The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
Rocco Messina and Charles Arico are in custody pending formal request for their extradition by the government of Italy. The United States has appealed from a magistrate's order admitting them to bail.
A complaint seeking the provisional arrest of Messina and Charles Arico was sworn out before Magistrate John Caden on May 27, 1983. The complaint stated that they had been charged in Italy with "attempted aggravated extortion and conspiracy to commit the same." Italian authorities were said to possess recordings of two threatening telephone calls made to an Enrico Cuccia, alleged to be one of the closest associates of Giorgio Ambrosoli who was shot dead in Italy on July 12, 1979. William Arico, the stepfather of Charles Arico, traveled to Italy with Rocco Messina in April 1979, three months before Ambrosoli's death. William Arico is said to have admitted to a witness that he was in Italy during this three month period committing contract murders for the well known Michele Sindona, and that Rocco Messina was smuggling guns into Italy from the United States for this purpose.
The voices on the two threatening telephone calls have been identified. A Deputy United States Marshal identified one caller as Charles Arico. A confidential source identified him as one caller and Messina as the other. The complaint stated that the Italian government had officially requested the provisional arrest of Messina and Charles Arico. Magistrate Caden issued the warrants.
Messina and Charles Arico were arrested on June 7, 1983. They appeared before Magistrate Caden, and he admitted each of them to bail of $250,000 cash or surety. On June 10, 1983, the United States applied to this court for an order continuing the detention without bail or, alternatively, staying the bail order until the magistrate could issue a written opinion. The court stayed the order and directed the parties to submit papers by June 14, 1983.
After briefs were submitted, the court requested papers by June 21, 1983, on four additional questions, as follows.
1. Has the government of Italy made a determination that this case is one of urgency? Has the State Department of the United States made such a determination?
2. Assuming that such a determination has been made by one or both of those authorities, is this court bound thereby or must it independently decide whether the requirement of urgency has been satisfied?
3. Assuming that this court must make an independent determination, is this a case of urgency?
4. Assuming that bail applications pending extradition hearings are generally governed by a "special circumstances" test derived from Wright v. Henkel, 190 U.S. 40, 63, 47 L. Ed. 948, 23 S. Ct. 781 (1903), does the same test govern applications made after provisional arrest on the basis of urgency and prior to receipt of the formal request for extradition?
Shortly after the supplementary briefs were filed, the government informed the court by letter that it had received from Italian authorities "the documentary evidence necessary" to support a formal request for extradition, to be made within the week. The imminence of such a formal request does not moot the issue of bail. Moreover, until the request is made, Messina and Charles Arico are in custody solely on the basis of the provisional arrests.
In extradition proceedings the presumption is against bail because of the nation's foreign relations interest in successfully producing extradited persons. Accordingly, bail will be granted only under "special circumstances." Wright v. Henkel, 190 U.S. 40, 63, 47 L. Ed. 948, 23 S. Ct. 781 (1903); Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir. 1981). This test applies not only after a finding of extraditability, but also after a request for extradition and prior to the hearing. Wright v. Henkel, supra. At least one circuit court has also applied the "special circumstances" standard after provisional arrest and before formal request, although the opinion does not discuss the import of the latter event. United States v. Williams, 611 F.2d 914 (1st Cir. 1979), rev'g 480 F. Supp. 482 (D. Mass. 1979).
There has apparently been a less stringent standard in practice than in theory. See II M. Bassiouni, International Extradition chap. IX § 3 & nn. 7, 9 (collecting cases). One court surveyed "the more contemporary reported cases" and reported that "granting of bail pending completion of the extradition proceedings has been the rule rather than the exception." Beaulieu ...