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In the Matter of the Extradition of Monika Kapoor

June 6, 2011


The opinion of the court was delivered by: Levy, United States Magistrate Judge:


The United States of America (the "government"), acting on behalf of the government of India, filed a complaint on May 2, 2011, seeking an arrest warrant and the extradition of Monika Kapoor ("Kapoor" or the "relator"), pursuant to 18 U.S.C. § 3184. Kapoor has moved for release on bond until final resolution of the extradition proceedings. I held oral argument on May 26, 2011 and have carefully considered the parties' submissions. For the reasons stated below, the motion is granted.


On April 26, 2010, the Court of the Metropolitan Magistrate in New Delhi, India, issued a warrant for the arrest of Kapoor, an Indian citizen. (Motion for Bond, dated May 17, 2011 ("Bond Mot."), at 2.) The warrant alleges that in 1998, Kapoor, along with her two brothers, Rajan and Rajiv Khanna, used forged export documents to obtain sixteen Replenishment Licences from the Indian foreign trade authorities. (Complaint, dated May 2, 2011 ("Compl."), ¶ 5(b).) According to the allegations, they subsequently sold at least fourteen of the licenses to another company, which used them to import duty-free gold, causing a loss to the Indian government of approximately $679,000. (Id.) Kapoor stands accused of (1) conspiracy, (2) cheating and dishonestly inducing delivery of property, (3) forgery of valuable security, will, etc., (4) forgery for the purpose of cheating, and (5) using as genuine a forged document, in violation of the Indian Penal Code. (Id. ¶ 4.)

The Directorate of Revenue Intelligence (the "Directorate") appears to have begun investigating Kapoor and her brothers in the fall of 1999. On September 28, 1999, Kapoor was interviewed in conjunction with the Directorate's investigation. (Proposal for Extradition, certified Oct. 12, 2010 ("Proposal for Extradition"), at P256*fn1 (Show Cause Notice, dated Feb. 11, 2003, ¶ 6).) In 2002, the Directorate submitted a written complaint to the Central Bureau of Investigation. (Id. at P27 (Affidavit of Ravi Kant, dated May 19, 2010 ("Kant Aff."), ¶ 2).) On January 10, 2003, the Metropolitan Magistrate's Court in New Delhi issued an arrest warrant (id. at P386 (Red Corner Notice, dated Jan. 28, 2003)), and a charge sheet (Police Report) was filed in the same court on March 31, 2004. (Id. at P39 ("Kant Aff. ¶ 7).) On February 13, 2006, the Metropolitan Magistrate's Court declared Kapoor a "Proclaimed Offender" because she did not take part in either an investigation or trial. (Id. at P39--40 (Kant Aff. ¶ 8).)

Kapoor entered the United States on October 16, 1999, shortly after the investigation against her commenced. (Bond Mot. at 1.) Since her arrival, she has resided in Queens, New York, with her husband, two children, and elderly father. (Id. at 1, 3.) On January 6, 2010, agents of Immigration and Customs Enforcement took Kapoor into custody for overstaying her visa.*fn2 (Id. at 1.) Approximately seventy days later, she was released from immigration custody on a $22,500 bond. (Id.)

After Kapoor's release from immigration custody, the Court of the Metropolitan Magistrate issued a second warrant for her arrest and on October 29, 2010, the Government of India requested her extradition. (Id. at 2.) On March 30, 2011, the State Department granted the request. (Id.) This court issued an arrest warrant on May 2, 2011, pursuant to 18 U.S.C. § 3184, the federal legislation implementing extradition treaties. Kapoor was arrested on May 6, 2011 and arraigned on May 10, 2011.

Kapoor denies the charges and claims that she left India to escape government-inflicted "persecution, harassment, and torture" related to the "false accusation" that she was involved in a fraudulent business matter. (Id., Ex. A at 13.) In February 2010, while in immigration custody, Kapoor filed an application for Asylum and Withholding From Removal on the basis of the Convention Against Torture ("CAT"), as well as her religion, nationality, political opinion, and membership in a particular social group.*fn3 (Id., Ex. A at 5.) The final hearing on Kapoor's application is scheduled for September 30, 2011. (Id. at 1.)

Kapoor also awaits a hearing before this court to determine whether extradition is proper. She presently moves for release on bail pending extradition. She argues that there are special circumstances in her case to overcome the presumption against bail in extradition cases and that she is not a flight risk or danger to the community.


The "standard for release on bail for persons involved in extradition proceedings is a more demanding standard than that for ordinary accused criminals awaiting trial." Hu Yau--Leung v. Soscia, 649 F.2d 914, 920 (2d Cir. 1981) (citing Wright v. Henkel, 190 U.S. 40, 62 (1903); Beaulieu v. Hartigan, 554 F.2d 1 (1st Cir. 1977)). "Unlike the situation for domestic crimes, there is no presumption favoring bail. The reverse is rather the case." Beaulieu v. Hartigan, 554 F.2d at 2. The court may grant bail only where "special circumstances" exist, and the party seeking release on bail has the burden of showing that such circumstances are present. See Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989); see also Duca v. United States, No. CV--95--713, 1995 WL 428636, at *15 (E.D.N.Y. July 7, 2005) ("Under the special circumstances standard, admission to bail should be an unusual and extraordinary thing, and courts should exercise the power sparingly." (internal citations and punctuation omitted)). In addition, she must show that she is "neither a risk of flight nor a danger to the community." United States v. Ramnath, 533 F. Supp. 2d 662, 665 (E.D. Tex. 2008). I will discuss each of these elements as it applies to this action in turn.

A. Special Circumstances The trial judge has discretion to decide what constitutes special circumstances, and the "list of potential 'special circumstances' is not limited to those previously recognized in published decisions[,]" as such decisions are merely instructive. In re Extradition of Gonzalez, 52 F. Supp. 2d 725, 736 (W.D. La. 1999) (citing Beaulieu, 554 F.2d at 1). However, it is worth noting that courts have held that special circumstances present where the relator has:

(1) raised substantial claims which have a high probability of success on the merits; (2) suffered a serious deterioration of health; (3) shown that there is an unusual delay in the appeals process; (4) shown that the extradition proceeding will be unusually long and complex; (5) shown that the requesting country would grant bail in a comparable extradition case; and (6) shown by clear and convincing evidence that bail is available for the substantive offense in the requesting country.

Duca, 1995 WL 428636, at *15 (citing In re Extradition of Nacif--Borge, 829 F. Supp. 1210, 1216--19 (D. Nev. 1993)). In addition, "[r]elated to the issue of delay in extradition proceedings, courts have found special circumstances when 'there is a lack of any diplomatic necessity for denying bail.'" United States v. Castaneda-Castillo, 739 F. Supp. 2d 49, 56 (D. Mass. 2010) (citing In re Extradition of Chapman, 459 F. Supp. 2d 1024, 1027 (D. Haw. 2006)). In this case, Kapoor argues that a number of factors collectively constitute special circumstances, including lack of diplomatic ...

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