Appendix — Parretti v. United States

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98 196 Ji 29199

OFFICE OF THE <°

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

GIANCARLO PARRETTI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

WILLIAM J. GENEGO*

VIRGINIA F. FLACK

100 Wilshire Boulevard

Suite 1000

Santa Monica, California 90401

(310) 394-5802

Counsel for Petitioner

GIANCARLO PARRETTI

* Counsel of Record

INDEX TO APPENDIX

APPENDIX A

Opinion of the Court of Appeals for

the Ninth Circuit En Banc dated

May 1, 1998 .........ccceeeeeeeeeees A-l

APPENDIX B

Excerpt from Appellee’s Supplemental

Brief filed November 21,1997 ........- B-14

APPENDIX C

Order Granting Petition for Rehearing

and Suggestion for Rehearing En Banc

dated October 2, 1997 ........---++555 C-20

APPENDIX D

Opinion of the Court of Appeals for

the Ninth Circuit dated May 6, 1997

and As Amended August 29, 1997 ..... D-21

APPENDIX E

Order Granting Petitioner Relief

dated November 21, 1995 ...........-- E-98

APPENDIX F

18 U.S.C. Section 3184

(prior to 1996 amendments).........-- F-10]

A-l

APPENDIX A

Giancarlo PARRETTI, Petitioner-Appellant,

UNITED STATES of America, Respondent-Appellee.

No. 95-56586.

United States Court of Appeals,

Ninth Circuit

Argued and Submitted En Banc December 18, 1997

Decided May 1, 1998

Appeal from the United States District Court for the

Central District of California. D.C. No. CV-95-7593-JMI.

James M. Ideman, District Judge, Presiding.

APPEAL DISMISSED.

Before: HUG, Chief Judge, and SCHROEDER,

PREGERSON, REINHARDT, BRUNETTI, THOMPSON,

O’SCANNLAIN, T.G. NELSON, HAWKINS, TASHIMA,

and THOMAS, Circuit Judges.

Opinion by Judge PREGERSON; Dissent by Judge

REINHARDT.

A-2

Opinion, 122 F.3d 758, withdrawn.

COUNSEL

William J. Genego, Law Offices of William J.

Genego, Santa Monica, California, for the

petitioner-appellant.

Nora M. Manella, United States Attorney, Los

Angeles, California, for the respondent-appellee.

OPINION

PREGERSON, Circuit Judge:

We took this case en banc to consider whether the

arrest of Giancarlo Parretti pursuant to an Extradition Treaty

with France violated the Fourth Amendment and whether his

detention without bail prior to France's decision to request his

extradition violated the Due Process Clause of the Fifth

Amendment, or, whether this appeal should be dismissed

under the fugitive disentitlement doctrine because Parretti fled

the United States while his appeal was pending before a panel

of this court. Because Parretti is a fugitive from justice, we

exercise our discretion under the disentitlement doctrine and

dismiss his appeal. Therefore, we find it unnecessary to

address his constitutional claims.

A-3

In 1990, Pathe Communications Corporation, headed

by Giancarlo Parretti, an Italian resident and citizen,

purchased MGM-United Artists for $1.3 billion. As a result

of this merger a new entity, MGM-Pathe Communications

Corporation, was formed. The acquisition of MGM-United

Artists was highly leveraged, and the new entity almost

immediately faced cash flow problems. Several lawsuits were

filed relating to the underlying leveraged transaction and the

resulting merger.

On October 9, 1995, Parretti entered the United States

from Italy to answer charges of perjury in connection with one

of these suits filed in Delaware Superior Court, and to be

deposed in connection with another suit filed in Los Angeles

Superior Court. The next day, France forwarded a diplomatic

note to the U.S. Department of State requesting Parretti's

"provisional arrest" pursuant to Article IV of the Treaty of

Extradition between the United States and France, Jan. 6,

1909, U.S.-Fr., 22 U.S.T. 407, as amended, Feb. 12, 1970,

T.LA.S. 7075, so that he might be held in custody until France

decided whether to request his extradition.

While in Los Angeles attending his deposition,

Parretti was arrested based on allegations made in a French

arrest warrant charging Parretti with extraditable offenses

arising from the MGM-Pathe Communications Corporation

A-4

merger.' After his arrest, Parretti was held without bail while

the French government decided whether to request

extradition. Parretti filed an application to be released on bail

pending France's extradition request. The district court

denied Parretti’s application for bail even though the court

believed that Parretti was not a flight risk. Parretti

subsequently filed a petition for a writ of habeas corpus,

which the district court also denied.

Parretti then filed a motion under Ninth Circuit Rule

27-3 seeking emergency review. On November 21, 1995, we

granted Parretti's motion for emergency review and ordered

him released. Our ruling was based on two grounds. First,

we found that Parretti's arrest violated the Fourth Amendment

because the government failed to make the required

evidentiary showing of probable cause to believe he had

committed an extraditable offense. Second, we held that

' Parretti was arrested pursuant to a warrant issued by a United

States Magistrate Judge on the basis of allegations contained in

a "Complaint for Provisional Arrest Warrant" sworn io on

information and belief by an assistant United States Attorney

("AUSA") for the Central District of California, "acting on

behalf of the Government of France." The AUSA alleged that

Parretti had been charged in an international arrest warrant

issued in France on May 3, 1995. The French warrant charged

that Parretti had committed various offenses arising from his

alleged looting of the French company Europe Image

Distribution, one of MGM-Pathe's subsidiaries; that each of the

offenses charged in the French warrant was an extraditable

offense under the treaty; and that France had requested Parretti's

"provisional arrest" under Article IV of the treaty.

A-5

Parretti's detention without bail violated the Due Process

Clause of the Fifth Amendment in light of the district court's

finding that he was not a flight risk. We required Parretti to

surrender any passports in his possession to the district court

and to obtain the district court's consent before leaving the

County of Los Angeles.

In January 1997, thirteen months after Parretti was

released, Parretti fled the United States. On May 6, 1997, our

court filed an opinion that set forth in detail our reasons for

granting Parretti's petition for habeas relief and petition for

release pending France's decision to request his extradition.

See United States v. Parretti, 122 F.3d 758 (9th Cir. 1997).

iil

{1, 2] The Supreme Court has "consistently and

unequivocally approved dismissal as an appropriate sanction

when a prisoner is a fugitive during the ongoing appellate

process." Ortega-Rodriguez v. United States, 507 U.S.

234,242, 122 L. Ed. 2d 581, 113 S.Ct. 1199 (1993) (internal

quotations omitted). The fugitive disentitlement doctrine

empowers us to dismiss the appeal of a defendant who flees

the jurisdiction of the United States after timely appealing.

An appellate court's power to disentitle a fugitive from access

to the appellate process is grounded in equity. See United

States v. Sharpe, 470 U.S. 675, 681 n. 2, 84 L. Ed. 2d 605,

105 S.Ct. 1568 (1985); see also United States v. Van

Cauwenberghe, 934 F.2d 1048, 1054 (9th Cir. 1991) (noting

that the equitable doctrine of fugitive disentitlement is one of

ee ee ee

A-6

long standing). Our court has exercised its discretion and

dismissed the appeal of a criminal defendant who became a

fugitive from justice while his appeal was pending. See

United States v. Freelove, 816 F.2d 479, 480 (9th Cir. 1987)

(court ordered that the pending appeal of a fugitive be

dismissed unless he surrendered to authorities within

forty-two days of date of the order); cf Hussein v. INS, 817

F.2d 63 (9th Cir. 1986) (court refused to hear pending appeal

when petitioner escaped from federal custody after filing of

appeal).

[3] Several rationales that underlie the fugitive

disentitlement doctrine apply to this appeal. First, although

Parretti's status as a fugitive does not "strip the case of its

character as an adjudicable case or controversy," it does

disentitle him from calling upon the resources of the court to

resolve his claims. Molinaro v. New Jersey, 396 U.S. 365,

366, 24 L. Ed. 2d 586, 90 S.Ct. 498 (1970) (per curiam). By

fleeing the jurisdiction of the United States, Parretti forfeited

his right to appellate review under the fugitive disentitlement

doctrine. See id. at 366.

Second, Parretti has fled the United States. He

remains a fugitive beyond the reach of this court's jurisdiction.

If we were to reach the merits of Parretti's constitutional

claims and affirm the district court, such a decision could not

secure Parretti's presence beiore the district court, nor could

it assure that any "judgment . . . issued would prove

enforceable." Ortega-Rodgriguez, 507 U.S. at 239-240

(noting that it is within a court's discretion to refuse to hear a

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;

A-7

criminal case when the defendant fugitive cannot be made to

respond to any ruling) (citing Smith v. United States, 94 U.S.

97, 24 L. Ed. 32 (1876)); of. Katz v. United States, 920 F.2d

610, 612 (9th Cir. 1990) (holding that the disentitlement

doctrine was inapplicable because the defendant who sought

judicial relief was no longer a fugitive), abrogated on other

grounds by Lozada v. Deeds, 964 F.2d 956 (9th Cir. 1992).

Third, "dismissal by an appellate court after a

defendant has fled its jurisdiction serves an important

deterrent function and advances an interest in efficient,

dignified appellate practice." Ortega-Rodriguez, 507 U.S. at

242 (citing Estelle v. Dorrough, 420 U.S. 534, 537, 43 L. Ed.

2d 377, 95 S.Ct. 1173 (1975)).

Fourth, the adversary character of criminal litigation

may be compromised when the defendant is a fugitive. See

Sharpe, 470 U.S. at 724 (Stevens, J., dissenting). A

defendant's flight threatens the effective operation of the

appellate process because the fugitive's counsel may have

ittle or no incentive to represent his client should further

proceedings be necessary.

In light of Parretti's decision to flee the United States

while this appeal was pending, we withdraw the panel

opinion, 122 F.d 758, and we exercise our discretion under

the fugitive disentitlement doctrine and dismiss his appeal.

APPEAL DISMISSED

DISSENT: REINHARDT, J., dissenting:

In this case, the court faces two extremely important

issues that warrant our most thorough consideration. The

positions advanced by the government on both constitutional

questions are remarkable and should be examined with the

greatest of care. In doing so, we should bear in mind that

what the government tells us it can do to a foreign citizen in

this case, it can just as easily do to a United States citizen in

the next.’

First, the government maintains that when a foreign

country simply suggests that it is considering requesting

extradition, the United States government can arrest the

person without a showing of probable cause and keep him

locked up for months without bail. This position is at odds

with one of our most basic constitutional principles - that the

government cannot seize a person off the streets (or from a

lawyer's office) and deny him his liberty without first showing

probable cause to believe he has engaged in criminal activity.

The government's contention that probable cause in the

context of a provisional arrest is merely probable cause to

believe that a foreign country has issued an arrest warrant is

plainly incorrect. Such a showing would never, in any other

' For a discussion of treaties permitting the extradition of United

States citizens, see Parretti v. United States, 122 F.3d 758, 785-86

(9th Cir. 1997) (Reinhardt, J., concurring).

ite Sie an ote i ee

A-9

circumstances, suffice to support the arrest of a person in this

country, and there is no reason why it should suffice in the

case of provisional arrests.

As to the bail issue, the government relies on cryptic

language in an ambiguous case written by the Supreme Court

almost 100 years ago for its argument that an almost

irrebuttable presumption against bail exists in extradition

cases. See Wright v. Henkel, 190 U.S. 40, 47 L. Ed. 948, 23

S.Ct. 781 (1903). By failing to address the government's

argument, we leave this circuit's law on the bail issue exactly

where it was before this case - in total disarray. See, e.g., In

re Kirby, 106 F.3d 855 (9th Cir. 1996) (finding special

circumstances existed for the remarkable reason that the

potential extraditees, IRA terrorists, "enjoy the sympathy and

are objects of concern of many Americans").

The fallacy in the government's positions is amply

demonstrated in the panel's majority opinions, which I adopt

in full; they still accurately set forth the law. Notwithstanding

the compelling nature of the constitutional issues, however,

the majority has avoided deciding them by invoking the

fugitive disentitlement doctrine under the most unusual of

circumstances. Because the doctrine is inapplicable to the

circumstances presented here, it is this court's duty to reach

the merits of the case. Accordingly, I dissent.

I briefly review the procedural history of this case in

order to demonstrate why applying the fugitive disentitlement

doctrine in this case is unusual and serves no purpose. On

A-10

October 18, 1995, Giancarlo Parretti was arrested by federal

agents, pursuant to a warrant issued by a United States

Magistrate Judge on the basis of allegations that an

international warrant had been issued against him in France.

On the basis of a letter from the government of France

indicating that it would seek Parretti's extradition, the

magistrate judge denied bail and ordered that he be detained

pending the extradition hearing. Parretti filed a petition for

habeas corpus in the district court, arguing that his prolonged

detention was unconstitutional. On November 9, the district

court denied the petition.

Soon thereafter, Parretti filed an emergency motion

with this court. On November 21, after Parretti had been

incarcerated for 33 days, a panel of this court heard oral

argument and ordered his immediate release on two

independent grounds. First, the panel found that Parretti's

arrest violated the Fourth Amendment because it was effected

without a showing of probable cause to believe that he had

committed an extraditable offense. Second, the panel

~oncluded that Parretti's continued detention violated his Fifth

Amendment right to due process because the district court

specifically found that he presented neither a risk of flight nor

a danger to the community. In a published opinion issued

subsequently, the panel elaborated fully on its reasons for

granting Parretti's emergency motion.

After the panel issued its order, but prior to the time

the panel issued its full opinion, the district court

implemented the order and Parretti was released on bail.

A-11

Eight days after his release, the government, at the behest of

France, filed a formal request for Parretti’s extradition, at

which time the district court made the requisite probable

cause finding. The government did not, however, seek to

have Parretti taken into federal custody again. Instead,

sometime afterwards, jurisdiction over Parretti was assumed

by the state of Delaware. He was then tried and convicted on

criminal charges in a Delaware state court. Pending

sentencing on these offenses, Parretti fled the Delaware

court's jurisdiction. Thereafter, the panel's full opinion was

released, and the government sought and we granted, at its

suggestion, rehearing en banc because of the government's

objections to the content of the panel's decision on the

constitutional questions. Parretti has, of course, obtained all

the relief he ever desired from the court and seeks nothing

further.

