**99-2526**

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

**\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--**

**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**

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

**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 CONTENTS]{.underline}**

TABLE OF AUTHORITIES iii

REPRODUCTION OF STATUTES AT ISSUE v

ISSUE PRESENTED x

STATEMENT OF THE CASE 2

STATEMENT OF FACTS AND BACKGROUND 2

A. *Historical Background*

> *Legal Relationship Between Hong Kong and*

*The People's Republic of China* 3

*The Hong Kong Policy Act* 6

> *Evolution of Extradition Relationship*
>
> *with Hong Kong* 7

2.  

*Proceedings in This Case*

*The Charges Against Cheung* 10

> *Prior Proceedings* 12

SUMMARY OF ARGUMENT 14

ARGUMENT 15

I. THE DISTRICT COURT ERRED IN CONCLUDING THATTHERE WAS NO JURISDICTION
UNDER SECTION 3184 15

A. Legal Procedures Governing

Extradition Proceedings 15

B. The Magistrate Had Jurisdiction Under

Section 3184 17

1\. The Plain Language of Section 3184

Extends to the Extradition Treaty With the

the Government of Hong Kong 17

> 2\. The Hong Kong Policy Act Further Confirmsthe Scope of
>
> Section 3184 to Include This Case 24

3\. Section 3184 Should Be Construed in a Manner that Does Not Impede

the Conduct of Foreign Affairs 26

4\. Section 3184 Should Be Construed

> in a Manner that Does Not Raise a Significant Constitutional Question
> 30

5\. Even Assuming that Section 3184 Requires

that the Treaty Be With a Central

Foreign Government, This Condition

Is Satisfied in This Case 32

CONCLUSION 34

CERTIFICATE PER FED. R. APP. P. 32(A)(7)(c)

and CERTIFICATE OF SERVICE

**\
[TABLE OF AUTHORITIES]{.underline}**

*[CASES]{.underline}*

[Ardestani v. INS]{.underline}, 502 U.S. 129 (1991) 18, 23

[Arnett v. Kennedy]{.underline}, 416 U.S. 134 (1974) 31

[Austin v. Healey]{.underline}, 5 F.3d 598 (2d Cir. 1993) 15, 17

[Can v. United States]{.underline}, 14 F.3d 160 (2d Cir. 1994) 31

[Chuen v. Esperdy]{.underline}, 285 F.2d 353 (2d Cir. 1960) 30

[Erlenbaugh v. United States]{.underline}, 439 U.S. 239 (1972) 22

[Factor v. Laubenheimer]{.underline}, 290 U.S. 276 (1933) 28

[Federal Housing Admin. v. Darlington, Inc.]{.underline}*,* 358 U.S. 84

\(1958\) 25

[First National City Bank v. Banco Nacional de Cuba]{.underline}, 406
U.S.

759 (1972) 30

[Fong Yue Ting v. United States]{.underline}, 149 U.S. 698 (1893) 16

[Friends of the Earth v. Consolidated Rail Corp.]{.underline}, 768 F.2d
57 (2d Cir. 1985) 18

[Greene v. United States]{.underline}, 79 F.3d 1348 (2d Cir. 1996) 18,
23

[Helvering v. Stockholms Enskilda Bank]{.underline}, 293 U.S. 84 (1934)
22

[In re Extradition of Cheung]{.underline}, 968 F. Supp. 791 (D. Conn.
1997) 4

[Jones v. United States]{.underline}, 137 U.S. 202 (1890) 31

[Kahn Lucas Lancaster, Inc. v. Lark Int'l, Ltd.]{.underline}, 186 F.3d
210 (2d Cir. 1999) 15

[Lo Duca v. United States]{.underline}, 93 F.3d 1100 (2d Cir. 1996) 16,
17

[Oetjen v. Central Leather Co.]{.underline}, 246 U.S. 297, 302 (1918) 30

[Roadway Express, Inc. v. Piper]{.underline}, 447 U.S. 752 (1980) 24

[Spatola v. United States]{.underline}, 925 F.2d 615 (2d Cir. 1991) 18

[Terlinden v. Ames]{.underline}, 184 U.S. 270 (1902) 29

[Then v. Melendez]{.underline}, 92 F.3d 851 (9th Cir. 1996) 29

[Triestman v. United States]{.underline}, 124 F.3d 361 (2d Cir. 1997) 31

[U.S. ex rel. Saroop v. Garcia]{.underline}, 109 F.3d 165 (3d Cir. 1997)
29

[United States v. Dowty Woodville Polymer, Ltd.]{.underline}, 110 F.3d
861 (2d Cir. 1997) 20

[United States v. Mackin]{.underline}, 668 F.2d 122 (2d Cir. 1981) 24

[United States v. Schreiber]{.underline}, 191 F.3d 103 (2d Cir. 1999) 15

[United States v. Stafoff]{.underline}, 260 U.S. 477 (1923) 25, 26

[United States v. Wiltberger]{.underline}, 18 U.S. 76 (1820) 18

[Weinberger v. Rossi]{.underline}, 456 U.S. 25 (1982) 27

[Williams v. Insurance Co.]{.underline}, 38 U.S. (13 Pet.) 415 (1839) 31

*[STATUTES]{.underline}*

18 U.S.C. § 3181(a) 13

18 U.S.C. § 3184 1, 16

22 U.S.C. §§ 5701-32 8, 9, 13, 25

*[SECONDARY SOURCES]{.underline}*

Encyclopaedia Britannica (Hong Kong history summary)

*\<http:// www.britannica.
com/bcom/eb/article/7/0,5716,109237+1,00.html\>.* 3

**[REPRODUCTION OF STATUTORY PROVISIONS AT ISSUE IN THIS
CASE]{.underline}**

**[[Foreign Extradition Statutes]{.underline}]{.smallcaps}**

**18 U.S.C. § 3184**. **Fugitives from foreign country to United
States**

Whenever there is a treaty or convention for extradition between the
United States and any foreign government, or in cases arising under
section 3181(b), any justice or judge of the United States, or any
magistrate authorized so to do by a court of the United States, or any
judge of a court of record of general jurisdiction of any State, may,
upon complaint made under oath, charging any person found within his
jurisdiction, with having committed within the jurisdiction of any such
foreign government any of the crimes provided for by such treaty or
convention, or provided for under section 3181(b), issue his warrant for
the apprehension of the person so charged, that he may be brought before
such justice, judge, or magistrate, to the end that the evidence of
criminality may be heard and considered. Such complaint may be filed
before and such warrant may be issued by a judge or magistrate of the
United States District Court for the District of Columbia if the
whereabouts within the United States of the person charged are not known
or, if there is reason to believe the person will shortly enter the
United States. If, on such hearing, he deems the evidence sufficient to
sustain the charge under the provisions of the proper treaty or
convention, or under section 3181(b), he shall certify the same,
together with a copy of all the testimony taken before him, to the
Secretary of State, that a warrant may issue upon the requisition of the
proper authorities of such foreign government, for the surrender of such
person, according to the stipulations of the treaty or convention; and
he shall issue his warrant for the commitment of the person so charged
to the proper jail, there to remain until such surrender shall be made.

**18 U.S.C. § 3181. Scope and limitation of chapter**

\(a\) 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.

\(b\) The provisions of this chapter shall be construed to permit, in
the exercise of comity, the surrender of persons, other than citizens,
nationals, or permanent residents of the United States, who have
committed crimes of violence against nationals of the United States in
foreign countries without regard to the existence of any treaty of
extradition with such foreign government if the Attorney General
certifies, in writing, that‑‑

\(1\) evidence has been presented by the foreign government that
indicates that had the offenses been committed in the United States,
they would constitute crimes of violence as defined under section 16 of
this title; and

\(2\) the offenses charged are not of a political nature.

\(c\) As used in this section, the term \"national of the United
States\" has the meaning given such term in section 101(a)(22) of the
Immigration and Nationality Act (\> 8 U.S.C. 1101(a)(22)).

