The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge
ORDER DENYING MOTION TO RELEASE BRUCE BERESFORD-REDMAN (Docket No. 13)
On November 12, 2010, the United States of America ("the United States") filed a Complaint for Provisional Arrest with a View Towards Extradition (the "Complaint") pursuant to 18 U.S.C. § 3184. The Complaint alleged that Bruce Ainsley Beresford-Redman ("Beresford-Redman") had been charged in the State of Quintana Roo, Mexico with aggravated homicide as described by articles 86, 106(I) and 14, and punishable under article 89 of the Penal Code of the State of Quintana Roo. (Complaint at 2, ¶ 5). The Complaint further alleged that aggravated homicide is an extraditable offense under Article 2, Paragraph 1 of the Extradition Treaty between the United States and Mexico (the "Extradition Treaty"), and Item 1 of its Appendix. (Id. at 10, ¶ 7). Finally, the Complaint alleged that Beresford-Redman was at large in the Central District of California and requested a warrant for Beresford-Redman's arrest. (Id., ¶ 9). Also on November 12, 2010, the Court issued a warrant for the provisional arrest of Beresford-Redman.
On November 16, 2010, Beresford-Redman was arrested and taken into custody. On November 17, 2010, the United States filed a Motion for Detention of Fugitive Bruce Ainsley Beresford-Redman Pending Extradition (the "Motion for Detention"). In the Motion for Detention, the United States asked the Court to order Beresford-Redman held without bond pending receipt of the formal request for extradition and the hearing on the certification of the extradition. (Motion for Detention at 1-2). After briefing by the parties, the Court held a hearing on the Motion for Detention on November 29, 2010. The Court granted the Motion for Detention at the hearing and issued a decision on December 2, 2010.
Also on November 29, 2010, Beresford-Redman filed a Motion to Release Bruce Beresford-Redman for Provisional Arrest in Violation of the Fourth Amendment (the "Motion to Release"). Later the same day, the United States filed an Opposition to Motion for Release Based on Alleged Violation of Fourth Amendment (the "Opposition"). On December 1, 2010, the United States filed a Supplemental Opposition to Motion for Release Based on Alleged Violation of Fourth Amendment (the "Supplemental Opposition"). On December 3, 2010, Beresford-Redman filed a Reply to Government's Supplemental Opposition to Motion for Release for Fourth Amendment Violation (the "Reply"). On December 7, 2010, the Court held a hearing on the Motion to Release. For the reasons discussed below, the Court DENIES the Beresford-Redman's Motion to Release (DocketNo. 13).
Beresford-Redman contends that he should be released forthwith because the provisional arrest warrant was not supported by competent evidence nor did the government make a showing of probable cause. (See Motion to Release at 3). First, Beresford-Redman argues that the Fourth Amendment requires probable cause to support a warrant for provisional arrest. (See Reply at 2-4). Second, Beresford-Redman argues that Article 11 of the Extradition Treaty and 18 U.S.C. § 3184 violate the Fourth Amendment because they authorize a warrant for provisional arrest without probable cause. (See id. at 4-9). Third, Beresford-Redman*fn1 argues that the facts in the Complaint fail to establish probable cause because they are asserted on "information and belief." (See id. at 9-13).
Beresford-Redman primarily bases his arguments on the Ninth Circuit's opinion in Parretti v. United States, 122 F.3d 758, 764 (9th Cir. 1997), withrdawn and appeal dismissed on other grounds 143 F.3d 508 (9th Cir. 1998). (See, e.g., Motion to Release at 3) ("This case falls squarely within the holding of Parretti."). In Paretti, the Ninth Circuit determined that 18 U.S.C. § 3184 authorized the issuance of provisional arrest warrants pursuant to extradition treaties without a showing of probable cause. See Parretti, 122 F.3d at 770 ("Section 3184 does not require an independent judicial determination of probable cause to believe the fugitive committed the offense. . . . In other words, § 3184 contemplates an arrest so that thereafter, at the extradition hearing, the 'evidence of criminality,' i.e., the existence of probable cause, may be heard."). Based on this construction of the statute, the Ninth Circuit found that section 3184 violated the Fourth Amendment. See id. at 773 ("18 U.S.C. § 3184 violates the Fourth Amendment to the extent it authorizes the issuance of 'provisional arrest' warrants without independent judicial determinations of probable cause. We reject the government's argument that a warrant for 'provisional arrest' made pursuant to treaty may be constitutionally issued on the existence of a foreign arrest warrant charging the fugitive with having committed extraditable crimes, unsupported by competent evidence of probable cause.").
The panel in Parretti went on to find that the evidence offered in support of the provisional arrest warrant at issue was insufficient to permit the magistrate judge to make a finding of probable cause because the evidence "consisted of nothing more than naked allegations."
Parretti, 122 F.3d at 775 ("[T]hose allegations without supporting affidavits or other competent evidence provide no basis for a judicial determination whether there is probable cause to believe Parretti committed an extraditable crime."). The Ninth Circuit explained that "the facts alleged in the French arrest warrant were obtained from 'investigations' by unidentified French authorities and from unidentified experts, shareholders, and employees of [the allegedly victimized company]. The government presented no affidavits, deposition testimony, or other competent evidence that could have provided [the magistrate judge] with a substantial basis for concluding that probable cause exists." Id. at 774 (citation, internal quotation marks, and ellipses omitted)).
Beresford-Redman concedes that Parretti is not binding precedent because it was withdrawn on other grounds, but argues that the Court should consider and adopt the opinion's Fourth Amendment analysis. (See Reply at 3 n.1) ("The Fourth Amendment ruling by the Parretti panel is not controlling precedent because the opinion was withdrawn under the doctrine of 'fugitive disentitlement' following Parretti's flight from the jurisdiction of the United States. Given that the decision was withdrawn on other grounds, this Court may, and ...