Extradition

• Author: International Law Group

Italian authorities in Padua caught Theresa Bailey, a U.S. citizen, in 1997, with 3.2 kilograms of cocaine in her possession. Bailey owned up to police that she had been a drug courier for Mirta Rosa Valenzuela and Frederick Kirk Repper, both U.S. citizens. The following year, a judge in Padua issued warrants for Valenzuela and Repper. Italy later requested the extradition of both men based on the Extradition Treaty Between the Government of United States of America and the Government of the Republic of Italy (October 13, 1983, 35 U.S.T. 3023). Pursuant to the extradition request, a U.S. magistrate judge had both men arrested in 1999 in Palm Beach, Florida.

In the meantime, Valenzuela and Repper had met with agents of the Drug Enforcement Administration (DEA), Dan Bruce and Ed Duffy, and supplied information about their role in international drug smuggling. In fact, they became paid informants for the DEA and received guarantees that the U.S. would protect their confidentiality. In 1998, the DEA cut off the informant relationship because the two men had allegedly gotten in touch with members of the drug smuggling ring and were no longer cooperating.

At the probable cause hearing before a magistrate judge, the U.S. Attorney tried to introduce the affidavit of DEA Agent Bruce under seal, containing incriminating statements by Valenzuela and Repper. The magistrate judge refused to admit the document because it "had not come to the court through proper Italian channels required by treaty" and later threw out the extradition request. The U.S. Attorney filed a second complaint seeking the arrest of Valenzuela and Repper, this time with the Bruce Affidavit provided through the proper Italian channels. On May 10, 2000, the magistrate judge decided that the Bruce Affidavit was admissible and certified the extraditability of Valenzuela and Repper. The magistrate judge noted that the two men had received transactional immunity in the U.S., but ruled that such immunity did not protect them from prosecution in Italy or from use of their statements by Italian officials. The district court later denied their petition for a writ of habeas corpus. Valenzuela and Repper appealed.

The U.S. Court of Appeals for the Eleventh Circuit concludes that the magistrate judge had erred in admitting into evidence the statements that Valenzuela and Repper had made under guarantees of confidentiality. Because this affidavit was indispensable to the required finding of...