Sayne v. Shipley

• Decision Date: 10 November 1969
• Docket Number: No. 26772.,26772.
• Citation: 418 F.2d 679
• Parties: Billy G. SAYNE, Petitioner-Appellant, v. Eugene S. SHIPLEY, Chief, Police Division, Canal Zone Government, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

418 F.2d 679 (1969)

Billy G. SAYNE, Petitioner-Appellant, v. Eugene S. SHIPLEY, Chief, Police Division, Canal Zone Government, et al., Respondents-Appellees.

No. 26772.

United States Court of Appeals Fifth Circuit.

November 10, 1969.

COPYRIGHT MATERIAL OMITTED

E. J. Berger, Cristobal, Canal Zone, Albert J. Joyce, Jr., Balboa, Canal Zone John Goodwin, Shreveport, La., for petitioner-appellant.

Murray R. Stein, Atty. Dept. of Justice, Washington, D. C., Rowland K. Hazard, U. S. Atty., District of the Canal Zone, Balboa, Canal Zone for respondents-appellees.

Paul A. Nejelski, Atty., Dept. of Justice, Washington, D. C., of counsel.

Before WISDOM and DYER, Circuit Judges, and KRENTZMAN, District Judge.

KRENTZMAN, District Judge:

This is an appeal from an order of the United States District Court for the District of the Canal Zone entered, after hearing, on July 25, 1968. The order dismissed a petition for writ of habeas corpus filed by appellant, Billy G. Sayne, a lance corporal in the United States Marine Corps, stationed in the Marine barracks at Rodman, Canal Zone. Jurisdiction of the court is founded on 28 U.S. C.A. § 2253.

The facts underlying the case are these:

On February 12, 1968, Fernando Eleta A., Minister of Foreign Relations, Republic of Panama, sent a letter to Major General Walter P. Leber, Governor of the Canal Zone, requesting that the Governor extradite Billy G. Sayne. Sayne had been accused by the Eighth Circuit Judge of the Panama Circuit of robbing, at gun-point, a drug store in Panama City, Republic of Panama, on August 1, 1967, and fleeing immediately into the Canal Zone. An order for his arrest had been issued by the Panama Court. Accompanying the Minister's letter was a copy of the "Auto de enjuiciamiento" which is analogous to an indictment. In the "Auto de enjuiciamiento" the Eighth Circuit Judge stayed criminal proceedings against three other United States Marines who had accompanied Sayne into Panama City, Panama, but did not appear to have taken part in the robbery.

The request for extradition was made pursuant to (1) Article XVI of a 1903 Treaty between the United States and the Republic of Panama, 33 Stat. 2238, and (2) an Executive Order of the Governer of the Canal Zone dated September 19, 1906.

Pursuant to provisions of the Canal Zone Code, the Governor of the Canal Zone determined that Sayne was extraditable under the Treaty and the Code. He caused a warrant to be issued for the arrest of Sayne on July 2, 1968. Sayne was taken into custody by the Canal Zone police pursuant to that warrant on the same date for delivery to the duly authorized agents of the Republic of Panama.

Also on July 2, 1968, Sayne sought a Petition for Writ of Habeas Corpus against Eugene S. Shipley, Chief of Police for the Canal Zone. The writ was issued on the same day and a hearing thereon held on July 25, 1968.

During the hearing, Sayne's counsel admitted that Sayne was the individual sought by the Republic of Panama. Sayne's counsel further admitted that a crime was charged in the Republic of Panama.

After a full hearing, the court entered an oral opinion in which it found that a crime had been charged in the Republic of Panama; that Sayne is the person charged with that crime; that Sayne was in the Republic of Panama when the crime was committed; and that the extradition of United States citizens from the Canal Zone to the Republic of Panama is pursuant to the 1903 Treaty and the Canal Zone Code. The order was entered on July 29, 1968, dismissing the petition, quashing the Writ of Habeas Corpus and remanding Sayne to the custody of his commanding officer, pending an appeal.

On August 27, 1968, Sayne filed a notice of appeal to this Court from the District Court's order.

Appellant's first point on appeal is that the District Court erred in ruling that the extradition of United States citizens from the Canal Zone to Panama is governed by Sections 5081 through 5092 of Title 6 of the Canal Zone Code.

These sections¹ had their origin in a treaty between the United States and Panama² signed November 18, 1903, effective February 26, 1904, hereinafter referred to as the 1903 Treaty. Article XVI of this treaty provides:

"The two Governments shall make adequate provision by future agreement for the pursuit, capture, imprisonment, detention and delivery within said zone and auxiliary lands to the authorities of the Republic of Panama of persons charged with the commitment of crimes, felonies or misdemeanors without said zone and for the pursuit, capture, imprisonment, detention and delivery without said zone to the authorities of the United States of persons charged with the commitment of crimes, felonies and misdemeanors within said zone and auxiliary lands." 33 Stat. 2238-2239.

