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Docket Number

Civ. A. No. 77-639-T.

Attorney(S)

Alan R. Hoffman, Kaplan, Latti Flannery, Boston, Mass., for plaintiff. William Brown, Asst. U.S. Atty., Boston, Mass., for defendant.

Judges

Joseph Louis Tauro

Acts

Crimes And Criminal Procedure — Release And Detention Pending Judicial Proceedings — Criminal Procedure — Penalty For Failure To Appear
Crimes And Criminal Procedure — General Provisions — Crimes — Organization Defined

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Smart Summary

Beaulieu v. Hartigan — Memorandum (D. Mass. Mar. 14, 1977) — Summary

Factual and Procedural Background

This memorandum, authored by District Judge Tauro, concerns Thomas P. Beaulieu, a petitioner facing extradition proceedings. The court record shows that Judge Tauro initially granted bail to Beaulieu on March 4, 1977. The Court of Appeals then reversed that grant of bail without prejudice and invited the district court to reconsider bail in light of further hearings. Following reconsideration, Judge Tauro again granted bail to the petitioner by order dated March 9, 1977.

The district court's deliberations were prompted by disputed findings from a Magistrate concerning identification of the petitioner. Judge Tauro asked for subsidiary findings because of a conflict between a Canadian police officer's affidavit and his testimony regarding how many intercepted telephone calls were listened to. The district court considered the magistrate's eventual findings central to whether an identification basis existed and whether continued custody was warranted.

Judge Tauro also explained that he had temporarily released petitioner for a short interval (from March 3 to March 9) pending receipt of additional magistrate findings because: Beaulieu had been incarcerated about two months; he had no passport and no funds; his parents, present in court, appeared responsible and the father assured the court he would ensure his son's return; the judge's inquiry of Beaulieu led him to believe the petitioner would appear; and the petitioner posed no danger to himself or the community. Those factors were part of the district court's factual basis for re-granting bail.

Legal Issues Presented

Whether a district court may grant bail to a person facing extradition proceedings, and if so, under what standard or circumstances.
What role the "special circumstances" doctrine from Wright v. Henkel plays in modern extradition-bail determinations and how much discretion a district judge should exercise.
Whether, under the totality of the circumstances in Beaulieu's case (including identification questions and personal factors), the petitioner was a suitable bail risk.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wright v. Henkel, 190 U.S. 40 (1903)	Establishes that the ordinary presumption in favor of bail is modified when a person faces extradition; lower courts may grant bail only in "special circumstances."	Judge Tauro cites Wright as the foundational authority recognizing judicial power to grant bail in extradition cases and frames the "special circumstances" doctrine as still viable but to be applied with flexibility and caution in light of modern fairness concerns.
In re Mitchell, 171 F. 289 (S.D.N.Y. 1909)	Example of a district court granting bail in extradition context "only in the most pressing circumstances," especially to prevent prejudice (here, to the petitioner's pending civil trial).	Used to illustrate that district courts have granted bail where denial would cause substantial prejudice; the opinion treats Mitchell as supportive of a cautious, discretionary standard.
In re Gannon, 27 F.2d 362 (E.D. Pa. 1928)	Recognizes that the risk of default must be balanced against the injustice of pre-hearing imprisonment; explains deterrent effects on flight and the cost of pretrial detention.	Quoted for the proposition that pretrial detention can be unjust in light of the burden on the accused and that bail may be appropriate when the risk of flight is small compared to the injustice of confinement.
In re Klein, 46 F.2d 85 (S.D.N.Y. 1930)	Reported instance of a district court denying bail to a foreign national in an extradition setting.	Referenced to show that not all courts grant bail in extradition matters and to place the court's decision in the context of varying district-court practice.
U.S. ex rel. McNamara v. Henkel, 46 F.2d 84 (S.D.N.Y. 1912)	Another reported denial of bail in an extradition context.	Included as part of the survey of cases, illustrating historical variety in outcomes; used to support the observation that courts have reached different results.
Shapiro v. Ferrandina, 355 F. Supp. 563 (S.D.N.Y. 1973), modified and aff'd, 478 F.2d 894 (2d Cir. 1973)	Modern instance of bail being granted or continued pending extradition-related proceedings and appeals.	Quoted among contemporary cases showing that granting bail pending completion of extradition proceedings has become common, supporting the court's conclusion about modern practice.
Application of D'Amico, 185 F. Supp. 925 (S.D.N.Y. 1960); appeal dismissed sub nom. United States v. Bishopp, 286 F.2d 320 (2d Cir. 1961)	Another contemporary example where bail was continued pending proceedings (American citizen wanted by Italy for aggravated robbery and kidnapping).	Used to demonstrate modern trend favoring bail in extradition cases absent compelling countervailing reasons.
Artukovic v. Boyle, 107 F. Supp. 11 (S.D. Cal. 1952); rev'd on other grounds, Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir. 1954)	Example where bail was granted and that grant was left undisturbed by a reviewing court despite reversal on other grounds.	Relied upon to show continued judicial willingness to grant bail in extradition matters and to note appellate treatment of such grants.
Jimenez v. Aristequieta, 311 F.2d 547; aff'g further order, 314 F.2d 649 (5th Cir. 1963)	An exception in which bail was refused to a recently deposed President of Venezuela; emphasized court's focus on all relevant facts and a lower court finding that bail could not ensure presence.	Distinguished from the present case: the court noted Aristequieta involved heightened international-comity concerns and a district court's exercise of discretion against bail; used to explain that denial of bail is sometimes appropriate but was not warranted here.

