Parretti v. U.S.

• Citation: 112 F.3d 1363
• Decision Date: 06 May 1997
• Docket Number: No. 95-56586,95-56586
• Parties: 97 Cal. Daily Op. Serv. 3332, 97 Daily Journal D.A.R. 5765 Giancarlo PARRETTI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1363

112 F.3d 1363

97 Cal. Daily Op. Serv. 3332, 97 Daily Journal

D.A.R. 5765

Giancarlo PARRETTI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 95-56586.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 21, 1995.

Decided May 6, 1997.

Richard J. Beada, Santa Monica, CA, and William J. Genego, Santa Monica, CA, for petitioner-appellant.

George S. Cardona, Assistant United States Attorney, Los Angeles, CA, for respondent-appellee.

Appeal from the United States District Court for the Central District of California Before: PREGERSON, NORRIS, and REINHARDT, Circuit Judges.

James M. Ideman, District Judge, Presiding. D.C. No. CV-95-7593-JMI.

WILLIAM A. NORRIS, Circuit Judge.

On October 18, 1995, federal agents entered the Los Angeles office of the law firm of White & Case, interrupted a deposition being given by appellant Giancarlo Parretti and arrested him. The arrest was made pursuant to a warrant issued that morning on the basis of allegations contained in a French arrest warrant charging Parretti with extraditable crimes. After his arrest, Parretti was held without bail pending a decision by the French government whether to request his surrender at a later date.

Parretti's appeal presents two constitutional questions: First, did the warrant issued for Parretti's arrest violate the Fourth Amendment? Second, did Parretti's detention without bail before his extradition hearing violate the Due Process Clause of the Fifth Amendment?

I BACKGROUND

In 1990, a corporation headed by Giancarlo Parretti, an Italian citizen and resident, purchased MGM-United Artists for $1.3 billion. This leveraged transaction, which resulted in the formation of MGM-Pathe Communications Corporation, gave rise to a number of lawsuits. On October 9, 1995, Parretti entered the United States in order to answer charges of perjury in connection with one of these suits in Delaware, and to attend his own deposition in connection with another in Los Angeles. The following day, France forwarded a diplomatic note to the Department of State requesting Parretti's "provisional arrest" pursuant to Article IV of the Treaty of Extradition between the United States and France, Jan. 6, 1909, U.S.-Fr., 22 U.S.T. 407, as amended, Feb. 12, 1970, T.I.A.S. 7075, so that he might be held in custody in case France decided to request his surrender at a later date.

Parretti was arrested pursuant to a warrant issued by United States Magistrate Judge Joseph Reichmann on the basis of allegations contained in a "Complaint for Provisional Arrest Warrant" sworn to on information and belief by an assistant United States Attorney ("AUSA") for the Central District of California, "acting on behalf of the Government of France" (the "Complaint"). The AUSA alleged that Parretti had been charged in an international arrest warrant issued in France on May 3, 1995, with various crimes arising from his alleged looting of the French company Europe Image Distribution (EID), one of MGM-Pathe's subsidiaries; that each of the offenses charged in the French arrest warrant ¹ was an extraditable offense under the treaty; and that France had requested Parretti's "provisional arrest" under Article IV of the treaty. Article IV provides for the "arrest and detention of a fugitive ... on information ... of the existence of ... a warrant of arrest" and for the person "provisionally arrested" to be held for up to 40 days pending a possible request that the fugitive be extradited. At the time the AUSA filed the Complaint, France had not requested Parretti's extradition. ²

The sole basis for the allegations of wrongdoing made in the AUSA's Complaint is the French arrest warrant. In other words, the AUSA simply alleges on information and belief that the French arrest warrant contains various allegations of wrongdoing by Parretti. Complaint p 2 (stating that the French Parretti argued at his bail hearing and on his habeas petition to the district court that the warrant issued by Judge Reichmann violated the Fourth Amendment for two independent reasons. First, Parretti argued that the warrant was issued without probable cause because it was not based on evidence that Parretti had committed any of the offenses with which he was charged in the French arrest warrant. Parretti put it this way:

warrant and the diplomatic note requesting Parretti's arrest "provide the basis for the statements set forth below"), p 5 ("The arrest warrant alleges the following facts in support of the charges...."). The French arrest warrant itself was not attached to the Complaint, nor were any affidavits or other competent evidence.

