Galanis v. Pallanck

• Decision Date: 22 November 1977
• Docket Number: D,No. 376,376
• Parties: John Peter GALANIS, Petitioner-Appellant, v. Ermen PALLANCK, U.S. Marshal for the District of Connecticut, Respondent-Appellee. ocket 77-2083.
• Court: U.S. Court of Appeals — Second Circuit

Page 234

568 F.2d 234

John Peter GALANIS, Petitioner-Appellant, v. Ermen PALLANCK, U.S. Marshal for the District of Connecticut, Respondent-Appellee.

No. 376, Docket 77-2083.

United States Court of Appeals Second Circuit.

Argued Oct. 18, 1977.

Decided Nov. 22, 1977.

John S. Martin, Jr., New York City (Paul R. Grand, Carolyn H. Henneman, Francis H. Wright, Martin, Obermaier & Morvillo and Grand & Ostrow, New York City, of counsel), for petitioner-appellant.

Raymond L. Sweigart, Asst. U.S. Atty., New Haven, Conn. (Richard Blumenthal, U.S. Atty., D.Conn., New Haven, Conn., of counsel), for respondent-appellee.

Before MOORE, FRIENDLY and TIMBERS, Circuit Judges.

FRIENDLY, Circuit Judge:

On September 1, 1976, the United States applied to the District Court of Connecticut, pursuant to 18 U.S.C. § 3184, for a warrant requiring John Peter Galanis, a United States citizen residing in Connecticut, to be brought before the court for a hearing to determine whether there was sufficient evidence to sustain a 1973 charge by the Government of Canada that Galanis had defrauded Champion Securities Corp., Ltd. (Champion) and its creditors of securities valued at 1.6 million Canadian dollars in 1971 and 1972. After a hearing, Judge Newman rendered an opinion certifying that there was. He ordered that Galanis remain in the custody of the United States marshal and that a copy of the certification and order be forwarded to the Secretary of State so that an extradition warrant might issue upon requisition by the Canadian Government, 429 F.Supp. 1215, 1231. There being no avenue for appeal from Judge Newman's order, Galanis sought a writ of habeas corpus, see Shapiro v. Ferrandina, 478 F.2d 894, 901 (2 Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973). Judge Zampano denied his petition and this appeal followed.

Galanis attacks the order denying his petition on four grounds, all of which were rejected by the judges below:

(1) The United States is precluded from prosecuting an extradition proceeding against Galanis by an "informal" ¹ grant of "transactional" immunity as part of an agreement whereby Galanis, who was the subject of various federal indictments, would be allowed to plead guilty to only two indictments with a maximum penalty of 10 years imprisonment and $20,000 fines in return for his cooperating with the Government as he concededly did.

(2) Even if the informal grant was only of "use" immunity, the United States failed to meet its burden of showing that the evidence submitted in support of extradition was not derived from information supplied by Galanis.

(3) Galanis is not extraditable under the currently effective extradition treaty between the United States and Canada, United States Treaties and Other International Agreements Series (TIAS) 8237, since Art. 4(1)(i) prohibits the grant of extradition when the person whose surrender is sought "has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested."

(4) The evidence of probable cause was not authenticated in the manner required by 18 U.S.C. § 3190.

We uphold Galanis' third argument, based upon the extradition treaty, and therefore reverse.

The Government does not challenge Galanis' factual assertion that he "has been tried and discharged or punished" in the United States "for the offense for which his extradition is requested" by Canada. Although the indictments to which Galanis pleaded guilty and on which he received sentences of six months' imprisonment and five years' probation did not involve the Champion fraud, the Assistant United States Attorney in charge of the prosecutions against Galanis testified that the guilty pleas were intended to cover every fraudulent involvement that Galanis had that came within the jurisdiction of the U.S. Department of Justice," specifically including the Champion fraud. The Government's answer is rather that Galanis' extraditability is governed not by the currently effective treaty but by the earlier one, as supplemented, which had no such "double jeopardy" provision as Art. 4(1)(i).

