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IN RE KULEKOWSKIS

March 28, 1995

In the Matter of the Extradition of THOMAS KULEKOWSKIS, ANTHONY J. LOBUE, ANTHONY DE SILVA, ALBERT DE SILVA and JUDITH DAWN SCHON


The opinion of the court was delivered by: EDWARD A. BOBRICK

 Before the court are the COMPLAINT FOR EXTRADITION (18 U.S.C. § 3184) filed by the United States' Attorney for the Northern District of Illinois on behalf of the Government of Canada seeking the extradition of respondents Thomas Kulekowskis, Anthony J. LoBue, Anthony DeSilva ("Anthony"), Albert DeSilva and Judith Schon, and RESPONDENTS' MOTION TO DISMISS THE COMPLAINT FOR EXTRADITION. The Canadian government accused respondents of kidnapping Tammy Lynn Wright ("Tammy"), Anthony's wife, from her home in Winnipeg, Manitoba, Canada, on February 3, 1992. The respondents have been released on bail pending a ruling on the petition.

 As will be discussed in detail below, extradition requires only that the extraditing country show that the person before the court is the accused person, that the offense with which the accused is charged is an extraditable offense under the applicable treaty, and that there is probable cause to believe the accused committed the offense.

 The respondents do not deny that they are the persons sought in the Canadian government's request for extradition, nor do they deny removing Tammy from her home and bringing her from Canada into the United States. They contend that because Anthony was Tammy's legal guardian their conduct was either lawful or not extraditable: alternatively, they argue that their reasonable belief that they had legal authority to transport Tammy should bar extradition.

 On May 27, 1994, a hearing was held before the undersigned, at which the parties argued their positions. Neither party sought to introduce witness testimony, although respondents' expert on international law and foreign relations, Patrick M. McFadden, was questioned concerning his affidavit. Instead, the parties introduced into evidence extensive exhibits consisting of affidavits, transcripts of court proceedings, transcripts of telephone calls, court orders, copies of treaties, and other relevant documents. *fn1"

 On August 15, 1994, the record was closed to the introduction of further evidence. All parties filed extensive post-hearing briefs, and the Fraternal Order of Police also filed a brief amicus curiae. The matter is ready for decision. Jurisdiction of the Magistrate Judge over the subject matter of this case and the persons of the defendants is not contested.

 1. FACTS

 The evidence before the court yields the following account. Tammy and Anthony were married in 1986. In December 1987, they were involved in an automobile accident that left Tammy a quadriplegic with serious and considerable brain damage. Anthony was appointed guardian of Tammy's estate and person by order of the Circuit Court of Cook County, Illinois dated May 24, 1988. (Resp. Exh. 13).

 It was in June 1988, that Anthony, on his own behalf and as Tammy's guardian, filed a personal injury lawsuit in the Circuit Court of Cook County, in Chicago, against the driver and owner of the other vehicle involved in the accident that crippled Tammy. By reason of this lawsuit it became necessary for Tammy to undergo a medical examination as part of discovery proceedings in that suit.

 On January 31, 1992, Anthony's lawyer, Timothy J. Touhy, appeared before Judge James W. Kennedy of the Probate Division of the Circuit Court of Cook County seeking an order authorizing Anthony to bring Tammy to Chicago for examination. It appears from Touhy's colloquy with the court that Anthony was afraid that Tammy's parents would be named her guardians in a Canadian proceeding and that Anthony would thus lose control of her care. Anthony was fearful that Tammy's father, Ernest Wright, would misuse and misappropriate the monies to which Tammy was entitled for her injury and care. (Pet. Supp. Exh. 1, pp. 4, 6; Resp. Exhs. 29 and 33). If he were appointed guardian of Tammy, Anthony intended to bring Tammy back to Chicago to live and Tammy would live on $ 20,000 in the guardianship account until settlement of the litigation provided a source of money for her care. (Transcript of Proceedings of January 31, 1992, Pet. Supp. Exh. 1).

 Judge Kennedy pointed out to Mr. Touhy that Anthony did not need an order to bring Tammy to Chicago, but Touhy asked him to enter an order anyway "just in case he [Anthony] is stopped." Id. Commenting that there was "not too much I can do, if anything, in Canada," id., Judge Kennedy entered an order authorizing Anthony "to take custody of the person of Tammy DeSilva, wherever she may be found, for the purpose of presenting her to a physician or medical care provider for evaluation, treatment or assessment," and enjoining third persons from interfering. (Resp. Exh. 20).

