Zhenli Gon v. Gerald Holt

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6102
ZHENLI YE GON,
Petitioner – Appellant,
v.
GERALD S. HOLT, U.S. Marshal for the Western District of
Virginia; FLOYD G. AYLOR, Warden of the Central Virginia
Regional Jail,
Respondents – Appellees,
and
ERIC H. HOLDER, JR., Attorney General of the United States;
HILLARY RODHAM CLINTON, United States Secretary of State;
EDWIN D. SLOANE, United States Marshal for the District of
Columbia,
Respondents.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:11-cv-00575-JCT)
Argued: October 29, 2014 Decided: December 16, 2014
Before SHEDD and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Judge Shedd wrote the opinion,
in which Judge Floyd and Senior Judge Davis joined.
ARGUED: Gregory Stuart Smith, GREGORY S. SMITH, ATTORNEY AT LAW,
Washington, D.C., for Appellant. John Alexander Romano, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: John C. Lowe, JOHN LOWE, P.C., Bethesda, Maryland, for
Appellant. Leslie R. Caldwell, Assistant Attorney General,
David A. O'Neil, Acting Deputy Assistant Attorney General,
Valinda Jones, Senior Trial Attorney, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Timothy J.
Heaphy, United States Attorney, Anthony Giorno, First Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellees.
2
SHEDD, Circuit Judge:
In 2008, Mexico sent a request to the United States to
extradite Zhenli Ye Gon, a Mexican citizen. Ye Gon’s extradition
hearing was held before a magistrate judge in the District of
Columbia, who determined that Ye Gon was extraditable under the
Extradition Treaty Between the United States of America and the
United Mexican States 1 (“Treaty”). Ye Gon then filed a habeas
corpus petition challenging this determination in the Western
District of Virginia, and the district court denied that
petition. Ye Gon now appeals the denial, claiming that the
magistrate judge lacked jurisdiction to conduct the extradition
proceeding and that the Treaty bars his extradition. We affirm.
I.
We begin by reviewing the mechanics of the extradition
process generally, as well as the specific requirements imposed
by this Treaty. The process of extraditing a non-United States
citizen to a foreign nation is conducted largely by the United
States Department of State, which receives any requests for
extradition from foreign nations and determines whether those
requests are governed by a treaty. Mironescu v. Costner, 480
F.3d 664, 665 (4th Cir. 2007). If the State Department
1
U.S.-Mex., May 4, 1978, 31 U.S.T. 5059.
3
determines that there is an applicable treaty, it refers the
matter to the Justice Department, which in turn reviews the
request under the applicable treaty. If the Justice Department
deems the request valid, it then refers the matter to the United
States Attorney for the district in which the fugitive is
believed to be located. Id.The United States Attorney then files a complaint before a
federal justice, judge, or magistrate, seeking a warrant for the
fugitive’s arrest and a certification that he may be extradited.
18 U.S.C. § 3184. Because the extradition statute provides that
this judge may “charg[e] any person found within his
jurisdiction” with having committed a foreign crime, id., only
judicial officers with jurisdiction over the place where the
fugitive is “found” may conduct these extradition proceedings.
See Pettit v. Walshe, 194 U.S. 205, 218-19 (1904).
Once the extradition judge has issued the extradition
warrant and the fugitive has been apprehended, he is brought
before that judge for an extradition hearing. 18 U.S.C. § 3184.
The extradition hearing is not a full trial; rather, its purpose
is to determine (1) whether there is probable cause to believe
that there has been a violation of the laws of the foreign
country requesting extradition, (2) whether such conduct would
have been criminal if committed in the United States, and (3)
whether the fugitive is the person sought by the foreign country
4
for violating its laws. Peroff v. Hylton, 542 F.2d 1247, 1249
(4th Cir. 1976). If the extradition judge determines that the
fugitive is extraditable, he must send his certification of
extraditability to the Secretary of State, who has the final
executive authority to determine whether to extradite the
fugitive. 18 U.S.C. §§ 3184, 3186; Plaster v. United States, 720
F.2d 340, 354 (4th Cir. 1983) (“Within the parameters
established by the Constitution, the ultimate decision to
extradite is, as has frequently been noted, reserved to the
Executive as among its powers to conduct foreign affairs.”).
The extradition judge who conducts the hearing does not do
so in his capacity as a judicial officer of the United States.
In re Kaine, 55 U.S. 103, 120 (1852). The issuance of a
certification of extraditability is therefore not a final order
within the meaning of 28 U.S.C. § 1291. As a result, and because
§ 3184 does not provide for direct review of extradition
decisions, a fugitive’s only avenue to challenge the decision is
to file a petition for habeas corpus review under 28 U.S.C. §
2241. See Haxhiaj v. Hackman, 528 F.3d 282, 285-86 (4th Cir.
2008); Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir. 2007).
