Mirta Rosa Valenzuela v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 25, 2002

THOMAS K. KAHN

No. 00-13729 CLERK

D. C. Docket No. 00-08402 CV-KLR

MIRTA ROSA VALENZUELA,

FREDERICK KIRK REPPER,

Petitioners-Appellants,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeals from the United States District Court

for the Southern District of Florida

(March 25, 2002)

Before TJOFLAT and WILSON, Circuit Judges, and RESTANI*, Judge.

____________________________________________

* Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation.

TJOFLAT, Circuit Judge:

Petitioners in this case, Mirta Rosa Valenzuela (“Valenzuela”) and Frederick

Kirk Repper (“Repper”), are American citizens sought for prosecution by Italy for

their alleged roles in an international drug smuggling ring. A magistrate judge

certified their extradition to Italy and the district court denied their petition for a

writ of habeas corpus. They now appeal.

We conclude that the magistrate judge erred in admitting into evidence an

affidavit containing statements petitioners made in exchange for a promise of

confidentiality made by agents of the Drug Enforcement Administration (“DEA”).

Because the affidavit was indispensable to the finding of probable cause necessary

to extradite petitioners, we reverse the district court’s judgment and direct that the

writ of habeas corpus issue.

I.

On September 27, 1997, Theresa Bailey (“Bailey”), a United States citizen,

was arrested by Italian police in Padua, Italy, who discovered 3.2 kilograms of

cocaine in her possession. She agreed to cooperate with the police, and informed

them that in April, 1997 she was recruited as a drug courier by two individuals in

Lantana, Florida, who were later identified as petitioners Valenzuela and Repper.

Bailey claimed that Valenzuela and Repper offered her “a good reward” for her

services, and put her in touch with Nwangu Ernst (“Ernst”), a Nigerian citizen,

2

who directed her to make two trips from Sao Paolo, Brazil to Padua to deliver

drugs in August and September, 1997. She also stated that Valenzuela and Repper

admitted having made similar trips for Ernst in the past, and provided her with the

names of hotels in Padua where they had stayed. Acting on this information,

Italian police confirmed that Repper and Valenzuela had stayed at these hotels in

December 1994, November 1996, and January 1997. On February 16, 1998, an

Italian judge in Padua issued warrants for the arrest of Repper and Valenzuela for

importing and conspiracy to import 3.2 kilograms of cocaine into Italy in violation

of articles 73 and 80 of Presidential Decree 309/90, punishable by imprisonment of

more than one year.1

Meanwhile, beginning in early December, 1997, Valenzuela and Repper

initiated meetings with Palm Beach County Deputy Sheriff Pat Tenety (“Tenety”)

and DEA Agents Dan Bruce (“Bruce”) and Ed Duffy (“Duffy”) to provide them

with information about the multinational drug smuggling activities in which they

had been involved. During these meetings, Valenzuela and Repper discussed their

roles as couriers and recruiters for the drug smuggling ring. The agents told

1

This constitutes an extraditable offense under Article II of the extradition

treaty between the United States and Italy [hereinafter the “Treaty”]. See Extradition

Treaty Between the Government of the United States of America and the Government of the

Republic of Italy, Oct. 13, 1983, U.S.-Italy, 35 U.S.T. 3023, art. II.

3

Repper and Valenzuela that they had not committed any crime for which they

could be prosecuted in the United States and gave both Repper and Valenzuela use

and transactional immunity for their statements.

On December 23, 1997, Repper signed a DEA Cooperating Individual

Agreement (the “Agreement”), agreeing to gather and provide information to the

DEA and testify to that information if necessary. In return, the Agreement

guaranteed that the DEA would “use all lawful means to protect [Repper’s]

confidentiality.” Repper subsequently signed three other documents establishing

him as a paid informant for the DEA. Valenzuela did not sign any of these

documents and was never documented by the DEA as a confidential informant.

