Bruzaud v. Matthews, 11801.

• Decision Date: 16 July 1953
• Docket Number: No. 11801.,11801.
• Citation: 207 F.2d 25,93 US App. DC 47
• Parties: BRUZAUD v. MATTHEWS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 47, 207 F.2d 25 (1953)

BRUZAUD v. MATTHEWS.

No. 11801.

United States Court of Appeals District of Columbia Circuit.

Argued June 26, 1953.

Decided July 16, 1953.

Mr. Edward J. Skeens, Washington, D. C., with whom Mr. Louis S. Papa, Washington, D. C., was on the brief, for appellant.

Mr. Lewis A. Carroll, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and William J. Peck, Edward O. Fennell and William B. Bryant, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Mr. William R. Glendon, Asst. U. S. Atty., Washington, D. C., at the time record was filed, also entered an appearance for appellee.

Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

A requisition issued October 16, 1952, by the Governor of Pennsylvania, demanding the extradition of Lex Bruzaud to answer a charge of fraudulent conversion, was honored by the Chief Judge of the United States District Court for the District of Columbia.¹ To test the validity of the extradition order, Bruzaud sued out a writ of habeas corpus which, after a hearing, was discharged by the District Court. This appeal followed.

Under 18 U.S.C. § 3182, a statute which implements the Constitutional provision concerning interstate extradition, Article IV, § 2, the governor of the asylum state has for decision the legal question whether the demanded person has been substantially charged with a crime and the factual question whether he is a fugitive from justice. Munsey v. Clough, 1905, 196 U.S. 364, 372, 25 S.Ct. 282, 49 L.Ed. 515; Fowler v. Ross, 1952, 90 U.S.App.D.C. 305, 310, 196 F.2d 25, 30; Johnson v. Matthews, 1950, 86 U.S.App.D.C. 376, 378, 182 F.2d 677, 679. If he resolves those questions against the prisoner, the chief executive is required by the statute to order extradition. On habeas corpus review of his order in a court of the asylum state, the inquiry is limited to the same two questions.

Appellant insists there is no valid charge pending against him in the demanding state. We observe, however, attached to the requisition and certified by the Governor as authentic, a copy of an indictment found September 2, 1952, by a grand jury in Allegheny County, Pennsylvania, charging Lex Bruzaud with committing the crime of fraudulent conversion in that county July 8, 1952; and we note that at the habeas corpus hearing, the complaining witness identified appellant as the person so accused and was not contradicted. Thus the indictment, which is not criticized as to form, substantially charges the appellant with committing crime in the demanding state.

It appears, however, that some time before the indictment was returned, the complaining witness went before a magistrate in Allegheny County and, for the purpose of obtaining a warrant for appellant's arrest, made an affidavit accusing him of fraudulent conversion committed July 8, 1952. A warrant issued by the magistrate was returned "Not found" and so no examining trial was ever held.

In addition to supporting his requisition with a copy of the indictment, the Governor attached also copies of the affidavit, the warrant of arrest, and a docket entry showing the return on the warrant. According to the copies, the jurat to the affidavit and the warrant were dated June 25, 1952, and the docket entry referred to the warrant as having been dated that day, which was nearly two weeks before July 8, the date the affiant alleged the crime was committed. Seizing upon this discrepancy in dates, and asserting crime cannot be charged in futuro, appellant contends the affidavit vitiates the warrant and the indictment. Thus, he reasons, there was and is no valid charge pending against him in Pennsylvania.

The alleged vitiation of the warrant of arrest is immaterial since the federal statute does not permit a requisition to be based upon a warrant. The act requires the demanding governor to produce a copy of an indictment or a copy of an accusatory affidavit, but it does not require both. Were requisition permitted only after indictment, the sometimes considerable delay in awaiting grand jury action might enable a fugitive to escape extradition. To obviate this delay was the obvious legislative purpose in permitting an affidavit to be used as support for a requisition. But, once an indictment has been returned, there is no necessity for basing a requisition upon a mere affidavit, and indeed we doubt the propriety of doing so.² Since in this case an indictment had been returned and a copy of it was attached, no purpose was served by attaching also a copy of the earlier affidavit made by the complaining witness, and it should be regarded as mere surplusage, as far as the requisition is concerned.

But the fact remains that the dates shown in the affidavit and jurat are inconsistent. What...