Habeas corpus review of an extradition case is limited to
determining whether the extradition judge had jurisdiction,
whether the charged offense is an extraditable offense under the
applicable treaty, and whether there is any evidence warranting
5
the conclusion that probable cause exists for the violation of
the foreign country’s laws. Ordinola, 478 F.3d at 598. It is the
State Department’s practice to suspend all action on an
extradition request once it becomes aware that the fugitive has
filed a petition for habeas corpus review. Department of State,
7 Foreign Affairs Manual 1634.3(f), “Judicial Review of a
Finding of Extraditability” (2005).
The Treaty in this case obligates Mexico and the United
States to extradite persons whom the authorities of the country
requesting extradition have charged with committing an offense
within that country’s territory. Treaty art. 1. The country
requesting the return of such a person is termed the “requesting
country,” and the country asked to return such a person is
called the “requested country.” This mutual obligation to
extradite is, however, subject to certain limitations. Those
relevant to this case are outlined below.
Article 6 of the Treaty, entitled “Non bis in idem,” 2 is
analogous to our constitutional prohibition on double jeopardy.
In essence, it prevents a fugitive from being tried for the same
offense in two different countries. The provision states that
the requested country shall not extradite a fugitive who “has
2
In English, this phrase means “not twice for the same
thing.” Black’s Law Dictionary 1150 (9th ed. 2009).
6
been prosecuted or has been tried and convicted or acquitted” in
that country, if that prosecution or trial was “for the offense
for which extradition is requested.”
The Treaty also restricts the offenses for which a fugitive
may be extradited to those that are criminal in both the United
States and Mexico. This limitation is known as “dual
criminality,” and it “ensures that the charged conduct is
considered criminal and punishable as a felony in both the
country requesting the suspect and the country surrendering the
suspect.” Ordinola, 478 F.3d at 594 n.7. The Treaty’s version of
the dual criminality requirement is set forth in Article 2,
which states that “[e]xtradition shall take place...for wilful
acts which...are punishable in accordance with the laws of both
Contracting Parties.”
Finally, the Treaty codifies a customary principle of
international relations in Article 17, titled “Rule of
Specialty.” The rule of specialty is premised on a “norm of
international comity.” United States v. Day, 700 F.3d 713, 722
(4th Cir. 2012). The Supreme Court has recognized for more than
a century that it is generally accepted that extradited persons,
once returned to the requesting country, may be tried only for
those offenses for which extradition was granted by the
requested country. See United States v. Rauscher, 119 U.S. 407,
416-17 (1886). The Treaty makes this rule explicit, stating that
7
“[a] person extradited under the present Treaty shall not be
detained, tried or punished in the territory of the requesting
Party for an offense other than that for which extradition has
been granted.” Treaty art. 17.
II.
Having described the legal landscape in which this appeal
arises, we now turn to the facts. Zhenli Ye Gon, a citizen of
Mexico, owned and operated pharmaceutical businesses in and
around Mexico City, including Unimed Pharm Chem. Beginning in
2003, Unimed legally imported psychotropic substances, including
pseudoephedrine, into Mexico, until the Mexican authorities
revoked Unimed’s authorization to import or manufacture such
substances in July 2005. Despite this loss of permission, Ye Gon
continued to import these substances, and in October 2005 began
construction of a new Unimed pseudoephedrine manufacturing plant
in Toluca, Mexico. Once the plant was operational, it
manufactured over 600 kilograms a day of a white crystalline
powder, which was later tested and found to contain ephedrine,
pseudoephedrine, methamphetamine acetate, and other psychotropic
substances under Mexican law.
Believing that he was engaged in the large-scale
manufacture and distribution of methamphetamine, a Mexican court
issued a warrant for Ye Gon’s arrest in June 2007. The next
8
month, the United States government filed a criminal complaint
against Ye Gon in the United States District Court for the
District of Columbia, charging him with illegally importing
drugs into the United States. He was arrested in Maryland on
this charge in July 2007 and was transferred to the custody of
the United States Marshal in the District of Columbia. The
government filed a superseding indictment against Ye Gon in
November 2007, charging him with 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, in violation
of 21 U.S.C. §§ 959, 960, and 963, and 18 U.S.C. § 2.
In June 2008, pursuant to the Treaty, Mexico requested Ye
Gon’s extradition from the United States to face prosecution on
charges of organized crime; unlawful firearm possession; money
laundering; diversion of essential chemicals; and drug
importation, transportation, manufacturing and possession. The
government filed an extradition complaint in the District Court
for the District of Columbia in September 2008. In June 2009,
approximately four months before Ye Gon’s criminal trial was
scheduled to begin, the government moved to dismiss the charges
against Ye Gon to allow for his extradition and trial in Mexico.
