Gallina v. Fraser, Civ. No. 7511.

Citation177 F. Supp. 856
Decision Date15 May 1959
Docket NumberCiv. No. 7511.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
PartiesVincenzo GALLINA, Relator v. Donald FRASER, United States Marshal, Respondent.


George A. Athanson, Hartford, Conn., for petitioner.

Harry W. Hultgren, Jr., U. S. Atty., Hartford, Conn., Vincent J. Scamparino, Middletown, Conn., for respondent.

J. JOSEPH SMITH, Chief Judge.

In 1958, acting pursuant to the terms of the Convention of 1868 (15 Stat. 629) as amended by the Supplementary Convention of 1885 (24 Stat. 1001), concerning the extradition of fugitive criminals between Italy and the United States, the Republic of Italy requested the Secretary of State of the United States to secure the preliminary arrest of one Vincenzo Gallina, with a view to his extradition. On June 6, 1958, the Secretary of State issue a certificate authorizing the arrest of Gallina and the institution of extradition proceedings against him as provided by law. 18 U.S.C. § 3184. The United States Commissioner for the District of Connecticut, duly authorized as a Commissioner under the extradition statute by this Court, after receiving a complaint from the Consular Agent of the Republic of Italy in and for the State of Connecticut on June 26, 1958, issued a warrant for the arrest of Gallina pursuant to Section 3184, in order that a hearing of evidence of the criminality of Gallina might be held. Gallina was taken into custody by the United States Marshal. Hearings were held on July 21, July 29, August 4, August 13, August 14, September 8, and September 30, 1958. Gallina was represented by appointed counsel at these hearings and personally attended all those at which evidence was adduced. After hearing and considering all the evidence, the Commissioner found that the Vincenzo Gallina appearing before him was the same Vincenzo Gallina whose extradition was sought by the Republic of Italy, that the offenses charged, to wit, several acts of robbery, constituted extraditable crimes under the Convention of 1868, and that the evidence was sufficient to sustain the charge under the provisions of that Convention. Accordingly the Commissioner ordered the United States Marshal to commit the accused into custody to await the issuance of a warrant by the Secretary of State upon the requisition of the Republic of Italy.

On October 2, 1958 Gallina applied for a writ of habeas corpus. Benedict M. Holden, Jr., United States Commissioner, Donald Fraser, United States Marshal, and Alberto Cupelli, Consular Agent for the Republic of Italy, were named therein as respondents. At the same time relator also made a motion for a temporary injunction to be directed to the same three officials, enjoining them from taking any steps toward surrendering relator to the Republic of Italy or from certifying the proceedings before the Commissioner to the Secretary of State as provided in 18 U.S.C. § 3184, and directing the Commissioner to produce the entire record of the hearing before him. A temporary restraining order was granted on the terms requested, except that Commissioner Holden was directed to file with the District Court only so much of the record of the hearing as he then had in his possession or control. The original record had already been sent to the Department of State. An order permitting relator to proceed in forma pauperis and appointing counsel was issued, appointed counsel being the same attorney who represented relator during the extradition hearing. An order to show cause why the writ of habeas corpus should not be granted was also issued. A hearing on this order and the returns thereto was held on October 9, 1958. At that time relator's motion for a temporary injunction was denied. The court also dismissed the petition insofar as respondents Holden and Cupelli were concerned, inasmuch as the actual detention was maintained by Marshal Fraser alone. On October 15, 1958, the court dismissed without prejudice relator's petition on the ground that the writ was unavailable to him until a final, adverse decision of the Secretary of State was handed down, i. e., until he had exhausted his administrative remedy. A certificate of probable cause for appeal was issued that same day by order of the court. Notice of appeal was filed on behalf of relator on October 29, 1958, and in due course the case was docketed in the Court of Appeals. On February 5, 1959, by stipulation between counsel for relator, the Republic of Italy, and the United States Marshal, and with the approval of Chief Judge Clark, the appeal was withdrawn from the Court of Appeals, and the record was returned to the District Court. At a hearing on March 10, 1959, a joint motion to reopen the judgment of dismissal was presented to the court. In view of the fact that no administrative action had apparently been taken by the State Department since the certification of the record to the Secretary of State by the Commissioner during the previous September, it was thought that the prolonged delay and continued incarceration of relator warranted judicial intervention. Accordingly the motion to reopen was granted. The record of the extradition hearing, including documentary evidence of proceedings, warrants, depositions, and other records of various Italian tribunals and officers which had been certified by the U. S. Ambassador pursuant to 18 U.S.C. § 3190 for use in said hearings, was returned by the State Department to this court on March 16, 1959. The court has thus had before it all the evidence on which the Commissioner based his finding.

