United States Of America, No. 9:2018mc81148 - Document 50 (S.D. Fla. 2018)
Court Description: ORDER DENYING BOND IN EXTRADITION PROCEEDING. Signed by Magistrate Judge William Matthewman on 10/10/2018. See attached document for full details. (kza)
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United States Of America Doc. 50 U N ITED STA TES D ISTRICT C OU RT SO U THERN D ISTRICT OF FLOR IDA CA SE N O.18-m c-81148-1+ A FILED by -C. 22T 12 2212 IN TH E M ATTER O F THE EXTM D ITION O F OW EN A LTH ELBERT H EAD LEY . STEVEN M LARIMORE cucRxtlb nt s' ccT. s.D.OFFu.-w.Re. / O R DER D ENY ING B O N D IN EXTR ADITIO N PR O C EED IN G TH IS CA U SE cam e before the Court upon the G overnm ent's Request for D etention Pending Extradition Proceedings gDE 171,filed on September 7, 2018.Defendantl owen Headley filed his R equestfor Release Pending his Extradition Hearing and Possible Appearance in Ontario,Canada gDE 27)on September26,2018.Defendanthas submitted supplemental filings in support of his request for release pending his extradition hearing on Septem ber 30, 2018 (DE 301,andonOctober1,2018(DE 31,DE 321. TheCourtheldalengthybond hearing on the pending M otions on O ctober 2, 20l8. Thereafter, after taking the m atter under advisement,the Courtorally denied bond in open courton October 5,2018.(DE 381.This w ritten Orderm ore fully explains the Court'srationale fordenying bond. 1. ProceduralBackground On August27,2018,theUnited StatesAttorney'sOftkefiledaComplaint(DE 11inthis D istrictseeking a warrantforD efendantO w en A lthelbertH eadley's arrest.This Courtissued an arrest warrant and Defendant was arrested by the United States M arshals in Delray Beach, Florida,on A ugust 27, 2018. (DE 4).Defendant'sinitialappearance occurred on August29, 2018.gDE 8).The United States w as acting on the request of the G overnm ent of Canada, lWhenreferringto a person subjectto an internationalextradition request,courtsuse thevaried termsRelator, Extraditee,Accused,orDefendant.Forconvenienceand consistency purposes,thisCourtw illreferto M r.Headley asDefendant. Dockets.Justia.com pursuantto its extradition treaty2 with the United States (ûithe Treaty'').Canada seeks the extradition ofD efendantto stand trialon three charges:sexualassault,in violation ofsection 271 oftheCriminalCodeofCanada($çCCC'');incest,inviolation ofsection 155(2)oftheCCC;and sexualexploitation,in violation ofsection 153(1)(a) ofthe CCC.The alleged offenses were committed within thejurisdiction ofCanada.A warrantforDefendant'sarrestwas issued on Septem ber 18,2017,in Bram pton,Ontario,along w ith an inform ation charging D efendantw ith the three Canadian offenses identified above.(DE 20,pg.3).On September 11,2018,an am ended inform ation and w arrant w ere issued to correct an enor w ith respect to D efendant's birth year.1d. On Septem ber 7,2018,the Governm ent filed a M em orandum of Extradition Law and Request for Detention Pending Extradition Proceedings (DE 17).On September 26,2018, Defendant tiled his Request for Release Pending his Extradition H earing and Possible Appearance in Ontario Canada.(DE 271.A bond hearing wasscheduled forOctober2,2018. (DE 261. II. FactualB ackaround A ccording to Canadian authorities,Defendanttraveled w ith his l7-yearo1d daughter,I.H .H ., toCanadatoattendthewedding ofDefendant'sbrotheronApril20,2017.(DE 20,pg.41.They arrived at Pearson International A irport at approxim ately 1:00 a.m . on April 21, 2017, and checked into a room containing two queen size beds atthe M onte Carlo Hotelin Brampton, O ntario. 1d. D efendant paid for his daughter's flights and hotel room . 1d A ccording to a 2Treaty on Extradition Betweenthe United StatesofA m ericaand Canada, U .S.-Can.,Dec.3,1971,27 U .S.T.983, which entered into force on M arch 22,1976,and which wasamended by the ProtocolAm ending the Extradition Treaty with Canada,U.S.-Can.,Jan.11,1988,S.Treaty Doc.No.101-17 (1990),and by the Second Protocol Am ending the Extradition Treaty with Canada ofJanuary l2,2001,U .S.