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United States v. Nascimento

United States District Court, M.D. Florida

November 8, 2019

UNITED STATES, Plaintiff,
v.
JOSE BATISTA DO NASCIMENTO, Defendant.

          ORDER

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

          This cause came before the Court on a Detention Hearing held on October 30, 2019. Defendant has requested bond pending his extradition hearing.

         I. BACKGROUND.

         In 2012, Defendant was convicted of the attempted murder of his wife's alleged paramour in Brazil by an unknown gunman who posed as a mail courier and shot the victim multiple times. Defendant attended his trial in Brazil. Defendant was sentenced to ten years imprisonment. Defendant appealed his conviction and sentence and returned to the United States after his trial. Defendant exhausted all appeals and the court in Brazil issued a warrant for his arrest in 2014. An initial request for extradition was submitted to the United States Department of State on July 15, 2015, indicating Defendant was imprisoned in Washington, D.C. Doc. No. 1-1 at 3, 5. On August 16, 2018, a supplemental request for extradition was submitted to the Department of State. Doc. No. 1-1 at 3, 6. On October 1, 2019, a Complaint was filed for the extradition of Defendant to Brazil based on the supplemental extradition request submitted by the government of Brazil to the Department of State. Doc. No. 1. On October 3, 2019, an arrest warrant was issued. Doc. No. 4. On October 7, 2019, Defendant was arrested in Kissimmee, Florida. Doc. No. 11. Defendant is currently being detained at the Orange County Jail.

         On October 30, 2019, a Detention Hearing was held before the undersigned. Defendant requests release pending his extradition hearing based on a confluence of special circumstances including his medical conditions, the adequacy of care he is receiving while detained, the length of time it will take to extradite him, and the length of time it has taken Brazil to seek extradition. Defendant and his son Bruno Nascimento testified regarding Defendant's health issues and concerns regarding the adequacy of his care while incarcerated. Bruno also testified about the prison conditions in Brazil. A letter from an attorney in Brazil and certain articles were introduced.

         II. APPLICABLE LAW.

         Extradition is a diplomatic process, neither civil nor criminal, and it is governed by the relevant extradition treaty and the federal extradition statute. 18 U.S.C. §§ 3181-3196; In re Headley, No. 18-mc-81148, 2018 U.S. Dist. LEXIS 174201, at *18 (S.D. Fla. Oct. 10, 2018); In re Gohir, No. 2:14-mj-314, 2014 U.S. Dist. LEXIS 69769, at *18 (D. Nev. May 21, 2014). There is a presumption against bail in an extradition case because the United States has an obligation to deliver the person after he is apprehended, and “granting bond could make that obligation impossible to fulfill.” In re Headley, 2018 U.S. Dist. LEXIS 174201, at *19; Wright v. Henkel, 190 U.S. 40, 62-63 (1903). As such, the Bail Reform Act does not apply to extradition proceedings. 18 U.S.C. §§ 3141(a), 3142, 3156(a)(2); In re Headley, 2018 U.S. Dist. LEXIS 174201, at *19. Instead, the burden rests with the defendant to show that he is: 1) neither a flight risk nor a danger to the community; and 2) special circumstances warrant release. Leiva v. Wilson, No. 17-23938-CIV, 2018 U.S. Dist. LEXIS 229154, at *7 (S.D. Fla. Aug. 27, 2018); In re Headley, 2018 U.S. Dist. LEXIS 174201, at *20-21; United States v. Valentino, No. 4:18-mj-146, 2018 U.S. Dist. LEXIS 79745, at *6 (S.D. Tex. May 11, 2018); In re Extradition of Garcia, 761 F.Supp.2d 468, 472-73 (S.D. Tex. 2010). Of the three components, those most critical to this analysis are whether there is a risk of flight and whether special circumstances exist. In re Extradition of Garcia, 761 F.Supp.2d at 474-75 (compiling cases and noting that some courts consider “danger to the community” in a cursory fashion, some courts fail to discuss it after noting it as an issue, and still others do not address it all).

