United States v. Williams, EBD No. 79-353.

• Decision Date: 05 October 1979
• Docket Number: EBD No. 79-353.
• Citation: 480 F. Supp. 482
• Parties: UNITED STATES of America v. Scott WILLIAMS.
• Court: U.S. District Court — District of Massachusetts

480 F. Supp. 482

UNITED STATES of America v. Scott WILLIAMS.

EBD No. 79-353.

United States District Court, D. Massachusetts.

October 5, 1979.

Robert B. Collings, 1st Asst. U.S. Atty., Chief, Crim. Div., Boston, Mass., for the United States.

William A. Brown, Boston, Mass., for defendant.

Memorandum

KEETON, District Judge.

I.

Scott Williams is in custody following arrest pursuant to the provisions of 18 U.S.C. § 3184.

The warrant was issued on September 26, 1979 on the basis of a telegraphic communication from Canadian authorities to the United States Department of State, informing this Government that Williams had been charged with the crime of conspiracy to import a narcotic in violation of Section 423(1)(D) of the Criminal Code of Canada.

At a time before the foregoing communication between governments, defendant had been arrested on a charge filed in the United States District Court for the Eastern District of New York, based on the same events. In relation to the charge in the Eastern District of New York, defendant has been released from custody on a bond without surety.

At a hearing on September 28, 1979, this court was persuaded that precedents disallowed release on bail absent "special circumstances" as that phrase is used in precedents construing 18 U.S.C. § 3184 and predecessor statutes. An order was then entered denying the request for bail but without prejudice to defendant's opportunity to move for bail and present proof and argument in support of a finding of "special circumstances." Such a motion having been presented, and the matter having been heard and considered, the court concludes that bail should be allowed.

II.

Relevant portions of 18 U.S.C. § 3184 are set out immediately below. The bracketed numbers are not part of the statute. They are inserted to facilitate reference in this opinion.

1 Whenever there is a treaty or convention for extradition . . . any . . . judge of the United States . . may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, 2 issue his warrant for the apprehension of the person so charged, that he may be brought before such . . . judge . . . to the end that the evidence of criminality may be heard and considered. 3 If on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, 4 that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; 5 and he 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.

The seminal decision of the Supreme Court, Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903), counsels against the granting of bail in extradition matters. In that case, the Court based its decision on the statutory directive, now carried forward in part 5 of the foregoing quotation from 18 U.S.C. § 3184, declaring that a 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.

190 U.S. at 62, 23 S.Ct. at 786. Part 5 of the statute, in which this phrase appears, applies to a commitment to a proper jail after a hearing, determination, and certification that the person in custody is subject to extradition for the charge under the applicable treaty. In Wright v. Henkel, supra, the Court appears in the following passage to distinguish the circumstances existing when such a hearing has not been held:

Not only is there no statute providing for admission to bail in cases of foreign extradition, but § 5270 of the Revised Statutes is inconsistent with its allowance after committal, for it is there provided that, if he finds the evidence sufficient, the commissioner or 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.'

190 U.S. at 62, 23 S.Ct. at 786 (emphasis added).

The phrase "to the proper jail, there to remain until such surrender," has not been construed, however as an absolute prohibition against bail. See, e. g., Beaulieu v. Hartigan, 554 F.2d 1 (1st Cir. 1977). Instead it is said, bail is to be allowed only under "special circumstances." Id. at 1-2. See also, In re Mitchell, 171 F. 289 (S.D.N. Y.1909) (per L. Hand, J.).

Should questions regarding bail following arrest under a warrant such as is described in part 2 of § 3184 nevertheless be governed by precedents concerning bail following a commitment in accordance with part 5 of the statute?

