US v. Hills, 91-X-71682.

• Decision Date: 16 May 1991
• Docket Number: No. 91-X-71682.,91-X-71682.
• Citation: 765 F. Supp. 381
• Parties: UNITED STATES of America, Petitioner, v. Derrick Leon HILLS, a/k/a Stacey Shelby, Defendant.
• Court: U.S. District Court — Western District of Michigan

765 F. Supp. 381

UNITED STATES of America, Petitioner, v. Derrick Leon HILLS, a/k/a Stacey Shelby, Defendant.

No. 91-X-71682.

United States District Court, E.D. Michigan, S.D.

May 16, 1991.

Ross Parker, Asst. U.S. Atty., for petitioner.

Rafael Villaruel, Detroit, Mich., for defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR BOND PENDING EXTRADITION HEARING

ROSEN, District Judge.

I. INTRODUCTION

This is an extradition action. The Canadian government, through the U.S. Attorney's office, is pursuing the extradition of Defendant Derrick Leon Hills, a/k/a Stacey Shelby,¹ under the terms of the Treaty on Extradition between the United States and Canada. Shelby has been charged by Canadian authorities with various crimes in connection with a January 4, 1991 armed bank robbery in Windsor, Ontario. The events leading up to Defendant's arrest at the request of the Canadian government are detailed in documents in the Court file of this matter, and are summarized below.

This matter is presently before the Court on the Motion of Defendant for an order directing that he be released on bail pending his extradition hearing, which, according to the Court's file, is scheduled for May 29, 1991. The Court heard oral argument on Defendant's Motion on May 16, 1991. Having reviewed and considered Defendant's Motion and Brief and having heard the oral arguments of counsel at the May 16, 1991 hearing, the Court is now prepared to rule on this matter, and this Opinion and Order sets forth that ruling.

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On April 16, 1991, the United States Government requested and obtained a warrant for the immediate arrest of Defendant Shelby, pursuant to 18 U.S.C. § 3184 and the Treaty on Extradition between the United States and Canada, pending receipt of a regular diplomatic request for extradition, with accompanying documentation, in conformity with Article 11 of the Extradition Treaty. The Government further requested in its April 16, 1991 application that Shelby be detained by the United States Marshal pending the conduct of an extradition hearing.

Defendant Shelby was brought before Magistrate Judge Paul J. Komives, on that same date. Shelby's initial appearance was continued to April 17, 1991 because he had indicated on April 16 that he was hopeful of having counsel of his own selection represent him. See, 4/17/91 Order of Magistrate Judge Paul J. Komives, p. 1. At the continued hearing on April 17, 1991, however, Shelby requested the appointment of counsel, stating that he was unable to retain an attorney of his own because of lack of funds. Accordingly, Magistrate Judge Komives appointed the Federal Defender Office to represent him. Id.

A. BASIS FOR THE WARRANT FOR SHELBY'S ARREST

According to the sworn Application of Assistant United States Attorney Ross Parker presented to Magistrate Judge Komives on April 16, 1991, the United States Attorney's office was informed through diplomatic channels that Shelby is duly and legally charged with having committed in Windsor, Ontario, Canada (1) robbery; (2) use of a firearm while committing an offense; (3) possession of an unregistered restricted weapon; and (4) possession of a firearm with serial number defaced, all in violation of §§ 85(1)(A), 91(1), 104(3) and 344 of the Canadian Criminal Code. These offenses were allegedly committed on January 4, 1991, when Defendant Shelby "did use an unregistered .25 caliber semi-automatic pistol, with a defaced serial number, to rob the Bank of Montreal, 1295 Walker Road of a quantity of currency." April 16, 1991 Application for Warrant, pp. 1-2.

AUSA Parker's sworn application further indicates that a warrant for the arrest of Defendant Shelby was issued on April 16, 1991 by Judge Joseph McMahon of the Ontario Court (General Division), Windsor, Canada. 4/16/91 Application p. 1. Parker further states that the crimes with which Shelby is charged are among the offenses enumerated in Article 2 of the Treaty on Extradition between the United States of America and Canada, 27 UST 983, TIAS 8237. 4/16/91 Application pp. 2-3.

According to the application for immediate arrest warrant, Defendant Shelby "fled the outside boundaries of Canada"² and the warrant for his arrest issued by the Ontario Court Judge cannot be served in the United States. 4/16/91 Application, p. 2.

