The opinion of the court was delivered by: ORRICK
B. The Commencement of the Goldfish Case
C. The Prosecution Team's May 1988 Trip
D. Wang's September 1988 Trip to San Francisco
E. The Prosecution Team's March 1989 Trip
F. The September 1989 Trip to Shanghai
H. The Immigration Proceedings
I. Wang's Prospects if He is Returned to the PRC
1. Exhaustion of Administrative Remedies
2. Political Questions Doctrine
B. Third Cause of Action: Violation of Substantive Due Process
1. Wang's Constitutional Rights Apply to Conduct while He Was in the PRC and as an Alien
2. Wang has the Right to be Free from Governmental Conduct that "Shocks the Conscience"
(a). The Government Acted With Deliberate Indifference to Wang's Rights
(i) The Government Ignored Clear Indications that the PRC Police Coerced Parts of Wang's Testimony
(ii) The Government Attempted to Prevent the PRC from Transferring Wang to the Chinese Court System Until After He Testified in the United States
(iii) The Government Ignored Problem of Using Wang as a Witness When Prosecution was Declined in Hong Kong
(iv) The Government Deliberately Failed to Consider the Wang Videotape
(v) The Government Failed to Prepare PRC Officials for Cross-Examination
(vi) The Government Deliberately Failed to Advise PRC Wang Could Apply for Asylum
(vii) Swenson Lied to the Court About His Knowledge of PRC Mistreatment of Wang
(viii) After Wang Testified, Swenson Tried to Cover Up His Failings in the Case
(ix) INS Tried to Derail Wang's Asylum Application
b. Actions of the Government "Shocks the Conscience" of the Court
C. Fourth Cause of Action: Violation of the Government's Duty to Protect Its Witnesses
D. Fifth Cause of Action: Failure to Use Ordinary Care
E. Sixth Cause of Action: Equitable Estoppel Based on Affirmative Governmental Misconduct
F. Seventh Cause of Action: Violation of 18 U.S.C. § 3508
G. Eighth Cause of Action: As Applied Violation of Procedural Due Process
H. Ninth Cause of Action: Facial Violation of Procedural Due Process
I. Tenth Cause of Action: Violation of 8 U.S.C. § 1182
J. Twelfth Cause of Action: Violation of the Law of Nationals and International Law
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960).
Plaintiff, Wang Zong Xiao ("Wang"), a citizen of the People's Republic of China ("PRC" or "China"), claims he is a victim of a prosecutorial effort conducted in violation of the above canons enunciated by the Supreme Court. Wang filed this lawsuit against the Attorney General of the United States, the United States Attorney for the Northern District of California, the Marshal for the Northern District of California, the Commissioner of the Immigration and Naturalization Service ("INS"), and the INS District Director (collectively "defendants" or "government"), seeking to bar the United States government from returning him to the PRC, where, Wang insists, he faces the death penalty as punishment for providing truthful testimony in an American court of law. The gravamen of Wang's first amended complaint is that the government deprived him of the substantive due process of law that the Constitution of the United States guarantees.
Plaintiff's first amended complaint, filed July 5, 1990, stated twelve causes of action. In accordance with the Ninth Circuit's opinion in Wang Zong Xiao v. Barr, 979 F.2d 151 (9th Cir. 1992), this Court, by Memorandum Decision and Order ("Memorandum Decision") filed March 2, 1993, dismissed Wang's eleventh cause of action. Wang's remaining causes of action are for injunctive relief pending final adjudication of asylum application (including federal judicial review), injunctive relief pending final adjudication of asylum application (including federal judicial review), violation of substantive due process, violation of the government's duty to protect its witnesses, breach of the government's duty to exercise ordinary care, equitable estoppel based on affirmative governmental misconduct, violation of 18 U.S.C. § 3508, violation of procedural due process (alleging that § 3508 is unconstitutional as applied to Wang), violation of procedural due process (alleging that § 3508 is unconstitutional as applied to any prisoner from the PRC), violation of 8 U.S.C. § 1182, and violation of the law of nations and international law.
The facts show such clear, flagrant, and shameful violations of Wang's rights under the Constitution that they "shock the conscience" of the Court and deny Wang the due process to which he is entitled. The facts also warrant the exercise of the Court's inherent supervisory power to protect the witnesses appearing before it. To remedy the constitutional violations, and to protect Wang from certain torture and probable death, the Court enjoins defendants from taking any action to return Wang to the custody of the PRC or its representatives.
For jurisdictional reasons, the Court determines that defendants are entitled to judgment on Wang's remaining causes of action.
On March 12, 1988, at approximately 2:00 p.m., PRC police officials arrested Wang on the streets of Shanghai. Four men approached Wang, kicked him, and dragged him along in the street and into a waiting car; once in the car, Wang was blindfolded, kicked again, and sworn at by the arresting officers. Wang knew he was being arrested for his participation in a heroin transaction.
The officers took Wang to the Chang-Ning Branch of the Shanghai Public Security Bureau ("PSB"); they left Wang in an office with three or four men in plain clothes for approximately two hours. During that time, these men hit and kicked Wang, and also used an electric cattle prod to shock him several times. Wang was handcuffed throughout this two-hour beating.
