decided: July 10, 1959.
UNITED STATES OF AMERICA EX REL. SOL R. RAUCH AND HAROLD D. RAUCH, RELATOR-APPELLANTS,
JOSEPH STOCKINGER AND ALEX KRINSKY, RESPONDENTS-APPELLEES.
Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.
WATERMAN, Circuit Judge.
On August 21, 1958 the Ambassador of Canada to the United States submitted a formal request to our Secretary of State for extradition of the relators herein, Sol R. Rauch and Harold D. Rauch, accusing them of having committed an extraditable offense within the jurisdiction of Canada. The Department of State acknowledged receipt of this request and informed the Canadian Ambassador that the request would be considered as soon as the necessary legal steps under 18 U.S.C. § 3184*fn1 were completed. Accordingly, on September 26, 1958 counsel for the Attorney General of the Province of Ontario, Canada filed complaints under oath with the United States Commissioner for the Eastern District of New York. After a hearing in which evidence was submitted in the form of depositions and other documents, the Commissioner indicated on November 26, 1958 that he intended to certify to the Secretary of State that this evidence was sufficient to support the charge that the relators had committed an extraditable crime within Canada. The Commissioner then remanded the relators to the custody of the United States Marshal. Relators obtained a writ of habeas corpus from the District Court for the Eastern District of New York in order to have the court inquire into the legality of their custody by the United States Marshal. However, the writ was dismissed in an opinion dated February 16, 1959, 170 F.Supp. 506. This appeal is from that dismissal.
The requirement of a "treaty * * * for extradition" stated in 18 U.S.C. § 3184 is satisfied in this case by the Treaty between the United States and Great Britain of 1842, 8 Stat. 572*fn2 and the Supplementary Conventions of 1889, 26 Stat. 1508,*fn3 1900, 32 Stat. 1864*fn4 and 1951.*fn5 They clearly provide for and make extraditable the crime which relators were charged with having committed in Canada in the complaints of September 26, 1958. Each states:
"That heretofore, to wit, on March 21st, 1958, Justice of the Peace J. Little, for the County of York, Province of Ontario, Canada, at the Municipality of Metropolitan Toronto, issued a warrant for the arrest of the defendant above named for the theft of money and securities of the value of Nine Hundred Sixty Thousand ($960,000.00) Dollars obtained by deceit, falsehood or other fraudulent means, the property of Brilund Mines Limited, a crime under the Laws of Canada, pursuant to the Criminal Code of Canada, being Chapter 51, 2-3 Eliz. II, Statutes of Canada, 1953-54, with amendments thereto, embodying Sections 269(1), 274, 276, 280, 323.(1), 2.(15) of the Criminal code of Canada.
"That on or about the 8th day of September, 1958, a true bill of indictment was handed up in the Supreme Court of Ontario, County of York, Province of Ontario, charging the defendant [Harold D. Rauch] with theft, fraud and conspiracy."
Relators apparently concede the applicability of the treaty. They argue, however, that the district court erred in dismissing the writ of habeas corpus because the evidence before the Commissioner was insufficient to satisfy the treaty requirements of production of evidence by the Government of Canada adequate to furnish reasonable ground for the belief that relators had committed within the Dominion of Canada acts constituting a criminal offense under the laws of Canada and under the laws of New York. Bingham v. Bradley, 1916, 241 U.S. 511, 36 S. Ct. 634, 60 L. Ed. 1136. We have no difficulty in holding that such evidence was produced and was before the Commissioner when he made his determination.
