Full opinion text
OPINION REGARDING EXTRADITABILITY KAROL, United States Magistrate Judge. The Government of the United Kingdom, on instructions from the Crown Colony of Hong Kong, is seeking the extradition of Lui Kin-hong, a/k/a Jerry Lui (“Lui”), for alleged violations of section 9(l)(a) of the Prevention of Bribery Ordinance, Chapter 201, Laws of Hong Kong. The request for extradition was made pursuant to the Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 8,1972, 28 U.S.T. 227 (“the Treaty”), and the Supplementary Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland, June 25, 1985, T.I.A.S. No. 12050 (“the Supplementary Treaty”). Lui has raised several objections to extraditability, including objections based on the fact that sovereignty over Hong Kong will revert to the People’s Republic of China (“PRC”) on July 1, 1997, pursuant to the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, Dec. 19, 1984 (“the Joint Declaration”). (United States’ exs. vol. 1, ex. CHL-1 to Aff. of Lena Chi Hui-Ling). This court held an extradition hearing on three consecutive days commencing May 28, 1996, and the parties filed lengthy pre- and post-hearing memoranda and reply memo-randa. Upon careful consideration of the evidence, the memoranda, and the arguments of counsel. I conclude for the reasons stated below that Lui is extraditable on all charges except Charge 2, which charge relates to an alleged payment made to him in October 1988. I. Background It is undisputed that Lui, a citizen of Hong Kong and, since 1994, of Canada, was employed by Brown & Williamson Tobacco Corporation (“B & W”), a United States corporation, from August 1988 to May 1, 1993. B & W, a wholly owned subsidiary of British-Ameriean Tobacco Industries PLC (“BAT PLC”), manufactures and distributes worldwide a number of popular brands of cigarettes, including Kent, Lucky Strike, and Viceroy. Beginning in June 1990, while Lui was still an employee of B & W, he was “seconded” to British-Ameriean Tobacco Company (Hong Kong) Limited (“BAT-HK”), a Hong Kong corporation that distributes cigarettes manufactured by B & W and others to countries in the Far East. BAT-HK is a wholly owned subsidiary of British-Ameriean Tobacco Company Limited, an English corporation that is wholly owned by BAT PLC. It was not clear from the evidence what responsibilities Lui actually performed at B & W from August 1988 until he was seconded to BAT-HK in June 1990, although he apparently held the title Regional Director for Taiwan and the Philippines and worked out of a Taiwan office during at least the latter part of that period. It was also unclear what his responsibilities, if any, were with respect to BAT-HK when he was initially seconded there. With respect to the latter point, the evidence revealed only that he was first posted to BAT-HK to serve as the “eyes and ears” of B & W and “to act as a liaison officer.” (United States’ exs. vol. 2 ex. KPZ-8 to Affirmation of Kevin Paul Zervos, David George Emmerson test, at 183.) It is also undisputed that, effective January 1,1992, while he was still employed by B & W but stationed at BAT-HK and living in Hong Kong, Lui became BAT-HK’s Director of Exports. He remained in that key position until he resigned from B & W effective May 1, 1993. As Director of Exports, Lui was influential in determining how many cartons of cigarettes (including, but apparently not limited to, brands manufactured by B & W) BAT-HK would allocate to each of its distributors for resale. One of BAT-HK’s distributors was Giant Island Ltd. (“GIL”). In a ten-charge warrant, the details of which are discussed below, Hong Kong authorities allege that, from 1988 to 1993, Lui accepted bribes from GIL or its affiliate, Wing Wah Company (‘Wing Wah”), in violation of section 9. The bribes were allegedly paid to induce Lui to cause BAT-HK to make favorable allocations of cigarettes to GIL or Wing Wah or to reward him for having done so. It is undisputed that Lui had no authority to influence BAT-HK’s allocation decisions until several years after the first payment was allegedly made in October 1988. Indeed, it is undisputed that Lui was not even seconded to BAT-HK until more than a year and a half after the initial payment. Hong Kong authorities nevertheless allege that the payments commenced as early as they did because Lui, GIL, and Wing Wah had the foresight to anticipate as early as October 1988 that Lui would eventually become influential in making cigarette allocation decisions on behalf of BAT-HK. Effective May 1,1993, Lui left B & W and BAT-HK and immediately began working for a company affiliated with GIL. In April 1994, Hong Kong authorities sought to arrest Lui, but he had already left Hong Kong for the Philippines, where his employer had set up operations and with whom Hong Kong had no extradition treaty. As far as the record reveals, Lui never returned to Hong Kong, despite the fact that, for at least most months in the past two years, his wife and children remained there. Hong Kong authorities learned that Lui would be flying to Boston on personal business on December 20, 1995, and they arranged to have him arrested at Logan Airport upon his arrival. He has been held in custody since that date. See In re Extradition of Lui Kin-Hong, 913 F.Supp. 50 (D.Mass.), habeas corpus granted by Kin-Hong v. United States, 926 F.Supp. 1180 (D.Mass.), order rev’d, 83 F.3d 523 (1st Cir.1996) (per curiam). II. The Charges Although several warrants for Lui’s arrest have been issued in Hong Kong since 1994, the most recent one, and the one that is operative here, is dated February 5, 1996. (United States’ exs. vol. 1, ex. RGM-5 to Affirmation of Roger Gordon McMeans.) The warrant sets forth ten charges, all brought under section 9(l)(a) and one also brought under common law. The first charge is that Lui, as an agent of “Brown and Williamson Limited” and of BAT-HK, conspired in Hong Kong, between June 1, 1988, and December 31, 1993, with present and former principals of GIL and Wing Wah to “accept advantages ... as an inducement to or reward for or otherwise on account of ... [Lui’s] doing or having done an act in relation to his principal’s affairs or business, namely, ensuring the sale and supply of cigarettes from [BAT-HK] to Wing Wah Company and/or [GIL] and/or [associated] companies .... ” Charges 2 through 10 charge Lui with substantive violations of section 9. Specifically, charges 2 through 8 charge Lui with accepting advantages in the following amounts on the dates indicated: HK$1,953,260 on or about October 21,1988 2rd Charge HK$2,000,000 on or about February 17,1990 3rd Charge HK$2,000,000 on or about April 3,1990 4th Charge 5th Charge HK$3,000,000 on or about May 17,1991 6th Charge HK$5,000,000 on or about August 22,1991 7th Charge HK$3,255,070 on or about April 8,1992 8th Charge HK$6,055,070 on or about January 20,1993 Charges 9 and 10 charge Lui with accepting advantages in the form of unsecured loans in the amounts of HK$3,000,000 and HK$7,000,000, respectively, from a GIL affiliate between January 1, 1993, and April 30, 1993. Since the exchange rate between Hong Kong and United States dollars is in the range of 7 to 1, see, e.g., Currency Trading, Wall St.J., Aug. 20, 1996, at C20, Lui is alleged to have accepted outright payments of approximately