TYLER, District Judge.
Under procedures set forth in 18 U.S.C. § 3184 (9 Stat. 302 (1848)) the United States Attorney here proceeds on behalf of the Dominican Republic in seeking the extradition from this country of Clodoveo Ortiz Gonzalez (“Ortiz”), a national of the Dominican Republic.
The demand for extradition is made under the terms of a Convention entered into between the United States and the Dominican Republic, proclaimed on August 26, 1910, 36 Stat. 2468, which provides for the extradition, to the demanding state, of any person “who may be charged with, or may have been convicted of any of the [following] crimes[:] * * * [m]urder * * * ”.
On March 6, 1962, a “warrant of provisional arrest” was issued by the Dominican authorities against Ortiz. In an accompanying “Summary Judicial Certification”, it is stated:
“In accordance with the depositions made before this Judge on January 31 * * * 1962 * * * the criminal liability of the accused * * * has been fully established[:] * * * Clodoveo Ortiz Gonzalez did, by means of torture in the house of detention named ‘the 40’, kill the persons named * * * Deschamps * * * and * * * Espertin Oliva * * * on August 12 * * * (1960), as is attested by the eyewitnesses * * * Tineo and * * * Saavedra.”
The affidavits of Tineo and Saavedra amply support the conclusion that Ortiz was one of those who, acting in a military or quasi-military capacity under the regime of Generalissimo Rafael Trujillo,
did actively participate in the torturing and killing of the two named prisoners.
The burden of proof which must be met in order that certification of an “extraditable offense” be made by this
court under 18 U.S.C. § 3184 is that the case be proved with the degree of sufficiency necessary to justify commitment for trial under local law.
On the record before me, this burden has been met with respect to the crime of murder charged here.
There remain, however, two issues of law.
The treaty applicable here, in common with most treaties of extradition, contains a provision excluding extradition “for any crime or offense of a political character * * * [and] * * * acts connected with such crimes or offenses”.
Ortiz bases his opposition to the certification of extraditable offense here sought chiefly on the argument that the crime charged falls within this “political offense” exception.
On March 7th, 1963, a United ¡-States Commissioner in this District deified extradition of Ortiz for the very crimes charged here, on the grounds that, though amply proved, they were political offenses and as such not cause for extradition. This determination is not finally binding in later, renewed, proceedings.
' I am constrained to hold that, on the facts disclosed by the record before me, the political offense exception does not apply.
The conception of “political offense”, in the context of extradition, is a familiar one.
Both the English and American cases dealing with this issue recognize the leading case to be In re Castioni, 1 Q.B. 149 (1891).
That was a case of first impression in England, applying for the first time the “political offense” exception contained in the applicable extradition statute, 33 and 34 Vict. c. 52 (1870). In that case, the Swiss government sought the extradition of one Castioni for a fatal shooting done by him while he was participating in a violent popular demonstration protesting the government’s refusal to submit a proposed constitutional revision to popular vote.
The Queens Bench Division held that extradition for this crime was barred since it was a “political offense”.
There are three concurring opinions in Castioni which discuss the “political offense” concept at some length. However, they are fairly summarized by the much-quoted definition, set forth by Hawkins, J., according to which those of
fenses are political which “were incidental to and formed a part of political disturbances.” In re Castioni, 1 Q.B. at p. 166.
Authorities on international law restate the prevailing Anglo-American law in essentially this form.
A leading American case in this area establishes that the political offense exception is applicable to acts of government agents seeking to suppress an uprising, as well as to the acts of those participating in the uprising. In re Ezeta, 62 F. 972, 1002 (N.D.Cal.1894). See also, Karadzole v. Artukovic, 247 F.2d 198 (9th Cir., 1957), rev’d on other grounds, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958).
In either event, however, the general rule is that there must be an “uprising”, and that the acts in question must be incidental to it.
A hearing was conducted before this court on March 27, 1963,
to determine whether in August, 1960, there was such a condition of “uprising” or political disturbance in the Dominican Republic as would justify application of the “political offense” exception to the killings allegedly then committed by Ortiz. The testimony given at that hearing establishes that there was no such disturbed political condition.
