Valenzuela v. U.S.

• Decision Date: 25 March 2002
• Docket Number: No. 00-13729.,00-13729.
• Citation: 286 F.3d 1223
• Parties: Mirta Rosa VALENZUELA, Frederick Kirk Repper, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

286 F.3d 1223

Mirta Rosa VALENZUELA, Frederick Kirk Repper, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

No. 00-13729.

United States Court of Appeals, Eleventh Circuit.

March 25, 2002.

Randee Jill Golder, Randee J. Golder, P.A., Boynton Beach, FL, Lothar R. Genge, Deerfield Beach, FL, for Petitioners-Appellants.

Stephen Schlessinger, Anne R. Schultz, Benjamin G. Greenberg, Miami, FL, for Respondent-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and WILSON, Circuit Judges, and RESTANI,^* Judge.

TJOFLAT, Circuit Judge:

Petitioners in this case, Mirta Rosa Valenzuela ("Valenzuela") and Frederick Kirk Repper ("Repper"), are American citizens sought for prosecution by Italy for their alleged roles in an international drug smuggling ring. A magistrate judge certified their extradition to Italy and the district court denied their petition for a writ of habeas corpus. They now appeal.

We conclude that the magistrate judge erred in admitting into evidence an affidavit containing statements petitioners made in exchange for a promise of confidentiality made by agents of the Drug Enforcement Administration ("DEA"). Because the affidavit was indispensable to the finding of probable cause necessary to extradite petitioners, we reverse the district court's judgment and direct that the writ of habeas corpus issue.

I.

On September 27, 1997, Theresa Bailey ("Bailey"), a United States citizen, was arrested by Italian police in Padua, Italy, who discovered 3.2 kilograms of cocaine in her possession. She agreed to cooperate with the police, and informed them that in April, 1997 she was recruited as a drug courier by two individuals in Lantana, Florida, who were later identified as petitioners Valenzuela and Repper. Bailey claimed that Valenzuela and Repper offered her "a good reward" for her services, and put her in touch with Nwangu Ernst ("Ernst"), a Nigerian citizen, who directed her to make two trips from Sao Paolo, Brazil to Padua to deliver drugs in August and September, 1997. She also stated that Valenzuela and Repper admitted having made similar trips for Ernst in the past, and provided her with the names of hotels in Padua where they had stayed. Acting on this information, Italian police confirmed that Repper and Valenzuela had stayed at these hotels in December 1994, November 1996, and January 1997. On February 16, 1998, an Italian judge in Padua issued warrants for the arrest of Repper and Valenzuela for importing and conspiracy to import 3.2 kilograms of cocaine into Italy in violation of articles 73 and 80 of Presidential Decree 309/90, punishable by imprisonment of more than one year.¹

Meanwhile, beginning in early December, 1997, Valenzuela and Repper initiated meetings with Palm Beach County Deputy Sheriff Pat Tenety ("Tenety") and DEA Agents Dan Bruce ("Bruce") and Ed Duffy ("Duffy") to provide them with information about the multinational drug smuggling activities in which they had been involved. During these meetings, Valenzuela and Repper discussed their roles as couriers and recruiters for the drug smuggling ring. The agents told Repper and Valenzuela that they had not committed any crime for which they could be prosecuted in the United States and gave both Repper and Valenzuela use and transactional immunity for their statements.

On December 23, 1997, Repper signed a DEA Cooperating Individual Agreement (the "Agreement"), agreeing to gather and provide information to the DEA and testify to that information if necessary. In return, the Agreement guaranteed that the DEA would "use all lawful means to protect [Repper's] confidentiality." Repper subsequently signed three other documents establishing him as a paid informant for the DEA. Valenzuela did not sign any of these documents and was never documented by the DEA as a confidential informant. However, the government concedes that "Valenzuela took actions on behalf of DEA under the same terms as Repper," and that "both [petitioners] became confidential informants." In May of 1998, the agents informed Repper and Valenzuela that they were terminating the informant relationship because they had contacted members of the drug smuggling ring without the agents' permission, and had otherwise failed to cooperate with the DEA.

II.

A.

