Opinion
Case No.: 1:22-MC-29
2022-09-01
IN RE: the Matter of EXTRADITION OF Brian Casey MITCHELL
Andrew R. Cogar, U.S. Attorney's Office, Clarksburg, WV, for United States of America. Brian J. Kornbrath, Federal Public Defender Office, Clarksburg, WV, for In the Matter of the Extradition of Brian Casey Mitchell.
Andrew R. Cogar, U.S. Attorney's Office, Clarksburg, WV, for United States of America. Brian J. Kornbrath, Federal Public Defender Office, Clarksburg, WV, for In the Matter of the Extradition of Brian Casey Mitchell. CERTIFICATION OF EXTRADITION AND COMMITTAL OF BRIAN CASEY MITCHELL MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
The question presented is whether this Court should certify to the Secretary of State that it is appropriate, pursuant to Title 18, United States Code, Section 3184 et seq., and the relevant treaty, to extradite Brian Casey Mitchell ("Mitchell") to the Hellenic Republic ("Greece") pursuant to an extradition request from that country.
After considering the testimony, written submissions, and arguments of the parties, the Court FINDS that (1) the Court has jurisdiction over extradition proceedings and over Mitchell; (2) the undersigned U.S. Magistrate Judge is authorized to conduct this extradition proceeding; (3) the extradition treaty between the United States and Greece is in full force and effect; (4) the conduct alleged is covered by the treaty and would have been criminal if committed in the United States; and (5) there is probable cause sufficient to support the allegations of the offense for which extradition is sought. The Court further FINDS that, despite Mitchell's contentions, Sixth Amendment constitutional protections do not serve to prohibit extradition.
Regarding the matter of detention, the Court FINDS that Mitchell should be detained pending extradition or any further proceedings because he has not met his burden to overcome the presumption against bail that exists in extradition proceedings.
For the reasons set forth herein, because there is "evidence sufficient to sustain the charge [against the fugitive-extraditeé] under the provisions of the proper treaty or convention," 18 U.S.C. § 3184, the Court FINDS and ORDERS that the matter of extradition shall be certified to the Secretary of State, that certified copies of this Order and the testimony heard be sent to the Secretary of State, and that Brian Casey Mitchell be committed to the custody of the United States Marshal pending final disposition of this matter by the Secretary of State and the arrival of agents of Greece. Upon their arrival, the United States Marshal shall transfer Mitchell to the custody of the agents of Greece at a mutually agreeable time and place.
I. FACTUAL BACKGROUND
As alleged in the Complaint and supporting documents, on October 16, 2011, a Danish woman and her daughter traveled to Rethymnon, Greece, for a vacation. ECF No. 1-1 at 85. On the evening of October 17, 2011, and into the early morning hours of October 18, 2011, the two women went to a few nightclubs together and then separated. Id. at 85, 88. The Danish woman was on a street looking for her daughter when Mitchell approached and offered his assistance in finding the woman's daughter. Id. at 85. Instead, Mitchell and the woman returned to his residence, where Mitchell allegedly used physical force to rape the woman. Id. The woman alleges that as she attempted to access a telephone in the room to call for help, Mitchell physically stopped and restrained the woman and attempted to rape her a second time. Id. The woman struggled with Mitchell and escaped the residence after biting him in the chest. Id.
See ECF No. 1 and 1-1. These documents were sealed by the Court, with access given only to case participants, in order to protect the personal identifiers of the Danish victim as provided by the E-Government Act of 2002, Fed. R. Crim. P. 49.1, and LR Gen. P. 5.08 for the Northern District of West Virginia. Certified physical copies of the extradition documents were provided to the Court on August 26, 2022, in compliance with Article XI of the applicable Treaty (as amended by Article 2 of the 2006 Treaty Protocol). ECF No. 25.
The woman reported the rape to local law enforcement and gave a sworn statement on October 18, 2011. Id. When shown a photograph of the Greek basketball team for which Mitchell played, the woman identified Mitchell as the person who raped her. Id. at 201 ("I absolutely recognize that person to be the man that raped me[.]"). The woman identified the building, and particularly Room 405, where Mitchell resided, or the room next door, as the place where she was raped. Id. at 90, 94. Local authorities found the woman's belongings in a nearby corridor on the same floor, and the building manager confirmed Mitchell lived in Room 405 on the day of the rape. ECF No. 1-1 at 89-90.
According to a forensic report dated November 9, 2011, a medical examination found redness at the entrance of the woman's vagina and scratches and bruises on her body. The woman reported that Mitchell ejaculated inside her without a condom, but semen was not detected. In a later report, the examining physician in the Forensic Medical Service of Crete noted that "[t]he failure to detect male genetic material in the examined sample of the vaginal swab of the above-named female may be due to either the use of condom or the lapse of several hours since the incident until the moment of examination." ECF No. 1 at 3.
Thereafter, Greek law enforcement attempted to locate Mitchell by calling his last known telephone number on or before November 11, 2011, but they discovered his mobile phone had been deactivated. Id. at 94. Law enforcement also contacted the manager of the basketball team Mitchell has been playing for in Greece, but the manager could not locate Mitchell to inform him that police were looking for him. Id.
On November 1, 2012, Greek authorities contacted INTERPOL. INTERPOL and INTERPOL USA could not verify Mitchell's whereabouts in the United States or any other country. Id. at 53-54, 80, and 159.
On January 14, 2013, the police unsuccessfully attempted to serve a copy of the indictment to Mitchell's last known address in Rethymnon, Room 405, where the alleged rape occurred. ECF No. 1-1 at 42, 81.
On October 7, 2013, the Deputy District Attorney for the Court of First Instance in Rethymnon, by Order, summonsed Mitchell to appear before the court.
On October 9, 2013, the Court of First Instance in Rethymnon issued a subpoena for Mitchell's appearance. The subpoena was served at Mitchell's last known Greek address, as provided in Mitchell's prior sports services employment contract. On October 18, 2013, following Mitchell's non-appearance under the summons and subpoena, an arrest warrant was issued for Mitchell.
The information that Mitchell had returned to the United States or traveled to another country was unconfirmed by INTERPOL and INTERPOL USA, and his location remained unknown as of October 18, 2013. ECF No. 1-1 at 54-55.
On November 30, 2013, the laboratory reports and medical opinion on evidence sent for examination were returned from Athens, Greece. ECF No. 1-1 at 64-73.
On December 30, 2013, a grand jury sitting within the Court of Appeal of Crete returned an indictment and affirmed an arrest warrant against Brian Casey Mitchell for the offense of rape in violation of Article 336(1) of the Greek Criminal Code. ECF No. 1-1 at 41.
On January 1, 2014, Mitchell's whereabouts remained unknown to Deputy District Attorney of the Court of First Instance Rethymnon. ECF No. 1-1 at 83.
On October 8 2020, INTERPOL USA advised INTERPOL Greece that Mitchell's location was detected in the United States. Id. at 36.
On November 16, 2020, the Greek authorities began the process of requesting Mitchell's extradition from the United States. Id. at 31. On December 9, 2020, the Embassy of Greece submitted Diplomatic Note No. F.683.1/MITCHELL/2450 formally requesting the extradition of Brian Casey Mitchell. ECF No. 1-1 at 4. In November 2021 and February 2022, the Embassy of Greece provided supplemental information supporting its extradition request. Id. at 5-6, 178-208.
II. PROCEDURAL BACKGROUND
On August 8, 2022, the United States Government ("the Government"), by Assistant United States Attorney, Andrew R. Cogar, filed a Complaint in this matter, in fulfilling its treaty obligation to Greece, pursuant to the Greek Government's request for extradition of Brian Casey Mitchell. ECF No. 1.