Court's Reasoning and Analysis

Judge Tauro's analysis proceeds in three connected lines of reasoning grounded in precedent, contemporary practice, and case-specific factual considerations:

Authority and standard: He begins by reaffirming that district courts have the power to grant bail in extradition proceedings, citing Wright v. Henkel and In re Mitchell. Wright articulated the "special circumstances" standard; Mitchell reflects a cautious approach — bail "only in the most pressing circumstances" — but demonstrates that bail may be appropriate to avoid prejudice.
Trend and context: Reviewing subsequent authorities, Judge Tauro notes that in modern cases granting bail pending completion of extradition proceedings has become common rather than exceptional. He surveys earlier and contemporary cases to show the variety of outcomes and to place the present exercise of discretion within a broader trend favoring more flexible district-court review.
Application to the present case — totality of the circumstances: The judge emphasizes that the inquiry in an extradition-bail decision is essentially factual and discretionary: whether the petitioner, under all the circumstances, is likely to appear when directed to do so. Because international comity and treaty obligations add an extra layer of concern, a district judge should exercise an added degree of caution. Nevertheless, the ultimate determination is a judgment call based on the totality of circumstances.

Applying those principles to Beaulieu, Judge Tauro relied on his March 8 memorandum (Appendix C) and the specific facts surrounding the temporary release. He explained that unresolved identification issues — and his request for subsidiary findings from the Magistrate about whether a police officer listened to more than one intercepted telephone conversation — contributed to his view that continued incarceration pending those findings would be unfair.

The court enumerated seven factual factors supporting release for the brief interval and informing the bail decision more generally: (1) petitioner had been incarcerated for approximately two months; (2) he had no passport; (3) he had no funds; (4) his parents were present and appeared responsible; (5) the father represented he would ensure return; (6) the judge's own inquiry left him satisfied the petitioner would appear; and (7) petitioner posed no danger to himself or the community. The court explicitly stated that these factors were discussed on the record.

Judge Tauro concluded that, on the totality of the circumstances and consistent with notions of procedural fairness and the "special circumstances" doctrine (as constrained by international comity concerns), the petitioner was a satisfactory bail risk. He thus exercised his discretion to regrant bail after the Court of Appeals had invited reconsideration.

Holding and Implications

Holding: The district court granted bail to petitioner Thomas P. Beaulieu by order dated March 9, 1977. Judge Tauro reaffirmed that his grant of bail was a proper exercise of judicial discretion under the "special circumstances" framework and the totality-of-the-circumstances analysis.

