In the Matter of the Requested Extradition of James Joseph Smyth. United States of America v. James Joseph Smyth

976 F.2d 1535, 92 Cal. Daily Op. Serv. 8286, 92 Daily Journal DAR 13600, 1992 U.S. App. LEXIS 25100, 1992 WL 259367

Opinion

ORDER

The court has received and reviewed the district court’s supplemental findings of fact, which were submitted pursuant to this court’s limited remand of September 8, 1992. The court concludes that the record does not support the district court’s finding of “special circumstances.” The need to consult with counsel, gather evidence and confer with witnesses, although important, is not extraordinary; all incarcerated defendants need to do these things. See, e.g., Koskotas v. Roche, 931 F.2d 169 (1st Cir.1991) (need to consult with counsel insufficient to justify release); In the Matter of the Extradition of Russell, 805 F.2d 1215 (5th Cir.1986) (same). There is therefore nothing which justifies Smyth’s release. Accordingly, appellant’s petition for rehearing is granted and the suggestion for rehearing en banc is rejected. The district court's order of July 24, 1992, 795 F.Supp. 973, which granted appellee’s motion for bail in CR-92-152-MISC-BAC (extradition), is reversed.

Appellee’s motion to strike certain portions of the petition for rehearing is denied.

TANG, J., dissents. He would deny rehearing.