

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                                                                    

No. 97-1084

                    UNITED STATES OF AMERICA,
                            Appellant,

                                v.

                  LUI KIN-HONG, a/k/a JERRY LUI,
                            Appellee.

                                   

                              BEFORE                                        BEFORE

                     TORRUELLA, Chief Judge,                               TORRUELLA, Chief Judge,                                                     
                  ALDRICH, Senior Circuit Judge,                            ALDRICH, Senior Circuit Judge,                                                         
        SELYA, BOUDIN, STAHL*, and LYNCH, Circuit Judges,                  SELYA, BOUDIN, STAHL*, and LYNCH, Circuit Judges,                                                                  

                      ORDER OF EN BANC COURT                                ORDER OF EN BANC COURT

             Entered:  April 17, 1997                                      Entered: 

     The suggestion for the holding of a rehearing en banc having
been  carefully considered by the judges of this Court in regular
active service and a majority of  said judges not having voted to
order that the appeal be heard or reheard by the Court en banc,

     It is ordered that  the suggestion for rehearing en  banc be
denied.

                                   By the Court:

                                                          
                                     William H. Ng, Clerk

              [cc:  Messrs.   Whiting, Good, Posner]
                          
* Dissent follows.

            STAHL, Circuit Judge,  (dissenting).  Because I  do                      STAHL, Circuit Judge,  (dissenting).                                          

  not  believe that  the  panel's opinion  reaches the  correct

  result, and because I believe  that this case raises numerous

  difficult and complex questions of law that warrant the  full

  court's considered attention, I would  grant the petition.  I

  therefore respectfully  dissent from the court's  decision to

  deny rehearing en banc.

                     I. The Treaty Language                                I. The Treaty Language 

            The extradition  request in  this case was  made by

  authorities of the British Crown Colony of Hong Kong pursuant

  to two  bilateral  treaties dating  from  1972 --  a  primary

  agreement and a  supplemental treaty -- that  both the United

  States and the United Kingdom have signed and ratified.1  The

  main treaty applies to Hong Kong by an exchange of diplomatic

  notes  made in October 1976,  see 28 U.S.T.  at 238-41, while                                             

  the supplemental treaty  by its terms  applies to the  United

  Kingdom   and  "the   territories  for   whose  international

  relations the  United  Kingdom  is  responsible,"  which,  as

                                                      

            1See Extradition Treaty Between the Government of                          
  the United States of America and the Government of the United
  Kingdom of Great Britain and Northern Ireland, June 8, 1972,
  28 U.S.T. 227 [hereinafter "the treaty"] and Supplemental                                                        
  Treaty Between the Government of the United States of America
  and the Government of the United Kingdom of Great Britain and
  Northern Ireland, June 25, 1985, T.I.A.S. No. 12050
  [hereinafter "the supplemental treaty"].                                                      

                               -2-                                          2

  listed in an annex, includes Hong Kong.2  In 1984, the United

  Kingdom and  the People's  Republic of China  issued a  Joint

  Declaration,  which was  ratified and  entered into  force in

  1985, under  which sovereignty over Hong Kong  will revert to

  China on July  1, 1997.3  In  1985, the United  States signed

  the supplemental treaty and the United States Senate ratified

  it the following year. Despite being ratified after the well-

  publicized  Sino-British  Joint  Declaration  regarding  Hong

  Kong's  future status, the  supplemental treaty  says nothing

  about fugitives  sought for extradition  ("relators") to Hong

  Kong, like Lui Kin-Hong, who can demonstrate that their trial

  will occur after Hong Kong's reversion to China.

            "In  construing  a  treaty,   as  in  construing  a

  statute,  we  first  look  to  its  terms  to  determine  its

  meaning."   United States  v. Alvarez-Machain, 504  U.S. 655,                                                         

  663  (1992) (citing  Air France  v. Saks,  470 U.S.  392, 397                                                    

                                                      

            2The supplemental treaty specifically applies to
  Great Britain and Northern Ireland, the Channel Islands, the
  Isle of Man, Anguilla, Bermuda, the British Indian Ocean
  Territory, the British Virgin Islands, the Cayman Islands,
  the Falkland Islands, the Falkland Island Dependencies,
  Gibraltar, Hong Kong, Montserrat, Pitcairn, Henderson, Ducie
  and Oeno Islands, St. Helena, the St. Helena Dependencies,
  the Sovereign Base Areas of Akrotiri and Dhekelia in the
  Island of Cyprus, Turks and Caicos Islands.  See Art. 6 &amp;                                                            
  Annex.                      

            3See 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, Dec. 19, 1984, 1984 Gr. Brit. T.S. No. 20 (Cmd.
  9352) [hereinafter "the Joint Declaration"]. 

                               -3-                                          3

  (1985);  Valentine v.  United States  ex rel.  Neidecker, 299                                                                    

  U.S. 5, 11 (1936)).  Article I of the primary US-UK bilateral

  extradition  treaty provides  that "[e]ach  Contracting Party

  undertakes  to extradite  to  the other"  persons accused  or

  convicted  of  certain  enumerated offenses  "subject  to the

  conditions specified  in this Treaty."   Among the conditions

  that the  treaty specifies  are those  found in Article  XII,

  which incorporates a "specialty" provision,  a common feature

  of extradition treaties,4 and contains a  prohibition against

  a relator's re-extradition to  stand trial in a  third state.

  Article XII in relevant part provides:

            (1)  A  person  extradited shall  not  be
            detained  or  proceeded  against  in  the
            territory of the requesting Party for any
            offense   other   than  an   extraditable
            offense  established  by  the   facts  in
            respect of which his extradition has been
            granted,  or  on  account  of  any  other
            matters, nor be extradited by  that Party
            to a third State -- 
                 (a) until  after he has  returned to
            the territory of the requested Party; or
                 (b) until the  expiration of  thirty
            days after he has  been free to return to
            the territory of the requested Party.

                                                      

            4See Kenneth E. Levitt, Note, International                                                                 
  Extradition, The Principle of Specialty, and Effective Treaty                                                                         
  Enforcement, 76 Minn. L. Rev. 1017, 1022-24, 1027-28 (1992)                       
  ("The principle of specialty allows requesting states to try
  or punish defendants only for the offenses for which they
  were extradited. . . . Most United States extradition
  treaties currently in force, and all negotiated within the
  last one hundred years, incorporate the principle of
  specialty.").

