                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 14-6102


ZHENLI YE GON,

                 Petitioner – Appellant,

           v.

GERALD S. HOLT, U.S. Marshal for the Western District of
Virginia; FLOYD G. AYLOR, Warden of the Central Virginia
Regional Jail,

                 Respondents – Appellees,

           and

ERIC H. HOLDER, JR., Attorney General of the United States;
HILLARY RODHAM CLINTON, United States Secretary of State;
EDWIN D. SLOANE, United States Marshal for the District of
Columbia,

                 Respondents.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:11-cv-00575-JCT)


Argued:   October 29, 2014                 Decided:   December 16, 2014


Before SHEDD and      FLOYD,     Circuit   Judges,    and   DAVIS,   Senior
Circuit Judge.


Affirmed by published opinion.    Judge Shedd wrote the opinion,
in which Judge Floyd and Senior Judge Davis joined.
ARGUED: Gregory Stuart Smith, GREGORY S. SMITH, ATTORNEY AT LAW,
Washington, D.C., for Appellant.   John Alexander Romano, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: John C. Lowe, JOHN LOWE, P.C., Bethesda, Maryland, for
Appellant.    Leslie R. Caldwell, Assistant Attorney General,
David A. O'Neil, Acting Deputy Assistant Attorney General,
Valinda Jones, Senior Trial Attorney, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Timothy J.
Heaphy, United States Attorney, Anthony Giorno, First Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellees.




                               2
SHEDD, Circuit Judge:

       In 2008, Mexico sent a request to the United States to

extradite Zhenli Ye Gon, a Mexican citizen. Ye Gon’s extradition

hearing was held before a magistrate judge in the District of

Columbia, who determined that Ye Gon was extraditable under the

Extradition Treaty Between the United States of America and the

United Mexican States 1 (“Treaty”). Ye Gon then filed a habeas

corpus petition challenging this determination in the Western

District      of       Virginia,       and    the   district      court       denied    that

petition.         Ye   Gon     now   appeals    the    denial,    claiming       that    the

magistrate judge lacked jurisdiction to conduct the extradition

proceeding and that the Treaty bars his extradition. We affirm.



                                               I.

       We    begin       by    reviewing      the   mechanics    of    the     extradition

process generally, as well as the specific requirements imposed

by this Treaty. The process of extraditing a non-United States

citizen to a foreign nation is conducted largely by the United

States      Department         of    State,   which    receives    any    requests       for

extradition from foreign nations and determines whether those

requests are governed by a treaty. Mironescu v. Costner, 480

F.3d       664,    665        (4th   Cir.     2007).   If   the       State     Department

       1
           U.S.-Mex., May 4, 1978, 31 U.S.T. 5059.



                                                3
determines that there is an applicable treaty, it refers the

matter    to   the    Justice      Department,     which    in   turn   reviews    the

request under the applicable treaty. If the Justice Department

deems the request valid, it then refers the matter to the United

States    Attorney         for   the   district    in   which    the    fugitive    is

believed to be located. Id.

       The United States Attorney then files a complaint before a

federal justice, judge, or magistrate, seeking a warrant for the

fugitive’s arrest and a certification that he may be extradited.

18 U.S.C. § 3184. Because the extradition statute provides that

this     judge       may     “charg[e]     any     person    found      within     his

jurisdiction” with having committed a foreign crime, id., only

judicial officers with jurisdiction over the place where the

fugitive is “found” may conduct these extradition proceedings.

See Pettit v. Walshe, 194 U.S. 205, 218-19 (1904).

       Once    the    extradition        judge    has   issued    the   extradition

warrant and the fugitive has been apprehended, he is brought

before that judge for an extradition hearing. 18 U.S.C. § 3184.

The extradition hearing is not a full trial; rather, its purpose

is to determine (1) whether there is probable cause to believe

that there has been a violation of the laws of the foreign

country requesting extradition, (2) whether such conduct would

have been criminal if committed in the United States, and (3)

whether the fugitive is the person sought by the foreign country

                                            4
for violating its laws. Peroff v. Hylton, 542 F.2d 1247, 1249

(4th Cir. 1976). If the extradition judge determines that the

fugitive     is     extraditable,           he     must    send     his    certification         of

extraditability to the Secretary of State, who has the final

executive        authority          to     determine       whether        to    extradite       the

fugitive. 18 U.S.C. §§ 3184, 3186; Plaster v. United States, 720

F.2d      340,      354       (4th       Cir.    1983)      (“Within           the     parameters

established         by    the       Constitution,          the    ultimate           decision    to

extradite        is,     as   has     frequently        been     noted,      reserved      to   the

Executive as among its powers to conduct foreign affairs.”).

       The extradition judge who conducts the hearing does not do

so in his capacity as a judicial officer of the United States.

In   re     Kaine,       55    U.S.      103,    120      (1852).      The      issuance    of    a

certification of extraditability is therefore not a final order

within the meaning of 28 U.S.C. § 1291. As a result, and because

§    3184    does      not     provide       for       direct     review       of     extradition

decisions, a fugitive’s only avenue to challenge the decision is

to file a petition for habeas corpus review under 28 U.S.C. §

2241. See Haxhiaj v. Hackman, 528 F.3d 282, 285-86 (4th Cir.

2008); Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir. 2007).

