Requested Extradition of Kirby, Matter of, s. 96-10068

• Decision Date: 27 February 1997
• Docket Number: 96-10069 and 96-10074,Nos. 96-10068,s. 96-10068
• Citation: 106 F.3d 855
• Parties: 97 Daily Journal D.A.R. 2097 In the Matter of the REQUESTED EXTRADITION OF Terence Damien KIRBY. UNITED STATES of America, Appellant, v. Terence Damien KIRBY, Appellee. In The Matter of the REQUESTED EXTRADITION OF Pol BRENNAN. UNITED STATES of America, Appellant, v. Pol BRENNAN, Appellee. In The Matter of the REQUESTED EXTRADITION OF Kevin Barry John ARTT. UNITED STATES of America, Appellant, v. Kevin Barry John ARTT, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 855

106 F.3d 855

97 Daily Journal D.A.R. 2097

In the Matter of the REQUESTED EXTRADITION OF Terence Damien KIRBY.

UNITED STATES of America, Appellant, v. Terence Damien KIRBY, Appellee.

In The Matter of the REQUESTED EXTRADITION OF Pol BRENNAN.

UNITED STATES of America, Appellant, v. Pol BRENNAN, Appellee.

In The Matter of the REQUESTED EXTRADITION OF Kevin Barry John ARTT.

UNITED STATES of America, Appellant, v. Kevin Barry John ARTT, Appellee.

Nos. 96-10068, 96-10069 and 96-10074.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 15, 1996.

Decided Dec. 16, 1996.

As Amended Feb. 27, 1997.

Sara Criscitelli, United States Department of Justice, Washington, D.C., for appellant.

Gilbert Eisenberg, Filippelli & Eisenberg, Mark W. Danis, Jennifer H. Small, James J. Brosnahan, Morrison & Foerster, James Larson, San Francisco, CA, for appellees.

Appeals from the United States District Court for the Northern District of California, Charles A. Legge, District Judge, Presiding. D.C. Nos. CR-93-00032-CAL, CR-92-00051-CAL and CR-94-00086-CAL.

Before: SNEED, John T. NOONAN, and David R. THOMPSON, Circuit Judges.

SNEED, Circuit Judge:

Appellees Terence Damien Kirby, Pol Brennan and Kevin Barry John Artt fled to the United States after escaping in 1983, along with 35 other prisoners, from the Maze Prison in Belfast, Northern Ireland. In January, 1996 U.S. District Judge Charles A. Legge released all three on bail, pending a hearing under 18 U.S.C. § 3184 to determine whether they are extraditable to the United Kingdom. The United States appeals the bail orders on behalf of the United Kingdom. ¹ We affirm the grant of bail.

I. FACTS AND PROCEDURAL HISTORY

The United Kingdom requested extradition of Artt, Brennan and Kirby under the Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 8, 1972, U.S.-U.K., 28 U.S.T. 227, (The "U.S.-U.K. Extradition Treaty"), as modified by the Supplementary Treaty Concerning the Extradition Treaty, June 25, 1985, U.S.-U.K., reprinted in S.Exec.Rep. No. 99-17, at 15-17 (1986) (the "Supplementary Treaty"). United States authorities arrested Artt in June 1992, Brennan in January 1993, and Kirby in February 1994. The district court, Judge Legge presiding, stayed Artt's and Brennan's extradition proceedings in June 1993, pending the outcome of the Smyth case. ² In re Extradition of Smyth, 863 F.Supp. 1137 (N.D.Ca.1994) (denying a request to certify Mr. Smyth for extradition to the United Kingdom), rev'd, 61 F.3d 711 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2558 The district court reactivated the Artt and Brennan cases, which had been stayed for fifteen months, after another judge of the district court ruled on the Smyth case in September, 1994. In May 1995, Judge Legge's court assumed responsibility for Kirby's case as well. In November 1995, Artt, Brennan and Kirby each moved for bail. At a December 20, 1995 hearing the district court determined that Artt and Brennan were neither flight risks nor dangers to the community, and also set the terms of their bail. On December 27, 1995, the district court determined that Kirby was not a danger to the community. Although the court viewed Kirby as a "potential flight risk," it found that it could fashion conditions to assure Kirby's presence at future proceedings.

135 L.Ed.2d 1076 (1996). Kirby's case was at no time stayed pending a decision in Smyth.

Brennan was released from U.S. custody on January 3, 1996 on $500,000 bond secured by $500,000 in property pledged by sureties. He is committed to the custody of his wife and his employer. Kirby was released from U.S. custody on January 3, 1996 on $1,000,000 bond secured by $500,000 in property and the signatures of five sureties. He resides with his wife and is committed to the custody of three other people. Artt was released from U.S, custody on January 10, 1996 on $500,000 bond secured by $100,000 in cash or property and the signatures of five sureties. He is committed to the custody of his housemate Rosemary Campbell and his employer.

