Matter of Extradition of Kulekowskis
| Decision Date | 28 March 1995 |
| Docket Number | No. 94 M 75.,94 M 75. |
| Citation | 881 F. Supp. 1126 |
| Parties | In the Matter of the EXTRADITION OF Thomas KULEKOWSKIS, Anthony J. Lobue, Anthony De Silva, Albert De Silva and Judith Dawn Schon. |
| Court | U.S. District Court — Northern District of Illinois |
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Joel Bertocchi, Asst. U.S. Atty., Chicago, IL, for plaintiff.
Lawrence E. Morrisey, William A. Barnett; Joseph V. Roddy; and Thomas Touhy, Bledsoe & Touhy, Chicago, IL, for defendants.
ORDER AND CERTIFICATION OF EXTRADITABILITY
Before the court are the COMPLAINT FOR EXTRADITION (18 U.S.C. § 3184) filed by the United States' Attorney for the Northern District of Illinois on behalf of the Government of Canada seeking the extradition of respondents Thomas Kulekowskis, Anthony J. LoBue, Anthony DeSilva ("Anthony"), Albert DeSilva and Judith Schon, and RESPONDENTS' MOTION TO DISMISS THE COMPLAINT FOR EXTRADITION. The Canadian government accused respondents of kidnapping Tammy Lynn Wright ("Tammy"), Anthony's wife, from her home in Winnipeg, Manitoba, Canada, on February 3, 1992. The respondents have been released on bail pending a ruling on the petition.
As will be discussed in detail below, extradition requires only that the extraditing country show that the person before the court is the accused person, that the offense with which the accused is charged is an extraditable offense under the applicable treaty, and that there is probable cause to believe the accused committed the offense.
The respondents do not deny that they are the persons sought in the Canadian government's request for extradition, nor do they deny removing Tammy from her home and bringing her from Canada into the United States. They contend that because Anthony was Tammy's legal guardian their conduct was either lawful or not extraditable; alternatively, they argue that their reasonable belief that they had legal authority to transport Tammy should bar extradition.
On May 27, 1994, a hearing was held before the undersigned, at which the parties argued their positions. Neither party sought to introduce witness testimony, although respondents' expert on international law and foreign relations, Patrick M. McFadden, was questioned concerning his affidavit. Instead, the parties introduced into evidence extensive exhibits consisting of affidavits, transcripts of court proceedings, transcripts of telephone calls, court orders, copies of treaties, and other relevant documents.1
On August 15, 1994, the record was closed to the introduction of further evidence. All parties filed extensive post-hearing briefs, and the Fraternal Order of Police also filed a brief amicus curiae. The matter is ready for decision. Jurisdiction of the Magistrate Judge over the subject matter of this case and the persons of the defendants is not contested.
The evidence before the court yields the following account. Tammy and Anthony were married in 1986. In December 1987, they were involved in an automobile accident that left Tammy a quadriplegic with serious and considerable brain damage. Anthony was appointed guardian of Tammy's estate and person by order of the Circuit Court of Cook County, Illinois dated May 24, 1988. (Resp.Exh. 13).
At the time of the alleged kidnapping, Tammy was no longer living with Anthony, but had been living in Winnipeg with her mother, Christina Wright. According to Anthony, she was living with her mother rather than with him because caring for Tammy had exhausted his financial resources. In the summer of 1989, Tammy and her mother went to live in a house in Winnipeg, owned jointly by Anthony and Tammy. They did so to take advantage of the fact that, as a Canadian citizen, Tammy would be eligible for government-provided health care in Canada. (Affidavit of Anthony DeSilva, Resp. Exh. 33.)
It was in June 1988, that Anthony, on his own behalf and as Tammy's guardian, filed a personal injury lawsuit in the Circuit Court of Cook County, in Chicago, against the driver and owner of the other vehicle involved in the accident that crippled Tammy. By reason of this lawsuit it became necessary for Tammy to undergo a medical examination as part of discovery proceedings in that suit.
On January 31, 1992, Anthony's lawyer, Timothy J. Touhy, appeared before Judge James W. Kennedy of the Probate Division of the Circuit Court of Cook County seeking an order authorizing Anthony to bring Tammy to Chicago for examination. It appears from Touhy's colloquy with the court that Anthony was afraid that Tammy's parents would be named her guardians in a Canadian proceeding and that Anthony would thus lose control of her care. Anthony was fearful that Tammy's father, Ernest Wright, would misuse and misappropriate the monies to which Tammy was entitled for her injury and care. (Pet.Supp.Exh. 1, pp. 4, 6; Resp.Exhs. 29 and 33). If he were appointed guardian of Tammy, Anthony intended to bring Tammy back to Chicago to live and Tammy would live on $20,000 in the guardianship account until settlement of the litigation provided a source of money for her care. (Transcript of Proceedings of January 31, 1992, Pet.Supp. Exh. 1).
Judge Kennedy pointed out to Mr. Touhy that Anthony did not need an order to bring Tammy to Chicago, but Touhy asked him to enter an order anyway "just in case he Anthony is stopped." Id. Commenting that there was "not too much I can do, if anything, in Canada," id., Judge Kennedy entered an order authorizing Anthony "to take custody of the person of Tammy DeSilva, wherever she may be found, for the purpose of presenting her to a physician or medical care provider for evaluation, treatment or assessment," and enjoining third persons from interfering. (Resp.Exh. 20).
The following day, February 1, 1992, an anonymous caller telephoned the 911 emergency telephone line in Winnipeg. The telephone conversation was recorded and transcribed. (Pet.Supp.Exh. 3).2 The caller identified himself as an American lawyer who wanted to ask about procedures to be followed in bringing the Canadian wife of an American citizen to the United States for treatment.3 Although he first stated that the woman was in a coma, the caller later corrected himself and said that she was brain-damaged and could not communicate. He said the husband was the wife's guardian, and that he had a court order permitting him to take her to the United States for treatment. He wanted to know whether he had to submit a copy of the order to the local police or what formalities were required.
The 911 operator connected the caller with Duty Inspector Donald MacDiarmid of the Winnipeg Police, and the caller explained his situation as follows:
Id. at 6. The caller then pressed him, asking what would happen if the mother asked the police to arrest the husband for taking her daughter. MacDiarmid indicated that he thought the mother would not have the right to block it. Id. at 7. There then appears to be some confusion, as MacDiarmid stated that the only way the police could determine whether there was a court order in Canada would be to ask the Court of Queen's Bench. The caller assured him that "there's nothing pending up there," then asked him hypothetically whether, if someone were to call and say that "so and so is moving my daughter or my sister and so and so is the husband, would you consider that to be a Police matter?" MacDiarmid said that he would not. Id.
Showing some anxiety and uncertainty, the caller continued the conversation, explaining that he was going "through all this preliminary rigmarole" to avoid any delay in transporting the woman. MacDiarmid asked to whom the caller had spoken, and the caller told him he had spoken to "the Consulate," who referred him to "the R.C.M.P. Royal Canadian Mounted Police" who had referred him to the Winnipeg police, adding that "apparently no lawyer can give me any advice on this." Id. at 8. MacDiarmid, perhaps now realizing that the matter might be more complicated than he had thought, said that "we the police would go to what we call our Crown Attorney's Office and we would speak with the Senior Crown attorney who is Bruce Miller and he would be able to give us advice on where we stand on that regard." Id. at 8-9. MacDiarmid then repeated his understanding that if what was proposed were to be done the police would not become involved "unless the family went to Court and obtained a Court order." Id. at 9.
The caller then asked MacDiarmid's name, and asked if he would be the duty inspector on Monday. MacDiarmid said that ...
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