Esposito v. Adams

• Decision Date: 05 October 1988
• Docket Number: No. 87 C 5063.,87 C 5063.
• Citation: 700 F. Supp. 1470
• Court: U.S. District Court — Northern District of Illinois
• Parties: Carmine ESPOSITO, Defendant, v. John ADAMS, United States Marshal for the Northern District of Illinois, Respondent.

700 F. Supp. 1470

Carmine ESPOSITO, Defendant, v. John ADAMS, United States Marshal for the Northern District of Illinois, Respondent.

No. 87 C 5063.

United States District Court, N.D. Illinois, E.D.

October 5, 1988.

COPYRIGHT MATERIAL OMITTED

Philip C. Parenti, Chicago, Ill., for defendant.

Thomas A. Scorza, Asst. U.S. Atty., for respondent.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

I. INTRODUCTION

Before the Court is a petition for habeas corpus brought by Carmine Esposito.¹ On March 12, 1987, the petitioner was arrested pursuant to a magistrate's warrant issued in connection with a Republic of Italy request for his provisional arrest. At the time of his arrest, the petitioner claimed that he was John Michael Phelan. Based on the evidence presented at an identity hearing on March 13, 1987, the magistrate found that the petitioner's true name was Carmine Esposito. On April 17, 1987, Italy formally requested the extradition of the petitioner pursuant to the 1983 extradition treaty between the United States and the Republic of Italy² (the "Treaty") for the crimes of murder, attempted murder, and complicity in murder. Italy also sought Esposito's extradition for a conviction in absentia of extortion. The magistrate held an extradition hearing on April 22 and 23, 1987, pursuant to 18 U.S.C. § 1384 and Local General Rule 1.70(b)(1)(j). On June 12, 1987, the magistrate ruled that he had jurisdiction over the subject matter and the person of the defendant; that the extradition treaty was applicable and complied with; and that there existed probable cause to believe that the petitioner committed the acts alleged in the extradition request. The cause comes before the Court on the petitioner's request for the issuance of a writ of habeas corpus to prevent his extradition.

In his petition, Esposito makes the following arguments: first, that the government's evidence was insufficient to establish probable cause that he committed the crimes stated in the extradition complaint; second, that his due process rights were violated during his post-arrest questioning; third, that the documentary evidence produced at the extradition hearing was inadmissible because it was improperly certified; fourth, that the Italian criminal justice system does not provide adequate safeguards to the accused.

II. SCOPE OF REVIEW

Jurisdiction of this action results from the federal habeas corpus statute, 28 U.S.C. § 2241, and numerous decisions holding that review of the order of extradition and commitment is not available by direct appeal, but is subject to limited review by means of habeas corpus. E.g., Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); In the Matter of Assarsson, 635 F.2d 1237, 1240 (7th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981).

In Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925), Justice Holmes set forth the standard of review appropriate to a habeas corpus proceeding:

It is not a means for rehearing what the magistrate already has decided. 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.

Id. at 312, 45 S.Ct. at 512. Since Fernandez, however, the Seventh Circuit has broadened the scope of review to reflect parallel developments in the scope of non-extradition habeas corpus review. In David v. Attorney-General, 699 F.2d 411 (7th Cir.), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983), the Seventh Circuit addressed a procedural due process claim in the extradition context and stated that

there is some authority for the suggestion that the limited scope of review applies only to the extradition ruling and not to procedural issues, see, e.g., Garcia-Guillern v. U.S., 450 F.2d 1189, 1191 (5th Cir.1971), ... Since it appears settled that aliens are entitled to some procedural due process rights in an extradition hearing, a habeas corpus petition would seem to be the appropriate means of enforcing those rights.

699 F.2d 415. Although the issue in David was not resolved because the court concluded that the denial of a continuance did not violate the petitioner's constitutional rights, the Seventh Circuit had a further opportunity to examine the appropriateness of habeas corpus review of constitutional issues in an extradition case in In re Burt, 737 F.2d 1477 (7th Cir.1984).

