United States v. Messina, 83 M 1004.

• Citation: 566 F. Supp. 740
• Decision Date: 24 June 1983
• Docket Number: No. 83 M 1004.,83 M 1004.
• Parties: UNITED STATES of America, v. Rocco MESSINA and Charles J. Arico, a/k/a "Charles J. Pido".
• Court: U.S. District Court — Eastern District of New York

566 F. Supp. 740

UNITED STATES of America, v. Rocco MESSINA and Charles J. Arico, a/k/a "Charles J. Pido".

No. 83 M 1004.

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

June 24, 1983.

Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Reena Raggi and Mark Summers, Asst. U.S. Attys., Brooklyn, N.Y., of counsel), for plaintiff United States.

Kenneth A. Reiver, New York City, for defendant Messina.

Freeman, Nooter & Ginsberg, New York City (Louis M. Freeman and Lee A. Ginsberg, New York City, of counsel), for defendant Arico.

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Rocco Messina and Charles Arico are in custody pending formal request for their extradition by the government of Italy. The United States has appealed from a magistrate's order admitting them to bail.

A complaint seeking the provisional arrest of Messina and Charles Arico was sworn out before Magistrate John Caden on May 27, 1983. The complaint stated that they had been charged in Italy with "attempted aggravated extortion and conspiracy to commit the same." Italian authorities were said to possess recordings of two threatening telephone calls made to an Enrico Cuccia, alleged to be one of the closest associates of Giorgio Ambrosoli who was shot dead in Italy on July 12, 1979. William Arico, the stepfather of Charles Arico, traveled to Italy with Rocco Messina in April 1979, three months before Ambrosoli's death. William Arico is said to have admitted to a witness that he was in Italy during this three month period committing contract murders for the well known Michele Sindona, and that Rocco Messina was smuggling guns into Italy from the United States for this purpose.

The voices on the two threatening telephone calls have been identified. A Deputy United States Marshal identified one caller as Charles Arico. A confidential source identified him as one caller and Messina as the other. The complaint stated that the Italian government had officially requested the provisional arrest of Messina and Charles Arico. Magistrate Caden issued the warrants.

Messina and Charles Arico were arrested on June 7, 1983. They appeared before Magistrate Caden, and he admitted each of them to bail of $250,000 cash or surety. On June 10, 1983, the United States applied to this court for an order continuing the detention without bail or, alternatively, staying the bail order until the magistrate could issue a written opinion. The court stayed the order and directed the parties to submit papers by June 14, 1983.

After briefs were submitted, the court requested papers by June 21, 1983, on four additional questions, as follows.

1. Has the government of Italy made a determination that this case is one of urgency? Has the State Department of the United States made such a determination?

2. Assuming that such a determination has been made by one or both of those authorities, is this court bound thereby or must it independently decide whether the requirement of urgency has been satisfied?

3. Assuming that this court must make an independent determination, is this a case of urgency?

4. Assuming that bail applications pending extradition hearings are generally governed by a "special circumstances" test derived from Wright v. Henkel, 190 U.S. 40, 63 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903), does the same test govern applications made after provisional arrest on the basis of urgency and prior to receipt of the formal request for extradition?

Shortly after the supplementary briefs were filed, the government informed the court by letter that it had received from Italian authorities "the documentary evidence necessary" to support a formal request for extradition, to be made within the week. The imminence of such a formal request does not moot the issue of bail. Moreover, until the request is made, Messina and Charles Arico are in custody solely on the basis of the provisional arrests.

In extradition proceedings the presumption is against bail because of the nation's foreign relations interest in successfully producing extradited persons. Accordingly, bail will be granted only under "special circumstances." Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903); Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir.1981). This test applies not only after a finding of extraditability, but also after a request for extradition and prior to the hearing. Wright v. Henkel, supra. At least one circuit court has also applied the "special circumstances" standard after provisional arrest and before formal request, although the opinion does not discuss the import of the latter event. United States v. Williams, 611 F.2d 914 (1st Cir.1979), rev'g 480 F.Supp. 482 (D.Mass. 1979).

