
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1084                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                            LUI KIN-HONG, a/k/a JERRY LUI,                                      Appellee.                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of the court is corrected as follows:            On p.10, l.18-19, replace "132 Cong. Rec. S9251 (1986)" with "132        Cong. Rec. 16,819 (1986)"            On p.10, n.6, replace "132 Cong. Rec. S9119 (1986)" with "132        Cong. Rec. 16,598 (1986)"            On p.11, l.12, replace "143 Cong. Rec. S1846 (1997)" with "143        Cong. Rec. S1846 (daily ed. Mar. 3, 1997)"                             United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1084                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                            LUI KIN-HONG, a/k/a JERRY LUI,                                      Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                         _____________                           Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ___________________            Alex Whiting, Assistant  United States Attorney, with whom  Donald            ____________                                                ______        K.  Stern,   United  States  Attorney,  and   Susan  Hanson-Philbrick,        _________                                     _______________________        Assistant United States Attorney were on brief, for the United States.            Andrew  Good, with  whom Harvey  A. Silverglate and  Silverglate &            ____________             ______________________      _____________        Good were on brief, for appellee.        ____            Michael Posner and John Reinstein  on brief for Lawyer's Committee            ______________     ______________        for Human Rights  and American Civil Liberties Union of Massachusetts,        amici curiae in support of appellee.                                 ____________________                                    March 20, 1997                                 ____________________                      LYNCH, Circuit Judge.   The United States  District                      LYNCH, Circuit Judge                             _____________            Court granted  a  writ  of  habeas  corpus  to  Lui  Kin-Hong            ("Lui"),  who  sought  the  writ  after  a  magistrate  judge            certified  to the  Secretary of  State that  she may,  in her            discretion, surrender Lui for extradition to the Crown Colony            of Hong Kong.   The United Kingdom,  on behalf of Hong  Kong,            had  sought Lui's extradition on a warrant for his arrest for            the crime of bribery.   Lui's petition for habeas  corpus was            premised on the fact that  the reversion of Hong Kong to  the            People's Republic of China  will take place on July  1, 1997,            and it  will be impossible for the Crown Colony to try and to            punish Lui before that date.  The United States  appeals.  We            reverse  the order of the district court granting the writ of            habeas corpus.                      The  United States  argues that  Lui is  within the            literal terms of the  extradition treaties between the United            States and the United  Kingdom, that the courts may  not vary            from the language of the treaties, and that the certification            must issue.   Lui argues  that the language  of the  treaties            does  not permit  extradition,  an argument  which is  surely            wrong.   Lui's more serious  argument is that  the Senate, in            approving the treaties, did not mean to permit extradition of            someone to  be tried and  punished by a  government different            from the  government which has  given its  assurances in  the            treaties.                        Lui  does not  claim that  he faces  prosecution in            Hong Kong on  account of his race, religion,  nationality, or            political opinion.   He does not  claim to be charged  with a            political offense.   The treaties give  the courts a  greater            role  when  such considerations  are  present.   Here,  Lui's            posture is that of  one charged with an ordinary crime.   His            claim is  that  to surrender  him  now to  Hong  Kong is,  in            effect, to send him  to trial and punishment in  the People's            Republic of  China.  The  Senate, in approving  the treaties,            could  not have intended such a result, he argues, and so the            court should interpret the  treaties as being inapplicable to            his case.  Absent a treaty permitting extradition, he argues,            he may not be extradited.                      While Lis it persuasive.  The Senate was well aware            of the reversion when it approved a supplementary treaty with            the United Kingdom  in 1986.   The Senate  could easily  have            sought language to address  the reversion of Hong Kong  if it            were  concerned,  but  did not  do  so.    The President  has            recently executed  a new treaty with  the incoming government            of  Hong Kong, containing the same guarantees that Lui points            to  in  the  earlier  treaties,  and  that  treaty  has  been            submitted  to the  Senate.  In  addition, 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                                         -4-                                          4            with  the  terms of  the agreement  embodied in  the treaties            between the countries.  Treaties contain  reciprocal benefits            and  obligations.    The  United  States  benefits  from  the            treaties  at   issue  and,   under  their  terms,   may  seek            extradition  to the date of  reversion of those  it wants for            criminal offenses.                      Fundamental  principles  in our  American democracy            limit the role of courts in certain matters, out of deference            to the  powers allocated by the Constitution to the President            and to the  Senate, particularly  in the  conduct of  foreign            relations.   Those  separation  of  powers  principles,  well            rehearsed in extradition law,  preclude us from rewriting the            treaties which  the President  and the Senate  have approved.            The  plain language  of the  treaties does  not support  Lui.            Under the treaties  as written,  the courts may  not, on  the            basis of the  reversion, avoid certifying to the Secretary of            State  that Lui may be  extradited.  The  decision whether to            surrender  Lui,  in  light  of  his  arguments,  is  for  the            Secretary of State to make.                      This is not to say American courts acting under the            writ of habeas corpus, itself guaranteed in the Constitution,            have no independent  role.  There  is the ultimate  safeguard            that  extradition  proceedings  before  United  States courts            comport  with the Due Process Clause of the Constitution.  On            the facg presenting a  serious constitutional issue of denial                                         -5-                                          5            of due process.  Some future case may, on  facts amounting to            a  violation of  constitutional guarantees,  warrant judicial            intervention.  This case does not.                                          I.                      We repeat  the facts essentially as  we stated them            in  our earlier opinion.   United States v.  Lui Kin-Hong, 83                                       _____________     ____________            F.3d 523 (1st Cir. 1996) (reversing district court's decision            to release Lui on bail).                      Lui  is charged  in  Hong Kong  with conspiring  to            receive and receiving over US $3 million in bribes from Giant            Island  Ltd. ("GIL")  or GIL's  subsidiary, Wing  Wah Company            ("WWC").    Lui, formerly  a senior  officer  of the  Brown &            Williamson  Co., was  "seconded"  in 1990  to its  affiliated            company, the  British American  Tobacco Co. (Hong  Kong) Ltd.            ("BAT-HK"), where he became Director of Exports in 1992.  The            charges  result  from  an  investigation  by  the  Hong  Kong            Independent Commission Against Corruption ("ICAC").  The Hong            Kong authorities charge  that GIL  and WWC,  to which  BAT-HK            distributed  cigarettes, paid  bribes  in excess  of HK  $100            million  (approximately US $14 to $15 million) to a series of            BAT-HK executives, including Lui.   The bribes were allegedly            given in exchange  for a  virtual monopoly on  the export  of            certain  brands of  cigarettes  to the  People's Republic  of            China  ("PRC")   and  to   Taiwan.    Among   the  cigarettes                                         -6-                                          6            distributed  were the  popular Brown  & Williamson  brands of            Kent,  Viceroy,  and  Lucky  Strike.   GIL  purchased  three-            quarters  of a  billion dollars  in cigarettes  from 1991  to            1994, mostly from BAT-HK.                       A  former GIL  shareholder, Chui  To-Yan ("Chui"),            cooperated  with the authorities and, it  is said, would have            provided evidence  of Lui's  acceptance of  bribes.  Some  of            Lui's alleged co-conspirators attempted to dissuade Chui from            cooperating.     Chui  was   later  abducted,  tortured,  and            murdered.  The ICAC  claims that the murder was  committed to            stop Chui from testifying.  Lui  is not charged in the murder            conspiracy.    Lui  was  in the  Philippines  (which  has  no            extradition treaty with  Hong Kong) on  a business trip  when            the Hong  Kong authorities unsuccessfully sought  to question            him in April  1994.  Lui has not returned  to Hong Kong since            then.                       At the request of the United Kingdom ("UK"), acting            on behalf of Hong  Kong, United States marshals arrested  Lui            as  he got off a plane at  Boston's Logan Airport on December            20, 1995.  The arrest was for the  purpose of extraditing Lui            to Hong Kong.1   The  government asked that  Lui be  detained            pending  completion  of  the  extradition proceedings.    The                                            ____________________            1.  The most recent warrant for Lui's arrest from the Hong            Kong authorities is dated February 5, 1996; there were            earlier warrants.                                         -7-                                          7            magistrate judge, after a hearing, denied Lui's request to be            released on bail.                      The district court, on April 25, 1996, reversed the            order  of the magistrate judge  and released Lui  on bail and            conditions.  Lui Kin-Hong v. United States, 926 F. Supp. 1180                         ____________    _____________            (D.  Mass. 1996).  The district court held that the reversion            of Hong Kong to the PRC on July 1, 1997, raised complex legal            issues  that  would  result  in  protracted  proceedings  and            presented a "special circumstance" overriding the presumption            against bail.  Id. at 1189.  That court also found that there                           ___            were conditions of release that would adequately ensure Lui's            presence at future  proceedings.   Id. at 1196.   This  court                                               ___            reversed the district court and, on May 14, 1996, ordered Lui            held pending the resolution  of the extradition certification            issue.  Lui, 83 F.3d at 525.                    ___                      The magistrate judge commenced extradition hearings            on  May 28, 1996.   Those proceedings,  during which evidence            was  taken, lasted  three days.   The magistrate  judge found            that  there  was  probable  cause  to believe  that  Lui  had            violated Hong Kong law on  all but one of the charges  in the            warrant.2   Magistrate Judge Karol,  pursuant to 18  U.S.C.              3184,    issued   a   careful   decision   certifying   Lui's            extraditability on August 29, 1996.  