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