However, the government concedes that “Valenzuela took actions on behalf of

DEA under the same terms as Repper,” and that “both [petitioners] became

confidential informants.” In May of 1998, the agents informed Repper and

Valenzuela that they were terminating the informant relationship because they had

contacted members of the drug smuggling ring without the agents’ permission, and

had otherwise failed to cooperate with the DEA.

II.

A.

On July 29, 1998, Italy submitted its request for the extradition of

4

Valenzuela and Repper, along with the supporting documents required under the

Treaty, to the United States Embassy in Rome. A counselor at the Embassy

certified these documents, as required under Article X of the Treaty and 18 U.S.C.

§ 3190, on August 12, 1998. The request for extradition, supporting documents,

certification, and a copy of the extradition treaty were then forwarded by the

United States Department of State to the Department of Justice. On July 16, 1999,

the United States Attorney for the Southern District of Florida filed complaints for

the provisional arrests of Valenzuela and Repper in aid of extradition to Italy in the

district court.2 A magistrate judge issued arrest warrants for Valenzuela and

2

The Treaty provides for the provisional arrest, “in case of urgency,” of

persons charged or convicted of an extraditable offense upon an application by the

requesting state which contains:

a description of the person sought . . . ; the probable location of that person;

a brief statement of the facts of the case . . . ; a statement of the existence of

a warrant of arrest . . . ; a description of the type of offenses, a citation to the

sections of law violated and the maximum penalty possible upon conviction,

or a statement of the existence of a judgment of conviction against that

person . . . ; and a statement that a formal request for extradition of the

person sought will follow.

Extradition Treaty, supra note 2, art. XII, 35 U.S.T. at 3023.

Once a provisional arrest has been made under the Treaty, the requesting

state, in this case Italy, must make a formal request for extradition under Article X

of the Treaty, which must include supporting documents, within 45 days. See id.

If such a request is not timely submitted, the provisional arrest is terminated. See

id.

A formal request for the extradition of persons who, like petitioners, have

5

Repper based on those complaints, and petitioners were arrested on July 30, 1999,

in Palm Beach County, Florida.

The magistrate judge held a hearing on August 18, 1999, as required under

18 U.S.C. § 3184, to determine whether the evidence established probable cause

sufficient to sustain their extradition under the requirements of the Treaty.3

Pending her decision, the United States Attorney attempted to supplement this

evidence by filing under seal the affidavit of DEA Agent Bruce (hereinafter “Bruce

Affidavit”), which contained incriminating statements petitioners had made to him

and Duffy regarding their involvement in drug smuggling activities in Italy. The

magistrate judge refused to consider the Bruce Affidavit, however, because the

“reports had not come to the court through proper Italian channels required by

yet to be convicted by the requesting country of any crime, must be accompanied

by three items in addition to those required for a provisional arrest: (1) a certified

copy of the arrest warrant; (2) “a summary of the facts of the case, of the relevant

evidence and of the conclusions reached, providing a reasonable basis to believe

that the person sought committed the offense for which extradition is requested”;

and (3) documents establishing that the person sought is the person identified by

the arrest warrant. See id. at art. X.

3

18 U.S.C. §§ 3181-96 govern the limited role of the courts in extradition

proceedings. Specifically, § 3184 instructs an extradition judge to conduct a

hearing to determine whether there is “evidence sufficient to sustain the charge

under the provisions of the proper treaty or convention.” 18 U.S.C. § 1384. If the

evidence is sufficient, the judge certifies the extraditability of the individual in

custody to the Secretary of State. Id.

6

treaty,”4 and because petitioners, citing the transactional and use immunity the

DEA agents had given them and their Fifth Amendment privilege against self-

incrimination, objected to her consideration of the statements contained in the

affidavit.5 Relying on the remaining, properly submitted evidence, the magistrate

judge determined that there was a lack of probable cause to extradite petitioners,

and thus dismissed Italy’s extradition request on November 29, 1999.

