127 F.R.D. 13 (D.Mass. 1989), 88-73-J, In re Extradition of Koskotas

Docket Nº:Magistrate 88-73-J.
Citation:127 F.R.D. 13
Opinion Judge:JOYCE LONDON ALEXANDER, United States Magistrate.
Party Name:In the Matter of the EXTRADITION Of Georgios KOSKOTAS.
Attorney:Victor A. Wild, Asst. U.S. Atty., Dept. of Justice, Boston, Mass., for the Government. Ronald S. Liebman, Patton, Boggs & Blow, Washington, D.C., for defendant.
Case Date:July 13, 1989
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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127 F.R.D. 13 (D.Mass. 1989)

In the Matter of the EXTRADITION Of Georgios KOSKOTAS.

Magistrate No. 88-73-J.

United States District Court, D. Massachusetts.

July 13, 1989

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In international extradition proceeding, alleged fugitive filed renewed motion to grant bail, motions for dismissal, motions for discovery, inspection and letters rogatory, and motion to stay. The District Court, Joyce London Alexander, United States Magistrate, held that: (1) alleged fugitive was not entitled to bail; (2) charged offenses of embezzlement, forgery, and making false statements to obtain temporary travel papers were not within political offense exception in extradition treaty with Greece; (3) motives of the demanding government were irrelevant; (4) charges adequately conformed to elements of offenses listed in the treaty; (5) alleged fugitive was not entitled to broad discovery and letters rogatory; and (6) alleged fugitive was not entitled to stay of extradition proceeding because of a pending appeal by the United States from dismissal of indictment against alleged fugitive on a related proceeding.

Motions denied.

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Victor A. Wild, Asst. U.S. Atty., Dept. of Justice, Boston, Mass., for the Government.

Ronald S. Liebman, Patton, Boggs & Blow, Washington, D.C., for defendant.

ORDER ON KOSKOTAS' MOTION TO STAY PROCEEDINGS # 20, MOTION FOR DISCOVERY # 23, MOTION FOR ISSUANCE OF LETTER ROGATORY # 22, MOTION TO DISMISS # 27, RENEWED MOTION FOR BAIL # 21

JOYCE LONDON ALEXANDER, United States Magistrate.

The above-entitled motions arise from an action concerning the extradition of Georgios V. Koskotas (" Koskotas" ) from the United States of America to the Hellenic Republic of Greece. Koskotas arrived from Brazil at Hanscom Field, New Bedford, Massachusetts, on November 23, 1988. He was met there by FBI agents who remained with him in his hotel room until the following morning. On November 24, 1988, Koskotas was formally arrested and on November 25, 1988, appeared before this Court.

Koskotas is charged with the crimes of Illicit Appropriation (embezzlement) committed against the Bank of Crete as stated in arrest warrant No. 10/7/11/1988, which warrant was duly issued by the Athens Court of First Instance, 8th Special Inquiry Section, Judicial Docket No. A88/3798a, on November 7, 1988 in Athens, Greece. The crime of Illicit Appropriation is in violation of Article 375, §§ 1 and 2, in conjunction with Article 1 of Law 1608/1950 as replaced by Article 4 of Law 1738/87 of the Hellenic Republic of Greece Criminal Code.

On November 14, 1988 the Athens Court issued a second arrest warrant No. 11/14/11-1988, Judicial Docket No. B88/3612a, charging Koskotas with Illicit Appropriation (embezzlement) committed against the Bank of Crete and Forgery Accompanied By Use, all in violation of Articles 1, 26, 27, 45, 94 § 1, 98, 375 §§ 1 and 2, and Article 216 §§ 1 and 3 of the Hellenic Republic of Greece Criminal Code in conjunction with Articles 1 and 2 of Law 1608/1950 as replaced by paragraphs 4 and 5 of Article 4 of Law 1738/87.

On November 25, 1988, this Court issued an Order that Koskotas be detained without bail pending further hearing on extradition pursuant to 18 U.S.C. § 3184.

On December 8, 1988, the Athens Court of Appeal issued an arrest warrant No. 1/1988 Ref. No. 19 for the apprehension of Georgios V. Koskotas charging him with the crime of Forgery and Use of Forged Documents in violation of Article 26 § 1a, 27 § 1, 51, 53 and 216 §§ 1 and 3 of the Hellenic Republic of Greece Criminal Code. The warrant also charges Koskotas with Aggravated Defamation punishable by Articles 26 § 1a, 27 § 1, 51, 53, 94 § 1, and Article 363 in conjunction with Article 362 of the Hellenic Republic of Greece Criminal Code.

