Opinion
Nos. 95 C 3103, 95 C 3104, 96 C 7592
March 9, 1999
MEMORANDUM OPINION AND ORDER
Canada seeks the extradition of petitioners to stand trial on kidnaping charges. After a United States Magistrate Judge of this court certified that petitioners were extraditable, petitioners requested writs of habeas corpus to prevent their extradition. This court granted those writs. The Seventh Circuit reversed and remanded the cause for this court to consider issues that had not yet been resolved.
There have been four prior opinions in this case, one each by Magistrate Judge Bobrick, Senior District Judge Shadur, this judge, and the Seventh Circuit. See DeSilva v. DiLeonardi, 125 F.3d 1110 (7th Cir 1997); Kulekowskis v. DiLeonardi, 941 F. Supp. 741 (N D Ill 1996); DeSilva v. DiLeonardi, 1996 WL 697642 (N D Ill 1996); Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126 (N D Ill 1995). The facts have been set out in those opinions, familiarity with which will be presumed.
The parties agree that four issues are now before this court, and disagree about two others. The two issues the parties do not agree about will be discussed first.
Petitioners contend that "their claim that probable cause was lacking under the dual criminality doctrine to support a finding that their conduct constituted a crime under Canadian law remains unresolved following the decision of the" Seventh Circuit. Respondent disagrees with this. The court agrees with respondent. The Seventh Circuit in its opinion considered whether the requirements of the dual criminality doctrine had been met. The court stated:
We focus on domestic law: "unless a plausible challenge is raised by the person sought, the authorities in the requested state will presume that the acts alleged constitute a crime under the law of the requesting state, and will consider whether the acts alleged constitute a crime under the law of the requested state."DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (7th Cir 1997). The court even more explicitly stated:
Petitioners unsuccessfully argued before the magistrate judge that Manitoba lacks probable cause to believe that Canadian law had been violated. This argument has been abandoned. Because the dual-criminality argument is unsound, writs of habeas corpus should not have been issued.DeSilva v. DiLeonardi, 125 F.3d 1110, 1115 (7th Cir 1997). Accordingly, the issue of whether there was probable cause to believe Canadian law was violated is not one of the remaining issues in this case.
The second issue the parties do not agree about is whether "the evidence before the Magistrate Judge was insufficient to find that Tammy DeSilva was competent to be and was in fact an unconsenting person." Petitioners contend this issue remains to be decided, and respondent argues it was decided by the Seventh Circuit. The Seventh Circuit stated:
The magistrate judge found that the evidence would permit a trier of fact to conclude that Tammy could exercise a rational will, and that she communicated a desire to remain in Winnipeg. If that is true, then Anthony's conduct, had it occurred in the United States, would have violated § 1201(a). Chatwin held that a 15-year-old girl with a mental age of 7 was sufficiently rational to give or withhold consent for purposes of § 1201(a). Evidence in the record could support a conclusion that Tammy possesses at least that much mental acuity, that she resisted Anthony when he took her from her home, and that she communicated intelligibly and rationally with U.S. customs officials when they asked her to choose between returning to Winnipeg or traveling with Anthony to Chicago. Petitioners will have an opportunity to make their arguments to the contrary at trial in Canada.DeSilva v. DiLeonardi, 125 F.3d 1110, 1114-15 (7th Cir 1997). For purposes of this action, this statement is conclusive with respect to the issue of Tammy's mental competency, so the issue of whether there was sufficient evidence before the magistrate judge of Tammy's mental competency and lack of consent is not one remaining in this case.
The parties agree that four issues do remain for this court to resolve in this action: (1) the claim of petitioners LoBue and Kulekowskis that attorney Joseph V. Roddy rendered ineffective assistance of counsel in the proceedings before the magistrate judge; (2) petitioners' claim that the appearance of an Assistant United States Attorney in the case violated the Emoluments Clause of the United States Constitution; (3) petitioners' claim that the Constitution prohibits the conduct of extradition certification proceedings by a non-Article III judge; and (4) petitioners' claim that the record before the magistrate judge contained insufficient evidence to support a finding of probable cause with respect to the intent necessary on their parts to commit the offense of kidnaping.
The second and third issues may be discussed together. Neither the question of whether the appearance of an Assistant United States Attorney in the case violated the Emoluments Clause of the United States Constitution nor the question of whether the Constitution prohibits the conduct of extradition certification proceedings by a non-Article III judge was raised in the extradition certification proceedings before the magistrate judge. Respondent contends that this waives the issues. Petitioners contend they are not waived. Petitioners litigated the merits of the extradition certification proceedings, but neglected to make these objections.
