Matter of Sindona

• Decision Date: 03 May 1984
• Docket Number: No. 82-2869M.,82-2869M.
• Citation: 584 F. Supp. 1437
• Parties: In the Matter of the Extradition of Michele SINDONA, William J. Arico, a/k/a "Robert McGovern" and Robert Venetucci.
• Court: U.S. District Court — Eastern District of New York

584 F. Supp. 1437

In the Matter of the Extradition of Michele SINDONA, William J. Arico, a/k/a "Robert McGovern" and Robert Venetucci.

No. 82-2869M.

United States District Court, E.D. New York.

May 3, 1984.

COPYRIGHT MATERIAL OMITTED

Asst. U.S. Atty. Reena Raggi, E.D.N.Y., Brooklyn, N.Y., for the U.S.

Robert J. Costello, Phelan & Costello, New York City, for Sindona.

Paul A. Goldberger, Goldberger, Feldman & Dubin, New York City, for Venetucci.

MEMORANDUM AND ORDER

GLASSER, District Judge:

The Republic of Italy has applied for the extradition from the United States to Italy of Michele Sindona, William J. Arico, a/k/a "Robert McGovern" and Robert Venetucci. William J. Arico died on February 19, 1984, while attempting to escape from the Metropolitan Correction Center where he was detained while this proceeding was pending and an order of dismissal as to him was entered on February 21, 1984.

Michele Sindona has moved pursuant to 18 U.S.C. § 3184 for an order dismissing the complaint filed as to him on December 15, 1983 for the reason that the Court did not lawfully obtain jurisdiction over him.

Robert Venetucci has moved pursuant to 28 U.S.C. § 144 for an order of recusal and for an order dismissing the complaint against him for the reason that the requirement of probable cause has not been satisfied.

I. Venetucci's Motion for Recusal

The basis of Venetucci's motion that I recuse myself is that in an order dated October 11, 1983, I ruled on an extradition request made with regard to Charles Arico and Rocco Messina by the Republic of Italy, and that I could not, therefore, render a fair and impartial judgment in this proceeding concerning him. It is also claimed that in the prior proceeding I expressed my belief in an "existing conspiracy" and in a hearing in this proceeding on January 18, 1984, I called to the attention of Venetucci's counsel "numerous paragraphs from the complaint which would support the Court's original finding of a conspiracy" (Par. 9 of Affidavit of Venetucci's counsel, Paul A. Goldberger, submitted in support of the motion). Finally, in paragraph numbered 10 of the foregoing affidavit, counsel states that "Since this Court has already made up its mind about the existence of a conspiracy in which Mr. Venetucci is also alleged to have been a member, it is impossible for the Court to make the requisite independent fact-finding determination of probable cause."

The statute upon which this motion is predicated, 28 U.S.C. § 144, provides as follows:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists .... (emphasis added)

The "bias or prejudice" to which the affidavit must be addressed is clearly the personal bias or prejudice referred to in the first paragraph of § 144.

Mindful of footnote 13 on page 582 of United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 1709, 16 L.Ed.2d 778 (1966), the question that arises is whether I have the jurisdiction to entertain and decide this motion. That footnote reads:

13. Judge Wyzanski referred the question of his disqualification to Chief Judge Woodbury of the Court of Appeals for the First Circuit who after hearing oral argument held that no case of bias and prejudice had been made out under § 144.

I have been unable to find a legal requirement that such a referral be made. On the contrary, the overwhelming view expressed in the cases which have addressed the question is that not only do I have the jurisdiction, I have the duty to pass upon the sufficiency of the affidavit as a matter of law. See, e.g., Garfield v. Palmieri, 193 F.Supp. 582 (E.D.N.Y.1960), aff'd 290 F.2d 821 (2d Cir.), cert. denied, 368 U.S. 827, 82 S.Ct. 46, 7 L.Ed.2d 30 (1961); United States v. Bell, 351 F.2d 868, 878 (6th Cir.), cert. denied, 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210 (1966).