In re Extradition of Lui                                                 ________________________                                            ____________________            2.  The magistrate judge found the government had not met its            burden of showing probable cause as to Count 2, concerning a            payment of HK $1,953,260 made on or about October 21, 1988.                                         -8-                                          8            Kin-Hong  ("Lui Extradition"),  939  F. Supp.  934 (D.  Mass.            ________    _______________            1996).  On September  3, 1996, Lui filed an  amended petition            for  a writ  of habeas  corpus, the  only avenue  by which  a            fugitive sought for extradition  (a "relator") may attack the            magistrate judge's decision,3 with the district court.                      After  a  hearing,  the  district  court  issued  a            memorandum and order  granting the writ  on January 7,  1997.            Lui Kin-Hong v. United States ("Lui Habeas"), --- F. Supp. --            ____________    _____________   __________            -,   1997 WL  37477 (D.  Mass. Jan. 7,  1997).   The district            court reasoned that, because  the Crown Colony could  not try            Lui and punish him before the reversion date, the extradition            treaty  between  the  United  States and  the  UK,  which  is            applicable to Hong Kong, prohibited extradition.  Id. at ---,                                                              ___            *4-*5.   Because  no  extradition treaty  between the  United            States and the new government of Hong Kong has been confirmed            by the United States Senate, the district court reasoned, the            magistrate    judge    lacked    jurisdiction   to    certify            extraditability.  See id. at ---, *5-*11.  The district court                              ___ ___            denied the government's motion for reconsideration on January            13,  1997.  This court then stayed the district court's order            and expedited the present appeal.                                              ____________________            3.  Due to the limited function of an extradition proceeding,            there is no direct appeal from a judicial officer's            certification of extraditability.  See Collins v. Miller, 252                                               ___ _______    ______            U.S. 364, 369-70 (1920).  A habeas petition is therefore the            only mechanism by which a relator may seek review.                                         -9-                                          9                      At the time Lui was arrested  in Boston in December            1995, more than eighteen months remained before the reversion            of  Hong Kong  to  the PRC  on  July 1,  1997.   The  various            proceedings in our court system have now occupied fifteen  of            those months, as the magistrate judge and district judge have            given careful consideration to the issues.                                         II.                      The extradition request  was made  pursuant to  the            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 (the  "Treaty"), as  amended by the  Supplementary 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  (the            "Supplementary  Treaty").4    The  original  Treaty was  made            applicable to Hong Kong,  among other British territories, by            an  exchange of  diplomatic notes  on October  21, 1976.   28            U.S.T. at 238-41.5  The Supplementary Treaty is applicable to                                            ____________________            4.  We refer to the Treaty and the Supplementary Treaty as            "the Treaties."            5.  By its terms, the Treaty applies to the UK, and, in            addition, to "any territory for the international relations            of which the United Kingdom is responsible and to which the            Treaty shall have been extended by agreement between the            Contracting Parties embodied in an Exchange of Notes."             Treaty, art. II(1)(a).                  The Treaty permits either the UK or the United States,            upon six months written notice, to terminate the application                                         -10-                                          10            Hong  Kong by its terms.   Supplementary Treaty,  art. 6(a) &            Annex.                      Hong Kong's status  as a Crown Colony  is coming to            an end on July  1, 1997, when Hong Kong is to  be restored to            the PRC.  The  impending reversion, at the expiration  of the            UK's ninety-nine year leasehold,  was formally agreed upon by            the UK and the PRC in 1984; the United States was not a party            to this agreement.  See  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,  ratified and entered            into  force  May 27,  1985, T.S.  No.  26 (1985)  (the "Joint            Declaration").  Under the terms of the Joint Declaration, the            PRC  "declares" its  "basic  policies" with  respect to  Hong            Kong.   Id.   art.  3.   The PRC  states that  it intends  to                    ___            establish  a  "Hong   Kong  Special  Administrative   Region"            ("HKSAR"),  id. art. 3(1), which will enjoy a "high degree of                        ___            autonomy except  in foreign and  defence affairs."   Id. art.                                                                 ___            3(2).  In addition,  the PRC states that  the HKSAR "will  be            vested  with . . . independent judicial power, including that            of final adjudication" and that  the "laws currently in force            in Hong  Kong will  remain  basically unchanged."   Id.  art.                                                                ___                                            ____________________            of the Treaty as to any territory to which the Treaty was            extended under article II(1)(a).  Id. art II(2).  To date, to                                              ___            our knowledge, neither party has attempted to invoke this            provision to terminate the application of the Treaty to Hong            Kong.                                         -11-                                          11            3(3).  These  "basic policies"  are, according  to the  Joint            Declaration,  to "remain unchanged  for 50 years."   Id. art.                                                                 ___            3(12).                      United   States   Senate   ratification    of   the            Supplementary Treaty  occurred on  July 17, 1986,  well after            the widely publicized signing of the Joint Declaration.   See                                                                      ___            132  Cong. Rec. 16,819 (1986).  Clearly, the Senate was aware            of the  planned reversion when it  approved the applicability            to Hong Kong of the Supplementary Treaty.6  The Supplementary            Treaty does not  contain an  exception for  relators who  can            show that their trial or punishment will occur after the date            of reversion.   Indeed, the Supplementary  Treaty is entirely            silent on the question of reversion.                      The  United States  does  not  have an  extradition            treaty  with the  PRC.   However, on  December 20,  1996, the            United   States  signed  an   extradition  treaty   with  the            government  of   the  nascent  HKSAR,   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 (the "New Treaty").  The New Treaty            will not enter into  force until the Senate gives  its advice                                            ____________________            6.  See, e.g., 132 Cong. Rec. 16,598 (1986) (statement of                ___  ____            Sen. Hatch) (commenting on applicability of Supplementary            Treaty to Hong Kong).                                         -12-                                          12            and consent.   It was  submitted to  the Senate  on March  3,            1997.  See 143 Cong. Rec. S1846 (daily ed. Mar. 3, 1997).                   ___            A.  United States Extradition Procedure                  ___________________________________                      In   the  United   States,   the   procedures   for            extradition  are governed by statute.  See 18 U.S.C. ch. 209.                                                   ___            The statute  establishes a  two-step procedure  which divides            responsibility  for extradition  between a  judicial officer7            and  the Secretary of  State.  The  judicial officer's duties            are set  out in  18 U.S.C.    3184.   In brief,  the judicial            officer,  upon complaint,  issues  an arrest  warrant for  an            individual sought for extradition,  provided that there is an            extradition treaty between the United States and the relevant            foreign government  and that the crime charged  is covered by            the  treaty.   See id.   If  a warrant  issues, the  judicial                           ___ ___            officer then conducts a hearing to determine if "he deems the            evidence   sufficient  to  sustain   the  charge   under  the            provisions  of  the proper  treaty."   Id.   If  the judicial                                                   ___            officer makes such a determination, he "shall certify" to the                                                    _____            Secretary  of State that a  warrant for the  surrender of the            relator "may  issue."   Id. (emphases added).   The  judicial                     ___            ___            officer is  also directed to  provide the Secretary  of State            with  a   copy  of  the  testimony  and   evidence  from  the            extradition hearing.  Id.                                     ___                                            ____________________            7.  The judicial officer may be any federal judge, any            authorized magistrate, or any state judge of a court of            general jurisdiction.  See id.   3184.                                   ___ ___                                         -13-                                          13                      It  is then  within the  Secretary of  State's sole                                  discretion  to determine  whether or  not the  relator should            actually be extradited.  See 18 U.S.C.   3186 ("The Secretary                                     ___            of  State  may order  the  person  committed under  section[]                       ___            3184 . . . of this  title to  be delivered to  any authorized            agent of such  foreign government . . . .") (emphasis added).            The  Secretary  has  the  authority to  review  the  judicial            officer's findings  of fact and conclusions  of law de novo,8                                                                __ ____            and  to  reverse  the  judicial  officer's  certification  of            extraditability   if   she   believes   that   it   was  made            erroneously.9 See 4  Abbell & Ristau,  International Judicial                          ___                      ______________________            Assistance:  Criminal -  Extradition    13-3-8(2),  at 266-69            ____________________________________            (1995); Note, Executive Discretion  in Extradition, 62 Colum.                          ____________________________________            L. Rev. 1313, 1316-25 (1962).  The Secretary may also decline            to  surrender  the relator  on  any  number of  discretionary            grounds,  including  but  not  limited  to, humanitarian  and                                            ____________________            8.    While not required to by statute, the Department of            State routinely accepts written submissions from relators in            conjunction with its review of extraditability.  4 Abbell &            Ristau, International Judicial Assistance:  Criminal --                    _______________________________________________            Extradition,   13-3-8(5), at 274 (1995).            ___________            9.  Although at first glance, this procedure might appear to            be of questionable constitutionality because it subjects            judicial decisions to executive review, rendering them non-            final, cf. Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), it                   ___ ______________            has been held that the judicial officer in an extradition            proceeding "is not exercising 'any part of the judicial power            of the United States,'" and instead is acting in "a non-            institutional capacity."  United States v. Howard, 996 F.2d                                      _____________    ______            1320, 1325 (1st Cir. 1993) (quoting In re Kaine, 55 U.S. (14                                                ___________            How.) 103, 120 (1852)).                                         -14-                                          14            foreign policy considerations.  See 4 Abbell & Ristau, supra,                                            ___                    _____               13-3-8(3),   at   269-73;  II   Bassiouni,   International                                                            _____________            Extradition: United  States Law and  Practice 601-04  (1987).            _____________________________________________            Additionally,  the  Secretary may  attach  conditions to  the            surrender  of the  relator.   See  Jimenez  v. United  States                                          ___  _______     ______________            District Court,  84  S.  Ct.  14, 19  (1963)  (Goldberg,  J.,            ______________            chambers  opinion) (denial  of stay)  (describing commitments            made by Venezuelan government  to United States Department of            State  as a condition of  surrender of fugitive);  4 Abbell &            Ristau, supra,    13-3-8(4), at 273-74;  II Bassiouni, supra,                    _____                                          _____            at 604.10  The State Department alone, and not the judiciary,            has  the   power  to  attach   conditions  to  an   order  of            extradition.   See,  e.g.,  Emami v.  United States  District                           ___   ____   _____     _______________________            Court,  834 F.2d  1444, 1453  (9th Cir.  1987); Demjanjuk  v.            _____                                           _________            Petrovsky, 776 F.2d 571, 584 (6th Cir. 1985).  Of course, the            _________            Secretary may also  elect to use diplomatic methods to obtain            fair treatment for the  relator.  See, Note, supra,  at 1325-                                              ___        _____            26; cf. In re Normano, 7 F. Supp. 329, 329 (D. Mass. 1934).                ___ _____________                      Thus,  under  18  U.S.C.      3184,  the   judicial            officer's  inquiry  is limited  to  a  narrow  set of  issues            concerning the  existence of  a treaty, the  offense charged,            and  the quantum of evidence offered.   The larger assessment                                            ____________________            10.  The United States has, for example, imposed conditions            as to the type of trial the relator would receive (e.g., in                                                               ____            civil, rather than martial law, court) and as to security            arrangements for the relator.  4 Abbell & Ristau, supra,                                                                _____            13-3-8(4), at 273 n.1.                                          -15-                                          15            of  extradition  and its  consequences  is  committed to  the            Secretary of State.      This  bifurcated procedure  reflects            the fact  that extradition proceedings  contain legal  issues            peculiarly  suited for judicial resolution, such as questions            of the standard of proof,  competence of evidence, and treaty            construction,  yet  simultaneously  implicate   questions  of            foreign policy,  which are  better answered by  the executive            branch.    Both institutional  competence rationales  and our            constitutional structure, which places primary responsibility            for  foreign  affairs in  the  executive  branch, see,  e.g.,                                                              ___   ____            United States  v. Curtiss-Wright Export Corp.,  299 U.S. 304,            _____________     ___________________________            319-22 (1936), support this division of labor.                       In    implementing    this    system    of    split            responsibilities  for  extradition,  courts   have  developed            principles  which  ensure,  among  other   things,  that  the            judicial   inquiry  does   not  unnecessarily   impinge  upon            executive  prerogative  and  expertise.    For  example,  the            executive branch's  construction of  a  treaty, although  not            binding upon the courts, is entitled to great weight.  Factor                                                                   ______            v.  Laubenheimer, 290 U.S. 276, 295 (1933); cf. United States                ____________                            ___ _____________            v. Howard, 996 F.2d 1320, 1330 n.6 (1st Cir. 1993) (deference               ______            to executive in extradition context stems, at least in  part,            from  fact  that  executive  wrote  and negotiated  operative            documents).  Another principle is that extradition  treaties,            unlike criminal  statutes, are  to be construed  liberally in                                         -16-                                          16            favor of enforcement  because they  are "in  the interest  of            justice  and friendly international  relationships."  Factor,                                                                  ______            290 U.S.  at 298.   These principles of  construction require            courts to:                      interpret extradition treaties to produce                      reciprocity between,  and expanded rights                      on    behalf    of,   the    signatories:                      "[Treaties] 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."            Howard, 996 F.2d at 1330-31 (quoting Factor, 290 U.S. at 293-            ______                               ______            94).                      Another  principle that  guides  courts in  matters            concerning extradition is the rule of non-inquiry.  More than            just a  principle of  treaty construction, the  rule of  non-            inquiry  tightly limits  the  appropriate  scope of  judicial            analysis  in an  extradition proceeding.   Under the  rule of            non-inquiry, courts refrain from "investigating  the fairness            of a  requesting nation's justice  system," id. at  1329, and                                                        ___            from inquiring "into the  procedures or treatment which await            a   surrendered   fugitive   in   the   requesting  country."            Arnbjornsdottir-Mendler v. United States,  721 F.2d 679,  683            _______________________    _____________            (9th Cir. 1983).   The rule of non-inquiry,  like extradition            procedures   generally,   is   shaped   by   concerns   about            institutional  competence  and by  notions  of  separation of                                         -17-                                          17            powers.   See United States  v. Smyth, 61 F.3d  711, 714 (9th                      ___ _____________     _____            Cir. 1995).11  It is not that questions about what awaits the            relator  in   the  requesting  country   are  irrelevant   to            extradition;  it   is  that   there  is  another   branch  of            government, which  has both final say  and greater discretion            in  these  proceedings,  to  whom these  questions  are  more            properly addressed.12                                            ____________________            11.  One commentator has analogized the rule of non-inquiry            to the "act of state" doctrine, which prohibits United States            courts from judging the governmental acts of a foreign            country performed within its own territory.  See Semmelman,                                                         ___            Federal Courts, The Constitution, and The Rule of Non-Inquiry            _____________________________________________________________            in International Extradition Proceedings, 76 Cornell L. Rev.            ________________________________________            1198 (1991).  The "act of state" doctrine, the Supreme Court            has said, "arises out of the basic relationships between            branches of government in a system of separation of powers.             It concerns the competency of dissimilar institutions to make            and implement particular kinds of decisions in the area of            international relations."  Banco Nacional de Cuba v.                                       ______________________            Sabbatino, 376 U.S. 398, 423 (1964).  This court has doubted,            _________            in dicta, that the rule of non-inquiry is constitutionally            mandated.  Howard, 996 F.2d at 1330 n.6.  Whether the                       ______            doctrine is constitutionally mandated is immaterial here.            12.  Nor is it true, as Lui suggests, that the rule of non-            inquiry is only appropriate where the existence of a treaty            reflects a substantive judgment about the fairness of another            nation's procedures.  The United States has maintained, over            time, extradition treaties with some of the world's most            oppressive and arbitrary regimes.  See 18 U.S.C.   3181                                               ___            (listing treaties of extradition and dates entered into).             The rule of non-inquiry expresses no judgment about a foreign                                              __            nation's ability and willingness to provide justice; it            simply defers that assessment to the second part of every            extradition proceeding -- review of extraditability and            determination of the appropriateness of surrender by the            Secretary of State.  Indeed, a leading commentator, in            discussing the scope of the Secretary's discretion under 18            U.S.C.   3186, has argued that it is precisely "because of                                                            __________            the rule of non-inquiry" that it is appropriate for the            Secretary to exercise discretion on humanitarian grounds.  II            Bassiouni, supra, at 602 (emphasis added).                       _____                                         -18-                                          18                      Lui contends  that, on July 1,  1997, the reversion            of Hong Kong to the PRC will result in his being subjected to            trial and punishment by a regime with which the United States            has no extradition  treaty.  This  future event, Lui  argues,            operates retroactively  to render his extradition illegal, as                                                                       __            of today,  because, he  says, extradition is  only legitimate            ________            where trial and punishment will be administered by the regime            with which the United States has a treaty.                        Although Lui  is  correct that  the government  has            conceded  that he will not  be tried before  reversion, it is            also quite  possible that  the scenario he  depicts will  not            arise.   The  new extradition  treaty with  the HKSAR  may be            approved  by   the  United  States  Senate,   establishing  a            continuity  of treaties  through and  beyond July  1, 1997.13            The United States government may choose to extend the current            Treaty by executive  agreement.14  To  the extent that  Lui's                                            ____________________            13.  