FSM SUPREME COURT TRIAL DIVISION
Cite as In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370 (Yap 2005).

[13 FSM Intrm. 370]

IN THE MATTER OF THE EXTRADITION OF

BENNY LAW BOON LENG and LAW LI MEI.

CIVIL ACTION NO. 2005-3008

ORDER AND MEMORANDUM

Martin Yinug

Associate Justice

Hearing: August 12, 2005

Decided: August 16, 2005

APPEARANCES:

For the Plaintiff:   Janhabi Nandi, Esq.

                                 Assistant Attorney General

                                 FSM Department of Justice

                                 P.O. Box PS-105

                                 Palikir, Pohnpei FM 96941

[13 FSM Intrm. 371]

For the Defendants:   Beauleen Carl-Worswick, Esq.

                                         Chief Public Defender

                                         Office of the Public Defender

                                         P.O. Box PS-174

                                         Palikir, Pohnpei   FM   96941

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HEADNOTES

Extradition

     Extradition is neither a criminal nor a civil proceeding. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 372 (Yap 2005).

Extradition; Treaties

     Extradition treaties are to be liberally construed to effect their purpose of surrender of the persons sought to be tried for their alleged crimes. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 372 (Yap 2005).

Extradition; Search and Seizure ) Probable Cause

     An extradition hearingís purpose is not to hold a trial on the merits to determine guilt or innocence, but to determine whether probable cause exists to believe that the person whose surrender is sought has committed the crime for which extradition is requested. The probable cause standard applicable in extradition proceedings is described as sufficient evidence to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accusedís guilt. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 373 (Yap 2005).

Extradition

     A person whose extradition is sought may, at the extradition hearing, introduce evidence that explains the governmentís evidence of probable cause, but not evidence that contradicts it. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 373 (Yap 2005).

Evidence; Extradition

     Depositions, warrants or other papers may be admitted into evidence in an extradition case if properly authenticated and the FSM Rules of Evidence by their terms do not apply to extradition proceedings. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 373 (Yap 2005).

Extradition

     Facts and circumstances detailed in the documents admitted into evidence can constitute probable cause to believe that persons sought to be extradited committed the crime alleged therein. When the documents come with indicia of reliability, including the certifications of authenticity, the court may properly consider this evidence in making the probable cause determination for extradition. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 373 (Yap 2005).

Extradition

     For extradition, dual, or double, criminality is a requirement, which means that the offense for which extradition is sought must be criminal in both the requesting and requested countries. A precise matching of the crime or its elements is not required, but the acts charged must be criminal in both jurisdictions. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 373 (Yap 2005).

[13 FSM Intrm. 372]

Extradition

     When the offense alleged in the U.S. indictment is false use of a passport, and when, in the FSM, a person commits the crime of tampering with public records under 11 F.S.M.C. 529 if he makes, presents, or uses any record, document, or thing knowing it to be false, and with the purpose that it be taken as a genuine part of information or records that are received or kept by a public servant or required to be kept by anyone for the governmentís information, and under 11 F.S.M.C. 524, a person commits the crime of falsification if, with purpose to mislead a public servant in performing his or her official function, he or she submits or invites reliance on any writing which he or she knows to be forged, altered, or otherwise lacking in authenticity, these two FSM statutes proscribe the conduct charged, and the requirement of dual criminality is satisfied. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 373-74 (Yap 2005).

Extradition

     The "rule of specialty" means that the court must find that the prosecution is limited to the offense upon which extradition is granted. Specifically, the "principle of specialty" limits prosecution in the requesting country to those extraditable offenses established by the facts on which extradition has been granted by the asylum country. Under this principle, the inquiry does not end merely because the accused is found extraditable on one charge. A determination must be made as to whether each specific charge forms the basis for extradition, as the defendant may be prosecuted only on extraditable charges. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 374 (Yap 2005).

