer stay from this Court or the appellate court for the pendency of that appeal. Indeed, at the November 14, 2013 hearing, counsel for Respondents agreed to such a thirty-day stay.
Ye Gon's concern over being transferred is unfounded in light of the " well-established" rule that " jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change." Sweat v. White, 829 F.2d 1121, 1987 WL 44445, at *1 (4th Cir. 1987) (unpublished) (citing Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985); see also United States v. Little, 392 F.3d 671, 680 (4th Cir. 2004) (jurisdiction is determined at the time the petition is filed). Thus, even if he were transferred after judgment in this case, the Fourth Circuit could still consider his appeal and enforce orders regarding his custody.
Cf. Sweat, supra.
In any event, even if his concerns had merit, Padilla and the other cases cited bye Respondents show that Sloane and the Secretary of State are not proper Respondents in this case. Accordingly,
the Court GRANTS the Motion to Dismiss Certain Federal Respondents, ECF No. 102, and DISMISS Attorney General Holder, U.S. Marshal Sloane, and U.S. Secretary of State Clinton from the case. The remaining Respondents are hereby collectively referred to as " the Government" in the Court's analysis below.
II. ANALYSIS AND CONCLUSIONS OF LAW
A. General Standard of Review
The extradition of a person found in the United States to Mexico is governed by the provisions of the federal extradition statutes, 18 U.S.C. § § 3181 et seq., and the Extradition Treaty between the United States and Mexico. $USee$O Extradition Treaty, U.S.-Mex., May 4, 1978, 31 U.S.T. 5059, T.I.A.S. No. 9656 (" Treaty" ), attached as ECF No. 41, Ex. C (the " Extradition Treaty" ). Every extradition request requires the court to find that: 1) the judicial officer has jurisdiction to conduct an extradition proceeding; 2) the court has jurisdiction over the fugitive; 3) the person before the court is the fugitive named in the request for extradition; 4) there is an extradition treaty in full force and effect; 5) the crimes for which surrender is requested are covered by that treaty; and 6) there is competent legal evidence to support the finding of probable cause as to each charge for which extradition is sought. In re Extradition of Rodriguez Ortiz, 444 F.Supp.2d 876, 881-82 (N.D.Ill. 2006) (citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970(1925),
Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981), and In re Extradition of Fulgencio Garcia, 188 F.Supp.2d 921, 925 (N.D.Ill. 2002)). Upon finding sufficient evidence to support extraditing the fugitive, the court then certifies him as extraditable to the Secretary of State, who ultimately decides whether to surrender him to the requesting country. 18 U.S.C. § § 3184, 3186, 3196.
There is no direct appeal from a decision granting a certificate of extradition. Rather, a person certified for extradition files a petition for habeas corpus under 28 U.S.C. § 2241 challenging his detention pending his extradition. A habeas court sitting in review of an extradition decision has a role which is " quite narrow, [and is] limited to consideration of whether the extradition court properly exercised jurisdiction, whether the crime upon which extradition is sought qualifies under the relevant treaty as an extraditable offense, and whether the record contains sufficient evidence to support the extradition court's probable cause determination." Haxhiaj, 528 F.3d 282, 286 (4th Cir. 2008) (citations omitted). Furthermore, a habeas court may consider certain limited constitutional claims. See Plaster v. United States, 720 F.2d 340, 348-49 (4th Cir. 1983). In Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007), for example, the Fourth Circuit expressly recognized that a habeas court reviewing an extradition order " unquestionably" has jurisdiction " to adjudicate claims that governmental conduct is in violation of the Constitution." Id. at 670. Any constitutional claim must relate to alleged constitutional violations by the United States government. That is, the habeas court cannot consider assertions that " the other country's judicial procedures do not comport with the requirements of our constitution."
Plaster, 720 F.2d at 349 n.9 (citing Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448(1901)).
