United States District Court, S.D. New York
January 30, 2004.
IN THE MATTER OF THE EXTRADITION OF LUIGI RIBAUDO
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM and ORDER
The government of the Republic of Italy ("Italy"), through the
government of the United States of America ("United States"), has
petitioned for a certification that Luigi Ribaudo ("Ribaudo") is
extraditable pursuant to the extradition treaty between the United States
and Italy, T.I.A.S. No. 10837, signed at Rome on October 13, 1983, and
entered into force on September 4, 1984 ("Treaty"). Italy seeks Ribaudo's
extradition because he was tried in absentia in Italy, convicted
for the crimes of conspiracy and drug trafficking and sentenced to eleven
(11) years imprisonment.
Ribaudo has made a motion to dismiss the petition for extraditability
to Italy. The bases for the motion are his claims that: 1) the evidence
presented in support of the petition for extraditability fails to
establish probable cause; 2) the documents submitted in support of the
extradition request fail to conform to the requirements of the Treaty;
and 3) the delay in seeking Ribaudo's extradition is a violation of the
terms of the Treaty; in the alternative, the request for extradition
should be denied pursuant to the equitable doctrine of laces. The United
States opposes the motion and urges that the Court issue a certification
that Ribaudo is extraditable to
Italy because a valid extradition treaty exists between the United
States and Italy, the crime with which Ribaudo has been convicted is
covered by the relevant treaty and the evidence presented by the United
States, on behalf of Italy and in support of the petition for
extradition, is sufficient under the applicable standard of proof and
complies with the requirements of the Treaty. Ribaudo's motion is
Ribaudo is a citizen of Italy. He entered the United States in 1982 and
became a permanent resident in 1985. Since 1983, he has been employed as
an engineer in New York. He has lived under his own name, making no
attempt to keep his identity or whereabouts a secret.
On December 29, 2000, a Complaint for Arrest with a View Toward
Extradition was filed against Ribaudo by the United States Attorney's
Office for the Southern District of New York on behalf of the government
of Italy. On January 11, 2001, Ribaudo was arrested pursuant to an arrest
warrant issued on the complaint. The circumstances leading to Ribaudo's
arrest are alleged to be as follows.
On October 28, 1982, the District Attorney's Office in Florence, Italy,
was notified that Gaetano Giuffrida ("Giuffrida"), among others, had been
arrested in New York on a charge of possession of fifteen (15) kilograms
of heroin. Giuffrida was later released from custody because the evidence
against him was insufficient. Thereafter, officials of the Italian
government placed wiretaps on telephones used by Giuffrida.
On January 21, 1983, as a result of information obtained by means of
the wiretaps and other investigative activity, law enforcement officers
seized 81.6 kilograms of heroin in Florence, Italy. The heroin had been
divided into 160 packages, each of which had been placed in a shoe
box in preparation for shipment to Mintor's Shoes, Inc. in New
York, New York. In addition, certain documents seized by law enforcement
officers, during their investigation of Giuffrida, showed that he was
closely associated with other persons involved in the October 1982
arrests. Among these documents was a letter sent by an attorney, Lorenzo
De Luca ("De Luca"), to Giuffrida in care of "Ribaudo." At the time, De
Luca was a consultant for Mintor's Shoes, Inc. and other companies
located at the same address as that corporation. Based on this and other
evidence, Italian investigators concluded that Ribaudo was involved in
Giuffrida's drug trafficking organization.
In reaching this conclusion, investigators relied in part on evidence
concerning Ribaudo's daughter, Eleanora Ribaudo ("Eleanora"). Eleanora
was known to be romantically involved with Giuffrida. In addition, she
was considered to be an intermediary between Ribaudo and Giuffrida and,
in that capacity, to have conveyed messages from one to the other
concerning the organization's activities. For example, a telephone
conversation that took place following Giuffrida's arrest in New York
revealed that Giuffrida told Eleanora to inform her father "not to give
any shoes to anyone," to give "only five of them to De Luca," and to "let
[De Luca] see the samples." Law enforcement officials believed that the
word "shoes" referred to heroin and that Giuffrida was speaking about the
establishment by De Luca of a new company to receive future shipments of
heroin. In addition, a letter written to Giuffrida by one of his
associates, Antonio Turano ("Turano"), contained the following statement:
"called by Ribaudo, Attorney Castelbuono called me and is prepared to do
the complete job, that is both operations, that is goods and money."
