1997 WL 33633533 (9th Cir.)

For opinion see 143 F.3d 508, 122 F.3d 758

United States Court of Appeals, Ninth Circuit.

Giancarlo PARRETTI, Petitioner-Appellant,

v.

UNITED STATES OF AMERICA, Respondent-Appellee.

No. 95-56586.

November 24, 1997.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

Appellee's Supplemental Brief

Nora M. Manella, United States Attorney, David C. Scheper, Assistant United States Attorney, Chief, Criminal Division, Miriam A. Krinsky, Assistant United States Attorney, Chief, Criminal Appeals, George S. Cardona, Jean Rosenbluth, Assistant United States Attorneys, Criminal Appeals Section, 1200 United States Courthouse, 312 North Spring Street, Los Angeles, California 90012, Telephone: (213) 894-4409/3152, Attorneys for Respondent-Appellee, United States of America

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... ii

A. PARRETTI'S PROVISIONAL ARREST COMPLIED WITH FOURTH AMENDMENT REQUIREMENTS ... 1

1. For Provisional Arrest, the Fourth Amendment Requires a Showing of Probable Cause to Believe that the Person Sought Is the Person Named in a Duly Issued Foreign Arrest Warrant Charging Extraditable Offenses ... 3

2. There Is No Basis for the Panel's Requirement That a Provisional Arrest Warrant Be Supported by "Affidavits, Deposition Testimony, or Other Competent Evidence" ... 12

B. DUE PROCESS DOES NOT REQUIRE THE REJECTION OF LONGSTANDING SUPREME COURT AND CIRCUIT PRECEDENT AUTHORIZING BAIL PENDING AN EXTRADITION HEARING ONLY UPON A SHOWING OF "SPECIAL CIRCUMSTANCES" ... 16

C. EN BANC REVIEW OF THE MERITS IS APPROPRIATE DESPITE PARRETTI'S FLIGHT ... 22

D. CONCLUSION ... 25

STATEMENT OF RELATED CASES ... 26

CERTIFICATE OF COMPLIANCEMPLIANCE ... 27

*ii TABLE OF AUTHORITIES

CASES:

Beaulieu v. Hartigan, 554 F.2d 1 (1st Cir. 1977) ... 18

Benson v. McMahon, 127 U.S. 457 (1888) ... 7

Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981), cert. denied, 455 U.S. 940 (1982) ... 5

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) ... 7, 11, 12

Degen v. United States, 116 S. Ct. 1777 (1996) ... 23

Fong Yue Ting v. United States, 149 U.S. 698 (1893) ... 7

Gerstein v. Pugh, 420 U.S. 103 (1975) ... passim

Hu Yau-Leung v. Soscia, 649 F.2d 914 (2d Cir.), cert. denied, 454 U.S. 971 (1981) ... 20

In re Mitchell, 171 F. 289 (S.D.N.Y. 1909) ... 20

Illinois v. Gates, 462 U.S. 213 (1983) ... 4, 11, 12

In the Matter of Rovelli, 977 F. Supp. 566, 1997 WL 613074 (D. Conn. 1997) ... 17

Jaben v. United States, 381 U.S. 214 (1965) ... 13

Jiminez v. Aristiquieta, 314 F.2d 649 (5th Cir.), cert. denied, 373 U.S. 914 (1963) ... 19

United States ex rel. McNamara v. Henkel, 46 F.2d 84 (S.D.N.Y. 1912) ... 19

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ... 24

*iii Lo Duca v. United States, 93 F.3d 1100 (2d Cir.), cert. denied, 117 S. Ct. 508 (1996) ... 7

Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir. 1997) ... 7, 22

Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) ... 5

Martin v. Warden, 993 F.2d 824 (11th Cir. 1993) ... 6, 17

Michigan v. Doran, 439 U.S. 282 (1978) ... 14

Murphy v. Hunt, 455 U.S. 478 (1982) ... 24

Oretega-Rodriguez v. United States, 507 U.S. 234 (1993) ... 24

Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir. 1979) ... 5

Salerno v. United States, 878 F.2d 317 (9th Cir. 1989) ... 20, 21

Stacy v. Warden, 854 F.2d 401 (11th Cir. 1988) ... 8

United States v. Cavanaugh, 807 F.2d 787 (9th Cir. 1987) ... 5

United States v. Kin-Hong, 83 F.3d 523 (1st Cir. 1996) ... 18

United States v. Sharpe, 470 U.S. 675 (1985) ... 24

United States v. United States District Court, 407 U.S. 297 (1972) ... 5

United States v. Van Cauwenberghe, 934 F.2d 1048 (9th Cir. 1991) ... 23

United States v. Williams, 611 F.2d 914 (1st Cir. 1979) ... 21

*iv Valencia v. Limbs, 655 F.2d 195 (9th Cir. 1981) ... 6

Waldrop v. Southern Co. Services, 24 F.3d 152 (11th Cir. 1994) ... 4

Ward v. Rutherford, 921 F.2d 286 (D.C. Cir. 1990) ... 7

Wright v. Henkel, 190 U.S. 40 (1903) ... 16, 17, 18, 21

Yordi v. Nolte, 215 U.S. 227 (1909) ... 13

CONSTITUTION, STATUTES, AND RULES

U.S. Const. amend. IV ... passim

18 U.S.C. § 3184 ... passim

Fed. R. Crim. P. 4(b) ... 14

*1 APPELLEE'S SUPPLEMENTAL BRIEF

A. PARRETTI'S PROVISIONAL ARREST COMPLIED WITH FOURTH AMENDMENT REQUIREMENTS

Provisional arrest is the seizure of a fugitive from foreign criminal charges as a preface to the initiation of extradition proceedings. These proceedings are not criminal in nature. Their purpose is neither to establish criminal guilt nor to impose criminal punishment, but rather simply to determine whether the fugitive may be surrendered to the foreign country for prosecution in accordance with its own laws and procedures. Thus, while implicating many of the government's interests in law enforcement, provisional arrest primarily furthers the government's interest in maintaining effective foreign relations through compliance with treaty obligations negotiated by the Executive and endorsed by the Senate.

The panel opinion ignores the different purposes and interests served by provisional arrest to insist that the probable cause showing required must be the same as that for domestic criminal arrest. In so holding, the panel ignores the unique nature of extradition proceedings, devalues the policy judgments of the Executive and the Senate, disregards the deference due the legal and factual determinations of foreign judicial officers, and discounts the practicalities of international communication through diplomatic channels. The result is an unreasonable and unworkable evidentiary requirement that in many cases will render provisional arrest impossible, leaving the United States unable to comply with its treaty obligations and allowing foreign fugitives, like Parretti, to evade apprehension. The consequences are grave, *2 posing risks to the United States' international stature and credibility.

The Fourth Amendment's command that no warrant issue without probable cause does not compel this result. The government does not dispute that the Warrant Clause command applies, nor does it urge the court to craft an exception to the probable cause requirement. Probable cause, however, is simply a degree of certainty, not a degree of certainty of a particular thing. While the degree of certainty required by the Warrant Clause remains constant, the object for which that degree of certainty must be demonstrated varies. Thus, in determining the probable cause showing required, the fundamental question is "Probable cause for what?" The answer to this question, that is, the purpose for which a warrant Is sought, defines the individual and government interests implicated by the warrant and determines the probable cause showing required.

In this case, the "what" is a provisional arrest pursuant to treaty, which serves purposes and implicates interests distinctly different from those of a domestic criminal arrest. In accordance with the ultimate object of the provisional arrest - seizure of the person not for domestic criminal prosecution but for a determination of whether he should be extradited for prosecution on foreign criminal charges - probable cause is demonstrated by a showing that the person whose arrest is sought is the person named in a duly issued foreign arrest warrant charging extraditable offenses.

*3 1. For Provisional Arrest, the Fourth Amendment Requires a Showing of Probable Cause to Believe that the Person Sought Is the Person Named in a Duly Issued Foreign Arrest, Warrant Charging Extraditable Offenses

Parretti was provisionally arrested under 18 U.S.C. § 3184, which authorizes specified judicial officers to issue warrants for provisional arrest "upon complaint made under oath" charging the commission of a foreign offense rendered extraditable by treaty. The relevant extradition treaty is that between the United States and France. Article IV of that Treaty authorizes France to apply for a fugitive's provisional arrest in the United States "on information, even by telegraph, of the existence of a judgment of conviction or of a warrant of arrest." Upon application, the Treaty calls for United States officials to pursue provisional arrest "in conformity to statute."

Read together, the statute and the Treaty authorize provisional arrest only upon a warrant issued by an appropriate judicial officer. The warrant requirement triggers application of the Fourth Amendment's Warrant Clause and its command that "[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation...." U.S. Const, amend. IV. [FN1]

FN1. The absence from both the Treaty and the statute of any express probable cause requirement does not support the panel's conclusion, 122 F.3d at 773, that the Treaty and statute must be read together as authorizing the issuance of a warrant without a showing of probable cause. Unless impossible, statutes and treaties must be read in a manner that renders them consistent with the Constitution. Neither § 3184 nor the Treaty precludes a probable cause showing as a condition to issuance of the required warrant. Accordingly, whatever the showing of probable cause required by the Fourth Amendment, that requirement can be applied to warrants issued under § 3184 and the Treaty without posing a conflict with either the statutory or Treaty language. See, e.g., Waldrop v. Southern Co. Serys., 24 F.3d 152, 155 (11th Cir. 1994) (if statute is

silent on whether it accords a right to jury trial, a court must look to the Seventh Amendment for the answer). At a minimum, therefore, the panel erred in holding that both the Treaty and § 3184 are unconstitutional simply because they do not contain an express probable cause requirement.

