Before Waterman, Moore and Hamlin,*fn* Circuit Judges.
The appellants are three banks, The First National City Bank of New York (City Bank), French American Banking Corporation (French American), the Royal Bank of Canada, and Silvio Gutierrez, a depositor with Chemical Bank New York Trust Company, and Napoleon Dupouy, a depositor in City Bank and French American. Appellants appeal from an order which denied appellants' motions to quash subpoenas duces tecum issued by the Clerk of the District Court for the Southern District of New York. Previously, United States District Court Judge Mathes of the Southern District of California, sitting as an extradition magistrate in the Southern District of Florida, had granted appellee "permission to resort to the deposition procedure provided in Rules 26 and 45 and related provisions of the Federal Rules of Civil Procedure, including, without limitations, procedure for subpoenas duces tecum, to secure evidence from any appropriate officials of First National City Bank of New York, of French American Banking Corporation, and Royal Bank of Canada, all in New York City."
Involved is an international extradition proceeding initiated by Manuel Aristeguieta, Consul General of the Republic of Venezuela, on behalf of appellee, the Republic of Venezuela (Venezuela), in which the return to Venezuela of Marcos Perez Jimenez, a former president of Venezuela, now in the State of Florida, is sought. The complaint filed by Venezuela in the Southern District of Florida charges Jimenez with a number of crimes alleged to have been committed in Venezuela, which are extraditable under the Treaty of Extradition between the United States and Venezuela (43 Stat. 1698). The crimes include four murders, the unlawful abstraction and misappropriation to his own personal use of large sums of money and the illegal receipt of various commissions, all to his illicit enrichment at the expense of the Republic of Venezuela.
More specifically, the complaint in substance alleges that the Attorney-General of Venezuela filed a bill of charges supported by voluminous documentary evidence in the Federal Court of Venezuela, that the Federal Court issued its warrant for Jimenez' arrest, that extradition documents legally authenticated have been filed here and incorporated therein by reference and that justification for extradition has been established as a matter of fact and law. Hearings, which have been conducted for some time before Judge Mathes, are still pending. During the course of the hearings, counsel for Venezuela served upon certain of the banks notices for taking depositions in New York together with subpoenas based thereon. The notices upon motion were vacated by order (Judge Choate) in Florida. This order in turn was vacated (also by Judge Choate) "in so far as it relates to the establishment of special rules governing procedure in the above styled case."
Thereafter, subpoenas were served in New York, returnable in Miama, Florida, requiring the banks to produce certain specified records. The banks responded by moving to quash; the motions were denied and thereafter an appeal was taken by the banks and others (including appellant depositors) to the United States Court of Appeals for the Fifth Circuit. The appellants there argued that subpoenas in an extradition proceeding could not properly be issued on behalf of the demanding country and, alternatively, that the particular subpoenas were invalid because they purported to extend the Court's process beyond 100 miles from the Court House in Miami, see Fed.Rules Civ. Proc. 45(e) (1). The United States filed a brief amicus curiae (as has been done in this court) contending that the power of an extradition magistrate includes nationwide compulsory process.
In the interest of expedition the Court of Appeals for the Fifth Circuit handed down a per curiam opinion, Chief Judge Rives dissenting, in which the grounds of decision were not stated. The court simply concluded that the order of the District Court should be reversed and the subpoenas quashed. Aristequieta v. Jimenez, 5 Cir., 1960, 274 F.2d 206 (petition for certiorari docketed April 28, 1960). After complying with this mandate, Judge Mathes by order permitted Venezuela to avail itself of the deposition and subpoena procedure under the Federal Rules of Civil Procedure. Subpoenas have been issued in the Southern District of New York and the banks again have moved to quash. From Chief Judge Ryan's opinion denying the motions, appellants appeal.
The foundation for international extradition lies within a short statutory framework, 18 U.S.C.A. §§ 3184-3195, and whatever treaty is applicable to the foreign country seeking delivery. The treaty with Venezuela, supra (a fairly standardized version of comparable agreements with other nations) provides that upon requisition a person charged with any of the crimes specified in Article II shall be surrendered by the country of asylum.
The purpose of the Treaty is "to facilitate the course of punitive justice * * *; to prevent the impunity which would result from the escape of guilty persons and of their asylum in the territory of one or the other nation," and to provide for the extradition of the accused as well as the sentenced. The method agreed upon was "to deliver up to justice, by means of requisition duly made as herein provided, any person who may be charged with or may have been convicted of any of the crimes committed within the jurisdiction of one of the Contracting Parties and specified in Article II of this Convention, while said person actually was within such jurisdiction when the crime was committed, and who shall seek asylum or who shall be found within the territories of the other." To assure each contracting country of comparable criminal standards the surrender was to be made "only upon such evidence of guilt as, according to the laws of the country in which the fugitive or accused shall be found, would justify his detention and commitment for trial if the crime or offense had been committed there" (Article I).
Section 3184, Title 18 U.S.C., then empowers "any justice or judge of the United States, or any commissioner authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State" in whose jurisdiction the fugitive is found, to conduct (after apprehension and appearance) a hearing "to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty * * * he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State * * *."
Neither statutes nor decided cases furnish satisfactory guides as to procedures for obtaining proof upon extradition proceedings. However, the courts have compared these proceedings with
"preliminary examinations which take place every day in this country before an examining or committing magistrate for the purpose of determining whether a case is made out which will justify the holding of the accused, either by imprisonment or under bail, to ultimately answer to an indictment, or other proceeding, in which he shall be finally tried upon the charge made against him." Benson v. McMahon, 1888, 127 U.S. 457, 463, 8 S. Ct. 1240, 1243, 32 L. Ed. 234.
Adhering to this analogy, the question, thus, is whether probable cause has been established to suppose the fugitive guilty, Glucksman v. Henkel, 1911, 221 U.S. 508, 512, 31 S. Ct. 704, 55 L. Ed. 830; cf. Rule 5(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., i.e., a prima facie case, Charlton v. Kelly, 1913, 229 U.S. 447, 33 S. Ct. 945, 57 L. Ed. 1274.
It was early recognized that upon an extradition hearing the evidence necessary to make out a prima facie case would be located in the country where the crime was committed and that the object of extradition would be defeated if the demanding country were put to the onerous task of transporting witnesses in person to the United States (Bingham v. Bradley, 1916, 241 U.S. 511, 517, 36 S. Ct. 634, 60 L. Ed. 1136). Hence, 18 U.S.C. § 3190 permits "depositions, warrants, or other papers or copies thereof" offered by the demanding government to be admitted in evidence if properly authenticated and certified that such evidence would be admissible in a like proceeding in the demanding country. The ex parte advantages of Section 3190 are not open to a defendant (In re Luis Oteiza y Cortes, 1890, 136 U.S. 330, 10 S. Ct. 1031, 34 L. Ed. 464), but he may offer limited evidence, admissible under recognized standards, to explain elements in the case against him (Charlton v. Kelly, supra). Moreover, Section 3191 provides, as to an indigent fugitive, where "there are witnesses whose evidence is material to ...