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IN THE MATTER OF THE EXTRADITION OF MUHAMED SACIRBEGOVIC

July 2, 2003

IN THE MATTER OF THE EXTRADITION OF MUHAMED SACIRBEGOVIC.


The opinion of the court was delivered by: Frank Maas, United States District Magistrate Judge

OPINION AND ORDER

I. Introduction

Muhamed Sacirbegovic, a/k/a "Muhamed Sacribey" ("Sacirbey"), seeks to be released on bail pending a hearing on a formal request by the Federation of Bosnia and Herzegovina ("BiH") for his extradition. For the reasons set forth below, this application is denied.

II. Background

Sacirbey was born in Sarajevo and became a naturalized citizen of the United States in 1973. (Letter to the Court from John K. Carroll, Esq., dated May 16, 2003 ("Caroll Letter I"), at 1). The BiH extradition request ("Request") alleges that in or around 2000, while serving as an employee of the Ministry of Foreign Affairs of BiH and as the BiH ambassador to the United Nations, Sacirbey "withdrew funds in the approximate amount of $610,982.46 from the Permanent Mission to the United Nations and General Consulate of the Federation of Bosnia and Herzegovina (the `UN Mission') in New York, New York, by issuing checks and bank orders drawn on the UN Mission's accounts and transferring the funds to his private bank account." (See Compl. ¶¶ 6(a)-(b)). The Request further alleges that, during the same time period, Sacirbey withdrew approximately $1,800,000 from a second account belonging to the Republic of Bosnia and Herzegovina Investment Fund Ministry. (Id. ¶ 6(b)). According to the Request, as a result of these acts, Sacirbey has been charged in BiH with the crime of abuse of position or powers in violation of Article 358, Paragraph 3, of the BiH Criminal Code. (Id. ¶ 4).

On December 5, 2001, the Investigating Judge of the Cantonal Court in Sarajevo (the "Cantonal Court") issued a warrant for Sacirbey's arrest. (Id.). As a consequence, in its Request, BiH seeks Sacirbey's extradition pursuant to its Mutual Extradition Treaty with the United States ("Treaty"). (See Compl. Exs. A, B).

On March 25, 2003, pursuant to a Complaint for Arrest with a View Towards Extradition, and a warrant issued by Magistrate Judge James C. Francis IV, Sacirbey was arrested and presented in this District before Magistrate Judge Debra C. Freeman. (See Letter to the Court from Assistant United State Attorney E. Danya Perry, dated June 2, 2003 ("Perry Letter"), at 1). After a hearing, Judge Freeman ordered that Sacirbey be detained. (Id.).

This matter first came before me on June 4, 2003, in connection with Sacirbey's application for bail pending an extradition hearing. After hearing oral argument, I reserved decision and permitted counsel to make further submissions, which have since been received. At the bail hearing, Sacirbey's pro bono counsel, John K. Carroll, Esq., of the law firm of Clifford Chance US LLP, also requested sufficient time to secure the assistance of one or more expert witnesses. Accordingly, although the Court was available to conduct it earlier, the extradition hearing was scheduled to commence on September 11, 2003.

III. Discussion

A. Applicable Law

In cases involving domestic crimes, federal magistrate judges routinely take calculated risks by granting bail to those accused of crimes. Indeed, the Bail Reform Act requires that a defendant be released on bail unless the judge determines that the defendant poses a flight risk or danger to the community, in which event the defendant is still entitled to be released, provided that there are conditions which can overcome those concerns. 18 U.S.C. § 3142(b), (c). In the extradition context, however, if the accused were to be released on bond and thereafter absconded, the mere surrender of a quantity of cash or other property "would hardly meet the international demand" and could cause the United States government "serious embarrassment." Wright v. Henkel, 190 U.S. 40, 62 (1903). For these reasons, bail applications in extradition cases are typically denied in the absence of "special circumstances." See id. at 63; Salerno v. United States, 878 F.2d 317 (9th Cir. 1989); United States v. Leitner, 784 F.2d 159, 160 (2d Cir. 1986) (per curiam). Such special circumstances arise "only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory." Leitner, 784 F.2d at 160 (quoting In re Mitchell, 171 F. 289 (S.D.N.Y. 1909) (Learned Hand, J.)). In the ordinary case, there consequently is a presumption against bail for someone whose extradition has been formally sought. In re Extradition of Molnar 182 F. Supp.2d 684, 686-87 (N.D. Ill. 2002); In re Extradition of Ernst, 1998 WL 51130, at * (S.D.N.Y. Feb., 5, 1998).

B. The "Special Circumstances" Requirement Applies to this Case
Sacirbey argues that the "special circumstances" requirement is inapplicable to him because: (1) he has not been formally with any crime in BiH; (2) he is an American citizen; and (3) his alleged criminal acts occurred within the United States. (Carroll Letter I at 2-4; Letter to the Court from Mr. Carroll, dated June 11, 2003 ("Carroll Letter II"), at 2-4).

1. No Formal Charge

Sacirbey contends that no charge has been filed against him in BiH and after the investigating judge in Sarajevo merely seeks his testimony in connection with an investigation which ultimately may not result in the filing of charges. (Caroll Letter I at 2; Carroll Letter II at 2). In support of this contention, Sacirbey cites a May 20, 2003, article (available on the internet) which suggested that the case against him in BiH is at an investigative large (Carroll Letter ...


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