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October 7, 1996

Thomas Kulekowskis, Anthony J. Lobue, Anthony DeSilva, Petitioners,
Joseph G. DiLeonardi, United States Marshall for the Northern District of Illinois, Respondent.

The opinion of the court was delivered by: LINDBERG


 Anthony DeSilva and Tammy Lynn Wright ("Tammy") married in October 1986, and bought a home together in Winnipeg, Canada. In December 1987, DeSilva and Tammy were involved in a serious automobile accident in Monee, Illinois. Tammy survived, but sustained injuries to her spine and brain which left her a quadriplegic with permanent and extensive brain damage. In February 1988, DeSilva petitioned the Circuit Court of Cook County to bestow Tammy's guardianship upon him. Tammy's parents, Ernest and Christina Wright, were timely served with notice of the guardianship proceedings. Mr. Wright appeared by counsel at the proceedings to contest DeSilva's appointment. On March 24, 1988, despite Mr. Wright's objections, the court appointed DeSilva sole guardian of his wife's estate and person with no restrictions. In June 1988, in an effort to recover on Tammy's behalf, DeSilva filed a lawsuit against the trucking company involved in the accident.

 Throughout 1988, DeSilva cared for Tammy at their Chicago area home. Mrs. Wright moved in with the couple to assist in her daughter's care. Despite devoting all his earnings, medical coverage, a disability payment from Tammy's Canadian automobile insurance carrier, and, eventually, even public aid to Tammy's care, the medical expenses soon exhausted DeSilva's financial resources. In January 1989, DeSilva, Tammy, and Mrs. Wright moved in with DeSilva's parents, Albert and Sally DeSilva, in Arizona. Mr. and Mrs. DeSilva spared no expense as they cared for Tammy, contributing upwards of $ 50,000.00 to her medical and living expenses. Realizing his parents' hardships, DeSilva decided to relocate to Canada. In July 1989, DeSilva moved Tammy to their home in Winnipeg where she was eligible for socialized health care services. DeSilva granted Mrs. Wright permission to live in his home so long as she assisted in her daughter's care. Unable to find sufficient employment in Canada, DeSilva returned to the U.S. in search of work.

 As part of DeSilva's lawsuit against the trucking company involved in the December 22, 1987, accident, it became necessary for Tammy to undergo a medical examination. On January 31, 1992, DeSilva'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 his client to bring Tammy to Chicago for a medical examination. Judge Kennedy told Mr. Touhy that DeSilva did not require official court authorization to bring Tammy to Chicago. Mr. Touhy explained that his client feared that Tammy's father, having previously demonstrated hostility towards DeSilva, might interfere with any efforts to move Tammy. In the interest of avoiding a possible dispute between DeSilva and the Wrights, Judge Kennedy entered an order authorizing DeSilva to bring Tammy back to Chicago for a medical evaluation, and enjoining third persons from interfering.

 Despite Judge Kennedy's confidence in DeSilva's guardianship authority, the prospect of interference by Mr. Wright continued to concern Mr. Touhy and his partner, Mr. Engelland. They requested their friends, petitioners Kulekowskis and Lobue, to accompany DeSilva in order to deter Mr. Wright from acting out his threats of violence. As veteran Chicago police officers, Kulekowskis and Lobue thought it wise to contact the Winnipeg Police as a way of pre-empting any confusion or interference from local Canadian authorities.

 The following day, February 1, 1992, Mr. Touhy contacted the Winnipeg Police Department and spoke to Duty Inspector Donald MacDiarmid. After explaining his client's plans to transport his wife and ward to Chicago, Mr. Touhy inquired whether he had to submit a copy of Judge Kennedy's order to the local Canadian authorities. Officer MacDiarmid informed Mr. Touhy that since no Canadian court order barred Tammy's removal, his client's intentions were not a police matter. Mr. Touhy conveyed this information to the petitioners.

 Based upon his status as Tammy's guardian and the inquiries and representations of his attorney, DeSilva set out on February 3, 1992, for his home in Winnipeg in order to bring Tammy back to Chicago for a medical evaluation. DeSilva's father Albert, Mr. Kulekowskis, Mr. Lobue, and a registered nurse, accompanied him.

