The opinion of the court was delivered by: BYERS
A Writ of Habeas Corpus was granted bearing the above caption, to inquire into the legality of the custody of the U.S. Marshal for this District into which the relators were ordered, pending their extradition to Canada, at the instance of the Government of that country.
The Commissioner before whom the proceeding was laid pursuant to Tit. 18 U.S.C. § 3184, has decided and determined that 'the prosecution has, by ample evidence, established probable cause that the crime of larceny as contained in the Penal Law of Canada, and as defined by the Treaties and Supplementary Conventions thereto, and the Penal Laws of the State of New York, was committed by the defendants, and the Commissioner will certify to the Secretary of State that the defendants be extradited to the Province of Ontario, Canada, for prosecution.'
There are five persons named in the indictment filed in the Supreme Court of Ontario, of whom but two, Sol R. Rauch and Harold D. Rauch are the relators before the court.
No question of identity is involved, since that was conceded in the record before the Commissioner.
It is stated in the complaint or petition for extradition that the indictment was filed on September 8, 1958. An examination of the documentary evidence submitted to the Commissioner (there was no oral testimony) is convincing to this court that the action taken was legally justified, and the Writ will be dismissed for reasons briefly to be stated.
For present purposes, the offences charged in the indictment are:
(1) that the defendants named, during the year 1957 at Toronto and elsewhere, 'did steal money and securities to the value of $ 960,000.00 more or less, the property of Brilund Mines Limited, contrary to the Criminal Code.'
(2) that the said defendants during the same year and at the same places 'by deceit, falsehood or other fraudulent means defrauded Brilund Mines Limited of money and securities to the value of $ 960,000.00 more or less, contrary to the Criminal Code.'
It is not argued for the relators that the documentary evidence submitted to the Commissioner, namely the original information, the indictment later filed, and the depositions upon which the said charges were laid, do not constitute a prima facie showing that the relators did the things charged. The contention is that the failure to include in the indictment the words 'with intent to, etc.' render it of no legal effect, and that the Commissioner should have so held, and refused to grant extradition.
The controversy can be resolved without extensive discussion because:
A. The applicable treaties provide that extraditable offences include:
2. Obtaining money, valuable securities or other property by false pretenses; or by defrauding the public by deceit or falsehood or any fraudulent means whether such deceit would or would not amount to a false pretense.
See Treaties between the United States and Great Britain of 1842, 1889, and 1900, 8 Stat. 572, 26 Stat. 1508, 32 Stat. 1864. The Supplemental Convention of July 12, ...