Opinion
00 Crim. Misc. 1 Pg. 56 (KNF)
January 30, 2004
MEMORANDUM and ORDER
I. INTRODUCTION
The government of the Republic of Italy ("Italy"), through the government of the United States of America ("United States"), has petitioned for a certification that Luigi Ribaudo ("Ribaudo") is extraditable pursuant to the extradition treaty between the United States and Italy, T.I.A.S. No. 10837, signed at Rome on October 13, 1983, and entered into force on September 4, 1984 ("Treaty"). Italy seeks Ribaudo's extradition because he was tried in absentia in Italy, convicted for the crimes of conspiracy and drug trafficking and sentenced to eleven (11) years imprisonment.
Ribaudo has made a motion to dismiss the petition for extraditability to Italy. The bases for the motion are his claims that: 1) the evidence presented in support of the petition for extraditability fails to establish probable cause; 2) the documents submitted in support of the extradition request fail to conform to the requirements of the Treaty; and 3) the delay in seeking Ribaudo's extradition is a violation of the terms of the Treaty; in the alternative, the request for extradition should be denied pursuant to the equitable doctrine of laces. The United States opposes the motion and urges that the Court issue a certification that Ribaudo is extraditable to Italy because a valid extradition treaty exists between the United States and Italy, the crime with which Ribaudo has been convicted is covered by the relevant treaty and the evidence presented by the United States, on behalf of Italy and in support of the petition for extradition, is sufficient under the applicable standard of proof and complies with the requirements of the Treaty. Ribaudo's motion is addressed below.
II. BACKGROUND
Ribaudo is a citizen of Italy. He entered the United States in 1982 and became a permanent resident in 1985. Since 1983, he has been employed as an engineer in New York. He has lived under his own name, making no attempt to keep his identity or whereabouts a secret.
On December 29, 2000, a Complaint for Arrest with a View Toward Extradition was filed against Ribaudo by the United States Attorney's Office for the Southern District of New York on behalf of the government of Italy. On January 11, 2001, Ribaudo was arrested pursuant to an arrest warrant issued on the complaint. The circumstances leading to Ribaudo's arrest are alleged to be as follows.
On October 28, 1982, the District Attorney's Office in Florence, Italy, was notified that Gaetano Giuffrida ("Giuffrida"), among others, had been arrested in New York on a charge of possession of fifteen (15) kilograms of heroin. Giuffrida was later released from custody because the evidence against him was insufficient. Thereafter, officials of the Italian government placed wiretaps on telephones used by Giuffrida.
On January 21, 1983, as a result of information obtained by means of the wiretaps and other investigative activity, law enforcement officers seized 81.6 kilograms of heroin in Florence, Italy. The heroin had been divided into 160 packages, each of which had been placed in a shoe box in preparation for shipment to Mintor's Shoes, Inc. in New York, New York. In addition, certain documents seized by law enforcement officers, during their investigation of Giuffrida, showed that he was closely associated with other persons involved in the October 1982 arrests. Among these documents was a letter sent by an attorney, Lorenzo De Luca ("De Luca"), to Giuffrida in care of "Ribaudo." At the time, De Luca was a consultant for Mintor's Shoes, Inc. and other companies located at the same address as that corporation. Based on this and other evidence, Italian investigators concluded that Ribaudo was involved in Giuffrida's drug trafficking organization.
In reaching this conclusion, investigators relied in part on evidence concerning Ribaudo's daughter, Eleanora Ribaudo ("Eleanora"). Eleanora was known to be romantically involved with Giuffrida. In addition, she was considered to be an intermediary between Ribaudo and Giuffrida and, in that capacity, to have conveyed messages from one to the other concerning the organization's activities. For example, a telephone conversation that took place following Giuffrida's arrest in New York revealed that Giuffrida told Eleanora to inform her father "not to give any shoes to anyone," to give "only five of them to De Luca," and to "let [De Luca] see the samples." Law enforcement officials believed that the word "shoes" referred to heroin and that Giuffrida was speaking about the establishment by De Luca of a new company to receive future shipments of heroin. In addition, a letter written to Giuffrida by one of his associates, Antonio Turano ("Turano"), contained the following statement: "called by Ribaudo, Attorney Castelbuono called me and is prepared to do the complete job, that is both operations, that is goods and money." Investigators learned that Catselbuono had been responsible for laundering money obtained from the sale of heroin in the United States. They concluded, therefore, that Castelbuono had determined to engage in such activity only after receiving a communication from Ribaudo.
