**99-2526**

> **To be argued by Jeffrey A. Meyer**

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**UNITED STATES COURT OF APPEALS**

**FOR THE SECOND CIRCUIT**

**DOCKET No. 99-2526**

**==================**

**JOHN CHEUNG**

**Petitioner - Appellee,**

**-vs-**

**UNITED STATES OF AMERICA**

**Respondent-Appellant.**

**=================**

**ON APPEAL FROM THE UNITED STATES DISTRICT COURT**

**FOR THE DISTRICT OF CONNECTICUT**

**============================================================**

**REPLY BRIEF FOR THE APPELLANT**

**UNITED STATES OF AMERICA**

**============================================================**

**Stephen C. Robinson**

**United States Attorney**

**Jeffrey A. Meyer Assistant United States Attorney**

**District of Connecticut**

**157 Church Street, 23rd Floor**

**New Haven, Connecticut 06510**

**(203) 821-3700**

**TABLE OF AUTHORITIES**

[CASES]{.underline}

[Keene Corp. v. United States]{.underline}, 508 U.S. 200 (1993) 3

[Muniz v. Hoffman]{.underline}, 422 U.S. 454 (1975) 3

[Stone v. I.N.S.]{.underline}, 514 U.S. 386 (1995) 2

[United States v. DiStefano]{.underline}, 464 F.2d 845 (2d Cir. 1972) 3

[STATUTUES]{.underline}

18 U.S.C. § 3181 *passim*

18 U.S.C. § 3184 1

[LEGISLATIVE MATERIALS]{.underline}

H.R. Rep. No. 80-304 (1948) \[excerpt in appendix\] . . . . . . 4-5

[OTHER AUTHORITIES]{.underline}

Treaty of Extradition between the United States of America and the Free
City of Danzig, 46 Stat. 2282, T.S. 789 (1927) 5

Treaty of Extradition between the United States of America and the Free
City of Danzig, 49 Stat. 3256, T.S. 896 (1935) 5

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DOCKET NO. 99-2526

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JOHN CHEUNG

Petitioner-Appellee,

v\.

UNITED STATES OF AMERICA,

Government-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**REPLY BRIEF FOR THE UNITED STATES OF AMERICA**

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

If Cheung is correct, "any" means "only" \-- the term "any foreign
government" means *[only]{.underline}* the central government of a
foreign country. The Court should reject this misinterpretation of the
statute.

The Magistrate had jurisdiction under the plain language of Section
3184. Cheung's arguments to the contrary rest solely on interpretations
of statutory provisions other than Section 3184. Apart from the
incongruity of relying on other provisions to alter the plain language
of Section 3184, Cheung misinterprets these other statutes as well.

To begin with, he argues that Section 3181 is a "definitional"
provision. [See]{.underline} Cheung Brief ("Cheung Br.") at 12, 22. In
fact, Section 3181 does not purport to define any terms. Titled as
"Scope and Limitations", the scope and limitations it places have
nothing to do with designating what kind of foreign government the
President may choose as a treaty partner.

Cheung similarly misplaces his reliance on the legislative history of
Section 3181. Noting that in 1948 the term "such foreign government" was
inserted in place of the term "any foreign government," Cheung asserts
that this amendment was "'intend\[ed\] to have \[a\] real and
substantial effect.'" Cheung Br. at 21 (quoting [Stone v.
I.N.S.]{.underline}, 514 U.S. 386, 397 (1995)). But this argument does
not withstand an examination of the text or legislative history.

The former pre-1948 version of Section 3181 stated in full:

> The provisions of this Title relating to the surrender of persons who
> have committed crimes in foreign countries shall continue in force
> during the existence of any treaty of extradition with **any foreign
> government, and no longer**.

R.S. § 5274, *reprinted in* H.R. Rep. No. 80-304, A242 (1948)(emphasis
added) (pertinent excerpt of House Report attached hereto as addendum to
this brief). The 1948 revision replaced the term "Title" with "chapter",
inserted the term "only" before the word "during", and replaced the
ending phrase "any foreign government, and no longer" with the term
"such foreign government":

> The provisions of this chapter relating to the surrender of persons
> who have committed crimes in foreign countries shall continue in force
> only during the existence of any treaty of extradition with **such
> foreign government**.

18 U.S.C.A. § 3181 (1985)(emphasis added).[^1]

This change was effected in 1948 as part of the general revision and
recodification of the federal criminal code, for which it is well
established that such revisions do not signal an intent of Congress to
alter the substantive meaning of a statute, unless the legislative
history clearly expresses such an intent. [See]{.underline} [Muniz v.
Hoffman]{.underline}, 422 U.S. 454, 470-74 (1975); [United States v.
DiStefano]{.underline}, 464 F.2d 845, 847 (2d Cir. 1972) (noting
non-substantive nature of 1948 revisions to criminal code). Here, the
legislative history confirms that the change in language was no more
than a minor change in phraseology. [See]{.underline} 18 U.S.C.A. 3181
(1985) (Historical and Revision Notes) (noting that "Minor changes were
made in phraseology" by 1948 revision); H.R. Rep. No. 80-304, A158
(1948) (noting only "Minor changes were made in phraseology") (House
Report excerpt attached as addendum to this brief). [See]{.underline}
[Keene Corp. v. United States]{.underline}, 508 U.S. 200, 208 (1993) (no
substantive change from 1948 Judicial Code revision where House Report
"indicates nothing more than a change 'in phraseology'"). Accordingly,
no substantive change in meaning can be ascribed to the replacement in
1948 of the term "any foreign government" with "such foreign government"
in the current version of Section 3181.