US$8,000,000 and unsecured loans in the order of magnitude of US$1,500,000. As noted, each charge is brought under section 9, entitled “Corrupt transactions with agents,” which provides, in pertinent part: (1) Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his— (a) doing or forbearing to do, or having done or forborne to do, any act in relation to his principal’s affairs or business; or (b) showing or forbearing to show, or having shown or forborne to show, fav-our or disfavour to any person in relation to his principal’s affairs or business. shall be guilty of an offence. Other relevant provisions of the Prevention of Bribery Ordinance include: section 2(1), which defines the term “advantage” as meaning, among other things, “(a) any gift, loan, fee, reward or commission consisting of money,” the term “agent” as “includ[ing] ... any person employed by or acting for another,” and the term “principal” as “inelud[ing] ... an employer”; section 2(2)(c), which states that “a person accepts an advantage if he ... directly or indirectly takes, receives or obtains, or agrees to take, receive or obtain any advantage”; section 12(l)(a)(iii), which provides for a term of imprisonment of up to seven years for a violation of section 9; and section 12A, which specifies the same penalty upon conviction of conspiracy to violate section 9. III. Overview of United States Extradition Law In the United States, extradition is governed entirely by treaty and statute. See, e.g., In re Extradition of Howard (United States v. Howard), 996 F.2d 1320, 1329 (1st Cir.1993). In this ease, it is undisputed that the applicable treaty is the 1972 Treaty, as supplemented by the 1985 Supplementary Treaty, and that the applicable statutes are 18 U.S.C. §§ 3184 and 3186 (1994) Although some of the inquiries in a particular extradition proceeding vary with the specific terms of the applicable treaty and the nature of the ease, certain principles govern all extradition cases in which the United States is the requested party. Foremost among these principles is that the responsibilities in extradition matters are divided between a judicial officer, such as a magistrate judge, and the Secretary of State. See id. Section 3184 defines the role of the judicial officer in the extradition process. The judicial officer is to determine whether the accused, sometimes referred to as the relator, is extraditable in accordance with the terms of the governing treaty and statutes. See id. § 3184. Primarily this means that the judicial officer must determine whether the United States and the requesting country are parties to a valid extradition treaty; whether the relator is in fact the person who has been charged by the requesting state; whether an arrest warrant from the requesting state is outstanding; whether the offenses with which the relator is charged are extraditable under the treaty; and whether there is probable cause to believe that the relator committed the crime charged. See Howard, 996 F.2d at 1324 n. 1. The judicial officer hears “the evidence of criminality5’ and decides whether it is “sufficient to sustain the charge under the provisions of the proper treaty or convention.” See 18 U.S.C. § 3184. If it is, the judicial officer “shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue.” Id. The Secretary of State must then exercise discretion to determine whether the accused should actually be extradited. See id. § 3186; see also In re United States (Allen v. Schultz), 713 F.2d 105, 108, 109 (5th Cir.1983); Escobedo v. United States, 623 F.2d 1098, 1105-06 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980) and sub nom. Castillo v. Forsht, 450 U.S. 922, 101 S.Ct. 1371, 67 L.Ed.2d 350 (1981); Spatola v. United States, 741 F.Supp. 362, 370 (E.D.N.Y.1990), aff'd, 925 F.2d 615 (2d Cir.1991). This division of responsibility in matters of extradition is longstanding and eminently sensible. It reflects the fact that some aspects of the extradition decision— such as whether there is probable cause to believe that the accused committed an extraditable offense — are legal and do not tend to implicate foreign policy concerns, while others — such as whether a request for extradition should be denied because of the requesting state’s disrespect for human rights — are likely to have significant foreign policy implications that should be evaluated by the branch of government that has primary responsibility for the conduct of foreign affairs. Consistent with this division of responsibility, courts have developed the “rule of non-inquiry.” The rule holds that courts must not, in discharging their statutory responsibility to determine extraditability, consider such things as the requesting country’s motive in seeking extradition, the requesting country’s willingness and ability to protect the accused, or even the type of treatment to which the requesting country might subject the accused if extradition is permitted. See, e.g., Sindona v. Grant, 619 F.2d. 167, 174 (2d Cir.1980) (“[T]he degree of risk to [relator’s] life from extradition is an issue that properly falls within the exclusive purview of the executive branch.”); Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir.1976) (“A denial of extradition by the Executive may be appropriate when strong humanitarian grounds are present”), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977). This rule was adopted by the First Circuit in In re Extradition of Manzi (United States v. Manzi), 888 F.2d 204, 206 (1st Cir.1989) (per curiam) (“Courts have chosen to defer [questions regarding the procedures or treatment that might await an individual on extradition] to the executive branch because of its exclusive power to conduct foreign affairs.”), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990). In a subsequent case the First Circuit stated: Concerns of the sort raised here are for the executive branch because of its exclusive power to conduct foreign affairs, as extradition proceedings necessarily implicate the foreign policy interests of the United States. For these reasons the Secretary of State has sole discretion to determine whether a request for extradition should be denied because it is a subterfuge made for the purpose of punishing the accused for a political crime. Similarly, the degree of risk to [the relator’s] life from extradition is an issue that properly falls within the exclusive purview of the executive braneh. See Koskotas v. Roche, 931 F.2d 169,174 (1st Cir.1991) (internal quotation marks and citations omitted). It must be emphasized that the reason for the rule is not that courts regard concerns about motives, protection, and probable treatment of the accused to be irrelevant to the extradition decision or unworthy of consideration. Rather, it is that courts recognize that the ultimate decision to extradite is essentially a political one better made by the braneh of government that has primary responsibility for the conduct of foreign affairs. In the final analysis, the question is not what factors should be considered, but who should consider them. IV. The Treaty and the Supplementary Treaty Because so many of the issues that Lui has raised turn on the language of the applicable treaties, an overview of their key provisions will be helpful to later analysis. A