In light of these procedural and factual circumstances,

it is clear that the fugitive disentitlement doctrine has no

applicability. Indeed, neither party has urged the court to

invoke the doctrine and both parties agree that the doctrine

has no relevance to the case.” The purpose of the doctrine is

2 Nor has either party argued mootness as a ground for dismissal,

because as the majority's opinion concedes, that doctrine is

inapplicable. The circumstances in this case present a classic

situation involving a constitutional question that is “capable of

repetition, yet evading review." Honig v. Doe, 484 U.S. 305,

318-23. 98 L. Ed. 2d 686, 108 S.Ct. 592 (1988). Because of the

time limitations inherent in the brief provisional arrest period, any

case involving such an arrest will become moot before it can run

A-12

to deny to those who have fled the court's jurisdiction any

benefits of the court system. Here, Parretti received all the

relief he could possibly obtain prior to fleeing and he seeks no

further benefit from the court. Our dismissal of the case will

deny Parretti nothing - it is only the government that seeks

relief now, and it seeks relief not from the order we issued,

but from the precedential effect of our opinion on the serious

constitutional questions that arise in many extradition cases.

The fugitive disentitlement doctrine makes sense only when

we deny the fugitive some form of relief from the court, not

when we frustrate our own ability to resolve critical

constitutional questions. In the words of the Supreme Court,

as quoted by the majority, maj. op. at 4182, the doctrine

makes sense only as a "sanction" against the defendant.

the normal judicial course. In this case, for example, which was

originally filed as an emergency motion, the panel did not issue its

order until Parretti had already been in jail for 33 days; however,

the initial detention period would have expired seven days later.

In addition, there is a reasonable likelihood that Parretti could be

subject to the same violation in the future. Although he is

currently a fugitive, there is reason to expect that he may one day

return to the United States. Parretti is, after all, an international

financier with significant business interests in this country. And,

if he returns, he will undoubtedly face another round of arrests. So

far as the record reveals, incidentally, the government of France

has never obtained jurisdiction over him. Accordingly, the case is

not moot.

3. The majority also relies on Justice Stevens's dissenting opinion

in United States v. Sharpe, 470 U.S. 675, 724, 84 L. Ed. 2d 605,

A-13

As the majority's opinion amply demonstrates, the

fugitive disentitlement doctrine is properly invoked only in

cases in which the defendant seeks to benefit from the use of

our limited judicial resources. That is not the case here. I

therefore dissent.

105 S.Ct. 1568 (1985)Stevens, J., dissenting), for the proposition

that dismissal is appropriate in light of the risk that "the adversary

character of criminal litigation may be compromised when the

defendant is a fugitive." Maj. op. at 4183. Fortunately, that

potential was not realized in this case, nor was it realized in

Sharpe, in which the eight other Justices remained unpersuaded by

that argument. See 105 S.Ct. at 1573 n. 2 (noting that the Court

ordered briefing from amicus curiae in opposition to the

government's position). Here, Parretti's counsel agreed to continue

his representation in spite of his client's flight, and has served as

the government's very able adversary throughout the litigation.

B-14

APPENDIX B

No. 95-56586

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GIANCARLO PARRETTI,

Petitioner-Appellant,

UNITED STATES OF AMERICA,

Respondent-Appellee.

re ee ee a A i et

APPELLEE’S SUPPLEMENTAL BRIEF

APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT

OF CALIFORNIA

Filed November 21, 1997

NORA M. MANELLA

United States Attorney

B-15

DAVID C. SCHEPER

Assistant United States Attorney

Chief, Criminal Division

MIRIAM A. KRINSKY

Assistant United States Attorney

Chief, Criminal Appeals

GEORGE S. CARDONA

JEAN ROSENBLUTH

Assistant United States Attorneys

Criminal Appeals Section

1200 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 894-4409/3152

Attorneys for Respondent-Appellee

United States of America

TABLE OF CONTENTS

TABLE UE ALTERS fsa bea na eden ae aes ll

A. PARRETTI’S PROVISIONAL ARREST

WARRANT COMPLIED WITH FOURTH

AMENDMENT REQUIREMENTS ...... l

PDR ae ras Ge bee TLE LY lat aay BEIT Se eS : pela ain

a eR a destin Cat ai Ran i ds bal BU: in acon ae aR as an cea ie REE TASS ig <i i ea a nee wat : ate

PRAT She mc 4 ee

B-16

For Provisional Arrest, the Fourth

Amendment Requires a Showing

of Probable Cause to Believe

that the Person Sought Is the

Person Named in a Duly Issued

Foreign Arrest Warrant Charging

Extraditable Offenses ..........-. 3

There Is No Basis for the Panel’s

Requirement that a Provisional

Arrest Warrant Be Supported by

“Affidavits, Deposition Testimony,

or Other Competent Evidence” ... 12

DUE PROCESS DOES NOT

REQUIRE THE REJECTION OF

LONGSTANDING SUPREME

COURT AND CIRCUIT

PRECEDENT AUTHORIZING

BAIL PENDING AN

EXTRADITION HEARING ONLY

UPON A SHOWING OF “SPECIAL

CIRCUMSTANCES” ........-- i6

EN BANC REVIEW OF THE

MERIT IS APPROPRIATE

DESPITE PARRETTI’S FLIGHT . 22

CONCLUSION 2.0 cseenteeee 25

B-17

STATEMENT OF RELATED CASES ......... 26

CERTIFICATE OF COMPLIANCE ........... 27

EXCERPT: Section C., page 22

©. EN BANC REVIEW OF THE MERITS IS

APPROPRIATE DESPITE PARRETTI FLIGHT

In December 1996, after the panel had issued an

unpublished order ruling in his favor, Parretti fled the country.

He remains a fugitive. In his dissent to the panel’s opinion,

Judge Pregerson argued that the appeal should have been

dismissed after Parretti fled because “his absence ‘disentitles

the defendant to call upon the resources of the Court for

determination of his claims.*” 122 F.3d at 787 (citation

omitted).

The fugitive disentitlement doctrine, allowing a court

to dismiss an appeal if a party has become a fugitive during its

pendency, is discretionary, not jurisdictional. See, e.g.,

United States v. Van Cauwenberghe, 934 F.2d 1048, 1054-55

(9" Cir. 1991). In Degen v. United States, 116 S. Ct. 1777,

1780-81 (1996), the Court identified four factors to consider

in determining whether to apply the doctrine: (1) the difficulty

of enforcing a judgment if the fugitive cannot be found; (2)

the unfairness of allowing a party access to the courts while

evading their jurisdiction; (3) the need to discourage escape

and encourage voluntary surrender; and (4) the desire to

promote the ‘““efficient, dignified operation’ of the courts.”

Id. At 1781 (citation omitted).

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B-18

The panel issued its unpublished order ruling in

Parretti’s favor before he fled. The panel’s opinion a year and

a half later merely explained the rationale underlying its

ruling. In this unusual posture, none of the four Degen factors

favor application of the fugitive disentitlement doctrine.

First, there is no concern with the difficulty of enforcing a

judgment. Should the en banc court uphold the panel’s

opinion, there will be no judgment to enforce against Parretti.

Should the court reject any or all of the panel’s holdings and

adopt the government’s arguments, there will remain no issue

of enforceability because the intervening finding of

extraditability has rendered the provisional arrest issues moot

as to Parretti.’® Nor is there any issue of unfair access to the

courts -- Parretti fled after the court had announced its ruling

in his favor, and now it is the government, not Parretti, that

seeks further review. For these same reasons, there is no

deterrence value to be served by dismissing the appeal, and

the dignity of the court was not offended by Parretti’s flight.

Cf, Oretega-Rodriguez v. United States, 507 U.S. 234, 244-46

(1993) (declining to apply doctrine, in part because dignity of

not foreclosed for two reasons. First, at the time of the original

panel order, the issues were not moot. Second, even now, the

issues presented are capable of repetition yet evading review. See

Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990);

Murphy v. Hunt, 455 U.S. 478, 482-83 (1982). Provisional arrests

are typically too short in duration to be fully litigated prior to their

cessation or expiration, and there is a reasonable expectation that

the complaining party, the United States, will be subjected to the

same action again.

B-19

court was not offended given that no appeal was pending

during defendant’s absence).

This case is analogous to United States v. Sharpe, 470

U.S. 675 (1985). The respondents in Sharpe fled after the

Court granted certiorari to review a judgment reversing their

convictions. The Court nonetheless heard the case and ruled

for the government on the merits. The Court declined Justice

Steven’s invitation, in dissent, to rule for the government by

applying the fugitive disentitlement doctrine to vacate the

judgment and remand for dismissal of the appeals. /d. at 681

n.2 (doctrine “is wholly irrelevant when the defendant has had

his conviction nullified and the government seeks review

here”). Here, as in Sharpe, it is the government that seeks

review; that review cannot be foreclosed by Farretti’s decision

to flee.

C-20

APPENDIX C

Giancarlo PARRETTI, Petitioner-Appellant,

UNITED STATES of America, Respondent-Appellee.

No. 95-56586.

United States Court of Appeals,

Ninth Circuit

Filed October 2, 1997

Before: HUG, Chief Judge.

Prior Report: 122 F.3d 758.

ORDER

Upon the vote of a majority of nonrecused regular active

judges of this court it is ordered that this case be reheard by

the en banc court pursuant to Circuit Rule 35-3.

D-21

APPENDIX D

Giancarlo PARRETTI, Petitioner-Appellant,

UNITED STATES of America, Respondent-Appellee.

No. 95-56586.

United States Court of Appeals,

Ninth Circuit

Argued and Submitted Nov. 21, 1995.

Decided May 6, 1997.

As Amended August 29, 1997.

Richard J. Beada, Santa Monica, CA, and William

J. Genego, Santa Monica, CA, for the petitioner-appellant.

George S. Cardona, Assistant United States

Attorney, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the

Central District of California. James M. Ideman, District

Judge, Presiding. D.C. No. CV-95-7593-JML

D-22

Before: PREGERSON, NORRIS, and

REINHARDT, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge.

On October 18, 1995, federal agents entered the Los

Angeles office of the law firm of White & Case, interrupted

a deposition being given by appellant Giancarlo Parretti and

arrested him. The arrest was made pursuant to a warrant

issued that morning on the basis of allegations contained in a

French arrest warrant charging Parretti with extraditable

crimes. After his arrest, Parretti was held without bail

pending a decision by the French government whether to

request his surrender at a later date.

Parretti's appeal presents two constitutional questions:

First, did the warrant issued for Parretti's arrest violate the

Fourth Amendment? Second, did Parretti's detention without

bail before his extradition hearing violate the Due Process

Clause of the Fifth Amendment?

BACKGROUND

In 1990, a corporation headed by Giancarlo Parretti,

an Italian citizen and resident, purchased MGM-United

Artists for $ 1.3 billion. This leveraged transaction, which

resulted in the formation of MGM-Pathe Communications

Corporation, gave rise to a number of lawsuits. On October

eee ere Mare eR ON TT SNe ees ee tency

LLL NL ae te RCD Sasi) Pah cited AGE, eg NA GERLT AED

D-23

9. 1995, Parretti entered the United States in order to answer

charges of perjury in connection with one of these suits in

Delaware, and to attend his own deposition in connection

with another in Los Angeles. The following day, France

forwarded a diplomatic note to the Department of State

requesting Parretti's "provisional arrest" pursuant to Article IV

of the Treaty of Extradition between the United States and

France, Jan. 6, 1909, U.S.-Fr., 22 U.S.T. 407, as amended,

Feb. 12. 1970, T.1.A.S. 7075, so that he might be held in

custody in case France decided to request his surrender at a

later date.

Parretti was arrested pursuant to a warrant issued by

United States Magistrate Judge Joseph Reichmann on the

basis of allegations contained in a "Complaint for Provisional

Arrest Warrant" sworn to on information and belief by an

assistant United States Attorney ("AUSA") for the Central

District of California, "acting on behalf of the Government of

France" (the "Complaint"). The AUSA alleged that Parretti

had been charged in an international arrest warrant issued in

France on May 3, 1995, with various crimes arising from his

alleged looting of the French company Europe Image

Distribution (EID), one of MGM.-Pathe's subsidiaries; that

each of the offenses charged in the French arrest warrant! as

| As alleged in the Complaint, the French arrest warrant charges

Parretti with: (1) misuse of the assets of EID; (2) forging

documents and using them; (3) embezzlement from EID by false

pretenses; and (4) knowingly attesting to materially inaccurate

facts, and knowingly making use of such a faise attestation.

D-24

an extraditable offense under the treaty; and that France had

requested Parretti's "provisional arrest" under Article IV of

the treaty. Article IV provides for the "arrest and detention of

a fugitive . . . on information . . . of the existence of .. . a

warrant of arrest" and for the person "provisionally arrested"

to be held for up to 40 days pending a possible request that

the fugitive be extradited. At the time the AUSA filed the

Complaint, France had not requested Parretti's extradition.”

The sole basis for the allegations of wrongdoing made

in the AUSA's Complaint is the French arrest warrant. In

other words, the AUSA simply alleges on information and

belief that the French arrest warrant contains various

allegations of wrongdoing by Parretti. Complaint Par. 2

(stating that the French warrant and the diplomatic note

requesting Parretti's arrest "provide the basis for the

Statements set forth below"), Par. 5 ("The arrest warrant

alleges the following facts in support of the charges . . . .").

The French arrest warrant itself was not attached to the

Complaint, nor were any affidavits or other competent

evidence.

The AUSA stated in the Complaint, "I am informed through

diplomatic channels that the Requesting State will make a regular

diplomatic request for the extradition of Parretti in conformity with

the treaty and will present the completed papers upon which the

demand for extradition is founded within 40 days from the date of

commitment, as required by Article IV of the Treaty." Complaint

Par. 10.

ia aii

D-25

Parretti argued at his bail hearing and on his habeas

petition to the district court that the warrant issued by Judge

Reichmann violated the Fourth Amendment for two

independent reasons. First, Parretti argued that the warrant

was issued without probable cause because it was not based

on evidence that Parretti had committed any of the offenses

with which he was charged in the French arrest warrant.

