THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA )

)

) NO. LR-CR-98-116

v\. )

)

DAVID JEWELL JONES )

TONY MA a.k.a. Shiu Yun Ma )

MARY MA a.k.a. Shao Juan Deng )

BOB NEWTON RUSHING )

MARK JUSTIN RIABLE ) Declaration of Edward A. Betancourt

DECLARATION OF EDWARD A. BETANCOURT

I, Edward A. Betancourt, hereby depose and say as follows:

1\. I am Director of the Office of Policy Review and Inter-Agency
Liaison in the Directorate of Overseas Citizens Services ("OCS") of the
Bureau of Consular Affairs in the United States Department of State. I
have been employed as an Attorney Adviser in the Bureau of Consular
Affairs since 1974. I make this declaration, based on information
available to me in my official capacity, to set out for the court the
procedures by which defense attorneys are instructed by my office to
make requests to China for international judicial assistance in criminal
matters, and to provide information about the progress of the letters
rogatory in this case.

2\. OCS is responsible, [inter]{.underline} [alia]{.underline}, for
receiving and transmitting requests for international judicial
assistance under 28 USC 1781 (See 22 CFR Section 92.67), as well as for
other legal assistance requests that foreign States may make via the
diplomatic channel to the United States, including those for which
assistance may be available under 28 USC 1782.

3\. Judicial assistance between the United States and the People\'s
Republic of China is governed by multilateral conventions to which the
U.S. and China are parties: the Hague Convention on the Taking of
Evidence Abroad in Civil and Commercial Matters, 23 UST 2555; the Hague
Convention on the Service Abroad of Judicial and Extra-Judicial
Documents in Civil and Commercial Matters, 20 UST 361; and the Vienna
Convention on Consular Relations (\"VCCR\"), 21 U.S.T. 77. It is also
governed by the U.S. - China Consular Convention, 33 U.S.T. 3048;
customary international law; and applicable U.S. and local Chinese law,
and regulations.

4\. The U.S. Department of State expects criminal defendants, or their
defense counsel, who wish to request judicial assistance in obtaining
evidence or in effecting service of documents abroad in connection with
criminal matters to make such requests pursuant to letters rogatory in
accordance with Article 5(j) of the VCCR (\"Exhibit \"A\"). The
Government of the People\'s Republic of China has advised the United
States of the procedures it considers acceptable for seeking evidence or
effecting service in China pursuant to Article 5(j) of the VCCR. These
procedures are summarized in general in OCS's information circular,
"Judicial Assistance - China\" (Exhibit \"B\"). This material directs
inquirers to other information, including detailed instructions on
preparation of letters rogatory. This information is also available via
the Department of State\'s, Bureau of Consular Affairs\' home page on
the internet at http://travel.state.gov under the heading "judicial
assistance.\"

5\. Chinese authorities do [not]{.underline} recognize the authority or
ability of foreign persons, such as American attorneys, to take
voluntary depositions of willing witnesses, even before a U.S. consular
officer, Article 27(1) of the U.S. - China Consular Convention of 1980
(Exhibit \"C\") notwithstanding. In view of this position, China has
advised it would deem taking depositions in China before a U.S. consular
officer as a violation of China's judicial sovereignty. Such action
could result in the arrest, detention, expulsion, or deportation of the
American attorney. In a few limited cases, the Chinese Government has
agreed to interview witnesses on behalf of U.S. prosecutors or
investigators or to permit such prosecutors or investigators to directly
question witnesses in China. The granting of such permission is totally
discretionary with Chinese authorities**.** Since 1981 we are aware of
only one case in which Chinese authorities permitted a sworn statement
to be taken by a U.S. government official (this was a statement taken by
a U.S. law enforcement official in 1988).

6\. In diplomatic note No. 106 dated November 6, 1981 (Exhibit \"D\"),
the Ministry of Foreign Affairs advised the U.S. Embassy that, if a
court of the United States requests the depositions of witnesses
resident in the People's Republic of China, it is necessary to submit
letters rogatory through the diplomatic channel. Such letters rogatory
must bear the signature of the judge and the seal of the court.
Moreover, letters rogatory should contain the following information: the
name of the court making the request, the names of the parties, the
subject matter of the litigation, the name and address of the witness,
and written interrogatories and cross interrogatories. The letters
rogatory and written questions must be accompanied by a Chinese
translation.

7\. In Diplomatic note No. 88 (Exhibit \"E\") dated April 4, 1988, the
Chinese Ministry of Foreign Affairs reiterated its Government's position
that letters rogatory are the only vehicle for U.S. litigants to obtain
evidence in China, and that the taking of depositions of witnesses
within China by foreign attorneys or consuls is impermissible. The note
stated that for a U.S. consular officer to receive or witness statements
made under oath or affirmation in China is not authorized by the U.S. -
China bilateral Consular Convention. Chinese authorities repeated this
position in Circular Diplomatic note No. 77 dated September 11, 1996
(Exhibit \"F\") directed to all foreign embassies in Beijing.

