Opinion
Case No. 6:00-mc-27-Orl-C
January 11, 2001
EXTRADITION CERTIFICATION AND ORDER OF COMMITMENT
I. PROCEDURAL SETTING
On March 23, 2000, the United States filed an in camera complaint seeking the arrest pursuant to 18 U.S.C. § 3184 of an individual identified as "Samuel Quincy Billings." Docket No. 1. The complaint attached as an exhibit a Februaty 25, 2000 criminal information signed by Detective Mario D'Tommaso of the Toronto Police Service Homicide Squad averring that "Samuel Quincy BILLINGS on or about the 21st day of February in the year 2000 at the City of Toronto, in the Toronto region did commit first degree murder on the person of Mario Rebelto CARMONA contrary to the Criminal Code." Docket No. 1 at Exhibit A. The complaint also attached a February 25, 2000 arrest warrant for "Samuel Quincy Billings" signed by a Toronto Provincial Court Justice. Docket No. 1 at Exhibit A. On the same day, the Honorable David A. Baker, United States Magistrate Judge, entered an order authorizing the issuance of a provisional arrest warrant. Docket No. 3. The defendant was arrested pursuant to this warrant on April 3, 2000. At his initial appearance before the Court later the same day, he asserted that his middle name was "Queann," not "Quincy," and requested an identity hearing. Docket No. 7. On April 4, 2000, the Court entered an order of temporary detention pending an identity and detention hearing. Docket No. 8.
On April 17, 2000, attorney Timothy R. Hartung filed a notice of appearance on behalf of the defendant Docket No. 17. On April 18, 2000, the Honorable Karla A. Spaulding, United States Magistrate Judge, held an identity and detention hearing. Docket No. 19. Judge Spaulding heard testimony from Barbara Bergin of the Orlando Police Department and received as evidence copies of the February 25, 2000 information and the February 25, 2000 arrest warrant. Docket No. 20. By order dated April 18, 2000, Judge Spaulding found that the United States failed to establish that the defendant was the "Samuel Quincy Billings" named in the February 25, 2000 information and the February 25, 2000 arrest warrant, and ordered the defendant released. Docket No. 21.
On April 20, 2000, the United States filed an amended complaint. Docket No. 22. The amended complaint provided additional details about the February 21, 2000 Carmona murder and additional identifying physical features of the perpetrator. Like the original complaint, it identified the perpetrator as Samuel Quincy Billings. On the same day, Judge Spaulding signed an arrest warrant. Docket No. 23. The defendant was arrested and appeared before Judge Baker on August 31, 2000. Docket No. 30. Judge Baker ordered detained him detained pending further proceedings. Docket No. 28.
On September 21, 2000, Judge Baker held an identity hearing. Docket No. 33. Judge Baker heard testimony from United States Deputy Marshal Thaddeus Lee and received five exhibits into evidence, including a September 12, 2000 letter from Detective Gordon Sneddon of the Toronto Police Service Homicide Squad detailing the events surrounding the February 21, 2000 Carmona murder. Docket No. 34. In an order dated September 22, 2000, Judge Baker stated as follows:
Based on the evidence presented, the individual arrested by the United States Marshals Service and identified as Samuel Billings is the person named in the provisional arrest warrant in this extradition proceeding. Accordingly, Mr. Billings will be held to answer the warrant.
Further proceedings on the extradition request will be scheduled by United States Magistrate Judge James G. Glazebrook in accordance with 18 U.S.C. § 3181 et seq.
Docket No. 35.
The Court scheduled an extradition hearing for November 1, 2000. Docket No. 36. At the defendants' request, the Court rescheduled the hearing for November 21, 2000. Docket No. 38. At the November 21, 2000 extradition hearing, the Court heard testimony from United States Deputy Marshal Thaddeus Lee and received two exhibits into evidence. Docket No. 40. The defendant did not elicit any testimony (either on cross-examination of Lee or from any defense witnesses), nor offer any evidence.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
1.) Section 3184 of Title 18 of the United States Code states as follows:
Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b), any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181(b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered. Such complaint may be filed before and such warrant may be issued by a judge or magistrate of the United States District Court for the District of Columbia if the whereabouts within the United States of the person charged are not known or, if there is reason to believe the person will shortly enter the United States. It on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person. according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.