 The following day, February 1, 1992, an anonymous caller telephoned the 911 emergency telephone line in Winnipeg. The telephone conversation was recorded and transcribed. (Pet. Supp. Exh. 3). *fn2" The caller identified himself as an American lawyer who wanted to ask about procedures to be followed in bringing the Canadian wife of an American citizen to the United States for treatment. *fn3" Although he first stated that the woman was in a coma, the caller later corrected himself and said that she was brain-damaged and could not communicate. He said the husband was the wife's guardian, and that he had a court order permitting him to take her to the United States for treatment. He wanted to know whether he had to submit a copy of the order to the local police or what formalities were required.

 The 911 operator connected the caller with Duty Inspector Donald MacDiarmid of the Winnipeg Police, and the caller explained his situation as follows:

 
We're trying to make arrangements for him to come up with the Court Order and with the uh the people. I mean the medical personnel who are going to transport her and I talked to the airlines and I'm trying to make arrangements with them to do that. But I know in our Country what we have to do, it's what we call an Order of Protection, where we have an order uh giving him authority to remove her wherever she's found and prevent anyone else from interfering with her. . . . When we have to do that in the United States we have to file a copy with the local Police Department. So that they're put on notice of the Order.

 (Pet. Supp. Exh. 3 at 5). He then asked whether MacDiarmid "considered that to be a police matter." MacDiarmid responded that it would only be a police matter "if you expected resistance from her to be moved." The caller stated that the woman would not be in a position to offer resistance, but that family members might interfere, explaining that this was why they had obtained a court order. Id. He did not say what court had issued the order. MacDiarmid said that

 
as the husband and as a Canadian citizen he'd be entitled to move her anywhere that he choice [sic] and only at such time as other family members opposed it, they would have to get a Court Order to stop it. In other words I would think the onus would then fall on them. He doesn't have to produce anything. That's his wife.

 Id. at 6. The caller then pressed him, asking what would happen if the mother asked the police to arrest the husband for taking her daughter. MacDiarmid indicated that he thought the mother would not have the right to block it. Id. at 7. There then appears to be some confusion, as MacDiarmid stated that the only way the police could determine whether there was a court order in Canada would be to ask the Court of Queen's Bench. The caller assured him that "there's nothing pending up there," then asked him hypothetically whether, if someone were to call and say that "so and so is moving my daughter or my sister and so and so is the husband, would you consider that to be a Police matter?" MacDiarmid said that he would not. Id.

 Showing some anxiety and uncertainty, the caller continued the conversation, explaining that he was going "through all this preliminary rigmarole" to avoid any delay in transporting the woman. MacDiarmid asked to whom the caller had spoken, and the caller told him he had spoken to "the Consulate," who referred him to "the R.C.M.P. [Royal Canadian Mounted Police]" who had referred him to the Winnipeg police, adding that "apparently no lawyer can give me any advice on this." Id. at 8. MacDiarmid, perhaps now realizing that the matter might be more complicated than he had thought, said that "we [the police] would go to what we call our Crown Attorney's Office and we would speak with the Senior Crown attorney who is Bruce Miller and he would be able to give us advice on where we stand on that regard." Id. at 8-9. MacDiarmid then repeated his understanding that if what was proposed were to be done the police would not become involved "unless the family went to Court and obtained a Court order." Id. at 9.

 The caller then asked MacDiarmid's name, and asked if he would be the duty inspector on Monday. MacDiarmid said that he would be on duty starting at 4:30 and gave the name of the officer who would be on duty before then. MacDiarmid then gave him Bruce Miller's telephone number so that he could obtain further advice. Id. at 10. The caller then said "well it certainly can't be a Police matter 'cause a man can't kidnap his own wife uh," to which MacDiarmid responded, "no." Id. at 11. MacDiarmid then attempted to transfer the call to Miller's office. As he did so, the recorder picked up the following conversation:

 
He's the Duty Inspector and he's identified the other Duty Inspector and he's gonna get me the Crown Attorney, who can give us, who's gotta be like the uh Government Lawyer up there. Who he (inaudible). He's never heard of this and he says there's noth-no reason he can think that they'd try to stop it. Hi Judy. Judy this is Tony (inaudible). Judy's a nurse (laughs). Who we may have to press into service in this one (laughing).

 Id. There is no evidence that the caller telephoned Miller prior to the alleged kidnapping.

 On February 3, 1992, between two and four a.m., two cars approached the Canadian border and their occupants were interrogated by Canadian Customs Officer Terry, Kreitz as to their business in Canada. The first car contained two men. The passenger gave his name as "DeSilva" and said they were traveling to Winnipeg to give his wife a surprise wedding anniversary party, and that they would be staying one or two days. The driver said he was DeSilva's boss, and said that the vehicle behind them contained friends of the DeSilva's going to the same event. The second car had three occupants, two men and a woman. The men said they were Chicago police officers and showed police identification. They also said they were going to a party for the DeSilvas. Kreitz let them pass. (Pet. Final Supp. Exh. 2).