Investigators learned that Catselbuono had been responsible for
laundering money obtained from the sale of heroin in the United States.
They concluded, therefore, that
Castelbuono had determined to engage in such activity only after
receiving a communication from Ribaudo.
In May 1983 the Florence District Attorney's Office issued arrest
warrants for Ribaudo and his wife, Constanza Glave ("Glave"), on charges
of association (conspiracy) to commit narcotics trafficking and
possession, exportation and sale of narcotics. The trial of Ribaudo and
his wife, along with numerous others, commenced on May 2, 1985, in the
Court of Florence. Ribaudo and Glave did not return to Italy for the
trial and were tried in absentia. In a letter dated May 1, 1985,
addressed to the Chief Judge of the n Criminal Division at the Court of
Florence, Ribaudo and Glave presented a defense to the charges brought
against them. In the letter, Ribaudo and Glave acknowledged that
Giuffrida had been a close personal friend of the family, including their
daughter, and that they had once borrowed a part of the purchase price of
a house in Milan from Giuffrida, but they denied any knowledge of or
participation in Giuffrida's criminal activities.
On June 26, 1985, Ribaudo was found guilty of the crimes ascribed to
him and was sentenced to sixteen (16) years imprisonment and a fine of
400 million lire. Glave was acquitted of all charges. On May 7, 1986, the
Court of Appeal of Florence affirmed Ribaudo's conviction and reduced
his sentence to eleven (11) years and a fine of 200 million lire. On
April 5, 1987, Italy's Supreme Court of Cassation denied Ribaudo's
A request for the provisional arrest and extradition of Ribaudo, among
others, was received by the United States Office of International Affairs
("OIA") on December 27, 1985. Thereafter, during the period March 1986
through August 1998, the United States repeatedly sought documentation
that would support the Italian government's request for Ribaudo's
extradition. Indeed, a review of the record in this case indicates
that the United States submitted to law enforcement officers in Italy
approximately twenty such requests during that twelve-year period. For
example, on April 11, 1989, the director of the criminal division of the
OIA advised Italian law enforcement officers that it planned to close the
file on the Ribaudo extradition matter because three prior requests for
pertinent information had not been answered and, in the approximately
three years since Ribaudo's provisional arrest was first requested, the
necessary extradition documents had not been provided. Three years later,
in April 1992, Ribaudo's extradition file was reopened by the OIA based
on repeated inquiries from law enforcement officers in Italy concerning
its status and assurances by them that the requisite documents would be
forthcoming. However, the final transmission of formal extradition
documents was not received by the United States Department of State until
September 21, 1998. Thereafter, on August 20, 1999, Kenneth Propp
("Propp"), an attorney in the Office of the Legal Adviser for the
Department of State, issued a declaration attesting to Italy's request
for Ribaudo's extradition.
On December 29, 2000, a United States district judge in this judicial
district issued a warrant for the arrest of Ribaudo, as contemplated by
18 U.S.C. § 3184 and Article XII of the Treaty, the provisional
arrest provision of that document. The warrant was executed on January
11, 2001. Ribaudo was brought before the court and was remanded to the
custody of the United States Marshals Service. On March 28, 2001, Ribaudo
was released on bail subject to certain specified conditions. Thereafter,
the instant motion was filed.
"In the United States, extradition is governed by the federal
extradition statute." Cheung v. United States, 213 F.3d 82, 87
(2d Cir. 2000); see also 18 U.S.C. § 3181-3196. With some
exceptions not applicable to this case, "[s]ection 3184 of the
statute mandates that extradition must be based on a treaty or
convention." Cheung, 213 F.3d at 87. In addition, section 3184
of the statute states that responsibility for extradition within the
United States falls, in the first instance, to a judicial officer whose
task it is to determine: (i) whether a valid extradition treaty exists
between the United States and the relevant foreign government, (ii)
whether the crime charged is covered by that treaty, and (iii) whether
the evidence presented to the judicial officer is sufficient to sustain
the charge under the provisions of the treaty. See id. at
87-88. If the judicial officer determines that the conditions for
extradition have been met, he or she shall certify to the Secretary of
State that a warrant for the surrender of the person sought may issue.
