Interesting Petition: No. 06-715, Choe v. United States

By Amy Howe
on May 3, 2007 at 12:32 pm

As part of our ongoing effort to feature interesting cert. petitions currently pending at the Court, today we bring you No. 06-715, Choe v. United States (Petition, BIO, Reply). At issue in Choe is whether, as a result of the Supreme Court’s decision in Wright v. Henkel over a century ago, defendants awaiting extradition to another country must show “special circumstances” to obtain bail, even if they are found to pose no danger to society or risk of flight.

Petitioner Man-Seok Choe is a Korean-American businessman who has lived in the U.S. for over thirty years. In February 2006, he was arrested by U.S. Marshals as a result of an extradition request by South Korea, which accuses him of bribing government officials in Korea in connection with a government contract there. A magistrate judge found that Choe was neither a flight risk nor a danger to the community (which ordinarily would entitle him to bail) but nonetheless denied bail, reasoning that Wright v. Henkel and circuit precedent precluded bail in extradition cases unless the applicant could show “special circumstances.” The district court upheld the magistrate judge’s determination, and the Ninth Circuit rejected Choe’s appeal, so Choe now seeks Supreme Court review.

In his petition, Choe – represented by counsel of record William J. Genego of Los Angeles’s Nasatir, Hirsch, Podberesky & Genego – contends that the lower courts have simply (but consistently) misconstrued Wright, in which the Court held that bail should not ordinarily be granted in extradition cases but declined to hold that courts “may not in any case, and whatever the special circumstances, extend that relief.” The Court’s reference to “special circumstances,” Choe explains, merely meant that lower courts could and should look at “the particular circumstances or totality of the circumstances present in any given extradition case.”

The United States initially waived its right to respond, but in December the Court called for a response. Opposing certiorari, the government argues first that the question presented is moot insofar as Choe has subsequently been found extraditable; by statute, the magistrate judge is now required to issue a warrant for Choe’s commitment, and Choe is required to remain in jail until he is extradited to Korea. (Choe counters in his reply brief that (inter alia) his case is not moot because he has not yet been extradited and is seeking federal habeas relief as well; even if it were moot, review would still be warranted because the controversy would be capable of repetition yet evade review.) The U.S. further contends that, in any event, the denial of bail is fully consistent with Wright, which requires “an exceptional showing to obtain bail” that is absent in Choe’s case. Indeed, the United States emphasizes, the courts of appeals have uniformly agreed that “special circumstances” must be shown in extradition cases.

The case has been distributed for consideration at the Court’s private conference on May 17, 2007.