Extradition

     If, on a hearing to determine extraditability the judge deems the evidence sufficient to sustain the charge under the treaty provisions, the judge shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of Foreign Affairs that a warrant may issue upon the requisition of the proper authorities of the foreign government, for the personís surrender according to the treatyís stipulations; and the judge shall issue his warrant for the commitment of the person to be extradited to the proper jail, there to remain until surrender is made. But when no witnesses testified at the hearing, there is no testimony to be transcribed and submitted to the Secretary of Foreign Affairs and counsel for the FSM summarized the papers it filed and when the necessary papers were admitted into evidence and are part of the record, the court will make the certification of sufficient evidence to sustain the charges, but will make no certification of testimony, and when the persons charged are already under house arrest and under FSM Immigration personnelís custody and supervision, no warrant will issue. In re Extradition of Benny Law Boon Leng, 13 FSM Intrm. 370, 374 (Yap 2005).

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COURTíS OPINION

MARTIN YINUG, Associate Justice:

     An extradition hearing was held in this matter on August 12, 2005. The United States seeks the extradition of Benny Law Boon Leng and Law Li Mei pursuant to the Agreement on Extradition, Mutual Assistance in Law Enforcement Matters and Penal Sanctions Concluded Pursuant to Section 175 of the Amended Compact of Free Association. Leng and Mei were represented by Beauleen Carl Worswick of the FSM Public Defenderís Office, with Razakrisnan Manikam present as translator. Janhabi Nandi appeared on behalf of the FSM. The court makes the following findings.

     1. Extradition is neither a criminal nor a civil proceeding. In re Extradition of Jano, 6 FSM Intrm. 12, 13 (App. 1993). Extradition treaties are to be liberally construed to effect their purpose of surrender of the persons sought to be tried for their alleged crimes. In re Extradition of Jano, 6 FSM

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Intrm. 93, 103 (App. 1993). The purpose of an extradition hearing is not to hold a trial on the merits to determine guilt or innocence, but to determine whether probable cause exists to believe that the person whose surrender is sought has committed the crime for which extradition is requested. United States v. Wiebe, 733 F.2d 549, 553 (8th Cir. 1984). The probable cause standard applicable in extradition proceedings is described as sufficient evidence to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accusedís guilt. Id.

     Admitted into evidence at the hearing were the following: Certification of [] Documents by the Secretary of State of the United States; Certification by the Director/Deputy Director of the Office of International Affairs, Criminal Division, of the United States Department of Justice, of the position of the official certifying the Affidavit in Support of Request for Extradition and Attachments; Certification of the Affidavit in Support of Request for Extradition and Attachments by the Associate Director of the Criminal Division of the United States Department of Justice; Affidavits in Support of Request for Extradition from the United States District Court for the Territory of Guam, with Attachments consisting of Federal Rule of Criminal Procedure 9(b) Indictments for Benny Law Boon Leng and Law Li Mei from the United States District Court for the District of Guam; Arrest Warrants for each individual; copies of applicable statutes; and the Affidavit of CBP Senior Inspector Byron Farley. These documents speak for themselves, and this court will not summarize them here, except to note that the allegations are that Leng and Mei were part of a "boarding pass switch" scheme, which is said to be a commonly used means for gaining entry into the United States for falsely documented individuals.

     A person whose extradition is sought may, at the extradition hearing, introduce evidence that explains the governmentís evidence of probable cause, but not evidence that contradicts it. In re Extradition of Jano, 6 FSM Intrm. 93, 102-03 (App. 1993). Leng and Mei offered no testimony or other evidence at the hearing. However, their counsel cited FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300, 304 (Kos. 1995) for the proposition that a prosecutor may not rely solely on hearsay evidence on the issue of probable cause at a probable cause hearing when other more competent evidence is available. Yue Yuan Yu No. 708 is a non-extradition case that deals with a post-seizure probable cause hearing in a civil forfeiture case. Apart from this difference, counsel did not direct the courtís attention to specific competent, nonhearsay evidence that was available on the issue of probable cause, and that should be considered. Moreover, FSM points out that 12 F.S.M.C. 1406 permits "depositions, warrants or other papers" to be admitted into evidence in an extradition case if properly authenticated; that the FSM Rules of Evidence by their terms do not apply to extradition proceedings, FSM Evid. R. 1101(d); and that U.S. case law holds that hearsay is admissible in an extradition matter.

