arrest. A warrant was issued by Magistrate Judge Elaine Bucklo on June 4, 1993.
On October 13, 1993, Rouvier was arrested pursuant to the warrant issued by Judge Bucklo, and an initial appearance was held before Magistrate Judge Joan H. Lefkow on the same day. At the initial appearance, Rouvier was advised of the charges against him and his right to waive extradition.
Pursuant to the Treaty and applicable federal law, the government requested that the hearing to determine Rouvier's extraditability be scheduled ten days after the expiration of the deadline established in the Treaty for the submission of supporting documents by the government of France. Under the Treaty, this deadline is 40 days after Rouvier's provisional arrest.
Rouvier, by this counsel, Daniel G. Martin of the Federal Defender's office, requested release on bail pending the extradition hearing. The government opposed Rouvier's request, and Judge Lefkow scheduled a detention hearing in the case for October 14, 1993.
Judge Lefkow heard proffers of evidence, received exhibits, and heard argument from both government and defense counsel. She then invited defense counsel to file a written brief in support of his motion, and continued the hearing to October 18, 1993.
On October 18, 1993, Judge Lefkow ruled from the bench on Rouvier's motion. She ordered that Rouvier be released on $ 50,000 (ten percent cash) bond pending the extradition hearing. At the government's request, Judge Lefkow stayed her order through the end of the day in order to allow the government to decide whether to seek reconsideration of her ruling. On October 19, 1993, Judge Lefkow continued the stay of her order pending a decision by this court.
This court has been called upon to decide this matter on an expedited basis based on a very limited record. As Judge Lefkow ruled from the bench, there is no written opinion by which this court can review her analysis and findings of fact. Further, given the expedited nature of the proceeding, no transcript has of yet been provided. The parties did prepare a formal stipulation of facts to aid the court in its review. Thus, this court proceeds on the basis of the government's and Rouvier's memoranda, the stipulation and the limited exhibits.
The federal statute implementing United States extradition treaties with other nations, Title 18 U.S.C. § 3184 et seq., does not provide for bail. Because an extradition proceeding is not a criminal case, the Bail Reform Act of 1984 does not govern. 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). Given the absence of statutory law governing bail in international extradition proceedings, the question is determined based on federal common law.
The United States Supreme Court and the federal courts of appeals have long held that bail should not ordinarily be granted in foreign extradition cases. See Wright v. Henkel, 190 U.S. 40, 47 L. Ed. 948, 23 S. Ct. 781 (1903); Martin v. Warden, Atlanta Pen., 993 F.2d 824, 827 (11th Cir. 1993) (presumption against bail in extradition cases); Sahagian v. U.S., 864 F.2d 509, 514 n.6 (7th Cir.), cert. den. 489 U.S. 1087, 103 L. Ed. 2d 852, 109 S. Ct. 1548 (1989).
Only the presence of special circumstances will justify the granting of bail. Martin, 993 F.2d at 827; Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991); Salerno v. United States, 878 F.2d 317, 319 (9th Cir. 1989); Sahagian, 864 F.2d at 514 n.6. "Special circumstances include the raising of substantial claims upon which the appellant has a high probability of success, a serious deterioration of health while incarcerated, and unusual delay in the appeal process." Salerno, 878 F.2d at 317. That the detainee is not a flight risk is not a special circumstance warranting release. Id. at 318.
The case that apparently received the most emphasis in the proceeding below was In the Matter of the Extradition of Kamel Nacif-Borge, 829 F. Supp. 1210, 1993 U.S. Dist. LEXIS 11252 (D. Nev. 1993). The Nacif-Borge court conducted a lengthy review of extradition jurisprudence. The court began by noting that "the primary concern in an international extradition matter is to deliver the extraditee to the requesting nation", and that the statute governing international extradition proceedings, Title 18 U.S.C. § 3184, contains no provisions for bail. Id. at 4. This court agrees that the primary concern is delivering the extraditee to the requesting country; there is a strong national interest in fulfilling all treaty obligations.
The Nacif-Borge court also accepted the truism that bail is rarely granted in extradition cases, and only granted in the presence of "special circumstances". Id. at 5-6. Upon a survey of the case law, the court came to the conclusion that the following situations constitute "special circumstances":
1. that extraditee displays a high probability of success on the merits;
2. the extraditee has suffered a serious deterioration of health;