Case 2:22-cv-04320-FLA Document 36 Filed 01/09/23 Page 1 of 6 Page ID #:1320
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER AHN, Case No. 2:22-cv-04320-FLA (JPRx)
12 Petitioner, ORDER TO SHOW CAUSE RE: 13 v. WHETHER PROBABLE CAUSE SUPPORTING EXTRADITION 14 EXISTS IN LIGHT OF ONGOING DAVID M. SINGER, HOSTILITIES BETWEEN THE 15 Respondent. UNITED STATES AND NORTH 16 KOREA 17 18 19 20 21 22 23 24 25 26 27 28
1 Case 2:22-cv-04320-FLA Document 36 Filed 01/09/23 Page 2 of 6 Page ID #:1321
1 ORDER 2 On May 9, 2022, Magistrate Judge Rosenbluth issued the Reluctant 3 Certification of Extraditability (“Certification”) in United States v. Christopher Philip 4 Ahn, 2:19-cv-05397-FLA (JPRx) (“Case 19-5397”), in which she concluded she was 5 required to certify Petitioner Christopher Philip Ahn’s (“Ahn” or “Petitioner”) 6 extradition to the Kingdom of Spain (“Spain”). Case 19-5397, Dkt. 233. In issuing 7 the Certification, Magistrate Judge Rosenbluth held that Respondent the United States 8 of America (“Respondent” or the “government”) presented sufficient competent 9 evidence to establish probable cause supporting Petitioner’s extradition for the crimes 10 of breaking and entering, illegal restraint, causing injuries, and threats under Spanish 11 law. Id. at 19-28, 50. 12 On June 23, 2022, Petitioner filed a Petition for Writ of Habeas Corpus in this 13 action (“Petition”), requesting the court deny extradition on grounds including that the 14 Magistrate Judge erred in finding probable cause sufficient to support extradition.1 15 Dkts. 1, 1-1. The parties have completed written briefing regarding the Petition. 16 Dkts. 14, 30, 35. 17 “[E]xtradition is a matter of foreign policy entirely within the discretion of the 18 executive branch, except to the extent that the statute interposes a judicial function.” 19 Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). A United States citizen may be 20 subject to extradition for offenses committed in another country, “provided that an 21 extradition treaty exists between the United States and the country seeking extradition 22 and the crime charged is covered by the treaty.” Id. (citing 18 U.S.C. § 3184). For an 23 individual to be extradited, a judicial officer must determine there is “‘evidence 24 sufficient to sustain the charge under the provisions of the proper treaty or 25 convention,’ or, in other words, whether there is probable cause.” Id. (quoting 18 26 27 1 Decisions of an extradition court are not directly reviewable but may be challenged collaterally by a petition for habeas corpus. Barapind v. Enomoto, 400 F.3d 744, 748 28 n. 5 (9th Cir. 2005) (en banc) (per curiam).
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1 U.S.C. § 3184). Probable cause means a “fair probability,” given the totality of the 2 evidence, that the suspect has committed the charged crime, Garcia v. County of 3 Merced, 639 F.3d 1206, 1209 (9th Cir. 2011), and the burden of proving its existence 4 rests with the country seeking extradition, see Barapind, 400 F.3d at 747 (9th Cir. 5 2005) (“Certification of extradition is lawful only when the requesting nation has 6 demonstrated probable cause to believe the accused person is guilty of committing the 7 charged crimes.”). 8 Under the doctrine of “dual criminality,” an accused person “may be extradited 9 only if the alleged criminal conduct is considered criminal under the laws of both the 10 surrendering and requesting nations.’” United States v. Anderson, 472 F.3d 662, 665 11 n. 1 (9th Cir. 2006); Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir. 1986). “[T]o 12 satisfy the ‘dual criminality’ requirement, each element of the offense purportedly 13 committed in a foreign country need not be identical to the elements of a similar 14 offense in the United States. It is enough that the conduct involved is criminal in both 15 countries.” In re Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986). 16 It is unclear whether the conduct for which Petitioner has been accused is 17 considered criminal in the United States. Petitioner Ahn stands accused of engaging 18 in conduct against the embassy and staff of the Democratic People’s Republic of 19 Korea (“North Korea”), located in Spain. Case 19-5397, Dkt. 233 at 4-5, 20-27. The 20 United States, however, has been involved in a military conflict with North Korea 21 since President Harry Truman committed American troops to Korea in June 1950, in 22 support of United Nations Security Council Resolutions during the Korean War. 23 Although an officer of the United States Army signed the Armistice Agreement for 24 the Restoration of the South Korean State on July 27, 1953,2 this agreement only 25 ceased hostilities between the armed forces involved in the conflict and established a 26 27 2 A copy of the Armistice Agreement is available online at: https://www.archives.gov/milestone-documents/armistice-agreement-restoration- 28 south-korean-state.