*4 The Warrant Clause does not itself define the substantive showing of probable cause required in different contexts; to the contrary, as the Court's cases have made clear, defining the probable cause showing required depends on the purpose for which the warrant is sought. Thus, for example, probable cause for a domestic criminal arrest, that is, the seizure of a person to initiate domestic criminal proceedings, requires "facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.' " Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Probable cause for a search, on the other hand, requires a different showing - "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates. 462 U.S. 213, 238 (1983).

In the case of a domestic criminal arrest, the required showing "represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime" and offers "a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests." Gerstein, 420 U.S. at 112 (quoting Brinegar v. United States. 338 U.S. 160, 176, 179 (1949)). The *5 probable cause showing required thus results from a balancing of interests that reflects the purpose for which the warrant is sought. See United States v. United States District Court, 407 U.S. 297, 323 (1972) ( "warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection"). Where the purpose of the warrant is something other than a domestic criminal arrest, the balancing of interests and the resulting showing required are correspondingly different. Thus, for example, administrative searches subject to the Warrant Clause need not be supported by a showing of" [p]robable cause in the criminal law sense." Marshall v. Bar1ow's, Inc., 436 U.S. 307, 320 (1978); see also Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1287 (9th Cir. 1979) (rejecting arguments that "Fourth Amendment makes no distinction between the probable cause standard in the criminal sense and the standard for administrative searches"). In other contexts as well, courts have recognized that the showing required for searches and seizures subject to the Warrant Clause is "not necessarily analogous to the standard of probable cause applicable to criminal investigations." United States v. Cavanaugh, 807 F.2d 787, 790-91 (9th Cir. 1987) (FISA foreign intelligence surveillance); see also Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1222-25 (D.C. Cir. 1981), cert. denied, 455 U.S. 940 (1982) (INS warrant to search for and seize deportable aliens).

*6 The purpose of the warrant in this case was the provisional arrest, pursuant to treaty, of a fugitive from foreign criminal charges. The Court has never had occasion to perform the balancing of interests defining the showing of probable cause required to support a provisional arrest. The showing of probable cause required for such an arrest requires a focus on its ultimate object - the seizure of the fugitive not for domestic criminal prosecution but solely for a determination of whether he should be extradited pursuant to treaty for prosecution under a preexisting foreign arrest warrant. Consideration of this object, the individual and government interests it implicates, and the practicalities involved in provisional arrest support the probable cause analysis urged by the government - an analysis requiring not a showing that the potential extraditee is likely to have committed the charged foreign crime (the equivalent of the showing required by the Constitution for a criminal arrest for a domestic crime and by the statute for the ultimate finding of extraditability) but rather a showing that the potential extraditee is the person named in a duly issued foreign warrant that itself charges an extraditable offense.

Extradition proceedings pursuant to treaty are not criminal in nature. See Martin v. Warden, 993 F.2d 824, 828 (11th Cir. 1993); Valencia v. Limbs. 655 F.2d 195, 198 (9th Cir. 1981). The ultimate purpose of an extradition proceeding is not a finding of guilt beyond a reasonable doubt, but rather a determination whether "a case is made out which will justify the holding of the *7 accused and his surrender to the demanding nation." Ward v. Rutherford, 921 F.2d 286, 287-88 (D.C. Cir. 1990); see also Benson v. McMahon, 127 U.S. 457, 463 (1888) (extradition proceeding "is not... in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him...."). The different purpose served by extradition proceedings suggests the common-sense inference that the probable cause showing required to support a provisional arrest, the first step in such a proceeding, need not be the same as the probable cause showing required to support a domestic criminal arrest.

Further support for this inference is found in the different sources of the roles played by judicial officers in provisional, as opposed to domestic criminal, arrests. For domestic criminal arrests "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." Gerstein, 420 U.S. at 114; see also County of Riverside v. McLaughlin, 500 U.S. 44, 52-57 (1991). A judicial role in extradition proceedings, however, is not constitutionally mandated; in the absence of the statute, "the Executive Branch would retain plenary authority to extradite." Lo Duca v. United States, 93 F.3d 1100, 1103 n.2 (2d Cir.), cert. denied, 117 S. Ct. 508 (1996) (citing Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893)); see also Lopez-Smith v. Hood. 121 F.3d 1322, 1325 (9th Cir. 1997) ("Extradition is a matter of foreign policy entirely within the discretion of the executive branch, except to the extent that the statute interposes a judicial function."). *8 The absence of any constitutionally compelled judicial role in provisional arrests is reflective of the different balance of interests implicated in provisional, as opposed to domestic criminal, arrests. That different balance of interests also requires a different probable cause showing.

