Beaulieu v. Hartigan, Civ. A. No. 77-639-T.

• Decision Date: 14 March 1977
• Docket Number: Civ. A. No. 77-639-T.
• Parties: Thomas BEAULIEU v. James HARTIGAN.
• Court: U.S. District Court — District of Massachusetts

430 F. Supp. 915

Thomas BEAULIEU v. James HARTIGAN.

Civ. A. No. 77-639-T.

United States District Court, D. Massachusetts.

March 14, 1977.

Alan R. Hoffman, Kaplan, Latti & Flannery, Boston, Mass., for plaintiff.

William Brown, Asst. U.S. Atty., Boston, Mass., for defendant.

MEMORANDUM

TAURO, District Judge.

By order dated March 9, 1977, the Court of Appeals reversed without prejudice my granting of bail on March 4, and invited me to reconsider the issue of bail in light of the further hearings in this case. Upon further reflection and consideration, I again granted bail to petitioner by order dated March 9, 1977.¹

Certainly, the ordinary presumption in favor of granting of bail is modified when a person faces a warrant of extradition. Wright v. Henkel, 190 U.S. 40, 62-63, 23 S.Ct. 781, 47 L.Ed. 948 (1903); compare 18 U.S.C. § 3146, 18 U.S.C. § 3184. It is equally certain that it is within the power of the district court to grant bail to a person facing extradition proceedings. Wright v. Henkel, supra; In re Mitchell, 171 F. 289 (S.D.N.Y.1909). When first faced directly with this question in 1903, the Supreme Court in Wright stated that the lower courts could grant bail in the face of "special circumstances." Id. In that case, the Court found that the petitioner's presentation of an affidavit that he was suffering from "bronchitis" and "chills" did not constitute sufficiently unusual circumstances to justify reversing the lower court's denial of bail.

In the first reported opinion addressing bail in an extradition proceeding after Wright v. Henkel, Judge Learned Hand, then a district judge, granted bail to the petitioner, despite his admonition that it should be granted "only in the most pressing circumstances and when the requirements of justice are absolutely preemptory." In re Mitchell, 171 F. 289, 290 (S.D.N. Y.1909). The petitioner in Mitchell was arrested on a warrant from Canada for larceny the day before a civil trial was to commence in which he was a plaintiff. Judge Hand found that a denial of bail would prejudice petitioner's ability to consult with counsel in the civil suit. He released him on bail pending completion of the lawsuit.

In the two decades following Mitchell, three courts faced the question of bail in extradition proceedings. Two involved petitions by foreign nationals in which bail was denied by the district court. In re Klein, 46 F.2d 85 (S.D.N.Y.1930); U.S. ex rel. McNamara v. Henkel, 46 F.2d 84 (S.D. N.Y.1912). In the third, bail was granted. In re Gannon, 27 F.2d 362 (E.D.Pa.1928). There, the court found bail appropriate stating,

should the prisoner default, he will not only forfeit the penal sum of his bond, but will inflict upon himself a punishment many times heavier than any which would follow conviction for the offense with which he is charged, for he must thereafter elude the vigilance of the officers of each and both of two governments whose resources are practically unlimited. Against the small risk of default there is the injustice of imposing imprisonment in advance of a hearing which must be delayed for some time.

Id. at 364.

In the more contemporary reported cases, granting of bail pending completion of the extradition proceedings has been the rule rather than the exception.²

In the one exception, a court refused to grant bail to a recently deposed President of Venezuela who was sought by his homeland on charges of murder and financial wrongdoing. Jimenez v. Aristequieta, 311 F.2d 547 (5th Cir. 1962); cert. den. 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1962), reh. den. 374 U.S. 858, 83 S.Ct. 1867, 10 L.Ed.2d 1083 (1962), aff'g further order of district court, 314 F.2d 649 (5th Cir. 1963). In upholding the district court's refusal to grant bail, the court noted that it was taking into account all relevant facts and circumstances, as well as the lower court's finding that it could not ensure petitioner's presence by the setting of bail. 314 F.2d at 652-3. Surely, the granting of bail to a political refugee and ex-president sought by his own country raises more delicate questions of international comity than are present in the more typical extradition case, such as the one at bar. A further distinguishing feature is, of course, the fact that in Aristequieta, the district court exercised its discretion against granting bail.

In none of the cases dealing with the issue of bail in an extradition setting was a district judge who granted bail subsequently reversed by a reviewing court. Analysis of these cases leads me to the conclusion that the "special circumstances" doctrine of Wright, though still viable, must be viewed, in the light of modern concepts of fundamental fairness, as providing a district judge with flexibility and discretion in considering whether bail should be granted in these extradition cases. The standard of scrutiny and concern exercised by a district judge in an extradition case should be greater than in the typical bail situation, given the delicate nature of international relations. But one of the basic questions facing a district judge in either situation is whether, under all the circumstances, the petitioner is likely to return to court when directed to do so. 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.

After examining the totality of the circumstances, set forth in my memorandum of March 8, 1977, (Appendix C), I am persuaded that the petitioner is a good bail risk.

APPENDIX A

APPENDIX B

APPENDIX C

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

THOMAS P. BEAULIEU * * * v. * CA 77-639-T * * JAMES I. HARTIGAN *

MEMORANDUM

TAURO, D.J. March 8, 1977

This memorandum is in response to the Court of Appeals order dated March 3, 1977.

I did not "release appellant on personal recognizance pending resolution of the extradition proceedings" (March 7, 1977 Order of Court of Appeals). I released him on Friday evening, March 3 at 5:00 p. m. until Wednesday, March 9 at 3:00 p. m., at which time I was to have received further findings of fact from the Magistrate with respect to the identification of the petitioner Beaulieu.

All that was before me on Friday afternoon, and all that will be before me on Wednesday, was petitioner's application for a temporary restraining order. If the Magistrate's findings of fact indicate that he was properly identified, then the issue of further bail will not arise.

The primary issue before the Magistrate was identification. Representations made to me by petitioner's counsel as to the Magistrate's comments from the bench, combined with the conclusory nature of his reported findings, caused me to request additional findings. Of principal concern to me was whether the Canadian police officer had actually listened to only one intercepted telephone conversation. The officer's testimony was in conflict with his affidavit on that point, and I wanted to know the Magistrate's subsidiary finding on that issue. If the...