Stowe v. Devoy, 273

• Decision Date: 17 November 1978
• Docket Number: D,No. 273,273
• Parties: Roger M. STOWE, Petitioner-Appellant, v. Frank E. DEVOY, United States Marshal, Respondent-Appellee. ocket 78-2085.
• Court: U.S. Court of Appeals — Second Circuit

Page 336

588 F.2d 336

Roger M. STOWE, Petitioner-Appellant, v. Frank E. DEVOY, United States Marshal, Respondent-Appellee.

No. 273, Docket 78-2085.

United States Court of Appeals Second Circuit.

Argued Sept. 22, 1978.

Decided Nov. 17, 1978.

Gerald B. Lefcourt, New York City, for petitioner-appellant.

Herbert G. Johnson, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y. and Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for respondent-appellee.

Before MOORE and VAN GRAAFEILAND, Circuit Judges, and KNAPP, ^* District Judge.

MOORE, Circuit Judge:

Roger M. Stowe ("Stowe"), appeals from a final judgment of Judge Jack B. Weinstein for the Eastern District of New York, dismissing his petition for a writ of habeas corpus seeking his release from the control of the appellee United States Marshal and barring his extradition to Canada. Stowe is sought for extradition by the Canadian Government on charges of both conspiracy to import and importation of five and one-half pounds of hashish. Stowe contends here that (1) his extradition is barred under a "double jeopardy" provision of the applicable treaty between the United States and Canada; ¹ (2) evidence derived from wiretaps made by Canadian authorities should have been excluded at the extradition hearing below; and (3) the extraditing magistrate abused his discretion in ordering extradition. For reasons set forth below, we affirm.

I.

During the period from January 8, 1975 to May 14, 1976, Canadian law enforcement officials intercepted by means of a wiretap in Canada, telephone conversations of Francois Joseph Alario made from and to his residence in that country. Stowe was in New York during this period. These conversations revealed a conspiracy (including Stowe, Alario, Stanley, Wesolowsky and others) to smuggle hashish from the United States into Canada. On April 13, 1976, surveillance of Wesolowsky was undertaken (presumably by officers of the New York State Police and agents of the United States Drug Enforcement Administration ("DEA")) during a trip by Wesolowsky from Montreal to Albany, New York, where he was observed receiving a package from Stowe. Upon Wesolowsky's return to Canada he was arrested by members of the Montreal Drug Squad of the Royal Canadian Mounted Police. A search incident to that arrest revealed a package containing approximately five pounds of hashish in a rear wheel well of Wesolowsky's vehicle. Three fingerprints found on bags and on pages of newspaper used to wrap the subject hashish were subsequently identified as Stowe's.

On April 14, 1976, upon Stowe's entering Canada from the United States, he was arrested and charged in the Superior Court for the District of Montreal with conspiracy to import and importation of 51/2 pounds of hashish into Canada, in violation of Section 423(1)(d) of the Criminal Code of Canada and Section 5(1) of the Narcotic Control Act of Canada, respectively. ² Stowe was released on bail and granted permission to return to New York on express condition that he return to Canada for trial on January 6, 1977. He failed to do so.

Stowe was subsequently indicted by the State of New York for felonious possession and sale of 100 pounds of hashish, an offense alleged to have occurred while he was on bail pending trial of the Canadian charges. ³ On March 4, 1977, pursuant to a plea bargain, Stowe pleaded guilty to criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor, N.Y. Penal Law § 220.05 (McKinney Supp.1977). On December 15, 1977, Stowe was sentenced on that plea by the Honorable Michael J. Dontzin, New York Supreme Court Justice, New York County, to a fine of $1,000, without imposition of a jail sentence or any period of probation.

On October 27, 1977, United States Magistrate A. Simon Chrein signed and issued a warrant for Stowe's arrest upon the complaint of the United States Attorney for the Eastern District of New York. The complaint, brought under 18 U.S.C. § 3184, alleged that the Canadian government had duly made requisition for Stowe's extradition under the Treaty. ⁴ Stowe was brought before Magistrate Chrein on November 2, 1977, at which time he was released on bail. At the request of defense counsel, Justice Dontzin sent a letter to Magistrate Chrein in which he stated that he had "considered" the Canadian charges in sentencing Stowe. ⁵ On January 30, 1978, Magistrate Chrein issued a written decision and order certifying Stowe as extraditable.