The differing balance of interests is the result of two factors. First, a provisional arrest works an intrusion on an already encumbered liberty interest. The fugitive's liberty interest has been circumscribed by the foreign jurisdiction's issuance of a warrant authorizing his seizure and detention under its own laws. See, e.g., Stacy v. Warden, 854 F.2d 401, 403 (11th Cir. 1988) (existence of outstanding detainer warrant is sufficient curtailment of liberty to render person named "in custody" for purposes of habeas jurisdiction). The doctrine of judicial non-inquiry requires that the United States judicial officer accept the lawfulness of this limitation on the potential extraditee's liberty interest and acknowledge that, were he in the requesting country's jurisdiction, the extraditee would be validly subject to arrest and detention. [FN2] A provisional arrest in this country implements only a minimal extension of this preexisting *9 intrusion on the potential extraditee's liberty interest - in essence, it does nothing more than effect a partial waiver of sovereignty that allows the preexisting intrusion to extend within the United States' borders.

FN2. Contrary to the suggestion by both the panel, 122 F.3d at 764-67, and Parretti, Response at 8-9, the government has never taken the position that the rule of judicial non-inquiry precludes an independent judicial determination of probable cause. The issue remains, however, what the object of that probable cause must be. In analyzing this question, the doctrine of judicial non-inquiry supports the proposition that the appropriate probable cause showing does not require inquiry into the facts underlying a validly issued foreign warrant.

Moreover, there is no valid concern that requests for provisional arrest result from rash decisions by overzealous law enforcement officers or prosecutors in another country. Before a request for a provisional arrest warrant reaches a United States judicial officer, duly authorized foreign officials must have issued their own arrest warrant, a request for provisional arrest must have been forwarded by the foreign government to the United States in accordance with treaty procedures approved by both the Executive and the Senate, and that request must have been reviewed by representatives of both the State Department and the Department of Justice. This is hardly the situation where an arrest may be sought solely by an "officer engaged in the often competitive enterprise of ferreting out crime." Gerstein, 420 U.S. at 113 (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)).

Second, the countervailing government interests are correspondingly greater. As the panel opinion recognizes, provisional arrests serve many of the same interests as domestic criminal arrests, for example, the government's interests in ensuring compliance with its own laws and in protecting its citizenry from criminals and their criminal acts. See 122 F.3d at 779. But these are not the only interests served by provisional arrests. Speedy, smooth compliance with extradition treaties *10 promotes general good will with foreign nations that may extend into other areas of foreign policy; conversely, our failure to honor or act upon treaty obligations may render a foreign country implacable in another area of our international relations with it. Thus, the government's interest in honoring its treaty obligations is not merely commensurate with its interest in enforcing its own laws - it encompasses that interest and extends beyond it. See 122 F.3d at 786 (Reinhardt, J., concurring) (ability to fulfill treaty obligations is "important to the nation's overall ability to work effectively in the international arena").

Identifying the different interests at stake supports adoption of the probable cause showing urged by the government. Requiring the judicial officer to find probable cause to believe that there is a valid foreign arrest warrant for the person to be seized ensures that the individual being provisionally arrested is already the subject of a preexisting limitation on his liberty interest. Requiring the judicial officer to find probable cause to believe that the crime charged is an extraditable offense under the relevant treaty ensures that the government interests discussed above are served by the partial waiver of sovereignty that allows an arrest premised on the foreign warrant to occur within United States boundaries. Just as the probable cause showing required for domestic criminal arrests serves to balance the countervailing individual and government interests implicated by such arrests, so the probable cause showing urged by the government for provisional arrests serves to balance the different *11 individual, governmental, and international interests implicated by those arrests.

That the probable cause showing urged by the government is appropriate is also demonstrated by the practicalities inherent in provisional arrest proceedings. In a world of rapid international travel, fugitives may be present in the United States for only a short time. Existing foreign warrants may not on their face make the probable cause showing required for a United States arrest on a domestic crime, particularly if the foreign country's standards for arrest, even if more stringent, are different. To demand the showing of probable cause required for domestic criminal arrests will in many cases make provisional arrest a practical impossibility, not because of any lack of evidence, but simply because there is insufficient time for the foreign officials to gather, translate, and forward through the required diplomatic channels the information required to satisfy that standard. The Fourth Amendment's probable cause requirement was never intended to pose such unyielding technical hurdles to either searches or arrests, see Gerstein, 420 U.S. at 121 (arrest); Gates, 462 U.S. at 231 (search), or to impede this country's ability to meet its treaty obligations. To the contrary, built into the Fourth Amendment is the "flexibility" necessary to deal with "delays caused by paperwork and logistical problems." McLaughLin, 500 U.S. at 55. [FN3]

FN3. Parretti argues that McLaughlin establishes an unchanging "normative and jurisprudential imperative: unless someone is probably guilty of committing a crime, his or her detention is unreasonable and violates the Fourth Amendment." Response at 6. McLaughlin, however, simply expands on Gerstein's holding that a prompt finding of probable cause must be made by a judicial officer following a warrantless arrest, setting an outside limit on what constitutes a "prompt" finding. 500 U.S. at 52-56. In so holding, McLaughlin neither addresses the balancing of interests underlying the required showing of probable cause for domestic criminal arrests nor precludes use of a different showing in the wholly different context of provisional arrests preliminary to extradition proceedings.

