In Taitz, 130 F.R.D. at 447, the Court granted bail to a South African citizen in the United States whose extradition was sought by South Africa. One of the reasons that the Court cited for granting bail was the fact that South Africa grants bail to persons facing extradition to the United States. The Taitz Court observed that the diplomatic necessity for denying bail did not exist in the case before it, since ". . . there [could] be no diplomatic concern by South Africa if a United States court releases on bail a person who is facing extradition to South Africa where bail is available in South Africa for persons facing extradition to the United States." Id.
Under the holding in Taitz, the relevant inquiry in the present case would be whether a Mexican citizen in custody in Mexico, whose extradition was sought by the United States, would be granted bail by the Mexican courts. The experts who were called as witnesses by both parties in this case testified that Mexico does not extradite its citizens to foreign countries for criminal prosecution. Rather, such persons would be tried in Mexico. [R.T. 10/4/95 at pp.42-44 and 10/16/95 at pp.31-32.] However, if the offense charged were one for which bail was allowed under Mexican law, then such persons would be entitled to bail, under the same terms and conditions as any defendant facing the same substantive charge. [R.T. 10/4/95 at pp.44-45.] For the reasons set forth in the Taitz opinion, the Court finds this fact to constitute a special circumstance.
2. Bail on the Substantive Offense
Morales has produced evidence that under Mexican law, fraud is a bailable offense. [R.T. 10/4/95 at pp.36-37.] Article 20 of the Mexican Constitution provides that bail must be granted in criminal prosecutions, except for "severe" crimes. [R.T. 10/16/95 at p.7-8.] Court Exhibit 1, p.3. Article 145(a) of the Criminal Code of Chihuahua indicates that fraud is a serious crime, but is not considered to be a "severe" crime unless there are 10 or more victims. Id. at pp.11-13. See Court Exhibit 4, at p.2-3. Bail would be available in Mexico to a person charged with the offense of fraud if the defendant could either pay restitution for the amount of the fraud or could guarantee the amount of the fraud. Id. at pp.32-33.
In Nacif-Borge, 829 F. Supp. 1210, the Court held that the fact that bail would be available in Mexico on the underlying substantive offense constituted a "special circumstance" justifying Nacif-Borge's release on bail. The Court pointed to the fact that Nacif-Borge had provided a translation of the pertinent criminal code under which he would receive bail if arrested in Mexico, and had also provided a legal opinion from an experienced attorney in Mexico favoring his position. Id. at 1221. Morales has done both of these things. Therefore, as in Nacif-Borge, Morales has established that the underlying substantive offense is one for which bail is available under Mexican law.
While this fact, alone, would not, in this Court's view, justify Morales' release on bail, in combination with the other factors mentioned above, it contributes to this Court's finding "special circumstances" justifying bail in this case. See Nacif-Borge, 829 F. Supp. at 1535-6.
In addition to the factors just addressed, at the Court's request, the parties have presented expert testimony regarding the potential penalty Morales faces in Mexico if convicted of the fraud offense with which he is now charged. The Criminal Code of Chihuahua provides that the punishment for fraud is between four and ten years of incarceration. [R.T. 10/16/95 at p.29.] The government's expert witness testified that if convicted of the offense charged and sentenced anywhere within this range, Morales would have to serve a minimum of three years in custody before he would be eligible for release on parole. Id. at pp.30-31. However, she also testified that Mexican law provides that if the defendant either pays restitution or guarantees the amount of damages, a sentence of from three days to six months -- rather than four to ten years -- would be imposed. Id. at pp.32-33.
Morales has been in custody for seven months, which is more than the maximum sentence he would face if he were able to either pay restitution or to guarantee payment. While it appears from the record that Morales is not presently able to do either, if at some time, before trial and conviction, Morales were to make restitution or guarantee payment of restitution, then he would already have served more than the maximum potential penalty for the offense with which he is charged. If this were to occur, it would certainly constitute a rather special circumstance justifying his release on bail.
IV. RISK OF FLIGHT AND DANGER
Once special circumstances are found, the Court must determine whether the person facing extradition poses a risk of flight or danger, before granting release on bail. Nacif-Borge, 829 F. Supp. at 1221; see also Taitz, 130 F.R.D. at 444-45. The record in this case shows that Morales is a United States citizen, born in San Diego in 1953. He has strong ties to San Diego. Morales and his wife lived in Texas from 1979 until 1981, when they relocated to San Diego. They have lived in San Diego since that time. They have two children, ages fifteen and nine, both of whom attend San Diego public schools. Morales has worked as a heavy equipment broker for seventeen years. Morales faces charges for the crime of fraud, an economic crime. There is no allegation that he poses a danger to any person or to the community. He has no prior criminal convictions, and there is no indication of a history of drug or alcohol abuse.
While Morales does have ties to Mexico in that both his and his wife's extended families live there, and he lived there from the time he was four years old until he moved to Texas in 1979, "he has demonstrated a sincere desire not to return there under these circumstances by vehemently contesting every phase of these extradition proceedings." Nacif-Borge, 829 F. Supp. at 1221.
Finally, Morales has presented numerous letters from friends and business associates attesting to his good character. He has also offered two proposed sureties who are financially responsible, and who are willing to post their own property to secure a bond for him.
Based on these factors, the Court finds that Morales poses no risk of flight or danger.
While there is a presumption against bail in foreign extradition cases, a court may grant bail where special circumstances exist and where the person facing extradition poses no risk of flight or danger. The Court finds that there are special circumstances justifying Morales' release on bail, and that he poses no risk of flight or danger. The Court will therefore grant bail in this case on the following terms and conditions:
Morales shall post a personal surety bond in the amount of $ 150,000, secured by property belonging to his friends, and co-signed by the property owners, as well as by Morales' wife. Both the government and the Court must be satisfied that the bond is in fact secured by collateral before a release order will be signed.
Dated: October 26, 1995
CYNTHIA G. AARON
U.S. Magistrate Judge