The government does not argue that, absent any other            action and of their own accord, the Treaties would continue            beyond reversion to apply to Hong Kong.  Accordingly, on the            facts of this case, we find the discussion of the state            succession doctrine in Terlinden v. Ames, 184 U.S. 270                                   _________    ____            (1902), a case heavily relied upon by the district court, see                                                                      ___            Lui Habeas, --- F. Supp. at ---, 1997 WL 37477, at *4-*5, to            __________            be of little assistance to Lui.  Of course, the discussion in            Terlinden of the rule of non-inquiry is relevant, and            _________            supports our analysis.            14.  It may be argued that this alternative infringes upon            the Senate's prerogative, under the Treaty Clause, U.S.            Const., art. II,   2, to give its advice and consent.  But it            is hardly an appropriate judicial task to attempt to resolve            a hypothetical and not ripe dispute between the legislature            and the executive.                                         -19-                                          19            argument depends on the fairness of the procedures he will be            subjected to,  he asks this court to decide that the PRC will            not adhere to the Joint Declaration  with the UK, in which it            declared its  intention to maintain Hong  Kong's legal system            for fifty years.                      All  of these  questions involve  an evaluation  of            contingent political events.  The Supreme Court has said that            the indicia of a non-justiciable political question include:                       a  textually demonstrable  constitutional                      commitment  of the issue  to a coordinate                      political  department;  or   a  lack   of                      judicially  discoverable  and  manageable                      standards  for  resolving   it;  or   the                      impossibility  of   deciding  without  an                      initial  policy  determination of  a kind                      clearly  for  nonjudicial discretion;  or                      the    impossibility    of   a    court's                      undertaking     independent    resolution                      without  expressing  lack of  respect due                      coordinate branches of government;  or an                      unusual need  for unquestioning adherence                      to a political decision already  made; or                      the  potentiality  of embarrassment  from                      multifarious  pronouncements  by  various                      departments on one question.            Baker v.  Carr, 369 U.S. 186,  217 (1962).  While  not all of            _____     ____            these ingredients  are present here, several  are.  Moreover,            unlike  many "political questions,"  whose resolution, absent            judicial  determination,  must  await  the  vagaries  of  the            political  process, here  there is  a statutory  scheme which            provides  for  the  resolution   of  these  questions  by  an            identified  member of  the  executive branch.   The  case for                                         -20-                                          20            judicial  resolution  is  thus  weaker than  with  many  such            questions.                      The   principles   of   reciprocity   and   liberal            construction  also counsel against construing the Treaties so            as to  prohibit Lui's  extradition.   Hong Kong,  through the            United  Kingdom,  has  entered bilateral  treaties  with  the            United  States.  The United  States has sought extradition of            criminals  from  Hong  Kong in  the  past,  and  may wish  to            continue to  do so up until  July 1, 1997.   If the executive            chooses  to modify or abrogate the terms of the Treaties that            it negotiated, it has ample discretion to do so.  However, if            this court were to read a cut-off date vis-a-vis extraditions            to  Hong Kong into the Treaties, it would risk depriving both            parties of the benefit of their bargain.                      None  of  these principles,  including non-inquiry,            may be regarded as an absolute.  We, like the Second Circuit,            "can imagine situations where the relator, upon  extradition,            would be subject to  procedures or punishment so antipathetic            to  a  federal  court's  sense  of   decency  as  to  require            reexamination of the principle[s]"  discussed above.  Gallina                                                                  _______            v. Fraser,  278 F.2d 77, 79 (2d Cir. 1960).  This is not such               ______            a  case.    Lui  is  wanted  for  economic,  not   political,            activities  whose  criminality  is  fully  recognized in  the            United States.  His extradition is sought by the current Hong                                                             _______            Kong regime, a colony of Great Britain, which, as Lui himself                                         -21-                                          21            points  out,  is one  of this  country's most  trusted treaty            partners.  Moreover, Lui  has been a fugitive from  Hong Kong            since  1994.    He  has been  subject  to  extradition  since            entering the United States in December 1995.  That now only a            few months remain before the reversion of Hong Kong is partly            attributable to strategic choices made by Lui himself.  There            is nothing here which shocks the conscience of this court.            B.  The Treaties                ____________                      There  is   no   dispute  that   the   Treaty,   as            supplemented  by the  Supplementary  Treaty, is  currently in            effect and is applicable  to Hong Kong.  The  district court,            in granting Lui's habeas petition, reasoned that "the Treaty,            by its  own terms, does not allow the extradition of a person            to Hong  Kong if the Crown  Colony of Hong Kong  is unable to            try and to punish that person."   Lui Habeas, --- F. Supp. at                                              __________            ---, 1997 WL  37477, at *5.  The government counters that the            terms of the Treaty clearly  allow Lui's extradition.   There            is nothing in the  plain language of the Treaties  that would            permit  the  construction made  by the  district court.   The            principles discussed above argue persuasively against reading            judicially created limitations into the Treaties' unambiguous            text.             1.  Overview                ________                      We begin our analysis of the Treaties with  a brief            overview of the Treaties' operative provisions.  Article I of                                         -22-                                          22            the  Treaty  states the  basic reciprocal  compact, providing            that:                           Each Contracting Party undertakes to                      extradite   to   the   other,    in   the                      circumstances   and    subject   to   the                      conditions specified in this  Treaty, any                      person found  in  its territory  who  has                      been  accused or convicted of any offense                      within Article III, committed  within the                      jurisdiction of the other Party.            Treaty, art. I.                      Article   III   contains  the   "dual  criminality"            requirement, a  requirement that is "central   to extradition            law and  [one that] has  been embodied  either explicitly  or            implicitly  in  all prior  extradition  treaties  between the            United States and Great Britain."  Brauch v. Raiche, 618 F.2d                                               ______    ______            843, 847 (1st  Cir. 1980).   Article III,  in relevant  part,            provides that:                           Extradition shall be granted  for an                      act   or  omission  the  facts  of  which                      disclose  an offense  within  any of  the                      descriptions   listed  in   the  Schedule                      annexed to this Treaty . . . or any other                      offense,   if:   (a)   the   offense   is                      punishable under the laws of both Parties                      by   imprisonment   or   other  form   of                      detention  for more than  one year  or by                      the death penalty . . . .            Treaty, art. III(1).   The annexed Schedule lists twenty-nine            general crimes, including bribery, the crime of which Lui  is            accused.  See Treaty, Schedule, No. 23.                        ___                      Article  V  contains various  affirmative defenses,            including the  "political offense"  exception.  As  a general                                         -23-                                          23            matter, the  political offense  exception "is now  a standard            clause in almost all  extradition treaties of the world."   I            Bassiouni, supra, at 384.  The political offense exception in                       _____            the Treaty  prohibits extradition where "(i)  the offense for            which extradition  is requested is regarded  by the requested            Party as one  of a  political character; or  (ii) the  person            sought proves  that the  request for  his extradition has  in            fact  been  made with  a view  to try  or  punish him  for an            offense of a political character."  Treaty, art. V(1)(c).                      The Supplementary Treaty  narrows the  availability            of this political  offense exception.   It lists  a range  of            crimes -- all crimes  of violence -- that may not be regarded            as  political  offenses  for   the  purpose  of  raising  the            political offense exception.   See Supplementary Treaty, art.                                           ___            1.    The Supplementary  Treaty  also  offers an  affirmative            defense to fugitives  sought for crimes  of violence who,  by            virtue  of its article 1,  are unable to  raise the political            offense exception.  See Supplementary Treaty, art. 3(a), (b).                                ___            Such a fugitive may block extradition by establishing:                      by  a preponderance of  the evidence that                      the request for  extradition has in  fact                      been made  with a  view to try  or punish                      him on  account  of his  race,  religion,                      nationality,  or  political opinions,  or                      that   he   would,  if   surrendered,  be                      prejudiced  at  his  trial  or  punished,                      detained  or  restricted in  his personal                      liberty by reason  of his race, religion,                      nationality or political opinions.            Id. art. 3(a).            ___                                         -24-                                          24                      The procedural requisites of an extradition request            are specified in article VII of the Treaty.  The request must            be accompanied by, inter alia, a description of the fugitive,                               _____ ____            a statement of facts of the offense, and the text  of the law            under which  he is charged.   See Treaty, art. VII  (2).  For                                          ___            accused  (as opposed  to  already  convicted) fugitives,  the            request must also  include a valid  arrest warrant and  "such            evidence  as, according to  the law  of the  requested Party,            would justify his committal for trial if the offense had been            committed in the territory  of the requested Party, including            evidence  that the person requested is the person to whom the            warrant of arrest refers."  