decided: June 26, 1980.
FRANCESCO CALTAGIRONE, APPELLANT,
GEORGE V. GRANT, UNITED STATES MARSHAL, APPELLEE
Appeal from a judgment of the United States District Court for the Southern District of New York, John M. Cannella, District Judge, denying appellant's petition for a writ of habeas corpus, 28 U.S.C. § 2241. Reversed and remanded.
Before Kaufman, Timbers, Circuit Judges, and Mishler, District Judge.*fn*
Infamous among the abuses wrought in the eighteenth century by unbounded royal power were lettres de cachet. Through them, the king could free or imprison upon no more a showing than monarchal whim. Because of them, and numerous other abuses, the Framers of our Constitution resolved to regulate all manner of governmental intrusions and embodied their constraint in one of the starkest provisions of the Bill of Rights: ". . . no Warrants shall issue, but upon probable cause."*fn1 Decalogical in its brevity and authority, the constitutional proscription serves to this day as a modus vivendi for magistrates and judges, and necessarily conditions every governmental seizure. It also provides a canon of judicial construction. When faced with language that may be construed in either of two ways, one conforming to the Framers' command and the other not, courts will choose that construction which comports with the Constitution, and reject the other.
It is this principle, and not the constitutional provision itself, which underlies our disposition of the instant appeal. Francesco Caltagirone,*fn2 an Italian national who was arrested by United States authorities without any showing of probable cause, appeals the denial of his petition for a writ of habeas corpus by the district court. The Government argues that no showing of probable cause was required, pointing to the language of our extradition treaty with Italy, under which Caltagirone was provisionally arrested and held for forty-five days. The treaty language seems to us clearly to require such a showing, however, and we dispose of the case on that ground. We note, though, that to the extent the treaty language is ambiguous, we read it in light of the constitutional provision, and thereby comply with the Framers' intent. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S. Ct. 466, 483, 80 L. Ed. 688 (1936) (Brandeis, J., concurring).
With his two brothers, Caltagirone once operated the largest real estate development syndicate in Italy. At its height, the syndicate consisted of more than twenty-five corporations, and enjoyed the favor of Italian officials responsible for the provision of credit through a government lending institution, Italcasse. Since the syndicate's constituent corporations were heavily leveraged, and the loans were secured by guarantees among the member corporations, the Italian officials' support was essential to the venture's continued good fortune. A less favorable stance on the part of Italcasse and the entire enterprise might suddenly become vulnerable.
Sometime in 1976 or 1977, a change of government ended the syndicate's access to easy credit, and the complex financial structure began to collapse. With loans coming due and construction projects half-finished, the Caltagirone companies faced a cash squeeze of major proportions. Caltagirone entered intensive negotiations with his creditors, which lasted for three years, but discussions broke down in the fall of 1979, and nineteen Caltagirone companies were declared bankrupt. On February 8 and March 3, 1980, amid rumors in the Italian press that the bankruptcies involved hundreds of millions of dollars, Italian courts issued warrants for Caltagirone's arrest on charges of fraudulent bankruptcy and concorso in peculato, that is, participation in embezzlement.*fn3 Caltagirone, however, had already left Italy for the United States.*fn4
Once the Italian government became aware that Caltagirone was in the United States, it notified the State Department, on February 26 and again on March 7, 1980, that warrants had issued in Italy. Then, pursuant to Article XIII of its extradition treaty with the United States,*fn5 it applied to the United States for a "provisional arrest" of Caltagirone pending a possible request for his extradition to Italy. In accordance with the Italian application, the United States Attorney for the Southern District of New York prepared a complaint under oath alleging the existence of the Italian warrants,*fn6 then applied to Judge Griesa for a warrant of arrest. The United States Attorney made no showing before Judge Griesa, or before any other judicial officer, to establish probable cause to believe a crime had been committed in Italy, or that Caltagirone had committed it. Nonetheless, Judge Griesa issued a warrant for Caltagirone's arrest on Thursday, March 20, 1980, and agents of the FBI arrested Caltagirone the following day.