     Taken together, the facts and circumstances detailed in the documents admitted into evidence constitute probable cause to believe that Leng and Mei both committed the crime of false use of a passport as alleged therein. The documents come with indicia of reliability, including the certifications of authenticity previously noted. The court may properly consider this evidence in making the probable cause determination. Wiebe, 733 F.2d at 553 (Spanish extradition documents sufficient to support finding of probable cause to extradite from the United States to Spain); Shapiro v. Ferrandina, 478 F.2d 894, 901-02 (2d Cir. 1973) (court in extradition proceeding relied entirely on written statements and records of testimony). The court finds probable cause here.

     2. The next question is that of the dual, or double, criminality requirement, which means that the offense for which extradition is sought must be criminal in both the requesting and requested countries. In re Extradition of Jano, 6 FSM Intrm. at 105. A precise matching of the crime or its elements is not required, but the acts charged must be criminal in both jurisdictions. Id. The offense alleged in the U.S. indictment is false use of a passport. Two counts are alleged against both Leng and Mei. In the FSM, a person commits the crime of tampering with public records under 11 F.S.M.C. 529 if he "makes, presents, or uses any record, document, or thing knowing it to be false, and with the

[13 FSM Intrm. 374]

purpose that it be taken as a genuine part of information or records" that are "received or kept by a public servant . . . or required . . . to be kept by anyone for information of the Government." In addition, under 11 F.S.M.C. 524, "[a] person commits the crime of falsification if, with purpose to mislead a public servant in performing his or her official function, he or she . . . submits or invites reliance on any writing which he or she knows to be forged, altered, or otherwise lacking in authenticity." These two FSM statutes proscribe the conduct with which Leng and Mei are charged. Accordingly, the court finds that the requirement of dual criminality is satisfied in this case.

     3. The court also finds that the requirement of "specialty" is satisfied. The "rule of specialty" means that the court must find that the prosecution is limited to the offense upon which extradition is granted. Jano, 6 FSM Intrm. at 105. Specifically,

the "principle of specialty" limits prosecution in the requesting country to those extraditable offenses established by the facts on which extradition has been granted by the asylum country. . . . Under this principle, the inquiry does not end merely because the accused is found extraditable on one charge. A determination must be made as to whether each specific charge forms the basis for extradition, as the defendant may be prosecuted only on extraditable charges.

Caplan v. Vokes, 649 F.2d 1336, 1343 (9th Cir. 1981). While there are two counts each alleged against both Leng and Mei in the U.S. indictment, they are two counts of the same crime, false use of a passport (18 U.S.C. ßß 2, 1543). The court has found that the conduct constituting this crime is also statutorily proscribed in the FSM. Thus the requirement of dual criminality is met.

      4. Finally, 12 F.S.M.C. 1402 provides in part as follows:

If, on such hearing [i.e., to determine extraditability] the [judge or justice] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of External Affairs [now designated Foreign Affairs], 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.

No witnesses testified at the hearing. Thus, there is no testimony to be transcribed and submitted to the Secretary of Foreign Affairs as contemplated by 12 F.S.M.C. 1402. Counsel for the FSM summarized the papers filed by the FSM, and those papers were admitted into evidence and are made part of the record of the case. Thus the court will make the certification of sufficient evidence to sustain the charges, but makes no certification of testimony. A separate certification issues herewith.

     Section 12 F.S.M.C. 1402 also anticipates that upon certification, a warrant will issue for the commitment of Leng and Mei. However, Leng and Mei are already under house arrest in Yap and are under the custody and supervision of FSM Immigration personnel. The FSM and counsel for Leng and Mei stipulated at the hearing that, should the court make a finding of extraditability, the custody arrangement in place at the time of the hearing would continue until the necessary arrangements are made to transport Leng and Mei to the United States. Accordingly, no warrant will issue.

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