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IN RE PALMA MATUS

February 10, 1992

IN THE MATTER OF THE EXTRADITION OF FELICIANO PALMA MATUS

DUFFY


The opinion of the court was delivered by: KEVIN THOMAS DUFFY

KEVIN THOMAS DUFFY, D.J.:

 The Government of Chile seeks to extradite Feliciano Palma Matus ("Palma"), pursuant to the terms of an extradition treaty executed between Chile and the United States on April 17, 1900 (the "Treaty"), for crimes he allegedly committed against the Chilean Government. The defendant is presently in the custody of the United States, having been arrested on July 31, 1991. Bail has been denied.

 Palma is a 40 year old citizen of Chile and a successful manufacturer and exporter of Chilean products, principally pottery and ceramics. He has exported such goods to the United States since 1984. His company, Industrias Lozapenco, S.A. ("Lozapenco"), *fn1" at one time employed some 3,000 persons, making it the largest private employer in the Penco region of Chile.

 In 1987, a dispute arose between Palma's companies and the Chilean Internal Revenue Service over a certain tax refund that Palma, as an exporter, had applied for and received under the Chilean Value Added Tax law ("VAT"). The Chilean Internal Revenue Service initially charged Palma with tax fraud and evasion in a complaint filed on April 12, 1990 with the 12th Criminal Court in Santiago, Chile. A warrant was issued for Palma's arrest on April 16, 1990 and a search warrant was subsequently executed at his corporate offices. According to the testimony of his wife, Palma disappeared from Chile on April 18, 1990. He was later arrested in New York City on July 31, 1991, upon a warrant issued pursuant to a provisional extradition request from Chile. The formal extradition request, supported by approximately 2,000 pages of documents and records, was filed with this court on September 27, 1991. *fn2"

 An extradition hearing was held before me on November 19, 1991 pursuant to 18 U.S.C. § 3181. The sole purpose of the hearing was to determine whether Palma is subject to extradition. There is no real dispute that Palma is the person named in the extradition warrant. No evidence was considered at the hearing, but the various documents received from the Chilean Government were made part of the record along with their translations.

 I recognize that there is no direct appeal from the determination of a judicial officer in an extradition hearing. I suspect, however, that there will be a review of my determination by way of a petition for habeas corpus to another judge of this court and thereafter an appeal from the determination made by that judge. Thus, I write not for any immediate need, but rather to explain my decision to the parties and to any judicial officer who may hereafter be interested in the proceeding.

 Palma makes several contentions. He asserts that the warrant issued by the Chilean government is premised on the erroneous assumption that the various offenses he allegedly committed are extraditable under the "fraud clause" of the Treaty. He next avers that the Chilean government's evidence is defective and insufficient to hold him for extradition. Finally, Palma suggests that the piecemeal manner in which the Chilean government filed the charges against him, and the way in which the United States government has handled the matter, should be considered in determining whether he should be extradited.

 DISCUSSION

 The crimes for which extradition may be granted must be specified in the treaty between the United States and the requesting nation. Demjanjuk v. Petrovsky, 776 F.2d 571, 579 (6th Cir. 1985). Specifically, "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." Spatola v. United States, 741 F. Supp. 362, 371 (E.D.N.Y. 1990), aff'd, 925 F.2d 615 (1991). Further, according to 18 U.S.C. § 3184:

 (Emphasis added)

 In the instant case, the crimes extraditable under the Treaty include:

 Fraud or breach of trust by a bailee, banker, agent, factor, trustee or other person acting in a fiduciary capacity, or director or member or officer of any company, when such act is made criminal by the laws of both countries and the amount of money or the value of ...


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