At approximately 5:00 p.m. that same day, the police took Wang to an interrogation room. The physical layout of the room was as follows: Wang was seated alone in a chair in the center of the room; Wang's interrogators sat behind a desk; that desk was atop a raised platform at one end of the room; at least three men sat behind the desk and asked Wang questions while a woman seated with them took notes. The men proceeded to tell Wang of something they referred to as the Communist Party policy: if Wang told the officers everything, he would receive leniency; if he refused to speak, he would be treated with severity. At some point after this, Zhu Yi-Zhong ("Zhu"), the Deputy Chief of the Division of Preliminary Hearing in the PSB, entered the interrogation room and told Wang that people had been arrested in Hong Kong and the United States in connection with "the goldfish." The officers thereafter proceeded to question Wang about the underlying facts of a conspiracy to ship heroin to the United States.
This interrogation session lasted from 5:00 p.m. until 10:00 p.m. The questioning was interrupted several times. When the officers would take a break from questioning Wang, two young men would approach him, kick him, and shock him with a cattle prod. The officers reminded Wang of the party policy (cooperate and receive leniency, remain silent and receive severe treatment) repeatedly throughout the five-hour interrogation.
At approximately 10:00 p.m., Wang was taken by car to the "No. 1 Detention House" in Shanghai. Officers took Wang to another interrogation room where the physical layout was nearly identical to that of the interrogation room at the Chang-Ning Branch. The questioners in this room included Zhu, Huang Zushing ("Huang"), Chief of the PSB's Preinterrogation Division, and two other men who shared the name "Wang." During this second interrogation, no more than seven or eight officers were in the room at any one time. A female officer again took notes; one of the officers named Wang also took notes. The second interrogation was much more lengthy than the first; the officers questioned Wang until around 7:00 a.m. the following morning. The conditions, however, were hardly more pleasant. Wang was forced to stand for up to an hour at a time; despite his requests to sleep, officers would shake him if he fell asleep even for a few minutes; he was given nothing to eat or drink; when he asked for water, the officers reproached him, asking "what kind of place do you think you're in?"
Zhu and one of the officers named Wang both threatened plaintiff Wang that in the event he did not cooperate, he would be shot. One of the officers said to Wang, "you're like a piece of meat on our chopping board; we can chop you any way we want." Although Wang suffered verbal abuse, none of the officers physically struck him during the second interrogation. The seven or eight officers in the room took turns asking Wang questions about a delivery of heroin to San Francisco.
The second interrogation lasted throughout the night and into the early hours of the following morning, March 13, 1988. At approximately 7:00 a.m., officers took Wang to a detention cell where he slept on the floor for about an hour. He awoke to be shocked again by a cattle prod. Wang was then taken to a third interrogation, which lasted from around 9:00 a.m. until 7:00 p.m. Wang was sometimes seated and sometimes standing during this interrogation. He was given lunch, and when officers returned him to his detention cell, he was given dinner. After this dinner break, the officers took Wang back to the interrogation room, where the questioning continued until 2:00 or 3:00 a.m. the following morning, March 14.
This pattern of interrogations continued for close to a month, with interruptions of only one or two days a week. On at least five occasions, the interrogations of Wang were videotaped; during each interrogation session, at least one PRC police official would take notes.
While the structure and frequency of the interrogations remained constant during this period, Wang's answers did not. The PRC officials told Wang they knew he had received a shipment of heroin. They asked Wang who it was that delivered heroin to the factory where he worked. On March 13, Wang gave the police two names, neither of which was Liang De Lun.
Indeed, Wang told the police he had never seen either of the two individuals who delivered the heroin to the factory; he did, however, tell the police that he had spoken with Liang prior to the delivery, and that Liang was responsible for sending the two men with the heroin to Shanghai.
The PRC police officials were not satisfied with this response. One of them told Wang that he had not provided sufficient evidence to prosecute Liang. The police also made it clear to Wang that if he would say that Liang was present at the delivery, there would be no misunderstanding regarding where the heroin came from: it would be clear that it came from Hong Kong rather than from mainland China.
After several days of interrogations, Wang changed his story. He told the PRC police officials that Liang was present when the heroin was delivered. It is not clear when exactly Wang changed his version of events, but he did sign an interrogation statement on April 21, 1988, that placed Liang at the scene of the delivery. All told, the PRC police interrogated Wang more than thirty times from the time of his arrest on March 12, through April 21.
Wang continued to suffer physical abuse after April 21, 1988. The interrogations, for the most part, ceased. From March 12 through December 1989, when Wang came to the United States to testify, he was held incommunicado at the No. 1 Detention House. He left there on one occasion in September 1988, when he traveled to the United States to execute an affidavit in support of an extradition request. See Section D, infra. At one point, Wang was placed in an isolation cell for several days because the officers suspected him of smoking a cigarette. The eight-character Chinese phrase discussed above ("if you cooperate, you will receive leniency; if you do not, then you will be treated severely") appeared on the wall of every interrogation room that Wang saw in the No. 1 Detention House.
There are credible reports that public security personnel sometimes use harsh treatment at the time of detention. . . .
