United States v. Marasco

Decision Date30 December 1963
Docket NumberNo. 80,Docket 28232.,80
Citation325 F.2d 562
PartiesUNITED STATES of America ex rel. Evsey S. PETRUSHANSKY, a/k/a Peter Green, a fugitive from Justice of the United Mexican States, Relator-Appellant, v. Anthony R. MARASCO, United States Marshal for the Southern District of New York, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Edwin Gold, Jamaica, N. Y. (Gold, Lazar & Cooper, Jamaica, N. Y., on the brief), for relator-appellant.

Victor Temkin, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, on the brief) (Andrew T. McEvoy, Jr., and Robert J. Geniesse, Asst. U. S. Attys., of counsel), for respondent-appellee.

Before MEDINA, HAYS and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

Evsey S. Petrushansky, relator-appellant herein, has been charged with the crime of murder by the United Mexican States, which demanded his extradition in accordance with the Treaty of 1899 between the United States and Mexico. 31 Stat. 1818. A complaint charging him with murder in Mexico was filed with Commissioner Gerrity of the Southern District of New York on October 5, 1962 and a warrant for his arrest issued thereon. Pursuant to 18 U.S.C. § 3184, he was brought before Commissioner Bishopp for a hearing on December 3, 1962. After hearings on five dates in December 1962 and January 1963, the Commissioner found that Petrushansky was the person sought by the Mexican government, that the crime charged was an offense under the laws of both sovereignties and was extraditable under the treaty and that the evidence presented at the hearing, consisting of documents furnished by Mexico, was sufficient to establish probable cause to believe that Petrushansky committed the offense in that country. He remanded the fugitive to the custody of the United States Marshal to await the order of the Secretary of State. Relator then obtained a writ of habeas corpus from Judge Bonsal, on which argument was held before Judge Noonan. This appeal is taken from Judge Noonan's order discharging the writ.

Appellant argues here the same points which he raised before Judge Noonan. He claims first that the warrant for his arrest was invalid, because the complaint on which it was based was made by an Assistant United States Attorney having no personal knowledge of the facts and because it failed to specify any of the details of the crime charged. Second, he asserts that the evidence before the Commissioner was inadequate to establish probable cause that any extraditable crime was committed or that he was in any way connected with the crime. Finally, he alleges that the Commissioner erred in excluding proffered testimony that the supposed victim was alive at a time when the fugitive had already left the jurisdiction of Mexico. We shall discuss these points seriatim.

The authority of an Assistant United States Attorney to institute proceedings pursuant to a request for extradition was confirmed, as Judge Noonan explained, in Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925), which is controlling here. The fact that the complainant lacked personal knowledge of the facts is thus irrelevant. Appellant's position regarding the sufficiency of the complaint itself seems stronger, since it is limited to a statement that he is accused of murder and does not specify either the victim, the time and place, or the details. However, under Article X of the Treaty, each government is obligated, upon being notified by the other that it has issued a warrant of arrest, to procure the provisional arrest of fugitives and to detain them until supporting papers are received. This language appears to contemplate the issuance of warrants based on no more information than was provided here. Cf. Ex parte Dinehart, 188 F. 858 (C.C.S.D.N.Y.1911), where the court held that a complaint which, like this one, merely charged the offense of murder without supporting details, was sufficient to give the Commissioner jurisdiction to issue a warrant and conduct an evidentiary hearing.

Furthermore, no prejudice to the appellant appears to have resulted from the failure to set forth the details of the crime more clearly, since his counsel was fully acquainted with the evidence at the time of the hearing and was prepared to establish an alibi. Thus the appellant's attacks on the Commissioner's jurisdiction are unfounded. Cf. Yordi v. Nolte, 215 U.S. 227 (1909); Ex parte Sternaman, 77 F. 595 (N.D.N.Y.1896), aff'd sub nom. Sternaman v. Peck, 226 C.C.A. 214, 80 F. 883 (1897).

Passing now to the sufficiency of the evidence adduced at the hearing to justify appellant's detention, it is necessary to deal with several points. First, appellant claims that the evidence was deficient for failure to include an authenticated copy of the Mexican law under which he is charged. This is required under Article VIII of the Treaty, but only with regard to those offenses in which it is specified in Article II that surrender shall depend on the fact of the crime being punishable under the laws of both parties. However, the proviso plainly applies only to the crimes of embezzlement from private persons, obtaining property by extortion or false pretenses, and attempts to commit the enumerated crimes, not to murder and the other crimes mentioned in Article II. Second, appellant relies on Article XIX of the Mexican Constitution, which states that no one may be detained for longer than three days unless a formal complaint showing the time, place and details is provided him. This provision of Mexican internal law is of course primarily for the courts of that country to interpret; our duty would seem limited to ensuring that the applicable provisions of the treaty and the governing American statutes are complied with. In any event, the record discloses a complete statement by the presiding judge who issued the order of arrest, of the circumstances of the crime and the presumptive responsibility of the four men, including appellant herein, charged with it (Gov't Ex. 2, 197-221). This would seem to satisfy the constitutional requirements of that country.

The next question is whether the documentary evidence, properly authenticated in accordance with 18 U.S.C. § 3190, was sufficient to justify the Commissioner's finding of probable cause. Appellant claims that it is insufficient to establish either the fact of a crime within the jurisdiction of Mexico, or his participation in any crime. His argument on the first point is rather frivolous. On November 18, 1961, two Mexican highway patrolmen noticed blood-stained men's clothing lying by the side of the Mexico-Acapulco highway, in a district called Segundo Cantil. On inspection, personal effects apparently belonging to one Louis M. Vidal, Jr., of New York City, were also found, together with a key to Room 908 of the Continental Hilton Hotel in Mexico City, in which Mr. Vidal had stayed on the night of November 11. On November 22, other police officers discovered a corpse buried by the side of the road, three kilometers from the location of the clothing. The corpse was riddled with four bullet wounds in the head and neck regions. It was later identified by Mrs. Teresa Vidal as the body of her husband, Louis M. Vidal, Jr. who had arrived in Mexico City from New York on November 11. If there are other explanations for the death...

To continue reading

Request your trial
37 cases
  • In re Robertson
    • United States
    • U.S. District Court — Eastern District of California
    • October 19, 2012
    ...of foreign criminal processes[.]" Borodin v. Ashcroft, 136 F. Supp.2d 125, 130 (E.D.N.Y. 2001) (citing United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 565 (2d Cir. 1963) ("This provision of Mexican internal law is of course primarily for the courts of that country to interpret;......
  • Parretti v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 29, 1997
    ...arrest" may issue without an independent judicial determination of probable cause, the government cites United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 564 (2d Cir.1963). We find Marasco to be unpersuasive authority for three reasons. First, Marasco did not address the constitu......
  • Freedman v. United States
    • United States
    • U.S. District Court — Northern District of Georgia
    • July 18, 1977
    ...which the fugitive may introduce is largely committed to the discretion of the magistrate. E. g., United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir. 1963) cert. denied, 376 U.S. 952, 84 S.Ct. 969, 11 L.Ed.2d 971; Shapiro v. Ferrandina, 355 F.Supp. at 572. Since the st......
  • Gill v. Imundi
    • United States
    • U.S. District Court — Southern District of New York
    • September 27, 1990
    ...which explains rather than contradicts the demanding country's proof," id., 478 F.2d at 905 (quoting United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir.1963), cert. denied, 376 U.S. 952, 84 S.Ct. 969, 11 L.Ed.2d 971 (1964)); see also Messina v. United States, 728 F.2d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT