Fiocconi v. Attorney General of United States

• Decision Date: 12 June 1972
• Docket Number: No. 833,Docket 72-1425.,833
• Citation: 462 F.2d 475
• Parties: Charles Laurent FIOCCONI and Jean Claude Kella, Petitioners-Appellants, v. ATTORNEY GENERAL of the UNITED STATES et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

462 F.2d 475 (1972)

Charles Laurent FIOCCONI and Jean Claude Kella, Petitioners-Appellants, v. ATTORNEY GENERAL of the UNITED STATES et al., Respondents-Appellees.

No. 833, Docket 72-1425.

United States Court of Appeals, Second Circuit.

Argued May 12, 1972.

Decided June 12, 1972.

Raymond B. Grunewald, Brooklyn (Grunewald, Turk & Gillen, Brooklyn, N. Y., of counsel), for appellants.

Arthur J. Viviani, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., Dean C. Rohrer, and Peter F. Rient, Asst. U. S. Attys., of counsel), for appellees.

Before FRIENDLY, Chief Judge, and McGOWAN^* and TIMBERS, Circuit Judges.

FRIENDLY, Chief Judge:

Appellants Fiocconi and Kella, citizens of France, were indicted in the District of Massachusetts on November 20, 1969, for conspiring from September 15, 1968, through April 22, 1969, to import heroin into the United States in violation of 21 U.S.C. § 174.¹ Bench warrants were issued but could not be executed. Interpol traced appellants to a town in Italy, where in August 1970 they were arrested by the Italian authorities. A month later the United States Embassy in Rome requested extradition. It acknowledged that narcotics crimes were not among those listed in the Extradition Convention between the two governments, 15 Stat. 629 (1868), and subsequent amendments. However, the Embassy expressed its understanding that, independent of the Convention, the Italian Government could grant extradition as an act of comity when the offenses for which this was requested were also crimes under the law of Italy, provided that the relevant treaty did not prohibit extradition for the offenses in question (which the American-Italian Convention did not), and that the offenses with which Fiocconi and Kella had been charged in the United States were in fact crimes under Italian law. Among the papers submitted to the Italian Government were the indictment in and the arrest warrants issued by the District Court for Massachusetts.

After a hearing, a court in Florence directed appellants' extradition "so that they can be subjected to judgment according to the writ of indictment against them formulated by the Grand Jury of the District Court of Appeals of Massachusetts sic dated the 20th of November, 1969, and according to the consequent order for arrest on the same date." After unsuccessful appellate proceedings, Fiocconi and Kella were delivered in Italy to United States authorities and were removed to Boston on October 6, 1971. They pleaded not guilty. Bail was fixed in the amount of $250,000 each, which was met by surety bond secured by a $500,000 certified check drawn on a Swiss bank.

Soon after their release on bail, Fiocconi and Kella were subpoenaed to appear before a grand jury in the Southern District of New York. When they appeared, they were arrested on warrants issued under an indictment, returned that day, which charged them with the substantive crime of receiving, concealing, selling and facilitating the transportation, concealment and sale of 37 kilograms of heroin in the Southern District of New York on or about May 27, 1970. Bail was fixed at $100,000 for each defendant, a sum which they were unable to post. While a habeas corpus petition was pending, the grand jury returned a superseding indictment charging appellants and 21 other defendants with conspiring to violate the narcotics laws from January 1, 1970 through January 4, 1972² and with two substantive offenses in May 1970.³ Bail was again set at $100,000 each, which Fiocconi and Kella were unable to post. We are advised that the United States has requested Italy to broaden the extradition order to include the New York charges; that Fiocconi and Kella have retained counsel in Italy to resist this; and that no response from the Italian Government has yet been received.

Appellants again petitioned the District Court for the Southern District of New York for release on the ground that their detention there on a charge other than that presented to the Italian Government was an act of bad faith toward the Government of Italy. When the district court denied the petition on March 16, 1972, D.C., 339 F.Supp. 1242, Fiocconi and Kella appealed and later moved for a stay of their trial, which was to commence on May 16. The appeal and motion were heard on May 12; we announced from the bench that, while our reasons differed from those of the district judge, we had concluded to affirm on the basis of our study of the case and the oral argument, with an opinion to be prepared as soon as practicable, and consequently denied the motion for a stay. On May 24 appellants were found guilty.

If the matter were res nova, something could be said for the proposition that appellants' claim is not a matter proper for judicial cognizance. The argument would be that since appellants were lawfully arrested in the Southern District of New York for an offense allegedly committed there, that should end the matter so far as the courts are concerned; consideration of the effect on this country's international relations of holding appellants for trial on a charge differing from the one presented to the Italian Government should be a matter solely for the executive departments, which can better weigh the relative importance of the conviction of two alleged large scale narcotics violators against possible difficulties in securing future extradition from Italy and other foreign affairs considerations. The position would be that extradition is a matter of treaty or of comity between governments; that a breach of faith by the receiving government entails international consequences; but that the treaty or practice confers no rights on persons who have been so extradited unless this has been spelled out.⁴

However, the Supreme Court's decision in United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), of which more hereafter, where Chief Justice Waite made substantially this argument in dissent, 119 U.S. at 434-436, 7 S.Ct. 234,⁵ forecloses any such facile escape from appellants' claim. The district judge in this case concluded the normative principle to be that courts would limit United States criminal proceedings to those specially brought to the attention of the foreign government when extradition had been achieved pursuant to a treaty, but that extradition obtained as a result of the exercise of comity was to be treated like a case where the defendant had been brought to this country without aid from the foreign government. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), decided on the same day as Rauscher and written by the same Justice, held that where the defendant's removal from the foreign country had been effected extra-legally—in that instance through kidnapping by a federal officer—the defendant could not raise an issue of illegality in his removal unless the language of a treaty with the foreign country whence he had been removed went so far as to support a construction that each country had recognized a right of asylum in the other, including the right of a fugitive to be free from acts of force that would bring him back to the place of his crime.

We think the district court read Rauscher too narrowly. Although the case indeed concerned extradition under a treaty, Mr. Justice Miller began his discussion by considering what the situation would have been without one. He thought it could "hardly be supposed that a government which was under no treaty obligation, nor any absolute obligation of public duty, to seize a person who had found an asylum within its bosom and turn him over to another country for trial, would be willing to do this, unless a case was made of some specific offense of a character which justified the government in depriving the party of his asylum. It is unreasonable that the country of the asylum should be expected to deliver up such person to be dealt with by the demanding government without any limitation, implied or otherwise, upon its prosecution of the party." 119 U.S. at 419, 7 S.Ct. at 240. He went on to observe that the country of asylum "might be very willing to deliver up offenders against such laws as were essential to the protection of life, liberty, and person, while it would not be willing to do this on account of minor misdemeanors or of a certain class of political offenses in which it would have no interest or sympathy." Id. at 420, 7 S.Ct. at 240. The enumeration of extraditable offenses in treaties was for the very purpose of carrying out "the recognized public law which had prevailed in the absence of treaties." Id. Under the Anglo-American Treaty, Rauscher, the second mate of an American vessel, who had been extradited from Great Britain on a charge of murder of a crewman, could not have been so extradited for unlawfully inflicting cruel and unusual punishment on the same man, "an offense for which the treaty made no provision, and which was of a very unimportant character when compared with that of murder." Id. at 432, 7 S.Ct. at 247. For the United States to try him for the unextraditable offense was thus a breach of the treaty. Further, and this was the step on which the Justices disagreed, the Court developed a rule of law providing Rauscher with a judicial remedy for this violation of international law. See ALI, Restatement (Second) of the Foreign Relations Law of the United States § 3(h) (1965).

In light of the analysis leading to Mr. Justice Miller's conclusion, we cannot agree that the basic principle of Rauscher is inapplicable where extradition has been obtained as an exercise of comity by the surrendering government.⁶ In his view a rule of international law required that the receiving country should not try an extradited person for an offense for which the surrendering country would not have granted extradition; the treaty was important only as clarifying what offenses were or were not extraditable.⁷ Rauscher's conviction of an offense for which ...