-Can.,Jan.12,2001,S.Treaty Doc.No. 107-11(2002) videotaped statementprovided by I.H .H.to the Anoka County Sheriffs Office in M innesota, afterthey gotinto separate bedsand turned outthe lightsto go to sleep,Defendantasked I.H.H. to com e over to his bed and give him a goodnighthug.1d.H e then asked her to 1ie dow n w ith him .Id.I.H .H .com plied, and D efendant pulled up the covers over them .1d. D efendant then wrapped his arms around I.H .H.and expressed hislove forher.Id.He then allegedly sexually assaulted I.H .H .1d.A ccording to I.H .H .'S statem ent,she was frozen with fear and disbelief at whatw ashappening and did nottry to stop Defendantortellhim to stop.1d. According to I.H .H .'S statem ent,during the day on A pril21,2017,afterthe alleged incident, Defendantacted asthoughnothing happened.(DE 20,pg.51.Atonepoint,hetoldhisdaughter that she was growing up to be a greatwoman and expressed a desire to give her a house in Barbados.1d.They tlew back to Florida togetheron April23,2017,and I.H.H.returned to her hom ein M innesota./#.Soon thereafter,DefendantsentI.H .H.two hundred dollars.I.H.H.stated that Defendant began to call her frequently, and at one point told her to begin taking birth control.1d.Approxim ately one m onth afterreturning from Canada,I.H.H .visited a doctorand wastested forsexually transm itted diseases.f#.Thetestindicated thatI.H.H.had chlamydia,and I.H .H.believes she received chlam ydia from Defendant,because she did nothave othersexual partners.1d.After the appointm entwith her doctor,I.H .H.told her m other whathappened in Canada,and stated that she did not reportthe assault im m ediately because she w as afraid that D efendantwould leave herin Canada,and she w asafraid forhisreputation.1d. ln her statem ent,I.H .H stated thata sim ilar incident had occurred in Febrtzal' y,2017,when she visited herfatherin Florida.Id.A tthattim e,I.H .H .stated thatDefendanttouched herbreasts and pulled up herskirtw hile they were sitting on the couch together.1d.A fterthey w entto sleep in separate bedrooms,D efendantcalledherinto hisbedroom to talk and rubbed herbreastsunder herclothing and tried to pulldown her skirtas she was lying on his bed.Id.He then tried to touch hervagina,and I.H.H.told him to stop.(DE 20,pg.61.Defendantexpressed hislovefor her,apologized,and asked hernotto tellanyone.1d. Passport and border crossing information confirm s that Defendant tlew from Fort Lauderdale,Florida,to Toronto,Ontario on A pril 20,2017 and rem rned on A pril 23,2017.fJ. O n M ay 17,2018, a detective w ith the Peel Regional Police,Special V ictim 's Unit,O ntario, Canada,contacted D efendant by phone to inform him of the pending investigation againsthim . A ccording to the detective, D efendant stated that he would not return to Canada to face any criminalcharges.gDE 20,pg.71. 111. The O ctober 2.2018 Bond H earinz At the October 2, 2018 bond hearing, the Governm ent presented the testim ony of Supervisory Deputy United StatesM arshalRoberto Rodriguez,who helped to locate Defendant and assigned a deputy to arrestthe D efendanton the arrestw arrant issued in this case.M arshal Rodriguez testified that he first received a notification of an investigation into D efendant fr 'om the intem ationalbranch of the U nited States M arshals on July 26,2018. A s part of his duties, M arshalRodriguez identified the subjectofthe extradition asDefendantOwen Headley and began to gatherinfonnation aboutthe subjectto ensurethatthe subjectwasthe correctperson being soughtfor extradition.M arshalRodriguez then assigned the case to anotherM arshal,w ho would conductsurveillance attheaddresstheyhad forthesubject,in orderto confirm thatthe subjectlived there.On August7,2018,United StatesM arshalsconducted surveillanceat2655 D orson W ay,Delray Beach,Florida.The M arshals observed a vehicle w hich w as registered to 4 Defendant, and then observed Defendant take out the trash at the residence.The M arshals confirmed thatDefendantresidedatthesubjectresidenceon August7,2018,and conducted no m