Giancarlo Parretti v. United States

REINHARDT, Circuit Judge,

concurring:

I concur in Judge Norris’s opinion for the court, completely with respect to the Fourth Amendment analysis and in large part with respect to the Fifth Amendment discussion. While I agree unequivocally with all of the conclusions expressed in that opinion, I write separately regarding the due process question in order to offer a perspective on the subject that is different in a few respects, but in my view serves only to bolster the opinion’s rationale.

Parretti asks us to consider for the first time whether the “ ‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial,” United States v. Salerno, 481 U.S. 739, 749 , 107 S.Ct. 2095, 2102 , 95 L.Ed.2d 697 (1987), applies to detentions involving foreign extradition proceedings, and, if so, whether it precludes the use of the so-called “special circumstances test” as it has generally been applied. For the reasons stated in Judge Norris’s opinion, I think that an international extraditee’s Fifth Amendment interest in release on bail would be infringed by the application of so inflexible and arbitrary a test. 1 However, I believe *782 that the government’s interests in detaining international extraditees are more substantial than his opinion suggests and that, while the standards that govern bail are the same in foreign extradition and domestic criminal cases, the factual circumstances of the two types of cases are typically quite different and thus the results will also often be different. More important, I do not believe that the Supreme Court ever propounded the so-called special circumstances test or ever intended that such a test be employed. Finally, the conditions that might once have served as a rationale for a blanket rule making bail unavailable in foreign extradition eases no longer obtain. There simply can be no justification for applying any such rule in current times.

I.

In reaching its decision to deny the bail motion, the district court held that although Parretti was not a flight risk, he failed to demonstrate that his case involved “special circumstances” warranting release. As I read the relevant case law, neither the Supreme Court nor this court has ever explained what such a “special circumstances test” might entail, or identified the full range of circumstances that would count as “special” enough to satisfy it. There is good reason for that failure, at least as far as the Supreme Court is concerned. The “special circumstances doctrine” purportedly derives from the Court’s opinion in Wright v. Henkel, 190 U.S. 40 , 23 S.Ct. 781 , 47 L.Ed. 948 (1903), a case in which, as Judge Norris explains, the extraditee did not offer a constitutional challenge to the lower court’s refusal to admit him to bail. Thus, as Judge Norris correctly states, the Supreme Court did not resolve the issue of the special circumstances doctrine’s constitutionality in that case. Even more fundamental — and this the opinion for the court fails to recognize — although several circuits including ours have assumed the existence of a special circumstances doctrine, supposedly adopted in Wright v. Henkel, neither in that case nor in any other did the Supreme Court create or intend to create such a doctrine. Instead, in Wright v. Henkel the Court made only a single, casual remark about “special circumstances,” a remark that has subsequently been blown out of all proportion by lower courts, including most recently ours.

The only paragraph in Wright v. Henkel that touches upon the subject of special circumstances reads:

We are unwilling to hold that the Circuit Courts possess no power in respect of admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief. Nor are we called upon to do so as we are clearly of [the] opinion, on this record, that no error was committed in refusing to admit to bail, and that, although the refusal was put on the ground of want of power, the final order ought not to be disturbed.

Id. at 63 , 23 S.Ct. at 787 (emphasis added). Although it ultimately concluded that Wright failed to show that the trial court had erred in refusing to release him on bail, the Supreme Court did not hold that he failed to meet any “special circumstances test,” nor did it assert that the trial court lacked the authority to grant the relief he requested. It simply concluded that “no error” had occurred. It then went on to hold that, even without statutory authorization, courts do have discretion (whatever the relevant limitations) to grant bail in extradition cases.

The quoted paragraph contains the only clause (“... while bail should not ordinarily be granted in cases of foreign extradition ... ”) that might be thought to support the type of rule that some federal courts have assumed to exist, but the clause is subject to that interpretation only when read out of context. It is merely a prehminary, though accurate, comment introducing a conclusion that expands rather than contracts the power of courts to admit a detainee to bail while specifically refusing to adopt any rule that would preclude bail in all such cases. The only plausible reading of the paragraph as a whole is that the Court declined to adopt *783 either a per se rule or any form of test regarding the conditions justifying the denial of bail in foreign extradition cases because it did not need to reach that question in order to decide the case before it, and that the Court doubted that any rigid formula could be imposed because the “special circumstances” of the case would be relevant to the determination whether a court should allow bail.