[[**United States - Hong Kong Policy Act of 1992**
**(excerpts)**]{.underline}]{.smallcaps}

**22 U.S.C. § 5701. Findings and declarations**

The Congress makes the following findings and declarations:

> **(1)** The Congress recognizes that under the 1984 Sino‑British

Joint Declaration:

**(A)** The People\'s Republic of China and the United Kingdom of Great
Britain and Northern Ireland have agreed that the People\'s Republic of
China will resume the exercise of sovereignty over Hong Kong on July 1,
1997. Until that time, the United Kingdom will be responsible for the
administration of Hong Kong.

**(B)** The Hong Kong Special Administrative Region of the People\'s
Republic of China, beginning on July 1, 1997, will continue to enjoy a
high degree of autonomy on all matters other than defense and foreign
affairs.

**(C)** There is provision for implementation of a \"one country, two
systems\" policy, under which Hong Kong will retain its current
lifestyle and legal, social, and economic systems until at least the
year 2047.

**(D)** The legislature of the Hong Kong Special Administrative Region
will be constituted by elections, and the provisions of the
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, as
applied to Hong Kong, shall remain in force.

**(E)** Provision is made for the continuation in force of agreements
implemented as of June 30, 1997, and for the ability of the Hong Kong
Special Administrative Region to conclude new agreements either on its
own or with the assistance of the Government of the People\'s Republic
of China.

**(2)** The Congress declares its wish to see full implementation of the
provisions of the Joint Declaration.

**(3)** The President has announced his support for the policies and
decisions reflected in the Joint Declaration.

**(4)** Hong Kong plays an important role in today\'s regional and world
economy. This role is reflected in strong economic, cultural, and other
ties with the United States that give the United States a strong
interest in the continued vitality, prosperity, and stability of Hong
Kong.

**(5)** Support for democratization is a fundamental principle of United
States foreign policy. As such, it naturally applies to United States
policy toward Hong Kong. This will remain equally true after June 30,
1997.

**(6)** The human rights of the people of Hong Kong are of great
importance to the United States and are directly relevant to United
States interests in Hong Kong. A fully successful transition in the
exercise of sovereignty over Hong Kong must safeguard human rights in
and of themselves. Human rights also serve as a basis for Hong Kong\'s
continued economic prosperity.

**§ 5702. Definitions**

For purposes of this chapter‑‑

**(1)** the term \"Hong Kong\" means, prior to July 1, 1997, the British
Dependent Territory of Hong Kong, and on and after July 1, 1997, the
Hong Kong Special Administrative Region of the People\'s Republic of
China;

**(2)** the term \"Joint Declaration\" means the Joint Declaration of
the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of the People\'s Republic of China on the
Question of Hong Kong, done at Beijing on December 19, 1984; and

**(3)** the term \"laws of the United States\" means provisions of law
enacted by the Congress.

**§ 5711. Bilateral ties between United States and Hong Kong**

It is the sense of the Congress that the following, which are based in
part on the relevant provisions of the Joint Declaration, should be the
policy of the United States with respect to its bilateral relationship
with Hong Kong:

**(1)** The United States should play an active role, before, on, and
after July 1, 1997, in maintaining Hong Kong\'s confidence and
prosperity, Hong Kong\'s role as an international financial center, and
the mutually beneficial ties between the people of the United States and
the people of Hong Kong.

**(2)** The United States should actively seek to establish and expand
direct bilateral ties and agreements with Hong Kong in economic, trade,
financial, monetary, aviation, shipping, communications, tourism,
cultural, sport, and other appropriate areas.

**(3)** The United States should seek to maintain, after June 30, 1997,
the United States consulate‑general in Hong Kong, together with other
official and semi‑official organizations, such as the United States
Information Agency American Library.

**(4)** The United States should invite Hong Kong to maintain, after
June 30, 1997, its official and semi‑official missions in the United
States, such as the Hong Kong Economic & Trade Office, the Office of the
Hong Kong Trade Development Council, and the Hong Kong Tourist
Association. The United States should invite Hong Kong to open and
maintain other official or semi‑official missions to represent Hong Kong
in those areas in which Hong Kong is entitled to maintain relations on
its own, including economic, trade, financial, monetary, aviation,
shipping, communications, tourism, cultural, and sport areas.

**(5)** The United States should recognize passports and travel
documents issued after June 30, 1997, by the Hong Kong Special
Administrative Region.

**(6)** The resumption by the People\'s Republic of China of the
exercise of sovereignty over Hong Kong after June 30, 1997, should not
affect treatment of Hong Kong residents who apply for visas to visit or
reside permanently in the United States, so long as such treatment is
consistent with the Immigration and Nationality Act \[8 U.S.C.A. § 1101
et seq.\].

**§ 5712. Participation in multilateral organizations, rights under
international agreements, and trade status**

It is the sense of the Congress that the following, which are based in
part on the relevant provisions of the Joint Declaration, should be the
policy of the United States with respect to Hong Kong after June 30,
1997:

**(1)** The United States should support Hong Kong\'s participation in
all appropriate multilateral conferences, agreements, and organizations
in which Hong Kong is eligible to participate.

**(2)** The United States should continue to fulfill its obligations to
Hong Kong under international agreements, so long as Hong Kong
reciprocates, regardless of whether the People\'s Republic of China is a
party to the particular international agreement, unless and until such
obligations are modified or terminated in accordance with law.

**(3)** The United States should respect Hong Kong\'s status as a
separate customs territory, and as a WTO member country (as defined in
section 3501(10) of Title 19), whether or not the People\'s Republic of
China participates in the World Trade Organization (as defined in
section 3501(8) of Title 19).

**§ 5721. Continued application of United States law**

\(a\) In general

Notwithstanding any change in the exercise of sovereignty over Hong
Kong, the laws of the United States shall continue to apply with respect
to Hong Kong, on and after July 1, 1997, in the same manner as the laws
of the United States were applied with respect to Hong Kong before such
date unless otherwise expressly provided by law or by Executive order
under section 5722 of this title.

\(b\) International agreements

For all purposes, including actions in any court in the United States,
the Congress approves the continuation in force on and after July 1,
1997, of all treaties and other international agreements, including
multilateral conventions, entered into before such date between the
United States and Hong Kong, or entered into before such date between
the United States and the United Kingdom and applied to Hong Kong,
unless or until terminated in accordance with law. If in carrying out
this subchapter, the President determines that Hong Kong is not legally
competent to carry out its obligations under any such treaty or other
international agreement, or that the continuation of Hong Kong\'s
obligations or rights under any such treaty or other international
agreement is not appropriate under the circumstances, such determination
shall be reported to the Congress in accordance with section 5731 of
this title.

**[STATEMENT OF ISSUE PRESENTED FOR REVIEW]{.underline}**

Whether the extradition magistrate had jurisdiction under 18 U.S.C. §
3184 to conduct extradition certification proceedings pursuant to a
request for the surrender of a fugitive pursuant to the extradition
treaty between the Government of the United States and the Government of
Hong Kong.

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

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

**BRIEF FOR THE UNITED STATES OF AMERICA**

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

This appeal concerns the enforceability of an international extradition
treaty between the United States and the Government of the Hong Kong
Special Administrative Region of the People's Republic of China
(hereinafter the "Government of Hong Kong"). Concluding that the
Government of Hong Kong does not constitute "any foreign government"
within the meaning of the federal extradition statute, 18 U.S.C. § 3184,
the district court has disabled the United States from complying with
its international treaty obligations. The district court's ruling runs
contrary to the plain and broadly inclusive language of the extradition
statute, disregards the clearly expressed intent of Congress, and
impermissibly intrudes upon the conduct of this nation's foreign
affairs. The ruling should be reversed and the judgment vacated.

**[STATEMENT OF THE CASE]{.underline}**

On June 25, 1998, appellee John Cheung was arrested in Connecticut on a
complaint for extradition pursuant to a request for surrender under the
terms of an extradition treaty between the United States and the
Government of Hong Kong.