[I]f you look at the language in the Complaint, what they say, is that based on the French warrant, we are stating the following. All that they are doing is regurgitating to the court what they have obtained from the warrant from France. We don't know what the investigating magistrate based those statements on.

ER at 150; RT at 7 (tr. of hr'g on Pet. for Habeas Corpus). In other words, Parretti argued that the record showed only that the United States warrant was based solely upon the existence of the French arrest warrant, and that the government made no showing to Judge Reichmann that the allegations contained in the French arrest warrant were based upon competent evidence.

In response, the government argued below that Judge Reichmann's determination of probable cause was "supported by specific facts that are set forth in the Complaint, relaying facts that were conveyed to the United States by France." ER at 23 (unofficial tr. of Nov. 1, 1995, hr'g on renewed bail application). The AUSA acknowledged that the "conveying of the facts was done in an informal way, that it wasn't in a way of formal evidence," but argued that "there's nothing that prohibits that." Id. (unofficial tr. of Nov. 1, 1995, hr'g on renewed bail application).

In denying Parretti's habeas petition, the district court ruled that the arrest warrant issued by Judge Reichmann was valid because the Complaint "alleges more than sufficient facts, with more than sufficient particularity, to establish probable cause to believe that Parretti committed the offenses with which he is charged in France." Findings of Fact, Conclusions of Law and Order denying application for bail and habeas corpus petition, filed Nov. 15, 1995, at 5-6; E.R. exh. 11, at 5-6. In rejecting Parretti's argument that the government had failed to make any evidentiary showing that he had committed a crime, the district court said at the hearing, "That's what they got [sic] 40 days to clear up and to make a presentation in their extradition proceedings." ER at 150-51; RT at 7-8.

As a second, alternative basis for challenging the validity of his arrest, Parretti argued that his arrest warrant violated the Fourth Amendment because Judge Reichmann did not make a probable cause determination. According to Parretti, Judge Reichmann effectively declared that a probable cause determination was not required for a warrant for a "provisional arrest" pursuant to an extradition treaty. In response to Parretti's claim that his detention violated the Fourth Amendment, Judge Reichmann ruled that the government's recital of the allegations of the French arrest warrant was "sufficient at this stage." ER at 29 (unofficial tr. of Nov. 1, 1995, hr'g on renewed bail app.). In other words, Judge Reichmann held that the allegations of the French arrest warrant, as set forth in the Complaint, provided a sufficient basis for the issuance of a warrant for Parretti's "provisional arrest," even though Judge Reichmann acknowledged that these naked allegations might not be sufficient to establish probable cause at the extradition hearing itself. Id. at 26, 29 ("as far as what has to be done when we get to the remainder of the papers, that's another matter"; "I don't have all the papers, so I can't really make a very strong determination as [to] the possibility of success [at the extradition hearing]."). Parretti also cited the language of the warrant, which "did not even purport to find that there was probable cause, but instead 'commanded' the arrest of Parretti to have him 'answer a complaint charging him In response to Parretti's claim that Judge Reichmann issued the arrest warrant without making a probable cause determination, the government argued to the district court a novel Fourth Amendment theory: A warrant for a "provisional arrest" in an extradition case may be issued without an evidentiary showing that the accused has committed a crime. The government argued that a provisional arrest warrant may issue on a showing that the fugitive has been duly charged with an extraditable crime, as distinguished from an evidentiary showing of probable cause to believe he committed an extraditable crime. Appellee's Brief at 36 n. 10. Thus, the government asks us to read into the Warrant Clause of the Fourth Amendment a standard of probable cause that would vary depending on whether the purpose of the arrest is to hold an accused to answer charges of a foreign government or to answer domestic charges.

with being subject to extradition to France pursuant to a warrant of arrest issued in that country ...' " Mem.Supp.Pet. Habeas Corpus, at 14; ER at 57.

In support of this position, the government argues that the Secretary of State's decision to enforce an extradition treaty authorizing provisional arrest upon information of a foreign warrant reflects the Secretary's determination that the foreign nation's charging procedures are sufficiently reliable to satisfy the probable cause requirement of the Fourth Amendment. The government argues that under the rule of judicial non-inquiry, the federal courts must defer to the Secretary's decision and accept at face value the foreign warrant as a basis for issuing a warrant for "provisional arrest." ³ The district court did not address this argument because it held that the...