8\. While China's diplomatic notes provide for the exclusive use of
letters rogatory, this vehicle, when used by defense counsel in criminal
matters, has proven in practice to be unreliable. Such requests for
international judicial assistance pursuant to letters rogatory in
criminal cases in China have met with mixed success. While requests by
federal prosecutors are made in a different manner, Chinese responses to
such requests have likewise met with mixed success. To the best of our
knowledge, since 1988 (when our records begin), only two requests for
legal assistance in criminal matters, out of a total of 17, have been
fully executed by Chinese authorities.

9\. In October 1999, the East Asia and Pacific Division, Office of
American Citizens Services and Crisis Management, Overseas Citizens
Services (\"OCS/ACS/EAP\") received telephone inquiries from Ms. Sherry
Joyce, Legal Assistant, Perroni & James, Attorneys at Law, Stewart
Building, 801 West Third Street, Little Rock, Arkansas 72201-2103, tel:
501-372-6555 requesting information regarding obtaining evidence in
China. OCS/ACS/EAP mailed Perroni & James a copy of Exhibit \"B\", our
information flyer regarding judicial assistance in China.

10\. On January 24, 2000, the Consular Section of the U.S. Embassy in
Beijing, China received letters rogatory in the present criminal case
under cover of a letter dated January 5 from Perroni & James, Exhibit
\"H\". The letters rogatory had been issued by the U.S. District Court
for the Eastern District of Arkansas, Western Division on April 23, 1999
and requested the deposition of witnesses in China. Perroni & James\'s
cover letter of January 5 advised that the request had been sent
previously to the Chinese Ministry of Justice. The Ministry of Justice
had returned the request because it only handles judicial assistance in
civil and commercial matters. (As clearly explained in the Department of
State guidance on judicial assistance in China (Exhibits \"B\" and
\"G\"), in criminal matters, letters rogatory must be transmitted
through the diplomatic channel.) The Chinese Ministry of Justice
reportedly directed Perroni & James to transmit the documents to the
Chinese Embassy or a Chinese Consulate in the United States. The Chinese
Consulate General in New York reportedly directed Perroni & James to
send the documents to the U.S. Embassy in Beijing, which Perroni & James
did. Perroni & James advised the U.S. Embassy that Perroni & James had
originally sent the letters rogatory to the Ministry of Justice after
speaking several times to OCS/ACS/EAP in the Department of State. We do
not have comprehensive records of these conversations, and cannot rule
out the possibility that Perroni & James was mistakenly given to
understand that transmittal of documents to the Ministry of Justice was
permissible, which is the case in civil matters. It is clear, however,
that Perroni & James had the Department of State circular on \"Judicial
Assistance - China\", \"Exhibit \"B\", which explains the applicable
procedures in both civil and criminal matters. That circular and Exhibit
\"G\", Preparation of Letters Rogatory (to which Exhibit \"B\" directs
inquirers) also recommend that letters rogatory be forwarded not
directly to the U.S. embassies, but to the Department of State, OCS/ACS,
so that any technical deficiencies can be identified and corrected
efficiently in the United States.

11\. Upon receipt of the letters rogatory from Perroni and James on
January 24, the U.S. Embassy had a number of questions about the
technical sufficiency of the letters rogatory. On January 27, the U.S.
Embassy sent the letters rogatory to the Department of State,
OCS/ACS/EAP for review for technical compliance with Chinese and other
specific requirements. The review revealed that the letters rogatory did
not appear to include the addresses of the witnesses required by Chinese
authorities and that the request was not accompanied by the requisite
check for U.S. consular fees (22 CFR 22.1, item number 40). These
requirements are set forth in the Department\'s circulars, \"Judicial
Assistance - China\", Exhibit \"B\", and \"Preparation of Letters
Rogatory\", Exhibit \"G\". (Exhibit \"B\" directs inquirers to Exhibit
\"G\" for further information about the letter rogatory procedure.)
OCS/ACS/EAP contacted Perroni & James by telephone upon receipt of the
documents from the U.S. Embassy in February 2000. Perroni & James
undertook to correct the errors and advised OCS/ACS/EAP that additional
documents, including further translations, would be forthcoming. On
April 11, the Department received a letter from Perroni & James dated
April 10 (Exhibit \"I\") enclosing a duplicate set of the letters
rogatory dated April 23, 1999, the required translations, and the
requisite check. A further review of the documents for compliance with
the Chinese requirements outlined in Exhibit \"B\" revealed that the
letters rogatory still did not contain the required addresses of the
witnesses in China and there was no indication in the cover letter that
this information was contained somewhere other than the letters rogatory
where we would expect to find it. The Department advised Perroni & James
on April 21 by telephone and in writing (Exhibit \"J\") that the letters
rogatory still failed to include the addresses of the witnesses, a
Chinese requirement set forth in Exhibits \"B\", \"D\", \"E\", \"F\",
and \"G\". On May 1 Perroni & James advised the Department by telephone
that the addresses for the witnesses were located in a document entitled
\"Defendant\' Jones\' Motion for Issuance of Letters Rogatory and
Requests for International Assistance\" dated March 31, 1999 which was
among the pleadings received by the Department under cover of Perroni &
James\' letter dated April 10. Ordinarily the Department forwards
letters rogatory and annexed questions and translations to foreign
authorities. The Department does not forward extraneous documents such
as the defendant\'s motion to foreign judicial authorities. As a
courtesy in this case, the Department has instructed the U.S. Embassy to
include the addresses of the witnesses in the Embassy\'s diplomatic note
rather than require amendment of the letters rogatory. The letters
rogatory were forwarded to the U.S. Embassy in Beijing for transmittal
to the Chinese Ministry of Foreign Affairs on May 1, 2000 and advised
Perroni & James of the fact in a letter dated May 2, 2000, \"Exhibit
K\". The Department will advise Perroni & James of the date the U.S.
Embassy\'s diplomatic note is transmitted to the Ministry and of any
response.

