450 F.2d 1189 (5th Cir. 1971), 71-1538, Garcia-Guillern v. United States

Docket Nº:71-1538.
Citation:450 F.2d 1189
Party Name:Jose Miguel GARCIA-GUILLERN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:November 04, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1189

450 F.2d 1189 (5th Cir. 1971)

Jose Miguel GARCIA-GUILLERN, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 71-1538.

United States Court of Appeals, Fifth Circuit.

November 4, 1971

Rehearing Denied Nov. 29, 1971.

Page 1190

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.

COLEMAN, Circuit Judge:

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

Page 1191

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...

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