DeSilva v. DiLeonardi

Citation181 F.3d 865
Decision Date28 June 1999
Docket Number99-1769,Nos. 99-1754,s. 99-1754
Parties(7th Cir. 1999) Anthony DeSilva, Albert DeSilva, Anthony J. LoBue, and Thomas Kulekowskis, Petitioners-Appellants, v. Joseph G. DiLeonardi, United States Marshal for the Northern District of Illinois, Respondent-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 95 C 3103, 95 C 3104 & 96 C 7592--George W. Lindberg, Judge.

Before Coffey, Easterbrook, and Rovner, Circuit Judges.

Easterbrook, Circuit Judge.

Canada has charged petitioners with kidnapping, and a magistrate judge has authorized their extradition for trial. Our prior opinion, 125 F.3d 1110 (1997), recounts the circumstances and concludes that extradition is authorized by our treaty with Canada and appropriate given the facts. Unexpectedly (at least to us), petitioners are still in the United States two years later, still litigating. Two of the four petitioners sought certiorari from our decision and, although no stay was in force, none was extradited. After certiorari was denied, 119 S. Ct. 42 (1998), all four told the district judge that they had more arguments in opposition to extradition. As the United States did not contend that these had been forfeited by their omission on appeal, we authorized the district judge to entertain them--though we called for dispatch, because the events in question occurred in February 1992, and it is long past time for this nation to make a final decision whether the petitioners will be surrendered to Canada. 1998 U.S. App. Lexis 31354 (Dec. 11, 1998). The district court considered and rejected petitioners' remaining arguments, 1999 U.S. Dist. Lexis 3317 (N.D. Ill. Mar. 10, 1999), and we accelerated the briefing and oral argument of the ensuing appeals.

A brief recap of the facts suffices. Tammy Wright (known as Tammy DeSilva before her divorce from petitioner Anthony DeSilva) was seriously injured in an auto accident. Unable to care for herself, she was looked after by her parents in Canada so that she could take advantage of its public health care. Anthony decided that Tammy needed to return to Chicago for a medical examination in a civil suit he had filed on her behalf. Anthony set off for Canada, accompanied by his father Albert, two off-duty Chicago police officers (petitioners Kulekowskis and LoBue), and a nurse. The group arrived at the home in Winnipeg at 6:40 A.M. on February 3, 1992. What happened next is disputed, but a trier of fact could conclude that Kulekowskis and LoBue barged in without asking permission and disconnected the telephone line while Anthony and the nurse carried Tammy to the car "crying and kicking." No Canadian official had authorized Tammy's removal from the country, and her mother strongly objected but was unable to stop petitioners from taking her away. At the U.S. border, Tammy protested that she did not want to go to Chicago "because it is not home," that Anthony had told her that they were just going "for a ride", and that she would rather live with her mother than with Anthony. Customs officials returned Tammy to Canada, which has leveled charges of kidnapping for this episode. See also Wright v. Touhy, 1998 U.S. Dist. Lexis 4407 (N.D. Ill. 1998) (describing civil litigation Tammy has instituted).

Petitioners jointly advance three arguments: that the evidence does not demonstrate probable cause to believe that they acted with the mental state essential to the crime of kidnapping; that the Constitution forbids magistrate judges to make extradition decisions; and that the United States Attorney's role as an advocate of extradition violates the Emoluments Clause of the Constitution because it makes him a de facto officer of a foreign nation. Petitioners LoBue and Kulekowskis make an additional argument: that they received ineffective assistance of counsel in the extradition proceeding.

None of the three arguments advanced by petitioners as a group has been preserved for decision. The last paragraph of our first opinion reported that the probable-cause argument had been abandoned; it is too late to resurrect it, and at all events the argument is insubstantial for the reasons given by the magistrate judge. 881 F. Supp. 1126 (N.D. Ill. 1995). Whether petitioners possessed the mental state necessary to conviction is an interesting question, which will be tried in Canada; whether there is probable cause to believe that they possessed that mental state is not a close question.

The Emoluments Clause argument was not developed in this court. Petitioners direct us to a document filed in the district court, but we have not read it because adoption by reference amounts to a self-help increase in the length of the appellate brief. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir. 1986). Even when a litigant has unused space (as appellants did not*), incorporation is a pointless imposition on the court's time. A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record.

As for the contention that either Article III or the Due Process Clause of the Fifth Amendment prevents a magistrate judge from authorizing extradition: this was forfeited when petitioners neglected to make the argument to the magistrate judge himself, and to request that the proceeding be transferred to a district judge. The problem of which petitioners complain (if it is a problem, which we do not decide) readily could have been avoided; five years after the extradition hearing is long past time to protest.

At the time of the extradition hearing, petitioners were arguing that an Article III judge cannot decide extradition matters, because extradition is not a "case or controversy" under Article III. That contention was pressed vigorously, but ultimately without success, not only in the Northern District of Illinois but also in a collateral attack in the District of Columbia. See 125 F.3d at 1112-13; LoBue v. Christopher, 893 F. Supp. 65 (D. D.C. 1995), vacated, 82 F.3d 1081 (D.C. Cir. 1996). Having lost, petitioners made a 180 turn. Abandoning the view that an Article III judge is constitutionally forbidden to participate in the extradition process, they contended that an Article III judge is constitutionally required. As petitioners now see things, the tenure and salary guarantees of Article III are essential, lest political pressure or expediency influence an extradition decision. Too late. Petitioners could choose one side of the required/forbidden line, and they might have been entitled to argue inconsistent positions simultaneously, but they can't present them in sequence.

