Lo Duca v. U.S.

• Decision Date: 29 August 1996
• Docket Number: No. 734,D,734
• Citation: 93 F.3d 1100
• Parties: Paolo LO DUCA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 95-2462.
• Court: U.S. Court of Appeals — Second Circuit

Page 1100

93 F.3d 1100

Paolo LO DUCA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 734, Docket 95-2462.

United States Court of Appeals Second Circuit.

Argued Feb. 21, 1996.

Decided Aug. 29, 1996.

James W. Shannon, Jr., Washington, D.C. (Gregory B. Craig, Matthew J. Herrington, Williams & Connolly, Washington, D.C.; Judd Burstein, Robert N. Fass, Marc Fernich New York City, on the brief), for petitioner-appellant.

Scott R. McIntosh, Washington, D.C., Laura A. Ward, Asst. U.S. Atty., Brooklyn, N.Y. (John C. Keeney, Acting Asst. Atty. Gen., Douglas N. Letter, U.S. Dept. of Justice, Washington, D.C.; Zachary W. Carter, U.S. Atty., Emily Berger, Susan Corkery, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for respondent-appellee.

Before: NEWMAN, Chief Judge, and KEARSE, Circuit Judge, and WEXLER, District Judge. ^*

JON O. NEWMAN, Chief Judge:

This appeal presents a novel challenge to the constitutionality of the United States extradition statute, 18 U.S.C. § 3184 (1994), which has governed the extradition of fugitives found in this country for nearly 150 years. Petitioner-appellant Paolo Lo Duca appeals from the July 24, 1995, judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge), dismissing his petition for a writ of habeas corpus. Lo Duca contends primarily that his extradition is unconstitutional because section 3184 violates the doctrine of separation of powers. Because we see no constitutional infirmity in the statute, we affirm the judgment of the District Court.

Background

In March 1993, Paolo Lo Duca was convicted by the Court of Palermo in Italy for various narcotics-related offenses after being tried in absentia. Although Lo Duca, an Italian citizen residing in Sands Point, New York, refused to appear for trial, he was represented by his attorney in all proceedings. The evidence showed that Lo Duca, as a member of the Sicilian Mafia, had conspired to import cocaine from Colombia through the United States to Italy. Lo Duca was sentenced by the Court of Palermo to nineteen years in prison.

The Republic of Italy subsequently submitted an application, in accordance with Article XII of the Italian-American extradition treaty, requesting that the United States provisionally arrest Lo Duca. See Extradition Treaty Between the Government of the United States of America and the Government of the Republic of Italy, October 13, 1983, U.S.-Italy, art. XII, T.I.A.S. No. 10837 ("Extradition Treaty"). In May 1994, the Government, acting on behalf of the Republic of Italy, filed a complaint in the Eastern District of New York seeking an arrest warrant for Lo Duca. Then-Magistrate Judge Allyne R. Ross granted the request, and Lo Duca was taken into custody.

The Republic of Italy then made a formal request to extradite Lo Duca pursuant to Article X of the Extradition Treaty. In November 1994, Magistrate Judge Steven M. Gold held a hearing in accordance with 18 U.S.C. § 3184 to review the evidence of criminality and determine whether Lo Duca could be extradited by the Secretary of State. Magistrate Judge Gold examined the appropriate documents required under Article X of the Extradition Treaty, including a text of the relevant Italian laws and a summary of the evidence against Lo Duca. He found probable cause to extradite.

Magistrate Judge Gold also considered a legal challenge to the extradition of Lo Duca for the Italian offense of "association of mafia type." Lo Duca contended that the Italian statute criminalized conduct that was not punishable under the laws of the United States, and therefore failed to meet the dual-criminality requirement of the Extradition Treaty. See Extradition Treaty, art. II, T.I.A.S. No. 10837. Magistrate Judge Gold rejected this argument, finding that the offense of "association of mafia type" applied to conspirators who "avail themselves of the power of intimidation and of the condition of subjection and conspiracy of silence deriving therefrom for the purpose of committing crimes." He concluded that the Italian offense was similar to RICO and other conspiracy offenses that are well-recognized in the United States. Magistrate Judge Gold then certified Lo Duca to the Secretary of State for extradition.

Lo Duca subsequently sought a writ of habeas corpus from the District Court arguing (1) that the documents submitted to the extradition officer were insufficient to comply with Article X of the Extradition Treaty, and (2) that the Italian offense of "association of mafia type" failed to meet the dual-criminality requirement. Judge Trager denied his petition for a writ of habeas corpus. Lo Duca now appeals.