After a hearing and by written order dated February 5, 1999, United
States Magistrate Joan G. Margolis entered an order certifying Cheung's
extraditability to the Government of Hong Kong. \[Joint Appendix ("JA")
at 13-22\]

On February 25, 1999, Cheung filed a petition for a writ of habeas
corpus. On September 1, 1999, the district court (Peter C. Dorsey, J.)
issued a ruling granting Cheung's petition for habeas corpus and
ordering Cheung's release forthwith. \[JA 6-12\] On September 2, 1999,
the district court entered judgment in conformity with its ruling. \[JA
5\] The United States filed a timely notice of appeal from the ruling
and judgment on September 14, 1999. \[JA 4\]

**[STATEMENT OF FACTS AND BACKGROUND]{.underline}**

This appeal arises from the request of the Government of Hong Kong for
the extradition of appellee John Cheung in the aftermath of the
reversion in sovereignty over Hong Kong from the United Kingdom to the
People's Republic of China. To provide a context for the issue in this
appeal, it is necessary first to review the legal status of Hong Kong
and the evolution and development of the extradition relationship
between the United States and Hong Kong, [see]{.underline} Part A,
*infra*, followed by a review of the prior proceedings in this case,
[see]{.underline} Part B, *infra*.

*A. [Historical Background]{.underline}*

*Legal Relationship Between Hong Kong and*

*[the People's Republic of China]{.underline}*

Since ancient times, the island of Hong Kong belonged to mainland China.
The island was little more than a small fishing village until Chinese
and British trade in the 1840\'s turned it into a regional mercantile
center. Following the Opium Wars in the mid-19th century, China ceded
Hong Kong to Great Britain, and in 1898 agreed to lease to Great Britain
the territory of Hong Kong and a surrounding area, the New Territories,
for a period of 99 years until June 30, 1997. [See]{.underline} Basic
Law of the Hong Kong Special Administrative Region of the People's
Republic of China, at ii (Preamble) (hereinafter referred to as the
"Basic Law" and reproduced in full in the Joint Appendix at 27-46);
Encyclopaedia Britannica (Hong Kong history summary) *[\<http://
www.britannica.
com/bcom/eb/article/7/0,5716,109237+1,00.html\>]{.underline}.*

As the lease period ran toward expiration, the United Kingdom and the
PRC initiated negotiations to arrange for the return of sovereignty over
Hong Kong to the PRC. On December 19, 1984, the governments signed an
agreement, the Joint Declaration on the Question of Hong Kong, providing
for the future return of Hong Kong to the sovereignty of the PRC.
[See]{.underline} Basic Law at ii (Preamble) \[JA 28\]. Several years
later, on April 4, 1990, the PRC promulgated a framework for the
governance of Hong Kong upon its return to PRC sovereignty \-- the Basic
Law of the Hong Kong Special Administrative Region of the People's
Republic of China.

The Basic Law recognizes "the principle of 'one country, two systems,'"
specifically that "the socialist system and policies \[of the PRC\]
shall not be practised in the Hong Kong Special Administrative Region,
and the previous capitalist system and way of life shall remain
unchanged for 50 years." [Id.]{.underline} (Preamble and Art. 5) \[JA
28-29\]. To preserve this distinction between the systems of governance,
the Basic Law further provides for the creation of a "Hong Kong Special
Administrative Region". [Id.]{.underline} (Preamble) \[JA 27\]. Though
"an inalienable part of the People's Republic of China," the Hong Kong
Special Administrative Region is "a local administrative region of the
People's Republic of China, \[and\] shall enjoy a high degree of
autonomy." [Id.]{.underline} (Arts. 1, 12) \[JA 29-30\].

The Basic Law specifically recognizes the creation of a "government" of
the Hong Kong Special Administrative Region: "The Government of the Hong
Kong Special Administrative Region shall be the executive authorities of
the Region." [See]{.underline} [id.]{.underline} (Art. 59) \[JA 35\].
The Basic Law further enumerates specific "powers and functions" of the
"Government of the Hong Kong Special Administrative Region".
[See]{.underline} [id.]{.underline} (Art. 62) \[JA 35\].

The Basic Law grants limited authority for the Government of Hong Kong
to engage in foreign relations. It provides that "\[w\]ith the
assistance or authorization of the Central People's Government \[of the
PRC\], the Government of the Hong Kong Special Administrative Region may
make appropriate arrangements with foreign states for reciprocal
juridical assistance." [Id.]{.underline} (Art. 96) \[JA 38\].
"International agreements to which the People's Republic of China is not
a party but which are implemented in Hong Kong may continue to be
implemented in the Hong Kong Special Administrative Region."
[Id.]{.underline} (Art. 153) \[JA 44\].

Not only does the Basic Law recognize the continuation of the laws
previously in force in Hong Kong, but it also recognizes the creation of
"an independent judicial power". [See]{.underline} [id.]{.underline}
(Arts. 8, 13-19); [see]{.underline} [also]{.underline} [id.]{.underline}
(Arts. 80-96 (describing judicial branch) \[JA 29-30, 37\]. "The
Department of Justice of the Hong Kong Special Administrative Region
shall control criminal prosecutions, free from any interference," and
"\[t\]he courts of the Hong Kong Special Administrative Region shall
exercise judicial power independently, free from any interference."
[Id.]{.underline} (Art. 63), (Art. 84) \[JA 30, 37\].

The Basic Law further provides for broad protection of individual
rights, including among others "the right to vote," "freedom of speech,
of the press and of publication; freedom of association, of assembly, of
procession and of demonstration." [See]{.underline} [id.]{.underline}
(Arts. 26-27) \[JA 32\]. Moreover, "\[n\]o Hong Kong resident shall be
subjected to arbitrary or unlawful arrest, detention or imprisonment."
[See]{.underline} [id.]{.underline} (Art. 28)\[JA 32\]. "The principle
of trial by jury previously practised in Hong Kong shall be maintained,"
and "\[a\]nyone who is lawfully arrested shall have the right to a fair
trial by the judicial organs without delay and shall be presumed
innocent until convicted by the judicial organs." [See]{.underline}
[id.]{.underline} (Arts. 86-87) \[JA 37\].

*[The Hong Kong Policy Act]{.underline}*

In order to encourage the autonomous functioning of Hong Kong apart from
the PRC, Congress enacted the United States - Hong Kong Policy Act of
1992 (hereinafter "the Hong Kong Policy Act"), 22 U.S.C. §§ 5701-32,
expressing its recognition and acceptance of the then-pending transfer
of sovereignty over Hong Kong to the PRC and, in particular, "the
ability of the Hong Kong Special Administrative Region to conclude new
agreements either on its own or with the assistance of the Government of
the People's Republic of China." 22 U.S.C. § 5701(1)(E).

Thus, the Act encourages the United States "to seek to establish and
expand direct bilateral ties and agreements with Hong Kong" in a number
of enumerated areas and other "appropriate areas". 22 U.S.C. § 5711(2).
Declaring its intention that "\[t\]he United States should continue to
fulfill its obligations to Hong Kong under international agreements, so
long as Hong Kong reciprocates, regardless of whether the People's
Republic of China is a party to the particular international agreement,"
22 U.S.C. § 5712(2), Congress approved "\[f\]or all purposes, including
actions in any court in the United States," the continuation in force of
existing treaties or agreements with Hong Kong after the reversion of
sovereignty to the PRC. 22 U.S.C. § 5721(b).

Correlatively, as to the application of domestic statutes to
post-reversion Hong Kong, Congress specifically provided that such laws
should continue to apply as they had before reversion:

> Notwithstanding any change in the exercise of sovereignty over Hong
> Kong, the laws of the United States shall continue to apply with
> respect to Hong Kong, on and after July 1, 1997, in the same manner as
> the laws of the United States were applied with respect to Hong Kong
> before such date unless otherwise expressly provided by law or
> Executive order under Section 5722 of this title.

