Nezirovic v. Holt, Civil Action No. 7:13cv428.

• Decision Date: 27 November 2013
• Docket Number: Civil Action No. 7:13cv428.
• Court: U.S. District Court — Western District of Virginia
• Parties: Almaz NEZIROVIC, Petitioner v. Gerald S. HOLT, United States Marshal, Western District of Virginia. and Bobby D. Russell, Superintendent, Western Virginia Regional Jail, Respondents.

990 F.Supp.2d 594

Almaz NEZIROVIC, Petitioner

v.Gerald S. HOLT, United States Marshal, Western District of Virginia.andBobby D. Russell, Superintendent, Western Virginia Regional Jail, Respondents.

Civil Action No. 7:13cv428.

United States District Court,

W.D. Virginia,

Roanoke Division.

Signed Nov. 27, 2013.

Fay Frances Spence, Federal Public Defenders Office, Roanoke, VA, for Petitioner.

Elizabeth G. Wright, United States Attorneys Office, Harrisonburg, VA, Timothy J. Heaphy, United States Attorneys Office, Roanoke, VA, for Respondents.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Petitioner Almaz Nezirovic seeks his immediate release from detention pending the outcome of the present habeas corpus proceeding. Nezirovic asserts that he poses no risk of flight and that special circumstances exist requiring his release on bond. Upon consideration of the appropriate legal standard, the entire record in this case and the extradition proceeding, In re Extradition of Almaz Nezirovic, No. 7:12cv039, the court is compelled to conclude that Nezirovic has failed to meet his burden of establishing, by clear and convincing evidence, that special circumstances exist allowing bond in this case. As such, Nezirovic's application for bond pending habeas review is DENIED.

I.

Nezirovic's bond application is the fifth time in the past two years that he has sought release on bond, albeit in different procedural settings. A review of this history is necessary to place the pending application in proper context.

Nezirovic is a native and citizen of Bosnia and Herzegovina (“Bosnia”). In 1997, Nezirovic entered the United States as a refugee. In so doing, he completed certain immigration forms seeking admission to and permanent residence in this country. Nezirovic applied for naturalized citizenship in 2004 and was interviewed in connection with that application in 2006. Over the last 16 years, Nezirovic has lived and worked in Roanoke, Virginia without incident.

A federal grand jury issued an indictment on June 9, 2011 charging Nezirovic with fraudulently procuring permanent residence in the United States and making false statements on his application for citizenship. The indictment charges that Nezirovic failed to disclose that, while serving with the Croatian Defense Council (HVO), he assaulted and inhumanely treated Serb civilians detained at the Rabic internment camp. United States v. Almaz Nezirovic, No. 7:11cr0047, Dkt. # 3. Nezirovic was released on bond on June 28, 2011, and satisfactorily met the terms and conditions of his bond until his arrest on the underlying extradition complaint on June 17, 2012. The criminal trial has been continued to May 12, 2014.

In the extradition complaint filed on July 16, 2012, the United States asserts that Bosnia seeks return of Nezirovic to stand trial for alleged war crimes, including torture and inhumane treatment of Serbian civilians in his custody while he served as a guard in the Rabic internment camp in 1992. Magistrate Judge Robert S. Ballou denied Nezirovic's request for bond at his initial appearance on the date of his arrest. Nezirovic renewed his request, and a bond hearing was held on October 10, 2012. On November 19, 2012, 2012 WL 5842945, the magistrate judge denied Nezirovic's renewed request, ruling that Nezirovic failed to meet his burden of showing that special circumstances existed warranting bond and that he is not a risk of flight. On September 16, 2013, 2013 WL 5202420, the magistrate judge certified Nezirovic as subject to extradition under 18 U.S.C. § 3184. On September 18, 2013, the magistrate judge denied Nezirovic's request to reconsider the denial of his application for bond.

That same day, September 18, 2013, Nezirovic filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 and on October 7, 2013 again requested that he be released on bond. An evidentiary hearing was held on October 8, 2013 followed by supplemental briefing. Nezirovic argues that special circumstances justify his release on bond, including his exemplary conduct on bond during the pendency of the criminal case, the deterioration in the condition of his health while incarcerated, the passage of more than twenty years since the alleged war crimes, the delay in these proceedings, and the complexity of the legal issues. The government counters that the extradition statute affords the court no authority to release Nezirovic on bond following certification of his extradition, and, in the alternative, that he has not met his burden of establishing special circumstances for a bond.

II.

