THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as In re Extradition of Jano,
6 FSM Intrm. 62 (App. 1993)

[6 FSM Intrm. 62]

In re the Extradition of MARTIN JANO.

APPEAL CASE NO. P4-1993

MEMORANDUM OF DECISION

Richard H. Benson
Associate Justice

Hearing:  April 6, 1993
Decided:  May 12, 1993
Amended:  June 14, 1993

APPEARANCES:
For the Petitioner:         Marvin Hamilton, Esq.
                                        Office of the Public Defender
                                        P.O. Box 425
                                        Colonia, Yap  FM  96943

For the Respondent:     Michael Brady, Esq.
                                        Assistant Attorney General
                                        Office of the FSM Attorney General
                                        P.O. Box PS-105
                                        Palikir, Pohnpei  FM  96941
   
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HEADNOTES
Extradition
     Extradition is not a criminal action although it involves a criminal accusation.  The specific provisions of the international extradition statute apply rather than the general provisions of Title 12, chapter 2.  In re Extradition of Jano, 6 FSM Intrm. 62, 63 (App. 1993).

Criminal Law and Procedure ) Bail; Extradition
     Once a justice certifies an accused as extraditable, the justice must then commit the person to the proper jail until surrendered.  The extradition statute does not give the court the authority to release a person on bail pending any judicial review of the certification.  In re Extradition of Jano, 6 FSM Intrm. 62, 63 (App. 1993).

Criminal Law and Procedure ) Bail; Extradition
     In an international extradition case, bail can be granted only if "special circumstances" are shown.  Neither risk of flight nor the availability of a suitable custodian are primary considerations.  Rather the primary consideration is the ability of the government to surrender the accused to the requesting government.  In re Extradition of Jano, 6 FSM Intrm. 62, 64 (App. 1993).

[6 FSM Intrm. 63]
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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The petitioner, Martin Jano, has moved for release on bail pending the determination of his appeal of the trial division's denial of his petition for a writ of habeas corpus.  The petitioner is in custody pursuant to Justice Amaraich's Order of January 27, 1993 following his certification of the petitioner's extraditability.

     I denied the petitioner's motion for release on bail after a hearing in open court on April 1, 1993.  The petitioner moved for reconsideration.  My order of April 16, 1993 denied that motion.  This memorandum is to set forth my reasons for doing so.

I.
     The petitioner has applied for bail based on 12 F.S.M.C. 217, 218(5).1  Petitioner has represented to the court that he is not a flight risk.  The Nanmwarki of Kitti has offered to be the Mr. Jano's custodian if he is released on bail.

     I am satisfied that Mr. Jano poses little risk of flight.  I am further satisfied that there is no better a custodian than the Nanmwarki of Kitti.

     This, however, is not a criminal action although it involves a criminal accusation. Therefore the general provisions of Title 12, chapter 2 do not apply.  Rather the specific provisions of the international extradition statute do apply.  Additionally, where there are statutes of both general and specific application, it is the specific statute that should be applied.  Cf.  Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987).

II.
     In extradition matters the court's authority is derived from Public Law 5-22 (to be codified as 12 F.S.M.C. 1401 et seq.).  Section 3 (to be codified at 12 F.S.M.C. 1402) authorizes the justice presiding over the extradition hearing to determine whether the accused is extraditable.  If the justice certifies the accused as extraditable then the justice "shall issue his warrant for the commitment of the person to the proper jail, there to remain until such surrender is made."  Id.

     The extradition statute as enacted by Congress does not appear to give the court authority to release a person on bail pending any judicial review of the certification of extraditability.  This provision, 12 F.S.M.C. 1402, is drawn virtually verbatim from 28 U.S.C. 3184.  When a statute is borrowed from another jurisdiction it will be given the same construction as that of the original jurisdiction. Kallop v. FSM, 4 FSM Intrm. 170, 174 (App. 1989); Carlos v. FSM, 4 FSM Intrm. 17

[6 FSM Intrm. 64]

, 26, reh'g denied, 4 FSM Intrm. 32 (App. 1989) ("When statutory language is drawn from another jurisdiction, the presumption is that the  borrowing legislature expects the new statute to have the same meaning as the original one."); Laion v. FSM, 1 FSM Intrm. 503, 509, 517 (App. 1984); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984) ("It is a settled rule of statutory construction that a statute adopted from another jurisdiction is presumed to have been adopted as construed by the courts of that jurisdiction."); FSM v. Oliver, 3 FSM Intrm. 469, 478 (Pon. 1988).

     United States courts have interpreted its statute to mean that in international extradition cases bail could be granted only if "special circumstances" were shown.  Otherwise the general presumption is that no bail can be granted.  Wright v. Henkel, 190 U.S. 40, 63, 23 S. Ct. 781, 787, 47 L. Ed. 948, 956 (1903); In re Extradition of Russell, 805 F.2d 1215, 1216 (5th Cir. 1986).

     Neither risk of flight nor availability of a suitable custodian are primary considerations.  Rather the primary consideration is the ability of the government to surrender the accused to the requesting government.  See, e.g., United States v. Leitner, 784 F.2d 159, 160 (2d Cir. 1986).

     Petitioner has not shown any "special circumstances" that would allow the court to grant bail.  Most of the circumstances cited in the petitioner's motion for reconsideration pertain primarily to whether the petitioner is a flight risk.  As I have stated, risk of flight is not the primary consideration.

     The other circumstances the petitioner cites are not of such a unique and compelling nature as to be classified "special circumstances."  Id. at 161.  "[C]ases have limited `special circumstances' to situations where `the justification is pressing as well as plain' or `in the most pressing circumstances, and when the requirements of justice are absolutely preemptory.'"  United States v. Williams, 611 F.2d 914, 915 (1st Cir. 1979) (citations omitted).

     Furthermore, petitioner has cited a number of cases in support of the proposition that in the United States there has been a trend toward liberalization in the granting of bail in international extradition cases.  I wish to express concern over what appears to be some mischaracterization of the cases cited in support.

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Footnotes:

1.  At the hearing petitioner's attorney cited numerous Am. Jur. 2d sections as indicating a presumption in favor of bail.  He overlooked the following:  "Generally, where a person is held as a fugitive from justice under an extradition warrant, he should not be released on bail pending a decision in a habeas corpus proceeding to test the legality of his arrest."  8 Am. Jur. 2d Bail and Recognizance 12, at 591 (1980).
                                                                                                                                                                                                                                                                                                           
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