Berenguer v. Vance, Civ. A. No. 79-0882.

• Decision Date: 13 July 1979
• Docket Number: Civ. A. No. 79-0882.
• Citation: 473 F. Supp. 1195
• Parties: Jacques Rene BERENGUER, Petitioner, v. Cyrus VANCE, Respondent.
• Court: U.S. District Court — District of Columbia

473 F. Supp. 1195

Jacques Rene BERENGUER, Petitioner, v. Cyrus VANCE, Respondent.

Civ. A. No. 79-0882.

United States District Court, District of Columbia.

July 13, 1979.

Stanley M. Dietz, Washington, D.C., for petitioner.

John H. E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., for respondent.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

This matter comes before the Court on petitioner's prayer for a writ of mandamus to compel respondent, the Secretary of State, to revoke the consent of the United States to an expansion of its original warrant of surrender under which petitioner was extradited to Italy to stand trial for certain enumerated crimes. Specifically, petitioner contends that the Secretary's consent to the enlargement of his extradition, given without a judicial hearing, violated his rights under the Constitution, the relevant treaty, and 18 U.S.C. § 3184. The jurisdiction of this Court is properly invoked pursuant to 28 U.S.C. § 1361, in what appears to be a case of first impression.

While incarcerated at the federal penitentiary in Lewisburg, Pennsylvania, serving a sentence imposed in the United States District Court for the Southern District of New York for felonious narcotics activity, petitioner, a French citizen, became the subject of an extradition request served on April 18, 1977, by the Republic of Italy upon the United States. The bases of the extradition request were unexecuted warrants of arrest issued by various Italian courts charging petitioner with homicide and robbery. In compliance with the relevant statutory requirements, 18 U.S.C. § 3184 (1976), a full hearing was held on April 13, 1978, in the United States District Court for the Middle District of Pennsylvania. Following that hearing, the presiding judge made detailed findings of fact and conclusions of law, certified petitioner's extraditability on the charges of murder and aggravated robbery, and ordered him committed to the custody of the United States Marshal pending either his surrender to Italian authorities or the issuance of an extradition warrant by the respondent. Petitioner was thereafter extradited to Italy, where he was tried on the charges of murder and aggravated robbery.

In mid-November 1978, before disposition of petitioner's case and pursuant to treaty, the Italian Government requested that the United States expand the original order of extradition to include various other extraditable offenses, including illegal possession of a military firearm. See Treaty on Extradition, Jan. 18, 1973, United States—Italy, art. XV, 26 U.S.T. 495, T.I.A.S. No. 8052 (providing for expansion of original extradition order on consent of sending country). In support of its request, the Republic of Italy forwarded to the State Department sworn documentation concerning the alleged offenses. This evidence was further supplemented by oral explanation at a meeting held in Washington, D.C., on December 8, 1978, between members of the United States Departments of State and Justice and Italian officials. The following day, petitioner was acquitted of the murder and aggravated robbery charges on which he had been extradited, but he was held in custody in Rome until December 19, 1978, because he was wanted in France on other charges. On December 21, 1978, the State Department consented to petitioner's trial in Rome on the firearms offense only, a determination having been made by the State Department that the Italian authorities had submitted sufficient evidence to establish probable cause on that charge. Petitioner was arrested in Italy for that offense on December 22, 1978. His trial, in which he is joined with more than thirty codefendants, commenced in February 1979, and is presently in progress with a verdict expected on or about July 12, 1979. The instant suit was filed March 26, 1979, and was set down for a full hearing following its transfer to this Judge.

Initially, it is significant to note what petitioner does not contest in this proceeding. He does not claim the treaty under which he was extradited is invalid. Nor does he challenge the extraditability of the weapons charge upon which the Italian Republic sought the expansion of his extradition. Rather, his entire argument centers on his asserted right to a judicial hearing, like that required for an initial extradition, before an enlargement of the extradition can be effected. At such a hearing on this charge, petitioner contends, he would seek to challenge his extradition on grounds of mistaken identity and lack of probable cause.

Under the due process clause, a defendant is entitled to a hearing before extradition. Sayne v. Shipley, 418 F.2d 679, 686 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970). This right is further guaranteed by statute. 18 U.S.C. § 3184 (1976). Under section 3184, any person whose extradition is requested under treaty provisions by a foreign government must be brought before a judicial officer for a determination whether sufficient evidence exists to sustain the charge on which he is sought. Id. The appropriate inquiries for a court to make at such a hearing include whether a valid extradition treaty exists between the United States and the requesting country, whether the offense charged is extraditable under the treaty, whether the person brought before the court is the one accused of the crime, and whether probable cause exists to believe that the defendant committed the offense. Sayne v. Shipley, supra, 418 F.2d at 685; 6 M. Whiteman, Digest of International Law 944-45 (1968). If the court so finds, it certifies these facts to the Secretary of State and issues a warrant holding the defendant in custody pending his surrender. 18 U.S.C. § 3184 (1976). The final decision whether to release the defendant to the foreign government for trial rests with the President, who acts through the Secretary of State. 18 U.S.C. § 3186 (1976); 6 M. Whiteman, supra at 1027.

Petitioner does not challenge the fact that all of these safeguards were observed when his extradition was originally sought. At the judicial hearing held at that juncture, the presiding judge found, inter alia, that petitioner was the same person named in the Italian warrants; that a valid extradition treaty exists between the United States and Italy; that the crimes for which petitioner was sought are extraditable under the treaty, being felonies under both Italian and American law; and that sufficient evidence was presented to establish probable cause to believe petitioner had committed the crimes of murder and aggravated robbery in Italy. In the Matter of The Extradition of Jack René Berenguer, Misc. No. 78-32 (M.D.Pa. April 13, 1978). While conceding all of this, petitioner nonetheless asserts that he is entitled to an identical proceeding before the original order for his extradition can be expanded to include prosecution for the crime of illegal possession of a military firearm.

It is clear that the concept of extradition has certain well-defined parameters. One such limitation is the "rule of speciality," a principle of international law that prohibits the requesting country from prosecuting or punishing the extradited party without the permission of the surrendering country for any offense committed prior to his extradition, except that for which he was extradited. Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.) (collecting authorities), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973); 6 M. Whiteman, supra at 1095, 1100. This doctrine has long been recognized in the United States. See United States v. Rauscher, 119 U.S. 407, 415-30, 7 S.Ct. 234, 30 L.Ed. 425 (1886) (analyzing cases and writings on treaties and the rule of speciality). It is significant to note, however, that while the rule restricts the prosecutorial latitude of the requesting country, it also permits a specific exception — the extradited party may be tried for a crime other than that for which he was surrendered if the asylum country consents. Such a provision is included in article XV of the treaty under consideration here, which provides in pertinent part:

A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting Party for an offense other then that for which extradition has been granted . . . unless:

* * * * * *

3. The requested Party has consented to his detention, trial and punishment for an offense other than that

...