ore surveillance atthe property. O n A ugust 27,2018,the arrestw arrantw as issued and M arshalR odriguez assigned Deputy M arshalJosh Bostley to arrestD efendantathis hom e in D elray Beach.D eputy M arshalBostley initiated an operation plan to execute the warrantagainstDefendantand in the early mom ing of August 29,2018,Deputy M arshalBostley knocked on D efendant's frontdoor in orderto arrest D efendant.A n unidentiûed m ale answ ered the front door,and w hen the M arshals asked for Defendant,the m ale stated thatD efendantdid notlive there and thatthe M arshals had the w rong house.W hen the M arshals asked how m any other people w ere in the hom e,the m ale said tw o others w ere present.How ever,after the M arshals asked everyone in the house to com e outside, they noticed thatthere were three otherpeople in the house.The M arshals then entered the hom e to clear it,and while clearing the hom e,they found D efendant in a room w ith the door closed. AfterD efendantconfirm ed his identity,the M arshalstook him into custody. TheGovernmentintroduced theDeclaration ofKatherineC.Fermell(DE 9-1,pgs.1-31,the Certificate ofElizabeth M ayfield (DE 9-1,pg.61,andtheAffidavitofEricaW hitford (DE 9-1, pgs.9-181withoutobjectionfrom Defendant. D efendant sought to introduce several defense exhibits,w hich the Court adm itted w ithout Government objection. Defense Exhibit 1 (DE 27-11 is an affidavit of Coral M arshall, Defendant's sister, w ho w as present at the w edding in Canada and w ho asserts that I.H .H . show ed no indication thatshe w asm istreated in anyw ay overthe course ofthe w eekend.D efense Exhibit2 (DE 27-21isan affidavitofDavid Reid,Defendant'sbrother,whowasalsopresentat 5 the wedding in Canada and who asserts thatI.H.H was interacting with her fatherin a normal m anner, consistent w ith her behavior in the past,on April 21, 2017,the day after the alleged assault. M r.R eid also stated that he believed I.H .H . m ade the allegations for financial gain. DefenseExhibit3 (DE 27-31istheaffidavitofJacquelineHeadley (DE 27-4,DE 30-4 (redacted versionlq,Defendant'ssister,who wasalso presentatthewedding in Canada,and who asserts thatI.H.H .never contided in her regarding any abuse and showed no signs of any mentalor emotionaldistress that weekend.DefendantExhibit 4 (DE 27-41 is an affidavit of Amaris Kellm an,the niece ofDefendantand cousin ofI.H.H.,who was also presentatthe wedding in Canada and w ho spentm uch ofthe weekend atissue alone with I.H .H .M s.K ellm an asserts that she has a close relationship w ith I.H .H .and believes that I.H .H .would have confided in her if I.H.H.had been mistreated in any way.DefenseExhibit6 (DE 27-6)isDefendant'spassport. Defense Exhibit8 (DE 27-81is Defendant'stravelreceipts,including airfare,rentalcar,and hotel.DefenseExhibit10 (DE 27-101isan incidentreportfrom theSchoolPoliceDepartmentin Palm B each County,Florida,docum enting an incidentw hich occurred on M arch 5,2009,where a studentattacked D efendantand D efendantchose notto tile any chargesand helped to calm the studentdown.Defense Exhibit 11 (DE 27-11) is travel receiptsfrom Defendant's trip to Minnesotain M ay2017.DefenseExhibit12 gDE 27-121isathank-you lettertoDefendantfrom one ofhis students. DefenseExhibit13 gDE 27-131isa record ofDefendant'schild support paym ents forI.H .H .,showing thatthe paym ents have been m ade to I.H .H .'S m other in 1 11.The Courtalso adm itted D efense Exhibits 14, 15, 16, 17, 18,and 19,and 21,which are a11 letters from Defendant'scolleaguesand fnmily membersin supportofhischaracter.(DE 30-1,DE 302,DE 30-3,DE 31-1,DE 31-2,DE 31-3,DE 32-11. 