Choe v. Torres

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 28, 2008
• Docket: 06-56634
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAN-SEOK CHOE,  Petitioner-Appellant, No. 06-56634 v.  D.C. No. CV-06-06745-RGK ADAM N. TORRES, U.S. Marshal, in his official capacity, OPINION Respondent-Appellee.  Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted August 7, 2007—Pasadena, California

Filed April 29, 2008

Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson, Circuit Judge, and Harold Baer, Jr.,* Senior District Judge.

Opinion by Chief Judge Kozinski

*The Honorable Harold Baer, Jr., Senior U.S. District Judge for the Southern District of New York, sitting by designation.

4595 4598 CHOE v. TORRES

COUNSEL

William J. Genego, Nasatir, Hirsch, Podberesky & Genego, Santa Monica, California, for the petitioner-appellant.

Daniel J. O’Brien, Assistant U.S. Attorney; George S. Car- dona, Acting U.S. Attorney; Thomas P. O’Brien, Assistant U.S. Attorney; Daniel Scott Goodman, Assistant U.S. Attor- ney, Los Angeles, California, for the respondent-appellee.

OPINION

KOZINSKI, Chief Judge:

We consider whether the district court erred in denying Man-Seok Choe’s habeas corpus petition challenging certifi- cation of his extradition to the Republic of Korea.

Facts

Choe is a Korean citizen and a resident of Los Angeles. In the 1990s, he traveled frequently to Korea on business, where he was acquainted with important political figures. During CHOE v. TORRES 4599 one of his visits to Korea, Choe learned that he was under criminal investigation. Choe thereupon left Korea in secret and returned to Los Angeles. After Korea requested Choe’s extradition, the United States took him into custody. Pursuant to 18 U.S.C. § 3181 et seq., Magistrate Judge Marc L. Gold- man determined that Choe was subject to surrender under the terms of the Extradition Treaty Between the Government of the United States of America and the Government of the Republic of Korea, June 9, 1998 (“Treaty”), and certified two crimes for extradition.1 Choe then petitioned the district court for a writ of habeas corpus. The district court summarily denied his petition, relying on the magistrate judge’s determi- nation that Choe is extraditable. Choe appeals.2

Analysis

Because the district court denied Choe’s petition in a min- ute order, we review the magistrate judge’s memorandum and order certifying the crimes for extradition. Barapind v. Eno- moto, 400 F.3d 744, 748 (9th Cir. 2005) (en banc) (per curiam).

1. Acceptance of Bribe Through Good Offices

[1] Article 2 of the Treaty provides that an “offense shall be an extraditable offense if . . . it is punishable under the laws” of both nations. Treaty art. 2(1). This is known as the “dual criminality” requirement. Clarey v. Gregg, 138 F.3d 764, 765 (9th Cir. 1998). In determining whether Korea has satisfied the dual criminality requirement, we consider “the 1 Courts may only certify crimes for extradition. 18 U.S.C. § 3184. The ultimate decision whether to extradite is left to the Secretary of State. Id.; Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003). 2 While the magistrate judge’s determination that Choe is extraditable is not subject to direct appeal, it is subject to collateral review by way of habeas corpus. See Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1402 (9th Cir. 1988). 4600 CHOE v. TORRES totality of the conduct alleged.” Treaty art. 2(3); see also Clarey, 138 F.3d at 766 (“The primary focus of dual criminal- ity has always been on the conduct charged; the elements of the analogous offenses need not be identical.”); Emami v. U.S. Dist. Court, 834 F.2d 1444, 1450 (9th Cir. 1987) (“[A]ll the principle of dual criminality requires is that the particular acts alleged constitute a crime in both jurisdictions.”); In re Russell, 789 F.2d 801, 803 (9th Cir. 1986) (“[T]o satisfy the ‘dual criminality’ requirement, . . . [i]t is enough that the con- duct involved is criminal in both countries.”). We review de novo the determination that an offense is extraditable. United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987).