Moreover, nothing in the record before me suggests that Ortiz acted with such essentially political motives or political ends as might justify substantial relaxation of the “political disturbance” requirement. (See footnote 9, supra). Indeed, any other conclusion would be contrary to a second contention of Ortiz here, which is that his acts were those of a military subordinate obeying the orders of a superior, and hence were essentially incidents of a system of military discipline.
To the extent that this contention is valid, and I conclude from the record before me that it is largely so, Ortiz’
conduct must be regarded as flowing not so much from a personal commitment to a political cause, as from a personal commitment to a system of military discipline. This, in my view, particularly reinforces the conclusion that the “political offense” principle or exception is inapplicable here
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TYLER, District Judge.
Under procedures set forth in 18 U.S.C. § 3184 (9 Stat. 302 (1848)) the United States Attorney here proceeds on behalf of the Dominican Republic in seeking the extradition from this country of Clodoveo Ortiz Gonzalez (“Ortiz”), a national of the Dominican Republic.
The demand for extradition is made under the terms of a Convention entered into between the United States and the Dominican Republic, proclaimed on August 26, 1910, 36 Stat. 2468, which provides for the extradition, to the demanding state, of any person “who may be charged with, or may have been convicted of any of the [following] crimes[:] * * * [m]urder * * * ”.
On March 6, 1962, a “warrant of provisional arrest” was issued by the Dominican authorities against Ortiz. In an accompanying “Summary Judicial Certification”, it is stated:
“In accordance with the depositions made before this Judge on January 31 * * * 1962 * * * the criminal liability of the accused * * * has been fully established[:] * * * Clodoveo Ortiz Gonzalez did, by means of torture in the house of detention named ‘the 40’, kill the persons named * * * Deschamps * * * and * * * Espertin Oliva * * * on August 12 * * * (1960), as is attested by the eyewitnesses * * * Tineo and * * * Saavedra.”
The affidavits of Tineo and Saavedra amply support the conclusion that Ortiz was one of those who, acting in a military or quasi-military capacity under the regime of Generalissimo Rafael Trujillo,
did actively participate in the torturing and killing of the two named prisoners.
The burden of proof which must be met in order that certification of an “extraditable offense” be made by this
court under 18 U.S.C. § 3184 is that the case be proved with the degree of sufficiency necessary to justify commitment for trial under local law.
On the record before me, this burden has been met with respect to the crime of murder charged here.
There remain, however, two issues of law.
The treaty applicable here, in common with most treaties of extradition, contains a provision excluding extradition “for any crime or offense of a political character * * * [and] * * * acts connected with such crimes or offenses”.
Ortiz bases his opposition to the certification of extraditable offense here sought chiefly on the argument that the crime charged falls within this “political offense” exception.
On March 7th, 1963, a United ¡-States Commissioner in this District deified extradition of Ortiz for the very crimes charged here, on the grounds that, though amply proved, they were political offenses and as such not cause for extradition. This determination is not finally binding in later, renewed, proceedings.
' I am constrained to hold that, on the facts disclosed by the record before me, the political offense exception does not apply.
The conception of “political offense”, in the context of extradition, is a familiar one.
Both the English and American cases dealing with this issue recognize the leading case to be In re Castioni, 1 Q.B. 149 (1891).
That was a case of first impression in England, applying for the first time the “political offense” exception contained in the applicable extradition statute, 33 and 34 Vict. c. 52 (1870). In that case, the Swiss government sought the extradition of one Castioni for a fatal shooting done by him while he was participating in a violent popular demonstration protesting the government’s refusal to submit a proposed constitutional revision to popular vote.
The Queens Bench Division held that extradition for this crime was barred since it was a “political offense”.
There are three concurring opinions in Castioni which discuss the “political offense” concept at some length. However, they are fairly summarized by the much-quoted definition, set forth by Hawkins, J., according to which those of
fenses are political which “were incidental to and formed a part of political disturbances.” In re Castioni, 1 Q.B. at p. 166.
Authorities on international law restate the prevailing Anglo-American law in essentially this form.
