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March 16, 1972

Charles Laurent FIOCCONI and Jean Claude Kella, Petitioners,

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

Petitioners, Charles Laurent Fiocconi and Jean Claude Kella, citizens of France, were extradited from Italy to this country to stand trial upon an indictment returned in the District Court of Massachusetts, and subsequently were indicted in this district, where they are presently detained under that charge. They seek their release by writ of habeas corpus, alleging that the indictment in this district and the arrest warrants issued thereunder are illegal, void and in violation of their rights under the Constitution and laws of the United States, and the Law of Nations.

 The essence of their claim, in reliance upon United States v. Rauscher *fn1" and United States v. Paroutian, *fn2" is that they "cannot be arrested and tried for any other offense allegedly committed in the United States prior to their extradition other than the specific and separate offense for which they were extradited" -- in sum, they contend they can only be prosecuted for the crime charged in the Massachusetts indictment.

 The Massachusetts indictment was filed on November 20, 1969, and charged petitioners and other defendants with conspiring from September 15, 1968, through April 22, 1969, to import heroin into the United States in violation of 21 U.S.C., section 174. That indictment set forth overt acts committed in New York City, Paris and Boston during April 1969, culminating in one conspirator flying from France to Boston with thirteen pounds of heroin taped to his body. Bench warrants were issued, but the petitioners were not apprehended in this country. They were traced by Interpol to a town in Italy, where in August 1970, they were arrested by Italian authorities. When arrested, they gave false names and were in possession of false passports, for which offense they were convicted in Italy and received five months' sentences. At a preliminary hearing, Fiocconi and Kella announced they intended to resist extradition to the United States, and protracted hearings ensued.

 In September 1970, the United States Embassy in Rome formally requested their extradition, based upon the Massachusetts indictment. In its representation to the Italian government, the Embassy acknowledged that narcotics crimes were not specifically enumerated in the Extradition Convention of 1868 between the United States and Italy, *fn3" and its supplementary conventions. However, it observed that independent of the Treaty, the Italian government can grant extradition when the offenses for which it is requested are also crimes under the laws of Italy, provided the Treaty itself does not expressly restrict extradition for such crimes and there was no such restriction in the existing Convention. The United States Embassy then noted that the crimes with which petitioners were charged under the Massachusetts indictment were also crimes under Italian law; that the offenses charged against them "are serious, and the amount of narcotics in which they were trafficking is great"; and for those reasons and "in view of strong public opinion condemning drug traffic, it is hoped that the Italian government will, as an act of comity," grant the extradition request. To support its request, the United States submitted a copy of the Massachusetts indictment, the bench warrants, the grand jury testimony, photographs to identify the defendants, and an affidavit setting forth the applicable law under 21 U.S.C., section 174. On the basis of the evidence submitted by the United States government and its own evidentiary hearing, the Section for Preliminary Hearings of the Court of Appeals of Florence ruled in favor of the extradition of petitioners to the United States "so that they can be subjected to judgment according to the writ of indictment against them formulated by the Grand Jury of the District . . . of Massachusetts . . . ."

 The order of extradition was upheld on appeal, whereupon petitioners were duly delivered to United States authorities and removed to Boston on October 6, 1971. On the following day, petitioners there entered pleas of not guilty to the indictment; bail was set in the amount of $250,000 for each, which was met by surety bonds secured by a $500,000 certified check drawn on a Swiss bank. Soon after their release on bail, the petitioners were subpoenaed to appear before a grand jury in this district. When they responded thereto they were arrested upon warrants issued under an indictment returned that day by a grand jury in this district. They were charged as sole defendants with receiving, concealing, selling and facilitating the transportation, concealment and sale in the Southern District of New York of approximately thirty-seven kilograms of heroin in violation of 21 U.S.C., sections 173-74. The offense was alleged to have occurred on or about May 27, 1970. Bail was initially set at $250,000 for each defendant, which subsequently was reduced to $100,000 each. On failure to post the additional bail, Fiocconi and Kella were remanded to custody.

 Petitioners thereupon sought their release by a writ of habeas corpus on the ground that the Southern District indictment charged an offense committed prior to extradition and other than that for which they had been specifically extradited. While that application was under advisement, the grand jury returned a superseding indictment on January 4, 1972. *fn4" Bail was again set at $100,000 and petitioners are still in custody. This current indictment charges petitioners and twenty-one other defendants with conspiring to violate narcotics laws *fn5" and with substantive offenses. The alleged conspiracy spanned the period from January 1, 1970, through January 4, 1972. The overt acts alleged in furtherance of the conspiracy included the concealment of heroin in automobiles from May 1970 through October 1971. The two substantive counts wherein petitioners are named charge substantially the same offense as contained in the first Southern District indictment; one count charges the unlawful importation of thirty-seven kilograms of heroin on May 27, 1970, and the other charges the receipt, concealment, sale and facilitation of the transportation, concealment and sale of the same amount of heroin two days later. Thus, the offenses charged in both the conspiracy and substantive counts of the current Southern District indictment are alleged to have occurred subsequent to the commission of the offenses charged in the Massachusetts indictment, but prior to petitioners' extradition from Italy, although the conspiracy is alleged to have continued even after the extradition.

