311 F.2d 547 (5th Cir. 1962), 19507, Jimenez v. Aristeguieta

Docket Nº:19507.
Citation:311 F.2d 547
Party Name:Marcos Perez JIMENEZ, Appellant, v. Manuel ARISTEGUIETA, Intervenor, Appellee, and John E. Maguire, Appellee.
Case Date:December 12, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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311 F.2d 547 (5th Cir. 1962)

Marcos Perez JIMENEZ, Appellant,


Manuel ARISTEGUIETA, Intervenor, Appellee, and John E. Maguire, Appellee.

No. 19507.

United States Court of Appeals, Fifth Circuit.

December 12, 1962

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David W. Walters, Walters, Moore & Costanzo, Miami, Fla., for appellant.

Howard C. Westwood, Washington, D.C., William G. Ward, Miami, Fla., William H. Allen, William A. Dobrovir, Brice M. Clagett, Washington, D.C., James L. Hiss, Miami, Fla. (Covington & Burling, Washington, D.C., Ward & Ward, Miami, Fla., of counsel), for intervenor-appellee.

Irving Jaffe, Atty. Dept. of Justice, Washington, D.C. (Nicholas deB. Katzenbach, Deputy Atty. Gen., Edward F. Boardman, U.S. Atty., Miami, Fla., on the brief), for appellee, John E. Maguire.

Before JONES and BELL, Circuit Judges, and ESTES, District Judge.

ESTES, District Judge.

This is an appeal from the judgment of the United States District Court for the Southern District of Florida, Judge Wm. A. McRae, Jr., dated August 23, 1961, dismissing the original and amended petitions for habeas corpus filed by appellant, Marcos Perez Jimenez, and discharging the original and amended orders to show cause issued on the petitions for habeas corpus. The petitions for habeas corpus incorporate by reference the entire file in an international extradition proceeding under 18 U.S.C.

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§ 3184 et seq., filed in the United States District Court for the Southern District of Florida, Miami Division, on August 24, 1959, 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 appellant, a former president of Venezuela, now in Miami, florida, is sought under the Treaty of Extradition between the United States and Venezuela (43 Stat. 1698). 1

Appellant's amended petition for habeas corpus under 28 U.S.C. § 2241 asserts that the extradition file discloses defects which made unlawful both his commitment to custody and his detention under orders entered therein by Chief Judge George W. Whitehurst of the United States District Court for the Southern District of Florida.

Appellee's return to the order to show cause justified appellant's commitment and detention on the basis of the propriety of Judge Whitehurst's orders, and urged that the extradition file disclosed no defects cognizable upon a petition for writ of habeas corpus.

No testimony being offered, after argument of counsel Judge McRae entered the judgment which is the subject of this appeal, holding as a matter of law that the pleadings and papers before him disclosed no cause for issuance of the writ of habeas corpus.

The extradition proceeding was initially heard by Judge William C. Mathes, of the United States District Court for the Southern District of California, sitting in Miami by designation. On March 8, 1960 Judge Mathes permitted the filing of Venezuela's Second Amended Complaint; issued a new warrant for the arrest of appellant returnable 'before me', and 'with the consent of both plaintiff and defendant' continued appellant's release on bond previously posted. Thereafter the extradition case proceeded before Judge Mathes until Venezuela closed its evidence, all of which was documentary. Appellant's motion to dismiss was denied by Judge Mathes 'without prejudice to a renewal of it at the close of the evidence.'

In accordance with an order of the Judicial Council of the Fifth Circuit of October 7, 1960, for assignment 'to some other judge' of any 'unfinished business' of Judge Mathes, Chief Judge Whitehurst ordered the extradition case assigned to himself on March 6, 1961, and proceeded with hearings therein.

The extradition proceeding was concluded by orders entered by Judge Whitehurst, under 18 U.S.C. § 3184, finding that the proof did not establish

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probable cause on the charges of murder and participation in murder. He further found that probable cause had been shown as to each of the financial crimes which were separately and independently alleged in plaintiff's Second Amended Complaint and that the acts charged constituted crimes named in the specified provisions of the Treaty of Extradition, and he committed the appellant to the custody of the appellee United States Marshal to await the action of the Secretary of State under 18 U.S.C. § 3186. The order of commitment was entered by Judge Whitehurst on June 16, 1961. His findings and order of certification to the Secretary of State, entered June 23, 1961, attach a copy of the Second Amended Complaint in the extradition proceeding, to which certain sections of the certification order specifically refer.