That same day, however, the United States Attorney filed a second

complaint seeking new provisional arrest warrants for petitioners. Along with this

complaint, and in addition to the evidence produced during the first extradition

hearing, he resubmitted, through proper Italian channels, the Bruce Affidavit.6 The

4

Article X of the Treaty requires that documents accompanying an

extradition request from Italy are “signed by a judge or other Italian judicial

authority and are certified by the principal diplomatic or consular officer of the

United States in Italy.” See Extradition Treaty, supra note 2, art. X, 35 U.S.T. at 3023.

5

Petitioners cited the Fifth Amendment’s Self-Incrimination Clause as an

alternative basis for barring admission of the Bruce Affidavit. That is, if the

magistrate judge should find that their statements to the DEA agents were not

given under a grant of immunity, then the statements were compelled in violation

of the Self-Incrimination Clause.

6

Although the Bruce Affidavit was submitted only in English, the

complaint pledged to have the Italian translation filed with the court, as required

under Article X of the Treaty, within the Treaty time limit of 45 days. See

Extradition Treaty, supra note 2, art. X, art. XII, 35 U.S.T. at 3023. This translation was

timely filed on January 11, 2000, and the Bruce Affidavit was properly admitted

under the guidelines for admissibility of documents in support of extradition under

Article X of the Treaty.

7

magistrate judge immediately issued the new warrants, and Repper and Valenzuela

remained in custody. After several continuances, a second extradition hearing was

held on March 8 and 13, 2000. The purpose of the hearing was again to determine

whether probable cause existed to extradite Valenzuela and Repper for the crimes

alleged in the Italian arrest warrants. That determination turned on the

admissibility of the Bruce Affidavit.7 Petitioners reasserted their objections to the

court’s consideration of the affidavit. In addition, petitioners contended that the

Fifth Amendment’s Due Process Clause precluded the court’s use of the affidavit

because the Agreement required the DEA to “use all lawful means to protect [their]

confidentiality.”

On May 10, 2000, the magistrate judge concluded that the Bruce Affidavit

was admissible and entered an order certifying the extraditability of Valenzuela

and Repper.8 Although the she found that petitioners had indeed been given

transactional and use immunity, which would bar the United States from

prosecuting them for their involvement in the drug smuggling operation, the

7

In addition to the Bruce Affidavit, the record before the magistrate judge

included all of the evidence presented at the August 18, 1999 hearing.

8

The magistrate judge treated the inculpatory statements contained in the

Bruce Affidavit “as a supplement to probable cause,” and thereby determined that

“probable cause exist[ed] to believe that both Valenzuela and Repper committed

the crimes with which they [were] charged by the Italian authorities.”

8

magistrate judge rejected their argument that such immunity protected them from

prosecution, or the use of their statements to the agents, by Italy. In so holding, the

magistrate judge considered, and rejected out of hand, petitioners’ argument that

the Italian and American authorities were cooperating to such an extent that the

Italian prosecution should be treated as a prosecution initiated by the United States.

Turning to petitioners’ argument that their Fifth Amendment privilege

against self-incrimination precluded her from considering such statements,9 the

magistrate judge concluded that the statements, though “not compelled by statute

nor by formal agreement . . . [were nevertheless] subject to the protection of the

Fifth Amendment.” After reaching this conclusion, the magistrate judge went on

to say that “since the[] statements cannot be used against [petitioners] in a criminal

prosecution in the United States, there is no Fifth Amendment bar to the admission

of those statements at the extradition hearing.” “The protections inuring to

[petitioners] by virtue of the hip pocket immunity conferred by DEA agents in the

9

This was an alternative argument: if the court held that the grants of

transactional and use immunity did not protect petitioners from prosecution in

Italy, the Fifth Amendment’s Self-Incrimination Clause barred the use of their

statements at the extradition hearing.

