What is more, the evidence shows that Swenson and Harris did discuss the videotape in February 1989, that they did agree that Harris would "check" on the status of the videotape, and that Harris proceeded to do absolutely nothing in the way of trying to obtain the videotape. (Ct. Ex. II.)
The evidence also demonstrates that officials on the American side recognized the vast differences in the nature of "consent" between the Chinese and the American systems. In August 1988, MPS officials indicated their understanding that in similar circumstances in the future, the American side would grant the Chinese "reciprocal" cooperation. (Ex. 60.) The Department of State informed the Embassy (which relayed the message to the Chinese) that "reciprocity," in the case of an American individual traveling to the PRC, simply could not be guaranteed. (Exs. 61, 66.) The principal reason for this failure to guarantee reciprocity was the Department of State's recognition that an American citizen would have to consent to go to the PRC. The American government quite obviously realized that the witness' "consent" was a nonissue for the Chinese: their witness (i.e., Wang) had no choice whether he would go to the United States.
Defendants make much of the fact that Wang's affidavit, which he executed in September 1988 before Magistrate Judge Langford, contained a statement of facts that was consistent with the March 19, 1988, interrogation minutes, i.e., the affidavit placed Leung at the scene of the heroin delivery. Section I.D, supra. But the consistency between the affidavit and the March 19, 1988, interrogation minutes does nothing to overcome the facts that (1) both statements conflicted with the March 14, 1988, interrogation minutes, which did not place Leung at the scene, and (2) no member of the prosecution team ever raised the inconsistency with Wang or any PRC official. As regards Wang's execution of the affidavit, the latter point is particularly egregious, given that Swenson and Aiu had unlimited access to Wang during his September 1988 trip to San Francisco. Id.
The final warning sign that Wang likely had changed his testimony in response to mistreatment came during the January 9, 1990, interview of Wang by Leung defense counsel. In response to defense counsel's questioning, Wang said he had been interrogated many times. Section II.G., supra. After this revelation, the PRC police officials produced additional statements, including one that referred to the "life and death significance" of Wang's responses. (Ex. 5.) After this and other statements were produced, however, Swenson did not ask Wang or the Chinese police whether Wang had been mistreated during his interrogations.
(ii) The Government Attempted to Prevent the PRC from Transferring Wang to the Chinese Court System Until After He Testified in the United States.
In April 1988, the prosecution team learned of the need to have the Chinese cooperate regarding the witnesses. Aloisi's April 26, 1988, cable alerted Aiu to the fact that, unless the United States asked the Chinese for assistance, the PRC witnesses, including Wang, would be transferred to the Chinese court system. (Ex. 41.)
Aiu and Swenson repeatedly raised with the MPS officials their eagerness to bring Wang to the United States to testify. Section II.C., supra. Indeed, at their final banquet with those officials during the May 1988 trip, Aiu represented to the PRC police that there was "no downside" to bringing Wang to the United States; Aiu called it a "win win" situation. Id.
In the fall of 1989, the MPS officials again told the prosecution team members that Wang's transfer to the Chinese court system was imminent. Section II.F., supra. In response, the American side formally requested that Wang be brought to the United States a month before he would testify. (Ex. 138.)
The Americans' active attempt to prevent Wang's transfer to the Chinese court system is significant because Wang already had done enough to earn leniency from those courts. Section II.I., supra.
(iii) The Government Ignored the Problem of Using Wang as a Witness When Prosecution Was Declined in Hong Kong.
During the earliest stages of the prosecutorial effort, the prosecution team learned of Hong Kong's decision not to prosecute Leung for narcotics violations. Hong Kong reached this decision despite the fact that everyone involved -- the Americans, the Chinese, and the Hong Kong Crown Counsel's Office -- believed Leung to be the "mastermind" of the drug smuggling operation.
When Swenson visited Hong Kong in May 1988, he stayed at the home of Cunningham, a prosecutor in the Hong Kong Crown Counsel's office. During that entire stay, Swenson never asked Cunningham, or any other individual from the Crown Counsel's office, why Hong Kong decided not to prosecute Leung, despite the fact that Leung was in Hong Kong custody. Section II.C., supra.
Of course, all of the failures herein discussed pale in comparison to the evidence regarding Swenson and the McNair Memorandum. (Ex. 34.) As an initial matter, there can be no doubt as to the significance Swenson ascribed to that document: he knew that it outlined the Crown Counsel's reasons for not prosecuting Leung in Hong Kong. Swenson also knew, based on his experience as a prosecutor and Boucher's remark when he handed the McNair Memorandum to Swenson ("I shouldn't have these"), that it contained remarkably candid information regarding the perceived weaknesses of building a case against Leung. The same can be said of the Chandler and Findlay Memoranda, which Boucher also gave to Swenson. (Exs. 35, 37.)
The McNair Memorandum plainly refers to the possibility that Wang, the central witness against Leung, was mistreated during the course of his interrogations. The March 19, 1988, interrogation minutes referred to the numerous times Wang had been interrogated, a fact that caught the attention of both McNair and Swenson. Section II.E. n.14, supra. More significant, however, is the reference in paragraph 16 to the videotape that Boucher had viewed:
16. However, it seems to me, with respect, that the likelihood of conviction is small. I am unaware of the methods or circumstances surrounding the taking of [Wang's] confessions, however, a video tape has been supplied (and viewed) Inspector Boucher, who tells me that a most peculiar posture was adopted by [Wang] throughout the confession, whereby the whole of his left side and left arm was hidden from the camera, as if his left arm and side may have suffered some injury.
( Ex. 34 P 16 (emphasis added).) The Court already has explained why Swenson's proffered explanation of his reaction to this paragraph (that it reminded him of the May 19, 1988, videotape the PRC police made during the American prosecution team's interview of Wang) is unworthy of credence. Section II.E., supra. The Court also has taken inventory of the actions Swenson took, or failed to take, after reading the McNair Memorandum. Id. Of these, the most damning is the fact that Swenson shared the McNair Memorandum with no one; he buried it in his files.
Defendants attempt to downplay the significance of the fact that Swenson secreted away the McNair Memorandum in his own files:
Nor should the McNair memorandum have changed [Swenson's] conclusions about Wang. First, the memorandum pre-dates any of the face-to-face meetings with Wang. Second, McNair refers to a Hong Kong inspector's speculation that Wang's posture during an interview might have hidden an injury. Third, the memorandum is consistent with the views expressed orally to the DEA agents by Hong Kong authorities to the effect that Hong Kong declined to prosecute Leung because there was insufficient evidence in Hong Kong. Fourth, Hong Kong authorities encouraged the U.S. to extradite and prosecute Leung.