Legal Opinions - U.S. 4th Circuit Court of Appeals: June 23, 2008

Daily Record, The (Baltimore), Jun 23, 2008

Immigration

Extradition treaty

BOTTOM LINE: Certified copy of appellate opinion of Italian court affirming in absentia conviction afforded reasonable basis to find probable cause for extradition under treaty between United States and Italy.

CASE: Haxhiaj v. Hackman, U.S. Marshal, US4th No. 07-6836 (decided June 9, 2008) (Judges TRAXLER, Hamilton & Hansen (sitting by designation)).

COUNSEL: Darren Johnson, Office of the Federal Public Defender, Alexandria, VA, for Appellant. Justin Okun, Office of the U.S. Attorney, Alexandria, VA, for Appellee.

FACTS: Blendi Haxhiaj, an Albanian national, was charged in Italy with drug trafficking. Haxhiaj avoided arrest, however, by fleeing to the United States and applying for asylum. Haxhiaj was convicted in absentia by the Court of Milan on three drug-trafficking counts, and was sentenced to a prison term of twelve and one-half years.

The Department of Homeland Security took Haxhiaj into custody. Pursuant to the bilateral extradition treaty between the United States and Italy, the Government filed a formal extradition request for Haxhiaj on behalf of Italy, offering in support a certified copy of the judgment issued by the Court of Appeal of Milan, and the statement of Dr. Bruno Fenzia, an Italian magistrate.

A federal magistrate judge concluded there was probable cause to believe that Haxhiaj committed the crimes identified in Italy's extradition request and issued a certificate of extraditability.

Haxhiaj then petitioned for a writ of habeas corpus, but the district court found there was sufficient evidence supporting the probable cause determination and denied his habeas petition.

Haxhiaj appealed to the 4th Circuit, which affirmed.

LAW: As reflected by Article X of the Extradition Treaty, the United States and Italy agreed upon specific documentary support that must accompany an extradition request between the two countries.

Article X specifically addresses requests to extradite those who are convicted of an extraditable offense in absentia. The Treaty requires more proof than just the fact of an in absentia conviction, however, and directs that a summary of the facts and evidence be supplied to establish "a reasonable basis to believe that the person sought committed the offense for which extradition is requested," Id., art. X, [para]3(b).

An extradition hearing is not to serve as a full-blown trial and serves simply to permit a limited inquiry "into the presence of probable cause to believe that there has been a violation of one or more of the criminal laws of the extraditing country." Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976).

Here, the Court concluded that the certified copy of the appellate opinion of the Court of Appeal of Milan satisfied the showing required by the Treaty, and clearly afforded a reasonable basis upon which to find probable cause.