                               -4-                                          4

            Lui's  case  raises the  difficult question  of the

  proper  interpretation to  be given  to  this Article  of the

  extradition treaty  and the specialty  provision incorporated

  therein in  the peculiar  situation that the  record reveals.

  The evidence shows and the  government concedes that Lui will

  be tried in the  court system of a sovereign other  than that

  of the requesting Party  and different than the one  he would

  have  been tried by but for the reversion of sovereignty over

  Hong Kong to China.  As the district  court found in granting

  habeas  relief, the "uncontradicted evidence" establishes, as

  the government now  concedes, that  "[t]he reality .  . .  is

  that the  Crown Colony of Hong  Kong will not be  able to try

  and to punish Lui by the time of reversion."  Lui Kin-Hong v.                                                                      

  United States,  Civ. A.  No. 96-104849-JLT,  -- F.  Supp. --,                         

  1997 WL 37477, at *3 (D. Mass. January 7, 1997) (as corrected

  January 9, 1997). 

            The  difficult  question  Lui's  case  presents  is

  whether  a certification  of extraditability pursuant  to the

  US-UK  bilateral extradition  treaty and  18 U.S.C.     3181,

  3184  can issue in these circumstances.  For the reasons that

  follow, I believe it cannot.

            On its face, Article XII of the treaty prohibits  a

  requesting Party  from trying  and punishing the  relator for

  crimes other  than those for  which he  has been  extradited.

  Moreover,  it prohibits  a requesting Party  from extraditing

                               -5-                                          5

  the  relator to a third-party  sovereign.  As  I read Article

  XII, therefore, the fairest  and most reasonable inference to

  be  drawn from the treaty's  language is that  it allows only

  for extradition for offenses that will be tried and  punished

  by the requesting sovereign.

            This is not the  case we have before us.   Thus, in

  my view, the district court correctly concluded that the most

  reasonable inference from Article  XII's language is that the

  treaty "prohibits a person from being extradited to Hong Kong

  if Hong  Kong, as a  Crown Colony of  the United Kingdom,  is

  unable to try and  to punish him." 1997 WL at  *4.  I believe

  that the logical inference to be drawn from the quoted treaty

  language is that Article XII requires the requesting Party to

  retain  exclusive  jurisdiction  and  custody  over  relators

  extradited to it by the requested Party.  To me,  the natural

  meaning of the language in Articles I and XII suggests that a

  "condition" to extradition under the treaty is that a relator

  is to be tried and punished  in the courts and prisons of the

  Contracting Party requesting  extradition.  This  requirement

  is  subject   solely  to  the  exceptions   provided  for  in

  subsections (1)(a) and  (b), which do not  apply here because

  the  reality in  this case is  that Crown  Colony authorities

  will neither return  Lui to United States  territory nor give

  him 30 days' freedom to leave Hong Kong prior to surrendering

  him to  their Chinese successors, as  those subsections would

                               -6-                                          6

  alternately  require.   On the  facts revealed,  therefore, I

  believe  the  district  court  correctly  concluded that  Lui

  cannot  be  certified  for  extradition  because  the  United

  Kingdom fails to  "live up  to the terms  of its  extradition

  agreement with the United States."  Id. at *4.                                                   

            The  purpose to  be  gleaned  behind Article  XII's

  words also supports the position that Lui cannot be certified

  for extradition  in the current circumstances.   This circuit

  has indicated that "[t]he  existence of such [an extradition]

  treaty  between   the  United  States   and  another  country

  indicates  that, at least  in a general  sense, the executive

  and  legislative  branches   consider  the  treaty  partner's                                                                         

  justice system  sufficiently fair to justify  sending accused

  persons there for trial."   In re Extradition of  Howard, 996                                                                    

  F.2d  1320, 1329  (1st  Cir. 1993)  (emphasis added)  (citing

  Glucksman  v.  Henkel, 221  U.S.  508, 512  (1911);  Neely v.                                                                      

  Henkel (No. 1), 180 U.S. 109, 123 (1901)).                          

            In this  particular  instance,  I  agree  with  the

  district  court  that  the   US-UK  bilateral  treaties   are

  "premised  on the trust running between the United States and

  the United  Kingdom."  Lui, 1997  WL at *5.  In  my view, the                                      

  district  court  rightly noted  that  Article  XII's language

  manifests an  exchange of promises  between our nation  and a

  trusted treaty  partner: "[t]he United  Kingdom is  promising

  that  it, and  only it,  will try  and will  punish [relators

                               -7-                                          7

  like]  Lui for  specified  crimes, and  no  others.   By  its

  adoption  of  the Treaty,  the  United  States manifests  its

  belief in that promise of the  United Kingdom."  Id.  Because                                                                

  the Crown Colony's extradition request in this case fails  to

  live up to this promise by the United Kingdom, I believe that

  the district  court properly  concluded that  a certification

  for Lui's extradition  to Hong  Kong cannot issue.   As  this

  court  has  recently explained,  in extradition  cases "[t]he

  requesting state must 'live  up to whatever promises it  made

  in  order   to  obtain  extradition.'"     United  States  v.                                                                     

  Saccoccia, 58 F.3d  754, 766 (1st Cir. 1995)  (quoting United                                                                         

  States  v.  Najohn,  785  F.2d 1420,  1422  (9th  Cir.)  (per                              

  curiam), cert. denied, 479 U.S. 1009 (1986)).5                                 

                                                      

            5The panel opinion relies upon Saccoccia, a case                                                              
  that involved the interpretation of an extradition treaty
  between the United States and Switzerland, to argue that
  federal extradition procedures do not give judicial officers
  the discretion to refuse the issuance of certificates of
  extraditability "on the ground that a treaty partner cannot
  assure the requested country that rights under a treaty will
  be enforced or protected."  Slip op. at 29 (citing Saccoccia,                                                                        
  58 F.3d at 766-67).  My research fails to find support for
  the proposition for which the panel cites Saccoccia.  On my                                                               
  reading, Saccoccia indicates that Article XII's "specialty"                              
  provision does not require an exact mirror-image between the
  precise indictment that prompts an extradition and the
  subsequent prosecution.  See 58 F.3d at 766-67.  Because that                                        
  is not the problem that I believe to be fatal to the
  extradition request in Lui's case, and as I indicate in the
  main body of my dissent, I believe that Saccoccia is properly                                                             
  read, if at all, to support an interpretation of Article XII
  that would preclude the issuance of a certificate of
  extraditability in the unique circumstances present here.

