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IN RE SINDONA

May 3, 1984

In the Matter of the Extradition of Michele Sindona, William J. Arico, a/k/a "Robert McGovern" and Robert Venetucci


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 The Republic of Italy has applied for the extradition from the United States to Italy of Michele Sindona, William J. Arico, a/k/a "Robert McGovern" and Robert Venetucci. William J. Arico died on February 19, 1984, while attempting to escape from the Metropolitan Correction Center where he was detained while this proceeding was pending and an order of dismissal as to him was entered on February 21, 1984.

 Michele Sindona has moved pursuant to 18 U.S.C. § 3184 for an order dismissing the complaint filed as to him on December 15, 1983 for the reason that the Court did not lawfully obtain jurisdiction over him.

 Robert Venetucci has moved pursuant to 28 U.S.C. § 144 for an order of recusal and for an order dismissing the complaint against him for the reason that the requirement of probable cause has not been satisfied.

 I. Venetucci's Motion for Recusal

 The basis of Venetucci's motion that I recuse myself is that in an order dated October 11, 1983, I ruled on an extradition request made with regard to Charles Arico and Rocco Messina by the Republic of Italy, and that I could not, therefore, render a fair and impartial judgment in this proceeding concerning him. It is also claimed that in the prior proceeding I expressed my belief in an "existing conspiracy" and in a hearing in this proceeding on January 18, 1984, I called to the attention of Venetucci's counsel "numerous paragraphs from the complaint which would support the Court's original finding of a conspiracy" (Par. 9 of Affidavit of Venetucci's counsel, Paul A. Goldberger, submitted in support of the motion). Finally, in paragraph numbered 10 of the foregoing affidavit, counsel states that "Since this Court has already made up its mind about the existence of a conspiracy in which Mr. Venetucci is also alleged to have been a member, it is impossible for the Court to make the requisite independent fact-finding determination of probable cause."

 The statute upon which this motion is predicated, 28 U.S.C. § 144, provides as follows:

 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal basis or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

 The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists. . . . (emphasis added)

 The "bias or prejudice" to which the affidavit must be addressed is clearly the personal bias or prejudice referred to in the first paragraph of § 144.

 Mindful of footnote 13 on page 582 of UNited States v. Grinnell Corp., 384 U.S. 563, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966), the question that arises is whether I have the jurisdiction to entertain and decide this motion. That footnote reads:

 13. Judge Wyzanski referred the question of his disqualification to Chief Judge Woodbury of the Court of Appeals for the First Circuit who after hearing oral argument held that no case of bias and prejudice had been made out under § 144.

 I have been unable to find a legal requirement that such a referral be made. On the contrary, the overwhelming view expressed in the cases which have addressed the question is that not only do I have the jurisdiction, I have the duty to pass upon the sufficiency of the affidavit as a matter of law. See, e.g., Garfield v. Palmieri, 193 F. Supp. 582 (E.D.N.Y. 1960), aff'd 290 F.2d 821 (2d Cir.), cert. denied, 368 U.S. 827, 7 L. Ed. 2d 30, 82 S. Ct. 46 (1961); United States v. Bell, 351 F.2d 868, 878 (6th Cir.), cert. denied, 383 U.S. 947, 16 L. Ed. 2d 210, 86 S. Ct. 1200 (1966).

 I now turn to the sufficiency of the affidavit as a matter of law. The portions of that affidavit which are relevant to the question of sufficiency have already been referenced to. I am moved to observe, preliminarily, that in my prior order of October 11, 1983, I did find that there was "probable cause to believe that Messina and Arico were members of an existing conspiracy and that the statemetns were made during the course of and in furtherance of that conspiracy. . . ." That finding has since been affirmed by the Court of Appeals for the Second Circuit on February 7, 1984 (Docket Nos. 83-2336, 83-2338). The name of Robert Venetucci was not known to me until November 1, 1983, when I signed a warrant for his arrest. To suggest, therefore, that when I issued my order of October 11, 1983 I made a determination regarding Robert Venetucci is specious.