 At about 6:40 a.m. that day Christina Wright responded to a pounding on her side door. When she answered the door she saw Anthony, his father Albert DeSilva, and two men and a woman she had never seen before. She learned later (she does not say how) that the men were Chicago police officers, and stated that the woman was identified as a nurse according to Mrs. Wright the group then barged into her home. The men said they had a court order to take Tammy to be examined by a Dr. West at a 7:15 a.m. appointment at the Mall Clinic in Winnipeg. Anthony and the woman went to Tammy's bedroom. The woman put Tammy's hand splints and shoes in her purse and Anthony rummaged through her drawers and closets. Mrs. Wright observed that Tammy looked scared, surprised and shocked, and was crying and kicking. (Affidavit of Christine Wright, Pet. Exh. 15). *fn4"

 Mrs. Wright returned to the kitchen area where Albert DeSilva, Kulekowskis and Lo Bue were waiting. She tried to phone for help, first trying to call her brother-in-law, then her attorney. Both times the men disconnected the telephone from the wall so that she could not complete the call. *fn5" One of the men also took her list of telephone numbers.

 Mrs. Wright saw Anthony carry Tammy from her bedroom and out the door wearing only her pajamas and a bathrobe. He placed her in a white car and all of the visitors drove away. After they were gone, she telephoned 911 for help. At no time did Anthony tell her that he planned to take Tammy, nor did Anthony ever ask Tammy if she were willing to go with him. Id.

 The Winnipeg police received Mrs. Wright's call to 911 at approximately 7:00 a.m. The call was recorded and transcribed as Pet. Supp. Exh. 3. She was evidently very anxious and upset. The 911 operator gave her the telephone number of the district police station. Id. Perhaps because the police did not appear to be acting, or acting quickly enough, she also called her lawyer Robert Tapper, who then spoke with Staff Sergeant William VanderGraaf of the Winnipeg Police Department shortly before 7:30 a.m. Tapper told him that Anthony and Tammy were legally separated and that Tammy is a quadriplegic. (Affidavit of William VanderGraaf, Pet. Exh. 10 at 2). He apparently did not say that Anthony was Tammy's legal guardian.

 A plainclothes constable, R. de Groot, was dispatched to Mrs. Wright's home, arriving about 8:05 a.m. De Groot informed VanderGraaf, in addition to the facts set forth above, that Mrs. Wright told him that Anthony had said that he had the legal right to take Tammy and had briefly shown her a legal document from a United States court, but that she had not been able to read it. She said that Tammy had been living with her in Winnipeg since July 1989, and that there had been no communication between Tammy and Anthony since Christmas of 1990. Mrs. Wright believed that Anthony was taking Tammy back to the United States because there was litigation pending concerning the accident involving millions of dollars. Id. at 3. Although VanderGraaf stated that "I am further informed that Anthony De Silva obtained guardianship of his wife as a result of a Cook County Court decision;" he does not say that he knew at the time that Anthony was Tammy's guardian.

 According to VanderGraaf, the R.C.M.P. and Ontario Provincial Police were alerted shortly before 8:30 a.m. Vandergraaf had learned, whether through Tepper or Mrs. Wright, that Tammy could use a computer keyboard device to communicate. Two other Winnipeg police officers. Sergeants Roland Oliver and Robert Marshall, went to the house and took the keyboard, which the respondents had not taken with them, and headed for Emerson, Manitoba and then to the American border crossing station at Pembina, North Dakota, arriving there at 10:05 a.m. Id. at 4-5.

 There they found the respondents and Tammy, who had been stopped by U.S. Customs agents at about 8:45 a.m. in response to a notice from the Winnipeg police that a female quadriplegic who was unable to speak had been abducted by her estranged husband and four other individuals. (Investigative Report of U.S. Customs Special Agent Michael H. Mach, Pet. Exh. 11 at 2). Tammy's abductors were identified as the respondents named in this petition. Sergeant C.N. MacKINNON, the officer in charge of the Emerson Department of the R.C.M.P. then arrived, and was permitted to observe as Vera Layhon, United States Customs Supervisor, questioned Tammy. Not having her keyboard, Tammy responded by nodding or shaking her head to signify "yes" or "no." She indicated that she understood Layhon was a U.S. Customs officer, that she was afraid, that she had not been given drugs or medication, she was being taken against her will, and that she wanted to go back to Canada. MacKINNON believed she understood what was being said to her. (C.N. MacKINNON Letter dated February 2, 1992, Pet. Final Supp. Exh. 1) (VanderGraaf Aff. at 7).

 When Marshall and Oliver arrived with Tammy's keyboard device, better communication became possible. At about 11:15 a.m. U.S. Customs Special Agents Michael H. Mach and Anthony L. Onstad arrived. Mach questioned Tammy using the keyboard and elicited the following responses:

 
Agents: Is there anything you would like to say before we begin asking you questions? We would like to know what your feelings are about this situation.
 
