California, acting on behalf of the Republic of Mexico, presented to the Honorable Anthony Battaglia, United States Magistrate Judge a complaint and a formal extradition request for Emilio Valdez Mainero (hereinafter "Valdez" or "Extraditee"). The complaint requested that Magistrate Judge Battaglia issue a provisional warrant for the arrest of Valdez with a view to Valdez' extradition to the Republic of Mexico. The United States Attorney's Office presented the complaint against Valdez pursuant to the extradition treaty between Mexico and the United States (the "Treaty"). In the complaint, it was alleged that Valdez was charged with the crime of carrying a firearm exclusively reserved for the use of the armed forces in violation of Articles 160 and 162, paragraph III, of the Criminal Code for the Federal District.
On October 1, 1996, Valdez was arraigned on the complaint. The matter was set for a bail hearing on October 9, 1996. Prior to the hearing, Mr. Valdez filed a written motion in support of bail and the U.S. Attorney's Office has filed an opposition. The hearing proceeded before Magistrate Judge Battaglia on October 9, 1996, as scheduled, and the issues were submitted for decision.
Statement of Facts
The complaint filed on September 30, 1996 sets out the underlying facts supporting the charge of carrying a firearm reserved for the armed forces. The facts provided through diplomatic channels allege that on April 19, 1994, Valdez was stopped by Tijuana City Police officers while he was carrying a .38 caliber firearm with two loaders and 26 usable cartridges of the same caliber. The firearm was manufactured in the United States. The allegations also assert that Valdez was arrested as the passenger of a Chrysler sedan on the provisional arrest warrant. At the time of his arrest, a vehicle search revealed a two way radio, and three cellular phones. The driver of the vehicle was Alfredo Hodoyan-Palacios. Hodoyan is charged in Mexico with the murder of four individuals which forms the basis of a provisional arrest warrant for Hodoyan. In addition, at the residence where Valdez was residing, federal agents executed a search warrant and found an AK-47 assault rifle. Hodoyan later claimed that he had possessed the assault rifle found at Valdez' residence.
At the hearing, the Assistant U.S. Attorney asserted that the provisional arrest would be further supported by charges involving a homicide. In this regard, the government filed the DECLARATION OF FRANCISCO MOLINA RUIZ IN SUPPORT OF GOVERNMENT'S RESPONSE AND OPPOSITION TO MOTION FOR BAIL. The Ruiz Declaration describes (at page 1) Mr. Valdez as "a highly dangerous armed person, who belongs to an organized criminal group which is dedicated to drug trafficking and other crimes". The Declaration goes on to allege Mr. Valdez's involvement in criminal conduct in Mexico including homicide and drug trafficking.
Mr. Valdez asserts that he is a lawful permanent resident in the United States having had a green card for 16 years. Mr. Valdez is 33 years old and is employed in the real estate business, collecting rent on family owned properties in Tijuana. He states he has strong ties to San Diego and Tijuana, and is married and has three minor children, ages 6, 4 and 2. Mr. Valdez has no criminal record and submits that special circumstances to justify bail include his highly likely success in opposing extradition due to the lack of dual criminality
on the firearms offense alleged in this matter. Mr. Valdez was supported at the hearing by the presence of his wife, mother, mother-in-law, three brothers-in-law, three sisters-in-law and three friends.
In addition, Mr. Valdez contends that the reason Mexican authorities want to get their hands on him is because they believe he has information about certain drug traffickers in Mexico. Mr. Valdez believes that if he is extradited to Mexico he certainly will be tortured. In fact, when Mr. Valdez was arrested, he states that the DEA agents put him on the telephone with an individual who represented himself to be a general in Mexico. The general threatened him, and said that if Mr. Valdez did not cooperate, he "would be waiting for him."
Mr. Valdez proposes that his mother can mortgage her Tijuana home of 38 years and post § 100,000 cash as security for bail. Mr. Valdez also submits that bail would be available to him on the firearms offense in Mexico and that, if convicted, the gun offense would likely result in a two year suspended sentence.
On October 15, 1996 a SUPPLEMENTAL COMPLAINT FOR PROVISIONAL ARREST WITH A VIEW TOWARD EXTRADITION was filed. The Supplemental Complaint states, among other things, that on October 9, 1996, Mr. Valdez was charged in Mexico with the crime of criminal conspiracy (Article 164, paragraph 1, and Article 13, section II of the Penal Code for the Federal District) and a warrant was issued for his arrest.
