OEN YIN-CHOY, PETITIONER V. GLEN S. ROBINSON, UNITED STATES MARSHAL
FOR THE NORTHERN DISTRICT OF CALIFORNIA

   No. 88-1481

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Brief for the Respondent in Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 10-22) is reported
at 858 F.2d 1400.  The certificate of extraditability entered by the
district court (Pet. App. 39-40, 51-52) and the order denying the
petition for a writ of habeas corpus (Pet. App. 53-54) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 5,
1988.  A petition for rehearing was denied on December 7, 1988.  The
petition for a writ of certiorari was filed on March 7, 1989.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner's extradition to Hong Kong violates the terms
of the extradition treaty between the United States and the United
Kingdom.

   2. Whether the extradition court erred in denying petitioner's
request for the production of prior statements by several witnesses
whose affidavits were admitted at the extradition hearing.

   3. Whether the extradition court abused its discretion in denying
petitioner's request to question the Hong Kong case agent, who was
present but did not testify at the extradition hearing.

   4. Whether the extradition court properly admitted evidence that
satisfied the requirements of 18 U.S.C. 3190 and the applicable
extradition treaty.

   5. Whether the district judge was required to recuse himself from
presiding over petitioner's habeas corpus proceeding because he had
presided over petitioner's extradition hearing.

   6. Whether the extradition court properly excluded evidence offered
by petitioner on the ground that the evidence was offered to
contradict, rather than explain, the evidence offered by the
government.

                               STATEMENT

   1. Extradition to the Crown Colony of Hong Kong is governed by an
extradition treaty between the United States, and the United Kingdom,
June 8, 1972, 28 U.S.T. 227, T.I.A.S. No. 8468 (Treaty), and a 1986
supplementary treaty (132 Cong. Rec. S9120 (daily ed. July 16, 1986))
(Supplementary Extradition Treaty).  See Pet. App. 1-6.  The Treaty
obligates the United States to extradite fugitives to the United
Kingdom, including the Crown Colony of Hong Kong, when the request for
extradition is supported by a sufficient showing and there is no basis
under the Treaty to deny the extradition.  Attached to the Treaty is a
list of extraditable offenses;  those offenses include the crimes of
"theft, larceny, embezzlement," "obtaining property, money or valuable
securities by false pretenses or other form of deception," "false
accounting," and "fraud or false statements by company directors and
other officers."

   Article XII of the Treaty sets forth the "rule of speciality,"
which limits the requesting State's right to proceed against the
fugitive "for any offense other than an extraditable offense
established by the facts in respect of which his extradition has been
granted." Article XII also limits the requesting State's ability to
extradite the fugitive to a third State without the consent of the
sending State.

   2. During the 19th century, Great Britain concluded three treaties
with the Imperial Government of China under which most of the
territory comprising Hong Kong was leased to Great Britain for 99
years, and the remainder was ceded to Great Britain in perpetuity.  On
December 19, 1984, the United Kingdom and the People's Republic of
China signed the Joint Declaration on the Question of Hong Kong, which
provides that the People's Republic of China will resume the exercise
of sovereignty over Hong Kong on July 1, 1997.  Pet. App. 12.

   3. On February 20, 1987, the Hong Kong Magistrate's Court issued a
warrant of arrest charging petitioner with false accounting and
publishing a false statement.  Two weeks later, the United States
District Court for the Central District of California issued a
provisional arrest warrant against petitioner, on a complaint filed at
the request of the Embassy of the United Kingdom.  On April 15, 1987,
the United States filed a formal request to extradite petitioner to
Hong Kong.

   The Hong Kong arrest warrant alleged in six counts that while
serving as chairman of the Union Bank of Hong Kong, petitioner
embezzled a total of approximately $26,750,000 through false
accounting practices.  According to the arrest warrant, petitioner's
acts constituted the crime of "false accounting" under the laws of
Hong Kong.  A seventh count alleged that petitioner entered false
information in the bank's annual report, conduct that was said to
constitute the crime of making a false statement under Hong Kong law.