 As to assertions in the affidavit that the statements I made during the course of the proceeding on Janaury 18, 1984 suggest that I had already decided that Venetucci was a member of an existing conspiracy, those assertions are not supported by the transcript nor are they true in fact.

 The claim that my recusal is necessary, or even appropriate, because I have decided the question of probable cause in a related extradition proceeding similarly lacks merit. The controlling principle as appears in United States v. Grinnell Corp., supra, 384 U.S. at 583 is as follows:

 The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U.S. 22, 31, 65 L. Ed. 481, 41 S. Ct. 230 .

 See also In re International Business Machines Corp., 618 F.2d 923 (2d Cir. 1980); King v. United States, 576 F.2d 432 (2d Cir.), cert. denied, 439 U.S. 850, 58 L. Ed. 2d 154, 99 S. Ct. 155 (1978) and the cases in virtually every circuit collected in Shank v. American Motors Corp., 575 F. Supp. 125, 129 (E.D.Pa. 1983), Phillips v. Joint Legislative Comm., 637 F.2d 1014 (5th Cir. 1981), cert. denied, 456 U.S. 960, 102 S. Ct. 2035, 72 L. Ed. 2d 483 (1982) precisely addresses Venetucci's assertion here, in observing at p. 1020 that: "[A] motion for disqualification ordinarily may not be predicated on a judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench." I would only add that there has been no demonstration that I have a tendency to rule any particular way or that I have a particular judicial leaning or attitude.

 There being no assertion of personal bias or prejudice either against Mr. Venetucci or in favor of any adverse party or of any bias or prejudice stemming from an extrajudicial source, the affidavit in support of the motion for an order of recusal is insufficient as a matter of law and the motion is denied.

 II. Sindona's Motion to Dismiss for Want of Jurisdiction

 This motion is predicated on a reading of 18 U.S.C. § 3184 which provides in pertinent part as follows:

 Whenever there is a treaty . . . for extradition between the United States and any foreign government, any . . . judge of the United States, . . . may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty . . ., issue his warrant for the apprehension of the person so charged, that he may be brought before such . . . judge, . . . to the end that the evidence of criminality may be heard and considered. . . . (emphasis added)

 Mr. Sindona contends that he is and has been a federal prisoner, committed to the custody of the Attorney General of the United States for a term of 25 years by Judge Thomas Griesa of the United States District Court for the Southern District of New York following his (Sindona's) conviction in connection with the collapse of the Franklin National Bank. Since August 1982, he has been in the Federal Correction Institution at Otisville, New York. Prior to being sentenced in that criminal proceeding, Mr. Sindona lived and worked in Manhattan. A previous extradition proceeding was held in the United States District Court for the Southern District of New York in which the Republic of Italy's request for his extradition was granted and later affirmed. Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980).

 On December 7, 1983, Stephen S. Trott, Assistant Attorney General in the Criminal Division of the U.S. Department of Justice, prepared a memorandum to Norman A. Carlson, Director of the Bureau of Prisons, advising him that he will be contacted by Reena Raggi, an Assistant United States Attorney for the Eastern District of New York, to arrange for the transfer of Mr. Sindona to Brooklyn for his initial appearance and for all other appearances as they may be needed incident to these extradition proceedings. *fn1" Mr. Sindona contends that he should have been brought to the Eastern District of New York by a writ of habeas corpus ad prosequendum; that such a writ was a procedural pre-requisite and that to have been brought to this Court by any other means was unlawful and should have, ex proprio vigore, divested the court of jurisdiction. Sindona relies upon the following cases to support his position: Morgan v. United States, 380 F.2d 686, 699 (9th Cir. 1967), cert. denied, 390 U.S. 962, 19 L. Ed. 2d 1160, 88 S. Ct. 1064 (1968); Rose v. United States, 365 F. Supp. 841, 843 (N.D.Ill. 1973); Carbo v. United States, 364 U.S. 611, 5 L. Ed. 2d 329, 81 S. Ct. 338 (1961); Lawrence v. Willingham, 373 F.2d 731 (10th Cir. 1967); United States v. Schurman, 84 F. Supp. 411 (S.D.N.Y. 1949); United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), and Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S. Ct. 204, 38 L. Ed. 2d 133 (1973).