6 Defendantalso soughtto introduce threedefenseexhibits,which the Courtadmitted over the Govenunent's objection to the relevancy ofthe exhibits.These exhibitsinclude:Defense Exhibit5 (DE 27-51,which is a letterfrom Defendant's doctor,Dr.LouisTumminia,D.O., w hich states that Defendant is a patientof D r.Tum m inia and thathe has never been treated or diagnosed with chlamydiaorany sexuallytransmitted disease;DefenseExhibit7 (DE 27-7,DE 30-5 (redacted versionll,which isa RegisterofActionsfrom M innesota,showing thatI.H.H. pled guilty to possession of drug paraphernalia in M innesota on April 30, 2018' , and Defense Exhibit20(DE 31-4,DE 31-5j,whichareDefendant'sM edicalRecords.TheCourtadmittedthe three exhibits butreserved ruling asto w hatweight,ifany,to give to the three contested exhibits. D efendant also called several w itnesses.D efendant tirst called attorney Lew is Hanna, who had previously represented Defendantregarding the underlying dom estic violence case in M innesota in 2017. M r. H anna testified that he advised D efendant to retain an attom ey in M innesota because M r.H anna w as licensed to practice in Florida.H ow ever,Defendant losthis case in M innesota and expressed disappointm ent to M r. H anna in the law yer he hired in M innesota.A fter he learned of the loss in M innesota,M r.Hnnna stated that he m ade a form al request for a re-hearing in M irm esota and he began preparing for D efendant's defense. M r. H nnna testified thathe began reaching outto fam ily m em bers,m ade Defendant geta blood test for chlnm ydia, and requested Defendant's m edical records. M r. Hanna also testified that he spoke to a detective in Palm Beach Cotm ty regarding the charges and told her that D efendant w asw illing to speak w ith herw ith a law yerpresent,butthe detective never contacted him again. N ext,D efendantcalled as a w itness his sister,Carolanne K ellm an.M s.K ellm an testified that she lived in the fam ily hom e,located at 809 SW 11th Avenue in Delray Beach, Florida,with her 7 siblings and parents.She testitied thatthe home had been in theirfam ily for forty years,ever since they m oved to the U nited States from Barbados.M s. Kellm an becam e a U nited States citizen in 1996.M s.K ellm an also testified thatshe did notthink D efendantw ould ever m ove to Barbados. Anthony Donaldson,a coworkerofDefendant,testified next.M r.Donaldson testified thathe had worked w ith D efendantforover five years,and thathe becam e very close w ith D efendant's fam ily.He also stated thatDefendantwas loved by his students and colleagues,and thathis characteris Stbeyond reproach.''M r.D onaldson testified thathe attended the wedding in Canada and stayed in the sam e hotel, although not in the sam e room , as D efendant and I.H .H . M r. D onaldson stated thathe spentm ostofthe w eekend with D efendantand I.H .H .,and he observed nothing to show thatI.H .H .w as disttlrbed orupsetatany tim e. N ext, Am aris Kellm an, D efendant's niece and I.H .H .'S cousin, testified. M s. K ellm an testified thatshe spentm ostofthe w eekend with I.H .H .,including getting ready forthe w edding, attending the wedding,and getting latenightfood afterthe wedding together.M s.Kellman also stated thatshe wasnotin thehotelroom when the alleged incidentoccurred,butshe added that she feltthatshe and I.H .H .had a close relationship and she believed thatI.H .H .w ould have told herifan assaulthad occurred. D efendant's brother,Clevis H eadley,a professor atFA U ,testified next.Professor H eadley testified thathe attended the courthearing in M innesota with D efendant,afterD efendantshow ed him the court papers. Professor H eadley w as born in B arbados and becam e a United States citizen in 2008.H e also testitied thathe and m em bers ofhis fam ily are law abiding citizens and thatthey w ould be w illing to use their fam ily hom e as collateral for a bond.Professor H eadley 8 testified thathis brotherdenied a1lthe allegations lodged againsthim .He also stated thatthe fam ily hasm any family m embersliving in Barbados,and Defendantoften traveled to Barbados to see fam ily. Finally, Defendant Owen Headley testified.Defendant testified that he had never been arrested and that he had never used any false identification. H e also stated that I.H .H .'S allegations w ere false and thathe never touched his child.A lthough he m oved to M irm esota for college and w orked there for severalyears,he m oved