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1 demilitarized zone between North Korea and the Republic of Korea (“South Korea”).3 2 North Korea and the United States have never formally declared peace or entered into 3 a peace treaty, and the United States and North Korea do not currently maintain 4 diplomatic relations. See Dkt. 223 at 5-6 n. 6 (recognizing the United States “has no 5 North Korean embassy nor any diplomatic relations at all with [North Korea].”). 6 North Korea and South Korea have continued to exchange missile and artillery 7 fire during the intervening years.4 On November 20, 2017, the United States 8 designated the North Korean government a State Sponsor of Terrorism.5 Congress 9 has recognized that the United States government should provide support to North 10 Korean defectors and refugees in the North Korean Human Rights Act of 2004, 22 11 U.S.C. §§ 7801-7846, and encouraged the government to take action to aid North 12 13 14 15 3 In December 2021, news outlets reported that South Korea announced it and the United States agreed “in principle” on a draft declaration to formally end the Korean 16 War, but North Korea did not agree to participate in the process. E.g., Mitch Shin, 17 South Korea and US Agree on Draft End-of-War Declaration ‘In Principle’, THE DIPLOMAT, December 29, 2021, available at: https://thediplomat.com/2021/12/south- 18 korea-and-us-agree-on-draft-end-of-war-declaration-in-principle/.
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Case 2:22-cv-04320-FLA Document 36 Filed 01/09/23 Page 1 of 6 Page ID #:1320
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER AHN, Case No. 2:22-cv-04320-FLA (JPRx)
12 Petitioner, ORDER TO SHOW CAUSE RE: 13 v. WHETHER PROBABLE CAUSE SUPPORTING EXTRADITION 14 EXISTS IN LIGHT OF ONGOING DAVID M. SINGER, HOSTILITIES BETWEEN THE 15 Respondent. UNITED STATES AND NORTH 16 KOREA 17 18 19 20 21 22 23 24 25 26 27 28
1 Case 2:22-cv-04320-FLA Document 36 Filed 01/09/23 Page 2 of 6 Page ID #:1321
1 ORDER 2 On May 9, 2022, Magistrate Judge Rosenbluth issued the Reluctant 3 Certification of Extraditability (“Certification”) in United States v. Christopher Philip 4 Ahn, 2:19-cv-05397-FLA (JPRx) (“Case 19-5397”), in which she concluded she was 5 required to certify Petitioner Christopher Philip Ahn’s (“Ahn” or “Petitioner”) 6 extradition to the Kingdom of Spain (“Spain”). Case 19-5397, Dkt. 233. In issuing 7 the Certification, Magistrate Judge Rosenbluth held that Respondent the United States 8 of America (“Respondent” or the “government”) presented sufficient competent 9 evidence to establish probable cause supporting Petitioner’s extradition for the crimes 10 of breaking and entering, illegal restraint, causing injuries, and threats under Spanish 11 law. Id. at 19-28, 50. 12 On June 23, 2022, Petitioner filed a Petition for Writ of Habeas Corpus in this 13 action (“Petition”), requesting the court deny extradition on grounds including that the 14 Magistrate Judge erred in finding probable cause sufficient to support extradition.1 15 Dkts. 1, 1-1. The parties have completed written briefing regarding the Petition. 16 Dkts. 14, 30, 35. 17 “[E]xtradition is a matter of foreign policy entirely within the discretion of the 18 executive branch, except to the extent that the statute interposes a judicial function.” 19 Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). A United States citizen may be 20 subject to extradition for offenses committed in another country, “provided that an 21 extradition treaty exists between the United States and the country seeking extradition 22 and the crime charged is covered by the treaty.” Id. (citing 18 U.S.C. § 3184). For an 23 individual to be extradited, a judicial officer must determine there is “‘evidence 24 sufficient to sustain the charge under the provisions of the proper treaty or 25 convention,’ or, in other words, whether there is probable cause.” Id. (quoting 18 26 27 1 Decisions of an extradition court are not directly reviewable but may be challenged collaterally by a petition for habeas corpus. Barapind v. Enomoto, 400 F.3d 744, 748 28 n. 5 (9th Cir. 2005) (en banc) (per curiam).
