Romeo v. Roache, 87-1472

• Decision Date: 11 June 1987
• Docket Number: No. 87-1472,87-1472
• Citation: 820 F.2d 540
• Parties: Anthony Philip ROMEO, Petitioner, Appellant, v. James B. ROACHE, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 540

820 F.2d 540

Anthony Philip ROMEO, Petitioner, Appellant, v. James B. ROACHE, Respondent, Appellee.

No. 87-1472.

United States Court of Appeals First Circuit.

Submitted May 29, 1987.

Decided June 11, 1987.

Elliot D. Lobel and Peckham, Lobel, Casey & Tye, Boston, Mass., on petition for writ of habeas corpus.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

PER CURIAM.

This is an appeal from the denial of a petition for writ of habeas corpus which had sought review of a magistrate's certificate of extraditability and order of committment certifying petitioner's extradition to Canada. The district court determined there was a sufficient basis for extradition, denied the habeas petition, and refused a stay of extradition pending appeal. By order entered May 29, 1987, this court granted a temporary stay of extradition. We now, after a review of the contentions made below, dissolve the stay and summarily affirm the order dismissing the habeas petition.

We recount the background.

An affidavit in support of extradition was executed by Officer Edmonds of the Royal Canadian Mounted Police (RCMP). He stated he had been assigned to investigate the murder of Constable Aucoin. He related the following: On March 8, 1987, Constable Cannon found Constable Aucoin slumped over in the front seat of a police car with a bullet wound in his head. Aucoin had originally been discovered by a passing motorist at 10:55 Atlantic Standard Time, March 8, 1987. The police car with Aucoin was on Highway 640 at or near Yoho Lake, York County, New Brunswick, approximately nine miles south of the city of Fredericton. A pen was in Aucoin's hand and a partially completed traffic ticket was beneath his body. A copy of the traffic ticket, attached to the affidavit, indicated the ticket was issued on March 8, 1987 to Anthony Romeo, date of birth March 8, 1963, address Skunks Misery Road, Locust Valley, New York. The ticket described the car being driven as a "PORS" with New York license plate number 5578 BGP. The owner of the vehicle, according to the ticket, was Cross Town Leasing of Jamaica, New York. Petitioner's name is Anthony Romeo and his parents, if not he, live on Skunks Misery Road in Locust Valley, New York. Affiant Edmonds continued that he had been informed by Immigration Inspector Sylvia Cutliffe of United States Customs at Calais, Maine that at 11:30 Atlantic Standard time on March 8 she registered a gold Porsche with New York license plate number 5578 driven by a male whom she had identified from news photos as petitioner.

Affiant Edmonds was also informed by a service station attendant in Calais, Maine that at approximately 11:30 Atlantic Standard Time a person he believed to be petitioner purchased gas, telling the attendant to hurry, and leaving after receiving $13.60 worth of gas but giving $20 to the attendant.

Further information conveyed to affiant Edmonds by Detective Polombo of the Massachusetts State Police indicated that petitioner had been arrested on the Canadian murder charge at 16:47 Atlantic Standard Time at Logan Airport. He had first identified himself by showing an airline ticket in the name of Philip Qotino and then produced a temporary New York driver's license in the name of Anthony Romeo. A New York driver's license and a New York motor vehicle registration for a 1984 Porsche showing the owner to be Cross Town Leasing of Jamaica, New York were found concealed in petitioner's cowboy boot.

Affiant Edmonds also stated that he had been informed by Constable Saunders that Saunders had found a canvas bag approximately .7 kilometers from the shooting scene. The bag contained one rifle stock, one rifle case, one "PROLINE ZX" crossbow, and two boxes of .38-40 calibre ammunition. A salesman at the sporting goods store in New York who knew petitioner stated he had sold a "PROLINE ZX" crossbow to petitioner in February 1987. The rifle stock fit a .38-40 Winchester rifle found, without stock, approximately 15 meters from the shooting of Constable Aucoin. A member of the firearms section of the RCMP Forensic Laboratory determined that the Winchester rifle found at the scene had discharged the bullets which had killed Constable Aucoin. Further circumstantial information linking petitioner with the shooting was recounted, which we need not now detail.