The government’s stated reasons for requesting this dismissal
included Mexico’s significant and separate interests in
prosecuting the case, the fact that the conduct charged occurred
9
largely within Mexico, and the fact that much of the evidence
and witnesses that the government would rely on in prosecuting
the case were located in Mexico. The government also stated that
it had concerns about the strength of its evidence in light of
recent recantations by key witnesses. In August 2009, with the
government’s consent, the district court dismissed the criminal
charge against Ye Gon with prejudice.
Ye Gon’s extradition hearing was then held before a federal
magistrate judge in the District of Columbia beginning in
September 2008. After extensive proceedings, including a multi-
day evidentiary hearing, the magistrate judge issued a
certification of extraditability. In re Zhenley Ye Gon, 768 F.
Supp. 2d 69 (D.D.C. 2011). Two days later, Ye Gon filed a
petition for a writ of habeas corpus in the Western District of
Virginia, where he was then being held. Ultimately, the district
court denied the petition. Zhenli Ye Gon v. Holder, 985 F. Supp.
2d 733 (W.D. Va. 2013).
In this appeal from the denial of his habeas petition, Ye
Gon raises four claims: (1) the D.C. magistrate judge did not
have jurisdiction to issue his certification of extraditability
because Ye Gon was not “found within” the District of Columbia
for purposes of 18 U.S.C. § 3184; (2) the Non Bis In Idem clause
of the Treaty prevents his extradition on the Mexican charges
because his United States conspiracy charge has been dismissed
10
with prejudice; (3) the Treaty’s dual criminality requirement
prevents his extradition because the Mexican crimes with which
he is charged are not also criminal in the United States; and
(4) the Treaty’s rule of specialty provision requires this court
to limit the charges on which he can be tried in Mexico to those
authorized by the extradition magistrate. For the reasons that
follow, we find that none of these claims merits relief and
affirm the district court’s denial of the habeas petition.
III.
Ye Gon first claims that the magistrate judge who conducted
his extradition proceedings lacked jurisdiction over him under
18 U.S.C. § 3184. He contends that he was not “found within
[the] jurisdiction” of the D.C. magistrate because he was
arrested on criminal charges in Maryland and was then
transported to the District of Columbia against his will.
Although we have reviewed many extradition proceedings
conducted under Section 3184, we have never elaborated on its
jurisdictional requirements. Only one of our decisions, Atuar v.
United States, 156 Fed. Appx. 555 (4th Cir. 2005) (unpublished),
has mentioned even in passing the issue of jurisdiction under §
3184. There, we agreed with the parties’ stipulation that the
extradition judge, a West Virginia magistrate, had jurisdiction
to conduct a § 3184 hearing because “at the time the petition
11
was formally filed against [the suspect], he was incarcerated in
... West Virginia.” Id. at 559 n.5.
The most logical reading of the text of § 3184 supports the
view that the fugitive’s location at the time extradition
proceedings are brought against him determines where he is
“found.” The statute states that the extradition judge may
charge a person “found within his jurisdiction” with having
committed a crime in a foreign country in violation of an
extradition treaty. The jurisdictional requirement is thus
textually linked to the extradition charge. The most natural
reading is that the two are temporally linked as well – that is,
jurisdiction must be satisfied at the time that the fugitive is
charged with having committed an extraditable offense. Section
3184, therefore, apparently requires that a fugitive’s
extradition hearing be held before a judge with jurisdiction
over the place where he was found as a fugitive.
Binding authority on this point is limited to Pettit v.
Walshe, 194 U.S. 205 (1904). In Pettit, an immigration
commissioner in New York issued an extradition warrant for
Walshe, a British citizen, and ordered Walshe to be brought to
New York to appear before him. Walshe was arrested in Indiana
and transported to New York for his extradition hearing. The
Supreme Court held, under the terms of the treaty between the
United States and Great Britain and a predecessor of § 3184,
12
that the commissioner could not order Walshe to appear in New
York; rather, the extradition hearing could properly have been
held only in Indiana because “the evidence of the criminality of
the charge must be heard and considered by some judge or
magistrate ... sitting in the state where the accused was found
and arrested.” Id. at 218-19.
The arrest at issue in Pettit was made pursuant to an
extradition warrant. Here, by contrast, the warrant upon which
Ye Gon was arrested in Maryland was for a United States criminal
charge. No extradition complaint was filed against Ye Gon until
September 2008, when Ye Gon was already in federal custody in
the District of Columbia. We read Pettit, consistent with our
reading of the statute’s text and with our unpublished decision
in Atuar, to establish only that a defendant must be tried in
the same location where his extradition warrant is executed – in
Ye Gon’s case, in the District of Columbia. Pettit thus provides
no support for Ye Gon’s argument that the location of his arrest
on the drug conspiracy charge is relevant under Section 3184.
