Friday, January 18, 2008

Taking Depositions in China, Part the Last? Tale of the Deposition

Here is the story from 1989 of the only time the Chinese government allowed American attorneys to take the deposition of a Chinese witness. The story comes from the facts of Wang Zong Xiao v. Janet Reno, 837 F.Supp. 1506 (N.D. Cal. 1993). There are inconsistencies in the way the story was told, and for the sake of clarity I’m going to write up the simplest version of events. By the end of the story it should be quite clear why China has not allowed the deposition of a Chinese witness by Americans, since.

In January of 1988, Wang Zong Xiao met two men from Hong Kong, Ah Kun and Leung Tak Lun, in Guangzhou at the Oriental Hotel. Leung purchased 7 bricks of heroin (~4.5 kilograms) for 490,000 Hong Kong dollars. The ultimate destination of the heroin was San Francisco by way of Shanghai. Wang and Leung broke up the heroin into powder presumably to make smuggling easier. The plan was to bag up the heroin, stuff it inside of goldfish carcasses, and ship the drugs to San Francisco.

On March 8, 1988, the PRC notified the Narcotics Coordinator at American Embassy in Beijing, Jonathan Aloisi, that they had intercepted 4.5 kilograms of heroin bundled inside of dead goldfish. Aloisi called up the Brad Morgan, DEA agent in Hong Kong, who asked Aloisi if the Chinese would agree to a “controlled delivery of heroin.” In an unprecedented move, the Chinese authorities agreed to cooperate with the DEA in an international drug bust. A tracking device was placed inside of the shipment which arrived in San Francisco on May 10, 1988. Arrests were made in Hong Kong, the PRC, and San Francisco.

On March 12, 1988, “Four men approached Wang, kicked him, 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 was taken to the “No.1 Detention House” in Shanghai. Wang was interrogated for about 20 hours a day for a month, 5-6 days a week. Wang suffered severe verbal abuse, and, in addition to being awoken each morning by a cattle prod, physical and mental abuse similar to that at Guantanamo.

Over the Summer of 1988, American DEA agents, prosecutors, and embassy officials traveled to Shanghai and Beijing to meet with representatives of the PRC’s Ministry of Public Security (MPS), and interview the suspects and witnesses. The American agents were aware “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.” This did not stop the Americans from bringing this prospect up several times with representatives of the MPS. The MPS never said no, which the Americans admit greatly encouraged them. The Americans never let slip the one concern they had about bringing Chinese witnesses to the United States, the one concern they knew would derail their plans: that Wang would file suit to bar the U.S. from returning him to the PRC where he faced the death penalty, which would deprive him of the substantive due process of law that the U.S. Constitution would guarantee him if he testified in the U.S.

In September of 1989, the attorneys on both sides of Leung Tak Lun’s prosecution in the U.S. were given the go ahead to conduct discovery in China. For the first time, permission was given to take depositions of Chinese citizens after going through the proper diplomatic channels by submitting Letters Rogatory. The deposition was conditioned on a set of ground rules: the attorneys had to stick to the facts of the case, “avoid asking questions regarding any surrounding circumstances … [and they could not ask] any questions regarding the conditions of the witnesses’ custody or the voluntariness of their confessions.” The depositions went smoothly, and the Chinese government even agreed to allow Wang to travel to the United States for trial. This was an unprecedented level of cooperation between the PRC and the United States.

The case that these facts have come from, Wang Zong Xiao v. Reno, was Wang’s suit against the United States to force the government to keep him in the United States. Wang won, and was not returned to China. The PRC was not amused. In the first major instance of cooperation in a criminal investigation between the U.S. and PRC, the U.S. shortchanged the PRC in a major way. And the facts of the case show that the U.S. agents knew from the beginning that the PRC would get the short end of the deal and that the PRC would not be amused, yet they proceeded anyways. The PRC publicly announced that this level of cooperation should not be regarded as precedent, and that the U.S. should not expect to be conducting depositions in China anytime soon. 25+ years later and a second officially sanctioned deposition has yet to occur.

No comments: