Wroclawski v. U.S.

• Decision Date: 05 June 2009
• Docket Number: No. CV 09-0977-PHX-MHM (DKD).,CV 09-0977-PHX-MHM (DKD).
• Citation: Wroclawski v. U.S., 634 F.Supp.2d 1003 (D. Ariz. 2009)
• Parties: Roman WROCLAWSKI, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Arizona

634 F.Supp.2d 1003

Roman WROCLAWSKI, Petitioner, v. UNITED STATES of America, Respondent.

No. CV 09-0977-PHX-MHM (DKD).

United States District Court, D. Arizona.

June 5, 2009.

Daniel Lee Kaplan, Milagros Anais Cisneros, Federal Public Defenders Office, Phoenix, AZ, for Petitioner.

Kevin M. Rapp, U.S. Attorney's Office, Phoenix, AZ, for Respondent.

ORDER

MARY H. MURGUIA, District Judge.

Before the Court is Petitioner's Motion for Release Pending Resolution of Habeas Corpus Proceedings. (Dkt. # 24.) The motion is fully briefed. (Dkt. ## 27-28.) The Court will grant Petitioner's motion.

I. Background

Petitioner is a native of Poland who is now subject to a Certificate of Extraditability (Certificate) entered by Magistrate Judge Michelle H. Burns in MJ No. 07-0302M (MHB). Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the finding of probable cause underlying the Certificate. The Court has already resolved Petitioner's Motion for Emergency Stay of Extradition pending resolution of his habeas corpus petition—that motion was denied as moot because 18 U.S.C. § 3188 automatically tolls the Certificate during the pendency of Petitioner's habeas corpus proceeding (Doc. # 20 at 2). See Barrett v. United States, 590 F.2d 624, 626 (6th Cir.1978).

The Court explained, however, that resolution of Petitioner's Motion for Emergency Stay did not resolve the question of whether Petitioner should be detained during the pendency of his habeas corpus petition. Consequently, the Court directed Petitioner to file a motion seeking release that identified the source(s) of authority to permit Petitioner's release and whether release under those circumstances (if available) would be appropriate.

Petitioner has filed his motion for release, the Government has filed its response, and Petitioner has replied. (Dkt. ## 24, 27-28.)

II. The Court's Authority to Order Petitioner's Release

The threshold question is whether the Court has the authority to order Petitioner's release while his habeas corpus petition is adjudicated. Petitioner argues that the Court does possess this authority, and it is derived from three independent sources: (1) the federal common law doctrine of "special circumstances"; (2) the Court's inherent power to issue a Writ of Habeas Corpus; and (3) the Fifth Amendment's Due Process Clause (Dkt.# 24 at 2-6).

The Supreme Court in Wright v. Henkel established that district courts may release relators when "special circumstances" are present. 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903). And while Henkel arose during the pre-certification stage of extradition, subsequent case law has made clear that the special circumstances test is applicable in both the pre- and post-certification stages of extradition. Indeed, the Ninth Circuit itself utilized this test to determine whether a relator whose habeas petition was unsuccessful was entitled to bail pending appeal. Salerno v. United States, 878 F.2d 317, 317-318 (9th Cir.1989). And both the First and Second Circuits have found no distinction between relators seeking bail before or after issuance of certificates of extraditability. See Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir.1981); Beaulieu v. Hartigan, 554 F.2d 1, 1-2 (1st Cir.1977). This authority, along with the myriad district court cases also applying the special circumstances test cited by Petitioner are persuasive.

In opposition, the Government contends that Henkel only authorized the issuance of bail during the pre-certification stage of extradition and the extradition statute—18 U.S.C. § 3184—mandates detention after the certificate of extraditability has issued. There is no doubt that Henkel was a pre-certification case and did not plainly state that the "special circumstances" test extends post-certification. Specifically, the Government avers that the Supreme Court explicitly stated that it would be inconsistent with the federal extradition statute to authorize bail in the post-certification stage. (Dkt. # 27 at 3.) But the Government has failed to cite a single case to support its reading of Henkel and even identifies a district court case that flatly rejected this precise argument. See Garcia v. Benov, No. CV 08-07719 (C.D.Cal. April 13, 2009) (finding no distinction in pre- or post-certification application of special circumstances test). In the alternative, the Government contends that the dearth of authority permitting bail under special circumstances at any time during the extradition process is simply wrong. This unsupported argument is unpersuasive.