On the day of his arrest, Caltagirone appeared before Judge Cannella and moved to quash the warrant issued by Judge Griesa on the ground, inter alia, that it was issued without probable cause. Judge Cannella denied Caltagirone's motion to quash, reasoning that "the action by Judge Griesa in granting the warrant of arrest constitutes . . . a finding by him that the extradition (sic) request was in proper form. This continues to be the law of the case." In the alternative, Caltagirone moved to be released on bail. Judge Cannella, however, was "not satisfied (Caltagirone) would return for the extradition hearings" and denied the motion, ordering Caltagirone to be held without bail.
Three days later, on March 24, Caltagirone renewed his two motions before Judge Cannella. In addition, he petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn7 On March 26 Judge Cannella denied both the motion to vacate the warrant and the petition for habeas relief on the ground that Caltagirone's arrest in the United States was presumptively valid under Italian law. Noting the many differences between Italian and American law, Judge Cannella nonetheless stated that an Italian "magistrate has the right to issue a warrant of arrest when certain bankruptcy frauds are alleged to him. There is no dispute than such warrants were issued by Italian magistrates. . . . This Court cannot and will not second-guess the judgment of the magistrate." In the Matter of Caltagirone, 80 Cr.Misc. No. 1 (S.D.N.Y. Mar. 26, 1980). Judge Cannella also denied bail. Caltagirone appealed immediately, and the case came before this panel.*fn8
Article XIII of the Treaty provides that an application for provisional arrest must contain four elements: a description of the person sought; an indication of intent formally to request the extradition of the person; an allegation that a warrant for the person's arrest has been issued by the requesting state; and, finally, "such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed . . . in the territory of the requested Party."*fn9 Since the "requested Party" in the instant case is the United States, the sufficiency of the information provided to support Caltagirone's arrest must necessarily be judged by American law. Jhirad v. Ferrandina, 536 F.2d 478, 485 (2d Cir.), cert. denied, 429 U.S. 833, 97 S. Ct. 97, 50 L. Ed. 2d 98 (1976). The district court, however, simply noted that an Italian warrant of arrest was outstanding, and then refused to "second-guess" the Republic of Italy's determination that a warrant should issue. Apparently, the district court saw no need to determine whether a sufficient showing had been made to support an arrest under United States law.*fn10
The Treaty does not contemplate a review of the validity, under Italian law, of the Italian arrest warrants, but rather a simple factual determination whether a warrant has been issued. In this limited sense, deference to a foreign judicial determination is entirely proper. It is quite another matter, however, to assert that the Republic of Italy's decision to apply for provisional arrest will be taken as an unreviewable determination that the application conforms to all Treaty provisions. This is particularly true with respect to the "further information" requirement, since we cannot suppose that the drafters intended that an official of the requesting state would make a final determination of the law of the requested party. We proceed, therefore, to the application of United States standards for arrest and detention.
Had the offense of "fraudulent bankruptcy" been committed in the United States,*fn11 a showing of probable cause would have been necessary to justify the issuance of an arrest warrant. See Fed.R.Crim.P. 4; Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971); Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958). Nonetheless, the Government concedes, and our examination of the record confirms, that no showing of probable cause was made prior to the issuance of the March 20 warrant commanding Caltagirone's provisional detention. Indeed, Italy's application for appellant's provisional arrest contained no "such further information" as would establish probable cause to believe that Caltagirone had committed an extraditable offense. Though the Senate report prepared in conjunction with the Treaty's ratification is short, it demonstrates clearly that our legislators contemplated all applications for provisional arrest to be "accompanied by appropriate supporting evidence." S.Rep. No. 93-19, 93d Cong., 1st Sess., reprinted in 119 Cong.Rec. 32054 (1973). Here, however, none was provided.