*12 Given the Fourth Amendment's recognition of the need for flexibility, and the distinctly different purpose, interests, and practicalities involved, this court should require for provisional arrests a probable cause showing hinged to the foreign warrant that provides the basis for that arrest, and leave for the extradition hearing itself the showing required for surrender under both the Treaty and statute, namely, the probable cause showing required for domestic criminal arrests. Such a position does not encroach on Fourth Amendment protections - it simply recognizes that the object of a provisional arrest is different from that of a domestic criminal arrest, and that the probable cause showings required are correspondingly different.

2. There Is Mo Basis for the Panel's Requirement That a Provisional Arrest Warrant Be Supported by "Affidavits, Deposition Testimony, or Other Competent Evidence"

In Gates, the Court recognized that "probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules" and reaffirmed its adherence to a "practical, nontechnical conception" of probable cause. *13462 U.S. at 231; see also Gerstein, 420 U.S. at 111-12; Jaben v. United States, 381 U.S. 214, 224-25 (1965) (probable cause for complaint shown where "enough information [is] presented to the [magistrate] to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process").

The panel opinion significantly errs in departing from the Court's "flexible" and "nontechnical" probable cause standard to require that hearsay allegations in a complaint for provisional arrest be supported by "affidavits, deposition testimony, or other competent evidence." 122 F.3d at 774-75. This novel requirement is at odds with the Court's cases addressing provisional arrests:

The complaint may, in some instances, be upon information and belief. The exigencies may be such that the criminal may escape punishment unless he is promptly apprehended by the representatives of the country whose law he has violated. From the very nature of the case it may often happen that such representative can have no personal knowledge of the crime. If the offense be one of the treaty crimes, and if it be stated clearly and explicitly, so that the accused knows exactly what the charge is, the complaint is sufficient to authorize the commissioner to act.

Yordi v. Nolte, 215 U.S. 227, 230-31 (1909) (citation omitted). [FN4] It is also wholly inconsistent with the Court's repeated recognition that probable cause can be established by hearsay. For example, the Court has stated that a finding of probable cause for domestic criminal arrest can be based on "informal modes of *14 proof" including "hearsay and written testimony." Gerstein, 420 U.S. at 120-21. ("use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself"); see also Fed. R. Crim. P. 4 (b) ("finding of probable cause may be based upon hearsay evidence in whole or in part").

FN4. As discussed in the Petition, the panel's attempt to distinguish Yordi improperly confuses the showing made to the magistrate at the time of the initial complaint with the evidence presented to the magistrate at the hearing to support a final finding of extraditability. (Petition at 16 & n.7).

The panel's novel approach is flawed for other reasons as well. First, it makes no provision for a charging document issued by the foreign authority based on its own finding of probable cause or its rough equivalent. Where the foreign warrant itself indicates that it issued on a finding by a judicial officer based on an evidentiary showing roughly equivalent to the probable cause showing required for domestic criminal arrest, or where it is otherwise established that the foreign country's criminal justice system authorizes the issuance of warrants only upon such a finding, then the doctrine of judicial non-inquiry would apply to bar any requirement that further evidence, including hearsay allegations, be produced to establish the underlying facts. Cf. Michigan v. Doran, 439 U.S. 282, 286-90 (1978) (in interstate extradition, asylum state required to give full faith and credit to demanding state's determination that warrant is supported by probable cause).

Second, the panel's requirement that the government produce additional "competent evidence" gives no credence to statements of fact made by a foreign judicial officer on the basis of his own extensive investigation. Regardless of any failure to comply with *15 United States attribution requirements, a foreign judicial officer's factual findings can and should be given greater weight than the panel suggests. [FN5] The only documents likely to provide the "competent evidence" required by the panel for provisional arrest are the very documents that ultimately support the finding of extraditability - in this case, documents and interview reports that totaled almost 2,000 pages, the majority of which had to be translated from French into English. There simply is no basis for requiring as support for the issuance of a warrant for provisional arrest the same more formal evidence required at the later extradition hearing, Cf. Gerstein, 420 U.S. at 120-22 (contrasting "informal modes of proof" allowed to support initial finding of probable cause with "full panoply of adversary safeguards - counsel, confrontation, cross-examination, and compulsory process for witnesses" appropriate to some subsequent preliminary hearings).