See id. at 87-88; LoDuca v. United States,
93 F.3d 1100, 1103-04 (2d Cir. 1996).
In the instant case, it is uncontested that a valid treaty between
Italy and the United States respecting the extradition of fugitives is in
force. It is also uncontested that association (conspiracy) to commit
narcotics trafficking, and the possession, exportation and sale of drugs,
are among the charges covered by the Treaty. Therefore, the Court finds
that those elements of the section 3184 inquiry have been satisfied.
Accordingly, only the third element of the inquiry, namely, whether there
is sufficient evidence under the provisions of the Treaty to sustain the
charges against Ribaudo, will be addressed by the Court.
Article X of the Treaty distinguishes between persons who have been
convicted and those who have not, and explicitly requires a showing of
probable cause in the case of the latter. Specifically, Article X of the
Treaty provides, in pertinent part:
3. A request for extradition which relates to a
person who has not yet been convicted
shall . . . be accompanied by:
(a) a certified copy of the arrest warrant or any
order having similar
(b) 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 . . .
(c) documents establishing that the person sought
is the person to whom the arrest warrant or
equivalent order refers.
4. A request for extradition which relates to a
person who has been convicted shall, in addition
to those items set forth in paragraph 2 of this
Article,*fn1 be accompanied 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 be served; and
(c) documents establishing that the person sought
is the person convicted.
Article X of the Treaty also refers to persons who have been convicted
in absentia', the requirements with respect to a showing of
probable cause for individuals in this group encompass all of the
provisions outlined above. Thus, paragraph 5 of Article X provides:
5. If the person sought has been convicted in
absentia or in contumacy, all issues relating to
this aspect of the request shall be decided by the
Executive Authority of the United States or the
competent authorities of Italy. In such cases, the
Requesting Party shall submit such documents as
are described in paragraphs 2, 3, and 4 of this
Article and a statement regarding the procedures,
if any, that would be available to the person
sought if he or she were extradited.
These provisions of the Treaty indicate that, under ordinary
circumstances, a judgment of conviction entered in a foreign court is
sufficient to establish probable cause to extradite a person who has been
convicted by that court; however, when a person has been convicted in
absentia, a judgment of conviction, while pertinent to an analysis
of the sufficiency of the evidence, is not conclusive proof of probable
cause to extradite. Consequently, when a person has been convicted in
absentia, an inquiry conducted pursuant to section 3184 must include
an independent determination of probable cause based upon evidence which
provides, in the words of the Treaty, "a reasonable basis to believe that
the person sought committed the offense for which extradition is
Courts in this judicial circuit have taken a like approach to the
determination of probable cause in an extradition proceeding. Thus, the
Second Circuit Court of Appeals has held that, while a judgment of
conviction entered by a foreign court and obtained following a trial at
which the defendant was present is sufficient to establish probable cause
in an extradition proceeding, see Spatola v. United States,
925 F.2d 615, 618 (2d Cir. 1991), where, as here, the defendant was convicted
in absentia, the conviction is merely a charge and an
independent determination of probable cause to extradite must be made,
see Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960) ("[A]
foreign conviction in absentia does not preclude the federal
court from considering whether sufficient evidence of the relator's
criminality has been presented in the extradition proceeding before the
United States Commissioner."); In re Extradition of Ernst, No.
97 Crim. Misc. 1 Pg. 22, 1998 WL 395267, at *7 (S.D.N.Y. July 14, 1998)
("[W]here . . . the conviction is the result of a trial in
absentia, the conviction is regarded merely as a charge, requiring
independent proof of probable cause.").
In making such a determination, the court need not decide whether the
evidence is sufficient to justify a conviction. See Lo Duca, 93
F.3d at 1104 (explaining that an extradition proceeding conducted
pursuant to section 3184 is not "in the nature of a final trial by which
the prisoner could be convicted or acquitted of the crime charged against
him")(citation omitted). Rather, an extradition hearing is a "preliminary
examination" in which the judicial officer "performs an assignment in
line with his or her accustomed task of determining if there is probable
cause to hold a defendant to answer for the commission of an offense."
Id. (citation omitted).
Probable cause, for the purposes of the extradition statute, is
established if the evidence presented supports a reasonable belief that
the person whose extradition is sought is guilty of the crime charged.
See Austin v. Healey, 5 F.3d 598, 605 (2d Cir. 1993)(citing
Ahmad v. Wigen, 910 F.2d 1063, 1066 [2d Cir. 1990]). The
standards for determining whether probable cause is established are the
same as those set forth in Rule 5.1 of the Federal Rules of Criminal
Procedure. See, e.g., In re Extradition of Neto, 98 Crim.