9

U.S. are co-extensive with the protection of the Fifth Amendment.” 10 In sum,

neither the grant of transactional and use immunity nor the Fifth Amendment’s

Self-Incrimination Clause barred the magistrate judge from considering the Bruce

Affidavit. The magistrate judge’s order did not address petitioners’ due process

argument based on the Agreement – that the DEA’s promise to protect petitioners’

confidentiality precluded the United States Attorney from using the Bruce

Affidavit to establish probable cause.

B.

After the magistrate judge certified their extradition, petitioners repaired to

the district court, filing a joint petition for a writ of habeas corpus.11 Their petition

was based on the objections they had made to the magistrate judge’s entertainment

of the Bruce Affidavit, to-wit: (1) the grant of transactional and use immunity

rendered inadmissible the statements attributed to them in the affidavit; (2)

10

In other words, the magistrate judge concluded that, were it not for the

grant of immunity, the Fifth Amendment’s Self-Incrimination Clause would have

barred the admissibility of the incriminating statements contained in the Bruce

Affidavit notwithstanding the fact that such statements had not been compelled.

The magistrate judge cited no authority for the proposition that the Clause protects

a person from the government’s use of statements the person has made freely and

voluntarily.

11

There is no direct appeal from extradition decisions. Martin v. Warden,

Atlanta Penitentiary, 993 F.2d 824, 827 n.3 (11th Cir. 1993).

10

alternatively, the Self-Incrimination Clause precluded the United States Attorney’s

use of the statements to establish probable cause; and (3) by using the statements,

the United States Attorney breached the Agreement DEA agents had made with

petitioners and thereby denied petitioners of due process of law.

The district court treated the petition as having raised the first two points set

out above but not the third point, and, relying on the record established before the

magistrate judge, denied the writ. Addressing the first point, the court held that

the immunity granted by the DEA agents applied solely to prosecutions in the

United States; that is, it had no extraterritorial application. The court disposed of

the second point in the same fashion; the Self-Incrimination Clause did not apply

extraterritorially. Petitioners now appeal the district court’s decision, contending

that, for the reasons they presented to the district court, the magistrate judge was

precluded from using the statements contained in the Bruce Affidavit to determine

whether the extradition application established probable cause that petitioners

committed the criminal acts described in the Italian arrest warrant.

III.

Habeas corpus review of a magistrate judge’s decision regarding extradition

is limited to deciding “whether the magistrate had jurisdiction, whether the offense

charged is within the treaty, and, by a somewhat liberal extension, whether there

11

was any evidence warranting the finding that there was a reasonable ground to

believe the accused guilty.” Martin v. Warden, Atlanta Penitentiary, 993 F.2d 824,

828 (11th Cir. 1993) (citation omitted). On review of a denial of a habeas petition,

we review findings of fact for clear error. See King v. Moore, 196 F.3d 1327,

1330 (11th Cir. 1999). Mixed questions of law and fact are reviewed de novo. See

id. Despite our limited role in extradition proceedings, the judiciary must ensure

that the constitutional rights of individuals subject to extradition are observed. We

turn therefore to consider petitioners’ claims of error.

First, the magistrate judge’s finding of fact, which the district court accepted

as not clearly erroneous, that the DEA agents never promised petitioners immunity

from Italian prosecution in exchange for their cooperation, has solid support in the

record. The agents gave petitioners transactional and use immunity, but it only

applied to criminal proceedings occurring in the United States.

Second, the Supreme Court’s decision in United States v. Balsys forecloses

petitioners’ argument that the Self-Incrimination Clause has extraterritorial

application. United States v. Balsys, 524 U.S. 666, 672, 118 S. Ct. 2218, 2222,

141 L. Ed. 2d 575 (1998). Thus, even if the statements of petitioners contained in

the Bruce Affidavit were compelled, the Clause would not bar their use in the

extradition hearing. See id.; United States v. Gecas, 120 F. 3d 1419, 1430 (11th

12

Cir. 1997). We also agree with the magistrate judge and the district court that there

is simply nothing in the record to support a finding that the investigation by Italy

was so jointly and cooperatively conducted with the United States as to allow

petitioners to take advantage of dicta in Balsys that may allow individuals to claim

that “fear of foreign prosecution [is] tantamount to fear of a criminal case brought

by the Government itself.” Balsys, 524 U.S. at 698-99, 118 S. Ct. at 2235.

