In re Gambino

Decision Date13 March 2006
Docket NumberNo. M.J.NO. 05-876MBB.,M.J.NO. 05-876MBB.
PartiesIn the Matter of the Extradition of Giovanni GAMBINO
CourtU.S. District Court — District of Massachusetts

John J. Commisso, Kelly, Libby & Hoopes, PC, Boston, MA, for Giovanni Gambino (1), Defendant.

Brian T. Kelly, United States Attorney's Office, Boston, MA, for USA, Plaintiff.

Paul V. Kelly, Kelly, Libby & Hoopes, PC, Boston, MA, for Giovanni Gambino (1), Defendant.

Edward S. Panzer, Esq., New York, NY, for Giovanni Gambino (1), Defendant.

George L. Santangelo, Esq., New York, NY, for Giovanni Gambino (1), Defendant.

Kimberly P. West, United States Attorney's Office, Boston, MA, for USA, Plaintiff.



BOWLER, United States Magistrate Judge.

The United States of America ("the government"), acting on behalf of the Republic of Italy ("Italy"), seeks a certification by this court pursuant to 18 U.S.C. § 3184 ("section 3184") in order for a warrant to issue for the surrender of relator Giovanni Gambino ("the relator") to Italian authorities in accordance with the terms of the Extradition Treaty with Italy, Oct. 13, 1983, U.S.-Italy, 35 U.S.T. 3023, T.I.A.S. No. 10,837 (1983) ("the 1983 Treaty").1 The relator opposes the extradition request.

Having previously pled guilty to conspiracy under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d) ("RICO" or "section 1962(d)"), in the United States District Court for the Southern District of New York, the relator seeks to bar extradition to Italy to face charges of criminal association and illegal trafficking in narcotic and psychotropic substances on the basis of the 1983 Treaty's double jeopardy or non bis in idem clause. The relator further relies on the alleged absence of a charging document in the extradition papers and, alternatively, the absence of probable cause as to one of the charges lodged against him.2


The case began on October 12, 2005, with the filing of a sealed complaint and the issuance of a provisional arrest warrant by this court. Within the required 45 days under the 1983 Treaty, the government filed the formal extradition request.

At the time of arrest, the relator was in custody at the Federal Medical Center in Devens, Massachusetts ("Ft. Devens"), a federal facility for offenders requiring specialized longterm medical care, serving the few days remaining on a 15 year sentence issued by the foregoing court as a result of the guilty plea. At his initial appearance on October 14, 2005, and having been transferred from Ft. Devens to the Massachusetts Correctional Institution in Plymouth, Massachusetts ("MCI Plymouth"), the relator raised concerns about the facility's inability to treat his medical condition.3 In order to obtain additional information to better assess the relator's medical condition, this court adjourned the hearing until Monday October 17, 2005, at which time this court ordered the relator's detention albeit subject to certain provisions to accommodate the relator's health at MCI-Plymouth.4 (Docket Entry # 9). A further hearing took place on Friday October 21, 2005, at which time it became apparent that at least some of the provisions remained unfulfilled. Accordingly, this court urged the government to confer with the Bureau of Prisons in an to attempt to have the relator transferred to Ft. Devens. As a result, the relator was transferred to Ft. Devens over the weekend of October 22, 2004, where he remains to date.

Thereafter, this court held a number of extradition hearings and received additional filings, the most recent filing made by the relator on February 9, 2006. After receiving the February 9, 2006 filing, this court took the matter of the relator's extradition under advisement.

Because the scope and the existence of the charges lodged by the Italian authorities and whether such charges fall within the protection afforded by the 1983 Treaty's non bis in idem clause are at issue, the factual summary begins with a synopsis of the Italian and then the United States proceedings.

I. Italian Proceedings

As identified in the Certificate of Pending Prosecutions or "Certificato Dei Carichi Pendent" issued by the Clerk of the Court of Palermo at the request of the Italian Judicial Authority on January 27, 2006 ("the 2006 carichi pendent"), there are two pending prosecutions against the relator, the first designated as proceeding number 1885/86 and the second designated as proceeding number 002459/90/T ("proceeding number 2459/90"). As also stated therein, the former proceeding involves charges of violations of article 75 of the Italian Criminal Code while the latter proceeding includes a charge of a violation of article 71 of the Italian Criminal Code.

