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President of United States v. Kelly

November 8, 1937


Appeal from the District Court of the United States for the Southern District of New York; Vincent L. Leibell, Judge.

Author: Swan

Before MANTON, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

The judgment appealed from denied the relator release from the custody of the United States marshal who held him for extradition to France pursuant to orders of arrest and commitment issued by a United States commissioner.

The first ground urged for reversal is that the complaint in the extradition proceedings was made by a person unauthorized to represent the French government. This objection was neither taken before the commissioner who conducted the hearings, nor presented to the District Judge in the habeas corpus proceedings, nor mentioned in the assignment of errors to the judgment appealed from. It is obviously an afterthought of counsel interposed for the purpose of delaying extradition of the relator. In the opinion of a majority of the court it is without substantial basis either in fact or in law.

The complaint was made by Rene Tanquerey and alleges that he is the assistant consul general of the French Republic in the City of New York, and is acting for and on behalf of the French government pursuant to authority delegated to him by the French consul general; that the affiant has received a letter from the Embassy of the French Republic at Washington, D.C. requesting the arrest and detention of Gennaro Caputo as a fugitive from French justice, and that annexed to said letter was a document signed by the Assistant Secretary of State of the United States directed to peace officers throughout the United States and reciting the request of the French government for the apprehension of said fugitive. These sworn allegations, which were in no way questioned or contradicted, make it perfectly clear that as a matter of fact the complaint was filed with the approval and authority of the French government.

The legal question, assuming that it is before us, although not presented below nor mentioned in the assignment of errors, is whether the French government may, under its treaty with the United States and the statutory provisions governing extradition proceedings, act in such proceedings through an assistant consul general. Section 3 of the Extradition Convention with France (Senate Document No. 348, 67th Cong. 4th Session, p. 2582) provides that requisitions for the surrender of fugitives from justice shall be made by diplomatic agents or in their absence by consular officers. Requisitions for surrender of fugitives are addressed to the executive, not the judicial, branch of the government. A requisition from the demanding state need not be produced before the Commissioner (Grin v. Shine, 187 U.S. 181, 194, 23 S. Ct. 98, 47 L. Ed. 130), and the treaty provisions as to what officers may make such a requisition have no bearing on who may initiate judicial proceedings. Section 5270 of the Revised Statutes (18 U.S.C.A. ยง 651) provides that the judicial officers therein specified may act "upon complaint made under oath." It does not state who shall make the oath. Judge Brewer, who later became a justice of the Supreme Court, had this question before him in the case of In re Kelly, 26 F. 852, 856 (C. C. Minn.). There the complaint was made by a citizen and resident of British Columbia and alleged that he was acting pursuant to instructions of the government of the Dominion of Canada and the attorney general of British Columbia. It was held that "It is enough if any person duly authorized appear in behalf of that government and make complaint," and whether the party complaining is so authorized is a question of fact to be inquired into before the Commissioner. To the same effect is In re Herres, 33 F. 165, 166 (C. C. Minn.). In Ex parte Sternaman, 77 F. 595 (D.C.S.D.N.Y.), a complaint made by the chief inspector of the criminal investigation department of Ontario was held sufficient. In the case of In re Ferrelle 28 F. 878, at page 879 (C. C.S.D.N.Y.), the question of authority was decided adversely to the party making the complaint, but Judge Brown said:

"Generally, complaints of this character have been made under the clear authority or sanction of the executive of the foreign government, -- ordinarily through their consuls; sometimes directly upon papers sworn to by the foreign officers representing the executive. I should be inclined to hold that at any time while the proceeding is pending before the commissioner proof might be produced to show that the persons who initiated the proceedings were really acting in behalf of the foreign government, and that their action was sanctioned, ratified, and adopted by the executive."

The appellant relies upon a statement in Grin v. Shine, 187 U.S. 181, 193, 23 S. Ct. 98, 103, 47 L. Ed. 130, that the complaint "may be made by any person acting under the authority of the foreign government having knowledge of the facts, or, in the absence of such person, by the official representative of the foreign government, based upon depositions in his possession." In this case the complaining party was the Russian consul, and it was held that no evidence was required that he had authority to make the complaint. In so far as the above-quoted sentence might be read as expressing the view that no person except the official representative of the foreign government may swear to the complaint unless he has personal knowledge of the facts, the remark is at best a bare dictum. We cannot construe the opinion as a whole as expressing even a dictum to that effect. On the following page (187 U.S. page 194, 23 S. Ct. 103), after reciting that it appears by a certificate of the Acting Secretary of State that application for th arrest of Grin was made in due form by the charge d'affaires of Russia accredited to this government, the opinion continues: "This, however, was entirely independent of the proceedings before the magistrate, which might have been instituted by any person making a complaint under oath and acting by the permission or authority of the Russian government." (Italics supplied.)

This statement counteracts any contrary inference which might be drawn from the earlier sentence upon which the appellant relies. It is in exact accord with the view Justice Brewer, who participated in the decision of Grin v. Shine, had expressed, when a Circuit Judge, in Re Kelly, supra. In our opinion it expresses the only reasonable view. Extradition proceedings must be prosecuted by the foreign government in the public interest, and may not be used by a private party for private vengeance or personal purposes; but if in fact the foreign government initiates the proceedings, no reason is apparent why it may not authorize any person to make oath to the complaint on its behalf. Therefore, we cannot accept the appellant's contention that a complaint based on information and belief must be sworn to by a consular officer.

With respect to the remaining contentions, it will suffice to say that we have given them careful consideration and are of opinion that none has sufficient merit to require discussion in this opinion. Whether prosecution in France is barred by a statute of limitations is a question not before us, since no proof was made of the French law on that subject.

Judgment affirmed.

MANTON, Circuit Judge (dissenting). The order entered denied a discharge to the appellant on a writ of habeas corpus from the custody of the United States marshal who holds him in pursuance of an order of arrest issued by the United States Commissioner upon complaint of one Rene Tanquerey, who describes himself as "assistant consul general" of the French Republic in the City of New York, acting under authority delegated to him by the French consul general. He charges appellant with offenses admittedly within the existing extradition convention between the United States and France.

There are several reasons urged by the appellant for reversal of the order. For our present purposes, only one need be considered. The appellant contends that Mr. Tanquerey has not, in fact, been recognized by our government as a consular officer of France, for which he purports to act, and that therefore he is not an official representative of the French government. If there is substance in this ...

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