Misc. 1 Thk., 1999 WL 627426, at *3 (S.D.N.Y. Aug. 17, 1999). Moreover, in
making a probable cause determination, a judicial officer should consider
the "totality of the circumstances" and "make a practical, common-sense
decision" whether the evidence is sufficient to sustain a finding of
probable cause. Illinois v. Gates, 462 U.S. 213, 238-40, 103 So.
Ct. 2317, 2332-33 (1983). Furthermore, "[s]ufficient information must be
presented to the magistrate to allow that official to determine probable
cause; his action cannot be a mere ratification of the bare conclusions
of others." Id. at 239, 2333.
Ribaudo argues that the probable cause standard has not been met in
this case because the opinion of the Court of Appeal of Florence, which
is the only evidence provided in support of the request to extradite, is
wholly conclusory and, moreover, the documents to which the opinion
refers, and upon which it purports to base its findings, have never been
presented to this court. The government, in opposing Ribaudo's motion,
contends that, even if the decision of the Italian court does not provide
conclusive proof of probable cause, it should be given "some weight" in
the Court's analysis; in any case, the government argues, the evidence
adduced at the trial was sufficient to satisfy the requirement of a
showing of probable cause.
In support of its request to extradite Ribaudo, the government of Italy
provided the following documents, attached to diplomatic note number
7101, from the Italian Embassy to the Department of State: (1) the
decision of the Court of Appeal of Florence, dated May 7, 1986, (2) a
summary of the case prepared by the state attorney general in Florence,
dated February 4, 1992, (3) the post-conviction arrest warrant issued in
Florence on June 25, 1987, and (4) certain relevant provisions of the
Italian criminal and penal codes.
Ribaudo is correct that the only evidence provided in support of the
petition for extraditability is the decision of the Florence Court of
Appeal. That document refers to records of wiretapped conversations
between, inter alia, Giuffrida and Ribaudo, and Giuffrida and
Eleanora. The decision also refers to the two letters described earlier:
the letter to Giuffrida from De Luca sent in care of "Ribaudo" and the
letter to Giuffrida from Turano discussing the activities of Castelbuono
and containing the phrase "called by Ribaudo." Based on these and other
documents, and taking into account the arguments presented on appeal, the
court concluded that Ribaudo's membership and participation in
Giuffrida's drug trafficking organization had been demonstrated at trial.
None of the documents concerning Ribaudo that are mentioned in the
decision of the Florence Court of Appeal has been presented to this
Court. Therefore, even if the decision of that court were to be given
"some weight" in the analysis of this case, as the government urges,
since the underlying evidence has not been made available, the Court
cannot make an independent determination concerning whether there is
probable cause to believe that Ribaudo committed the crimes charged.
See In re Extradition of Ernst, 1998 WL 395267, at *10
(finding, where relator was convicted in absentia, the only
evidence of relator's criminal activity was the decision of a foreign
court, and the underlying evidence relied upon was not made available,
that the materials submitted in support of extradition failed to
establish probable cause that relator committed the crimes with which he
was charged); compare In re Extradition of Neto, 1999 WL
627426, at *3-4 (finding, where circumstantial evidence in the form of
wiretap records, hearsay testimony of convicted co-conspirators, police
report of confidential disclosure and evidentiary documents was
persuasive, that the government had satisfied its burden of establishing
probable cause); Lo Duca v. United States, No. 95 Civ. 713,
1995 WL 428636, at *13 (E.D.N.Y. July 7, 1995) aff'd by
93 F.3d 1100 (2d Cir. 1996)(holding that a finding of probable cause to
extradite was correct where the judicial officer made his determination on
the basis of "abundant documentary evidence").
The Florence Court of Appeal concluded that it was "considered proven"
that Ribaudo conveyed messages concerning drug trafficking activities to
Giuffrida by way of Eleanora. This conclusion was based in part on the
content of the telephone conversation, described earlier, in
which Giuffrida is alleged to have told Eleanora to inform Ribaudo
"not to give any shoes to anyone," to give "only five of them to De
Luca," and so on. However, the government has not provided transcripts of
this or any other telephone conversation discussed in the decision, or
even summaries of those conversations by which, among other things, the
contextual significance of the statements attributed to the participants
might be discerned. Consequently, the Court cannot determine whether the
conclusion reached by the Florence Court of Appeal was warranted.
