UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
March 6, 1979
In the Matter of the Extradition of Sergio LOCATELLI, a/k/a "Sergio Luigi Locatelli", a/k/a "Guido Zaccaria"
The opinion of the court was delivered by: DUFFY
The Government of Switzerland has formally demanded the extradition of Sergio Locatelli in order that he may stand trial there for a series of business-related crimes allegedly committed by him between 1971 and 1976. The instant proceedings
were begun by the United States on behalf of the Swiss Government pursuant to 18 U.S.C. § 3184.
On February 20, 1979 an extradition hearing was held before me, as required under § 3184, to determine whether the evidence presented by the Swiss Government to sustain the charged offenses under the applicable treaty of extradition was sufficient to mandate issuance of a certificate of extradition. Based upon the documents submitted and the arguments presented, including the unsworn testimony of Sergio Locatelli, I find that all the terms of the treaty have been met and there is more than sufficient evidence, to which no viable explanation was offered to warrant issuance of the certificate.
Sergio Locatelli is apparently a notorious figure in the world of documentary films. He claimed that he has, during his career, produced a number of documentaries dealing with the plight of the migrant worker. In this regard, he allegedly has critically focused much of his attention upon the poor treatment of Italian migrant workers in his native Switzerland.
The specific charges lodged by the Swiss Government against Locatelli may be separated into three categories:
(1) Fraud and forgery involving two business loans to which one Alfred de Schulthess was guarantor;
(2) Fraud perpetrated against two Swiss banks in the unauthorized transfer of funds; and
(3) Fraud involving the use of an American Express Company credit card without intending to pay the charges incurred.
Alfred de Schulthess:
Concerning his dealings with de Schulthess, Locatelli is charged with having fraudulently induced de Schulthess by the use of certain forged documents to guarantee two loans which Locatelli said were to be used to finance commissioned television films. The films, however, were apparently never commissioned and upon Locatelli's default on the loans, de Schulthess was left to make good for the monies.
The conduct alleged is in violation of Articles 148 and 251 of the Swiss Penal Code.
Here Locatelli is charged with attempted fraud, in violation of Articles 21, 22
and 148 of the Swiss Penal Code, against two Swiss banks. The fraud against the first bank consisted of Locatelli's impersonating a bank official and directing the transfer of substantial funds to the account of Mr. Della Valle. Apparently Locatelli owed Della Valle a substantial amount of money and rather than pay it from his own funds he, disguised as a bank official, authorized repayment with the bank's funds.
The second incident involved a similar attempt by Locatelli to defraud a bank. Here, however, Locatelli, again impersonating a bank official, authorized the withdrawal of substantial funds by one Emilio Bo. When Mr. Bo attempted to withdraw the funds, he was arrested by Swiss police and he later confessed that it was Locatelli who set the scheme up.
Here, Locatelli is charged with fraud under Article 148 of the Swiss Penal Code in that he intentionally used his American Express card on repeated occasions in Italy without ever paying the monthly charges due. Since Locatelli is a Swiss citizen, he is, under Article 6 of the Swiss Penal Code, punishable in Switzerland for this offense.
The applicable treaty is entitled Treaty of Extradition of May 14, 1900 between Switzerland and the United States. 31 STAT. 1928. The pertinent Articles provide:
The Government of the United States of America and the Swiss Federal Council bind themselves mutually to surrender such persons as, being charged with or convicted of any of the crimes or offenses enumerated hereinafter in Article II, committed in the territory of one of the contracting States, shall be found in the territory of the other State: Provided that this shall be done by the United States only upon such evidence of criminality as, according to the laws of the place where the fugitive or person shall be found, would justify his apprehension and commitment for trial if the crime or offense had been there committed. In Switzerland, the surrender shall be made in accordance with the laws in force in that country at the time of the demand.
Neither of the two Governments, however, shall be required to surrender its own citizens.
Extradition shall be granted for the following crimes and offenses, provided they are punishable both under the laws of the place of refuge and under those of the State making the requisition, to wit:
4. The counterfeiting or forgery of public or private instruments; the fraudulent use of counterfeited or forged instruments.
5. The forgery, counterfeiting or alteration of coin, paper-money, public bonds and coupons thereof, bank notes, obligations, or other certificates or instruments of credit, the emission or circulation of such instruments of credit, with fraudulent intent; the counterfeiting or forgery of public seals, stamps or marks, or the fraudulent use of such counterfeited or forged articles.
6. Embezzlement by public officials, or by other persons, to the prejudice of their employers; larceny; obtaining money or other property by false pretences; receiving money, valuable securities or other property, knowing the same to have been embezzled, stolen or fraudulently obtained. The amount of money or the value of the property obtained or received by means of such criminal acts, must exceed 1000 francs.