22 U.S.C. § 5721(a); [see]{.underline} [also]{.underline} 22 U.S.C. §
5702(3) ("the term 'laws of the United States' means provisions of law
enacted by the Congress").

*[Evolution of Extradition Relationship with Hong Kong]{.underline}*

From January 21, 1977, to July 1, 1997, there was in full force and
effect between the United States and the United Kingdom an extradition
treaty applicable to the territory of Hong Kong.[^1] Despite the fact
that, as provided in the Hong Kong Policy Act, 22 U.S.C. § 5721(b),
Congress was content to continue in force the then-existing extradition
treaty even after reversion, "it was the uniform view of the United
Kingdom, the Hong Kong Government, and the People's Republic of China
that it was not appropriate to continue a treaty we had with the United
Kingdom as applied to Hong Kong; and the preference was to negotiate a
new treaty, as they have done with a number of other countries." S.
Exec. Rept. 105-2, at 39 (Aug. 19, 1997) (statement of Jamison S. Borek,
Deputy Legal Adviser, U.S. Department of State) (hereinafter referred to
as "Senate Report") \[JA 91\].

Accordingly, negotiations commenced toward a new treaty, culminating on
December 20, 1996, with the signing of the treaty by representatives
from the United States and Hong Kong. \[JA 72\] The PRC expressly
approved both Hong Kong's negotiation and signing of the treaty:

> Because of Hong Kong's unique status, the Agreement was signed by Hong
> Kong with the "authorization" of its sovereign nation (People's
> Republic of China (PRC)) following a negotiation conducted under the
> auspices of the "Joint Liaison Group" (JLG) established by the
> Sino-British Joint Declaration on the Question of Hong Kong. The
> People's Republic of China approved the text of the Agreement in
> September, permitting the U.S. and Hong Kong to sign in December. The
> Government of the People's Republic of China transmitted a diplomatic
> note to the United States on March 31, 1997, affirming that the
> Agreement will continue to apply to the Hong Kong Special
> Administrative Region (HKSAR) after July 1, 1997, when Hong Kong
> formally reverted to the PRC.

Senate Report at 2 \[JA 73\]; [see]{.underline} [also]{.underline}
[id.]{.underline} at 11 (further description of negotiation process and
specific authorization and approval of terms by PRC) \[JA 77\].

On May 3, 1997, the President transmitted the treaty to the Senate for
its consideration. With the transmittal letter, the President included a
letter of submittal from the Secretary of State noting that the
agreement was a "treaty" for purposes of U.S. law:

> Although entitled an "Agreement" to reflect Hong Kong's unique
> juridical status, for purposes of U.S. law, the instrument will be
> considered to be a treaty, and therefore I am submitting it to you for
> transmittal to the Senate for advice and consent to ratification.

S. Treaty Doc. No. 105-3, at v (Mar. 3, 1997) (reprinted at 1996 WL
799154) \[JA 66\].

After hearings and consideration, the treaty was favorably reported out
of the Senate Committee on Foreign Relations to the full Senate on
August 19, 1997. In its report, the Committee left no doubt about the
document's "treaty" status and its validity as a basis for extradition
proceedings under 18 U.S.C. § 3184:

> This instrument is being submitted to the Senate for advice and
> consent to ratification, and, upon ratification and entry into force,
> it will be a treaty for purposes of U.S. law. At the request of the
> Hong Kong delegation, and in keeping with other agreements for the
> surrender of fugitives Hong Kong has concluded with other countries,
> the instrument is entitled an "agreement" rather than "treaty".
> Similarly, the instrument is described as one for the "surrender" of
> fugitives instead of for "extradition," at the request of Hong Kong.
> The United States accommodated the Hong Kong delegation's semantic
> preferences, but [this agreement is nevertheless intended to be a
> "treaty or convention for extradition between the United States and a
> foreign government" for purposes of Title 18, United States Code,
> Section 3184]{.underline}.

Senate Report at 11 \[JA 77\] (emphasis added).

Acknowledging that "the agreement is with a sub-sovereign entity, not a
sovereign state," and that "\[s\]uch an arrangement was not the norm,"
the Committee stated that this raised a "fundamental question about
whether the treaty partner has the power to enter such an agreement," a
question resolved in the affirmative:

> It is clear that Hong Kong does; the Agreement has been authorized by
> both the previous sovereign (the United Kingdom) and the current
> sovereign (the People's Republic of China).

Senate Report at 8 \[JA 76\].

The treaty was approved by two-thirds vote of the Senate on October 23,
1997. [See]{.underline} 143 Cong. Rec. S11165-02, 1997 WL 660213 (full
Senate) \[JA 106\]. Passage of the treaty was made subject to the
understanding that persons surrendered to Hong Kong could not in turn be
transferred to the PRC without the person's consent. [Id.]{.underline}
The treaty entered into force on January 21, 1998, and is reproduced in
full in the Joint Appendix. \[JA 47-63\]

B. *[Proceedings in This Case]{.underline}*

*[The Charges Against Cheung]{.underline}*

The Government of Hong Kong seeks Cheung's extradition on the basis of
an arrest warrant charging him with 33 \"offences\" (counts) of
obtaining property by deception, in violation of Section 17(1) of the
Theft Ordinance, Laws of Hong Kong Special Administrative Region
("HKSAR") and 1 offence of evasion of liability by deception, in
violation of Section 18(B)(1)(b) of the Theft Ordinance, Laws of HKSAR.

The arrest warrant was issued based on evidence of Cheung\'s criminal
fraud occurring from approximately June to August 1994 in connection
with his ownership and operation of a Hong Kong consumer electronics
retail chain, A-1 Electronics Company (\"A-1\"). During this period,
Cheung dishonestly obtained computer supply goods in the value of HK\$
1,957,629 from various wholesale suppliers on the basis that payment
would be made as of the dates set forth on a series of post-dated checks
or within a short time thereafter, when in fact he had no intention of
making such payment. After accumulating this debt, Cheung and his family
suddenly and without notice to his creditors or employees left Hong Kong
to fly to Canada on August 14, 1994, before eventually resettling in
Greenwich, Connecticut.

> During the weeks before his flight from Hong Kong, Cheung

engaged in numerous unusual bank transactions and diverted funds to a
U.S. bank account and the account of his mother-in-law. After his
disappearance, the authorities searched A-1\'s three defunct store
locations but were unable to locate the goods sold to A-1 by the
suppliers and that are the subject of the charges against Cheung. The
post-dated checks that he furnished to his suppliers were dishonored
when presented, and the suppliers were left unpaid. [See]{.underline}
[In re Extradition of Cheung]{.underline}, 968 F. Supp. 791 (D. Conn.
1997) (summarizing offense conduct).

*[Prior Proceedings]{.underline}*

On June 25, 1998, Cheung was arrested in Connecticut on a complaint for
extradition pursuant to the new treaty between the United States and the
Government of Hong Kong.[^2] After a hearing and by written order dated
February 5, 1999, United States Magistrate Joan G. Margolis entered an
order certifying Cheung's extraditability to the Government of Hong
Kong, concluding in relevant part that there was probable cause to
believe that Cheung committed the offenses charged and that there was
jurisdiction to hold Cheung for certification proceedings under 18
U.S.C. § 3184, notwithstanding Cheung's argument that the statute
required the extradition treaty to be directly with the government of
the People's Republic of China rather than with the sub-sovereign
Government of Hong Kong. \[JA at 13-22\]

On February 25, 1999, Cheung filed a petition for a writ of habeas
corpus, and the matter was assigned to Senior United States District
Judge Peter C. Dorsey, who considered the arguments of the parties on
the papers without a hearing.