                               -8-                                          8

            In arriving at  my conclusion I  am mindful of  the

  Supreme Court's seminal extradition decision in  Terlinden v.                                                                      

  Ames,  184 U.S.  270, 289  (1902).   In Terlinden,  the Court                                                             

  explained that  a state  requesting  a relator's  extradition

  must be  "competent to try and  to punish him."   Id. at 289.                                                                 

  The Terlinden Court was asked to determine whether the German                         

  Empire could successfully request  a relator's extradition on

  the  basis  of a  treaty between  the  United States  and the

  Kingdom  of  Prussia,  where  the two  sovereigns,  King  and

  Emperor, were one and the same.   See id. at 284.   The Court                                                     

  concluded that the  Kingdom of Prussia, although part  of the

  subsequently formed  German Empire,  continued to enjoy  "its

  identity  as such,"  and treaties that  it had  entered could

  still be performed "either in the name of its King or that of

  the Emperor."  Id. at 285.  In making its  determination, the                              

  Court explained that "the question whether power remains in a

  foreign State to carry  out its treaty obligations is  in its

  nature political  and not judicial, and that the courts ought

  not  to  interfere  with  the conclusions  of  the  political

  department in that regard."  Id. at 288.                                             

            The situation  in Terlinden, however,  is different                                                 

  than  the  one  raised by  Lui's  case.    In Terlinden,  the                                                                   

  question was whether or not  the Kingdom of Prussia continued

  to  have  an independent  existence  and  whether its  treaty

  obligations could  be  exercised  in the  name  of  its  King

                               -9-                                          9

  notwithstanding the fact  that he  had subsequently  acquired

  "the title  of German Emperor."   Id. at 284.   The impending                                                 

  reversion of sovereignty  over Hong Kong does  not raise this

  question.    No one  doubts --  and  the government  does not

  dispute -- that the Crown Colony  of Hong Kong will cease  to

  exist  beyond reversion to China.   If some  doubt existed on

  this score,  Terlinden counsels that the  judicial department                                  

  would have to defer to the judgment of the political branches

  because the  action of  the political branches  of government

  "must  be  regarded  as  of controlling  importance"  on  the

  question of  "whether [a]  treaty has ever  been terminated."

  184 U.S. at  285.   Lui's case frames  an entirely  different

  question.   The extradition request from the  Crown Colony of

  Hong Kong  does not raise the issue of whether or not the US-

  UK  extradition treaties  have been  terminated.   Instead it

  raises the  question of  whether the requesting  sovereign is

  "competent to try and to punish him."  Id. at 289.                                                       

            In my  view, the Supreme Court in Terlinden makes a                                                                 

  distinction  between a state's "power . .  . to carry out its

  treaty obligations"  (a determination on which  the judiciary

  must  defer to  the political  branches), id.  at 288,  and a                                                         

  state's "competen[ce] to try  and to punish" a relator.   Id.                                                                         

  at 289.   The first issue  goes to the question  of whether a

  treaty partner  -- and hence  a treaty relationship  -- still

  exists.  On this issue, Terlinden informs us that courts must                                             

                               -10-                                          10

  defer to the  determination of the  political branches.   See                                                                         

  id.  at 285,  288. The second  issue goes to  the question of               

  whether  a  treaty partner  is  fulfilling  the promises  and

  obligations it has  undertaken with the  United States.   See                                                                         

  id.  at  289.    The Court's  discussion  in  the  paragraphs               

  following its  reference to sovereign competency  makes clear

  that  courts retain the authority  and duty to ascertain that

  the treaty-established prerequisites to  extraditability have

  been met  in  a particular  case.   The Court  noted that  no

  question  existed  in the  case  before it  that  the treaty-

  created preconditions for  extradition had been met.   As the

  Court explained, 

          If it  be assumed in the case  before us, and                                                                 
          the papers presented on the motion for a stay                                        
          advise  us that  such is  the fact,  that the                                                             
          commissioner, on hearing, deemed the evidence
          sufficient  to  sustain   the  charges,   and
          certified  his findings and  the testimony to
          the Secretary of State, and a warrant for the
          surrender   of   Terlinden   on  the   proper                                                                 
          requisition was  duly  issued, it  cannot  be                                                                 
          successfully contended that the  courts could                                                   
          properly  intervene on  the  ground that  the
          treaty  under  which  both   governments  had                                                                 
          proceeded,  had terminated  by reason  of the                                              
          adoption  of the  constitution of  the German
          Empire, notwithstanding the judgment  of both
          governments to the contrary. 

Id. at 289-90 (emphasis added).             

            Therefore,   contrary   to   the    panel   opinion's

suggestion, the district court correctly concluded that Terlinden                                                                           

teaches that this  court has jurisdiction to examine  whether the

Hong Kong extradition request fulfills the obligations undertaken

                               -11-                                          11

by the United Kingdom under the treaty.  See Lui,  1997 WL at *4.                                                          

Unlike  Terlinden, the relator in  this case does  not argue that                           

the  extradition treaty under which  he has been  sought has been

terminated because  the requesting  sovereign  no longer  exists.

Instead Lui argues and  the record reveals that the  Crown Colony

of Hong Kong, though it currently exists,  will not try or punish

him before  reversion  and  thus does  not  meet  the  conditions

imposed by Articles  I and  XII of the  treaty and the  Terlinden                                                                           

requirement that an authority requesting a  relator's extradition

must be "competent to try and to punish him."  184 U.S. at 289. 