FN5. In this case, the complaint filed by the government identified the source of its factual allegations as an arrest warrant issued on May 3, 1995, by a French judicial officer, Patrick Fievet, an examining magistrate attached to the High Civil Court of Paris. (Complaint ¶¶ 3, 5). The complaint set out in detail the facts ascertained by Magistrate Fievet as a result of his investigation. It also provided a basis on which the issuing magistrate could determine how they had been ascertained, for example, through interviews of witnesses who, while not identified by name, were clearly identified by position - e.g., two shareholders of a named French company and an expert in the valuation of corporate shares. (Complaint ¶¶ 5(g)(1), (h)(1)). The underlying French warrant described in even greater detail both the facts determined by the French magistrate and the basis upon which he had determined them, including more specific identification of many of the persons interviewed and documents reviewed. Copies of the complaint and the underlying French warrant are attached as appendices A and B.

*16 In short, there is no basis for the panel's requirement that affidavits, depositions, or other "competent evidence" support the issuance of a provisional arrest warrant. Even were this court to fashion a rule requiring a showing of probable cause similar to that required for domestic criminal arrest, the evidentiary requirements imposed by the panel are unprecedented and unreasonable.

B. DUE PROCESS DOES NOT REQUIRE THE REJECTION OF LONGSTANDING VSUPREME COURT AND CIRCUIT PRECEDENT AUTHORIZING BAIL PENDING AN EXTRADITION HEARING ONLY UPON A SHOWING OF "SPECIAL CIRCUMSTANCES"

As set forth in the Petition, pp. 6-7, nearly a century ago the Supreme Court established a presumption against bail in extradition cases, which can only be overcome by a defendant's showing of "special circumstances." Wright v. Henkel, 190 U.S. 40, 63 (1903). The presumption is premised on the United States' compelling interest in fulfilling its foreign treaty obligations as well as on the common-sense notion that a defendant who has already failed to surrender to foreign charges pending against him necessarily poses at least some risk of flight. [FN6]

FN6. In his concurring opinion, Judge Reinhardt postulated that the Supreme Court's opinion in Wright has routinely been misread and that the Court never intended to, nor did it, create any sort of "special circumstances" test. 122 F.3d at 782. To the contrary, the Supreme Court

unequivocally expressed its view that there is a presumption against bail in extradition cases, and that prior to a finding of extraditability this presumption may be overcome only upon a showing of a special circumstance. 190-U.S. at 61-63. As Judge Reinhardt argued, this language can be read as dicta because the Court noted that it was not necessary to decide the issue in the case before it. Id. at 63. Nonetheless, the Court clearly stated its view that the "special circumstances" test should be the law. Indeed, the Court reviewed the petitioner's bail application and upheld his detention, implicity finding no "special circumstance."

*17 In accordance with Wright, this and every other circuit have applied a presumption against bail and required a showing of "special circumstances" before an individual can secure release, even if the extraditee poses little demonstrable risk of flight. See Petition at 7 (citing cases). This precedent is binding and precludes adoption of a standard for bail that essentially does away with the "special circumstances" requirement in all extradition cases. See Martin, 993 F.2d at 827 & n.4 (bail pending extradition cannot turn solely on risk of flight because court is "bound by Supreme Court and Eleventh Circuit precedent" to apply "special circumstances" standard); In the Matter of Rovelli, _ F. Supp. _, 1997 WL 613074 (D. Conn. 1997) (rejecting Parretti and concluding that Wright bound court to apply special circumstances test).

Parretti and the panel discount the significance of Wright, claiming that the Court never considered a due process challenge to the presumption against bail. To the contrary, as noted in the Petition, the petitioner in Wright alleged that "the denial of the right to give bail... constitutes a deprivation of liberty without due process of law." 190 U.S. at 43 (statement of Chief Justice Fuller). Wright's claim that his detention without bail violated due process was made in the habeas petition presented "to the Circuit Court of the United States for the Southern District of New York." 190 U.S. at 40, 43. The Supreme Court reviewed the *18 case directly from that court, including that court's rejection of the due process claim. See id. at 43. The Court's express mention of the due process claim and its rejection of the habeas petition raising that claim leave no room for speculation that the Court never considered the claim.

Other courts have relied on Wright to reject due process challenges to the special circumstances test. See United States v. Kin-Hong, 83 F.3d 523 (1st Cir. 1996) (reversing bail ordered by the district court, which had applied the special circumstances test "balanced with an individual's right to due process," 926 F. Supp. 1180, 1186 (D. Mass. 1996)); Beaulieu v. Hartigan, 554 F.2d 1, 2 (1st Cir. 1977) (reversing grant of bail by the district court, which had found bail "consistent with the due process rights of an American citizen," 430 F. Supp. 915, 920 (D. Mass. 1977) (app. C).

