450 F.Supp. 672 (S.D.N.Y. 1978), 76 Cr. Misc. 1 p. 126, In re Sindona
|Docket Nº:||76 Cr. Misc. 1 p. 126|
|Citation:||450 F.Supp. 672|
|Party Name:||In re Sindona|
|Case Date:||May 18, 1978|
|Court:||United States District Courts, 2nd Circuit|
Robert B. Fiske, Jr., U.S. Atty., S.D. N. Y. by John J. Kenney, Asst. U.S. Atty., New York City, for petitioner.
Mudge, Rose, Guthrie & Alexander by John J. Kirby, Jr., Laurence B. Senn, Jr., Benjamin R. Idziak, New York City, Baer & McGoldrick, by Robert Kasanof, Dynda Andrews, New York City, for Michele Sindona.
GRIESA, District Judge.
The Republic of Italy applies for the extradition of Michele Sindona from the United States to Italy.
The proceedings on this application are pursuant to 18 U.S.C. s 3184, 1 which provides in essence that, where there is an extradition treaty between the United States and a foreign government, a judge or magistrate of a court of record in this country may, upon complaint made under oath charging a person with the commission of a crime within the foreign country listed in the treaty, issue a warrant for the arrest of the charged person. The statute further provides that the judge or magistrate will hold a hearing and, if he deems the evidence sufficient to sustain the charge, he will certify this conclusion to the Secretary of State, so that a warrant may issue for the surrender of the person for extradition under the treaty.
The Republic of Italy is represented in this matter by the United States Department of Justice. The applicable extradition treaty provides that legal officers of the United States shall assist Italy in extradition proceedings before United States judges and magistrates. I will frequently refer in this opinion to "the Government," meaning the United States Department of Justice representing the Republic of Italy.
A complaint was issued September 7, 1976, sworn to by John J. Kenney, Assistant United States Attorney for the Southern District of New York. The complaint alleges that Sindona committed the crime of "fraudulent bankruptcy" under Italian law, by unlawfully taking 180 billion lire (equal to about $225 million) from an Italian bank, Banca Privata Italiana, and its predecessors, Banca Unione and Banca Privata Finanziaria, and by falsifying the books of those institutions. The complaint alleges that BPI was declared insolvent and a liquidator was appointed on September 29, 1974. The complaint alleges that the crime of fraudulent bankruptcy is among the offenses enumerated in the extradition treaty between the United States and Italy.
A warrant for Sindona's arrest was issued by this Court on September 7, 1976. Sindona was arrested in New York City and was subsequently released on bail pending the extradition hearing.
For the reasons hereafter set forth, the request of the Republic of Italy for the extradition of Sindona is granted.
Sindona is a 58-year old Italian businessman. He became vice president and a member of the board of directors of Banca Privata Finanziaria ("BPF") in 1960. He became president of that bank in September 1973. Sindona became vice president and a member of the board of directors of Banca Unione ("BU") in 1968. He ceased being a vice president of BU as of April 24, 1974, but continued thereafter as a director of that bank. Sindona owned 100% of the stock of BPF and 51% of the stock of BU.
As of August 1, 1974 BU and BPF merged. The merged entity was Banca Privata Italiana ("BPI").
It appears that Sindona was neither an officer nor a director of BPI. The record is
not entirely clear as to precisely how long Sindona remained with the predecessor entities i. e., as a director of BU, and as president and a director of BPF. I will infer, for purposes of this opinion, that Sindona held these offices in BU and BPF until the date of the merger.
BPI was ordered into liquidation by a decree of the Italian Ministry of the Treasury dated September 27, 1974, and a liquidator was appointed. A judgment of the Civil and Criminal Court of Milan, Second Civil Division, dated October 15, 1974, declared BPI insolvent. This judgment of insolvency was affirmed by the Court of Appeal of Milan in July 1977, and was further affirmed by the Supreme Court of Italy on March 31, 1978.
A warrant for Sindona's arrest on criminal charges in Italy was issued October 4, 1974. A second arrest warrant was issued October 24, 1974. A third arrest warrant, the one referred to in the extradition request, was issued July 2, 1975.
