Spatola v. U.S., 670

• Decision Date: 19 February 1991
• Docket Number: No. 670,D,670
• Citation: 925 F.2d 615,5 Bankr.Ct.Dec. 973
• Parties: Rosario SPATOLA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 90-2327.
• Court: U.S. Court of Appeals — Second Circuit

Page 615

925 F.2d 615

Rosario SPATOLA, Petitioner-Appellant, v.UNITED STATES of America, Respondent-Appellee.

No. 670, Docket 90-2327.

United States Court of Appeals Second Circuit.

Argued Nov. 28, 1990.

Decided Feb. 19, 1991.

Edward S. Panzer, New York City(Lionel R. Saporta, Elan Gerstmann, New York City, of counsel), for petitioner-appellant.

Eric Friedberg, Asst. U.S. Atty., Brooklyn (Andrew J. Maloney, U.S. Atty., E.D.N.Y., David C. James, Asst. U.S. Atty., of counsel), for respondent-appellee.

Before ALTIMARI and MAHONEY, Circuit Judges, and GLASSER, District Judge.^*

ALTIMARI, Circuit Judge:

Petitioner-appellantRosario Spatola appeals from a judgment, entered in the United States District Court for the Eastern District of New York(John R. Bartels, Judge), denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241.Spatola's petition for habeas corpus relief challenged United States Magistrate John L. Caden's order certifying the Republic of Italy's request to extradite him pursuant to an extradition treaty between the United States and Italy.See Treaty on Extradition Between the Government of the United States of America and the Government of the Republic of Italy, Oct. 13, 1983(the "Treaty"), --- U.S.T. ---, T.I.A.S.No. 10837, reprinted in24 I.L.M. 1525.

In June 1989, the Republic of Italy requested Spatola's extradition to stand trial on a bribery charge and to serve the remainder of a sentence imposed for prior convictions.After conducting a hearing, Magistrate Caden certified Italy's request to extradite Spatola to complete his term of incarceration for two of the three crimes of which he had been convicted and denied its request to extradite him in order to try him on the bribery charge.The magistrate found that there was probable cause to believe that Spatola committed the crimes for which he had been sentenced and that the conduct underlying two of these offenses satisfied the "dual criminality" requirement of the Treaty.See Treaty, Art. II.

Spatola then filed a petition for a writ of habeas corpus in the district court, challenging the magistrate's order.In a well-reasoned opinion, Judge Bartels rejected Spatola's arguments and accordingly denied his petition for habeas corpus relief.Spatola now appeals from the district court's decision.

For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

In 1983, after a trial in an Italian court at which Spatola was present and represented by counsel, Spatola was convicted of association to commit crimes, association to commit crimes aimed at drug trafficking, and failure to surrender foreign currency.Based on these convictions ("the 1983 convictions"), Spatola was sentenced to thirteen years in prison--with two years of this sentence to be "remitted"--and was fined eighty million lire.Spatola served a portion of this sentence and was then released pending appeal.Approximately two months after his release, he was convicted of bribing a public official, Giuseppe Vetere, pursuant to Italian Penal Code Article 319.

On December 20, 1984, the Court of Appeal of Palermo affirmed Spatola's 1983 convictions.However, the court reduced his sentence from thirteen years to ten years with another two years to be remitted.Because Spatola lost his appeal, he was required to return to prison.Instead of complying with the court's judgment, Spatola fled to the United States in order to avoid imprisonment.Nearly one year later, the sentence imposed by the Court of Appeal of Palermo became final.

Uncertain of Spatola's whereabouts, the District Attorney General at Palermo, on March 12, 1986, issued a warrant for Spatola's arrest, seeking his return to serve the remainder of his sentence.Subsequently, on May 21, 1987, the Investigative Magistrate at the Tribunal of Palermo issued a warrant for Spatola's arrest in connection with a charge leveled against him for bribing a public official, Vito Ciancimino.

Approximately six months after the second warrant was issued, the Court of Appeal of Palermo reversed Spatola's conviction for bribing Giuseppe Vetere.The court held that Spatola should have been charged under Article 318 of the Penal Code instead of under Article 319.Consequently, because the statute of limitations had expired on the Article 318 charge, the court dismissed the Vetere bribery charge.

Over one year later, Spatola was discovered in the United States and was arrested on May 8, 1989, pursuant to the warrants issued by the Republic of Italy.Shortly thereafter, Italy made a formal request for Spatola's extradition.

On August 24, 1989, Magistrate Caden of the Eastern District of New York held an extradition hearing pursuant to 18 U.S.C. Sec. 3184.The magistrate granted Italy's request to extradite Spatola to serve the remainder of his sentence for each of the 1983 convictions other than the foreign currency conviction.However, the court denied Italy's request for extradition to try Spatola on the Ciancimino bribery charge.

Spatola then brought this petition for a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2241, challenging the magistrate's extradition order.The government did not contest the magistrate's determination that Spatola could not be extradited on either the foreign currency conviction or the bribery charge.A stay of extradition pending the disposition of the petition was entered in the United States District Court for the Eastern District of New York.Subsequently, the district court, determining that there was probable cause to believe that Spatola committed offenses in Italy which are clearly illegal in the United States, dismissed Spatola's petition.This appeal followed.

DISCUSSION

An order certifying a request for extradition cannot be reviewed on direct appeal because "[e]xtradition orders do not ... constitute 'final decisions of a district court,' appealable as of right under 28 U.S.C. Sec. 1291."Jhirad v. Ferrandina, 536 F.2d 478, 482(2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98(1976).Instead, a party who is to be extradited--a relator--may obtain limited review of an extradition order by seeking a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241.In this context, "habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offen[s]e charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty."Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970(1925)(citations omitted);seeAhmad v. Wigen, 910 F.2d 1063, 1064-5(2d Cir.1990);Messina v. United States, 728 F.2d 77, 79(2d Cir.1984);Simmons v. Braun, 627 F.2d 635, 637(2d Cir.1980).Therefore, the district court's review of Magistrate Caden's order was narrow in scope.Because we find that the district court did not err in reviewing the order of extradition, we affirm its decision to deny petitioner habeas corpus relief.

Before certifying an extradition order, a judicial officer must conduct a hearing to determine whether there exists "evidence sufficient to sustain the charge under the provisions of the proper treaty."18 U.S.C. Sec. 3184.In essence, the court must analyze if there is probable cause to believe that the individual committed acts alleged in the extradition request.SeeCaltagirone v. Grant, 629 F.2d 739, 745-46(2d Cir.1980);Restatement (Third) of the Foreign Relations Law of the United StatesSec. 476 comment b (1987)("Restatement 3d").Indeed, a judicial officer need not "predict that [a foreign]court would convict [the relator],"Ahmad v. Wigen, 910 F.2d at 1066, it need only find evidence to "support a reasonable belief that [the relator] was guilty of the crime charged."Id.

In his petition for habeas corpus relief, Spatola argued that the magistrate erred by premising his probable cause analysis on a certified copy of the Italian appellate opinion affirming the 1983 convictions, rather than making an independent assessment of the facts surrounding these offenses.The district court rejected this argument,...