            As I read  it, Article XII indicates that  the United

States and the United Kingdom undertook an agreement to extradite

relators  but only  for trial  and punishment  in the  courts and

prisons  of  each  other.    Because  it  is  conceded  that  the

extradition request in this case will result in Lui's being tried

and punished under the courts of another sovereign, my reading of

Articles I and  XII of the  treaty convince  me that the  British

Hong  Kongese authorities  fail  to live  up  to the  obligations

undertaken by the United  Kingdom.  If Lui  may be extradited  at

all  pursuant to the bilateral US-UK extradition treaties, I read

the relevant treaty provisions to say that this may occur only if

the  United  Kingdom  or  authorities accountable  to  it  retain

exclusive  jurisdiction over Lui's  person following  Hong Kong's

reversion  to China.    Because the  Crown Colony  will surrender

custody over Lui and  jurisdiction over his criminal case  to the

                               -12-                                          12

Chinese  successor  regime,  I   am  of  the  opinion   that  the

extradition  request  in  this  peculiar  set   of  circumstances

constitutes  a violation of the relevant treaty terms. As such, I

believe that  no certification of extraditability  can issue from

this court pursuant to the US-UK extradition treaty and 18 U.S.C.

   3181, 3184.

                II. The Re-extradition Prohibition                          II. The Re-extradition Prohibition

            Lui's case also  presents a  difficult question  with

respect to whether the  United Kingdom's surrender of sovereignty

over   Hong  Kong  to  China   in  July  1997   would  effect  an

impermissible re-extradition with respect  to Lui under the terms

of Article XII. For the reasons that follow, I believe it would.

            Article  XII  in  relevant part  provides  that  "[a]

person extradited  [to a  requesting Party]  shall not  . .  . be

extradited  by  that  Party  to  a  third  State."    Here,  upon

reversion, the  United  Kingdom will  surrender  sovereignty  and

responsibility for the administration of justice in  Hong Kong to

China.  In the event that Lui is extradited to Hong Kong prior to

reversion,  the  record shows  beyond  question that  he  will be

surrendered  to the courts  and judicial system  of a third-party

sovereign  state  for  prosecution.     The  difficulty  lies  in

determining whether reversion and  Lui's surrender to the Chinese

regime  that will  succeed the  Crown Colony  amounts to  another

extradition.

                               -13-                                          13

            The  plain  meaning  and  derivations  of  the  words

"extradite" and "extradition"  help lead me to conclude  that the

surrender   contemplated  for   Lui   would  constitute   another

extradition.   The dictionary  definition of "extradite"  is, "To

deliver up,  as to another state or nation."  Funk &amp; Wagnalls New                                                                           

Comprehensive  International Dictionary  of the  English Language                                                                           

450   (1978).     "Extradition"  is   alternatively  defined   in

dictionaries  as,  "The  surrender  of  an  accused person  by  a

government to the justice of another government, or of a prisoner

by  one authority  to  another," id.,  as  "the surrender  of  an                                              

alleged fugitive from  justice or criminal by one  state, nation,

or  authority to  another," The  Random House  Dictionary of  the                                                                           

English Language 685  (2d ed.  1987), and as,  "The surrender  or                          

delivery of  an alleged criminal usu[ually]  under the provisions

of a treaty  or statute by one country, state,  or other power to

another having jurisdiction  to try the charge."  Webster's Third                                                                           

International Dictionary 806 (1986).6                                  

            Legal  usage has  followed the word's  plain meaning.

Black's   Law   Dictionary  defines   "extradition"   by  closely

paraphrasing the formula given  in Terlinden, wherein the Supreme                                                      

                                                      

            6The derivation of the English word is from the
  French, Old French and ultimately Latin equivalents.
  Specifically, the English "extradition" stems from a Latin
  union of the prefix ex- [out] and traditio [a delivery or                                                      
  surrender], the latter word flowing from traditus, the past                                                             
  participle of tradere [to deliver], which, in turn, stems                                 
  from the conjunction of trans- [across] and dare [give]. See                                                                        
  Funk &amp; Wagnalls New Comprehensive International Dictionary of                                                                         
  the English Language 450, 1330 (1978).                                

                               -14-                                          14

Court defined "[e]xtradition" as "the surrender  by one nation to                                                                           

another of  an  individual accused  or  convicted of  an  offence                                    

outside   its  own   territory,   and  within   the   territorial

jurisdiction of the other,  which, being competent to try  and to

punish him,  demands the  surrender." 184  U.S. at  289 (emphasis

added); Black's Law Dictionary 526 (5th ed. 1979)  (replacing the                                        

word "nation" with "state or country").

            International practice is consistent with  this legal

usage  of the  term.  Prohibitions on  re-extradition, like  that

found  in   Article  XII,  are  fundamental   features  of  "many

[extradition]  treaties" that  are generally interpreted  to give

force  to the broad principle of international law that "a person

extradited  to one  state  may  not  be extradited  or  otherwise                                                                           

surrendered  to  a third  state  for  prosecution."   Restatement                                                           

(Third) of Foreign Relations Law   477 cmt. d.

            The operative  plain meaning  of the word,  its legal

usage,  international practice,  and its  etymological derivation

all  indicate that the surrender  which the record  shows and the

government  concedes  is  contemplated for  Lui  would constitute

another  extradition.   Upon reversion,  the United  Kingdom will

surrender sovereignty to China  as well as surrender jurisdiction

over  and custody  of criminal  defendants like  Lui.   Using the

Terlinden definition, on the peculiar circumstances in this case,                   

upon reversion: (1) Lui  will be "surrender[ed] by one  nation to

another";  (2) he  will be  "an individual  accused .  . .  of an

                               -15-                                          15

offence  outside  [the extraditing  authority's]  own territory,"

because authority over  that territory will pass from  the United

Kingdom to China; (3) the offenses for which Lui is accused "will

be  within  the   territorial  jurisdiction"  of   the  receiving

authority, viz.,  China; and  (4) the receiving  authority, under                         

Sino-British  international  agreements,  specifically the  Joint

Declaration regarding reversion, will be "competent to try and to

punish him." 184 U.S. at 289.

            Having  canvassed the relevant  sources that  help to

illuminate the meaning of the word  "extradition," I believe that

the revealed reality that the Crown Colony will surrender custody

over Lui and jurisdiction  over his criminal case to  the Chinese

successor regime contemplates another extradition in violation of

Article  XII  of  the  US-UK bilateral  extradition  treaty.    A

decision of the Ninth Circuit, on which the panel opinion  in the

instant case relies, reaches a contrary result.  See Oen Yin-Choy                                                                           

v.  Robinson, 858 F.2d 1400,  1403-04 (9th Cir.  1988).  Starting                      

from the premise that this case is not controlling in this court,

this circuit should  decline to  follow this  decision because  I

believe  that its  argument is  neither thorough  nor persuasive.