Ye Gon argues that the fact that he was moved from Maryland
to the District of Columbia against his will precludes the D.C.
magistrate from exercising jurisdiction over him. We find no
merit in this argument. Under the Ker-Frisbie doctrine, a
defendant’s involuntary presence in a court is not a bar to
personal jurisdiction. See Frisbie v. Collins, 342 U.S. 519, 511
13
(1952) (“This Court has never departed from the rule announced
in Ker v. Illinois, 119 U.S. 436, that the power of a court to
try a person for crime is not impaired by the fact that he had
been brought within the court’s jurisdiction by reason of a
‘forcible abduction.’”); United States v. Shibin, 722 F.3d 233,
243 (4th Cir. 2013) (holding, in an extradition case, that
“[u]nder the Ker-Frisbie doctrine, the manner in which the
defendant is captured and brought to court is generally
irrelevant to the court’s personal jurisdiction over him.”). 3
Further, when construing other jurisdiction and venue
statutes concerning foreign nationals that, like § 3184, require
a defendant to be “found in” a place, we have held that this
“found in” requirement is satisfied even when the defendant is
brought there against his will. For example, in Shibin, we held
that a defendant was “found” in the United States and could be
tried here on piracy charges, despite being forcibly removed to
the United States from Somalia. 722 F.3d at 244. Likewise, in
3
Ye Gon also argues that he cannot be tried in the District
of Columbia because Maryland is, in the words of Wright v.
Henkel, 190 U.S. 40, 58 (1903), “the place where [he] was found
and, in legal effect, the asylum to which he had fled.” His
reliance on this language is misleading because it was written
to explain why state laws, in addition to federal laws, should
be examined for purposes of analyzing dual criminality. Ye Gon’s
use of this phrase to support his personal jurisdiction argument
thus takes it out of context and ignores the case’s holding,
which was that Wright could be detained pending his extradition.
14
United States v. Uribe-Rios, 558 F.3d 347, 356-57 (4th Cir.
2009), we held that a defendant facing deportation was “found
in” and could be tried in the Western District of North
Carolina, although he was transferred there after being first
detained by immigration authorities in the Eastern District of
North Carolina. Accordingly, the D.C. magistrate judge properly
exercised personal jurisdiction over Ye Gon under 18 U.S.C. §
3184.
IV.
Ye Gon next argues that the Treaty’s Non Bis In Idem
provision in Article 6 bars his extradition. As noted, Ye Gon
was charged in the United States with criminal conspiracy to aid
and abet the manufacture of methamphetamine. He contends that,
because this charge was later dismissed with prejudice, he has
been prosecuted and acquitted of it. As a result, he argues, he
cannot be prosecuted again on the Mexican charges because each
Mexican charge arose out of the same acts or transactions
underlying the American conspiracy charge.
To succeed on this argument, Ye Gon must show both that he
“has been prosecuted or has been tried and convicted” of the
American offense, and that the American offense is “the offense
for which extradition is requested” by Mexico. We need not
decide whether the D.C. district court’s dismissal of Ye Gon’s
15
conspiracy charge with prejudice satisfies the requirement that
he “has been prosecuted or has been tried and convicted or
acquitted” by the United States, because we find that the
American conspiracy proceedings were not “for the offense[s]”
for which Mexico has requested extradition.
We have never established a framework for examining, under
a Non Bis In Idem clause, whether an American offense is “the
offense” for which the requesting country seeks extradition. The
parties now offer competing frameworks. The government urges us
to adopt the familiar test from Blockburger v. United States,
284 U.S. 299 (1932), under which we would ask whether the
American and Mexican offenses each contain an element that the
other does not. Ye Gon, however, urges us to follow the decision
in Sindona v. Grant, 619 F.2d 167, 178 (2d Cir. 1980), under
which we would compare the conduct underlying the American and
Mexican offenses to determine whether both arise out of a
“single criminal act, occurrence, episode or transaction”
(internal citation omitted).
We begin our analysis with the language of the Treaty.
Article 6 directs the parties to examine “the offense for which
extradition is requested,” while the dual criminality provision
in Article 2 prevents extradition for crimes unless they are
“wilful acts ... punishable in accordance with the laws of both
Contracting Parties” (emphasis added). The use of the word
16
“offense” in this context and “acts” in another signifies that
the “offenses” to be compared during the Non Bis In Idem inquiry
must be something other than the acts underlying those offenses.