Habeas      corpus       review       of    an   extradition        case        is    limited    to

determining         whether       the      extradition         judge      had    jurisdiction,

whether the charged offense is an extraditable offense under the

applicable treaty, and whether there is any evidence warranting

                                                   5
the conclusion that probable cause exists for the violation of

the foreign country’s laws. Ordinola, 478 F.3d at 598. It is the

State    Department’s      practice   to         suspend     all    action       on    an

extradition request once it becomes aware that the fugitive has

filed a petition for habeas corpus review. Department of State,

7   Foreign     Affairs   Manual    1634.3(f),          “Judicial       Review    of   a

Finding of Extraditability” (2005).

     The Treaty in this case obligates Mexico and the United

States to extradite persons whom the authorities of the country

requesting extradition have charged with committing an offense

within   that    country’s     territory.        Treaty    art.    1.    The     country

requesting the return of such a person is termed the “requesting

country,”     and   the   country   asked    to     return    such      a   person     is

called   the     “requested     country.”        This     mutual    obligation         to

extradite     is,   however,   subject      to    certain     limitations.         Those

relevant to this case are outlined below.

     Article 6 of the Treaty, entitled “Non bis in idem,” 2 is

analogous to our constitutional prohibition on double jeopardy.

In essence, it prevents a fugitive from being tried for the same

offense in two different countries. The provision states that

the requested country shall not extradite a fugitive who “has


     2
       In English, this phrase means “not twice for the same
thing.” Black’s Law Dictionary 1150 (9th ed. 2009).



                                       6
been prosecuted or has been tried and convicted or acquitted” in

that country, if that prosecution or trial was “for the offense

for which extradition is requested.”

      The Treaty also restricts the offenses for which a fugitive

may be extradited to those that are criminal in both the United

States    and     Mexico.        This     limitation             is    known     as        “dual

criminality,”      and     it    “ensures       that       the    charged       conduct       is

considered      criminal    and     punishable         as    a    felony    in    both       the

country requesting the suspect and the country surrendering the

suspect.” Ordinola, 478 F.3d at 594 n.7. The Treaty’s version of

the   dual   criminality        requirement      is        set   forth     in   Article       2,

which states that “[e]xtradition shall take place...for wilful

acts which...are punishable in accordance with the laws of both

Contracting Parties.”

      Finally,     the     Treaty       codifies       a    customary       principle         of

international       relations       in     Article          17,        titled    “Rule        of

Specialty.” The rule of specialty is premised on a “norm of

international comity.” United States v. Day, 700 F.3d 713, 722

(4th Cir. 2012).         The Supreme Court has recognized for more than

a century that it is generally accepted that extradited persons,

once returned to the requesting country, may be tried only for

those    offenses    for        which     extradition            was    granted       by     the

requested country. See United States v. Rauscher, 119 U.S. 407,

416-17 (1886). The Treaty makes this rule explicit, stating that

                                            7
“[a] person extradited under the present Treaty shall not be

detained, tried or punished in the territory of the requesting

Party for an offense other than that for which extradition has

been granted.” Treaty art. 17.



                                       II.

     Having described the legal landscape in which this appeal

arises, we now turn to the facts. Zhenli Ye Gon, a citizen of

Mexico,   owned    and   operated     pharmaceutical               businesses   in   and

around Mexico City, including Unimed Pharm Chem. Beginning in

2003, Unimed legally imported psychotropic substances, including

pseudoephedrine,      into   Mexico,      until        the    Mexican      authorities

revoked   Unimed’s    authorization           to    import    or     manufacture     such

substances in July 2005. Despite this loss of permission, Ye Gon

continued to import these substances, and in October 2005 began

construction of a new Unimed pseudoephedrine manufacturing plant

in   Toluca,      Mexico.    Once    the           plant     was     operational,     it

manufactured over 600 kilograms a day of a white crystalline

powder, which was later tested and found to contain ephedrine,

pseudoephedrine, methamphetamine acetate, and other psychotropic

substances under Mexican law.

     Believing       that    he     was       engaged        in      the   large-scale

manufacture and distribution of methamphetamine, a Mexican court

issued a warrant for Ye Gon’s arrest in June 2007. The next

                                          8
month, the United States government filed a criminal complaint

against    Ye    Gon    in   the   United         States    District      Court    for    the

District    of    Columbia,        charging        him     with   illegally       importing

drugs into the United States. He was arrested in Maryland on

this charge in July 2007 and was transferred to the custody of

the   United     States      Marshal     in   the        District    of   Columbia.       The

government      filed    a   superseding          indictment        against   Ye    Gon    in

November 2007, charging him with conspiring to aid and abet the

manufacture of 500 grams or more of methamphetamine, knowing

that it was to be imported into the United States, in violation

of 21 U.S.C. §§ 959, 960, and 963, and 18 U.S.C. § 2.