Trying to avoid the effects of their forfeiture, petitioners contend that the magistrate judge lacked "jurisdiction," a shortcoming that may be raised at any time. But in what sense is jurisdiction missing? Extradition proceedings are initiated by the United States, so 28 U.S.C. sec.1345 supplies subject-matter jurisdiction to the district court. Congress has authorized magistrate judges to act on behalf of the district court in authorizing extradition. 18 U.S.C. sec.3184. Section 3184 also appears to be a second source of subject-matter jurisdiction, so Magistrate Judge Bobrick's role had ample warrant. We know from Peretz v. United States, 501 U.S. 923, 936- 37 (1991), that a party's failure to object to allocation of an issue to a magistrate judge forfeits that position, even if it turns out that the magistrate judge should not have participated. See also United States v. Wey, 895 F.2d 429 (7th Cir. 1990). Peretz retracts any implication of Gomez v. United States, 490 U.S. 858, 874-75 (1989), that an improper assignment of an issue to a magistrate judge is a "jurisdictional" defect in the sense that the parties need not present their contentions to the district court. Even if the Constitution does not allow the assignment of extradition requests to magistrate judges, this does not call the court's subject-matter jurisdiction into question; it concerns only who within the court should make the decision. In the end, petitioners believe that constitutional arguments can't be forfeited, that a constitutional flaw in a federal statute deprives the court of "jurisdiction." We explained the fallacy of that position in United States v. Martin, 147 F.3d 529 (7th Cir. 1998), and have nothing to add to its exposition.

The DeSilvas now are out of arguments. LoBue and Kulekowskis have one more. They were represented in the extradition proceedings by attorney Joseph Roddy, the only lawyer to enter an appearance on their behalf. Roddy defended their interests vigorously. Nonetheless, they say, attorneys Timothy Touhy and Arthur Engelland also gave advice and assistance, and they believe that these two attorneys labored under a conflict of interest because of the role they had played in the events that preceded the trip to Canada. Touhy and Engelland should have had nothing to do with the defense of the extradition, petitioners contend, a view that Touhy himself now espouses. LoBue and Kulekowskis say that Touhy bungled the job of drafting affidavits that Roddy offered for the proposition that LoBue and Kulekowskis lacked the mental state required for the crime of kidnapping. Moreover, Touhy--perhaps remorseful about the poor legal work that landed the quartet in this mess--paid Roddy's bill. Charity just makes things worse, LoBue and Kulekowskis insist. We shall have nothing to say about whether these events, individually or collectively, amount to ineffective assistance of counsel in the sense that term is used in Sixth Amendment jurisprudence, because the Sixth Amendment does not apply to extradition. Neely v. Henkel, 180 U.S. 109, 122 (1901). The United States made this point weakly in the district court, which did enough to preserve it for decision given that Canada, the...

To continue reading

Request your trial
266 cases
  • In re Nezirovic
    • United States
    • U.S. District Court — Western District of Virginia
    • September 16, 2013
    ...In re Rodriguez Ortiz, 444 F. Supp. 2d at 882 (citing Ward v. Rutherford, 921 F.2d 286, 289 (D.C. Cir.1990)). See DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)("Congress has authorized magistrate judges to act on behalf of the district court in authorizing extradition."); Austin ......
  • United States v. Jones
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 22, 2022
    ...to their appendices as support for their challenge to the testimony are waived and should not be considered. See DeSilva v. DiLeonardi , 181 F.3d 865, 866 (7th Cir. 1999) (refusing to consider arguments that were adopted by reference but not actually made in appellate briefs because "adopti......
  • Lopez v. Astrue
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 6, 2011
    ...States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). Nor are they required to play “archaeologist with the record.” DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir.1999). See also Gross v. Town of Cicero, Ill., 619 F.3d 697, 705 (7th Cir.2010); Economy Folding Box Corp. v. Anchor Frozen Fo......
  • In re Ace Track Co.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois
    • September 13, 2016
    ...searching for treasure.” Jeralds ex rel. Jeralds v. Astrue, 754 F.Supp.2d 984, 985 (N.D.Ill.2010) (citing DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir.1999) ); see also Bobak Sausage Co. v. A & J Seven Bridges, Inc. , 805 F.Supp.2d 503, 508 (N.D.Ill.2011) (summarizing the foregoing).So......
  • Request a trial to view additional results
1 firm's commentaries
  • Petitioners Beware: Improper Incorporation By Reference May Result In Truncated Petition
    • United States
    • Mondaq United States
    • March 10, 2016
    ...See Cisco Systems, Inc. v. C-Cation Techs., LLC, IPR2014-00454, Paper 12 at 10 (PTAB, Aug. 29, 2014); see also DeSilva v. Dileonardi, 181 F.3d 865, 866-67 (7th Cir. 1999) (Incorporation "by reference amounts to a self-help increase in the length of the [] brief[,]" and "is a pointless impos......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT