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 ...