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In the Matter of the

September 7, 2012

IN THE MATTER OF THE EXTRADITION OF DYLAN RYAN JOHNSON


The opinion of the court was delivered by: Maureen P. Kelly, United States Magistrate Judge

OPINION AND ORDER

Dylan Ryan Johnson has filed a Response to Government's Motion to Detain and Mr. Johnson's Motion for Release on Bail ("Motion for Release on Bail") [ECF No. 27], seeking his release from custody, pending a final determination of a Formal Request for Extradition submitted by the government of Mexico. Mexico seeks Johnson's extradition pursuant to an arrest warrant issued on December 8, 2003, by the Judge of First Instance for Civil and Criminal Matters of the Judicial District of Comonfort, Guanajuato, for the rape and murder of a 16 year old boy. [ECF Nos. 1, 16]. Johnson argues that continued detention is not warranted because he is not a "flight risk," and is unnecessary, as demonstrated by Mexico's delay in seeking his extradition. Johnson also contends bail is available in Pennsylvania for his crimes, and therefore, bail should be granted. [ECF No. 34]. Johnson seeks an Order releasing him from detention pending a final determination of the extradition request and the anticipated filing of petitions for habeas corpus.

The United States opposes revocation of the detention order as inappropriate given the presumption against release in an extradition case and the absence of the requisite "special circumstances" to justify Johnson's release.

A hearing was conducted on August 3, 2012, relative to the Motion for Release on Bail. After consideration of the arguments presented by both parties, as well as the memoranda filed in support and in opposition to Johnson's motion, the Motion for Release on Bail is DENIED.

I. DISCUSSION

A."Special circumstances" must exist to permit bail in extradition matters.

The presumption against bail in extradition matters was recognized nearly a century ago by the United States Supreme Court in Wright v. Henkel, 190 U.S. 40, 62-63 (1903), and arises from the strong governmental need to ensure that the United States fulfills its international treaty obligations to surrender fugitives to its treaty partners once they are found to be extraditable. Id. at 62. Nearly a century ago, Judge Learned Hand observed held that bail should be granted "only in the most pressing circumstances and when the requirements of justice are absolutely preemptory." In re Mitchell, 171 F. 289 (S.D.N.Y. 1909). This historical presumption against bail remains the rule today. See, e.g., Matter of Extradition of Russell, 805 F.2d 1215, 1216 (5th Cir. 1986); Ha Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir.), cert. denied, 454 U.S. 971 (1981); United States v. Williams, 611 F.2d 914, 915 (1st Cir.1979).

Johnson argues that the grant of bail during the pendency of an extradition matter is a matter of right pursuant to the liberty interest guaranteed to him under the Fifth Amendment of the United States Constitution. Citing Zadvydas v. Davis, 533 U.S. 678, 690 (2001), Johnson posits that his continued detention therefore requires "a sufficiently strong" "special justification [that] outweighs" his "constitutionally protected interest in avoiding physical restraint." [ECF No. 27, pp. 3-6]. In addition, Johnson contends that "special circumstances" such as severe illness or extreme youth are not required for the grant of bail in extradition matters, and that in the absence of evidence of risk of flight, he should be released pending a final determination of extradition by the Secretary of State.

In support of his position, Johnson cites Beaulieu v. Hartigan, 430 F. Supp. 915 (D. Mass. 1977), a decision which was later vacated by the United States Court of Appeals for the First Circuit. As the Court of Appeals for the First Circuit determined, "[u]nlike the situation for domestic crimes, there is no presumption favoring bail [in extradition matters]. The reverse is rather the case." Beaulieu v. Hartigan, 554 F.2d 1, 2 (1st Cir.1977). On remand, the Court of Appeals ordered the district court to apply a "special circumstances" analysis to justify the grant of bail.

Johnson's status as a citizen of the United States does not alter this result in light of the paramount interest of the United States in delivering an accused to a treaty partner seeking extradition. See, Wright v. Henkel, at 40, 43; In re Extradition of Garcia, 615 F. Supp.2d 162, 168-169 (S.D.N.Y. 2009). In Garcia, the district court considered the fugitive's argument that as a citizen, he was entitled to bail under the Eighth Amendment of the United States Constitution. Noting that "[i]f this were a federal criminal case, the Court likely would have set bail conditions during the initial presentment that Garcia could have met," the court required Garcia, notwithstanding his United States' citizenship, to show "special circumstances" justifying the "risk of national political embarrassment that might result if he were released on bail and thereafter absconded." Id.

Because this is not a domestic case, the Eighth Amendment is not the only relevant authority. Rather, under the Supremacy Clause of the United States Constitution, the Court also must consider the Treaty. See U.S. Const. art. IV, cl. 2 ("This Constitution ... and all Treaties made ... under the Authority of the United States, shall be the supreme Law of the Land"); Mora v. New York, 524 F.3d 183, 192-93 (2d Cir. 2008) (Supremacy Clause places treaty provisions "in the same category as other law of [C]ongress"). It follows that the Eighth Amendment's admonition concerning the need to set reasonable bail in criminal cases cannot trump the Treaty. The Court therefore has the obligation to grant bail only when special circumstances exist-even where, as here, the relator is a United States citizen.

In re Extradition of Garcia, 615 F. Supp. 2d 162, 168-69 (S.D.N.Y. 2009).

Johnson also cites Zadvydas v. Davis, 533 U.S. 678, 690 (2001), in support of his contention that he is entitled to be released on bail during the pendency of judicial consideration of the Formal Request for Extradition, absent proof by the United States of "special circumstances" requiring detention. However, given the criminal nature of the underlying proceeding and the procedural protections afforded Johnson, reliance upon Zadvydas is not appropriate.

Zadvydas raised the constitutional ramifications of indefinite and potentially permanent civil detention where petitioners have been ordered deportable, but no country was willing to accept them. The United States Supreme Court found that potentially permanent civil confinement, without a process to determine the likelihood of repatriation ...


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