I now turn to the sufficiency of the affidavit as a matter of law. The portions of that affidavit which are relevant to the question of sufficiency have already been referred to. I am moved to observe, preliminarily, that in my prior order of October 11, 1983, I did find that there was "probable cause to believe that Messina and Arico were members of an existing conspiracy and that the statements were made during the course of and in furtherance of that conspiracy ...." That finding has since been affirmed by the Court of Appeals for the Second Circuit on February 7, 1984 (Docket Nos. 83-2336, 83-2338). The name of Robert Venetucci was not known to me until November 1, 1983, when I signed a warrant for his arrest. To suggest, therefore, that when I issued my order of October 11, 1983 I made a determination regarding Robert Venetucci is specious.

As to assertions in the affidavit that the statements I made during the course of the proceeding on January 18, 1984 suggest that I had already decided that Venetucci was a member of an existing conspiracy, those assertions are not supported by the transcript nor are they true in fact.

The claim that my recusal is necessary, or even appropriate, because I have decided the question of probable cause in a related extradition proceeding similarly lacks merit. The controlling principle as appears in United States v. Grinnell Corp., supra, 384 U.S. at 583, 86 S.Ct. at 1710 is as follows:

The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481.

See also In re International Business Machines Corp., 618 F.2d 923 (2d Cir.1980); King v. United States, 576 F.2d 432 (2d Cir.), cert. denied, 439 U.S. 850, 99 S.Ct. 155, 58 L.Ed.2d 154 (1978) and the cases in virtually every circuit collected in Shank v. American Motors Corp., 575 F.Supp. 125, 129 (E.D.Pa.1983), Phillips v. Joint Legislative Comm., 637 F.2d 1014 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982) precisely addresses Venetucci's assertion here, in observing at p. 1020 that: "A motion for disqualification ordinarily may not be predicated on a judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench." I would only add that there has been no demonstration that I have a tendency to rule any particular way or that I have a particular judicial leaning or attitude.

There being no assertion of personal bias or prejudice either against Mr. Venetucci or in favor of any adverse party or of any bias or prejudice stemming from an extrajudicial source, the affidavit in support of the motion for an order of recusal is insufficient as a matter of law and the motion is denied.

II. Sindona's Motion to Dismiss for Want of Jurisdiction

This motion is predicated on a reading of 18 U.S.C. § 3184 which provides in pertinent part as follows:

Whenever there is a treaty ... for extradition between the United States and any foreign government, any ... judge of the United States, ... may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty ..., issue his warrant for the apprehension of the person so charged, that he may be brought before such ... judge, ... to the end that the evidence of criminality may be heard and considered .... (emphasis added)

Mr. Sindona contends that he is and has been a federal prisoner, committed to the custody of the Attorney General of the United States for a term of 25 years by Judge Thomas Griesa of the United States District Court for the Southern District of New York following his (Sindona's) conviction in connection with the collapse of the Franklin National Bank. Since August 1982, he has been in the Federal Correction Institution at Otisville, New York. Prior to being sentenced in that criminal proceeding, Mr. Sindona lived and worked in Manhattan. A previous extradition proceeding was held in the United States District Court for the Southern District of New York in which the Republic of Italy's request for his extradition was granted and later affirmed. Sindona v. Grant, 619 F.2d 167 (2d Cir.1980).

On December 7, 1983, Stephen S. Trott, Assistant Attorney General in the Criminal Division of the U.S. Department of Justice, prepared a memorandum to Norman A. Carlson, Director of the Bureau of Prisons, advising him that he will be contacted by Reena Raggi, an Assistant United States Attorney for the Eastern District of New York, to arrange for the transfer of Mr. Sindona to Brooklyn for his initial appearance and for all other appearances as they may be needed incident to these extradition proceedings.¹ Mr. Sindona contends that he should have been brought to the Eastern District of New York by a writ of habeas corpus ad prosequendum; that such a writ was a procedural pre-requisite and that to have been brought to this Court by any other means was unlawful and should have, ex proprio vigore, divested the court of jurisdiction. Sindona relies upon the following cases to support his position: Morgan v. United States, 380 F.2d 686, 699 (9th Cir.1967), cert. denied, 390 U.S. 962, 88 S.Ct. 1064, 19 L.Ed.2d 1160 (1968); Rose v. United States, 365 F.Supp. 841, 843 (N.D.Ill.1973); Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 326 (1961); Lawrence v. Willingham, 373 F.2d 731 (10th Cir.1967); United States v. Schurman...