Conceding the defect, the Government urges an alternative construction of the Treaty. It agrees that Italy must provide such "further information" as would establish probable cause to believe that Caltagirone had committed an extraditable offense, but argues that the information must be supplied only to the executive branch, and need never be presented to an American magistrate. In our view, the Government's construction strains not only the text of our Treaty with Italy, but the entire diplomatic and statutory backdrop against which Article XIII was drafted.
The language of Article XIII closely tracks the text of Article XI, the Treaty article governing formal requests for extradition.*fn12 That article expressly requires all requests for extradition to provide "such evidence as . . . would justify (the relator's) arrest and committal for trial if the offense had been committed (in the territory of the requested party) . . ." Article XIII, in turn, requires applications for provisional arrest to set forth "such further information as would be necessary to justify the issue of a warrant of arrest had the offense been committed . . . in the territory of the requested Party." Clearly, the parallelism was intended by the Treaty's draftsmen, and this suggests that in all cases where the United States is the "requested Party", a showing of probable cause is required under both articles.
Article XI does not expressly provide for presentation of the "evidence" establishing probable cause to a magistrate or judge, presumably because 18 U.S.C. § 3184 already requires such a proceeding in all formal requests for extradition.*fn13 The Government acknowledges that § 3184 imposes a probable cause requirement as a precondition of formal extradition under Article XI, but claims that the cited language in Article XIII serves simply to create a power in the requested party to demand additional information in provisional arrest proceedings. To contend that § 3184's requirement of a "hearing" before a judge or magistrate applies to one article, but not the other, especially when their language is so similar, is untenable. Moreover, where the Treaty authorizes intergovernmental communications, it does so expressly, and not through indirection. Thus, for example, Article XIV of the Treaty specifically provides for demands by the requested party for additional "evidence or information."*fn14
Our reading of Article XIII is buttressed further by the existence of other American extradition treaties authorizing provisional arrest in "urgent" cases, but requiring no additional information from the applying state to support the arrest.*fn15 Accordingly, the provisional arrest provisions of American treaties fall into two groups: those with the informational requirement,*fn16 and those without it. The availability of the choice*fn17 leads us to attach importance to the difference, and confirms our view that the drafters of Article XIII intended to require the presentation of "such further information" needed to justify an arrest as a necessary condition for provisional arrest.*fn18
Perhaps in recognition of Article XIII's plain meaning, the Government urges us to ignore its text, and to refer instead to the Treaty's overall structure. Noting the existence of a requirement of probable cause in Article XI, the Government contends that the drafters of the Treaty could not have intended the similar language in Article XIII to require probable cause as well, since to do so would eradicate the intended distinctions between the two procedures. We do not find, however, that our construction of the Treaty will undercut Article XIII's purpose to provide a more streamlined mechanism for accommodating applications from foreign nations than full-blown extradition proceedings now require.
Article XI and Article XIII both require a showing of probable cause, but the proceedings they contemplate are different in several crucial respects. Article XIII requires "information," and lists no formalities attending its provision by the applying state. Written within the last ten years, the article clearly contemplates that an application for provisional arrest might be made wholly by telecommunications, since time is of the essence in an "urgent" case. Article XI, on the other hand, requires "evidence," a word which necessarily implies a greater degree of formality in procedures than "information." Unlike Article XIII, Article XI requires both certified depositions establishing probable cause and a copy of the actual warrant of arrest issued by the magistrate in the requesting state. Further, while Article XIII allows communications between Italian and American law enforcement officials directly, Article XI requires that both the depositions and the warrant pass first through diplomatic channels (for official certification), and then be relayed to law enforcement officials in the requested state. Moreover, under Article XI the requesting states must "prove," not allege, that the relator is the person named in the warrants, and must provide an extensive documentary appendix to its request setting forth, inter alia, its law defining the offense, prescribing the punishment, and setting the time period in which charges may be brought. Though the Government persuasively suggests that the provisional arrest and extradition proceedings must differ in some way, the difference does not lie in the requirement of probable cause. The Treaty's draftsmen clearly intended to streamline the Article XI arrest procedure in urgent cases, but not by sacrificing the protection of the probable cause requirement.