 It is not disputed that 18 U.S.C. § 3184 was literally complied with. The extradition complaint was made under oath by Chief Deputy Marshal Michael Pizzi and filed with the Court on December 15, 1983 in the presence of Michele Sindona, who was in the court at the very moment that the oath was administered to the Marshal. The complaint, therefore, was made under oath, charging Sindona, who was then found within the jurisdiction of this court, with the commission of crimes in the Republic of Italy that are covered by a treaty. It is the procedure by which Sindona was "found" within the jurisdiction that is challenged. For the reasons which follow, Sindona's motion to dismiss the complaint on jurisdictional grounds is denied.

 The contention that he could have lawfully been brought from the Federal Correctional Institution in Otisville, New York to this Court only by a writ of habeas corpus ad prosequendum is erroneous. Carbo v. United States, supra, traces the course followed by Congress in granting judicial power to issue writs of habeas corpus in general and the writ of habeas corpus ad prosequendum in particular. That course ended in what is presently 28 U.S.C. § 2241, subdivision (c)(5) thereof being a codification of the common law writ ad prosequendum. That writ was issued when it was "necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. . . .Congress had without qualification authorized the customary issuance of the writ ad prosequendum by a jurisdiction not the same as that wherein the prisoner was confined," U.S. v. Carbo, supra, 364 U.S. at p. 615. And at page 621, the court continued, "That comity is necessary between sovereignties in the administration of criminal justice in our federal-state system is given full recognition y affording through use of the writ both respect and courtesy to the laws of the respective jurisdictions." As Carbo makes plain, the traditional use of the writ ad prosequendum has been to bring a defendant in the custody of another sovereign to trial before the court issuing the writ. Lawrence v. Willingham, supra, 373 F.2d at 732; United States v. Hooker, 607 F.2d 286, 288 (9th Cir. 1979), cert. denied, 445 U.S. 905, 63 L. Ed. 2d 321, 100 S. Ct. 1083 (1980); In re Liberatore, 574 F.2d 78 (2d Cir. 1978). That traditional use of the writ is reflected in each case relied upon by Sindona: Morgan v. U.S., supra (removal from state prison to federal court to stand trial); Rose v. U.S., supra (removal from federal correctional institution to state court); Carbo v. U.S., supra (removal from state prison to federal court); Lawrence v. Willingham, supra (removal from federal correctional institution to state court); United States v. Schurman, supra (removal from state prison to federal court). See also Interstate Agreement on Detainers Act, 18 U.S.C. App. II. The transfer of Sindona from one federal facility to another federal facility or to a federal court did not require the issuance of a writ ad prosequendum. Nor would its use in such a case have been traditional.

 It might be useful to note that the writ ad prosequendum is not the execlusive tool to effectuate federal-state extradition. 18 U.S.C. § 4085 provides:

 (a) Whenever any federal prisoner has been indicted, informed against, or convicted of a felony in a court of record of any State or in the District of Columia, the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor or the executive authority thereof, and upon the presentation of a certified copy of such indictment, information or judgment or conviction, cause such person, prior to his release, to be transferred to a penal or correctional institution within such State or District.

 If more than one such request is presented in respect to any prisoner, the Attorney General shall determine which request should receive preference.

 The expense of personnel and transportation incurred shall be chargeable to the appropriation for the "Support of United States prisoners.