back to Florida in 2004,w hen his daughter w as five years old. D efendantadded thathe always paid his child supportin full,and has paid m ore than one hundred thousand dollars in totalover the last eighteen years.Defendantalso stated thatthe m oney he gaveto hisdaughterwasnotCthush moneyy''butrather money forthe baggage feeson herflightand m oney to keep in herpocket. D efendanttestified thathe gave hispassportto his attorney,but he did have the funds to fly to Barbados ifhe w anted to.He stated thathe w ould notflee to B arbados because he w ould not have m oney to live there,and his hom e and his fnm ily w ere in South Florida.D efendant also stated that he w ould abide by any conditions if he were to be released.D efendant refuted the Governm ent's assertion that he told a detective in Canada that he w ould notreturn to Canada. Defendanttestified thathe talked to a Canadian detective on the phone,and he told the detective thathe could go to Canada afterJune 5,2018,w hen the schoolyear ended.He also stated thathe did not feel that Canada w ould give him a fair trial, based on their investigation thus far. D efendant also refuted the U nited States M arshal's testim ony that he tried to hide from law enforcem ent.D efendanttestified thathe w oke up after the M arshals arrived at his house and he im m ediately had to use the bathroom due to health issues.D efendant testified that he fully complied with the ordersgiven by theM arshals.Defendantalso testified thathe hascontinued to teachandtoparticipateinbiblestudieswhileincarceratedatthePalm BeachCountyjail. D efendantstated thathe believed his daughterw as m aking up the allegations atthe behestof herm other.He added thathe believed his child supportpaym ents w ere I.H .H .'S m other's m ain source of incom e.H e also added thathe thought his daughter w as having issues w ith drug use, because she had been kicked out of her dorm and she was arrested for possession of dnlg paraphernalia.He testified thathe discussed birth controlwith hisdaughter and thatshe called him to tellhim thatshe had received a form ofbirth controlfrom the doctor. D efendanttestified thathe w ould rettm zto Canada if he w ere ordered to do so,and that the detective'sstatementthatDefendantsaid he would notreturn to Canada wasa false statement. D efendantstated thatbecause he is a citizen ofBarbados,itw ould be possible forhim to obtain a Barbadospassport.D efendantbecam e a U nited States citizen in 1989.Defendantalso refuted his daughter'sallegationthatheassaultedherathishome in Floridain February of2017. Finally the defense proffered that Amaris Kellman would testify that I.H .H. sm uggled marijuanainto Canadato smokedtlring theweddingweekend.Thedefense also proffered that D efendant's fiancé w ould testify thatD efendantw as in the bathroom when the M arshalsentered the hom e. The G overnm ent argued that in extradition cases,there is a presum ption against bond,and thatDefendanthadnotshowntheexistenceofanyspecialcircumstancesjustifyinghisreleaseon bond.The G overnm ent also argued that Defendant posed a significant risk of flight due to his significantties to Barbados,his incentive to tlee,the seriousness of the charges lodged against him ,the factthatDefendantstated he did notbelieve he w ould receive a fairtrialin Canada,his 10 statem entto the Canadian detective thathe would notretul' n to Canada,hisclaim thatthe U.S. M arshals are lying in theirreports regarding his arrest,and his attem ptto concealhis conductby giving his daughter m oney. The Governm ent also asserted that D efendant is a danger to the com munity,based on theallegationsthathesexually assaulted hisdaughteron two occasions. In response,Defendantargued thatthere is no indication thathe poses a significantrisk of tlightornon-appearance,because hehasinsisted thathewouldretm' n to Canada ifordered to do so.Defendantalso pointed outthatthereisadifferencebetween following the law and reblrning toCanadafortrial,and in m istrusting theinvestigation ofDefendantby the Canadian