In re Klein

Decision Date24 November 1930
Citation46 F.2d 85
PartiesIn re KLEIN.
CourtU.S. District Court — Southern District of New York

Max D. Steuer and Ben Herzberg, both of New York City, for Arthur J. Klein.

Edward H. Lockwood and Howard Thayer Kingsbury, both of New York City, for the British Consul General.

CAFFEY, District Judge.

I have conferred with the Commissioner and have listened to counsel for both sides in regard to bail. Under authority by which I am bound and on principle I think the result is the same. It seems to me inescapable.

We are dealing with a national of the demanding country. He seeks bail pending examination. Indisputably he is not entitled to it as of right. Wright v. Henkel, 190 U. S. 40, 23 S. Ct. 781, 47 L. Ed. 948. Undoubtedly also the court has power to grant it. Id. Nevertheless, we have been admonished to exercise the power very sparingly and only when the justification is pressing as well as plain. In re Mitchell (D. C.) 171 F. 289; U. S. ex rel. McNamara v. Henkel (D. C. S. D. N. Y. January 25, 1912), 46 F.(2d) 84, per Hough, J.

Here I see nothing out of the ordinary. Customarily, when removal is resisted, several weeks must intervene after arrest before any European foreign office is prepared to present evidence in support of its application. If, because of the time requisite to get from London proof that is to be offered before the Commissioner, the alleged fugitive were now enlarged on bail, then there should be bail, when asked for, in practically every international extradition case. If such a rule were adopted, not alone would the judges exceed the proper limits of their authority as declared by the highest court, but manifestly they would incur grave risk of frustrating the efforts of the executive branch of the government to fulfill treaty obligations.

The sole additional ground assigned for release during the interim while papers are awaited is the discomfort of the jail in which incarceration must be endured. That, however, is an unavoidable incident. One who voluntarily leaves his home shores for ours is subject alike to the disadvantages and the advantages that ensue from any applicable provision of a treaty between the two states concerned.

Inasmuch as there are no unusual circumstances in the present case, I am clear, therefore, that bail should not be allowed.

It is, and long has been, the practice for commissioners to request advice of the court in the discharge of their duties when faced with a question which they deem important or novel....

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20 cases
  • In the Matter of The Extradition of Heriberto Garcia.
    • United States
    • U.S. District Court — Southern District of Texas
    • 30 Diciembre 2010
    ...to grant bail is “pressing as well as plain,” In re Extradition of Russell, 647 F.Supp. 1044, 1049 (S.D.Tex.1986) (citing In re Klein, 46 F.2d 85, 85 (S.D.N.Y.1930)) and “when the requirements of justice are absolutely peremptory.” Id.; (citing In re Mitchell, 171 F. 289, 289 (S.D.N.Y.1909)......
  • Artukovic v. Boyle
    • United States
    • U.S. District Court — Southern District of California
    • 14 Julio 1952
    ...171 F. 289; Fernandez v. Phillips, 1925, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970; In re Gannon, D.C.1928, 27 F.2d 362; In re Klein, D.C.1930, 46 F.2d 85, the petitioner was enlarged on bail pending the final hearing and decision on the petition for writ of habeas corpus. Although petitione......
  • Matter of Extradition of Nacif-Borge, CV-S-93-453-PMP-(RJJ).
    • United States
    • U.S. District Court — District of Nevada
    • 27 Julio 1993
    ...169 (1st Cir.1991); Extradition of Russell, 647 F.Supp. 1044, 1049 (S.D.Tex.), aff'd, 805 F.2d 1215, 1217 (5th Cir.1986); In re Klein, 46 F.2d 85, 85 (S.D.N.Y.1930). When the Ninth Circuit, in Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989), cited three cases as authority for ex......
  • United States v. (In re Risner)
    • United States
    • U.S. District Court — Northern District of Texas
    • 27 Diciembre 2018
    ...grant bail is 'pressing as well as plain,' In re Extradition of Russell, 647 F. Supp. 1044, 1049 (S.D. Tex. 1986) (citing In re Klein, 46 F.2d 85, 85 (S.D.N.Y. 1930)) and 'when the requirements of justice are absolutely peremptory.' Id. (citing In re Mitchell, 171 F. 289, 289 (S.D.N.Y. 1909......
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