The extradition papers allege that Choe improperly influ- enced the Korean government on behalf of Alsthom Co. Alsthom submitted a bid to supply the Korean government with high speed rail cars for a national rapid transit railway system. The papers allege that Choe promised Myung Soo Hwang, who was then the secretary general of the ruling party and a member of the National Assembly, a “sufficient reward” if Hwang exerted his influence on Alsthom’s behalf and the bid were successful. Alsthom won the contract and promptly paid Choe over $11 million; Choe, in turn, paid Hwang approximately $400,000.

[2] It’s clear that this alleged conduct—promising and then paying a bribe to a public official in exchange for an official act—is a crime under U.S. law. Choe’s conduct, if committed in the United States, would be punishable under several stat- utes including: 18 U.S.C. § 201(b), which makes it illegal to bribe any public official in order to influence his official actions; 18 U.S.C. § 666(a)(2), which makes it a crime to bribe recipients of federal funds; and 18 U.S.C. §§ 1343, 1346, which allow for prosecution of individuals who deprive citizens of the honest services of a public official. See United States v. Blumeyer, 114 F.3d 758, 765 (8th Cir. 1997). In CHOE v. TORRES 4601 short, the “totality of the conduct alleged,” Treaty art. 2(3), is “punishable under the laws” of both nations, id. art. 2(1).

Choe nevertheless contends that the offense isn’t extradit- able because Article 2 of the Treaty further requires that the Korean and U.S. laws be “substantially analogous.”3 Choe argues that the Korean law under which he has been charged —Acceptance of Bribe Through Good Offices4 —isn’t “sub- stantially analogous” to any U.S. law. The Korean statute pro- vides: “Any person who receives, demands or promises any money or interest in connection with a mediation of matters belonging to the duties of the public official, shall be pun- ished . . . .” Choe points out that this language seems to crimi- nalize conduct that we would consider mere lobbying. According to Choe, the vague phrase “in connection with a mediation of matters belonging to the duties of the public offi- cial” is broad enough to cover the activities of a lobbyist who helps provide access to public officials in a legitimate attempt to influence their official actions.

[3] But Choe misconceives the meaning of the term “sub- stantially analogous.” Just three months before the Treaty was signed, we adopted the following definition: “[W]hen the laws of both the requesting and the requested party appear to be directed to the same basic evil, the statutes are substan- tially analogous.” Clarey, 138 F.3d at 766 (internal quotation marks and citation omitted). Korea’s statute is “directed to the same basic evil” as our bribery laws, namely, the corruption of public officials. The fact that the Korean law is broader 3 Article 2 provides: [A]n offense shall be an extraditable offense . . . whether or not the constituent elements of the offense differ under the laws in [Korea and the United States], provided that the offenses under the laws of both States are substantially analogous. Treaty art. 2(3). 4 This is the title of the Korean statute as translated in the extradition papers. 4602 CHOE v. TORRES than ours, and thus punishes conduct that would not be unlaw- ful here, is of no consequence, so long as the particular con- duct Choe is charged with is prohibited in both countries. Id.

[4] Choe further contends that the United States5 hasn’t established probable cause that he committed the acts with which he’s charged. The Treaty requires “such information as would provide reasonable grounds to believe that the person sought has committed the offense for which extradition is requested.” Treaty art. 8(3)(c). The magistrate judge found that the United States satisfied this requirement, and we must uphold that finding if “competent evidence” supports it. Zana- zanian v. United States, 729 F.2d 624, 626 (9th Cir. 1984).

[5] The magistrate judge’s memorandum and order dis- cusses the extensive evidence that Alsthom paid Choe $11 million for his services, but doesn’t mention any evidence that Choe promised Hwang a reward, that Choe gave Hwang any- thing, or even that Choe met with Hwang. Though the extradi- tion papers accuse Choe of doing these things, accusations are not evidence. See In re Sauvage, 819 F. Supp. 896, 902-03 (S.D. Cal. 1993). This failure is particularly significant because the Korean prosecutor who prepared the extradition papers had before him the complete statement of Ki Choon Ho, Choe’s alleged accomplice in the crime, yet there’s no indication in the papers that Ho implicated Choe in bribing Hwang.