We turn now to consider petitioners’ third claim -- that the United States

Attorney’s use of the Bruce Affidavit to establish probable cause breached the

DEA agents’ promise to “use all lawful means to protect [petitioners’]

confidentiality.” The substance of this promise (contained in the Agreement) was

that Repper and Valenzuela would provide the agents with information in

exchange for DEA’s promise that it would use its “best efforts” to protect their

identity. Despite this promise, Agent Bruce disclosed both petitioners’ identities

and their incriminating statements to Italian authorities when it became apparent

that the Italian government had supplied insufficient proof to establish probable

cause linking petitioners to the crimes charged in the Italian arrest warrant.12 It is

12

In defense, the government claims that the Affidavit was only submitted

after petitioners themselves disclosed their status as confidential informants,

rendering the government’s actions harmless. We dismiss this argument first

because any such disclosure is not reflected on the record before us, and second

because the government admits that the petitioners only disclosed their status to the

13

therefore plain that the United States Attorney’s submission of the Bruce Affidavit

operated to breach the Agreement petitioners had made with the agents.13 Such

breach, petitioners submit, rendered the extradition hearing fundamentally unfair

and denied them due process of law.

Petitioners rely on our en banc decision in United States v. Harvey, which

holds that “[d]ue process requires the government to adhere to the terms of any

plea bargain or immunity agreement it makes.” United States v. Harvey, 869 F.2d

1439, 1443-44 (11th Cir. 1989) (en banc). Harvey, in turn, relies on Santobello v.

New York, in which the Supreme Court held that a defendant may challenge his

sentence under the Due Process Clause if he can show that the prosecutor’s breach

of the plea agreement renders the defendant’s plea fundamentally unfair. See

Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427

(1971).

In this case, petitioners were aware that they had committed crimes in Italy

judge as a defense to the admission of the Bruce Affidavit.

13

The dissent claims that "by keeping the petitioners' identities confidential

while Italy was requesting their extradition, the DEA agents fulfilled their

obligation to protect the petitioners' confidentiality to 'the best of their ability.'" To

accept this notion would be to conclude either that the confidentiality agreement

somehow expired upon Italy's filing of its request for extradition in this case or that

once Italy had filed this request, it was beyond the "best abilities" of the agents to

keep the petitioners' identities confidential. We can accept neither.

14

for which they could be prosecuted. They conditioned their cooperation with the

DEA, in part, on the agents’ promise of confidentiality. They no doubt would have

refused to provide the agents with the inculpatory information regarding the drug

transactions if the agents had told them that the information they provided, along

with their identities, might be disclosed to the Italian authorities and might result in

their extradition to Italy for trial. In this case, the Government not only ignored the

agents’ promise – by revealing petitioners’ identity and the information they

provided to the Italian authorities – but it went one step further: it used the fruits of

the breach by presenting the information to the magistrate judge, all to petitioners’

detriment. To affirm the district court’s judgment would be to countenance the

Government’s conduct. We can no more do this than the Court could in

Santobello.

The magistrate judge explicitly concluded that without the Bruce Affidavit,

the evidence presented was insufficient to sustain the extradition of Valenzuela and

Repper under the Treaty and 18 U.S.C. § 3184. Having concluded that this

evidence was admitted contrary to petitioners’ due process right to a fundamentally

fair hearing, we have no choice but to reverse the district court’s judgment and to

direct the court to grant petitioners’ application for a writ of habeas corpus.

SO ORDERED.