Id. art. VII(3).15                                        ___                      Article XII contains the "specialty" requirement, a            common feature  of extradition  treaties.  Specialty  has two            basic components.   First, the  requesting state may  not try            the fugitive for any crimes other than the specific crime for            which  extradition  was  sought  and granted.    Second,  the            requesting state may not re-extradite the fugitive to a third            state.  See Treaty, art. XII.                     ___            2.  Analysis                ________                      Both  the  district court  and  Lui  focus on  four            Treaty   provisions   in  concluding   that  the   Treaty  is            inapplicable to  Lui.  See  Lui Habeas, --- F.  Supp. at ---,                                   ___  __________                                            ____________________            15.  Article IX(1), in turn, states that extradition shall            not be granted if the evidentiary showing required by article            VII(3) is not made by the requesting party.                                         -25-                                          25            1997  WL 37477,  at *5-*7.   We  address these  provisions in            turn,  concluding that the obligation of the United States to            extradite Lui, specified in  article I of the Treaty,  is not            undermined  by any of these provisions.  We base our analysis            on  the plain  language  of the  Treaty.   United  States  v.                                                       ______________            Alvarez-Machain, 504 U.S 655, 663 (1992); Sumitomo Shoji Am.,            _______________                           ___________________            Inc. v. Avagliano, 457 U.S. 176, 180 (1982).  Underlying this            ____    _________            analysis  is the court's awareness of the limited role of the            judiciary in extradition proceedings.             The Warrant Requirement             _______________________                      The   district   court   understood   the   warrant            requirement  of  article  VII(3)  to  serve  the  purpose  of            permitting "the requested sovereign  to know that the relator            has been accused . . . pursuant to the laws of the requesting            sovereign,  and  that  he  will  be  tried  and  punished  in            accordance  with that sovereign's laws."   Lui Habeas, --- F.                                                       __________            Supp.  at  ---, 1997  WL 37477,  at *6.    In this  case, the            district court  reasoned, since  Lui would  not  be tried  in            accordance  with the  present  Hong Kong  regime's laws,  the            warrant requirement was not met.  Id.                                               ___                      There is nothing in the language of article VII(3),            or  the rest of article VII, which indicates that the warrant            requirement serves  the greater function attributed  to it by            the district court.   Indeed, the warrant requirement appears            to do nothing  more than to help the judicial  officer in the                                         -26-                                          26            requested country to confirm  that there are in  fact charges            properly  pending  against  the  relator  in   the  requested            country, and that the relator  is actually the person sought.            It does  not authorize  the investigation which  the district            court  envisioned,   and  indeed  such  an  investigation  is            foreclosed  by  the  rule  of  non-inquiry.    A warrant  was            provided  by the Hong Kong authorities here, and Lui does not            attack its validity or authenticity.  The warrant requirement            was plainly satisfied.            The Dual Criminality Requirement             ________________________________                      The  district court  understood the purpose  of the            dual criminality requirement, as stated in article III of the            Treaty, to be  "to provide the  requested sovereign with  the            opportunity to examine the  substantive law of the requesting            sovereign in the context of the Treaty."  Lui Habeas,  --- F.                                                      __________            Supp. at  ---, 1997 WL 37477,  at *6.  The  court stated that            the  requirement  serves  to  "underscore[]  the  expectation            running through the Treaty that [Lui] is to be tried, judged,            and punished in  accordance with the  laws of the  requesting            sovereign."  Id.                         ___                      There  is nothing in the text of article III of the            Treaty  that supports  this  sweeping conclusion.   The  dual            criminality requirement, by its  plain terms, is satisfied if            the  crime of  which the  relator is  accused appears  on the            annexed Schedule  or is  punishable in  both countries by  at                                         -27-                                          27            least  one year's  imprisonment.   Bribery,  as noted  above,            appears on the annexed Schedule.                        The purpose of the dual criminality requirement  is            simply to ensure that extradition is granted only for  crimes            that are regarded as  serious in both countries.   See United                                                               ___ ______            States v. Saccoccia, 58  F.3d 754, 766 (1st Cir.  1995) ("The            ______    _________            principle  of dual  criminality dictates  that, as  a general            rule, an extraditable offense must be a serious crime (rather            than a mere peccadillo) punishable under the criminal laws of            both   the  surrendering   and   the   requesting   state.");            Restatement  (Third)  of the  Foreign  Relations  Law of  the            _____________________________________________________________            United States   476, cmt. d (1987); id.   475, cmt. c.            _____________                       ___                      The dual criminality requirement is satisfied here.            The Political Offense Exception             _______________________________                      The district  court also relied on  article 3(a) of            the Supplementary  Treaty,  which, it  stated,  requires  the            judicial officer  "to examine the reasons  for the requesting            sovereign's  desire to try and  to punish the  relator."  Lui                                                                      ___            Habeas, --- F. Supp. at  ---, 1997 WL 37477, at *6.   In this            ______            case, stated  the district  court, article  3(a) "underscores            again   the  Treaty's   requirement   and  expectation   that            extradition  . .  .  may not  take  place if  the  requesting            sovereign  .  . .  is unable  to try  and  punish Lui  in the            relatively few days left before its reversion to China."  Id.                                                                      ___                                         -28-                                          28                      The  Supplementary Treaty  article 3(a)  defense is            simply inapplicable here.  Supplementary Treaty  article 3(a)            describes  a defense  which  is available  only to  fugitives            charged with one of the crimes specified in article 1  of the            Supplementary Treaty,  all of  which are crimes  of violence.            Lui's  alleged crime -- bribery -- is  not  among the  crimes            enumerated in the Supplementary Treaty's article 1.                      Indeed,  the  very  purpose  of  the  Supplementary            Treaty was to cabin  the political offense exception so  that            perpetrators of  certain violent offenses  would be precluded            from  avoiding  extradition  simply  because  their  criminal            activity was  inspired by political motivation.   See Howard,                                                              ___ ______            996 F.2d at 1324-25.   Because this contraction of  the time-            honored political  offense exception stirred up  a great deal            of controversy during negotiations, a compromise position was            ultimately  agreed  upon,  so  that  fugitives   barred  from            invoking the political offense  defense might still claim the            protection  of the more limited defense of article 3(a).  See                                                                      ___            id. at 1324 (discussing  negotiating history and  legislative            ___            history).                        Lui properly does not claim  that he is entitled to            the   article  V(1)(c)  political  offense  exception.16  The                                            ____________________            16.  Even if he had attempted to assert the political offense            exception, he would likely have been unsuccessful since            "[c]riminal conduct in the nature of financial            fraud . . . traditionally has been considered outside the            'political offense' exception."  Koskotas v. Roche, 931 F.2d                                             ________    _____                                         -29-                                          29            Supplementary Treaty article 3(a) defense  was unavailable to            him, and thus, however  much article 3(a) might ever,  as the            district court  stated, "require[]  the court to  examine the            reasons for  the requesting sovereign's desire to  try and to            punish the relator," Lui Habeas, --- F. Supp. at ---, 1997 WL                                 __________            37477, at *6, it certainly does not do so here.                      Moreover,  article 3(a) allows the judicial officer            to  make  only  a  narrowly  circumscribed  inquiry.    "[A]n            extradition target  must establish by a  preponderance of the            evidence that, if  he were surrendered,  the legal system  of            the requesting country would treat him differently from other            similarly situated individuals because of his race, religion,            nationality,  or political  opinions."   Howard, 996  F.2d at                                                     ______            1331.   Lui made no  such showing of  discrimination, and the            district court, in making its own predictions about the post-            reversion justice  system in  Hong Kong, exceeded  the narrow            inquiry permitted by article 3(a).             The Rule of Specialty            _____________________                      The   district   court   understood  the   Treaty's            specialty provision  to signify that "the  Treaty allows only            for extradition for  offenses that can be  tried and punished            by the requesting sovereign."  Lui Habeas, --- F. Supp. at --                                           __________            -, 1997 WL 37477, at *6-*7.  Because the specialty obligation            cannot  be enforced  by  the United  States after  reversion,                                            ____________________            169, 172 (1st Cir. 1991) (citing cases).                                         -30-                                          30            reasoned  the  district court,  article  XII  is violated  ab                                                                       __            initio, and Lui cannot be extradited.  Id. at *7.            ______                                 ___                      The rule of specialty literally has no  application            here.   The rule has two basic requirements: that the relator            be tried  for the crimes  charged in the  extradition warrant            and that the relator not be re-extradited to another country.            There is no claim that either of these is violated.   Indeed,            as the district court properly recognized, Lui is not arguing            that  the reversion  itself would  constitute a de  facto re-            extradition  from  Hong Kong  to  China in  violation  of the            specialty provision.  