authorities. Defendantpointed outthatalthough he hastraveled often to Barbados,he hasalwaysreturned as scheduled,even overthe pastyearafterhewas made aware ofthese allegations.Defendantalso pointed to hissubstantialfam ily supportand thefactthathisfamily waswilling to usethe family hom eofmorethan forty yearsascollateralforabond. Finally,Defendantargued thatthe totality ofthe circum stancesin his case should constitute special circumstances enabling him to receive a bond while pending extradition to Canada. Defendantpointed to the following factors: Defendant has never had any contact with the criminaljustice system priorto the allegations in this case;Defendant has never evaded or attem pted to evade authorities;Defendantis arespected educatorin the com munity and hasthe supportofmany co-workers;thereisahigh probability thatDefendantwillsucceed on themerits of his case;D efendant and Defendant's fam ily have signiicant ties to South Florida including the fam ily hom e,which has been in the fam ily for m ore than forty years;Defendant's fam ily is willing to accept and undertake any and al1 responsibilities required by a reasonable bond package;and Canada allow s for bond in the chargesalleged againstD efendant. 11 lV. ANALYSIS OF APPLICABLE EXTM DITION LAW A foreign or international extradition proceeding is not a crim inal case.M artin v. Warden,Atlanta,Pen.,993 F.2d 824,829 (11th Cir.1993);Kamrin v.United States 725 F.2d 1225,1227-28 (9th Cir.1984).EdForeign extraditionsaresuigenerisin nature,neithercivilnor criminal in nature and set forth their own law.''In re Extradition of Mohammad Safdar Gohir,2014 W L 2123402,at*6 (D.Nev.2014);In reExtradition of Vargas,978F.supp.zd 734, 744 (S.D.Texas2013).The processof formalextradition is a diplomatic process,governed generally by the applicable extradition treaty and the federalextradition statute,18 U.S.C.jj 3181-3196.InreExtradition ofM ohammadSadfarGohir,supra,at*6. Neitherthe FederalRulesofCriminalProcedurenortheFederalRulesofEvidenceapply to intemational extradition proceedings. Fed. R. Crim. P. 1(a)(5)(A); Fed. R. Evid. 1101(d)(3);Afanesjev v.Hurlburt,418 F.3d 1159,1164-65 (11th Cir.2005);Melia v. United States,667 F.2d 300,302 (2d Cir.1981);Bovio v.United States,989 F.2d 255,259 n.3 (7th Cir.1993). There is little statutory guidance on the issue of bond Or release pending future proceedings in extradition m atters. The Bail Reform Act does not apply to extradition proceedings.See18U.S.C.jj3l4l(a),3142,3156(a)(2);InreExtraditionofshaw,No.14-MC81475-W M ,2015 W L 521183,at *5 (S.D.Fla.Feb.6,2015);ln re Extradition of Nacf- Borge,829 F.Supp.1210,1213 (D.Nev.1993);In re Extradition ofM ohammad SadfarGohir, supra,2014 W L 2123402,at*11.Assuch,Stjfjederaldistrictcourtshavealmostexclusively,and by necessity,developed a federalcom m on law to fill in the gaps left by current legislation for baildeterminationsin foreign extradition cases.''In reExtradition of Garcia,761F.Supp.2d 12 468, 470 (S.D. Tex.2010).'tfhis lack of guidance has created contradictory, and often irreconcilable,lower courtopinions on the subjectof bailavailability for defendants facing internationalextradition.''1d. There is a presumption against bond in extradition proceedings,reflecting the value placed on the United States fultilling its obligations under international1aw to the requesting country.W right v. H enkel,190 U.S.40,62-63,23 S.Ct.781,47 L. Ed.948 (1902);In re Extradition of Russell,805 F.2d 1215,121* 1217 (5th Cir.1986);M artin v.Warden,Atlanta Pen.,993 F.2d 824,827 (11th Cir.1993);Matter of Extradition of Ricardo Alberto Martinelli Berrocal, 263 F. Supp. 3d 1280, 1306 (S.D. Fla.2017);ln re Extradition of Jacques Pelletier,2009W L 3837660,at*3(S.D.Fla.2009).Thisisbecausein aforeign orinternational extradition, the United States is obligated to deliver the person after he is apprehended, and granting bond could makethatobligation im possibleto 1 1t511.Wrightv.H enkel,supra,190 U.S. at62;InreExtradition oflacquesPelletier,supra,2009W L 