Moreover, even if the Court were to rely on the description of the
underlying evidence provided in the court's decision, the explanation
given by that court concerning the reason for believing that the word
"shoes," as used in the wiretapped conversations, was code for "heroin"
is entirely conclusory.*fn2
Similarly, no copies of the letters at issue here have been provided.
Hence, with respect to the letter to Giuffrida from Turano, for example,
the Court has no basis for understanding the context of the quoted
statements or for determining whether the phrase, "called by Ribaudo," is
incriminating, as the Florence Court of Appeal contends. Moreover, no
evidence is adduced to support the conclusion that Luigi Ribaudo
is the individual to whom the letter refers, as opposed to, for example,
his father, Salvatore Ribaudo.
For the reasons set forth, and taking into consideration the totality
of the circumstances, the Court finds that the evidence presented in this
case does not support a reasonable belief that
Ribaudo is guilty of the crimes charged or that the government has
satisfied its burden of establishing probable cause.
Submission of Required Documents
Ribaudo maintains that certain documents submitted in support of the
complaint either do not conform to the procedural requirements of the
Treaty or are inherently unreliable, and that certain documents required
under the Treaty have not been provided. Therefore, Ribaudo argues, the
request for extradition should be denied.
In an extradition proceeding, a court must determine whether the
documents submitted in connection with an extradition request are in
compliance with the requirements of the treaty between the United States
and the relevant foreign government. See In re Extradition of
Ernst, 1998 WL 395267, at *4 (citing In re Extradition of
Rabelbauer, 638 F. Supp. 1085, 1087 [S.D.N.Y. 1986]); Lo
Duca, 1995 WL 428636, at *2, 5-9. In this case, as noted earlier,
the Treaty sets forth the requirements with respect to supporting
documents in Article X. Paragraph 1 of Article X provides that
"[r]equests for extradition shall be made through the diplomatic
channel." Additionally, paragraph 7 of Article X provides, in pertinent
part: "The documents which accompany an extradition request shall be
admissible into evidence when . . . in the case of a request from
Italy, they are signed by a judge or other Italian judicial authority and
are certified by the principal diplomatic or consular officer of the
United States in Italy."
Ribaudo contends that certain documents submitted in support of the
extradition request should have been certified by the Minister Counselor
of Consular Affairs at the United States Embassy in Rome, Charles F. Keil
("Keil"), at the time of the submission of the Propp declaration of
August 20, 1999; in fact, however, these documents were not certified
months later. Therefore, Ribaudo argues, these documents failed to
conform to the requirements of Article X, paragraphs 1 and 7, of the
Treaty and this, in turn, casts doubt upon the authenticity and
reliability of the extradition request as a whole.
Three sets of documents were submitted in connection with the
extradition request. In each case, the documents were sent under cover of
a diplomatic note from the Italian Embassy and were certified by Keil as
being legally authenticated extradition documents from Italy. The first
set of documents, as noted earlier, was provided in September 1998, and
was accompanied by diplomatic note number 7101. The Propp declaration
attested to the certification of these documents. A second set of
documents was provided in September 1999, and a third set of documents
was provided in March 2000. Each of these sets of documents also was
certified by the Minister Counselor for Consular Affairs. Thus, all of
the documents submitted in support of the extradition request conformed
to the requirements of Article X, paragraphs 1 and 7, of the Treaty.
Moreover, there is no evidence to indicate that the submission of a
portion of the extradition documents, after the issuance of a declaration
attesting to the certification of an earlier submission, had the effect
by itself of undermining the authenticity or reliability of the
government's extradition request. Therefore, the Court finds that
Ribaudo's claim that certain documents provided in support of that
request do not conform to the procedural requirements of the Treaty is
Ribaudo also contends that certain required documents are missing.
Specifically, according to Ribaudo, the government has failed to provide
the following: (1) documents, as required under Article X, paragraph
2(a), establishing the identity and probable location of Ribaudo; (2)
documents, as required under Article X, paragraph 2(e) of the Treaty,
the texts of the laws describing the time limit on the prosecution;
thus, in the event that Ribaudo is extradited and becomes subject to
retrial, in the absence of these documents, there is no way to know
whether such a retrial would be time-barred; (3) a certified copy of the
arrest warrant or any order having similar effect, as required under
Article X, paragraph 3(a); and (4) a statement of currency with respect
to the statement of procedures, if any, that would be available to
Ribaudo if he were extradited, as required under Article X, paragraph 5.