In May 1983 the Florence District Attorney's Office issued arrest warrants for Ribaudo and his wife, Constanza Glave ("Glave"), on charges of association (conspiracy) to commit narcotics trafficking and possession, exportation and sale of narcotics. The trial of Ribaudo and his wife, along with numerous others, commenced on May 2, 1985, in the Court of Florence. Ribaudo and Glave did not return to Italy for the trial and were tried in absentia. In a letter dated May 1, 1985, addressed to the Chief Judge of the n Criminal Division at the Court of Florence, Ribaudo and Glave presented a defense to the charges brought against them. In the letter, Ribaudo and Glave acknowledged that Giuffrida had been a close personal friend of the family, including their daughter, and that they had once borrowed a part of the purchase price of a house in Milan from Giuffrida, but they denied any knowledge of or participation in Giuffrida's criminal activities.
On June 26, 1985, Ribaudo was found guilty of the crimes ascribed to him and was sentenced to sixteen (16) years imprisonment and a fine of 400 million lire. Glave was acquitted of all charges. On May 7, 1986, the Court of Appeal of Florence affirmed Ribaudo's conviction and reduced his sentence to eleven (11) years and a fine of 200 million lire. On April 5, 1987, Italy's Supreme Court of Cassation denied Ribaudo's appeal.
A request for the provisional arrest and extradition of Ribaudo, among others, was received by the United States Office of International Affairs ("OIA") on December 27, 1985. Thereafter, during the period March 1986 through August 1998, the United States repeatedly sought documentation that would support the Italian government's request for Ribaudo's extradition. Indeed, a review of the record in this case indicates that the United States submitted to law enforcement officers in Italy approximately twenty such requests during that twelve-year period. For example, on April 11, 1989, the director of the criminal division of the OIA advised Italian law enforcement officers that it planned to close the file on the Ribaudo extradition matter because three prior requests for pertinent information had not been answered and, in the approximately three years since Ribaudo's provisional arrest was first requested, the necessary extradition documents had not been provided. Three years later, in April 1992, Ribaudo's extradition file was reopened by the OIA based on repeated inquiries from law enforcement officers in Italy concerning its status and assurances by them that the requisite documents would be forthcoming. However, the final transmission of formal extradition documents was not received by the United States Department of State until September 21, 1998. Thereafter, on August 20, 1999, Kenneth Propp ("Propp"), an attorney in the Office of the Legal Adviser for the Department of State, issued a declaration attesting to Italy's request for Ribaudo's extradition.
On December 29, 2000, a United States district judge in this judicial district issued a warrant for the arrest of Ribaudo, as contemplated by 18 U.S.C. § 3184 and Article XII of the Treaty, the provisional arrest provision of that document. The warrant was executed on January 11, 2001. Ribaudo was brought before the court and was remanded to the custody of the United States Marshals Service. On March 28, 2001, Ribaudo was released on bail subject to certain specified conditions. Thereafter, the instant motion was filed.
III. DISCUSSION
"In the United States, extradition is governed by the federal extradition statute." Cheung v. United States, 213 F.3d 82, 87 (2d Cir. 2000); see also 18 U.S.C. § 3181-3196. With some exceptions not applicable to this case, "[s]ection 3184 of the statute mandates that extradition must be based on a treaty or convention." Cheung, 213 F.3d at 87. In addition, section 3184 of the statute states that responsibility for extradition within the United States falls, in the first instance, to a judicial officer whose task it is to determine: (i) whether a valid extradition treaty exists between the United States and the relevant foreign government, (ii) whether the crime charged is covered by that treaty, and (iii) whether the evidence presented to the judicial officer is sufficient to sustain the charge under the provisions of the treaty. See id. at 87-88. If the judicial officer determines that the conditions for extradition have been met, he or she shall certify to the Secretary of State that a warrant for the surrender of the person sought may issue.See id. at 87-88; LoDuca v. United States, 93 F.3d 1100, 1103-04 (2d Cir. 1996).
In the instant case, it is uncontested that a valid treaty between Italy and the United States respecting the extradition of fugitives is in force. It is also uncontested that association (conspiracy) to commit narcotics trafficking, and the possession, exportation and sale of drugs, are among the charges covered by the Treaty. Therefore, the Court finds that those elements of the section 3184 inquiry have been satisfied. Accordingly, only the third element of the inquiry, namely, whether there is sufficient evidence under the provisions of the Treaty to sustain the charges against Ribaudo, will be addressed by the Court.
