United States v. Jacobs

• Citation: 176 F. Supp. 877
• Decision Date: 24 September 1959
• Docket Number: Civ. A. No. 34117.
• Parties: UNITED STATES of America ex rel. Tommaso ARGENTO, Petitioner, v. Albert JACOBS, United States Marshal and John Doe, Defendants.
• Court: U.S. District Court — Northern District of Ohio

176 F. Supp. 877

UNITED STATES of America ex rel. Tommaso ARGENTO, Petitioner, v. Albert JACOBS, United States Marshal and John Doe, Defendants.

Civ. A. No. 34117.

United States District Court N. D. Ohio, E. D.

September 24, 1959.

Henry C. Lavine, Cleveland, Ohio, for petitioner.

Russell E. Ake, U. S. Atty., Martin A. Rini, Cleveland, Ohio, for defendants.

WEICK, District Judge.

This case is before the Court on a petition and amended petition for a writ of habeas corpus, the return of the United States Marshal, and the evidence.

In 1954, Consul for the Republic of Italy filed a complaint before the United States Commissioner, under Title 18 U.S. C. § 3184, charging petitioner with having committed the crime of murder in Italy on June 3, 1922. The Commissioner issued a warrant for his apprehension and thereafter held hearings which culminated in an order made on or about July 11, 1955 in which he found that petitioner had been charged and convicted of murder in Italy; that there was a proper treaty of extradition, 24 Stat. 1001 and that the evidence as to petitioner's criminality had been established to his satisfaction.¹

The petitioner was remanded to the custody of the Marshal to await the warrant upon the requisition of the Republic of Italy for his surrender.

During the progress of the hearings before the United States Commissioner, petitioner filed a petition for writ of habeas corpus in this Court, which was denied on May 26, 1955. Argento v. North, D.C., 131 F.Supp. 538. Subsequent to the order of the Commissioner, petitioner filed an action in declaratory judgment in this Court, which was denied December 8, 1955. The judgment in the declaratory judgment action was affirmed by the Court of Appeals, Argento v. Horn, 6 Cir., 1957, 241 F.2d 258, certiorari denied 355 U.S. 818, 78 S.Ct. 23, 2 L.Ed.2d 35, rehearing denied 355 U.S. 885, 78 S.Ct. 145, 2 L.Ed.2d 115.

Both prior actions drew into question the validity of the treaty between the United States and Italy under which the extradition was sought, and in addition, petitioner in the declaratory judgment action, questioned the admissibility of evidence offered at the hearing before the United States Commissioner. The Court of Appeals, in an opinion written by Circuit Judge Stewart (now Justice Stewart) treated the declaratory judgment action as being one for habeas corpus, upheld the validity of the treaty and ruled that the evidence was competent.

In the present action, petitioner claims (a) the evidence offered before the United States Commissioner was insufficient to identify him as one of the defendants who had been tried and convicted in the Italian court and (b) that there was no evidence to sustain the finding of the Commissioner as to criminality.

It would have been better practice for petitioner to have included all of his claims in one habeas corpus action rather than to bring successive actions raising different points in each case. His failure to do so, however, does not preclude the Court from exercising an independent judgment in each successive action. Salinger v. Loisel, 1924, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989. While the doctrine of res judicata should prevent issues actually decided in a prior action from being relitigated in a subsequent one, this rule ought not to be applied in a habeas corpus proceeding, where a man's liberty is at stake, to issues which might have been raised in prior proceedings but were not in fact presented, litigated or determined.

The defendants have filed a motion for summary judgment. The statute requires the court to "summarily hear and determine the facts and dispose of the matter as law and justice require." 28 U.S.C. § 2243. The motion for summary judgment, in effect, asks the court to perform its duty under the statute. The Court advised the parties that it would consider the entire case on its merits and each party was given the opportunity to offer additional evidence.

On the issue of identification, in my judgment there was ample evidence to support the Commissioner's finding. Petitioner was one of the defendants who were tried and convicted in Italy, in absentia, of the crime of murder. The authenticated record of the Italian trial described him as Tommaso Argento, son of Salvatore of Ioppolo, Italy. That petitioner is in fact the son of Salvatore and came from Ioppolo, Italy was shown by information contained in Department of Justice records, consisting of his alien registration form and application for certificate of identification, which were offered in evidence before the Commissioner. His photograph attached to the application for registration was also identified in statements under oath of the Italian witnesses Onofrio Sacco, Antonino Sacco and Giuseppe Camilleri. Another photograph was identified by the Commandant of the Police Station in Ioppolo, Italy. While two of these witnesses, namely, Onofrio Sacco and Antonino Sacco, in later affidavits stated that they had no knowledge concerning petitioner's trial and conviction of murder, they did not dispute their identification of petitioner, by his photograph, as being the son of Salvatore Argento of Ioppolo, Italy. There is no proof as to the existence of more than one Tommaso Argento, son of Salvatore of Ioppolo, Italy. Furthermore, the affidavits of Giuseppe Camilleri and the Commandant of the Ioppolo Police Station stand uncontradicted. Even if the affidavits of the Saccos' were disregarded, the affidavits of Giuseppe Camilleri and the Commandant of the Police were at least sufficient to make out a prima facie case as to identification which, in the absence of proof to the contrary, the Court must accept as true.

The petitioner did not take the stand and offered no proof to refute the evidence as to identification.

Petitioner was tried and convicted in absentia by the Italian court in 1931. He has been in the United States since 1926, emigrating here under an assumed name similar to that of the murdered victim. His conduct, while living here for over thirty-three years, has been good.

If the order of the United States Commissioner is upheld, petitioner will be surrendered to the Italian authorities and his life sentence put into effect. He will not be given an opportunity to defend himself on the charge of murder.

While this procedure of trial of a defendant, in absentia, on a criminal charge, particularly one as serious as murder, does not comport with our ideas of justice or fairness, it must be remembered that petitioner is an Italian National and alleged to be a fugitive from that country. The offense was committed in Italy and is governed by Italian law which permits the trial of a criminal case in absentia.

Petitioner's conviction, however, having been rendered in absentia, this Court must inquire into the evidence of criminality, as extradition is not warranted simply by a showing of the in absentia conviction. 35 C.J.S. Extradition § 39f.

The evidence before the Commissioner of criminality consisted of three items:

(1) statements under oath of three residents of petitioner's home town in Italy

(2) the suspicious circumstances of his having entered the United States under an assumed name

(3) evidence contained in a translated record of the Italian trial proceedings.

Each of these items will be considered and their collective import evaluated.

The statements under oath were originally made by Onofrio and Antonino Sacco, brothers, and by Father Giuseppe Camilleri, brother of the deceased. All three statements are essentially the same, and read:

I have known personally Tommaso Argento, son of Salvatore, who was born at Ioppolo Giancaxio, convicted in absentia and sentenced to life imprisonment by the Court of Assizes, October 11, 1931, for premeditated murder of Giovanni Camilleri, and having viewed the photograph here attached, state that in the same, I recognize the aforesaid Tommaso Argento, son of Salvatore, and that, therefore, the aforesaid photograph is that of Tommaso Argento, son of Salvatore, himself.

These affidavits contained only the statements of the affiants that Tommaso Argento, son of Salvatore, had been tried and convicted in absentia for the murder of Giovanni Camilleri. They contained no statement of any facts showing proof of criminality, establishing the conviction as a just one or any statement that the affiants witnessed the commission of the crime.

Whatever weight those affidavits might have carried has been further weakened during the course of these proceedings. Later affidavits have been obtained from the Sacco brothers, in which they disclaim any knowledge of the crime or trial proceedings.

Petitioner's entry into the United States under the assumed name of Giovanni Camilleri is undoubtedly a peculiar circumstance. Its weight as evidence of criminality will be considered hereafter.

The next matter for consideration is the evidence contained in the record of the Italian trial proceedings. Only the evidence relating to petitioner's complicity will be considered.

At the outset, it should be noted that in some instances two statements from each "witness" appear in the record. One is an examination without oath, while the second is labelled a "deposition". The depositions were apparently witnessed, but they do not state whether the witness was sworn and the Court can only assume that they were. In any event, nowhere in the record is there any cross-examination of the "witnesses", probing the accuracy or veracity of their accounts. Therefore, the evidence stands in its most favorable light to the state.

Angelo Mangiovi stated that he suspected petitioner of being implicated in the crime because on the day of the killing he did not appear to divide a bean crop, and four days later when he saw petitioner he seemed quite worried. Also, it had been petitioner's habit to practice shooting at rocks in the past.

Father Giuseppe Camilleri, brother of the deceased, made a statement in...