On September 1, 1999, the district court granted Cheung's petition for
habeas corpus and ordered Cheung's release forthwith. The district
court's ruling concluded in substance that Section 3184 did not extend
jurisdiction for certification proceedings to requests made under a
treaty with a foreign government that was not the central government of
a foreign country. \[JA 6-12\] Although acknowledging that no such
requirement appeared on the face of Section 3184 itself, it reasoned
that Section 3184 must be read in light of another statutory provision,
18 U.S.C. § 3181(a), which it in turn interpreted to impose a
requirement that any extradition treaty be directly with the government
of a foreign country. The court further concluded that the United
States - Hong Kong Policy Act of 1992, 22 U.S.C. § § 5701-32, did not
warrant a contrary interpretation of Section 3184 and that it made no
difference that the treaty was in fact approved by the PRC. This appeal
followed.

**[SUMMARY OF ARGUMENT]{.underline}**

The district court interpreted the foreign extradition statute, 18
U.S.C. § 3184, to confer jurisdiction for extradition proceedings only
where the United States has entered into an extradition treaty directly
with the central government of a foreign country and not, as here, where
the United States has entered into a treaty with a sub-sovereign
government, the Government of Hong Kong, that is acting with the express
approval of its sovereign, the Government of the People's Republic of
China. The court's ruling is erroneous for several reasons.

FIRST, and most significantly, the ruling runs contrary to the plain
language of Section 3184. Section 3184 extends jurisdiction over
extradition requests involving a treaty with "[any]{.underline} foreign
government," without respect to whether such a foreign government is a
country's central government or subordinate to any other government.
Nothing in the legislative history or other extradition statutes
detracts from the plain meaning of "any foreign government".

SECOND, even assuming the term "any foreign government" to be ambiguous
on its face, it must be construed to include the Government of Hong
Kong. In enacting the Hong Kong Policy Act, Congress has expressed its
clear intent that the United States enter treaties directly with the
Government of Hong Kong and that domestic statutes such as Section 3184
shall continue to apply to post-reversion Hong Kong in the same manner
as they were applied prior to reversion. A contrary interpretation of
Section 3184 should be avoided, because it intrudes upon the
constitutional authority of the political branches to choose with whom
the United States shall deal as a treaty partner and impedes the conduct
of foreign affairs.

THIRD, even assuming that the district court were correct that Section
3184 confers jurisdiction only where there is a treaty with the national
government of a foreign country, the People's Republic of China in fact
approved this treaty, and this approval satisfies any purported
requirement that the treaty be with the national government of a foreign
country.

**[ARGUMENT]{.underline}**

I. THE DISTRICT COURT ERRED IN CONCLUDING THAT

[THERE WAS NO JURISDICTION UNDER SECTION 3184]{.underline}

This case involves a single, purely legal issue of statutory
interpretation, for which the standard of review is *de novo*.
[See]{.underline} [United States v. Schreiber]{.underline}, 191 F.3d
103, 104 (2d Cir. 1999); [Kahn Lucas Lancaster, Inc. v. Lark Int'l,
Ltd.]{.underline}, 186 F.3d 210, 215 (2d Cir. 1999).

A. [Legal Procedures Governing Extradition Proceedings]{.underline}

\"Extradition is the process by which a person charged with or convicted
of a crime under the law of one state is arrested in another state and
returned for trial and punishment.\" [Austin v. Healey]{.underline}, 5
F.3d 598, 600 (2d Cir. 1993) (internal quotations omitted). The
extradition process is "primarily a function of the executive branch,
and the judiciary has no greater role than that mandated by the
Constitution, or granted to the judiciary by Congress."
[Id.]{.underline} Indeed, prior to 1848, "extradition was largely a
matter committed to the discretion of the Executive Branch" without the
involvement of judicial officers. [Lo Duca v. United
States]{.underline}, 93 F.3d 1100, 1103 & n.2 (2d Cir. 1996) (executive
branch may surrender fugitive "'when no provision has been made by
treaty or by statute for an examination of the case by a judge or
magistrate'") (quoting [Fong Yue Ting v. United States]{.underline}, 149
U.S. 698, 714 (1893)).

In 1848, however, Congress enacted the federal extradition statute,
presently codified at 18 U.S.C. § 3184, to prescribe a "legal framework
for extradition proceedings involving fugitives found in the United
States," in particular to create a regularized procedure for limited
judicial review of foreign requests for extradition of fugitives. [Lo
Duca]{.underline}, 93 F.3d at 1103. To that end, Section 3184 authorizes
a judge, upon the filing of a sworn complaint setting forth the legal
basis for extradition, to issue an arrest warrant for the fugitive and
to hear and consider evidence in support of the extradition request. In
general, if the evidence is sufficient to establish probable cause to
believe that the fugitive has committed an extraditable offense, the
judge must issue a certificate of extraditability to the Secretary of
State, who may in her discretion decide whether to surrender the
fugitive to the requesting government. [See]{.underline} 18 U.S.C. §
3184 (reproduced in full at page v, *supra*); [Lo Duca]{.underline}, 93
F.3d at 1103-04; [Austin]{.underline}, 5 F.3d at 603.

Because the judicial officer does not act as an Article III judge, no
direct appeal lies from the order of the extradition magistrate
certifying extraditability. [See]{.underline} [Austin]{.underline}, 5
F.3d at 603. Instead, as in this case, the fugitive may seek collateral
relief by the filing of a petition for writ of habeas corpus.
[See]{.underline} [Spatola v. United States]{.underline}, 925 F.2d 615,
617 (2d Cir. 1991) (internal quotations omitted).

B. [The Magistrate Had Jurisdiction Under Section 3184]{.underline}

1\. The Plain Language of Section 3184 Extends to the

[Extradition Treaty With the Government of Hong Kong]{.underline}

This Court has recognized that the words of a statute are of "paramount
importance" and "generally dispositive" in the interpretation of a
statute. [Greene v. United States]{.underline}, 79 F.3d 1348, 1356 (2d
Cir. 1996). "The case must be a strong one indeed, which would justify a
Court in departing from the plain meaning of words \... in search of an
intention which the words themselves did not suggest.\" [United States
v. Wiltberger]{.underline}, 18 U.S. 76, 95‑96 (1820) (Marshall, C.J.);
[see]{.underline} [also]{.underline} [Ardestani v. INS]{.underline}, 502
U.S. 129, 135 (1991) (noting "strong presumption that the plain language
of the statute expresses congressional intent"); [Friends of the Earth
v. Consolidated Rail Corp.]{.underline}, 768 F.2d 57, 62 (2d Cir. 1985)
(same).

Here the district court concluded that Section 3184 does not confer
jurisdiction in cases where an extradition treaty is not with "the
government of a foreign country alone". \[JA 7\] This conclusion cannot
be reconciled with the plain language of the statute, which provides for
its applicability, among other situations, "\[w\]henever there is a
treaty or convention for extradition between the United States and
*[any]{.underline}* foreign government." 18 U.S.C. § 3184 (emphasis
added). The relevant inquiry, therefore, is whether the Government of
Hong Kong constitutes "any foreign government." It not disputable that
the Government of Hong Kong is both "foreign" and is a "government".
[See]{.underline} Basic Law (Arts. 59 & 62) (recognizing Government of
Hong Kong and specifying its powers) \[JA 35\] It follows that the
Government of Hong Kong is within the definition of "any foreign
government", and therefore that Section 3184 confers jurisdiction over
requests made under the extradition treaty with the Government of Hong
Kong.

Conceding that the Government of Hong Kong is a "foreign government",
the district court did not discuss the significance of the word "any" in
the term "any foreign government". Instead, it replied "\[t\]hat HKSAR
\[the Hong Kong Special Administrative Region\] is a foreign government
begs the question, which really asks, \[the\] government of *what*?"
\[JA 8\] But such a "question" is not "begged" by the terms of Section
3184. Section 3184 does not further define, much less restrict, the
meaning of the term "any foreign government". Congress chose the term
"[any]{.underline}" to modify the term "foreign government". It did not
say "national" foreign government. It did not say "central" foreign
government. It did not say "fully autonomous" foreign government. Any
means any.