2.) Local Rule 6.01 provides in relevant part as follows;
(a) In addition to the powers and duties set forth in 28 U.S.C. § 636 (a), the United States Magistrate Judges are hereby authorized, pursuant to 28 U.S.C. § 636 (b), to perform any and all additional duties, as may be assigned to them from time to time by any judge of this Court, which are not inconsistent with the Constitution and laws of the United States.
(b) The assignment of duties to United States Magistrate Judges by the judges of the Court may be made by standing order entered jointly by the resident judges in any Division of the Court; or by any individual judge, in any case or cases assigned to him, through written order or oral directive made or given with respect to such case or cases.
(c) The duties authorized to be performed by United States Magistrate Judges, when assigned to them pursuant to subsection (b) of this rule, shall include, but are not limited to:
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(9) Issuance of warrants and conduct of extradition proceedings pursuant to 18 U.S.C. § 3184.
3.) There is currently in force an Extradition Treaty between the United States and Canada dated December 3, 1971 (which entered into force on March 22, 1976 [T.I.A.S. 8237]), as amended by the Protocol Amending the Extradition Treaty with Canada dated January 11, 1988 (which amendment entered into force on November 26, 1991) [the "Extradition Treaty."] Government's Exhibit 2, Declaration of Thomas B. Heinemann at ¶ 3.
4.) Article 1 of the Extradition Treaty states that:
Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with, or convicted of, any of the offenses covered by Article 2 of this Treaty committed within the territory of the other, or outside thereof under the conditions specified in Article 3(3) of this treaty.
Government's Exhibit 2.
5.) Article 2 of the Extradition Treaty states that:
(1) Extradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment.
(2) An offense is extraditable notwithstanding:
(i) that conduct such as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, required for the purpose of establishing jurisdiction, forms part of the offense in the United States, or
(ii) that it relates to taxation or revenue or is one of a purely fiscal character.
Government's Exhibit 2.
6.) Article 9 of the Extradition Treaty states that:
(1) The request for extradition shall be made through the diplomatic channel.
(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense, and a statement of the law relating to the limitation of the legal proceedings.
(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his arrest and committal for trial if the offense had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.
(4) When the request relaxes to a person already convicted, it must be accompanied by the judgment of conviction and sentence passed against him in the territory of the requesting State, by a statement showing how much of the sentence has not been served, and by evidence proving that the person requested is the person to whom the sentence refers.
Government's Exhibit 2.
7.) Article 10 of the Extradition Treaty states that:
(1) Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State.
(2) The documentary evidence in support of a request for extradition or copies of these documents shall be admitted in evidence in the examination of the request for extradition when, in the case of a request emanating from Canada, they are authenticated by an officer of the Department of Justice of Canada and are certified by the principal diplomatic or consular officer of the United States in Canada, or when, in the case of a request emanating from the United States, they are authenticated by an officer of the Department of State of the United States and are certified by the principal diplomatic or consular officer of Canada in the United States.
8.) Section 235(1) of the Chapter C-46 of the Revised Statutes of Canada 1985 [the "Canadian Criminal Code"] provides that "[e]very one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life." Government's Exhibit 1, Affidavit of Robert Kelley at ¶ 14.
9.) Section 229 of the Canadian Criminal Code states:
Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
Government's Exhibit 1, Affidavit of Robert Kelley at ¶ 12.
10.) Section 222(5) of the Canadian Criminal Code provides that:
A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
Government's Exhibit 1, Affidavit of Robert Kelley at ¶ 11.
