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In re Extradition of Burgos Noeller

United States District Court, N.D. Illinois, Eastern Division

December 19, 2017



          Jeffrey Cole, Magistrate Judge

         The Federal District Court in Mexico City issued a warrant for the defendant's arrest on June 18, 2015. On October 10, 2017, the United States filed a Complaint against the defendant for Provisional Arrest in Furtherance of Extradition pursuant to 18 U.S.C 3184. The Complaint alleged that there was an extradition treaty in force between the United States and Mexico, Article 11 of which provides for the provisional arrest and detention of alleged fugitives, pending the submission of a formal request for extradition and supporting documents.[1] The Complaint alleged that in accordance with Article 11 of the Treaty, Mexico has asked the United States for the provisional arrest of Mr. Burgos Noeller for having murdered in Mexico, Rosa Elena Jacobo Carrillo, the woman with whom he had two children.

         The Complaint charged that the killing had been preceded by domestic violence between the two and that the defendant had previously threatened to kill Rosa. Two family members have sworn they saw him grab Rosa by the hair and begin to choke her. He then, they said, shot her with his pistol twice in the head and fled. The two named family members, who knew Burgos Noeller from his relationship with Rosa, identified him as the killer from a photograph. There is sworn testimony accompanying the Complaint that the murdered woman's family who saw the killing would be witnesses at a trial. Their truthfulness or accuracy is for a jury in Mexico, not for this court. Sahagian v. United States, 864 F.2d 509, 514 (7th Cir. 1988). On October 12, 2017, the defendant was transferred from ICE custody to the custody of the U.S. Marshals, and he is presently housed at the Metropolitan Correctional Center in Chicago.

         Despite the horrific nature of the charged crime and the existence of substantial evidence against him, the defendant seeks release on bond. [Dkt. #22]. While he concedes that release on bond pending an extradition hearing is “disfavored” [Dkt. #22 at 2], and that the Bail Reform Act does not apply in extradition proceedings, he contends that bail may nonetheless be granted upon the showing of “special circumstances.” His initial argument that he has shown that he is neither a flight risk, nor a danger to the community is based on the fact that his father-in-law and brother-in-law have stated in Declarations that he is, in reality, an honorable man, whom his family and friends love, and who has positively impacted the lives of others. Declarations from the defendant's wife and children have also been attached to the defendant's Motion for Bond. In essence, they attest to the importance of the defendant in their lives.

         Perhaps recognizing that, even if true, these encomia are insufficient in themselves for a court to allow the defendant to be released on bond, the defendant contends that “special circumstances”exist requiring bond. The argument is that he suffers from epileptic seizures, which the MCC has not, will not and cannot properly treat. To that is added the contention that the defendant fears for his safety and indeed his very life if he is returned to Mexico. As we shall see, the defendant has not proven the facts underlying these claims. And, “unfortunately... saying so doesn't make it so....” United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir.2010). “Lawyers' talk is no substitute for data.” Phillips v. Allen, 668 F.3d 912, 916 (7th Cir. 2012). We begin with the legal framework of extradition proceedings.




          The extradition process is sui generis. Skaftouros v. United States, 667 F.3d 144, 155 (2d Cir. 2011). Extradition is primarily an executive function, with the court playing a defined and limited role. Authorized by statute, the court is to hold a hearing at which it determines whether to certify to the Secretary of State that the evidence provided by the requesting country is “sufficient to sustain the charge.” 18 U.S.C. § 3184. The Secretary of State, and not the court, then decides whether the fugitive should be surrendered to the requesting country. 18 U.S.C. §§ 3184, 3186; Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981). “This bifurcated procedure reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, such as questions of the standard of proof, competence of evidence, and treaty construction, yet simultaneously implicate questions of foreign policy, which are better answered by the executive branch.” United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997).

         At the extradition hearing, the court's role is limited to considering the requesting country's evidence and determining whether the legal requirements for certification of extraditability-as defined in the applicable extradition treaty, statutes, and case law-have been established. If the court finds that the requirements for certification have been met, it must provide the certification to the Secretary of State, together with a copy of any testimony taken before the court, and must commit the fugitive to the custody of the U.S. Marshal to await the Secretary's final determination regarding surrender. 18 U.S.C. § 3184 (following certification, the extradition judge “shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made”). See also Eain, 641 F.2d at 508.

         In fulfilling its function under § 3184, the court should liberally construe the applicable extradition treaty in order to effectuate its purpose, namely, the surrender of fugitives to the requesting country. Factor v. Laubenheimer, 290 U.S. 276, 298-300 (1933). See also, Martinez v. United States, 828 F.3d 451, 463 (6th Cir. 2016)(en banc)(“default rule” is that any ambiguity in extradition treaty must be construed in favor of “facilitat[ing] extradition”). Accordingly, because extradition treaties should be “interpreted with a view to fulfilling our just obligations to other powers, ” Grin v. Shine, 187 U.S. 181, 184 (1902), a court should “approach challenges to extradition with a view toward finding the offenses within the treaty.” McElvy v. Civiletti, 523 F.Supp. 42, 48 (S.D. Fla. 1981). See also United States v. Nolan, 2009 WL 4544699 at 2-3 (N.D.Ill. 2009)(“‘...the rational [sic] for not ordinarily granting bail in extradition cases is that extradition cases involve an overriding national interest in complying with treaty obligations.'”).