The Treaty Article II(l)(a) of the Treaty provides, in substance, that the Treaty shall apply to “any territory for the international relations of which the United Kingdom is responsible,” provided that the parties, through an exchange of notes, so agree. See 28 U.S.T. at 229. It was pursuant to this provision that diplomatic notes were exchanged in 1976 that made the Treaty applicable to Hong Kong. See id. at 238-41. Significantly, Article 11(2) provides that the applicability of the Treaty to any particular territory “may be terminated by either Contracting Party giving six months’ written notice to the other through the diplomatic channel.” See id. at 229. Thus, the United States, because of concern about the upcoming reversion of Hong Kong to the sovereignty of the People’s Republic of China (“PRC”), or for any other reason, acting through the Secretary of State, could have terminated the applicability of the Treaty to Hong Kong by giving six months’ notice, without terminating the Treaty in any other respect. Indeed, the United States could still do so at any time. To the extent that the Treaty is deemed to include a requirement of so-called “dual criminality,” such requirement is found in Article III. Article III provides that “[e]xtradition shall be granted for an act or omission the facts of which disclose an offense within any of the descriptions listed in the Schedule annexed to this Treaty, ... or any other offense, if,” among other things, the offense is a felony under the laws of both parties. See id. at 229-30. The schedule of extraditable offenses annexed to the Treaty includes, as category number 23, “Bribery, including soliciting, offering or accepting bribes.” See id. at 235. I will address below the question whether the fact that bribery is a scheduled offense per se satisfies the requirement under the Treaty (and, by incorporation, under 18 U.S.C. § 3184) that the offense for which extradition is sought be an extraditable one, without further regard to whether bribery constitutes a felony under both United States and Hong Kong law. Article IV provides as follows: If the offense for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar ease, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out. Id. at 230. As will be seen, Lui, who is legitimately concerned about the reversion of Hong Kong to PRC sovereignty, relies upon this provision in opposing the request for extradition, notwithstanding that bribery is not punishable by death under current Hong Kong law. See Prevention of Bribery Ord., eh. 201, § 12, Laws of Hong Kong. It should be noted that the Treaty does not address the question whether discretion to refuse extradition in cases to which Article TV applies is vested in the judicial officer, who determines extraditability, or in the Secretary of State, who makes the actual decision whether to extradite. Article VII includes a requirement that the request for extradition of an accused person be accompanied by a warrant of arrest and “by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offense had been committed in the territory of the requested Party.” See 28 U.S.T. at 231. Article VII further provides that the warrant of arrest and any evidence, if given on oath or affirmed, “shall be received in evidence in any proceedings for extradition” if it is duly authenticated in any of several specified ways. See id. at 231-32 (emphasis added). Although, as discussed below, Lui vigorously contests the admissibility of some of the evidence proffered by the requesting party in this case, he does not contest its authenticity or deny that it was authenticated in accordance with the technical requirements expressly set forth in the Treaty. Consistent with Article VII, Article IX provides that “[e]xtradition shall be granted only if the evidence be found sufficient according to the law of the requested Party ... to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party.” See id. at 232. I will address below two questions raised by this provision: (1) whether the “law of the requested Party” refers only to substantive law or also to rules of evidence and (2) whether under this provision it is necessary for the judicial officer to make an independent determination whether the evidence is sufficient to demonstrate probable cause that the accused violated the substantive law of the requesting party. Article XII, the Treaty’s so-called “specialty” provision, is central to Lui’s reversion argument. It provides, in substance and with some exceptions not applicable here, that a person who has been extradited to the requesting country shall neither be proceeded against in that country for any offense other than one for which extradition had been granted nor reextradited to a third country. See id. at 233. The next provision of interest is Article XVI. As noted, Article XVI(4) permits either party to terminate the entire Treaty by giving six months’ notice “through the diplomatic channel.” See id. at 234. Article XVI(2) is also potentially significant. It provides that the Treaty shall apply to any offense listed in the annexed Schedule committed before or after this Treaty enters into force, provided that extradition shall not be granted for an offense committed before this Treaty enters into force which was not an offense under the laws of both Contracting Parties at the time of its commission. Id. (emphasis added). In other words, if a scheduled offense was allegedly committed before the Treaty became effective and such offense was not an offense in both countries at the time, the Treaty does not apply. But if, as was the case here, a scheduled offense was allegedly committed after the Treaty became effective, the Treaty does apply, without any exception for an offense that was not then an offense in both countries. By making this distinction, Article XVI(2) strongly supports the view that any scheduled offense that was committed after the Treaty became effective is extraditable per se under Article III, without the need for specific inquiry regarding whether it was a felony or, for that matter, an offense at all in both countries. B. The Supplementary Treaty Consistent with the Treaty, Article 2 of the Supplementary Treaty provides, in part, that “[t]he evidence of criminality must be such as, according to the law of the requested Party, would justify committal for trial if the offense had been committed in the territory of the requested Party.” See T.I.AS. No. 12050, at 7. The Supplementary Treaty does not specifically address the question whether the “law of the requested Party” refers only to the requested party’s substantive criminal law or also to its law of evidence. Article 2 also gives the accused in the United States the explicit right to present evidence, inter alia, of “probable cause,” which is expressly defined to mean that “there is sufficient evidence to warrant a man of reasonable caution in the belief that” the person before the court is the person sought and that such person has committed “an offense.” See id. Article 3 expressly provides that “extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence” that the extradition request was made for an ulterior political or otherwise discriminatory purpose or that, if extradited, the accused would be discriminated against