15

16

WILSON, Circuit Judge, dissenting:

The petitioners, Valenzuela and Repper argue that the use of a DEA affidavit

as evidence to support a finding of probable cause during the extradition

proceeding violates their Fifth Amendment right against self-incrimination, as well

as their due process rights. The majority holds that the DEA affidavit does not

violate the petitioners’ Fifth Amendment right, but that the affidavit violates their

due process right to a fundamentally fair hearing. I agree with the former holding,

but not the latter. After reviewing the record and the testimony of DEA Agents

Bruce and Duffy, Detective Tenety, and the petitioners to determine exactly what

the immunity/cooperation agreement between the DEA and the petitioners entailed,

I find no breach of the agreement, and thus, no due process violation. Therefore, I

must respectfully dissent.

As we have held, the government must adhere to the terms of any plea

bargain or immunity agreement that it makes in order to satisfy a defendant’s due

process rights. United States v. Harvey, 869 F.2d 1439, 1443 (11th Cir. 1989).

The due process requirements surrounding immunity and cooperation agreements

also apply during extradition proceedings. In re Extradition of Burt, 737 F.2d

1477, 1484 (7th Cir. 1984). If the government breaches an immunity/cooperation

agreement and violates the petitioner’s due process rights, courts have “sufficient

17

reason to grant habeas relief in the face of a request for extradition.” In re

Extradition of Drayer, 190 F.3d 410, 412 (6th Cir. 1999). We must therefore

determine whether the United States breached its immunity/cooperation agreement

with Repper and Valenzuela in order to determine whether their due process rights

were violated.

The immunity/cooperation agreement in this case is comprised of both

written and oral promises made by DEA Agent Bruce and Detective Tenety.1

Repper apparently signed three DEA forms, the most important being the DEA

Cooperating Individual Agreement, DEA Form-473, dated December 23, 1997,

which reads as follows:2

1

We must rely on the DEA agents’, the petitioners’, and the detective’s testimony to

determine what was promised under the alleged immunity/cooperation agreement.

Informal grants of immunity are difficult to piece together. As we stated in Harvey,

869 F.2d at 1443:

[T]he magistrate and district court have been put through the arduous

task of reconstructing the terms of the agreement with the government,

a task made still more difficult by the astonishing failure of the DEA

agents who interviewed [the petitioner] to keep any written records of

those interviews. Informal grants of immunity are by their very nature

less certain than formal grants, and thus are much more likely to create

confusion for the government and for the courts in the future. As long

as prosecutors continue the practice of unwritten grants of immunity,

they open the door for subsequent litigation such as this, and for adverse

decisions as well.

2

According to Agent Bruce, although Valenzuela did not sign the

agreement, the protections that were given to Repper were extended to her as well.

18

The undersigned cooperating individual agrees to the following:

I will not violate criminal laws in furtherance of gathering information

or providing services to DEA, and any evidence of such a violation will

be reported by DEA to the appropriate law enforcement agency. I have

no official status, complied or otherwise, as agent or employee of DEA.

That the information I provide may be used in a criminal proceeding, and

I may be called upon to testify to such information in a court of law.

And although DEA will use all lawful means to protect my

confidentiality, this can not be guaranteed.

I am advised that this is a federal offense to threaten, harass or

mislead anyone who provides information about a federal crime to a

federal law enforcement agency. If I experience anything of this nature

as a result of my cooperation with DEA I will contact my controlling

agent immediately. I have read and understand the following regarding

my conduct as a DEA cooperating individual. Signature.3

Repper also signed a payment for information/purchase of evidence form, which

provided him with subsequent payments for his services.

None of the DEA forms Repper signed appear to grant Repper or Valenzuela

any immunity from future prosecution by the United States. However, at the

extradition hearing, both the DEA agents and the petitioners testified that a verbal

agreement was made that the petitioners would be free from any United States

prosecution if they provided the DEA with information regarding an international

drug smuggling operation. Agent Bruce testified that during a meeting on

December 17, 1997, “[w]e basically told them that it is apparent you have

3

DEA Form-473 is not found in the record; therefore, we must rely on

Agent Bruce’s reading of the form at the extradition hearing.

