particular conduct with which the individual to be extradited is charged, but the conduct understood as defining the offense under the law of each country. The conduct defining the offense of kidnapping under both U.S. and Canadian law is confinement or transportation of the victim against the victim's will without lawful authority, not confinement or transportation against the victim's will under the purported authority of an Illinois guardianship.
Because there is probable cause to believe that Anthony and the other respondents confined and transported Tammy against her will, as will be more fully discussed below, the question is whether Anthony had lawful authority to do so. In Illinois (and presumably in Manitoba), if the alleged victim is the legal ward of the accused and, as here, the transportation is plausibly in the ward's interest, the accused cannot be guilty of kidnapping because in the eyes of the law it is not against the ward's will. The guardian has the power to consent on behalf of the ward and the ward has no legally cognizable will contrary to that of her guardian. This, which forms the core of respondents' arguments, however, presupposes a legally recognized guardianship (in particular under Canadian law).
A privilege granted by a sovereign government to engage in conduct that would otherwise be criminal need not be recognized by another sovereign on its own soil. Respondents Kulekowskis and LoBue, as Chicago police officers, may arrest on the streets of Chicago any person whom they have probable cause to believe has committed a felony, and employ reasonable force in doing so. They may not do this outside Illinois where they have no license to commit what would otherwise be an assault. If there is probable cause to believe that Tammy was transported out of Canada against her will, and Anthony had no authority under Canadian law to take her, the respondents may be extradited.
Respondents also raise a second version of this argument. Conceding, arguendo, that the true parallel would be a guardian under Canadian law who abducted his ward from Illinois, respondents contend that an Illinois court would recognize the Canadian guardianship as a matter of comity and an Illinois judge would have dismissed the kidnapping charges. In support of their argument, respondents offer the affidavit of former Illinois Judge and State's Attorney Louis P. Garippo who states the advanced premise. Therefore, they reason, since an Illinois court would not have convicted them of kidnapping had they acted pursuant to a Canadian guardianship, the requirements of the Treaty have not been met.
Again, respondents are mistaken. Illinois law does not provide for automatic recognition of a foreign guardianship order. Comity does not require the recognition of a foreign decree establishing guardianship over a child residing in Illinois. People ex rel. Noonan v. Wingate, 376 Ill. 244, 33 N.E.2d 467 (1941); Republic of Iraq v. First National Bank of Chicago, 350 F.2d 645, 649 (7th Cir. 1965).
Respondents note that in these cases the foreign court appointing the guardian did not have jurisdiction over the child when the appointment was made. Nevertheless, Noonan states the rule in absolute terms; it is not conditioned on the foreign court's lack of jurisdiction over the child. The child in question in Noonan was an orphan whose father and mother had been domiciled in Massachusetts. Shortly after the father died, the father's mother petitioned the probate court of Middlesex, County, Massachusetts to appoint her as guardian of the child, alleging that the child was living in Illinois and had property in Middlesex County. She was named guardian and sought to take custody of the child in Illinois, arguing that both comity and the full faith and credit clause required recognition of the Massachusetts guardianship.
The Illinois Supreme Court upheld the circuit court's denial of the mother's habeas corpus action seeking custody of the child. The court first pointed out that in appointing a guardian the court had to act in the best interest of the child, and could not make a proper determination without the child or her present guardians before it. Perhaps realizing that an attack on a foreign court's procedure was a weak defense to the full faith and credit requirement, the court bolstered its argument by noting that decrees entered in divorce actions disposing of the custody of a child then outside the state where the decree is entered are generally held not to be entitled to full faith and credit in custody proceedings in another state. Noonan, 376 Ill. at 248, 33 N.E.2d at 469.
The grandmother argued that the child was legally a Massachusetts domiciliary, giving that court jurisdiction. The Illinois Supreme Court acknowledged that the father had remained a Massachusetts domiciliary, and since at common law a child kept her father's domicile, the child was a Massachusetts domiciliary as well. Nevertheless, the court held that its power over the child derived from the child's physical presence in the state, not its domicile. While the court would give consideration to the decision of the Massachusetts court, it was not required to enforce it.
The court quoted at length from a Massachusetts decision, Woodworth v. Spring, 4 Allen 321 (1862), where an Illinois court had named the plaintiff guardian of an orphan living in Illinois. With the Illinois guardian's consent, the child had been taken temporarily to Massachusetts where another guardian was appointed. The Illinois guardian brought suit to regain custody of the child and return him to Illinois. The court in Massachusetts declined to turn the child over to the Illinois guardian, saying:
The question whether a person within the jurisdiction of a State can be removed therefrom depends, not on the laws of the place whence he came or in which he may have his legal domicile, but on his rights and obligations as they are fixed and determined by the laws of the State or country in which he is found. ... The comity of a State will give no effect to foreign laws which are inconsistent with or repugnant to its own policy, or prejudicial to the rights and interests of those who are within its jurisdiction. Even the parental relation, which is everywhere recognized, will not be deemed to carry with it any authority or control beyond that which is conferred by the laws of the country where it is exerted. The patria potestas of a foreign parent over his child is not that which is vested in him by the laws of the place of his domicile but that which exists by virtue of the parental relation in the country where the father seeks to enforce his authority. ... Every nation has an exclusive right to regulate persons and property within its jurisdiction according to its own laws, and the principles of public policy on which its own government is founded. It results from these principles, that persons exercising offices and trusts with which they are clothed by virtue of the laws of a particular State or country can not undertake to transfer their power or capacity to act, so as to control persons or property situated beyond the limits of the jurisdiction of the government or sovereignty from which their authority is derived. An administrator appointed under the laws of a foreign State can not act as such in this commonwealth. Nor, for like reasons, can a guardian appointed by virtue of the statutes of another State exercise any authority here over the person or property of his ward. His rights and powers are strictly local, and circumscribed by the jurisdiction of the government which clothed him with the office.
Noonan, 376 Ill. at 250-51, 33 N.E.2d at 470-71. In Woodworth the Illinois court had jurisdiction of the child at the time it named the plaintiff as guardian, but the Massachusetts court did not consider itself bound to recognize the guardian's authority. The foregoing quotation confirms our reading of Noonan as stating an unconditioned rule that comity never requires the recognition of a foreign guardianship over a child found within the state. Of course, the court may defer to the foreign court in its discretion. See, e.g., In the Matter of the Guardianship of Arnold, 114 Ill. App. 2d 68, 252 N.E.2d 398 (5th Dist. 1969) (not abuse of discretion to dismiss petition for appointment of guardian, deferring to Ohio custody decree).
In re Marriage of Silvestri-Gagliardoni, 186 Ill. App. 3d 46, 134 Ill. Dec. 106, 542 N.E.2d 106 (1st Dist. 1989), cited by respondents, is not to the contrary. While the court there refused to reopen an Italian custody decree, it based its ruling on the Uniform Child Custody Jurisdiction Act, inapplicable here, and in any event did not indicate that it was powerless to do so.
We presume the same rule would apply to a guardianship of a mentally disabled person. While an Illinois court might defer to a Canadian guardianship appointment as a matter of comity, and an Illinois prosecutor might decline to prosecute kidnapping charges against a foreign guardian in these circumstances, these are discretionary determinations. The operative word of the Treaty is "punishable." Unless a foreign guardianship order would be an absolute bar to criminal proceedings, respondents conduct would be punishable under Illinois law, even if the chance of actual prosecution, conviction and punishment were remote. Respondents have not shown such a bar, and the Treaty's requirement of double criminality has been met.
C. Probable Cause Defined
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 country'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, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). Evidence to "block out" the essential elements of the crime is sufficient. Collins v. Loisel, 259 U.S. 309, 317, 66 L. Ed. 956, 42 S. Ct. 469 (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. We now apply this definition to the central issue before us -- whether the petitioner has shown probable cause with respect to all of the respondents.