At the hearing of September 28, 1979, the court was persuaded that precedents have answered this question affirmatively. On closer study of § 3184 and the precedents than was possible within the limited time of the hearing of September 28, the court is persuaded that decisions of the Supreme Court and the First Circuit do not address this question; instead they speak to the law governing bail after a hearing, determination and certification under part 5 of § 3184. Some previous District Court decisions appear to go farther and apply the same law regarding bail after arrest under part 2 of § 3184. See In re Klein, 46 F.2d 85 (S.D.N.Y.1930); United States ex rel. McNamara v. Henkel, 46 F.2d 84 (S.D.N.Y. 1912). These decisions may be questioned, however, since they fail to note the distinction, observed by the Supreme Court in Wright v. Henkel, between bail before and after a hearing of the kind described in part 3 of the statute.

This distinction is significant. After such a hearing and commitment to jail for the purpose of being held for delivery to a foreign authority without further judicial action, it is very likely that bail will be inappropriate because the delivery is to be effected as soon as is feasible. In contrast, before such a commitment, no judicial determination has been made that delivery to the foreign authority will be lawful.

The United States, nevertheless urging that bail is inappropriate even before such a hearing regarding lawfulness of the proposed delivery, argues here that despite the acknowledged consistency of release on bail in this instance with the clear policy of American law favoring bail pending trial, this court is forbidden to allow such release, absent "special circumstances," because of overriding treaty obligations between the United States and Canada and a statutory mandate to courts to honor those obligations. Precedents cited include Wright v. Henkel, supra, U. S. ex rel. McNamara v. Henkel, supra, Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962), cert. denied sub nom. Perez Jimenez v. Hixon, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1962), reh. den. 374 U.S. 858, 83 S.Ct. 1867, 10 L.Ed.2d 1083 (1962), aff'g further order of district court, 374 F.2d 649 (5th Cir. 1963), Beaulieu v. Hartigan, supra.

Defendant cites numerous instances in which bail has been allowed pending extradition. Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir. 1973), cert. dismissed 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973) (district court granted bail pending commitment hearing); Schonbrun v. Dreiband, 268 F.Supp. 332 (E.D.N.Y.1967) (court released defendant on personal recognizance pending commitment hearing); Wacker v. Beeson, 256 F.Supp. 542 (E.D.La.1966), aff'd sub nom. Wacker v. Bisson, 370 F.2d 552 (5th Cir. 1967), cert. denied 387 U.S. 936, 87 S.Ct. 2063, 18 L.Ed.2d 999 (1967) (bail granted pending commitment hearing); In re Extradition of D'Amico, 177 F.Supp. 648 (S.D. N.Y.1959) (bail granted after commitment hearing pending determination of issues raised by habeas corpus petition). None of these cases, however, explicitly challenges the precedents on which the government relies.

Defendant responds that the precedents cited by the government can be distinguished because they are concerned with arrest after an order of commitment.

In the present instance, in contrast, the defendant is in custody under provisional arrest.¹ The hearing to determine whether valid grounds are established for commitment is scheduled for October 30, 1979, to allow time for the formal communications from Canadian to American authorities to work their way through diplomatic channels while defendant—if the government prevails on the present motion—remains in custody. Thus, if the government's position is sustained, we have the extraordinary spectacle of telegraphic communications to effect arrest, followed by reversion to the more genteel pace of diplomatic pouches while the defendant is deprived of his liberty for 30 days or more, without any showing and determination of reasonable grounds for commitment, and without an opportunity to show that his attendance at that hearing can be reasonably assured by bail. Certainly no provision of the relevant treaty explicitly commands such an intrusion on personal liberty. The government's argument is that this result is implicitly required by the overriding interest in our national commitment to fulfilling the obligations of our treaty with a sister nation for extradition in appropriate cases.

Among the underpinnings of this argument are the premises that our treaty obligations with Canada include a commitment to extradition on these terms and that 18 U.S.C. § 3184 directs that proceedings in United States District Courts be in conformity with that commitment. Are these premises sound?

III.

Counsel have not cited nor has the court found any treaty provision, or any constitutional or statutory provision, explicitly directing the result for which the government argues. As stated above, the...