Although Chinese law details a series of procedures to be observed in the handling of suspects, including use of arrest warrants and time limits for detention during investigation and trial, such safeguards frequently are ignored in practice. . . .
In practice . . . people have been detained for long periods without being charged or told the reasons for their detention. . . .
Most Chinese trials are essentially sentencing hearings at which defense representatives plead for clemency for their clients and, with few exceptions, do not contest their guilt. . . . Courts assume the guilt of any person brought to trial. . . .
Wang's treatment in the PRC police system -- his detention without trial, his forced confessions, and the physical and mental torture exerted upon his person -- is consistent with the treatment of many other prisoners in the PRC.
That the PRC police interrogated Wang many times, and forced him to give multiple confessions, is consistent with the purposes of the PRC's criminal justice system to force the individual suspected of wrongdoing to cooperate with the state. See Section I, infra.
B. The Commencement of the Goldfish Case.
For the United States Attorney's Office for the Northern District of California and the Drug Enforcement Administration ("DEA") San Francisco Field Office, what now is known as the "Goldfish" case first came to light in early March 1988. DEA Special Agent Thomas Aiu learned from his supervisor, Carter Osleber, that authorities in the PRC had intercepted a shipment of heroin, concealed in the cavities of dead goldfish, bound for San Francisco.
On March 8, 1988, PRC law enforcement officials had contacted Jonathan Aloisi, the Narcotics Coordinator in the American Embassy in Beijing, and liaison between the Hong Kong DEA office and the PRC's Ministry of Public Security ("MPS"), to notify him of the shipment. ( Ex. 29 P 1.) Aloisi then contacted Brad Morgan, a DEA agent stationed in Hong Kong. Morgan then asked Aloisi to investigate whether the Chinese would participate in a "controlled delivery" of heroin. ( Id. P 6.)
Aiu asked for, and received, approval from Assistant United States Attorney Eric Swenson to place a "beeper" inside a controlled delivery of heroin from Shanghai to San Francisco. Swenson, who has been an Assistant United States Attorney since November 1975, and who has handled narcotics matters since 1978, authorized the placement of the beeper.
The controlled delivery was made on May 10, 1988, and arrests followed thereafter in Hong Kong, China, and San Francisco; among those arrested in China was Wang. See Section A, supra. At some point in March 1988, both Swenson and Aiu learned of Wang's arrest in China. Aiu also knew of two suspects in Hong Kong who were central to the conspiracy to import heroin, namely, Chico Wong, who was a United States citizen and who had been released on detention bail, and Liang, aka Leung Tak Lun, whom Aiu viewed as the "mastermind" of the drug smuggling operation and whom Hong Kong authorities were holding in custody.
The Chinese Ministry of Public Security has arrested two individuals in Shanghai and the Hong Kong authorities have arrested two Hong Kong citizens in connection with the attempt . . . to ship heroin to San Francisco from Shanghai. The PRC agrees that this cooperative effort between the Chinese and the Americans should be well-publicized, but emphasize [sic] that we need to coordinate to ensure that the news is released simultaneously in the US, Hong Kong, and the PRC. . . .
2. The Ministry of Public Security (MPS) informed us today (March 14) that they have made arrests in the heroin shipment case. On March 12 at approximately 1500 the Shanghai public security authorities arrested Wang Zongxiao and his associate Liang Junhua in Shanghai. At approximately 2045 on March 12 authorities in Hong Kong arrested two Hong Kong citizens, Liang Delun and his wife Ma Xingying. MPS officials said that on January 20 Liang Delun sent two as yet unidentified individuals to Guangzhou to deliver 4684 grams of heroin to Wang Zongxiao, thus setting in train the events leading to the MPS seizure of heroin on March 9 in Shanghai.
(Ex. 30 PP 1-2 (emphasis added).) On March 16, 1988, the American Embassy issued another cable, which noted that the PRC was "urg[ing] Hong Kong and DEA in the U.S. to agree to simultaneous release of the news [of the arrests] . . . on Thursday, March 17 (Beijing time)." ( Ex. 31 P 2.) The Embassy recommended that the United States agree to the PRC's request. (Id.) The joint press statement was released on March 17, 1988. (Ex. 32.)
In late March 1988, Aiu and Swenson learned that Hong Kong had decided not to prosecute the suspects under its control. Aiu learned of the declination decision from Hong Kong Inspector Sandy Boucher. Aiu relayed the information to Swenson and to Osleber. Aiu did not prepare a file memorandum on Hong Kong's declination decision, and he is unaware to this day whether anyone within the DEA did prepare such a memorandum.
Around March 28, 1988, Boucher sent to DEA Hong Kong Country Attache James Harris eleven sets of "interrogation minutes," summaries of statements that suspects in the Goldfish conspiracy had given to police officials. Harris forwarded these minutes to Aiu and Swenson, who received them around April 1, 1988. Among the interrogation minutes Boucher sent were three for Wang. Although the prosecution team received seven other sets of interrogation minutes for Wang after the Goldfish trial commenced in January 1990, the three sent by Boucher were the only ones that Swenson or Aiu possessed for Wang prior to the start of trial.
