Garcia-Guillern v. United States
| Decision Date | 29 November 1971 |
| Docket Number | No. 71-1538.,71-1538. |
| Parties | Jose Miguel GARCIA-GUILLERN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Louis Stoskopf, Martin S. Saxon, Miami, Fla., for plaintiff-appellant.
Robert W. Rust, U. S. Atty., Neal R. Sonnett, Asst. U. S. Atty., Miami, Fla., Murray R. Stein, Atty., Crim. Div., John L. Murphy, Chief, Administrative Regulations Section, Will Wilson, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for respondent-appellee.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
Jose Miguel Garcia-Guillern appeals from an order of the District Court dismissing his petition for the writ of habeas corpus. The judgment of the District Court is affirmed.
The present habeas corpus proceedings are the second stage of legal efforts of the appellant to avoid extradition to Peru. The first stage may be described as follows. On October 6, 1970, in the appropriate District Court of the United States, Peru filed its complaint in extradition, seeking the return of Garcia-Guillern, a former Director General of the Ministry of Education in that Country, he being at the time a resident of Miami Beach, Florida, and there being a treaty on the subject between the United States and Peru proclaimed January 29, 1901 (31 Stat. 1921). The complaint averred that the appellant had been duly charged in Peru with the crime of embezzlement.
After a full hearing, 18 U.S.C., § 3184, the District Court issued an order and warrant for commitment, directing that the appellant be committed to the custody of the Attorney General of the United States to await the issuance of a warrant by the Secretary of State, authorizing his surrender to the Republic of Peru. In this order and warrant for commitment, the lower court found that there is a treaty in existence between the United States and the Republic of Peru providing that extradition shall be granted for embezzlement by public officers, that appellant is presently charged in Peru with that crime, and that the evidence presented at the hearing indicates that there is probable cause to conclude that the appellant committed that crime.
Before any action on these findings could be taken by the Secretary of State, the appellant renewed the litigation by filing his petition for the writ of habeas corpus in the District Court for the Southern District of Florida.
The District Court responded to this second stage of Garcia-Guillern's efforts to avoid extradition by finding that the committing court had jurisdiction, that there is competent evidence warranting the finding of probable cause, and that the appellant is presently charged in Peru with the crime of embezzlement by a public officer.
After notice of appeal was filed, the Secretary of State found that the appellant was extraditable and issued a surrender warrant. Appellant, however, filed a motion for and obtained a stay pending appeal to this Court (one judge dissenting).
It is now argued that the District Court erred in not discharging appellant from custody because: (1) by virtue of Article VII of the Treaty of Extradition between Peru and the United States of America the committing court was without jurisdiction, as the crime of embezzlement as charged had prescribed, (2) the proceedings should have been remanded to the committing court for consideration and determination of whether the claim of extradition was for any crime or offense of political nature or related thereto pursuant to Article VI of the treaty, (3) the decision of the committing court was not based on legal, competent and adequate evidence upon which the elements of the crime of embezzlement must have been legally established, (4) appellant would be charged and tried in Peru for other crimes wholly distinct and unrelated to the crime of embezzlement as set forth and charged in the original extradition complaint, and (5) the evidence did not warrant the conclusion that the appellant was ever properly or legally charged with the alleged crime in accordance with the extradition treaty. He asks us to annul the surrender warrant issued by the State Department and to discharge him from the extradition proceeding.
Habeas corpus review of the findings of a court which conducted an extradition hearing is extremely limited. Under existing law, such review includes only (1) whether the magistrate had jurisdiction, (2) whether the evidence showed a reasonable ground to believe the accused guilty, and (3) whether the offense charged was within the treaty. See, Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925); Jimenez v. Aristeguieta, 5 Cir., 1962, 311 F.2d 547; Wacker v. Bisson, 5 Cir., 1965, 348 F.2d 602.
Appellant does not contend that the District Court which ordered his commitment was not authorized to conduct an extradition hearing. Nor does he contend that the said court lacked jurisdiction over his person. Hence, there is no question as to the jurisdiction of the committing court. Gallina v. Fraser, 177 F.Supp. 856 (D.Conn.1959), affirmed 2 Cir., 1960, 278 F.2d 277, cert. denied 364 U.S. 851, 81 S.Ct. 97, 5 L. Ed.2d 74 (1960).
The existence of probable cause or, in other words, the existence of a reasonable ground to believe the accused guilty of the crime charged is essential to the issuance of a commitment. Appellant contends that the evidence submitted to the committing court was not sufficient to establish such probable cause and as a result the offense with which he is charged cannot be certified as "extraditable". In Re Gonzalez, 217 F.Supp. 717 (S.D.N.Y., 1963). We see, however, that the competent evidence of a criminal violation is sufficient to have justified appellant's apprehension and commitment for trial. The function on habeas corpus is to determine whether there is any competent evidence...
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