Ribaudo's argument must be rejected; a careful examination of the
documents submitted along with the extradition request indicates that all
the necessary documents were submitted by Italy. Ribaudo's name and date
and place of birth are provided in the decision of the Court of Appeal of
Florence, the summary of the case provided by the deputy state attorney
general at Florence, and the post-conviction arrest warrant. A photograph
of Ribaudo also is included among the extradition documents. Furthermore,
although the only indication of Ribaudo's probable location is his own
letter of defense, dated New York, May 1, 1985, Ribaudo does not dispute
the identification and concedes that, at the time of the filing of the
complaint, his location was known.
"Extradition treaties must be construed liberally to achieve their
purpose of providing for the surrender of fugitives to the requested
countries." Lo Duca, 1995 WL 428636, at *6 (citation omitted).
"In construing such treaties, form is not to be insisted upon beyond the
requirements of safety and justice." Id. (citation
omitted)(internal quotation marks omitted). Under the circumstances, and
construing the Treaty liberally, the Court finds that the government's
submissions satisfy the requirements of Article X, paragraph 2(a), as set
In addition, the documents submitted by the government conform to the
requirements of Article X, paragraphs 2(e) and 3(a) of the Treaty, in
that they include the "texts of the laws describing the time limit on the
prosecution or the execution of the punishment for the offense," as well
as "a certified copy of the arrest warrant or any order having similar
effect." Moreover, as Ribaudo concedes, the requirement, set
forth in Article X, paragraph 5, that the extradition documents include
"a statement regarding the procedures, if any, that would be available to
the person sought if he or she were extradited," has been satisfied in
this case. Such a statement is provided as part of the summary of the
case and of the Italian criminal code, both of which were submitted in
support of the government's extradition request. A "statement of
currency" with respect to this document is not required by the Treaty.
Furthermore, as the government points out, the relevant provisions of the
Italian criminal code were attached to diplomatic note number 7101, which
was dated September 1998, and, thus, may be presumed to have been current
as of that date.
Finally, according to Ribaudo, the summary of the facts of the case
prepared by the office of the state attorney general in Florence contains
numerous inaccuracies and misstatements. Therefore, Ribaudo argues, the
document should be discounted in its entirety.
As the government concedes, this document contains two typographical or
clerical errors. One concerns the date of Ribaudo's conviction; the
summary incorrectly identifies that date as June 26, 1984, when, in fact,
the conviction took place on June 26, 1985. The other error concerns the
date upon which the pre-trial arrest warrant for Ribaudo was issued. The
summary incorrectly states that the warrant was issued in 1953, when, in
fact, it was issued in 1983. In addition, the document speaks of Ribaudo
as having "fled" or "absconded" to the United States
prior to his trial. Ribaudo argues that this is both untrue and
inconsistent with the government's theory of the case. According to that
theory, Ribaudo's part in the drug trafficking conspiracy required him to
be located in the United States. Thus, Ribaudo contends, he could not
have "fled" or "absconded" to a place where he was already living.
Even supposing that the summary of the case submitted in support of the
extradition request contains the errors noted, as Ribaudo contends, it is
not clear that the document, for this reason, fails to conform to a
requirement of the Treaty. Moreover, Ribaudo's argument with respect to
the adequacy of this document again places form over "the requirements of
safety and justice." As the government points out, the typographical or
clerical errors contained in the document doubtless were inadvertent. In
any case, neither those errors, nor the statements concerning Ribaudo's
conduct prior to his trial, appear to be dispositive of the outcome of
the extradition proceeding.
For the reasons set forth, the Court finds that Ribaudo has not
established that the documents provided, in support of the extradition
request, fail to comply with the requirements of the Treaty. Accordingly,
this claim is without merit.
Delay in Seeking Extradition
In an extradition proceeding, "the court must determine whether
. . . all other treaty procedures have been followed." In re
Extradition of Ernst, 1998 WL 395267, at *4 (quoting In re
Extradition of Rabelbauer, 638 F. Supp. 1085, 1087 [S.D.N.Y. 1986]).
Ribaudo claims that the government's delay in seeking his extradition is
a violation of Article XI of the Treaty, entitled "Additional
Documentation." Ribaudo also claims that Italy's "prolonged delay" in
seeking extradition, and the prejudice to him that resulted from
the delay, implicates the equitable doctrine of laches.