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1 U.S.C. § 3184). Probable cause means a “fair probability,” given the totality of the 2 evidence, that the suspect has committed the charged crime, Garcia v. County of 3 Merced, 639 F.3d 1206, 1209 (9th Cir. 2011), and the burden of proving its existence 4 rests with the country seeking extradition, see Barapind, 400 F.3d at 747 (9th Cir. 5 2005) (“Certification of extradition is lawful only when the requesting nation has 6 demonstrated probable cause to believe the accused person is guilty of committing the 7 charged crimes.”). 8 Under the doctrine of “dual criminality,” an accused person “may be extradited 9 only if the alleged criminal conduct is considered criminal under the laws of both the 10 surrendering and requesting nations.’” United States v. Anderson, 472 F.3d 662, 665 11 n. 1 (9th Cir. 2006); Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir. 1986). “[T]o 12 satisfy the ‘dual criminality’ requirement, each element of the offense purportedly 13 committed in a foreign country need not be identical to the elements of a similar 14 offense in the United States. It is enough that the conduct involved is criminal in both 15 countries.” In re Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986). 16 It is unclear whether the conduct for which Petitioner has been accused is 17 considered criminal in the United States. Petitioner Ahn stands accused of engaging 18 in conduct against the embassy and staff of the Democratic People’s Republic of 19 Korea (“North Korea”), located in Spain. Case 19-5397, Dkt. 233 at 4-5, 20-27. The 20 United States, however, has been involved in a military conflict with North Korea 21 since President Harry Truman committed American troops to Korea in June 1950, in 22 support of United Nations Security Council Resolutions during the Korean War. 23 Although an officer of the United States Army signed the Armistice Agreement for 24 the Restoration of the South Korean State on July 27, 1953,2 this agreement only 25 ceased hostilities between the armed forces involved in the conflict and established a 26 27 2 A copy of the Armistice Agreement is available online at: https://www.archives.gov/milestone-documents/armistice-agreement-restoration- 28 south-korean-state.
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1 demilitarized zone between North Korea and the Republic of Korea (“South Korea”).3 2 North Korea and the United States have never formally declared peace or entered into 3 a peace treaty, and the United States and North Korea do not currently maintain 4 diplomatic relations. See Dkt. 223 at 5-6 n. 6 (recognizing the United States “has no 5 North Korean embassy nor any diplomatic relations at all with [North Korea].”). 6 North Korea and South Korea have continued to exchange missile and artillery 7 fire during the intervening years.4 On November 20, 2017, the United States 8 designated the North Korean government a State Sponsor of Terrorism.5 Congress 9 has recognized that the United States government should provide support to North 10 Korean defectors and refugees in the North Korean Human Rights Act of 2004, 22 11 U.S.C. §§ 7801-7846, and encouraged the government to take action to aid North 12 13 14 15 3 In December 2021, news outlets reported that South Korea announced it and the United States agreed “in principle” on a draft declaration to formally end the Korean 16 War, but North Korea did not agree to participate in the process. E.g., Mitch Shin, 17 South Korea and US Agree on Draft End-of-War Declaration ‘In Principle’, THE DIPLOMAT, December 29, 2021, available at: https://thediplomat.com/2021/12/south- 18 korea-and-us-agree-on-draft-end-of-war-declaration-in-principle/. As recently as 19 September 24, 2021, news outlets reported that Ri Thae Song, Vice-Minister of Foreign Affairs of North Korea, issued a press release stating “[t]he true situation 20 proves that the adoption of the declaration of the termination of the war is something 21 premature.” William Gallo, North Korea Gives Mixed Signals on End of War Proposal, VOICE OF AMERICA, September 24, 2021, available at: 22 https://www.voanews.com/a/north-korea-gives-mixed-signals-on-end-of-war- 23 proposal/6243889.html. 24 4 E.g., South Hits Back as North Korea Fires Most Missiles in a Day, BBC, November 2, 2022, available at: https://www.bbc.com/news/world-asia-63481183; Choe Sang- 25 Hun, Tracking North Korea’s Record Number of Missile Launches, N.Y. TIMES, Dec. 26 23, 2022, available at: https://www.nytimes.com/article/north-korea-missile- launches.html. 27 5 U.S. Dep’t of State, State Sponsors of Terrorism, available at: 28 https://www.state.gov/state-sponsors-of-terrorism/.