Sindona could not be served in Italy with any of these arrest warrants. In 1974 he left Italy and has not returned to that country.
It appears that Sindona was tried in absentia in Italy for violating certain Italian bankruptcy regulations, was convicted on June 29, 1976, and was given a sentence of 31/2 years in prison. Extradition is not being sought with respect to this conviction. As already described, the criminal charge for which extradition is requested is what is referred to as "fraudulent bankruptcy."
The request for Sindona's extradition was originally made by the Republic of Italy in a diplomatic note to the United States Department of State dated March 11, 1975. Apparently there was some problem which prevented the further processing of the request at that time. In a diplomatic note dated November 25, 1975 and a supplemental note dated December 2, 1975 the Italian government renewed the extradition request. On February 9, 1976 Lucy A. Hummer, an attorney-advisor for the State Department, certified that she had reviewed the documents submitted by the Republic of Italy and had found them in proper form as required by the extradition treaty. As already described, Assistant United States Attorney Kenney filed the complaint pursuant to 18 U.S.C. s 3184 on September 7, 1976.
The applicable treaty is entitled "Treaty on Extradition Between the United States of America and Italy." 26 U.S.T. 493, T.I.A.S. No. 8052. It was signed on January 18, 1973. Following proceedings in both countries regarding ratification, it became effective March 11, 1975. It will hereafter be referred to as "the Treaty."
Article II of the Treaty provides in pertinent part:
"Persons shall be delivered up according to the provisions of this Treaty for any of the following offenses provided that these offenses are punishable by the laws of both Contracting Parties and subject to a term of imprisonment exceeding one year:
25. Fraudulent bankruptcy."
Article V provides:
"Extradition shall be granted only if the evidence be found sufficient, according to the laws of the requested Party, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting Party."
Article XI provides in part:
"The request for extradition shall be made through the diplomatic channel.
The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting Party including the law defining the offense, the law prescribing the punishment for the offense, and the law relating to the limitation of the legal proceedings or the enforcement of the penalty for the offense.
When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting Party and by such evidence as, according to the laws of the requested Party, would justify his arrest and committal for trial if the offense had been committed there, including evidence proving that the person requested is the person to whom the warrant of arrest refers."
As indicated in the quoted material, the Treaty provides for extradition for the crime of "fraudulent bankruptcy." The Government has submitted the texts of the Italian laws relating to fraudulent bankruptcy, which will be discussed in detail hereafter.
It is a requirement of the Treaty (Article II) and of international law that the offense for which extradition is sought must be considered a crime by both countries. Collins v. Loisel, 259 U.S. 309, 311, 42 S.Ct. 469, 66 L.Ed. 956 (1922); Shapiro v. Ferrandina, 478 F.2d 894, 906 n. 12 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973). In this regard, it is not necessary that the name by which the crime is described in the two countries be the same, or that the pertinent statutes of the two countries be identical in their description of the elements of the particular offenses and penalties therefor. It is enough if the particular act charged is criminal in both jurisdictions. Collins v. Loisel, supra, 259 U.S. at 312, 42 S.Ct. 469; Shapiro v. Ferrandina, supra, 478 F.2d at 907-08.
Both Articles V and XI embody the concept, familiar in extradition cases, that evidence must be presented sufficient to justify the accused person's arrest and committal for trial under the procedures applicable in the requested nation. The authorities are clear that, in the United States, this means that the requesting nation must produce sufficient evidence to show probable cause that the extraditee has committed the crime of which he is accused. Collins v. Loisel, supra, 259 U.S. at 316, 42 S.Ct. 469; Shapiro v. Ferrandina, supra, 478 F.2d at 905, 907; Greci v. Birknes, 527 F.2d 956, 958 n. 2 (1st Cir. 1976).
The Government has provided both the Italian original and an English translation of the Italian laws relied on regarding the criminal charge against Sindona. These provisions are contained in the Royal Decree of March 26, 1942, No. 267...
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