Moreover, the Ninth  Circuit was  faced by a  fact pattern  quite

unlike the  heightened and unique circumstances  present in Lui's

case  and  thus  was not  required  to  squarely  face the  issue

presented here.

                               -16-                                          16

            In Oen, the United  States Attorney, acting on behalf                            

of  the United  Kingdom  and  the  Crown  Colony  of  Hong  Kong,

initiated extradition  proceedings against  Oen in April  1987, a

full decade before the scheduled date of reversion.  Id. at 1403.                                                                  

Oen  was charged  with false  accounting and  publishing a  false

statement, extraditable  offenses under Article III  of the US-UK

extradition  treaty.   Id. at 1405.   Oen  argued that  if he was                                    

extradited  and convicted  then the  possibility existed  that he

would  remain  incarcerated  beyond July  1,  1997,  the  date of

reversion.  He argued that this  hypothetical scenario would have

the  effect of extraditing him  to China in  violation of Article

XII of the treaty. Id. at 1403.                                

            The Ninth  Circuit disagreed  and concluded  that the

Terlinden  definition  of  "extradition"  meant  that  "[n]either                   

deportation  nor surrender  other  than in  response to  a demand

pursuant  to  Treaty  constitutes  extradition."   Id.  at  1404.                                                                

Having thus rephrased the Terlinden definition, the Ninth Circuit                                             

panel concluded  that "even  if Oen  becomes  subject to  Chinese                                         

authority pursuant to a reversion of sovereignty upon cession and

termination of the British lease  of Hong Kong, he will not  have

been extradited to China." Id. (emphasis added).                                        

            I find the Oen court's  conclusion unsatisfactory for                                    

three reasons.   First, as my previous  discussion elaborates, it

does not follow from  either the commonly settled meaning  of the

word  "extradition"  or  the  term's operative  legal  usage,  as

                               -17-                                          17

manifested  by  the  Supreme  Court's  definition  in  Terlinden.                                                                          

Instead it proceeds  upon a rearticulated and truncated  sense of

the  term that  does not  correspond to  Terlinden and  that cuts                                                            

against international practice and the meaning that the term  and

its French and Latin cognates have carried since Roman antiquity.

            Second,  even  on  its   own  terms,  the  Oen  court                                                                    

misapplied the meaning of  the word "extradition."  Specifically,

even  if  one  accepts the  Oen  view  that a  surrender  must be                                         

effectuated in response to  a demand pursuant to treaty  in order

for it to constitute  an extradition, then a Hong  Kong relator's

post-reversion  surrender would qualify.   In view  of the treaty

architecture  that surrounds  the  impending  reversion  and  the

provisions in  the Joint  Declaration that address  the juridical

and legal transfer of sovereignty, it is difficult to see how the

Crown  Colony will  surrender custody  over Lui  and jurisdiction

over his criminal  case to  the Chinese successor  regime in  the

absence of  the demands on his person qua criminal defendant that                                                   

owe their legal status solely to treaty.  See, e.g., Sino-British                                                             

Joint  Declaration,  para. 1  ("The  Government  of the  People's

Republic of  China declares . .  . that it has  decided to resume

the exercise of  sovereignty over  Hong Kong with  effect from  1

July 1997.").7

                                                      

            7The surrender of sovereignty and Chinese demands
  on Hong Kongese criminal defendants upon reversion all flow
  from treaty provisions.  The United Kingdom's sovereignty
  over Hong Kong stems from cessions of territory made in 1842
  (pursuant to the Treaty of Nanking) and 1860 (pursuant to the

                               -18-                                          18

            Third,  the  factual  pattern  in Oen  was  radically                                                           

dissimilar to the one that the court faces in this case.  In Oen,                                                                          

the relator  raised only a distant  hypothetical possibility that

he  would  remain incarcerated  in  Hong  Kong prisons  following

reversion some ten or nine years later.  No one doubted that Oen,

upon extradition, would be tried and, if necessary,  sentenced by

courts of the British Crown Colony and imprisoned in Crown Colony

gaols. 

            The Oen  court thus  did not  address  itself to  the                             

situation in this case, where it is certain as a practical matter

and conceded by the government that the relator's trial would not

be under the courts of the British Crown Colony.   Therefore, the

Oen  decision did  not  fully  address  the issue  that  squarely             

confronts   us  today,   whether  Lui's   surrender  to   Chinese

authorities  after reversion  for  trial will  amount to  another                                                  

                                                      

  Convention of Peking) and a ninety-nine year lease contained
  in the Convention of Beijing, June 9, 1898.  See Shawn B.                                                            
  Jensen, International Agreements Between the United States                                                                      
  and Hong Kong Under the United States-Hong Kong Policy Act, 7                                                                      
  Temp. Int'l &amp; Comp. L.J. 167, 168-69 (1993); see also 1                                                                 
  Treaties and Agreements with and Concerning China, 1894-1919,                                                             
  130, No. 1898/11 (1921) (cited in Oen, 858 F.2d at 1403).                                                 
  Moreover, the three constitutive parts of Hong Kong -- Hong
  Kong proper (1842), Kowloon (1860), and the New Territories
  (1898) -- are scheduled to revert to China on July 1, 1997
  pursuant to the Sino-British Joint Declaration which was
  signed on December 19, 1984 and entered into force on May 27,
  1985.  See Jensen, supra, at 170-73.  That international                                    
  agreement, by addressing the Chinese successor regime's
  executive, legislative, and judicial powers, provides for the
  transfer of jurisdiction over persons accused of criminal
  offenses and in custody in Hong Kong at the date of
  reversion.  See Joint Declaration, para. 3(3).                             

                               -19-                                          19

extradition.  Read closely, Oen simply refuses to conclude that a                                         

previously convicted, already incarcerated prisoner is extradited

upon reversion.   This is not  the predicament with Lui.   I thus

believe that Oen is unpersuasive and not on point.                          

                              III.                                         III. 

Legislative Intent, Judicial Deference, and Separation of Powers           Legislative Intent, Judicial Deference, and Separation of Powers 

            Lui's case  also presents  a difficult  question with

respect   to   whether  certification   of  extradition   in  the

circumstances known to the  court and conceded by the  government

would comport with the legislature's intent  in ratifying the US-

UK extradition  treaties.  For the  reasons the follow, I  do not

believe  certifying  Lui  for   extradition  would  accord   with

legislative intent.

            The legislative history surrounding the United States

Senate's  ratification  of the  supplementary  treaty,  which the

district  court ably  canvassed,  indicates that  the Senate  was

concerned about the extent and degree to which it could trust the

United  Kingdom  and its  judicial system  to  be fair  and just,

ultimately  concluding that  the  United  Kingdom's  courts  were

worthy of confidence.  See  99th Cong., 2d Sess., 132 Cong.  Rec.                                    

9119-71 (daily  ed. July 16,  1986) (reprinting the  Senate floor

debate on ratification)  (cited in Lui,  1997 WL at  *6).  In  my                                                

view,  to interpret  the  bilateral treaties  between the  United

Kingdom and the United States so as to allow the benefits of such

specially placed trust to be assumed by a non-signatory sovereign

                               -20-                                          20

would fail  to adhere to  the Senate's intent.   As  the district

court  explained, "[i]t is clear beyond rational dispute that the

Senate would not have ratified had there been any suggestion that

the Treaty provisions could be extended, even by circumstance, to

China."  Lui, 1997 WL at *6.                       

            I reach this conclusion  understanding full well that

the United States signed  an agreement on December 20,  1996 with

the government of the  fledgling Hong Kong Special Administrative

Region ("HKSAR"),  the  British Crown  Colony's successor,  which

provides   for  reciprocal   post-reversion  extradition.     See                                                                           

Agreement  Between the Government of the United States of America

and the Government  of Hong  Kong for the  Surrender of  Fugitive

Offenders, Dec.  20, 1996. However, the new  treaty constitutes a

different bargain than  the one voted upon by the  Senate when it

ratified  the  US-UK  bilateral  treaties.    Moreover,  the  new

agreement will not  enter into force, if it indeed does so, until

such time as the Senate, to which the new treaty was submitted on

March 3, 1997, gives its advice and consent by a constitutionally

required two-thirds  vote.   See U.S.  Const. art.  II,   2;  143                                          

Cong. Rec. S1846 (daily ed. Mar. 3, 1997).8

                                                      

            8In reaching this conclusion, I am mindful of the
  United States-Hong Kong Policy Act of 1992 (commonly known as
  the McConnell Act), codified at 22 U.S.C.    5701-5732.  As
  commentators have explained, this congressional enactment
  "allows the United States to treat Hong Kong, where
  appropriate, as a separate entity from the PRC for purposes
  of U.S. domestic law." Christopher K. Costa, Comment, One                                                                     
  Country-Two Foreign Policies: United States Relations With                                                                      
  Hong Kong After July 1, 1997, 38 Vill. L. Rev. 825, 855                                        

                               -21-                                          21

            In my view,  therefore, the recently signed  US-HKSAR

extradition  treaty  is itself  highly  probative  of the  proper

interpretation  that  must be  given  to  the existing  bilateral

extradition  treaties between  the United  States and  the United

Kingdom  under which  Lui's  extradition to  Hong  Kong is  being

sought.  Put simply, these treaties do  not survive the surrender

of sovereignty to China  and do not contemplate the  surrender of

relators  to stand trial in  courts under the  sovereign aegis of

China.    See Janice  M. Brabyn,  Extradition  and the  Hong Kong                                                                           

Special Administrative Region, 20  Case W. Res. J. Int'l  L. 169,                                       

173 (1988)  ("Hong Kong's  extradition  relationships with  other

states  ha[ve]  always been  exclusively  vested  in the  British

Crown. . . . Hong Kong's present extradition powers and relations

are [thus] a direct  consequence of, and are dependent  upon, its

colonial status.   If nothing is done  between now and 1997, both

powers and relations will end when that colonial status ends.").

            In   ratifying   the   US-UK  bilateral   extradition

treaties,  I  believe  the  political branches  have  judged  the

                                                      

  (1993).  Under the McConnell Act's provisions, "the areas in
  which separate treatment is appropriate are determined by the
  terms of the [Sino-British] Joint Declaration . . . . [which]
  grants Hong Kong a 'high degree of autonomy' in nine areas:
  economic policy, trade, finance, monetary policy, shipping,
  communications, tourism, culture and sport."  Id.  The                                                             
  McConnell Act would not appear to have any direct bearing on
  this case, which involves foreign affairs and international
  law enforcement, because "[t]he Act does not establish a U.S.
  policy toward Hong Kong in the two areas reserved to PRC
  control by the Joint Declaration--defense and foreign
  affairs."  Id. at 856; see also Jensen, supra note 7, at 180-                                                         
  81.

                               -22-                                          22

justice system of  the United  Kingdom and of  the British  Crown

Colony  of  Hong Kong  to be  sufficiently  fair to  send accused

persons there for trial.  Until  such time as the Senate ratifies

the  US-HKSAR extradition  treaty no  such similar  expression of

faith  or  trust has  been made  by  the political  branches with

respect to China or to the Chinese successor to the British Crown

Colony, which, if he is extradited, will try and punish Lui.  The

United  States currently  has no  extradition treaty  with China,

which enjoys  extradition relations  with but one  other country,

Russia.    Separation of  powers  principles  and judicial  self-

restraint  counsel that this court is not at liberty to interpret

Article XII of  the US-UK extradition treaty in such  a way so as

to  yield a  result  for  which the  Senate  did not  bargain  in

ratifying the US-UK extradition treaty  and which it is currently

debating  in   the  form  of  the   recently  submitted  US-HKSAR

agreement.  See 143 Cong. Rec. S1846 (daily ed. Mar. 3, 1997).                          

