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In re Extradition of Washington

January 12, 2007

IN THE MATTER OF THE EXTRADITION OF JOHN A. WASHINGTON, A PROVISIONAL ARRESTEE


The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

JURISDICTION

This matter is before the court pursuant to 28 U.S.C. § 636(a)(1) and 18 U.S.C. § 3184. Presently before the court is the Provisional Arrestee's motion ("Washington's motion") to dismiss the Complaint for provisional arrest, filed December 29, 2006 (Doc. No. 8).

BACKGROUND and FACTS*fn1

On December 18, 2006, a complaint ("the Complaint") requesting the provisional arrest of Mr. John A. Washington, a United States citizen who was located within this district ("Washington" or "Arrestee"), pursuant to the Extradition Treaty with France, U.S.-Fr., Apr. 23, 1996, 2179 UNTS 341, 1996 WL 905553 ("the Treaty" or "the Extradition Treaty with France"), in force as of February 1, 2002,*fn2 was presented to the undersigned by an Assistant United States Attorney, Mr. Paul J. Campana, of this district ("Mr. Campana" or "the Government Attorney"). In the Complaint, Mr. Campana averred that Washington had, on July 24, 2006, assaulted one Colin Hall ("Hall") while at a night club in St. Tropez, France ("the night club"), by striking Hall in the head with a bottle. Complaint ¶ 3. According to the Complaint, Washington and Hall are United States citizens and students at Oxford University, England. Id. Allegedly, the assault was precipitated by Washington's and Hall's competing interests in a female, also a United States citizen and an Oxford student, who was present at the night club and witnessed the assault. Id. Following Washington's arrest and later release by French police, Hall's condition quickly deteriorated resulting in a coma for the next few weeks. Id.

The Government Attorney also averred that witness statements, including one from the female student, obtained by French law enforcement authorities, specifically identified Washington as Hall's assailant. Id. The Complaint further states that such an assault constitutes an act of violence in violation of Articles 222-12, 222-44, 222-45 and 222-47 of the French Penal Code ("the French Penal Code" or "the Code") and, as such, qualifies as a basis for extradition under the Treaty.*fn3 Complaint ¶ 1. Additionally, the Government Attorney represented that, based on the assault, Washington was the subject of an international arrest warrant issued by a French judicial officer in Nice, France on July 27, 2006, although a copy of the warrant was not included with the Complaint. Complaint ¶ 2. The Complaint also represented that the French government intended to seek extradition of Washington within 60 days of his warrant as required by Article 13 of the Treaty. Complaint ¶ 7.

Article 13 of the Treaty authorizes the provisional arrest of a person located in the requested state, i.e., pending receipt of a formal request for extradition by the requesting party pursuant to Article 10 of the Treaty, for a 60-day period after the date of the person's provisional arrest, upon a description of the person to be arrested, information regarding the person's location in the requested state, a "brief statement of the facts of the case, including the location and approximate date of the offense," a "description of the laws violated," the existence of any warrant of arrest for the person, and a statement that if the person is provisionally arrested, a request for extradition for the person will follow. Treaty, Art. 13[2]. Such requests are to be based upon communications between the United States Department of Justice and the Ministry of Justice of the French Republic using either diplomatic channels or facilities of the International Criminal Police Organization ("Interpol").*fn4 Treaty, Art. 13[1]. Finding the Complaint to be in compliance with Article 13, a warrant for provisional arrest for Washington pending timely receipt of formal extradition papers was issued by the undersigned on December 18, 2006.

Following his apprehension by United States Deputy Marshals at the Chautauqua Institution, located within this district, Washington appeared, on December 21, 2006, with counsel before the undersigned on return of the warrant. At that time, Washington conceded there was no issue of identity, however, Washington requested an opportunity to move to dismiss the Complaint and for release pending further proceedings. The court granted Washington's request to file the instant motion but found no special circumstances warranted the granting of bail. Accordingly, Washington was remanded to the custody of the United States Marshals Service under the provisional arrest warrant in compliance with Article 13 of the Treaty.

As noted, Washington's motion, filed December 29, 2006 (Doc. No. 8) requested dismissal of the Complaint and, alternatively, discovery. The motion was supported by the Affidavit of Amy C. Martoche, Esq. ("Martoche Affidavit") and attached exhibits ("Arrestee's Exh(s). __"), including copies of the provisional arrest warrant, the Complaint, the Treaty, and relevant provisions of the French Penal Code. In opposition, the Government filed, on January 5, 2007, the Affidavit of Paul J. Campana, Assistant United States Attorney ("Campana Affidavit") to which are attached as exhibits photocopies of documents, including a copy of the international arrest warrant against Washington for the alleged assault together with the request of the French prosecutor for Washington's provisional arrest, corroborating the alleged events underlying the French arrest warrant and the Complaint. ("Government Exh(s). __") Following oral argument, conducted January 8, 2007, Washington's motion was denied. Washington's alternative request for discovery, specifically for production of an authenticated copy of the French arrest warrant, was granted in part, and dismissed without prejudice to abide further extradition proceedings.