At the outset we deem it to be of paramount importance to keep in mind the scope of the inquiry available to this court in this habeas corpus proceeding. As long ago as 1896 the Supreme Court of the United States declared:

"By repeated decisions of this court it is settled that a writ of habeas corpus cannot perform the office of a writ of error, and that, in extradition proceedings, if the committing magistrate has jurisdiction of the subject-matter and of the accused, and the offense charged is within the terms of the treaty of extradition, and the magistrate, in arriving at a decision to hold the accused, has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision cannot be reviewed on habeas corpus. * * * Whether an extraditable crime has been committed is a question of mixed law and fact, but chiefly of fact, and the judgment of the magistrate, rendered in good faith on legal evidence that the accused is guilty of the act charged, and that it constitutes an extraditable crime, cannot be reviewed on the weight of the evidence, and is final for the purposes of the preliminary examination, unless palpably erroneous in law." (Emphasis supplied). Ornelas v. Ruiz, 1896, 161 U.S. 502, 508-509, 16 S.Ct. 689, 691, 40 L.Ed. 787.

In other words, if after examination of the proceedings before the Commissioner this court is satisfied:

(1) that the Commissioner was duly authorized to issue the warrant for relator's arrest and conduct a hearing pursuant to Section 3184,

(2) that the Commissioner had jurisdiction over the person of the relator,

(3) that the extradition to the demanding nation was requested pursuant to a treaty of extradition then in force between the demanding nation and the United States,

(4) that the offenses of which the relator was charged were within the terms of such a treaty and not excluded from its operation by any exceptions expressed therein,

(5) that there was competent, legal evidence of the criminality of the relator presented to the Commissioner on which to base his decision to commit relator, and

(6) that the Commissioner committed no error of law prejudicial to the rights of the relator,

then the petition for a writ of habeas corpus must be dismissed.

There is no question here as to the authority of the Commissioner, or as to the fact of jurisdiction over the person. However, as we understand relator's position here, serious questions arise under the third, fourth, fifth, and sixth conditions enumerated above. The alleged illegality of the detention of relator is posited on a number of premises:

(1) That no valid treaty exists between the United States of America and the Republic of Italy because the extradition convention of 1868 was abrogated by World War II;

(2) Alternatively, that at the time the offenses were committed, in 1945 and 1946, the convention of 1868 was suspended and cannot be retroactively applied to a war period;

(3) That the relator was convicted in absentia and sentenced to two prison terms, and thus will be extradited directly into prison without a trial; this is said to be contrary to the intended purpose of the 1868 convention and a denial of due process of law;

(4) That the sentence imposed upon relator for one of the convictions by the Italian court pertains indeterminably to both extraditable and non-extraditable offenses, and to allow his extradition under these circumstances would violate the terms of the treaty or convention;

(5) That the offenses of relator are non-extraditable under the convention because they are "political" in character and thus exempted by Article III of that agreement, and

(6) That the refusal of the United States Commissioner to order the subpoena of certain witnesses for the relator, as provided for in 18 U.S.C. § 3191, was substantial error, a denial of due process, and infringed the treaty of 1868.

Before proceeding to a discussion of those matters which are controverted by the parties, we shall set forth those matters as to which there appears to be no controversy as we understand the record and arguments presented to us.

Relator, Vincenzo Gallina, was born in New York, N. Y. on March 27, 1927 and is, prima facie at least, a citizen of the United States by birth. When he was three years old, his...

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