Article XI of the Treaty provides, in pertinent part:
If the Requested Party considers that the
documentation furnished in support of a request
for extradition is incomplete or otherwise does
not conform to the requirements of this Treaty,
that Party shall request the submission of
necessary additional documentation. The Requested
Party shall set a reasonable time limit for the
submission of such documentation, and shall grant
a reasonable extension of that time limit upon an
application by the Requesting Party setting forth
the reasons requiring the extension.
Ribaudo argues that the United States failed to set any time limit for
the submission of the additional documentation necessary for extradition
and, a fortiori, never granted a "reasonable extension" of such
a time limit. Moreover, Ribaudo contends, the government of Italy never
applied for an extension of the time allotted for the submission of
documents and never set forth the reasons why an extension was needed. As
discussed supra, fourteen years elapsed between the date upon
which a warrant was first issued for Ribaudo's arrest by the Florence
Court of Appeal and the date upon which the United States Department of
State issued a declaration attesting to Italy's request for Ribaudo's
extradition. Another year passed before the filing of the instant
complaint. Hence, Ribaudo argues, since both parties have failed to
comply with the requirements of Article XI of the Treaty, his extradition
should be barred.
A review of the record in this case indicates that Ribaudo is correct
in stating that no explicit limits on the time allotted for submission of
extradition documents were set by the United States. As discussed
earlier, numerous requests for documents were sent to law enforcement
officers in Italy after the initial request for extradition had been made
and, in April 1989, the United States announced its intention to close
the file on the Ribaudo extradition
matter because proper documentation had not been forthcoming.
However, there is no indication that any deadline for the submission of
pertinent documents was imposed or that the government of Italy ever
sought an extension of such a deadline. In 1992, the file was reopened
and the United States continued to ask for Italy's cooperation in
providing additional information concerning the extradition request.
Consequently, it would appear that the Treaty procedures set forth in
Article XI were not strictly followed in this case.
However, as noted above, extradition treaties are to be "construed
liberally" and courts shall not insist upon adherence to a treaty's
formal requirements "beyond the requirements of safety and justice."
Lo Duca, 1995 WL 428636, at *6. Moreover, the Second Circuit
Court of Appeals has not addressed the question of whether the doctrine
of laches applies to extradition cases involving foreign governments,
although it has found, in the context of an interstate extradition, that
"[n]othing in the Constitution or in the applicable federal statute
indicates that a fugitive has a right to `speedy extradition' or that
there exists a statute of limitations for extradition." Strachan v.
Colon, 941 F.2d 128, 132 (2d Cir. 1991). Furthermore, the Sixth
Circuit Court of Appeals has ruled that, in a case involving a
fourteen-year delay between the issuance of a Canadian arrest warrant and
Canada's formal request for a habeas corpus petitioner's extradition,
there was no violation of the petitioner's Fifth Amendment right to due
process. See In re the Extradition of Michael John Prayer,
190 F.3d 410, 415 (6th Cir. 1999)(citing Martin v. Warden,
993 F.2d 824, 830 [11th Cir. 1993], for the proposition that there is no due
process right to a speedy extradition, and McMaster v. United
States, 9 F.3d 47, 48-49 [8th Cir. 1993], for the proposition that
there are no due process rights in an extradition
proceeding unless the United States bases extradition upon
impermissible factors such as race, etc.).
The Court agrees with Ribaudo that the delay in seeking his extradition
was unconscionable and that neither of the governments involved adhered
strictly to the letter of the Treaty with respect to the matter of
setting reasonable time limits for the submission of extradition
documents. Nevertheless, in the absence of any viable authority for the
proposition that the delay involved in this case constitutes a defense to
extradition or that the doctrine of laches applies, and taking into
consideration the rule that extradition treaties are to be construed
liberally, the Court finds that Ribaudo's claim is unavailing.
The Court finds that the evidence produced by the United States on
behalf of Italy does not support a finding that there is probable cause
to believe that Ribaudo committed the crimes with which he was charged.
Therefore, Ribaudo's motion to dismiss the petition for a certificate of
extraditability is granted.
The Court also finds that Ribaudo's claim that the documents submitted
in support of the extradition were not in compliance with the terms of
the Treaty is without merit. Furthermore, the Court finds that Ribaudo's
claim that the delay in seeking extradition violated the terms of the
Treaty, or, alternatively, that the doctrine of laches applies in this
case, is also without merit.