To be sure, the magistrate judge had evidence that Choe may have committed some violation of the Acceptance of Bribe Through Good Offices statute. That statute prohibited Choe from “receiv[ing]” Alsthom’s money “in connection with a mediation of matters belonging to the duties of the public official,” so it’s likely that Choe violated the Korean law the moment he allegedly took Alsthom’s money, whether 5 Pursuant to Article 18 of the Treaty, the United States represented Korea’s interests before the magistrate judge. CHOE v. TORRES 4603 or not he then paid any of it over to Hwang. But the Treaty isn’t satisfied by proof that Choe probably committed some violation of the statute; it requires probable cause that Choe committed the particular acts of which he’s accused, namely, bribing Hwang. See Treaty art. 8(3)(c); see also 18 U.S.C. § 3184 (extradition requires “evidence sufficient to sustain the charge” leveled against the fugitive) (emphasis added); Quinn v. Robinson, 783 F.2d 776, 787 (9th Cir. 1986) (section 3184 requires probable cause to believe the accused committed the particular “charged offense”).

[6] Because there’s no competent evidence to support the magistrate judge’s finding of probable cause that Choe com- mitted the particular acts “for which extradition is requested,” Treaty art. 8(3)(c), we reverse the district court’s denial of habeas corpus as to this offense.6

2. Stowaway Control Act

Choe’s petition for a writ of habeas corpus seeks relief from the magistrate judge’s certification for Choe’s violation of the Stowaway Control Act and, curiously, the parties dis- cuss this issue at length in their briefs. But the magistrate judge did not certify this offense for extradition, so Korea can’t prosecute Choe for it, see Treaty art. 15(1)(a), p.4608 infra, and the United States can’t appeal the magistrate judge’s adverse determination, see United States v. Doherty, 6 As we see below, Korea also has a conventional bribery statute. See p.4604 infra. The United States urges us to certify Choe’s alleged bribe to Hwang as a violation of that statute. But changing the legal theory can’t cure the lack of evidence that Choe bribed Hwang. In any event, we don’t have the power to certify new offenses for extradition. If the government believes it can extradite Choe on the charge that he violated Korea’s con- ventional bribery statute by bribing Hwang, it must make that case before an extradition court, which has the power to determine in the first instance whether Korea’s extradition papers support such a charge and whether the evidence is “sufficient to sustain” it. 18 U.S.C. § 3184; see United States v. Doherty, 786 F.2d 491, 501-03 (2d Cir. 1986). 4604 CHOE v. TORRES 786 F.2d 491, 501-03 (2d Cir. 1986). The issue is thus not properly before us and we do not consider it.

3. Offering Bribe

After Korean authorities launched an investigation into Choe’s lobbying activities, Choe allegedly bribed a Korean police officer, Yoon Ki Jeon, to exert his influence to close the investigation. Such conduct, if proven, would violate a Korean statute titled Offering Bribe. Choe concedes that this is an extraditable offense but claims that the evidence does not support probable cause. As discussed above, see pp.4602- 03 supra, the Treaty requires “such information as would pro- vide reasonable grounds to believe that the person sought has committed the offense for which extradition is requested.” Treaty art. 8(3)(c). Here again, the magistrate judge found that the United States, representing Korea’s interests, satisfied this burden; we must uphold the magistrate judge’s finding if “competent evidence” supports it. Zanazanian, 729 F.2d at 626.

[7] The magistrate judge’s memorandum and order con- tains a detailed account of the evidence supporting probable cause to believe Choe bribed Officer Jeon in an effort to stop the police investigation, including the Korean prosecutor’s summary of testimony from Choe’s accomplice, Ki Choon Ho, who implicates Choe in a scheme to bribe Officer Jeon. Ho, who allegedly aided Choe in his lobbying activities, pro- vides names, dates, an explanation of how she became aware Korean authorities were investigating their lobbying activi- ties, the financial breakdown of the bribe and how it was apportioned, how she met Officer Jeon and the way in which Officer Jeon was paid.