         The determination of special circumstances is left to the sound discretion of the trial judge. Valentino, 2018 U.S. Dist. LEXIS 79745, at *7 (citing United States v. Ramnath, 533 F.Supp.2d 662, 666 (E.D. Tex. 2008)). “Special circumstances can arise under a variety of conditions, or by virtue of a combination of conditions that taken together create a compelling case for release on bail.” Id. at *6. Special circumstances may include an appellant's high probability of success on substantial claims, a serious deterioration of health while incarcerated, or an unusual delay in the appellate process. Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989). Other considerations include the age of the defendant, availability of bail in the requesting state, likelihood of defendant being found non-extraditable, and deprivation of religious practices while incarcerated. Valentino, 2018 U.S. Dist. LEXIS 79745, at *7. Special circumstances will be found only where justification for release is clear. In re Headley, 2018 U.S. Dist. LEXIS 174201, at *21. “Courts consistently agree that special circumstances are supposed to be limited to the most extraordinary circumstances and cannot involve factors applicable to all potential extradites.” Id. at *19-20 (quoting In re Shaw, No. 14-mc-81475, 2015 U.S. Dist. LEXIS 18376, at *14 (S.D. Fla. Feb. 6, 2015)).

         While a defendant bears the burden of demonstrating both special circumstances and no risk of flight, there is no consensus on the appropriate standard of persuasion -- preponderance of the evidence or clear and convincing evidence. Compare In re Extradition of Nacif-Borge, 829 F.Supp. 1210, 1215 (D. Nev. 1993) (finding that the Ninth Circuit adopted a heightened standard of proof in Salerno); In re Extradition of Nezirovic, No. 7:12-mc-39, 2012 U.S. Dist. LEXIS 165136, at *11 (W.D. Va. Nov. 19, 2012) (finding that the majority of courts have adopted the clear and convincing standard and finding the higher threshold created by special circumstances and risk of flight necessitates a higher standard of persuasion)[1] with In re Garcia, 761 F.Supp.2d at 474-75 (there is a negligible minority of courts that have adopted the preponderance of the evidence standard); In re Santos, 473 F.Supp.2d 1030, 1035 n. 4 (C.D. Cal. 2006) (finding that there was no reason to read a heightened burden of persuasion into these cases). The court in Nacif-Borge observed that the plain meaning of “special circumstances” and the language used by the courts in applying the special circumstances standard justifies the application of the clear and convincing standard. 829 F.Supp. at 1215. The court in In re Santos rejected the reasoning in Nacif-Borge and applied a preponderance of the evidence standard, essentially finding that the qualitatively different requirements of “special circumstances” did not necessitate a high standard of persuasion as well. 473 F.Supp.2d at 1035 n. 4 However, the court noted that Nacif-Borge's analogy to the Bail Reform Act was misplaced in Santos because Santos had not been criminally convicted and two of the warrants issued for his arrest had been invalidated by Mexican courts. Id. The Court will apply the clear and convincing standard as it is the majority approach, but even if preponderance of the evidence was the applicable standard, Defendant has failed to satisfy it.

         III. ANALYSIS.

         Defendant cites to three special circumstances that support his claim for release pending his extradition hearing: 1) his health and the medical care he is receiving while incarcerated; 2) Brazil's delay in seeking his extradition; and 3) the length of time it will take for the extradition process to be completed. Defendant also argues that he is not a flight risk or a danger to the community.

         A. Defendant is a flight risk and danger to the community.

         Defendant is 65 years of age, was born in Brazil, but is a U.S. citizen. Defendant moved to Miami, Florida in 1991 and then to Orlando, Florida in 2014. Defendant resides with his current wife and her two minor children in Kissimmee, Florida. Defendant has three children from previous relationships who reside in: Brazil; San Diego, California; and Miami, Florida. Defendant does not have a passport as it was seized for child support arrearages. Defendant works as a driver for Uber and Lyft.

         Defendant has resided in Florida since 1991 and has ties here. Defendant traveled to Brazil for his trial before returning to Florida. Defendant's appeals are exhausted and he is facing a ten year prison sentence in Brazil that could exceed his remaining life span. Defendant provided testimony and evidence regarding the substandard prison conditions in Brazil, which would provide a reason for Defendant to flee rather than submit to extradition at this point. The Court finds that Defendant poses a risk of flight that cannot be eliminated through any release conditions. See In re Garcia, 761 F.Supp.2d at ...


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