Extradition shall likewise be granted for an attempt to commit, or participation in, any of the crimes and offenses enumerated in Article II, provided such attempt or participation is punishable in the United States as a felony, and in Switzerland with death, or confinement in a penitentiary or workhouse.
As indicated in the above quoted material, all three series of fraudulent conduct allegedly engaged in by Locatelli constitute crimes in Switzerland which are expressly extraditable under the treaty.
The treaty provides, however, that before extradition will be permitted, the offenses alleged must also constitute a crime where the fugitive is found. In this regard, the evidence submitted on behalf of the country seeking extradition must be sufficient to justify the accused person's arrest and committal for trial under the procedures applicable "in the location where the fugitive is found."
The phrase "the law of the place where the fugitive is found" has been interpreted to refer to the laws of the state where the fugitive was arrested rather than to the laws of the United States. Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir. 1973). In addition, upon reference to state law and identification of the applicable crime thereunder, the requesting nation must produce sufficient evidence to show that there is probable cause to believe that said crime was committed by the extraditee. Matter of Sindona, 450 F. Supp. 672 (S.D.N.Y.1978).
Consequently, in the case at bar the law of New York, as the location of Locatelli's arrest, is the necessary starting point.
The acts with which Locatelli is charged, if committed in New York, would violate the larceny and forgery provisions of the New York Penal Law. N.Y. Penal Law
§§ 155.05, 170.10, and 110.00 (McKinney 1975).
Moreover, in light of the amount of money involved in each of the charged frauds and the type of documents allegedly forged, all the offenses would constitute felonies in New York.
In addition, it should be noted that the charged offenses would also constitute federal offenses. The alleged conduct would be punishable as mail or wire fraud pursuant to 18 U.S.C. §§ 1341, 1343.
The sole question left for determination, therefore, is whether there is probable cause to believe Locatelli committed the offenses charged. See, E. g., Shapiro v. Ferrandina, 478 F.2d 894, 900-01 (2d Cir.), Cert. dismissed, 414 U.S. 884, 94 S. Ct. 204, 38 L. Ed. 2d 133 (1973).
To this end, I may only receive evidence offered by the accused that "explains" the demanding country's proof. The accused has no right, however, to present evidence calculated only to contradict the demanding country's proof or pose questions of credibility. Collins v. Loisel, 259 U.S. 309, 315-16, 42 S. Ct. 469, 66 L. Ed. 956 (1922); Shapiro v. Ferrardina, Supra, 478 F.2d at 901.
The evidence offered by the Swiss Government, briefly summarized, consists of the following:
(1) Three warrants of arrest issued by the Swiss Government;
(2) The testimony of Alfred de Schulthess;
(3) Detailed documentation of Locatelli's dealings with American Express;
(4) The allegedly forged documents; and
(5) Various investigative reports concerning all three fraudulent transactions including the testimony of those individuals Locatelli impersonated in his attempts to defraud the two Swiss Banks.
The totality of evidence and documentation of the charged offenses is enormous. The inescapable conclusion is that the Swiss Government has more than met its burden in establishing probable cause that the alleged crimes were committed and the accused, Sergio Locatelli, committed those crimes. Indeed, at the extradition hearing, Locatelli never contested that the evidence, if true, established probable cause to believe that the crimes were committed and that he committed them. Rather, he attempted to "explain" the criminal charges.
The sole basis of Locatelli's objecting to extradition is that the underlying motive for Switzerland's seeking his extradition is political rather than criminal in nature.
More particularly, he argues that at the heart of the criminal charges lie his documentary films which have been highly critical of the Swiss Government's handling of the Italian migrant worker. He contends that the sole motive for these criminal charges is to seek revenge for these apparently bitterly truthful films and that in reality these documentaries represent, in the eyes of the Swiss Government, his only crime. He concludes that this "explanation" takes him outside the parameters of the treaty and extradition thereunder since it permits extradition only for acts of criminality.
It is true that under the treaty extradition is not permitted for offenses of a political character or where the request for extradition has been made with a view to trying or punishing the person for an offense of a political character. It is equally as clear, however, that whether particular charges fall within the political offense exception is a question to be determined by reference to the circumstances attending the alleged crime at the time of its commission and not by reference to the motives of those who subsequently handle the prosecution. Sindona v. Grant, 461 F. Supp. 199 at 207 (S.D.N.Y.1978); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir. 1971), Cert. denied, 405 U.S. 989, 92 S. Ct. 1251, 31 L. Ed. 2d 455 (1972).
It is apparent that quite apart from any political motives of the Swiss Government in vigorously seeking Locatelli's extradition, the crimes charged were not political in nature when allegedly committed. I am simply without jurisdiction to look behind the charges as propounded by the Swiss Government and must, in this respect, yield this inquiry to the Secretary of State. Sindona, Supra, at 207; Garcia, Supra, 450 F.2d at 1192.
Accordingly, the certificate of extradition will issue.