In short, the Supreme Court plainly did not hold in Wright v. Henkel that “special circumstances” are required in order to justify bail in an extradition case. Rather, it said that it would not adopt an absolute ban on bail that would apply in all cases regardless of the special circumstances. That, to me, is no different than saying that it would not adopt a ban that applied regardless of the “particular circumstances.” In other words, the Court simply explained that whether a detainee would be eligible for bail would depend upon the circumstances of the individual case, whatever they might be. Any interpretation of Wright v. Henkel that suggests otherwise is, in my view, a misreading of the Supreme Court’s opinion.

Nevertheless, this court and others have on a number of occasions invoked some sort of “special circumstances test.” See, e.g., Martin v. Warden, 993 F.2d 824, 827-28 (11th Cir.1993); United States v. Russell (In re Extradition of Russell), 805 F.2d 1215, 1216-17 (5th Cir.1986); United States v. Williams, 611 F.2d 914 (1st Cir.1979) (per curiam) (2-judge panel). We have done so in cases such as United States v. Smyth (In re Extradition of Smyth), 976 F.2d 1535 (9th Cir.1992), which Judge Norris’s opinion cites, although we have not even purported to explain what considerations such a test would involve. 2 Moreover, as Judge Norris’s opinion for the court correctly states, we have never considered whether the elements of such a test are constitutional. Whatever “special circumstances” we may have had in mind at any particular point, the practical effect of eases like Smyth is that they render the traditional standards governing bail inapplicable and instead focus on a limited set of factors unrelated to government’s interest in insuring the potential extraditee’s presence at the extradition proceedings. The “circumstances” that courts have labelled as “special” include the individual’s need to be free in order “to consult with his attorney in a civil action upon which his ‘whole fortune’ depends,” Williams, 611 F.2d at 915 (1st Cir.1979) (per curiam) (2-judge panel) (citation omitted), unusual delay in conducting an extradition hearing, see In re Extradition of Morales, 906 F.Supp. 1368 (S.D.Cal.1995), or “a serious deterioration of health while incarcerated,” Salerno v. United States, 878 F.2d 317 (9th Cir.1989) (2-judge panel). Requir *784 ing incarceration except where the detainee shows the existence of such a factor would conflict directly with the principles underlying our historic system of bail. In many cases, it also would lead inevitably to the unconstitutional deprivation of the potential extraditee’s Fifth Amendment liberty interest in retaining his freedom until such time as he may be proven guilty of a criminal act. See Salerno, 481 U.S. at 748 , 107 S.Ct. at 2102 .

II.

Although the Supreme Court did not adopt the unconstitutional special circumstances test, or indeed any test, for granting bail when it decided Wright v. Henkel, there were undoubtedly substantial differences in 1903 between run-of-the-mill domestic cases and the pool of foreign extradition cases that led the Court to conclude that in most instances international extraditees were far more likely to flee than domestic detainees. At the time Wright v. Henkel was decided, foreign extradition cases were rare: The time, expense, and dangers attendant upon international travel made international crimes and international criminals most unusual. Further, there were relatively few classes of conduct that were likely to prompt a foreign government to seek extradition. 3 In short, the group of people likely to be the subject of extradition requests was not only small in number but relatively homogeneous, and courts did not generally need to engage in detailed and highly fact-bound inquiries in order to determine the risk of flight that any particular extraditee posed. In most instances courts could simply assume that an individual accused of committing a crime in a foreign country was likely to be a far greater flight risk than the typical domestic criminal: thus, the dictum that bail should not “ordinarily” be granted in foreign extradition eases. 190 U.S. at 63 , 23 S.Ct. at 787 .