Rather than discussing the effect of the term "any", the district court
turned to the language of *another* statutory provision, 18 U.S.C. §
3181(a), and, in particular, that statute's use of a similar but
different term \-- "*[such]{.underline}* foreign government":

§ 3181. Scope and limitation of chapter

> \(a\) The provisions of this chapter relating to the surrender of
> persons who have committed crimes *[in foreign countries]{.underline}*
> shall continue in force only during the existence of any treaty of
> extradition with *[such foreign government]{.underline}*.

(emphasis added). The district court concluded that the term "'such
foreign government' refers to the government of the foreign country
alone," and that, in light of the Section 3181\'s title ("Scope and
limitation of chapter"), this interpretation of "such foreign
government" in Section 3181(a) controls the interpretation of "any
foreign government" in Section 3184. \[JA 7\] This attenuated analysis
fails for several reasons.

To begin with, notwithstanding the district court's heavy reliance on
the title labeling of Section 3181, it is axiomatic that the headings
and titles of statutory code provisions are entitled to little
interpretive weight. [See]{.underline} [United States v. Dowty Woodville
Polymer, Ltd.]{.underline}, 110 F.3d 861, 866 (2d Cir.
1997)(\"\[h\]eadings and titles are not meant to take the place of the
detailed provisions of the \[statutory\] text\[;\] \[n\]or are they
necessarily designed to be a reference guide or a synopsis\").

Of greater significance is the fact that Congress used different
modifiers for the term "foreign government" \-- "such" in Section
3181(a), and "any" in Section 3184. The fact that Congress chose
different language dispels any inference that Congress intended Section
3181(a) to control interpretation of dissimilar language in Section
3184.

In any event, even assuming that the interpretation of the term "such
foreign government" in Section 3181(a) should control the interpretation
of the term "any foreign government" in Section 3184, the language of
Section 3181(a) itself falls well short of restricting the term "foreign
government" to only the central or national government of a foreign
country. Section 3181(a) has nothing to say about the specific identity
or capacity of the foreign government with whom the United States
chooses to have a treaty. Its reference to "foreign countries" reflects
a concern only with the place where crimes are committed, without
further suggesting that the contracting treaty partner must be no less
than the central government of a foreign country. Far from purporting to
prescribe eligibility requirements for what types of foreign governments
with whom the United States may have an extradition treaty, Section
3181(a) is directed to a different purpose of requiring there to be some
treaty in place before the United States surrenders fugitives abroad --
in other words, that the United States not engage in the *ad hoc*
surrender of fugitives in the absence of some formal extradition
relationship (or apart from the strictly limited circumstances specified
in the next subsection, 18 U.S.C. § 3181(b), when a fugitive may be
surrendered "in the exercise of comity \... without regard to the
existence of any treaty of extradition with such foreign government").

Given this independent purpose of the statute, the district court
wrongly concluded that "the Government \... would render § 3181
meaningless in this case." \[JA 7\] [See]{.underline} [Erlenbaugh v.
United States]{.underline}, 439 U.S. 239, 245 & n. 12 (1972) (declining
to apply *in pari materia* construction rule to create statutory
exception on basis of wording from different statutory provision not
intended to serve same purpose); [Helvering v. Stockholms Enskilda
Bank]{.underline}, 293 U.S. 84, 86 (1934) (in view of different purposes
of statutory provisions, term "obligations" does not have same meaning
in different sections of Revenue Act of 1926).

It would have been a simple matter for Congress simply to say: "Any
extradition treaty must be with the central government of a foreign
country." But Congress did not do so.

Ironically, the pivotal consideration of the district court's ruling was
its concern for giving some meaning to the word "such" in the term "such
foreign government" in Section 3181(a), in deference to the "axiom\[\]
that construction of a statute must give meaning to every word in the
statute." \[JA 9\] Yet "the statute" at issue in this case is Section
3184, not Section 3181(a). Indeed, had the district court declined to
embark on an exploration of another statute and applied its axiom to the
term "any" in Section 3184, it would necessarily have concluded that
Congress meant what it said when it conferred jurisdiction in the case
of a treaty with "any" foreign government in Section 3184.

Without citing or discussing any legislative history, the district court
expressed its opinion that it was "highly unlikely that Congress
intended to grant jurisdiction to extradite foreign nationals to
subsovereign regions of foreign countries when it enacted § 3184 more
than 150 years ago." \[JA 9\] But this approach misapprehends the
appropriate scope of the interpretive inquiry. A court's duty is not to
speculate about what Congress may or may not have intended but, first,
to construe the plain language of the statutory provision at issue and
only then, in the exceptional case, to ascertain whether the actual
evidence of legislative history clearly defeats a literal reading of the
statute's terms. [See]{.underline}, [e.g.]{.underline}, [Ardestani v.
INS]{.underline}, 502 U.S. at 135-36 (language of statute "rebutted only
in rare and exceptional circumstances when a contrary legislative intent
is *[clearly expressed]{.underline}*") (emphasis added; internal
quotations and citations omitted); [Greene v. United
States]{.underline}, 79 F.3d at 1356 (must be strong "evidence" of
contrary legislative history).

As rare as it may be for the United States to enter into a treaty with a
sub-sovereign foreign government, nothing in the legislative history of
Section 3184 suggests that Congress intended to exclude such an
arrangement.[^3] Moreover, the district court's interpretation of the
statute serves no apparent purpose or policy underlying Section 3184.
[See]{.underline} [Roadway Express, Inc. v. Piper]{.underline}, 447 U.S.
752, 761 (1980) (rejecting argument to expand meaning of "costs" in
litigation award statute where not supported by legislative history and
"statutory interpretation proposed by \[party\] not only runs counter to
the apparent intent of Congress in 1813 and 1853, but also could
introduce into the statute distinctions unrelated to its goal"). Where
the President and the Senate have independently satisfied themselves
that a particular foreign government is a competent extradition treaty
partner, there is no reason to suppose that the Congress of 1848
endeavored to disable the United States from complying with its future
treaty obligations.

2\. The Hong Kong Policy Act Further Confirms

[the Scope of Section 3184 to Include This Case]{.underline}

Even assuming uncertainty in the language of Section 3184, any ambiguity
must be construed in favor of the treaty, in light of the Hong Kong
Policy Act, an enactment designed in part to prevent the disruption of
the type of legal ruling issued by the district court in this case.
"Subsequent legislation which declares the intent of an earlier law is
not, of course, conclusive in determining what the previous Congress
meant, \[b\]ut the later law is entitled to weight when it comes to the
problem of construction." [Federal Housing Admin. v. Darlington,
Inc.]{.underline}*,* 358 U.S. 84, 90 (1958); [accord]{.underline}
[United States v. Stafoff]{.underline}, 260 U.S. 477, 480 (1923).

The Hong Kong Policy Act bears on this case in two respects. First, in
order to encourage Hong Kong's autonomy, it expresses a strong
preference for direct bilateral agreements between the United States and
the Government of Hong Kong. It not only acknowledges "the ability of
the Hong Kong Special Administrative Region to conclude new agreements
either [on its own]{.underline} or with the assistance of the Government
of the People's Republic of China," 22 U.S.C. § 5701 (1)(E) (emphasis
added), but also that "\[t\]he United States should [actively
seek]{.underline} to establish and expand [direct]{.underline} bilateral
ties and agreements with Hong Kong in \... appropriate areas." 22 U.S.C.
§ 5711(2). Here, the district court required that the United States have
entered into a treaty directly with the PRC or not at all. \[JA 11\]
Such a requirement is diametrically opposed to the purpose of Congress
in enacting the Hong Kong Policy Act.

Second, the Act provides that "the laws of the United States [shall
continue to apply]{.underline} with respect to Hong Kong, on and after
July 1, 1997, in the same manner as the laws of the United States were
applied with respect to Hong Kong before such date." 22 U.S.C. § 5721(a)
(emphasis added); [see]{.underline} 22 U.S.C. § 5702(3) (defining "laws
of the United States" to mean domestic statutes). In other words, the
Act provides that domestic statutes \-- such as Section 3184 \-- must
apply in the same manner to Hong Kong as it did prior to reversion and
without regard to Hong Kong's new political status. [See]{.underline}
[United States v. Stafoff]{.underline}, 260 U.S. at 480 (Holmes, J.)
(giving effect to later-enacted statute that provided in relevant part
that penalties under an earlier statute "shall be and continue in
force", noting that "\[t\]he form of words is not material when Congress
manifests its will that certain rules shall govern henceforth") .