Prior to the present treaty, extradition between the United States and Canada was governed by Article X of the Webster-Ashburton Treaty of 1842 between the United States and Great Britain, 8 Stat. 572, TS 119, 12 Bevans 82, a rudimentary one-paragraph provision which listed only seven extraditable offenses, as modified by six supplementary agreements between this country and Great Britain and Canada. ² The objective of the present treaty, signed on December 3, 1971, was to replace this unsatisfactory situation with a new treaty containing a greatly expanded list of extraditable crimes. ³ As President Ford stated in submitting the treaty to the Senate, the purpose was to effect a "modernization of the extradition relations between the United States and Canada." Message from the President Transmitting the Treaty on Extradition Between the United States and Canada, Sen.Exec.Doc. G, 93d Cong., 2d Sess. III (1974). Article 18(3) provided that the treaty "shall enter into force upon the exchange of ratifications," which was March 22, 1976. Article 18(2) provided:

This Treaty shall terminate and replace any extradition agreements and provisions on extradition in any other agreement in force between the United States and Canada; except that the crimes listed in such agreements and committed prior to entry into force of this Treaty shall be subject to extradition pursuant to the provisions of such agreements. ⁴

The Government contended, and the district judges agreed, that the "except" clause prevented Galanis from relying on the "double jeopardy" defense conferred by Art. 4(1)(i).

Although such a reading would be permissible and perhaps would adhere more closely to the letter of the "except" clause than that urged by Galanis, it is not the only reasonable reading. The purpose of the draftsmen seems to have been two-fold to make clear that no one who was extraditable under previous treaties should be able to gain immunity because these were "terminate(d)" by the 1971 treaty, and that perpetrators of the many crimes not previously extraditable, see fn. 3, should not become so by virtue of the new treaty. Presumably the draftsmen were aware of the long-established rule that "extradition treaties, unless they contain a clause to the contrary, cover offenses committed prior to their conclusion." Gallina v. Fraser, 177 F.Supp. 856, 864 (D.Conn.1959), aff'd, 278 F.2d 77 (2 Cir.), cert. denied, 364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 74 (1960), see also United States ex rel. Oppenheim v. Hecht, 16 F.2d 955, 956-57 (2 Cir.), cert. denied, 273 U.S. 769, 47 S.Ct. 572, 71 L.Ed. 883 (1927); Cleugh v. Strakosch, 109 F.2d 330, 335 (9 Cir. 1940); 1 Moore, Extradition § 86 (1891); 6 Whiteman, Digest of International Law § 11, at 753-57 (1968). The language of the treaty with Canada was in contrast with a number of recent treaties which expressly apply to certain offenses not previously extraditable that were committed before the effective date of the new treaty, e. g., the Treaty on Extradition Between the United States and New Zealand, 22 UST 1, TIAS 7035 (1970); Treaty on Extradition Between the United States and Paraguay, 25 UST 967, TIAS 7838 (1974); Treaty on Extradition Between the United States and Italy, 26 UST 493, TIAS 8052 (1975); Treaty on Extradition Between the United States and Australia, TIAS 8234 (1976). Thus, the prime objective of the language in Article 18(2) of the treaty with Canada was to preclude such ex post facto designation of offenses as extraditable. ⁵

Moreover, since the objective of the Treaty was to modernize "extradition relations," we do not see any reasons, and the Government has pointed out none, why the draftsmen should have wished to deprive a person whose extradition was sought after the treaty's effective date of the double jeopardy defense here asserted, or of the other defense in the same clause, namely, that he was currently being proceeded against in the requested state, ⁶ or of the defense, Art. 4(1)(ii), that prosecution has been barred by lapse of time in the requesting state. Protection against double jeopardy has become "common to most extradition treaties," 6 Whiteman, supra, § 40. Provisions on this subject similar to that in Art. 4(1)(i) will be found in such treaties as the Treaty Relating to the Reciprocal Extradition of Criminals Between the United States and the Union of South Africa, 2 UST 884, TIAS 2243 (1951); Convention Relating to Extradition Between the United States and Israel, 14 UST 1707, TIAS 5476 (1963); Convention on Extradition Between the United States and Sweden, 14 UST 1845, TIAS 5496 (1963); Treaty on Extradition Between the United States and New Zealand, 22 UST 1, TIAS 7035 (1970); Supplementary Extradition Convention to the Convention of 1909 Between the United States and France, 22 UST 407, TIAS 7075 (1971); Treaty on Extradition Between the United States and Argentina, 23 UST 3501, TIAS 7510 (1972); Treaty on Extradition Between the United States and Denmark, 25 UST 1293, TIAS 7864 (1974); Treaty on Extradition Between the United States and Italy, 26 UST 493, TIAS 8052 (1975); Treaty on Extradition Between the United States and Australia, TIAS 8234 (1976).

The position thus adopted by the Department of State with respect to our relations with foreign nations accords with the policy adopted by the Department of Justice in response to concerns expressed by the Supreme Court in the federal-state context. In United States v. Lanza, 260 U.S. 377, 383, 43 S.Ct. 141, 67 L.Ed. 314 (1922), Chief Justice Taft quoted the following passage from Fox v. Ohio, 46 U.S. 410, 5 How. 410, 435, 12 L.Ed. 213 (1847):

It is almost certain, that, in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the...