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Ye Gon v. Holt

United States District Court, Fourth Circuit

January 17, 2014

ZHENLI YE GON, Petitioner,
v.
GERALD S. HOLT, U.S. Marshal for the Western District of Virginia, and FLOYD AYLOR, Warden of the Central Virginia Regional Jail, Respondents.

MEMORANDUM OPINION

James C. Turk, Senior United States District Judge

By Memorandum Opinion and Order entered November 25, 2013, this Court denied Petitioner Zhenli Ye Gon’s (“Ye Gon”) petition for habeas corpus under 28 U.S.C. § 2241. ECF No. 117, 118. On December 5, 2013, Ye Gon filed a Motion to Alter, Amend or Correct Final Judgment, ECF No. 120, in which he requests that this Court amend or clarify its prior Memorandum Opinion regarding several specific issues, addressed herein. See ECF No. 121. The Respondents (hereinafter “the Government”) has filed a response. ECF No. 129, and Petitioner has filed a reply, ECF No. 133. The parties have agreed to the submission of the motion without a hearing, see ECF No. 120 at 1, and therefore it is ripe for disposition. For the reasons set forth herein, the motion is GRANTED IN PART and DENIED IN PART.

Petitioner seeks clarification or amendment of the Court’s prior opinion and order as to three issues. First, he seeks a specific ruling on “whether Mexico’s separate criminal charge related to sulfuric acid may be prosecuted[, ]” or whether extradition is improper on this separate Mexican criminal charge because dual criminality is lacking. ECF No. 121 at 1-2 (citing his prior argument at ECF No. 63 at 48-50). Second, he requests a ruling on whether “the legal rule that declares that all ‘contradictory’ evidence must be excluded in extradition proceedings, expressly applied by U.S. Magistrate Judge Facciola, violates constitutional due process.” ECF No. 121 at 2 (citing his prior argument at ECF No. 63 at 93-94). Third, Petitioner requests an amendment of “its Order and Memorandum Opinion to clarify that only charges on which this Court has authorized extradition may be prosecuted by Mexican officials.” ECF No. 121 at 2-3. Finally, in a footnote, Petitioner also correctly notes that the docketed copy of the Opinion contains two page different versions of page 31 and that only the second of these should appear in the opinion.

Rule 60(a) allows a court to correct “a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.” Fed.R.Civ.P. 60(a). Clearly, the error concerning page 31 is a clerical mistake and the Government agrees that an Amended Order would be appropriate to correct this error.[1]Accordingly, the Court will docket an Amended Opinion consistent with its rulings herein and also incorporating its separate ruling on Petitioner’s Motion to Stay.

With regard to the more substantive issues raised by Petitioner, the Court addresses each of them in the order in which they were raised, after first addressing a procedural argument halfheartedly raised by the Government.

I. Whether Fed.R.Civ.P. 59 or 60 Are Available in Extradition Proceedings

In its response to Petitioner’s motion, the Government begins with the couched statement that “Petitioner’s invocation of Federal Rules of Civil Procedure 59(e) and 60 may be misplaced.” ECF No. 129 at 1 (emphasis added). It is unwilling to say “that the Rules of Civil Procedure can never be used in a habeas proceeding involving an extradition decision[, ]” but argues that “the broad use of either Rule 59 or Rule 60 to reopen the completed habeas proceeding should be avoided.” Id. at 2-3. The Court does not interpret Petitioner’s motion— which was narrowly drawn, brief, and mostly asked for clarification of the Court’s rulings—as any such “broad” attempt to “reopen the completed habeas proceeding.” In any event, both because the Court largely denies the relief sought by Petitioner and because the Government has not expressly argued that Rule 59(e) and Rule 60 are inapplicable here, the Court will assume, without deciding, that it has authority under both or either of those rules to address Petitioner’s motion.

II. Sulfuric Acid Drug Charge

Turning now to Petitioner’s specific requests, he first asks for a specific ruling on “whether Mexico’s separate criminal charge related to sulfuric acid may be prosecuted[, ]” or whether extradition is improper on this separate Mexican criminal charge because dual criminality is lacking. By way of additional background, one of the charges against Ye Gon encompassed a claim that he diverted sulfuric acid, which is treated as an “essential chemical product” under Mexican law, for the unlawful production of psychotropic substances. See ECF No. 50, Ex. 1 at 5 (including in the listed drug offenses “Diversion of essential chemical products (sulfuric Acid) to produce narcotics”). The extradition court made factual findings that “traces” of sulfuric acid had been found in the Toluca pharmaceutical plant, and other factual findings suggesting that sulfuric acid may have been used to produce illegal narcotics.

Petitioner contends that the possession or use of sulfuric acid to manufacture a controlled substance is not a violation of U.S. law, and thus that dual criminality is lacking as to the charge of diversion. He further points to the testimony of Dr. Lectka before the extradition court that sulfuric acid is a widely-available, common chemical substance found in virtually every operating chemical lab. ECF No. 63 at 49.

In is Answer to his habeas petition, the Government did not reference any specific arguments regarding the sulfuric acid, nor did it make any argument that sulfuric acid is a controlled substance or a listed chemical under U.S. law. See generally ECF No. 65 at 29-37 (arguing that dual criminality is met for the drug-related charges). Instead, it simply argued that dual criminality is satisfied for the diversion charge because the “same basic evil” is proscribed under United States law, as well, i.e., the use of precursor chemicals to create illegal substances. It continues: “That the United States chooses to regulate a slightly smaller subset of that category of chemicals goes more to the elements of the offense than to the criminal nature of the underlying conduct, and, thus, that difference should not defeat dual criminality.” Id. at 35 (citing Choe v. Torres, 525 F.3d 733, 738 (9th Cir. 2008)).

In its response to the Motion to Alter or Amend Judgment, the Government again makes no argument that the diversion of sulfuric acid specifically would be illegal in the United States. Instead, it argues that this Court sufficiently addressed the charge of diverting sulfuric acid by “adopting the factual findings of the extradition court as its own, ” which included facts supporting extradition on the sulfuric acid charge. ECF No. 129 at 4-6. The Government also suggests a revision to one sentence of this Court’s opinion regarding this issue, if the Court wishes to make its holding “abundantly clear.” ECF No. 129 at 6.

In the Court’s view, Defendant’s arguments that dual criminality on this specific charge is lacking may be stronger than its other dual criminality challenges. Nonetheless, the Court intended for its prior opinion to include a rejection of this argument. Thus, the Court agrees with the Government that the best course is simply for the Court to amend its prior opinion to make clear its intended ruling, which is that all of the drug charges satisfy the dual criminality requirement. Accordingly, the Court will amend page 30 of its prior opinion to include the following underlined language, so that it will now read: “the first ground given by the extradition court is ...


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