The interrogation minutes identify the date and time of the questioning. Although the minutes Boucher provided were written in Chinese, Aiu and Swenson had those minutes translated into English, and the translated versions were introduced into evidence in this case. Aiu, Swenson, and Harris read all three sets of notes soon after receiving them. The earliest set of minutes is dated March 14, 1988. Swenson underlined and circled various words and phrases on the face of the minutes,
and also wrote comments in the margin. At one point during the questioning, the following exchange took place:
Question: When and in what way was the heroin delivered to you?
Answer: It was about ten odd days later that two males from Hong Kong, both of them aged about 20 to 30, carrying a hold-all, approached me. They told me, "Liang De Lun [i.e., Leung Tak Lun] has asked us to deliver these things to you." After they had left, I opened the hold-all and found [that] there were 9 packets of heroin packed in transparent plastic bags. I then placed them in my room first.
(Ex. 3 at 2-3.) The following words are written in next to Wang's answer: "Leung not there. " ( Id. at 3.) Swenson wrote this note in the margin, and he also underscored the words "not there."
Two sets of interrogation minutes are dated March 19, 1988. The first is a set that indicates the interrogation of Wang commenced at 1:00 p.m. (Ex. 6 at 1.) One of the initial questions includes this statement: "As to the particular section of the 'Criminal Law' which you are guilty of, and the criteria governing the leniency or strictness with which this case is to be handled, you should know much about them after so many interrogations have been conducted on you." (Id.) Wang's response includes the words "I am very grateful to the comrades who handle this case, for the lessons they have taught me. I have revealed all the facts about my crime. " ( Id. at 2.) The underscoring in both the question and Wang's response is Swenson's.
The following exchange is recorded further in this set of interrogation minutes; again, the underscoring is Swenson's:
Question: Go on revealing the facts.
Answer: In mid-January, I telephoned to [Hong Kong and] contacted Liang De Lun again. I asked him when he would come back to Guangzhou. Liang De Liang then told me over the telephone that two persons from Hong Kong had arrived at Guangzhou by then. He said, "I will go to Guangzhou tomorrow." He also asked me to go to meet [him] then. At [illegible] p.m. The next day, I met Liang De Lun at the Guangzhou Railway Station. We then took a taxi and went to the Oriental Hotel directly. Having arrived at the Oriental Hotel, Liang telephoned someone upstairs. Later, a person called "Ah Kun" came down and led me and Liang De Lun upstairs. Having gone upstairs, I saw that apart from Ah Kun, there were also a Hong Kong guy of tall, thin build and and [sic] a Guangzhou guy of short build and dark complexion. When Liang De Lun saw the Hong Kong guy of tall, thin build, he seemed to have said to him, "your face sounds [sic] quite familiar." (It seemed that the two persons had come from the next room.) Liang asked whether they had brought along the "thing." The Hong Kong guy of tall, thin build said that the "thing" had been brought along. Liang then paid them HK 460,000 at once. As to the remaining $ 30,000 or $ 40,000, Liang promised that he would pay it off when he had returned to Hong Kong. The Hong Kong guy of tall, thin build and the Guangzhou guy of short build and dark complexion then went away to fetch the goods immediately. About 3 minutes later, the two of them returned, carrying a black leather case. They then opened them [sic]. I saw that there were 7 blocks of heroin wrapped in yellow cellophane. Having seen them, Liang De Lun said, "These are not Hong Kong goods, but rather Guangzhou goods. " The Hong Kong guy of tall, thin build then said, "These are not Guangzhou goods. I have brought these goods here from Hong Kong." I also heard they [sic] say that they were returning to Hong Kong at 9:00 p.m. that night by ship.
( Id. at 5.) The third set of interrogation minutes, also dated March 19, 1988, includes Wang's description of numerous telephone calls he placed to Liang De Lun during the course of the smuggling operation. (Ex. 8.) With the single exception of the eve-of-trial request discussed in Section G, infra, no member of the United States prosecution team asked any PRC police official whether there were additional interrogation minutes of Wang.
According to the March 14 statement, in contrast, Liang was not present when the heroin was delivered, a fact that Swenson noted with his comment in the margin. (Ex. 3 at 3.) The March 14 statement also is consistent with the March 14 cable from the Embassy in Beijing, stating that Liang "sent two as yet unidentified individuals" to Guangzhou to deliver the heroin. ( Ex. 30 P 2.)
As already noted, the change in Wang's story was not lost on Aiu. He knew that the later statement, given on March 19, was significantly more inculpatory of Liang, whom the prosecution team considered the "mastermind" of the smuggling operation. Aiu also recognized something else: that the PRC police probably had interrogated Wang many times, certainly more than the three sessions for which the prosecution team had minutes.
During this same time period, late April and early May 1988, Aiu made a connection between these two observations, that Wang's story had changed and that Wang, in all probability, had been interrogated on numerous occasions. Aiu thought that the change in Wang's testimony possibly had been brought about by what Aiu described as "unconventional" interrogation techniques. (Tr., Apr. 7, 1993, at 46:15.) Included in Aiu's definition of "unconventional" interrogation techniques were torture, physical force, sleep deprivation, food deprivation, and electric shock treatment. This connection was not the product of sheer speculation by Aiu. He had taken courses that had examined, inter alia, the operation of the Chinese criminal justice system. Each of those courses had featured a discussion of the use of torture in China, and Aiu had this information in mind when he reviewed the interrogation minutes.