Implications:

The immediate consequence is that Beaulieu was released on bail (subject to the terms specified in the court's order). The memorandum explains the factual grounds for that release but does not establish a new binding legal rule beyond the accepted principle that district courts may grant bail in extradition matters in appropriate circumstances.
Judge Tauro's opinion interprets Wright's "special circumstances" doctrine as remaining viable but flexible; he signals that modern concepts of fundamental fairness permit district courts broader discretionary judgment in extradition-bail decisions while urging added caution because international-treaty considerations are involved. The opinion thus offers interpretive guidance but does not announce a categorical change in the law or create a novel precedent beyond the court's exercise in this individual case.

Source limitation: This summary is based exclusively on the text of the provided memorandum and its appendices. It does not add facts or conclusions beyond those expressly contained in the opinion.

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Thomas BEAULIEU v. James HARTIGAN.

MEMORANDUM

TAURO, District Judge.

By order dated March 9, 1977, the Court of Appeals reversed without prejudice my granting of bail on March 4, and invited me to reconsider the issue of bail in light of the further hearings in this case. Upon further reflection and consideration, I again granted bail to petitioner by order dated March 9, 1977.

On March 9, 1977, I granted plaintiff's request for bail following my denial of his motion for a temporary restraining order. At the same time I granted defendant's request for a stay of the bail order pending appeal. (Appendices A and B).

Certainly, the ordinary presumption in favor of granting of bail is modified when a person faces a warrant of extradition. Wright v. Henkel, 190 U.S. 40, 62-63, 23 S.Ct. 781, 47 L.Ed. 948 (1903); compare 18 U.S.C. § 3146, 18 U.S.C. § 3184. It is equally certain that it is within the power of the district court to grant bail to a person facing extradition proceedings. Wright v. Henkel, supra; In re Mitchell, 171 F. 289 (S.D.N Y 1909). When first faced directly with this question in 1903, the Supreme Court in Wright stated that the lower courts could grant bail in the face of "special circumstances." Id. In that case, the Court found that the petitioner's presentation of an affidavit that he was suffering from "bronchitis" and "chills" did not constitute sufficiently unusual circumstances to justify reversing the lower court's denial of bail.

In the first reported opinion addressing bail in an extradition proceeding after Wright v. Henkel, Judge Learned Hand, then a district judge, granted bail to the petitioner, despite his admonition that it should be granted "only in the most pressing circumstances and when the requirements of justice are absolutely preemptory." In re Mitchell, 171 F. 289, 290 (S.D.N.Y. 1909). The petitioner in Mitchell was arrested on a warrant from Canada for larceny the day before a civil trial was to commence in which he was a plaintiff. Judge Hand found that a denial of bail would prejudice petitioner's ability to consult with counsel in the civil suit. He released him on bail pending completion of the lawsuit.

In the two decades following Mitchell, three courts faced the question of bail in extradition proceedings. Two involved petitions by foreign nationals in which bail was denied by the district court. In re Klein, 46 F.2d 85 (S.D.N.Y. 1930); U.S. ex rel. McNamara v. Henkel, 46 F.2d 84 (S.D.N.Y. 1912). In the third, bail was granted. In re Gannon, 27 F.2d 362 (E.D.Pa. 1928). There, the court found bail appropriate stating,

[s]hould the prisoner default, he will not only forfeit the penal sum of his bond, but will inflict upon himself a punishment many times heavier than any which would follow conviction for the offense with which he is charged, for he must thereafter elude the vigilance of the officers of each and both of two governments whose resources are practically unlimited. Against the small risk of default there is the injustice of imposing imprisonment in advance of a hearing which must be delayed for some time.

Id. at 364.

In the more contemporary reported cases, granting of bail pending completion of the extradition proceedings has been the rule rather than the exception.