III. DETERMINATION OF PROBABLE CAUSE
A finding of probable cause that the respondents committed the charged crimes consists of several elements. The petitioner must show that the respondents took Tammy from her home or confined her either against her will or without lawful authority. Respondents do not deny that they transported Tammy. They contend that the petitioner has not presented probable cause to show that the transportation was against her will; alternatively, they contend that the petitioner has not shown that Anthony, as her guardian, did not have lawful authority to transport her even against her will.
A. Tammy Was Confined And Transported Against Her Will
On the first point, contrary to respondents' assertions, we easily find in this record sufficient evidence establishing the existence of probable cause to believe Tammy was taken against her will. In this regard competent and reliable evidence showed that Tammy was indeed taken against her will, and that she consistently, on more than one occasion, and throughout the unfortunate episode, expressed that will not be taken. Evidence establishing her will not to be taken is described at the very moment Tammy is removed from her home by respondents when she is observed as being scared, shocked, crying and kicking as she was taken from her bed. (Affadivt of Christina Wright, Pet. Exh. 15). Later at the Canadian-U.S. Border, she unequivocally indicates to authorities there that she was taken against her will. (Vander-Graaf Affidavit, Pet. Ex. 15, at 7). She further communicated that she did not want to go to Chicago, but wanted to return home. (Mach Investigative Report, Pet. Ex. 11 at 2-4). Even later in the day, when reunited with her mother at a Winnipeg hospital, she showed significant signs of illness and trauma occasioned from her experience that day. (Affidavit of Christina Wright). Finally, a day after the incident, Tammy communicated to a Winnipeg police officer that she understood the situation, that she did not want to go anywhere with Anthony, and that she desired that all respondents be criminally charged for what they did to her. (Affidavit of Robert Marshall, Pet. Ex. 9 at 3).
We are not persuaded that Tammy's disability deprived her of a recognizable will. We are satisfied, based on the reports of those who interacted with her, that she had sufficient understanding to meaningfully give or withhold consent. (Mach Investigative Report, Pet. Exh. 11 at 2-4). It is not dispositive that she has limited ability to reason and to communicate and has been adjudged incompetent to manage her affairs. The victim's capacity to give consent, is to be determined in relation to "the very acts in question." Chatwin v. United States, 326 U.S. 455, 462, 90 L. Ed. 198, 66 S. Ct. 233 (1946). In this case, she had only to be able to understand that she was being taken away by Anthony and express her approval or disapproval; this she did continually and repeatedly throughout her ordeal. In Chatwin, a fifteen-year-old girl who had demonstrated a mental age of seven on an intelligence test was considered capable of consenting to accompany the accused. We believe Tammy was capable of deciding that she did not want to go with Anthony and communicating this to those who saw her. She manifested her reluctance to go with Anthony on more than one occasion, and was fully aware she was being taken against her will.
Respondents further argue that Tammy's disability rendered her legally incompetent to give evidence.
Respondents point out that Tammy has been certified as mentally disabled by courts in both Illinois and Manitoba. Consequently, her non-verbal communications to Mrs. Wright and her statement to Sergeant Marshall after the incident that she had felt "scared" should be excluded, resulting in a complete lack of evidence on this point.
It is unclear what limits there may be on the evidence that may be accepted in an extradition proceeding. As noted above, the Federal Rules of Evidence do not apply, and a fortiori, state rules do not apply either. To the extent that it offers some guidance, we note that under Rule 601 of the Federal Rules of Evidence all persons are presumed competent, and mental disability is not a disqualification. The court may conduct an in camera examination of the witness and may in unusual cases order a mental examination to determine whether the witness can contribute meaningful and useful testimony, but there are no automatic disqualifications. See United States v. Gutman, 725 F.2d 417, 420 (7th Cir. 1984); J. Weinstein and M. Berger, Weinstein's Evidence P 601 at 601-26 - 601-32.