Parretti put it this way:

If you look at the language in the Complaint, what

they say, is that based on the French warrant, we are

stating the following. All that they are doing is

regurgitating to the court what they have obtained

from the warrant from France. We don't know what

the investigating magistrate based those statements

on.

ER at 150; RT at 7 (tr. of hr'g on Pet. for Habeas Corpus). In

other words, Parretti argued that the record showed only that

the United States warrant was based solely upon the existence

of the French arrest warrant, and that the government made no

showing to Judge Reichmann that the allegations contained in

the French arrest warrant were based upon competent

evidence.

In response, the government argued below that Judge

Reichmann's determination of probable cause was "supported

by specific facts that are set forth in the Complaint, relaying

facts that were conveyed to the United States by France." ER

at 23 (unofficial tr. of Nov. 1, 1995, hr'g on renewed bail

application). The AUSA acknowledged that the "conveying

D-26

of the facts was done in an informal way, that it wasn't in a

way of formal evidence," but argued that "there's nothing that

prohibits that." /d. (unofficial tr. of Nov. 1, 1995, hr'g on

renewed bail application).

In denying Parretti's habeas petition, the district court

ruled that the arrest warrant issued by Judge Reichmann was

valid because the Complaint "alleges more than sufficient

facts, with more than sufficient particularity, to establish

probable cause to believe that Parretti committed the offenses

with which he is charged in France." Findings of Fact,

Conclusions of Law and Oder denying application for bail and

habeas corpus petition, filed Nov. 15, 1995, at 5-6; E.R. exh.

11, at 5-6. In rejecting Parretti's argument that the

government had failed to make any evidentiary showing that

he had committed a crime, the district court said at the

hearing, "That's what they got [sic] 40 days to clear up and to

make a presentation in their extradition proceedings." ER at

150-51; RT at 7-8.

As a second, alternative basis for challenging the

validity of his arrest, Parretti argued that his arrest warrant

violated the Fourth Amendment because Judge Reichmann

did not make a probable cause determination. According to

Parretti, Judge Reichmann effectively declared that a probable

cause determination was not required for a warrant for a

"provisional arrest" pursuant to an extradition treaty. In

response to Parretti's claim that his detention violated the

Fourth Amendment, Judge Reichmann ruled that the

government's recital of the allegations of the French arrest

ee eee

D-27

warrant was "sufficient at this stage." ER at 29 (unofficial tr.

of Nov. 1, 1995, hr'g on renewed bail app.). In other words,

Judge Reichmann held that the allegations of the French arrest

warrant, as set forth in the Complaint, provided a sufficient

basis for the issuance of a warrant for Parretti's "provisional

arrest," even though Judge Reichmann acknowledged that

these naked allegations might not be sufficient to establish

probable cause at the extradition hearing itself. Id. at 26, 29

("as far as what has to be done when we get to the remainder

of the papers, that's another matter"; "I don't have all the

papers, so I can't really make a very strong determination as

[to] the possibility of success [at the extradition hearing].").

Parretti also cited the language of the warrant, which "did not

even purport to find that there was probable cause, but instead

‘commanded’ the arrest of Parretti to have him ‘answer a

complaint charging him with being subject to extradition to

France pursuant to a warrant of arrest issued in that country .

_."" Mem. Supp. Pet. Habeas Corpus, at 14; ER at 57.

In response to Parretti's claim that Judge Reichmann

issued the arrest warrant without making a probable cause

determination, the government argued to the district court a

novel Fourth Amendment theory: A warrant for a

"provisional arrest" in an extradition case may be issued

without an evidentiary showing that the accused has

committed a crime. The government argued that a

provisional arrest warrant may issue on a showing that the

fugitive has been duly charged with an extraditable crime, as

distinguished from an evidentiary showing of probable cause

to believe he committed an extraditable crime. Appellee's

D-28

Brief at 36 n.10. Thus, the government asks us to read into

the Warrant Clause of the Fourth Amendment a standard of

probable cause that would vary depending on whether the

purpose of the arrest is to hold an accused to answer charges

of a foreign government or to answer domestic charges.

[1] In support of this position, the government argues

that the Secretary of State's decision to enforce an extradition

treaty authorizing provisional arrest upon information of a

foreign warrant reflects the Secretary's determination that the

foreign nation's charging procedures are sufficiently reliable

to satisfy the probable cause requirement of the Fourth

Amendment. The government argues that under the rule of

judicial non-inquiry, the federal courts must defer to the

Secretary's decision and accept at face value the foreign

warrant as a basis for issuing a warrant for "provisional

arrest."> The district court did not address this argument

because it held that the existence of the French arrest warrant

was a sufficient basis for issuing a warrant for Parretti's

Parretti contends that this argument was waived because it was

not made until the government filed a Petition for Rehearing

following the issuance of our order releasing Parretti. Resp. to Pet.

for Reh'g, at 7 n.6. The government's judicial non-inquiry

argument, however, is implicit in the government's theory that a

warrant for "provisional arrest" pursuant to an extradition treaty

may issue on a showing that the accused is duly charged by the

requesting country. This theory was presented to the district court,

Resp. to Pet. for Habeas Corpus, at 46: ER at 122, and to the

motions panel, Appellee's br. at 36 n. 10. Accordingly, the

government's judicial non-inquiry argument is not waived.

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D-29

arrest."

The district court also rejected Parretti's bail

application, even though it found that Parretti was not a flight

risk. In rejecting the government's request for a finding that

Parretti was a flight risk, the district court said, "I can't say

that he's a flight risk. . . . I don't see him as a flight risk."

Reporter's Tr. of Proc'gs, Nov. 9, 1995.

The district court noted that under the doctrine of

"special circumstances" that has its origins in Wright v.

Henkel, 190 U.S. 40, 63, 47 L. Ed. 948, 23 S.Ct. 781 (1903),

bail in extradition cases is "only granted under exceptional

circumstances." ER at 148. Parretti argued that four special

circumstances existed warranting bail: probable success in

defeating the French extradition request on the merits, see

Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989);

his need to participate in civil litigation, see United States v.

Williams, 611 F.2d 914, 915 (1st Cir. 1979), his deteriorating

medical condition, see Salerno, 878 F.2d at 317; and France's

deliberate refusal to make any effort to extradite him from

Italy for over five months after the French arrest warrant

4 The district court framed the question raised by this argument

by the government as “whether the standard to be applied is

probable cause that Parretti will be found extraditable on the

French charges, or probable cause that he is guilty of those

charges." Findings of Fact, Conclusions of Law & Order Den.

Application for Bail & Habeas Corpus Pet., filed Nov. 16, 1995, at

9; ER at exh. 11.

D-30

issued, which allegedly demonstrated that France did not need

the 40 day period authorized by the treaty for "provisional

arrests" to prepare its extradition request.

The district court rejected all of the special

circumstances asserted by Parretti. It found that Parretti was

likely to be found extraditable, that his continued detention

was not interfering with his participation in his civil lawsuits,

and that he was receiving more than adequate medical

treatment while incarcerated. Findings of Fact, Conclusions

of Law, & Order Denying Application for Bail and Habeas

Corpus Pet., #§ 12-13, 17. The district court also held that the

fact that France did not seek Parretti's extradition from Italy

was noi a special circumstance as a matter of law. Because

the requirements of the "special circumstances” doctrine were

not met, the district court declined to release Parretti on bail.

After the district court denied Parretti's application for

bail and petition for a writ of habeas corpus, Parretti filed a

motion under Ninth Circuit Rule 27-3 seeking emergency

review. We granted his motion and ordered him released on

two independent grounds: first, that his arrest violated the

Fourth Amendment because the government had failed to

5 Parretti also filed a notice of appeal. After we issued our order

that Parretti be released from custody, Parretti moved to

consolidate the merits review with the motion proceedings. The

government did not oppose the motion to consolidate, and we

granted it.

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D-31

make the required evidentiary showing of probable cause to

believe Parretti had committed an extraditable crime; and

second, that his detention without bail violated the Due

Process Clause of the Fifth Amendment in light of the district

court's finding that he was not a flight risk. United States v.

Parretti, No. 95-56586 (9th Cir. Nov. 21, 1995) (order

granting release from custody).© We now set forth in greater

6 At the time we issued our Order, Parretti had been incarcerated

for 33 days. Eight days later, on November 29, 1995, the

government filed with the magistrate judge a formal request for

Parretti's extradition. Jn re Extradition of Parretti, No.

95-CV-8163 (C.D. Cal. filed Nov. 29, 1995). On May 10, 1996,

Parretti appeared at his extradition hearing. Jd. On May 31, 1996,

Parretti was certified extraditable on all charges. /d. At that point,

the magistrate judge was free to revisit the issue of bail and to

make a new determination whether Parretti posed a flight risk. Id.

(May 31, 1996) (minute order correctly stating that "the Magistrate

Judge is of the opinion that the Ninth C ircuit's Nov. 21, 1995 Order

releasing Mr. Parretti does not preclude committing Mr. Parretti to

the custody of the Marshall, to be confined without bail . . . now

that Mr. Parretti has been determined to be extraditable").

Nonetheless, the magistrate judge released Parretti on bail, with the

government's stipulated consent, pending the filing of a petition for

a writ of habeas corpus by July 1, 1996. Jd. (order staying

surrender of Parretti). Parretti filed a petition on July 1, 1996. See

In re Extradition of Parretti, No. 96-4572-ghksh (C.D. Cal. filed

July 1, 1996). Although the parties have not advised us of the

status of that related, but separate proceeding, the Central District

docket sheet shows that an order was entered on March 12, 1997,

dismissing the habeas petition with prejudice on the basis of the

fugitive disentitlement doctrine.

D-32

detail the reasons underlying our original order.’

PROBABLE CAUSE

[2,3] The Warrant Clause of the Fourth Amendment

provides: "No Warrants shall issue, but upon probable cause,

supported by Oath or affirmation . . . ." U.S. Const. amend.

IV. The Fourth Amendment protects all persons from

arbitrary arrests, including persons arrested pursuant to

treaties. Reid v. Covert, 354 US. 1, 16-18, 1 L. Ed. 2d 1148,

77 §. Ct. 1222 (1957) (plurality opinion); Jn re Aircrash, 684

F.2d 1301, 1308-09 (9th Cir. 1982); Plaster v. United States,

720 F.2d 340, 348 (4th Cir. 1983) (the "government must, in

carrying out its treaty obligations, conform its conduct to the

requirements of the Constitution"). Probable cause to arrest

exists when there is "evidence that would ‘warrant a man of

reasonable caution in the belief’ that a [crime] has been

committed" by the accused. Wong Sun v. United States, 371

U.S. 471, 479, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). We

review de novo whether there was probable cause for the

As stated in note 3 supra, the government filed a Petition for

Rehearing after our order was issued. The government asked us to

consider the Petition only if we decided to publish our order or

issue a published opinion. Because the government filed the

Petition before the filing of this opinion, we denied it without

prejudice. Nonetheless, we have considered the arguments raised

in the government's Petition for Rehearing and in Parretti's

Response thereto.

D-33

issuance of the warrant for Parretti's arrest. Ornelas v. United

States. 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657,

1659 (1996); United States v. McConney, 728 F.2d 1195,

1203 (9th Cir.) (en banc).

The Rule of Judicial Non-Inquiry

[4] Invoking the rule of judicial non-inquiry, the

government argues that the warrant for Parretti's arrest should

be upheld without an independent judicial determination of

probable cause. The government asks us not to "look behind

the foreign warrant" for some "factual showing beyond the

existence of a foreign charging document setting forth an

extraditable offense,” Pet. for Reh'g at 9, but to accept the

foreign warrant at face value as satisfying the probable cause

requirement of the Warrant Clause. As the government puts

it, because the treaty

at issue here

authorizes provisional arrest upon ‘information . . . of

a warrant of urrest[,t]his must be accepted as

reflecting a determination by both the Secretary of

State and the Congress, which approved the treaty,

that France's charging procedures are sufficiently

reliable to justify according their warrants faith and

credit sufficient to support an arrest and a limited

period of detention.

Pet. for reh'g at 8 n.8.

D-34

In arguing that an independent judicial determination

of probable cause is not required, the government asks us to

endorse an unprecedented extension of the rule of judicial

non-inquiry to a justiciable case or controversy. Heretofore,

the rule of judicial non-inquiry has been applied exclusively

to the non-justiciable issues raised by challenges to the

general fairness of a requesting nation's legal or penal system,

issues that are beyond the purview of Article III judicial

power. For instance, we have refused to decide whether the

absence of a statute of limitations in Australia violated due

process of law. Kamrin v. United States, 725 F.2d 1225,

1227-28 (9th Cir. 1984). Similarly, in

Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683

(9" Cir. 1983), we affirmed a district court's refusal to decide

in an extradition proceeding whether the fugitive would be

subjected to brutal and unfair treatment upon her return to the

requesting nation, recognizing that "an extraditing court will

generally not inquire into the procedures or treatment which

await a surrendered fugitive in the requesting country."* See

‘Although neither our court nor any other has ever denied

extradition based on the fugitive's anticipated treatment in the

requesting country, we have implicitly suggested the possibility of

some judicial inquiry into due process issues by qualifying our

determinations of extraditability with the observation that the

accused failed to make a showing of possible mistreatment. See,

e.g., Arnbjornsdottir-Mendler, 721 F.2d at 683 (upholding the

accused's extradition "in light of Iceland's outstanding human

rights record and [the accused's] uncorroborated prediction or

maltreatment"); Emami v. District Court, 834 F.2d 1444, 1453 (9th

Cir. 1987) (rejecting accused's argument that he should not be

D-35

also Glucksman v. Henkel, 221 U.S. 508, 512, 55 L. Ed. 830,

31 S. Ct. 704 (1911) ("We are bound by the existence of an

extradition treaty to assume that the trial will be fair.");

Escobedo v. United States, 623 F.2d 1098, 1107 (Sth Cir.