Turning to the former, an arrest warrant issued for the relator and 33 other individuals in proceeding number 1885/86 in November 1988. Resulting from more than two years of investigation on the part of the Italian police, the investigating magistrate of the Court of Palermo charged the relator and 19 other defendants in Count Two with a violation of article 75, a provision that criminalizes conspiracies to violate more than one offense under article 71 and/or other designated narcotics trafficking laws. (Docket Entry # 18, Ex. A). The charged conspiracy took place primarily in Palermo and Torretta5 but also in the United States. Only two of the other 19 defendants in Count Two, Giuseppe Gambino and Lorenzo Mannino,6 were also identified as defendants in racketeering act one of the Ninth Superceding Indictment ("the Indictment") in the United States District Court for the Southern District of New York in United States v. Gambino et al., 88 Cr. 919(PKL) ("the New York case").7

The main goal of the conspiracy was "transporting large quantities of heroin from Torretta" to the United States "often with female body couriers carrying heroin who left Palermo airport pretending to go on vacation" and then "landed in New York, where the heroin was given to recipients." (Docket Entry # 29, Ex. ¶ 6). Article 75 provides that:

Article 75 (Conspiracy)

When three or more persons conspire together for the purpose of committing more than one offence among those foreseen in [the penal laws dealing with narcotics trafficking including article 71]; those who promote, form, organise or finance the conspiracy shall be punished, for this alone, by imprisonment not less than fifteen years and a fine of one hundred million lire up to four hundred million lire.

(Docket Entry # 18, Ex. A).

Count Three is the other count in the arrest warrant that includes the relator and, together with three other defendants, likewise charges a criminal conspiracy under article 75. Of those three other defendants, Giuseppe Gambino is the only defendant also identified in racketeering act one of the New York case as a defendant. Whereas Count Two states that the group "committed crimes related to the traffic of high quantity of drug," Count Three, involving only four defendants, provides that the group "promoted, arranged and organised the criminal association described in [Count Two]." (Docket Entry # 18, Ex. A). Count Two therefore involves 20 conspirators who participated in crimes related to the trafficking of a high quantity of illicit drugs while Count Three identifies those defendants in Count Two who organized and promoted that conspiracy.

Both counts uniformly denote the presence of "aggravating circumstances" because the group consisted of "a criminal association in[sic] more than ten people" and because the group involved "a criminal association whose members used arms." (Docket Entry # 18, Ex. A). Article 75 expressly provides for increased penalties under either circumstance.8

In addition to the charges in counts two and three, the arrest warrant contains 16 pages of facts captioned as "REASONS FOR THE DECISION" (henceforth: "the decision"). The final page orders the arrest of the cited defendants.9 As explained and clarified therein, the criminal association aimed at "drug traffic from Sicily, in particular Torretta, to the [United States]" involving members of the Sicilian and American family known as "Cosa Nostra." The decision characterizes the relator as a member of the American Cosa Nostra and an important heroin runner from Sicily to the United States. (Docket Entry # 18, Ex. A). It also identifies Torretta as one of the relator's preferred heroin distribution channels and that the heroin is mainly handled by members of the Sicilian Cosa Nostra. The decision, which also identifies cocaine as part of the charged drug trafficking, describes how the relator and his brother (a co-defendant in Count One of the New York case) managed front activities in coffee bars and pizza restaurants that were actually utilized to sell off the high quantities of drugs with the support of employees of Sicilian origin.

Notably, after describing Giuseppe Gambino and the relator as belonging to the American Cosa Nostra, the decision distinguishes the American Cosa Nostra as "very different from the Sicilian association, even if they have close relations of cooperation with each other." (Docket Entry # 18, Ex. A). The different defendants charged in the arrest warrant from those charged in the New York case and the different focal points of the illicit activity support the distinction.

The time period of the conspiracy is not entirely clear from the decision although the November 30, 1988 arrest warrant results from "two years of inquiry that began with the seizure of about Kg.6 of heroin at the airport of Palermo." The decision does identify heroin transactions that took place on October 21, 1987, and that one of the defendants contacted a "Greek drug pusher" and attempted to purchase numerous kilos of heroin "at the beginning of 1987." (Docket Entry # 18, Ex. A). Additional drug trafficking among the defendants is...

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2 cases
  • In the Matter of The Extradition of Zhenly Ye Gon
    • United States
    • U.S. District Court — District of Columbia
    • February 9, 2011
    ...Sindona's argument that Article VI(1) confers immunity from extradition.Sindona, 619 F.2d at 179. See also In Re: Extradition of Gambino, 421 F.Supp.2d 283, 311 (D.Mass.2006) (even a “same acts” or “same facts” interpretation in a non bis in idem context does not bar extradition when the It......
  • U.S. v. Castaneda-Castillo
    • United States
    • U.S. District Court — District of Massachusetts
    • August 17, 2010
    ...or other papers are admissible at the hearing if properly authenticated and admissible in the requesting state." In re Gambino, 421 F.Supp.2d 283, 315 (D.Mass.2006) (internal citations and quotation omitted). However, the probable cause requirement is not "toothless," and evidence submitted......

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