DeSilva v. DiLeonardi

• Decision Date: 26 November 1997
• Docket Number: 97-1038,Nos. 96-4110,s. 96-4110
• Citation: 125 F.3d 1110
• Parties: Anthony DeSILVA, Albert DeSilva, Anthony J. LoBue, and Thomas Kulekowskis, Petitioners-Appellees, v. Joseph G. DiLEONARDI, United States Marshal for the Northern District of Illinois, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1110

125 F.3d 1110

Anthony DeSILVA, Albert DeSilva, Anthony J. LoBue, and Thomas Kulekowskis, Petitioners-Appellees, v. Joseph G. DiLEONARDI, United States Marshal for the Northern

District of Illinois, Respondent-Appellant.

Nos. 96-4110, 97-1038.

United States Court of Appeals, Seventh Circuit.

Argued May 22, 1997.

Decided Sept. 26, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 26, 1997.

Michael J. Howlett, Jr., Patricia Susan Spratt, James D. Wilson, Shefsky, Froelich & Devine, Chicago, IL, Gregory B. Craig, Matthew J. Herrington, John T. Parry (argued), Williams & Connolly, Washington, DC, for Thomas Kulekowskis and Anthony J. Lobue.

William A. Barnett, Jr., Chicago, IL, Anthony DeSilva.

Joel D. Bertocchi (argued), Office of the United States Attorney, Criminal Division, Chicago, IL, Joseph G. DiLeonardi.

Lawrence E. Morrissey, Chicago, IL, Albert DeSilva.

Before COFFEY, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Tammy DeSilva barely survived a serious car accident in December 1987. She became a quadriplegic and suffered serious brain damage. Three months after the accident an Illinois court declared her disabled, see 755 ILCS 5/11a-2(a), and named her husband Anthony as her guardian. Tammy's father, Ernest Wright, had sought the position, but the state judge understood Illinois law to forbid the appointment of foreign nationals as guardians. 755 ILCS 5/11a-5(a). Like Tammy, Ernest Wright is a citizen of Canada.

Anthony looked after Tammy during the 16 months following the accident. In July 1989, however, with medical bills mounting and insurance exhausted, he returned Tammy to Winnipeg, the Wright family's home. There she could receive subsidized health care. Tammy's parents tended her for the next 30 months, living with her in a house that Anthony and Tammy jointly owned. Anthony visited once. Back in Illinois, he initiated litigation seeking damages for Tammy's injuries. The litigation required Tammy to undergo a medical examination. Anthony feared that Tammy's parents would not permit him to return Tammy to Chicago for this purpose. He secured an order from an Illinois court authorizing him "to take custody of the person of Tammy DeSilva, wherever she may be found, for the purpose of presenting her to a physician or medical care provider for evaluation, treatment or assessment." With this order in hand, Anthony set off for Canada, accompanied by his father Albert, two off-duty Chicago police officers (petitioners Kulekowskis and LoBue), and a registered nurse. The group arrived at the home in Winnipeg at 6:40 a.m. on February 3, 1992.

What we have recounted so far is uncontested. Other events, and the inferences to be drawn, remain in dispute. Anthony contends that after a "brief and non-violent" discussion with Tammy's mother (Christina Wright), he and his companions carried Tammy to the car and drove back to the border. Tammy "appeared happy to see her husband and content to accompany him, and she indicated no disagreement." Christina Wright called the police and reported an abduction; in response, U.S. customs officials stopped the group at the border. When asked whether she wished to go to Chicago or stay with Anthony, Tammy was indecisive: through her keyboard communication device, she answered, "I want to go home with Anthony if it is OK" but also said that she wished to be with her mother. Customs officials ultimately sent Tammy back to Canada and admitted Anthony and his group to the United States.

Christina Wright, in contrast, says that Kulekowskis and LoBue barged in without asking permission and disconnected the telephone line while Anthony and the nurse carried Tammy away "crying and kicking." The Government of Canada believes that, at the border, Tammy protested through her communication device that she did not want to go to Chicago with Anthony "[b]ecause it is not home," that Anthony had told her that they were just going "for a ride", and that she would rather live with her mother than with Anthony. When communicating with two Winnipeg police officers, she asked whether "Anthony was doing this for money". Canada also believes that when entering the country the group told customs officials that they were traveling to Winnipeg to attend a surprise anniversary party for Anthony's wife. They did not mention the court order or their plan to remove Tammy from the country.