Dismissing consideration of the Hong Kong Policy Act, the district court
stated that "\[t\]he Policy Act itself is not a treaty and does not
authorize extradition." \[JA 10\] But this observation, while true, is
irrelevant --- the Government never argued that the Policy Act was
itself a treaty or that it independently conferred power to surrender
fugitives to Hong Kong. Next, the district court speculated that "it may
be argued that the Policy Act implicitly repealed § 3181," and then the
court also rejected this possibility. \[JA 10\] Again, the Government
never argued that the Hong Kong Policy Act "repealed" Section 3181, much
less that it repealed the relevant statute at hand, Section 3184.
Rather, the Hong Kong Policy Act confirms the authority of the United
States to enter into agreements directly with the Government of Hong
Kong and makes clear that domestic laws (such as Section 3184) shall
continue to apply in the same manner as they did before to
post-reversion Hong Kong.

3\. Section 3184 Should Be Construed in a Manner that

[Does Not Impede the Conduct of Foreign Affairs]{.underline}

If upheld, the district court's decision will create a significant
negative impact on the foreign relations of the United States in a
manner that is at odds with the will of Congress and the Executive
Branch. Not only does it effectively nullify the action of the President
and Senate in entering into the treaty, but it leaves the United States
in violation of its international obligations.

In construing the term of a domestic statute, the Supreme Court has
recognized that a statute should be construed, if possible, in a manner
that does not inhibit the nation's conduct of its foreign relations. In
[Weinberger v. Rossi]{.underline}, 456 U.S. 25, 31 (1982), the Supreme
Court considered the enforceability of certain U.S.-Philippine
"executive agreements" that required preferential employment of
Philippine nationals at U.S. military bases in the Philippines. By
statute, Congress had prohibited employment discrimination against
United States citizens at overseas military bases, except in the
presence of a contrary "treaty". Thus, in the Supreme Court's words,
"\[t\]he question in this case is whether 'treaty' includes executive
agreements concluded by the President with the host country, or whether
the term is limited to those international agreements entered into by
the President with the advice and consent of the Senate."
[Id.]{.underline} at 25. The Court declined to adopt a restrictive
interpretation of the statutory term "treaty", reasoning in part that
"\[i\]n the case of a statute \... that does touch upon the United
States' foreign policy, there is even more reason to construe Congress'
use of 'treaty' to include international agreements as well as Art. II
treaties." [Id.]{.underline} at 31. In a similar manner, the Supreme
Court has made clear that any ambiguity in the terms of an extradition
treaty should be liberally construed in favor of its enforceability:

> In choosing between conflicting interpretations of a treaty
> obligation, a narrow and restricted construction is to be avoided as
> not consonant with the principles deemed controlling in the
> interpretation of international agreements. Considerations which
> should govern the diplomatic relations between nations, and the good
> faith of treaties, as well, require that their obligations should be
> liberally construed so as to effect the apparent intention of the
> parties to secure equality and reciprocity between them. For that
> reason if a treaty fairly admits of two constructions, one restricting
> the rights which may be claimed under it, and the other enlarging it,
> the more liberal construction is to be preferred.

[Factor v. Laubenheimer]{.underline}, 290 U.S. 276, 293‑94 (1933).
Although [Factor]{.underline} concerns the interpretation of an
extradition treaty and not an extradition statute, the Court should
conclude that this principle has equal application to the interpretation
of a statute implementing the enforcement of the United States'
extradition treaty obligations.

In light of such policy of liberal construction in the foreign affairs
context, the courts have repeatedly approved the surrender of fugitives
to certain foreign countries despite the fact that the United States did
not directly negotiate an extradition treaty with the requesting country
but instead with a predecessor to the requesting country.
[See]{.underline}, [e.g.]{.underline}, [Terlinden v. Ames]{.underline},
184 U.S. 270, 288 (1902) (enforcing extradition to successor German
Republic despite fact that treaty was negotiated with Kingdom of
Prussia); [U.S. ex rel. Saroop v. Garcia]{.underline}, 109 F.3d 165,
171-173 (3d Cir. 1997) (enforcing extradition to U.S. from independent
Trinidad and Tobago, despite fact that underlying treaty was negotiated
with Great Britain that at the time treaty was negotiated controlled
Trinidad and Tobago as colony); [Then v. Melendez]{.underline}, 92 F.3d
851, 853-54 (9th Cir. 1996) (enforcing extradition from U.S. to
independent Singapore, despite fact that underlying treaty was
negotiated with Great Britain).

Moreover, in a different statutory context, this Court has deemed the
former United Kingdom colony of Hong Kong to be no less than a foreign
"country" for purposes of the Immigration and Nationality Act, noting
that "t\]he word "country" has no fixed meaning, and should be construed
in accordance with the purpose of the particular legislation":

> Section 243(a)(7), in authorizing deportation \'to any country which
> is willing to accept such alien into its territory,\' is obviously
> intended to avoid arbitrary restrictions on the places to which a
> deportable alien may be sent. In line with the general Congressional
> policy of facilitating the deportation of deportable aliens, \... we
> think that any place possessing a government with authority to accept
> an alien deported from the United States can qualify as a \'country\'
> under the statute. [Whatever the distribution of power between Hong
> Kong\'s local, partially autonomous government and Great Britain, Hong
> Kong is a \'country\' under the above definition]{.underline}.

[Chuen v. Esperdy]{.underline}, 285 F.2d 353, 354 (2d Cir. 1960) (*per
curiam*) (emphasis added). In the same manner, whatever the distribution
of power between the Government of Hong Kong and the PRC today, the
Government of Hong Kong qualifies as "any foreign government" under the
extradition statute. Even assuming that the extradition statute in this
case were construed to require a "foreign country" treaty partner, the
policy of liberal construction would warrant the conclusion that the
treaty with the Government of Hong Kong is with a foreign country.

4\. Section 3184 Should Be Construed in a Manner that

[Does Not Raise a Significant Constitutional Question]{.underline}

A statute should be construed "'to avoid constitutional questions where
such a construction is reasonably possible.'\" [Triestman v. United
States]{.underline}, 124 F.3d 361, 377 (2d Cir. 1997) (quoting [Arnett
v. Kennedy]{.underline}, 416 U.S. 134, 162 (1974)). In construing
Section 3184, the Court should not presume that Congress intended to
place unstated and unprecedented limitations on the President's
constitutional authority to choose a treaty partner.

Finding fault with the choice of a treaty partner in this case, the
district court observed that "\[f\]or whatever reason no treaty
regarding extradition has been executed directly with the PRC." \[JA
11\] But the Constitution does not commit to individual judges the power
to select or veto the President's choice of with whom or with what form
of foreign government the United States shall deal. "'The conduct of the
foreign relations of our government is committed by the Constitution to
the executive and legislative\--\"the political\"\--departments of the
government, and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision.\'\"
[First National City Bank v. Banco Nacional de Cuba]{.underline}, 406
U.S. 759, 766 (1972) (quoting [Oetjen v. Central Leather
Co.]{.underline}, 246 U.S. 297, 302 (1918)).