This was not, however, the only reason Aiu surmised for the change in Wang's testimony. Aiu also thought it possible that Wang changed his story out of a desire to cooperate with the PRC police, thereby gaining for himself a measure of leniency in his eventual punishment.
Aiu did not keep to himself his suspicions regarding the possible use of unconventional techniques on Wang; he mentioned them to a number of his colleagues. Aiu shared his suspicion with fellow agents Jeannie Choy and Paul Rozario, his supervisor, Osleber, and Arnold Gin, a California law enforcement agent who had been deputized to work on the DEA task force. With respect to all four of these individuals, Aiu mentioned the possibility that the PRC police had used unconventional interrogation techniques on Wang; all of these individuals acknowledged that was a possibility (or at least did nothing to dissuade Aiu of his concern), and none of them suggested to Aiu that his concern was one worth pursuing.
Aiu also shared his concerns about the possible use of unconventional interrogation techniques on Wang with Swenson, the head of the prosecution team. Aiu told Swenson that he understood the Chinese used unconventional techniques when interrogating their suspects, and suggested that such techniques may have been used during the Wang interrogations. Swenson acknowledged that was a possibility, but the matter went no further. Had Aiu received physical evidence that PRC officials had mistreated Wang or coerced his confession, Aiu would have alerted both the PRC officials and his DEA supervisors of the mistreatment; Aiu believed that DEA policy would require him to take such action. (See Ex. 318 P H.2.)
At the outset of the investigation, in April 1988, Swenson also had in the back of his mind the possibility that Wang might have been mistreated. The basis for Swenson's concern was not (as it had been, in part, for Aiu) the discrepancy between the March 14 and the March 19 interrogation minutes; rather, Swenson had considered the possibility Wang had been mistreated because he was a defendant in a capital crime case in another country. Whatever the basis for, or the magnitude of, Swenson's concern, however, he never raised the issue with his superiors in the United States Attorney's Office or in the Department of Justice.
Indeed, as recently as May 1992, Swenson affirmatively represented to this Court that he had no basis for thinking Wang had been mistreated:
2. During the course of my involvement in the investigation and prosecution of [the Goldfish] case, including my visual observations of witness Wang Zong-Xiao in May 1988, September 1989, and March 1989, I had at no time any information or any suggestion - nor did any of the agents in this case - that Wang Zong-Xiao had been mistreated at any time after his arrest in Shanghai in March of 1988. Furthermore, neither myself nor any agents had any knowledge or suggestion that any of Wang Zong-Xiao's statements made to law enforcement officials in the [PRC] in March 1988 were, in any way, coerced or brought about through any beatings or torture. On the contrary, all of my observations and discussions with Wang Zong-Xiao, as well as with PRC law enforcement officials, indicated that Wang at no time had been mistreated, that Wang was not mistreated in the prison in which he was held, and that Wang was completely truthful with law enforcement officials from both the United States and the PRC.
3. . . . By this declaration, I am hereby stating that I have never, at any time, had any discussions with any United States government employees about any knowledge or suspicion of any mistreatment or torture of Wang Zong-Xiao.
(Ex. 301 PP 2-3 (emphasis added).) These statements contradict Aiu's testimony that he expressed to Swenson his concern that Wang's statements might have resulted from the use of "unconventional" interrogation techniques. Swenson denied ever hearing Aiu express such a concern. (Tr., Apr. 13, 1993, at 289:10-21.) The Court, having had the opportunity to view the demeanor of both Swenson and Aiu, determines that Swenson's testimony on this point simply is not credible.
Aiu did inform Swenson of his concern about the use of "unconventional" interrogation techniques.
As noted above, Aiu developed his concerns about the PRC's treatment of Wang in late April and early May 1988, prior to his and Swenson's visit to Shanghai. See Section C, infra. Earlier, in April 1988, Aiu and Swenson had discussed the possibility of bringing Wang to the United States to testify at the drug conspiracy trial. Aiu and Swenson discussed the possibility of videotaping Wang's testimony in Shanghai, and then presenting that videotaped testimony to a jury; but they opted to attempt to bring Wang to the United States, thinking Wang would make a more effective prosecution witness if a jury could see him testify in person.
On April 19, 1988, Aiu drafted an "update" cable to advise DEA headquarters in Washington, D.C. of the status of the Goldfish case.
(Ex. 39.) With respect to Leung (who was referred to in the cable by yet another name, Leung Pak Leung), Aiu wrote that Hong Kong would prosecute him "for suspected passport violations," but not for "narcotic violations." ( Id. P 9.) Aiu went on to state, however, that the Hong Kong Police "strongly" believed "that Leung Pak Leung was the individual who coordinated the . . . movement of the sea heroin and goldfish from Canton to Shanghai to San Francisco. Further, the [Hong Kong Police have] advised that the PRC authorities have obtained statements from their six (6) defendants which implicate Leung Pak Leung." (Id.)