1980) (refusing to decide whether accused might be tortured

or killed if surrendered to the requesting nation because this

argument raised an "issue that properly falls within the

exclusive purview of the executive branch") (quoting Sindona

v. Grant, 619 F.2d 167, 174 (2d Cir. 1980));

Garcia-Guillern, 450 F.2d 1189, 1192 (Sth Cir. 1971)

(refusing to inquire into the procedure that would await

accused upon his return to the requesting nation because

"such matters, so far as they may be pertinent, are left to the

State Department, which ultimately will determine whether

the [accused] will be surrendered").

In this case, the government invites us to extend the

rule of judicial non-inquiry to the paradigmatic justiciable

question whether an arrest warrant has been issued in

extradited due to his ill health because court-appointed physician

found no serious health condition and requesting country indicated

it would provide adequate medical care). Other courts have also

suggested this possibility. E.g., Gallina v. Fraser, 278 F.2d 77, 79

(2d Cir. 1960) ("We can imagine situations where the relator, upon

extradition, would be subject to procedures or punishment so

antipathetic to a federal court's sense of decency as to require

reexamination of [the general principle of judicial non-inquiry].");

see also Jacques Semmelman, "Federal Courts, the Constitution,

and the Rule of Non-Inquiry in International Extradition

Proceedings," 76 Cornell L. Rev. 1198, 1218 (1991) (citing cases).

D-36

violation of the Fourth Amendment. We respectfully decline

the government's invitation. The rule of judicial non-inquiry

was not designed to relieve the federal courts of our

"unflagging obligation"? to decide actual cases or

controversies that come before us.

The government cites no case, and we have found

none, in which the rule of judicial non-inquiry is invoked to

relieve a court of its obligation to decide a justiciable case or

controversy. All of the cases cited by the government involve

the question of the general fairness of a foreign country's legal

and penal systems. See Glucksman, 221 U.S. at 512; Quinn

v. Robinson, 783 F.2d 776,789-90 (9th Cir. 1986) ("Secretary

of State has sole discretion . . . to refuse extradition on

humanitarian grounds because of the procedures or treatment

that await the surrendered fugitive"); Kamrin, 725 F.2d at

1228; Holmes v. Laird, 148 U.S. App. D.C. 187, 459 F.2d

1211, 1219 (D.C. Cir. 1972)("surrender of an American

citizen required by treaty for purposes of a foreign criminal

proceeding is unimpaired by an absence in the foreign judicial

system of safeguards in all respects equivalent to those

constitutionally enjoined upon American trials").'°

° Colorado River Water Conservation Dist. v. United States, 424

U.S. 800,821, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976).

D-37

In citing these cases, the government overlooks the

critical distinction between justiciable and non-justiciable

controversies. For example, the government cites Quinn, 783

F.2d at 776, but fails to recognize that this distinction is

pivotal to Quinn's holding. In Quinn, we refused to invoke

the rule of judicial non-inquiry because the question presented

- the availability of the political offense exception to bar

extradition - involves a fact-specific case or controversy

typically decided by the courts. We noted that resolution of

the political offense question required us to "determine simply

whether an uprising was in progress [at the time of the alleged

offense]. 'The existence of a violent political uprising is an

issue of past fact: either there was demonstrable, violent

activity tied to political causes or there was not."" Jd. at 788

(internal quotation omitted). In holding that this question,

although a difficult one, was capable of resolution by the

courts, we said: "As with other complex legal problems, the

basic standards that guide us in deciding whether the

exception applies are refined on a case-by-case basis as new

situations arise. . . . We fail to see how the judicial

construction of [the political offense exception and its]

application . . . to the facts of a given case, differs from all

other judicial decisionmaking." Jd. at 790. Every other

circuit that has addressed the justiciability of the political

offense exception has recognized the distinction between the

fact-specific inquiry it involves and the generalized

policy-like determinations that would be necessary to

determine the general fairness of a country's legal and penal

systems. For this reason, each of these circuits has held that

the questions the political offense exception raises are

D-38

properly considered by the courts. E.g., Jn re Mackin, 668

F.2d 122, 137 (2d Cir. 1981); Eain v. Wilkes, 641 F.2d 504,

517 (7th Cir. 1981).

Although courts have declined to apply the judicial

non-inquiry doctrine to the political offense exception, the

doctrine has been invoked to refrain from deciding the

question of "subterfuge," i.e., the question whether the motive

of a requesting country in seeking extradition is not to

prosecute the fugitive for extraditable crimes, but for

non-extraditable political crimes. Explaining why courts

refrain from deciding the question of "subterfuge" in

deference to the Secretary of State, the Seventh Circuit has

said: "Evaluations of the motivation behind a request for

extradition so clearly implicate the conduct of this country's

foreign relations as to be a matter better left to the Executive’s

discretion." Eain, 641 F.2d at 516."’ The Seventh Circuit

went on to explain why the doctrine of judicial non-inquiry is

invoked in a case involving the subterfuge question but not in

a case involving the political offense exception:

'\ See also Garcia-Guillern v. United States, 450 F.2d 1189, 1192

(Sth Cir.1971) ("With respect to appellant's contention that upon

his return to Peru he will be charged with, and tried for, other

crimes distinct and unrelated to the offense with which he is now

charged, we are not at liberty to speculate that the Republic of Peru

will not recognize and live up to the obligations subsisting between

it and the United States.").

D-39

A judicial decision . . . that establishes an American

position on the honesty and integrity of a requesting

foreign government [i.e., whether there is subterfuge]

is distinguishable from a judicial determination that

certain events occurred and that specific acts of an

individual were or were not connected to those events

[i.e., whether the political offense exception to

extradition applies]. The latter type of decision

simply categorizes the facts involved in a given case

and then construes the treaty to determine whether or

not the facts fall within its ambit. [But] the Judiciary's

deference to the Executive on the"subterfuge"

question is appropriate since political questions would

permeate any judgment on the motivation of a foreign

government.

Eain, 641 F.2d at 516-17.

[5, 6] In support of its argument that we should

invoke the doctrine of judicial non-inquiry and not "look

behind the foreign warrant," the government also cites

Michigan v. Doran, 439 U.S. 282, 58 L. Ed. 2d 521, 99 S. Ct.

530 (1978), which held that an asylum state must give full

faith and credit to a requesting state's probable cause

determination. In domestic extradition cases, a governor's

grant of extradition is prima facie evidence that the

constitutional and statutory requirements have been met. /d.

at 289. Doran, however, is inapposite because it is a

domestic interstate extradition case and our Constitution

requires courts to give full faith and credit to the judicial

proceedings of the demanding state. U.S. Const. art. IV, § 2,

b-40

cl. 2 ("A Person charged in any State with Treason, Felony, or

other Crime, who shall flee from justice, and be found in

another State, shall on Demand of the executive Authority of

the State from which he fled, be delivered up, to be removed

to the State having Jurisdiction of the Crime."). This

constitutional requirement, however, is grounded in the

presumption that the judicial proceedings of every state

comport with the requirements of the Constitution. See

Doran, 439 US. at 289 ("Under Art. IV, § 2, the courts of the

asylum state are bound to accept the demanding state's

judicial determination since the proceedings of the demanding

state are clothed with the traditional presumption of

regularity."). Because foreign governments are not bound by

the Constitution, we decline to invoke the full faith and credit

clause of the Constitution to clothe foreign arrest warrants

with a presumption of compliance with the Fourth

Amendment. Were we to accept the government's invitation

to extend the full faith and credit clause in this way, we would

be effectively amending Article IV of the Constitution.

It strikes us as curious that the government asks us to

give full faith and credit toa foreign charging document at the

provisional arrest stage even though we do not give it full

faith and credit for probable cause purposes at the extradition

hearing stage. At extradition hearings, the committing

magistrate is called upon to make an independent

determination "whether there is competent evidence to justify

holding the accused to await trial." Collins v. Loisel, 259

U.S. 309, 316, 66 L. Ed. 956, 42 S. Ct. 469 (1922). In other

words, the committing magistrate must make an independent

D-41

judicial determination whether a factual basis exists for

believing that the accused person committed an extraditable

crime. See, e.g., Glucksman, 221 U.S. at 512 ("a man is not

to be sent from the country merely upon demand or surmise,

_ . there [must be] presented . . . such reasonable ground to

suppose him guilty as to make it proper that he be should be

tried"); Quinn, 783 F.2d at 783 (under doctrine of dual

criminality, an accused person can be extradited only if there

is evidence that would justify committing the accused for trial

under the law of the nation requesting extradition if the

offense had been committed within the territory of that

nation); 18 U.S.C. § 3184 (before an accused may be

certified extraditable, court must hear evidence of criminality

and determine whether it suffices to sustain the charge under

the provisions of the treaty). Just as we do not accept the

foreign charging document as a substitute for the customary

showing of probable cause at the extradition hearing, we see

no reason to accept it as a substitute for a judicial

determination of probable cause at the provisional arrest

stage.

In sum, we reject the government's notion that our

courts should invoke the rule of judicial non-inquiry to

abstain from deciding whether the warrant for Parretti's arrest

was based upon competent evidence that he committed an

extraditable crime. "We fail to see how [the question whether

the warrant for Parretti's arrest was issued in violation of the

Fourth Amendment] differs from all other judicial

decisionmaking.” Quinn, 783 F.2d at 790.

D-42

The Government's Theory of a "Provisional Arrest"

Exception to the Warrant Clause

We now turn to the merits of the government's

argument that the Fourth Amendment permits an arrest

warrant to be issued on the basis of a foreign arrest warrant by

a treaty partner, without an independent judicial determination

of probable cause based upon competent evidence. This

argument raises a constitutional question of first impression:

May a person be "provisionally arrested" and held for 40 days

on a showing that the person has been charged by a foreign

government with having committed an extraditable crime? In

other words, may a warrant for provisional arrest issue

without an evidentiary showing of probable czuse to believe

an extraditable crime has been committed? Although we

know of no case in which this question has been decided, the

Second Circuit has raised "grave questions concerning the

constitutional propriety" of issuing an arrest warrant solely on

the basis of the existence of a foreign arrest warrant.

Caltagirone v. Grant, 629 F.2d 739,748 (2d Cir. 1980); see

also United States v. Williams, 480 F. Supp. 482, 485 (D.

Mass.) (expressing doubt as to constitutionality of 30-day

provisional.detention-based-solely on information that the

fugitive had been charged with an extraditable crime), rev'd

on other grounds, 611 F.2d 914 (1st Cir. 1979).

D-43

The necessity of deciding the Fourth Amendment

question.

In Caltagirone, the Second Circuit avoided the

constitutional question by interpreting the treaty with Italy as

requiring a full evidentiary showing of probable cause to

believe that an extraditable crime had been committed, and

then holding that the warrant for Caltagirone's "provisional

arrest," which was issued solely on the basis of the existence

of an Italian arrest warrant, violated the treaty because it was

issued without probable cause. Caltagirone, 629 F.2d at 742,

747 ("The overwhelming evidence that Article XIII [of the

treaty] itself prohibits provisional arrest without probable

cause relieves us of the need to examine the constitutional

propriety of a treaty that purports to permit such arrests.").

The language in the Italian treaty that the Second

Circuit interpreted as requiring probable cause for a

provisional arrest warrant was the following:

“In case of urgency a Contracting Party may apply for

the provisional arrest of the person sought pending the

presentation of the request for extradition through the

diplomatic channel . ... The application shall contain

a description of the person sought, an indication of

intention to request the extradition of the person

sought and a statement of the existence of a warrant of

arrest . . . against that person, and such further

information, if any, as would be necessary to justify

the issue of a warrant of arrest had the offense been

D-44

committed . . . in the territory of the requested Party"

Caltagirone, 529 F.2d at 744 n.9 (quoting Treaty of

Extradition, Jan. 18, 1973, U.S.-Italy, 26 U.S.T. 493)

(emphasis added). Inother words, the Italian treaty provided

for the issuance of a warrant for "provisional arrest" only

upon a showing of both the existence of an arrest warrant and

"such further information as would be necessary to justify the

‘ssue of the warrant of arrest had the offense been committed”

in the United States. Jd. at 745. The Second Circuit

interpreted this "further information" language as requiring a

showing of probable cause in addition to the existence of an

arrest warrant issued by the requesting state. Id. at 744 ("Had

the offense [the fugitive was charged with] been committed

in the United States, a showing of probable cause would have

been necessary to justify the issuance of an arrest warrant.").

Because simar "further information" language was

also included in the extradition treaty with Spain at issue in

Sahagian, the Seveath Circuit was also able to avoid the

Fourth Amendment question. Article XI of the treaty with

Spain provided:

“In case of urgency a Contracting Party may apply to

the other Contracting Party for the provisional arrest

of the person sought... . The application shall

contain a <escription of the person sought, an

indication of intention to request the extradition of the

person sougat and a statement of the existence of a

warrant of atest . . .and such further information, if

any, as may be required by the requested Party.”

D-45

Sahagian, 864 F.2d 509, 51 1 (7th Cir. 1988) (emphasis

added). As the Second Circuit had done in Caltagirone, the

Seventh Circuit interpreted the "further information" language

in the treaty with Spain as requiring a showing of probable

cause for the issuance of a warrant for provisional arrest in

addition to the existence of the Spanish arrest warrant. Id. at

513 ("As contemplated by Article XI [of the Spanish treaty],

the federal officials obtained Sahagian's provisional arrest and

detention pending extradition after obtaining an arrest warrant

from a magistrate based upon a showing of probable cause.").

In this way, the Seventh Circuit also avoided the Fourth

Amendment question. /d. ("the procedures set forth in Article

XI did not deprive Sahagian of any constitutional rights").

[7] In keeping with time-honored precepts of judicial

restraint,’ we too could avoid the constitutional question

raised by the government's argument if the treaty with France,

like the treaty with Italy considered in Caltagirone and the

treaty with Spain considered in Sahagian, could fairly be

interpreted as requiring a showing of probable cause in

addition to the existence of a foreign arrest warrant. However,

neither the article authorizing provisional arrests, nor any

2 See, e.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288,

348, 80 L.Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring;

("When the validity of an act of the Congress is drawn in question,

and even if a serious doubt of constitutionality is raised, it is a

cardinal principle that this Court will first ascertain whether a

construction of the statute is fairly possible by which the question

may be avoided.") (quoting Crowell v. Benson, 285 U.S. 22,62, 76

L. Ed. 598, 52 S. Ct. 285 (1932)).

D-46

other provision of the French treaty can fairly be so

interpreted.