As to the first of those issues, our Court of Appeals has recently held that a governmental party that has litigated the merits and has neglected to interpose a sovereign immunity objection is not entitled to wage a collateral attack on the decision reached on the merits (United States v. County of Cook, 1999 WL 50269, at *7 (7th Cir. Feb. 4)). That teaching forecloses any ability on petitioners' part, having litigated the merits of the extradition certification proceedings while failing to interpose any Emoluments Clause objection, to launch a collateral attack on the outcome of those proceedings on that ground.
As for the second objection, based on the conduct of those proceedings by Magistrate Judge Edward Bobrick (see 881 F. Supp. 1126 (N.D. Ill. 1995)), 18 U.S.C. § 3184 expressly permits such proceedings to be conducted by "any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States" (in addition to permitting state court judges to conduct such proceedings). That statute goes on to permit the authorized judicial officer to issue warrants for the apprehension of the charged person "to the end that the evidence of criminality may be heard and considered." This District Court's General Rule 1.70(B)(1)(j) expressly grants the necessary authorization:
(1) In cases assigned directly to magistrates, they may perform the following duties:
* * *
(j) Issue a warrant for the arrest of a fugitive from a foreign country and conduct all necessary hearings under the provisions of the proper treaty or convention. ( 18 U.S.C. § 3184.)
And pursuant to that authorization, the established procedure in this District Court is that such proceedings are always assigned an "M" number and taken before a magistrate judge. Thus the objection is totally without substantive merit, even apart from the fact that it would have been foreclosed under County of Cook on waiver grounds in any event because of petitioners' failure to have raised the purported (but groundless) Article III objection either before the magistrate judge or on appeal.
Accordingly neither of those two issues may serve as the predicate for habeas relief. This opinion therefore turns to petitioners' other two issues that the parties agree remain for resolution.
In the first agreed issue:
Petitioners LoBue and Kulekowskis claim that the attorney who represented them in the proceedings before Magistrate Judge Bobrick, Joseph V. Roddy, rendered them ineffective assistance of counsel under the Sixth Amendment to the United States Constitution[.]
With respect to this issue, the parties have submitted affidavits from Mr. Joseph Roddy, petitioners Lobue and Kulekowskis, and Mr. Timothy Touhy.
It is significant that the issue the parties agree remains pending concerns only Roddy's representation of LoBue and Kulekowskis, and does not make any claim of ineffective assistance of counsel by attorneys Timothy Touhy and Arthur Engelland. Touhy and Engelland were representing Anthony DeSilva and, it appears, Tammy DeSilva in a lawsuit seeking recovery for the injuries Tammy suffered in a vehicular collision that rendered her quadriplegic. Tammy was living in Canada with her parents in order to obtain health care under the Canadian national health insurance system. Anthony wished to bring Tammy back so that she could receive a medical examination in connection with her lawsuit. LoBue and Kulekowskis went with Anthony to Winnipeg at the request of Touhy to assist in bringing Tammy back. After things turned sour, Touhy and Engelland hired Roddy to represent LoBue and Kulekowskis in, among other matters, the extradition proceedings. Petitioners contend:
Attorney Roddy allowed his representation of Officers Kulekowskis and LoBue to be directed by Attorney Touhy, who with Engelland agreed to pay Roddy's legal fees. Although Roddy purported to represent the Petitioners, and Touhy did not enter an appearance in the extradition proceedings, it was in fact Touhy who controlled the proceedings below. . . . Touhy, not Roddy, personally drafted briefs, affidavits, and other materials filed with the court, and personally counseled the Petitioners as to critical issues such as whether or not they should take the stand to testify. . . . Petitioners submit that the evidence will show that Roddy's loyalties were compromised, and his conduct did not live up to the Rules of Professional Conduct. See ABA Model Rules of Professional Conduct Rule 1.8(f) ("A lawyer shall not accept compensation for representing a client from one other than the client unless . . . there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship."); ABA Defense Function Standard 4-3.5(e) (same).
The evidence, however, is totally to the contrary of the core contention that Roddy's representation of Kulekowskis and LoBue was directed by Touhy. That evidence comes from the affidavit of Roddy, who states:
Affiant states that neither at the initial hearing nor anytime during my representation of Mr. Kulekowskis and Mr. LoBue, did attorneys Arthur Engelland and/or Timothy Touhy suggest, direct, control, or indicate how my representation of Mr. Kulekowskis and Mr. LoBue would occur.
