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July 24, 1992


The opinion of the court was delivered by: BARBARA A. CAULFIELD

 On April 30, 1992, the United States Attorney filed a Complaint seeking a warrant for the provisional arrest of JAMES JOSEPH SMYTH for extradition to the United Kingdom of Great Britain. 18 U.S.C. § 3184. On May 27, 1992, the U.S. Attorney filed an Indictment in this District charging Smyth with making a false statement in a passport application in violation of 18 U.S.C. § 1542.

 On June 3, 1992, Smyth was arrested on the passport charge in San Francisco, California and taken into custody. The U.S. Attorney withheld execution of the provisional arrest warrant issued on April 30. Smyth was arraigned on June 9, 1992. At the arraignment, Magistrate Judge Claudia Wilken heard arguments on defendant's request to be released on bail pending trial on the passport charge. Magistrate Judge Wilken ordered that Smyth be detained pending trial on the passport charge. During the hearing, the government called to the attention of the magistrate judge both the false passport charge and the request for extradition by the United Kingdom.

 On July 14, 1992, this court reversed the magistrate judge's order denying Smyth's request to be released pending trial. As Smyth was being held on the passport charge, and not the provisional arrest warrant, the court held that he was entitled to the presumption supporting bail contained in the Bail Reform Act of 1984. 18 U.S.C. § 3142(c). Under the Bail Reform Act, the government bears the burden of persuasion to show by a preponderance of the evidence that the defendant is a flight risk or, by clear and convincing evidence, that he is a danger to the community. United States v. Aitken, 898 F.2d 104, 107 (9th Cir. 1990). The government made no attempt to argue that Smyth posed a threat to the community. With respect to the government's argument that Smyth was a flight risk, the court was persuaded by the recommendations contained in the Pre-Trial Services Report that with the proper bond and security procedures, Smyth posed no flight risk. The court also found that Smyth's ties to the community and support were substantial. The court ordered a bond of $ 1.5 million dollars, with security measures including electronic monitoring. The court also ordered that those individuals who have signed personal bonds with the court were to report any violation of the court's bond requirements.

 On July 15, 1992, one day after the court's ruling granting Smyth's request for bail, the government executed the provisional arrest warrant and requested that he be detained pending extradition to Great Britain. Thereafter, Smyth filed the current Motion for Bail which, after discussion with the parties, the court set for hearing on July 23, 1992 at 4:00 p.m.

 Smyth was born in Belfast, Northern Ireland in 1954. In 1977 he was living with his parents in the Ardoyne section of Northern Ireland when he was arrested for the attempted murder of a prison guard. Smyth was tried and convicted by a single judge in the Diplock Court of attempted murder and sentenced to twenty years in the Maze prison in Belfast, Ireland.

 In September of 1983, 38 prisoners, including Smyth, escaped from the Maze. In 1984, he arrived in San Francisco. Since that time Smyth has lived and worked in San Francisco without any reported incident. It is undisputed by defendant that he has lived here under an assumed name, and that he obtained passports using false names. In 1986, Smyth married Margaret Lynch. Smyth maintains that he has never shared with his wife the specifics of his life in Ireland.



 Smyth brings this motion seeking release on bail pending his extradition hearing. It is well settled that bail should be denied in extradition proceedings absent a showing of "special circumstances". See Wright v. Henkel, 190 U.S. 40, 62-63, 47 L. Ed. 948 , 23 S. Ct. 781 (1903); Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir. 1981), cert. denied, 454 U.S. 971, 70 L. Ed. 2d 389 , 102 S. Ct. 519 ; Salerno v. United States, 878 F.2d 317 (9th Cir. 1989). There is no presumption favoring bail in the extradition context; in fact, the opposite is clearly the case. Matter of Extradition of Russell, 805 F.2d 1215, 1216 (5th Cir. 1986). Recently, however, courts have noted that the State Department has recognized a trend towards liberalization of bail determinations, at least in the provisional arrest context. The practice of the district courts has been to release persons provisionally arrested awaiting the filing of formal extradition charges. See United States v. Leitner, 784 F.2d 159, 160 (2d. Cir. 1986); United States v. Messina, 566 F. Supp. 740, 742 (E.D.N.Y. 1983); United States v. Tang Yee-Chun, 657 F. Supp. 1270, 1271 n.2 (S.D.N.Y. 1987); United States v. Taitz, 130 F.R.D. 442, 446 (S.D. Cal. 1990).

 Smyth contends that the following "special circumstances" justify granting bail pending his extradition hearing: (1) his background, including the political climate in Northern Ireland; (2) his extensive community ties; (3) his case against extradition is strong and he has a need to consult with counsel; (4) the proceedings are likely to be lengthy; (5) the prospect that his health will deteriorate while in prison; and (6) since he does not present a flight risk, there is no diplomatic necessity for his detention.

 What precisely constitutes "special circumstances" has never been defined. In Wright, the Supreme Court upheld the lower court's order denying bail. In so doing, the court expressed its unwillingness to hold that courts do not possess any power to grant bail in extradition matters. Id. at 63. In the eighty-nine years since Wright the Supreme Court has not revisited this issue.

 The list of potential "special circumstances" is not limited to those previously enumerated in published decisions. Moreover, the decision to grant bail and, consequently, the determination of what constitutes a "special circumstance", is left to the sound discretion of the trial judge. Beaulieu v. Hartigan, 554 F.2d 1 (1st Cir. 1977). The only certain guideline is that lack of flight risk alone does not constitute sufficient "special circumstances". ...

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