In re Extradition of Garcia

• Decision Date: 28 April 2009
• Docket Number: No. 09 Crim. Misc. 01.,09 Crim. Misc. 01.
• Citation: 615 F.Supp.2d 162
• Parties: In the Matter of the EXTRADITION OF Timothy Mark Depakakibo GARCIA.
• Court: U.S. District Court — Southern District of New York

615 F.Supp.2d 162

In the Matter of the EXTRADITION OF Timothy Mark Depakakibo GARCIA.

No. 09 Crim. Misc. 01.

United States District Court, S.D. New York.

April 28, 2009.

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MEMORANDUM DECISION AND ORDER

FRANK MAAS, United States Magistrate Judge.

On March 5, 2009, relator Timothy Mark Depakakibo Garcia ("Garcia") was provisionally arrested pursuant to Article 9 of the extradition treaty between the United States and the Republic of the Philippines ("Philippines" or "Republic"), Extradition Treaty, U.S.-Phil., art. 9, Nov. 13, 1994, U.N.T.S. 34127 ("Treaty"). Garcia currently is detained at the Metropolitan Detention Center ("MDC"), but seeks to be released on bail pending an anticipated formal request from the Philippines for his extradition. He contends that "myriad special circumstances" support his release and that his continued detention is unlawful because there was no "urgency" under Article 9 of the Treaty to support his provisional arrest. (See letter to the Court from James Kousouros, Esq. ("Mr.Kousouros"), dated Mar. 7, 2009 ("Kousouros Letter I"), at 4, 6). For the reasons set forth below, I conclude that Garcia's request for bail must be denied.

I. Background

Garcia was born on August 20, 1983, in Quezon City, Philippines, and resided there until 1986, from 1989 to 1993, and from 1996 to 2003. (Id. at 11-12). In the intervening years, Garcia and his family lived in Westerville, Ohio, and Monterey, California, while his father, Major General Carlos Garcia ("General Garcia"), a Philippines official, underwent training and was stationed at military bases. (Id. at 3, 11). After returning to the Philippines in 1996, Garcia completed high school and college; he then returned to the United States in 2003. (Id. at 12).

Garcia is a United States citizen and currently resides in New York City in a condominium apartment that he and his mother jointly purchased in 2004. (Id. at 4, 12). That same year, the United States instituted a lawsuit in this District seeking the forfeiture of Garcia's and his mother's interest in that apartment on the theory that it constituted the proceeds of money laundering. United States v. All Right, Title and Interest in Real Property and Appurtenances Located at Trump Park Avenue Condominium, Unit 6A, 04 Civ. 8918(RJH) (Docket No. 1) (Complaint). In that action, the parties subsequently agreed to a standstill arrangement, pursuant to which Garcia was granted the right to reside in the apartment subject to certain conditions until further order of the Court. Id. (Docket No. 14) (Occupancy Stipulation and Order). It appears undisputed that he continued to live there until the date of his arrest.

On February 28, 2006, a judge in Quezon City issued an Order of Arrest for Garcia based on an information which charged that members of his family and others unknown had committed the crime of Plunder in violation of Republic Act No. 7080, as amended. (Kousouros Letter I at 3; letter to the Court from Ass't U.S. Att'y Daniel P. Chung ("AUSA Chung"), dated Mar. 11, 2009 ("Chung Letter"), Ex. A). In the information, the Acting Deputy Special Prosecutor in Quezon City charged that from 1993 through late 2004, General Garcia and his family had received in excess of 300 million pesos (approximately 6 million dollars) from government contractors and others in the form of kickbacks and similar payments, the existence of which was concealed from the Republic. (See Chung Letter at 2 & Ex. A). The Republic contends that Garcia and his mother received some of these funds via wire transfer to their bank accounts at Citibank and used them to acquire the New York City apartment. (Id. at 2, 4).

Three years after the Order of Arrest was issued, the Philippines Government sent the United States Department of Justice a letter, dated February 27, 2009, requesting the provisional arrest of Garcia, his brothers, and his mother, "with view toward extradition." (Id. Ex. B at 1).¹ On March 5, 2009, Magistrate Judge Katz signed a warrant authorizing the provisional arrest of Garcia. (Kousouros Letter I Ex. A). Garcia was arrested the same day; he subsequently was detained on consent pending the submission of a bail application. (Chung Letter at 2).

