Ex parte Yordi

166 F. 921, 1909 U.S. Dist. LEXIS 423

• Court: District Court, W.D. Texas
• Decided: February 5, 1909
• Status: Published

Opinion

MAXEY, District Judge

(after stating the facts as above). With commendable frankness counsel for the petitioner concede that there is but a single question presented by the record for decision, to wit: Was the complaint made by Mr. Lomeli, consul of the republic of Mexico, sufficient to confer jurisdiction upon the United States commissioner to hear the proceeding in extradition? See Bryant v. United States, 167 U. S. 104, 17 Sup. Ct. 744, 42 L. Ed. 94; In re Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. 1031, 34 L. Ed. 464; Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct. 689, 40 L. Ed. 787; Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. 1240, 32 L. Ed. 234. It is disclosed by the stipulation of counsel that, while the complaint of the consul was verified by affidavit, it was nevertheless based, as to all of its counts, solely upon information and belief. It is, however, further shown that at the time of making the complaint the consul had before him the record from Mexico and the depositions- of witnesses therein contained. This record is quite voluminous, and embodies the proceedings had before the judge at Guadalajara, Mex., beginning with the' making of the complaint against the petitioner, and concluding with the issuance of a warrant for his arrest. The testimony of witnesses is fully set out in the record, and it appeared to the judge amply sufficient to justify an order for the apprehension of the accused. This record from Mexico was not only before the Mexican consul when he made the complaint against Yordi, now under consideration, but Commissioner Howe was thoroughly familiar with it, since it was introduced in evidence before him upon the hearing of the first complaint made by Mr. Lomeli. Now counsel insist that, although the consul had possession of the record and Commissioner Howe was familiar with it, still it was necessary, in order to confer jttrisdiction upon the commissioner to hear the proceeding, that either the record should be attached to the complaint or that the complaint should disclose upon its face the sources of the consul's information. And in support of the contention the court was referred to the following authorities: Rice v. Ames, 180 U. S. 371, 21 Sup. Ct. 406, 45 L. Ed. 577; Ex parte Lane (D. C.) 6 Fed. 38; In re Robb (C. C.) 19 Fed. 31; United States v. Tureaud (C. C.) 20 Fed. 621; Ex parte M’Cabe (D. C.) 46 Fed. 368, 12 L. R. A. 589; Ex parte Hart, 63 Fed. 249, 11 C. C. A. 165, 28 L. R. A. 801. In Ex parte M’Cabe (D. C.) 46 Fed. 369, 12 L. R. A. 589, this court had occasion to say that:

“Authorities to show that the warrant should be supported by affidavit would seem to be superfluous. The language of the statute (Rev. St. § 5270 |U. S. Com]). St. 1901, p. 3591]) is susceptible of but a single construction; and that, by its terms, a sworn complaint is indispensable as a basis for the warrant admits of no question.”

But in the present case there was a sworn complaint, and its sufficiency is the sole question presented for consideration. While In re Robb, supra, United States v. Tureaud, supra, and Ex parte Hart, sustain in some respects the position assumed by counsel, they are not so directly in point as to require extended notice.

As opposed to the authorities thus submitted, counsel, on the other side, rely upon the following: In re Farez, Fed. Cas. No. 4,645; In re Roth (D. C.) 15 Fed. 506; Ex parte Sternaman (D. C.) 77 Fed. 595; Sternaman v. Peck, 80 Fed. 883, 26 C. C. A. 214; In re Grin (C. C.) 112 Fed. 790; Grin v. Shine, 187 U. S. 188, 23 Sup. Ct. 98, 47 L. Ed. 130.

