The opinion of the court was delivered by: KNIGHT
This is a proceeding on application by the government of the Republic of Italy for the extradition of one Carl George LoDolce, aldo sometimes called 'Carlo Giorgio LoDolce', from the United States to Italy on charges of highly pluri-aggravated homicide and robbery.
The facts disclosed in the description of the crimes are so gruesome as to be almost unbelievable were they not supported by the written and oral confessions of LoDolce and the testimony of numerous other individuals.
During World War II, in the fall of 1944, while an American army was fighting a German army in Italy, various allied 'missions' were set up to contact the 'underground' Italian partisans behind the German lines to assist and direct their movements and to succor them with supplies. In other words the purpose was to combine the efforts of the partisans with the allies.
In October, 1944, LoDolce was assigned to a mission of the United States army called the 'Chrysler Mission' which was composed of Captain Victor Giannino, Sergeant Arthur Ciarmicoli and Sargeant LoDolce. All were citizens of the United States and members of its army. The mission was ordered to and did operate in the northern part of Italy behind the German line. Its base was shifted from time to time until it contacted another United States army mission known as the 'Mangestine Mission' composed of Major William v. Holohan, who was in command, Lieutenant Aldo Icardi, two Italian citizens one named Landi and the other a radio operator known as 'Red'. The two missions met at the Villa Castelnuovo, Provinde of Novaro, in the locality of S. Maurizio d'Opaglio. Shortly thereafter Giannino and Ciarmicoli left the others to go farther north to make contact with different groups of partisans. The remaining members of the two missions stayed and LoDolce continued to operate from Mangestine Mission.
On the evening of December 6, 1944, Major Holohan disappeared and searches failed to disclose what had happened to him. On June 16, 1950, Major Holohan's body was recovered from Orat Laje, a nearby lake. When he disappeared there were present with him at the villa, Captain Icardi, LoDolce and partisans Manini Giuseppe and Tozzini Gualtiero. The testimony and exhibits disclose that Major Holohan was in disfavor with Icardi and LoDolce, especially Icardi. It seems that Icardi was the individual who mainly directed the acts which took place. Manini, and Icardi's direction, procured some potassium cyanide. At the evening meal some of this deadly poison was placed in Holohan's soup and he ate the soup. The Major was evidently made sick from the poison. He went upstairs to his room, returned downstairs, complained of being ill and returned to his bedroom. Fearful that the attempt to poison Holohan might be discovered they decided to kill him. Manini refused to do the killing. Icardi and LoDolce flipped a coin to decide who must do away with Holohan and LoDolce lost. LoDolce took Manini's revolver and with Icardi, Manini and Tozzini were present at the shooting. Icardi then took a sum of money from the Major's haversack. The dead man, Holohan, was tied up in a bag, carried to a boat waiting at the lake, weighted and thrown into the water. In this lake the body was found.
Icardi was second in command and took over and continued the mission. LoColce remained with the mission until April, 1946, when he rejoined the American forces. He was discharged from the army the following October and was awarded the Legion of Merit for meritorious service. Without in the least condoning the actions of LoDolce, it is to be said that Icardi was the leader in this atrocious crime. The long record before this Court discloses that there had been hard feelings towards Holohan by Icardi and Icardi had the chance to succeed with Mission leader through Holohan's death.
In this proceeding there is no dispute that Major Holohan was murdered and robbed or that the crimes were committed in Northern Italy behind the German army line. Nor is there dispute that the mentioned crimes are crimes designated in the Treaty of 1868 between the United States of America and the Kingdom of Italy, 15 Stat. 629, for which extradition may be demanded.
At the time of the commission of the alleged crimes in 1944, a state of war existed between the United States and Germany. It cannot be disputed that at that time a state of war also existed between the United States and Italy. The military hostilities between the United States and Italy had been suspended by the armistice. As defined by the United States army in its Basic Field Manual, Rules of Land Warfare, Rule 253, 'An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties'. See also Webster's Dict. and Hague Peace Convention, Art. 36. An armistice does not mean a conclusion of war. It is a step intended to lead to a treaty of peace. From time to time following the armistice agreement, steps looking to the removal of many things hampering the Italian people were taken. The duties of the Control Commission, which was established to supervise the terms of the armistice, were gradually lessened until it was largely removed. On September 15, 1947, a treaty of peace between the United States and the Republic of Italy became effective, 47 Stat. 1245.
The claim as made by the complainant is that the grant of the directive by the Secretary of State is not a 'ministerial act', but an act of discretion, and that 'the only conclusion possible is that the State Department has concluded that the accused in the instant case has committed a crime within the jurisdiction of Italy and is not exempt from the judicial jurisdiction of that country'. No merit is seen in this claim. In the first place any such conclusion is denied in the instant case by the letters of Congressmen written by the Department of State. Further the practice for extradition is governed by 18 U.S.C.A. § 3184 where the Secretary of State submits the matter for determination by the Court in the first instance. The Court's decision denying extradition is not reviewable, while a decision granting a certificate is. The directive from the Department clearly shows that the function of the Secretary of State in the first instance is to submit the entire matter to the Court. The concluding clause of the directive reads:
'Now, Therefore, to the end that the above-named officers, or any of them, may cause the necessary proceedings to be had, in pursuance of said laws, in order that the evidence of the criminality of the said Carl George LoDolce may be heard and considered, and if deemed sufficient to sustain the charges, that the same may be certified, together with a copy of all the proceedings, to the Secretary of State * * *.' (Emphasis mine.) See In re Lucke, D.C., 20 F.Supp. 658, and cases cited.
As was said in part in letters to the various Congressmen,
'In view of the fact that this Department is charged by law with the duty of reviewing these extradition cases in which an extradition magistrate finds that a proper case for surrender has been made out under the treaty, the Department carefully avoids expressing any view concerning the case prior to its receipt from the extradition magistrate.'
It is true that where it is clear that the individual sought does not come within the Treaty provisions for extradition, the Department of State may deny extradition without submission to any court or commissioner. Harvard Research Int. Law, Extradition, 29 American Journal Int. Law, supp. 166 et seq. The Department has not waived its right to claim immunity. The case cited by the complainant from Hackworth Digest of International Law, Vol. 4, p. 94, was one in which extradition was denied by the Department because the offense had been committed in the United States and the individual or person sought had been convicted here. The distinction is clear.
Pursuant to the directive in sequence, this Court issued a warrant for the apprehension of Carl George LoDolce; LoDolce was thereupon arrested and brought before this Court; the Italian Government was represented by counsel; LoDolce was represented by counsel; hearing was had, proof was adduced, arguments were ...