Re Extradition of Locatelli

• Date: 06 March 1979
• Court: U.S. District Court — Southern District of New York

United States District Court, Southern District, New York.

(Duffy, District Judge)

In the Matter of the Extradition of Locatelli

Extradition Political offence Application Allegation that requesting State motivated by political considerations in seeking extradition Whether a matter for Executive or courts Definition of political offence Motive of requesting State in seeking extradition Whether relevant in determining whether offence political

Extradition Procedure Evidence Extent to which accused is entitled to challenge evidence in extradition proceedings The law of the United States

Summary: The facts:The Government of Switzerland requested the extradition of the accused for the commission in Switzerland of business-related crimes. In proceedings brought by the United States on behalf of the Government of Switzerland the accused contended:

(i) that the underlying motive for the request was political and not criminal in nature. The criminal charges were brought to punish him for his investigative documentaries which had been highly critical of the Swiss Government.

(ii) that this explanation removed him from the scope of the Extradition Treaty between the United States and Switzerland, because the Treaty only permitted extradition for criminal acts.

Held:The certificate of extradition would be issued.

(1) The Government of Switzerland had established that the criminal charges were extraditable offences under the terms of the Extradition Treaty (pp. 4267).

(2) In determining the issue of probable cause the Court could only receive evidence from the accused which explained the proof submitted by the requesting State. There was no right to present evidence which contradicted this proof or posed questions of credibility. The evidence in the present hearing had clearly established probable cause (pp. 4278).

(3) In determining the issue of political offence the Court would refer to the circumstances in existence when the alleged act was committed, and not to the motives underlying subsequent prosecution. Since the acts were not political at the time of their commission, the political offence exception could not be applied (pp. 4289).

(4) The Court did not have jurisdiction to consider the motives of the requesting State, The Court would defer to the Secretary of State for determination of that issue (p. 429).

The text of the judgment of the Court commences on the following page.

The Government of Switzerland has formally demanded the extradition of Sergio Locatelli in order that he may stand trial there for a series of business-related crimes allegedly committed by him between 1971 and 1976. The instant proceedings1 were begun by the United States on behalf of the Swiss Government pursuant to 18 U.S.C. 3184.2

On February 20, 1979 an extradition hearing was held before me, as required under 3184, to determine whether the evidence presented by the Swiss Government to sustain the charged offenses under the applicable treaty of extradition was sufficient to mandate issuance of a certificate of extradition. Based upon the documents submitted and the arguments presented, including the unsworn testimony of Sergio Locatelli, I find that all the terms of the treaty have been met and there is more than sufficient evidence, to which no viable explanation was offered to warrant issuance of the certificate.

Sergio Locatelli is apparently a notorious figure in the world of documentary films. He claimed that he has, during his career, produced a number of documentaries dealing with the plight of the migrant worker. In this regard, he allegedly has critically focused much of his attention upon the poor treatment of Italian migrant workers in his native Switzerland.

The specific charges lodged by the Swiss Government against Locatelli may be separated into three categories:

(1) Fraud and forgery involving two business loans to which one Alfred de Schulthess was guarantor;

(2) Fraud perpetrated against two Swiss banks in the unauthorized transfer of funds; and

(3) Fraud involving the use of an American Express Company credit card without intending to pay the charges incurred.

Alfred de Schulthess:

Concerning his dealings with de Schulthess, Locatelli is charged with having fraudulently induced de Schulthess by the use of certain forged documents to guarantee two loans which Locatelli said were to be used to finance commissioned television films. The films, however, were apparently never commissioned and upon Locatelli's default on the loans, de Schulthess was left to make good for the monies.

The conduct alleged is in violation of Articles 148 and 251 of the Swiss Penal Code.3

Bank Frauds:

Here Locatelli is charged with attempted fraud, in violation of Articles 21, 224 and 148 of the Swiss Penal Code, against two Swiss banks. The fraud against the first bank consisted of Locatelli's impersonating a bank official and directing the transfer of substantial funds to the account of Mr. Della Valle. Apparently Locatelli owed Della Valle a substantial amount of money and rather than pay it from his own funds he, disguised as a bank official, authorized repayment with the bank's funds.

The second incident involved a similar attempt by Locatelli to defraud a bank. Here, however, Locatelli, again impersonating a bank official, authorized the withdrawal of substantial funds by one Emilio Bo. When Mr. Bo attempted to withdraw the funds, he was arrested by Swiss police and he later confessed that it was Locatelli who set the scheme up.

American Express:

Here, Locatelli is charged with fraud under Article 148 of the Swiss Penal Code in that he intentionally used his American Express card on repeated occasions in Italy without ever paying the monthly charges due. Since Locatelli is a Swiss citizen, he is, under Article 6 of the Swiss Penal Code, punishable in Switzerland for this offense.5

The applicable treaty is entitled Treaty of Extradition of May 14, 1900 between Switzerland and the United States. 31 STAT. 1928. The pertinent Articles provide:

ARTICLE I

The Government of the United States of America and the Swiss Federal Council

bind themselves mutually to surrender such persons as, being charged with or convicted of any of the crimes or offenses enumerated hereinafter in Article II, committed in the

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