   The evidence at the extradition hearing, which is recounted in
detail in the government's brief in the court of appeals (Gov't C.A.
Br. 6-19), consisted principally of bank documents (some signed by
petitioner), affidavits, the affidavit of an accountant affiliated
with the firm of Ernst & Whinney and hired by the Government of Hong
Kong, and the accountant's report.  The evidence showed that between
1975 and 1984 customers of the Union Bank of Hong Kong deposited large
sums of money with the Bank for offshore placement in American
dollars.  Those transactions were designed to produce tax benefits for
the investors.  The deposited funds, however, were not placed
offshore, but instead were diverted to two "in house" accounts, from
which much of the money was spent.  Following a change in the tax
laws, the offshore deposits lost their tax advantages, and by
1983-1984 many depositors sought to withdraw their funds.

   In 1984 petitioner personally approved four fictitious loans that
were entered into the Bank's records and were used to raise funds that
could be used to pay back some of the Bank's customers.  The five
loans totalled approximately $26,750,000.  Petitioner later concurred
in the publication of an Annual Report for the Bank, which falsely
stated that the "loans" were assets of the Bank.

   Based on that evidence, the district court found probable cause to
believe petitioner committed the crimes alleged in the arrest warrant;
 in fact, the district court found that probable cause "is written all
over the case." Pet. App. 37.  As the court explained, "There is ample
evidence of misusing the processes of the bank.  There is ample
evidence of putting these loans through in totally irregular fashion.
There is ample evidence of misleading the bank authorities, the
participants, as to the identity of the borrowers, the true identity
of the borrowers, the intended use of the funds, the prospects of
repayment." Excerpt of Record 110.  Accordingly, the court executed a
certificate of extraditability directed to the Secretary of State.
Pet. App. 39-40.  The court stayed the issuance of the certificate,
however, to give petitioner an opportunity to seek review of the
extradition order.

   4. On September 10, 1987, petitioner filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. 2241.  In that pleading,
petitioner alleged that the proposed extradition violated the terms of
the Treaty, because if petitioner were extradited to Hong Kong, he
might be surrendered to the People's Republic of China on July 1,
1997, as a result of the reversion of Hong Kong to Chinese control.
Petitioner also claimed that the extradition proceeding was flawed in
several respects:  he challenged the district court's acceptance of
English-language affidavits from several Chinese witnesses who were
unable to speak or read English;  he attacked the court's refusal to
grant his discovery requests;  and he protested the court's refusal to
allow his attorney to argue the points raised in the habeas petition
or to call a witness at the extradition hearing.  In addition,
petitioner complained that the offenses identified in the arrest
warrant were not covered by the Treaty;  he contended that he was not
given sufficient notice of the pending charges prior to the
extradition hearing;  he challenged the sufficiency of the proof that
he committed the charged offenses;  and he argued that the district
court erred in overruling a number of evidentiary objections he had
made at the extradition hearing.

   Through the district court's random assignment system, the habeas
corpus case was assigned to the same district judge who had sat on the
extradition matter.  Petitioner moved to have the case reassigned to a
different judge, but the motion was denied.

   At a hearing on the habeas corpus petition, the district court
amended the certificate of extraditability.  Pet. App. 51-52.  The
amended certificate found no probable cause to support the charge that
petitioner committed a crime of false accounting "with intent to cause
loss to another," but affirmed the earlier finding of probable cause
that petitioner had engaged in the alleged conduct "with a view to
gain for himself or another," within the meaning of the applicable
Hong Kong criminal statute.  The following day, the district court
entered an order denying petitioner's habeas corpus petition.  Pet.
App. 53-54.