3837660,at*3. A Defendantin a!lextradition casewillbe released on bond only ifhe can prove Ctspecial circum stances.''Wright v. H enkel, supra, 190 U .S. at 63, .M artin v. W arden, Atlanta Pen., supra,993F.2dat827;InreExtradition ofGhandtchi,697F.2d 1037,1038 (11th Cinl983);ln reExtradition of Shaw,2015 W L 521183,at*5;In re Extradition oflacquesPelletier,supra. kûgclourtsconsistently agree thatspecialcirclzmstances are supposed to be limited to the most extraordinary circllm stancesand cannotinvolve factorsapplicable to a11potentialextradites.''In reExtradition ofshaw,2015W L 521183,at*4-6;InreExtraditionofGarcia,761F.Supp.2d at472.H owever,whatexactly constitutes Stspecialcircllm stances''has yet to be defined.Courts 13 have only described this conceptin the abstract,leaving trialcourts withoutspecific factorsor parametersto follow .Id Bailin extradition proceedingsis granted only upon a show ing thata defendantisneither a risk of tlight, nor a danger to the com m unity, and that special circum stances w arrant the defendant's release.United States v. Taitz,130 F.R.D.442,444-45 (S.D.Cal. 1990);ln re ExtraditionofGarcia,761F.Supp.2d at473-74;InreExtraditionofshaw,2015W L 521183, at*4. The Defendantbearsthe burden ofproofof establishing thathe isneithera flightrisk, nora dangerto the comm unity,and thatspecialcircumstances warranthis release.Salerno v. United States,878 F.2d 317,318 (9th Cir.1989), .ln re Extradition of Garcia,supra,761 F. Supp.2dat474;Unitedstatesv.feitner,784F.2d 159,160 (2dCir.1986). Som e courts have determ ined that a defendant m ust m eet his burden by clear and convincing evidence.See, e.g.,In re Extradition of M ohammad Gohir, supra,2014 W L 2123402,at*11;UnitedStatesv.Ramnath,533F.Supp.2d662,665-66(E. D .Tex.2008).Other courts have held thata preponderance ofthe evidence standard applies.In re Extradition of Santos,473F.Supp.2d 1030,1036n.4(C.D.Cal.2006);InreExtradition ofGarcia,supra,76l F.Supp.2d at474-75. çû-f' he case law also reflects an inconsistency am ong courts in their analysis of flightrisk in relation to the tspecial circum stances'inquiry.M ost courts treat flight risk as a separate, independentfactor from the specialcircum shnces analysis.''In re Garcia,761 F.Supp.2d at 472.The courtsthatexam ine risk offlightand specialcircum stances separately thusGlrequire the potentialextraditetoestablishthefollowingtwofactorsbefore (they)can grantbailin aforeign 14 extradition case:(1)Sspecialcircumstances'existin theirparticularcase;and (2)they arenota flightrisk oradangerto the community.''1d.at472-73;ln re Extradition of k sWtzw,2015 W' L 521183 at*4-6. ln sum , though unusual and extraordinary, it is not impossible to obtain bond in intemational extradition proceedings.Nacf-Borge, supra,829 F. Supp. at 1213. ,In re ExtraditionofGohir,supra,2014W L 2123402,at*11. V. N O SPEC IA L C IR C UM STA N CE S EX IST IN T H IS CA SE Determining the existence of special circum stances involves a fact-specific inquiry,and specialcircumstanceswillbefoundonlywherejustificationforreleaseisclear.In reExtradition ofshaw,2015W L 521183,at*4-6;See,e.g.,UnitedStatesv.Williams,611F.2d 914,915 (1st Cir.1979);Ramnath,supra,533 F.Supp.2d at666-67.In thiscase,the Courtdoesnotfind a clearjustification forrelease,and tindsthatDefendantHeadley failed to provetheexistenceof specialcircum stancesw arranting hisrelease on bond pending extradition.3 Defendant's argllm entthathe has a high probability ofsucceeding on the merits ofhis case attrial in Canada,and therefore he should be perm itted to be released on bond,does not constitute a special circum stance in this case. W hile courts have recognized that a substantial likelihood of success atthe extradition hearing may constitute a specialcircum stance,this is limitedtothemeritsoftheextradition,andnotoftheunderlying case.InreExtraditionofshaw, 2015 W L 521183 at *7; SeeUnited States v.fiu Kin-Hong,83 F.3d 523, 524 (1st Cir. l996);Salerno,supra,878 F.2d at317;In re Extradition of Mironescu,296 F.Supp.2d 632, 3The Courtnotes, asdiscussed previously in SectionIV ofthisOrder,thatthereisaconflictamongthecourtsasto w hether a defendantm ust prove the existence of a special circumstance by a preponderance of the evidence standard,orbythe higherclearand convincing evidencestandard.The Courtdoesnotneed to addressthiscontlict however,because itGndsthatDefendantHeadley has failed to m eethisburden by the lowerpreponderanceofthe evidencestandardand,therefore,henecessarily hasnotmetthehigherclearandconvincingevidencestandard. 