The overwhelming evidence that Article XIII itself prohibits provisional arrest without probable cause relieves us of the need to examine the constitutional propriety of a treaty that purports to permit such arrests. But one factual aspect of the Government's claimed practice under Article XIII leads us to comment. According to the Government, the United States may detain Caltagirone for forty-five days with no showing of probable cause. Caltagirone, however, enjoys no guarantee that his detention will end even then.
In Collins v. Loisel, 262 U.S. 426, 43 S. Ct. 618, 67 L. Ed. 1062 (1923), the Supreme Court held that an extradition proceeding which ends in the relator's release from custody does not bar a subsequent extradition demand by the requesting state on the same charge. Should Italy's current extradition attempt fail, Article XIV of the Treaty specifically provides that a second may be initiated. Thus, if the Government fails to establish probable cause in the proceeding now pending in the district court, it may nonetheless seek the immediate rearrest of Caltagirone on the same charge. Indeed, counsel for the Government readily conceded at argument that he would seek Caltagirone's rearrest should the present extradition request be denied. Thus, in the Government's view, a foreign state could apply for, and the Government could effect, the unlimited detention of Caltagirone by stringing together an infinite strand of forty-five day provisional arrests, all without a judicial determination of probable cause, or a formal extradition request. This elaboration of the Government's view raises grave questions concerning the constitutional propriety of any interpretation of Article XIII which does not require a showing of probable cause. United States v. Williams, 480 F. Supp. 482, 486 (D.Mass.) (expressing reservations as to the constitutionality of thirty-day provisional arrest detention without showing of probable cause), reversed on other grounds, 611 F.2d 914 (1st Cir. 1979) (per curiam); Ex parte La Mantia, 206 F. 330, 331 (S.D.N.Y.1913) (reserving the issue since probable cause was present). See also Rosado v. Civiletti, 621 F.2d 1179, 1195 (2d Cir. 1980) (dictum) ("to the extent that the United States itself acts to detain a relator pending extradition, it is bound to accord him due process"), citing Grin v. Shine, 187 U.S. 181, 184, 23 S. Ct. 98, 99, 47 L. Ed. 130 (1902).*fn19
Moreover, since the Treaty by its terms applies both to aliens and to Americans, the arguably lesser rights accorded aliens, see, e. g., Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976), cannot provide a complete answer. Indeed, the Government, if its view were accepted, could arrest and indefinitely detain American citizens upon no more than an allegation by a foreign government that a warrant for the citizen was outstanding. We doubt that the tenuous relationship between an application for provisional arrest and a subsequent request for extradition*fn20 implicates a sufficiently strong foreign policy interest in the executive to justify such a departure from usual Fourth Amendment protections. See Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957). Under our historic mandate to construe ambiguous enactments in a manner that comports with the Constitution, Kent v. Dulles, 357 U.S. 116, 128-30, 78 S. Ct. 1113, 1119-1120, 2 L. Ed. 2d 1204 (1958), we would be loath to permit any construction of the Treaty that could be read to support the purported practice to which we have just alluded. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979). In our view, the language of Article XIII so clearly demands a showing of probable cause before any warrant for provisional arrest may issue, that we need not reach the constitutional question. Nunquam decurritur ad extraordinarium sed ubi deficit ordinarium. (We must not resort to the extraordinary until the ordinary fails.)
