U.S. v. Levy
| Citation | 947 F.2d 1032 |
| Decision Date | 30 October 1991 |
| Docket Number | No. 240,D,240 |
| Parties | UNITED STATES of America, Appellee, v. Chaim LEVY, Defendant-Appellant. ocket 91-1281. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Ivan S. Fisher, New York City (Kenneth M. Tuccillo, on the brief), for defendant-appellant.
Julie Copeland, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., Emily Berger, Asst. U.S. Atty., on the brief), for appellee.
Before OAKES, Chief Judge, NEWMAN and PRATT, Circuit Judges.
This appeal, arising in a case involving international extradition, presents the issue whether an order denying a motion to dismiss counts of an indictment for violation of the doctrine of specialty may be reviewed on an interlocutory appeal. The issue arises on an appeal by Chaim Levy from the May 13, 1991, order of the District Court for the Eastern District of New York (I. Leo Glasser, Judge). We conclude that the order is not appealable and dismiss the appeal.
A federal warrant was issued for Levy's arrest based on a complaint charging him and two others with conspiracy to distribute heroin during the period from February 24, 1989, to June 20, 1989, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988). He was subsequently arrested in Egypt after Egyptian authorities were informed of the outstanding complaint and warrant. An Eastern District grand jury then indicted Levy on one count of conspiracy to distribute heroin during the period from December 28, 1988, to June 26, 1989, and on four counts of possession with intent to distribute heroin on four dates within this period. The United States embassy in Cairo submitted to Egyptian authorities a request for Levy's extradition, based on the indictment and a second warrant that had been issued upon the indictment.
The Egyptian government informed the United States in a diplomatic note that the Attorney General of Egypt, by judicial order, had directed that Levy be extradited to stand trial on the charges in the first warrant. 1 On the same day, Levy was turned over to agents of the Drug Enforcement Administration and transported to the United States. In a subsequent diplomatic note issued two weeks later, the Egyptian Ministry of Foreign Affairs corrected its first note and informed the United States that Levy had been found extraditable to stand trial on the charges contained in the indictment. Appellant raises questions concerning the "correction," contending that it is contained in an unsigned letter, that it erroneously reports that Levy is still in Egypt and misstates his citizenship, and that its message is contrary to the instruction of the extradition judge that Levy be extradited solely on the charges contained in the first warrant.
After the extradition, the grand jury returned a superseding indictment, realleging the five counts of the first indictment and adding a sixth count that Levy interfered with a DEA agent on October 20, 1989, in violation of 18 U.S.C. § 1114 (1988).
In denying Levy's motion to dismiss the first five counts of the superseding indictment, Judge Glasser ruled that the second diplomatic note authorized extradition on the charges in the indictment, and that even if the original note had not been validly corrected, there was no violation of the doctrine of specialty because the extraditing government would not consider the indictment counts sufficiently distinct from the charge in the original warrant.
The doctrine of specialty limits the authority of a domestic criminal court to charges "specially brought to the attention" of the foreign government that has delivered a defendant pursuant to extradition. Fiocconi v. Attorney General, 462 F.2d 475, 478 (2d Cir.), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972); see United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886). Though the doctrine is sometimes expressed as a protection against being "tried by the requesting state for an offense other than one for which [the defendant] was extradited," Restatement (Third) of Foreign Relations § 477(1)(a) (1987) (emphasis added), we agree with the First Circuit that it is a jurisdictional limitation, restricting a court's power to enter judgment against the defendant. See United States v. Sorren, 605 F.2d 1211, 1214 (1st Cir.1979). The doctrine stands as a limitation...
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