Respondents have offered affidavits from mental health professionals who have examined Tammy. We will ignore the examinations made in 1988 at the time Anthony was appointed her guardian because they show a lower level of mental functioning than the later examinations. On August 8, 1991, six months before the alleged kidnapping, Winnipeg physician Dr. Chris Engel examined Tammy and found that she had a complete loss of short term memory and she could not communicate verbally. (Resp. Exh. 23). An examination by Dr. Jack Rusen on November 28, 1991, showed that Tammy's short-term memory was poor, her reasoning was impaired, and she had limited ability to communicate. (Resp. Exh. 24). A year following the alleged kidnapping, she was examined by psychologist Dr. Jack Arbit, who states:
6. In my opinion, because of her mental condition, the severe and significant diffuse organic brain syndrome, Tammy DeSilva cannot understand right from wrong and does not appreciate the nature of an oath. Her injury has also caused her to be so lacking in understanding and memory that she cannot remember past events, understand or perceive the significance of events or communicate an accurate perception of events. She cannot be a trustworthy witness. Depending upon the questioning she can very easily be manipulated into giving answers which she does not understand or necessarily agree with and can very quickly thereafter be manipulated into giving opposite answers to the same questions.
(Arbit Aff., Resp. Exh. 36 at P 6).
Giving respondents' arguments as much credence as possible, Tammy's memory problems and suggestibility might make only her statement to Sergeant Marshall of the Winnipeg Police Department unreliable when she was asked to recall her feelings regarding events that had occurred several days before -- although we have concern to doubt even that. As was shown in her exchanges with law enforcement officers at the border, however, she was fully capable of stating what she wanted in the present. Additionally, her non-verbal "statement," -- her evident distress at the time she was taken -- is sufficient evidence that she was taken against her will. All of this, for our purposes, is sufficient to support a finding of probable cause. The respondents' objection is overruled, and we find there is probable cause to believe the respondents confined and transported Tammy against her will.
B. Tammy Was Confined And Transported Without Lawful Authority
Whether Tammy was confined and transported pursuant to lawful authority depends, of course, on the law of Canada -- the place of her taking. "To determine foreign law a district court may look to any relevant source, including expert testimony." Overseas Development Disc Corp. v. Sangamo Const. Co., Inc., 840 F.2d 1319, 1324 (7th Cir. 1988). Petitioner has furnished an affidavit of Bryan Schwartz, a barrister, solicitor and law professor at the University of Manitoba.
Professor Schwartz states the position of the common law of Canada regarding foreign guardians of children:
As a matter of public policy, the authority of a foreign guardian over the person of his or her ward present within any of the provinces or territories of Canada -should a dispute arise as to her care and control - will not automatically be recognized and enforced. The same principles apply here as in foreign custody orders.
(Schwartz Affidavit, Pet. Final Supp. Exh. 2. at 9) (quoting Castel, Conflicts of Law (3rd ed.) This rule has been superseded with respect to children by Section 82 of the Child and Family Services Act that provides for recognition of foreign child custody orders. No statute provides for automatic recognition of the powers and rights of the guardian of a mentally incompetent adult. Id.
Professor Schwartz again cites Castel for the proposition that "a duly appointed foreign representative of a mentally incompetent person to whom the management of his or her person or property was committed by the foreign court cannot remove him or her from the jurisdiction without having been so authorized by the appropriate authorities." Id. at 10. Schwartz qualifies this position somewhat, however, in the case of a brief visit of an incompetent and her guardian. A guardian who brings his ward into Canada, perhaps as a tourist, should not be afraid that he will be required to seek a court order before taking the ward back out of the country:
There might be exceptional circumstances in which Manitoba law would allow a foreign guardian to exercise control over an individual without the formal approval of local authorities. These would be cases in which Manitoba's connection with the individual are minimal and there is no reason for provincial authorities to be concerned about the individual's well-being. Suppose a mentally incompetent person was a citizen of the United States and ordinarily resident in Illinois. Her guardian takes her for a two-day vacation to Manitoba. While in Manitoba, there are no controversial decisions to be made about her personal or financial affairs, and no one else is claiming custody over her. In these circumstances, legal "common sense" suggests that Manitoba law might allow the foreign guardian to exercise control over their person, even in the absent [sic] of formal approval by local authorities.