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United States District Court, Eastern District of New York

July 9, 1990


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


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.


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.


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.

Subsequently, in a document dated June 19, 1989, Italy formally requested the United States Department of State to extradite Spatola (1) for the charge of "bribing" Ciancimino; and (2) to serve the three years, eight months, and twenty-eight days remaining on his sentence for the association crimes (i.e., "association" to commit crimes, and "association" to commit crimes of drug trafficking) and for failure to surrender foreign currency. This document was received and filed by the United States Attorney's Office on June 22, 1989, which was the expiration date of the time period provided for by the Treaty for Italy to formally request extradition.*fn15 Documentation in support of all four crimes was forwarded with the June 19, 1989, request.

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 two issues presented by the petition: (1) dual criminality of the association crimes; and (2) probable cause for the association crimes.


The Magistrate relied principally on two sections of the Treaty to make the two decisions challenged by the present petition. The first is Article II of the Treaty which provides, in pertinent part:

  1. An offense, however denominated, shall be an
  extraditable offense only if it is punishable
  under the laws of both Contracting Parties by
  deprivation of liberty for a period of more than
  one year or by a more severe penalty. . . .

  2. . . . . Any type of association to commit
  offenses described in paragraph 1 of this Article,
  as provided by the laws of Italy, and conspiracy
  to commit an offense described in paragraph I of
  this Article, as provided by the laws of the
  United States, shall also be extraditable

The Magistrate relied on the above provisions in finding dual criminality as to the associations crimes, holding that

  [t]he only fair reading of this language . . . is
  that the extradition magistrate may not make an
  independent assessment of double criminality
  pursuant to Article II(1) of the Treaty when the
  crime for which extradition is sought is criminal
  association under the laws of Italy or the crime of
  conspiracy under the laws of the United States. As
  long as the object of the association is punishable
  under the laws of both countries, the crime of
  criminal association under Italian law is

The Court, however, finds that while Article II, paragraph 1, does indeed impose a dual criminality requirement, the above provisions do not answer the dual criminality question.

The second pertinent provision of the Treaty is Article X, which is relevant to the probable cause issue. Article X inter alia provides that extradition requests for a person who has been charged but not convicted of a crime must be accompanied by

  a summary of the facts of the case, of the
  relevant evidence and of the conclusions reached,
  providing a reasonable basis to believe that the
  person sought committed the offense for which
  extradition is requested. . . .*fn25

Article X also provides, however, that extradition requests for a person already convicted of a crime need be accompanied only by

(a) a copy of the judgment of conviction . . .;

  (b) if the penalty has been pronounced, a copy of
  the sentence and a statement as to the duration of
  the penalty still to be served; and

  (c) documents establishing that the person sought
  is the person convicted.*fn26

In holding that the certified copy of the appellate opinion affirming Spatola's conviction for the association was sufficient to satisfy probable cause, the Magistrate found it significant that Article X's provision as to extradition for conviction does not require "a reasonable basis to believe that the person sought committed the offense for which extradition is sought," thus apparently obviating the need for an independent probable cause determination by a United States judicial officer in extradition cases involving convictions.*fn27



General Considerations

Before turning to the specific claims raised by Spatola's petition, it is first necessary to note several general rules of law relating to extradition.

As to this Court's jurisdiction, although it is based on the habeas corpus statute, 28 U.S.C. § 2241, its review over the certification of extradition is quite narrow, much more narrow, in fact, than the collateral review habeas proceedings traditionally provide for American convictions. In the context of extradition, "habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925) (Holmes, J.). See also Shapiro v. Ferrandina, 478 F.2d at 901. "[T]he judgment of the magistrate, rendered in good faith on legal evidence that the accused is guilty of the act charged, and that it constitutes an extraditable crime, cannot be reviewed on the weight of the evidence, and is final for the purposes of the preliminary examination, unless palpably erroneous in law." Ornelas v. Ruiz, 161 U.S. 502, 508-09, 16 S.Ct. 689, 691-92, 40 L.Ed. 787 (1896).