Aiu also wrote that, "based upon the totality of this most current information, the [San Francisco DEA Office] is anxious to add Chico Wong and possibly Leung Pak Leung to its list of defendants in the upcoming San Francisco prosecution." ( Id. P 10.) Aiu also noted that the DEA Office was coordinating its work on the case with the United States Attorney's Office. (Id.) Finally, the update cable took note of the importance to the United States prosecution team's efforts of the PRC defendants, including Wang:
11. The [San Francisco Field Office] understands that United States prosecution on Leung Pak Leung may be substantially difficult due to the fact that evidence against him can only come from the PRC defendants. The [Hong Kong Police have] repeatedly requested that Leung Pak Leung be prosecuted in the U.S. for his narcotics involvement. The U.S. Attorney's Office however has advised that this will only be possible if access to the PRC's defendants is allowed initially for interviews and later as witnesses.
Just over a week after he drafted this update cable, Aiu received an April 26, 1988, cable, drafted by Aloisi, from the American Embassy in Beijing. (Ex. 41.) The April 26 cable summarizes a conversation between Aloisi and Liu Zhi Min (or "Liu"), the Deputy Chief of the Criminal Investigation Department ("CID"), a branch of the MPS:
3. Narcotics Coordinator also briefed Liu on progress to date in the [Goldfish] case . . . . Liu was pleased that U.S. authorities were actively pursuing leads, and were still interested in attempting to prosecute Leung Pak Leung and Chico Wong. Liu said he and other MPS officials were frustrated that, even though the Chinese believed they had given Hong Kong Police evidence of Leung[']s guilt, he was still free in Hong Kong on bond. He said that the Chinese planned to "maintain pressure" on Hong Kong authorities to prosecute Leung. He characterized Leung as the "mastermind" of the entire operation.
4. Narcotics Coordinator, acting on suggestion of DEA Hong Kong . . . , mentioned that an Assistant United States Attorney may request permission to visit Shanghai, explaining that such a trip would be a necessary step in continuing our investigation into the possibility of prosecution of Leung Pak Leung. Liu reacted positively to this idea, but urged that U.S. authorities officially request PRC approval for such a visit as soon as possible. He explained that, under Chinese law, defendants in China -- once handed over to the courts -- were beyond the jurisdiction of public security units. Liu said that, as things stand now, Wang ZongXiao and the other six defendants are scheduled to be transferred to the court system sometime in mid-May. He implied that their transfer could be postponed if the MPS is requested to facilitate contact between U.S. authorities and the defendants.
(Id. (emphasis added).) Hence, the April 26, 1988, cable from Beijing placed the American prosecution team on notice that, in the absence of intervening requests by the United States, the MPS, in less than a month, would turn Wang over to the PRC court system, thereby jeopardizing the prosecution team's plan to use Wang as a witness in the United States.
In early April 1988, Harris learned from Boucher that the Hong Kong police had obtained a videotape of one of Wang's interrogation sessions. Harris viewed approximately five minutes of the videotape in the Hong Kong police headquarters. Although he could have viewed the rest of it, he chose not to; he also never asked Boucher for a copy of the videotape. While he was watching the videotape, Harris noticed that Wang was at the extreme left of the screen, and that an officer, whose face was not visible on the videotape, had both hands on the left side of Wang's body.
In an April 23, 1988, cable, the Embassy in Beijing confirmed a DEA request for translated copies of witness statements for purposes of building a case against Leung. (Ex. R P 1.)
On April 28, 1988, Aiu authored a cable to DEA headquarters, seeking permission for himself and Swenson to travel to the PRC for the purpose of, inter alia, interviewing the PRC defendants in Shanghai. ( Ex. 42 P 3.)
During his trip to the PRC in May 1988, Aiu kept a journal of his activities. (Ex. 183.) He left San Francisco on May 7, traveling alone. He arrived in Hong Kong on May 10; Swenson already had arrived in Hong Kong. On May 11, Aiu, Swenson, and Harris spent several hours reviewing various aspects of the case and evidence obtained from the Hong Kong Police; at no time during this meeting did Swenson or Harris discuss Boucher or the reasons Hong Kong declined to prosecute Leung.
On May 12, Aiu and Swenson met at Boucher's office; there, Aiu conducted a half-hour interview of Chico Wong. On the following day, May 13, Aiu prepared a DEA report, called a "DEA-6," of his interview with Chico Wong.
While in Hong Kong, Swenson met with Boucher for about an hour. During this meeting, Boucher told Swenson he had a videotape related to the investigation, and that Wang appeared on that videotape. (Swenson Depo. at 931:20-23.) Swenson did not ask to see the videotape, nor did he ask Boucher for a copy of it. Although Swenson was a guest for five days at the home of a Hong Kong prosecutor, John Cunningham, Swenson never asked Cunningham (who did not have responsibility for the Goldfish case) or any other individual from the Crown Counsel's Office about the reasons Hong Kong decided not to prosecute the case.
On May 16, Aiu, Harris, and Swenson flew from Hong Kong to Beijing. Prior to their scheduled meeting with officials from the MPS, the prosecution team met with James Keith, another Narcotics Coordinator from the Embassy in Beijing.