15 634-35 (M .D.N.C.ZOO3I;ln Extradition of Sacirbegovic,280 F. Supp. 2d 8l, 88 (S.D. N .Y.2003);lnreExtraditionofGonzales,52 F.Supp.2d 725,737(W .D.La.1999);NacfBorge,supra,829F.Supp.at1216.Thejudicialofficer'sinquiry in an internationalextradition hearing is limited to a very narrow setofissues regarding the existence ofa treaty,the offense charged,and thequantlzm ofevidenceoffered.In reExtradition ofshaw,2015 W L 521183 at *7.lfthosefactorsareestablished,thejudicialofficershallcertifyextraditability.1(l ûtl-helarger assessmentofextradition and its consequences is com mitted to the Secretary of State.''United States v.Kin-Hong,110 F.3d 103,111 (1stCir.1977).Atthis point,the Defendanthasnot presented sufficientevidence to establish thathe hasa high probability ofsuccesson them erits atthe extradition hearing.R has been established thatthe extradition treaty in forcebetween the United States and Canada was in fullforce and effectata11tim esrelevantto this action,and encompassesthe charges lodged againstDefendant.Ithas also been established thatthe Owen Headley soughtby Canada and the Owen Headley arrested in this Districtforextradition and broughtbefore the Courtare the sam e person,and thatthere is probable cause to believe that Defendantcommitted theoffensesforwhich extradition issought.ln fact,Defendanthaswaived hisrightto an extradition hearing and the Courthasentered an Ordercertifying extraditability. gDE 461.Therefore,the Courttindsthatthere isa very low probability thatDefendantwould succeed on themeritsathisextradition hearing. Although Defendanthas demonstrated immense supportfrom the many mem bers ofhis family,the Courtmustalso considerthatthe seriouschargeslodged againsthim were alleged by a close fam ily m em ber,his daughter.A nd w hile D efendant did have som e com m tm ity support from colleagues,that supportis not so w idespread as to constitute a specialcircum stance in this 16 case.Further,the availability of bailin Canada is not a special circumstance. See Matter of Extradition of Berrocal,263 F. Supp.3d at 1299.Finally,the Courtnotes that the good character,lack of crim inalrecord, and U.S.citizenship ofa defendantdo notconstitute special circum stances w arranting release. In re Extradition of Pelletier,No.09-22416-MC,2009 W L 3837660,at*2 (S.D.Fla.Nov.16,2009);M atterofExtradition ofBerrocal, 263 F.Supp 3d at 1300;InreExtradition tl /s' /llw,2015W L 521183at*7;SeeMartinv W arden,supra,993 F.2d . at827-28;seealso In reExtradition of Sacirbegovic,supra,280 F Supp.at 84.In sum ,the . Defendanthas failed to demonstrate by a preponderance ofthe evidence thatthere are special circum stancesin thiscasewhich warranthisrelease on bond pending extradition. ln lightofthe Court'sfinding thatno specialcircum stancesexistin thiscase, the Court need notaddressthe issue ofwhetherDefendantisa significantrisk offlightornon-appearance orwhetherDefendantposesadangerto the comm tmity. VI. CONCLUSION The Courthas carefully reviewed a1lthe evidence, including the authenticated original Form alRequestforExtradition togetherwith al1ofitsDeclarationsand exhibits, theDefendant's exhibits,and the parties'argum entsand filings. In lightofthe foregoing,itishereby O RDERED AND ADJUDGED thatDefendant's requestforreleaseon bondpending extradition isDENIED . D O N E A D O R D ER ED in Cham bers at W est Palm Beach, Palm Beach County, Florida,this2 % ayofOctober,2018. W ILLIAM TTH EW M AN U N ITED STA TES M A G ISTM TE JUD GE 17
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