Article IV of the French treaty provides:

The arrest and detention of a fugitive may be

applied for on information, even by telegraph, of the

existence of a judgment of conviction or of a warrant

of arrest. ...

_.. [In case of urgency, the application for arrest and

detention may be addressed directly to the competent

magistrate in conformity to the statutes in force.

_ . . [T]he person provisionally arrested shall be

released, unless within forty days . . . from the date of

commitment in the United States, the formal

requisition for surrender with the documentary proofs

herein before prescribed be made as aforesaid by the

diplomatic agent of the demanding government or, in

his absence, by a consular officer thereof.

Extradition Treaty, Jan. 6, 1909, U.S.-Fr., art. IV, 22 U.S.T.

407. as amended, Feb. 12, 1970, T.I.A.S. 7075 (emphasis

added). Thus, in stark contrast to the treaties with Italy and

Spain, Article IV of the treaty with France contains no" further

information" requirement, nor any other language that might

fairly be interpreted as requiring a showing of probable cause

as required by the Fourth Amendment. The language of

Article IV unambiguously permits the issuance of an arrest

warrant solely on the basis of the existence of a foreign

warrant of arrest.

D-47

The only other language of the French treaty that

pertains to the arrest of fugitives, found in Article I,'’ also

cannot fairly be interpreted as requiring probable cause for

provisional arrests. Article I governs when the United States

and France must “deliver up" fugitives to each other.

"Deliver up" plainly means the actual act of surrendering the

fugitive, and Art‘cle I's requirement of a showing of probable

cause simply embewies the well-established principle that the

committing magistrate must make an _ independent

determination of probable cause before a person may be

extradited. See 18 U.S.C. § 3184 (court must hear and

consider evidence of criminzlity before fugitive may be

certified extradiable); Collins v. Loisel, 259 U.S.

309,314-15, 66 L. Ed. 956, 42 S. Ct. 469 (1922); Glucksman

v. Henkel, 221 U.S. 508,512, 55 L. Ed. 830, 31 S. Ct. 704

(1911).

> Article I provides:

The Government of the United States and the Government

of France mutually agree to deliver up persons who,

having been charged with or convicted of any of the

crimes o° offences specified in the following article,

committed within the jurisdiction of one of the contracting

Parties, shall seek an asylum on be found within the

territories of the other: Provided that this shall only be

done upon such evidence of criminality as, according to

the laws of the place where the fugitive or person so

charged shall be found, would justify his or her

apprehension and commitment for trial if the crime or

offence had been the recommitted.

Extradition Treaty, Jan. 6, 1909, U.S.-Fr., art. 1, 22 U.S.T. 407, as

amended, Feb. 12, 1970, T.I.A.S. No. 7075.

D-48

[8] We could also avoid reaching the Fourth

Amendment question by interpreting 18 U.S.C. § 3184,"

'* Section 3184 provides:

Whenever there is a treaty or convention for extradition

between the United States and any foreign government, .

_. any judge . . . may, upon complaint made under oath,

charging any person found within his jurisdiction, with

having committed within the jurisdiction of an any such

foreign government any of the crimes provided for by such

treaty or convention . . . issue his warrant for the

apprehension of the person so charged, that he may be

brought before such . . judge . . . to the end that the

evidence of criminality may be heard and considered. . . .

If on such hearing, he deems the evidence sufficient to

sustain the charge under the provisions of the proper treaty

or convention . . .he shall certify the same, together with

a copy of all the testimony taken before him, to the

Secretary of State, that a warrant may issue upon the

requisition of the proper authorities of such foreign

government, for the surrender of such person, according to

the stipulations of the treaty or convention; and he 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.

18 U.S.C. § 3184.

Article IV of the treaty provides in pertinent part:

In the United States, the application for arrest and

detention shall be addressed to the Secretary of State, who

shall deliver a warrant certifying that the application is

regularly made and requesting the competent authorities to

take action thereon in conformity to statute.

Extradition Treaty, Jan. 6, 1909, U:S.-Fr., art. IV, 22 U.S.T. 407,

as amended, Feb. 12, 1970, T.I.A.S. 7075 (emphasis added).

D-49

which authorizes the issuance of arrest warrants pursuant to

extradition treaties, as requiring a traditional showing of

probable cause. Unfortunately, like the French treaty, § 3184

cannot fairly be so read. Section 3184 allows an arrest

warrant to issue on the basis of a "complaint . .. charging [the

person to be arrested] with having committed" an extraditable

offense. Once again, all § 3184 requires is a showing that the

fugitive has been charged with committing an extraditable

crime. Section 3184 does not require an independent judicial

determination of probable cause to believe the fugitive

committed the offense. Under § 3184, the purpose of the

arrest is to allow the fugitive to be brought before a magistrate

so that the "evidence of criminality may [then] be heard and

considered.” 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.

In sum, neither the treaty with France nor § 3184 can

fairly be construed as requiring a traditional showing of

probable cause for the issuance of a warrant for provisional

arrest. Nor can we avoid the Fourth Amendment question

presented by Parretti's appeal by finding that a showing of

probable cause has in fact been made. See In re Russell, 805

F.2d 1215, 1217 (Sth Cir. 1986) ("Assuming without deciding

that the Treaty requires a showing of probable cause to

support a provisional arrest . . . we agree with the district

court that the magistrate had enough evidence before him to

D-50

show probable cause to detain [the fugitive].").'° Just as in

Caltagirone, 629 F.2d at 742-43, the government, in relying

solely on the existence of the French arrest warrant, has failed

to satisfy the probable cause requirement of the Warrant

Clause of the Fourth Amendment. See Part II-C infra.

We are therefore obligated to reach the constitutional

question that the Second, Fifth, and Seventh Circuits managed

to avoid in Caltagirone, Russell, and Sahagian. Parretti's

appeal squarely presents the question whether the Fourth

Amendment permits the issuance of a warrant for a

"provisional arrest"based solely on the "existence of a warrant

of arrest" (as the French treaty puts it) issued by a treaty

partner.

a: The merits of the Fourth Amendment question.

[9] We now turn to the merits of the government's

argument that an arrest warrant may be issued in compliance

with the Fourth Amendment solely on the basis of the

existence of an arrest warrant issued by a treaty partner

charging the fugitive with having committed extraditable

crimes. Although the Second Circuit avoided the

constitutional question that now confronts us, it nonetheless

'S. See also Spatola v. United States, 741 F. Supp. 362, 366

(E.D.N.Y. 1990) (noting that magistrate had avoided the

constitutional question raised by defendant's Fourth Amendment

challenge to the warrant for his "provisional arrest" by finding

probable cause).

D-51

expressed "grave" concerns about substituting a foreign arrest

warrant charging a fugitive with a crime for an independent

judicial determination of probable cause to believe the

fugitive had committed the crime. Caltagirone, 629 F.2d at

748. Undaunted by the concerns expressed not only in

Caltagirone, but in Sahagian and Russell as well, the

government once again presses its argument that a fugitive

may be "provisionally arrested" and detained for up to 40 days

without an evidentiary showing of probable cause."

The government fails to give us any cogent reason

why the Fourth Amendment should be interpreted to allow the

arrest of an individual "provisionally" for 40 days for treaty

enforcement purposes without the customary judicial

determination of probable cause based upon competent

'® In Caltagirone, the Second Circuit warned that a fugitive

could, in fact, be detained indefinitely without an independent

judicial determination of probable cause because the requesting

country could renew over and over against its request for

provisional arrest based solely on the existence of the foreign arrest

warrant:

In Collins v. Loisel, the Supreme Court held that an

extradition proceeding which ends in the relator’s release

from custody does not bar a subsequent extradition

demand by the requesting state on the same charge. . . . In

the Government's view, a foreign state could apply for, and

the Government could effect, the unlimited detention of

Caltagirone by stringing together an infinite strand of

forty-five day provisional arrests, all without a judicial

determination of probable cause... .

Caltagirone, 629 F.2d at 747-48 (citation omitted).

D-52

evidence. The only reason the government offers for treating

such "provisional" arrests differently from all other arrests is

the "limited purpose of provisional arrest, which is to hold an

individual charged with extraditable foreign crimes for the

limited time (here 40 days) granted the foreign government

under the applicable treaty to gather and transmit the evidence

required for extradition." Pet. for Reh'g at 7.

We cannot accept the government's argument. To

repeat, the Warrant Clause states, "[N]o Warrants shall issue,

but upon probable cause, supported by Oath or affirmation .

_." U.S. Const. amend. IV. The clarity of this language

allows for no exceptions, regardless whether the government's

purpose in making the arrest is to enforce treaties or our own

domestic laws. See Vernonia Sch. Dist. v. Acton, 515 U.S.

646, 115 S. Ct. 2386, 2390, 132 L. Ed. 2d 564 (1995)

("Warrants cannot be issued, of course, without the showing

of probable cause required by the Warrant Clause."). When

a person is arrested and detained, he is deprived of his most

precious liberty, freedom from restraint by the government.

See Foucha v. Louisiana, 504 U.S. 71, 80, 118 L. Ed. 2d 437,

112 S. Ct. 1780 (1992) (freedom from bodily restraint is at the

"core" of liberty). The severity of that deprivation does not

vary with the government's purpose in making the arrest.

Even if it did, the command of the Warrant Clause that no

warrant issue but on probable cause is immutable.

Thus, we must reject the government's invitation to

carve out an exception to the probable cause requirement of

the Warrant Clause for "provisional arrests"pursuant to

D-53

treaties. As noted above (supra at 11), the Bill of Rights

limits the actions of government taken pursuant to treaties as

well as statutes. The warrant Clause cannot be interpreted as

allowing a lesser standard for arrests made for the purpose of

enforcing treaty obligations than for arrests made for the

purpose of enforcing our own domestic laws. It speaks of

probable cause as a necessary condition of every arrest

warrant, regardless of the governmental purpose served by the

arrest. And it could be no other way.

As authority for the proposition that a warrant for a

“provisional arrest" may issue without an independent judicial

determination of probable cause, the government cites United

States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 564 (2d

Cir. 1963). We find Marasco to be unpersuasive authority for

three reasons. First, Marasco did not address the

constitutionality of the Government's position. It simply held,

citing Fernandez v. Phillips, 268 U.S. 311, 69 L. Ed. 970, 45

S. Ct. 541 (1925), that a warrant for a "provisional arrest"

could be issued on the basis of a complaint alleging that

Marasco was charged with murder in Mexico. Second,

Marasco's reliance on Fernandez was misplaced. In

Fernandez, the arrest warrant was issued on the basis of an

abundance of evidence that the fugitive had committed an

extraditable offense. 268 U.S. at 313 (complaint included a

"copy of the proceedings in the [foreign] court finding that the

crime was duly proved against the appellant and ordering his

arrest, many pages of evidence being appended") (emphasis

added). Moreover, as the Second Circuit itself pointed out in

Caltagirone, Marasco cannot be understood to have resolved

D-54

the constitutional question because, not only does "the Fourth

Amendment point seem[ ] not to have been raised [in

Marasco}," but "evidence establishing probable cause was

produced." Caltagirone, 629 F.2d at 748 n.19. Finally, in

Caltagirone, the Second Circuit expressly declined to read

Marasco in the way the government would have us read it -

as authority for the proposition that a "provisional arrest"

warrant may be based on less than full probable cause. /d.

The only other case the government cites for the

proposition that a warrant for provisional arrest may rest

solely on the existence of a foreign arrest warrant is United

States v. Wiebe, 733 F.2d 549, 553-54 (8th Cir. 1984). In

Wiebe, the Eighth Circuit plainly and correctly stated that a

judicial determination of probable cause to believe the

fugitive committed an extraditable crime was required for a

provisional arrest warrant. Jd. at 554 ("A magistrate may

issue a provisional arrest warrant upon a showing in a sworn

complaint of a treaty of extradition between the United States

and any foreign country, and that the person sought committed

in the foreign jurisdiction one of the crimes set forth in the

treaty.") (emphasis added). The Wiebe court, however, then

went astray and inexplicably upheld a warrant even though it

was based on a complaint that alleged only that Wiebe was

charged with an extraditable crime. In any event, to the

extent that Wiebe may be read as supporting the government's

argument, we decline to follow it.

D-55

The government also advances a practical reason for

permitting "provisional arrest" warrants to be issued without

probable cause. To require it to make a full showing of

probable cause for a "provisional arrest," says the

government, would be to require "the complete extradition

showing" at the provisional arrest stage, which would make

the later extradition hearing redundant. There is no merit to

this argument. We agree with the Second Circuit that "though

the provisional arrest and extradition proceedings must differ

in some way, the difference does not lie in the requirement of

probable cause." Caltagirone, 629 F.2d at 747. The

difference lies in the fact that before extraditability may be

certified, the fugitive is entitled to a hearing, 18 U.S.C. §

3184, at which he may introduce evidence and raise certain

affirmative defenses, for instance that the crime charged is a

non-extraditable "political offense." See Charlton v. Kelly,

229 U.S. 447, 461-62, 57 L. Ed. 1274, 33 S. Ct. 945 (1913);

M. Cherif Bassiouni, /nternational Extradition: United States

Law and Practice 545 (2d rev. ed. 1987) (listing judicial

determinations to be made at extradition hearing).

