United States v. Mulligan
| Decision Date | 01 April 1935 |
| Docket Number | No. 359.,359. |
| Citation | 76 F.2d 511 |
| Parties | UNITED STATES ex rel. DONNELLY v. MULLIGAN, Marshal, et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel Hershenstein, of New York City (T. Bernard Eisenstein, of New York City, of counsel), for relator-appellant.
Murray, Hollaman & Lockwood, of New York City (R. D. Murray, of New York City, of counsel), for appellees.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
In May, 1934, the relator was extradited from France, after the expiration of a sentence he had served there for the crime of larceny, to be tried in New York county, state of New York. He was not brought to trial on that indictment, and his re-extradition to Canada was applied for and granted. On an appeal taken from an order dismissing a previous writ of habeas corpus, we reversed the decision of the District Court. U. S. ex rel. Donnelly v. Mulligan, 74 F.(2d) 220, 223. We held that the French Treaty granted to a fugitive, extradited thereunder, 30 days' immunity from arrest for any crime committed prior to the crime for which he had been extradited; that the grant of immunity was broad enough to include apprehension for re-extradition to a third country. At that time there was presented to us a communication from the French Foreign Office to the Canadian Legation at Paris, which stated that in the event that the Canadian government at some future date requested the extradition of the appellant from the United States, the French Republic "would be glad to support such a request." We held that, while a sovereign nation is under no duty to deliver up one seeking asylum within its borders except as provided by treaty, such sovereign is under no duty to afford asylum to a fugitive and may expel him without giving the fugitive any reason to complain. We said that the demanding state could not exercise any rights with respect to the fugitive other than those conceded by the surrendering state, for to do so would be bad faith on the part of the demanding state, and appellant could be deprived of his asylum in France only by the action of France which, under the rule of international law, had a right to give him asylum or to take it from him. We therefore held that the communication from the French Foreign Office to the Canadian Legation was not a document upon which this government would be justified in granting the relief sought in his re-extradition to Canada. We there said that the willingness to consent that this appellant be taken to Canada is not a consent to re-extradition to a third country within the terms of the treaty between France and this country, and that, in the absence of such consent, the right to deny asylum to the criminal was that of France; there being an unrestricted right of refusal to consent to extradition from France to Canada on the part of the former. We said: "It should be borne in mind that, while the formalities attending an extradition are purely administrative functions which the accused and the state of asylum can properly waive, the diplomatic guaranties — in the instant case, the 30-day period of immunity — which are accorded for the benefit of the accused, cannot be violated by the demanding state, without the consent of the surrendering state."
Thereafter, the Department of State, through the American Embassy at Paris, petitioned the French Foreign Office, requesting France to authorize the United States to re-extradite the appellant to Canada, there to be tried on a charge set forth in a warrant issued against him at Montreal, Canada, June 30, 1933. There was issued a decree of the Republic of France, as follows: "The Government of the United States of America is authorized to re-extradite the said Eaton (Franck-Ernest), alias Donnelly (Stewart), to the Canadian authorities, in order that he may be tried on the charge of swindle quoted above."
The Commissioner in the Southern District of New York, on a complaint sworn to by His Britannic Majesty's Consul at the Port of New York, issued a warrant for appellant's arrest; appellant being arrested immediately upon his discharge under the original warrant. The appellant sued out writs of habeas corpus and of certiorari, which the District Court dismissed, and the relator appeals.
The Extradition Treaty between the United States and France (article 7, 37 Stat. 1531) grants to an extradited fugitive liberty for 30 days before he can be tried, punished, or arrested for any other crime or offense committed prior...
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