B. MAGISTRATE JUDGE KOMIVES' DETERMINATION REGARDING BAIL

At the continued April 17, 1991 hearing, Magistrate Judge Komives ruled on the Government's request to order Shelby detained by the Marshal pending the holding of an extradition hearing. The Magistrate Judge issued a written Order that date granting the Government's request. In that April 17, 1991 "Order Remanding Accused to Custody Pending Extradition Hearing", the Magistrate Judge stated his reasons for refusing Defendant Shelby's request that he be released on bail pending the extradition hearing:

... As argued by the Government, the presumption in extradition matters favors detention unless unusual circumstances warrant admission to bail in the discretion of the Court. While certain unusual features are present in this case, I conclude that the usual presumption should be applied in this case. A report from the Pretrial Services Agency of this Court, done at my request, also recommends detention and notes an outstanding warrant from a state district court based upon failure to appear. Accordingly,

IT IS ORDERED that the United States Marshall shall maintain custody of the accused pending the holding of an extradition hearing, which is currently scheduled for May 29, 1991, at 9:00 a.m., before the undersigned.

April 17, 1991 Order, pp. 1-2.

C. BASIS OF DEFENDANT'S INSTANT MOTION FOR BOND PENDING EXTRADITION HEARING

On May 9, 1991, Defendant Shelby filed the instant "Motion for Bond Pending Extradition Hearing".³ It is Defendant's position that he is entitled to bail pending his extradition hearing because he claims that he does not pose a risk of flight and his case presents "special circumstances" warranting his release from incarceration. According to Defendant's Brief in Support of his Motion, these "special circumstances" are as follows:

1) He is not a flight risk or danger to the community. In support of this contention, Defendant claims that he has been successfully placed on bail in previous state cases.⁴ He further claims, as noted in footnote 1, supra, that he did not attempt to flee upon his release from Canadian custody, but merely returned to his mother's home in Detroit. As further support for this "no risk of flight" contention, Shelby claims that he has strong ties to the community. He states that his mother, father, uncle and daughter all live in Detroit. He further claims that has been seeking employment in the Detroit area and has been assured employment upon his release from custody. He also claims that he is active in area churches and educational facilities.

2) Defendant is involved in various pending civil actions. Shelby claims that he is "deeply immersed" in various pending civil litigation, to-wit, child custody and visitation rights proceedings and civil rights suits that he has recently instituted against various Canadian government officials regarding his arrest and detention in Canada.

3) Defendant intends to challenge the investigative procedures leading to his arrest. Shelby claims that he has several procedural and constitutional defenses to his arrest and the Canadian charges against him which bear on the of the merits of the imminent extradition proceedings against him.

III. DISCUSSION

A. THE STANDARDS APPLICABLE TO REQUESTS FOR RELEASE ON BAIL IN EXTRADITION CASES

As Defendant, himself, concedes, it is well-settled that, unlike the situation for domestic crimes, in foreign extradition cases, there is a presumption against bail. Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 786, 47 L.Ed. 948 (1903); Beaulieu v. Hartigan, 554 F.2d 1, 2 (1st Cir.1977); United States v. Leitner, 784 F.2d 159, 160 (2d Cir.1986); Salerno v. United States, 878 F.2d 317, 318 (9th Cir.1989); In the Matter of Extradition of Russell, 647 F.Supp. 1044, 1048 (S.D.Tex.1986), aff'd, 805 F.2d 1215 (5th Cir.1986); United States v. Taitz, 130 F.R.D. 442, 444 (S.D.Cal.1990).

The rationale for distinguishing pretrial release in extradition cases from domestic criminal cases in which pretrial liberty is the norm⁵ is that extradition proceedings involve the Government's overriding foreign relations interest in complying with treaty obligations and producing extradited persons. United States v. Leitner, supra; United States v. Taitz, supra; United States v. Messina, 566 F.Supp. 740, 742 (E.D.N.Y.1983). As the Taitz court, explained, "If the United States were to release a foreign fugitive pending extradition and the defendant absconded, the resulting diplomatic embarrassment would have an effect on foreign relations and the ability of the United States to obtain extradition of its fugitives." Taitz, supra, 130 F.R.D. at 444. See also, Wright v. Henkel, supra, the seminal case in which the Supreme Court established the presumption against bail and set forth the requirement of a showing of "special circumstances" for departure against that presumption, where the Court explained that its primary concern was ensuring that our Government be able to deliver the accused when the nation seeking extradition had complied with the extradition treaty. Id., 190 U.S. at 62, 23 S.Ct. at 786.

Thus, the standard for release on bail for persons involved in extradition proceedings is a more demanding standard than that for ordinary accused criminals awaiting trial; only the existence of "special circumstances" will warrant bail in extradition cases. 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) (citing, Wright v. Henkel, supra, 190 U.S. at 62, 23 S.Ct. at 786, Beaulieu v. Hartigan, supra, 554 F.2d at 2; ...