Cheung insists that the Government's interpretation would render
"meaningless" and "excess verbiage" Congress' use of the term "such
foreign government". [See]{.underline} Cheung Br. at 12, 19. But this
overlooks the significance of the term "such foreign government". The
*pre*-recodification version of Section 3181 (with its requirement only
that there be a treaty with "any foreign government") could have been
misinterpreted \-- in its most literal sense \-- to permit extradition
to the territory of any country so long as the United States had an
extradition treaty with "any foreign government" elsewhere in the world,
as opposed to a foreign government from the country where the crime was
committed. Merely clarifying in nature, the *post*-recodification
language (with its substitution of the term "such foreign government" in
place of "any foreign government") removed any doubt that the treaty in
effect must pertain to the geographical location where the crime in
question was committed.

Beyond using the word "such" to make clear the requisite geographical
nexus, Congress intended nothing more ambitious. Specifically, its use
of the term "such foreign government" was not an attempt to enact a
categorical and perpetual restriction on the type of foreign government
which the President might choose as an extradition treaty partner.

Cheung is correct that, as a historical matter, the United States
generally chooses to enter treaties of extradition with the

central governments of foreign countries. [See]{.underline} Cheung Br.
at 15.[^2] But this is not a choice mandated by any language of the
extradition statutes.

Cheung also relies on dicta from cases referring to extradition treaties
with foreign countries. [See]{.underline} Cheung Br. at 18. But none of
these cases purports to recognize or rule that the United States may
enter into a treaty only with the central government of a foreign
country.

Cheung misplaces his reliance on the fact that Congress has enacted
special legislation governing extradition to the international tribunals
for Yugoslavia and Rwanda. [See]{.underline} Cheung Br. at 17. He argues
that this legislation is an acknowledgement that an extradition
relationship may only be with the central government of a foreign
country. But this argument ignores that the international tribunals are
not even "foreign governments" at all, unlike the Government of Hong
Kong. Accordingly, such legislation is of no significance to this case.

Finally, Cheung insists there are "numerous policy reasons" for the
supposed requirement that the United States may only enter an
extradition treaty with the central government of a foreign country. Yet
the only reason he identifies is the need for "accountable extradition
partners, who have the power to enforce the terms of the particular
treaty." Cheung Br. at 24. Under the Basic Law, Hong Kong is fully
capable of carrying out its extradition obligations. Hong Kong stands
ready to honor its treaty obligations. Now is the time to permit the
United States to honor *its own.*

[Conclusion]{.underline}

For the foregoing reasons, and those set forth in the Government's
principal brief, the ruling of the district court should be reversed and
the judgment vacated forthwith, such that the certificate of
extraditability may issue with a warrant for the commitment of Cheung
pending review by the Secretary of State.

Respectfully submitted,

STEPHEN C. ROBINSON

UNITED STATES ATTORNEY

JEFFREY A. MEYER

ASSISTANT U.S. ATTORNEY

157 Church Street, 23^rd^ Floor

New Haven, CT 06510

\(203\) 821-3700

*[CERTIFICATION OF SERVICE]{.underline}*

This is to certify that 2 copies of the foregoing Reply Brief of the
Appellant United States of America were mailed first-class to counsel
for appellee John Cheung on this day of January 10, 2000.

Richard A. Reeve, Esq.

Sheehan & Reeve

105 Court Street, Suite 401

New Haven, CT 06510

Phone: 203/787-9026

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Jeffrey A. Meyer, AUSA

[^1]: In 1996, Section 3181 was amended again to its present form, which
    includes the above portion as subsection (a) and adds subsections
    (b) and (c). [See]{.underline} 18 U.S.C.A. § 3181 (1999 supp.).

[^2]: Cheung incorrectly asserts that the United States has "never
    before entered into an agreement with a sub-sovereign entity,"
    [see]{.underline} Cheung Br. at 16. The Government's further
    research indicates that in 1935 the United States entered into an
    extradition treaty with the Free City of Danzig, which at that time
    was subject to the sovereignty of Poland. [See]{.underline} Treaty
    of Extradition between the United States of America and the Free
    City of Danzig, 46 Stat. 2282, T.S. 789 (1927), *in* 11 Bevans,
    [Treaties and Other International Agreements of the United States of
    America: 1776-1949]{.smallcaps}, at 206 (1974) (hereinafter
    "Bevans"); exchange of diplomatic notes with the Government of
    Poland recognizing the Free City of Danzig as the contracting party,
    49 Stat. 3256, T.S. 896 (1935), *in* 11 Bevans, *supra*, at 267
    (reproduced in the addendum to this brief hereto). The Government is
    not aware of any court challenge to the enforceability of the Danzig
    treaty, and it appears that the treaty terminated in approximately
    1945.