Today, foreign extradition cases as a whole may continue to present somewhat of a greater risk of flight than cases involving run-of-the-mill domestic crimes; however, the differences between the two classes of cases are no longer as significant, and the number of potential extraditees who are not flight risks is proportionally far greater than a century ago. As to the continued risk, foreign extraditions frequently involve citizens of a foreign nation who, like Parretti, are in the United States on international business when they are apprehended. The potential extraditees are often people who regularly engage in international travel and whose exclusive ties and assets are foreign. Some cases involve people who have already fled another country and are here only because they are seeking to escape prosecution and punishment elsewhere. In all such instances, there is cause for heightened concern that the international arrestee will attempt to flee the United States rather than remain in the jurisdiction while awaiting foreign extradition. Thus, it is still reasonable to conclude that in a number of cases “international criminals” awaiting extradition will be greater flight risks than the average person awaiting prosecution for the run-of-the-mill federal or state crime. 4

*785 Nevertheless, there are foreign extradition cases — and undoubtedly not a small number- — that are not “ordinary” in the historical sense. Today, for example, drug offenses, economic fraud, and other classes of crimes frequently involve a large international component, yet many individuals engaged in those activities do so without ever going abroad. Modern telecommunications and the internet enable ordinary people to become “international criminals” in their own living rooms, and such individuals will in most eases be no more anxious to flee their country (or even their hometown) to avoid prosecution than the person charged with the typical domestic offense. Moreover, international travel is no longer reserved to the privileged few. Many average persons with homes, families, and principal assets in the United States now frequently visit foreign countries, for business or for pleasure, and some may, upon returning home, discover that a foreign government is considering filing charges against them because of conduct in which they allegedly engaged while abroad. Additionally, the rise of multinational corporations and the expansion of foreign criminal laws to encompass conduct previously not prohibited, such as bribery of government or corporate officials, influence-peddling, or even commercial espionage, have resulted in persons being subject to prosecution whose conduct was not previously thought to be unlawful. Many of these persons will also be most reluctant to flee and will instead desire to assert vigorous challenges to the recently-enacted legislation or the allegations of wrongdoing. In short, the net of extraditable crimes is cast far more widely these days and now covers substantial numbers of persons who have significant ties to the United States or who for other reasons are not likely to become fugitives and forfeit the opportunity to reside in this country in the future. Given these circumstances, it would be particularly inappropriate to adhere to a rule that requires the incarceration of persons in our jails for substantial periods of time, without any opportunity to obtain bail, simply because a foreign nation is considering whether to ask for their extradition. 5

One major change in the extradition area is particularly noteworthy in connection with our examination of contemporary extradition concerns. When Wright v. Henkel was decided, United States extradition treaties ordinarily contained an exclusion for United States citizens. Siegfried Wiessner, Blessed Be the Ties That Bind: The Nexus Between Nationality and Territory, 56 Miss.L.J. 447, 527 n. 367 (1986) (collecting treaties). For example, an extradition treaty between the United States and France signed only a few years after Wright v. Henkel was decided contained such a provision, see Extradition Treaty, Jan. 6, 1909, U.S.-Fr., T.S. No. 561, art. V, and the Supreme Court ultimately held that the effect of that exclusion was to leave the government wholly without authority to grant extradition of United States citizens to France, see Valentine v. United States, 299 U.S. 5 , 57 S.Ct. 100 , 81 L.Ed. 5 (1936). Today, however, our government is far more willing to grant extradition of United States citizens. See Weissner, supra, at 528. For example, although the current treaty with France (which governs Parretti’s extradition) still does not require the United States to grant extradition of its own citizens, it does give the president discretion to do so if he so chooses. Supplementary Convention to the Extradition Convention of January 6, 1909 Between the United States of America and France, Feb. 12, 1970, U.S.-Fr., art. III, T.I.A.S. No. 7075. Indeed, some treaties *786 currently in force do require the government to treat requests for extradition of United States citizens the same as it treats requests for non-citizens. See, e.g., Extradition Treaty Between the Government of the United States of America and the Government of the Republic of Italy, Oct. 13, 1983, U.S.-Italy, art. IV, T.I.A.S. No. 10837 (“A Requested Party shall not decline to extradite a person because such a person is a national of the Requested Party.”). In light of this significant change in United States extradition policy, the basis for generalizations about international extraditees that underlay Wright v. Henkel has been eroded even further.