at trial on political or otherwise discriminatory grounds. See id. Significantly, despite the fact that the Supplementary Treaty by its express terms applies to Hong Kong and was signed and entered into force after the United Kingdom had agreed in the 1984 Joint Declaration to return sovereignty over Hong Kong to the PRC effective July 1, 1997, Article 3 does not prohibit extradition where it appears that the accused, if extradited and convicted in the pre-reversion period, might or would likely still be serving a sentence in the post-reversion period. In fact, Article 3 does not even address reversion. The fact that the Supplementary Treaty is silent regarding reversion calls into question Lui’s argument, discussed below, that his extradition would violate the express terms of the Treaty or Supplementary Treaty- F. Discussion and Analysis Lui does not dispute that charges are pending against him in Hong Kong, that he is the person sought in the warrant that has been presented to the court, that an extradition treaty exists between the United States and the United Kingdom that applies to Hong Kong, or that the government of the United Kingdom, on behalf of Hong Kong, has made a request for extradition that meets the formal requirements of the Treaty, the Supplementary Treaty, and 18 U.S.C. § 3184. He vigorously disputes, however, that he is charged with an extraditable offense, that there is probable cause that he committed such offense, and that he may be extradited to Hong Kong less than one year before Hong Kong is to revert to PRC sovereignty. A. Extraditable Offense As noted, Lui is charged with one count of conspiring to accept bribes (called “advantages” under Hong Kong law) and nine substantive counts of accepting bribes. The schedule of extraditable offenses annexed to the Treaty includes, as category number 23, “Bribery, including soliciting, offering or accepting bribes.” See 28 U.S.T. at 235. Under one quite plausible reading of Article III of the Treaty, because the offenses that Lui allegedly committed clearly fall within a scheduled category, a judicial officer need go no further to conclude that the offenses with which Lui is charged are extraditable. After all, Article III clearly states that “[ejxtradition shall be granted for an act or omission the facts of which disclose an offense within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty [.]” See id. at 229 (emphasis added). Admittedly, the sentence quoted immediately above continues as follows: “or any other offense, if [inter alia, the offense is a felony in both countries].” See id. at 229-30. One could conceivably read the clause beginning with “if’ as qualifying not just the phrase “any other offense,” but scheduled offenses as well. But if the qualifying requirement that the offense be punishable as a felony in both countries is read to apply to both scheduled and unscheduled offenses, then the schedule would appear to serve no purpose. Thus, according to this interpretation, a charged offense would be extraditable if it was a felony in both countries, even if it was not scheduled, and, conversely, it would not be extraditable if it was not a felony in both countries, even if scheduled. Consistent with ordinary principles of statutory construction, a reading that renders “an integral part of the Treaty” utterly meaningless should be avoided if another plausible interpretation is available. See, e.g., United States Nat’l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 489, 454-55, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402 (1993); United States v. Flores, 968 F.2d 1366, 1370-71 (1st Cir.1992). Here, of course, there is another interpretation that not only is plausible, but also is consistent with the plain language of the Treaty: if the offense clearly falls within a scheduled category, it is extraditable per se. Only one case was found that concluded, on the basis of the foregoing language, that any offense that falls within any of the enumerated categories in the schedule is extraditable per se. In Oen Yin-Choy v. Robinson, 858 F.2d 1400 (9th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989), a case that also involved extradition to Hong Kong, the Ninth Circuit held that the crimes there under consideration were extraditable because they were of the type listed in the schedule: The offenses with which Oen is charged, false accounting and publishing a false statement, are listed in the schedule of offenses referred to in Article III of the Treaty. Thus, the Treaty specifically refers to the offenses with which Oen is charged, and the requirement of dual criminality is met. See id. at 1405. The Oen court then further held that the requirement of dual criminality was also met “because the Hong Kong crimes of false accounting and publishing a false statement are substantially analogous to the federal crime of making a false entry in a bank statement.” See id. On the other hand, in Branch v. Raiche, 618 F.2d 843 (1st Cir.1980), the First Circuit appeared to assume, without acknowledging the issue raised here, that, even if an offense was of a type included in the schedule, dual criminality would not be satisfied unless a “substantially analogous” counterpart of the foreign offense could be found and was punishable as a felony under law in the United States. See id. at 850-54. Thus, even though all three categories of offenses there under consideration appear to have fit within at least one of two scheduled categories— “[obtaining property ... by false pretenses” (category number 17) or “[a]n offense relating to counterfeiting or forgery” (category number 22), see Treaty, 28 U.S.T. at 235— the Branch court proceeded to determine whether the charged offenses existed and were felonies in the United States. See 618 F.2d at 850-54. Indeed, although the court did not have to reach the issue, it took the dual criminality analysis even further in concluding that the conduct alleged in the third category of charges did not even state an offense under England’s Theft Act of 1968, notwithstanding that an indictment had been returned in England charging the accused with ten violations of that statute. See id. at 847, 853-54. At first glance, the issue of whether an offense that fits within a scheduled category is extraditable per se may seem entirely academic. Under any reading of the Treaty, the judicial officer must still determine whether the evidence of criminality would suffice to hold the accused for trial if the alleged offense had been committed in the United States. The first step in any such probable cause determination is necessarily the identification of a law in the United States that would have been violated if the accused had engaged in the charged conduct in this country. Thus, it might initially appear that the separate probable cause inquiry will always subsume the dual criminality analysis. This will not necessarily always be the case, however. In the first place, a scheduled offense might conceivably be a misdemeanor under the only United States law on point. If that were the case, and if the offense nevertheless fell into a scheduled category, the accused would be extraditable if (a) there were probable cause that he or she had engaged in conduct that constituted the offense and (b) scheduled