Yoo v. United States

43 F.4th 64

Hyuk Kee YOO, also known as Keith Yoo, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee,

Docket No. 21-2755

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: April 5, 2022

Decided: August 1, 2022

Paul Shechtman, Bracewell LLP, New York, NY (Rebecca Foxwell, Bracewell LLP, New York, NY; Shawn P. Naunton, Zuckerman Spaeder LLP, New York, NY, on the brief), for Petitioner-Appellant.

Derek Wikstrom, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.

Before: Calabresi, Lynch, and Lohier, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

Hyuk Kee Yoo, also known as "Keith Yoo," appeals from a November 1, 2021 judgment of the United States District Court for the Southern District of New York (Cathy Seibel, J. ), denying his petition for a writ of habeas corpus. A magistrate judge (Judith C. McCarthy, M.J. ) certified Yoo as extraditable to South Korea pursuant to an extradition treaty between that country and the United States. Yoo filed the habeas petition in the district court in an attempt to avoid extradition from the United States to South Korea to face seven charges of embezzlement related to his role in his family's business empire.

Both the magistrate judge and the district court held that whether the treaty's "Lapse of Time" provision bars extradition is a question for the Secretary of State to consider in deciding whether to extradite an individual, and not a mandatory determination for the extradition court to make in the first instance. Yoo argues that the district court erred in interpreting the treaty, and that the text of the treaty and its legislative history indicate that the federal courts must decide whether the statute of limitations bars extradition before issuing a certificate of extraditability. Yoo proceeds to argue that the statute of limitations has already lapsed and that his extradition should be barred on that ground.

Because the text of the treaty, on its most natural reading, makes clear that the issue of timeliness is a matter of discretion for the relevant executive authority of the country considering the extradition request, and not a mandatory bar that the courts must apply, we hold that the district court did not err in denying Yoo's petition for a writ of habeas corpus. We therefore AFFIRM the judgment of the district court.

BACKGROUND

Yoo is a South Korean-born businessman who, before these extradition proceedings began, lived with his family in Pound Ridge, New York. His father, Byeong-eun Yoo, was a prominent businessman in South Korea as well as the founder and former leader of a South Korean church known as the Evangelical Baptist Church of Korea. The Yoo family allegedly controls a holding company that has significant stakes in several large South Korean companies. Yoo himself is alleged to have been involved in his family's businesses and to have served as the de facto leader of his father's church since 2010.

On May 8, 2014, a judge of the Incheon District Court in South Korea issued a warrant for Yoo's arrest. South Korean prosecutors charged Yoo with seven counts of embezzlement in violation of Korean criminal law committed within South Korea's jurisdiction.

Shortly thereafter, starting in May 2014, the South Korean government sent several requests in the form of diplomatic notes to the United States government seeking the extradition of Yoo to South Korea, pursuant to an extradition treaty in place between that country and the United States (the "Treaty") and the federal extradition statute, 18 U.S.C. § 3184. On February 27, 2020, the United States Attorney for the Southern District of New York filed a sealed complaint in the district court before a magistrate judge, seeking a warrant for Yoo's arrest and a certification that Yoo was extraditable under the Treaty pursuant to § 3184. On July 22, 2020, the magistrate judge issued an arrest warrant, and Yoo was subsequently arrested and detained without bail.

Drawing on South Korea's extradition requests, the government's complaint alleged that between January 2008 and March 2014, Yoo "leveraged his family's power as business and religious leaders in Korea to pilfer the assets of various companies," by "conspir[ing] with the chief executive officers of the [v]ictim [c]ompanies to enter into sham contracts that served as vehicles through which [Yoo] embezzled millions of dollars." J.A. at 6.¹ Yoo's alleged embezzlements were committed in three principal ways: first, by causing the victim companies to make payments to him based on fraudulent trademark licensing agreements; second, by causing the victim companies to make payments to him based on fraudulent agreements for business consulting services; and third, by causing the victim companies to fund an exhibition of his father's photography and "making disguised payments that were structured as advance payments for the purchase of the photographs at inflated values." Id. The South Korean government alleges that Yoo defrauded the victim companies of the equivalent of approximately $23 million.