Article X of the Treaty distinguishes between persons who have been convicted and those who have not, and explicitly requires a showing of probable cause in the case of the latter. Specifically, Article X of the Treaty provides, in pertinent part:
3. A request for extradition which relates to a person who has not yet been convicted shall . . . be accompanied by:
(a) a certified copy of the arrest warrant or any order having similar effect;
(b) a summary of the facts of the case, of the relevant evidence and of the conclusions reached, providing a reasonable basis to believe that the person sought committed the offense for which extradition is requested . . .
(c) documents establishing that the person sought is the person to whom the arrest warrant or equivalent order refers.
4. A request for extradition which relates to a person who has been convicted shall, in addition to those items set forth in paragraph 2 of this Article, be accompanied by:
Paragraph 2 of Article X provides:
2. All requests for extradition shall be accompanied by:
(a) documents, statements or other information which set forth the identity and probable location of the person sought, with, if available, physical description, photographs and fingerprints;
(b) a brief statement of the facts of the case, including the time and location of the offense;
(c) the texts of the laws describing the essential elements and the designation of the offense for which extradition is requested;
(d) the texts of the laws describing the punishment for the offense; and
(e) the texts of the laws describing the time limit on the prosecution or the execution of the punishment for the offense.
(a) a copy of the judgment of conviction . . .
(b) if the penalty has been pronounced, a copy of the sentence and a statement as to the duration of the penalty still be served; and
(c) documents establishing that the person sought is the person convicted.
Article X of the Treaty also refers to persons who have been convicted in absentia', the requirements with respect to a showing of probable cause for individuals in this group encompass all of the provisions outlined above. Thus, paragraph 5 of Article X provides:
5. If the person sought has been convicted in absentia or in contumacy, all issues relating to this aspect of the request shall be decided by the Executive Authority of the United States or the competent authorities of Italy. In such cases, the Requesting Party shall submit such documents as are described in paragraphs 2, 3, and 4 of this Article and a statement regarding the procedures, if any, that would be available to the person sought if he or she were extradited.
These provisions of the Treaty indicate that, under ordinary circumstances, a judgment of conviction entered in a foreign court is sufficient to establish probable cause to extradite a person who has been convicted by that court; however, when a person has been convicted in absentia, a judgment of conviction, while pertinent to an analysis of the sufficiency of the evidence, is not conclusive proof of probable cause to extradite. Consequently, when a person has been convicted in absentia, an inquiry conducted pursuant to section 3184 must include an independent determination of probable cause based upon evidence which provides, in the words of the Treaty, "a reasonable basis to believe that the person sought committed the offense for which extradition is requested."
Courts in this judicial circuit have taken a like approach to the determination of probable cause in an extradition proceeding. Thus, the Second Circuit Court of Appeals has held that, while a judgment of conviction entered by a foreign court and obtained following a trial at which the defendant was present is sufficient to establish probable cause in an extradition proceeding, see Spatola v. United States, 925 F.2d 615, 618 (2d Cir. 1991), where, as here, the defendant was convicted in absentia, the conviction is merely a charge and an independent determination of probable cause to extradite must be made,see Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960) ("[A] foreign conviction in absentia does not preclude the federal court from considering whether sufficient evidence of the relator's criminality has been presented in the extradition proceeding before the United States Commissioner."); In re Extradition of Ernst, No. 97 Crim. Misc. 1 Pg. 22, 1998 WL 395267, at *7 (S.D.N.Y. July 14, 1998) ("[W]here . . . the conviction is the result of a trial in absentia, the conviction is regarded merely as a charge, requiring independent proof of probable cause.").
In making such a determination, the court need not decide whether the evidence is sufficient to justify a conviction. See Lo Duca, 93 F.3d at 1104 (explaining that an extradition proceeding conducted pursuant to section 3184 is not "in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him") (citation omitted). Rather, an extradition hearing is a "preliminary examination" in which the judicial officer "performs an assignment in line with his or her accustomed task of determining if there is probable cause to hold a defendant to answer for the commission of an offense."Id. (citation omitted).