   5. The court of appeals affirmed.  Pet. App. 10-22.  The court
found that (1) petitioner's extradition would not violate the Treaty's
rule of speciality (id. at 13-14);  (2) petitioner's alleged offenses
met the requirement of dual criminality under the Treaty, and the
district court's failure to make specific findings to that effect was
not critical (id. at 14-15);  (3) the English-language affidavits were
properly admitted even though the affiants could not read English,
since the translators affirmed that the written affidavits represented
accurate translations of the witnesses' statements (id. at 16);  (4)
the court's finding that the witnesses had not first prepared any
affidavits in Chinese was not clearly erroneous (id. at 16-17), and
thus the court acted within its discretion in not ordering disclosure
of the Chinese affidavits (id. at 17);  (5) the district court
properly disposed of petitioner's objections to the competency of the
evidence (id. at 17-18);  (6) petitioner had no right to cross-examine
witnesses at the extradition hearing (id. at 19);  (7) the warrant of
arrest was sufficient to apprise petitioner of the charges against him
(id. at 20);  (8) the district court did not abuse its discretion in
denying petitioner's motion for discovery (ibid.);  (9) there was
probable cause to believe that petitioner committed the offenses of
false accounting and publishing a false statement (id. at 20-21);  and
(10) the district court was not required to recuse itself from
presiding over the habeas corpus hearing simply because it had earlier
ruled on the extradition request (id. at 21-22).

                               ARGUMENT

   1. Petitioner first contends (Pet. 6-11) that because the People's
Republic of China will resume sovereignty over Hong Kong in 1997, it
is possible that if petitioner is tried and convicted in Hong Kong,
and if he is given a long sentence of incarceration, he may ultimately
be subject to the jurisdiction of the People's Republic of China.
Petitioner claims that in that event, he will effectively have been
extradited to the People's Republic of China, in violation of the
prohibition against extradition to a third nation, which is set forth
in the second precondition of Article XII(1) of the Treaty ("(a)
person extradited (shall not) be extradited by (the requesting) Party
to a third State").  In addition, petitioner contends that once Hong
Kong is under China's jurisdiction, petitioner may be subject to
additional charges, in violation of the rule of speciality set forth
in the first precondition of Article XII of the Treaty ("(a) person
extradited shall not be detained or proceeded against in the territory
of the requesting Party for any offense other than (the offense) * * *
(for) which extradition has been granted").  The court of appeals
properly rejected these contentions (Pet. App. 13-14).  The 1997
resumption of sovereignty by the People's Republic of China will not
effect an "extradition" of petitioner to China, as that term has been
defined by this Court -- i.e., the "surrender by one nation to another
of an individual accused or convicted of an offense outside of its own
territory, and within the territorial jurisdiction of the other,
which, being competent to try and to punish him, demands his
surrender." Terlinden v. Ames, 184 U.S. 270, 289 (1902).  If
petitioner is surrendered to Hong Kong before 1997, he will be
extradited to a territory (1) that is a party to the Treaty, (2) that
demands his surrender, and (3) that is competent to try him and to
punish him.  Petitioner will not be extradited to China, even if the
People's Republic of China resumes sovereignty over Hong Kong while
petitioner is still in the custody of the Hong Kong government.
Consequently, petitioner's extradition to Hong Kong does not violate
the Treaty's ban against extradition to a third State.  See In re
Extradition of Tang Yee-Chun, 674 F. Supp. 1058, 1068-1069 (S.D.N.Y.
1987).

   Nor will petitioner's extradition violate the rule of speciality
embodied in the Treaty.  The Treaty binds the Government of Hong Kong
to prosecute petitioner only for the crimes listed in the extradition
order, but it does not address the disposition of previously
extradited persons following a change in sovereignty.  The question
whether a person in petitioner's position may be prosecuted by a State
resuming sovereignty (but not a party to the Treaty) is simply not
answered by the Treaty;  petitioner's extradition is therefore not
contrary to the Treaty on that ground.

   In addition to the absence of any support in the Treaty for
petitioner's argument, the background of the Supplementary Extradition
Treaty indicates that the Treaty was not intended to ban the
extradition of a fugitive such as petitioner.  As the court of appeals
noted, both the United States and the United Kingdom were well aware
of Hong Kong's impending return to Chinese sovereignty at the time
they signed the Supplementary Extradition Treaty on June 25, 1986.
Nonetheless, the parties neither restricted not intended to to
restrict Hong Kong extraditions to offenses that could not lead to
imprisonment for a period extending past the date of reversion.  That
is strong evidence that the Treaty was not intended to foreclose the
extradition of persons such as petitioner, who might conceivably be
subject to the jurisdiction of the People's Republic of China before
the end of his Hong Kong prison sentence.