Given the substantially changed conditions, the prediction in Wright v. Henkel that potential extraditees will not normally qualify for bail is far less reliable than it was when originally offered. Although I believe that it is still appropriate to start from the premise that foreign extradition cases will ordinarily involve a greater degree of flight risk than domestic criminal cases, the need to evaluate the facts and circumstances in each extradition proceeding on a case-by-case basis is far greater today than it was in 1903. From a constitutional standpoint, there is simply no justification for the automatic denial of bail in extradition cases, even with the theoretical escape hatch provided by the “special circumstances doctrine.” A rule that precludes release notwithstanding the absence of flight risk or danger to the community is far more likely today than a century ago to result in the prolonged detention of individuals who under the Due Process Clause of our Constitution are entitled to remain free on bail.

Because the United States is not the prosecutor in international extradition cases, the government’s interests in seeing that the “criminals” in those cases are detained while awaiting extradition, prosecution, and punishment may at first appear to be less weighty than its interests in detaining persons awaiting domestic prosecution. I agree with Judge Norris that they are not. However, I disagree that the government’s interests in fulfilling its treaty obligations stems solely from its interest in domestic law enforcement, i.e., punishing domestic crimes. Cf. supra at 49-50, 23 S.Ct. at 784 . The failure of a country to deliver on its promises can have many unpredictable consequences quite apart from the effects on its ability to secure the assistance of others when it is the one that desires to obtain or exercise the right to extradite. It is important to the nation’s overall ability to work effectively in the international arena that it be thought of as a country that keeps its commitments. Moreover, our domestic law enforcement interest in fulfilling our treaty obligations is more direct than Judge Norris’s opinion suggests. As I have noted, these days crimes no less than corporations are multinational, and so are their consequences. The government frequently has a significant interest in seeing that criminals who have fled to, or happen to be in, this country are punished for their foreign crimes — if only because those crimes may have a substantial effect, direct or indirect, on American interests both at home and abroad. In the end, I agree with the court’s opinion that the overall interests of the United States in preventing flight in foreign extradition cases warrant roughly the same level of concern as in preventing flight in domestic criminal proceedings. Although the factual inquiries and considerations are frequently quite different, neither a greater nor a lesser showing of flight risk is called for in one category of case or the other.

To sum up, in addition to the conclusions we express today that the warrant for Parretti’s arrest violated the Fourth Amendment; that the “special circumstances test” courts have sometimes purported to apply violates the Due Process Clause; and that the showing of flight risk traditionally required in domestic cases is also the appropriate showing for foreign extradition cases; and in addition to my own separate conclusion that the so-called “special circumstances” test was never adopted by the Supreme Court and never intended by that Court to be employed by the lower courts; I would add that while the assumptions that underlay the Court’s comment in Wright v. Henkel were not without merit, today’s circumstances are considerably different. Although in a number of foreign extradition cases, there may still be a greater justification for concluding that a potential extraditee is a flight risk, there is now a far larger *787 percentage of such cases in which that is plainly not so. In the absence of a factual showing that a potential extraditee is a flight risk, or that he is a danger to the community, the Due Process Clause requires release on bail — not the application of a special circumstances test.

. Aside from the due process issue, there is also an independent question as to whether the Excessive Bail Clause of the Eighth Amendment protects extraditees or potential extraditees against a per se or "special circumstances only” ban on bail. The Supreme Court has never ruled on that question. See Salerno, 481 U.S. at 754 , 107 S.Ct. at 2105 (“[W]e need not decide today whether the Excessive Bail Clause speaks at all to Congress’s power to define the classes of criminal arrestees who shall be admitted to bail.”). Although Parretti did not allege an Eighth Amendment violation, we would be free to evaluate the implications of the Excessive Bail Clause for his case in order to avoid injustice. See, e.g., Donovan v. Crisostomo, 689 F.2d 869, 874 (9th Cir.1982). We need not do so, however, because, as the opinion for the court makes plain. *782 the Due Process Clause alone is sufficient to afford Parretti all the relief he seeks.