Lui  Habeas, --- F. Supp. at  ---, 1997                                  ___________            WL 37477, at *12 n.15; see also Oen Yin-Choy v. Robinson, 858                                   ________ ____________    ________            F.2d 1400, 1403-04 (9th Cir. 1988).                      The essence of Lui's  argument is rather different:            it is that  the fact that he cannot be  tried and punished by            the   same  government  which   gave  the  Treaty  assurances            contravenes the rationale behind the specialty provisions and            so undermines confidence that  this is the result the  Senate            intended  in  giving  its consent.    The  responses to  that            argument  are largely those outlined at the beginning of this            opinion.   We add only our thoughts directed to the specialty            clause itself.                      If Lui's position were correct,  the enforceability            of  many extradition treaties to which the United States is a            party would be thrown into grave doubt.  Regimes come and go,                                         -31-                                          31            as, indeed, do  states.   Moreover, 18 U.S.C.    3184,  which            defines  the role of  the courts in  the extradition process,            gives  no discretion  to the  judicial officer  to refuse  to            certify extraditability  on the ground that  a treaty partner            cannot  assure  the requested  country  that  rights under  a            treaty  will be enforced or protected.  See Saccocia, 58 F.3d                                                    ___ ________            at 766-67.                      The Ninth Circuit, writing in 1988, also rejected a            similar argument made by a fugitive who fought extradition by            arguing that the United States would be unable to compel Hong            Kong's  compliance  with  the  specialty  obligation because,            although  he  would  face  trial in  the  Crown  Colony,  his            imprisonment might extend past the reversion date.  "Were the            Treaty to be interpreted  as [the fugitive] asks, extradition            to  Hong Kong  would be  the exception  rather than  the rule            because it would  be limited in practice only to extraditions            for crimes which could be punished for a term expiring before            the  reversion date."    Oen  Yin-Choy,  858  F.2d  at  1404.                                     _____________            Indeed,  if we  interpreted the  specialty provision  in this            way,  we  would  be  forced  to  conclude  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.                                         -32-                                          32                      Of course,  Lui may express his  concerns about the            post-reversion  enforceability of specialty  to the Secretary            of State, who, in her discretion, may choose not to surrender            him.    We note  that the  newly  signed, as  yet unratified,            extradition treaty  between the  United States and  the HKSAR            provides that  specialty protection "shall apply  to fugitive            offenders who have been surrendered between the parties prior            to the  entry into  force" of  the new  treaty.  New  Treaty,            arts.  16, 20.    It is  not  the role  of  the judiciary  to            speculate about the  future ability of  the United States  to            enforce treaty obligations.                                         III.                      Lui   also  challenges  the  determination  of  the            magistrate  judge that  there was  probable cause  to believe            that  Lui had  violated Hong Kong  law on  eight of  the nine            charges in the warrant.  Although the district court declined            to review this issue, we do reach it.                      Lui  protests  that we  lack  power  to reach  this            issue,  and that  we must  remand to  the district  court for            further findings.   However, the issue was fully  briefed and            argued  to the district court.  The record is complete.  This            is  a habeas corpus appeal,  in which the  district court was            not  the fact finder but had  only a review function over the            findings  made by the magistrate  judge.  The  function to be            exercised by  the district  court is  more akin to  appellate                                         -33-                                          33            review,  and is  done  on the  same record  as is  before us.            Under these circumstances, the  district court had no greater            institutional competence to perform  this review task than do            we.  That the district court declined to reach the issue does            not deprive us of the power to do so.                        While it is true that, as a general matter, federal            courts of appeals do  not rule on  issues not decided in  the            district  court,  Singleton    v. Wulff,  428  U.S.  106, 120                              _________       _____            (1976), we do have  discretion to address issues not  reached            by the district court when the  question is essentially legal            and the record is complete.  Quinn v. Robinson, 783 F.2d 776,                                         _____    ________            814 (9th Cir. 1986); cf. Howard, 996 F.2d at  1329 ("That the                                 ___ ______            district court failed to afford plenary review on this aspect            of  the  case  does  not mean  that  we  must  remand . . . .            Rather, because the  question is  quintessentially legal  and            this court  is  fully  capable of  deciding  it  without  any            further development of the record, we can  simply address and            resolve it.")  (citations omitted).   Such is the  case here.            We have before us the parties' memoranda on probable cause to            the  district court and the  magistrate judge as  well as the            completed evidentiary record.   In the interest of conserving            judicial resources and mindful of the policy that extradition            matters  be  handled  expeditiously,  we see  no  reason  for                                         -34-                                          34            further delay.17   Cf. Fernandez v.  Phillips, 268 U.S.  311,                               ___ _________     ________            312   (1925)   (Supreme   Court   reviews    probable   cause            determination   of   judge  certifying   extradition  without            intermediate court passing on the question).                      The  traditional  formulation  is  that,  on habeas            corpus  review of  a  certification  of extraditability,  the            court only  examines  the magistrate judge's determination of            probable cause to see  if there is "any evidence"  to support            it.  Fernandez, 268 U.S. at  312; see also Sidali v. INS, ---                 _________                    ___ ____ ______    ___            F.3d  ---,  ---, 1997 WL  74506, *9 (3d  Cir. 1997); Then  v.                                                                 ____            Melendez, 92 F.3d 851, 854 (9th Cir. 1996).  This circuit has            ________            interpreted  the  "any  evidence" standard  quite  literally,            conducting a  fairly deferential  review of  the magistrate's            findings.  See Koskotas v. Roche, 931 F.2d 169, 176 (1st Cir.                       ___ ________    _____            1991); United  States v.  Manzi, 888  F.2d 204, 205 (1st Cir.                   ______________     _____            1989);  Brauch, 618 F.2d at  854; Greci v.  Birknes, 527 F.2d                    ______                    _____     _______            956 (1st Cir. 1976).                      Recently,  some  other   appellate  courts,   while            retaining  the  traditional   formulation,  have   apparently                                            ____________________            17.  There is no unfairness to Lui.  He has had full            opportunity to address the issue of whether there is probable            cause for extradition before the magistrate judge and full            opportunity to address the magistrate judge's determination            before the district court.  In the extradition proceedings            before the magistrate judge, Lui filed a 45 page memorandum            on the probable cause issue accompanied by a copious            appendix.  He also filed motions to exclude certain of the            government's evidence, called witnesses, and presented both            live testimony and testimony by affidavit.                                         -35-                                          35            engaged in a more  rigorous review of the  evidence presented            before the judicial officer, thus raising questions about the            actual content  of the "any  evidence" standard.   See, e.g.,                                                               ___  ____            Sidali,   --- F.3d at ---,  1997 WL 74506, at  *9; Ludecke v.            ______                                             _______            Marshal,  15 F.3d  496,  497-98 (5th  Cir.  1994); Peters  v.            _______                                            ______            Egnor,  888 F.2d 713, 717-18  (10th Cir. 1989).   The Supreme            _____            Court  last addressed  the scope  of a  court's  authority on            habeas corpus review of a finding of extraditability in 1925,            when  it said that "the alleged fugitive from justice has had            his hearing" and  that "habeas  corpus is  available only  to            inquire"  into a very limited list of issues.  See Fernandez,                                                           ___ _________            268 U.S. at 312.   The existence of "any  evidence warranting            the finding  that there was reasonable ground  to believe the            accused  guilty"  was  one  of only  three  issues  that  the            Fernandez court said might  permissibly be reached on habeas.            _________            Id.   At  that time, the scope of habeas corpus review of all            ___                                                       ___            proceedings was  very limited, and  Fernandez's strictures on                                                _________            review in extradition  proceedings, including the deferential            "any evidence"  standard, may  simply reflect that  generally            narrower  view of the  writ.  See In  re Extradition of Burt,                                          ___ __________________________            737 F.2d 1477, 1484 (7th Cir. 1984) ("[T]he broad language of            Fernandez,  which on  its face would  appear to  restrict the            _________            scope of inquiry here,  must be construed 'in the  context of            its  time and in the context of subsequent development of the            scope  of habeas corpus review.'" (citation omitted)).  Since                                         -36-                                          36            1925,  and until the enactment of the AEDPA in 1996,18 habeas            corpus in  other contexts  has expanded to  become a  "second            look" at most substantive  and procedural issues.  Similarly,            courts  reviewing  certifications  of extraditability,  while            continuing to cite Fernandez, have actually engaged in review                               _________            of issues  beyond those enumerated  by the  Supreme Court  in            1925.  See  Kester, Some Myths  of United States  Extradition                   ___          _________________________________________            Law, 76  Geo. L.J.  1441, 1473  (1988); see  also 4 Abbell  &            ___                                     ___  ____            Ristau,  supra,   13-3-6,  at 255-57.  Thus,  it is  arguable                     _____            that the "any evidence" standard is  an anachronism, and that            this  court should engage in  a more searching  review of the            magistrate's probable cause findings.                      