Matter of Extradition of Nacif-Borge, CV-S-93-453-PMP-(RJJ).

• Decision Date: 27 July 1993
• Docket Number: No. CV-S-93-453-PMP-(RJJ).,CV-S-93-453-PMP-(RJJ).
• Citation: 829 F. Supp. 1210
• Parties: In the Matter of the EXTRADITION OF Kamel NACIF-BORGE, Extraditee, and a Fugitive from the United Mexican States.
• Court: U.S. District Court — District of Nevada

829 F. Supp. 1210

In the Matter of the EXTRADITION OF Kamel NACIF-BORGE, Extraditee, and a Fugitive from the United Mexican States.

No. CV-S-93-453-PMP-(RJJ).

United States District Court, D. Nevada.

July 27, 1993.

COPYRIGHT MATERIAL OMITTED

Charles Goldberg, Patrick Q. Hall, San Diego, CA, Richard A. Wright, Las Vegas, NV, for extraditee, Kamel Nacif-Borge.

Asst. U.S. Atty. J. Gregory Damm, D.Nev., Las Vegas, NV, for U.S. of America.

ORDER

PRO, District Judge.

The Court having read and considered the Amended Opinion and Order filed by the Honorable Robert J. Johnston, United States Magistrate Judge, on July 16, 1993, and good cause appearing,

IT IS ORDERED that this Court adopts the Findings of Magistrate Judge Johnston regarding the special circumstances presented in this case.

IT IS FURTHER ORDERED that Extraditee Nacif shall be permitted release on a signature bond in the amount of $12,453,644.00, to be secured by a cash deposit of $2 million, with the further condition that Extraditee Nacif's travel be restricted to the State of Nevada and that he be placed under the supervision of Pretrial Services.

AMENDED ORDER

Motion for Bail Pending Extradition Proceedings (# 10)

JOHNSTON, United States Magistrate Judge.

This matter was submitted to the undersigned Magistrate Judge as part of an international extradition case involving the United States of America and the United Mexican States, specifically on a Motion for Bail Pending Extradition Proceedings (# 10) brought by Extraditee Kamel Nacif-Borge. The court convened a hearing on the matter June 11, 1993.¹ Thereafter, the parties submitted additional items at the court's request.²

FACTS

Kamel Nacif-Borge (Nacif) is a citizen and resident of the United Mexican States (Mexico). Nacif was born on May 13, 1946, in Mexico and maintains his permanent residence in Mexico City with his family, consisting of his wife of seventeen years and his ten year old son. Nacif also has a fifteen year old daughter who attended, but has since graduated from, a private school in Oregon. Nacif's mother, father, brother, sister, and two uncles also reside in Mexico. Memorandum of Points and Authorities in Support of Motion for Release on Bail (# 10) at 1.

Nacif is self-employed, primarily as a textile industrialist. He is the majority shareholder in two textile companies, Textiles Kamel Nacif S.A. and El Rosario S.A., each with factories in Puebla, Mexico. These companies manufacture denim and yarn and collectively employ approximately 900 workers. One letter from a cotton company indicates that Nacif "is the biggest single importer of American raw cotton for Mexico" and mentions that he uses approximately $30 million dollars worth of cotton a year for his operations. Letter from Ernesto Gonzalez Madero of Algodonera Torreon S.A. de C.V. attached as Exhibit O to Motion for Bail (# 10). One Mexican newspaper article refers to Nacif as the "King of the Light Tweed." El Economista, May 19, 1993, Exhibit AA attached to Motion for Bail (# 22). In addition to textiles, Nacif also owns an agricultural corporation named Campeche, which is involved in cultivating 14,000 acres for the production of citrus concentrate. He also owns a dairy. Motion for Bail (# 10) at 2. Nacif does not own any property outside Mexico.

Nacif visits the United States often and frequently vacations in Las Vegas, Nevada. Motion for Bail (# 10) at 2. Hotel records from Caesars Palace verify seventy-six times in the last five and one-half years when Nacif was a guest. Exhibit F attached to Motion for Bail (# 10).

On May 7, 1993, Nacif travelled to Las Vegas using a valid Mexican passport on a scheduled vacation. Motion for Bail (# 10) at 3. Caesars Palace computer records reflect a check-in on May 7, with a scheduled departure for May 17. Exhibit G attached to Motion for Bail (# 10). On May 7, the Ninth Penal Judge for Criminal Matters to the Court for the Federal District of the United Mexican States issued an arrest warrant for Nacif. Exhibit D attached to Government's Submission (# 20). On May 15, Nacif was arrested in his hotel room at Caesars Palace Hotel & Casino by United States Marshals executing a Warrant for Provisional Arrest issued by this court pursuant to Title 18 U.S.C. § 3184 and Article 11 of the Extradition Treaty Between the United States of America and the United Mexican States (Treaty), signed in Mexico City, May 4, 1978, 31 U.S.T. 5059, entitled Provisional Arrest. Id. at 14; Warrant for Arrest (# 4).