Thus, Wright and its progeny compel rejection of Parretti's due process challenge to the special circumstances standard. The panel's rejection of and refusal to abide by this longstanding precedent was improper.

The panel's holding that application of the "special circumstances" standard violates a potential extraditee's "Fifth Amendment liberty interest" is also at odds with Supreme Court decisions in a variety of other contexts authorizing detentions rationally related to valid government interests - such as the government interest here in ensuring that it can fulfill its treaty obligations. See Petition at 8-10. This interest is not, *19 as the panel reasoned and as Parretti argues, simply parallel to the government's interest in enforcing its own laws. While the government's interest in ensuring that its own laws will be enforced is one of the motivating factors behind our compliance with treaty obligations, it is not the only one. The government's ability to comply with its treaty obligations also affects its overall ability to work effectively in the international arena. See also Jiminez v. Aristiquieta, 314 F.2d 649, 653 (5th Cir.) ("No amount of money could answer the damage that would be sustained by the United States were the appellant to be released on bond, flee the jurisdiction, and be unavailable for surrender, if so determined."), cert. denied, 373 U.S. 914 (1963); United States ex rel. McNamara v. Henkel, 46 F.2d 84 (S.D.N.Y. 1912) (presentation of forfeited bail to a foreign nation "is ridiculous, if not insulting").

To promote and protect the broad and weighty interests advanced by the government's compliance with its extradition treaty obligations, it is necessary to ensure that all potential extraditees remain available for surrender upon a showing of extraditability by detaining them unless they can demonstrate a "special circumstance," even if they appear to pose only a negligible risk of flight or danger to the community. For, in fact, virtually all fugitives pose some risk of flight, given that they have failed to surrender to face charges pending against them in another country. No case illustrates that better than this one, where, despite the district court's factual finding that *20 Parretti was not a flight risk, a finding the panel concluded was' not clearly erroneous, Parretti in fact fled the country during the pendency of this appeal. [FN7]

FN7. The district court found that Parretti was not a flight risk sufficient to justify detention "in traditional bail terms." This obviously did not mean that Parretti posed no risk of flight. In fact, as even the panel acknowledged, there remained a "negligible risk" that Parretti would flee. In the absence of special circumstances, detention is appropriate to negate even this negligible risk and the substantial consequences for international relations should the fugitive flee.

Moreover, given the foreign origin of the charges pending against a potential extraditee, the government may not have access to all information bearing on flight risk and danger to the community. For this reason, too, it makes sense to apply a presumption against bail and place the burden on an extraditee to show "special circumstances" warranting bail.

As applied by the courts, the "special circumstances" standard has evolved to authorize release on bail in precisely those situations where the extraditee is able to show that circumstances unique to his case tip the balance of interests to transform what would otherwise be a valid detention into a punitive measure. [FN8] Where, as in this case, there has been no *21 showing of any "special circumstance" warranting the conclusion that detention pending international extradition would be impermissibly punitive, there is no basis for concluding that the detention works a violation of the extraditee's substantive due process rights, even where the risk of flight is thought to be negligible. [FN9]

FN8. See, e.g., Salerno v. United States. 878 F.2d 317, 317 (9th Cir. 1989) ("[ejxamples of such circumstances include the raising of substantial claims upon which the appellant has a high probability of success, a serious deterioration of health while incarcerated, and unusual delay in the appeal process"); Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d

Cir.), cert.denied, 454 U.S. 971 (1981) (lack of suitable detention facility for juvenile); In re Mitchell, 171 F. 289 (S.D.N.Y. 1909) (L. Hand, J.) (need to pursue concurrent civil litigation on which "whole fortune" depended). Judge Reinhardt, in his concurrence, raises the specter of a defendant being detained endlessly pursuant to a provisional arrest before being afforded an extradition hearing. 122 F.3d at 785 n.5. However, as this court recognized in Salerno, "unusual delay" can itself amount to a "special circumstance." 878 F.2d at 317.

FN9. Parretti embraces and endorses, Response at 11, the panel's holding that an extraditee's "Fifth amendment liberty interest trumps the government's treaty interest unless the government proves that he or she is a flight risk." 122 F.3d at 780. To the extent that the panel and Parretti make no allowance for detention of someone who has been found to be a danger to the community but not a flight risk, this view cannot be sustained.