Shapiro v. Ferrandina, 355 F. Supp. 563 (S.D.N.Y. 1973), modified and aff'd, 478 F.2d 894 (2d Cir. 1973), cert. dis., 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973); (Petitioner, on bail in another proceeding, was put on additional bail pending probable cause hearing. After hearing, order that petitioner be placed in custody stayed pending filing of habeas corpus petition; following denial of petition, stay continued pending appeal.); Application of D'Amico, 185 F. Supp. 925 (S.D.N.Y. 1960), appeal dismissed, sub nom. United States v. Bishopp, 286 F.2d 320 (2d Cir. 1961), cert. den. sub nom. Farace v. D'Amico, 366 U.S. 963, 81 S.Ct. 1924, 6 L.Ed.2d 1254 (1961) (Bail continued pending further proceedings in case of American citizen wanted by the Italian government for aggravated robbery and kidnapping); Artukovic v. Boyle, 107 F. Supp. 11 (S.D.Cal. 1952), rev'd on other grounds, sub. nom. Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir. 1954), cert. den. 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 645, reh. den. 348 U.S. 889, 75 S.Ct. 202, 99 L.Ed. 698 (1954). (Petitioner sought on murder charges. Grant of bail left undisturbed by circuit court despite its reversal of district court determination that the treaty under which petitioner was seized was no longer in effect.)

In the one exception, a court refused to grant bail to a recently deposed President of Venezuela who was sought by his homeland on charges of murder and financial wrongdoing. Jimenez v. Aristequieta, 311 F.2d 547 (5th Cir. 1962); cert. den. 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1962), reh. den. 374 U.S. 858, 83 S.Ct. 1867, 10 L.Ed.2d 1083 (1962), aff'g further order of district court, 314 F.2d 649 (5th Cir. 1963). In upholding the district court's refusal to grant bail, the court noted that it was taking into account all relevant facts and circumstances, as well as the lower court's finding that it could not ensure petitioner's presence by the setting of bail. 314 F.2d at 652-3. Surely, the granting of bail to a political refugee and ex-president sought by his own country raises more delicate questions of international comity than are present in the more typical extradition case, such as the one at bar. A further distinguishing feature is, of course, the fact that in Aristequieta, the district court exercised its discretion against granting bail.

In none of the cases dealing with the issue of bail in an extradition setting was a district judge who granted bail subsequently reversed by a reviewing court. Analysis of these cases leads me to the conclusion that the "special circumstances" doctrine of Wright, though still viable, must be viewed, in the light of modern concepts of fundamental fairness, as providing a district judge with flexibility and discretion in considering whether bail should be granted in these extradition cases. The standard of scrutiny and concern exercised by a district judge in an extradition case should be greater than in the typical bail situation, given the delicate nature of international relations. But one of the basic questions facing a district judge in either situation is whether, under all the circumstances, the petitioner is likely to return to court when directed to do so. Fundamentally, it is a judgment call by the district court based on the totality of the circumstances, including the extremely important consideration of this country's treaty agreements with other nations. A district judge should approach the bail situation in an extradition case with an added degree of caution, given the additional factor of an international treaty.

After examining the totality of the circumstances, set forth in my memorandum of March 8, 1977, (Appendix C), I am persuaded that the petitioner is a good bail risk.

APPENDIX A UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS * * * * * * * * * * * * * * * * * * * ** * * * * THOMAS P. BEAULIEU, * * Petitioner, * vs. * CIVIL ACTION * NO. 77-639-T JAMES I. HARTIGAN, Assistant U.S. * Marshal, ET AL, * Respondents. * * * * * * * * * * * * * ** * * * * * * * * * * *

PETITIONER'S RENEWED MOTION FOR BAIL ------------------------------------- Now comes the Petitioner in the above-entitled action and moves this Honorable Court to set bail in a reasonable amount pending an Appeal from this Court's decision with respect to Petitioner's Motion for a Temporary Restraining Order.

Respectfully submitted,

---------------------- Alan R. Hoffman KAPLAN, LATTI AND FLANNERY 95 Commercial Wharf Boston, Massachusetts 02110 (617) 523-1000

DATED: March 9, 1977 Boston, Massachusetts

APPENDIX B

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

THOMAS P. BEAULIEU, ) Petitioner, ) v. ) CIVIL ACTION ) NO. 77-639-T JAMES I. HARTIGAN, Assistant ) U.S. Marshal, et al, ) Respondents. )

MOTION FOR STAY PENDING APPEAL ------------------------------

Now come respondents and move for a stay pending appeal of the Court's Order of March 9, 1977 granting bail to petitioner.