19

committed crimes in other countries. Again, you have to understand that we

cannot protect you from these crimes that you may have committed in these

countries. We cannot give you immunity of any kind.”

On cross-examination, Agent Bruce testified that he and Detective Tenety

told the petitioners on December 17th that they were not going to prosecute them

in the United States – “We told them that we as DEA were not interested in

prosecuting them in the United States. But we did tell them that they had to

understand that based on what you have told us you have obviously committed

crimes in other countries, and because of this we can’t protect you in any way from

being arrested for these crimes.”

As to the government’s promise of confidentiality, the DEA Form-473

indicated that the agents were to use “all lawful means” to keep their identities

confidential; however, the form notes that “this can not be guaranteed.” When

asked what it meant when Valenzuela and Repper were told that their statements

would be protected and kept confidential, DEA Agent Duffy explained that “[w]e

protect the confidentiality of our sources to the best of our ability.”

Based on the agents’ and the petitioners’ testimony, Valenzuela and Repper

clearly received immunity from United States prosecution. It is also equally clear

that they did not receive promises of immunity from Italian prosecution – nor were

20

they given assurances that they would be protected from the Italian authorities if

the Italians wished to prosecute them in the future for crimes they had committed

in Italy. The DEA could not protect them “in any way from being arrested for

these crimes.” Thus, the government did not breach any immunity/cooperation

agreement because the petitioners are not being prosecuted in the United States for

any crimes committed here.

In addition, Valenzuela and Repper contend that the government breached

the agreement by not keeping their identities and information confidential.

However, it was made clear that this confidentiality was not absolute – the written

agreement specifically provides that confidentiality cannot be guaranteed.

Certainly the information Valenzuela and Repper provided the DEA was not

meant to be confidential because according to DEA Form-473, this information

could be “used in a criminal proceeding,” and Valenzuela and/or Repper could “be

called upon to testify to such information.” As to protecting their identities as

confidential informants, the DEA office in West Palm Beach repeatedly provided

the DEA office in Rome with information provided by the petitioners, yet the

agents never disclosed their identities. Moreover, the fact that the Italian

authorities initially presented a formal request for extradition without including

any incriminating information the DEA might have had clearly suggests that the

21

Italian authorities had no knowledge that the defendants were confidential

informants of the DEA.4 Thus, by keeping the petitioners’ identities confidential

while Italy was requesting their extradition, the DEA agents fulfilled their

obligation to protect the petitioners’ confidentiality to “the best of their ability.”

In conclusion, Italy is requesting extradition of Valenzuela and Repper for

crimes they committed in Italy prior to becoming informants for the DEA. No law

enforcement officer in the United States ever told the petitioners that they would

not be held accountable for crimes they had previously committed in Italy. In fact,

the record demonstrates that: (1) the DEA made no promises as to extradition (to

the contrary, the DEA agents stated they could not protect them “in any way”); (2)

the DEA never granted the petitioners any immunity from Italian prosecution; (3)

the DEA never promised that the information the petitioners provided them would

remain confidential ( DEA Form-473 indicates that they may have to testify at a

later date); and (4) the government only revealed the petitioners’ identities after the

Italian authorities formally requested their extraditions and arrest warrants were

issued. The DEA’s promise of confidentiality was not absolute; the petitioners

4

In fact, according to the Government’s Supplemental Response to

Defendant Valenzuela’s Motion to Deny Extradition Request, the government filed

under seal DEA Agent Bruce’s affidavit containing statements made by the

petitioners to the DEA only after the petitioners themselves disclosed their status

as confidential informants to the court.

22

were clearly aware that the DEA could not protect them from prosecution for

crimes they had previously committed in Italy. Therefore, I find that the

government did not breach its immunity/cooperation agreement, and as a result, the

petitioners’ due process rights have not been violated. I would therefore affirm the

district court’s order finding probable cause to extradite and deny the petitioners’

application for a writ of habeas corpus.

23