Marcos Perez Jimenez v. Manuel Aristeguieta, Consul General of the Republic of Venezuela

290 F.2d 106, 1961 U.S. App. LEXIS 4715

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 25, 1961
• Docket: 18408_1
• Status: Published

Opinions

RIVES, Circuit Judge.

In connection with this international extradition proceeding, both this Circuit¹ and the Second Circuit² have accepted jurisdiction of appeals from district court orders denying motions to quash subpoenas duces tecum. The Supreme Court on March 20, 1961 granted certiorari to review the decisions of both Circuits,³ and most of the disputed questions of law will probably be settled upon such review.

The present attempted appeal, as expressed in the notice of appeal, is “from the order of the Magistrate in Extradition Proceedings, William C. Mathes, dated April 7, 1960, and his order of April 14,1960 denying defendant’s motions for protective order against the taking of said depositions.” Notice of the taking of the depositions in New York had been given in accordance with the procedure prescribed by Rule 26, Federal Rules of Civil Procedure, 28 U.S.C.A.

The magistrate in extradition proceedings can be “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.” 18 U.S.C.A. § 3184. That the magistrate in this case happens to be a district judge does not make his orders appealable as orders of the district court. As used in Section 3184, supra, a “judge of the United States” is not synonymous with a “district court of the United States.” ⁴

This Court has jurisdiction of appeals “from all final decisions of the district courts of the United States” ⁵ in this Circuit, and from certain “interlocutory orders of the district courts of the United States."⁶ No statute, however, gives this Court jurisdiction of an appeal from an order, whether interlocutory or final, of a magistrate in an extradition proceeding. For lack of jurisdiction, therefore, the attempted appeal is

Dismissed.

1 . Aristeguieta v. Jimenez, 5 Cir., 1960, 274 F.2d 206.

2 . First National City Bank of New York, et al. v. Aristeguieta, 2d Cir., 1960, 287 F.2d 219, reversing Application of First National City Bank of New York, etc., D.C.S.D.N.Y., 1960, 183 F.Supp. 865.

3 . Aristeguieta v. First National City Bank of New York, 81 S.Ct. 798, 803.

4 . Benson v. McMahon, 1888, 127 U.S. 457, 462-463, 8 S.Ct. 1240, 32 L.Ed. 234; In re Luis Oteiza y Cortes, 1890, 136 U.S. 330, 10 S.Ct. 1031, 34 L.Ed. 464; compare Todd v. United States, 1894, 158 U.S. 278, 15 S.Ct. 889, 39 L.Ed. 982; Textile Mills Security Corp. v. Commissioners, 1941, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249; 10 Words and Phrases, Court of Justice, pp. 226, et seq.

5 . 28 U.S.C.A. § 1291.

6 . 28 U.S.C.A. § 1292(a) (1-3).