The most natural reading of “offense,” as distinct from “acts,”
is that “offense” refers to the definition of the crime itself.
This weighs heavily in favor of the government’s elements-based
Blockburger approach.
Moreover, the State Department has interpreted similar
“offense”-based Non Bis In Idem provisions in other treaties to
call for a Blockburger analysis. Many of these treaties were
signed within a few years of 1978, when the Treaty at issue in
this case was signed. See, e.g., Extradition Treaty with the
Philippines, S. Exec. Rep. No. 104-29, at 10-11 (1996) (Non Bis
In Idem clause applies only where the crimes in both countries
are “exactly the same”; “[i]t is not enough that the same facts
were involved”); Extradition Treaty with Thailand, S. Exec. Rep.
No. 98-29, at 4 (1984) (“offense”-based Non Bis In Idem clause
was drafted narrowly to ensure that the person extradited can be
tried in two countries for two different offenses, even when
“the acts are the same”); Extradition Treaty with Costa Rica, S.
Exec. Rep. No. 98-30, at 5 (1984) (prosecution in a second
country would be permissible for “different offenses ... arising
out of the same basic transaction”). See also Elcock v. United
States, 80 F. Supp. 2d 70, 83 (E.D.N.Y. 2000) (“[T]he Department
17
of State has clearly expressed its view that “offense”—based
double jeopardy provisions ... apply only where the elements of
the crimes charged in the domestic prosecution and the
extradition request are the same, regardless of whether the
underlying facts are the same.”) Such State Department treaty
interpretations are entitled to “substantial deference” from the
courts. United States v. Al-Hamdi, 356 F.3d 564, 571 (4th Cir.
2004).
Turning now to Ye Gon’s proposed framework, we do not find
persuasive the reasoning of the Second Circuit in adopting the
“same conduct” test. In Sindona, the State Department initiated
an extradition proceeding against an Italian businessman for the
Italian crime of fraudulent bankruptcy. Before he was
extradited, however, he was indicted in the United States on
charges of fraudulent conduct that led to a bank collapse. The
Second Circuit examined whether the American charges precluded
Sindona’s extradition under the treaty between the United States
and Italy, which prevented extradition if the fugitive had been
tried or proceeded against in the United States “for the offense
for which his extradition is requested,” 619 F.2d at 176,
language almost identical to the Non Bis In Idem clause at issue
in this case.
In analyzing whether the Italian and American crimes
qualified as the same “offense” under this clause, the Second
18
Circuit rejected the Blockburger test, reasoning that foreign
countries could not be expected to be aware of its existence.
Instead, the court held that the construction of the Non Bis In
Idem clause should be “at least as broad” as two other
interpretations of double jeopardy. The first of these was
Justice Brennan’s concurring opinion in Ashe v. Swenson, 397
U.S. 436 (1970), in which he wrote that any charges arising out
of a “single criminal act, occurrence, episode or transaction”
on which a criminal trial had already been held should be barred
by the Double Jeopardy Clause. Id. at 453-54. The second was the
Justice Department’s internal Petite policy, named for Petite v.
United States, 361 U.S. 529 (1960), which stated that federal
prosecutors should not try defendants “for substantially the
same act or acts” that have already been tried in a state
prosecution. Sindona, 619 F.2d at 178-79 (internal citations
omitted). Thus, the Second Circuit appeared to adopt a “same
conduct” test for determining whether two countries’ offenses
are equivalent under a Non Bis In Idem clause.
In the years since Sindona was decided, one of the two
foundations for this “same conduct” test has been eroded by
later Supreme Court rulings. In United States v. Dixon, 509 U.S.
688, 704 (1993), the Court struck down the “same conduct” rule
for double jeopardy analysis as “wholly inconsistent with
earlier Supreme Court precedent and with the clear common-law
19
understanding of double jeopardy.” In doing so, the Court
definitively rejected Justice Brennan’s interpretation of the
Double Jeopardy Clause as expressed in his concurring opinion in
Ashe v. Swenson. Sindona’s other foundation, an internal Justice
Department policy, self-evidently carries no legal authority.
Cf. United States v. Jackson, 327 F.3d 273, 295 (4th Cir. 2003)
(“[I]t is well established that the Petite policy and other
internal prosecutorial protocols do not vest defendants with any
personal rights.”); United States v. Musgrove, 581 F.2d 406, 407
(4th Cir. 1978) (“[A] defendant has no right to have an
otherwise valid conviction vacated because government attorneys
fail to comply with departmental policy on dual prosecutions.”).
In addition to its shaky legal foundations, we believe that
the Sindona “same conduct” rule proves inadequate upon
application, as illustrated in the Sindona decision itself.
