In the Matter of The Extradition of Heriberto Garcia., Misc. Action No. L–10–027.

Citation761 F.Supp.2d 468
Decision Date30 December 2010
Docket NumberMisc. Action No. L–10–027.
PartiesIn the Matter of the EXTRADITION OF Heriberto GARCIA.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

OPINION TEXT STARTS HERE

Christina Arellano–Villarreal, John Samuel Paul, Federal Public Defender Office of the Federal Public Defender, Laredo, TX, for Heriberto Garcia.

MEMORANDUM AND ORDER

J. SCOTT HACKER, United States Magistrate Judge.

Pending before the Court is Heriberto Garcia's (“Garcia”) Motion for Bond Pending Extradition Hearing” (Dkt. No. 11) filed on November 19, 2010. After due consideration of the Parties' arguments and the applicable law, the Court concludes the motion for bond should be DENIED.

I. BACKGROUND

On October 15, 2010, the Government initiated extradition proceedings against Garcia upon filing of their “Complaint for Provisional Arrest with a View Toward Extradition” (Dkt. No. 1) on behalf of the Mexican Government. The Government alleged that Garcia was wanted for the crime of homicide by Mexican authorities. ( See Dkt. No. 1 at ¶ 5). Specifically, he is accused of shooting and killing Alfredo Salinas Colunga in Las Botellas bar in Nuevo Laredo, Tamaulipas, Mexico. ( See id. at ¶ 6). Upon making the required probable cause determination, this Court issued an arrest warrant for Garcia in accordance with 18 U.S.C. § 3184 1 and the United States–Mexico Extradition Treaty. (Dkt. No. 2). Consequently, Garcia was arrested on October 28, 2010. ( See Dkt. No. 3).

On November 4, 2010, the Court issued a Scheduling Order for this case. (Dkt. No. 9). A detention hearing was held on November 15, 2010. The final extradition hearing is currently set for February 8, 2011.

II. RELEVANT LAW

Federal district courts have almost exclusively, and by necessity, developed a federal common law to fill in the gaps left by current legislation for bail determinations in foreign extradition cases. See, e.g., In re Extradition of Gonzalez, 52 F.Supp.2d 725, 735 (W.D.La.1999). The federal extradition statute provides no explicit authority for a district court to grant bail to a potential extraditee. See 18 U.S.C. § 3184; United States v. Ramnath, 533 F.Supp.2d 662, 665 (E.D.Tex.2008). Similarly, the Bail Reform Act fails to provide any guidance as to how courts should handle bail requests in international extradition cases. See 18 U.S.C. § 3142 (creating a detailed procedural scheme for making bail determinations in domestic criminal cases). Furthermore, the extradition treaty at issue between the United States and the Republic of Mexico (“Mexico”) does not grant a right to bail, does not outline bail procedures, and does not make any mention of bail. See Extradition Treaty, U.S.-Mex., May 4, 1978, 31 U.S.T. 5059. This lack of guidance has created contradictory, and often irreconcilable, lower court opinions on the subject of bail availability for defendants facing international extradition.

A. Creation of the Special Circumstances Standard

In its century-old and sole opinion on this subject, Wright v. Henkel, the Supreme Court recognized for the first time that a right to bail can exist in international extradition cases. 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903). The Court stated that “while bail should not ordinarily be granted in cases of foreign extradition,” it was unwilling to hold that the courts, “may not in any case, and whatever the special circumstances, extend the relief.” Id. As interpreted by the lower courts, this language established the “special circumstances” test, which has become the standard for rendering bail decisions in international extradition cases. See, e.g., In re Extradition of Russell, 805 F.2d 1215, 1216 (5th Cir.1986) (“Bail should be denied in extradition proceedings absent ‘special circumstances.’) (citing Wright, 190 U.S. at 62–63, 23 S.Ct. 781).