      In June 2008, pursuant to the Treaty, Mexico requested Ye

Gon’s extradition from the United States to face prosecution on

charges of organized crime; unlawful firearm possession; money

laundering;       diversion         of    essential           chemicals;      and        drug

importation, transportation, manufacturing and possession. The

government filed an extradition complaint in the District Court

for the District of Columbia in September 2008. In June 2009,

approximately four months before Ye Gon’s criminal trial was

scheduled to begin, the government moved to dismiss the charges

against Ye Gon to allow for his extradition and trial in Mexico.

The government’s stated reasons for requesting this dismissal

included     Mexico’s         significant          and      separate      interests        in

prosecuting the case, the fact that the conduct charged occurred

                                              9
largely within Mexico, and the fact that much of the evidence

and witnesses that the government would rely on in prosecuting

the case were located in Mexico. The government also stated that

it had concerns about the strength of its evidence in light of

recent recantations by key witnesses. In August 2009, with the

government’s consent, the district court dismissed the criminal

charge against Ye Gon with prejudice.

      Ye Gon’s extradition hearing was then held before a federal

magistrate     judge   in    the   District   of   Columbia      beginning     in

September 2008. After extensive proceedings, including a multi-

day     evidentiary    hearing,       the   magistrate      judge   issued     a

certification of extraditability. In re Zhenley Ye Gon, 768 F.

Supp.    2d   69   (D.D.C.   2011).   Two   days   later,   Ye   Gon   filed    a

petition for a writ of habeas corpus in the Western District of

Virginia, where he was then being held. Ultimately, the district

court denied the petition. Zhenli Ye Gon v. Holder, 985 F. Supp.

2d 733 (W.D. Va. 2013).

      In this appeal from the denial of his habeas petition, Ye

Gon raises four claims: (1) the D.C. magistrate judge did not

have jurisdiction to issue his certification of extraditability

because Ye Gon was not “found within” the District of Columbia

for purposes of 18 U.S.C. § 3184; (2) the Non Bis In Idem clause

of the Treaty prevents his extradition on the Mexican charges

because his United States conspiracy charge has been dismissed

                                       10
with prejudice; (3) the Treaty’s dual criminality requirement

prevents his extradition because the Mexican crimes with which

he is charged are not also criminal in the United States; and

(4) the Treaty’s rule of specialty provision requires this court

to limit the charges on which he can be tried in Mexico to those

authorized by the extradition magistrate. For the reasons that

follow, we find that none of these claims merits relief and

affirm the district court’s denial of the habeas petition.



                                    III.

     Ye Gon first claims that the magistrate judge who conducted

his extradition proceedings lacked jurisdiction over him under

18 U.S.C. § 3184. He contends that he was not “found within

[the]   jurisdiction”   of    the   D.C.     magistrate      because   he   was

arrested   on   criminal     charges       in     Maryland    and    was    then

transported to the District of Columbia against his will.

     Although   we   have    reviewed      many    extradition      proceedings

conducted under Section 3184, we have never elaborated on its

jurisdictional requirements. Only one of our decisions, Atuar v.

United States, 156 Fed. Appx. 555 (4th Cir. 2005) (unpublished),

has mentioned even in passing the issue of jurisdiction under §

3184. There, we agreed with the parties’ stipulation that the

extradition judge, a West Virginia magistrate, had jurisdiction

to conduct a § 3184 hearing because “at the time the petition

                                     11
was formally filed against [the suspect], he was incarcerated in

... West Virginia.” Id. at 559 n.5.

       The most logical reading of the text of § 3184 supports the

view    that       the    fugitive’s         location       at   the    time     extradition

proceedings         are   brought         against     him    determines         where    he    is

“found.”      The    statute       states      that       the    extradition      judge       may

charge    a    person      “found         within    his     jurisdiction”        with    having

committed      a    crime     in      a    foreign    country      in     violation      of    an

extradition         treaty.      The       jurisdictional         requirement       is    thus

textually linked to the extradition charge. The most natural

reading is that the two are temporally linked as well – that is,

jurisdiction must be satisfied at the time that the fugitive is

charged with having committed an extraditable offense. Section

3184,     therefore,          apparently            requires       that     a     fugitive’s

extradition hearing be held before a judge with jurisdiction

over the place where he was found as a fugitive.

       Binding authority on this point is limited to Pettit v.

Walshe,       194    U.S.       205       (1904).     In     Pettit,       an    immigration

commissioner         in   New      York     issued    an     extradition        warrant       for

Walshe, a British citizen, and ordered Walshe to be brought to

New York to appear before him. Walshe was arrested in Indiana

and transported to New York for his extradition hearing. The

Supreme Court held, under the terms of the treaty between the

United States and Great Britain and a predecessor of § 3184,

                                               12
that the commissioner could not order Walshe to appear in New

York; rather, the extradition hearing could properly have been

held only in Indiana because “the evidence of the criminality of

the   charge     must    be    heard    and      considered    by   some   judge    or

magistrate ... sitting in the state where the accused was found

and arrested.” Id. at 218-19.