 Accordingly, petitioners contend that their detention under the current indictment in this district is illegal and void, in violation of their rights under the Constitution and laws of the United States, the Law of Nations, and in violation of the warrant of extradition from the government of Italy and the obligations of the United States pursuant thereto, since the offenses charged are other than the offense for which they were extradited and were committed prior to the time of their extradition. *fn6" They charge that their indictment here was not only a violation of their rights, but an act of bad faith against the government of Italy.

 The starting point for their position is United States v. Rauscher. *fn7" There, the defendant had been extradited from Great Britain to the United States pursuant to a treaty between the two governments to stand trial for the extraditable offense of murder on the high seas. The treaty had no express provision restricting the demanding country to try a person only for the crime for which he was extradited. Yet the Supreme Court held that the defendant could not be tried for the different and non-extraditable offense of "cruel and unusual" punishment even though based upon the identical evidence presented in the extradition proceedings.

 The Court looked to the treaty itself, *fn8" and even in the absence of any restriction upon the demanding government, concluded "that the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offence, [for which he was extradited] and for no other." *fn9" The Court pointed to the unarguable proposition that "the treaty [is] . . . the supreme law of the land, which the courts are bound to take judicial notice of, and to enforce in any appropriate proceeding the rights of persons growing out of that treaty . . . ." *fn10"

 The underlying rationale of Rauscher is the obligation assumed by each contracting government under the treaty, the consequent rights in favor of the person ordered to stand trial in the demanding country, and the duty placed upon courts to enforce treaty obligations. Rauscher rests upon a concept that the demanding country is, under the treaty, bound in good faith not to prosecute the extraditee for other than the offense for which the extraditing country agreed to deliver him up for trial. *fn11" Where the demanding government fails to adhere to its commitment to try a person only for the offense for which he was extradited, the treaty deprives the court of jurisdiction to try him for any other offense.

 The petitioners urge that the Rauscher principle also be applied where extradition occurs under the principle of comity rather than pursuant to treaty. However, Rauscher is a recognized exception to the general rules of criminal jurisdiction because the defendant there was extradited under a treaty which foreclosed jurisdiction to try him for offenses other than the one for which he was extradited. His immunity from prosecution under other charges derived from the treaty. Without such a treaty or law, in the words of Ker v. Illinois, *fn12" decided the same day as Rauscher, the defendant is "clothed with no rights which a proceeding under the treaty could have given him." *fn13" Absent a treaty or law which limits jurisdiction, a court may try a defendant for any crime for which he has been properly indicted. And the means by which a defendant is brought before the court are immaterial *fn14" whether he was kidnapped by American agents in flagrant violation of another state's sovereignty, *fn15" or handed over by foreign agents who had not complied with the extradition treaty. *fn16" Violations of international law and acts allegedly constituting breaches of good faith where comity is involved are matters to be resolved by the political and executive branches of the respective governments. *fn17" Courts are without power to remedy breaches of commitments among nations which are not the subject of treaty obligations. In the instant case, with no treaty or law to rely on, any claim that prosecution of petitioners upon charges other than the one specifically referred to in the extradition warrant is in violation of its terms or is a breach of good faith owing from our government to the Italian government is a matter within the competence of the executive branches of both governments. It is not for the courts to interfere in such matters. *fn18"

 Upon oral argument, the prosecution represented that the Italian government has already been requested to indicate it has no objection to the prosecution of Fiocconi and Kella on the current indictment, which, if forthcoming, would dispose of any claim that they could not be so tried *fn19" or that the Italian government considered such prosecution a breach of good faith. The facts surrounding petitioners' extradition proceedings in Italy suggest it is doubtful that any objection will be made by the Italian government in view of petitioners' clandestine presence in Italy, their conviction for using false passports, and that government's refusal to extradite one petitioner to France, his native country, where he was also wanted on a criminal charge in favor of extradition to the United States. The extradition was granted after a hearing upon the representation of our government that with respect to the Massachusetts indictment the amount of narcotics in which petitioners were trafficking was great and that there was "strong public opinion condemning drug traffic," also a crime and a problem in Italy. In the circumstances it is hardly likely that the Italian government would consider it a breach of faith by our government if the petitioners are tried for a crime similar to that for which extradition was granted or have any concern that petitioners are tried in the Southern District of New York instead of the District of Massachusetts.

 Petitioners urge, however, that in fact our Court of Appeals in United States v. Paroutian *fn20" extended Rauscher to those instances where extradition occurred under the principle of comity rather than under treaty. They read too much into that decision. There, the defendant was extradited from Lebanon for "narcotics trafficking" to face trial in the Southern District of New York upon an indictment charging conspiracy to violate the narcotics laws, a copy of which, together with other evidence of the defendant's illegal activities, had been submitted to the Lebanese government. However, the defendant, upon his return here, was tried and convicted in the Eastern District of New York upon an indictment which ...

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