Probable cause, for the purposes of the extradition statute, is established if the evidence presented supports a reasonable belief that the person whose extradition is sought is guilty of the crime charged.See Austin v. Healey, 5 F.3d 598, 605 (2d Cir. 1993) (citingAhmad v. Wigen, 910 F.2d 1063, 1066 [2d Cir. 1990]). The standards for determining whether probable cause is established are the same as those set forth in Rule 5.1 of the Federal Rules of Criminal Procedure. See, e.g., In re Extradition of Neto, 98 Crim. Misc. 1 Thk., 1999 WL 627426, at *3 (S.D.N.Y. Aug. 17, 1999). Moreover, in making a probable cause determination, a judicial officer should consider the "totality of the circumstances" and "make a practical, common-sense decision" whether the evidence is sufficient to sustain a finding of probable cause. Illinois v. Gates, 462 U.S. 213, 238-40, 103 So. Ct. 2317, 2332-33 (1983). Furthermore, "[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Id. at 239, 2333.
Ribaudo argues that the probable cause standard has not been met in this case because the opinion of the Court of Appeal of Florence, which is the only evidence provided in support of the request to extradite, is wholly conclusory and, moreover, the documents to which the opinion refers, and upon which it purports to base its findings, have never been presented to this court. The government, in opposing Ribaudo's motion, contends that, even if the decision of the Italian court does not provide conclusive proof of probable cause, it should be given "some weight" in the Court's analysis; in any case, the government argues, the evidence adduced at the trial was sufficient to satisfy the requirement of a showing of probable cause.
In support of its request to extradite Ribaudo, the government of Italy provided the following documents, attached to diplomatic note number 7101, from the Italian Embassy to the Department of State: (1) the decision of the Court of Appeal of Florence, dated May 7, 1986, (2) a summary of the case prepared by the state attorney general in Florence, dated February 4, 1992, (3) the post-conviction arrest warrant issued in Florence on June 25, 1987, and (4) certain relevant provisions of the Italian criminal and penal codes.
Ribaudo is correct that the only evidence provided in support of the petition for extraditability is the decision of the Florence Court of Appeal. That document refers to records of wiretapped conversations between, inter alia, Giuffrida and Ribaudo, and Giuffrida and Eleanora. The decision also refers to the two letters described earlier: the letter to Giuffrida from De Luca sent in care of "Ribaudo" and the letter to Giuffrida from Turano discussing the activities of Castelbuono and containing the phrase "called by Ribaudo." Based on these and other documents, and taking into account the arguments presented on appeal, the Italian appellate court concluded that Ribaudo's membership and participation in Giuffrida's drug trafficking organization had been demonstrated at trial.
None of the documents concerning Ribaudo that are mentioned in the decision of the Florence Court of Appeal has been presented to this Court. Therefore, even if the decision of that court were to be given "some weight" in the analysis of this case, as the government urges, since the underlying evidence has not been made available, the Court cannot make an independent determination concerning whether there is probable cause to believe that Ribaudo committed the crimes charged.See In re Extradition of Ernst, 1998 WL 395267, at *10 (finding, where relator was convicted in absentia, the only evidence of relator's criminal activity was the decision of a foreign court, and the underlying evidence relied upon was not made available, that the materials submitted in support of extradition failed to establish probable cause that relator committed the crimes with which he was charged); compare In re Extradition of Neto, 1999 WL 627426, at *3-4 (finding, where circumstantial evidence in the form of wiretap records, hearsay testimony of convicted co-conspirators, police report of confidential disclosure and evidentiary documents was persuasive, that the government had satisfied its burden of establishing probable cause); Lo Duca v. United States, No. 95 Civ. 713, 1995 WL 428636, at *13 (E.D.N.Y. July 7, 1995) aff'd by 93 F.3d 1100 (2d Cir. 1996) (holding that a finding of probable cause to extradite was correct where the judicial officer made his determination on the basis of "abundant documentary evidence").
The Florence Court of Appeal concluded that it was "considered proven" that Ribaudo conveyed messages concerning drug trafficking activities to Giuffrida by way of Eleanora. This conclusion was based in part on the content of the telephone conversation, described earlier, in which Giuffrida is alleged to have told Eleanora to inform Ribaudo "not to give any shoes to anyone," to give "only five of them to De Luca," and so on. However, the government has not provided transcripts of this or any other telephone conversation discussed in the decision, or even summaries of those conversations by which, among other things, the contextual significance of the statements attributed to the participants might be discerned. Consequently, the Court cannot determine whether the conclusion reached by the Florence Court of Appeal was warranted. Moreover, even if the Court were to rely on the description of the underlying evidence provided in the court's decision, the explanation given by that court concerning the reason for believing that the word "shoes," as used in the wiretapped conversations, was code for "heroin" is entirely conclusory.
According to the Florence Court of Appeal, "[n]umerous circumstances indicate that the term `shoes' in all certainty meant a certain quantity of drug and that it was used in that sense in the conversations between Giuffrida and Eleanora Ribaudo." The court then provides the following exchange as an example of the type of circumstance it has in mind: "[I]n the call . . . between Giuffrida and Turano, the latter at a certain point said, after having spoken about the difficulties that had arisen following the arrests of Rodrigo and Orozco, that what had happened `complicates things a bit for us, but life has to go on, doesn't it? . . . a stack of shoes.'"
Similarly, no copies of the letters at issue here have been provided. Hence, with respect to the letter to Giuffrida from Turano, for example, the Court has no basis for understanding the context of the quoted statements or for determining whether the phrase, "called by Ribaudo," is incriminating, as the Florence Court of Appeal contends. Moreover, no evidence is adduced to support the conclusion that Luigi Ribaudo is the individual to whom the letter refers, as opposed to, for example, his father, Salvatore Ribaudo.
For the reasons set forth, and taking into consideration the totality of the circumstances, the Court finds that the evidence presented in this case does not support a reasonable belief that Ribaudo is guilty of the crimes charged or that the government has satisfied its burden of establishing probable cause.
Submission of Required Documents
Ribaudo maintains that certain documents submitted in support of the complaint either do not conform to the procedural requirements of the Treaty or are inherently unreliable, and that certain documents required under the Treaty have not been provided. Therefore, Ribaudo argues, the request for extradition should be denied.
In an extradition proceeding, a court must determine whether the documents submitted in connection with an extradition request are in compliance with the requirements of the treaty between the United States and the relevant foreign government. See In re Extradition of Ernst, 1998 WL 395267, at *4 (citing In re Extradition of Rabelbauer, 638 F. Supp. 1085, 1087 [S.D.N.Y. 1986]); Lo Duca, 1995 WL 428636, at *2, 5-9. In this case, as noted earlier, the Treaty sets forth the requirements with respect to supporting documents in Article X. Paragraph 1 of Article X provides that "[r]equests for extradition shall be made through the diplomatic channel." Additionally, paragraph 7 of Article X provides, in pertinent part: "The documents which accompany an extradition request shall be admissible into evidence when . . . in the case of a request from Italy, they are signed by a judge or other Italian judicial authority and are certified by the principal diplomatic or consular officer of the United States in Italy."
Ribaudo contends that certain documents submitted in support of the extradition request should have been certified by the Minister Counselor of Consular Affairs at the United States Embassy in Rome, Charles F. Keil ("Keil"), at the time of the submission of the Propp declaration of August 20, 1999; in fact, however, these documents were not certified until several months later. Therefore, Ribaudo argues, these documents failed to conform to the requirements of Article X, paragraphs 1 and 7, of the Treaty and this, in turn, casts doubt upon the authenticity and reliability of the extradition request as a whole.
Three sets of documents were submitted in connection with the extradition request. In each case, the documents were sent under cover of a diplomatic note from the Italian Embassy and were certified by Keil as being legally authenticated extradition documents from Italy. The first set of documents, as noted earlier, was provided in September 1998, and was accompanied by diplomatic note number 7101. The Propp declaration attested to the certification of these documents. A second set of documents was provided in September 1999, and a third set of documents was provided in March 2000. Each of these sets of documents also was certified by the Minister Counselor for Consular Affairs. Thus, all of the documents submitted in support of the extradition request conformed to the requirements of Article X, paragraphs 1 and 7, of the Treaty. Moreover, there is no evidence to indicate that the submission of a portion of the extradition documents, after the issuance of a declaration attesting to the certification of an earlier submission, had the effect by itself of undermining the authenticity or reliability of the government's extradition request. Therefore, the Court finds that Ribaudo's claim that certain documents provided in support of that request do not conform to the procedural requirements of the Treaty is without merit.