In Burt, the court stated that the narrow scope of Fernandez was to be construed "in the context of its time and in the context of subsequent development of the scope of habeas corpus review." Id. at 1484. The court reasoned that a broadening of the Fernandez standard was warranted since it reflected the Supreme Court's subsequent redefinition of the scope of habeas corpus review which had previously been tied to an examination of jurisdictional defects, but now included "an evaluation of whether the petitioner is being held in violation of any of his or her constitutional rights." Id. The Seventh Circuit held that "federal courts undertaking habeas corpus review of extraditions have the authority to consider not only procedural defects in the extradition procedures that are of constitutional dimension, but also the substantive conduct of the United States in undertaking its decision to extradite if such conduct violates constitutional rights." Id. However, although the court broadened the Fernandez standard to include constitutional challenges, it also recognized that successful challenges would be the exception rather than the rule:

Generally, so long as the United States has not breached a specific promise to an accused regarding his or her extradition and bases its extradition decisions on diplomatic considerations without regard to such constitutionally impermissible factors as race, color, sex, national origin, religion, or political beliefs, and in accordance with such other exceptional constitutional limitations as may exist because of particularly attrocious sic procedures or punishments employed by the foreign jurisdiction, those decisions will not be disturbed.

Id. at 1487 (citations omitted).

In considering a habeas corpus challenge to an extradition order, therefore, the Court may inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty, and whether there was any evidence to warrant the finding of probable cause to believe the accused guilty. The petitioner may also raise a limited constitutional challenge.

The Court will first address the petitioner's objections to Magistrate Rosemond's determination on remand of the status of the warrants pending in this extradition case, and will then turn to Esposito's habeas corpus arguments, which concern probable cause and constitutional issues.

III. WARRANTS

While Esposito's petition for a writ of habeas corpus was pending before the Court, the government and the petitioner filed numerous inconsistent and often contradictory notices and briefs which raised questions concerning the status of the Italian warrants in force against Esposito. Because this Court reviews only certain legal issues and does not make factual determinations when considering a habeas corpus petition in an extradition context, the Court remanded the matter to the magistrate for resolution of the following questions:

1) which warrants formed the basis of his finding of the petitioner's extraditability;

2) whether those warrants remain in force;

3) the effect of any change in the status of the warrants on his finding that the petitioner is extraditable; and

4) if there is such a change in the status of the warrants, for which crimes is the petitioner to be extradited.

In his August 30, 1988 Order, the magistrate listed the warrants which remain valid and which form the basis of his certification of the extradition order against Esposito. These four warrants specify twelve counts of murder and one of attempted murder. The magistrate examined the notices and briefs submitted by both parties and concluded that a reasonable interpretation of the Treaty is that "the Italian Ministry of Grace and Justice retains primary responsibility for advising and assisting the United States in proceedings arising out of extradition requests."³ He therefore accepted official notice of the status of the four warrants from that Ministry as "reasonable and reliable evidence of the same,"⁴ and concluded that those four warrants are still valid and pending.

Esposito challenged the magistrate's Order⁵ on the grounds that (i) the Italian Ministry of Grace and Justice's documents were ambiguous and therefore could not be relied upon as "reasonable and reliable evidence"; (ii) the magistrate accepted the "opening statement" of the government as fact and ignored the petitioner's contentions and exhibits; and (iii) the murder warrants had been consolidated under warrant no. 131/A/84, and all the defendants detained under that warrant had been "released".

The magistrate's factual findings as to the status of the currently pending warrants are not subject to direct appeal. Fernandez, 268 U.S. at 312, 45 S.Ct. at 512; Collins, 252 U.S. at 369, 40 S.Ct. at 349; Eain v. Wilkes, 641 F.2d at 508; In the Matter of Assarsson, 635 F.2d at 1240. Nor does the matter fall within the scope of the limited habeas corpus review discussed supra at 1472-73; see also Freedman, 437 F.Supp. at 1258 ("`a contention that the person whose extradition is sought has never been properly or legally charged with a crime in accordance with the treaty is not appropriate for consideration' in habeas corpus proceedings...