   In any event, the question petitioner presents is one that, by
petitioner's own admission (Pet. 4), has not been considered by any
other appellate court.  It is a narrow and fact-bound issue that will
arise only in cases involving requests for extradition to the Crown
Colony of Hong Kong during the next eight years.  The issue is
therefore not of sufficient general importance to warrant review by
this Court.

   2. Petitioner next contends (Pet. 11-14) that the district court
should not have permitted the introduction of several English-language
affidavits without affording petitioner the opportunity to read the
original statements, in Chinese, from which the affidavits were
prepared.  As both courts below concluded, this claim is meritless.

   Petitioner suggests that the English-language affidavits that were
admitted at the extradition hearing were each prepared by translating
a Chinese-language draft affidavit into English.  The district court
found to the contrary, and the record makes it clear that the process
of preparing the affidavits was not as petitioner suggests.

   Two of the Hong Kong law enforcement officials who were responsible
for the investigation explained how the English-language affidavits
were prepared.  Chief Inspector Ip Lau-Chuen and case agent Lulu Yui
explained that a number of witnesses made statements in Chinese that
were reduced to writing at various points in the investigation.  Lulu
Yui was then assigned the task of preparing the affidavits that would
be used to support the extradition request.  In performing that task,
she reviewed the witnesses' prior statements and, in some cases,
reinterviewed the witnesses to obtain more information.  Based on the
materials in the file and her interviews with the witnesses, Lulu Yui
prepared the English-language affidavits that were to be used in the
extradition hearing.  She then had the affidavits orally translated
into Chinese and read to the witnesses for them to approve.  Even with
respect to witnesses whom sh did not formally reinterview, Lulu Yui
prepared English-language affidavits and then had the affidavits
orally translated into Chinese for the witnesses prior to each
witness's affirming and signing his or her affidavit.  Pet. App.
95-98, 100-104.  Thus, as the American prosecutor explained to the
district court, Pet. App. 30, the English-language affidavits
submitted to the court were not originally written in Chinese and then
translated into English;  the government therefore did not deprive
petitioner of the opportunity to compare any Chinese-language "draft
affidavits" with their English-language translations.

   Petitioner's account (Pet. 13 n.9) of how the English-language
affidavits were prepared distorts the process by omitting a key step.
According to petitioner, by the time the affidavits were submitted the
original witness statements had been re-worked by multiple layers of
police.  What petitioner fails tomention is that, as both Lulu Yui and
Ip Lau-Chuen explained, the witnesses approved and authorized the
affidavits, as orally translated into Chinese, immediately prior to
signing them.  As a result, the accuracy of any translations of prior
witness statements is irrelevant, since the witnesses directly
affirmed the accuracy of the final affidavits, as translated orally
into Chinese.

   3. Petitioner next contends (Pet. 14-16) that he should have been
allowed to question case agent Lulu Yui, who submitted an affidavit
and was present but did not testify at the extradition hearing.

   At the hearing, petitioner announced his desire to examine Lulu Yui
to "go over her declaration that she submitted to the Court to go into
the interview procedures, to go into her note-taking procedure, to
examine those witness statements, the original Chinese witness
statements, what the basis was and how they were changed" (Pet. App.
37).  The district court denied that request based on its judgment
that the examination of Lulu Yui would not "be productive" (ibid.).

   As the court of appeals recognized (Pet. App. 18-19), there is no
constitutional right to cross-examine witnesses at an extradition
hearing.  Unlike a criminal trial, an extradition hearing focuses on
whether there is probable cause to believe that the fugitive committed
an extraditable offense.  Fernandez v. Phillips, 268 U.S. 311, 312
(1925);  Collins v. Loisel, 259 U.S. 309, 316 (1922);  Charlton v.
Kelly, 229 U.S. 447, 457-462 (1913);  Benson v. McMahon, 127 U.S. 457,
463 (1888).  An extradition hearing is therefore akin to a preliminary
hearing or a grand jury proceeding.  The Constitution does not require
an adversary hearing to establish probable cause to charge a defendant
with a crime, whether that finding is made by a court in a preliminary
hearing or by a grand jury.  Gerstein v. Pugh, 420 U.S. 103, 121-122
(1975);  Brinegar v. United States, 338 U.S. 160, 174-175 (1949).
Consequently, since a fugitive at an extradition hearing has no
constitutional right either to offer exculpatory evidence or to
examine witnesses, Charlton v. Kelly, 229 U.S. at 462, the district
court's refusal to permit the examination of Lulu Yui did not violate
any fundamental right of petitioner.

