103 F. 626 | U.S. Circuit Court for the District of Southern New York | 1900
Argument was heard on the preliminary objections on June 29th, and the 23d of July was then designated for the presentation of testimony on the question of probable cause in the event of the court’s overruling such objections. That date is so near at hand that decision on the objections should be filed forthwith. Counsel have taken so long to prepare briefs (they were only received yesterday) that there is not the time to enter into any elaborate discussion of the points presented; nor, indeed, is any such discussion necessary. Some of the objections advanced on the oral argument appear not now to be pressed, and those still urged do not present any difficult questions. This proceeding is brought under a recent amendment to section 5270 of the United States Revised Statutes, hereinafter referred to as the “Act of June 6, 1900.” To the existing provisions as to extradition it adds the following:
‘•Whenever any foreign country or territory or any part thereof is occupied by or under tlie control of the United States, any person who shall violate, or who has violated the criminal laws in force therein, by the commission of the following offenses, namely: [Here follows a long enumeration, which includes “embezzlement or criminal malversation of the public funds, committed by public officers, employes, or depositaries,”] and who shall depart or flee, or who has departed or fled, from justice therein to the United States, any territory thereof or to the District of Columbia, shall, when found therein, lie liable to arrest and detention by the authorities of the United States, and on the written request or requisition of the military governor or other chief executive officer in control of such foreign country or territory shall be returned and surrendered as hereinafter provided to such authorities for trial under the laws in force in the place where such offense was committed. All the provisions of sections fifty-two hundred and seventy to fifty-two hundred and seventy-seven of this title, so far as applicable, shall govern proceedings authorized by this proviso: provided, further, that such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing probable cause that he is guilty of the offense charged: and provided further, that no return or surrender shall be made of any person charged with he commission of any offense of a political nature. If so held such person ?hall be returned and surrendered to the authorities in control of such foreign country or territory on the order of the secretary of state of the United*628 States, and such authorities shall secure to such a person a fair and impartial trial.”
Under the exercise of the treaty-making power, congress has the right to provide for the return of a fugitive criminal to the foreign country from which he has fled; and, waiving any requirement of entire reciprocity from the foreign country, it may, by statute, without treaty, provide for such return. This power has been exercised by the federal government for years without question. It is a power exercised by every sovereign state, sometimes in accordance with' the provisions of a treaty, sometimes without any treaty, as a matter of international comity. The mere fact that the individual who has committed a crime in a foreign country is himself a citizen of the United Stages does not prevent the United States from returning Mm to the country against whose laws he has offended. Having voluntarily gone into the foreign country to commit his crime, he may involuntarily be returned there for trial and punishment. Nor is it any sound objection against the extradition of the criminal citizen that the courts in the country to which he is returned follow a procedure different from our own. The provisions of articles 4 and 5 of the amendments to the constitution have no relation to the subject of extradition. In re De Griacomo, 12 Blatchf. 391, Fed. Cas. No. 3,747. He may be returned to some Latin country, where conviction might follow upon hearsay testimony, or even upon vociferous declarations of belief by more or less credulous individuals. If congress chooses to make such a treaty, he may be sent to Turkey, or Siam, or Zanzibar, where it is safe to assume the procedure bears still less likeness to the common law. Having Mmself selected the forum for the commission of his crime, he will not be heard to object that the procedure of its courts is not quite what he would prefer when he comes to stand trial. Any other rule would make this country an inviolable asylum for its citizens whenever they may return to it red-handed from crimes committed abroad, for its courts cannot punish for a crime committed in a foreign country. These propositions are elementary, and nothing in the brief or in the oral argument challenges their accuracy. The principal objection advanced on behalf of the prisoner, whose identity is not disputed, is that this particular act of June 6, 1900, is unconstitutional, because it provides for extradition to a foreign country occupied by or under the control of the United States; or possibly, to state the argument more accurately, because under the constitution the United States cannot occupy or exercise control over the Island of Cuba, since its inhabitants are free and independent. The joint resolution of April 19, 1898, declared that “the people of the Island of Cuba are, and of right ought to be, free and independent,” and this finding as to their status may be accepted by the courts. Nevertheless it is an Msxorical fact of which the courts will take judicial notice that on that same day the territory of that island was occupied by Spain. Against that power we declared war, we sent our fleets and armies to the island, invaded it, joined battle with our alien enemies therein, and continued the struggle with them until throughout the length and breadth of the island our forces were in full military occupation of
Various technical objections are urged to the sufficiency (in form) of the various documents presented; as, for instance, that a certain certificate is signed by the military governor, and not by the principal diplomatic or consular officer; and that there is no certification that certain depositions are so authenticated “as to entitle them to he received for similar purposes by the tribunals of the foreign country,” -probably not material when authenticated so as to be received upon
Upon the oral argument some question was made as to whether article 401 of the Penal Code of Cuba and Porto Eico or sections 37 and 55 of the Postal Code were in force in Cuba at the time of Neely’s alleged offense. It is assumed from the circumstance that this point is not discussed in the briefs that counsel acquiesce in the suggestion made by the court upon the argument, that the question now to be determined is whether there is probable cause that the prisoner committed the offense enumerated in the act of June 9, 1900. If that be shown, it may be left to the trial court to decide which specific provision of these Codes was in force and violated. The description of offense in either Code is clearly within the bpoad language of the act of June 6, 1900.
Counsel have discussed the evidence. This is premature, and will not be considered by the court until after the hearing on July 23d, when further proofs may be adduced. It will be sufficient now to indicate that the mere presentation of an indictment or its equivalent cannot be held sufficient under this act. The court is to find probable cause on evidence. Witnesses need not be brought from Cuba to testify here, but their sworn statements can certainly be obtained, so that the court’s conclusion may be based upon competent proof of facts within the knowledge of the witnesses. The preliminary objections are overruled. The hearing on July 23d is fixed for 1:30 p. m.