        The   arrest    at    issue    in   Pettit     was   made   pursuant   to   an

extradition warrant. Here, by contrast, the warrant upon which

Ye Gon was arrested in Maryland was for a United States criminal

charge. No extradition complaint was filed against Ye Gon until

September 2008, when Ye Gon was already in federal custody in

the District of Columbia. We read Pettit, consistent with our

reading of the statute’s text and with our unpublished decision

in Atuar, to establish only that a defendant must be tried in

the same location where his extradition warrant is executed – in

Ye Gon’s case, in the District of Columbia. Pettit thus provides

no support for Ye Gon’s argument that the location of his arrest

on the drug conspiracy charge is relevant under Section 3184.

        Ye Gon argues that the fact that he was moved from Maryland

to the District of Columbia against his will precludes the D.C.

magistrate from exercising jurisdiction over him. We find no

merit    in    this     argument.      Under     the   Ker-Frisbie     doctrine,     a

defendant’s involuntary presence in a court is not a bar to

personal jurisdiction. See Frisbie v. Collins, 342 U.S. 519, 511

                                            13
(1952) (“This Court has never departed from the rule announced

in Ker v. Illinois, 119 U.S. 436, that the power of a court to

try a person for crime is not impaired by the fact that he had

been   brought      within    the   court’s      jurisdiction       by    reason      of   a

‘forcible abduction.’”); United States v. Shibin, 722 F.3d 233,

243    (4th   Cir.    2013)    (holding,        in   an    extradition        case,    that

“[u]nder      the    Ker-Frisbie     doctrine,       the       manner    in   which    the

defendant      is    captured       and   brought         to    court    is    generally

irrelevant to the court’s personal jurisdiction over him.”). 3

       Further,      when     construing        other     jurisdiction        and     venue

statutes concerning foreign nationals that, like § 3184, require

a defendant to be “found in” a place, we have held that this

“found in” requirement is satisfied even when the defendant is

brought there against his will. For example, in Shibin, we held

that a defendant was “found” in the United States and could be

tried here on piracy charges, despite being forcibly removed to

the United States from Somalia. 722 F.3d at 244. Likewise, in


       3
       Ye Gon also argues that he cannot be tried in the District
of Columbia because Maryland is, in the words of Wright v.
Henkel, 190 U.S. 40, 58 (1903), “the place where [he] was found
and, in legal effect, the asylum to which he had fled.” His
reliance on this language is misleading because it was written
to explain why state laws, in addition to federal laws, should
be examined for purposes of analyzing dual criminality. Ye Gon’s
use of this phrase to support his personal jurisdiction argument
thus takes it out of context and ignores the case’s holding,
which was that Wright could be detained pending his extradition.



                                           14
United     States     v.   Uribe-Rios,       558    F.3d    347,    356-57     (4th    Cir.

2009), we held that a defendant facing deportation was “found

in”   and     could    be    tried    in     the    Western     District        of    North

Carolina, although he was transferred there after being first

detained by immigration authorities in the Eastern District of

North Carolina. Accordingly, the D.C. magistrate judge properly

exercised personal jurisdiction over Ye Gon under 18 U.S.C. §

3184.



                                            IV.

      Ye    Gon   next      argues    that    the    Treaty’s       Non   Bis    In    Idem

provision in Article 6 bars his extradition. As noted, Ye Gon

was charged in the United States with criminal conspiracy to aid

and abet the manufacture of methamphetamine. He contends that,

because this charge was later dismissed with prejudice, he has

been prosecuted and acquitted of it. As a result, he argues, he

cannot be prosecuted again on the Mexican charges because each

Mexican     charge     arose    out    of    the     same    acts    or   transactions

underlying the American conspiracy charge.

      To succeed on this argument, Ye Gon must show both that he

“has been prosecuted or has been tried and convicted” of the

American offense, and that the American offense is “the offense

for   which    extradition      is    requested”       by    Mexico.      We    need    not

decide whether the D.C. district court’s dismissal of Ye Gon’s

                                             15
conspiracy charge with prejudice satisfies the requirement that

he    “has    been   prosecuted      or   has    been     tried    and       convicted        or

acquitted”      by   the    United     States,     because        we    find      that    the

American conspiracy proceedings were not “for the offense[s]”

for which Mexico has requested extradition.

       We have never established a framework for examining, under

a Non Bis In Idem clause, whether an American offense is “the

offense” for which the requesting country seeks extradition. The

parties now offer competing frameworks. The government urges us

to adopt the familiar test from Blockburger v. United States,

284    U.S.    299   (1932),      under    which    we    would        ask   whether      the

American and Mexican offenses each contain an element that the

other does not. Ye Gon, however, urges us to follow the decision

in Sindona v. Grant, 619 F.2d 167, 178 (2d Cir. 1980), under

which we would compare the conduct underlying the American and

Mexican       offenses     to   determine       whether    both        arise      out    of    a

“single       criminal     act,    occurrence,          episode        or    transaction”

(internal citation omitted).

       We    begin   our    analysis      with   the     language       of    the   Treaty.

Article 6 directs the parties to examine “the offense for which

extradition is requested,” while the dual criminality provision

in Article 2 prevents extradition for crimes unless they are

“wilful acts ... punishable in accordance with the laws of both

Contracting      Parties”       (emphasis       added).    The     use       of   the    word

                                           16
“offense” in this context and “acts” in another signifies that

the “offenses” to be compared during the Non Bis In Idem inquiry

must be something other than the acts underlying those offenses.

