1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM MITCHELL BOWMAN, Case No.: 20-cv-2250-GPC-MSB
12 Plaintiff, ORDER DENYING PETITIONER’S 13 v. MOTION TO STAY PENDING APPEAL 14 STEVEN C. STAFFORD, Acting United States Marshal for the Southern District of 15 California, 16 Defendants. 17
18 On January 14, 2022, Petitioner William Mitchell Bowman (“Petitioner”) filed a 19 Motion to Stay Surrender Pending Appeal. ECF No. 29. The Court set a briefing 20 schedule, and the parties fully briefed the issue. ECF Nos. 30, 33, 34. Having read and 21 considered the parties’ arguments, and for the reasons discussed below, the Court 22 HEREBY DENIES Petitioner’s Motion to Stay Pending Appeal. 23 24 25 26 27 1 I. BACKGROUND1 2 On November 19, 2019, the United States filed a Complaint pursuant to 18 U.S.C. 3 § 3184, seeking Petitioner’s extradition to Scotland based on charges filed against 4 Petitioner by the Scottish Procurator Fiscal of the Court for the Public Interest on April 5 16, 2015. In re Extradition of Bowman, No. 19mj5089-JLB, 2020 WL 6689807, at *1 6 (S.D. Cal. Nov. 13, 2020). Magistrate Judge Jill Burkhardt held an extradition hearing on 7 September 11, 2020. Id. at *2. The Magistrate Judge then issued an order certifying 8 Petitioner as extraditable as to three counts of lewd, indecent, and libidinous practices 9 and behavior, as well as two counts of rape. Id. at *13. Following the Magistrate Judge’s 10 finding, Petitioner filed a Petition for Writ of Habeas Corpus before this Court. ECF No. 11 1. Petitioner argued that Scotland failed to provide the “text of the law” as required by the 12 extradition treaty between Scotland and the United States, that the extradition request 13 failed to provide sufficient and competent evidence to support probable cause, that the 14 request failed to meet the requirements of dual criminality because Petitioner had 15 committed some of the alleged violations as a juvenile, and that the request violated the 16 Fifth and Sixth Amendments of the United States Constitution because the delay in 17 prosecution violated Petitioner’s due process rights. See ECF No. 15, ECF No. 23. After 18 briefing and hearings, this Court issued an Order Denying the Petition for Writ of Habeas 19 Corpus. ECF No. 24. The Court reviewed the Magistrate Judge’s legal rulings de novo, 20 and the Magistrate Judge’s findings of fact for clear error. ECF No. 24 at 5. Ultimately, 21 the Court upheld the Magistrate Judge’s ruling because the Court found competent 22 evidence in the record to support probable cause, and rejected Petitioner’s arguments as 23 24 25 1 The underlying facts of the case are well known to the parties and described in detail in 26 the Court’s previous Order, ECF No. 24. As such, the Court will not reiterate them at length here. 27 1 to the text of the law, the dual criminality requirement, and the Fifth and Sixth 2 Amendments. Id. 3 On January 14, 2022 Petitioner noticed an appeal to the Ninth Circuit as to the 4 judgment denying the Petition for Writ of Habeas Corpus. ECF No. 28. On the same day, 5 Petitioner filed the instant Motion to Stay Surrender Pending Appeal. ECF No. 29. 6 Petitioner argues that he will be irreparably harmed absent a stay because his extradition 7 will have been carried out pending an appeal. Id. at 3. Petitioner also argues that his case 8 presents serious legal questions that are “fairly debatable [and] [s]ome are matters of first 9 impression” which should be heard by the Ninth Circuit. Id. Finally, Petitioner argues 10 that the government will not be harmed by issuance of the stay, because the government 11 could still surrender Petitioner to Scotland should his appeal be denied. Id. at 4. The 12 government opposes the Motion for Stay, arguing that Petitioner has not met his burden 13 in showing he is likely to succeed on the merits—because the Magistrate Judge and this 14 Court have already given serious consideration to Petitioner’s arguments and found them 15 unconvincing. ECF No. 33 at 3. The government also argues that extradition alone does 16 not constitute the requisite irreparable injury that Petitioner must show. Id. at 5. Finally, 17 the government argues that the public interest also includes ensuring that the United 18 States abides by its treaty obligations in honoring the terms of the extradition treaty with 19 Scotland. ECF No. 33. 