DISCUSSION

Washington raises five contentions in support of his motion. First, Washington contends that the Complaint fails to demonstrate probable cause, as required for the Fourth Amendment, to support his provisional arrest. Martoche Affidavit ¶¶ 9-15. Second, Washington asserts that the Complaint fails to sufficiently allege an extraditable offense under the Treaty to authorize a provisional arrest under Article 13 of the Treaty including that the Complaint fails to allege an offense punishable by at least one year imprisonment in France as required under Article 2 of the Treaty. Id. ¶¶ 26-28; 32. Third, Washington contends he is not a fugitive from French justice and therefore not subject to provisional arrest. Id. ¶¶ 35-40. Fourth, Washington asserts the Complaint is defective because it failed to include, as required by Article 10[3](b), an authenticated copy of the international arrest warrant for Washington. Id. ¶¶ 14-16. Finally, Washington contends the Complaint fails to satisfy the prerequisite for a provisional arrest under Article 13 of the Treaty that such requests are limited to a "case of urgency." Id. ¶ 33.

First, assuming that, as Washington contends, the Fourth Amendment is applicable to a complaint for provisional arrest under an extradition treaty to which the United States is a party the factual statements contained in the Complaint, Complaint ¶ 3, as sworn to by the Government Attorney, amply demonstrate probable cause to believe Washington committed an extraditable offense, and is thus subject to provisional arrest under the Treaty.*fn5 Although not specifically raised by Washington, Article 10[3](b), setting forth the requirements for a formal request for extradition by France of a person within the United States who is subject to prosecution in France, requires that in addition to a copy of the French arrest warrant for such person, the request be supported by "such information as would justify the committal for trial of the person if the offense had been committed in the United States." However, no similar requirement exists for a provisional arrest under Article 13 of the Treaty. It is well-established that in the United States such a committal must be based upon a finding of probable cause. See, e.g., Fed. R. Crim. P. 4 (requiring affidavit in support of arrest warrant to be based on "probable cause"); Fed. R. Crim. P. 5(b) (requiring showing of "probable cause" to support complaint in case of warrantless arrest); Fed. R. Crim. P. 5.1(e) (requiring finding of "probable cause" to hold defendant for further, i.e., grand jury, proceedings); United States v. Miller, 116 F.3d 641, 669 (2d Cir. 1997) ("A grand jury's indictment is based on probable cause, not on a preponderance of the evidence . . ..").

In Caltagirone v. Grant, 629 F.2d 739 (2d Cir. 1980), the court found it unnecessary to decide whether the Fourth Amendment applied to a request for provisional arrest, instead finding that the relevant extradition treaty between the United States and Italy included a provision, similar to Article 10[3](b) of the Extradition Treaty with France, and therefore required probable cause be demonstrated to support the provisional arrest in that case. Caltagirone, supra, at 748 (citing cases).*fn6 Thus, if the Complaint establishes probable cause for Washington's provisional arrest, pursuant to Article 13, it is unnecessary to decide whether probable cause is required under the Fourth Amendment or the Treaty.

Here, the Complaint unambiguously states, "on information and belief," that Washington struck the victim, Hall, with a bottle over the attentions of a woman who was a witness to the assault on July 24, 2006 at a night club in St. Tropez, France and identified Washington as Hall's assailant. Complaint Introduction and ¶ 3. Probable cause requires that the stated information in support of an arrest warrant be sufficient to cause a reasonably prudent person to believe a crime was committed by the accused. Berger v. New York, 388 U.S. 41, 55 (1967); Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006). In making this determination, judges are to evaluate the totality of the circumstances presented, Illinois v. Gates, 462 U.S. 213, 238 (1982), in determining whether there is a "substantial basis" for the issuance of the warrant. Id. at 239. Additionally, it is well-established that hearsay information, Franks v. Delaware, 438 U.S. 154, 165 (1978), including information received from other law enforcement agents, may be relied upon in reaching the probable case determination. United States v. Ventresca, 380 U.S. 102, 110-11 (1965) (citing Jones v. United States, 362 U.S. 257, 269 (1960)); Panetta, supra, at 395 (arresting officers may rely on determinations of grounds for arrest by fellow officers) (citing cases). See also Melia v. United States, 667 F.2d 300, 302 (2d Cir. 1981) (hearsay and "other excludable evidence" are admissible in extradition proceedings). Further, is it "well-established" that statements of a victim and eye-witnesses to an alleged crime constitute probable cause, absent reasons to doubt the veracity of such sources. Panetta, 460 F.3d at 395.

As discussed, Discussion, supra, at 5, Article 2 of the Treaty authorizes extradition for acts punishable for a period of incarceration of at least one year. Further, as stated, Discussion, supra, at 3, Article 13[2](d) of the Treaty requires for provisional arrest a "description of the laws violated" by the provisional arrestee. Article 222-11 of the French Penal Code provides that "[a]cts of violence causing a total incapacity to work for more than eight days are punishable by three years imprisonment and a fine of 45,000 euros. Government Exh. J at 2. As relevant to the Complaint, Article 222-12 of the Code provides incarceration of five years and a fine of 75,000 euros if the conduct is an offense "defined under Article 222-11" of the Code where committed ...


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