The most natural reading of “offense,” as distinct from “acts,”

is that “offense” refers to the definition of the crime itself.

This weighs heavily in favor of the government’s elements-based

Blockburger approach.

     Moreover,       the   State    Department    has   interpreted       similar

“offense”-based Non Bis In Idem provisions in other treaties to

call for a Blockburger analysis. Many of these treaties were

signed within a few years of 1978, when the Treaty at issue in

this case was signed. See, e.g., Extradition Treaty with the

Philippines, S. Exec. Rep. No. 104-29, at 10-11 (1996) (Non Bis

In Idem clause applies only where the crimes in both countries

are “exactly the same”; “[i]t is not enough that the same facts

were involved”); Extradition Treaty with Thailand, S. Exec. Rep.

No. 98-29, at 4 (1984) (“offense”-based Non Bis In Idem clause

was drafted narrowly to ensure that the person extradited can be

tried in two countries for two different offenses, even when

“the acts are the same”); Extradition Treaty with Costa Rica, S.

Exec.   Rep.   No.    98-30,   at   5   (1984)   (prosecution   in    a   second

country would be permissible for “different offenses ... arising

out of the same basic transaction”). See also Elcock v. United

States, 80 F. Supp. 2d 70, 83 (E.D.N.Y. 2000) (“[T]he Department

                                        17
of State has clearly expressed its view that “offense”—based

double jeopardy provisions ... apply only where the elements of

the   crimes    charged     in      the      domestic    prosecution       and    the

extradition    request     are   the      same,   regardless       of   whether    the

underlying facts are the same.”) Such State Department treaty

interpretations are entitled to “substantial deference” from the

courts. United States v. Al-Hamdi, 356 F.3d 564, 571 (4th Cir.

2004).

      Turning now to Ye Gon’s proposed framework, we do not find

persuasive the reasoning of the Second Circuit in adopting the

“same conduct” test. In Sindona, the State Department initiated

an extradition proceeding against an Italian businessman for the

Italian    crime     of    fraudulent          bankruptcy.     Before       he     was

extradited, however, he was indicted in the United States on

charges of fraudulent conduct that led to a bank collapse. The

Second Circuit examined whether the American charges precluded

Sindona’s extradition under the treaty between the United States

and Italy, which prevented extradition if the fugitive had been

tried or proceeded against in the United States “for the offense

for   which    his   extradition       is    requested,”     619    F.2d   at     176,

language almost identical to the Non Bis In Idem clause at issue

in this case.

      In   analyzing      whether      the     Italian   and   American      crimes

qualified as the same “offense” under this clause, the Second

                                          18
Circuit rejected the Blockburger test, reasoning that foreign

countries could not be expected to be aware of its existence.

Instead, the court held that the construction of the Non Bis In

Idem   clause      should      be    “at     least      as    broad”     as     two     other

interpretations         of   double       jeopardy.     The     first    of     these    was

Justice Brennan’s concurring opinion in Ashe v. Swenson, 397

U.S. 436 (1970), in which he wrote that any charges arising out

of a “single criminal act, occurrence, episode or transaction”

on which a criminal trial had already been held should be barred

by the Double Jeopardy Clause. Id. at 453-54. The second was the

Justice Department’s internal Petite policy, named for Petite v.

United States, 361 U.S. 529 (1960), which stated that federal

prosecutors       should     not    try    defendants        “for    substantially        the

same   act   or    acts”     that     have    already        been    tried    in    a   state

prosecution.       Sindona,     619    F.2d       at   178-79       (internal      citations

omitted). Thus, the Second Circuit appeared to adopt a “same

conduct” test for determining whether two countries’ offenses

are equivalent under a Non Bis In Idem clause.

       In the years since Sindona was decided, one of the two

foundations       for   this   “same       conduct”     test     has    been    eroded    by

later Supreme Court rulings. In United States v. Dixon, 509 U.S.

688, 704 (1993), the Court struck down the “same conduct” rule

for    double     jeopardy      analysis          as   “wholly       inconsistent        with

earlier Supreme Court precedent and with the clear common-law

                                             19
understanding        of    double     jeopardy.”            In      doing     so,      the    Court

definitively        rejected    Justice         Brennan’s         interpretation             of    the

Double Jeopardy Clause as expressed in his concurring opinion in

Ashe v. Swenson. Sindona’s other foundation, an internal Justice

Department      policy,      self-evidently            carries         no    legal   authority.

Cf. United States v. Jackson, 327 F.3d 273, 295 (4th Cir. 2003)

(“[I]t   is     well     established          that    the    Petite         policy     and    other

internal prosecutorial protocols do not vest defendants with any

personal rights.”); United States v. Musgrove, 581 F.2d 406, 407

(4th   Cir.     1978)      (“[A]    defendant           has       no    right     to    have       an

otherwise valid conviction vacated because government attorneys

fail to comply with departmental policy on dual prosecutions.”).

       In addition to its shaky legal foundations, we believe that

the    Sindona       “same      conduct”            rule     proves          inadequate           upon

application,        as    illustrated          in    the    Sindona          decision        itself.