20 II. LEGAL STANDARD 21 As part of its traditional authority and power to administer justice, a federal court 22 can stay the enforcement of a judgment pending the outcome of an appeal. Nken v. 23 Holder, 556 U.S. 418, 421 (2009). In deciding whether to issue a stay, the Court 24 considers the following four factors: (1) whether the stay applicant has made a strong 25 showing that he is likely to succeed on the merits; (2) whether the applicant will be 26 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure 27 1 the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 2 434. The party requesting a stay bears the burden of showing that circumstances warrant 3 this exercise of the court’s discretion. Id. The first two factors of the traditional standard 4 governing stays are the most critical. Id. Where the government is the opposing party, the 5 third and fourth factors merge. Id. at 435. 6 In the extradition context, a motion for a stay pending appeal employs two 7 interrelated legal tests. Artukovic v. Rison, 784 F.2d 1354, 1355-56 (9th Cir. 1986)). The 8 two tests operate on a single continuum. Id. At one end of the continuum, Petitioner must 9 show both a probability of success on the merits in his appeal and the possibility of 10 irreparable injury. At the other end of the continuum, he must demonstrate that serious 11 legal questions are raised and that the balance of hardships tips sharply in his favor. Id. 12 Further, in extradition cases, the Court must consider “strongly” the public interest as an 13 additional factor. Id. While a petitioner need not demonstrate that it is more likely than 14 not that they will win on the merits, the standard requires a petitioner to show more than 15 the “mere possibility” of success on the merits. Nken, 556 U.S. at 434; see also Leiva- 16 Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (discussing the Nken standard as 17 permitting a stay to issue upon a substantial case on the merits, as long as the other 18 factors support the stay). A petitioner facing removal or extradition must show that 19 irreparable harm is probable if the stay is not granted. Id. at 968. 20 III. DISCUSSION 21 A. Likelihood of Success on the Merits 22 Applying the two interrelated tests, Petitioner has not demonstrated a probability of 23 success on the merits or presented serious legal questions. Nor has he shown that the 24 balance of hardships tips sharply in his favor. 25 Petitioner’s argument that Scotland failed to provide the “text of the law” and 26 therefore has not met the terms of the treaty is one of the issues that Petitioner describes 27 1 as “fairly debatable” and a matter of “first impression.” Fairly debatable does not come 2 close to showing that “it is more likely than not that [Bowman] will win on the merits.” 3 Nor has Petitioner demonstrated that serious legal questions are raised and that the 4 balance of hardships tip sharply in his favor. At most, Petitioner points out that the 5 precise “text of the law” question raised here has not been previously decided.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM MITCHELL BOWMAN, Case No.: 20-cv-2250-GPC-MSB
12 Plaintiff, ORDER DENYING PETITIONER’S 13 v. MOTION TO STAY PENDING APPEAL 14 STEVEN C. STAFFORD, Acting United States Marshal for the Southern District of 15 California, 16 Defendants. 17
18 On January 14, 2022, Petitioner William Mitchell Bowman (“Petitioner”) filed a 19 Motion to Stay Surrender Pending Appeal. ECF No. 29. The Court set a briefing 20 schedule, and the parties fully briefed the issue. ECF Nos. 30, 33, 34. Having read and 21 considered the parties’ arguments, and for the reasons discussed below, the Court 22 HEREBY DENIES Petitioner’s Motion to Stay Pending Appeal. 23 24 25 26 27 1 I. BACKGROUND1 2 On November 19, 2019, the United States filed a Complaint pursuant to 18 U.S.C. 3 § 3184, seeking Petitioner’s extradition to Scotland based on charges filed against 4 Petitioner by the Scottish Procurator Fiscal of the Court for the Public Interest on April 5 16, 2015. In re Extradition of Bowman, No. 19mj5089-JLB, 2020 WL 6689807, at *1 6 (S.D. Cal. Nov. 13, 2020). Magistrate Judge Jill Burkhardt held an extradition hearing on 7 September 11, 2020. Id. at *2. The Magistrate Judge then issued an order certifying 8 Petitioner as extraditable as to three counts of lewd, indecent, and libidinous practices 9 and behavior, as well as two counts of rape. Id. at *13. Following the Magistrate Judge’s 10 finding, Petitioner filed a Petition for Writ of Habeas Corpus before this Court. ECF No. 11 1. Petitioner argued that Scotland failed to provide the “text of the law” as required by the 12 extradition treaty between Scotland and the United States, that the extradition request 13 failed to provide sufficient and competent evidence to support probable cause, that the 14 request failed to meet the requirements of dual criminality because Petitioner had 15 committed some of the alleged violations as a juvenile, and that the request violated the 16 Fifth and Sixth Amendments of the United States Constitution because the delay in 17 prosecution violated Petitioner’s due process rights. See ECF No. 15, ECF No. 23. After 18 briefing and hearings, this Court issued an Order Denying the Petition for Writ of Habeas 19 Corpus. ECF No. 24. The Court reviewed the Magistrate Judge’s legal rulings de novo, 20 and the Magistrate Judge’s findings of fact for clear error. ECF No. 24 at 5. Ultimately, 21 the Court upheld the Magistrate Judge’s ruling because the Court found competent 22 evidence in the record to support probable cause, and rejected Petitioner’s arguments as 23 24 25 1 The underlying facts of the case are well known to the parties and described in detail in 26 the Court’s previous Order, ECF No. 24. As such, the Court will not reiterate them at length here. 27 1 to the text of the law, the dual criminality requirement, and the Fifth and Sixth 2 Amendments. Id. 3 On January 14, 2022 Petitioner noticed an appeal to the Ninth Circuit as to the 4 judgment denying the Petition for Writ of Habeas Corpus. ECF No. 28. On the same day, 5 Petitioner filed the instant Motion to Stay Surrender Pending Appeal. ECF No. 29. 6 Petitioner argues that he will be irreparably harmed absent a stay because his extradition 7 will have been carried out pending an appeal. Id. at 3. Petitioner also argues that his case 8 presents serious legal questions that are “fairly debatable [and] [s]ome are matters of first 9 impression” which should be heard by the Ninth Circuit. Id. Finally, Petitioner argues 10 that the government will not be harmed by issuance of the stay, because the government 11 could still surrender Petitioner to Scotland should his appeal be denied. Id. at 4. The 12 government opposes the Motion for Stay, arguing that Petitioner has not met his burden 13 in showing he is likely to succeed on the merits—because the Magistrate Judge and this 14 Court have already given serious consideration to Petitioner’s arguments and found them 15 unconvincing. ECF No. 33 at 3. The government also argues that extradition alone does 16 not constitute the requisite irreparable injury that Petitioner must show. Id. at 5. Finally, 17 the government argues that the public interest also includes ensuring that the United 18 States abides by its treaty obligations in honoring the terms of the extradition treaty with 19 Scotland. ECF No. 33. 20 II. LEGAL STANDARD 21 As part of its traditional authority and power to administer justice, a federal court 22 can stay the enforcement of a judgment pending the outcome of an appeal. Nken v. 23 Holder, 556 U.S. 418, 421 (2009). In deciding whether to issue a stay, the Court 24 considers the following four factors: (1) whether the stay applicant has made a strong 25 showing that he is likely to succeed on the merits; (2) whether the applicant will be 26 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure 27 1 the other parties interested in the proceeding; and (4) where the public interest lies. Id. at 2 434. The party requesting a stay bears the burden of showing that circumstances warrant 3 this exercise of the court’s discretion. Id. The first two factors of the traditional standard 4 governing stays are the most critical. Id. Where the government is the opposing party, the 5 third and fourth factors merge. Id. at 435. 