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发帖数: 3509 | 1 This heroin importation and possession trial was the first time the People's
Republic of China and the United States joined to investigate and prosecute
a criminal offense. It ended disastrously. The district court granted a
defense mistrial motion after a government witness changed his story and
other witnesses left the country. Defendants now appeal the denial of their
motion to dismiss the indictment on double jeopardy grounds. We hold the
defendants have failed to show the conduct leading to the mistrial motion
was intended to provoke them into moving for a mistrial, and accordingly
affirm.
I. BACKGROUND
In March 1988, customs brokers of the People's Republic of China at the
Shanghai Airport discovered heroin hidden inside a shipment of goldfish
destined for San Francisco. Chinese police officials arrested Wang Xong Xiao
["Wang"], a Chinese citizen, after determining he was responsible for
arranging the shipment. During interrogations, Wang allegedly confessed to
assisting appellant Leung Tak Lun ["Leung"], a Hong Kong resident, ship the
drugs to the United States. Chinese officials arrested Leung, and notified
the United States Drug Enforcement Agency of the pending shipment. DEA
agents seized the shipment when it arrived in San Francisco and arrested
appellants Chico Wong and Andrew Wong. The Chinese government extradited
Leung to the United States, and U.S. federal prosecutors indicted all three
appellants for conspiracy to import and possess heroin with intent to
distribute, in violation of 21 U.S.C. § 846, 952(a), and 963.
In what apparently was the first time the People's Republic of China
cooperated with another country to prosecute a defendant charged with a
criminal offense, China sent Wang and five Chinese investigating officials
to the United States to assist the U.S. Government at the appellants' trial.
The Chinese officials testified during the first month of the trial.
Finally, Wang was called as a witness, and he testified for several days.
Then the unexpected happened. In summary, Wang filed a petition for
political asylum and told the court that his Chinese captors had coerced and
tortured him to confess falsely. He said he was ordered by his captors to
testify falsely at trial according to a "script" created by the Chinese
officials. He said his courtroom testimony had been false in many respects,
under the threat that failure to comply with his captors demands would lead
to a death sentence when he got back to China.
Thereupon, defendants moved to dismiss the indictment, for mistrial, or, in
the alternative, to strike Wang's testimony. A few days later, defendants
learned that the Chinese officials were planning to go back to China before
they could be examined in court about Wang's claims, and defendants
requested the prosecutor to stop them. However, the Chinese officials left
for China a few days later, without being examined. At a hearing on the
matter, the court granted defendants' motion for mistrial over the
government's objection but denied the motion to dismiss. | z****g
发帖数: 3509 | 2 I. FINDINGS OF FACT.
A. The Goldfish Arrests.
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.1 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.
From the perspective of reports prepared by the United States government,
Wang's
treatment is not substantially different from the way many criminal suspects
are treated while incarcerated in the PRC. For example, the Department of
State's "Country Reports on Human Rights Practices for 1987" includes the
following statements regarding the PRC's criminal justice system:
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....
(Ex. 370 at 662-64.)
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.2 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. | z****g
发帖数: 3509 | 3 名句摘录， 哈哈哈：
if you cooperate, you will receive leniency; if you do not, then you will be
treated severely
坦白从宽，抗拒从严 | z****g
发帖数: 3509 | 4 what kind of place do you think you're in?
你以为你在什么地方？ | z****g
发帖数: 3509 | 5 you're like a piece of meat on our chopping board; we can chop you any way
we want.
你就是我们砧板上的肉，我们想怎么剁就怎么剁。 |
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