 (b) This section shall not limit the authority of the Attorney General to transfer prisoners pursuant to other provisions of law.

 That statute manifestly echoes Chief Justice Taft in Ponzi v. Fessenden, 258 U.S. 254, 66 L. Ed. 607, 42 S. Ct. 309 (1922) at pp. 261-262: "There is no express authority authorizing the transfer of a federal prisoner to a state court. . . . Yet we have no doubt that it exists and is to be exercised with the consent of the Attorney General. In that officer, the power and discretion to practice the comity in such matters between the federal and state courts is vested." See also Atkinson v. Hanberry, 589 F.2d 917 (5th Cir. 1979).

 Having established that the writ ad prosequendum was neither necessary nor appropriate, was Sindona lawfully transferred from the federal correctional institution at Otisville, New York to the Metropolitan Correctional Center (MCC) in New York City (the federal holding facility for the Eastern and Southern Districts) and periodically from the MCC to the Marshal's holding facility in the federal courthouse in Brooklyn pursuant to the direction of the Attorney General or his designated representative embodied in the Memorandum dated December 7, 1983 set out in full in the footnote?

 The prisons of the United States and the custody of prisoners under sentence are generally under the supervision and regulation of the Attorney General. 18 U.S.C. §§ 4041, 4042. "The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise, and whether within or without the judicial district in which the person was convicted, and may at any time transfer a person from one place of confinement to another. " 18 U.S.C. § 4082(b) (emphasis added). That Sindona was lawfully transferred from one place of confinement to another at the direction of the Attorney General pursuant to § 4082(b) is plain.

 Although not explicitly raised during oral argument or in his memoranda of law, I will assume that by his reference to United States v. Toscanino, supra, 500 F.2d 267, Sindona is asserting by implication either (1) that he had a due process right to a hearing prior to transfer, or (2) this Court should refuse to exercise jurisdiction on the authority of Toscanino.

 As to the first, the due process clause in and of itself does not protect a duly convicted prisoner against transfer from one institution to another within either the state or the federal prison system. In Atkinson v. Hanberry, supra, the court said: "Whatever expectations the prisoner may have in remaining at a particular prison . . . it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or no reason at all." 589 F.2d at 920 (quoting Meachum v. Fano, 427 U.S. 215, 228, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). See also Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976).

 As to his reliance on Toscanino, it is misplaced. In that case, the defendant was kidnapped from Uruguay and transported to Brazil where he was tortured, drugged and brought to the United States. The court was moved to state that ". . . we think a federal court's criminal process is abused or degraded where it is executed against a defendant who has been brought into the territory of the United States by the methods alleged here. . . . We could not tolerate such an abuse without debasing "the process of justice." 500 F.2d 267 at 276. There isn't the slightest resemblance between this case and Toscanino. Sindona's presence in this Court was not secured by force or fraud nor could any claim be made that it was.

 Finally, Sindona seeks to sustain his jurisdiction argument by reliance upon Shapiro v. Ferrandina, supra. In that case, Sharpio's extradition was requested of the United States by the State of Israel.A warrant for his arrest was signed by Judge Motley of the District Court for the Southern District of New York, pursuant to which Shapiro was arrested at his home in Brooklyn and was brought before Judge Pollack of the Southern District.Shapiro contended that the complaint and warrant for his arrest issued by Judge Motley failed to explicitly state that he was "found" within the Southern District of New York. The Court dismissed that contention as meritless since § 3184 calls only for a complaint under oath stating that the person sought has committed within the jurisdiction of the requesting country a crime covered by a treaty. His attack upon the validity of his arrest based upon a complaint and a warrant he insisted were defective was rejected. In "seeking a warrant in the Southern District . . ." said the court, "the government was acting on a good faith belief that Shapiro could be "found" there." Shapiro v. Ferrandina, supra, 478 F.2d at 899, 900. Shapiro also contended that even if his arrest in Brooklyn ...


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