Matter of Extradition of Russell

• Decision Date: 10 July 1986
• Docket Number: C.A. No. H-86-220M.
• Parties: In the Matter of EXTRADITION OF Robert Henry RUSSELL.
• Court: U.S. District Court — Southern District of Texas

647 F. Supp. 1044

In the Matter of EXTRADITION OF Robert Henry RUSSELL.

C.A. No. H-86-220M.

United States District Court, S.D. Texas, Houston Division.

July 10, 1986.

Cedric Joubert, Houston, Tex., for U.S.

Robert J. Sussman, and Edward L. Jensen, Houston, Tex., for defendant.

McDONALD, District Judge.

ORDER

Pending before the Court is the Application for Writ of Habeas Corpus, of Petitioner Robert Henry Russell. Having considered the arguments of the parties and the applicable law, the Court is of the opinion that the Application should be DENIED.

Procedural Background

On May 1, 1986, the United States Attorney for the Southern District of Texas, acting for and on behalf of the Government of the Republic of Colombia, filed a complaint in the case at bar, alleging that Petitioner (a United States citizen) was a fugitive from justice from Colombia, South America; that he had information and belief that Petitioner had been charged with having committed a violation of Article 220 and 356 of the Colombian Penal Code; and requesting that a warrant for Petitioner's arrest issue, under the provisions of 18 U.S.C. § 3184.

On May 1, 1986, Magistrate George A. Kelt, Jr., issued the requested arrest warrant. Petitioner was taken into custody on that day and has since been confined in jail.

On Motion of Petitioner, Magistrate Kelt held a Probable Cause hearing on May 8, 1986, at which he took evidence and ruled that Petitioner did not qualify for bail. The Magistrate further held that, based upon the facts of the case and existing law relating to international extradition cases, Petitioner's continued confinement was justified under the Provisional Detainer provisions of Article 11¹ of the Treaty of Extradition between the United States of America and Colombia, effective March 4, 1982 (hereafter "Treaty"). An extradition hearing at which certification of extraditability is to be considered has not yet been held.

Petitioner makes essentially four arguments: (1) that the Magistrate erred in refusing to grant Petitioner bail, in violation of the 8th Amendment; (2) that Petitioner was confined in violation of the 4th Amendment in that his continued confinement under Article 11 of the Treaty was not based on probable cause; (3) that Petitioner is confined in violation of the 4th and 5th Amendments, and Article 11 of the Treaty, because the Magistrate did require evidence of "urgency" in allowing provisional arrest; (4) that Article 8 of the Treaty pre-empts Article 11, thereby making Petitioner not extraditable, and depriving the Court of jurisdiction over the extradiction request. The United States (hereafter the "Government") in turn suggests that the Court has no jurisdiction to review a petition for habeas corpus concerning a bail determination and a decision to provisionally detain a person made by a Magistrate in an extradition proceeding prior to a formal extradition hearing absent "unusual circumstances," in turn implying that they are absent in the above-captioned matter. The Court will address the jurisdictional argument first, then each of Petitioner's arguments in turn.

Jurisdiction

The Government argues that in a matter in which bail has been denied in an international extradition proceeding pending an extradition hearing the decision to review a petition for habeas corpus should be carefully considered, implying that only where "unusual circumstances" exist should the Court consider a habeas petition. The Government cites as authority Vardy v. United States, 529 F.2d 404 (5th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976), and Jhirad v. Ferrandina, 355 F.Supp. 1155 (S.D.N.Y.1973), rev'd on other grounds, 486 F.2d 442 (2d Cir.1973). Those cases are distinguishable from the matter before this Court.

In both Vardy and Jhirad the Court was faced with a situation in which a habeas petitioner had been placed in custody pending an extradition hearing, which hearing had been delayed an inordinate amount of time due to peculiar circumstances (in Jhirad the Magistrate had died after the petitioner was arrested by warrant on complaint; in Vardy the case had been pending for over two years following petitioner's arrest). The District Court in each case heard a petition for habeas corpus on threshold extraditability jurisdictional issues prior to an extradition hearing, stressing that it did so only because "unusual circumstances" were present, and that deferring habeas review until there was a determination of extraditability was the preferable procedure.

In both cases the issue addressed was extraditability, and involved a situation in which a District Court stepped in to make a ruling prior to a final determination by a Magistrate on that issue, normally a matter left for habeas review following such a determination made on the merits in an extradition hearing. In the matter at hand, by contrast, the Court is asked to review, by habeas petition, final determinations made by a Magistrate following Petitioner's arrest and prior to an extradition hearing, pursuant to a treaty.

In Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903), the United States Supreme Court reviewed a decision by a Circuit Court which had reviewed, by habeas petition, prior to an extradition hearing, a decision by a Magistrate to issue a warrant and to deny bail. The Court stated that:

The writ of habeas corpus cannot perform the office of a writ of error, but the court issuing the writ may inquire into the jurisdiction of the committing magistrate in extradition proceedings ... and it was on the ground of want of jurisdiction that the writ was applied for ... as also on the ground that petitioner should have been admitted to bail. Id. at 57, 23 S.Ct. at 784.

The Court then reviewed the lower Court's decisions without any further comment on their reviewability. Thus, bail determinations made by a Magistrate prior to an extradition hearing are, by inference, reviewable by habeas petition. Courts have, since Wright, and subsequent to Vardy and Jhirad, reviewed bail determinations made by lower courts prior to an extradition hearing without noting that "unusual circumstances" existed such as to warrant that review. See U.S. v. Williams, 611 F.2d 914 (1st Cir.1979); Beaulieu v. Williams, 430 F.Supp. 915 (D.Mass.1977), rev'd. mem 553 F.2d 92 (1st Cir.1977); U.S. v. Messina, 566 F.Supp. 740 (E.D.N.Y. 1983). The Court concludes that habeas review of a bail determination by a Magistrate prior to an extradition hearing is permissible and appropriate and that no showing of "unusual circumstances" need be made.² The plain language of 28 U.S.C. § 2241(c)(3) permits it.

Similarly, the Court concludes that a determination made by a Magistrate that a potential extraditee should be provisionally detained pending receipt of a formal request for extradition and extradition documents, under a provisional detention article in a treaty such as that in the Treaty at issue here, is reviewable prior to an extradition hearing without a necessity of showing the presence of "unusual circumstances." In that situation, the Magistrate has also made a final determination resulting in the potential extraditee being placed in custody, pending an extradition hearing. The United States Constitution governs the manner in which the United States acts to detain a person pending extradition. See Rosado v. Civiletti, 621 F.2d 1179 (2d Cir. 1980) (citing Grin v. Shine, 187 U.S. 181, 23 S.Ct. 98, 47 L.Ed. 130 (1902)). Thus, the guarantees in the Constitution of due process and probable cause for detention apply. Nowhere has it been indicated that aliens and nationals are to be treated differently in this regard. Consequently, such an action by a magistrate is reviewable under the plain language of 28 U.S.C. § 2241(c)(3). See Caltagirone v. Grant, 629 F.2d 739 (2nd Cir.1980), in which the Court reviewed a provisional detention determination on a writ of habeas.

However, the Court agrees with the Government that the scope of habeas review for such determinations is "very narrow." Jhirad, 355 F.Supp. at 1158. Neither party has provided the Court with a case citing the standard of review pertinent to the above determinations, and the Court's own research has found none. The Court considers it appropriate to adapt the standard of review utilized in reviewing extraditability issues. Thus, the Court will only inquire whether the Magistrate had jurisdiction, whether the offense charged was within the Treaty, and whether there were reasonable grounds for the Magistrate's findings ordering no bail, and/or ordering provisional detention under an appropriate treaty provision.³See Wacker, 348 F.2d at 606 and cases cited therein. In terms of a probable cause determination, the Court finds that the Magistrate "should not require evidence to convince himself that the defendant was guilty, but only that he be `furnish(ed) good reason to believe that the crime alleged had been committed by the person charged with having committed it'". Jimenez v. Aristeguieta, 311 F.2d 547, 562 (5th Cir.1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1963), quoting United States v. Burr, 25 Fed Cas. p. 2, 12 No. 14692a (C.C.D.Va.1807); See also Caltagirone, 629 F.2d at 743 (probable cause means a showing that there was reason to believe a crime had been committed in that foreign country, and that defendant had committed it); U.S. v. Messina, 566 F.Supp. 740, 742 (E.D.N.Y.1983). Since the above extraditability standards have been applied in both pre-extradition hearing situations and post-extradition hearing situations,⁴ and the same legal principles apply as to bail determinations in both pre-extradition hearing situations and post-extradition hearing situations,⁵ the Court concludes that the above standards apply to the determinations at issue in the matter at hand.

As a threshold determination, the Court finds that the Magistrate had...