|
667 F.2d 300, 9
Fed. R. Evid. Serv. 905 United States Court of
Appeals, Second Circuit. Vincenzo MELIA,
Appellant, v. UNITED STATES of
America and William F. Smith, Attorney General, Appellee. No. 374, Docket
81-2267. Argued Oct. 5, 1981. Decided Dec. 16, 1981. SUBSEQUENT HISTORY: Distinguished by: Republic of
France v. Moghadam, 617 F.Supp. 777 (N.D.Cal. Sep. 12, 1985) (No. CR-85-206
MISC (MHP)) [*301] COUNSEL: Maurice Edelbaum, New York City (Alan
Scribner, and Fisher & Fraser, New York City, on the brief), for appellant. Richard Blumenthal, U. S. Atty., New Haven, Conn. (Richard D.
Gregorie, Atty., U. S. Dept. of Justice, New Haven, Conn., on the brief), for
appellee. JUDGES: Before FEINBERG, Chief Judge, and TIMBERS and
MESKILL, Circuit Judges. OPINION BY: TIMBERS, Circuit Judge: The essential issue on this appeal is whether appellant was
properly ordered extradited from the United States to Canada to face charges of
conspiring to commit a murder and of procuring a murder. We hold that he was. Appellant Vincenzo Melia is a citizen of Italy and a resident of
Connecticut. On May 16, 1981 he was arrested by FBI agents pursuant to an
arrest warrant issued by a United States Magistrate in Connecticut. This
warrant was issued pursuant to a formal request by Canada to the United States
that Melia be extradited under the Treaty on Extradition between the United
States and Canada, 27 U.S.T. 983, as amended March 22, 1976 (“the
Treaty”). Canadian arrest warrants had charged Melia with conspiracy
to murder or to have another murdered, and of counselling, procuring, or
inciting another to murder. At the extradition hearing, held on June 4 and 5 and July 2, 1981
in the District of Connecticut, T. F. Gilroy Daly, District Judge, the government
presented evidence to show that Melia had conspired with others to murder a
woman in Connecticut. In an opinion filed July 20, 1981, Judge Daly granted the
extradition request. Appellant then filed in the District of Connecticut a petition for
a writ of habeas corpus to challenge the finding of extraditability. This was
denied, Warren W. Eginton, District Judge, in an opinion filed July [*302] 31, 1981. From
the order entered on this opinion, the instant appeal has been taken. We affirm.[FN1] FN1. In the past, with respect to certain
other offenses, extradition from Canada to the United States has encountered
thorny problems. Timbers & Pollack, Extradition From Canada To The United
States For Securities Fraud: Frustration Of The National Policies Of Both
Countries, 24 Fordham L.Rev. 301 (1955). I. FACTS The government’s evidence at the extradition hearing
showed that Melia and others conspired between February 1 and February 23, 1981
to murder Helen Nafpliotis, the girlfriend of Melia’s brother. At a
meeting held in Toronto, Canada, Cosmo Commiso, head of a reputed organized
crime family, hired Cecil Kirby (a/k/a Jack Ryan) to perform the murder. Kirby,
as it turned out, was an informant for the Royal Canadian Mounted Police. He
informed Canadian officials of the planned murder. Antonio Romeo was to act as liaison between Commiso and Kirby. The
latter went to the United States after the Toronto meeting. Bad weather
prevented Romeo’s flight from landing, as planned, in New York so that
he could meet with Kirby in Darien, Connecticut. Kirby thereupon called Commiso
from Connecticut. Shortly thereafter, Kirby received a telephone call from an
unidentified man who informed him that the next meeting with Romeo and others
would be that night, that is, February 21, 1981. Judge Daly found that Melia
had called Commiso in Canada. That evening, Kirby met Romeo and Melia at one of the rare bars in
Darien. They gave Kirby expense money and $1000. Melia gave Kirby his telephone
number. They discussed the details of the planned murder. Melia promised Kirby
an additional $1000 if he made certain that Nafpliotis’s body was not
found. Nafpliotis was warned by the FBI and was not injured. II. EXTRADITION
PROCEEDINGS An extradition hearing is not the occasion for an adjudication of
guilt or innocence. Rather, its purpose is to determine whether there is
reasonable ground to believe that the person whose extradition is sought is
guilty, that is, whether there is sufficient evidence to justify extradition
under the appropriate treaty. Simmons v. Braun, 627 F.2d 635, 636-37
(2 Cir. 1980); Jhirad v. Ferrandina, 536 F.2d 478, 482 (2
Cir.), cert. denied, 429 U.S. 833 (1976). The Federal Rules of Criminal
Procedure are expressly inapplicable to extradition proceedings, Fed.R.Crim.P.