On December 8, 1988, the Athens Court of Appeals issued the fourth arrest warrant, No. 2/1988 Ref. No. 20 for the apprehension and extradition of Koskotas. This warrant charges him with Illicit Appropriation in violation of Articles 26 § 1, 27 § 1, 45, 98, 375 §§ 1, 2 of the Hellenic Republic of Greece Criminal Code in conjunction with Articles 263a of the same code and Article 1 § 1 of Law 1608/1950 as replaced with Article 4 § 4 of Law 1738/1987, and

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with Execution of Forged Documents in violation of Articles 26 § 1, 27 § 1, 45, 98 and Article 216 §§ 1 and 3 of the Hellenic Republic of Greece Criminal Code in conjunction with Articles 1 § 1 of Law 1608/1950 and 263a as these latter Articles were replaced with Article 4 §§ 5 and 4 of Law 1738/1987.

Koskotas is also charged in the fourth warrant with the crime of Obtaining by Fraud a False Certificate, to wit a travelling document, from the Greek Embassy, Washington, D.C., all in violation of Articles 5, 6 § 1, 26 § 1a, 27 § 1, 51, 63 and Article 220 § 1, in conjunction with Article 13a of the Hellenic Republic of Greece Criminal Code.

On January 20, 1989, Request for Extradition of Koskotas was filed in this Court. This filing was within the provisions of Article XI of the Extradition Treaty between the United States of America and Greece. Article XI establishes a two calendar-month time limit between the date of the provisional arrest (date of commitment) on November 24, 1988, and the date when the Secretary of State of the United States (via the American Embassy in Greece) received a formal request for extradition of Koskotas. Also, on January 20, 1989, the United States Attorney filed with this Court evidentiary documents in support of his motion for extradition.

After several continuances requested by the parties, on June 16, 1989, this Court held a hearing on the instant motions.

1. RENEWED MOTION TO GRANT BAIL

By the instant motion, Koskotas moves this Court to reconsider its November 29, 1988 Order denying bail, and to grant him bail and release him from prison pending the completion of extradition proceedings. The government opposes the motion.

Koskotas asserts the following " special circumstances" justify the granting of his bail request:

1. his need to assist counsel in preparation for this case;

2. his need to defend himself against pending civil litigation; and

3. his assertion that he presents no significant risk of flight.

Koskotas contends that where these " special circumstances" exist, the presumption against bail should be modified to permit the granting of bail.

In extradition proceedings, " [t]he ordinary technicalities of criminal proceedings are applicable to [extradition] proceedings ... only to a limited extent." Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903). Further, as a fugitive from the justice of another country, Koskotas has a heavy burden to meet in establishing " special circumstances" which must be present to overcome the strong presumption against bail in extradition cases. Beaulieu v. Hartigan, 554 F.2d 1, 1-2 (1st Cir.1977). While " special circumstances" have not been clearly defined, case law has limited the exception to " the most pressing circumstances and when the requirements of justice are absolutely peremptory." United States v. Williams, 611 F.2d 914, 915 (1st Cir.1979) quoting In re Mitchell, 171 F. 289, 290 (S.D.N.Y.1909).

It is clear that one of the basic questions facing the court is whether, under all the circumstances, the petitioner is likely to appear before the Court when required to do so. In Beaulieu v. Hartigan, 430 F.Supp. 915, 917 (D.C.Mass.1977), vacated, 554 F.2d 1 (1st Cir.1977). Judge Tauro stated the nature of the inquiry:

Fundamentally, it is a judgment call by the District Court based on the totality of the circumstances, including the extremely important consideration of this country's treaty agreements with other nations. A district judge should approach the bail situation in an extradition case with an added degree of caution, given the additional factor of an international treaty.

Id. at 917. In fact, because of treaty obligations, admission to bail " should be in practice an unusual and extraordinary thing," United States ex. rel. McNamara v. Henkel, 46 F.2d 84 (S.D.N.Y.1912) and courts should " exercise the power very sparingly and only when the justification is

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pressing as well as plain." In re Klein, 46 F.2d 85 (S.D.N.Y.1930).

As to circumstances a and c, cited by Koskotas as " special circumstances" justifying his release on bail, this Court has previously fully and clearly discussed them in its Order of November 29, 1988, and found them to be unpersuasive. Koskotas' claim that he needs to be released in order for him to assist defense counsel in the preparation of his defense to extradition is not unique. In fact, it could apply to any extraditee awaiting a hearing. Moreover, in its Order of November 29, 1988, this Court also found that Koskotas is a serious risk of flight. Koskotas' renewed motion for bail fails to demonstrate otherwise.

Koskotas seeks to be released on a third ground (b). Koskotas is currently a defendant in a civil suit which was brought in the Southern District of New York. He claims that he must proceed pro se and thus needs to be released so that he may defend himself in that civil suit.1 In support, Koskotas relies on the case of In re Mitchell, supra. In Mitchell, the court released petitioner pending his extradition hearing because he was arrested on the day before his civil trial was to begin and the action was one involving a very large sum of money-petitioner's " whole fortune." Id. at 290.

In the more recent case of In re Extradition of Russell, 647 F.Supp. 1044 (S.D.Tex.1986), aff'd, 805 F.2d 1215 (5th Cir.1986), the Court distinguished Mitchell as follows:

the fact that Petitioner is currently...

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