From an examination of the six depositions given by men who were in one way or another involved in the transaction in question, one could reasonably believe that relators, together with others, obtained control of Brilund Mines Limited without any payment therefor out of their personal funds, but obtained control by using the corporations's own money and property to obtain and convert to their personal use the controlling stock in that corporation. Those depositions reveal that one could reasonably believe that relators and their associates acting ostensibly as officers and directors of Brilund Mines Limited purchased with $960,000 worth of assets of that corporation from one D. Charles Stuart real property probably known by him to be of an estimated value of less than $1,000. It also seems quite likely from relators' relationship with Stuart and the course of their dealings with him that they also knew of this estimated value, or at least knew that $960,000 was a grossly excessive price. $900,000 of the $960,000 was then used by Stuart to procure control of Brilund Mines Limited by the purchase of a block of 600,000 of its shares of stock from one Ben Smith. Stuart paid Smith $1.50 per share although it would appear that the stock was then being traded at $.40 per share. 400,000 to 500,000 of the shares purchased were turned over to relators and their associates rather than to Stuart. Stuart also gave $5,990 in cash to relators and one other. All this was accomplished by votes of a new Board of Directors, of which relators were members, hurriedly put into office by the votes of this Smith stock. One could reasonably believe that this new directorate was put into control of the corporation by Snith in order to effect the corporate transaction with Stuart and the consequent sale of the Smith corporate stock to him. These depositions and relevant documentary exhibits were accompanied by a certificate of the Consul-General of the United States at the City of Toronto, Ontario, as required by 18 U.S.C. § 3190*fn6 and were properly received into evidence by the Commissioner. Apparently no evidence was presented by relators to controvert them.
On March 12, 1958 the Auditor of the ontario Securities Commission filed an Information and Complaint before a Justice of the Peace in the Province of Ontario charging that relators and others "did steal money and securities to the value of Nine Hundred and Sixty Thousand Dollars ($960,000) more or less, the property of Brilund Mines Limited," and with defrauding that company of the same amount "by deceit, falsehood or other fraudulent means." On March 21, 1958 that Justice issued warrants for their arrest. Later, on September 8, 1958 the Grand Jury for York County, Ontario returned an indictment against relators charging the same criminal acts that were set out in the Information and Complaint. After an examination of the applicable portions of the Criminal Code of Canada dealing with theft*fn7 and fraud*fn8 we are convinced that the facts set out in the depositions provided a reasonable ground for the Commissioner to believe that relators committed acts criminal under the laws of Canada. It likewise seems clear to us that the contents of the depositions provided a reasonable ground for him to believe that relators committed acts which would be criminal under the laws of New York. New York Penal Law, McKinney's Consol.Laws, c. 40, §§ 1290,*fn9 1294*fn10 and 1295.*fn11 It is immaterial that the acts in question constitute the crime of theft and fraud in Canada and the crime of larceny in New York State. It is enough if the particular acts charged are criminal in both jurisdictions. Collins v. Loisel, 1922, 259 U.S. 309, 42 S. Ct. 469, 66 L. Ed. 956.
We also find without merit what appears to be relators' claim that they were not properly charged in Canada with having committed a crime. They base this contention on the absence from the Information and Complaint and the indictment of any enumeration of "overt acts," and the lack of the words "with intent" therein. The Complaint and the indictment set out the charges in practically identical language. The indictment states:
"1. The jurors for Her Majesty the Queen present that Ben Smith, D. Charles Stuart, Stanley I. Schonbrun, Sol R. Rauch and Harold D. Rauch during the year 1957, at the City of Toronto in the County of York 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. The said jurors further present that the said Ben Smith, D. Charles Stuart, Stanley I. Schonbrun, Sol R. Rauch and Harold D. Rauch, during the year 1957 at the City of Toronto in the County of York and elsewhere, 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 our duty on this appeal to order the relators' release merely because we do not find on this appeal "all the factitious niceties of a criminal trial at common law." Glucksman v. Henkel, 1911, 221 U.S. 508, 512, 31 S. Ct. 704, 705, 55 L. Ed. 830. "Form is not to be insisted upon beyond the requirements of safety and justice." Fernandez v. Phillips, 1925, 268 U.S. 311, 312, 45 S. Ct. 541, 542, 69 L. Ed. 970. The criminal intent required by both the Canadian*fn12 and New York statutes*fn13 is necessarily involved in the charges as alleged and need not be set out in haec verba. Nor does the Information and Complaint of March 12, 1958, or the subsequent indictment, need to contain a list of overt acts making up the crime with which relators are charged. They need be only as precise as is necessary to allow a defendant to prepare a defense, or to prevail upon a plea of former jeopardy in case of reindictment. Surely relators are sufficiently apprised here of the nature of the charges against them.