The reasons for this very limited review are several. First, extradition proceedings are neither criminal trials nor full-blown civil actions; they are administrative in character, and, as such, are not burdened with the legalism and formalities with which American courts are familiar. See Wright v. Henkel, 190 U.S. 40, 57, 23 S.Ct. 781, 784, 47 L.Ed. 948 (1903); I Wigmore On Evidence § 4(6) at 75 (1983); Fed.R. Evid. advisory committee note. For instance, the Federal Rules of Criminal Procedure are not applicable to extradition proceedings, Fed.R.Crim.P. 54(b)(5); nor are the Federal Rules of Evidence, Fed.R.Evid. 1101(d)(3) — thus, hearsay is freely admissible. Shapiro v. Ferrandina, 478 F.2d at 905; In re Ryan, 360 F. Supp. 270, 273 (E.D.N.Y.) aff'd, 478 F.2d 1397 (2d Cir. 1973). Accordingly, it is a mistake for extradition habeas courts to suppose that the legal process due to a relator in extradition is anywhere near the "due process" American courts afford criminal defendants. As Justice Holmes wrote in Glucksman v. Henkel, 221 U.S. 508, 31 S.Ct. 704, 55 L.Ed. 830 (1911):

  It is common in extradition cases to attempt to
  bring to bear all the factitious niceties of a
  criminal trial at common law. But it is a waste of
  time. For while of course a man is not to be sent
  from the country merely upon demand or surmise,
  yet if there is presented, even in somewhat
  untechnical form according to our ideas, such
  reasonable ground to suppose him guilty as to make
  it proper that he should be tried, good faith to
  the demanding government requires his surrender.

Id. at 512, 31 S.Ct. at 705. Thus, arguments against extradition which "savor of technicality," Bingham v. Bradley, 241 U.S. 511, 517, 36 S.Ct. 634, 637, 60 L.Ed. 1136 (1916), are to be rejected by the habeas corpus court.

The second reason behind the very limited habeas review of extradition proceedings is that extradition is primarily an aspect of foreign relations and is therefore directed through diplomatic channels. See Bassiouni at 41. Grounded in notions of comity, and formally established by treaty, extradition, like all foreign affairs, is soundly committed to the political branches of government. See Id. See also Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310-11, 62 L.Ed. 726 (1918). Indeed, extradition decisions are so much the especial province of the executive branch that, even after a United States magistrate or district judge has certified an extradition request, the executive branch can refuse the request as a matter of unbridled discretion. See generally Bassiouni at 601-04. Accordingly, undue interference with the diplomatic process of extradition by the judicial branch is as unseemly and disruptive of separation of powers and of the foreign relations of the nation as any judicial foray into this very political realm. See United States v. Curtiss-Wright Export Co., 299 U.S. 304, 318-21, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936); Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297 (1915); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974). The role of the judiciary in extradition is simply to determine whether the executive branch is authorized by statute and treaty to honor a particular extradition request. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5 (1936); 18 U.S.C. § 3183-3184; Bassiouni at 39-40, 71, 72. In making this determination, then, the Court is particularly mindful of its limited role and of the Government's substantial foreign affairs interest in promoting good relations with Italy by honoring its criminal convictions and recognizing the integrity of its criminal justice system. See Senate Comm. on Foreign Relations, Treaty With Italy, S.Rep. No. 33, 98th Cong., 2d Sess. 1-2 (1984), reprinted in 24 I.L.M. 1531, 1532. Cf. Rosado v. Civiletti, 621 F.2d 1179, 1190 (2d Cir. 1980), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980). For while treaty interpretation is a judicial function, Sullivan v. Kidd, 254 U.S. 433, 442, 41 S.Ct. 158, 161, 65 L.Ed. 344 (1921), extradition treaties are to be liberally construed to effect their underlying purpose of delivering criminals to justice. Valentine v. United States ex rel. Neidecker, 299 U.S. at 10, 57 S.Ct. at 103; Wright v. Henkel, 190 U.S. at 57, 23 S.Ct. at 784; In re Edmondson, 352 F. Supp. 22, 25 (D.Minn. 1972).

