Opinion
Case No. 20-mj-00150-SKC
10-10-2020
IN THE MATTER OF THE EXTRADITION OF MICHAEL ALAN BRENNER, Relator.
ORDER OF DETENTION
This matter comes before the court on the matter of detention pending the extradition proceedings for the Relator Michael Alan Brenner, currently set before this Magistrate Judge on December 11, 2020. This court has jurisdiction to consider the issue of detention pursuant to 28 U.S.C. § 3184 and Local Criminal Rule 57.1(b)(8) that provides that a magistrate judge may "exercise powers and duties necessary to extradite fugitives under 18 U.S.C. §§ 3181-96." D.C.COLO.LCrR 57.1(b)(8).
18 U.S.C. § 3184 provides:
Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181 (b), any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181 (b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate judge, to the end that the evidence of criminality may be heard and considered. Such complaint may be filed before and such warrant may be issued by a judge or magistrate judge of the United States District Court for the District of Columbia if the whereabouts within the United States of the person charged are not known or, if there is reason to believe the person will shortly enter the United States. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181 (b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. (emphasis added).
BACKGROUND
On September 24, 2020, the United States of America ("United States") filed a Complaint pursuant to 18 U.S.C. § 3184 for the extradition of Relator Michael Alan Brenner ("Relator" or "Dr. Brenner") to Canada, to face charges reflected in two Informations. [#1]. In the first Information, Relator is charged with one violation each of the Criminal Code of Canada §§ 264(2)(b) (criminal harassment); 162.1 (publication of intimate images without consent); and 264.1 (uttering threats) ("Information-1"). [Id. at 2]. The second Information charges Dr. Brenner with unlawful importation of a firearm ("Information-2"). [Id.]. According to the Complaint, on November 9, 2018, a Justice of the Peace in Ontario, Canada issued a warrant for Dr. Brenner's arrest for the charges reflected in Information-1. [Id.]. On May 8, 2018, a Justice of the Peace in Ontario, Canada issued a warrant for Dr. Brenner's arrest for charges reflected in Information-2. [Id. at 5].
Relator was arrested and brought before this court on September 29, 2020. [#6]. After the appointment of counsel, Relator moved, and this court granted, a continuance to his detention hearing. [#10; #11]. Relator also requested that the United States Probation Office conduct a pretrial release interview and prepare a memorandum. [#15]. Although there is no obligation to do so, this court granted Relator's request and received a Pretrial Services Report on Relator. On October 5, 2020, Dr. Brenner filed a Motion for Release on Bond. [#12]. The United States filed a Response on October 5, 2020 [#14], along with a "Notice to the Court Regarding the Legal Framework for Extradition." [#13]. The court held a detention hearing on October 9, 2020. [#16]. Having reviewed the Parties' submissions, the applicable case law, and the entire court docket, this court finds no special circumstances warranting Dr. Brenner's release pending his extradition hearing. Accordingly, the Motion for Release on Bond [#12] is DENIED and this court ENTERS this Order of Detention.
LEGAL STANDARDS
The statute that governs international extradition matters does not provide for bail. 18 U.S.C. § 3184. As all Parties acknowledged, there is a long-standing presumption against bail in extradition proceedings, absent special circumstances. Wright v. Henkel, 190 U.S. 40, 42 (1903). The traditional rationale for the presumption is that the individual, if released, could abscond, leading to serious embarrassment to the United States and a potential that reciprocating foreign countries would not honor this country's extradition requests. See In re Extradition of Orozco, 268 F.Supp.2d 1115, 1117 (D. Ariz. 2003). While courts determine whether special circumstances exist on a case-by-case basis, it is clear that it is not the same standard nor analysis as under the Bail Reform Act that applies to criminal proceedings in federal court. See e.g. United States v. Hills, 765 F.Supp. 381, 385 n. 5 (E.D.Mich.1991) (observing that "several courts have expressly held that ... the provisions of the Bail Reform Act do not apply in extradition actions") (citations omitted).
Though not precisely defined, courts have consistently found that to prevail on a request for bond, the Relator must establish both special circumstances and that the person will not flee or pose a danger to another person or to the community. See In re Extradition of Garcia, 761 F. Supp. 2d 468, 470 (S.D. Tex. 2010); Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210, 1215 (D. Nev. 1993); Matter of Extradition of Headley, No. 18-MC-81148-UNA, 2018 WL 4938553, at *6 (S.D. Fla. Oct. 10, 2018). Although the United States Court of Appeals for the Tenth Circuit ('Tenth Circuit") has not defined "special circumstances," other circuits have observed that special circumstances include the raising of substantial claims upon which the appellant has a high probability of success, a serious deterioration of health while incarcerated, and unusual delay in the appeal process. See, e.g., United States v. Kin-Hong, 83 F.3d 523, 524 (1st Cir. 1996); Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989). District courts have summarized the types of circumstances under which bond has been permitted pending the extradition hearing to also include when the extraditee has shown the extradition proceeding will be unusually long and complex; the extraditee has shown the country seeking extradition would grant bail in a comparable extradition case dealing with an equivalent charge; and the extraditee has shown by clear and convincing evidence bail is available for the substantive offense in the country seeking extradition. See In the Matter of the Extradition of Kamel Nacif-Borge, 829 F. Supp. at 1216-19. Courts have consistently made clear that special circumstances cannot involve factors applicable to all potential extraditees. See In re Extradition of Garcia, 761 F. Supp. 2d at 472.