The Mexican arrest warrant and subsequent provisional arrest warrant in this country were based upon allegations of tax evasion in violation of Articles 92 and 95, Paragraphs 1 and 2, of the Fiscal Code for the Mexican Federation, punishable by Article 108, and failure to provide financial documentation in violation of Article 59, Section III. The factual allegations in the complaint assert that Nacif failed to pay $50,381,623,841.00 Mexican Pesos ($15,567,180.00 in U.S. currency) in income tax to the Mexican Treasury for fiscal year 1991 and failed to file an income tax declaration, resulting in an audit by the Secretariat of the Treasury's General Directorate of Federal Fiscal Auditing. Complaint (# 1) at 2.

DISCUSSION

Introduction

The primary concern in an international extradition matter is to deliver the extraditee to the requesting nation. The statute that governs international extradition proceedings, Title 18 U.S.C. Section 3184, makes no provisions for bail. Additionally, the Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq., used by this court on a regular basis in criminal cases has no application to international extradition because this act applies only to persons accused of committing crimes against the United States. United States v. Hills, 765 F.Supp. 381, 385 n. 5 (E.D.Mich.1991) ("several courts have expressly held that ... the provisions of the Bail Reform Act do not apply in extradition actions," citing United States v. Taitz, 130 F.R.D. 442, 444 (S.D.Cal.1990)). Each separate extradition treaty between the United States and a foreign nation is sui generis, and as a contract between two sovereigns, sets forth its own law.³ However, the treaty between the United States and Mexico does not outline bail procedures, or indeed mention bail whatsoever.

The concept of bail pending international extradition appears to have originated with the U.S. Supreme Court in Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903). Although it is "unusual and extraordinary" for bail to be granted, it is not impossible to obtain bail in an international extradition treaty case. United States ex rel. McNamara v. Henkel, 46 F.2d 84, 84 (S.D.N.Y.1912); see also John G. Kester, Some Myths of United States Extradition Law, 76 Geo.L.J. 1441, 1447-49 (1988) (characterizing the proposition "Bail Is Not Available in Extradition Cases" as a myth). Caselaw has clearly established that bail may be granted under "special circumstances." Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903); Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989); United States v. Williams, 611 F.2d 914, 915 (1st Cir.1979). However, caselaw has not clearly explained precisely what "special circumstances" means and to what degree of proof the extraditee must demonstrate such circumstances. Consequently, commentators have expressed concern that the doctrine is uncertain, and that the "amorphous `special circumstances' standard has resulted in an incoherent approach to bail in international extradition cases." Jeffrey A. Hall, Note, A Recommended Approach to Bail in International Extradition Cases, 86 Mich.L.Rev. 599, 599 (1986).

This characterization of existing caselaw in disarray is betrayed by a consistent pattern of analysis grounded in unmistakable standards. The judicial reasoning in extradition cases parallels traditional bail evaluations with some obvious adjustments for the international ramifications of the bail decision. The opinions universally contain the following:

A. A presumption against bail exists in international extradition cases.

B. Only special circumstances will justify bail.

C. The person seeking bail has the burden of establishing an entitlement to bail.

D. An elevated standard of proof must be satisfied.

E. The person seeking bail cannot be a risk of flight or a danger to the community.

PRESUMPTION AGAINST BAIL

The presumption of innocence guarantees that defendants pending trial are entitled to a concomitant presumption in favor of bail in this country. The Bail Reform Act "mandates release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required." United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir.1985); 18 U.S.C. §§ 3141 et seq. However, in foreign extradition cases, a presumption against bail exists due to the foreign relations interest of the United States in successfully returning persons subject to criminal prosecution to the requesting country. Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903) (bail "should not ordinarily be granted in cases of foreign extradition"); Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989).

ESTABLISHING AN ENTITLEMENT TO BAIL AND STANDARD OF PROOF

"The standard for release on bail for persons involved in foreign extradition proceedings is a more demanding standard than that for ordinary accused criminals awaiting trial." Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir.1981), cert. denied, 454 U.S. 971, 102 S.Ct. 519, 70 L.Ed.2d 389 (1981). "While the term `special circumstances' has eluded precise judicial definition, those courts that have granted bail have limited those instances to the `most pressing circumstances' and those in which the court finds that the `requirements of justice are absolutely peremptory.'" Pamela B. Stuart, Treaty Traps: How to...