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IN RE D'AMICO

October 4, 1959

In re EXTRADITION of Vito D'AMICO


The opinion of the court was delivered by: BRYAN

Relator, in custody of the United States Marshal in extradition proceedings brought by the Republic of Italy, seeks his release under writ of habeas corpus. The extradition proceedings are brought for a crime allegedly committed by relator in Italy in the year 1946. Extradition is sought pursuant to the Convention of 1868 between Italy and the United States (15 Stat. 629) as amended by the Supplementary Convention of 1844 (24 Stat. 1001). The Republic of Italy requested the Secretary of State of the United States to secure D'Amico's arrest as a preliminary to his extradition. The Secretary of State then issued a certificate which authorized D'Amico's arrest and the commencement of extradition proceedings. 18 U.S.C. § 3184. *fn1"

The United States Commissioner for the Southern District of New York, duly authorized to act in the premises, issued a warrant for the arrest of D'Amico after receiving a complaint from a Consular Agent of the Republic of Italy in the State of New York. After D'Amico's arrest a hearing, as required by Section 3184, was held before Commissioner Bishopp on October 21, 30 and November 12, 1958, at which relator was represented by counsel. At the conclusion of the hearing the Commissioner found (1) that Vito D'Amico is the person mentioned in a judgment filed in Italy by the Court of Assize of Trapani on January 23, 1952; (2) that the evidence adduced at the hearing established that D'Amico was sought for the crimes of kidnapping and robbery as those crimes are understood both in Italy and the State of New York; (3) that there was probable cause to believe that these offenses were committed by D'Amico; and (4) that D'Amico is extraditable under the applicable treaties.

 D'Amico was remanded to the custody of the United States Marshal. He petitioned this court for a writ of habeas corpus, which was issued. Bail was granted pending determination of the issues. The Commissioner's return to the writ was accompanied by the minutes of the testimony taken at the hearing and all of the documents in evidence, and asserts that the detention of D'Amico is lawful under Section 3184 and the applicable extradition treaty.

 Most of relator's allegations in his petition for a writ are vague claims of unlawful detention. His most specific allegation is that his detention and restraint is unlawful in that the Italian government does not have 'jurisdiction', nor did it 'have jurisdiction at the time when it is alleged that the above named Vito D'Amico was in pari delicto with other persons' in commission of the crimes charged on or about April 15, 1946. He further alleges that he is 'prepared to show that he at no time had any connection with the alleged crime * * *. *fn2" That he is not committed or detained by virtue of any process or mandate issued by any court of the United States except that Commissioner Earle Bishopp for the Southern District of New York has seen fit to commit and detain him for the State Department of the United States, and ultimately for the Republic of Italy'.

 When the matter came on to be heard before me relator did not request a hearing on any issues of fact and relied wholly on the record before the Commissioner, as does the Commissioner and the Republic of Italy. In addition to the questions specifically raised in his petition he now claims, as he did before the Commissioner, that he is not the Vito D'Amico sought by the Government of Italy, and that certain evidence at the Commissioner's hearing was the fruit of an illegal search and seizure in violation of his rights under the Fourth Amendment to the Constitution of the United States.

 The scope of inquiry by this court on application for a writ of habeas corpus in an extradition case is narrowly circumscribed. See Ornelas v. Ruiz, 161 U.S. 502, 16 S. Ct. 689, 40 L. Ed. 787. However, even assuming that relator was entitled to a full review of the facts, the Commissioner's findings are fully supported by the evidence and he committed no errors of law.

 The crimes for which relator's extradition is sought were committed on or about April 15, 1946, in the Province of Palermo in the Republic of Italy. The evidence adduced at the Commissioner's hearing included statements taken from the victim of the crimes and D'Amico's confederates. These statements were taken pursuant to Italian criminal procedure and were certified by the American Embassy in Rome as 'properly and legally authenticated so as to entitle them to be received in evidence for similar purposes by the tribunals of the Republic of Italy. * * *' The statements were therefore admissible at the hearing before the Commissioner. 18 U.S.C. § 3190. The decision of the Court of Assize of Trapani finding D'Amico and his codefendants guilty of the crimes charged were also included under the same certification. *fn3"

 The evidence fully supports the Commissioner's finding that there is probable cause *fn4" to believe (a) that the crimes for which extradition is sought were committed, and (b) that D'Amico is guilty of them.

 The crimes charged are those of 'aggravated robbery' and kidnapping for the purpose of extortion under Articles 628 and 630 of the Italian Penal Code.

 The evidence showed probable cause that on about April 15, 1956, in Palermo, a province of Italy, D'Amico and four others seized one Meo Vincenzo and kept him prisoner for several days; that they forced him to write a note demanding ransom in the sum of four million lire; and that at the time the victim was seized the kidnappers took from his home a substantial quantity of personal property and a smaller amount of money. Ultimately the victim was released without payment of ransom, apparently because the criminals' identity had become known to some of his relatives.

 It is unnecessary to discuss in detail the statements of the witnesses, or to analyze the decision of the Italian court. It is sufficient to say that D'Amico's participation in the crime was testified to by one of his codefendants, and D'Amico's home was identified by the victim as the place where he was imprisoned for several days by the kidnappers.

 Relator does not deny that the crimes for which extradition is sought were committed or that there is no probable cause to believe that a Vito D'Amico is guilty of them. He claims that he is not the Vito D'Amico sought.

 No direct identification was made of D'Amico before the Commissioner but, quite apart from the identity of name, circumstantial evidence was adduced which convincingly demonstrates that the wanted D'Amico and relator are one and the same person.

 Relator claims part of this evidence of identity is infected with the taint of an illegal search. A passport and a document relating to the conveyance of certain lands were found at D'Amico's home by the Marshals who arrested him. It is claimed that the search which led to the discovery of these documents was unlawful since no search warrant had issued. Passing the question of whether the same constitutional standards apply to extradition proceedings and criminal trials, it is clear that there was no unlawful search. The Marshal testified that he was in possession of a warrant of arrest when he went to the ...


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