54(b)(5), as are the Federal Rules of Evidence, Fed.R.Evid. 1101(d)(3). Hearsay
and other excludable evidence, therefore, may be admissible. See United
States ex rel. Klein v. Mulligan, 50 F.2d 687, 688 (2 Cir.), cert. denied, 284
U.S. 665 (1931). Review in this case has been sought from the denial of a petition
for a writ of habeas corpus. The scope of such review is limited and should not
be converted into a de novo review of the evidence. Jhirad v. Ferrandina,
supra,
536 F.2d at 482. Rather, the inquiry in the habeas corpus proceeding is limited
to whether the judge who conducted the extradition hearing had jurisdiction to
do so, whether the extradition court had jurisdiction, whether the alleged
offense was covered by an extradition treaty, and whether the extradition judge
was presented with evidence which warranted a finding that there was reasonable
ground to believe that the accused was guilty.[FN2] Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Simmons
v. Braun, supra, 627 F.2d at 637. Here, appellant does not challenge the
jurisdiction of the extradition judge or of the extradition court. FN2. A finding of extraditability does not
leave appellant vulnerable to being charged with any crime with which the
Canadian authorities may choose to charge him. Rather, the principle of
specialty is applicable: appellant can be charged only with those crimes for which
he was extradited specifically. Shapiro v. Ferrandina, 478 F.2d 894, 905 (2
Cir.), cert. dismissed, 414 U.S. 884 (1973). [*303] III. CANADIAN
JURISDICTION Appellant argues that Canada has no jurisdiction over the
conspiracy charge. He claims that his case does not fall within the relevant
provisions of the Canadian Criminal Code which set forth the circumstances
under which Canada has jurisdiction in murder cases. Section 423(3) provides that
Canada has jurisdiction when someone within Canada conspires to kill someone
outside of Canada. Section 423(4) provides that Canada has jurisdiction when
someone outside of Canada conspires to kill someone within Canada. Appellant
contends that, since he is charged with conspiring outside of Canada to kill
someone outside of Canada, Canada has no jurisdiction. We disagree. Although no Canadian case directly in point has been brought to
our attention, [FN3] it appears that Canadian courts would hold that there is
jurisdiction over appellant. Section 423(1)(a) of the Canadian Criminal Code
appears to be applicable: “(E)very one who conspires with any one to
commit murder or to cause another person to be murdered, whether in Canada or
not, is guilty of an indictable offense ….” Although the
statute provides for jurisdiction over all conspiracies to murder wherever they
may occur, the Canadian government agrees that there must be some nexus with
Canada and asserts that there is. FN3. The case most nearly in point is Re
Chapman,
5 (1970) Can.Crim.Cas. 46
(Ct.App.Ont.1970). There, Canadian citizens began a scheme within Canada to
defraud persons exclusively outside of Canada. The court held that there was
jurisdiction, but on grounds that the court said made it unnecessary to decide
whether the formation or existence of the conspiracy in Canada was a sufficient
foundation upon which to charge the commission of an offense in Canada. Id. at 50-51. We agree that there is such a nexus. Melia conspired with persons
who were in Canada. Moreover, there is strong circumstantial evidence that he
made one or more telephone calls to Commiso in Toronto. Thus, even though he
did not enter Canada, we hold that his conduct had a sufficient nexus with
Canada to justify Canada’s exercise of jurisdiction. In any event, it is not mandatory that we decide whether Canadian
courts have jurisdiction. “We are … not expected to become
experts in the laws of foreign nations.” In re Assarsson, 635 F.2d 1237, 1244
(7 Cir. 1980), cert. denied, 101 S.Ct. 2017 (1981); accord, Jhirad v.