For its final argument, the Government looks to events occurring after the provisional arrest and urges that Caltagirone's appeal be dismissed as moot. It notes that when the forty-five day period of provisional detention prescribed by Article XIII ended on May 5, the Republic of Italy formally requested Caltagirone's extradition under Article XI of the Treaty. The United States Attorney duly filed a formal extradition complaint, and Judge Cannella issued a new warrant for Caltagirone's arrest, which he then stayed pending Caltagirone's voluntary appearance. On May 6, Caltagirone voluntarily appeared in the district court, was advised that a complaint formally requesting his extradition had been filed pursuant to Article XI, and was then released on bail under conditions identical to those previously imposed for his provisional detention under Article XIII.*fn21 In the Government's view, the second arrest warrant, issued pursuant to Article XI, superseded the warrant and district court order provisionally detaining Caltagirone under Article XIII, so that any relief accorded appellant from his first arrest cannot possibly free him from confinement under the second. Were the Government's projected sequence of events "provisional" arrest under Article XIII, leading to "extradition" arrest under Article XI, and finally to formal extradition of the relator to the requesting state the only possible one under the Treaty, we would do no more than cite DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S. Ct. 1704, 1707, 40 L. Ed. 2d 164 (1974) (per curiam),*fn22 and dismiss the appeal. But the law of extradition, and especially the terms of the particular treaty here at issue, convince us that Caltagirone's provisional arrest is so clearly "capable of repetition, yet evasion of review," Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147 (1973), that the controversy is alive and properly before us.
The Government does not seriously contend that the forty-five day provisional arrest was sufficiently lengthy to permit effective judicial review. Indeed, the sequence of events in this litigation amply demonstrates that this argument does not have merit. Caltagirone moved to vacate the warrant the same morning he was arrested, Friday, March 21. He was back in court on Monday with a memorandum of law in support of that motion. On Monday he also filed his habeas claim, and argued both the motion and the petition that day. On Wednesday, March 26, Judge Cannella issued his order denying relief and, on Thursday, Caltagirone appealed. On Friday, March 28 exactly one week after his arrest Caltagirone brought his case before this Court.
On that day, counsel for Caltagirone declared himself ready to argue the merits of the habeas appeal, but the panel, wisely we believe, considered only the appeal from Judge Cannella's denial of bail. Despite motions by the Government to extend the briefing schedule and to delay consideration of the merits, Caltagirone pursued his accelerated appeal, and this panel heard oral argument on June 4. We now decide the case on June 26 97 days after Caltagirone's arrest, 22 days after oral argument, and 52 days after appellant's provisional detention ended. In a court which prides itself on its prompt expedition of appeals, Caltagirone's provisional arrest has in fact evaded review within the Treaty's forty-five day period of confinement. See Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S. Ct. 854, 861, 43 L. Ed. 2d 54 (1975).*fn23
Provisional arrest is also capable of repetition. The Government maintains that Caltagirone could not be provisionally arrested again, since a formal request for his extradition has been made and is currently pending in the district court. It urges that if Caltagirone ultimately is extradited pursuant to that request, he would have to return from Italy to the United States, and Italy would have to invoke the Treaty once again, before he could be rearrested pursuant to Article XIII. This possibility is indeed too remote and hypothetical to create the "reasonable expectation" of a recurrence required to support review. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975) (per curiam).*fn24
If, however, the extradition proceeding in the district court results in Caltagirone's release either because the documents appended to the Italian request do not establish probable cause to believe he has committed an extraditable offense in Italy, Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.), petition for cert. dismissed by agreement of the parties, 414 U.S. 884, 94 S. Ct. 204, 38 L. Ed. 2d 133 (1973), or because the Secretary of State declines in his discretion to extradite Caltagirone*fn25 this case takes on a decidedly different cast. In view of the Government's persistent allegation below that Caltagirone desires to flee the United States, we do not doubt that it will seek his rearrest under Article XIII should the pending extradition complaint be denied. Under Article XIV of the Treaty and Collins v. Loisel, supra, it enjoys a broad power to do so. Such rearrest would almost certainly be pursuant to the provisional procedure of Article XIII, rather than the more cumbersome procedure of Article XI, for the provisional request could be made immediately, by diplomatic telex, without the substantial documentation required by Article XI.*fn26 In light of this "reasonable expectation," Weinstein, supra, we conclude the case is not moot.
Accordingly, the judgment of the district court is reversed, and the cause is remanded for further proceedings consistent with this opinion.