   Petitioner is incorrect in suggesting (Pet. 16) that this Court's
decisions in Grin v. Shine, 187 U.S. 181 (1902), and Bingham v.
Bradley, 241 U.S. 511 (1916), are irreconcilable on this issue and
that certiorari should be granted to address the inconsistency between
the two decisions.  In Grin, the Court prefaced its discussion of the
claimed errors by noting that persons subject to extradition "are
entitled to the same defences as others accused of crime within our
own jurisdiction" and that the Court must not sacrifice the fugitive's
"legal or constitutional rights" in an extradition proceeding.  187
U.S. at 184.  The Court did not further identify those rights,
however.  Since there is no constitutional right to confront witnesses
in a preliminary hearing to determine probable cause, the refusal to
grant that right in an extradition proceeding does not violate the
admonition in Grin v. Shine that persons accused of criminal conduct
in other countries must be treated similarly to persons accused of
criminal conduct in this country.  Grin v. Shine is therefore entirely
consistent with Bingham v. Bradley, which recognized that in
extradition proceedings the government may prove its case by affidavit
and need not present live witnesses who are subject to
cross-examination.

   4. Petitioner next contends (Pet. 17-21) that the district court
was wrong to admit evidence at the extradition hearing simply because
it satisfied the requirements of 18 U.S.C. 3190, the statute that
governs the admissibility of evidence at an extradition hearing.

   Petitioner made a number of unsuccessful objections to the
competence of the evidence introduced at his extradition hearing.  The
court of appeals considered the competence of the evidence under the
standards set forth in Section 3190 and the Treaty, and the court
found the evidence to be properly authenticated and admissible under
each.  Pet. App. 17-18.  The court of appeals' analysis of this issue
was correct.

   In considering an extradition request the court or magistrate is
bound to admit evidence that complies with the statute and the Treaty.
 See, e.g., Collins v. Loisel, 259 U.S. at 313.  The weight the court
gives to that evidence, however, is not subject to statutory
directive.  Thus, an affidavit that meets the authentication standards
is admissible.  If the reliability of the affidavit is otherwise open
to question, however, the court may in its discretion give the
affidavit little weight.  E.g., In re Assarsson, 635 F.2d 1237,
1245-1245 (7th Cir. 1980), cert. denied, 451 U.S. 938 (1981);  O'Brien
v. Rozman, 554 F.2d 780, 783 (6th Cir. 1977);  Argento v. Horn, 241
F.2d 258, 263 (6th Cir.), cert. denied, 355 U.S. 818 (1957);  Freedman
v. United States, 437 F. Supp. 1252, 1265 (N.D. Ga. 1977).  The
decision of the court of appeals is therefore consistent with
well-settled principles, and it does not, as petitioner suggests, deny
extradition courts the freedom to weigh the evidence and make an
intelligent and independent judgment on the issue of probable cause.

   Contrary to petitioner's contention, the decision below does not
conflict with Greci v. Birknes, 527 F.2d 956 (1st Cir. 1976).  In that
case, the First Circuit considered both 18 U.S.C. 3190 and the
particular extradition treaty involved.  The fugitive in Greci argued
that the treaty -- between the United States and Italy -- imposed a
higher standard for authentication than the statute.  The court then
found that the affidavits presented to the district court in support
of the extradition request were unsworn and that there was no
indication the affiants were informed of the penalties for making
false statements.  The court therefore concluded that the affidavits
did not satisfy the Italian-American treaty.  See Emami v. United
States District Court, 834 F.2d 1444, 1452 (9th Cir. 1987) ("(t)he
First Circuit only imposed this requirement because specific language
in that particular treaty mandated that result").  Unlike the court in
that case, the court of appeals here concluded that the treaty at
issue does not impose a higher standard for authentication than
Section 3190.  See Pet. App. 17.  Thus, the differing outcome of the
two cases is entirely attributable to the different language in the
two treaties.