On March 3, 2021, the magistrate judge held an extradition hearing. After finding that Yoo was extraditable, the magistrate judge issued a Certification of Extraditability and Order of Commitment (the "Certificate") on July 2, 2021. In re Extradition of Hyuk Kee Yoo , No. 20-MJ-2252, 2021 WL 2784836, at *1 (S.D.N.Y. July 2, 2021). Yoo, who had opposed his extradition and moved to dismiss the complaint, argued that the allegations of criminal conduct were not supported by probable cause and that his extradition was barred by the applicable statute of limitations in the United States under the terms of the Treaty. Id. The magistrate judge found that the "extradition request demonstrat[ed] probable cause and satisfie[d] the relevant requirements," and that, under the terms of the Treaty, the court "lack[ed] authority to determine whether this prosecution is time-barred, as that inquiry is a discretionary matter reserved for the Secretary of State." Id.

On July 21, 2021, Yoo petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the magistrate judge's determination as to his extraditability and the issuance of the Certificate. As before the magistrate judge, Yoo argued that he could not be extradited to South Korea because the embezzlement charges he faces there are time-barred and not supported by probable cause.

On November 1, 2021, the district court denied Yoo's petition. Yoo v. United States , No. 21-cv-6184, 2021 WL 5054726 (S.D.N.Y. Nov. 1, 2021). Agreeing with the magistrate judge, the district court interpreted the Treaty's relevant provisions to commit the determination of whether the South Korean charges are time-barred to the Secretary of State's discretion. Id. at *9. The district court noted that the executive branch is the "final decision-maker and retains discretion to deny extradition," meaning that "discretionary determinations" under the Treaty are consigned to the authority of the Secretary of State while "mandatory determinations" are to be made by the extraditing court. Id. at *4 (quotation marks omitted). The district court found that, based on the text of the Treaty, any analysis of whether a charge faced by an extraditee was beyond the relevant statute of limitations was "a discretionary task assigned to the executive branch," and the district court therefore did not address the merits of Yoo's time-bar claim. Id. at *9. The district court proceeded to consider and reject Yoo's probable cause challenge. Id. at *9-17. Accordingly, the district court denied Yoo's petition. Id. at *17.

Yoo timely appealed the district court's denial of his habeas corpus petition. On appeal, Yoo has abandoned the probable cause argument and challenges only the district court's ruling as to the statute of limitations.

DISCUSSION

I. Standard of Review

"Our review of the denial of a petition for habeas corpus in extradition proceedings is ‘narrow’ in scope." Sacirbey v. Guccione , 589 F.3d 52, 62 (2d Cir. 2009), quoting Murphy v. United States , 199 F.3d 599, 601 (2d Cir. 1999). "A reviewing court can consider only three issues: ‘(1) whether the judge below had jurisdiction; (2) whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence presented by the Government established probable cause to extradite.’ " Id. at 63, quoting Cheung v. United States , 213 F.3d 82, 88 (2d Cir. 2000).

While we may not "second guess the determination of the magistrate judge to issue an order certifying a request for extradition," it is "nevertheless our duty ... to ensure that the applicable provisions of the treaty and the governing American statutes are complied with." Id. (brackets and quotation marks omitted). We therefore "review the factual findings of the District Court for clear error and its legal determinations de novo ." Id.

II. Analysis

This appeal centers on the meaning of the Treaty's Lapse of Time provision – specifically, whether the use of the word "may" in the first sentence of that provision is discretionary or mandatory in nature. The Lapse of Time provision appears in Article 6 of the Treaty and provides:

Extradition may be denied under this Treaty when the prosecution or the execution of punishment of the offense for which extradition is requested would have been barred because of the statute of limitations of the Requested State had the same offense been committed in the Requested State. The period during which a person for whom extradition is sought fled from justice does not count towards the running of the statute of limitations. Acts or circumstances that would suspend the expiration of the statute of limitations of either State shall be given effect by the Requested State, and in this regard the

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