Tammy: Where did you get this machine?
 
Agents: The Winnipeg police brought it here from your mother's place. What do you want Tammy? What would you like to say?
 
Tammy: I want to go home with Anthony if it is o.k.
 
Agents: Where is home Tammy?
 
Tammy: Winnipeg.
 
Agents: Do you want to go home with Anthony to Chicago?
 
Tammy: I want to go home.
 
Agents: Do you want to go to Chicago?
 
Tammy: No.
 
Agents: Why don't you want to go to Chicago?
 
Tammy: Because it is not home.
 
Agents: Do you want to be with Anthony or you mom?
 
Tammy: My mom.
 
Agents: How long have you been in Canada since the accident happened?
 
Tammy: One year.
 
Agents: What did Anthony tell you this morning about where he was taking you?
 
Tammy: For a ride, did not say where.

 (Mach Investigative Report, Pet. Exh. 11 at 2-4).

 The customs agents noted that the respondents had not brought along any clothes or luggage for Tammy. Id. at 4. The agents interviewed Anthony, who told them that he had flown into Fargo, North Dakota the previous evening where his father, Albert DeSilva, had rented a Cutlass Cierra and Kulekowskis had rented a Cadillac DeVille. They had driven to Winnipeg, arriving early in the morning. He stated that he had not known the two off-duty police officers, Kulekowskis and LoBue, or Schon, the nurse, before the trip. He said he brought Kulekowskis and LoBue along because he was afraid that Tammy's father, Ernest Wright, would attempt to prevent him from taking Tammy with him. According to Anthony, Ernest Wright had deserted the family when Tammy was young, and was only interested in getting his hands on the proceeds of the lawsuit.

 Anthony told them that Tammy is unable to communicate or understand what is happening to her. She could not think rationally; she didn't care about the "six million dollar lawsuit" and only wanted to be home with her mother and forget what happened to her in Chicago. At that time the officers told Anthony that they had interviewed Tammy, and that her skills were good and that she understood what was happening to her. Id. at 6.

 When the officers interviewed LoBue and Kulekowskis, they told them that they thought they were doing a favor for a lawyer in Chicago and that everything was legitimate. According to Mach, the two said the lawyer was "Tim Touhy"; according to Onstad, the lawyer's name was an "Art England." *fn6" They said they were not acting as policemen and they were not being paid, but would be reimbursed for the vehicle rental and their airline tickets had been purchased by the lawyer. Before they left Chicago they had been in the lawyer's office when he spoke on the telephone to an Inspector "McDermott" who had advised the lawyer that this was not a police matter but a civil matter. (Mach Investigative Report, Pet. Exh. 11 at 4-6; Onstad Investigative Report, Pet. Exh. 12 at 4-6).

 Meanwhile, Tapper, the Wrights' attorney, had filed an emergency petition with the Court of Queen's Bench in Winnipeg and obtained an interim order naming the Wrights as Tammy's guardians. (Resp. Exh. 21). *fn7" The assembled offices at Pembina were apparently notified of this, since Mach's report states that an AUSA (Assistant U.S. Attorney) Crooks advised the agents to allow Tammy to return to Canada pursuant to a Canadian Court order issued on February 3, 1992. (Mach Investigative Report at 7). Tammy returned home in an ambulance, but only after repeatedly asking Anthony to come with her. Anthony refused, saying that he would be arrested if he went back to Canada, and asked Tammy to come with him to Chicago, saying that after she appeared before the court he would bring her back to Winnipeg. Tammy said she did not want to go to Chicago, and again asked Anthony to return with her to Winnipeg. Eventually Anthony left the Pembina port of entry at 1:45 p.m. and at 2:00 p.m. Tammy left Pembina for Winnipeg. (Onstad Investigative Report, at 7).

 The following day, February 4, 1992, Sergeant Marshall again visited Tammy at her home in Winnipeg. He asked her "how she felt" about the five people being charged with a criminal offense She nodded "yes" and then typed out "Do it." He then asked her "if she needed further explanations." Her typed response was "I understand." On February 7, 1992, in the company of another policeman, he again spoke with Tammy. Tammy said she had been "scared" during the incident, she wanted to remain in Winnipeg with her mother, she did not want to go anywhere with Anthony, and still wanted all five people to be charged with a criminal offense. (Affidavit of Robert Marshall, Pet. Exh. 9, at 3). According to Mrs. Wright, when Tammy returned she was glad to see her and Ernest Wright, she looked scared, shocked and confused, and was ill on the two following days due to the trauma of the incident. (Christina Wright Aff. at 2).

 II. THE STANDARD FOR EXTRADITION

 A. The U.S. - Canada Extradition Treaty And The ...


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