Ribaudo also contends that certain required documents are missing. Specifically, according to Ribaudo, the government has failed to provide the following: (1) documents, as required under Article X, paragraph 2(a), establishing the identity and probable location of Ribaudo; (2) documents, as required under Article X, paragraph 2(e) of the Treaty, setting forth the texts of the laws describing the time limit on the prosecution; thus, in the event that Ribaudo is extradited and becomes subject to retrial, in the absence of these documents, there is no way to know whether such a retrial would be time-barred; (3) a certified copy of the arrest warrant or any order having similar effect, as required under Article X, paragraph 3(a); and (4) a statement of currency with respect to the statement of procedures, if any, that would be available to Ribaudo if he were extradited, as required under Article X, paragraph 5.
Ribaudo's argument must be rejected; a careful examination of the documents submitted along with the extradition request indicates that all the necessary documents were submitted by Italy. Ribaudo's name and date and place of birth are provided in the decision of the Court of Appeal of Florence, the summary of the case provided by the deputy state attorney general at Florence, and the post-conviction arrest warrant. A photograph of Ribaudo also is included among the extradition documents. Furthermore, although the only indication of Ribaudo's probable location is his own letter of defense, dated New York, May 1, 1985, Ribaudo does not dispute the identification and concedes that, at the time of the filing of the complaint, his location was known.
"Extradition treaties must be construed liberally to achieve their purpose of providing for the surrender of fugitives to the requested countries." Lo Duca, 1995 WL 428636, at *6 (citation omitted). "In construing such treaties, form is not to be insisted upon beyond the requirements of safety and justice." Id. (citation omitted) (internal quotation marks omitted). Under the circumstances, and construing the Treaty liberally, the Court finds that the government's submissions satisfy the requirements of Article X, paragraph 2(a), as set forth above.
In addition, the documents submitted by the government conform to the requirements of Article X, paragraphs 2(e) and 3(a) of the Treaty, in that they include the "texts of the laws describing the time limit on the prosecution or the execution of the punishment for the offense," as well as "a certified copy of the arrest warrant or any order having similar effect." Moreover, as Ribaudo concedes, the requirement, set forth in Article X, paragraph 5, that the extradition documents include "a statement regarding the procedures, if any, that would be available to the person sought if he or she were extradited," has been satisfied in this case. Such a statement is provided as part of the summary of the case and of the Italian criminal code, both of which were submitted in support of the government's extradition request. A "statement of currency" with respect to this document is not required by the Treaty. Furthermore, as the government points out, the relevant provisions of the Italian criminal code were attached to diplomatic note number 7101, which was dated September 1998, and, thus, may be presumed to have been current as of that date.
Finally, according to Ribaudo, the summary of the facts of the case prepared by the office of the state attorney general in Florence contains numerous inaccuracies and misstatements. Therefore, Ribaudo argues, the document should be discounted in its entirety.
As the government concedes, this document contains two typographical or clerical errors. One concerns the date of Ribaudo's conviction; the summary incorrectly identifies that date as June 26, 1984, when, in fact, the conviction took place on June 26, 1985. The other error concerns the date upon which the pre-trial arrest warrant for Ribaudo was issued. The summary incorrectly states that the warrant was issued in 1953, when, in fact, it was issued in 1983. In addition, the document speaks of Ribaudo as having "fled" or "absconded" to the United States prior to his trial. Ribaudo argues that this is both untrue and inconsistent with the government's theory of the case. According to that theory, Ribaudo's part in the drug trafficking conspiracy required him to be located in the United States. Thus, Ribaudo contends, he could not have "fled" or "absconded" to a place where he was already living.
Even supposing that the summary of the case submitted in support of the extradition request contains the errors noted, as Ribaudo contends, it is not clear that the document, for this reason, fails to conform to a requirement of the Treaty. Moreover, Ribaudo's argument with respect to the adequacy of this document again places form over "the requirements of safety and justice." As the government points out, the typographical or clerical errors contained in the document doubtless were inadvertent. In any case, neither those errors, nor the statements concerning Ribaudo's conduct prior to his trial, appear to be dispositive of the outcome of the extradition proceeding.
For the reasons set forth, the Court finds that Ribaudo has not established that the documents provided, in support of the extradition request, fail to comply with the requirements of the Treaty. Accordingly, this claim is without merit.
Delay in Seeking Extradition
In an extradition proceeding, "the court must determine whether . . . all other treaty procedures have been followed." In re Extradition of Ernst, 1998 WL 395267, at *4 (quoting In re Extradition of Rabelbauer, 638 F. Supp. 1085, 1087 [S.D.N.Y. 1986]). Ribaudo claims that the government's delay in seeking his extradition is a violation of Article XI of the Treaty, entitled "Additional Documentation." Ribaudo also claims that Italy's "prolonged delay" in seeking extradition, and the prejudice to him that resulted from the delay, implicates the equitable doctrine of laches.