Immediately after it purported to adopt the “same conduct” test,

the    Second       Circuit     concluded            that     the       Italian      charge         of

fraudulent      bankruptcy      and       the       American      charges       of     fraudulent

conduct did not in fact constitute the same “offense” under the

treaty’s      Non    Bis   In   Idem          clause.       The     court     reasoned         that,

although the Italian crime may have been the “but-for cause” of

the    American      crimes,       the    harms        to     the      two    countries           were

distinct, and the crimes charged by the American prosecutors

were   “on    the      periphery”        of    the    Italian          crimes.      Thus,      after

                                                20
endorsing the “same conduct” test in principle, the court then

considered        additional       factors           during      its         application,

effectively acknowledging that the “same conduct” test did not

satisfactorily resolve the Non Bis In Idem inquiry.

      For these reasons, we decline to follow Sindona’s “same

conduct” framework, and adopt the Blockburger “same elements”

test as the proper mode of analysis in this context. Ye Gon does

not   contest     that   under    a    Blockburger           analysis,       the   Mexican

offenses of organized crime, unlawful firearm possession, money

laundering,       diversion       of     essential           chemicals,        and     drug

importation, transportation, manufacturing and possession do not

constitute       the   same    “offense”        as     the     American       charge     of

conspiracy to aid and abet the manufacture of methamphetamine.

We therefore hold that Article 6 of the Treaty does not bar Ye

Gon’s extradition.



                                          V.

      Ye   Gon    next   argues    that    the       offenses     for    which       Mexico

requests his extradition do not also constitute criminal acts in

the United States, and therefore the Treaty’s dual criminality

provision    in    Article    2   bars    his    extradition.           In    Collins    v.

Loisel, 259 U.S. 309, 312 (1922), the Supreme Court held that

dual criminality is satisfied “if the particular act charged is

criminal in both jurisdictions,” even if the name of the offense

                                          21
or    the   scope      of    the    liability     was     different       in    the    two

countries.        This      language      has    been      broadly        accepted       as

establishing         that    dual   criminality      requires        only      that     the

offenses in the two countries punish the same basic evil; it

does not require that the offenses contain identical elements.

See, e.g., Clarey v. Gregg, 138 F.3d 764, 766 (9th Cir. 1998);

Peters v. Egnor, 888 F.2d 713, 719 (10th Cir. 1989); Shapiro v.

Ferrandina, 478 F.2d 894, 907-08 (2d Cir. 1973).

      Ye    Gon      concedes   that   to    satisfy     dual   criminality           under

Collins, the elements of the two countries’ crimes need not be

exactly the same. Rather, he argues that the acts alleged in the

Mexican charging documents must be sufficient, standing alone,

to    support     United      States   criminal         charges.     He     rests     this

argument on language from Collins stating that the “particular

act charged” must be criminal in both jurisdictions. 259 U.S. at

312 (emphasis added).

      We disagree with Ye Gon’s narrow reading of Collins.                              In

our   view,     it    is    permissible     to   examine    conduct       outside     that

alleged in the requesting country’s charging documents in the

course of conducting a dual criminality analysis. The elements

of Mexican crimes differ from the elements of American crimes,

and Mexico thus has no reason to plead in its own charging

documents all facts necessary to make out an American criminal

charge. Ye Gon’s reading therefore essentially reduces to the

                                            22
“same elements test,” which he admits was rejected in Collins.

The   language    that    Ye   Gon   cites    from    Collins   is   not   to    the

contrary, because Collins did not address the question of the

scope of the conduct that may be considered in conducting a dual

criminality analysis.

      At least two other circuits have implicitly agreed with our

broader framework by actually considering conduct outside that

alleged   in   the      requesting   country’s       charging   documents       when

performing a dual criminality analysis. See Clarey, 138 F.3d at

766 (9th Cir. 1998) (relying on the American district court’s

factual   findings       to    establish     that    petitioner’s    conduct     in

Mexico satisfied the American felony murder statute); Lo Duca v.

United States, 93 F.3d 1100, 1112 (2d Cir. 1996) (relying on

evidence presented at petitioner’s Italian trial to establish

that his conduct satisfied American criminal statutes). 4

      Having     thus    established       the   proper   framework,       we    now

examine whether the offenses for which Mexico requests Ye Gon’s

extradition satisfy the Treaty’s dual criminality requirement.


      4
       Ye Gon also quotes language from Mironescu, 480 F.3d at
668, in support of his position. However, that case did not
address any dual criminality issues; it concerned whether the
district court had jurisdiction to consider the habeas petition
of a fugitive whom the State Department had certified for
extradition. Ye Gon’s reliance on Mironescu on this point is
therefore inapposite.




                                       23
Taking into consideration all of Ye Gon’s alleged conduct, we

conclude that each offense is also criminal under United States

law.