Ferrandina, supra, 536 F.2d at 484-85 (“It is not the business of our
courts to assume the responsibility for supervising the integrity of the
judicial system of another sovereign nation. Such an assumption would directly
conflict with the principle of comity upon which extradition is
based.”); United States ex rel. Bloomfield v. Gengler, 507 F.2d 925, 928 (2
Cir. 1974) (requesting country’s internal legal procedures will be
examined only when they are antithetic to a federal court’s sense of
decency); Gallina v. Fraser, 278 F.2d 77, 79 (2 Cir.) (same holding as in
Bloomfield, supra), cert. denied, 364 U.S. 851 (1960); see generally Glucksman
v. Henkel, 221 U.S. 508,
512 (1911); Neely v. Henkel, 180 U.S. 109, 123 (1901); Rosado
v. Civiletti, 621 F.2d 1179, 1195-97 (2 Cir.), cert. denied, 449 U.S. 856
(1980). Melia will have the opportunity before the Canadian courts to challenge
Canada’s jurisdiction over him. We have the utmost confidence that the
Canadian courts will decide the jurisdictional issue correctly. Moreover, Article 3, Section 3, of the Treaty provides that when
the act takes place outside of the requesting country the requested country has
the power to grant extradition if the laws of the requested country provide for
jurisdiction over such an offense committed in similar circumstances. Thus, if
the United States would have jurisdiction over appellant had he been in Canada
conspiring with persons in the United States, appellant can be extradited to
Canada. The United States would have jurisdiction in such a case. Justice
Holmes stated the rule in Strassheim v. Daily, 221 U.S. 280, 285 (1911):
“Acts done outside a jurisdiction, but intended to produce and [*304]
producing detrimental effects within it, justify a State in punishing the cause
of the harm as if he had been present at the effect ….” Here,
Melia was part of a conspiracy, several members of which were in Canada. The
mere presence of a conspiracy within Canada has a detrimental effect within
Canada. Melia, moreover, in making one or more telephone calls performed acts
within Canada in furtherance of the conspiracy.[FN4] Such a situation would be
sufficient to give the United States jurisdiction in a similar case. In United
States v. Padilla, 374 F.2d 996, 998 (2 Cir. 1967), for example, we held that
it was proper to convict if an overt act pursuant to a conspiracy occurred
within the jurisdiction of the court, even though the main conspiracy took
place elsewhere. FN4. An
overt act need not be criminal to satisfy the overt act requirement. United States v. Winter, 509 F.2d 975, 982 (5 Cir.), cert.
denied, 423 U.S. 825 (1975) (“An overt act, seemingly innocent in
itself yet in furtherance of the conspiracy, is sufficient under the law of
conspiracy.”). The
situation in the instant case is distinguishable from cases such as United
States v. Columba-Colella, 604 F.2d 356 (5 Cir. 1979). There, the court held
that, where appellant’s act in Mexico was legally unrelated to a crime
by another person in the United States, the United States did not have
jurisdiction. Here, appellant’s contact with Canada was in connection
with the same crime: the conspiracy to murder and the procurement to murder. Under the extradition treaty, murder is
a listed extraditable offense. Article 2, Section 2, of the Treaty provides
that “(e)xtradition shall be granted for … conspiracy to
commit or being a party to any of the offenses listed” (emphasis
added). Thus the issue is whether appellant’s alleged acts-conspiring
to murder and procuring a murder-fall within this language. We hold that they
do. The Treaty does not specifically list procuring as an extraditable
offense. We hold, nevertheless, that the Treaty does cover the offense. First,
the Treaty provides that extradition shall be granted with respect to a person
who is a party to one of the listed offenses. One who procures a murder is a
party to it and therefore is subject to extradition under the Treaty. Second,
Canadian and American law both treat procurers as principals, thus indicating
that procuring is a serious crime that is within the Treaty. Specifically, under Section 442(a) of the Canadian Criminal Code,
one who procures another person to commit an indictable offense, although it is
not actually committed, is guilty of an indictable offense to the same extent
as one who attempts to commit the crime. Article 2, Section 2, of the Treaty
expressly provides for extradition in cases of attempt. Thus, since procuring
is the equivalent of attempting under Canadian law, we hold that procuring is
covered by the Treaty. Likewise, under 18 U.S.C. s 2(a) (1976), one who procures the
commission of an offense against the United States is punishable as a
principal. Because procurers are treated as principals under United States law,
we hold that the Treaty covers procurers and allows them to be extradited. Furthermore, in view of the testimony concerning Melia’s
active role in planning and paying for the murder, we hold that the district
court correctly found that there was probable cause that appellant is guilty of
the crime of procuring murder. With respect to the charge of conspiracy, the Treaty expressly
covers that charge. There was sufficient evidence that Melia was involved in a
criminal conspiracy some of whose members were in Canada. The district court
correctly found that appellant was extraditable on the conspiracy charge. We hold that the district court properly denied the petition for a
writ of habeas corpus. We order that the mandate issue forthwith. Affirmed. |