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1 Koreans fleeing that country.6 Similarly, the United States Department of State has 2 issued multiple statements in support of North Korean refugees and defectors.7 3 While Magistrate Judge Rosenbluth found that “probable cause exists to believe 4 that Ahn committed the crimes of breaking and entering, illegal restraint, causing 5 injuries, and threats under Spanish law,” Case 19-5397, Dkt. 223 at 50, the parties did 6 not address whether Petitioner’s conduct is considered criminal in the United States, 7 in light of the ongoing hostilities that exist between the United States and North 8 Korea, the lack of a peace treaty, and North Korea’s sponsorship of terrorism. See id. 9 at 5-6 n. 6 (recognizing “the specific charges in Spain’s request for extradition are 10 framed broadly, without tying the crimes to the specific location where they allegedly 11 took place,” namely the North Korean embassy in Madrid). It is unclear, therefore, 12 whether Petitioner’s conduct would constitute a violation of United States law, 13 regardless of whether he acted in support of an attempt to aid a North Korean citizen’s 14 defection, as he contends, or whether he acted to steal information and computers he 15 turned over to the Federal Bureau of Investigation (“FBI”) in an attempt to undermine 16 the North Korean government, as the United States has argued. See id. at 3. 17 Respondent identified the laws it believes apply with respect to the issue of dual 18 criminality in Appendix B to the government’s memorandum in support of 19 extradition. Dkt. 30 at 34; Case 19-5397, Dkt. 119-2. In particular, the government 20 cited 18 U.S.C. § 112(a) (protection of foreign officials, official guests, and 21 internationally protected persons), and § 1201(a)(4) (kidnapping of a foreign official, 22 an internationally protected person, or an official guest). It is unclear whether the 23
24 6 The North Korean Human Rights Act of 2004 was most recently reauthorized in the 25 North Korean Human Rights Reauthorization Act of 2017, Pub. L. No. 115-198, 132 26 Stat. 1519. 27 7 E.g., U.S. Dep’t of State, Supporting Human Rights in North Korea Press Statement (Sept. 30, 2022), available at: https://www.state.gov/supporting-human-rights-in- 28 north-korea/.
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| | alleged North Korean officials here would qualify for protection under the identified 2 | statutes given the ongoing conflict between North Korea and the United States, the 3 | lack of relations between the two nations, and North Korea’s status as a state sponsor 4 | ofterrorism. See 18 U.S.C. § 1116(b)(3)-(4), (6). 5 Accordingly, the court ORDERS the parties to show cause in writing (““OSC’”’) 6 | whether probable cause exists that Petitioner Christopher Ahn committed conduct that 7 | would be considered criminal under United States law, in light of the ongoing 8 | hostilities and unique circumstances surrounding the relationship between the United 9 | States and North Korea. Respondent shall file its response to the OSC within 30 days 10 | of this Order. Petitioner may file an opposition to Respondent’s response within 30 11 | days of the government’s response, and Respondent may file a reply within 15 days of 12 | any opposition. The court, thereafter, will determine whether to schedule a hearing on 13 | the OSC and the Petition. 14 15 IT IS SO ORDERED. 16 17 | Dated: January 9, 2023 saz) 18 19 FERNANDO L. AENLLE-ROCHA United States District Judge 20 21 22 23 24 25 26 27 28