

                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 &amp;                                                                              
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 &amp;

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  &amp; 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) &amp;

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 &amp; 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 &amp;
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 &amp; 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 &amp;

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 &amp; 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  &amp;                                                             

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 &amp;  Williamson and  BAT-HK.   It  is not

contested that BAT-HK was the major supplier of cigarettes to

GIL and WWC, that Brown  &amp; 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  &amp; 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) &amp;  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