A leading American case in this area establishes that the political offense exception is applicable to acts of government agents seeking to suppress an uprising, as well as to the acts of those participating in the uprising. In re Ezeta, 62 F. 972, 1002 (N.D.Cal.1894). See also, Karadzole v. Artukovic, 247 F.2d 198 (9th Cir., 1957), rev’d on other grounds, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958).
In either event, however, the general rule is that there must be an “uprising”, and that the acts in question must be incidental to it.
A hearing was conducted before this court on March 27, 1963,
to determine whether in August, 1960, there was such a condition of “uprising” or political disturbance in the Dominican Republic as would justify application of the “political offense” exception to the killings allegedly then committed by Ortiz. The testimony given at that hearing establishes that there was no such disturbed political condition.
Moreover, nothing in the record before me suggests that Ortiz acted with such essentially political motives or political ends as might justify substantial relaxation of the “political disturbance” requirement. (See footnote 9, supra). Indeed, any other conclusion would be contrary to a second contention of Ortiz here, which is that his acts were those of a military subordinate obeying the orders of a superior, and hence were essentially incidents of a system of military discipline.
To the extent that this contention is valid, and I conclude from the record before me that it is largely so, Ortiz’
conduct must be regarded as flowing not so much from a personal commitment to a political cause, as from a personal commitment to a system of military discipline. This, in my view, particularly reinforces the conclusion that the “political offense” principle or exception is inapplicable here
This raises a second issue of law, which is the effect of Ortiz’ contention that he acted under the orders of a superior and in the exercise of public authority, and that hence his conduct cannot be deemed criminal.
There is authority for the proposition that “defenses”, such as this one, are not to be considered in extradition proceedings but are to be left for the trial court.
The thrust of this rule, however, is simply that the extradition court may not attempt to finally resolve issues of fact raised by defenses directed to the merits of the charge. This cannot overturn or impinge upon the rule that the demanding state has the burden of proving the governing law, and of making out its
prima facie
factual case, with respect to any matter which the extradition court deems important, and
bona fide
at issue, bearing on the guilt or innocence ■of the accused. The criminality
vel non
of these acts of Ortiz, assuming them to have been performed by him as an agent of the Dominican government, is such an issue in this case.
The Dominican Republic has met its burden with respect to this issue. Specifically, I am satisfied that under the Dominican law, as under our own law, public officials may be criminally liable for acts which fall well outside duly constituted public authority,
and that there is a
prima facie
case that this rule is applicable to the extraordinary homicidal acts ascribed to Ortiz.
Thus, the requirements set forth in 18 U.S.C. § 3184 have been satisfied. One further word, however, may be appropriately added.
As noted above,
a chief reason for the presence of the “political offense” exception in our extradition treaties is to prevent our legal processes from being used by a foreign regime as instruments of reprisal against its domestic political opponents.
The state of facts in the case at bar, where one foreign regime seeks the extradition of an individual for acts done as an official of a prior regime, presents, at least superficially, a situation where this danger is acutely present.
While I have no reason to believe that this danger has materialized in this specific case, I nonetheless fully endorse the following passage from the opinion of the District Court in In re Lincoln, 228 F. 70, 74 (E.D.N.Y.1915) :
“* * * [I]t is not a part of the court proceedings nor of the hearing upon the charge of crime to exercise discretion as to whether the criminal charge is a cloak for political action, nor whether the request is made in good faith. Such matters should be left to the Department ofi State. * * *
“It is thought by the court that application to the Secretary of State of the United States will furnish full protection against the delivery of the accused to any government which will not live up to its treaty obligations, and that the Secretary of State will be fully satisfied (before delivering the accused to the demanding
government) that he is wanted (in the legal sense of that term) upon a criminal charge, that it is not sought to secure him from a country upon which he is dependent as an asylum because of political matters, and that the treaty is not actually used as a subterfuge”.
In conclusion, it is here determined that the evidence is sufficient to sustain the charge, for which the extradition of Clodoveo Ortiz Gonzalez is sought, under the provisions of the applicable convention. The Clerk is directed, pursuant to the statute, to certify a copy of this opinion and the record in this case, including transcripts of all testimony received, to the Secretary of State of the United States.
So ordered.