Immediately after it purported to adopt the “same conduct” test,
the Second Circuit concluded that the Italian charge of
fraudulent bankruptcy and the American charges of fraudulent
conduct did not in fact constitute the same “offense” under the
treaty’s Non Bis In Idem clause. The court reasoned that,
although the Italian crime may have been the “but-for cause” of
the American crimes, the harms to the two countries were
distinct, and the crimes charged by the American prosecutors
were “on the periphery” of the Italian crimes. Thus, after
20
endorsing the “same conduct” test in principle, the court then
considered additional factors during its application,
effectively acknowledging that the “same conduct” test did not
satisfactorily resolve the Non Bis In Idem inquiry.
For these reasons, we decline to follow Sindona’s “same
conduct” framework, and adopt the Blockburger “same elements”
test as the proper mode of analysis in this context. Ye Gon does
not contest that under a Blockburger analysis, the Mexican
offenses of organized crime, unlawful firearm possession, money
laundering, diversion of essential chemicals, and drug
importation, transportation, manufacturing and possession do not
constitute the same “offense” as the American charge of
conspiracy to aid and abet the manufacture of methamphetamine.
We therefore hold that Article 6 of the Treaty does not bar Ye
Gon’s extradition.
V.
Ye Gon next argues that the offenses for which Mexico
requests his extradition do not also constitute criminal acts in
the United States, and therefore the Treaty’s dual criminality
provision in Article 2 bars his extradition. In Collins v.
Loisel, 259 U.S. 309, 312 (1922), the Supreme Court held that
dual criminality is satisfied “if the particular act charged is
criminal in both jurisdictions,” even if the name of the offense
21
or the scope of the liability was different in the two
countries. This language has been broadly accepted as
establishing that dual criminality requires only that the
offenses in the two countries punish the same basic evil; it
does not require that the offenses contain identical elements.
See, e.g., Clarey v. Gregg, 138 F.3d 764, 766 (9th Cir. 1998);
Peters v. Egnor, 888 F.2d 713, 719 (10th Cir. 1989); Shapiro v.
Ferrandina, 478 F.2d 894, 907-08 (2d Cir. 1973).
Ye Gon concedes that to satisfy dual criminality under
Collins, the elements of the two countries’ crimes need not be
exactly the same. Rather, he argues that the acts alleged in the
Mexican charging documents must be sufficient, standing alone,
to support United States criminal charges. He rests this
argument on language from Collins stating that the “particular
act charged” must be criminal in both jurisdictions. 259 U.S. at
312 (emphasis added).
We disagree with Ye Gon’s narrow reading of Collins. In
our view, it is permissible to examine conduct outside that
alleged in the requesting country’s charging documents in the
course of conducting a dual criminality analysis. The elements
of Mexican crimes differ from the elements of American crimes,
and Mexico thus has no reason to plead in its own charging
documents all facts necessary to make out an American criminal
charge. Ye Gon’s reading therefore essentially reduces to the
22
“same elements test,” which he admits was rejected in Collins.
The language that Ye Gon cites from Collins is not to the
contrary, because Collins did not address the question of the
scope of the conduct that may be considered in conducting a dual
criminality analysis.
At least two other circuits have implicitly agreed with our
broader framework by actually considering conduct outside that
alleged in the requesting country’s charging documents when
performing a dual criminality analysis. See Clarey, 138 F.3d at
766 (9th Cir. 1998) (relying on the American district court’s
factual findings to establish that petitioner’s conduct in
Mexico satisfied the American felony murder statute); Lo Duca v.
United States, 93 F.3d 1100, 1112 (2d Cir. 1996) (relying on
evidence presented at petitioner’s Italian trial to establish
that his conduct satisfied American criminal statutes). 4
Having thus established the proper framework, we now
examine whether the offenses for which Mexico requests Ye Gon’s
extradition satisfy the Treaty’s dual criminality requirement.
4
Ye Gon also quotes language from Mironescu, 480 F.3d at
668, in support of his position. However, that case did not
address any dual criminality issues; it concerned whether the
district court had jurisdiction to consider the habeas petition
of a fugitive whom the State Department had certified for
extradition. Ye Gon’s reliance on Mironescu on this point is
therefore inapposite.
23
Taking into consideration all of Ye Gon’s alleged conduct, we
conclude that each offense is also criminal under United States
law.