The special circumstances test is interpreted as creating a presumption against bail in an international extradition case, which runs contrary to the presumption that favors bail in domestic prosecutions. Russell, 805 F.2d at 1216 (citing Beaulieu v. Hartigan, 554 F.2d 1, 2 (1st Cir.1977)). The government's strong interest in denying bail stems from its need to ensure that the United States fulfills its international treaty obligations. See Wright, 190 U.S. at 62, 23 S.Ct. 781. This is because extradition treaties create a binding obligation on the United States government to surrender fugitives to its treaty partners once they are found to be extraditable. See id. (“The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused ..., and the other government is under obligation to make the surrender.”); see also Extradition Treaty, U.S.-Mex., art. 13, ¶ 3, May 4, 1978, 31 U.S.T. 5059 (“If the extradition is granted, the surrender of the person sought shall take place within such time as may be prescribed by the laws of the requested Party.”). If a foreign fugitive was released by the United States and absconded pending extradition, the government would suffer “serious embarrassment,” and this could create “potential reciprocal noncompliance by other countries.” Ramnath, 533 F.Supp.2d at 665 (citing Wright, 190 U.S. at 62, 23 S.Ct. 781). The “paramount importance” of an extradition treaty supports denials of bail in foreign extradition cases. See Jimenez v. Aristiguieta, 314 F.2d 649, 653 (5th Cir.1963). The special circumstances test was established to allow for a limited number of cases to be eligible for bail because any risk of flight is too significant a risk for the national interest to tolerate. See, e.g., Gonzalez, 52 F.Supp.2d at 735 (“Bail is not ordinarily available in extradition cases due to the foreign relations interest of the United States in successfully returning persons subject to criminal prosecution to the requesting country.”) (quoting In re Extradition of Nacif–Borge, 829 F.Supp. 1210, 1214 (D.Nev.1993) (internal quotations omitted)).

B. The Problem with Identifying Special Circumstances

A review of the relevant case law most certainly demonstrates that what constitutes special circumstances is anything but clear. “Special circumstances” have never been specifically defined, but have only been described in the abstract, leaving trial courts with little to no guidance. See Nacif–Borge, 829 F.Supp. at 1214. Thus, bail decisions are contradictory and irreconcilable.2 See, e.g., Nathaniel A. Persily, International Extradition and the Right to Bail, 34 Stan. J. Int'l L. 407, 426 (Summer 1998) (The case law regarding the criteria for pretrial release in extradition cases has been, to stay the least, inconsistent.”); Christopher S. Kelly, Bail in International Extraditions: How the “Special Circumstances” Standard has Become “Especially Confusing,” 21 DCBA Brief 34, 36 (March 2009) ([T]he cases are replete with contradictory and irreconcilable decisions, which only serve to further confuse the courts and muddy the law.”); Joshua J. Fougere, Let's Try This Again: Reassessing the Right to Bail in Cases of International Extradition, 42 Colum. J.L. & Soc. Probs. 177, 188 (Winter 2008) ([T]here is not one consistent legitimate special circumstance that warrants release on bail.”).

Multiple factors have led to this convoluted “special circumstances” standard. See Kelly, Bail in International Extraditions, supra, at 36–37. First, as discussed above, there is no clear authority on the issue of bail in international extradition proceedings. Second, it is not uncommon for defense attorneys to present a myriad of special circumstances in support of their client's bail application. See, e.g., Nina Marino & Nicole Eiland, Defending International Extradition, 22 Crim. Just. 4, 7 (Winter 2008) (suggesting that the “best way to secure release pending the extradition proceedings is to throw in the proverbial kitchen sink”); Ramnath, 533 F.Supp.2d at 671 (recognizing that respondent's counsel “strain[s] too hard with specious arguments” and summarily rejecting “these patently gilded points”). This tactic results in courts considering, and recognizing or rejecting, more circumstances as “special.” See, e.g., Nacif–Borge, 829 F.Supp. at 1210; United States. v. Castaneda–Castillo, 739 F.Supp.2d 49, 56-58, 2010 WL 3245424, at *7–8 (D.Mass. Aug. 17, 2010).

Third, there are very few circuit court bail decisions providing guidance to the lower courts.3 This is because the bail decision quickly becomes moot. See, e.g., In re Ghandtchi, 705 F.2d 1315 (11th Cir.1983) (vacating the appeal of a magistrate's bail order as moot where the extradition hearing was held and the party extradited before the circuit court could rule). Fourth, because circuit court decisions are scarce, the vast majority of bail opinions in international extradition cases are by magistrate and district court judges. These opinions hold no precedential value and are merely illustrative. As such, the “special circumstances” determination is a discretionary decision for the trial judge, and “the list of potential special circumstances is not limited to those previously recognized in published decisions.” Gonzalez, 52 F.Supp.2d at 736 (citing Beaulieu, 554 F.2d at 1). Put simply, the determination of whether a potential international extraditee has satisfied their burden to warrant bail is necessarily made on a case-by-case basis.

However, courts consistently agree that special circumstances are supposed to be limited to the most extraordinary circumstances and cannot involve factors applicable to all potential extraditees. Gonzalez, 52 F.Supp.2d at 735 (citing In re Extradition of Smyth, 976 F.2d 1535, 1535–36 (9th Cir.1992) (rejecting “need to consult with counsel, gather evidence and confer with witnesses” as an extraordinary special circumstance because “all incarcerated defendants need to do these things”)). The special circumstances test is limited to apply where the need to grant bail is “pressing as well as plain,”...

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