         B. The Rule of Non-Inquiry

          All matters raised by the fugitive as a defense to extradition, other than those related to the requirements for certification, are to be considered by the Secretary of State, not by the court. 18 U.S.C. §§ 3184 & 3186. For example, the Secretary of State should address a fugitive's contentions that an extradition request is politically motivated, that the requesting state's justice system is unfair, or that extradition should be denied on humanitarian grounds. Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005)(extradition judge does not have authority to consider humanitarian objections to extradition); Koskotas v. Roche, 931 F.2d 169, 173-74 (1st Cir. 1991) (motives of requesting state is a matter for consideration by the executive branch); Quinn v. Robinson, 783 F.2d 776, 789 (9th Cir. 1986) (“the Secretary of State has sole discretion to determine whether a request for extradition should be denied because it is a subterfuge made for the purpose of punishing the accused for a political crime, or to refuse extradition on humanitarian grounds because of the procedures or treatment that await a surrendered fugitive”). This practice is consistent with the long-held understanding that the surrender of a fugitive to a foreign government is “purely a national act . . . performed through the Secretary of State.” In re Kaine, 55 U.S. 103, 110 (1852).




         Since Wright v. Henkel, 190 U.S. 40, 63 (1903), it has been settled that “while bail should not ordinarily be granted in cases of foreign extradition, ” courts are not powerless to grant bail if the defendant can show there are “special circumstances.” That deceptively simple phrase was not defined or discussed by the Court, although it seems obvious that the circumstances cannot be those which affect extradition defendants generally, but rather must be, as the Court required, “special.” As so often occurs, the Court left it for succeeding cases to reify an elusive and nebulous concept that defied easy definition. Although extradition laws have been updated and procedures re-codified since 1903, bail has not been statutorily provided for in extradition cases.

         Thus the concept of “special circumstances” began as and continues to be an undefined (but not unexplored) judicial creation. To say that “[s]pecial circumstances are limited to situations in which the justification [for release] is pressing as well as plain” may not define “special circumstances, but it tellingly conveys how infrequently bail has been granted in extradition cases and how onerous a defendant's burden is in such cases. See United States v. DeLoera, 2006 WL 1518981 at 3 (N.D.Ind. 2006). Only a review of the variegated facts of a lengthy series of cases can help to determine what constitutes“special circumstances.” What is clear is that there is a long-standing presumption against bond in extradition proceedings, and that absent a showing by the defendant that there are “special circumstances” associated with the case, bail will be denied. Gullers v. Bejarano, 2009 WL 250053 (S. D. Cal. 2009).

         As an initial matter, a fugitive charged with crimes in another country is by definition in flight or deliberately absent from that jurisdiction, and the fact that the fugitive has evaded prosecution in his home country is indicative of his risk of flight were he to be released on bond here. In the context of determining whether a defendant poses a substantial risk of flight, there is no meaningful distinction between a person who left a country when he learned of pending charges and one who already outside that country refuses to return to face these charges. The intent is the same-the avoidance of prosecution. Jhirad v. Ferrandina, 536 F.2d 478, 483 (2d Cir. 1976); United States v. Botero, 604 F.Supp. 1028, 1035 (S.D. Fla. 1985). Thus, one who has left a country charging him with murder of the mother of his children, is a likely flight risk in the country to which he has fled after the charged crime.

         The traditional rationale for the presumption is that the individual, if released, could abscond, leading to serious embarrassment to the United States and a potential that reciprocating foreign countries would not honor this country's extradition requests. See In re Extradition of Orozco, 268 F.Supp.2d 1115, 1117 (D. Ariz. 2003).[2]

         To satisfy the “special circumstances” rule, the circumstances must be extraordinary and not merely applicable to all defendants facing extradition. In re Extradition of Smyth, 976 F.2d 1535, 1535-36 (9th Cir. 1992); Gullers, 2009 WL 250053; In re Extradition of Mainero, 950 F.Supp. 290, 294 (S.D. Cal. 1996). Courts have considered and rejected a lengthy list of claimed special circumstances, including: the fugitive's character, background, and/or ties to the community, see, e.g., Beresford-Redman, 753 F.Supp.2d at 1089; Matter of Extradition of Sidali, 868 F.Supp. 656, 658 (D.N.J. 1994), the fact that the fugitive may have been living openly, see, e.g., Leitner, 784 F.2d at 160-61; In re Extradition of Pelletier, 2009 WL 3837660, at *1, 3-4 (S.D. Fla. 2009), discomfort, special dietary needs, or medical concerns that can be attended to while incarcerated. See, e.g., In re the Extradition of Kyung Joon Kim, 2004 WL 5782517, at *5 (C.D. Cal. 2004).

         Similarly, the fact that a particular treatment available in some places is not available to the defendant during his detention does not create a “special circumstance” exempting him from detention. The mere availability of a better, private form of medical treatment is not sufficient to overcome the presumption against bail. The claimed medical condition must, of course, be proven and not merely alleged to exist. Most cases, in fact, are supported by doctor's affidavit or its equivalent, and or the defendant must provide sufficient detail regarding his condition or his medical treatment needs to convince the court that the severity of his condition is a “special circumstance, ” warranting release on bond. If the materials provided by the defendant do not sufficiently explain to the court that a defendant's condition is either life threatening or so serious and exigent that his medical needs cannot be accommodated by the United States Marshal service while in ...

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