Finally, since comity — i.e., respect and cooperation between sovereign nations — is at the very heart of extradition, a judicial proceeding in extradition is not the proper vehicle for challenging or questioning the fairness of another country's criminal justice system. The President and the Senate have made the political decision that Italy's criminal justice system comports with basic American notions of fairness and therefore entered into the Treaty, and this Court is bound by the existence of the Treaty to assume that Spatola's trial was fair. See Glucksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 705, 55 L.Ed. 830 (1911). Thus, this Court cannot inquire into the "fairness" of Spatola's conviction since "supervising the integrity of the judicial system of another sovereign nation . . . would directly conflict with the principle of comity upon which extradition is based." 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). See also Bassiouni at 372.*fn28


As indicated above, three of the substantive requirements imposed by United States law upon extradition requests are: (1) that the relator be sought for an "extraditable offense;" (2) that the offense satisfy dual criminality; and (3) that there be probable cause that the relator has committed the offense for which he is sought. The phrase "extraditable offense" is a term of art and means something more than the eventual finding that the relator is in fact extraditable. Bassiouni at 328. Moreover, the requirement that a crime be "extraditable" in order to supply a basis for extradition, is different than the requirement of dual criminality. Id. For a crime to be an "extraditable" offense it must be an offense that is either listed or defined as such by the applicable treaty. Id. at 329. For a crime to satisfy dual criminality, the act committed by the relator must be criminal in both the requesting and the requested country. Id. at 324.

"Extraditable Offenses"

With regard to the determination of "extraditability" in this technical sense, the Treaty is a double-method treaty. On the one hand, it uses the so-called "eliminative method" in Article II, ¶ 1, by defining as "extraditable" those offenses which are punishable by imprisonment for more than one year, see Bassiouni at 331, and on the other hand, the Treaty uses in Article II, ¶ 2, the so-called "ennumerative method," by specifically naming as "extraditable offenses" conspiracy or association to commit crimes defined in Article II, ¶ 1. Despite the fact that "association" is specifically an "extraditable" offense under the Treaty, it is still necessary to determine whether dual criminality exists. As a noted commentator has explained:

  It might be supposed that if two States agree, in
  a treaty, to a list of offenses for which
  extradition shall take place, they would include
  only those acts which are crimes in both States.
  However, questions nevertheless may arise.
  Certain acts may, under the law of the requesting
  State, constitute a listed treaty offense while,
  under the law of the requested State, the same acts
  may constitute no crime or, more frequently, one
  not listed in the treaty.

6 M. Whiteman, Digest of International Law 773-74 (1968) (emphasis added). As Professor I.A. Shearer has recognized, "the double criminality rule serves the most important function of ensuring that a person's liberty is not restricted as a consequence of offenses not recognized as criminal by the requested State." I.A. Shearer, Extradition in International Law 137 (1971). And "[t]he point is by no means an academic one even in these days of growing uniformity of standards. Shearer at 138.*fn29 Thus, in specifically naming as "extraditable offenses" association and conspiracy to commit crimes defined in Article II, ¶ 1, the Treaty did not obviate the essentially ad hoc inquiry into dual criminality where the crime charged is association to commit a crime punishable by the laws of both countries by more than one year's imprisonment, and the Magistrate erred in so holding.*fn30 Although the association crimes for which Spatola was convicted are "extraditable" under the Treaty, those offenses must also meet the dual criminality test to be the subject matter for extradition.

Dual Criminality

To determine dual criminality, the Court must examine the underlying conduct for which Spatola was convicted and determine whether that conduct is illegal under American law. See Bassiouni at 349. "[A]n offense is extraditable only if the acts charged are criminal by the laws of both countries." Collins v. Loisel, 259 U.S. 309, 311, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922). In making this determination, however, the court should not limit its inquiry to the name of the charge, but should inquire into the criminal conduct and the crime to which it gave rise. See Collins v. Loisel, 259 U.S. at 312, 42 S.Ct. at 470; United States ex rel. Rauch v. Stockinger, 269 F.2d 681, 685-87 (2d Cir.), cert. denied, 361 U.S. 913, 80 S.Ct. 257, 4 L.Ed.2d 183 (1959); Bassiouni at 340.