At no time during this meeting in the American Embassy did Aiu or Swenson mention Aiu's concern, which he had expressed to Swenson prior to the China trip, that the change in Wang's testimony might have resulted from unconventional interrogation techniques; neither Aiu nor Swenson mentioned that concern to Harris.
On May 17, the following American officials met with representatives from the MPS: Aiu, Aloisi, Harris, Keith, Swenson, and James Brown, the interpreter for the American Embassy in Beijing. Among the MPS officials present were Zhou Nianshan, the Deputy Director of the CID, Liu Wen, the General Director of the CID, and Liu Zhi Min. The American representatives knew, going into the meeting, that it would be unprecedented for the Chinese government to allow its own criminal defendants to travel to the United States to testify in an American criminal trial. Nevertheless, Aiu and Swenson both raised the prospect of bringing Wang to the United States to testify. The MPS officials indicated they would consider honoring the request. After the meeting with the MPS representatives, the members of the American delegation expressed to one another their pleasure that the Chinese did not reject the idea outright.
Later that evening, May 17, Aiu, Swenson, and Harris attended a banquet; Liu Wen and Liu Zhi Min also attended that banquet. Before eating, the five men had a half-hour discussion, during which the American officials, including Swenson and Aiu, again discussed the possibility of interviewing Wang in Shanghai and thereafter bringing him to the United States to testify. Once again, the Americans were heartened by the Chinese response: Liu Wen said the PRC would consider the request.
Aiu, Harris, and Swenson arrived in Shanghai on May 19. They were accompanied by Wang Qianrong, an official from the MPS, who served as interpreter during the Shanghai leg of the prosecution team's journey. Once they arrived in Shanghai, the members of the prosecution team were joined by Yuan You Gen ("Yuan"), Vice Chief of the Shanghai PSB, and Darrell Jenks, who worked as a political officer in the United States Consulate General in Shanghai.
During this interview, portions of which the PRC officials videotaped, Swenson, Aiu, and Harris were seated behind a table on a dais; Wang sat in a chair placed in the middle of the room, and MPS and PSB officials flanked him on either side of the room. Aiu led the questioning for the American delegation, although Swenson and Harris asked a few questions; Aiu also took handwritten notes of the interview. Wang understood only Shanghaiese and was not able to speak English. Wang Qianrong, a PRC police official, was the sole interpreter for the interview session; no member of the American team could verify that Wang Qianrong was translating the questions and answers accurately.
Aiu had thought the interview would be conducted in a one-on-one type setting, of the type to which Aiu, a DEA agent, was accustomed, rather than having Wang sit in the middle of the room. To Aiu, Wang appeared to be in good health and alert to what was going on during the interview; Aiu observed no visible signs of mistreatment.
Although his main concern during the interview was to elicit information about Chico Wong, Aiu did plan to question Wang about whether Leung was present when the heroin was delivered to Shanghai. According to the DEA-6 that Aiu prepared the following day,
May 20, Wang did not place Leung at the scene of the delivery:
5. WANG was then questioned as to the description of the two (2) men who delivered the seven (7) blocks of heroin (approximately 4.5 kilograms) to him. Wang stated that he could not provide a very good description, only that he'd never seen them before. WANG was able to describe the heroin as initially within two big plastic bags. The heroin came in a brown suitcase and the substance itself was yellow in color. WANG told [Special Agent] Aiu that Leung paid $ 50,000.00 HK for the heroin and he believes it came from Hong Kong. WANG could not provide information on how the heroin was smuggled into Canton where it was turned over to him.
(Ex. 51 (emphasis added).) Aiu was surprised by Wang's omission of Leung's presence at the delivery of the heroin, but he did nothing during the May 19 interview to follow up on that omission; indeed, no member of the prosecution team followed up with Wang regarding the change in this detail.
At the conclusion of the interview, Aiu asked Wang whether he would be willing to travel to the United States to testify against Leung and Chico Wong. Aiu heard (1) Wang Qianrong speak to Wang in Chinese (Wang Qianrong was speaking Mandarin, not Shanghaiese, although neither Aiu nor any other member of the prosecution team could tell the difference), and (2) Wang say something back to Wang Qianrong, also in Chinese; Wang Qianrong then told Aiu that Wang had answered the question affirmatively. Wang testified that he has no recollection of Wang Qianrong translating this question.
Aiu did not include in the DEA-6 either a reference to the Hong Kong Crown Counsel's decision not to prosecute Leung or an explanation for that decision. At trial, Aiu testified that Inspector Boucher had given him three reasons for Hong Kong's decision not to prosecute Leung or Chico Wong: (1) because the Hong Kong prosecutors had minimal evidence against the two defendants, (2) because the Royal Hong Kong Police were reluctant to provide either defendant to the PRC when the expected reciprocity from the PRC was minimal, and (3) because Hong Kong did not want to provide Leung to the PRC for prosecution out of fear he would be executed if found guilty.
Harris also claims to have had a conversation with Boucher regarding Hong Kong's decision not to prosecute Leung or Chico Wong. According to Harris, Boucher told him that Hong Kong had insufficient evidence to launch such a prosecution.