Garcia appeared before me on March 12, 2009, for a bail hearing. The hearing was attended by Garcia's "aunts, uncles, [and] cousins" as well as a neighbor who was willing to sign a bond to secure his release. (Mar. 12, 2009, Tr. ("Tr.") at 19). At the conclusion of the hearing, I reserved judgment regarding Garcia's application for bail. Thereafter, on March 13, 2009, the Government submitted an additional letter with respect to the issue of "urgency" raised at the hearing. Garcia submitted responsive papers dated March 16, 2009. Both sides also have sent me additional letters concerning conditions at the MDC.

II. Discussion

A. Applicable Law

Article 9 of the Treaty provides that, "[i]n case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition." Treaty, art. 9, ¶ 1 (emphasis added). Article 9 further provides that a person who has been provisionally arrested "may" be discharged from custody after sixty days if a formal request for extradition has not been received. Id. ¶ 4.

In extradition cases, there is a presumption that bail should not be granted absent "special circumstances." See Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903); United States v. Leitner, 784 F.2d 159, 160 (2d Cir.1986) (per curiam). Such special circumstances are found "only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory." Leitner, 784 F.2d at 160 (quoting In re Mitchell, 171 F. 289, 289 (S.D.N.Y.1909)). The rationale for the presumption against bail is the United States Government's overriding interest in complying with its treaty obligations. Matter of Extradition of Ernst, No. 97 Crim. Misc. 1 pg. 22, 1998 WL 51130, at * 13 (S.D.N.Y. Feb.5, 1998). As the Supreme Court has explained, if a relator were released on bail and thereafter absconded, the United States might be subjected to "serious embarrassment" in its international relations. Wright, 190 U.S. at 62, 23 S.Ct. 781.

B. Special Circumstances

Garcia asserts that several special circumstances warrant his release on bail. He argues that: (1) the Philippines failed to provide the substantiation that would be required to seek his arrest under Rule 4 of the Federal Rules of Criminal Procedure ("Rule 4"), and his continued detention therefore violates his Eighth Amendment rights (see Kousouros Letter I at 5-6); (2) the complexity of the charge against him suggests that the extradition proceedings will be lengthy (id. at 9); (3) his "claims" have a high probability of success on the merits (id. at 10-11); (4) there is no diplomatic necessity for his detention (id. at 10-11); (5) his personal history and lack of any criminal record augur in favor of his release (id. at 12); and (6) he risks physical abuse while in federal custody (See letter to the Court from Mr. Kousouros, dated Mar. 16, 2009 ("Kousouros Letter II"), at 5).

1. Substantiation

Garcia first contends that the sealed complaint submitted to Judge Katz by AUSA Chung did not provide information sufficient to justify the issuance of a provisional warrant. (Kousouros Letter I at 5-6).

Article 9 enumerates the items that must be included in an application for provisional arrest under the Treaty, which are:

(a) a description of the person sought;

(b) the location of the person sought, if known; (c) a brief statement of the facts of the case, including, if possible, the time and location of the offense; (d) a description of the laws violated; (e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and (f) a statement that a request for extradition for the person sought will follow.

Treaty, art. 9, ¶ 2. Here, the Philippines' letter requesting Garcia's provisional arrest addressed each of these required items. (See Chung Letter at 5 & Ex. B). The Government's subsequent complaint seeking an arrest warrant under 18 U.S.C. § 3184 similarly fulfilled the Treaty requirements. (See Kousouros Letter I at Ex. A).

Garcia relies on Caltagirone v. Grant, 629 F.2d 739 (2d Cir.1980), as the basis for his Rule 4 evidentiary insufficiency claim. In Caltagirone, the Government sought the provisional arrest of a relator under an extradition treaty between the United States and Italy which stated that applications for provisional arrest must set forth "such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed ... in the territory of the requested Party." Id. at 744. Construing this language and that of the treaty article concerning formal extradition, the Second Circuit concluded that "in all cases where the United States is the `requested Party[,]' a showing of probable cause is required." Id. at 745. The standard under both the article governing provisional arrest and that concerning formal extradition requests thus was the same as under Rule 4, which directs judges to issue an arrest warrant in a domestic case when the complaint establishes "probable cause to believe that an offense has been committed and that the defendant committed it." Rule 4(a).

Unlike the Italian treaty, however, the Treaty here contains no language requiring that a request for provisional arrest be sufficiently detailed to support the issuance of an arrest warrant in a case initiated in the requested state. See Caltagirone, 629 F.2d at 746 (noting that the provisional arrest language of United States extradition treaties falls into "two groups," only one of which requires that the requesting party supply additional information supporting its request that...