Referring to the precision required in the preparation of a complaint, Judge Coxe used the following language in Ex parte Sterna-man (D. C.) 77 Fed. 596, 597:

“The complaint should set forth clearly and briefly the offense charged. It need not he drawn with the formal precision of an indictment. If it he sufficiently explicit to inform the accused person of the precise nature of the charge against him, it is sufficient. The extreme technicality with which these proceedings were formerly conducted has given place to a more liberal practice, the object being to reach a correct decision upon the main question: Is there reasonable cause to believe that a crime has been committed? The complaint may, in some instances, be upon information and belief. The exigencies may be such that the criminal may escape punishment, unless he is promptly apprehended by the representatives of the country whose law he has violated. From the very nature of the case it may often happen that such representative can have no personal knowledge of the crime. If the offense be one of the treaty crimes, and if it be stated clearly and explicitly so that the accused knows exactly what the charge is, the complaint is sufficient to authorize the commissioner to act. The foregoing propositions are, it is thought, sustained by the following authorities: In re Farez, 7 Blatchf. 345, Fed. Cas. No. 4,645; In re Roth (D. C.) 15 Fed. 506; In re Henrich, 5 Blatchf. 414, Fed. Cas. No. 6,369; Ex parte Van Hoven, 4 Dill. 415, Fed. Cas. No. 16,859; In re Breen (C. C.) 73 Fed. 458; Ex parte Dane (D. C.) 6 Fed. 34; In re Herres (C. C.) 33 Fed. 165; Castro v. De Uriarte (D. C.) 16 Fed. 93; In re Macdonnell, 11 Blatchf. 79, Fed. Cas. No. 8,771”

The principal cases relied upon by counsel are yet to be considered. And first reference will be made to Ex parte Fane, decided by Judge Brown, who subsequently as Mr. Justice Brown delivered the opinion of the court in Rice v. Ames, supra, and Grin v. Shine, supra. At pages 38, 39, and 40 of 6 Federal, the learned judge said:

“The complaint is made upon information and belief and in this respect I think it is fatally defective. The statute requires a complaint upon oath, and I think it is not satisfied by a simple allegation that the complainant is informed and believes the petitioner to have committed the offense, or, in the language of this complaint, that upon the ‘best knowledge, information and belief’ of complainant defendant is guilty. A person may swear that he has reason to believe, and does believe, that a person has committed a crime, although his reasons may amount to little more than mere suspicion without laying himself open to a charge of perjury. This, however, is not a complaint upon oath within the meaning of the statute. The personal liberty of a citizen ought not to be interfered with upon an allegation so loosely framed. It is very singular that there are so few cases in which the requirements of a proper complaint upon oath are discussed, but I think, as a general rule, a mere allegation that the complainant has reason to believe, and does believe, is insufficient. * ~ •* I would not undertake to say, however, that a eoin-l>laint for extradition may not be made upon information and belief, for such a ruling might put it out of the power of a foreign government to obtain the surrender of a criminal in a large number of cases without incurring a very great and unnecessary expense in so doing. For instance, in the case of Farez, 7 Blatchf. 345. Fed. Cas. No. 4,645, the complaint was made by a representative of a foreign government in his official capacity as Swiss consul. I have no doubt that if depositions have been taken in a foreign country tending to show the accused guilty of the crime, or if an indictment has been found against him, or if the representative of the foreign government demanding his extradition has fully informed himself with regard to the particular events by conversations with persons who witnessed them, he may make a complaint upon information and belief; but in such case I think he should set forth with some particularity the sources and details of his information, or the grounds for supposing the defendant to be guilty. In other words, it should appear that his reasons for jrarsuing the defendant are based upon something more than mere rumor or suspicion of his guilt. In the case under consideration, however, the complaint does not purport to have been made by an officer, nor does it give any reason why it is made simply upon his best knowledge, information, and belief.”

In Rice v. Ames the court held that several counts of the complaint were obviously insufficient,1 “since the charges were made solely upon information and belief, and no attempt was made even to set forth the sources of information or the grounds of affiant’s belief.” And at p^jes 375 and 376 of 180 U. S., and at pages 407 and 408 of 21 Sup. Ct. (45 R. Ed. 577), Mr. Justice Brown employed the following language :