11.) Section 231 of the Canadian Criminal Code states in relevant part as follows:
(1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling another person to do any act causing for assisting in causing that death.
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(7) All murder that is not first degree murder is second degree murder.
Government's Exhibit 1, Affidavit of Robert Kelley at ¶ 13.
12.) On Februaiy 25, 2000, Detective Mario D'Tommaso of the Toronto Police Service Homicide Squad executed a criminal information charging an individual identified as "Samuel Quincy Billings" with committing first-degree murder in violation of § 235(1) of the Canadian Criminal Code. Government's Exhibit 1, Affidavit of Gordon Sneddon at ¶ 4.
13.) On February 25, 2000, a Canada-wide warrant for the arrest of "Samuel Quincy Billings" was issued. Government's Exhibit 1, Affidavit of Gordon Sneddon at ¶ 4.
14.) Both the February 25, 2000 information and the February 25, 2000 arrest warrant comply with the procedural requirements of Canadian law. Government's Exhibit 1, Affidavit of Robert Kelley at ¶ 6.
15.) The defendant, who appeared at both the September 21, 2000 identity hearing before Judge Baker and at the November 21, 2000 extradition hearing, is one and the same person identified in the February 25, 2000 information and the February 25, 2000 arrest warrant as "Samuel Quincy Billings." Docket No. 35.
16.) On October 27, 2000, the Canadian Embassy in Washington, D.C. submitted Diplomatic Note No. 0343 requesting that the United States extradite "Samuel Quincy Billings." Government's Exhibit 2.
17.) The defendant is one and the same person identified in the October 27, 2000 diplomatic note as "Samuel Quincy Billings."
18.) All of the procedural prerequisites specified in the Extradition Treaty have been satisfied.
19.) Under Article 2 of the Extradition Treaty, the Court must determine if offense charged against the defendant in Canada "constitutes an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment."
20.) The laws of both the United States and of the State of Florida prohibit murder.
21.) At the November 21, 2000, counsel for the defendant stipulated that the relevant law of the United States for purposes of Article 2 is 18 U.S.C. § 1111, which provides as follows:
(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.
(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.
22.) The offense with which the defendant is charged in the February 25, 2000 information and the February 25, 2000 arrest warrant is punishable by the laws of both the United States and Canada by imprisonment for a term exceeding one year, and is therefore an extraditable offense under Article 2 of the Extradition Treaty.
23.) Section 3184 of the Title 18 of the United States Code requires the Court to determine the existence of "evidence sufficient to sustain the charge under the provisions of the proper treaty or convention."
24.) Article 10 of the Extradition Treaty provides that the Court may grant extradition "only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in its territory or to prove that he is the identical person convicted by the courts of the requesting State."
25.) Article 10 of the Extradition Treaty requires that documentary evidence in support of extradition must be properly certified.
26.) The documentary evidence submitted by the United States at the November 21, 2000 extradition hearing is properly certified under Article 10.
27.) Having reviewed this documentary evidence and the testimony presented at the November 21, 2000 hearing, the Court finds that probable cause exists to believe that the defendant committed first degree murder in violation of § 235(1) of the Canadian Criminal Code, as charged in the February 25 information.
For the foregoing reasons, this matter is CERTIFIED to the Secretary of State of the United States, together with a copy of all testimony taken before this Court, in order that a warrant may issue upon the requisition of the proper authorities of Canada for the surrender of Samuel Quincy Billings according to the provisions of the Treaties between the United States and Canada. It is further,
ORDERED that Samuel Quincy Billings is committed to the custody of the United States Marshal, or his authorized representative, to be confined to appropriate facilities and to remain until he is surrendered to Canada pursuant to applicable provisions of Treaty and law. It is further
ORDERED that the clerk of the Court will obtain transcripts of all testimony presented before the Court. The Clerk shall forward to the Secretary of State a copy of this Certification and Order together with transcripts of testimony and copies of documents received as evidence.
DONE and ORDERED