Brian Casey Mitchell was arrested on August 11, 2022. ECF Nos. 6, 7. The Government then filed its Memorandum of Extradition Law and Request for Detention Pending Extradition Proceedings. ECF No. 5. An Initial Appearance occurred on the same day, wherein Mitchell was made aware of the charges pending against him in Greece and the corresponding request for extradition. ECF No. 7. Based upon the Government's motion for detention, the Court ordered that Mitchell be temporarily detained pending further extradition proceedings. ECF No. 10. The Court, by Order, appointed Federal Public Defender Brian J. Kornbrath to represent Mitchell in this matter. ECF No. 13.
An Extradition Hearing and Detention Hearing were scheduled for August 15, 2022, ECF No. 11, but were subsequently rescheduled to August 22, 2022, by Order of the Court, ECF No. 15, based upon Mitchell's Motion to Continue. ECF No. 14.
On August 16, 2022, Mitchell, by counsel, filed a Motion to Dismiss and Deny Request for Extradition, ECF No. 16, and Motion for Release on Bond, ECF No. 17. On the same date, the Court directed that the Government file a response to Mitchell's Motion to Dismiss and Deny Request for Extradition on or before August 19, 2022, at 12:00 PM noon. ECF No. 18.
On August 18, 2022, the Government filed its Response in Opposition to Fugitive's Motion to Dismiss and Deny Extradition. ECF No. 19.
On August 22, 2022, Brian Casey Mitchell appeared before the Court, in person and by counsel, Brian J. Kornbrath, as did Assistant United States Attorney for the Northern District of West Virginia, Andrew R. Cogar, for and on behalf of the Government of Greece, pursuant to the request for the extradition to Greece of Brian Casey Mitchell.
An archived audio recording of the August 22, 2022 proceedings can be located on the section of the Court's internet site for FTR Recordings. See Tape #cbg aloi in re brian casey mitchell 1 22 mc 29 8222022.
Mitchell, by counsel, called witnesses to testify to his character and involvement in the community. Mitchell first called Larry Donnell Harrison ("Harrison"), Associate Basketball Coach for West Virginia University ("WVU"), to testify. Harrison testified that he has known Mitchell and Mitchell's family since 2007, when Harrison first began his efforts to recruit Mitchell to play basketball for WVU. Harrison testified that he developed a close relationship with Mitchell and his family over the years and has maintained regular contact with them ever since. Harrison testified that Mitchell had no legal problems and was fully compliant with the basketball program's requirements at WVU. Harrison testified that he maintained contact with Mitchell even after Mitchell left WVU and went to Europe to pursue his overseas basketball career in Greece, Germany, Slovenia, and Israel. Harrison testified that Mitchell played basketball overseas from 2011-2014 and that WVU strives to keep in contact with basketball players even after they finish their time at the university.
Harrison testified that after finishing his professional basketball career, Mitchell reconnected with Harrison via telephone and expressed his desire to finish his college education and obtain a degree. Harrison testified that Mitchell is only six credits away from receiving his bachelor's degree. Harrison testified that Mitchell returned to the greater Morgantown, West Virginia area two years ago and worked with Harrison and others to set up a plan for his return to college. Harrison testified that Mitchell was working on getting a job and getting his finances in check before returning to WVU to finish his degree. Harrison testified it was his understanding that Mitchell works for UPS in Fairmont, West Virginia. Harrison further testified that Mitchell volunteers his time to do individual coaching and training for young basketball players and occasionally speaks to and volunteers with current WVU basketball players.
Harrison testified he does not believe Mitchell is a flight risk because Mitchell has worked to establish a residence and job here in West Virginia, has goals to return to take university classes at WVU, and, since returning to the area, has had weekly or biweekly contact with Harrison.
On cross-examination, Harrison clarified that while Mitchell may have had a suspension from games in his senior year, that is not uncommon among players and can occur for a myriad of reasons. Harrison testified that overall, Mitchell was a good player and presented no problems during his time at WVU. Harrison testified that after Mitchell returned to the United States in 2014, the two were in contact "on and off," but the university generally knew where Mitchell was residing. Harrison testified that he believed Mitchell spent some time with an uncle in Savannah, Georgia. Harrison stated he knew that because he had developed a relationship with Mitchell's uncle in his recruitment capacity. Harrison further testified he believed Mitchell worked as a taxi driver for his uncle and on a shrimp boat with his father while Mitchell resided in the Savannah, Georgia, area.
Mitchell, by counsel, next called Dean Shriver ("Shriver"), Center Manager at UPS in Fairmont, West Virginia. Shriver testified that Mitchell is a local supervisor at the Fairmont, West Virginia UPS Center. Shriver testified that Mitchell started employment with UPS within the past year; however, Shriver testified that Mitchell is a quick learner, is doing well as a supervisor, and has not missed a day of work (outside of an occasion where Mitchell had to attend a family member's funeral). Shriver testified that Mitchell has his position waiting for him should he be released. Shriver testified that Mitchell's work as a supervisor keeps him local and working in the Fairmont facility each night and would not require any travel outside of the Northern District of West Virginia.
Counsel for Mitchell requested that the Court take judicial notice of the Pretrial Services Report prepared by the U.S. Probation. Counsel for Mitchell contends that Mitchell is a fine young man with strong ties to the community in North Central West Virginia, including responsible employment, a storied career with WVU Basketball, a girlfriend, Tonya Jackson, who lives locally and who could provide a residence for Mitchell, and a strong relationship with his mentor, Larry Harrison. Counsel for Mitchell asserts that Mitchell has been living openly under his true name, has been working in Fairmont, West Virginia, for the past year, and wants to continue working should he be released. Counsel for Mitchell proffered that Mitchell's passport expired earlier this year, and he does not currently have a valid passport. Counsel for Mitchell noted that Mitchell's NCIC report clearly states the existence of an INTERPOL warrant and expressed confusion and frustration as to why this matter was not brought before a court sooner.
See infra n. 7. See also ECF No. 21-1, Fugitive's Exhibit 1, NCIC Report (filed under seal to protect Mitchell's personal identifiers in compliance with the E-Government Act of 2002, Fed. R. Crim. P. 49.1, and LR Gen. P. 5.08 for the Northern District of West Virginia.).
Counsel for Mitchell argues Mitchell is not a flight risk or danger to the community, and the only allegation before the Court will be eleven years old as of October 2022. Counsel for Mitchell argued that Greece's "excessive delay" in requesting extradition, in this case, constitutes a "special circumstance" warranting his release, particularly when considered alongside Mr. Mitchell's limited criminal history and lack of flight risk.
At the hearing, counsel for Mitchell requested that certified copies of documents in support of the Complaint and the request for extradition be provided to Mitchell, his counsel, and the Court, as required by Article XI of the applicable Treaty (as amended by Article 2 of the 2006 Treaty Protocol), prior to the entry of any order by this Court.
Counsel for Mitchell argued at the hearing that the applicable language of the relevant treaty, particularly the phrase "or other lawful cause," serves to incorporate the Sixth Amendment right to a speedy trial into the treaty. Counsel for Mitchell argued the delay in prosecution in this matter violates the Sixth Amendment, which would justify the dismissal of the Complaint and request for extradition.
Counsel for Mitchell argued that if there is any ambiguity in the proper construction of the applicable treaty, all ambiguity should be construed in favor of the individual facing extradition, as provided in Factor v. Laubenheimer, 290 U.S. 276, 293, 54 S.Ct. 191, 78 L.Ed. 315 (1933) ("For that reason, if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred."). Counsel for Mitchell further argued that the Department of Justice's manuals support an interpretation of the applicable treaty, which provides Sixth Amendment rights to a fugitive-extraditeé. See Section 9-15.100 - International Extradition and Related Matters, Justice Manual, THE U.S. DEP'T. OF JUSTICE, https://www.justice.gov/jm/jm-9-15000-international-extradition-and-related-matters#9-15.100 (last visited Aug. 31, 2022) ("If a fugitive is apprehended only after a long delay, a prosecutor may have to litigate a motion alleging a constitutional speedy trial violation if extradition has not been sought or the Government has not been actively pursuing other steps to return the fugitive to the United States. All decisions to pursue or not to pursue extradition or other measures to obtain custody of the fugitive should be documented to prepare for any eventual speedy trial motion.")
Counsel for the Government further argued, at the hearing, that based upon the written affidavits and statements submitted, including those sworn statements by the victim of the alleged rape, there is ample probable cause to support the underlying charges and certify extradition. Counsel for the Government noted that rape is an offense both under federal law and the laws of West Virginia. Thus, per the Government, these domestic laws criminalize rape much the same way that the laws of Greece do.
Counsel for the Government argued that well-established law does not support the applicability of the Sixth Amendment right to a speedy trial to extradition proceedings. Counsel for the Government disputed the notion that Greece did anything to cause or add to the delay in prosecution in this case; counsel for the Government explained that Greece was unable to move forward with international extradition proceedings because it had no information to confirm Mitchell's whereabouts until 2020, despite repeat inquiries and cooperation with INTERPOL. See ECF No. 1-1 at 52-53 (arrest warrant referring to INTERPOL efforts to locate Mitchell as early as 2012). Counsel for the Government concurred that there is no evidence that Mitchell attempted to evade apprehension or prosecution. Counsel for the Government argued, however, that Greece fulfilled its obligations in attempting to timely locate, prosecute, and extradite Mitchell, despite Mitchell living openly and notoriously.
Counsel for the Government requested the opportunity to file supplemental memoranda regarding the certification of extradition and the matter of Mitchell's detention pending extradition. The Court granted this request and directed that the Government file any and all supplemental briefs on or before August 26, 2022, and further ordered that Mitchell may file briefs in response on or before August 31, 2022. ECF No. 22. The Court further ordered that the Government provide Mitchell and the Court with certified documents in support of the Complaint and request for extradition, including a certified copy of the applicable treaty, on or before August 26, 2022, in compliance with Article XI of the applicable Treaty (as amended by Article 2 of the 2006 Treaty Protocol). Id.
On August 25, 2022, the Government, by counsel, filed a Supplemental Memorandum Regarding Detention. ECF No. 23. The following day, the Government filed a Memorandum in Support of Extradition. ECF No. 24. The Government also provided to the Court certified copies of the documents as directed and in compliance with Article XI of the applicable Treaty (as amended by Article 2 of the 2006 Treaty Protocol). ECF No. 25. See also ECF No. 1-1 at 26.
On the same day, August 26, 2022, counsel for Mitchell filed a Response to Government's Supplemental Memorandum Regarding Detention. ECF No. 26.
III. PARTIES' WRITTEN CONTENTIONS
On August 11, 2022, the Government filed its Memorandum of Extradition Law and Request for Detention Pending Extradition Proceedings. ECF No. 5. The Government asserts that the undersigned U.S. Magistrate Judge has authority to conduct extradition proceedings; this Court has jurisdiction over Mitchell; the applicable treaty between the United States and Greece is in full force and effect; the description of the criminal conduct provided by Greece would be criminal under U.S. federal law, the law of the state where the hearing is held (West Virginia), or the law of a preponderance of the states; and there is probable cause to believe fugitive Mitchell has committed the offense charged by the foreign country.
The Government contends that Mitchell should be detained because he cannot overcome the strong presumption of detention in international extradition cases and cannot show he is not a flight risk, a danger to the community, or that special circumstances warrant his release. The Government specifically argues that Mitchell is a flight risk because he is likely facing ten to fifteen years of incarceration in Greece and argues Mitchell is a danger to the community considering the victim's sworn statements describing the alleged forcible rape.
The Government requests that should "the Court be inclined to grant bail in this case, the government respectfully requests that the Court submit special written findings as to those specific matters that are found to constitute 'special circumstances.' Moreover, to protect the ability of the United States to meet its treaty obligations to Greece, the government also requests that the Court notify the parties within a reasonable amount of time in advance of any contemplated release order so that the United States can consider the matter of whether, under the circumstances, to seek a stay pending possible appeal on the bail issue." ECF No. 5 at 17-18.
On August 16, 2022, Mitchell, by counsel, filed his Motion to Dismiss and Deny Request for Extradition requesting that the Court dismiss and deny the pending extradition request. ECF No. 16. In this motion, Mitchell argues that this case presented an "extraordinary and undue delay between the issuance of Mitchell's indictment in Greece in 2013, and his actual arrest here in the United States in 2022" and that the nine-year delay without factual or legal justification and violates Mitchell's Sixth Amendment right to a speedy trial. Mitchell further argues that the operative language in the 1931 Extradition Treaty between U.S. and Greece functions to incorporate the Sixth Amendment right to a speedy trial, and thus, Mitchell shall not be surrendered where the surrendering country has laws protecting his right to a speedy trial and those rights were violated.
On the same day, Mitchell, by counsel, also filed a Motion for Release on Bond wherein he contends that "special circumstances" exist to support his release and that he is not a flight risk nor a danger to the community. ECF No. 17.
On August 18, 2022, the Government filed its Response in Opposition to Fugitive's Motion to Dismiss and Deny Extradition. ECF No. 19. Within that Response, the Government argues that this Court must deny Mitchell's motion because there is no right to a speedy trial or speedy extradition under either the U.S. Constitution or the extradition treaty between the United States and Greece. The Government distinguishes that extradition hearings are not criminal proceedings and thus argues that the Sixth Amendment right to a speedy trial does not apply. The Government likewise contends there is no due process right under the Fifth Amendment to a speedy extradition process. The Government adds in its argument that the treaty between Greece and the United States should not be interpreted as incorporating any Sixth Amendment right to a speedy trial or extradition, and the Supreme Court's opinions in Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) are inapplicable.
In its Supplemental Memorandum Regarding Detention, the Government supplements its prior filings to argue that any delays between the alleged criminal conduct and the initiation of extradition proceedings, where the statute of limitation has not elapsed, do not serve to relieve the Government of its obligation to surrender Mitchell nor does it constitute a "special circumstance" for the purposes of bond pending extradition. ECF No. 23 at 1-2. The Government further argues that Greece does not have to explain any delay in making its extradition request. Id. at 2. Finally, the Government contends that to the extent a delay in filing the extradition request should factor into the extradition determination, that determination should be left to the Secretary of State. Id. at 3.
In its Memorandum in Support of Extradition, the Government again contends that Greece has submitted more than enough evidence to demonstrate probable cause and to satisfy all other requirements for extradition to be certified to the Secretary of State. ECF No. 24 at 4-5. The Government further argues that the Secretary of State, not the judiciary, is the appropriate entity to consider the defenses a fugitive raises to extradition. ECF No. 24 at 12.
In his Response to the Government Supplemental Memorandum Regarding Detention, Mitchell supplements his argument that a court should read Article V of the 1930 extradition between the United States and Greece leniently as to enlarge the rights of the fugitive. Mitchell further argues that the substantial delay in this extradition process meets the "special circumstances" prong of a release analysis in the context of extradition. Mitchell specifically proffers that during this entire time period, Mitchell has been working and living under his true name and has been traveling by use of a valid U.S. Passport. Mitchell notes that despite the INTERPOL warrant for his arrest, provided within the NCIC report filed by Mitchell at the August 22, 2022 hearing, this arrest warrant has gone unserved for approximately a decade.
See ECF No. 21-1 (NCIC Report) and supra n. 3.
IV. ANALYSIS
A. Certification of Extradition
At an extradition hearing, a court's review is limited to determining whether: (1) the Court has subject matter jurisdiction as well as personal jurisdiction over the fugitive; (2) the judicial officer is authorized to conduct the extradition proceeding; (3) the applicable treaty is in full force and effect; (4) the crimes for which surrender is requested are covered by the applicable treaty; and (5) there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is sought. See Zhenli Ye Gon v. Holt, 774 F.3d 207, 210 (4th Cir. 2014); Mironescu v. Costner, 480 F.3d 664, 665 (4th Cir. 2007); In re Extradition of Exoo, 522 F. Supp. 2d 766, 775 (S.D.W. Va. 2007) (citing Extradition of Garcia, 890 F. Supp. 914, 917 (S.D. Cal. 1994)). See also Hoxha v. Levi, 465 F.3d 554, 560 (3d Cir. 2006).
In its limited capacity, a Court's role is to consider the evidence presented on behalf of the country seeking extradition and determine whether the legal requirements for certification are satisfied. Ordinola v. Hackman, 478 F.3d 588, 597 (4th Cir. 2007); Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000). Evidence heard by a court at an extradition hearing is generally restricted to written submissions, authenticated documentary evidence, and information provided by the requesting government. Yordi v. Nolte, 215 U.S. 227, 232, 30 S.Ct. 90, 54 L.Ed. 170 (1909); Shapiro v. Ferrandina, 478 F.2d 894, 902 (2d Cir. 1973). Moreover, hearsay evidence is admissible at extradition hearings and may fully support the Court's findings leading to a certification of extradition under § 3184. See Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 66 L.Ed. 956 (1922); Hoxha, 465 F.3d at 561.
If the Court finds that the requirements for certification have been met, the Court must furnish a certification to the Secretary of State, together with a copy of any testimony taken before the Court, and must commit the fugitive to the custody of the United States Marshal to await the Secretary's final determination regarding surrender. 18 U.S.C. § 3184; see Ordinola, 478 F.3d at 609 (4th Cir. 2007); Cheung, 213 F.3d at 88.
The Secretary of State, not the Court, ultimately decides whether the United States should surrender the fugitive to the requesting country. 18 U.S.C. §§ 3184, 3186; Plaster v. United States, 720 F.2d 340, 354 (4th Cir. 1983). "This bifurcated procedure reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, such as questions of the standard of proof, competence of evidence, and treaty construction, yet simultaneously implicate questions of foreign policy, which are better answered by the executive branch." United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997).
(1) This Court has jurisdiction and authority over the proceedings and has personal jurisdiction over Brian Casey Mitchell.
(i) Subject Matter Jurisdiction
By federal statute, extradition proceedings may be conducted by "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." 18 U.S.C. § 3184.
Thus, this Court has express authority to hear this extradition matter pursuant to applicable statute and pursuant to the applicable federal treaty. See also 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); and the Treaty of Extradition Between the United States of America and the Hellenic Republic, U.S.-Greece, May 6, 1931, 47 Stat. 2185, as supplemented by the Protocol Between the United States of America and Greece with Respect to the Interpretation of Article I of the Treaty of Extradition of May 6, 1931, U.S.-Greece, Sept. 2, 1937, 51 Stat. 357, and the Protocol to the Treaty on Extradition Between the United States of America and the Hellenic Republic, signed 6 May 1931, and the Protocol thereto signed 2 September 1937, U.S.-Greece, signed Jan. 18, 2006, S. TREATY DOC. NO. 109-14 (2006) (the "2006 Protocol")
(ii) Personal Jurisdiction
This Court has jurisdiction over a fugitive found within its jurisdictional boundaries. 18 U.S.C. § 3184 ("[A judge] may, upon complaint made under oath, charging any person found within his jurisdiction . . . issue his warrant for the apprehension of the person so charged."); Zhenli Ye Gon v. Holt, 774 F.3d 207, 214 (4th Cir. 2014).
Here, Mitchell was arrested within the jurisdictional boundaries for the Northern District of West Virginia on August 11, 2022. Moreover, Mitchell maintains a residence in Morgantown, West Virginia, and works in Fairmont, West Virginia. Accordingly, this Court has personal jurisdiction over Mitchell.
(2) The undersigned judicial officer is authorized under 18 U.S.C. § 3184 , and this Court's local rules, to handle extradition proceedings.
Again, the governing statute explicitly states that magistrate judges have the authority to preside over extradition hearings if authorized "by a court of the United States." 18 U.S.C. § 3184. The Local Rules for the U.S. District Court for the Northern District of West Virginia provide that Magistrate Judges are to conduct extradition proceedings in this Court. LR Civ. P. 72.01(e)(14). Neither party disputes the undersigned's authority or jurisdiction over this extradition proceeding. Thus, the undersigned is authorized to conduct the extradition hearing and enter a dispositive order in this matter.
(3) This Court has a legal duty to enforce the extradition treaty and extradition agreement between the Government of the United States and the Hellenic Republic.
The Government, by Amy Lindsay, an attorney in the Office of the Legal Adviser of the United States Department of State, has provided the Department of Justice with a declaration, which was filed herein, that there is an extradition treaty in full force and effect between the United States and the Hellenic Republic also known as Greece. ECF No. 2-4. A copy of the treaty was also provided to this Court, ECF No. 1-1 at 7-30, and is known as the Treaty of Extradition Between the United States of America and the Hellenic Republic, U.S.-Greece, May 6, 1931, 47 Stat. 2185, as supplemented by the Protocol Between the United States of America and Greece with Respect to the Interpretation of Article I of the Treaty of Extradition of May 6, 1931, U.S.-Greece, Sept. 2, 1937, 51 Stat. 357, and the Protocol to the Treaty on Extradition Between the United States of America and the Hellenic Republic, signed 6 May 1931, and the Protocol thereto signed 2 September 1937, U.S.-Greece, signed Jan. 18, 2006, S. TREATY DOC. NO. 109-14 (2006) (the "2006 Protocol") (collectively referenced hereafter as the "Treaty").
The existence of a treaty which is in full force and effect is not disputed by the parties. Based on Lindsay's declaration, the Court finds that the Treaty is in full force and effect.
(4) The alleged offense is punishable for over one year and similarly punishable in the United States.
The Court must determine whether the crime for which Mitchell is charged is covered by the treaty, and whether the offense for which Mitchell is charged is also a crime within the United States. Zhenli Ye Gon, 774 F.3d at 210. See also Wright v. Henkel, 190 U.S. 40, 61, 23 S.Ct. 781, 47 L.Ed. 948 (1903); and Hu Yau-Leung v. Soscia, 649 F.2d 917, 918 & n.4 (2d Cir. 1981).