Discussion

I. The Constitutionality of 18 U.S.C. § 3184 ¹

The federal extradition statute, 18 U.S.C. § 3184, was first enacted nearly 150 years ago to provide a legal framework for extradition proceedings involving fugitives found in the United States. Prior to 1848, extradition was largely a matter committed to the discretion of the Executive Branch. See Austin v. Healey, 5 F.3d 598, 604 (2d Cir.1993) ("Congress reacted, in part, to 'the public clamor for judicial involvement in the extradition process.' ") (quoting Jacques Semmelman, Federal Courts, The Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 Cornell L.Rev. 1198, 1208 (1991)), cert. denied, 510 U.S. 1165, 114 S.Ct. 1192, 127 L.Ed.2d 542 (1994). The primary function of section 3184 is to "interpos[e] the judiciary between the executive and the individual." Id. ² To that end, the extradition statute requires the Government to submit a formal complaint setting forth the legal and factual bases for extradition. The complaint must be brought before an extradition officer--"any justice or judge of the United States, or any magistrate authorized ... by a court of the United States, or any judge of a court of record of general jurisdiction of any State...." 18 U.S.C. § 3184. The extradition officer is then directed to hear and consider the "evidence of criminality." Id. If the evidence is sufficient "to sustain the charge under the provisions of the proper treaty or convention," the extradition officer is instructed to issue a certificate of extraditability to the Secretary of State. Id. At that point, the Secretary of State has final authority to extradite the fugitive, but is not required to do so. Pursuant to its authority to conduct foreign affairs the Executive Branch retains plenary discretion to refuse extradition.

The extradition hearing conducted pursuant to section 3184 "is not ... in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him...." Benson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 1243, 32 L.Ed. 234 (1888). Instead, it is "essentially a preliminary examination to determine whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation." Ward v. Rutherford, 921 F.2d 286, 287 (D.C.Cir.1990) (citation omitted), cert. dismissed, 501 U.S. 1225, 111 S.Ct. 2844, 115 L.Ed.2d 1013 (1991). As the Supreme Court has stated, "The function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction." Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 472, 66 L.Ed. 956 (1922). The judicial officer who conducts an extradition hearing "thus performs an assignment in line with his or her accustomed task of determining if there is probable cause to hold a defendant to answer for the commission of an offense." Ward, 921 F.2d at 287; see also In re McMullen, 989 F.2d 603, 611 (2d Cir.) (in banc) ("What is at issue in the proceeding, therefore, 'is not punishability but prosecutability.' ") (quoting M. Cherif Bassiouni, International Extradition and World Public Order 524 (1974)), cert. denied, 510 U.S. 913, 114 S.Ct. 301, 126 L.Ed.2d 249 (1993).

If the extradition officer issues a certificate of extraditability, the Secretary of State "may" order the fugitive to be delivered to the extraditing nation. 18 U.S.C. § 3184. The Secretary of State, however, is under no legal duty to do so. See 6 M. Whiteman, Digest of International Law 1046 (1968) ("[T]he judicial branch cannot, as a matter of domestic law, bind the executive to grant extradition."). On the other hand, if the extradition officer declines to issue a certificate of extraditability, the complaint is dismissed and the Secretary of State has no authority to order the surrender of the fugitive. See In re Mackin, 668 F.2d 122, 125-28 (2d Cir.1981). While a new extradition complaint may be submitted, unless it leads to a certificate of extraditability, no extradition is allowed. See United States v. Doherty, 786 F.2d 491, 495 (2d Cir.1986); cf. Collins v. Loisel, 262 U.S. 426, 429-30, 43 S.Ct. 618, 619, 67 L.Ed. 1062 (1923) (successive complaints seeking extradition do not violate Double Jeopardy Clause).

In this case, Lo Duca's primary contention is that the legal framework established by the extradition statute is unconstitutional. We note at the outset that Lo Duca raises this argument for the first time on appeal. The general rule is that "a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). That rule, however, is one of prudence and not appellate jurisdiction. We retain broad discretion to consider issues not raised initially in the District Court. See Austin, 5 F.3d at 601. Since the argument proffered by Lo Duca involves constitutional notions of separation of powers, the Government's response that Lo Duca has waived his claims "cannot be dispositive." Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 3257, 92 L.Ed.2d 675 (1986). In ...