6 In the extradition context, a motion for a stay pending appeal employs two 7 interrelated legal tests. Artukovic v. Rison, 784 F.2d 1354, 1355-56 (9th Cir. 1986)). The 8 two tests operate on a single continuum. Id. At one end of the continuum, Petitioner must 9 show both a probability of success on the merits in his appeal and the possibility of 10 irreparable injury. At the other end of the continuum, he must demonstrate that serious 11 legal questions are raised and that the balance of hardships tips sharply in his favor. Id. 12 Further, in extradition cases, the Court must consider “strongly” the public interest as an 13 additional factor. Id. While a petitioner need not demonstrate that it is more likely than 14 not that they will win on the merits, the standard requires a petitioner to show more than 15 the “mere possibility” of success on the merits. Nken, 556 U.S. at 434; see also Leiva- 16 Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (discussing the Nken standard as 17 permitting a stay to issue upon a substantial case on the merits, as long as the other 18 factors support the stay). A petitioner facing removal or extradition must show that 19 irreparable harm is probable if the stay is not granted. Id. at 968. 20 III. DISCUSSION 21 A. Likelihood of Success on the Merits 22 Applying the two interrelated tests, Petitioner has not demonstrated a probability of 23 success on the merits or presented serious legal questions. Nor has he shown that the 24 balance of hardships tips sharply in his favor. 25 Petitioner’s argument that Scotland failed to provide the “text of the law” and 26 therefore has not met the terms of the treaty is one of the issues that Petitioner describes 27 1 as “fairly debatable” and a matter of “first impression.” Fairly debatable does not come 2 close to showing that “it is more likely than not that [Bowman] will win on the merits.” 3 Nor has Petitioner demonstrated that serious legal questions are raised and that the 4 balance of hardships tip sharply in his favor. At most, Petitioner points out that the 5 precise “text of the law” question raised here has not been previously decided. A matter 6 of first impression does not alone establish the existence of a serious legal question. On 7 this issue, the Magistrate Judge opined that “the Court does not find Bowman’s position 8 to be a reasonable reading of the Treaty.” In re Extradition of Bowman, No. 19mj5089- 9 JLB, 2020 WL 6689807, at *6 (S.D. Cal. Nov. 13, 2020). Similarly, this Court declined 10 to adopt Petitioner’s reasoning because to do so would be to “unravel an entire treaty.” 11 ECF No. 24 at 9. 12 Petitioner’s probable cause arguments were likewise twice rejected, with the 13 Magistrate Judge finding that Scotland had established probable cause because the 14 extradition request “meets all the requirements as to form and content set forth in the 15 language of the Treaty.” 2020 WL 6689807 at *9. This Court, in proceeding on 16 Petitioner’s writ of habeas corpus, then affirmed the Magistrate Judge’s ruling on 17 probable cause. ECF No. 24 at 13-17 (discussing competent evidence in the record 18 supporting the Magistrate Judge’s findings and distinguishing Petitioner’s cited cases). 19 Both courts also rejected Petitioner’s dual criminality arguments, in part because “there is 20 probable cause to believe that some of the criminal conduct occurred while Bowman was 21 an adult . . . [and] even if Bowman had been a juvenile for all of the charged criminal 22 conduct, the Court would not be persuaded that this would defeat dual criminality.” 2020 23 WL 6689807 at *11; see also ECF No. 24 at 11 (concluding that the operative inquiry is 24 not whether the proceedings would have been criminal or civil, but whether the conduct 25 could have been punishable in the United States by a deprivation of liberty for a year or 26 more). 27 1 Finally, both courts squarely rejected Petitioner’s Fifth and Sixth Amendment 2 arguments because the argument “contravenes countless precedents, where it has long 3 been settled that United States due process rights cannot be extended extraterritorially.” 4 Id. at 12 (citing Kamrin v. United States, 725 F.2d 1225, 1228 (9th Cir. 1984); see also 5 2020 WL 6689807 at *12 (“Because extradition proceedings are not criminal in nature, 6 the Fifth and Sixth Amendment speedy trial protections, which by their terms are only 7 available in criminal cases, are unavailable in extradition cases.”) This Court is therefore 8 left without any basis for finding that Petitioner has shown a likelihood of success on the 9 merits. The lack of disagreement between both the Magistrate Judge and this Court in 10 evaluating any of Petitioner’s arguments, as well as the clear and conclusive rejections 11 from both courts after considering these arguments, weigh against a stay. 12 B. Irreparable Injury 13 Petitioner argues that irreparable injury will result without a stay because he will 14 be extradited, thus depriving him of the opportunity to litigate his claims before the Ninth 15 Circuit. ECF No. 34 at 3. Petitioner cites to Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 16 1986) for the premise that “[t]he possibility of irreparable injury to [Petitioner] if we deny 17 his motion is evident: his appeal will become moot and will be dismissed since the 18 extradition will have been carried out.” Petitioner fails to add, however, that the Ninth 19 Circuit went on to note that “[t]he balance of hardships, however, is tempered by 20 [Petitioner’s] ability to defend himself at trial in Yugoslavia,” and ultimately denied his 21 motion to stay extradition pending appeal. Furthermore, a Petitioner must show that the 22 irreparable harm is specific to his case, as opposed to a reason that would apply equally 23 to all others in all cases. In re Extradition of Mathison, 974 F. Supp. 2d 1296, 1305 (D. 24 Or. 2013) (citing Leiva-Perez v. Holder, 640 F.3d 962, 969 (9th Cir. 2011)). The 25 Supreme Court has also held that removal itself is not categorically irreparable. Nken, 26 556 U.S. 418 at 435. 27 1 Here, Petitioner has not pointed to irreparable injury beyond the removal itself, and 2 has not shown that any unique harm specific to his case would follow extradition. Even if 3 Petitioner’s extradition alone could constitute the requisite irreparable harm, extradition 4 is not an inevitability. The Secretary of State determines in his discretion whether an 5 individual will be surrendered. Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005); 6 see also United States v. Kin-Hong, 110 F.3d 103 (1st Cir. 1997) (describing Secretary of 7 State’s sole discretion to either order the extradition carried out, or to decline to surrender 8 the relator on a number of discretionary grounds). In Petitioner’s case, the Secretary of 9 State has not yet made that determination, and it remains to be seen whether Petitioner 10 will in fact be extradited and removed. Further, as in Artukovic, the balance of hardships 11 is allayed by Petitioner’s ability to defend himself in any future trial in Scotland. In sum, 12 Petitioner has not provided adequate grounds to show that irreparable harm is probable if 13 the stay is not granted. 14 C. Injury to Other Parties and the Public Interest 15 The third and fourth factors merge when the government is the opposing party. 16 Leiva-Perez, 640 F.3d at 970. Petitioner argues that the public has an interest in “ensuring 17 the orderly adjudication of an appeal,” and that the government’s interests will not be 18 injured because “[i]f Mr. Bowman’s appeal were to be denied, the government could then 19 surrender him to the Scottish authorities.” ECF No. 29 at 4. Petitioner does not cite to any 20 cases in support of its contentions that the public interest lies in the pursuit of an appeal. 21 The government counters that the public interest also lies in ensuring that the United 22 States abides by its treaty obligations. ECF No. 33 at 6. 23 The public interest will be served by the United States’ compliance with a valid 24 extradition application under its treaty with Scotland. “Such proper compliance promotes 25 relations between the two countries, and enhances efforts to establish an international rule 26 of law or order.” Artukovic, 784 F.2d at 1356; see also Perez v. Mims, No. 16-cv-1935, 27 1 WL 374350, at *5 (E.D. Cal. Jan. 26, 2017) (“The Court cannot disregard the 2 ||Government’s interest in preserving an extradition treaty that also returns fugitives from 3 || American justice to the United States’). Therefore, the public interest weighs against the 4 ||issuance of a stay as well. 5 CONCLUSION 6 The Court concludes that Petitioner’s case does not raise serious legal questions 7 weigh in favor of a stay, nor does the balance of hardships tip sharply in his favor. 8 || Because Petitioner has not shown that he is likely to succeed on the merits, has failed to 9 || demonstrate irreparable injury absent a stay, and because the public interest weighs 10 || against granting a stay in this case, the Court HEREBY DENIES Petitioner’s Motion to 11 || Stay Surrender Pending Appeal. 12 IT IS SO ORDERED. 13 || Dated: February 2, 2022 72 14 Hon. athe Cae 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 20-cv-2250-GPC-MSB