Article 1 of the 1931 Treaty obligates the parties to return fugitives who have been charged with or convicted of certain crimes or offenses, provided other provisions of the Treaty are satisfied. Article 1 of the 2006 Protocol, which replaced the list of extraditable offenses in Article II of the 1931 Treaty, defines extraditable crimes or offenses as those that are "punishable under the laws of the requesting and requested countries by deprivation of liberty for a maximum period of more than one year or by a more severe penalty." See Treaty, 2006 Protocol Article 1(A)(1)
The Fourth Circuit has held that
[D]ual criminality is satisfied "if the particular act charged is criminal in both 2 jurisdictions," even if the name of the offense or the scope of the liability was different in the two countries. This language has been broadly accepted as establishing that dual criminality requires only that the offenses in the two countries punish the same basic evil; it does not require that the offenses contain identical elements.Id. at 217 (quoting Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 66 L.Ed. 956 (1922)).
The question is whether the conduct is illegal under United States federal law, the law of the state in which the fugitive was found, or the law of a preponderance of states. See Matter of Extradition of Etouman, 533 F.Supp.3d 312 (2021) (citing Wright v. Henkel, 190 U.S. 40, 60-61, 23 S.Ct. 781, 47 L.Ed. 948 (1903)). Again, a requesting country need not establish that its crimes are identical to ones here. Zhenli Ye Gon, 774 F.3d at 217; see also United States v. Riviere, 924 F.2d 1289, 1302 (3d Cir. 1991) ("[T]he rule of double criminality does not require that the elements, purposes, or punishment for foreign offenses be identical to ours."). "The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions." Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 66 L.Ed. 956 (1922).
Mitchell was charged under Article 336(1) of the Greek Criminal Code, which provides that "[a]nyone who, by physical force or threat of significant and imminent danger, forces another to sexual intercourse or other lecherous act or tolerance of the same is punished with incarceration." ECF No. 1-1 at 41. The sentence of incarceration for the offense of rape under Article 52 of the Greek Criminal Code is not less than five (5) years, not more than fifteen (15) years. ECF No. 1-1 at 39.
However, the Government asserts that the most current version the rape statute, which Greek authorities advise will apply to this case against Mitchell, provides for a term of imprisonment of imprisonment of no less than ten (10) years.
Similarly, Title 18, United States Code, Section 2242 criminalizes any act in a federal jurisdiction where an individual knowingly (1) "causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping);" or (2) "engages in a sexual act with another person if that other person is - (A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act[.]" 18 U.S.C. § 2242.
The West Virginia Code provides that the act of sexual assault in the second degree occurs when a "person engages in sexual intercourse or sexual intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion[.]" W. Va. Code § 61-8B-4(a)(1). The act of sexual assault in the second degree is punishable by imprisonment of not less than ten (10) nor more than twenty-five (25) years and a fine of up to ten thousand dollars ($10,000). W. Va. Code § 61-8B-4(b).
Here, the offense of rape is an extraditable crime covered by the Treaty because it is punishable by the laws of the requesting country, Greece, for a maximum period exceeding one year, and by the requested country, the United States, for a maximum period exceeding one year. Put simply, the offense Mitchell is charged with would be a felony in either country, and thus, is an extraditable offense under Article 1(A)(1) of the 2006 Protocol under the Treaty.
Furthermore, the requirement of "dual criminality" is satisfied because the particular act charged - that is, rape - is a criminal act in both jurisdictions - the Hellenic Republic and the United States - even if the criminal acts vary slightly in name or in description. See Zhenli Ye Gon, 774 F.3d at 217 (Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 66 L.Ed. 956 (1922)).
In sum, the undersigned finds that the alleged offense of rape for which Mitchell is an extraditable offense covered by the applicable treaty and would be criminal if such an act was committed in the United States.
(5) There is sufficient evidence to support probable cause that Mitchell committed the offenses for which extradition is sought.
To certify extradition to the Secretary of State, there must be sufficient evidence for this Court to conclude that there is probable cause to believe that the crime charged was committed by the person before the Court. Probable cause exists if there is competent evidence to justify holding the accused. Haxhiaj v. Hackman, 528 F.3d 282, 287 (4th Cir. 2008) (quoting Ordinola v. Hackman, 478 F.3d 588, 608 (4th Cir. 2007)); Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006).
As previously stated, extradition hearings rely on written submissions and documentary evidence provided by the requesting government rather than witnesses and the presentation of physical evidence. See Yordi v. Nolte, 215 U.S. 227, 232, 30 S.Ct. 90, 54 L.Ed. 170 (1909); Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986); and Shapiro v. Ferrandina, 478 F.2d 894, 902 (2d Cir. 1973). It is appropriate to rely on written statements for a finding of probable cause sufficient to certify extradition. See e.g. Bovio v. United States, 989 F.2d 255, 259-61 (7th Cir. 1993) (Swedish investigator's statement sufficient to establish probable cause); Shapiro, 478 F.2d at 902-902; and In re Extradition of Garcia, 825 F. Supp. 2d 810, 830 (S.D. Tex. 2011) ("[E]xtradition may be predicated entirely on the 'unsworn statements of absent witnesses.' ") (citing Collins, 259 U.S. at 317, 42 S.Ct. 469).
Again, Article 336(1) of the Greek Criminal Code, the offense charged, provides that "[a]nyone who, by physical force or threat of significant and imminent danger, forces another to sexual intercourse or other lecherous act or tolerance of the same is punished with incarceration." ECF No. 1-1 at 41.
Here, the victim reported her rape to law enforcement and provided a sworn statement, with the assistance of an interpreter, on October 18, 2011, which was subsequently provided to this Court. ECF No. 1-1 at 84-86. In the statement, the woman alleges at approximately 5:00 AM on October 10, 2011, she was searching for her adult daughter on the streets of Rethymnon because the two had become separated. The woman said a man approached her, speaking in English, asking if he could help. The woman said, "yes, because I am looking for my daughter," and then was grabbed by the arm by the man, who said he would help and suggested the two go to the hotel where he lived. ECF No. 1-1 at 85.
In her statement, the woman contends that once in the hotel room, the man suggested she lie on the bed "because she was drunk." ECF No. 1-1 at 85. The woman describes that the man then sat on the bed to her left and vomited on the floor. The woman alleges that as she was lying on the bed, the man began to rip off her clothes and rape her. Id. The woman reported in her sworn statement that the man ejaculated inside her. Id. The woman testified that she stood up to reach a phone and call for help, but the man grabbed her violently and, despite her resistance, tried to rape her a second time. Id. The woman explained she was able to escape after biting the man. Id. In her statement, the woman described her attacker as an "African" man, approximately thirty (30) years old, with short brown hair and an athletic body with tattoos. The woman described to police that the man threw her purse and cell phone out of the hotel room and that these items were later retrieved from the hallway corridor with the help of law enforcement. ECF No. 1-1 at 86. The woman requested a forensic examination. Id.
Law enforcement also took sworn witness statements of the woman's daughter, ECF No. 1-1 at 87-88, and the building manager of the Makaris Hotel where Mitchell resided in Room 405 and where the rape allegedly occurred, ECF No. at 89-90. A sworn witness statement was also taken from the reception clerk of the Makaris Hotel, who reportedly knew Mitchell and had drinks with Mitchell in the early morning hours of October 18, 2011, but who explained that he lost track of Mitchell around 4:30 AM on the morning in question, ECF No. 1-1 at 91-92. A sworn statement was also provided by Sergeant Nektarios Chiotis of the Rethymnon Police Station, who described first receiving the woman's report of rape, being led by the woman to Room 405 of the Makaris Hotel as the location of her alleged rape, and being present when the woman, upon seeing the passport photograph of Mitchell, identified him as his rapist "beyond any doubt." ECF No. 1-1 at 93-94.