More specifically, \"\[w\]ho is the sovereign, de jure or de facto, of a
territory, is not a judicial, but a political, question, the
determination of which by the legislative and executive departments of
any government conclusively binds the judges, as well as all other
officers, citizens, and subjects of that government.\" [Jones v. United
States]{.underline}, 137 U.S. 202, 212 (1890). [See]{.underline}
[also]{.underline} [Williams v. Insurance Co.]{.underline}, 38 U.S. (13
Pet.) 415, 420 (1839) (\"Can there be any doubt that when the executive
branch of the government, which is charged with our foreign relations,
shall in its correspondence with a foreign nation assume a fact in
regard to the sovereignty of any island or country, it is conclusive on
the judicial department"); [Can v. United States]{.underline}, 14 F.3d
160, 162 (2d Cir. 1994) (\"It is firmly established that official
recognition of a foreign sovereign is solely for the President to
determine, and \'is outside the competence\' of courts\") (quoting and
citing cases).

Because the choice of a treaty partner is intimately connected with the
question of recognition of a foreign government, which is a sole
Executive Branch function, the choice of treaty partner must be subject
to great judicial deference. The reference to "any foreign government"
in Section 3184 is, on its face, consistent with this constitutional
principle, leaving open to the President and, where appropriate, the
Congress, to determine which is the relevant foreign government to deal
with and how. In the instant case, this determination was made in the
context of complex foreign policy objectives that take into account both
the autonomy of Hong Kong and the authority and sovereignty of the PRC.
For this reason, in order to avoid a substantial constitutional question
in this case, the Court should interpret Congress's reference to "any
foreign government" in Section 3184 to have committed to the discretion
of the political branches \-- not the judiciary \-- the determination of
who constitutes the relevant "foreign government" treaty partner.

5\. Even Assuming that Section 3184 Required that the

Treaty Be With a Central Foreign Government,

[This Condition Is Satisfied in This Case]{.underline}

Finally, even assuming that Section 3184 were construed to require that
an extradition treaty be concluded only with a central foreign
government, the PRC's role in the negotiation and conclusion of the
treaty is sufficient to satisfy such a requirement in this case. The
preamble to the treaty states that Hong Kong enters into it with the
authorization of "the sovereign government which is responsible for its
foreign affairs." \[JA 50\] The PRC authorized the treaty negotiations
from the beginning, later approved the final text of the agreement, and
ultimately confirmed its approval of the agreement through formal
diplomatic note.[^4] [See]{.underline} Senate Report at 2 \[JA 73\].

Summarily dismissing the PRC's express authorization of the treaty, the
district court stated only that "\[a\]fter the fact approval of the
agreement \... does not convert this Agreement into one directly with
the PRC, as the statute requires." \[JA 9\] Apart from incorrectly
characterizing PRC approval as merely "after the fact", this explanation
further assumes that a treaty must not only be with the central
government of a foreign country but must be no less than "directly" with
such government. Such formalistic distinctions find not the remotest
support in the statutory language and should be rejected.

**[CONCLUSION]{.underline}**

Section 3184 says "any" foreign government, and nothing further
qualifies or categorizes the type of foreign government with whom the
United States may have an extradition treaty. Although the district
court warned that extradition in this case "poses a substantial threat
to the separation of powers," \[JA 11\] it is that court's ruling itself
that jeopardizes the appropriate balance between the judiciary and the
political branches. It overlooks the plain language of the relevant
statute, fails to effectuate the full Congress's will as expressed in
the Hong Kong Policy Act, infringes upon the prerogative of the
President and Senate to choose a treaty partner, and thwarts this
nation's duty to carry out its solemn international treaty obligations.

Further delay is unwarranted. The ruling 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 of
the extradition request 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

P.O. Box 1824

New Haven, CT 06508

\(203\) 821-3700

*[CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P.
32(A)(7)(C)]{.underline}*

The undersigned attorney for the Government certifies that the length of
this brief is in compliance with the limitations set forth under Fed. R.
App. P. 32(a)(7) (14,000 word limitation), insofar as the word count as
calculated by the word processing program is 8293 words (beginning at
the first English-numbered page of the brief).

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

Jeffrey A. Meyer, AUSA

*[CERTIFICATION OF SERVICE]{.underline}*

This is to certify that 2 copies of the foregoing Brief of the Appellant
United States of America and Joint Appendix were mailed first-class to
counsel for appellee John Cheung on this day of November 15, 1999:

Richard A. Reeve, Esq.

Sheehan & Reeve

105 Court Street, Suite 401

New Haven, CT 06510

Phone: 203/787-9026

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

Jeffrey A. Meyer, AUSA

[^1]: [See]{.underline} 1972 Extradition Treaty, Protocol of Signature
    and Exchange of Notes between the United States of America and the
    United Kingdom of Great Britain and Northern Ireland, which entered
    into force on January 21, 1977 (TIAS 8468), made applicable to Hong
    Kong by an exchange of notes in Washington on October 21, 1976, and
    the Supplementary Treaty of June 25, 1985, which entered into force
    on December 23, 1986, also made applicable to Hong Kong in the Annex
    to the Supplemental Treaty.

[^2]: This is the second round of extradition proceedings against
    Cheung. On December 26, 1996, Cheung was initially arrested on an
    extradition complaint involving the same underlying charges pursuant
    to the extradition treaty between the United States and the United
    Kingdom as then applicable to Hong Kong. By order dated April 30,
    1997, Magistrate Margolis certified Cheung's extraditability, but
    further proceedings against Cheung were discontinued as a result of
    the reversion of sovereignty over Hong Kong from the United Kingdom
    to the People's Republic of China ("PRC") on July 1, 1997. For a
    description of this earlier round of proceedings, see [In re
    Extradition of Cheung]{.underline}, [supra]{.underline}.

[^3]: The text of the initial version of Section 3184 as passed on
    August 12, 1848, is included in the Joint Appendix. \[JA 23-24\] The
    Government's research of the scant legislative history of the 1848
    enactment has revealed only a single statement by one of its
    sponsors, which does not reveal any purpose to restrict the capacity
    of the United States' treaty partners but rather to create a
    mechanism for regularized review procedures of surrender requests by
    any treaty partner for fugitives found within the United States:

    > Cases were familiar to everybody which showed that it was
    > necessary to enlarge the facilities to comply with our
    > obligations. It often happened that an individual came to this
    > country where the crime was obvious, and the application for the
    > fugitive regular; but there were no such officers in the part of
    > the country where the fugitive was found as were authorized or
    > were willing to take on themselves the burden and weighty
    > responsibility of issuing a warrant to arrest and to take the
    > preliminary proceedings toward handing over the individual to the
    > properly authorized officer. The object of this bill was to
    > appoint officers and to authorize others to carry out the
    > provisions of the treaties with France and England, at all times
    > with, without delay and the danger of a denial of justice.

    The Congressional Globe at 868 (June 23, 1848) (statement of Rep.
    J.R. Ingersoll) \[JA 25\] [See]{.underline} [also]{.underline}
    [United States v. Mackin]{.underline}, 668 F.2d 122, 134-35 (2d Cir.
    1981) (Friendly, J.) (describing historical practice near time of
    enactment of § 3184); Jacques Semmelman, *Federal Courts, the
    Constitution, and the Rule of Non-Inquiry in Extradition
    Proceedings*, 76 Corn. L. Rev. 1198, 1206-08 (1991) (discussing
    history of statute).

[^4]: 5

    The express authorization and confirmation of the Treaty by the PRC
    was important in order to establish that it was entered into with
    the consent and under the sovereign authority of the PRC, and that
    not only the Government of Hong Kong, but also the PRC national
    government, within the limits of its authority, was bound to respect
    the obligations established under the treaty as well. Indeed, the
    PRC enjoys certain limited rights under the Treaty. For example, "in
    recognition of the role of the PRC as the sovereign responsible for
    Hong Kong's foreign affairs and defense," the U.S. agreed to give
    Hong Kong the right to refuse extradition when surrender would
    implicate the "defense, foreign affairs, or essential public
    interest or policy" of the sovereign. [See]{.underline} Treaty, Art.
    3, ¶ 3 \[JA 54\]; Senate Report at 14, 61 \[JA 79, 102\]. The PRC's
    role as the ultimate sovereign is reflected in the State Department
    publication [Treaties in Force]{.underline}, which lists agreements
    with Hong Kong under China.