The government also argues that to require a showing

of probable cause for the issuance of a "provisional arrest"

warrant would create a "practical impossibility" because in

many cases "the arrest must be arranged with haste to avoid

further flight." Appellee's Br. at 36 n.10. The result, the

government argues, would "ensure[ ] that in some instances

fugitives discovered in the United States will be able to flee

before the foreign country can prepare that evidentiary

showing [of probable cause]." Pet. for Reh'g at 11. The

D-56

government claims that such a requirement would be

"logically inconsistent with the limited purpose of provisional

arrest, which is simply to hold an individual charged with

extraditable foreign crimes for the limited time (here 40 days)

granted the foreign government under the applicable treaty to

gather and transmit the evidence required for extradition." /d.

at 7. This argument is also devoid of merit. First, there is

language contained in the extradition treaties with Spain and

Italy, but not contained in the treaty with France, that requires

full compliance with the probable cause requirement of the

Warrant Clause of the Fourth Amendment. See Part II-B-1

supra. The fact that the government willingly included

language requiring probable cause in other extradition treaties

belies its claim of "practical impossibility" under the French

treaty. Second, the hurdles created by the Fourth

Amendment in the path of treaty enforcement are no different

from the hurdles created for our own law enforcement

officers, who are required to marshal evidence of probable

cause and present it to a magistrate no later than 48 hours

after a warrantless arrest is made based upon exigency. See

County of Riverside v. McLaughlin, 500 U.S. 44,57, 114 L.

Ed. 2d 49, 111 S. Ct. 1661 (1991).

In the final analysis, the government is really arguing

that its interests in extradition cases are greater than its

interests in domestic law enforcement.'’ It asks us to do

'7 We note that the interest asserted by the government as a

justification for not requiring an evidentiary showing of probable

cause as a basis for a provisional arrest warrant has been described

D-57

something in the former that we may not do in the latter:

issue an arrest warrant without probable cause. The clear and

emphatic command of the Warrant Clause - "/N/o Warrants

shall issue, but upon probable cause, supported by Oath or

affirmation .. . ." - bars the issuance of a warrant without

probable cause. The Warrant Clause does not permit the

issuance of a warrant based on a determination that the

government's interests in making the arrest outweigh the

liberty interests of the arrestee. Even in the exceptional case

of Terry v. Ohio, where the Court substituted a balancing test

for the probable cause requirement of the Fourth Amendment,

the Court took pains to explain that the case did not involve

"police conduct subject to the Warrant Clause of the Fourth

Amendment." 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d

889 (1968).

In conclusion, we hold that Article IV of the

extradition treaty with France violates the Fourth Amendment

because it provides for the issuance of "provisional arrest"

as “tenuous” by the only court previously to have considered it.

Caltagirone, 629 F.2d at 748 ("We doubt that the tenuous

relationship between an application for provisional arrest and a

subsequent request for extradition implicates a sufficiently strong

foreign policy interest in the executive to justify such a departure

from usual Fourth Amendment protections.") (footnote omitted).

Like the treaty with Italy considered in Caltagirone, the treaty with

France does not require that a request for provisional arrest be

followed by a formal request for extradition. At the time Parretti

was arrested for up to 40 days, France had not yet requested his

extradition and may never have done so.

D-58

warrants without independent judicial determinations of

probable cause to believe the fugitive committed the offenses

charged.'* We also hold that 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.

‘8 Parretti also argues that his arrest was invalid because 18

U.S.C. § 3184 is an unconstitutional violation of the separation of

powers doctrine. His argument is based on the reasoning in Lobue

v. Christopher, 893 F. Supp. 65 (D.D.C. 1995), vacated on

jurisdictional grounds, 317 U.S. App. D.C. 277, 82 F.3d 108i

(D.C. Cir. 1996). According to Parretti, § 3184 authorizes the

executive branch to review the courts’ legal determinations of

extraditability and, through the Secretary of State's decision

whether or not to surrender fugitives, in effect to affirm or reverse

decisions made by the judiciary. The Government responds that §

3184 establishes a "dual key" scheme, whereby the courts

determine whether it is lawful for the Executive branch to

surrender the fugitive, and then the Secretary of State decides - in

light of a wide range of foreign policy concerns - whether to

exercise his discretion to proceed with the surrender. We need not

decide the question whether § 3184 violates the separation of

powers doctrine because we invalidate the warrant for Parretti’s

arrest on the ground that it violated the Fourth Amendment.

lat le Pate

D-59

The Government's Probable Cause Showing

[10] Parretti argues that the warrant for his arrest was

issued on the basis of no evidence whatsoever. He contends

that it was issued solely on the basis of the allegations of fact

contained in the French arrest warrant, and that allegations are

not evidence.'? Parretti asserts that "there is no indication at

all as to the actual source of the information that is

presented," and"without some indication as to the underlying

source of the information, there can be no determination of

probable cause . . . because the judicial officer cannot assess

the reliability of the information and there is no corroboration

presented to establish reliability". Appellant's Brief at 22-23.

In response, the government contends that the French

official should be presumed to be reliable and that his

reliability cloaks his allegations of fact with sufficient

credibility to establish probable cause, even in the absence of

'° Parretti argues that even if the allegations had been backed up

by trustworthy evidence, they could not establish probable cause

because (1) "there is no conduct by Mr. Parretti that is even alleged

in the complaint,"Appellant's Brief at 22, and (2) the allegations do

not establish that extraditable crimes have been committed, either

because the facts as alleged do not amount to criminal conduct or

because the offenses charged do not meet the dual criminality

requirement for extradition. We need not reach these arguments

because we hold that the government has not satisfied the

evidentiary requirements for a determination of probable cause.

D-60

any showing of a basis for crediting whatever evidence he

relied upon.

[11] The question, however, is not whether we are

willing to defer to the Secretary of State's judgment that the

French investigating magistrate is reliable. The question is

whether the government has made the evidentiary showing of

probable cause required by the Fourth Amendment. Indeed,

the Gevernment's argument to the contrary seems to amount

to a suggestion that Congress has done the courts’ work for us:

Congress has provided in § 3184 that a showing that the

fugitive has been charged by a treaty partner with an

extraditable crime satisfies the Fourth Amendment. The

government argues, in other words, that since Congress has

determined the charging document to be sufficient evidence

of probable cause as a matter of law, there is nothing left for

the courts to decide. But Congress has no power to prescribe

a rule of decision directing the outcome of a case or

controversy. Since U.S. v. Klein, 80 U.S. (13 Wall.) 128, 20

L. Ed. 519 (1871), it has been firmly established that the

principle of separation of powers forbids Congress

to"prescribe a rule for the decision of a cause" or to deny to a

court its prerogative to "give the effect to evidence which, in

its own judgment, such evidence should have." Jd. at 146,

147. Itis for the courts, not Congress, to determine when the

Fourth Amendment's probable cause requirement is

D-61

satisfied.”°

Turning to that inquiry, we agree with Paretti that the

government failed to make the evidentiary showing required

to obtain a warrant for his arrest. In applying for the warrant

to arrest Parretti. all the government presented were the

French magistrate's allegations of fact. According to the

information and belief allegations of the AUSA's Complaint,

the facts alleged in the French arrest warrant were obtained

from "investigations" by unidentified French authorities and

from unidentified experts, shareholders, and employees of

EID. Complaint § 5(g)(3), 5(h)(3), 5(k). The government

presented no affidavits, deposition testimony, or other

competent evidence that could have provided Judge

Reichmann with a "substantial basis for . . . concluding’ that

probable cause exists." Gates, 462 U.S. at 238-39,103 S. Ct.

20. Ordinarily, when a court asks whether a statute has run afoul

of the Klein doctrine, it must conduct another, complementary

inquiry and ask whether Congress has merely effected a change to

the law that underlies the dispute in question, rather than

attempting to prescribe a rule of decision for that dispute. See

Pennsylvania v. Wheeling Bridge Company, 59 U.S. (18 How.)

421,429-30, 15 L. Ed. 435 (1855); Klein, 80 U.S. (13 Wall.) at 147

(discussing Wheeling Bridge, distinguishing unconstitutional

attempt to prescribe rule of decision from situation where "new

circumstances have been created by legislation"). In this case,

however, such an inquiry is unnecessary. Congress has no power

to modify the Fourth Amendment by legislative action.

D-62

At 2332.”!

In sum, Parretti is correct that the government's

probable cause showing consisted of nothing more than naked

allegations. They may have been relayed to the State

21 See also Wong Sun v. United States, 371 U.S. 471, 479, 9 L.

Ed. 2d 441,83 S. Ct. 407 (1963) (to obtain an arrest warrant, the

government must establish probable cause on the basis of

“evidence that would ‘warrant a man of reasonable caution in the

belief that a [crime] has been committed") (emphasis

added)\citation omitted); Berger v. New York, 388 U.S. 41, 55, 18

L. Ed. 2d 1040, 87 S. Ct. 1873 (1967) ("Probable cause under the

Fourth Amendment exists where the facts and circumstances

within the affiant's knowledge, and of which he has reasonably

trustworthy information, are sufficient unto themselves to warrant

a man of reasonable caution to believe that an offense has been or

is being committed."); Rugendorf v. United States, 376 U.S. 528,

530, 11 L. Ed. 2d 887,84 S. Ct. 825 (1964) (upholding probable

cause determination when the hearsay-declarant stated that he

personally knew that the informant had supplied reliable

information in the past and the information provided by the

informant was corroborated by information discovered by the

affiant and other information known to the hearsay-declarant);

Draper v. United States, 358 U.S. 307, 313, 3L. Ed. 2d 327, 79 S.

Ct. 329 (1959) (probable cause established to arrest suspect when

affiant had personal knowledge that informant had been reliable in

the past and had personally verified every facet of the tip except

for whether the suspect had accomplished his criminal purpose);

Giordenello v. United States, 357 U.S. 480, 486, 2 L. Ed. 2d 1503,

78 S. Ct. 1245 (1958) (no probable cause when "complaint

contains no affirmative allegation that the affiant spoke with

personal knowledge of the matters contained therein [and does not]

indicate[ ] any sources for the complainant's belief").

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Department by a reliable source, but those 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. In

essence, the government is asking us to equate the existence

of a foreign arrest warrant with a showing of probable cause.

Like the Second Circuit in Caltagirone, we decline to do so.

See Caltagirone, 629 F.2d at 744 (reversing the district court,

which "simply noted that an Italian warrant of arrest was

outstanding [and] saw no need to determine whether a

sufficient showing had been made to support an arrest under

United States law"). The government next argues that, even

if the fact that Parretti was duly charged by France with

extraditable crimes is insufficient to establish probable cause,

the foreign official's "determinations of fact" should be

considered sufficient because warrants for "provisional arrest"

may be based on facts reported on information and belief

without supporting affidavits, deposition testimony, or other

competent evidence. Pet. for Reh'g at 9. The Government's

reliance on Yordi v. Nolte, 215 U.S. 227, 54 L. Ed. 170, 30 S.

Ct.90 (1909), for this proposition is misplaced. In Yordi,

which upheld an arrest and warrant of extradition, the

magistrate had before him ample evidence consisting of the

record of the foreign judicial proceedings that had resulted in

the foreign warrant for Yordi's arrest, "including the

testimony of witnesses." Yordi, 215 U.S. at 229-30. Thus the

magistrate was able to determine that "the prosecution against

the accused was based upon real grounds, and not upon mere

suspicion of guilt... ." /d. at 230.

D-64

It is true, as the government says, that the Yordi Court

rejected the argument that an extradition complaint must be

sworn to by persons having personal knowledge of the facts

alleged. However, the Court did so in order to acknowledge

that evidence used to support probable cause findings could

take the form of "depositions, warrants, or other papers

offered in evidence, . . . if they shall be properly and legally

authenticated so as to entitle them to be received as evidence

of the criminality of the person so apprehended, by the

tribunals of the foreign country. .. ." Yordi, 215 U.S. at 231

(quoting Rice v. Ames, 180 U.S. 371, 375, 45 L. Ed. 577, 21

S. Ct. 406 (1901)).

The government's reliance on Jn re Russell, 805 F.2d

1215 (5th Cir. 1986), for the proposition that a warrant for

"provisional arrest" may be issued on the basis of information

and belief allegations unsupported by evidence, is also

misplaced. In Russell, the magistrate who issued the arrest

warrant had before him sworn testimony from Russell himself

admitting that he had participated in the criminal transaction.

Russell, 805 F.2d at 1217-18.

The government quotes dicta in Russell that "several

cases have approved the use of a complaint based on

information and belief rather than personal knowledge." 805

F.2d at 1217. Russell, however, miscites the two cases it

relies on for this dicta. One is Yordi, 215 U.S. at 227, which

we discussed above. The other is Grin v. Shine, 187 U.S.

181, 47 L. Ed. 130, 23 S. Ct. 98 (1902). Although Grin v.

Shine states that "all that is required [in extradition

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proceedings] is that a complaint shall be made under oath,” it

goes on to explain that the complaint "may be made by any

person .. . having knowledge of the facts, or, in the absence

of such person, by the official representative of the foreign

government based upon depositions in his possession... ."

Grin v. Shine, 187 U.S. at 193.

In citing these cases for the proposition that probable

cause was established by the AUSA's information and belief

allegations about allegations contained in the French arrest

warrant, the government effectively returns to the theory that

lies at the core of its argument: that the Fourth Amendment

allows a warrant for a "provisional arrest" to be issued for

treaty purposes without an evidentiary showing of probable

cause. As we said in Part II-B supra, the Warrant Clause of

the Fourth Amendment allows for no variation in the probable

cause standard depending upon the government's purpose

served by making the arrest.

In sum, the warrant for Parretti's arrest was issued in

violation of the Fourth Amendment because the government

failed to make the necessary evidentiary showing of probable

cause to believe that Parretti had committed an extraditable

offense.

D-66

Ill

DUE PROCESS

[12] We now turn to the question whether the

detention of Parretti without bail prior to his extradition

hearing deprived him of liberty in violation of the Fifth

Amendment. The district court denied bail even though the

court refused to find that Parretti posed a risk of flight.

Reporter's Tr. of Proc’gs, Nov. 9, 1995 ("I can't say he's a

flight risk. . . . I don't see him as a flight risk.").” In

22. Later, after he was convicted on state charges in Delaware,

Parretti fled that jurisdiction while on bail pending his sentencing

hearing. See A Financier Flees Before Court Date, N.Y. Times,

Jan. 4, 1997, at 25. His flight after conviction in Delaware has no

bearing, of course, on the question whether the district court's

earlier finding that he was not a flight risk pending a possible

extradition hearing was clearly erroneous. Based upon the

evidence before it at the time, the district court made that finding

prior to receiving a request for Parretti's extradition, or the holding

of any extradition hearing. Although Parretti was an international

businessman with only marginal personalties to the United States,

faced serious charges in France if the United States were to

extradite him, and was under criminal investigation by both the

FBI and the IRS, the district court could have concluded that he

was not a flight risk and that bail in a sufficiently high amount

would secure his appearance, given that he had willingly appeared

in Delaware court after he was released on bail before trial, he had

complied fully with the INS conditions imposed upon his entry into

the United States, he had complied fully with the conditions

imposed by the Italian court while he was in both the United States

and Italy, and he had strong business, if not personal, ties to the

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United States, including being a plaintiff in a major civil action.

