Updated 5:20 p.m.
Justice Department lawyers who handle extradition requests are arguing that a federal judge's ruling in Washington that compels the government to search for and turn over favorable evidence to lawyers for a fugitive creates damaging precedent that hurts foreign relations.
DOJ lawyers handling the extradition of Zhenli Ye Gon, who had been charged in the United States in a drug trafficking conspiracy, today in court criticized a ruling in January by Magistrate John Facciola of the U.S. District Court for the District of Columbia.
Justice attorneys filed court papers (.pdf) Monday challenging the Jan. 8 ruling, which requires the government to produce evidence that would negate the showing of probable cause that the Mexican government has offered in its effort to bring back Ye Gon to face charges there. Ye Gon is charged in Mexico with crimes that include drug and weapons offenses. He has been detained in the United States since his arrest in suburban Maryland in July 2007.
Last August, a federal judge in Washington dismissed with prejudice U.S.-based charges against Ye Gon, who prosecutors had alleged was a significant player in an international methamphetamine trafficking ring. Lawyers for Ye Gon call him a legitimate businessman in the pharmaceutical import arena.
The prosecution of Ye Gon fell apart following DOJ disclosures that critical witnesses had recanted. DOJ lawyers said they were handing the case to Mexican authorities. Top-level prosecutors have told DOJ attorneys, according to court papers, that trying Ye Gon in Mexico is of significant national interest to the country.
But whether Ye Gon ever returns remains in doubt. Facciola today presided over an hour-long evidentiary hearing at which the government made its case for extradition. Facciola did not immediately rule. Most of the hearing explored whether Justice attorneys have satisfied earlier court rulings to turn over material to Ye Gon’s lawyers, Manuel Retureta of Washington’s Retureta & Wassem and D.C. solo practitioner A. Eduardo Balarezo.
Retureta said in court today that there are “gaping holes” in the evidence that are frustrating the defense effort to stop the extradition of Ye Gon. Retureta and Balarezo complained that the bulk of the Mexican case for extradition is presented in excerpts. The defense lawyers say they should receive entire reports.
The defense lawyers also say that DOJ attorneys did not follow Facciola's order to search for and provide material that negates Mexico's probable cause argument. Facciola dismissed the concern of the lawyers, finding that the prosecution had complied with the January order.
Justice senior trial attorney Valinda Jones of the department’s Office of International Affairs urged Facciola to take back his order in January that required the government to search and disclose evidence that negate the probable cause argument laid out by Mexican authorities.
In court, Jones, who said the government has complied with the judge's order, called the ruling “misguided” and “inappropriate.” (Click here for a copy of Facciola's opinion.)
“Such a rule creates a damaging precedent because it is without firm legal foundation and imposes an unwarranted burden on the United States and its treaty partners,” Jones said in court papers filed Monday in federal district court in Washington.
Facciola’s ruling gives international fugitives more rights than domestic defendants have at the probable cause stage, Jones said in court papers.
Jones also said the ruling creates the possibility for collateral litigation over the scope of the government’s search and the sufficiency of the disclosure.
“Changing the nature of the extradition proceeding in that fashion would adversely affect foreign relations because it would undermine the expectations of the parties to extradition proceedings,” Jones said in court papers.
The big-picture argument didn’t sway Facciola.
He denied the government’s request that he rescind the opinion. He said from the bench that he gave his ruling “extraordinary” thought and that he got it “right in the first place.” He said the opinion applies to the unique circumstances involved in the simultaneous criminal prosecution and extradition of Ye Gon.
Facciola, who denied a defense request to continue the extradition hearing, said today in court he will begin to “roll up his sleeves” to review the extradition request and prepare a written report regarding whether Mexico has provided enough information to support extradition.