United States District Court, M.D. Florida
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE
cause came before the Court on a Detention Hearing held on
October 30, 2019. Defendant has requested bond pending his
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
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.
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).
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)).
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) 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
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.
Defendant is a flight risk and danger to the
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.
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 ...