The Court finds that the acts for which Spatola was convicted would be illegal if committed here. This is clearly revealed by the contents of the Italian appellate court opinion set out at the end of this opinion as an appendix. In sum, however, the Court of Appeal of Palermo found that Spatola "had a foremost role in the association to commit crimes, a role that presupposed his participation also in the specific program to procure very large quantities of American dollars by means of drug trafficking, even though other persons were engaged in the activity of obtaining and exporting the drugs."*fn31 In the group Spatola was "outstanding for his position as mafia 'manager', near the top level and having the task of large-scale 'launderer'. . . ."*fn32

In light of these findings, and the information set forth in the appendix, and without engaging in an unnecessary, comparative law, element-by-element statutory analysis,*fn33 the Court finds that the acts for which Spatola was convicted, and the actions of the group for which Spatola as co-conspirator was liable, are clearly illegal here. See, e.g., 18 U.S.C. § 371 (conspiracy to violate laws of United States); 18 U.S.C. § 874 (kickbacks from public works employees); 18 U.S.C. § 875 (interstate communication of kidnapping ransom demands); 18 U.S.C. § 876 (mailing threatening communications); 18 U.S.C. § 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises); 18 U.S.C. § 1956 (laundering of monetary instruments); 18 U.S.C. § 1957 (engaging in monetary transactions in property derived from specified unlawful activity); 18 U.S.C. § 1962 (racketeer influenced and corrupt organizations); 21 U.S.C. § 841(a)(1) (manufacture or possession of controlled substances with intent to distribute); 21 U.S.C. § 846, 963 (attempt or conspiracy to violate certain drug laws); 21 U.S.C. § 848 (continuing criminal enterprise); 21 U.S.C. § 953 (exportation of controlled substances). The requirement of dual criminality is therefore satisfied.


Probable Cause

Normally, before another country's extradition request can be granted where the relator is charged with a crime, there must be an independent finding by an American judicial officer that there is probable cause that the relator committed the offense for which he is sought. See, e.g., Neely v. Henkel, 180 U.S. 109, 123, 21 S.Ct. 302, 307, 45 L.Ed. 448 (1901); In re D'Amico, 185 F. Supp. 925, 931 (S.D.N.Y. 1960). As stated by the Senate report on the Treaty: "United States extradition treaty practice . . . has uniformly required that our treaty partners, in requesting the extradition of a person charged by them, provide sufficient documentation to demonstrate probable cause to believe that the crime for which extradition is sought was committed and that the person sought committed it." Senate Comm. on Foreign Relations, Treaty With Italy, S.Rep. No. 33, 98th Cong., 2d Sess. 5, reprinted in 24 I.L.M. at 1533.

"To establish the level of probable cause necessary to certify one for extradition, evidence must be produced that is 'sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.' Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973)." In re Extradition of Atta, 706 F. Supp. 1032, 1050 (E.D.N.Y. 1989). Furthermore, "[t]he primary source of evidence for the probable cause determination is the extradition request, and any evidence in it is deemed truthful for purposes of this determination." Id. at 1050-51 (citing Collins v. Loisel, 259 U.S. at 315-16, 42 S.Ct. at 471-72). A magistrate's finding that there is probable cause will not be overturned so long as there is any evidence warranting the finding that there was reasonable ground to believe the accused guilty. Collins v. Loisel, 259 U.S. at 315, 42 S.Ct. at 471.

As noted above, although the Magistrate felt that, based on the record before him, he was unable to make an independent determination of probable cause, he nevertheless found that the certified copy of the appellate opinion affirming Spatola's conviction was "sufficient proof that probable cause exists that Spatola committed [the association] crimes, thus satisfying the requirements of 18 U.S.C. § 3184."*fn34 The Magistrate noted that "[t]his approach is consistent with the Treaty, which requires that an extradition request for a person who has been charged but not convicted of a crime must provide a reasonable basis to believe that the person sought committed the offense for which extradition is sought, but has no such requirement for extradition requests relating to a person who has already been convicted. See Articles X(3)(b) and X(4) of the Treaty."*fn35 Spatola claims that an independent determination of probable cause is required by the Constitution, and that the Treaty is unconstitutional insofar as it dispenses with this independent determination.