The Government also provided to this Court a sworn medical opinion from Dr. Antonios G. Papadomanolakis of the Forensic Medical Service of Crete who concluded that the forensic examination performed on the female victim in this case on October 19, 2011 was indicative, but "not evidentiary" of rape, as "noticed in most cases of examination of such incidents." ECF No. 1-1 at 95-96. Dr. Papadomanolakis reported the woman had "redness in the entrance of the vagina" and "bruises on the body that are indicative of grounding and immobilization." Id. Dr. Papadomanolakis reported that the lack of male genetic material could be due to the use of a condom or due to the lapse in time that occurred between the alleged rape and the time of examination. Id.
In this matter, the evidence submitted to the Court in support of the Complaint includes the victim's sworn statement regarding the rape, the sworn statement of the reception clerk who placed Mitchell in the vicinity drinking just prior to the rape, the statement of the building manager confirming Mitchell's residence in Makaris Room 405, and the victim's daughter who corroborated the timeline of events from her perspective. Furthermore, the Court has considered the sworn statements of Sergeant Nektarios Chiotis who was present for the victim's identification of Mitchell as her rapist and the sworn medical opinion of Dr. Papadomanolakis who reports that the victim's examination, including her bruises, are indicative of rape, "grounding" and "immobilization." Upon consideration of the same, the undersigned finds that competent evidence before the Court to support a finding of probable cause to believe crime of rape, as charged, was committed by Mitchell as alleged.
(6) Extradition hearings are not criminal proceedings and do not have the same Sixth Amendment constitutional protections.
Mitchell contends that Article V of the 1931 Extradition Treaty between the United States and Greece ("the Treaty") incorporates the Sixth Amendment right to a speedy trial, and thus, the Complaint should be dismissed, and the matter of extradition should be discharged.
Article V of the Treaty reads "A fugitive criminal shall not be surrendered under the provisions hereof, when, from lapse of time or other lawful cause, according to the laws of either of the surrendering or the demanding country, the criminal is exempt from prosecution or punishment for the offense for which surrender is asked." (emphasis added).
"[T]he United States government must, in carrying out its treaty obligations, conform its conduct to the requirements of the Constitution, and that treaty obligations cannot justify otherwise unconstitutional governmental conduct." Plaster v. United States, 720 F.2d 340, 348 (4th Cir. 1983). See also Geisser v. United States, 513 F.2d 862, 869 n. 11 (5th Cir. 1975) (citing Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)); In re Petition of Geisser, 627 F.2d 745, 750 (5th Cir. 1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981); see also In re Extradition of Burt, 737 F.2d 1477, 1484 (7th Cir. 1984). However, extraditions are not criminal proceedings. See Fed. R.Crim.P. 54(b)(5) ("[t]hese rules are not applicable to extradition and rendition of fugitives"); Fed.R.Evid. 1101(d)(3) ("The rules . . . do not apply . . . [to] [p]roceedings for extradition or rendition . . ."); Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir. 1993) (finding extraditions are not criminal proceedings, holding there is no due process right to a speedy extradition and urging fugitive to "direct his argument that extradition is unjust based on . . . lengthy delay in seeking extradition or on humanitarian grounds to the Executive Branch.").
Thus, constitutional protections applicable only in criminal cases are unavailable in extradition proceedings. While the Fourth Circuit has not addressed this particular question, six other circuit courts of appeals have found that there is no Sixth Amendment right to a speedy trial in extradition cases and can provide guidance to this Court. See Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir. 1993); In re Extradition of Kraiselburd, 786 F.2d 1395, 1398 (9th Cir.), cert. denied, 479 U.S. 990, 107 S.Ct. 586, 93 L.Ed.2d 588 (1986); Kamrin v. United States, 725 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984); In re Extradition of Burt, 737 F.2d 1477, 1486 (7th Cir. 1984); McDonald v. Burrows, 731 F.2d 294, 297 (5th Cir. 1984); Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978); and Jhirad v. Ferrandina, 536 F.2d 478, 485 n. 9 (2d Cir. 1976). The Ninth Circuit has specifically held that, even if a treaty states that "the person whose extradition is sought shall have the right to use all remedies and recourses provided by" the United States, as the treaty between the United States and Canada does, the fugitive does not have a right to a speedy extradition. In re Extradition of Kraiselburd, 786 F.2d 1395, 1398 (9th Cir.), cert. denied, 479 U.S. 990, 107 S.Ct. 586, 93 L.Ed.2d 588 (1986); see also Kamrin v. United States, 725 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984).
The undersigned would like to express his gratitude to Suzanne B. Corriell, the Circuit Librarian for the U.S. Court of Appeals for the Fourth Circuit, and her team of librarians for their assistance in providing research references for what is a case of first impression in this Court. Information regarding Fourth Circuit research assistance and training can be found on the Fourth Circuit's website. See Research Assistance & Training, UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, https://www.circ4.dcn/home/library/research-assistance-training (last visited Aug. 31, 2022).
The undersigned is sympathetic to Mitchell's position as there is no evidence to suggest that Mitchell has been anything other than a law-abiding citizen for the last few years. It is without dispute that approximately nine (9) years passed between the 2013 indictment in Greece and Mitchell's 2022 arrest in the United States. If such a nine-year delay in prosecution occurred without justification in a criminal proceeding under the laws of the United States, this would almost certainly be a violation of a Mitchell's Sixth Amendment rights as described by the Supreme Court in Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Alas, extradition proceedings are not criminal proceedings, but rather are an independent review delegated to the judiciary by the Executive, as defined by statute. See Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir. 1993); Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.) ("Orders of extradition are sui generis."), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). The undersigned's inquiry is limited. See 18 U.S.C. §§ 3181-95.
In 2015, Mitchell plead guilty to the charge of Theft by Shoplifting, was adjudicated guilty, and fully paid the fine imposed by the Hinesville Municipal Court in Hinesville, Georgia. See Case No. 331590, Hinesville Municipal Court (12/30/2015). In 2018, Mitchell plead guilty and was convicted of Possession of Controlled Substance in the Beaufort County Court of General Sessions in Beaufort County, South Carolina. Mitchell successfully satisfied all conditions of his sentence, which included a year on probation, and the case was closed in December 2019. See South Carolina v. Brian Casey Mitchell, Case Nos. 2016-GS-07-1138, 1140, 1142 (Dec. 17, 2019). It remains unclear to the undersigned why neither INTERPOL USA nor the Department of Justice were notified of Mitchell's location upon his passport entry into Germany, Slovenia, or Israel between 2011-2014 to play basketball or after his arrests in 2015 and 2016 (especially when his NCIC Report clearly stated that he had an outstanding INTERPOL arrest warrant).
Here, as in, In re Extradition of Kraiselburd, despite the catchall remedy language in the treaty, "or other lawful cause," Mitchell is not entitled to invoke the constitutional protections that the United States Constitution affords defendants in American criminal prosecutions because extraditions are not criminal proceedings. In re Extradition of Kraiselburd, 786 F.2d 1395, 1398 (9th Cir.), cert. denied, 479 U.S. 990, 107 S.Ct. 586, 93 L.Ed.2d 588 (1986). Like in Martin v. Warden, Atlanta Pen, 993 F.2d 824, 830 (11th Cir. 1993), this Court urges Mitchell to direct his arguments that extradition is unjust in this case based on Greece's alleged lengthy delay in seeking extradition or on humanitarian grounds to the Executive Branch.