offenses were extraditable per se. On the other hand, the accused would not be extraditable on the same facts if scheduled offenses were not extraditable per se, because the charged conduct would not have been a felony under United States law. Second, as will be discussed below, it is not clear that the probable cause analysis ever mandates that the judicial officer in the United States inquire or analyze whether the charged conduct, assuming that it occurred, would constitute a violation of foreign law. If it does not, and if the dual criminality requirement does not independently mandate that a specific foreign law be identified by the judicial officer in the United States as having been violated where the offense charged is of the scheduled variety, then it would be possible for a judicial officer to conclude that the accused is extraditable for a scheduled offense without engaging in a detailed analysis to determine whether the charged conduct constitutes an offense under the foreign law. As the foregoing discussion demonstrates, there is some uncertainty about whether clearly scheduled offenses such as “bribery” are extraditable per se, without further consideration of dual criminality. Therefore, notwithstanding that Lui has clearly been charged with a scheduled offense, I will proceed to consider the arguably unnecessary question whether Lui has been charged with conduct that would also constitute a felony under both United States and Hong Kong law. The essence of the charges against Lui is that he conspired to accept and that he actually accepted money and loans in exchange for the use of his influence to cause BAT-HK to allocate its limited supply of cigarettes to the distributors that paid the bribes. In some cases the payments were allegedly solicited and made before Lui was an agent of BAT-HK, with the expectation that one day he would occupy a position of influence; in some cases the payments were allegedly made when Lui was an agent of BAT-HK and had considerable influence over its allocation of cigarettes to distributors; and in some cases the payments, in the form of loans, were made when Lui was no longer an agent of BAT-HK and had no influence over its allocation of cigarettes. In each case in which the payment was made outright, the money, according to the government’s evidence, was ultimately wired to one of Lui’s bank accounts outside Hong Kong. (United States’ Extradition Mem., docket no. 38, at 14-18; United States’ Post-Hr’g Mem., docket no. 76, at 3-4.) The question presented is whether the solicitation and acceptance of payments under each of these three sets of circumstances would be a felony under both United States and Hong Kong law. The requirement that the charged conduct constitute a felony under United States law is satisfied if the charged conduct violates federal law, the law of the asylum state, or the law of the preponderance of the states. See Brauch, 618 F.2d at 851. The government argues that, at least since the enactment of 18 U.S.C. § 1346, effective November 18, 1988, all the outright payments, at least, would violate the federal wire fraud statute, 18 U.S.C. § 1343 (1994), under all three sets of circumstances. (United States’ Post-Hr’g Mem. at 2-4.) I agree. Section 1346 defines “scheme or artifice to defraud,” as that term is used, inter alia, in section 1343, to include “a scheme or artifice to deprive another of the intangible right of honest services.” The wire fraud statute has been interpreted to have a rather broad application. The wire need not be essential to the scheme — it is sufficient if the use of the wire is incidental to the scheme. See United States v. Sawyer, 85 F.3d 713, 723 n. 6 (1st Cir.1996) (citing United States v. Grandmaison, 77 F.3d 555, 566 (1st Cir.1996)). It is not required that the wire be used to communicate a fraudulent message. See Schmuck v. United States, 489 U.S. 705, 714-15, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989) (mail fraud): Sawyer, 85 F.3d at 723 (stating that wire and mail fraud statutes contain the same relevant language and thus entail similar analysis). In addition, in contrast to the relevant Massachusetts statute and the Hong Kong ordinance, as discussed below, the applicability of the wire fraud statute does not turn on the existence of an agency or fiduciary relationship. Thus, in the analysis under the wire fraud statute, no consideration need be given to whether an employee who allegedly accepted a bribe in exchange for his or her honest services was on the payroll or had any influence when the bribe was actually paid. Therefore, I have no doubt that the conduct charged in Counts 1 and 3 through 8 would constitute a felony under federal law if it had occurred here. Because the conduct charged in Counts 1 and 3 through 8 would constitute a felony under federal law, there is no need to consider whether the conduct charged in those counts would also constitute a felony under state law. See Brauch, 618 F.2d at 848, 851. Nonetheless, in the interest of completeness and because the government has proffered no evidence regarding the use of the mail or wire in connection with the loans charged in Counts 9 and 10, I will now discuss why the charged conduct would probably violate Massachusetts law in all respects and clearly would with respect to Counts 9 and 10. The Massachusetts statute most directly on point is Mass.Gen.L. ch. 271, § 39(a) (1994), which provides, in pertinent part: Whoever, in relation to any transaction or matter concerning the business affairs of an employer, principal or beneficiary ... (2) as an agent or fiduciary, solicits, accepts or agrees to accept any benefit or anything of value from another person who is not an employee, principal, or beneficiary upon an agreement or understanding that such benefit or thing of value will influence his conduct, shall be punished by imprisonment in the state prison for not more than five years.... Undoubtedly the crime set forth in section 39(a) is a felony, and the conduct of which Lui is accused in Counts 1 (conspiracy) and 7 and 8 (accepting bribes while he was BAT-HK’s Director of Exports to use his influence in that position to cause BAT-HK to provide the payor with a favorable allocation of cigarettes) constitutes a violation of section 39(a). Similarly, a crime would indisputably have been committed under section 39(a) if, as charged in Counts 9 and 10, an employee, while still employed by an employer, agreed to accept a future bribe, to be paid after the employee’s employment had terminated, in exchange for the employee’s exercise of favorable influence while still an employee. This leaves for consideration the crimes charged in Counts 3 through 6. Counts 3 through 6 are the remaining anticipatory bribe charges, which accuse Lui of accepting bribes before he became BAT-HK’s Director of Exports. The government’s theory is that these payments were made in anticipation that Lui would eventually ascend to a position within BAT-HK where he would be able to exercise influence in favor of GIL and its affiliates. (United States’ Extradition Mem. at 8, 11, 25-26: United States’ Post-Hr’g Mem. at 8, 30, 36.) The crucial question that this theory raises is whether section 39(a) would apply to the acceptance of a bribe by a possible candidate for