ANALYSIS
I. Appropriate Framework
As an initial matter, the court first turns to Relator's argument made during oral argument (but not clearly reflected in the Motion for Release on Bond) that the United States must establish that the individual presents a risk of flight before its treaty obligations to detain an individual pending extradition hearing attach. This court respectfully declines to adopt such a standard. As articulated by the United States Supreme Court more than a hundred years ago, the obligation of the United States under extradition treaties is to deliver the extraditee to the foreign government so that the foreign government may pursue criminal action against that individual. Wright, 190 U.S. at 62. Accordingly, a presumption of detention attaches due to the nature of the proceeding, not upon a showing of risk of flight particularized to the criminal Relator. See United States v. Hills, 765 F. Supp. 381, 384-85 (E.D. Mich. 1991) (observing that "[t]he rationale for distinguishing pretrial release in extradition cases from domestic criminal cases in which pretrial liberty is the norm is that extradition proceedings involve the Government's overriding foreign relations interest in complying with treaty obligations and producing extradited persons.").
Analogously, there is a presumption of detention for certain offenses under the Bail Reform Act based upon the nature of certain charges. See 18 U.S.C. § 3142(e).
Given the long-standing presumption against release, and the observation that release pending an extradition hearing is "unusual and extraordinary," see United States v. Kollmar, No. 19MJ70677MAG1KAW, 2019 WL 2163005, at *2 (N.D. Cal. May 17, 2019), this court finds that the Relator must establish his entitlement to bond by clear and convincing evidence. See In re Extradition of Maniero, 950 F. Supp. 290, 294 (S.D.Cal. 1996). Nevertheless, this court expressly concludes that even under a lower preponderance of evidence standard, it would still find detention appropriate.
II. Special Circumstances
The court now turns to whether the Relator has established special circumstances that warrant his release pending the extradition hearing in this matter. Upon review of the record before it, this court finds that Relator has failed to carry his burden of establishing special circumstances.
Risk of Flight. Relator first argues that he demonstrates special circumstances by establishing that he does not present a risk of flight. But as previously discussed, risk of flight is distinct from special circumstances. See, e.g., Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir. 1993) (distinguishing flight risk from special circumstances); United States v. Taitz, 130 F.R.D. 442, 444 (S.D. Cal. 1990) (finding that special circumstances must exists in addition to the absence of risk of flight). Accordingly, this court reserves its substantive consideration of the risk of flight presented by Dr. Brenner for a separate inquiry.
Danger to the Community. Relator next argues that he is not a danger to the community. But again, the assessment of danger to the community is distinct from special circumstances. See United States v. Taitz, 130 F.R.D. 442, 444 (S.D. Cal. 1990) ("special circumstances must exist in addition to absence of risk of flight"). Again, this court reserves its substantive consideration of Dr. Brenner's danger to others and to the community for a separate inquiry.
Availability of Bail. Next, Dr. Brenner argues that special circumstances exist because bail would be available under state, federal, and Canadian law. But the Relator cites no authority, and this court did not find any, that suggests that the availability of bail in domestic matters is relevant to whether special circumstances exist to justify bond in an extradition context. See [#12 at 7-8]. Indeed, the presumption in favor of release reflected in both Colorado and federal criminal law simply does not apply to extradition proceedings, which are not criminal cases but rather are creatures of foreign policy and diplomacy. In re Extradition of Robertson, No. 11-MJ-0310 KJN, 2012 WL 5199152, at *3 (E.D. Cal. Oct. 19, 2012) (citing Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir.2008)) (observing that extradition from the United States is a diplomatic process); Matter of Extradition of Maniero, 950 F. Supp. 290, 293 (S.D. Cal. 1996) (observing that extraditions are not criminal cases).
As for whether Dr. Brenner establishes by clear and convincing evidence that bail is available for the substantive offenses for which he is charged in Canada, this court finds that his arguments do not amount to evidence - either clear and convincing or a preponderance. While he points to legal principles that Canadian law favors bond, he articulates no factual basis nor cites to any interpreting law that indicates a Canadian court would release him on conditions. [#12 at 9-10]. He offers no expert opinion as to the application of Canadian law to his particular circumstances. [Id.]. Though he concedes that because he does not ordinarily reside in Canada, he would be subject to a rebuttable presumption of detention, he insists that he would be able to rebut that presumption "for the reasons stated herein." [Id. at 10]. But absent any evidence, such as an expert opinion or persuasive case law, this court cannot conclude, based solely on attorney argument, that Dr. Brenner has established that under Canadian law he would be entitled to bond.