It is true that the Constitution, to some as yet ill-defined extent, restrains the extradition activities of the United States Government via treaty.*fn36 For while the Constitution declares that both it and treaties are the "supreme Law of the Land," U.S. Const. art. VI, the Second Circuit has unequivocally declared that "although the Constitution cannot limit the power of a foreign sovereign to prescribe procedures for the trial and punishment of crimes committed within its territory, it does govern the manner in which the United States may join the effort." Rosado v. Civiletti, 621 F.2d at 1195 (emphasis added). Contrary to Spatola's argument, however, the requirement that there be probable cause in order to extradite "has not yet been interpreted as emanating from the Fourth Amendment." Bassiouni at 552. And while the Second Circuit has expressed "grave questions" concerning the constitutional propriety of a treaty that would allow provisional arrest in extradition without probable cause, Caltagirone v. Grant, 629 F.2d at 748, 748 n. 19, the Court has no such "grave" questions here where there has been a conviction, even if the probable cause requirement in extradition is required by the Constitution.

The Treaty does require probable cause for extradition on post-trial convictions just as for extradition on pre-trial charges, and the Treaty's different treatment of extradition requests in each instance is merely meant to avoid a statement of the obvious. In the case of mere charges, no adjudication of guilt has yet been made against the relator and thus there is a need for the so-called "independent" determination of probable cause similar to preliminary hearings in American criminal cases. Where, however, there has been a judgment of conviction, there is no need for an "independent" determination of probable cause: the relator's guilt is an adjudicated fact which a fortiori establishes probable cause.*fn37 Thus, a certified copy of an appellate court opinion affirming a relator's conviction is enough to establish probable cause.*fn38 The same is true for a certified copy of a judgment of conviction. See United States v. Clark, 470 F. Supp. 976, 978 (D.Vt. 1979); In re Edmondson, 352 F. Supp. at 24.*fn39 Cf. Shearer at 151.

However, even if an "independent" determination of probable cause was required, the contents of the opinion of the Court of Appeal of Palermo, as set forth supra in the section on dual criminality and in the appendix, assuredly provided enough information to permit such a determination. "Probable cause" in the context of this case is nothing more than a reasonable, conscientious belief by a person of ordinary prudence and caution that Rosario Spatola has committed the crimes for which Italy seeks his extradition. There is no doubt that Spatola has been convicted in Italy of association to commit crimes and association to commit crimes of drug trafficking. There is, in the record, a certified copy of the appellate court opinion affirming his conviction for these crimes, and the appellate opinion sets forth much more than a mere declaration that Spatola committed the association crimes and was properly found guilty. The evidence, findings, and holding recited in the Italian court opinion clearly set out the nature and activities of the association, and Spatola's role in and efforts on behalf of the association, thus amply justifying a reasonable belief that Spatola committed the association crimes. See Shapiro v. Ferrandina, 478 F.2d at 905 (hearsay admissible in extradition proceedings); Collins v. Loisel, 259 U.S. at 315-16, 42 S.Ct. at 471-72 (evidence submitted by requesting state deemed truthful for purposes of probable cause determination); Glucksman v. Henkel, 221 U.S. at 512, 31 S.Ct. at 705 (court bound by existence of extradition treaty to assume requesting state's criminal procedure is fair).

In sum, the Magistrate was correct in holding that the Italian appellate court opinion affirming Spatola's conviction was sufficient to establish probable cause.


The Magistrate correctly certified the extradition request of Italy as to Rosario Spatola's conviction for association to commit crimes and for association to commit crimes of drug trafficking since the association crimes are "extraditable" under the Treaty and satisfy the requirement of dual criminality; and since probable cause that Spatola committed the association crimes has been established. Accordingly, Spatola's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is DENIED, and the petition is DISMISSED. However dismissal of the petition is STAYED for ten days to permit application for a further stay from the Court of Appeals.