Ho was convicted in Korea and sentenced to 18 months in prison for her role in bribing Officer Jeon. The magistrate judge also relied on the Korean prosecutor’s summary of tes- timony from another witness, Sang In Kim, who indicated CHOE v. TORRES 4605 that he introduced Ho to Officer Jeon, that he was present when Ho offered Officer Jeon a bribe and that he delivered money to Officer Jeon on Ho’s behalf. The magistrate judge also considered other evidence such as a bank statement docu- menting the bribe and the prosecutor’s summary of testimony from another Korean police officer, but it is unnecessary to discuss these in any detail as there is more than enough evi- dence to support the magistrate judge’s finding.

[8] Choe contends this evidence cannot support a finding of probable cause because the Korean prosecutor’s summaries aren’t reliable. But if the evidence submitted in the extradition papers is certified and authenticated in accordance with the admissibility requirements of Article 9 of the Treaty7 and 18 U.S.C. § 31908 —which is not disputed here—the magistrate judge is authorized to consider it. See, e.g., Collins v. Loisel, 259 U.S. 309, 317 (1922) (“[U]nsworn statements of absent witnesses may be acted upon by the committing magistrate.”); Zanazanian, 729 F.2d at 627 (police reports summarizing wit- nesses statements are competent evidence); Emami, 834 F.2d at 1450-52 (upholding extradition based on affidavit contain- ing summaries of witnesses’ statements). 7 Article 9 of the Treaty provides that documents are admissible when “they are certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State; or [when] they are certi- fied or authenticated in any other manner accepted by the law of the Requested State.” Treaty art. 9(a)-(b). 8 18 U.S.C. § 3190 provides that documents offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing 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 pur- poses by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the princi- pal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required. 4606 CHOE v. TORRES [9] Choe also attacks Ho’s credibility. He points out that Ho had every reason to shift blame to him to reduce her own culpability, and that her statements aren’t supported by any other witness. But the Treaty merely requires “such informa- tion as would provide reasonable grounds to believe” that Choe committed the crime. Treaty art. 8(3)(c). Here, Ho’s lack of credibility is merely a weakness in Korea’s case; it does not “completely obliterate[ ]” the evidence of probable cause. Barapind, 400 F.3d at 749. Choe further contends that the magistrate judge erred by refusing to allow him to conduct discovery on Ho’s credibility, but this wasn’t error because any such evidence wouldn’t be admissible. Id. (“[E]vidence that merely controverts the existence of probable cause, or raises a defense, is not admissible.”).

4. Statute of Limitations

[10] Article 6 of the Treaty provides that extradition for a crime may be denied if punishment for the crime would be barred by the statute of limitations of the United States had the crime been committed here.9 In the United States, the stat- ute of limitations for the crime of bribing a public official— the only crime which can properly be certified for extradition, see pp.4604-07 supra—is five years. 18 U.S.C. § 3282. As the final bribe to Officer Jeon was paid in February 1996, the stat- ute of limitations would have lapsed in February 2001. How- ever, under U.S. law, the statute of limitations is tolled if the 9 At oral argument, the United States argued for the first time that we do not have the authority to deny extradition on the basis of the Treaty’s stat- ute of limitations provision because this provision is couched in discre- tionary terms. See Treaty art. 6 (“Extradition may be denied . . . when . . . punishment of the offense . . . would have been barred because of the stat- ute of limitations of the Requested State had the same offense been com- mitted in the Requested State.”) (emphasis added). According to the United States, only the Executive Branch can take action on the basis of discretionary Treaty language. Because this argument was raised for the first time on appeal, it is waived. Cf. Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996). CHOE v. TORRES 4607 accused flees from justice. 18 U.S.C. § 3290. To toll the stat- ute, the United States must show that Choe (1) “inten[ded] to avoid arrest or prosecution” and (2) committed a “volitional act” of concealment. See United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir. 1976). We review the magistrate judge’s factual findings for clear error, but the “ultimate ‘fleeing from justice’ question” we review “de novo because legal concepts that require us to exercise judgment dominate the mix of fact and law.” United States v. Fowlie, 24 F.3d 1070, 1072 (9th Cir. 1994).