 After a routine customs stop at the Canadian border the parties continued on their way, arriving at DeSilva's home in Winnipeg shortly after 6:30 a.m. Following a brief exchange of words with Mrs. Wright, during which DeSilva informed her that he had come to take Tammy back to Chicago for a medical examination and presented her with a copy of the court order authorizing him to do so, DeSilva and the nurse proceeded to peaceably move Tammy from her room to the car. While there is considerable disparity surrounding the details of Mrs. Wright's interaction with the parties during their brief time in the home, it is clear that Mrs. Wright did not acquiesce to her daughter's removal. After a failed attempt to contact her brother-in-law, Mrs. Wright telephoned the local police and told the operator that her daughter had been taken away by people who had a court order. The operator informed Mrs. Wright that local authorities did not consider this a police matter in light of the court order authorizing the parties' conduct. Mrs. Wright then called her attorney, Robert Tapper, who in turn spoke with Staff Sergeant William VanderGraaf of the Winnipeg Police Department, shortly before 7:30 a.m. Mr. Tapper told Sergeant VanderGraaf that Tammy's husband had kidnapped her from her home in Winnipeg. Mr. Tapper did not inform Sergeant VanderGraaf of DeSilva's legal guardianship over Tammy. Sergeant VanderGraaf, in conjunction with members of the Royal Canadian Mounted Police (RCMP), and the Ontario Provincial Police, arranged for DeSilva and his companions to be stopped at the border on their way back to the United States.

 When the petitioners arrived at the border at approximately 8:45 a.m. they were questioned by both U.S. customs officials and Canadian police. Despite DeSilva's being the sole person with legal authority to consent on Tammy's behalf, border officials questioned Tammy directly. Both before and after receiving the aid of her computer, Tammy indicated that she desired to be with her husband and, yet, remain in Winnipeg. The officers also questioned DeSilva, Kulekowskis, and Lobue. After recounting their story, and providing copies of DeSilva's guardianship papers and Judge Kennedy's order, the petitioners were released and told that they were free to go home. The parties agreed that since Tammy's parents had just obtained an emergency guardianship order from the Court of Queen's Bench in Winnipeg, it would be best to return Tammy to Winnipeg while the petitioners continued back to Chicago. The customs officers separated DeSilva and Tammy despite Tammy's repeated emotional requests for her husband to remain with her.

 On February 4 and February 7, 1992, Canadian authorities interviewed Tammy at her and DeSilva's home in Winnipeg, apparently unconcerned that she had been declared incapable of making meaningful decisions. During these two interviews, authorities asked Tammy how she felt about charging five people with a criminal offense. Tammy nodded "yes" and indicated "do it" on the computer. She further indicated she was scared during the entire incident. Tammy's interviewers never disclosed to her the identity of the five people against whom they sought the criminal charges, nor the precise nature of the charges themselves. Tammy never submitted a statement, affidavit, or sworn testimony relating to this matter. Indeed, she is incapable of so doing. Despite this, however, Canadian authorities charged petitioners with kidnapping and forcible seizure of DeSilva's wife and ward. At Canada's request, the U.S. Attorney sought the extradition of all the participants. On March 28, 1995, the Magistrate Judge certified DeSilva, Kulekowskis, and Lobue, for extradition to Canada.

 This court will grant petitioners' habeas relief since it finds that the dual criminality requirement of the Treaty has not been complied with. Since this finding is dispositive, the court need not address petitioners' other claims.


 This court has jurisdiction to review the Magistrate Judge's decision on a writ of habeas corpus. 28 USC § 2241. The standard of review on a habeas corpus petition is de novo when the issues presented are questions of law or mixed questions of law and fact. Quinn v Robinson, 783 F.2d 776, 791 (9th Cir 1986); United States v McConney, 728 F.2d 1195, 1203 (9th Cir 1984).

 In the instant case, the determinative issue is whether or not the dual criminality requirement of the Treaty has been met. This question is purely a legal one. Article 2 of the Treaty as amended provides that: "Extradition shall be granted for conduct which constitutes an offense punishable by the laws of both Contracting Parties by imprisonment... for a term exceeding one year or any greater punishment." Similarly, Article 10 of the Treaty provides in pertinent part that: "Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person would be found... to justify his committal for trial if the offense of which he is accused had been committed in its territory...[.]" These provisions constitute the dual criminality doctrine. The doctrine requires the court to make two findings: (1) whether petitioners' conduct violated Canadian law, and (2) whether such conduct would have also violated Illinois or Federal law, had the crime been committed in Illinois. It is the second of these requirements, with respect to the petitioners' conduct in the present case, that this court finds lacking.


 In certifying their extradition, the Magistrate Judge held that the petitioners knowingly confined and transported Tammy from her home in Winnipeg, Canada, into the United States without lawful authority. In re Extradition of Kulekowskis, et al., 881 F. Supp. 1126, 1149 (ND Ill 1995). In order to determine whether such conduct would violate Illinois law, The Magistrate Judge constructed a hypothetical in which the alleged misconduct transpired in Illinois. In constructing this hypothetical, all significant facts were "reversed." In the instant case, this resulted in a scenario in which a Canadian guardian removed his ward from the state of Illinois. After examining petitioners' conduct under this ...

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