       1. Drug Offenses

       Ye   Gon    claims   that   the   Mexican   charges      against   him    for

importing,         manufacturing,        transporting        and      possessing

psychotropic substances do not represent criminal offenses under

American     law     because   he    imported      only   the     precursors     to

psychotropic substances, which are not controlled substances in

the United States. However, under 21 U.S.C. §§ 843(a)(6)-(7),

importing,        manufacturing,     transporting     and       possessing      such

precursors is criminal if the defendant engages in such activity

“knowing, intending, or having reasonable cause to believe” that

such chemicals will be used to make controlled substances or

listed chemicals. The extradition magistrate found that Ye Gon

falsely certified the content and origin of import shipments

containing precursors to pseudoephedrine, a “list I chemical”

under 21 U.S.C. § 802(34)(K) and 21 C.F.R. § 1310.02(a)(11);

that he built a plant capable of manufacturing pseudoephedrine

and other psychotropic substances, despite lacking the Mexican

permit necessary to do so; that workers in this plant produced

over 600 kilograms a day of a “white crystalline powder,” and

the analyzed samples of this powder contained pseudoephedrine

and other psychotropic substances; that despite such production,

                                         24
Ye Gon reported no income for the plant or for Unimed during

this time period; that either Ye Gon or his driver transported

the powder away from the plant; and that Ye Gon was found to

have     powdered        pseudoephedrine              hydrochloride,       a     salt    of

pseudoephedrine, in his office ten months after the company was

supposed to have sold off all legally acquired inventory of that

substance. These findings are sufficient to give rise to the

inference        that   Ye     Gon   knew    that       the    chemicals   he   imported,

transported,          manufactured,         and      possessed     would   be     used   to

produce psychotropic substances. Therefore, these Mexican drug

offenses are also crimes under the laws of the United States.

       2. Diversion of Sulfuric Acid

       Ye       Gon   claims     that     the        Mexican    offense    of   diverting

essential chemicals – in this case, sulfuric acid – to produce

narcotics is not a criminal offense in the United States because

sulfuric acid is an extremely common, unregulated solvent in

America. However, sulfuric acid is a “list II chemical” under 21

U.S.C.      §    802(35)     and     21   C.F.R.       §   1310.02(b)(9),       triggering

certain reporting and registration requirements under 21 C.F.R.

§§ 1310, 1313.

       In addition, the Mexican arrest warrant charged Ye Gon with

“the   use       of   essential       chemical        products    (sulfuric      acid)   to

produce         narcotics,”        including         pseudoephedrine.      This     charge

brings Ye Gon’s possession of sulfuric acid within 21 U.S.C. §

                                                25
843(a)(6)-(7)’s prohibition on possessing any chemical that may

be used to manufacture a controlled substance if the person does

so “knowing, intending, or having reasonable cause to believe”

that the chemical will be used to manufacture such a substance.

Thus,   Ye    Gon’s    Mexican     charge    of    diverting       sulfuric    acid    to

produce psychotropic substances is also criminal in the United

States.

      3. Money Laundering

      Ye Gon argues that his Mexican money laundering charge has

no   equivalent       under    United    States       criminal     law    because     the

Mexican      arrest    warrant     alleged     only    that   Ye    Gon   “maintained

funds in Mexican territory with the knowledge that the funds had

an illegal source,” while the American money laundering statute,

18 U.S.C. § 1956(a)(1), requires not only proof of maintenance

of   funds    but     also    of   a   financial      transaction.       As   discussed

above, however, our dual criminality analysis is not limited to

the allegations contained in the Mexican arrest warrant or other

charging documents. The Mexican prosecutor did cite financial

transactions, such as Ye Gon’s payment of gambling debts and

currency exchange transfers, in his sworn affidavit in support

of Mexico’s extradition request. This alleged conduct satisfies

18 U.S.C. § 1956(a)(1)’s financial transaction requirement, and

therefore, the money laundering with which Ye Gon was charged in

Mexico is also criminal in the United States.

                                          26
        4. Organized Crime

        Ye Gon’s sole objection to the American criminality of his

Mexican organized crime charges is that the goals of the alleged

criminal      organization              –    namely,        drug     activity     and    money

laundering – are not criminal under United States law. Because,

as     discussed      above,        the       Mexican        drug     charges     and    money

laundering     charges        do    satisfy          dual    criminality        under    United

States law, that contention lacks merit. Therefore, the Mexican

organized crime charges also satisfy dual criminality because

they punish acts also punishable under 18 U.S.C. §§ 371, 1956(h)

and 21 U.S.C. §§ 846, 848.

        5. Possession of Firearms

        Finally,      Ye     Gon        argues       that     the     Mexican     charge     of

possessing firearms reserved for use by the armed forces is not

a criminal offense under American law – and, in fact, cannot be

criminalized        because        of       the    Second    Amendment.      This    argument

fails    because,         again,    the       conduct       underlying    this      charge   is

criminal in the United States. All but one of the firearms that

Ye Gon is charged with possessing were found in a concealed room

next     to   his     bedroom       in       his    Mexican        residence,    which     also

contained hundreds of millions of dollars in cash in multiple

currencies,         the    alleged          proceeds    of     Ye    Gon’s   illegal       drug

activity. Because the firearms’ proximity to drug proceeds is a

factor indicating that they were used in furtherance of drug

                                                   27
trafficking, see United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002), the fact that Ye Gon possessed the firearms in that

room is sufficient to charge him under 18 U.S.C. § 924(c) with

firearm possession in furtherance of a drug trafficking crime. 5

The only other firearm that Ye Gon is charged with possessing

had an obliterated serial number, and its possession is thus

criminal under 18 U.S.C. § 922(k). 6



                                           VI.