            Of special  import is the fact  that the supplemental

US-UK treaty was ratified by the Senate in 1986 at a time when it

was fully aware of the widely publicized Sino-British Declaration

regarding Hong Kong's reversion in 1997.  The supplemental treaty

nonetheless does not limit or otherwise circumscribe the terms of

Article XII of the main treaty.  As the panel's opinion explains,

the supplemental treaty, as  ratified by the Senate in  1986, "is

entirely silent on the question  of reversion."  Slip op.  at 11.

Because  Article XII, on my  reading, allows only for extradition

                               -23-                                          23

for offenses that  can be  tried and punished  by the  requesting

sovereign, and  because the  supplemental treaty does  not create

any  exception  for  reversion-affected  relators  like  Lui, the

treaty, as  I read it and as  the district court found, indicates

that  no right to demand extradition and no corresponding duty to

surrender Lui exists  where it is conceded  that Lui will not  be

tried  under  courts of  the  United  Kingdom  or  its  dependent

territories. 

            This silence  in the  face of Article  XII's apparent

requirement  that relators are only  to be tried  by the judicial

authorities of the two Contracting Parties is telling because the

presumption  in  American  and   international  law  is   against

extraditability  in the  absence of  any treaty-created  right or

obligation.   Applicable  Supreme  Court   precedent  and  "[t]he

principles of international law recognize no right to extradition

apart from treaty.  While a  government may, if agreeable to  its

own  constitution and  laws,  voluntarily exercise  the power  to                                                   

surrender  a fugitive from justice  to the country  from which he

has fled . . . the legal right  to demand his extradition and the                                                                           

correlative  duty to surrender him to the demanding country exist                                                                           

only when  created by treaty."  Factor v. Laubenheimer,  290 U.S.                                                                

276, 287 (1933)  (emphasis added);  see also 18  U.S.C.     3181,                                                      

                               -24-                                          24

3184; Restatement (Third) of  Foreign Relations Law   475  &amp; cmt.

a.9  

            Despite  the foregoing,  the panel  opinion construes

the US-UK treaties as requiring Lui's extradition to Hong Kong by

invoking, inter  alia, the  principles that extradition  treaties                               

are to be construed  liberally in favor of enforcement,  see slip                                                                      

op. at 15 (citing Laubenheimer, 290 U.S. at 298), and with  great                                        

deference to  executive branch  interpretation. See id.  at 14-15                                                                 

(citing  Laubenheimer, 290 U.S. at 295; Howard, 996 F.2d at 1330-                                                        

31 &amp; n.6).

                                                      

            9The United States recognizes only one statutory
  exception to this principle.  Specifically, 18 U.S.C.  
  3181(b) permits "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" upon
  the fulfillment of certain criteria.  The instant case
  involves allegations of economic crimes and thus does not
  implicate this recently and narrowly drawn exception to the
  generally operative principle of American and public
  international law.  
            As the quotation from Laubenheimer indicates, it                                                        
  should be understood that this opinion draws a distinction
  between voluntary extradition and extraditability as of right
  or obligation.  "[I]t is now clear that apart from a treaty a
  state has no duty to deliver up a person who has sought
  asylum within its boundaries.  If the state wishes, it can
  afford him a refuge and protection . . . . Of course, a state
  is under no duty to afford asylum to a fugitive; it may expel
  him from its territories if it choose, and without complaint
  from the individual who is expelled."  United States ex rel.                                                                        
  Donnelly v. Mulligan, 74 F.2d 220, 222 (2d Cir. 1934).  This                                
  distinction may appear academic in light of the government's
  expressed desire to extradite Lui in this case, but it is a
  distinction that is not without significance.

                               -25-                                          25

            These  arguments,  while  worthy   of  consideration,

ultimately fail to justify  a result that does not  correspond to

the relevant  treaty provisions in Articles  I and XII or  to the

congressional intent  reflected therein,  viz.,  that the  United                                                        

States agrees to extradite fugitives sought by authorities in the

United Kingdom and its dependent territories to be  prosecuted in

the  courts and under  the law of  those jurisdictions.   I agree

with  the  district  court that  a  refusal  to  certify Lui  for

extradition  requires  no  untoward  judicial  interference  with

prerogatives constitutionally entrusted  in the executive  branch

of government.  On the contrary, separation  of powers principles

and  the  prevention  of  undue encroachment  upon  the  Senate's

constitutional  prerogatives counsel  against certifying  Lui for

extradition under the peculiar circumstances present in his case.

            Specifically,   I   do   not  agree   that   refusing

certification in  Lui's case  along the  lines that the  district

court  established   implies  any  judicial   arrogation  of  the

executive's power over our  affairs with foreign nations.   Under

the analysis ably laid  out by the district court, the refusal to

certify Lui's  extraditability does not stem  from any assessment

or judgment about the fairness  or trustworthiness of the Chinese

judicial or penal systems, a determination that the third  branch

of government is not  generally empowered or as qualified  as the

political  branches  to  make.    The  district  court  correctly

                               -26-                                          26

concluded that  the certification  question is an  entirely legal

one and that     

          it would  not matter if  China's legal system
          were  more efficient  and humane  than either
          the United States'  or the United  Kingdom's.
          The  bottom line  is  that the  terms of  the
          Treaty  do  not  allow  extradition  when the
          requesting sovereign is unable to try  and to
          punish the  relator.  [And t]he  Crown Colony
          of Hong  Kong will  be unable to  try and  to
          punish Lui prior to reversion. 

Lui, 1997 WL at *6.             

            I  therefore cannot agree  with an  interpretation of

the US-UK  bilateral treaties that would  permit circumstances to

conspire so as to allow  a relator to be extradited to  Hong Kong

where the practical reality is that China, a sovereign state with

which the United States  has no extradition treaty, will  try and

punish  Lui.    Neither can  I  agree  with  the panel  opinion's

conclusion  that,  because Lui's  extradition  is  sought by  the

current Hong Kong regime, the right to demand extradition and the

correlative duty to surrender him in fact do exist, regardless of

what is conceded will transpire upon his arrival in Hong Kong. 

            The opinion  correctly notes that "governments of our

treaty partners  often change, sometimes by  ballot, sometimes by

revolution or other means, and  the possibility or even certainty

of such change does  not itself excuse compliance with  the terms

of the agreement embodied in the treaties between the countries."

