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IN THE MATTER OF EXTRADITION OF SACIRBEGOVIC

United States District Court, S.D. New York


July 2, 2004.

IN THE MATTER OF THE EXTRADITION OF MUHAMED SACIRBEGOVIC, a/k/a "MUHAMED SACIRBEY".

The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge

ORDER

I. Introduction

Relator Muhamed Sacirbegovic, a/k/a "Muhamed Sacirbey" ("Sacirbey"), whose extradition is sought by the Federation of Bosnia and Herzegovina ("BiH"), has moved for reconsideration of this Court's order denying without prejudice his application for bail. For the following reasons, I grant Sacirbey's application, subject to the conditions detailed below.

  II. Background

  This proceeding, which has been pending for some time, 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. Thereafter, by order dated July 2, 2003 ("Order"), I denied without prejudice Sacirbey's application for bail. See In re Extradition of Sacirbegovic, 280 F. Supp.2d 81 (S.D.N.Y. 2003) ("This ruling is without prejudice to the renewal of this application based upon the fuller record which I expect will be made at the extradition hearing."). The Order is incorporated herein by reference.

  Following a series of briefings in anticipation of a formal extradition hearing, as well as a number of changes in Sacirbey's legal representation,*fn1 I held an extradition hearing on December 23, 2003, to determine whether the evidence presented against Sacirbey was "sufficient to sustain the charge under the provisions of the proper treaty or convention."*fn2 18 U.S.C. § 3184. Following the hearing, I allowed Sacribey to submit a post-hearing brief, and afforded the Government the opportunity to respond. Sacirbey's last submission is dated February 19, 2004, and the Government responded on March 11. Even if I order Sacirbey's extradition, that will not end this case because his counsel has already requested that I stay any such order so that Sacirbey can file a habeas petition. (See H. Tr. 154). It therefore seems clear that proceedings involving Sacirbey will be pending for some time.

  Sacirbey recently has served and filed a motion for reconsideration of the Order on the basis that new facts material to his application have arisen. (See Relator's Mot. for Recons.). More specifically, Adnan Terzic ("Mr. Terzic"), the Chairman of the Council of Ministers of BiH, has sent Sacirbey's counsel a letter dated May 31, 2004 ("Letter"), in which he states his "personal opinion," which is shared by the Minister for Civil Affairs and Communications of BiH, Safet Halilovic ("Mr. Halilovic"), "is that the [United States] authorities should grant bail to Ambassador Sacirbey until the final decision regarding the Request for [Sacirbey's] extradition is made." (Id. Ex. A). Both the United States Ambassador to BiH, Clifford G. Bond, and Mr. Halilovic were copied on the Letter. (See id.). The Government does not dispute the authenticity of the letter, but continues to oppose the granting of bail. (See Letter from Assistant United States Attorney E. Danya Perry to the Court, dated June 22, 2004).

  Mr. Terzic, as Chairman of the Council of Foreign Ministers, serves as BiH's "head of government," nominated by BiH's tri-member Presidency and approved by BiH's House of Representatives. (See United States Department of State, "Background Note: Bosnia and Herzegovina," at http://www.state.gov/r/pa/ei/bgn/2868.htm (last visited July 1, 2004)). As such, he is "responsible for appointing a Foreign Minister, Minister of Defense, [and a] Minister of Foreign Trade," among other governmental officials. (Id.). The Council that he chairs is charged with, among many responsibilities, "carrying out the policies and decisions in the fields of foreign policy[,]" as well as "international and inter-[e]ntity criminal law enforcement, including relations with Interpol[.]" (Id.). The Letter acknowledges that BiH's request for Sacirbey's extradition is "still valid." Nevertheless, he states that

Ambassador Sacirbey had, for a long time, very successfully represented Bosnia and Herzegovina at the United Nations Organization, and he is very respected in the [United States] as well as around the world. Taking this into consideration, it is my personal conviction that there is no risk that Ambassador Sacirbey would make himself unavailable to the [United States] authorities if he would be permitted to defend himself from the position of freedom.
(Relator's Mot. for Recons. Ex. A).

  In connection with Sacirbey's motion for reconsideration, his counsel requested a conference, which was held earlier today. (See Letter from Anne Marie L. Corominas, Esq. to the Court, dated June 15, 2004). At the conference, after hearing from counsel, I determined that, given the unique situation presented here, Sacirbey should be granted bail. My reasoning, and the precise bail conditions imposed, are detailed below.

  III. Discussion

  A. Sacirbey's Bailworthiness

  Bail applications in extradition cases are typically denied in the absence of "special circumstances." Wright v. Henkel, 190 U.S. 40, 63 (1903). Special circumstances are found "only in the most pressing circumstances and when the requirements of justice are absolutely peremptory." United States v. Leitner, 784 F.2d 159, 160 (2d Cir. 1986) (per curiam) (quoting In re Mitchell, 171 F. 289 (S.D.N.Y. 1909) (Learned Hand, J.)). The rationale underlying this presumption against bail is that the non-appearance of a bailed extraditee would prevent the United States from complying with its treaty obligations. In Wright v. Henkel, the Supreme Court stated:

The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender; an obligation which . . . might be impossible to fulfil if release on bail were permitted.
Wright, 190 U.S. at 62. As I noted in the Order, "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 `serious embarrassment.'" Sacirbegovic, 280 F. Supp.2d at 83 (quoting Wright, 190 U.S. at 62).

  Whatever the precise contours of the special circumstances test may be, as the Government conceded at the hearing, the factual circumstances in this proceeding are unprecedented. First, Sacirbey is an American citizen. Second, the crime for which extradition is sought occurred principally — if not exclusively — in the United States. Third, it is clear that Sacirbey would be eligible for bail had he been charged with embezzlement in the United States. See 18 U.S.C. § 3142 ("Release or detention of a defendant pending trial"). Finally, as the Letter shows, even BiH appears not to oppose Sacirbey's release on bail.

  In its written submission, the Government has suggested that any decision on Sacirbey's bail reconsideration motion "should abide [my] determination on the issue of extraditability, which, clearly, one way or the other, will have an impact on the [Relator's] bail status." (Letter from Assistant United States Attorney E. Danya Perry to the Court, dated June 22, 2004). For present purposes, I have assumed that the Government will ultimately prevail when I rule on the BiH extradition request. It does not necessarily follow, however, that Sacirbey should be denied bail while he awaits my decision and, if extradition is ordered, a decision on the habeas petition that his counsel has indicated he expects to file.

  In my judgment, if ever a case warranted bail for the relator, on the facts now before me, this is that case. Nonetheless, the Government is entitled to have Sacirbey's release subject to conditions reasonably calculated to ensure that he remains in this country while these proceedings are underway and is available for extradition should that be the ultimate outcome.

  Accordingly, Sacirbey shall be released on bail, on the following terms:

1. Sacirbey shall sign a personal recognizance bond in the amount of $5 million, which is to be co-signed by his wife and five other financially responsible persons, and further secured by $1 million cash or surety.
2. Sacirbey shall surrender any passports or travel documents in his possession and not seek new ones. 3. Sacirbey shall be subject to home detention, which will be electronically monitored by the Pretrial Services Agency, at Sacirbey's expense.
4. Sacirbey's bail limits will be the Southern and Eastern Districts of New York.
5. Sacirbey must meet all of these conditions prior to his release.*fn3
IV. Conclusion

  Sacirbey's motion for reconsideration is granted, subject to the conditions detailed above.

  SO ORDERED.


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