In re the Extradition of Moglia

813 F. Supp. 1438, 1993 U.S. Dist. LEXIS 6324, 1993 WL 51785
CourtDistrict Court, D. Hawaii
DecidedFebruary 26, 1993
DocketMisc. No. 92-00138 ACK
StatusPublished

This text of 813 F. Supp. 1438 (In re the Extradition of Moglia) is published on Counsel Stack Legal Research, covering District Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Extradition of Moglia, 813 F. Supp. 1438, 1993 U.S. Dist. LEXIS 6324, 1993 WL 51785 (D. Haw. 1993).

Opinion

ORDER CERTIFYING THE EXTRADITABILITY OF GIANCARLO FORMICHI MOGLIA

KURREN, United States Magistrate Judge.

On January 26, 1993, this court held an extradition hearing pursuant to 18 U.S.C. [1439]*1439§ 3184 regarding the request by Italy to extradite Giancarlo Formichi Moglia (“Moglia”) for violation of Italian narcotics laws.1 Assistant United States Attorney Marshall Silverberg represented Italy and Donna Gray, Assistant Federal Public Defender, represented Moglia. The court having reviewed and considered the documents and affidavits submitted by Italy, the testimony of the witnesses presented at the extradition hearing and the memoranda and oral arguments of counsel, hereby certifies the extraditability of Moglia to the Secretary of State of the United States on the charged offenses.

I. INTRODUCTION

On October 13, 1992, in accordance with Article XII of the Extradition Treaty Between the Government of the United States of America and the Government of the Republic of Italy, October 13,1983, T.I.A.S. No. 10837, reprinted in 24 I.L.M. 1525 (“the Treaty”) (a copy of the Treaty was received in evidence as Exhibit A), Moglia was arrested at the Honolulu International Airport at the request of Italy.

On November 18, 1992, pursuant to Article X of the Treaty, the Italian Government presented through diplomatic channels a formal request for Moglia’s extradition.2 On November 25, 1992, Italy filed a Memorandum of Law in support of its extradition request, including numerous documents identified as Exhibits A through F. On November 30, 1992, Italy filed a Supplemental Memorandum of Law, including Exhibit G. On January 7, 1993, Moglia filed a Memorandum of Law in Opposition to Italy’s Extradition Request. On January 25, 1993, Italy filed a Reply Memorandum, including Exhibits H, I, J, Kl, and K2. All of the exhibits were received in evidence at the hearing.

Italy alleges that: (1) Moglia (in association with others) possessed, imported, transported and distributed 600 kilograms of cocaine into and in Palermo, Italy; and (2) Moglia conspired with others to aid and abet narcotics trafficking by facilitating the movement of money derived from the shipment of the 600 kilograms of cocaine described in Count 1. Italy wants to extradite Moglia to stand trial for these two charges. Moglia is opposing the extradition request.

II. EXTRADITABILITY REQUIREMENTS

Before extradition may be certified, the court must be satisfied that the following elements have been established:

(1) that there is an extradition treaty in force between the United States and Italy;

(2) that Italy has “charged” Moglia with one or more crimes (see Article I of the Treaty);

(3) that a certified copy, of the arrest warrant or any order having similar effect has been presented to this court (see Article X, ¶ 3(a));

, .(4) that the crimes for which he is charged are extraditable offenses within the terms of the Treaty (see Articles I and II of the Treaty);

(5) that the evidence submitted established a reasonable basis to believe that Moglia committed the charged offenses, (see Article X, ¶ 3(b)); and

(6) that the individual before the court is the same person who is charged in Italy (see Article X, ¶ 3(c)). See, e.g., Extradition of Suarez-Mason, 694 F.Supp. 676, 685 (N.D.Cal.1988) (citing Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir.1986) and Captan v. Vokes, 649 F.2d 1336, 1343 (9th Cir.1981).

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. There Is An Extradition Treaty In Force

The court finds that the submission of Italy establishes the existence of an extra[1440]*1440dition treaty in force between the United States and Italy. Moglia does not dispute this finding.

2. Moglia Has Been Charged Within The Meaning Of The Treaty

There has been a dispute as to whether or not Moglia was in fact “charged” within the meaning of the treaty. Before Moglia arrived in the United States, he was found residing in Australia, and Italy attempted unsuccessfully to extradite him from that country. The extradition request was denied because the Australian court determined that the arrest warrant issued on February 18, 1992, was for investigative purposes only and that Moglia had not in fact been “charged” within the meaning of the treaty. However, following the Australian extradition proceeding, on October 20, 1992, the Italian prosecutor, Dr. Sciacchitano, requested Moglia’s commitment for trial (Exhibit C at 424-26). There is no dispute that under Italian law once a prosecutor asks the court for a person’s commitment for trial, that person has been “charged” within the meaning of the treaty.3

3. There Is A Certified Copy Of The Arrest Warrant

The third element — whether a certified copy of the arrest warrant has been presented — also is not in dispute. The arrest warrant was issued on February 18, 1992, and a certified copy of it was received as Exhibit B.

4. The Dual Criminality Requirement Has Been Satisfied

The Treaty at Article II defines “extraditable offenses.” According to its provisions, an offense is extraditable only if it is a felony offense under the laws of both Italy and the United States, i.e. punishable by more than one year imprisonment. In addition to making all criminal acts extraditable if they are felonies in both Italy and the United States, the treaty also provides that any type of association or conspiracy to commit such felony is an extraditable offense. Article II, H 2.

Article II is a standard provision that is contained in most extradition treaties. It represents a maxim of international law known as “dual criminality.” The rule of dual criminality means that extradition will not take place unless the offense charged is a crime in both the demanding and the requesting country.

Moglia does not challenge that the first offense charged — the importation and distribution of 600 kilograms of cocaine into and in Italy is in violation of Article 71 of Italian law (see Exhibit B at 58) — and would be a crime if it had occurred in the United States. See 21 U.S.C. §§ 841, 959. Rather, Moglia’s argument is that there is no evidence that the second charge — regarding the laundering of the proceeds of the distribution — is a crime in Italy (while conceding it would be a violation of United States money laundering laws) (Op.Mem. 10).

In considering this issue, it must be noted initially that the courts have interpreted the dual criminality provision very liberally as not requiring an identical counterpart in each jurisdiction. In other words, “[djual criminality requires only that the acts alleged constitute a crime in both jurisdictions.” Bozilov v. Seifert,

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813 F. Supp. 1438, 1993 U.S. Dist. LEXIS 6324, 1993 WL 51785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-extradition-of-moglia-hid-1993.