. . . .
Affiant further states that he fulfilled his obligations to the utmost degree in representing the interest of Mr. Kulekowskis and Mr. LoBue, and those are the only interests that the affiant was representing.
I first met Mr. Kulekowskis on February 8, 1992 and Mr. LoBue on March 10, 1992 at the Internal Affairs Division of the Chicago Police Department wherein they requested an attorney to be present. I advised both gentlemen not to render a statement because that statement could be used against them in the Canadian criminal case.
Affiant further states that at his initial meeting with Mr. LoBue, he probably did state that it was his professional opinion that the odds of winning the extradition case were at a minimum. However, affiant further states that after research was completed and after the hearing and briefs were submitted to Magistrate Bobrick, affiant specifically told both clients that he was very optimistic in light of his research that he should prevail on behalf of Kulekowskis and LoBue. It is still the affiant's position that the brief he submitted on behalf of Kulekowskis and LoBue were the best articulation of the applicable law in the field of extradition.
Affiant also states that the following meetings took place with his clients in person:
1. January 28, 1993
2. October 23, 1993
3. March 22, 1994
4. April 7, 1994
5. April 26, 1994
Affiant also states his time slips show numerous telephone conferences with both Mr. LoBue and Mr. Kulekowskis and numerous letters written to them as to the status of each and every proceeding and facet of the extradition hearing.
Affiant further states that during these numerous conferences and especially in preparation for the extradition hearing, both Mr. Kulekowskis and Mr. LoBue were specifically advised of their right to testify or not to testify, and the affiant specifically advised them on numerous occasions that it was his professional opinion that they should not testify for fear that any testimony that they would give would be used in the Canadian criminal proceeding.
Affiant further states that the statement by Mr. LoBue and Mr. Kulekowskis that they were not advised of their right to testify is a misstatement by both gentlemen.
Affiant further states that the allegations that Touhy and Engelland controlled the litigation are beyond this affiant's ability to comment on inasmuch as Messrs. Touhy and Engelland did not control the undersigned, and if LoBue and Kulekowskis were relying on Touhy and Engelland, that was their reliance and it was not directed by me nor was I under the legal or practical influence of Messrs. Touhy and Engelland.
Affiant further states that the original affidavit filed by Mr. Kulekowskis and Mr. LoBue wherein they stated that myself and my office did not even write the brief before Magistrate Bobrick is totally incorrect, and when pointed out to the law firm who drafted the affidavit as well as Mr. Kulekowskis and Mr. LoBue, the affiant understands that the prior affidavits and assertion of such total misstatement of fact has been corrected.
Affiant further states that he did not have any communications nor did he draft the Garippo and McFadden affidavits. Affiant states that he was not concerned with that because it did not match affiant's theory of the case and the brief that was submitted to Magistrate Bobrick.
Affiant further states that as to the affidavit drafted for Mr. Kulekowskis and Mr. LoBue, it was not drafted by the undersigned because the undersigned felt that even an affidavit should not have been submitted wherein it could be used against the clients in the Canadian criminal proceeding as admissions. Affiant told both Mr. Kulekowskis and Mr. LoBue of his opinion.
Affiant states that as to who Mr. Kulekowskis and Mr. LoBue relied on, is beyond my control. I simply cannot question who they relied on. All affiant knows is that his individual professional loyalty was dedicated to representing the interest to the best of my ability, [sic] of Messrs. Kulekowskis and LoBue.
Thus, the evidence is that Roddy's representation of Kulekowskis and LoBue was not directed by Touhy. Since the contention that Roddy rendered ineffective assistance to Kulekowskis and LoBue is premised on the contrary being true, Kulekowskis and LoBue are not entitled to a writ of habeas corpus on this ground.