The habeas court gives a highly deferential review to the probable cause determination in the extradition court:
In reviewing the extradition court's finding of probable cause under § 3184, a
federal habeas court applies a standard of review that " is at least as deferential, if not more so, than that applied to a magistrate judge's decision to issue a search warrant."
Ordinola [v. Hackman, 478 F.3d 588, 609-10 (4th Cir. 2007)] (Traxler, J., concurring). " Just as the magistrate judge's underlying determination is not a mini-trial on the guilt or innocence of the fugitive, . . . habeas review should not duplicate the extradition hearing." Id. at 610. Accordingly, our limited function in performing habeas review of the decision to issue a certificate of extradition is to determine whether there is " any evidence" in the record supporting the probable cause finding of the magistrate judge.
Haxhiaj, 528 F.3d at 287 (some citations omitted) (emphasis in original).
Legal conclusions by the extradition court, however, are reviewed de novo by a habeas court.
See, e.g., Ross v. U.S. Marshal for E.D. of Okla., 168 F.3d 1190, 1195 (10th Cir. 1999) (issue of whether dual criminality requirement is satisfied is a legal question reviewed de novo ); United States v. Merit, 962 F.2d 917, 919 (9th Cir. 1992) (" We review de novo questions regarding interpretation of, and jurisdiction under, the [extradition] treaty, including compliance with dual criminality and specialty requirements." ) Accordingly, this Court reviews the factual findings only for clear error but reviews legal conclusions de novo.
See Ordinola, 478 F.3d at 610 (Traxler, J., concurring) (" We review the extradition court's factual findings for clear error and its conclusions of law de novo. '" ) (citation omitted).
B. Ye Gon's Claims
Ye Gon asserts five claims for relief in his Corrected Amended Petition. Separately, Ye Gon has asserted two additional claims, 6A and 6B, which are also part of his Petition. The Court placed Claim 6B under seal with the consent of all of the parties. Each of these claims will be considered in order.
1. Claim 1: The Extradition Court Properly Exercised Jurisdiction Over Ye Gon.
In Claim 1, Ye Gon challenges the jurisdiction of the extradition court contending that (a) that the court did not have personal jurisdiction to bring an extradition proceeding in the District of Columbia, (b) a magistrate judge has no constitutional authority to conduct extradition proceedings, and (c) the federal extradition statute, 18 U.S.C. § 3184, is unconstitutional. Each argument fails.
a. The extradition court had personal jurisdiction over Ye Gon.
The jurisdiction of a district court to hear extradition proceedings is set forth in 18 U.S.C. § 3184, which states in relevant part:
Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b), any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181(b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate judge, to the end that the evidence of
criminality may be heard and considered.
Whether the extradition court had personal jurisdiction over Ye Gon to hear the extradition complaint turns on whether he was " found within" the District of Columbia when he was arrested on the extradition complaint. Ye Gon was detained in a D.C. prison facility and undoubtedly in D.C. when the Government filed its extradition complaint. Ye Gon contends, however, that he was never " found" in D.C. because he came there in 2007 against his will, and only after his arrest in Maryland on the federal criminal charges. Ye Gon asserts that he did not flee to or establish D.C. as his place of asylum, and thus that he was not " found" there for purposes of extradition jurisdiction. The extradition court found that it properly had personal jurisdiction over Ye Gon because he was being lawfully held in D.C. such that he was " found" there when the Government filed its extradition complaint. The court reasoned that interpreting § 3184 to extend personal jurisdiction over persons lawfully detained in a district comports with both the " natural and traditional meaning of the word 'found[,]'" and with traditional principles of territorial jurisdiction. See Ye Gon, 768 F.Supp.2d at 79-80 (citing Burnham v. S.Ct. of Cal., 495 U.S. 604, 610, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) and Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565 (1877)).