Indeed, he was in Los Angeles having his deposition taken in the

offices of White & Case when he was arrested. See supra page 1.

The district court's finding that he was not a flight risk was nothing

more, of course, than an assessment of the probabilities that he

would not flee before his extradition hearing. It was not, and could

not have been, an absolute guarantee that he would appear at his

extradition hearing if released on bail. The finding proved to be

reliable: He remained in Los Angeles and appeared at his

extradition hearing. The fact that he later fled, after he was

convicted in Delaware, does not alter the reliability of the district

court's prediction that he would appear at his extradition hearing.

In his dissent, Judge Pregerson maintains that we should invoke

the fugitive disentitlement doctrine to dismiss the appeal bec“use

Parretti has fled the country. That doctrine is discretionary, so we

are not obliged to raise the issue sua sponte. See United States v.

Van Cauwenberghe, 934 F.2d 1048, 1054-55 (9th Cir. 1991)

("[W]hile we clearly have the discretionary authority to dismiss

this appeal, there is 'no per se requirement of dismissal in [these]

.. cases.’ Hussein v. INS, 817 F.2d 63, 63 (9th Cir. 1986) (Norris,

J.,concurring)"). In the circumstances of this case, we see no

reason to decide the issue sua sponte. For present purposes, we

need briefly note only two points. First, Parretti is not seeking

further relief from this court, and the relief we previously provided

is of no further benefit to him. We are simply issuing an opinion

explaining our earlier action, as we promised to do in the order we

issued prior to his flight. We believe that the government and the

district court, among others, are entitled to that explanation. This

is particularly so in a case of the type before us - a pre-trial or

pre-extradition hearing bail matter, where the issue frequently

becomes moot (for practical purposes, at least) before the full

range of appellate procedures can be exhausted by the parties.

Second, we are not persuaded by Judge Pregerson's reason for

dismissing the appeal: that Parretti's continued participation in the

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denying Parretti bail even though he was not a flight risk, the

district court relied on its finding that Parretti had failed to

establish "special circumstances" warranting bail. See United

States v. Smyth (In re Requested Extradition of Smyth), 976

F.2d 1535, 1536 (9th Cir. 1992) (denying bail to potential

extraditee who was not a flight risk for failure to show

"special circumstances"); see also United States v. Kirby (In

re Requested Extradition of Kirby), 106 F.3d 855, 864-65 (9th

Cir. 1997) (as amended) (following Smyth). Parretti argued

that there were four special circumstances in his case: (1) he

was not likely to be found extraditable; (2) his continued

detention interfered with his participation in his civil suits and

(3) with his health; and (4) France had not sought his

litigation is necessary. Judge Pregerson relies on a dissent by

Justice Stevens saying that, even though a case is not technically

moot, the escape of a defendant "may compromise the adversary

character of the litigation" because the escapee’s attorney may

have "less than zealous" "desire to vindicate a faithless client."

United States v. Sharpe, 470 U.S. 675, 724, 84 L. Ed. 2d 605, 105

S. Ct. 1568 (1985) (Stevens, J., dissenting). The Court, however,

did not share Justice Stevens' concern about compromising the

adversarial character of the litigation. Jd. at 681 n.2 (opinion of the

Court). Instead, the Court resolved any such concerns in Sharpe by

directing counsei for the fugitives to file a brief as amicus curiae

in support of their absent clients’ position. Jd. We see no reason

why we should not follow the Supreme Court's lead and, should

further briefing prove necessary, direct Parretti's able counsel to

file an amicus brief. Indeed, despite Parretti's absence from the

country, his counsel submitted a brief on the fugitive

disentitlement doctrine when requested to do so by the district

court in his related, but separate habeas proceeding.

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extradition from Italy. Memorandum in support of

Application for Review of Magistrate Judge's Denial of Bail,

dated Nov. 6, 1995, at 26-32; ER 69-74. The district court

found that Parretti had not established any of the first three

asserted special circumstances, and held that the fact that

France had not requested Parretti’s extradition from Italy was

not a special circumstance as a matter of law.

On appeal, Parretti argues that the district court abused

its discretion when it found that Parretti was likely to be

found extraditable and that his continued detention was not

interfering with his participation in his civil lawsuits.”

Parretti also renews his argument that France's failure to

request Parretti's extradition from Italy is a special

circumstance because it demonstrates that the predicate

justifying the 40 day detention - that this period is necessary

for the requesting country to assemble the documentation

required to make a formal extradition request - is not present.

The government asserts that the Complaint itself establishes

the probable cause necessary to find Parretti extraditable, and

points to Judge Reichmann's statement that, if necessary, he

would intervene to ensure that the Board of Prisons facilitated

Parretti's participation in his civil litigation during his

incarceration. France's decision not to seek Parretti's

extradition from Italy is, the Government argues, irrelevant to

the question of Parretti's eligibility for bail.

3 Parretti does not challenge the district court's finding that he

had not established the special circumstance of deteriorating

medical health due to incarceration.

D-70

We review the district court's determination that

special circumstances do not exist for abuse of discretion, see

Smyth, 976 F.2d at 1535, and hold that the district court did

not abuse its discretion in determining that Parretti had not

established special circumstances warranting his admission to

bail. We also agree with the district court that the fact that

France did not seek Parretti’s extradition from Italy was not

a special circumstance as a matter of law. We therefore

confront Parretti's argument that his detention without bail

deprived him of his personal liberty without due process of

law in violation of the Fifth Amendment because he posed no

risk of flight or danger to the community.

Wright v. Henkel and its Progeny as Precedent

[13] Parretti argues that, notwithstanding the "special

circumstances" doctrine, it remains an open question whether

denying release on bail in the absence of a finding of flight

risk or danger to the community violates due process because

no case applying the "special circumstances" standard has

ever addressed, let alone decided, this constitutional question.

The government, apparently conceding that no court has ever

discussed or even alluded to the due process question,

responds that Wright v. Henkel, 190 U.S. 40, 47 L. Ed.948, 23

La tea Cyt RR er eR RR é "1

D-71

S. Ct. 781 (1903), and its progeny” have held sub silentio that

the"special circumstances" standard is constitutional by

repeatedly applying it to deny bail in extradition cases.

Specifically, the government contends that "it cannot be

presumed that this court's and the Supreme Court's earlier

decisions ignored due process concerns in adopting and

applying the ‘special circumstances’ standard." Pet. for Reh'g

at 12. Not surprisingly, the government cites no authority in

support of this startling proposition.

It is a time-honored principle of stare decisis that

"questions which merely lurk in the record, neither brought to

the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute

precedents." Webster v. Fall, 266 U.S. 507, 511, 69 L. Ed.

411, 45 S. Ct. 148(1925); see also United States v. L. A.

Tucker Truck Lines, Inc., 344 U.S. 33,38, 97 L. Ed. 54, 73 S.

Ct. 67 (1952) ("Even as to our own judicial power or

jurisdiction, this Court has followed the lead of Mr. Chief

Justice Marshall who held that this Court is not bound by a

prior exercise of jurisdiction in a case where it was not

questioned and it was passed sub silentio."), United States v.

More, 7 U.S. (3 Cranch) 159, 172, 2 L. Ed. 397 (1805)

+ Cases applying the "special circumstances" doctrine rely on the

dictum in Wright v. Henkel that "[w]e are unwilling to hold that .

.. while bail should not ordinarily be granted in cases of foreign

extradition, th[e] courts may not in any case, and whatever the

special circumstances, extend that relief." 190 U.S. at 63, 23 S.Ct.

At 787.

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(statement of Marshall, C.J., as reported in the arguments of

counsel) ("No question was made, in that case, as to the

jurisdiction. It passed sub silentio, and the court does not

consider itself as bound by that case."). Accordingly, we

reject the Government's argument that Wright v. Henkel and

its progeny foreclose Parretti’s argument that, in the absence

of a finding that he was either a flight risk or a danger to the

community, his detention without bail violated the Fifth

Amendment.

The Merits of Parretti's Due Process Claim

[14] In arguing the merits of Parretti's due process

claim, both Parretti and the government rely on United States

v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697, 107 S. Ct. 2095

(1987). In Salerno, the Supreme Court rejected a due process

challenge to the Bail Reform Act of 1984, 18 U.S.C. §

3142(f) (1994), which authorized pre-trial detention without

bail upon a showing that no release condition would

reasonably assure the safety of the community. After

declaring that "in our society liberty is the norm, and

detention prior to trial or without trial is the carefully limited

exception," the Court held that the safety of the community

was a sufficiently "legitimate and compelling"government

interest to justify the "carefully limited exception" carved out

by congress in the Bail Reform Act of 1984. Jd. at 749, 755.

Such carefully limited exceptions are permitted only when the

government's interest is "sufficiently weighty" to subordinate

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"the individual's strong interest in liberty" to "the greater

needs of society." /d. at 750-51.

The government asks us to carve out another

exception to the rule that"liberty is the norm" in order to

deprive extraditees of their personal liberty pending

extradition hearings. It argues that its interest in fulfilling our

obligations under extradition treaties is sufficiently

compelling to justify pre-hearing detention regardless of how

slight the risk that the detainee will jump bail and make it

impossible to deliver him to the requesting government. As

the government puts it, detention is necessary to "avoid[ ] any

risk that the extraditee may flee [before an extradition

hearing]." Pet. for Reh’g at 14 (emphasis added). In other

words, the government maintains that its interest in fulfilling

its treaty obligations is so compelling that it justifies detention

pending every extradition hearing regardless of how

negligible the risk of flight.

The government is correct, of course, that the

enforcement of extradition treaties is an important

governmental interest. If we fail to honor our treaty

obligations, we run the risk that our treaty partners will refuse

to honor their reciprocal obligations to us, which would

indeed be a blow to our ability to track down suspects and

enforce our own criminal laws. The government is also

correct that its inability to fulfill these treaty obligations could

"have wide ranging effects on the government's ability to

assure compliance by foreign governments with their

reciprocal treaty obligations to the United States and to

D-74

convince foreign governments that it is worth their while to

enter into mutual extradition treaties with the United States."

Pet. for Reh’g at 14.

The problem with the government's argument is the

implicit premise that its interest in the enforcement of

extradition treaties is materially different from and greater

than its interest in the enforcement of our own criminal laws.

In the last analysis, the purpose of extradition treaties is to

strengthen our hand in enforcing our own laws through the

cooperation of other countries in apprehending fugitives. Yet

the government implicitly argues that the law enforcement

interest served by extradition treaties is somehow different

from and greater than its interest in enforcing our domestic

laws. The government fails to suggest any difference, and we

can fathom none.

If the government's interest in avoiding all risk of

flight pending an extradition hearing justified detention

without bail, then it stands to reason that the same interest

would also justify pre-trial detention in domestic criminal

cases. Yet if Parretti had been arrested on charges of

violating our own laws against business fraud, and was

neither a flight risk nor a danger to the community, it would

be unthinkable that he could be held without bail pending

trial. It should be equally unthinkable that he may be held

without bail pending an extradition hearing.

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The government cites no authority for the proposition

that its interest in "avoiding any risk that the extraditee may

flee", Pet. for Reh'g at 14, is sufficiently weighty to justify

detention without bail pending an extradition hearing. As far

as we know, the only governmental interest that has ever been

deemed sufficiently weighty to justify pre-trial or pre-hearing

detention without bail absent a finding of flight risk is the

safety of the community. Indeed, the cases cited by the

government only serve to emphasize that public safety is the

only interest that has ever been deemed sufficiently

compelling to justify pre-trial detention without bail in the

absence of a finding of flight risk. In Schall v. Martin, 467

U.S. 253, 81 L. Ed. 2d 207, 104 S. Ct. 2403 (1984), for

instance, the Supreme Court upheld the pretrial detention of

juveniles when there was a "serious risk" that the juvenile

might "commit a crime before his return date." /d. at 263,

268. The Court identified the interest served as "protecting

the community from crime." /d. at 264. In Jones v. United

States, 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043

(1983), the commitment of a mentally ill person following an

insanity acquittal was upheld because the purpose of

commitment " is to treat the individual's mental illness and

protect him and society from his potential dangerousness."

Id. at 368. Similarly, in Carlson v. Landon, 342 U.S. 524; 96

L. Ed. 547, 72 S. Ct. 525 (1952), the detention of

Communists without bail pending deportation proceedings

was upheld because "there is [a] reasonable apprehension of

hurt from aliens charged with a philosophy of violence

against this Government." /d. at 542. Recently, our court

held that the detention of an excluded alien whose country

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would not accept his repatriation did not violate the Fifth

Amendment because the alien was potentially dangerous.

Alvarez-Mendez v. Stock, 941 F.2d 956, 962 (9th Cir. 1991).

Finally, in Salerno, the Supreme Court's review of its

detention jurisprudence demonstrates that the need to protect

the community from danger was the common thread running

through all of the cases permitting the pre-trial detention of

persons who are not found to be flight risks. Salerno, 481

U.S. at 748-49.”

25 All of the cases cited by the Court in Salerno involved the need

to protect the community from danger:

For example, in times of war or insurrection, when

society's interest is at its peak, the Government may detain

individuals whom the Government believes to be

dangerous. See Ludecke v. Watkins, 335 U.S. 160, 92 L.

Ed. 1881, 68 S. Ct. 1429 (1948) (approving unreviewable

executive power to detain enemy aliens in time of war);

Moyer v. Peabody, 212 U.S. 78, 84-85, 53 L. Ed. 410, 29

S. Ct. 235 (1909) (rejecting due process claim of

individual jailed without probable cause by Governor in

time of insurrection). Even outside the exigencies of war,

we have found that sufficiently compelling governmental

interests can justify detention of dangerous persons. Thus,

we have found no absolute constitutional barrier to

detention of potentially dangerous resident aliens pending

deportation proceedings. Carlson v. Landon, 342 U.S.