Finally, the Government argues that its interest in meeting treaty obligations militates toward a finding that bail is not appropriate for relators post-certification. But this argument finds no support in any case law and the Government does not in any way explain how Petitioner's release on bail would interfere with the execution of the Government's treaty obligations when it explicitly concedes that Petitioner is not a flight risk. (Dkt. # 27 at 9) ("the United States concedes [ ] that there is no evidence to suggest that Petitioner is a flight risk.")

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 his habeas corpus petition. Consequently, the Court need not reach Petitioner's arguments that the Court's inherent authority to grant a Writ of Habeas Corpus or the Fifth Amendment's Due Process Clause supply concurrent authority to grant Petitioner's release on bail.

III. Whether Special Circumstances Exist Justifying Release

Having determined that the Court has the authority to order Petitioner's release while his habeas corpus petition is pending, the remaining question is whether the Court should do so. While Petitioner's extradition case was pending before Magistrate Judge Burns, she explicitly determined that special circumstances existed that justified Petitioner's release (In the Matter of the Extradition of Wroclawski, Mag. No. 07-302-M (MHB), Doc. # 60 at 8-9 (Magistrate Case)). And now, Petitioner claims that those special circumstances have been slightly modified but are still present. In support of Petitioner's argument that he presents special circumstances warranting release, he submits the affidavits of David Toledo, who interviewed U.S. Army Special Forces Sergeant First Class Zevon Durham, United States Marine Corps First Lieutenant and City of Tempe Police Officer Alfredo Jimenez, City of Mesa Police Officer Michael McClure, and Jeff Funicello (Dkt. # 24, Exs. 1-3, 6); letters from Olympic Champion Rulon Gardner, USA Wrestling Executive Director Rich Bender, Lisa Hartman, Peggy Roberts, Thomas and Ann Funicello, James R. Roberts, Earl Roberts, George Williams, Bob Cavalliere, Tony Maccaroli, Heath Sims, Shon Lewis, David Spangler, Jeffrey Funicello, Dremiel Byers, Larry Ditler, Robin Roche (id. at Exs. 4-5); testimony from Petitioner's wife related to her belief that the charges against Petitioner are politically motivated (id. at Ex. 7); copies of newspaper articles supporting Petitioner (id. at Exs. 8-9); a copy of the Extradition Treaty (id. at Ex. 10); a Report on human rights in Poland by the United States Department of State (id. at Exs. 11, 13); information on Greco-Roman wrestling (id. at Ex. 12); and copies of other documents filed under seal. (Dkt. # 31, Exs. S1-S3.)

To begin, the Court notes that it is not bound by an exhaustive list of "special circumstances." In the Matter of the Extradition of Gonzalez, 52 F.Supp.2d 725, 736 (W.D.La.1999) (citing Beaulieu, 554 F.2d at 1). The determination of what factors to consider and how much weight to give them is within the "sound discretion" of the Court. Beaulieu, 554 F.2d at 1. Moreover, "[a] collective approach can lead to a finding of special circumstances." Magistrate Case Doc. # 60 at 8 n. 1 (citing In re Molnar, 182 F.Supp.2d 684, 689 (N.D.Ill.2002)).

A. Petitioner's Flight Risk

Petitioner first contends that he is not a flight risk and that constitutes a special circumstance warranting consideration. The district court In the Matter of Extradition of Sidali, 899 F.Supp. 1342, 1351 (D.N.J.1995), relied heavily on the fact that the relator was not a flight risk as a special circumstance warranting release. Id. at 1352. In re Mitchell is also in accord with finding the absence of a flight risk as a special circumstance. 171 F. 289 (D.C.N.Y.1909) ("the fact that [the relator] has long known of these proposed proceedings and has made no effort to avoid them or escape" is a special circumstance warranting release on bail).

The Government contends that whether a relator is classified as a flight risk cannot be considered a special circumstance. Yet, the cases relied upon by the government belies its position. The Ninth Circuit in Salerno did not state that absence of a flight risk is not a special circumstance. Rather, the court stated that whether someone was a flight risk was not the appropriate test to determine whether a relator is entitled to bail. Nor did the Second Circuit in Leitner hold that absence of a flight risk was not properly considered a special circumstance; instead, the court found that absence of a flight risk would not be dispositive of the issue. U.S. v. Leitner, 784 F.2d 159, 161 (2nd Cir.1986). And in Salerno and Leitner, the courts did not find other special circumstances such that, combined with the absence of a flight risk, the relator was entitled to release. The Government has not introduced any persuasive authority for the proposition that absence of a flight risk cannot be considered a special circumstance.

As articulated above, the Government concedes that there is no evidence that Petitioner is a flight risk. In fact, the Government would be hard-pressed to argue otherwise—Petitioner is charged with non-violent business crimes, there is no evidence...