. We have only mentioned the special circumstances doctrine in four cases, none of which sheds any light on our inquiry into the doctrine’s content or its constitutionality. In Kamrin v. United States, 725 F.2d 1225 (9th Cir.1984), we considered the appellant’s due process challenge to extradition for a crime he was alleged to have committed abroad based upon the fact that the statute of limitations for a similar crime under United States law would already have run. We rejected appellant's proffered analogy to the bail context, noting in dicta that bail in foreign extradition cases is not a "remedy or recourse” under United Slates law because its availability is limited to special circumstances. Next, citing to one out-of-circuit extradition case, two domestic bail cases, and the Kamrin dicta (as well as misreading Wright v. Henkel), a two-judge panel of this court in Salerno v. United States, 878 F.2d 317 (9th Cir.1989), issued what appears to be a brief order assuming without any analysis that "[tjhere is a presumption against bail in an extradition case and only ‘special circumstances’ will justify bail.” /¿at 317. (The precedential value of the two-judge order is highly dubious for reasons that are not worth explaining here. Cf. 28 U.S.C. § 46 (b); Ninth Circuit General Orders § 6.3.g.(3).) In United States v. Smyth, 976 F.2d 1535 , we again issued a brief order, this time reversing a district court's finding of special circumstances. In doing so, we rejected the district judge’s determination that certain circumstances were out of the ordinary, but we never so much as mentioned whether he was actually required to make a finding of special circumstances in order to justify release on bail. Nor did we state whether or not the appellant was a flight risk. In our most recent case. United States v. Kirby (In re Requested Extradition of Kirby), 106 F.3d 855 (9th Cir. 1996), we purported to apply a presumption against bail in foreign extradition cases derived from Wright v. Henkel. Without discussing what factors must he shown to overcome that presumption, we criticized the district court’s findings of special circumstances, but then blithely concluded that the case did involve "special circumstances” warranting the granting of bail because the potential extraditees “enjoy the sympathy and are objects of concern of many Americans.” Id. at 106 F.3d at 864-65 .

. Wright v. Henkel involved an individual who was being extradited for making, circulating, and publishing false corporate reports with the intent to defraud shareholders. 190 U.S. at 41 , 23 S.Ct. at 781 (Court's statement of case). The dispute that was the main subject of the appeal was not whether Wright was entitled to bail but whether he was extraditable, as the treaty provided for extradition only for those actions of corporate officers that were crimes under the laws of both countries. Id. at 46 , 23 S.Ct. at 783 . Because the State of New York had only partially criminalized conduct such as Wright’s, leaving much of it subject only to civil penalties (as it traditionally had been), the question the Court chiefly addressed was whether extradition was even available in that case.

. In addition to flight risk, bail may be denied on the ground of danger to the community. See Salerno, 481 U.S. 739 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 . With respect to the latter concern, I suspect that foreign extradition cases generally involve less rather than more such danger because, as the risk of international flight increases, the likelihood that the individual will remain here and commit serious offenses diminishes. The exception may be terrorist activity: In certain types of terrorist cases, at least, there is frequently both significant flight risk and danger to the community.

. In this case, the treaty provided for an initial period of forty days from the date of Parretti’s incarceration during which France could decide whether to seek his extradition. The enabling statute for United States extradition treaties authorizes provisional arrest and detention for up to ninety days prior to the foreign government's presentation of a formal extradition request. See 18 U.S.C. § 3187 . Individuals have in fact been incarcerated for periods of years awaiting a final determination as to extradition. See, e.g., Kirby, 106 F.3d at 863 (three potential extraditees released on bail after being incarcerated in United States for 3-1/2 years, 3 years, and 11 months respectively pending final determinations of ex-traditability); Serge Schmemann, Israel Withdraws Bid to Extradite a Chief of Hamas, N.Y. Times, Apr. 4, 1997, at A1 (reporting Israel's withdrawal of extradition request after subject of request, who had been incarcerated in United States for 21 months pending determination of extraditability, announced that he would no longer contest extradition).