524. 537-542, 96 L. Ed. 547, 72 S. Ct. 525 (1952); Wong

Wing v. United States, 163 U.S. 228, 41 L. Ed. 140, 16 S.

Ct. 977 (1896). We have also held that the government

may detain mentally unstable individuals who present a

danger to the public, Addington v. Texas, 441 U.S. 418, 60

L. Ed. 2d 323, 99 S. Ct. 1804 (1979), and dangerous

defendants who become incompetent to stand trial,

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In essence, the government asks us to break new

constitutional ground in holding that Parretti's "strong interest

in liberty," Salerno, 481 U.S. at 750, may be "subordinated,"

id., to the government's interest in avoiding the risk of being

unable to carry out its treaty obligations, however attenuated

Jackson v. Indiana, 406 U.S. 715, 731-39, 32L. Ed. 2d

435, 92 S. Ct. 1845 (1972); Greenwood v. United States,

350 U.S. 366,100 L. Ed. 412, 76 S. Ct. 410 (1956). We

have approved of post arrest regulatory detention of

juveniles when they present a continuing danger to the

community. Schall v. Martin, supra. Even competent

adults may face substantial liberty restrictions as a result

of the operation of our criminal justice system. If the

police suspect an individual of a crime, they may arrest

and hold him until a neutral magistrate determines whether

probable cause exists. Gerstein v. Pugh, 420 U.S. 103, 43

L. Ed. 2d 54, 95 S. Ct. 854 (1975). Finally, respondents

concede and the Court of Appeals noted that an arrestee

may be incarcerated until trial if he presents a risk of

flight, see Bell v. Wolfish, 441 U.S. 520 at 534, 60 L. Ed.

2d 447, 99 S. Ct. 1861, or a danger to witnesses.

Salerno, 481 U.S. at 748-49 (emphases added). We note that

although Gerstein v. Pugh allows an individual to be held without

bail without a showing that he is either a flight risk or a danger to

the community, the detention may last only as long as is required

to obtain a hearing before a magistrate, and in no event longer than

48 hours absent extraordinary circumstances. County of Riverside

v. McLaughlin, 500 U.S. 44, 57, 114 L. Ed. 2d 49, 111 S. Ct. 1661

(1991).

D-78

that risk might be.”° On that logic, the government would

never have to prove that an extraditee was a flight risk. All

extraditees could be detained without bail before their

extradition hearings regardless of the magnitude of the risk of

flight. Such a far-reaching exception to the principle that

"liberty is the norm" cannot be justified by the government's

asserted interest in taking no risk that it will be unable to

deliver an extraditee if he is found to be extraditable.

Enforcement of our own laws, which, after all, is the

governmental interest served by extradition treaties, does not

justify re-trial detention absent a finding of flight risk or

dangerousness, and we see no reason, and the government

suggests none, why its interest in fulfilling its treaty

obligations is different from or any more compelling than its

interest in enforcing our own criminal laws. Just as the

government's asserted interest in avoiding all risk that a

defendant will not appear for trial is not sufficient to justify

pre-trial detention, the government's asserted interest in

avoiding all risk that an extraditee will not appear for an

extradition hearing cannot justify pre-hearing detention.

We repeat that the district court was free to decide

anew whether to grant or deny Parretti bail once it found

Parretti extraditable after his hearing. See supra footnote 6.

Our holding is a limited one: until such time as an individual

26. In Parretti's case, no treaty obligation to surrender him had yet

arisen at the time of his "provisional" arrest because France had 40

more days under the Treaty to make up its mind whether to request

his surrender.

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is found to be extraditable, his or her Fifth Amendment liberty

interest trumps the government's treaty interest unless the

government proves to the satisfaction of the district court that

he or she is a flight risk.

We find support for our holding in the cases that apply

the"special circumstances" doctrine. Those cases recognize

that individual interests that are not as weighty as an

individual's "core" liberty interest in being free from bodily

restraint, see Foucha v. Louisiana, 504 U.S. 71, 80, 118 L.

Ed. 2d 437, 112 S. Ct. 1780 (1992) ("Freedom from bodily

restraint has always been at the core of the liberty protected by

the Due Process Clause from arbitrary governmental action."),

may outweigh the government's interest in taking no risk of

being unable to fulfill its treaty obligations. For example, in

Inre Mitchell, 171 F. 289, 290 (S.D.N.Y. 1909) (L. Hand, J.),

an extraditee was released on bail because of the "special

circumstance" that he needed to consult with his attorney in

a civil action upon which his "whole fortune"depended. In

other words, the "special circumstances" doctrine permits

even economic interests to outweigh the government's

asserted interest in taking no risk that it will be unable to

fulfill its treaty obligations.*’ It follows that Parretti's core

One commentator has made the following poignant comment

about the special circumstances doctrine:

So long as the accused poses no threat to the community,

the national interests are fully served if the accused does

not abscond. That the accused presents "special

circumstances" adds nothing to protection of these

D-80

liberty interest also outweighs that interest, absent a finding

of flight risk.

In sum, the government asks us to hold that its interest

in avoiding the risk of being unable to fulfill a treaty

obligation, however slight, justifies detention without bail

pending an extradition hearing. To repeat, "in our society

liberty is the norm, and detention prior to trial or without trial

is the carefully limited exception." Salerno, 481 U.S. at 755.

The exception the Government asks us to make is not

carefully limited, nor is it supported by a sufficiently weighty

governmental interest. Accordingly, Parretti's detention

without bail prior to the extradition hearing denied him due

process of law even though Parretti failed to make a showing

of "special circumstances" to the satisfaction of the district

court.

CONCLUSION

The issuance of the warrant for Parretti's arrest

violated the Fourth Amendment and Parretti's detention

without bail prior to the extradition hearing violated the Due

Process Clause of the Fifth Amendment.

interests. Conversely, if the accused is likely to flee, the

governmental interests are vulnerable, no matter what the

"special circumstances."

Note. A Recommended Approach to Bail in International

Extradition Cases, 86 Mich. L. Rev. 599, 614 (1987).

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The judgment of the district court denying Parretti's

petition for habeas corpus and its order denying bail pending

his extradition hearing are REVERSED.

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, 748,

95 L. Ed. 2d 697, 107 S. Ct. 2095 (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

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and arbitrary a test.' However, I believe 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 cases no longer

obtain. There simply can be no justification for applying any

such rule in current times.

| 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. 739

at 754, 95 L. Ed. 2d 697, 107 S. Ct. 2095 ("[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, the Due Process Clause alone is

sufficient to afford Parretti all the relief he seeks.

anne i a am

———$—$—$—$——————

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 | 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, 47 L. Ed. 948, 23 S. Ct. 781 (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.

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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 (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 preliminary, though accurate, comment

a an mr a arma

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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 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

D-86

of Russell), 805 F.2d 1215, 1216-17 (Sth 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. Moreover, as Judge Norris’s

2 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 States 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 vy. United

States, 878 F.2d 317 (9th Cir. 1989), issued what appears to be a

brief order assuming without any analysis that "there is a

presumption against bail in an extradition case and only ‘special

circumstances’ will justify bail." /d. 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

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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 cases 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 Jn 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).

Requiring incarceration except where the detainee shows the

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), 1997

WL80909 (9th Cir. Feb. 27, 1997), we purported to apply a

presumption against bail in foreign extradition cases derived from

Wright v. Henkel. Without discussing what factors must be 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." /d. at

106 F.3d at 864-65.

D-88

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 ofacriminal act. See Salerno, 481 US.

at 748, 107 S.Ct. at 2102.

Il.

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. 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

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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 cases. 190 U.S.

at 63, 23 S.Ct.

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

extradition only for those actions of corporate officers that were

crimes under the laws of both countries. Jd. 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.

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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."

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

+ In addition to flight risk, bail may be denied on the ground of

danger to the community. See Salerno, 481 U.S. 739, 95 L. Ed. 2d

697, 107 S. Ct. 2095. 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.

D-91

people to become "international criminals" in their own living

rooms, and such individuals will in most cases 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

D-92

extradition.’

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,

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 extraditability); Serge Schmemann, Israel

Withdraws Bid to Extradite a Chief of Hamas, N.Y. Times, Apr. 4,

1997, at Al (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).

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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, 81 L. Ed. 5, 57 S. Ct. 100 (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. II, T.1.A.S. No.7075.

Indeed, some treaties 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.1.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

D-94

when originally offered. Although | 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 tule 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, | disagree that the

government's interests in fulfilling its treaty obligations stems

solely from its interest in domestic law enforcement, i.¢.,

punishing domestic crimes. Cf supra at 49-50. 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

D-95

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

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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 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.

PREGERSON, Circuit Judge, dissenting:

During the course of these extradition proceedings,

Giancarlo Parretti was released from custody on bail and fled

the country. When a criminal defendant becomes a fugitive

from justice, courts have discretion to dismiss the defendant's

appeal because his absence "disentitles the defendant to call

upon the resources of the Court for determination of his

claims." Molinaro v. New Jersey, 396 U.S. 365, 365-66, 24

L. Ed. 2d 586, 90 S. Ct. 498 (1970) (per curiam); see also

Roby v. United States Dep't of the Navy, 76 F.3d 1052, 1055

n.2 (9th Cir. 1996) (noting that the court would have

discretion to dismiss case based on disentitlement theory

where plaintiff took unauthorized leave from the Navy);

United States v. Van Cauwenberghe, 934 F.2d 1048, 1054

(9th Cir. 1991) (noting long history of equitable doctrine of

fugitive disentitlement).

D-97

Dismissal is an appropriate option under the

disentitlement doctrine because dismissal preserves this

court's “interest in efficient, dignified appellate practice."

Ortega-Rodriguez v. United States, 507 U.S. 234, 242, 122 L.

Ed. 2d 581, 113 S. Ct. 1199 (1993). Moreover, Parretti's

flight threatens the effective operation of the appellate

process. Parretti’s counsel may have no desire to represent

Parretti zealously in future proceedings that may result from

the majority's opinion (e.g., petition for rehearing and

suggestion for rehearing enbanc, en banc review, or appeal to

the Supreme Court). In addition, this court no longer has

control over one of the parties - Parretti. See United States v.

Sharpe, 470 U.S. 675, 724, 84 L. Ed. 2d 605, 105 S. Ct. 1568

(1985) (Stevens, J., dissenting) (explaining how the adversary

character of the litigation may be compromised when one of

the litigants is a fugitive) (citing Molinaro, 396 U.S. at 366).

Because Parretti's fugitive status creates the risk that the

adversary process will not effectively function, we should

exercise our discretion and dismiss the present appeal.

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APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GIANCARLO PARRETTI, )

) No. 95-56586

Petitioner-Appellant, )

) ORDER

v. )

) Unpublished

UNITED STATES OF AMERICA, )

)

Respondent-Appellee. )

)

Filed November 21, 1995

Before: PREGERSON, NORRIS and REINHARDT,

Circuit Judges

Giancarlo Parretti is incarcerated pending France’s

determination whether to request an extradition hearing. We

direct that Parretti be released forthwith for two reasons.

The Fourth Amendment requires a finding of probable

cause in an extradition proceeding as in all other proceedings.

The treaty with France incorporates the Fourth Amendment

requirement. Here, the complaint merely states that the May

3, 1995 French arrest warrant alleges certain facts, but there

is absolutely no evidentiary support offered. Instead, the

E-99

government stated at argument that the May 3, 1995 French

warrant shows that the investigating Magistrate Judge who

issued the warrant had evidence to support the charges.

However, the government is unable to state whether the

evidence offered to support the charges in France would

satisfy our evidentiary requirements for a finding of probable

cause. We reject the government’s argument that it need only

demonstrate probable cause that Parretti was charged with a

crime. See Caltagirone v. Grant, 629 F.2d 739, 747 (2 Cir.

1980).

The government contends that Parretti may be

detained even though he is not a flight risk because of the

government’s interest in meeting its treaty obligations.

Parretti argues that it is a deprivation of his substantive liberty

interest under the Fifth Amendment Due Process Clause to be

incarcerated for a substantial period of time even though he is

not a flight risk. He argues that in the absence of a finding

that he is a flight risk, his liberty interest outweighs the

government’s interest in the negligible risk that he will be

unavailable should the French government decide to request

an extradition hearing. We agree that the negligible risk that

the government will not be able to discharge its treaty

obligations does not justify the deprivation of Parretti’s

liberty.

Accordingly, in light of the district court’s finding that

Parretti is not a flight risk, a finding amply supported by the

record, his detention violates the Fifth Amendment, as well as

the Fourth.

E-100

For the above reasons, Parretti is ordered released

forthwith. An opinion may follow.

The panel will retain jurisdiction over all further

proceedings in this matter.

F-101

APPENDIX F

18 United States Code § 3184

§ 3184. Fugitives from foreign country to United States

(prior to 1996 amendments)

Whenever there is a treaty or convention for

extradition between the United States and any foreign

government, any justice or judge of the United States, or any

magistrate authorized so to do by a court of the United States,

or any judge of a court of record of general jurisdiction of any

State, may, upon complaint made under oath, charging any

person found within his jurisdiction, with having committed

within the jurisdiction of any such foreign government any of

the crimes provided for by such treaty or convention, issue his

warrant for the apprehension of the person so charged, that he

may be brought before such justice, judge, or magistrate, to

the end that the evidence of criminality may be heard and

considered. Such complaint may be filed before and such

warrant may be issued by a judge or magistrate of the United

States District Court for the District of Columbia if the

whereabouts within the United States of the person charged

are not known or, if there is reason to believe the person will

shortly enter the United States. If, on such hearing, he deems

the evidence sufficient to sustain the charge under the

provisions of the proper treaty or convention, he shall certify

the same, together with a copy of all the testimony taken

before him, to the Secretary of State, that a warrant may issue

upon the requisition of the proper authorities of such foreign

F-102

government, for the surrender of such person, according to the

stipulations of the treaty or convention; and he 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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.