a position as agent, where the bribe was for favors that the recipient agreed to provide if he or she was later in a position to do so. Although there appears to be no Massachusetts ease directly on point. I believe section 39(a) would apply in that situation, at least where the expectation proved to be well-founded and the recipient delivered the promised benefits when the opportunity to do so presented itself. My reasoning is perhaps best explained by a simple hypothetical. Assume that Prospective Employee (“PE”) of Company C (“C”) says something along the following lines to Prospective Supplier (“PS”): “Although I am not presently employed by C, I have applied for the job of director of purchasing for C and am one of two finalists for the position. If I obtain the position, I will be able to ensure that C purchases large quantities of raw materials from PS. In exchange for my directing this business to you, I want you to pay me $1 million. You must pay me the $1 million before I get the job, since it will be illegal for me to accept a bribe once I become a C employee. If I do not get the job, I will return the payment.” PS agrees and pays the $1 million to PE; PE subsequently obtains the job, steers lucrative purchase contracts to PS, and keeps the payment. I believe that PE has violated section 39(a) under any of at least three theories: (1) the payment was an advance until PE obtained the job and thus his ability to carry out his end of the bargain, at which point — and not before — acceptance within the meaning of section 39(a) initially occurred; (2) even if PE “accepted” the $1 million before PE was hired by C, it was not until after PE obtained the job that he could and did “accept” “as an agent” by retaining the payment while an agent; and (3) regardless of when acceptance occurred, there was a continuing agreement by PE to accept the payment in exchange for his influence, which agreement extended into the post-hiring period. I further believe that the same analysis would apply even if PE had made it dear to PS that PE would keep the $1 million whether he obtained the job or not. In that case, if it turned out that PE did get the job, his right to retain the payment would still be contingent upon the fulfillment of his promise to steer contracts to PS. In that sense, at least, PE’s acceptance would not finally occur and his agreement would be a continuing one until he had fulfilled his end of the bargain. Therefore, although the question is not entirely free from doubt, it is sufficiently likely that the conduct charged in the anticipatory bribe counts comes within the reach of section 39(a) to satisfy dual criminality. See Brauch, 618 F.2d at 853 (“While neither party has cited New Hampshire ease law that allows us to predict with certainty whether [the charged conduct] would constitute felonious forgery under [New Hampshire] R.S.A. 638:1, we are satisfied that the appellant’s conduct is sufficiently within the scope of that statute to meet the double criminality requirement.”). I shall now proceed to analyze the charges under Hong Kong law. Section 9 (together with section 12) makes it a felony for an “agent” to “accept[ ] any advantage” in exchange for the agent’s influence “in relation to his principal’s affairs or business.” It appears that the analysis under section 9 is substantially analogous to the analysis under section 39(a). To the extent that Lui might have accepted bribes while he was BAT-HK’s Director of Exports, his conduct would clearly have been illegal. To the extent that he might have accepted bribes (in the form of loans) after he left BAT-HK pursuant to an earlier agreement made while he was still BAT-HK’s Director of Exports, his conduct would also have been illegal. That leaves for consideration the more difficult question whether section 9 proscribes bribes that Lui allegedly accepted before he became an agent of BAT-HK but in anticipation that he would become one in the near future. Before I attempt to answer that question, it should be noted that, by the time that any extradition request reaches the court in the United States, a judicial officer in the requesting country has already made at least a preliminary determination that the charged conduct is illegal in the requesting country. This suggests the following threshold question: what standard of review should the judicial officer in the United States apply to the foreign judicial officer’s determination that foreign law proscribes the charged conduct? Unfortunately ease law provides little, if any, guidance on this question. At one extreme, the determination by the foreign judicial officer might be viewed as dispositive. This interpretation would be untenable, however, since the Treaty, at least in cases involving nonscheduled offenses, imposes a duty on the requested party’s judicial officer to determine whether the facts disclose an offense that is punishable under the law of both parties as a felony. See Treaty, Art. Ill, 28 U.S.T. at 229-30. This requirement would be meaningless if the determination by the foreign judicial officer were dispositive. At the other extreme, review should probably not be de novo, since comity, if not common sense, suggests that the foreign judicial officer should be presumed to be more knowledgeable than the judicial officer in the United States about the foreign law. This suggests the following intermediate standard of review: where the foreign statute can reasonably be interpreted in more than one way, the judicial officer in the United States should defer to any reasonable interpretation by the foreign judicial officer, even if the former, considering the matter de novo, might have interpreted the statute differently. Applying this intermediate standard of review, I concur with Magistrate Candy’s conclusion that the charged conduct, including Lui’s acceptance of alleged bribes paid in anticipation of his becoming an influential official at BAT-HK, constitutes an offense under section 9. Indeed, on the basis of the same considerations that led me to conclude that such conduct would constitute an offense under section 39(a), I would reach the same conclusion even if I were applying a de novo standard of review to Magistrate Candy’s determination. Where a person accepts a bribe in anticipation of his or her obtaining influence that he or she agrees to exercise for the payor’s benefit if and when he or she obtains it, the agreement, by its nature, is a continuing one. If the recipient later acquires the influence and exercises it pursuant to the agreement, then, at least in that case, the agreement has in fact continued into the period of agency. It is this continuing agreement by an agent that is made illegal by sections 2(2)(c) and 9(l)(a) of Hong Kong’s Prevention of Bribery Ordinance, as well as by section 39(a). Before I leave the subject of dual criminality to discuss probable cause, I note that the government here is arguing two alternative theories of liability under section 9 with respect to the charged conduct that allegedly took place before Lui became BAT-HK’s Director of Exports. The government’s first theory is that Lui’s acceptance of an advantage then was illegal because, at the time of acceptance, he was an agent of B & W, a supplier to BAT-HK, and he knew that his