12\. The Department of State would be pleased to assist the U.S.
District Court in any further questions the Court may have regarding
judicial assistance in China.

> I declare under penalty of perjury that the foregoing is true and
> correct (28 USC 1746).

Signed

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Edward A. Betancourt

Executed in Washington, D.C.

May 2, 2000

Exhibits:

1\. Exhibit A: Article 5(j) VCCR.

2\. Exhibit B: China Judicial Assistance Circular.

3\. Exhibit C: Article 27(1) U.S.-China Consular Convention.

4\. Exhibit D: PRC Diplomatic Note No. 106 dated November 6, 1981.

5\. Exhibit E: PRC Diplomatic Note No. 88 dated April 4, 1988.

6\. Exhibit F: PRC Circular Diplomatic note No. 77 dated Sept. 11, 1996.

7\. Exhibit G: Preparation of Letters Rogatory Circular.

8\. Exhibit H: Jan. 5 ltr to the U.S. Embassy from Perroni & James.

9\. Exhibit I: April 10 letter from Perroni & James.

10\. Exhibit J: April 21^st^ letter to Perroni & James.

11\. Exhibit K: May 2^nd^ letter to Perroni & James.

THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA )

)

) NO. LR-CR-98-116

v\. )

)

DAVID JEWELL JONES )

TONY MA a.k.a. Shiu Yun Ma )

MARY MA a.k.a. Shao Juan Deng )

BOB NEWTON RUSHING )

MARK JUSTIN RIABLE )

SUPPLEMENTAL DECLARATION OF EDWARD A. BETANCOURT

I, Edward A. Betancourt, hereby depose and say as follows:

1\. I previously submitted a declaration in this matter dated May 2,
2000. I submit this supplemental declaration to further clarify the
basis of the information contained in my declaration of May 2.

2\. The Directorate of Overseas Citizens Services (\"OCS\") in the
Bureau of Consular Affairs of the U.S. Department of State is comprised
of three inter-related offices. These include the Office of American
Citizens Services and Crisis Management (\"ACS\"), the Office of Policy
Review and Inter-Agency Liaison (\"PRI\"), and the Office of Children\'s
Issues. The Office of American Citizens Services and Crisis Management
is further broken down into five geographic divisions. Mrs. Kerry L.
Holmes-De Haven, who has spoken previously to the Peronni law firm, is
employed as a Citizens Services Specialist in the East Asia and Pacific
Division in ACS.

3\. In legal and technical matters, the Office of American Citizens
Services and Crisis Management confers with the Office of Policy Review
and Inter-Agency Liaison (\"OCS/PRI\") on a regular basis. My office
provides direction to the geographic offices of OCS/ACS and, except in
situations not relevant here (such as a policy dispute requiring
resolution by a more senior official), Citizens Services Specialists in
those offices are expected to follow the policy and legal guidance of my
office. In addition, the files and records maintained by the Citizens
Services Specialists are available to me and my staff in connection with
our provision of legal and policy advice to them. In this regard, Mrs.
Holmes-De Haven conferred with me and my staff periodically regarding
the letters rogatory in the referenced case throughout the course of her
contacts with the Peronni law firm. Moreover, because of the complexity
of international judicial assistance in China, the information contained
in the Department of State\'s printed materials regarding judicial
assistance in China and letters rogatory in general were prepared by my
staff under my immediate direction and supervision.

4\. On May 16, 2000, the U.S. Embassy in Beijing transmitted the letters
rogatory in the referenced case to the Ministry of Foreign Affairs of
the People\'s Republic of China. Our Office of American Citizens
Services and Crisis Management conveyed this information to the Perroni
law firm in a letter dated June 22, 2000, Exhibit \"A\". To date, no
response to the notes has been received.

I declare under penalty of perjury that the foregoing is true and
correct (28 USC 1746).

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Edward A. Betancourt

Executed in Washington, D.C.

June 22, 2000