Pursuant to Article XVI, the Governor of the Canal Zone issued an executive order on September 19, 1906 providing for the return of fugitives to Panama.³ The Executive Order of 1906 was eventually incorporated into the original Canal Zone Code established by Act of Congress in 1932.⁴ These provisions became Section 881 through 892 of Title 6 of the 1934 Canal Zone Code,⁵ and in 1962 became Sections 5081 through 5092 of Title 6 of the present Canal Zone Code.

Appellant asserts on appeal that extradition from the Canal Zone is subject to the terms of a treaty between the United States and Panama⁶ signed May 25, 1904, effective May 12, 1905 — hereinafter called the 1904 Treaty — and that this treaty supersedes Article XVI of the 1903 Treaty.⁷

Article V of the 1904 Treaty provides:

"Neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this Treaty."

34 Stat. 2851, 2855.

Appellant points out that an almost identical provision⁸ in a 1909 Treaty with France provides:

"Neither of the contracting Parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention."

and was construed by the U. S. Supreme Court to bar extradition of United States citizens to France.⁹ Citing the similar language in Article V of the 1909 Treaty with France and Article V of the 1904 Treaty, appellant argues that the latter forbids extradition of United States citizens to Panama.

We do not reach the question whether the 1904 Treaty forbids such extradition, since we find it inapplicable. We reject appellant's argument that the 1904 Treaty instead of the 1903 Treaty, and the proclamation and statutes based thereon, controls the extradition of United States citizens from the Canal Zone to Panama, and hold that Article XVI of the 1903 Treaty has not been superseded, for the following reasons:

First: Article XVI is concerned only with special cases of extradition between the two countries, viz. extradition from the Canal Zone to Panama and vice versa.¹⁰ The 1904 Treaty, on the other hand, has to do with extradition in general between the two countries, and makes no mention of the Canal Zone.¹¹ In addition, unlike most extradition arrangements, which are limited to certain listed offenses, the provisions applicable to the Canal Zone extend to all crimes against the laws of Panama.¹² The reason is simple. The Canal Zone cuts a swath ten miles wide through the middle of Panama. Residents of the Canal Zone and Panama move freely across unguarded borders. In negotiating for the Panama Canal, the two concerned nations recognized that they were creating a unique area. Relations between the Zone and the Republic of Panama would be different from the usual relationships between two foreign countries because of the geographical location of the Zone. There was, therefore, a necessity for special treatment of extradition from the Canal Zone, as distinguished from the United States proper; as a consequence, the 1903 Treaty envisions the former situation, the 1904 Treaty the latter.

Second: Section 4981 of Title 6 of the Canal Zone Code is as follows:

"All laws and treaties relating to the extradition of persons accused of crime in force in the United States, to the extent that they are not in conflict with or superseded by any special treaty entered into between the United States and the Republic of Panama with respect to the Canal Zone, and all laws relating to the rendition of fugitives from justice as between the several States and Territories of the United States, shall extend to and be considered in force in the Canal Zone, and for such purposes the Canal Zone shall be considered and treated as an organized Territory of the United States."

76A Stat. 547. (Italics added.)

The italicized phrase, by clear implication, refers to Article XVI of the 1903 Treaty, thus demonstrating the Treaty is still in force and that it is a special arrangement between the two countries regarding extradition from the Canal Zone to Panama. Any other interpretation renders the phrase superfluous or incomprehensible.

Third: The Assistant Legal Advisor for Treaty Affairs of the State Department has advised the District Court that Article XVI of the 1903 Treaty is still in effect.¹³ Because we recognize that the conduct of foreign affairs is a political, not a judicial function, such advice, while not conclusive on this Court, is entitled to great weight and importance. Terlinden v. Ames, 184 U.S. 270, 22 S.Ct. 484, 46 L.Ed. 534 (1902). It is the general rule that the courts will accord great, but not binding, weight to a determination by the Executive Department that a treaty is terminated, at least when private rights are involved. Ivancevic v. Artukovic, 211 F.2d 565, 574 (9 Cir. 1954), cert. den. Artukovic v. Ivancevic, 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 645, reh. den. 348 U.S. 889, 75 S.Ct. 202, 99 L.Ed. 698. We find the Executive's letter in this matter highly persuasive and, in conjunction with our other reasons, sufficient to hold that Article XVI of the 1903 Treaty is now in effect and controlling.

Appellant's second point on appeal is that he was deprived of...