Slip op. at 3.  But the  instant case does not raise the question

presented  by a mere change  in government, whether peacefully or

                               -27-                                          27

violently  accomplished.   Instead it  represents a  situation in

which sovereignty  over a  particular territory, Hong  Kong, will                           

revert  from one  sovereign, the  United Kingdom,  with whom  the

United States  has signed and ratified an  extradition treaty, to

another sovereign, the People's Republic of China, with which the

United States currently has no such treaty relationship.

            In my  view, this court cannot  fail to differentiate

between a change in government, which ordinarily  does not affect

treaty-based obligations,  and  a change  in sovereignty  brought

about  when territory of one sovereign state is ceded and becomes

part  of  the  territory  of  another  preexisting  state,  which

generally terminates  the effect  of treaties of  the predecessor

state  with respect  to the  territory in  question.   See Vienna                                                                    

Convention on Succession  of States in Respect  of Treaties, art.

15,  U.N.  Doc. A/CONF.  80/31  (1978), 72  Am.  J. Int'l  L. 971

(1978).10 

                                                  

            10Although the Convention on Succession presently
lacks the requisite signatories for it to enter into force, and
although the United States is not a signatory, the Convention is
nonetheless viewed as an authoritative statement of the rule
governing the succession of states under public international
law.  See Jensen, supra note 7, at 180-81 (citing Michael                                 
Akehurst, A Modern Introduction to International Law 159 (1987)                                                              
(noting that while the Convention on Succession "is not yet in
force . . . many of its provisions codify the customary
international law on the subject")).

                               -28-                                          28

            Whatever   difficulties  may  arise  in  sorting  out

succession  questions in  other contexts,11  in  this case  it is

clear  -- and the executive branch does not question -- that Hong

Kong  will not succeed to the rights and obligations contained in

the US-UK extradition treaties,  as might have been the  case had

Hong Kong become  an independent  state in its  own right  rather

than reverting to  Chinese sovereignty.  See, e.g., Brabyn, supra                                                                           

at 174  ("For treaty-based relations, ex-colonies  can often rely

upon  the  general principles  of  treaty  succession [to  secure

continuity in international  legal relations].  . .  . Hong  Kong

[however] is not moving from colonial status to independence.  It

is  being restored to the  sovereignty, or resuming  its place as

part,  of the PRC. . . . [After reversion, existing international

treaties  involving  Hong  Kong]  must  be  read  as  subject  to

incompatibility with the sovereignty of the PRC.").

            Accordingly, I believe that this court must recognize

that  the   Crown  Colony's   present  ability  to   fulfill  the

requirements imposed  by the US-UK extradition  treaties can only

be assessed in light of the concession that the Crown Colony will

not in fact try  or punish him and with  an eye to the  fact that

the Chinese successor regime in Hong Kong will not succeed to the

Crown  Colony's  extradition rights  and  obligations.   See  id.                                                                           

                                                  

            11See generally D.P. O'Connell, State Succession in                                                                         
Municipal Law and International Law (2 vols. 1967); D.P.                                             
O'Connell, The Law of State Succession (1956); Louis Henkin et                                                
al., International Law 286 (3d ed. 1993); Restatement (Third) of                                
Foreign Relations Law   208, Reporters' Note 1.

                               -29-                                          29

Because  of  these  facts,  this  court cannot  certify  Lui  for

extradition because the Crown Colony's extradition  request fails

to  live up  to  the  United  Kingdom's  promise,  as  I  believe

memorialized in the terms of the extradition treaties, to try all

relators extradited  from the United  States in courts  under its

jurisdiction.

            Finally,  I am  unpersuaded by  the panel's  argument

that  refusing to certify  Lui for extradition  would be improper

because  it might  mean  that "any  relator  extradited from  the

United States to Hong Kong at any point since the  signing of the

Joint Declaration, was, if  he faced a term of  imprisonment upon

conviction  that  could  conceivably  extend  past  the  date  of

reversion, sent to Hong Kong  in violation of the Treaty."   Slip

op. at 30.

            In  the  first  place,  as  I  explained  earlier  in

discussing   Oen,   Lui's  case   raises   a   peculiar  set   of                          

circumstances. The  record indicates and  the government concedes

that Lui will  be both tried and, if  convicted, punished under a

judicial  and  penal system  not  under the  jurisdiction  of the

United  Kingdom.   Second,  I am  not  persuaded by  the  panel's

argument that  refusing to certify  Lui might cast  aspersions on

the rectitude of other near-reversion extraditions and thus "make

extradition to  Hong Kong .  . .  the exception  rather than  the

rule."   Slip op.  at 29 (quoting  Oen, 858 F.2d  at 1404).   The                                                

implication  would  appear to  be that  this  cannot be  what the

                               -30-                                          30

Senate intended.  In  view of the legislative  considerations and

determinations  that I have outlined above, I do not believe that

this court  can speculate that the  unavailability of extradition

to Hong Kong  in the circumstances  of this case fails  to uphold

the Senate's expressed concerns  and legislated intent. The US-UK

extradition treaties  do not just  implicate Hong Kong;  they are

comprehensive agreements  that encompass  the United  Kingdom and

all the territories dependent upon it.12  I cannot agree with the

panel's  implication  that  the district  court's  interpretation

would  have been a deal-breaker and the Senate would have refused

to ratify the treaties if it had been told that their terms would

be   interpreted  to   prevent   Lui's   extradition   in   these

circumstances.   On the  contrary,  I believe  that the  district

court was  much nearer the mark  when it concluded that  "[i]t is

clear  beyond rational  dispute  that the  Senate would  not have

ratified  had  there been  any  suggestion  that the  Treat[ies']

provisions could  be extended,  even by circumstance,  to China."

Lui, 1997 WL at *6.             

            To  conclude, this  court faces  a situation  that my

research  indicates has  no  truly analogous  counterpart in  the

annals of modern  international law.   Because I  do not  believe

that the panel's opinion reaches the correct result, and  because

I  believe that  the  full court  should  hear and  consider  the

                                                  

            12See supra note 2.                                 

                               -31-                                          31

numerous difficult legal questions that this case raises, I would

grant the petition for en banc review.

            For  the foregoing  reasons,  I respectfully  dissent

from the denial of the petition.

                               -32-                                          32