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.” In re Extradition of Nacif–Borge, 829 F.Supp. 1210, 1214 (D.Nev.1993) (citations omitted); see also In re Extradition of Russell, 805 F.2d 1215, 1216 (5th Cir.1986) (holding that there is a presumption against bail in extradition cases). Since extradition cases are not criminal in nature, the provisions of the Bail Reform Act do not apply. Kamrin v. United States, 725 F.2d 1225, 1227–1228 (9th Cir.), cert. denied,469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984); In re Extradition of Mironescu, 296 F.Supp.2d 632, 634 (M.D.N.C.2003). The legal standards which govern release or detention of an extraditee are governed by federal case law. In re Extradition of Maniero, 950 F.Supp. 290, 293 (S.D.Cal.1996).

In 1903, the Supreme Court established the standard for bail in extradition cases which remains applicable today: bail is available only where “special circumstances” are shown. Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903). “There is a presumption against bail in extradition cases and only ‘special circumstances' justify release on bail.” United States v. Kin–Hong, 83 F.3d 523, 524 (1st Cir.1996) (collecting cases). In addition to showing special circumstances, the extraditee must also show that he will not flee or pose a danger to any other person or to the community. In re Extradition of Nacif–Borge, 829 F.Supp. at 1215.

The government argues that the court has no authority to release petitioner on bond following certification of extradition by the magistrate judge. The government focuses on the final portion of the extradition statute, which indicates that after certification, the magistrate judge “shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” 18 U.S.C. § 3184. “The United States takes the position that the plain language of the extradition statutes anticipates that there is no opportunity for bail after certification of an extradition request.” Mem. of Law Opposing Post–Certification Bail, Dkt. # 10, at 2.

The government's argument has not fared well in the federal courts. First, many courts, including three circuit courts of appeals, have addressed the issue of bond in international extradition cases following certification. These decisions, applying the Wright v. Henkel special circumstances standard, contain no hint that a federal court lacks the power to issue a bond post-certification. See Salerno v. United States, 878 F.2d 317 (9th Cir.1989); Beaulieu v. Hartigan, 554 F.2d 1 (1st Cir.1977); Yau–Leung v. Soscia, 649 F.2d 914 (2d Cir.), cert. denied,454 U.S. 971, 102 S.Ct. 519, 70 L.Ed.2d 389 (1981). “[The government] urges the court to reject these cases' application of the special circumstances rule to post-certification cases as dicta. However, the cases rest on sound application of Wright and subsequent federal common law. The court therefore declines this invitation.” Garcia v. Benov, No. CV 08–07719 MMM, 2009 WL 6498194, *5 n. 23 (C.D.Cal. April 13, 2009).

Second, the government's argument that the court lacks power to grant bail after certification has been expressly repudiated by several federal courts. See In re Extradition of Hilton, No. 13–7043–JCB, 2013 WL 3282864, *3 (D.Mass. June 26, 2013) (“Accordingly, several courts have found that they have the authority to grant release after the issuance of a certificate of extradictability and during the pendency of habeas proceedings.”); In re Extradition of Kapoor, No. 11–M–456 (RML), 2012 WL 2374195, *3 (E.D.N.Y. June 22, 2012) (Courts “have not drawn any distinction between pre- and post-certification bail applications and have time and again considered bail requests after a judicial finding of extradictability.... In short, it is well-settled that although there is a presumption against granting bail in an international extradition case, an extraditee may be granted bail—both before or after bail certification of extradictability—upon a showing of special circumstances.”); Wroclawski v. United States, 634 F.Supp.2d 1003, 1005–06 (D.Az.2009) (“And while [Wright v.] Henkel arose during the pre-certification stage of extradition, subsequent case law has made clear that the special circumstancestest is applicable in both the pre- and post-certification stages of extradition.... Because the doctrine of special circumstances is well-settled, the Court is satisfied that it possesses the authority to grant Petitioner's release during the pendency of this habeas petition.”); Garcia v. Benov, 2009 WL 6498194 at *5 n. 23 (“The court rejects respondent's argument that the courts are without power to grant bail following certification of a request for extradition.”); In re Extradition of Harshbarger, No. 5:08–MJ–00109, 2009 WL 702925, at *3 (M.D.Pa. March 12, 2009) (“Nor does this Court lack authority ... to offer bail, even after making a finding in favor of extradition.”).

Third, the government cites only one decision adopting its statutory construction argument. However, in that case, the extraditee did not contest the point, and the court did not squarely address the issue. Thus, its precedential value is...