Venezuela's Second Amended Complaint, upon which the extradition proceeding and orders under attack were based, charged appellant, chief executive of Venezuela (first as a member of a three-man junta, then as provisional President, and later as President), having legal responsibility for the administration of the funds and contracting authority of Venezuela, with two distinct groups of crimes committed in Venezuela during the years 1948-1958, the first group composed of four charges of murder and participation in murder as an accessory before the fact, the second group comprised financial crimes for his own private personal gain. The financial crimes are separately and independently charged in the complaint and are based on certain alleged transactions briefly summarized as follows:

1. The appellant secured commissions or kickbacks in ten specific instances on Venezuelan Government contracts, some of which the appellant himself had executed.

2. Through a 'front' or alter ego the appellant secured a portion of the compensation paid by the Venezuelan Government for two tracts of land expropriated by decrees promulgated by him.

3. By his twenty per cent ownership of EVICSA, a construction company, the appellant secured a portion of the compensation paid by the Venezuelan Government on construction contracts with the appellant's Ministry of Development, with the connivance of two of his ministers, one of whom was head of that ministry.

4. The appellant secured improvements on and maintenance of his private, personal estate at public expense at specified times.

The charges of financial crimes allege that the transactions numbered 1 through 4 above make appellant guilty of embezzlement or criminal malversation by a public officer as provided in paragraph 14 of Article II of the Treaty, guilty of fraud or breach of trust as provided in paragraph 20 of Article II of the Treaty, and that the transactions numbered 1 through 3 above make him guilty of receiving money or valuable securities knowing the same to have been unlawfully obtained as provided in paragraph 18 of Article II of the Treaty.

The same charges are pending in the Supreme Court of Justice (formerly the Federal Court), the highest court of Venezuela, upon petition of the Attorney General of Venezuela with a substantial quantity of supporting evidence. The Supreme Court of Justice determined that f the charges are proved they would constitute violations of the penal code of Venezuela and that such charges are crimes specified in the Treaty of Extradition Article II, paragraphs 14, 18 and 20; found that good cause had been shown for prosecution and issued its warrant of arrest. The proceedings before the Supreme Court of Justice, with a substantial amount of evidence from its record-- all documentary-- were transmitted to the United States through appropriate diplomatic channels. Venezuela invokes these Treaty provisions in its complaint and requisition for surrender of appellant.

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Appellant contends that Judge McRae erred in not discharging appellant from custody on the grounds that: (1) Judge Whitehurst did not have jurisdiction to conduct the extradition proceeding, (2) appellant was not accorded due process of law in the proceeding before Judge Whitehurst, sitting as extradition magistrate, (3) the acts for which appellant's extradition is sought are acts in the exercise of sovereign authority or acts of state the legality of which the judicial authorities of the United States have no authority to determine, (4) failure of the extradition magistrate to determine whether the claim for extradition was for any crime or offense of a political character or for acts connected with such crimes or offenses, (5) the decision of Judge Whitehurst was not based on legal, competent and adequate evidence, (6) the alleged financial crimes were not within the Treaty of Extradition, and (7) the extradition magistrate was without jurisdiction by virtue of Article XII of the Treaty of Extradition, inasmuch as the Venezuelan government had failed to lay legal evidence of criminality before the extradition magistrate within the two months prescribed by the Treaty.


Appellant first urges that Judge Whitehurst did not have jurisdiction to conduct the extradition proceeding because the warrant of arrest was made returnable before Judge Mathes-- not Judge Whitehurst, contending that the statute (18 U.S.C. § 3184) and the Treaty (Article XII) authorize only that particular justice, judge or commissioner who issues the warrant of arrest or who is 'designated in the warrant of arrest' to hear and consider the evidence of criminality. Section 3184 authorizes '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' upon complaint made under oath, to 'issue his warrant for the apprehension of the person so charged,...

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