Although by the statement of the remaining issues only the question of Roddy's effectiveness is raised, the court notes that petitioners Kulekowskis and LoBue would not be entitled to relief even if the issue of the effectiveness of Touhy and/or Engelland were raised. As the Seventh Circuit has stated:
[A] defendant's constitutional right to effective assistance of counsel does not extend to those cases where a non-appearing attorney: (1) gives a defendant legal advice event though he has not been retained by the defendant to help prepare his defense; or (2) is retained by the defendant but his conflict of interest or deficient performance is not reflected in the conduct of the defense at trial.Stoia v. United States, 22 F.3d 766, 769 (7th Cir 1994). In this case, both of the conditions under which a defendant has no right to the effective assistance of counsel for the performance of a non-appearing attorney are present. First, there is no evidence Kulekowskis and LoBue ever retained Touhy or Engelland to help prepare the defense in the extradition case. Second, from Roddy's affidavit, it is apparent that what was done pursuant to Touhy's advice (the affidavits, primarily) was not of concern to Roddy with respect to the extradition, because he considered the affidavits to be non sequiturs to the theory he was presenting to the court on behalf of Kulekowskis and LoBue. Since either of these would be reason enough to find that Kulekowskis and LoBue's right to the effective assistance of counsel was not implicated by the performance of Touhy or Engelland, the performance of Touhy and Engelland could not be the basis for the issuance of writs of habeas corpus.
Finally, petitioners contend the evidence was insufficient to establish that the Canadian court has probable cause to believe they committed the offense of kidnaping. Magistrate Judge Bobrick accurately stated the governing legal principles as follows:
An extradition proceeding is not a trial, but is similar to a preliminary hearing. Bovio v. United States, 989 F.2d 255, 259 (7th Cir. 1992). As in preliminary hearings, hearsay testimony is admissible, and neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply. Id. and n. 3. The respondent has no right to attack the credibility of the witnesses against him. He may not contradict the demanding court's evidence, but may only offer evidence to clarify or explain it. Id.; Eain, 641 F.2d at 511. The foreign government is not required to present its entire case. The evidence presented need only support a reasonable belief that the respondent is guilty of the crimes charged. Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990). It is not the place of American courts to try a person accused of violations of another country's criminal laws; that is the task of the courts of the requesting country.
Probable cause is a flexible concept. According to the Supreme Court:
In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is correlative to what must be proved.Brinegar v. United States, 338 U.S. 160, 175 . . . (1949). Evidence to "block out" the essential elements of the crime is sufficient. Collins v. Loisel, 259 U.S. 309, 317 . . . (1922). the Seventh Circuit has called probable cause "a soundly-based belief that the suspect may have committed a crime." Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 440 (7th Cir. 1986). Probable cause "is less than a rule of more-likely-than-not, but how much less depends on the circumstances." Id. at 438.
Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126, 1140 (N D Ill 1995).
Petitioners contend that there were five purported facts on which the Magistrate Judge's determination of probable cause depended, and set out to discredit those purported facts. In fact, the magistrate judge stated the five items were noted by the Assistant United States Attorney on behalf of Canada, and concludes with respect to those facts:
The respondents' furtive manner is thus only ambiguous evidence of bad faith in the sense relevant here, and is not inconsistent with a belief that Anthony had legal authority to transport Tammy against her will. . . .
Nevertheless, because the evidence is equivocal, respondents must be extradited. . . . At trial, when the respondents and witnesses can be cross-examined, the court may well decide that the respondents acted as they did because the knew or believed they were acting illegally.
Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126, 1148 (N D Ill 1995).
The first of the facts is:
Respondents lied to Terry Kreitz, the Canadian customs officer who stopped them on their way into Canada, telling him that they were going to celebrate Anthony's wedding anniversary and would stay one or two days. This applies to the DeSilvas, who were traveling together in the first car, and to at least one of the riders in the second car, Kulekowskis, LoBue, or Schon. (Kreitz stated that he "received the same answer" as to their purpose for visiting Canada.)Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126, 1147-48 (N D Ill 1995).
Kulekowskis and LoBue argue that there is no basis for concluding that either of them misstated the purpose of the trip to Kreitz. That is of little moment. If they did not make the statement, they were in the car when it was made and did not correct it. Their silence in the face of the lie to Kreitz about the purpose of their trip would itself be supportive of the inference that they knew that they were on a mission with the intent to commit a crime. That all three of the people in the car submitted affidavits that Kreitz was told the purpose of the trip was "business", and so contradicting Kreitz, is not of significance in the determination of whether there was probable cause.
The second of the facts is:
Anthony brought along Kulekowskis and LoBue to intimidate the Wrights.Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126, 1148 (N D Ill 1995). Petitioners Kulekowskis and LoBue claim that this is untrue, that:
The evidence is uncontroverted that Officers Kulekowskis and LoBue understood their role was to drive the cars, and to act as a deterrent force in case Mr. Wright, whom [Kulekowskis and LoBue] were told had threatened to kill Anthony DeSilva, attempted to interfere with what [Kulekowskis and LoBue] were told was the court-authorized process of bringing Tammy Wright to Chicago for a medical evaluation.