There has apparently been a less stringent standard in practice than in theory. See II M. Bassiouni, International Extradition chap. IX § 3 & nn. 7, 9 (collecting cases). One court surveyed "the more contemporary reported cases" and reported that "granting of bail pending completion of the extradition proceedings has been the rule rather than the exception." Beaulieu v. Hartigan, 430 F.Supp. 915, 916 & n. 2 (D.Mass.), rev'd mem., 553 F.2d 92 (1st Cir. 1977).

The mere frequency with which bail has been granted, however, may not indicate any change in the test of Wright v. Henkel. It may be due to lack of strong opposition by the government in particular cases, perhaps after consultation with officials of the requesting governments.

There is some indication, however, that at least in the provisional arrest context, courts have liberalized the test for granting contested bail applications. The State Department is presumably familiar with the wide range of unreported cases in this field. In a diplomatic note of May 20, 1977, it wrote, "In general it is the practice of United States courts to allow persons provisionally arrested to remain at large on bond if there is no evidence that the person is about to flee." 1977 Digest of United States Practice in International Law 156.

On the other hand, a bill passed only by the Senate in 1978 would have precluded release after provisional arrest except on a showing of "unusual cause," while requiring only a showing of "good cause" when the detention is triggered by a formal request. S. 1437, 95th Cong., 2d Sess. § 3212(c) (1978). The State Department characterized the revised extradition provisions of that bill as, "for the most part, a codification of existing United States case law and practice." 1978 Digest of United States Practice in International Law 374. The Senate committee said that the bail provisions in particular were "not new but ... merely a codification of policies that have been followed by our courts for many years." S.Rep. No. 95-605 pt. I (1977).

Messina and Charles Arico assert special circumstances in that (1) they say they are good bail risks and (2) extraditability in this case is doubtful. The relevance of the first factor is supported by In re Mitchell, 171 F. 289 (S.D.N.Y.1909) (L. Hand, Jr.). The parties have presented no cases in support of the second. This is not a case in which lack of extraditability is evident from the face of the complaint. The closeness of the question may argue for bail if there are factual issues which require the participation of the detained person in order for counsel to prepare properly. See In re Mitchell, supra. But here the issues are legal ones involving the extraterritorial application of Italian penal law, the legality of a wiretap, and whether that legality matters.

The first question for this court is whether this is an appropriate one for provisional arrest at all.

The extradition treaty with Italy provides that a party may apply for provisional arrest "in case of urgency." Treaty of Extradition, Jan. 18, 1973, United States-Italy, art. XIII, 26 U.S.T. 493, T.I.A.S. No. 8052. The article goes on to provide that the application shall contain a description of the person sought, an indication of intent to request extradition, a statement of the existence of an arrest warrant or judgment, and any further information that would be necessary to justify issuance of an arrest warrant had the offense been committed in the territory of the requested party. There is no explicit requirement that the application include information showing the case to be one of "urgency." Nonetheless, the Second Circuit Court of Appeals has expressed "reservations" as to a district judge's refusal to review an application for provisional arrest to see if urgency had been established. Caltagirone v. Grant, 629 F.2d 739, 744 n. 10 (2d Cir.1980).

It is clear that the rationale for provisional arrest is to prevent flight in advance of the formal request. Thus extradition treaties frequently provide for such arrest "with a view to preventing the escape of alleged fugitives from justice." IV G. Hackworth, Digest of International Law § 326, at 103 (Dep't of State 1942). By 1968, "most extradition laws and treaties" permitted provisional arrest "to effect an alleged fugitive's arrest at once to prevent his further flight." 6 M. Whiteman, Digest of International Law § 25, at 920 (Dep't of State 1968). The Senate bill mentioned above allowed for "arrest without documentation, ... the purpose of which is to cause the expeditious arrest of a fugitive who may flee before the requisite documentation is received. Such arrests are normally sought for fugitives who are passing through one nation to another in flight or in continuation of their criminal activities." S.Rep. No. 95-605 pt. I (1977).

It is less clear whether a determination of the appropriateness of provisional arrest may be reviewed other than for formal regularity of the application, and if so, by whom. These questions may turn on differences between the relevant treaty or statute provisions. For example it may be that "generally" the only requisite for a provisional arrest warrant is a statement that a warrant exists in the requesting country. 6 M. Whiteman, Digest...