Notwithstanding Mitchell's arguments regarding a severe delay in prosecution, the undersigned FINDS that there is "evidence sufficient to sustain the charge [against the fugitive-extraditee] under the provisions of the proper treaty or convention," 18 U.S.C. § 3184, and, thus, the matter of extradition shall be certified to the Secretary of State. The Secretary of State will, ultimately, determine whether Mitchell should be surrendered pursuant to the Extradition Treaty. Martin, 993 F.2d at 830.
B. Order of Commitment
In extradition cases, there is a presumption against bond. Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903); In re Extradition of Ghandtchi, 697 F.2d 1037, 1038 (11th Cir. 1983). Fugitive-extraditees can be released only if they can show (1) there is no risk they will fail to appear for further extradition proceedings; (2) there is no danger presented to the community by their release; and (3) there are "special circumstances," which merit their release. See Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989); In re Extradition of Beresford-Redman, 753 F. Supp. 2d 1078, 1088 (C.D. Cal. 2010). The individual facing extradition bears the burden of establishing special circumstances sufficient for pre-extradition release on bail. Salerno, 878 F.2d at 317-18; United States v. Leitner, 784 F.2d 159, 160 (2d Cir. 1986); United States v. Taitz, 130 F.R.D. 442, 444 (S.D. Cal. 1990). "The term 'special circumstances' has never been precisely defined, and courts have addressed on a case-by-case basis particularly sufficient circumstances that would reverse the strong presumption against bail." In re Extradition of Maniero, 950 F.Supp. 290, 294 (S.D. Cal. 1996); accord In re Extradition of Kirby, 106 F.3d 855, 863 (9th Cir. 1996) ("Wright v. Henkel does not provide significant guidance as to what 'circumstances' might be considered 'special.' ").
The majority of federal courts have held that an individual subject to international extradition may overcome the presumption against release only by presenting "clear and convincing evidence" that "special circumstances" exist, and that the person will not flee or pose a danger to the community. See Nezirovic v. Holt, 990 F. Supp. 2d 594, 599 (W.D. Va. 2013); U.S. v. Castaneda-Castillo, 739 F. Supp. 2d 49, 60 A.L.R. Fed. 2d 733 (D. Mass. 2010); In re Extradition of Garcia, 761 F. Supp. 2d 468 (S.D. Tex. 2010); In re Extradition of Gonzalez, 52 F. Supp. 2d 725 (W.D. La. 1999); Matter of Extradition of Maniero, 950 F. Supp. 290 (S.D. Cal. 1996); and Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210 (D. Nev. 1993).
Only a minority of courts have adopted a "preponderance of the evidence" standard. See In re Extradition of Santos, 473 F. Supp. 2d 1030, 1036 (C.D. Cal. 2006) (explicitly rejecting clear and convincing evidence as the burden of persuasion and analyzing the request for bail under a preponderance of the evidence standard); In re Extradition of Beresford-Redman, 753 F. Supp. 2d 1078 (C.D. Cal. 2010) (assuming arguendo a preponderance standard); and Garcia v. Benov, No. CV 08-07719 MMM CWX, 2009 WL 6498194, at *3 (C.D. Cal. Apr. 13, 2009).
The Fourth Circuit has not addressed this issue or decided what standard should apply. See 60 A.L.R. Fed. 2d 203 (Originally published in 2011) (collecting cases on the matter of the "Allowance of Bail in International Extradition Proceedings"). However, the U.S. District Court for the Western District of Virginia, a sister court within the Fourth Circuit, recently applied the "clear and convincing evidence" burden of proof to a fugitive-extraditee who was seeking to challenge the presumption against bail pending extradition. Nezirovic v. Holt, 990 F. Supp. 2d 594, 605 (W.D. Va. 2013).
See supra n. 6.
The Nezirovic court did find, in a footnote, that "[a]lthough the court believes that Nezirovic's burden of proof to overcome the presumption against bail is by clear and convincing evidence, the court concludes that he would not even satisfy the lesser preponderance of the evidence standard utilized by a small minority of federal district courts." Nezirovic v. Holt, 990 F. Supp. 2d 594, 605 (W.D. Va. 2013).
In Nezirovic, the individual subject to extradition argued the delay of two decades since the alleged crimes occurred and the requesting country's extradition request constituted a special circumstance for which bond should be authorized. The Nezirovic court, citing similar logic used by the Second Circuit in United States v. Leitner, 784 F.2d 159 (2d Cir. 1986) and by the First Circuit in United States v. Kin-Hong, 83 F.3d 523,525 (1st Cir. 1996), held that, although there had been a lengthy passage of time, the passage of time and delay did not rise to the level of a "special circumstance" especially considering the violent and serious nature of the crimes for which the individual had been charged.
The Nezirovic holding is consistent with the majority of federal courts who have held that that past or anticipated delay does not constitute a "special circumstance" warranting delay. See, e.g., United States v. Kin-Hong, 83 F.3d 523, 525 (1st Cir. 1996) (finding the normal passage of time inherent in the litigation process does not constitute a special circumstance to merit a fugitive's release); Matter of Extradition of Drumm, 150 F. Supp. 3d 92 (D. Mass. 2015) (holding the seven-year period between the fugitive's alleged criminal conduct and Ireland's request that he be extradited to face thirty-three criminal charges related to bank fraud did not constitute a "special circumstance" because Ireland had been actively investigating the case and the fugitive made his own decision to relocate to the United States); Gullers v. Bejarano, 06CV1659JM(AJB), 2009 WL 250053, at *3 (S.D. Cal. Feb. 2, 2009) (holding the fugitive's thirty-two-month incarceration did not merit a "special circumstance" because the normal passage of time is inherent to the litigation process); Matter of Extradition of Ye Gon, 2009 WL 3336092 (D.D.C. 2009) (finding the delay in litigation proceedings did not constitute a "special circumstance" because the delay did not occur on behalf of the government). Only a small minority of district courts have found that delays in extradition or litigation constitute "special circumstances."
See also In re Extradition of Garcia, 615 F. Supp. 2d 162, 172 (S.D.N.Y. 2009) (holding an foreign country's three-year delay in bringing extradition proceedings does not constitute a special circumstance where there is no showing of a lack of diplomatic necessity on its behalf nor a reason to believe it will not transmit such a request shortly); Duran v. U.S., 36 F. Supp. 2d 622, 628 (S.D.N.Y. 1999) (citing United States v. Leitner, 784 F.2d 159 (2d Cir. 1986)) (holding delay alone does not a special circumstance where a fugitive faces violent charges and presents a flight risk because a court must consider the totality of circumstances); In re Extradition of Harrison, 03 CR. MISC. 01, 2004 WL 1145831, at *7 (S.D.N.Y. May 21, 2004) (finding the nine-year passage of time between the commencement of the extradition proceeding and the fugitive's sentencing does not constitute a special circumstance even where the fugitive faced nonviolent charges and did not present a flight risk); In re Extradition of Siegmund, 887 F. Supp. 1383, 1387 (D. Nev. 1995) (finding that a potential detention of up to ninety days pending extradition did not constitute a "special circumstance" to justify release); U.S. v. De Loera, 2006 WL 1518981 (N.D. Ind. 2006) (holding bail was inappropriate even though the fugitive faced nonviolent drug charges and there was a 10-to-11-year delay by Mexico in requesting extradition because the totality of circumstances did not justify the fugitive's release); Matter of Extradition of Antonowicz, 244 F. Supp. 3d 1066, 1070 (C.D. Cal. 2017) (finding neither the delay of four months from time of arrest to hearing on arrestee's extradition nor the delay which may result from the extradition order's appeal constituted a "special circumstance" to justify bail); U.S. v. Nolan, 2009 WL 4544699 (N.D. Ill. 2009) (finding Costa Rica's seven-month delay in filing charges was not, in and of itself, sufficient to overcome the presumption against bail in extradition cases); Hababou v. Albright, 82 F. Supp. 2d 347, 352 (D.N.J. 2000) (neither a delay of one year caused by the extraditee's trial on domestic charges nor the extraditee's pending domestic criminal charges were "special circumstances" warranting bail). Cf. U.S. v. Ramnath, 533 F. Supp. 2d 662, 676 (E.D. Tex. 2008) (releasing individual on bail but rejecting argument that a delay in litigation presents a "special circumstance" to merit the fugitive's release awaiting extradition). See generally Grabowski v. Martin, 537 F. Supp. 3d 204, 211 (D.R.I. 2021) (finding no special circumstances where an arrestee faced rape charges in Poland and did not present any likelihood of success on the merits of those proceedings).