     Finally,     Ye    Gon     argues      that,    if     we    do    authorize    his

extradition, under the Treaty’s rule of specialty provision in

Article   17,    we    must    limit      the    crimes   with    which    Mexico    may

charge him to those for which the State Department will have

granted   extradition.         Ye   Gon    notes    that,    in    the    years     since

Mexico first requested his extradition in 2008, it has filed

additional      charges       against     him,     including      tax     evasion    and




     5
       We note that Ye Gon’s constitutional argument on this
point is limited to the assertion that possessing firearms
“reserved for the use of the military” cannot be a crime under
our Second Amendment. We do not reach this question because, as
noted above, considering all of Ye Gon’s alleged actions, his
firearm possession is criminal under 18 U.S.C. § 924(c). Ye Gon
does not challenge the constitutionality of that statute.
     6
       Again, because Ye Gon does not appear to challenge the
constitutionality of 18 U.S.C. § 922(k), we do not rule on that
question here.



                                            28
smuggling        charges.     Importantly,    Mexico    has   not    requested   the

United States to extradite Ye Gon on these additional charges.

       We decline to rule on this final claim for at least two

reasons. First, Ye Gon lacks standing to assert this claim. 7 The

rule of specialty is a privilege of the asylum state, which it

may assert or waive as it so chooses; it is not a substantive

right under the Treaty accruing to Ye Gon. See Shapiro, 478 F.2d

at 906 (“As a matter of international law, the principle of

specialty has been viewed as a privilege of the asylum state,

designed to protect its dignity and interests, rather than a

right accruing to the accused.”); United States v. Najohn, 785

F.2d 1420, 1422 (9th Cir. 1986) (“[Rule of specialty] protection

exists only to the extent that the surrendering country wishes.

... The extradited party may be tried for a crime other than

that       for   which   he     was   surrendered      if   the     asylum   country




       7
       We recognize that there may be other situations in which a
defendant who has been extradited to the United States from a
foreign country seeks to raise a specialty claim to prevent
being charged with additional crimes in our courts. Whether such
a defendant has standing to “raise whatever objections the
extraditing country would have been entitled to raise” is an
issue on which the circuits are split, Day, 700 F.3d at 721, and
we do not resolve that issue in this circuit today. Our holding
on the rule of specialty in this case is limited to the
situation in which a fugitive who has not yet been extradited
petitions an American court to limit the charges on which he may
be tried once returned to the requesting country.



                                         29
consents.”) (internal citations omitted) (emphasis in original). 8

Therefore, because Ye Gon has no protected legal interest under

Article      17   of   the    Treaty,     he    lacks   standing    to    assert   this

claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (standing requires that “the plaintiff must have suffered

...    an   invasion     of    a   legally      protected      interest”)   (internal

citations omitted).

       Second, even if Ye Gon did have standing to assert this

specialty claim, it is not yet ripe. Despite our ruling in this

case       that   the    extradition           magistrate      properly     issued   a

certification of extraditability, the final decision whether to

extradite Ye Gon, and on what charges, rests not with us but

with the State Department. See 18 U.S.C. § 3186; Ordinola, 478

F.3d at 597. As a result, Ye Gon may yet never return to Mexico.

Further, even if the State Department does extradite him, it may

elect to waive the rule of specialty in his case, permitting

Mexico to prosecute him on the additional crimes. See, e.g.,

Najohn, 785 F.2d at 1422. Finally, even if Ye Gon is extradited,

and the State Department does not waive the rule of specialty,

we    decline     to    assume     that    Mexico       will   violate    its   Treaty

       8
       Ye Gon cites Day, 700 F.3d at 721, in support of his
argument. Our reasoning in that case does not help him because
there, we assumed without deciding that the extradited party had
standing to assert a rule of specialty argument. Further, we
denied the specialty claim on the merits.



                                               30
obligations by trying, detaining, or punishing Ye Gon on the

additional charges. Cf. Kelly v. Griffin, 241 U.S. 6, 15 (1916)

(“We    assume,   of   course,    that     the      government      in   Canada   will

respect    the    convention     between      the    United   States       and    Great

Britain, and will not try the appellant upon other charges than

those upon which the extradition is allowed.”); Garcia-Guillern

v. United States, 450 F.2d 1189, 1192 (5th Cir. 1971) (court was

“not at liberty to speculate” that Peru would not honor its

obligations under the rule of specialty). As a result, we will

not rule on Ye Gon’s specialty claim because the predicate facts

are still hypothetical. See Texas v. United States, 523 U.S.

296, 300 (1998) (“A claim is not ripe for adjudication if it

rests    upon    contingent    future     events      that    may    not   occur    as

anticipated, or indeed may not occur at all.”).



                                     VII.

       Based on the foregoing, we affirm the denial of Ye Gon’s

petition for a writ of habeas corpus.

                                                                            AFFIRMED




                                         31