On July 29, 1998, Italy submitted its request for the extradition of Valenzuela and Repper, along with the supporting documents required under the Treaty, to the United States Embassy in Rome. A counselor at the Embassy certified these documents, as required under Article X of the Treaty and 18 U.S.C. § 3190, on August 12, 1998. The request for extradition, supporting documents, certification, and a copy of the extradition treaty were then forwarded by the United States Department of State to the Department of Justice. On July 16, 1999, the United States Attorney for the Southern District of Florida filed complaints for the provisional arrests of Valenzuela and Repper in aid of extradition to Italy in the district court.² A magistrate judge issued arrest warrants for Valenzuela and Repper based on those complaints, and petitioners were arrested on July 30, 1999, in Palm Beach County, Florida.

The magistrate judge held a hearing on August 18, 1999, as required under 18 U.S.C. § 3184, to determine whether the evidence established probable cause sufficient to sustain their extradition under the requirements of the Treaty.³ Pending her decision, the United States Attorney attempted to supplement this evidence by filing under seal the affidavit of DEA Agent Bruce (hereinafter "Bruce Affidavit"), which contained incriminating statements petitioners had made to him and Duffy regarding their involvement in drug smuggling activities in Italy. The magistrate judge refused to consider the Bruce Affidavit, however, because the "reports had not come to the court through proper Italian channels required by treaty,"⁴ and because petitioners, citing the transactional and use immunity the DEA agents had given them and their Fifth Amendment privilege against self-incrimination, objected to her consideration of the statements contained in the affidavit.⁵ Relying on the remaining, properly submitted evidence, the magistrate judge determined that there was a lack of probable cause to extradite petitioners, and thus dismissed Italy's extradition request on November 29, 1999.

That same day, however, the United States Attorney filed a second complaint seeking new provisional arrest warrants for petitioners. Along with this complaint, and in addition to the evidence produced during the first extradition hearing, he resubmitted, through proper Italian channels, the Bruce Affidavit.⁶ The magistrate judge immediately issued the new warrants, and Repper and Valenzuela remained in custody. After several continuances, a second extradition hearing was held on March 8 and 13, 2000. The purpose of the hearing was again to determine whether probable cause existed to extradite Valenzuela and Repper for the crimes alleged in the Italian arrest warrants. That determination turned on the admissibility of the Bruce Affidavit.⁷ Petitioners reasserted their objections to the court's consideration of the affidavit. In addition, petitioners contended that the Fifth Amendment's Due Process Clause precluded the court's use of the affidavit because the Agreement required the DEA to "use all lawful means to protect [their] confidentiality."

On May 10, 2000, the magistrate judge concluded that the Bruce Affidavit was admissible and entered an order certifying the extraditability of Valenzuela and Repper.⁸ Although she found that petitioners had indeed been given transactional and use immunity, which would bar the United States from prosecuting them for their involvement in the drug smuggling operation, the magistrate judge rejected their argument that such immunity protected them from prosecution, or the use of their statements to the agents, by Italy. In so holding, the magistrate judge considered, and rejected out of hand, petitioners' argument that the Italian and American authorities were cooperating to such an extent that the Italian prosecution should be treated as a prosecution initiated by the United States.

Turning to petitioners' argument that their Fifth Amendment privilege against self-incrimination precluded her from considering such statements,⁹ the magistrate judge concluded that the statements, though "not compelled by statute nor by formal agreement ... [were nevertheless] subject to the protection of the Fifth Amendment." After reaching this conclusion, the magistrate judge went on to say that "since the[] statements cannot be used against [petitioners] in a criminal prosecution in the United States, there is no Fifth Amendment bar to the admission of those statements at the extradition hearing." "The protections inuring to [petitioners] by virtue of the hip pocket immunity conferred by DEA agents in the U.S. are co-extensive with the protection of the Fifth Amendment."¹⁰ In sum, neither the grant of transactional and use immunity nor the Fifth Amendment's Self-Incrimination Clause barred the magistrate judge from considering the Bruce Affidavit. The magistrate judge's order did not address petitioners' due process argument based on the Agreement — that the DEA's promise to protect petitioners' confidentiality precluded the United States Attorney from using the Bruce Affidavit to establish probable cause.

B.

After the magistrate judge certified their extradition, petitioners repaired to the district court, filing a joint petition for a writ of habeas corpus.¹¹ Their petition was based on the objections they had made to the magistrate judge's entertainment of the Bruce Affidavit, to-wit: (1) the grant of transactional and use immunity rendered inadmissible the statements attributed to them in the affidavit; (2) alternatively, the Self-Incrimination Clause...