Article XI of the Treaty provides, in pertinent part:
If the Requested Party considers that the documentation furnished in support of a request for extradition is incomplete or otherwise does not conform to the requirements of this Treaty, that Party shall request the submission of necessary additional documentation. The Requested Party shall set a reasonable time limit for the submission of such documentation, and shall grant a reasonable extension of that time limit upon an application by the Requesting Party setting forth the reasons requiring the extension.
Ribaudo argues that the United States failed to set any time limit for the submission of the additional documentation necessary for extradition and, a fortiori, never granted a "reasonable extension" of such a time limit. Moreover, Ribaudo contends, the government of Italy never applied for an extension of the time allotted for the submission of documents and never set forth the reasons why an extension was needed. As discussed supra, fourteen years elapsed between the date upon which a warrant was first issued for Ribaudo's arrest by the Florence Court of Appeal and the date upon which the United States Department of State issued a declaration attesting to Italy's request for Ribaudo's extradition. Another year passed before the filing of the instant complaint. Hence, Ribaudo argues, since both parties have failed to comply with the requirements of Article XI of the Treaty, his extradition should be barred.
A review of the record in this case indicates that Ribaudo is correct in stating that no explicit limits on the time allotted for submission of extradition documents were set by the United States. As discussed earlier, numerous requests for documents were sent to law enforcement officers in Italy after the initial request for extradition had been made and, in April 1989, the United States announced its intention to close the file on the Ribaudo extradition matter because proper documentation had not been forthcoming. However, there is no indication that any deadline for the submission of pertinent documents was imposed or that the government of Italy ever sought an extension of such a deadline. In 1992, the file was reopened and the United States continued to ask for Italy's cooperation in providing additional information concerning the extradition request. Consequently, it would appear that the Treaty procedures set forth in Article XI were not strictly followed in this case.
However, as noted above, extradition treaties are to be "construed liberally" and courts shall not insist upon adherence to a treaty's formal requirements "beyond the requirements of safety and justice."Lo Duca, 1995 WL 428636, at *6. Moreover, the Second Circuit Court of Appeals has not addressed the question of whether the doctrine of laches applies to extradition cases involving foreign governments, although it has found, in the context of an interstate extradition, that "[n]othing in the Constitution or in the applicable federal statute indicates that a fugitive has a right to `speedy extradition' or that there exists a statute of limitations for extradition." Strachan v. Colon, 941 F.2d 128, 132 (2d Cir. 1991). Furthermore, the Sixth Circuit Court of Appeals has ruled that, in a case involving a fourteen-year delay between the issuance of a Canadian arrest warrant and Canada's formal request for a habeas corpus petitioner's extradition, there was no violation of the petitioner's Fifth Amendment right to due process. See In re the Extradition of Michael John Prayer, 190 F.3d 410, 415 (6th Cir. 1999) (citing Martin v. Warden, 993 F.2d 824, 830 [11th Cir. 1993], for the proposition that there is no due process right to a speedy extradition, and McMaster v. United States, 9 F.3d 47, 48-49 [8th Cir. 1993], for the proposition that there are no due process rights in an extradition proceeding unless the United States bases extradition upon impermissible factors such as race, etc.).
The Court agrees with Ribaudo that the delay in seeking his extradition was unconscionable and that neither of the governments involved adhered strictly to the letter of the Treaty with respect to the matter of setting reasonable time limits for the submission of extradition documents. Nevertheless, in the absence of any viable authority for the proposition that the delay involved in this case constitutes a defense to extradition or that the doctrine of laches applies, and taking into consideration the rule that extradition treaties are to be construed liberally, the Court finds that Ribaudo's claim is unavailing.
IV. CONCLUSION
The Court finds that the evidence produced by the United States on behalf of Italy does not support a finding that there is probable cause to believe that Ribaudo committed the crimes with which he was charged. Therefore, Ribaudo's motion to dismiss the petition for a certificate of extraditability is granted.
The Court also finds that Ribaudo's claim that the documents submitted in support of the extradition were not in compliance with the terms of the Treaty is without merit. Furthermore, the Court finds that Ribaudo's claim that the delay in seeking extradition violated the terms of the Treaty, or, alternatively, that the doctrine of laches applies in this case, is also without merit.
SO ORDERED.