# Appendix — Parretti v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1354%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 877

## Text

98 196 Ji 29199

OFFICE OF THE 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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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.

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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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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.

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detail the reasons underlying our original order.’
Il
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.

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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).

A
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.

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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

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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).

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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).

© See also Semmelman, supra note 8, at 1214-21 (citing cases).

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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

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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.").

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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.

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B

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).

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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

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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 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

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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

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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.

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D-59
C

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").

D-63

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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D-65

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

5

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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D-69

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.

A
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

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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.

D-72

(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.

B
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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D-75

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

D-76

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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D-77

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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D-79

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).

ee ee

D-81

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

D-82

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.

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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.

D-84

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

D-85

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

D-87

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

D-89

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.

D-90

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.

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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

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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.

E-98

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1354%3A2. Public record. Not legal advice.