Gallina v. Fraser
| Citation | 278 F.2d 77 |
| Decision Date | 05 May 1960 |
| Docket Number | No. 192,Docket 25760.,192 |
| Parties | Vincenzo GALLINA, Relator-Appellant, v. Donald FRASER, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
George A. Athanson, Hartford, Conn., for appellant.
David A. Botwinik, of Fink & Pavia, New York City (Vincent J. Scamporino, Middletown, Conn., on the brief), for appellee.
Before MEDINA and WATERMAN, Circuit Judges, and MADDEN, Judge, U. S. Court of Claims.*
On June 6, 1958, pursuant to a request by the Republic of Italy, the Secretary of State issued a certificate authorizing the arrest of relator Vincenzo Gallina and the institution of extradition proceedings as provided in 18 U.S.C. § 3184. After hearings were held on various days in July, August, and September, 1958, the Commissioner, on September 30, 1958, held that relator was subject to extradition and ordered him taken into custody to await issuance of a warrant by the Secretary of State. On October 2, 1958 relator filed an application for a writ of habeas corpus in the United States District Court for the District of Connecticut. After various procedural occurrences not here in issue, on May 15, 1959 Judge Smith held that the writ would not lie, discharged the show cause order previously issued, and ordered relator retained in custody. Judge Smith's opinion is reported at 177 F.Supp. 856. We affirm his action and adopt his opinion as our own save as it is supplemented herein with respect to one of the contentions raised by relator, contention (3) at 177 F.Supp. 860-861.
After his departure from Italy relator was convicted there in absentia according to established Italian procedure. Relator contended before Judge Smith and contends before us that if he is extradited Italy will imprison him without retrial and without granting him an opportunity to face his accusers or to conduct any defense. We are informed that the Secretary of State as a condition of surrender of persons demanded by the Italian Government, has required in similar cases that there be a retrial of persons who have been convicted in absentia. But, leaving this point to one side, we have discovered no case authorizing a federal court, in a habeas corpus proceeding challenging extradition from the United States to a foreign nation, to inquire into the procedures which await the relator upon extradition. There is nothing in Holmes v. Jennison, 1840, 14 Pet. 540, 39 U.S. 540, 568, 10 L.Ed. 579; Grin v. Shine, 1902, 187 U.S. 181, 184, 23 S.Ct. 98, 47 L.Ed. 130; or in Ex parte La Mantia, D.C.S.D.N.Y.1913, 206 F. 330 and Ex parte Fudera, D.C.S.D.N.Y.1908, 162 F. 591, appeal dismissed, 219 U.S. 589, 31 S.Ct. 470, 55 L.Ed. 348, indicating that the foreign proceedings must conform to American concepts of due process. Holmes v. Jennison dealt with a state's power to comply with the extradition request of a foreign nation. The language relator relies upon in Grin v. Shine refers to the necessity for due process in the extradition proceedings before the United States Commissioner. Language in La Mantia and Fudera to the effect that in a habeas corpus proceeding the federal court will treat a foreign conviction in absentia merely as a criminal charge against the relator is not to be construed as a statement that the federal court may, as a condition for discharging the writ, require retrial in the foreign country. This language, instead, refers to the rule that a foreign conviction in absentia does not preclude the federal court from considering whether sufficient evidence of the relator's criminality has been presented in the extradition proceeding before the United States Commissioner. See United States ex rel. Argento v. Jacobs, D.C.N.D.Ohio 1959, 176 F.Supp. 877. The authority that does exist points clearly to the proposition that the conditions under which a fugitive is to be surrendered to a foreign country are...
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