   Equally without merit is petitioner's claim that the decision below
conflicts with "the practice traditionally followed by federal courts"
(Pet 18).  First, the cases he cites, much like Greci v. Birknes,
looked to the statute and the particular treaty involved -- just as
the court of appeals did in this case.  In addition, Collins v.
Loisel, 259 U.S. 309 (1922), on which petitioner relies (Pet. 18),
itself recognized that the admissibility of evidence at an extradition
hearing is determined by the statute governing authentication.  259
U.S. at 313-314.  And Zanazanian v. United States, 729 F.2d 624,
627-628 (9th Cir. 1984), on which petitioner also relies, considered a
hearsay claim as a challenge to the reliability of evidence that was
presumably competent under the statute and the applicable treaty.
That analysis is in no way contrary to the approach followed by the
same court of appeals in this case.

   Petitioner is also wrong in claiming that Section 3190 violates
separation of powers principles.  The provision for authentication of
foreign documents in Section 3190, like the rule permitting
self-authentication of domestic public documents (Fed. R. Evid.
902(1)), or the rule providing for the authentication of foreign
public documents (Fed. R. Evid. 902(3)), does not unconstitutionally
restrict judicial authority.  Neither the statute nor Rule 902 takes
from the district court the ultimate issues to be determined;  both
simply declare that evidence is admissible when it is authenticated by
a government official.  The authentication provision does not also
require that the evidence be credited or that it be found sufficient
to meet the government's burden of proof at an extradition hearing.
Those decisions are entrusted entirely to the judicial officer.  Cf.
United States v. Southard, 700 F.2d 1, 22 (1st Cir.), cert. denied,
464 U.S. 823 (1983).

   Finally, petitioner's claim that some of the authenticated
affidavits were unreliable because they contained hearsay statements
or because some of the assertions lacked a foundation is a purely
factual challenge that does not merit further review.  Hearsay is
admissible in extradition proceedings.  Collins v. Loisel, 259 U.S. at
317;  Bingham v. Bradley, 241 U.S. 511, 517 (1916);  Emami v. United
States District Court, 834 F.2d at 1451;  Shapiro v. Ferrandina, 478
F.2d 894, 902 (2d Cir. 1973).  The district court found the affidavits
to be reliable, particularly in the absence of any suggestion why the
declarants would have reason to lie.  Cf. Zanazanian v. United States,
729 F.2d at 627-628.  Petitioner's further complaint (Pet. 20) that
the affidavits included "unqualified legal conclusions" of "lay
witnesses" is seemingly predicated upon the Federal Rules of Evidence,
which do not apply to extradition proceedings.  We note also that the
"lay witness" who concluded that the loan forms at issue were
"misleading and false" (Pet. 20 n.16) was not a "lay witness" in the
conventional sense, but was an expert accountant retained by the
Government of Hong Kong to examine the bank's records.

   5. Petitioner next contends (Pet. 21-23) that the district judge
should have recused himself under 28 U.S.C. 455(a) from presiding over
petitioner's habeas corpus proceeding, because he had previously
presided over petitioner's extradition hearing.

   The only other courts of appeals to address the issue have held
that recusal is not required under these circumstances.  Demjanjuk v.
Petrovsky, 776 F.2d 571 (6th Cir. 1985), cert. denied, 475 U.S. 1016
(1986);  David v. Attorney General of the United States, 699 F.2d 411,
416 (7th Cir.), cert. denied, 464 U.S. 832 (1983).  No court has held
that a district judge who presided over an extradition request is
disqualified from hearing the ensuing habeas corpus claim.  Nor does
the relationship between the two proceedings suggest that such a rule
should be created.