agreement, if carried out, would necessarily have an incidental effect on his principal, i.e., B & W. This knowledge of incidental effect, according to the government, satisfies the requirement that the agreement be made by an agent in relation to the business or affairs of his principal. I do not believe that section 9 can plausibly be read to support the government’s incidental effects theory. Under the government’s theory, the law would be violated whenever an agent accepts a payment for conduct that is foreseeably detrimental to the principal’s interest. For example, section 9 would be violated under the government’s theory if an employee accepted a payment from his or her employer’s competitor to induce the employee to resign his or her position and come to work for the competitor. This cannot be; the statute is clearly intended to deal only with payments made for the purpose of influencing an agent’s conduct with respect to the discharge of duties entrusted to him or her by the principal. I thus reject the government’s argument that section 9 was violated because Lui, while an employee of B & W, accepted bribes to influence his conduct as a future employee of BAT-HK in ways that would foreseeably have an adverse effect on B & W. The government’s second alternative theory of liability is that Lui became an agent of BAT-HK within the meaning of section 9 at least as early as June 1990, when he was “seconded” to BAT-HK, some eighteen months before he became BAT-HK’s Director of Exports. This alternative theory of liability is conceptually valid, but, for the reasons discussed in the next section, there is insufficient evidence to support it. B. Probable Cause As noted, 18 U.S.C. § 3184 directs the judicial officer to hear and consider “the evidence of criminality” to determine whether it is “sufficient to sustain the charge under the provisions of the proper treaty.” The Treaty, in turn, provides in Article IX that “[e]xtradition shall be granted only if the evidence be found sufficient according to the law of the requested Party ... to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party.” See 28 U.S.T. at 232. When extradition is sought from the United States, the judicial officer is therefore required to determine whether the evidence at the extradition hearing would be sufficient under United States law to commit the accused for trial if his or her alleged offense had been committed here. This raises two preliminary questions. First, may the judicial officer consider evidence that would be inadmissible under the laws of evidence of the requesting party? This question is potentially material because Lui claims that courts in Hong Kong have already held that two smoking-gun-type witness statements proffered by the government are inadmissible under Hong Kong law. The second question is whether the Treaty should be construed to require the judicial officer in the requested state to make a probable cause determination only with reference to the substantive law of the requested state. This question is potentially material because, with respect to Counts 3 through 6, the issue of probable cause is somewhat more complex with reference to Hong Kong’s section 9 than it is with reference to the federal wire fraud statute. Because I ultimately find that, even without consideration of the disputed witness statements, there is probable cause that Lui violated both United States and Hong Kong law as charged in Counts 1 and 3 through 10, neither issue has any impact on my decision. I nevertheless consider both issues as a precaution, in the event that a reviewing court disagrees with my conclusion that neither has any bearing on the outcome. I initially expressed my view regarding the evidentiary issue during the portions of the hearings on May 28 and May 29 when I addressed Lui’s motion in limine with respect to Chui’s statement. (Tr. of 5/28/96 at 68, 71; Tr. of 5/29/96 at 40-41.) My view has not changed, A judicial officer in the United States is not required to apply the requesting jurisdiction’s law of evidence in an extradition hearing. It follows that a ruling by a Hong Kong court that certain evidence would be inadmissible in Hong Kong is not binding at an extradition hearing in the United States. This conclusion is supported by the plain language of Article IX, by Article VII, by statute, and by ease law. The plain language of Article IX directs that extradition is not to be granted unless “the evidence be found sufficient according to the law of the requested Party ... to justify the committal for trial” of the relator. See 28 U.S.T. at 232. This is a clear direction to the judicial officer to apply the same evidentiary standards in making a probable cause determination in the extradition context that he or she applies when making a probable cause determination in a purely domestic context. Conversely, if the drafters had intended that the judicial officer consider only evidence that would be admissible under the law of the requesting party, they could easily have added a qualifying phrase after the word “evidence,” such as “that would be admissible under the requesting Party’s law.” Article VII buttresses this conclusion. After providing in VII(3) that the requesting party must proffer evidence of probable cause that would be sufficient to justify committal for trial under the requested party’s law, the Treaty provides in VII(5) that any evidence given on oath or affirmed “shall be received in evidence in any proceedings for extradition” if it is duly authenticated. See id. at 231-32. There is no additional requirement that the evidence be admissible in the requesting jurisdiction. This is consistent with 18 U.S.C. § 3190, which also provides that documents offered in evidence at an extradition hearing “shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes” by the foreign tribunal. Although the language of the statute could be clearer, courts in various circuits have consistently held that section 3190 does not require that the evidence be admissible in the foreign tribunal — only that it meet any authentication requirement imposed by the foreign tribunal as a condition to admissibility. See Oen, 858 F.2d at 1406; Emami v. United States Dist. Court, 834 F.2d 1444, 1451 (9th Cir.1987); O’Brien v. Rozman, 554 F.2d 780, 782-83 (6th Cir.1977); Esposito v. Adams, 700 F.Supp. 1470, 1475 n. 6, 1476 (N.D.Ill.1988); In re Extradition of Tang Yee-Chun, 674 F.Supp. 1058, 1061-62 (S.D.N.Y.1987); United States v. Galanis, 429 F.Supp. 1215, 1226-29 (D.Conn.) (Newman, J.) (discussing section 3190 and striking all testimony regarding admissibility in requesting country of exhibits in extradition hearing), habeas corpus granted by Galanis v. Pallanck, 568 F.2d 234, 240 (2d Cir.1977). Lui does not dispute the authenticity of the evidence proffered by the government. For example, he does not deny that the statement purportedly signed by Chui is in fact a statement signed by Chui. Nor does he dispute that the method of authentication met the express technical requirements of the Treaty and 18 U.S.C. § 3190. In fact, he does not even appear to deny that, in the ordinary case, the judicial officer is not expected to undertake the daunting task of analyzing and applying foreign rules of evidence. What he does argue