There is no reason to predict a resolution of  this            issue  here.  Whatever the prism through which this record is            reviewed, ranging from  a strictly  construed "any  evidence"            standard to  de  novo  review, our  conclusion  is  that  the                         __  ____            government has met its burden.                      The purpose  of  the  evidentiary  portion  of  the            extradition  hearing  is  to  determine  whether  the  United            States, on behalf of  the requesting government, has produced            sufficient  evidence  to hold  the  person  for trial.    The            standard of  sufficiency is  derived from United  States law,            including the  Treaty between the  United States and  the UK.                                            ____________________            18.   Antiterrorism and Effective Death Penalty Act            ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996)                                         -37-                                          37            Under 18 U.S.C.    3184, the judicial officer  must determine            whether the evidence of criminality is "sufficient to sustain            the  charge under  the  provisions of  the  proper treaty  or            convention."  The Treaty requires that:                           Extradition shall be granted only if                      the   evidence    be   found   sufficient                      according  to the  law  of the  requested                      Party . . . to justify  the committal for                      trial of the person sought if the offense                      of which he is accused had been committed                      in the territory of the requested Party .                      . . .            Treaty, art.  IX(1).  "United States  courts have interpreted            this provision in similar treaties as requiring a  showing by            the requesting party  that there is probable cause to believe            that the accused has committed the charged  offense."  Quinn,                                                                   _____            783 F.2d at 783  (separate opinion of Reinhardt, J.)  (citing            cases).  The Supplementary Treaty defines probable cause:                           Probable  cause means  whether there                      is sufficient evidence  to warrant a  man                      of  reasonable  caution  in   the  belief                      that . . . an offense  has been committed                      by the accused.            Supplementary Treaty, art. 2.   The actual trial, if  any, is            in  the foreign  court,  and it  is not  the  purpose of  the            extradition  hearing to  determine  whether the  evidence  is            sufficient  to justify conviction.   Thus it  is the probable            cause determination which is subject to our review.                      There is no  dispute that payments  of over HK  $21            million (approximately US $3  million) and unsecured loans of            HK $10 million  (approximately US $1.4 million)  were made to                                         -38-                                          38            Lui, that the payments  were made into foreign  bank accounts            in Lui's name, and  that the payments were not  made directly            by check but  through a series of steps which  made them more            difficult  to trace.    There is  also  no dispute  that  the            payments  were  made on  the dates  charged.   The  timing is            significant.  The payments  coincided with the knowledge that            Lui was being  considered as Director  of Exports for  BAT-HK            and with his  appointment to  that position in  1992.19   The            loans  were  made  within three  days  of  Lui's  leaving his            employment  at  Brown &  Williamson and  BAT-HK.   It  is not            contested that BAT-HK was the major supplier of cigarettes to            GIL and WWC, that Brown  & Williamson prohibits its employees            from  accepting "inducements"  from those  with whom  it does            business and requires disclosure  statements to be completed,            and that Lui failed to disclose any of these payments  on his            disclosure form.   The dispute between the government and Lui            is basically over the purpose of these payments.                      Two  competing theories  explaining the  purpose of            the payments were  presented to  the magistrate  judge.   The            government argued  that the  payments were bribes.   Although            Lui  had no  burden to  produce any evidence  at all  and the            burden  of  showing probable  cause  rested  entirely on  the            government, Lui did present an  explanation for the loans and                                            ____________________            19.  The one exception to this was the October 1988 payment            alleged in Count II, as to which the magistrate judge found a            lack of probable cause.                                         -39-                                          39            payments,  primarily  in  the  affidavit  of  Hung  Wing  Wah            ("Hung"),  a former GIL director and sole proprietor of GIL's            subsidiary,  WWC.20  In essence, Hung said that, in or around            1987, prior  to Lui's employment with Brown  & Williamson, he            and Lui  first began discussing "cigarette business matters."            Hung  stated that  these  discussions eventually  led to  the            establishment of a profitable  business relationship in which            Hung  purchased  Japanese cigarettes  and  resold  them at  a            profit for  the account of  Chen Ying-Jen ("Chen"),  a former            GIL principal.  The  payments to Lui's foreign  bank accounts            were filtered through Chen's account.                      Hung stated  he was told  by Chen that,  because of            the   substantial   profits   generated   by   the   business            relationship Lui had been  instrumental in establishing, Chen            had agreed to pay  Lui for his assistance and  would continue            paying Lui as  long as the relationship continued to generate            such substantial profits.  Hung indicated that  the sums paid            to  Lui bore  a reasonable  relationship to the  magnitude of            Chen's profits.  And finally, Hung  stated that the unsecured            short term  loans  had been  made to  Lui so  that Lui  could            invest  in the  then-booming Hong  Kong stock  market.   Hung                                            ____________________            20.  Lui chose not to testify on his own behalf, as was his            prerogative.  The magistrate judge properly excluded the            polygraph evidence offered by Lui to corroborate his            testimony.  The polygraph evidence was not relevant, there            being no such testimony in evidence to corroborate.  Whether            it would be admissible if he did testify, we do not address.                                         -40-                                          40            stated  that  both the  principal  and  interest were  repaid            shortly after the loans were made.  During the hearing before            the magistrate judge, Lui's  counsel indicated that Lui would            testify, and described  what that testimony  would be.   This            description  matched  the  testimony  given  by  Hung.    Lui            ultimately declined to testify.                      Lui  argued  that  the  government's  evidence  was            insufficient  to support  an  inference of  bribery and  that            there  was,  in  any event,  an  innocent  explanation.   The            government argued  that the undisputed  facts were sufficient            to  establish probable  cause, and  that the  explanation was            inherently implausible.   In addition, the government argued,            it  had  two "smoking  gun"  statements  directly saying  the            payments  were bribes.  We return to these two statements and            Lui's attack on them later.                      The magistrate judge concluded that the explanation            proffered  by  Lui's  counsel  --  "to  the effect  that  the            payments represented a gratuitous gesture of gratitude by one            of   GIL's  former   principals  for   Lui's   assistance  in            introducing him to a supplier of Japanese cigarettes in 1987,            some six years  before the  last payments were  made" --  was            inherently implausible.   Lui Extradition,   939 F. Supp.  at                                      _______________            955.21    The implausibility  of  the  explanation does  give                                            ____________________            21.  The statement in the magistrate's opinion that Lui            adduced only counsel's argument and not explanatory evidence,            Lui Extradition, 939 F. Supp. at 955, is obviously an            _______________                                         -41-                                          41            credence to the  government's theory.   See United States  v.                                                    ___ _____________            Burgos, 94 F.3d  849, 867 (4th Cir. 1996)  (implausible tales            ______            to  the   finder  of  fact   can  rationally  be   viewed  as            circumstantial  evidence of guilt).  Without consideration of            the two  "smoking gun"  statements, the magistrate  judge was            fully warranted in finding probable cause.                      In addition,  the two statements, which  Lui argues            were  inadmissible,  were properly  admitted at  the probable            cause stage  of the extradition hearing and further support a            finding of probable cause.                      The  first  statement   was  given  to   Hong  Kong            investigators  in July 1994 by Chui, one of Lui's alleged co-            conspirators.   Chui was one  of the principals  of GIL until            April 1993.   In his  statement, Chui implicated  himself and            other principals  of GIL in a scheme  to bribe Lui and others            to  secure favorable allocations  of cigarettes  from BAT-HK.            According to Chui, GIL  began paying bribes to Lui  when they            first   anticipated  that  Lui  might  eventually  become  an            important  BAT-HK   decisionmaker.    Chui  was  murdered  in            Singapore nine months after giving this statement.                      The second  statement was made by  Francis McNamara            Haddon-Cave, who worked with  Chui.  Haddon-Cave testified in            Hong  Kong  in October  1995 at  a  hearing to  determine the                                            ____________________            oversight.  Among other items, the Hung Wing Wah affidavit            was admitted into evidence and considered by the magistrate            judge.                                         -42-                                          42            sufficiency of the  evidence to commit  one of Lui's  alleged            co-conspirators  for trial on a charge of conspiracy to bribe            Lui.  Haddon-Cave testified that he was hired by Chui to work            as  a consultant for GIL  and began working  there in October            1992.   One of  Haddon-Cave's responsibilities was  to foster            relationships between  GIL and  major suppliers  like BAT-HK.            Haddon-Cave testified  that Chui  told him in  Lui's presence            that Lui  was "our man" and an important link with GIL.  Lui,            then  BAT-HK's Director of Exports, did not deny it.  Haddon-            Cave further testified that later, outside of Lui's presence,            Chui  told him  that Lui  was "on  the take"  and had  become            wealthy as a result of the payments that distributors made to            him to secure favorable allocations of cigarettes.                        The  framework  for  determining  admissibility  of            evidence  here is  determined  by the  Treaty  itself and  by            United   States  legal   rules  governing   admissibility  in            extradition proceedings.      