The Province of Manitoba commenced a criminal proceeding, alleging that the two DeSilvas, Kulekowskis, and LoBue violated Canadian national laws against kidnapping and forcible seizure. The Government of Canada asked the United States to surrender them for trial. The State Department initiated the necessary proceedings. 18 U.S.C. § 3184. Magistrate Judge Bobrick concluded that the evidence, viewed in Canada's favor, requires extradition. In re Extradition of Kulekowskis, 881 F.Supp. 1126 (N.D.Ill.1995). Petitioners then sought writs of habeas corpus. District Judge Lindberg issued writs with respect to three of the petitioners, holding that Anthony's status as Tammy's custodian would have permitted Anthony to do what he did, if Tammy had been in the United States, and that the "dual criminality" requirement of the treaty with Canada therefore precludes extradition. 941 F.Supp. 741 (N.D.Ill.1996). District Judge Shadur then issued a writ in favor of the group's fourth member, noting in a short opinion that he agrees with Judge Lindberg's legal conclusions. We have consolidated the appeals from these decisions.

Extradition depends on probable cause to believe that petitioners committed an offense covered by the extradition treaty. Bovio v. United States, 989 F.2d 255, 258 (7th Cir.1993); Eain v. Wilkes, 641 F.2d 504, 507-08 (7th Cir.1981). We cannot resolve factual disputes; for that matter, we cannot address most legal issues pertinent to the charges. Affirmative defenses not specified in the treaty may not be considered. Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Collins v. Loisel, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956 (1922). "The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925) (Holmes, J.); see also Eain, 641 F.2d at 508.

Following the chain of inquiries established by Fernandez, we first examine the magistrate judge's jurisdiction. The hearing was held in this case in response to the State Department's decision to respect Canada's request that petitioners be surrendered for trial. Section 3184, which has existed in roughly the same form since 1878, provides that any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State ... shall certify the [charge], together with a copy of all testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention[.]

The magistrate judge certified the charges under § 3184 and left to the Secretary of State the ultimate decision whether to honor Canada's request. Petitioners submit that § 3184 violates Article III of the Constitution and the doctrine of separation of powers "by requiring federal courts to give advisory opinions that are subject to plenary review and revision by the Executive branch." They first raised this argument in an independent action, and a district judge concluded that § 3184 indeed violates Article III, Lobue v. Christopher, 893 F.Supp. 65 (D.D.C.1995), but the court of appeals vacated this decision after concluding that the district court itself lacked jurisdiction. A constitutional objection to extradition must be made in the original extradition proceeding, or in a petition for a writ of habeas corpus, the court of appeals held. 82 F.3d 1081 (D.C.Cir.1996).

An argument that certification for extradition is an advisory opinion does not have much force, as magistrate judges do not serve under Article III of the Constitution and therefore are free to issue advisory opinions if a statute requires that step. The current proceeding--the quest for writs of habeas corpus--is anything but advisory. If the writ issues, it must be obeyed. But even the proceeding before the magistrate judge was an Article III case or controversy. A certificate of extradition is no different from a search warrant or an order approving a deportation: it authorizes, but does not compel, the executive branch of government to act in a certain way. The police may change their mind about the need for a search; the Board of Immigration Appeals may grant the alien's request for reopening. The Constitution itself allows the President to block enforcement of a criminal judgment by issuing a pardon. Judgments give victorious litigants rights but not duties; only the losers are placed under obligations, and a judgment may be called "advisory" only when it does not bind the unsuccessful litigant. A victor in civil litigation may forego collecting the award of damages; no one thinks that this makes the judgment advisory. The police need not search, the Attorney General need not deport, the victorious plaintiff need not collect--and the Secretary of State need not extradite. A federal court had the constitutional authority to certify the petitioners for extradition. Accord, Lo Duca v. United States, 93 F.3d 1100 (2d Cir.1996) (reaching the same conclusion by a different route).

The second question under Fernandez is whether "the offense...