1. Drug Offenses
Ye Gon claims that the Mexican charges against him for
importing, manufacturing, transporting and possessing
psychotropic substances do not represent criminal offenses under
American law because he imported only the precursors to
psychotropic substances, which are not controlled substances in
the United States. However, under 21 U.S.C. §§ 843(a)(6)-(7),
importing, manufacturing, transporting and possessing such
precursors is criminal if the defendant engages in such activity
“knowing, intending, or having reasonable cause to believe” that
such chemicals will be used to make controlled substances or
listed chemicals. The extradition magistrate found that Ye Gon
falsely certified the content and origin of import shipments
containing precursors to pseudoephedrine, a “list I chemical”
under 21 U.S.C. § 802(34)(K) and 21 C.F.R. § 1310.02(a)(11);
that he built a plant capable of manufacturing pseudoephedrine
and other psychotropic substances, despite lacking the Mexican
permit necessary to do so; that workers in this plant produced
over 600 kilograms a day of a “white crystalline powder,” and
the analyzed samples of this powder contained pseudoephedrine
and other psychotropic substances; that despite such production,
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Ye Gon reported no income for the plant or for Unimed during
this time period; that either Ye Gon or his driver transported
the powder away from the plant; and that Ye Gon was found to
have powdered pseudoephedrine hydrochloride, a salt of
pseudoephedrine, in his office ten months after the company was
supposed to have sold off all legally acquired inventory of that
substance. These findings are sufficient to give rise to the
inference that Ye Gon knew that the chemicals he imported,
transported, manufactured, and possessed would be used to
produce psychotropic substances. Therefore, these Mexican drug
offenses are also crimes under the laws of the United States.
2. Diversion of Sulfuric Acid
Ye Gon claims that the Mexican offense of diverting
essential chemicals – in this case, sulfuric acid – to produce
narcotics is not a criminal offense in the United States because
sulfuric acid is an extremely common, unregulated solvent in
America. However, sulfuric acid is a “list II chemical” under 21
U.S.C. § 802(35) and 21 C.F.R. § 1310.02(b)(9), triggering
certain reporting and registration requirements under 21 C.F.R.
§§ 1310, 1313.
In addition, the Mexican arrest warrant charged Ye Gon with
“the use of essential chemical products (sulfuric acid) to
produce narcotics,” including pseudoephedrine. This charge
brings Ye Gon’s possession of sulfuric acid within 21 U.S.C. §
25843(a)(6)-(7)’s prohibition on possessing any chemical that may
be used to manufacture a controlled substance if the person does
so “knowing, intending, or having reasonable cause to believe”
that the chemical will be used to manufacture such a substance.
Thus, Ye Gon’s Mexican charge of diverting sulfuric acid to
produce psychotropic substances is also criminal in the United
States.
3. Money Laundering
Ye Gon argues that his Mexican money laundering charge has
no equivalent under United States criminal law because the
Mexican arrest warrant alleged only that Ye Gon “maintained
funds in Mexican territory with the knowledge that the funds had
an illegal source,” while the American money laundering statute,
18 U.S.C. § 1956(a)(1), requires not only proof of maintenance
of funds but also of a financial transaction. As discussed
above, however, our dual criminality analysis is not limited to
the allegations contained in the Mexican arrest warrant or other
charging documents. The Mexican prosecutor did cite financial
transactions, such as Ye Gon’s payment of gambling debts and
currency exchange transfers, in his sworn affidavit in support
of Mexico’s extradition request. This alleged conduct satisfies
18 U.S.C. § 1956(a)(1)’s financial transaction requirement, and
therefore, the money laundering with which Ye Gon was charged in
Mexico is also criminal in the United States.
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4. Organized Crime
Ye Gon’s sole objection to the American criminality of his
Mexican organized crime charges is that the goals of the alleged
criminal organization – namely, drug activity and money
laundering – are not criminal under United States law. Because,
as discussed above, the Mexican drug charges and money
laundering charges do satisfy dual criminality under United
States law, that contention lacks merit. Therefore, the Mexican
organized crime charges also satisfy dual criminality because
they punish acts also punishable under 18 U.S.C. §§ 371, 1956(h)
and 21 U.S.C. §§ 846, 848.
5. Possession of Firearms
Finally, Ye Gon argues that the Mexican charge of
possessing firearms reserved for use by the armed forces is not
a criminal offense under American law – and, in fact, cannot be
criminalized because of the Second Amendment. This argument
fails because, again, the conduct underlying this charge is
criminal in the United States. All but one of the firearms that
Ye Gon is charged with possessing were found in a concealed room
next to his bedroom in his Mexican residence, which also
contained hundreds of millions of dollars in cash in multiple
currencies, the alleged proceeds of Ye Gon’s illegal drug
activity. Because the firearms’ proximity to drug proceeds is a
factor indicating that they were used in furtherance of drug
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trafficking, see United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002), the fact that Ye Gon possessed the firearms in that
room is sufficient to charge him under 18 U.S.C. § 924(c) with
firearm possession in furtherance of a drug trafficking crime. 5
The only other firearm that Ye Gon is charged with possessing
had an obliterated serial number, and its possession is thus
criminal under 18 U.S.C. § 922(k). 6
VI.