COVID-19 and Asthma. Finally, Dr. Brenner contends that his preexisting condition of asthma and the current COVID-19 pandemic constitute special circumstances justifying his release pending his extradition hearing. Courts have found special circumstances presented by health concerns including COVID-19. See, e.g., Matter of Extradition of Toledo Manrique, 445 F. Supp. 3d 421, 423 (N.D. Cal. 2020). Though this court accepts his representation that he suffers from asthma on its face, it notes that Dr. Brenner has submitted no medical records or statements from physicians that reflect the severity of his asthma or opine as to the risk particular to him with respect to COVID-19. See In re Extradition of Garcia, 761 F. Supp. 2d at 472. And while this court in no way minimizes the threat of COVID-19 to detained individuals, or to Dr. Brenner, it finds that the record simply does not reflect sufficient evidence of risk to constitute special circumstances. See Taylor v. McDermott, No. 4:20-CV-11272-IT, 2020 WL 4569693, at *8 (D. Mass. Aug. 7, 2020) (finding no special circumstances even in light of additional evidence regarding relator's particular vulnerabilities to COVD-19).
Having found no special circumstances, this court is not required to consider either risk of flight or danger to the community. Matter of Extradition of Headley, 2018 WL 4938553, at *8. But for the sake of completeness, this court briefly discusses both the risk of flight and danger to the community.
II. Risk of Flight
Dr. Brenner contends that he poses no risk of flight because he is a United States citizen who has lived his entire life in this country; he continued to live openly in the United States even after being informed of the charges and an arrest warrant in Canada and made no attempt to flee; he has gainful employment through United Healthcare; and he has an unrelated, ongoing civil litigation in the District of Colorado. [#12 at 5-7]. He continues that even if this court were to find some minimal risk of flight, such risk could be mitigated by conditions of release including the forfeiture of his passport; GPS monitoring; and supervision by the United States Probation Office. [Id. at 6-7]. The United States points to the recommendation of detention by the Probation Office; Dr. Brenner's evasiveness as to his financial status; his two siblings that live in foreign countries (the United Kingdom and China); and the seriousness of the charges against him all provide incentive and opportunity for him to flee. [#14].
Based on the record before it, this court is not persuaded that Dr. Brenner has carried his burden with respect to risk of flight. Relator has limited ties to the District of Colorado, having only moved here approximately two years ago. There is no indication that he has family or other significant relationships here. Apart from two siblings in foreign countries, Relator's parents both live outside of this District. There is also no indication that Dr. Brenner owns property in this District, or that his employment requires him to be physically present in Colorado. While counsel may be correct that these facts might not warrant detention in a criminal proceeding where the presumption favors release, they also do not suggest an absence of risk of flight. And to the extent that Relator suggests that this court can properly mitigate the risk of flight by imposing conditions such as supervision by the United States Probation Office and/or GPS monitoring, this court is disinclined to divert already-limited resources intended for defendants in the federal criminal justice system to an extradition proceeding that falls outside of such system.
Risk of Danger to Another or to the Community. Finally, this court addresses Relator's argument that he does not pose a risk of danger to another or to the community. Dr. Brenner argues that his lack of criminal history; the length of time between the alleged acts underlying the charges and his arrest; the cessation of contact between him and the alleged victim; the lack of any allegations of violence; and the lack of a nexus between acts alleged by the two Informations establish that he is not a risk of danger to another or to the community. [#12 at 7]. The United States argues that he does pose a risk of danger based on his firearm charges reflected in Information-2, and the alleged threats of physical harm to the Victim and her family members. [#14 at 12-13].
This court agrees that Dr. Brenner's lack of criminal history both before and after the actions alleged in the Informations militates against a finding of danger to the community. But this court cannot ignore the substance of the alleged threats against the Victim or her family despite the lack of actual violence. In particular, the Complaint alleges that Dr. Brenner told the Victim's sister to kill herself; he encouraged the Victim to commit suicide; he threatened to "destroy her"; and that even after contacted by the Canadian authorities, he sent the Victim text messages, including "I will piss on your grave before this is over," "I'd kill you myself but I wouldn't want to give you the satisfaction," and "if it wasn't for your kids you'd be a dead woman." [#1 at 3-4]. These types of statements are not simply indicia of a "bad break up." [#12 at 2]. Rather, they lie at the heart of the charges brought against Dr, Brenner as reflected in Information-1 and Dr. Brenner has not identified sufficient evidence to establish that he poses no continued risk to the Victim or her family.
The court notes that courts and scholars have consistently recognized the number of assaults between intimate partners, or former intimate partners, is significant. See, e.g., United States v. Chapman, 666 F.3d 220, 229-30 (4th Cir. 2012) (reflecting statistics regarding the rate of domestic violence in the United States); Alexandra Pavlidakis, Mandatory Arrest: Past Its Prime, 49 Santa Clara L. Rev. 1201, 1235 (2009) (referring to results from the National Violence Against Women survey given in 2000 indicated that violence perpetrated against women by their intimate partners is often in conjunction with emotionally controlling and abusive behavior.). --------
CONCLUSION
For all these reasons, this court respectfully ORDERS that:
(1) Michael Alan Brenner's Motion for Release on Bond [#12] is DENIED; andDATED: October 10, 2020
(2) Michael Alan Brenner be DETAINED pending his Extradition Hearing set for December 11, 2020.
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge