U.S. v. Leitner

• Decision Date: 21 February 1986
• Docket Number: No. --,D,--
• Citation: 784 F.2d 159
• Parties: UNITED STATES of America, Appellee, v. Craig Arthur LEITNER, Appellant. ocket 86-8009.
• Court: U.S. Court of Appeals — Second Circuit

Page 159

784 F.2d 159

UNITED STATES of America, Appellee, v. Craig Arthur LEITNER, Appellant.

No. ---, Docket 86-8009.

United States Court of Appeals Second Circuit.

Argued Feb. 20, 1986.

Decided Feb. 21, 1986.

Jack T. Litman, New York City (Litman, Kaufman, Asche & Lupkin, New York City), for appellant.

Reena Raggi, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., Allyne R. Ross, Asst. U.S. Atty., E.D.N.Y., of counsel), for appellee.

Before OAKES, KEARSE and PRATT, Circuit Judges.

PER CURIAM:

This appeal is from an order of the United States District Court for the Eastern District of New York, 627 F.Supp. 739, Eugene H. Nickerson, Judge, denying bail pending extradition to Israel. Leitner, a United States citizen, was arrested in Israel and charged with various acts of violence against Arabs in 1983-84. He was freed on bail after pledging to cooperate with the Israeli government. After apparently receiving death threats, but before trial, Leitner fled in September 1984 to the United States, where he had grown up. He has lived openly here for about 1 1/2 years, he has a New York City taxi license in his name, has completed a semester at Pace Law School, and has lived with or frequently visited his parents in Queens. Under the Extradition Treaty with Israel, at Israel's request, the Government obtained a provisional arrest warrant in June 1985, but did not arrest appellant until January 15, 1986. Magistrate Scheindlin granted bail on the ground that appellant posed almost no risk of flight, especially given the conditions of the bond imposed, Leitner's lack of prior record, his family ties and the external pressures prompting his flight from Israel. We affirm the district court.

In Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903), the Supreme Court held that federal courts could grant bail in extradition cases in "special circumstances." The Court's primary concern was that our Government be able to deliver the accused when the nation seeking extradition had complied with the extradition treaty. Id. at 62, 23 S.Ct. at 786. In In re Mitchell, 171 F. 289, 289 (S.D.N.Y.1909), Judge Learned Hand held that bail should be granted "only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory." Special circumstances have been found when a prisoner needed to be free to pursue his civil case, Mitchell, or when the prisoner was a juvenile and there were no suitable holding facilities for him. Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir.), cert. denied, 454 U.S. 971, 102 S.Ct. 519, 70 L.Ed.2d 389 (1981). The courts continue to hold that there is a presumption against bail in extradition cases, and that bail can be granted only in "special circumstances," see id. at 920; United States v. Williams, 611 F.2d 914 (1st Cir.1979); United States v. Messina, 566 F.Supp. 740, 742 (E.D.N.Y.1983), although some courts have noted a trend toward liberalization in bail, at least in the provisional arrest context. See Messina, 566 F.Supp. at 742; Beaulieu v. Hartigan, 430 F.Supp. 915, 916 & n. 2 (D.Mass.) (citing cases), vacated in pertinent part, 554 F.2d 1 (1st Cir.1977).

Like various other extradition treaties, Article XI of the Israel-United States extradition treaty requires a "case of urgency" before a party may apply for an accused's provisional arrest. Regardless whether determination of "urgency" is non-justiciable, as the Government argues, but see Caltagirone v. Grant, 629 F.2d 739, 744 n. 10 (2d Cir.1980); Messina, 566 F.Supp. at 744-45 (questioning non-justiciability, but giving judicial deference to extraditing government's and this Government's determination of urgency), in this case, as found by the district court, the...