[11] In October 1999, well within the statute of limitations period, Choe booked a flight from Korea. He was stopped at the airport and prevented from boarding. His passport was confiscated and he was questioned by Korean authorities regarding his lobbying activities and alleged bribe to Officer Jeon. He was interrogated again later that month. Some two months later, Choe left Korea without a passport and without informing the Korean government of his destination. Cf. Caplan v. Vokes, 649 F.2d 1336, 1341 (9th Cir. 1981) (defen- dant did not flee from justice because he remained in the country until the initial investigation was complete and he subsequently provided the authorities with the address of his new foreign residence). The magistrate judge did not clearly err in finding, based on this evidence, that Choe was aware that he was the subject of a criminal investigation at the time he left Korea and, consequently, that he did so in order to avoid being taken into custody.10

[12] With respect to the second element of fleeing from jus- tice, the accused commits a “volitional act” of concealment 10 We reject Choe’s argument that he could not have had the intent to avoid prosecution because no charges were pending when he fled Korea. It is well settled that one can flee from justice for purposes of tolling the statute of limitations even if no charges are pending at the time of flight. United States v. Ballesteros-Cordova, 586 F.2d 1321, 1323 (9th Cir. 1978) (per curiam). Here, Choe knew he was under investigation for serious crimes when he disappeared. 4608 CHOE v. TORRES when he takes “significant affirmative steps to avoid prosecu- tion.” Fowlie, 24 F.3d at 1072. Here, Choe’s secret flight from Korea was a “significant affirmative step[ ] to avoid prosecution.” Id.

[13] Choe argues that he did not conceal himself because he lived openly in Los Angeles, operated his business in his own name and applied for U.S. citizenship. But the fact that he could have taken additional steps to conceal his where- abouts does not mean that Choe was not a fugitive from jus- tice. He may have felt safe enough being thousands of miles away from the government that was seeking to prosecute him. In Fowlie, for example, we held that defendant concealed himself in Mexico from U.S. authorities even though there was “no evidence that he went out of his way to conceal his presence.” Id. Choe’s “volitional act[s]” of concealment occurred when he left Korea clandestinely and placed himself beyond the jurisdiction of the Korean authorities.

Choe also argues that the statute of limitations should not be tolled because the Korean authorities were aware that Choe applied for citizenship in the United States in 2001, yet did not request his extradition until 2005. According to Choe, this demonstrates “inaction or lack of diligence on the part of the [Korean] government.” To the extent there was a delay, this is a matter left for the Secretary of State’s consideration. See Kamrin v. United States, 725 F.2d 1225, 1227 (9th Cir. 1984) (“The delay may not . . . serve as a defense to judicial extradi- tion proceedings.”).

5. Rule of Specialty

Article 15 of the Treaty provides that Choe cannot be “de- tained, tried or punished” in Korea for any offense unless we “grant[ ]” extradition for that particular offense. Treaty art. 15(1)(a). As only one offense—allegedly bribing Officer Jeon in violation of the Offering Bribe statute—satisfies all the CHOE v. TORRES 4609 Treaty requirements, this is the only offense for which certifi- cation is proper.

* * *

[14] We AFFIRM the district court’s order denying habeas corpus as to the charge that Choe bribed Officer Jeon, but REVERSE the district court’s denial of habeas corpus as to the charge that Choe bribed Hwang. On remand, the district court shall enter an order striking the magistrate judge’s certi- fication for that offense as a proper basis for extradition, but shall otherwise continue to deny the petition.

AFFIRMED in part, REVERSED in part and REMANDED.