is that there is no reason to apply the ordinary rule here, because the Hong Kong courts have already determined that the contested evidence is inadmissible for all purposes in Hong Kong. Indeed, he goes even further and argues that it would be a “rude shock” and “a slap in the face of the Hong Kong judiciary” to consider in these proceedings evidence that has already been ruled inadmissible in Hong Kong. (Lui’s Post-Hr’g Mem. on Probable Cause at 8-9 n. 4.) Lui’s argument is based on at least two false premises. The first is that it is the responsibility of the judicial officer in the probable cause phase of an extradition proceeding to assess the probability that the requesting state will be able to secure a conviction of the accused. It is not. The Supplementary Treaty states that “[p]roba-ble cause means ... there is sufficient evidence to warrant a man of reasonable caution in the belief that ... an offense has been committed by the accused.” See Art. 2, T.I.A.S. No. 12050, at 7. The likelihood that the requesting state will be able to obtain a conviction, given its internal rules of evidence and procedure, is of no concern to the judicial officer in the requested state. Nor should it be, where the Treaty does not require it, where comity would frown upon it, and where the judicial officer cannot be expected to be sufficiently familiar with the adjudicatory process in the requesting state to make an informed prediction regarding the likelihood of a conviction. The second false premise of Lui’s argument is that principles of issue preclusion apply here. They do not, if for no other reason than that the issue decided by the court in the requesting country (whether, under the requesting country’s rules of evidence, the evidence would be admissible in a judicial proceeding in the requesting country) is different from the issue to be decided by the extradition court (whether, under the requested country’s rules of evidence, the evidence would be admissible in a probable cause hearing in the requested country). There are other problems with Lui’s assertion that the extradition court must defer to a foreign court’s judgment with respect to the admissibility of evidence. It is not clear, for example, that the judgments by the Hong Kong courts on which Lui relies are final. Indeed, in one sense, Lui’s proposed rule would relieve the judicial officer from the burden of having to master foreign rules of evidence in exchange for his or her having to become expert with respect to the foreign law regarding the preclusive effect of judgments. Another problem is that, under Lui’s approach, the law that would apply in the United States extradition proceeding would vary from ease to case, depending on whether a foreign judicial officer was disposed to issue a declaratory judgment with respect to whatever evidentiary issue had been presented to him or her. Finally, there is no exception in the Treaty or in 18 U.S.C. § 3190 for evidence that the requesting country has already declared to be inadmissible. For all these reasons, Lui is mistaken in his belief that a decision by a foreign judicial officer regarding the admissibility of evidence in foreign judicial proceedings is controlling in United States extradition proceedings. The second preliminary question is whether the judicial officer in the requested country must determine whether probable cause exists to believe that the accused violated the substantive law of the requesting country. The Treaty requires that each extradition request be accompanied by a statement of the facts constituting the offense for which extradition is sought and “the text, if any, of the law” defining that offense, prescribing the maximum penalty, and stating the statute of limitations. See Treaty, Art. VII(2)(b) & (e), 28 U.S.T. at 231. As noted, however, Article IX directs the judicial officer in the requested country to determine the sufficiency of the evidence “according to the law of the requested Party ... to justify the committal for trial ... if the offense ... had been committed in the territory of the requested Party.” See id. at 232. It would be sufficient to commit an accused for trial on the basis of an offense allegedly committed in United States territory if there were probable cause to believe that the accused has violated domestic law. See, e.g., Fed. R.Crim.P. 5.1. Therefore, the Treaty does not require the extradition judge to consider the sufficiency of the evidence of wrongdoing with reference to foreign substantive law. Applying this standard, I find that, with or without consideration of the disputed evidence, there is probable cause that would justify Lui’s committal for trial under the federal wire fraud statute as to the charges made in Counts 1 and 3 through 8 and also under section 39(a) as to the charges made in Counts 1 and 3 through 10. Indeed, as noted, if it were necessary for me to make a finding of probable' cause with reference to section 9, I would find that there is probable cause to commit Lui for trial on Counts 1 and 3 through 10 for all the reasons that I found probable cause with reference to section 39(a). The evidence whose admissibility Lui most strenuously contests consists of a statement that Chui gave in Singapore to Hong Kong investigators in July 1994, and the testimony in Hong Kong of Haddon-Cave as to what Chui told him about Lui’s acceptance of bribes. (Lui’s Postr-Hr’g Mem. on Probable Cause at 1-15; Lui’s Post-Hr’g Reply Br. on Probable Cause at 1-13.) By way of background, Chui was one of the principals of GIL until September 1993. In his statement, Chui implicated himself, other principals of GIL, and Lui in a massive scheme to bribe Lui, and others, including Lui’s predecessors and assistants, to secure favorable allocations of cigarettes from BAT-HK. According to Chui, GIL began paying bribes to Lui when Lui and GIL’s principals first anticipated that Lui might eventually become an important BAT-HK decision-maker. Chui was murdered in Singapore nine months after he gave his statement and, for this reason, will be unavailable to testify. A justice of the Supreme Court of Hong Kong has entered a judgment on Lui’s application declaring that the Chui statement constitutes inadmissible hearsay and would not be admissible in any proceeding in Hong Kong as evidence of Lui’s criminality. (Filed as ex. at 5/29/96 hr’g.) Haddon-Cave testified in Hong Kong in October 1995 at a hearing to determine the sufficiency of the evidence to commit one of Lui’s alleged co-conspirators, Chong Tsoi-jun (“Chong”), for trial on a charge of conspiracy to offer advantages to Lui in violation of section 9. (United States’ exs. vol. 2, ex. KPZ-7 to Affirmation of Kevin Paul Zervos.) Chong was alleged to be a principal of GIL and one of the persons who controlled the disbursement of funds to Lui. Haddon-Cave testified, in substance, that he was hired by Chui to work as a consultant for GIL and in October 1992 began working there. (Id. at 93.) One of his job responsibilities was to foster relationships between GIL and its major suppliers, including BAT-HK. (Id.) Haddon-Cave testified that, soon after Chui hired him, Chui told him, in Lui’s presence, that Lui was “ ‘our man’ and an important link with Giant Island,” and that, a couple of months later, Chui t