In addition to the terms described above, all three men are subject to electronic monitoring. They must report to court officials three times a week by phone and once a week in person. They have turned in all passports and visas to the court and may not apply for others. Finally, they are prohibited from leaving the Bay Area.

II. JURISDICTION TO HEAR THIS APPEAL

28 U.S.C. § 1291 provides, in part, that courts of appeals "shall have jurisdiction of appeals from all final decisions of the district courts." Appellees contend that this court lacks jurisdiction to hear the appeals from the bail rulings in these extradition cases, because such rulings were neither "final decisions," nor "decisions of district courts." We disagree.

Over ninety years ago, the Supreme Court recognized that there is a presumption against bail in an extradition case and only "special circumstances" will justify bail. Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903). As the United States points out, this presumption against bail is contrary to the presumption that favors bail in domestic prosecutions. Beaulieu v. Hartigan, 554 F.2d 1, 2 (1st Cir.1977) ("Unlike the situation for domestic crimes, there is no presumption favoring bail" in extradition cases). Putting aside for the moment the question of whether "special circumstances" justify the grant of bail in each of these cases, it should be stated that the bail issue came to the Supreme Court in Wright v. Henkel on a petition for habeas corpus. Wright, 190 U.S. at 40, 23 S.Ct. at 781. Whereas the government's right to appeal the grant of a habeas corpus petition is well established, 28 U.S.C. § 2255, there is no Supreme Court authority either affirming or denying the right of the United States to appeal from a district court order finding that "special circumstances" justify the grant of bail to a potential extraditee.

Despite this absence of authority, appellees argue that once the district judge hearing the potential extraditee's plea for bail pending an extradition hearing grants that plea, his finding of "special circumstances" cannot be appealed by the United States to this court. Appellees' argument raises at least three distinct problems. First, if we adopted that view, it would create a striking lack of symmetry between the inability of the United States to appeal and the ability of the potential extraditee to appeal by way of habeas corpus. Second, as noted above, the Supreme Court in Wright v. Henkel stated expressly that "bail should not ordinarily be granted in cases of foreign extradition," and that the grant of bail should be limited to Third, appellees' argument exhibits insufficient concern for providing the necessary assurance that the United States can abide by its extradition treaties. The United States has a legal obligation under all its extradition treaties to extradite to the other country, assuming the requisite conditions are satisfied, any person in the United States, other than a U.S. national, who has been accused or convicted of a listed offense committed on the territory of a treaty partner. See, e.g., U.S.-U.K. Extradition Treaty, Art. I (obligating the parties to extradite individuals, regardless of nationality). Compare Supplementary Convention to the Extradition Convention of January 6, 1909 Between the United States of America and France, Feb. 12, 1970, U.S.-France, Art. III, 22 U.S.T. 407, 409-10 (exempting nationals of the requested state from the obligation to extradite). To permit the erosion of the "special circumstances" restraint by the availability of bail without the possibility of judicial review would weaken the confidence of other nations in the ability of the United States to perform its legal obligations under such treaties.

"special circumstances." Wright, 190 U.S. at 63, 23 S.Ct. at 787. See also Salerno v. United States, 878 F.2d 317 (9th Cir.1989) ("There is a presumption against bail in an extradition case and only 'special circumstances' will justify bail"). A holding that the United States lacks a right of appeal would inadequately secure the "special circumstances" requirement.

This concern is particularly relevant with respect to the Supplementary Treaty. The intense interest in both the United States and the United Kingdom in the problems of Northern Ireland requires that the role assigned to the courts, including that of the circuit courts of appeal under Article 3(b) of the Supplementary Treaty, ³ be performed sensitively and scrupulously. To do this properly requires that we provide appellate review of the bail decisions made by magistrates and district judges for all potential extraditees whose extradition is governed by the Supplementary Treaty.

Nonetheless, our jurisdiction to accomplish this end is not explicitly assured by the Supplementary Treaty. Rather, it ultimately must rest on the usual statutory grounds governing appellate jurisdiction.

A. Appellate Jurisdiction Under 28 U.S.C. § 1291

1. The Grant of Bail is a Decision of the District Court Under Section 1291.

The appellees insist that this court has no jurisdiction to hear this appeal because the district judge's action in fixing their bail was not the action of a district court within the meaning of 28 U.S.C. § 1291, which provides that courts of appeal "shall have jurisdiction of appeals from all final decisions of the district courts." In their view, Judge Legge, of the Northern District of California, fixed their bail as "a judge" authorized by 18 U.S.C. § 3184 to certify their extraditability, if and when it should be appropriate to do so, under the U.S.-U.K. Extradition Treaty and its Supplement. 18 U.S.C. § 3184, however, provides only that "any justice or judge of the United States, or any magistrate authorized to do so"...