During the May 1988 trip, neither Aiu nor Swenson questioned Wang about the possible use of unconventional interrogation techniques upon him. Nor did they ask any PRC officials about such techniques. Aiu testified that he made a conscious decision not to ask any such questions because of the unprecedented access to Wang the PRC had granted the American team, and because of the lack of actual evidence that Wang had been mistreated.
At the conclusion of the May 19, 1988, interview, Aiu and Swenson told Yuan they wished to have Wang testify in the United States. Yuan indicated that officials in Beijing would make the final decision on that request. Later that evening, Aiu, Swenson, and Harris attended a banquet with Yuan and other Chinese officials. During that banquet, the American team again renewed their request to bring Wang to the United States; Aiu told the PRC representatives there was "no downside" to the request, and that Wang's testifying in an American courtroom would be a "win win situation." (Tr., Apr. 8, 1993, at 148:4-9.)
The prosecution team left the PRC on May 23, 1988. Upon his return to San Francisco, Aiu drafted a cable to DEA headquarters, summarizing the prosecution team's trip to China. (Ex. 53.) Aiu relayed news about the prosecution team's request to use Wang as a witness at the trial in the United States, and about Liu Wen's favorable response to that request. ( Id. PP 3-4. ) Aiu also discussed the prosecution team's favorable impressions of Wang as a witness. ( Id. P 6.)
In July 1988, Aiu received a cable from Harris, expressing the latter's position "that DEA and the Hong Kong counterparts have done their part to bring these mutual targets, the organizers, to justice. To best insure the odds of successful prosecution MPS must be encouraged to cooperate fully." ( Ex. 57 P 6.) Further, Harris, on behalf of himself, Swenson, and the San Francisco DEA Field Office, urged that the Chinese be encouraged to send their witness defendants, including Wang, to San Francisco for purposes of giving testimony in a criminal trial. (Id.)
D. Wang's September 1988 Trip to San Francisco.
To that end, the prosecution team made arrangements to bring Wang to the United States for purposes of having him execute an affidavit. On August 2, 1988, Swenson sent to P. J. Cahill, the Senior Assistant Crown Prosecutor, a draft affidavit for Wang's signature. Swenson wrote that "all of the information in the affidavit is based on questioning of Wang by P.R.C. officials, as well as of his interview by myself and DEA Agent Tommy Aiu during our trip to the P.R.C. in May." (Ex. 59 at 1.) With respect to the "questioning of Wang by P.R.C. officials," Swenson drafted the affidavit based on the March 19 statement; specifically, the draft affidavit Swenson sent to Cahill placed Leung at the scene of the heroin delivery and at the breaking up of the heroin.
Swenson included the version of events that was more inculpatory of Leung (who was, on August 2, 1988, in Hong Kong), despite Aiu's expression of concern, and without ever having asked the PRC officials whether Wang had been mistreated. Swenson did not question the PRC officials prior to August 2, 1988, because he thought it would be "very insulting" to do so, because he believed he had "no evidence" of mistreatment, and, in part, because asking the question would have doomed the PRC-American cooperative effort.
(Tr., Apr. 13, 1993, at 363:4-5.)
During August 1988, Cahill met with Harris. During that meeting, Cahill mentioned the videotape of Wang's interrogation that Harris had viewed in April 1988. See Section B, supra. Cahill confirmed that this videotape recorded one of the interrogations that had been translated into an interrogation statement.
Also in August 1988, the American Embassy in Beijing began to finalize arrangements for bringing Wang to the United States to testify at the criminal trial. On August 18, 1988, Keith sent a cable to, inter alia, the Department of State and the DEA Field Office in San Francisco, containing the following information and request:
3. On August 11, 1988, the [MPS] stated that they accept our request "in principle" regarding the travel of PRC "defendant witnesses" Wang Zongxiao and Leung Chun-Wah and escorts to San Francisco to participate in the "Goldfish" trial. The MPS would like to make clear: 1) the US government should present a note to the Chinese government via diplomatic channels, and ensure reciprocity under "the same circumstances in the future"; 2) the US side should ensure the safety of the PRC defendant witnesses and escorts and return the witnesses by the date decided by both sides
6. Guidance requested: Regarding MPS first point, is Embassy correct in assuming that Department would draft the diplomatic note? Would also appreciate Department[']s is reaction to the Chinese request for a "reciprocity clause" in the diplomatic note.
(Ex. 60 (emphasis added).) On September 2, 1988, the Department of State furnished the requested "guidance" in a cable that included the following language:
2. Regarding the points raised by the Chinese . . . [the] Department provides background below to assist Embassy in addressing the Chinese request:
- - A. Legal and Justice Department have problems concerning the Chinese request for reciprocity under "the same circumstances in the future". It would be difficult, if not impossible, for the [United States government] to agree to reciprocal circumstances in the event of U.S. witnesses being requested to travel for testimony in a trial in China. Federal vs state jurisdictions could undoubtedly be involved as could rights of witnesses.
Reciprocity: Unfortunately, the Government of the United States cannot guarantee reciprocity for witnesses "under the same circumstances in the future". In the event that a witness from the United States were requested to travel to the [PRC] for testimony, and if the witness consented to travel to China to testify, then the United States Government could comply with the request. If the witness refused to testify, however, the Government of the United States would not be able to force him or her to do so. Moreover, the ...