A careful examination of the appellate court opinion reveals the following:

  1)  The Gambino, Inzerillo, & DiMaggio families
  were joined together in a "single organic group"
  for criminal purposes.*fn40 The group was engaged
  in organized crime in Palermo, Italy, New York,
  and New Jersey.*fn41 The group was "an
  association of mafia type,"*fn42 bound by bonds
  of silence, "family," and "the full and exclusive
  devotion of its associates to the common
  cause."*fn43 Spatola once extolled the virtues of
  the mafia, "asserting it to be good and not bad,
  and giving an apologetic definition of 'omerita'
  (conspiracy of silence). . . ."*fn44

  2)  On January 16, 1980, 24 kilograms of heroin,
  contained in two suitcases, were seized in New
  York. The group was responsible for the
  importation of this heroin from Palermo to New
  York via


  3)  In March of 1980, a 40-kilogram seizure of
  heroin was made in Milan when the group attempted
  to mail it to Gambino associates in New

  4)  The group engaged in the purchase of base
  morphine in Milan, and then transported it to
  Palermo to manufacture heroin.*fn47

  5)  The group was also involved in two other
  episodes of heroin trafficking. These episodes,
  together with the January and March 1980
  incidents, although differing in the dramatis
  personae of minor characters, all centered around
  Salvatore Inzerillo (in Palermo) and the Gambinos
  (in New York).*fn48 Furthermore, legally
  authorized electronic surveillance of an
  Inzerillo-owned business telephone revealed coded
  conversations about drug trafficking and money

  6)  The group engaged in extortion in connection
  with construction projects whereby contractors
  were forced to pay "commissions" or peace
  money.*fn50 In fact, it was, in part, "the
  methods used by SPATOLA . . . to obtain the award
  of the [a particular] contract and to force the
  holder to let him build on [a particular tract of
  land]" that evinced that the group "is an
  association of mafia type."*fn51

  7)  Spatola, a mutual cousin of Salvatore
  Inzerillo and Rosario Gambino,*fn52 occupied a
  high position in the group. Although he did not
  involve himself directly in drug trafficking, he
  played the role of a respectable businessman in
  the construction trade, thereby enabling the group
  to launder large amounts of foreign currency
  representing the proceeds of wholesale
  distribution of drugs.*fn53

  8)  Spatola was one of the "foremost members of
  the group of families. . . . [H]e came to have, in
  the organization, the main task of recycling
  foreign currency and the illicit proceeds received
  — behind a facade of apparent respectability — by
  means of exchange operations and using companies of
  which he was the owner or co-owner."*fn54 In this
  way, and in the course of only ten years, Spatola
  went from "issuing a dud check to possessing
  sufficient capital and reliability to construct
  large buildings and to organize big worksites, and
  to have so much good fortune as to obtain, on the
  one hand, lands against deferred payment, and on
  the other hand supplies on credit and considerable
  bank loans without adequate guarantees."*fn55
  Spatola admitted associating with Inzerillo and
  Gambino, and explained that the large amounts of
  foreign currency given by them to him represented
  their partners' contribution to his company.*fn56
  This explanation, however, was untruthful.*fn57

  9)  Spatola was perfectly well aware that his
  relations (DiMaggio, Inzerillo, Gambino) were
  members of the mafia and he deliberately joined
  the association to play the chief role of director
  of mafia building contractors. And the proceeds of
  unlawful trafficking, including the dollars earned
  in drug running, were also to be used in these
  companies. And the origin of these proceeds . . .
  could not have been unknown to Spatola, in view of
  the notorious — to say the least — figures of his
  cousins, and given that such a huge quantity of
  American dollars could have come from nowhere

  10) To further the interests of the group, Spatola
  participated in the sham "kidnapping" of a Michele
  Sindona in New York, on August 2, 1979. In
  connection with this incident, Spatola, his
  brother Vincenzo, Giovanni Gambino, Francesco
  Fazzino, Sindona himself, and others, were
  arrested in Italy for aggravated extortion.*fn59

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