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SPATOLA v. U.S.

July 9, 1990

ROSARIO SPATOLA, PETITIONER,
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: Bartels, District Judge.

MEMORANDUM-DECISION & ORDER

In general, United States extradition law imposes several substantive requirements on all requests for extradition before they may be granted. Three of these requirements are that: (1) the offense be "extraditable" under the applicable treaty; (2) the offense satisfy so-called "dual criminality;" and (3) there be probable cause that the relator committed the crime for which he is sought. M. Bassiouni, International Extradition 319 et seq. (1987). In this case the Court is called upon to decide, as against these requirements, whether the certification of the extradition of one Rosario Spatola was proper.

INTRODUCTION

Petitioner Rosario Spatola brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the legality of an order of United States Magistrate John L. Caden certifying the request of the Republic of Italy for Spatola's extradition pursuant to the Treaty on Extradition between the Government of the United States of America and the Government of the Republic of Italy, Oct. 13, 1983, __ U.S.T. ___, T.I.A.S. No. 10837 (the "Treaty").

The Magistrate found that Spatola was extraditable to Italy to serve the remainder of the sentence imposed on him for convictions of "association" to commit crimes and "association" to commit crimes of drug trafficking. Spatola claims that extradition for these convictions is not proper because, on the basis of the record submitted by Italy, there is no probable cause that Spatola committed these crimes, and the acts for which he was convicted do not satisfy dual criminality in that they are not illegal under American criminal law.

FACTS

On June 6, 1983, in Italy, Spatola was convicted of three crimes: (1) "association" to commit crimes; (2) "association" to commit crimes of drug trafficking; and (3) failure to surrender foreign currency.*fn1 He was sentenced to 13 years' imprisonment, plus an 80-million lire fine, with 2 years of the sentence to be "remitted." Spatola spent four years, three months, two days in jail, and then, on September 28, 1984, was released pending appeal.*fn2 After his release on bail pending appeal, Spatola was convicted, on December 4, 1984, of an additional charge of bribing a public official, in violation of Article 319 of the Italian Penal Code.*fn3 The conviction stemmed from his bribing one Giuseppe Vetere to obtain a contract to build public housing units in Palermo, Italy. In connection with this incident, Vetere was convicted for bribery too.*fn4

Thereafter, on December 20, 1984, the Court of Appeal of Palermo affirmed Spatola's June 6, 1983, conviction, but reduced the sentence to 10 years, with another two years to be "remitted."*fn5 However, instead of returning to prison after the appeal, Spatola fled to the United States, and on March 12, 1986, the District Attorney General at Palermo issued a warrant for Spatola's arrest for him to serve the remainder of his sentence for the June 6, 1983, conviction.*fn6

On May 21, 1987, the Investigative Magistrate at the Tribunal of Palermo, Italy, issued another warrant for Spatola's arrest. This warrant charged Spatola under Article 319 of the Italian Penal Code with paying a 50 million life bribe to a public official, one Vito Ciancimino, to obtain approval for Spatola's company's construction of public housing units in Sperona, Italy. The facts and circumstances of the Ciancimino "bribe" were, apparently, identical to those involved with the Vetere "bribe."*fn7

However, on October 26, 1987, the Court of Appeal of the District of Palermo reversed Spatola's December 4, 1984, conviction for bribing Vetere, holding that, based on the evidence, he could only have been convicted of a lesser form of bribery, i.e., a "gratuity" under Article 318 of the Italian Penal Code, which apparently forbids the giving or taking of anything of value by a public official for performing a duty imposed by law.*fn8 The court held that the statute of limitations had run on this lesser charge of "gratuity" under Article 318, and therefore dismissed the case entirely.*fn9

On December 2, 1988, by a complaint made under oath by an Assistant United States Attorney, the Government obtained a "Provisional" warrant for Spatola's arrest from a United States Magistrate in the District of New Jersey.*fn10 The complaint was made at the request of Italy, pending a formal extradition request. The charges for which the provisional arrest warrant was requested and issued was Spatola's "bribe" of Ciancimino and Vetere. Spatola was eventually arrested in this district on May 8, 1989.

On June 9, 1989, United States Magistrate John L. Caden of this District,*fn11 issued a Memorandum and Order denying Spatola's motion to vacate provisional arrest warrant and his application for bail. As to the provisional arrest warrant the Magistrate noted that there is a question among the federal courts as to whether a provisional arrest for extradition has to be upon probable cause as normally required by the Constitution for arrests for violation of the criminal laws of this country. See Caltagirone v. Grant, 629 F.2d 739 (2d Cir. 1980); Bassiouni at 527. Nevertheless, the Magistrate proceeded to find that the Complaint and Affidavit of Assistant United States Attorney Eric Friedberg established probable cause, holding that the information supplied therein, taken as true, even if hearsay, would justify a reasonable belief that Spatola committed the crime of bribery in Italy.*fn12 The Magistrate noted that the fact that there may have been an innocent explanation of the evidence was irrelevant to establishing probable cause in extradition. He further held that whether there is "urgency" as required by the Treaty for a provisional arrest warrant*fn13 is a justiciable question, see Caltagirone v. Grant, 629 F.2d at 744 n. 10 (prior extradition treaty with Italy), and, given Italy's assertion that this was a "serious" case of bribery, and since both countries' believed that there was a serious risk that Spatola would flee absent an arrest, the Magistrate found that there was "urgency" in the present case. Accordingly, Spatola's motion to vacate the provisional arrest warrant was denied.