JAMES N. GABRIEL United States Attorney

By --------------------------- WILLIAM A. BROWN Assistant U.S. Attorney Chief, Civil Division

CERTIFICATE OF SERVICE ----------------------

Suffolk, ss. Boston, Massachusetts March 9, 1977

I, William A. Brown, Assistant U.S. Attorney, hereby certify that I have this date served a copy of the foregoing Motion For StayPending Appeal upon petitioner by mailing a copy of same in a franked, official envelope to Alan R. hoffman, Esquire, Kaplan, Latti and Flannery, 95 Commercial Wharf, Boston, MA 02110, attorney of record for petitioner.

------------------------------ WILLIAM A. BROWN Assistant U.S. Attorney Chief, Civil Division

APPENDIX C

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

THOMAS P. BEAULIEU * * * v. * CA 77-639-T * * JAMES I. HARTIGAN * MEMORANDUM ---------- TAURO, D.J. March 8, 1977

This memorandum is in response to the Court of Appeals order dated March 3, 1977.

I did not "release appellant on personal recognizance pending resolution of the extradition proceedings" (March 7, 1977 Order of Court of Appeals). I released him on Friday evening, March 3 at 5:00 p. m. until Wednesday, March 9 at 3:00 p. m., at which time I was to have received further findings of fact from the Magistrate with respect to the identification of the petitioner Beaulieu.

All that was before me on Friday afternoon, and all that will be before me on Wednesday, was petitioner's application for a temporary restraining order. If the Magistrate's findings of fact indicate that he was properly identified, then the issue of further bail will not arise.

The primary issue before the Magistrate was identification. Representations made to me by petitioner's counsel as to the Magistrate's comments from the bench, combined with the conclusory nature of his reported findings, caused me to request additional findings. Of principal concern to me was whether the Canadian police officer had actually listened to only one intercepted telephone conversation. The officer's testimony was in conflict with his affidavit on that point, and I wanted to know the Magistrate's subsidiary finding on that issue. If the Magistrate finds that the police officer listened only to the first telephone conversation then there would be no basis for an ultimate finding of identification.

With the above as background, I was prompted to release petitioner Beaulieu for the four intervening days because: 1) he has already been incarcerated for approximately two months; 2) he has no passport; 3) he has no funds; 4) his parents were in the courtroom and struck me as being very responsible people; 5) his father represented to me that he would ensure his son's presence on Wednesday; 6) upon my own inquiry of Beaulieu, I was satisfied that he would be present on Wednesday; and 7) I was satisfied that he was no danger to himself or the community.

I thought then and I do now that it was grossly unfair to confine petitioner Beaulieu for the better part of two months before giving him a hearing on the fundamental issue of identification, having in mind that were this case to be prosecuted in the United States, the District Court would be required to give him a trial within 90 days of his arraignment, he being in confinement.

These factors were all discussed by me on the record as I made my decision to admit him to bail. I had no time to write a memorandum opinion, but did grant a stay so the United States Attorney could, within minutes after my hearing, seek review in the Court of Appeals. In order to assist the Court of Appeals, I did instruct the court reporter to make himself available so that the Court of Appeals could have my comments recited, and thereby know the basis for my decision regarding bail.

I regarded the totality of the circumstances to be sufficiently "special" (March 7, 1977 Order of Court of Appeals) so as not to violate any "principles of international comity" (March 4, 1977 Order of Court of Appeals). Indeed, I felt my decision was consistent with the due process rights of an American citizen, presumed to be innocent, and yet to be definitively identified, because of my request for subsidiary findings from the Magistrate. Thus, I feel my granting of bail was a proper exercise of my discretion, within the restrictions set forth in Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903); Jimenez v. Aristequieta, 314 F.2d 649, 653 (5th Cir. 1963).

BEAULIEU v. HARTIGAN, (D.Mass. 1977)