Pursuant  to  federal  statute,            documents offered as evidence in an extradition hearing:                      shall   be   received  and   admitted  as                      evidence  . . . for  all the  purposes of                      such  hearing if  they shall  be properly                      and  legally  authenticated   so  as   to                      entitle them  to be received  for similar                      purposes by the tribunals of  the foreign                      country  from  which  the  accused  party                      shall have escaped . . . .                                         -43-                                          43            18  U.S.C.    3190.22   Proof of  such authentication  is the            certificate  of the principal  diplomatic or consular officer            of the United States  resident in such foreign country.   Id.                                                                      ___            Additionally, article VII(5) of  the Treaty provides that any            evidence given upon oath or affirmation "shall be received in            evidence in  any proceedings for  extradition" if it  is duly            authenticated.   Treaty, art.  VII(5).  Both  the Haddon-Cave            testimony  and  the  Chui  statement meet  this  authenticity            requirement  and  were  thus  admissible  at the  extradition            hearing by the terms of the relevant statute and treaties.                      Lui argues nonetheless that the two statements were            improperly  admitted because  they would  be  inadmissible at            trial under  Hong Kong law.  Lui argues that it is inherently            unfair to certify  that he  is extraditable on  the basis  of            evidence that  would be inadmissible  in the  court where  he            would  face trial.  He  also argues that  failure to consider            the  Hong  Kong  High  Court's  declaratory  judgment  (later            reversed) that the Chui statement would be inadmissible would            evince great disrespect for the judicial system of Hong Kong.            Both of these arguments are misplaced.                                            ____________________            22.  Lui does not rely on the language of 18 U.S.C.   3190.             Most courts reviewing the language have concluded that   3190            requires only that the evidence meet any authentication            requirement imposed by a foreign tribunal, not that it be            admissible, much less that it be admissible at trial.  See                                                                   ___            Oen Yin-Choy, 858 F.2d at 1406; Lui Extradition, 939 F. Supp.            ____________                    _______________            at 934 (citing cases).                                         -44-                                          44                      In probable cause hearings under  American law, the            evidence taken need not  meet the standards for admissibility            at  trial.  Indeed, at a preliminary hearing in federal court            a "finding of  probable cause  may be based  upon hearsay  in            whole or in part."  Fed. R. Crim. P. 5.1(a).  This is because            a "preliminary hearing  is not  a minitrial of  the issue  of            guilt," Coleman v.  Burnett, 477 F.2d  1187, 1201 (D.C.  Cir.                    _______     _______            1973); rather,  "its  function is  the  more limited  one  of            determining whether probable cause exists to hold the accused            for trial."   Barber v. Page,  390 U.S. 719, 725  (1968).  An                          ______    ____            extradition   hearing   similarly   involves  a   preliminary            examination of the evidence and is not a trial.   Charlton v.                                                              ________            Kelly,  229 U.S. 447, 461  (1913); Romeo v.  Roache, 820 F.2d            _____                              _____     ______            540,  544 (1st Cir. 1987).   An extradition  hearing does not            require  a higher standard of evidence  than a probable cause            hearing.    The special  and  limited  nature of  extradition            hearings  is  manifested  in  a  more  lenient  standard  for            admissibility  of evidence.    Neither the  Federal Rules  of            Criminal Procedure, see  Fed. R. Crim.  P. 54(b)(5), nor  the                                ___            Federal  Rules of  Evidence,  see Fed.  R. Evid.  1101(d)(3),                                          ___            apply to extradition hearings.   The evidence may coU.S. 309,            317 (1922).    So  American domestic law has already resolved            against  Lui  any   claim  that  there  is   a  violation  of            Constitutional rights from the admission of hearsay  evidence                                         -45-                                          45            at  a probable cause hearing  which would not  be admitted at            trial.                      Under Hong Kong law, the Haddon-Cave statement  and            the Chui statement present separate and distinct issues.  The            Haddon-Cave statement was ruled inadmissible at the Hong Kong            trial of Chong Tsoi-Jun ("Chong"), an alleged co-conspirator,            on an objection that  it was not  made in furtherance of  the            conspiracy.                      As to  the Chui statement,  a Hong Kong  High Court            judge   issued  a   declaration   that  the   statement   was            inadmissible  hearsay.   On appeal,  the  Hong Kong  Court of            Appeal vacated this ruling, finding  that Lui's request for a            declaratory  judgment was  not justiciable  in the  Hong Kong            courts, but  that even if it  were, the judge's grant  of the            declaration  would be an abuse  of discretion.   The Court of            Appeal reasoned that  the issue of  the admissibility of  the            Chui statement in the extradition proceeding was a matter for            the United States court to decide.  The court noted, however,            that the  parties agreed that the  statement was inadmissible            hearsay under  Hong  Kong law.   In  light of  the Hong  Kong            court's  statement   that  the  admissibility  of   the  Chui            statement in  the extradition  hearing  is a  matter for  the            United  States court  to decide,  admission of  the statement            into evidence  cannot be viewed as a sign of disrespect for a            sister court.                                         -46-                                          46                      The focus on admissibility is, we think, misplaced,            both  based  on  these  facts and  on  larger,  institutional            concerns about the operation  of habeas corpus in extradition            certifications.   While in Manzi we  "recognized that serious                                       _____            due process concerns may merit review beyond the narrow scope            of inquiry  in extradition proceedings," there  is no serious            due process issue here.  See Manzi, 888 F.2d at 206; see also                                     ___ _____                   ___ ____            Koskotas,  931 F.2d  at  174; cf.  Burt,  737 F.2d  at  1481;            ________                      ___  ____            Gallina,  278 F.2d  at  78.    Lui's  liberty  interests  are            _______            protected  by  the very  existence  of  "an unbiased  hearing            before an independent judiciary."   In re Kaine, 55  U.S. (14                                                ___________            How.) 103 (1852).                        Inherent  in the  probable  cause  standard is  the            necessity  of  a  determination  that the  evidence  is  both            sufficiently reliable and of sufficient weight to warrant the            conclusion.    The  probable  cause standard  does  not  even            require   that  the   government  make   its  showing   by  a            preponderance of  the evidence.  But neither is it toothless.            All evidence does not  have the same importance even if it is            authentic and admissible.  For example, a confession obtained            by duress is inherently unreliable  and would be given little            weight even  if the confession were authenticated.   See Gill                                                                 ___ ____            v. Imundi, 747 F.  Supp. 1028, 1042-47 (S.D.N.Y. 1990).   The               ______            reliability of  the evidence is  a factor  for the  reviewing            court   to  consider  as  well,  and  potentially  unreliable                                         -47-                                          47            evidence  may  be  accorded  reduced  weight  by  the  court.            Restatement, supra,   478.            ___________  _____                      No such  concerns about reliability  are implicated            here.    First,   the  statements  themselves   were  neither            involuntary  nor  obtained under  questionable circumstances.            Further, the  Hong  Kong  courts  did not  rule  that  either            statement  was   untrue  or  otherwise  cast   doubt  on  the            statements'   credibility.     Each  statement   was  thought            inadmissible in  Hong Kong on grounds  pertaining to hearsay.            The Haddon-Cave statement was deemed inadmissible because  it            did not meet one  of the requirements for admissibility  of a            co-conspirator's statement.  The  Chui statement was  thought            inadmissible because  the declarant was dead.   The Hong Kong            government alleges  that Chui was involved  in the conspiracy            until  he became a government informant  and witness and that            he was murdered in order to prevent him from testifying.  GIL            directors,  including  Hung  and  Chong,  allegedly  tried to            dissuade  Chui from cooperating with  the ICAC.   We need not            reach  the  issue of  whether the  statement of  a declarant,            murdered  to keep him from testifying, might be admissible at            a criminal trial in  the United States, cf. United  States v.                                                    ___ ______________            Houlihan,  92  F.3d  1271   (1st  Cir.  1996),  whatever  the            ________            consequence   of   these   facts   under   Hong   Kong   law.            Nevertheless,  we note that the Chui  statement might well be            admissible  under United  States law  as a  statement against                                         -48-                                          48            interest.  See Fed. R. Evid. 804(b)(3).  The magistrate judge                       ___            correctly ruled that the two statements were not unreliable.                      One final  argument need not  detain us long.   Lui            argues, from  his counsel's tactical decision  not to present            his  testimony  at  the  extradition  hearing,  that  he  was            precluded  from testifying.   He  argues that  the magistrate            judge  drew an  unfavorable  inference, in  violation of  his            Fifth  Amendment rights, from  his failure  to testify.   The            argument  misapprehends what happened.   The magistrate judge            did no such  thing.   Lui presented testimony  from Hung  and            five  other   affiants,  as  well  as   argument  of  counsel            attempting to explain the payments and loans.  The magistrate            judge  disbelieved  the explanation,  as  it  was within  his            discretion to do.  There is nothing in this objection.                      For these  reasons we  reverse the grant  of habeas            corpus  by the  district court.   We  continue in  effect the            requirement that Lui be held without bail.  If Lui  wishes to            file a petition for rehearing and/or a petition for rehearing            en banc with  this court,  he must do  so within 14  calendar            days.  See Fed.  R. App. P. 40(a) &  35(c).  We stay,  in any                   ___            event, delivery  of the  certification of  extraditability to            the  Secretary of State during this 14 calendar day period to            permit  Lui to  seek relief  from the  United States  Supreme            Court.                      So ordered.                                         -49-                                          49