Finally, Ye Gon argues that, if we do authorize his
extradition, under the Treaty’s rule of specialty provision in
Article 17, we must limit the crimes with which Mexico may
charge him to those for which the State Department will have
granted extradition. Ye Gon notes that, in the years since
Mexico first requested his extradition in 2008, it has filed
additional charges against him, including tax evasion and
5
We note that Ye Gon’s constitutional argument on this
point is limited to the assertion that possessing firearms
“reserved for the use of the military” cannot be a crime under
our Second Amendment. We do not reach this question because, as
noted above, considering all of Ye Gon’s alleged actions, his
firearm possession is criminal under 18 U.S.C. § 924(c). Ye Gon
does not challenge the constitutionality of that statute.
6
Again, because Ye Gon does not appear to challenge the
constitutionality of 18 U.S.C. § 922(k), we do not rule on that
question here.
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smuggling charges. Importantly, Mexico has not requested the
United States to extradite Ye Gon on these additional charges.
We decline to rule on this final claim for at least two
reasons. First, Ye Gon lacks standing to assert this claim. 7 The
rule of specialty is a privilege of the asylum state, which it
may assert or waive as it so chooses; it is not a substantive
right under the Treaty accruing to Ye Gon. See Shapiro, 478 F.2d
at 906 (“As a matter of international law, the principle of
specialty has been viewed as a privilege of the asylum state,
designed to protect its dignity and interests, rather than a
right accruing to the accused.”); United States v. Najohn, 785
F.2d 1420, 1422 (9th Cir. 1986) (“[Rule of specialty] protection
exists only to the extent that the surrendering country wishes.
... The extradited party may be tried for a crime other than
that for which he was surrendered if the asylum country
7
We recognize that there may be other situations in which a
defendant who has been extradited to the United States from a
foreign country seeks to raise a specialty claim to prevent
being charged with additional crimes in our courts. Whether such
a defendant has standing to “raise whatever objections the
extraditing country would have been entitled to raise” is an
issue on which the circuits are split, Day, 700 F.3d at 721, and
we do not resolve that issue in this circuit today. Our holding
on the rule of specialty in this case is limited to the
situation in which a fugitive who has not yet been extradited
petitions an American court to limit the charges on which he may
be tried once returned to the requesting country.
29
consents.”) (internal citations omitted) (emphasis in original). 8
Therefore, because Ye Gon has no protected legal interest under
Article 17 of the Treaty, he lacks standing to assert this
claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (standing requires that “the plaintiff must have suffered
... an invasion of a legally protected interest”) (internal
citations omitted).
Second, even if Ye Gon did have standing to assert this
specialty claim, it is not yet ripe. Despite our ruling in this
case that the extradition magistrate properly issued a
certification of extraditability, the final decision whether to
extradite Ye Gon, and on what charges, rests not with us but
with the State Department. See 18 U.S.C. § 3186; Ordinola, 478
F.3d at 597. As a result, Ye Gon may yet never return to Mexico.
Further, even if the State Department does extradite him, it may
elect to waive the rule of specialty in his case, permitting
Mexico to prosecute him on the additional crimes. See, e.g.,
Najohn, 785 F.2d at 1422. Finally, even if Ye Gon is extradited,
and the State Department does not waive the rule of specialty,
we decline to assume that Mexico will violate its Treaty
8
Ye Gon cites Day, 700 F.3d at 721, in support of his
argument. Our reasoning in that case does not help him because
there, we assumed without deciding that the extradited party had
standing to assert a rule of specialty argument. Further, we
denied the specialty claim on the merits.
30
obligations by trying, detaining, or punishing Ye Gon on the
additional charges. Cf. Kelly v. Griffin, 241 U.S. 6, 15 (1916)
(“We assume, of course, that the government in Canada will
respect the convention between the United States and Great
Britain, and will not try the appellant upon other charges than
those upon which the extradition is allowed.”); Garcia-Guillern
v. United States, 450 F.2d 1189, 1192 (5th Cir. 1971) (court was
“not at liberty to speculate” that Peru would not honor its
obligations under the rule of specialty). As a result, we will
not rule on Ye Gon’s specialty claim because the predicate facts
are still hypothetical. See Texas v. United States, 523 U.S.
296, 300 (1998) (“A claim is not ripe for adjudication if it
rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.”).
VII.
Based on the foregoing, we affirm the denial of Ye Gon’s
petition for a writ of habeas corpus.
AFFIRMED
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