As to the issue of bail, the Magistrate noted that bail in extradition proceedings is only available under "special circumstances" (quoting Wright v. Henkel, 190 U.S. 40, 60, 23 S.Ct. 781, 785, 47 L.Ed. 948 (1903)), and "special circumstances" are found "only in the most pressing circumstances and when requirements of justice are absolutely peremptory" (quoting United States v. Leitner, 784 F.2d 159, 160 (2d Cir. 1986) (in turn quoting In re Mitchell, 171 F. 289 (S.D.N.Y. 1909))). Considering this legal background, the Magistrate held that the fact that Spatola might not pose a serious risk of flight was not dispositive regarding bail. In any event, the Magistrate found that Spatola did pose a serious risk of flight,*fn14 denied Spatola's motion for bail, and remanded him pending the determination of the extradition proceedings.

On June 26, 1989, a preliminary conference was held before the Magistrate, and on July 3, 1989, he issued a Memorandum and Order denying Spatola's motions that the provisional arrest warrant be vacated, and that bail be granted. In regard to the arrest warrant, the Magistrate disagreed with Spatola that the formal extradition request had to contain a physical description, photographs, and fingerprints of Spatola, holding, per the Treaty, that these items are required only "if available."*fn16 He also disagreed with Spatola's contention that, because Italy's formal request for extradition was admittedly incomplete, it was fatally flawed. The Magistrate held that, although incomplete, the formal request was complete enough to meet initial muster under the Treaty, since the Treaty specifically provides Italy with a "reasonable" period of time within which to complete documentation.*fn17 Finally, in regard to bail, the Magistrate again denied Spatola's application for the reasons set forth in the June 9, 1989, Memorandum & Order.

An extradition hearing was held before the Magistrate on August 24, 1989. The Government submitted its exhibits, consisting of the documents in support of Italy's extradition request, and then rested. These exhibits were: (1) Italian documents in support of the extradition request; (2) translations of those documents; (3) certifications that the translations were correct; (4) the declaration of Robin Jo Frank, of the Office of the Legal Advisor for the United States Department of State, containing Italy's formal request for extradition dated June 19, 1989, and a copy of the Treaty; (5) the affidavit of Richard A. Martin, Senior Counsel for International Law Enforcement with the United States Department of Justice, and Justice Attache at the Embassy of the United States in Rome, Italy, averring that, based on the opinion of an Italian investigating magistrate, Spatola was still chargeable with "bribing" Ciancimino despite the reversal of his conviction for "bribing" Vetere; and (6) documents establishing the identity of Spatola as the person sought to be extradited. Spatola's case consisted of a copy of the Italian appellate opinion reversing his conviction for "bribing" Vetere and the live testimony of M. Cherif Bassiouni, Professor of Law at DePaul University in Chicago, who testified regarding extradition law and the criminal law of America and Italy.

In a thorough Memorandum and Order, dated October 20, 1989, the Magistrate certified Italy's application to extradite Spatola to serve the remainder of his sentence for the association crimes, but denied Italy's request for extradition on the bribery charge and on the remainder of the sentence imposed for failure to turn over currency.

The Magistrate found that, based on the Italian appellate court's overturning of Spatola's conviction for bribing Vetere, there was not probable cause to believe that Spatola had "bribed" Ciancimino to the degree with which he was charged under Italian law — there was only probable cause to believe that Spatola had committed the lesser type of bribery (i.e., giving a "gratuity") for which he had not been charged and for which the Italian statute of limitations had run.*fn18

The Magistrate then turned to the convictions of Spatola for which extradition is sought — i.e., association to commit crimes, association to commit crimes of drug trafficking, and failure to hand over foreign currency — and found, based on the record proffered by the Government on behalf of Italy, that he was unable to make an independent determination regarding probable cause because

  [t]he facts which the Government relies upon to
  establish probable cause are in reality nothing
  more than the conclusions reached by the Court of
  Appeal of Palermo in affirming Spatola's
  conviction, and the underlying facts upon which
  the Court's decision was based are not apparent
  from the opinion submitted by the Government.
  Without the underlying facts and evidence upon
  which the Court of Appeal of Palermo and the trial
  court reached its determinations, this court is
  unable to make an independent factual finding of
  probable cause.*fn19
He held, however, that such a determination was unnecessary
because convictions are conclusive as to probable cause under
federal case law (citing United States v. Clark, 470 F. Supp. 976
 (D.Vt. 1979) and In re Edmondson, 352 F. Supp. 22 (D.Minn.
1972)) and under the Treaty itself.

Furthermore, relying on a provision of the Treaty that provides that the American crime of conspiracy and the Italian Crime of "association" shall "be extraditable offenses,"*fn20 and noting the Senate ratification history thereto, the Magistrate found that the Treaty itself declared conspiracy and "association" to be crimes sufficiently analogous to make "association" an offense for which extradition would lie. As to the failure-to-surrender-foreign-currency conviction, however, the Magistrate determined that the offense did not satisfy dual criminality, there being no American analogue for it. In sum, the Magistrate granted certification of Italy's extradition request on the association crimes, but denied certification in all other respects.

As there is no direct appeal available from a certification of extradition, Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973), on December 4, 1989, Spatola filed the instant Petition for a Writ of Habeas Corpus, and a Stay of Extradition was immediately granted by District Judge Reena Raggi.

On May 25, 1990, an initial status conference and bail hearing was held before the undersigned, some 382 days after Spatola's provisional arrest.*fn21 The Court denied Spatola's motion for bail pending its decision on the habeas corpus petition, substantially for the reasons set forth by the Magistrate in his Memorandum and Order of June 9, 1989. The Government does not contest the Magistrate's rulings as to Spatola's non-extraditability for the Ciancimino "bribe" charge or the foreign currency conviction.*fn22 Accordingly, there are ...


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