Both parties rely on Pettit v. Walshe, 194 U.S. 205, 24 S.Ct. 657, 48 L.Ed. 938 (1904), to support their respective positions. In Pettit, a New York judicial officer (a commissioner) issued an arrest warrant on an extradition complaint for Walshe, a British national, who had been convicted in Great Britain of murder and other crimes, but had escaped prison and fled to the United States. Id. at 214-15. The U.S. Marshal arrested Walshe in Indiana intending to return him directly to New York to answer the extradition complaint. Walshe filed a habeas petition in Indiana challenging his removal to New York. The Indiana circuit court held that under the treaty between the United States and Great Britain and the extradition statute (the predecessor to § 3184), only an Indiana court, where Walshe was found and arrested, had jurisdiction to consider the evidence of criminality and rule on the extradition request. The Supreme Court affirmed:
By that proviso it is made the duty of a marshal arresting a person charged with any crime or offense to take him before the nearest circuit court commissioner or the nearest judicial officer, having jurisdiction, for a hearing, commitment, or taking bail for trial in cases of extradition. The commissioner or judicial officer here referred to is necessarily one acting as such within the state in which the accused was arrested and found. So that, assuming that it was competent for the marshal for the district of Indiana to execute Commissioner Shields' warrant within his district, as we think it was, his duty was to take the accused before the nearest magistrate in that district, who was authorized by the treaties and by the above acts of Congress to hear and consider the evidence of criminality. If such magistrate found that the evidence sustained the charge, then, under § 5270 of the Revised Statutes, it would be his duty to issue his warrant for the commitment of the accused to the proper jail, there to remain until he was surrendered under the direction of the national government, in accordance with the treaty.
Id. at 219-20. In concluding that the New York tribunal lacked jurisdiction to order Walshe's extradition to Britain, the Court noted that extradition
proceedings may be held " where the accused was found and arrested." Id. at 218. The commissioner or judicial officer authorized to act on an extradition request is " necessarily one acting . . . within the state in which the accused was arrested and found." Id. at 219.
Ye Gon argues that Pettit requires holding extradition hearings only in the place where the extraditee is arrested, or what he calls the place of asylum. See ECF 63 at 23 (citing to Pettit and Wright v. Henkel, 190 U.S. 40, 58, 23 S.Ct. 781, 47 L.Ed. 948 (1903) as describing the place found as " the asylum to which he had fled" ). Ye Gon thus contends that the Government could bring extradition charges in Maryland only--where he was initially arrested on the U.S. criminal charges--and that he was not " found" in the District of Columbia, where he was brought by authorities after his arrest on the criminal charges.
The United States lawfully arrested Ye Gon and transferred him to D.C. to face the criminal charges pending at that time. Ye Gon was lawfully detained in D.C. on the federal criminal charges in D.C. when the Government filed its extradition complaint. Section 3184 vests the court with the jurisdiction to hear an extradition proceeding " upon complaint made, under oath, charging any person found within his jurisdiction, with having committed [an extraditable offense in the requesting country]." Here, Ye Gon was " found" in the District of Columbia when the Government filed the extradition complaint, thereby vesting the D.C. District Court with the jurisdiction to hear the proceedings.
Ye Gon suggests, without factual support, the Government acted in bad faith by bringing the criminal charges in D.C. as a means to seek a favorable forum in the extradition case, especially on the dual criminality issue. The Court refuses to embrace the pure conjecture required to accept Ye Gon's argument that the Government tactically planned to bring the criminal charges in D.C. so that it would have a favorable forum in an extradition proceeding. Ye Gon's theory seems particularly improbable given that the Government filed the extradition complaint a year after it initiated the criminal case against Ye Gon. Instead, applying Pettit, the Court concludes that the proper jurisdiction for Ye Gon's extradition proceeding, and where he was " found" under § 3184, is where he was physically present when arrested on the extradition complaint.
See also Atuar v. United States, 156 F.Appx. 555, 559 n.5 (4th Cir. 2005) (unpublished) (agreeing with the parties' stipulation that West Virginia had ...