Extraditee's Right to Bail
Title 28 U.S.C. § 636(a)(1) grants to magistrate judges "all powers and duties conferred or imposed upon United States commissioners by law...". One such power is conferred by 18 U.S.C. § 3184, which authorizes "any magistrate judge authorized to do so by a court of the United States" to conduct proceedings when a foreign government seeks the extradition of a person found within the magistrate's judicial district.
Section 3184 does not mention bail, but the power to make bail determinations is within the magistrate judge's more general power to conduct proceedings in extradition matters. See, e.g., Wright v. Henkel, 190 U.S. 40, 47 L. Ed. 948, 23 S. Ct. 781 (1903); In re Extradition of Russell, 647 F. Supp. 1044, 1046 (S.D. Tex. 1986); accord In re Extradition of Rolf Siegmund, 887 F. Supp. 1383 (D. Nev. 1995). Moreover, because an extradition proceeding is not a criminal case, the Bail Reform Act of 1984 does not govern international extradition proceedings. Kamrin v. United States, 725 F.2d 1225, 1227-1228 (9th Cir.), cert. denied, 469 U.S. 817, 83 L. Ed. 2d 32, 105 S. Ct. 85 (1984). See also United States v. Hills, 765 F. Supp. 381, 385 n.5 (E.D. Mich. 1991) ("Several courts have expressly held that...the provisions of the Bail Reform Act do not apply in extradition actions"). The legal standards governing the detention or release of a fugitive are matters of federal case law.
The Supreme Court and the federal courts of appeals have consistently held that bail should not ordinarily be granted in foreign extradition cases. In Wright v. Henkel, 190 U.S. 40, 47 L. Ed. 948, 23 S. Ct. 781 (1903), the Supreme Court affirmed the detention without bail of a fugitive sought by Great Britain for defrauding a corporation of which he was director. The Court held that, "bail should not ordinarily be granted in cases of foreign extradition...". Id. at 63.
The Court in Wright noted:
The demanding government, when it has done all that the treaty and law require it to do, is entitled to delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender; an obligation which it might be impossible to fulfill if release on bail were permitted. The enforcement of the bond, if forfeited, would hardly meet the international demand; and the regaining of the custody of the accused obviously would be surrounded with serious embarrassment.
Id. at 62.
"The courts that have interpreted Wright v. Henkel, generally agree that there is a presumption against bail in an extradition case and that the defendant facing the extradition hearing has the burden of establishing special circumstances in order for a court to order pre-hearing conditional release." United States v. Taitz, 130 F.R.D. 442, 444 (S.D. Cal. 1990). The Ninth Circuit Court of Appeals has also adopted the position that bail should not usually be permitted in foreign extradition cases. Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989).
The Application of the Special Circumstances Rule
In order to avoid the potential harshness of an absolute prohibition on bail, the courts, relying on language in Wright v. Henkel, have carved out a limited exception to the general prohibition against bail, termed "special circumstances." "A person subject to international extradition may overcome the presumption against bail by presenting clear and convincing evidence demonstrating 'special circumstances' justifying release pending extradition proceedings and that the person will not flee or pose a danger to any other person or to the community." Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210, 1215 (D. Nev. 1993). As Judge Learned Hand explained, this exception "should be exercised only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory." In re Mitchell, 171 F. 289, 290 (S.D.N.Y. 1909). This standard of "special circumstances" for release on bail for persons involved in a foreign extradition proceeding "is a more demanding standard that for ordinary accused criminals awaiting trial." 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 (1981). Special circumstances must be extraordinary and not factors applicable to all defendants facing extradition. Extradition of Smyth, 976 F.2d 1535, 1535-36 (9th Cir. 1992). In addition, the Extraditee must provide "clear and convincing evidence" of special circumstances. Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210, 1215 (D. Nev. 1993).
The term "special circumstances" has never been precisely defined and courts have addressed on a case by case basis particularly sufficient circumstances that would reverse the strong presumption against bail. The government concedes here that Valdez could show a "special circumstance" by submitting proof of a "substantial claim upon which extraditee has a high probability of success." Salerno v. United States, 878 F.2d 317 (9th Cir. 1989). However, the government disputes the likelihood of success by Mr. Valdez in this case. Valdez contends that he has a high probability of successfully defeating any extradition on the firearms charges due to lack of dual criminality.
The focus of dual criminality is not on the definition of the offense in the requesting country but rather on whether the alleged conduct is a crime in both jurisdictions. United States v. Levy, 905 F.2d 326, 328 (10th Cir. 1990), cert. denied, 498 U.S. 1049, 112 L. Ed. 2d 778, 111 S. Ct. 759 (1991); Spatola v. United States, 925 F.2d 615, 619 (2d Cir. 1991).