On March 23, 1978, Stowe filed the habeas corpus petition which is the subject of the instant appeal. On July 10, 1978, Judge Jack B. Weinstein issued a written order denying the petition but continuing bail and staying Stowe's surrender in order for Stowe to have an opportunity to appeal. On August 15, 1978, this court granted Stowe's motion for a stay of surrender pending appeal and then set down this appeal for expedited argument.

II.

The primary issue raised by this appeal is whether the "double jeopardy" clause of the Treaty, Article 4(1)(i), bars Stowe's extradition. That clause prohibits extradition when the person whose surrender is sought " has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested". In the instant case, the offense for which Stowe alleges he was "tried and discharged or punished" as part of his plea bargain before Justice Dontzin was not the same " offense for which extradition is requested". See Treaty § 4(1)(i); In re Ryan, 360 F.Supp. 270, 275 (E.D.N.Y.), Aff'd mem., 478 F.2d 1397 (2d Cir. 1973). The charges pending in Canada are importation of hashish and conspiracy to import hashish; the charges against Stowe in New York State were possession and sale of hashish (later reduced to possession of a controlled substance in the seventh degree). More importantly, the charges in the state case concerned 100 pounds of hashish which were completely separate from and unrelated to the 51/2 pounds of hashish which were the subject of the Canadian arrest. ⁶ However, relying upon this court's recent decision in Galanis v. Pallanck,568 F.2d 234 (2d Cir. 1977), appellant claims that when Justice Dontzin sentenced him pursuant to his plea bargain in his subsequent prosecution in New York State Supreme Court, the Canadian charges were taken into "consideration", thereby satisfying the requirements of Article 4(1)(i).

The difficulty with defendant's position is that the Galanis decision has no application to the matter now before us. In that case, we did not purport to construe the "double jeopardy clause" in Article 4(1)(i). On the contrary, it was common ground between the parties that the clause would if applicable at all prevent the extradition there being attempted. The only question litigated was whether the present Treaty or its predecessor, Article X of the Webster-Ashburton Treaty of 1842 (which did not contain the "double jeopardy" language of Article 4(1)(i)) governed. ⁷ In holding that the present Treaty controlled, the court found it unnecessary to interpret the double jeopardy provision or to determine what persons fall within the ambit of its protection.

As we have noted, the protection of Article 4(1)(i) extends only to those persons who have been previously "tried and discharged or punished" for the extraditing offense. Defendant argues that the Article sets forth two alternative requirements; and that extradition is barred if the fugitive has been Either "tried and discharged" Or if he has been "punished". Thus, he claims that the Treaty elevates the concept of prior punishment to a level of great importance. However, as probation reports customarily list all of defendant's past indiscretions, there would almost always be a factual basis for a contention that the defendant had been "punished" for the extraditable offense. To read the provision so broadly does violence not only to its language but to the reason and intent of the Treaty by giving any court the power to subvert the extradition agreement. The Article does not apply unless two distinct requirements are satisfied: (1) the fugitive must have been "tried" for the offense in question, And (2) the trial must have resulted in discharge or punishment. In other words, "discharged" and "punished" are corollaries, each of which modifies "tried".

This interpretation is consistent with the purpose of Article 4(1)(i). The "double jeopardy" provision of extradition treaties is intended to "prevent extradition of Americans actually in the process of trial or who have been tried". Statement by Mrs. Hauser before the Special Subcommittee on the Genocide Convention of the Senate Committee on Foreign Relations (April 24, 1970), Reprinted in 63 Dep't State Bull. 9 (July 9, 1970).

Applying these considerations to the instant case, the state judge's "consideration" of charges not before the court did not fulfill the necessary requirements for barring extradition under the Article. To activate that provision the charges upon which a fugitive has been "punished" in the United States not only must cover the same acts as those which are the subject of the extradition request but must also have been the subject of formal charges (upon which the defendant was "tried") before the "punishing" court. As there can be no contention that the defendant here was "tried" in any New York court for the extraditable offense, his claim must fail.

III.

Appellant also claims that the admission of evidence obtained in Canada tainted his extradition hearing. Stowe asserts that had the interceptions of telephone conversations, made in Canada by Canadian officials and admittedly lawful under Canadian law, ⁸ occurred in the United States or been performed by United States officials, such interceptions would have violated the Fourth Amendment and Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510 Et seq. ⁹ He fu...