   At the extradition hearing, the issue is whether there is
sufficient evidence to sustain the charge under the provisions of the
treaty;  if there is, the judicial officer presents a certification to
that effect to the Department of State.  18 U.S.C. 3184.  Since there
is no appeal from the judicial finding of extraditability, the
fugitive's remedy is to file a petition for a writ of habeas corpus
under 28 U.S.C. 2241.  In that action, the district court does not
revisit the issue presented in the extradition hearing.  As this Court
explained in Fernandez v. Phillips, 268 U.S. at 312:

      That writ as has been said very often cannot take the place of a
      writ of error.  It is not a means for rehearing what the
      magistrate already has decided.  The alleged fugitive from
      justice has already had his hearing and habeas corpus is
      available only to inquire whether the magistrate had
      jurisdiction, whether the offence charged is within the treaty,
      and, by a somewhat liberal extension, whether there was any
      evidence warranting the finding that there was reasonable ground
      to believe the accused guilty.

   Because habeas corpus review is so limited and is confined to
issues other than those previously decided, there is no statutory or
constitutional infirmity in the reassignment of the habeas corpus
proceeding to the judge who initially heard the extradition case.
Contrary to the implication of petitioner's argument, the habeas
corpus judge does not either decide the extradition issues anew or sit
as an appellate judge to review the extradition judge's actions.
Moreover, as the Sixth Circuit has recognized, habeas corpus
challenges to criminal convictions are presumptively to be assigned to
the judge who presided over the original criminal trial, Demjanjuk v.
Petrovsky, 776 F.2d at 577.  And, as the court below pointed out,
"(f)ederal district judges are frequently called upon to reconsider
prior rulings without recusing themselves." Pet. App. 21.  For
example, motions for a new trial or for a post-verdict judgment of
acquittal in a criminal case are addressed to the judge who presided
over the trial, and no claim can be made that the judge is
disqualified because he is asked to review the correctness of his own
previous orders.

   Petitioner relies on the Fourth Circuit's decision in Rice v.
McKenzie, 581 F.2d 1114 (1978), but that decision is not to the
contrary.  In that case, the court of appeals determined that a state
appellate judge who rejected a state defendant's appeal and who then
was appointed to be a federal judge should not have considered the
same habeas claim on federal review.  Because federal habaes corpus
review of state criminal judgments is in some respects like appellate
review of a lower court proceeding, the court of appeals held that it
was improper for the habeas corpus judge to review a judgment he had
approved while sitting as a state court judge.

   A rule that a judge ought not to hear the appeal from a case on
which he sat below has never been extended to habeas corpus review
generally or to the situation presented here, and in fact the Fourth
Circuit has declined to expand its application to such situations.
See United States v. Parker, 742 F.2d 127, 129 (4th Cir. 1984).
Because this case is like a Section 2255 challenge to a district
judge's own prior actions at trial, there is no persuasive reason to
conclude that the district judge should have recused himself and
refused to hear the habeas corpus claim.

   6. Finally, petitioner urges (Pet. 23-26) that the distinction
between "explanatory" evidence, which a fugitive may offer at an
extradition hearing, and "contradictory" evidence, which he may not
present at the hearing, is confusing and should be clarified by this
Court.  Any difficulty in applying that distinction is not presented
here, however, because the evidence that petitioner proffered was
clearly inadmissible under well-established principles.

   The government's accounting witness found indications of fraud in
the payment of loan proceeds to parties other than the borrowers, and
in the "complex disbursement patterns" to Indonesian companies, who
then paid the money to other accounts.  Petitioner proffered the
testimony of an expert to dispute that evidence.  As this Court long
ago stated in Collins v. Loisel, 259 U.S. at 315-316, the fugitive can
explain ambiguities or doubtful elements in the government's prima
facie case, but he may not present his defense case at the extradition
hearing.  Petitioner's proposed "explanation" for the evidence that
suggested fraud to the government's accounting witness plainly
amounted to presenting a defense to the charges in the arrest warrant.
 And that is precisely what the rule in Collins v. Loisel makes clear
the fugitive may not do.  The district court therefore properly
declined to hear the proferred testimony.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   SARA CRISCITELLI

      Attorney

   MAY 1989