See, e.g., U.S. v. Castaneda-Castillo, 739 F. Supp. 2d 49, 50-51 (D. Mass. 2010) (holding delay constitutes a special circumstance where a fugitive has been held in custody for five years awaiting extradition, co-fugitives have been released on bail in the country seeking extradition, and where the fugitive did not pose a serious risk of flight or danger to the community); Matter of Extradition of Morales, 906 F. Supp. 1368, 1376 (S.D. Cal. 1995) (holding where a fugitive spends more than seven months in custody before resolution of international extradition proceedings a "special circumstance" exists); In re Extradition of Kapoor, 11-M-456 RML, 2011 WL 2296535, at *5 (E.D.N.Y. June 7, 2011) (holding where a foreign country seeking extradition has waited four years to issue an arrest warrant, despite knowledge of the fugitive's whereabouts, in combination with the fugitive's intention to raise Article III CAT claims to bar extradition entirely, a special circumstance exists to merit release); In re Extradition of Molnar, 182 F. Supp. 2d 684, 687 (N.D. Ill. 2002) (finding a three-and-a-half-year delay between the time of the alleged crime and the time the country seeking extradition issued an arrest warrant in combination with the Government's concession that the fugitive was not a flight risk constituted a special circumstance); and In re Extradition of Chapman, 459 F. Supp. 2d 1024, 1026 (D. Haw. 2006) (finding Mexico's three-year delay in bringing extradition proceedings to constitute a special circumstance because Mexico has not made prosecution of the offense in question a priority given the detainees were living openly and notoriously).
Here, like Nezirovic, it is true that there has been long passage of time, eleven years since the criminal offense is said to have occurred. However, there is nothing in the record to show that Greece did anything to exacerbate or cause this delay. After all, when Interpol USA notified Interpol Greece of Mitchell's detected location in the United States, the extradition request was formally provided to the United States ten days later. ECF No. 1-1 at 34-35.
Additionally, it is true there may be additional delays should Mitchell challenge his extradition either directly with the Secretary of State or through a writ of habeas corpus. However, consistent with the majority of courts to address this issue, the undersigned FINDS delays in the extradition or litigation process do not give rise to a "special circumstance" for which bail is to be granted.
The undersigned would note that "there is no direct appeal for an individual found to be extraditable by a magistrate." See Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir. 2007) (citing Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 64 L.Ed. 616 (1920)). Rather, a writ of habeas corpus is the only available means to challenge the magistrate's finding. Id. (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925)).
See supra at Pages 500-01 and n. 10.
Where Mitchell cannot show clear and convincing evidence of a "special circumstance" justifying release, he shall remain detained pending extradition. Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903). However, for completeness of the record, the undersigned will consider the Mitchell's risk to the community and risk of flight should he be released on bail.
As reported by U.S. Probation in the Pretrial Services Report, Mitchell has a limited criminal history and a limited drug and alcohol history. He also introduced testimony regarding his volunteerism in West Virginia and his dedication to helping support young athletes. However, evidence of good acts alone is insufficient to mitigate the community's exposure to possible danger. The facts of the underlying offense for which Greece seeks extradition are heinous. Mitchell is alleged to have forcibly raped a woman while she was intoxicated, then proceeded to restrain her and struggle with her as she attempted to flee Mitchell's second attack. Despite the testimony provided on Mitchell's behalf, Mitchell has not carried his burden of showing, by clear and convincing evidence, that he is not a danger to the community, especially considering the nature of the crime alleged. See Matter of Extradition of Sidali, 868 F. Supp. 656, 659 (D.N.J. 1994) (finding the "vicious and depraved" nature of rape and murder charges is a consideration that weighs in favor of detaining fugitives awaiting extradition proceedings).
Moreover, good character or good acts likely does not constitute a "special circumstance" for which release is warranted pending extradition. See Matter of Extradition of Sutton, 898 F. Supp. 691, 696 (E.D. Mo. 1995) (finding the present character and background of the fugitive alone did not present a "special circumstance" because the fugitive faced charges for sexual offenses against minors); Matter of Extradition of Heilbronn, 773 F. Supp. 1576, 1581 (W.D. Mich. 1991) (finding a fugitive's status as a medical doctor does not constitute a special circumstance because the rules of extradition do not recognize an exception); Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210, 1220 (D. Nev. 1993) (holding the testimony of friends and business associates is not a special circumstance because a fugitive's character factors into the considerations of flight risk and danger to the community rather than special circumstances). Cf. Matter of Extradition of Sidali, 868 F. Supp. 656, 658 (D.N.J. 1994) (recognizing extraordinary character may be a special circumstance but cannot overcome the presumption against bail where a fugitive has been convicted of violent crimes (rape and murder) in the country seeking extradition).
Concerning flight risk, Mitchell has been living and working in the greater Morgantown, West Virginia area for approximately two years. Due to his basketball career and related volunteer work, he has strong ties to this area. Mitchell's counsel has proffered that his passport has expired. Nonetheless, Mitchell is now facing extradition and, if found guilty, a maximum term of imprisonment of fifteen (15) years as provided by the Greek Criminal Code. The exposure to extradition and a lengthy term of imprisonment naturally increases the risk of non-appearance in this case. As mentioned above, despite the testimony provided on Mitchell's behalf, Mitchell has not carried his burden of showing that he does not pose a flight risk by clear and convincing evidence.
V. CONCLUSION
Based on the foregoing findings, the Court now CONCLUDES that Mitchell is extraditable for the offense charged and certifies such findings to the Secretary of State as required under 18 U.S.C. § 3184, and the Treaty. For the above-mentioned reasons, it is now ORDERED that the Government's Motion and Memorandum of Extradition Law and Request for Detention Pending Extradition Proceedings, ECF No. 5, be GRANTED, Mitchell's Motion to Dismiss and Deny Request for Extradition, ECF No. 16, be DENIED, and Mitchell's Motion for Bond in the Matter of Extradition, ECF No. 17, be DENIED.
IT IS THEREFORE ORDERED that Mitchell be committed to the custody of the United State Marshal pending final disposition in this matter by the Secretary of State and the arrival of agents of Greece. Upon their arrival, the United States Marshal shall transfer Mitchell to the custody of the agents of Greece at a mutually agreeable time and place.
IT IS FURTHER ORDERED that the Clerk of Court deliver to the Assistant United States Attorney a certified copy of this Order certifying extradition and committing Mitchell to the United States Marshal, and, further, that the Clerk forward certified copies of the same to the Secretary of State and Department of State (to the attention of Legal Adviser Amy Lindsay) for appropriate disposition. The Clerk of Court is also ordered to provide to the Secretary of State and Department of State a copy of all testimony taken at the August 20, 2022 proceeding in compliance with the requirements of 18 U.S.C. § 3184.