There is yet another reason why the panel's holding concerning pre-extradition-hearing detention must be wrong. In Wright. the Supreme Court made clear that whatever the standard for determining whether bail is warranted, it should be generally the same both before and after a fugitive has been found to be extraditable. 190 U.S. at 62 (explaining the policy behind detaining those who are found extraditable and adding that "the same reasons... would seem generally applicable to release pending examination."); see also United States v. Williams, 611 F.2d 914, 914 (1st Cir. 1979) (noting that nothing about pre-extradition hearing confinement distinguishes it from "posthearing bail applications," citing Wright). The plain language of § 3184mandates that after a fugitive has been found to be extraditable, *22 a judge "shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made." The panel nowhere discussed this language in § 3184or its implications. The only position consistent with both the Supreme Court's dictate that the same general bail standard should apply both before and after a finding of extraditability and the language of § 3184is the longstanding, essentially universally accepted view that there is a presumption against bail unless a fugitive can demonstrate a special circumstance. See Lopez-Smith, 121 F.3d at 1326 (noting in post-Parretti case that after finding of extraditability, magistrate has no discretion not to commit accused).

In sum, conditioning release on a showing by the extraditee of "special circumstances," the standard applied by this and every other court for nearly a century, does not result in a substantive due process violation. The panel's holding to the contrary disregards binding Supreme Court and Ninth Circuit precedent, creates an unnecessary circuit split, and threatens the Executive's ability to negotiate and comply with mutual treaty agreements with foreign governments.

C. EN BANC REVIEW OF THE MERITS IS APPROPRIATE DESPITE PARRETTI'S FLIGHT

In December 1996, after the panel had issued an unpublished order ruling in his favor, Parretti fled the country. He remains a fugitive. In his dissent to the panel's opinion, Judge Pregerson argued that the appeal should have been dismissed after *23 Parretti fled because "his absence "disentitles the defendant to call upon the resources of the Court for determination of his claims.1" 122 F.3d at 787 (citation omitted).

The fugitive disentitlement doctrine, allowing a court to dismiss an appeal if a party has become a fugitive during its pendency, is discretionary, not jurisdictional. See, e.g., United States v. Van Cauwenberghe, 934 F.2d 1048, 1054-55 (9th Cir. 1991). In Degen v. United States, 116 S. Ct. 1777, 1780- 81 (1996), the Court identified four factors to consider in determining whether to apply the doctrine: (1) the difficulty of enforcing a judgment if the fugitive cannot be found; (2) the unfairness of allowing a party access to the courts while evading their jurisdiction; (3) the need to discourage escape and encourage voluntary surrender; and (4) the desire to promote the "'efficient, dignified operation "of the courts." Id. at 1781 (citation omitted).

The panel issued its unpublished order ruling in Parretti's favor before he fled. The panel's opinion a year and a half later merely explained the rationale underlying its ruling. In this unusual posture, none of the four Degen factors favor application of the fugitive disentitlement doctrine. First, there is no concern with the difficulty of enforcing a judgment. Should the en bane court uphold the panel's opinion, there will be no judgment to enforce against Parretti. Should the court reject any or all of the panel's holdings and adopt the government's arguments, there will remain no issue of enforceability because *24 the intervening finding of extraditability has rendered the provisional arrest issues moot as to Parretti. [FN10] Nor is there any issue of unfair access to the courts - Parretti fled after the court had announced its ruling in his favor, and now it is the government, not Parretti, that seeks further review. For these same reasons, there is no deterrence value to be served by dismissing the appeal, and the dignity of the court was not offended by Parretti's flight. Cf. Oretega-Rodriguez v. United States, 507 U.S. 234, 244-46 (1993) (declining to apply doctrine, in part because dignity of court was not offended given that no appeal was pending during defendant's absence).

FN10. Although the provisional arrest issues are now moot, review is not foreclosed for two reasons. First, at the time of the original panel order, the issues were not moot. Second, even now, the issues presented are capable of repetition yet evading review. See, Lewis v. Continental Bank Corp. 494 U.S. 472, 480 (1990); Murphy v. Hunt, 455 U.S. 478, 482-83 (1982). Provisional arrests are typically too short in duration to be fully litigated prior to their cessation or expiration, and there is a reasonable expectation that the complaining party, the United States, will be subjected to the same action again.

This case is analogous to United States v. Sharpe, 470 U.S. 675 (1985). The respondents in Sharpe fled after the Court granted certiorari to review a judgment reversing their convictions. The Court nonetheless heard the case and ruled for the government on the merits. The Court declined Justice Stevens's invitation, in dissent, to rule for the government by applying the fugitive disentitlement doctrine to vacate the judgment and remand for dismissal of the appeals. Id. at 681 n.2 (doctrine "is wholly irrelevant when the defendant has had his *25 conviction nullified and the government seeks review here"). Here, as in Sharpe, it is the government that seeks review; that review cannot be foreclosed by Parretti's decision to flee.

D. CONCLUSION

For all the reasons set forth above, as well as those in the Petition, the district court's denial of Parretti's petition for writ of habeas corpus and application for release on bail should be affirmed.

*26 STATEMENT OP RELATED CASES

To the best of the government's knowledge, there are no related cases within the meaning of Ninth Circuit Rule 28-2.6.

Giancarlo PARRETTI, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.