“We do not wish, however, to be understood as holding that, in extradition proceedings, the complaint must be sworn to by persons having actual knowledge of the offense charged. This would defeat the whole object of the treaty, as we are bound to assume that no foreign government possesses greater power than our own to order its citizens to go to another country to institute legal proceedings. This is obviously impossible. The ordinary course is to send an officer or agent of the government for that purpose, and Rev. St § 5271 (IT. S. Comp. St. 1901, p. 3593), makes special provision that ‘in every case of complaint and of a hearing upon the return of the warrant of arrest, any depositions, warrants, or other papers offered in evidence, shall be admitted and received for the purpose of such hearing if they shall be properly and legally authenticated so as to entitle them to be received as evidence of the criminality of the person so apprehended, by the tribunals of the foreign country from which the accused party shall have escaped, ánd copies of any such depositions, warrants, or other papers, shall, if authenticated according to the law of such foreign country, be in like manner received as evidence,’ of which authentication the certificate of the diplomatic or consular officer of the United States shall be sufficient.. This obviates the necessity which might otherwise exist of confronting the accused with the witnesses against him. Now, it would obviously be inconsistent to hold that depositions, which are admissible upon the hearing, should not also be admitted for the purpose of vesting jurisdiction in the commissioner to issue the warrant. Indeed, the words of the statute, ‘in every case of complaint’ seem to contemplate this very use of them. If the officer of the foreign government has no personal knowledge of the facts, he may with entire propriety make the complaint upon information and belief, stating the sources of his information and the grounds of his belief, and annexing to the complaint a properly certified copy of any indictment or equivalent proceeding, which may have been found in the foreign country, or a copy of the depositions of witnesses having actual knowledge of the facts, taken under the treaty and act of Congress. This will afford ample authority to the commissioner for issuing the warrant.”

In Grin v. Shine, 187 U. S. 193, 23 Sup. Ct. 103 (47 L. Ed. 130) on appeal from the Northern district of California, Mr. Justice Brown, as the organ of the court, said:

“No evidence was required that the Russian consul had authority to make the complaint. All that is required by section 5270 is that a complaint shall be made under oath. It 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.”

Neither in Grin v. Shine nor in the case of In re Grin (C. C.) 112 Fed. 790, was the complaint of the Russian consul set forth in haic verba. Hence it becomes difficult, if not impossible, to ascribe its exact meaning to the language employed by Mr. Justice Brown in the excerpt immediately preceding. See, also, Beavers v. Henkel, 194 U. S. 87, 24 Sup. Ct. 605, 48 L. Ed. 882.

A perusal of the foregoing extracts from the opinions of the Supreme Court makes it evident that depositions from a foreign country, which are admissible in evidence upon the hearing before the commissioner, are also to be admitted for the purpose of vesting jurisdiction in the commissioner to issue the warrant. But it is urged by counsel that, if the complaint be not based upon the personal knowledge of the affiant, the sources of his information should be stated and a copy of the indictment or equivalent proceeding, or a copy of the depositions of witnesses having knowledge of the facts should he annexed to the complaint. This contention of counsel is based upon the language of Mr. Justice Brown in the cases to which reference has been made. It is to be observed, however, that when this is done —that is, when the papers are annexed, etc.™ it will, employing the words of the learned justice, “afford ample authority to the commissioner for issuing the warrant.” The principal purpose, perhaps not the only one, of annexing the papers to the complaint, is to satisfy the commissioner that the prosecution against the accused is based upon real grounds, and not upon mere suspicion of his guilt. Was not this purpose fully subserved in the present case? We have seen that, when Mr. Eomeli made the complaint, he had before him the record and depositions from Mexico pointing to Yordi’s guilt. We have also seen that, when the complaint was submitted to llie commissioner, he was thoroughly conversant with the contents of the record and depositions from Mexico, since they were before him in a former hearing had upon the first complaint made by Mr. Eomeli. Besides, he knew that the papers were in the consul’s possession. What more was necessary? Did not the knowledge thus acquired “afford ample authority to the commissioner for issuing the warrant”? Was it indispensable to the jurisdiction of the commissioner that tlie record and depositions from Mexico should he actually fastened to the complaint when they were in the custody and keeping of the consul, and the commissioner was already in possession of the information which they contained?

To answer the last question in the affirmative would he to construe with undue literalness the language of Mr. Justice Brown; and it seems to the court that, in view of the circumstances of this case, the reply must be in the negative. It follows that the order of the commissioner, detaining the petitioner to await a final order of extradition, should be affirmed. -

An order will be accordingly entered discharging the writ heretofore awarded, and requiring the marshal to hold the petitioner in custody until by the proper authorities a warrant of extradition be duly issued.