Petitioner moved to dismiss the extradition proceedings on the grounds that his Fourth, Fifth, and Sixth Amendment rights had been violated. In particular, he charged the following. First, in defiance of instructions from his attorneys that he not be interviewed without their presence, petitioner was interviewed on March 10, 1987 at the Salem House of Correction. Corporal Spink of the RCMP was in an adjoining room. Petitioner allegedly admitted having been stopped outside of Fredericton, New Brunswick for speeding on March 8, 1987. This admission was incorporated into the last paragraph of Officer Edmond's affidavit in support of extradition. Petitioner contended that he had not been given Miranda warnings and that, due to mental incompetency, he was incapable of knowingly consenting to the interview. Second, under the pretext of searching for evidence in a separate year-and-a-half-old murder charge to which petitioner was somehow linked, a search warrant for his parents' home at Skunks Misery Road had been obtained and a search, far in excess of the scope authorized by the warrant, had been conducted. Allegedly uncovered and seized was a handwritten bill of sale for a weapon matching the murder weapon. This information concerning the bill of sale was contained in a second affidavit in support of extradition submitted by Officer Wadden of the RCMP. Petitioner's attorney stated that petitioner's parents would testify there was no such bill of sale.

The magistrate noted that there was no question but that in a prosecution under state or federal law, petitioner's allegations would form the basis for a motion to suppress or, possibly, a motion to dismiss the charges. He concluded, however, that the allegations, even if true, would not support a dismissal of the extradition proceedings and hence petitioner was not entitled to an evidentiary hearing to litigate the Fourth, Fifth, and Sixth amendment issues.

Petitioner sought to introduce an April 5, 1987 report from Dr. Cannon stating that on the basis of six interviews totaling 13 hours she had concluded claimant was suffering "chronic, psychotic illness of a paranoid nature which at present renders him unable to consult with his attorneys with a reasonable degree of rational understanding and which renders him unable to achieve a rational understanding of the proceedings against him." The magistrate excluded the report relying on Charlton v. Kelley, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913), which had upheld a similar exclusion. The magistrate issued a certificate of extraditability and petitioner then sought review in the district court via a habeas petition.

The district court correctly noted the narrow scope of review on a habeas corpus proceeding challenging extradition. Habeas corpus is available "only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was reasonable ground to believe the accused guilty." Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir.1978) (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)); Brauch v. Raiche, 618 F.2d 843, 847, 854 (1st Cir.1980) (same).

Before the district court, petitioner did not contend either that the magistrate lacked jurisdiction or that the murder offense was not within the treaty. He did, however, challenge the third, probable cause, requirement arguing that insufficient competent evidence was introduced at the extradition hearing to establish probable cause that petitioner committed the murder. He also presented two other arguments. First, because of his incompetency, he could not knowledgably participate in the extradition proceedings. To extradite one who has had no meaningful input or understanding of the extradition proceedings against him would be a denial of due process. Second, state and Canadian authorities had colluded to violate his Fourth (pretextual search of home), Fifth (no Miranda warnings), and Sixth (interview without counsel's permission) amendment rights, and now the Canadian authorities had the fruits of those violations. The only meaningful sanction to deter such improper conduct would be denial of extradition. We address each argument, though in a somewhat different order.

1. Due Process.

Petitioner points out that at an extradition hearing, the accused has the right to present evidence which may explain ambiguities or doubtful elements in the case against him (but he cannot present defenses), Collins v. Loisel, 259 U.S. 309, 315-317, 42 S.Ct. 469, 471-472, 66 L.Ed. 956 (1922), and he argues that elemental due process is violated when a person lacking the capacity to understand the proceedings against him or to participate effectively in them is certified as extraditable. Consequently, petitioner contends, the magistrate should have held a hearing to assess his competency.

In Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913), the Supreme Court noted that "impressive evidence of the insanity of the accused" had been excluded at an extradition proceeding. The Court concluded habeas relief was not warranted, however, stating, "If the evidence was only for the purpose of showing present insanity by reason of which the accused was not capable of defending the charge of crime, it is an objection which should be taken before or at the time of his trial for the crime, and heard by the court having jurisdiction of the crime." Id. 462, 33 S.Ct. at 950.

Petitioner argues that the due process and Sixth amendment right to counsel argument he is raising now was never...