There seems little difference between "intimidate" and "act as a deterrent force." Moreover, it is plain that Kulekowskis and LoBue, who were Chicago police officers but were without any authority as peace officers in Winnipeg, were going along so that Tammy could be taken from her parents home by force, if necessary. Even if the court order naming Anthony guardian authorized taken her from her parents home by force, that force should have come from Canadian police. Of all people, this should have occurred to Kulekowskis and LoBue, who were Chicago police officers of long service. To paraphrase the magistrate judge, the force should not have come from two off-duty Chicago policemen acting as muscle. The fact that Kulekowskis and LoBue knew they were going to Canada, in part, to "act as a deterrent force" in taking Tammy from her parents' home is a fact that it was appropriate to use in finding probable cause with respect to the intent, not only of the DeSilvas, but also of Kulekowskis and LoBue.
The third of the facts is:
The respondents' entered Canada late at night and went to Tammy's house early in the morning.Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126, 1148 (N D Ill 1995). This timing is probative of intent, the arguments of petitioners to the contrary notwithstanding. When it is taken with the other facts, it is a factor favoring the existence of probable cause with respect to the intent of all of the petitioners.
The fourth of the facts is:
Kulekowskis or LoBue lied to Mrs. Wright, saying that they were taking Tammy to a local doctor. This was said in the presence of the other respondents.Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126, 1148 (N D Ill 1995). Petitioners attack the credibility of this statement by Mrs. Wright, contending that it is likely a lie. That may be a matter that can be raised in the courts of Canada. It is not a matter for this court to consider in determining whether the courts of Canada have probable cause to believe petitioners committed a crime in Canada.
The fifth of the facts is:
Kulekowskis, LoBue or Albert DeSilva disconnected the telephone when Mrs. Wright tried to use it, and one of them took her list of telephone numbers. Anthony and Schon were in Tammy's bedroom at the time.Matter of the Extradition of Kulekowskis, 881 F. Supp. 1126, 1148 (N D Ill 1995). Petitioners argue:
Christina Wright's affidavit testimony does not support this factual conclusion, which in any event defies credulity, and lacks sufficient particularity to form the basis of a probable cause finding as to Kulekowskis or LoBue. Mrs. Wrights' affidavit provides: "I tried to phone for help. . . . Both times the phone was pulled from the wall so the phone calls were disconnected. My `phone number list' was also removed by one of the men." First, the sentence relating to the disconnection of the phone is en entirely in the passive voice; it does not by any natural reading imply that anyone removed the phone from the wall, but rather suggests that the cord pulled from the wall, perhaps as Mrs. Wright was walking towards Tammy's bedroom with the phone in her hand. Second, the phone clearly was not disconnected in any destructive sense, as Mrs. Wright tells us that as soon as Tammy left the house, she called 911. Third, Mrs. Wright's affidavit has already been shown to contain falsehoods; there is no reason (and certainly no necessity) to credit any of her uncorroborated assertions and speculations.
In fact, a natural reading of Mrs. Wright's affidavit leads to the conclusion that when she tried to make phone calls, one or more of the men in the room disconnected the phone, perhaps by pulling the cord from the phone or the wall. However it was done, it may be inferred that the man or men doing it and the others present in the room by not objecting to the action wished to keep Mrs. Wright from notifying the local authorities of their taking Tammy from the house. This is quite obviously a fact probative on the question of probable cause. The attack on Mrs. Wright's credibility is, again, a matter petitioners may be able to present in court in Canada, but is not one that this court may consider.
The evidence before the magistrate judge established that the Canadian court had probable cause to believe all of the petitioners committed the offense of kidnaping in Canada.
ORDERED: The petition for writ of habeas corpus of Anthony J. LoBue and Thomas C. Kulekowskis (95 C 3103) is denied. Judgment in favor of respondent, Joseph G. DiLeonardi, and against petitioners shall be set forth on a separate document and entered in the civil docket. FRCP 58, 79(a).
The petition for writ of habeas corpus of Anthony DeSilva (95 C 3104) is denied. Judgment in favor of respondent, Joseph G. DiLeonardi, and against petitioner shall be set forth on a separate document and entered in the civil docket. FRCP 58, 79(a).
The petition for writ of habeas corpus of Albert DeSilva (96 C 7592) is denied. Judgment in favor of respondent, Joseph G. DiLeonardi, and against petitioner shall be set forth on a separate document and entered in the civil docket. FRCP 58, 79(a).