Cleugh v. Strakosch, 9166.

• Decision Date: 09 April 1940
• Docket Number: No. 9166.,9166.
• Citation: 109 F.2d 330
• Parties: CLEUGH v. STRAKOSCH.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F.2d 330 (1940)

CLEUGH v. STRAKOSCH.

No. 9166.

Circuit Court of Appeals, Ninth Circuit.

February 1, 1940.

Rehearing Denied April 9, 1940.

S. T. Hankey and F. J. Finucane, both of Los Angeles, Cal. (S. T. Hankey and G. Harold Janeway, both of Los Angeles, Cal., of counsel), for appellant.

Isidore B. Dockweiler, Frank P. Jenal, and Frederick C. Dockweiler, all of Los Angeles, Cal., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

MATHEWS, Circuit Judge.

Extradition of appellee, Alexander Strakosch (alias Graham), was sought by Great Britain under the Dawes-Simon Extradition Treaty,¹ 47 Stat. 2122. To that end, a complaint and two amended complaints were filed² with a United States commissioner for the Southern District of California, charging appellee with having committed within the jurisdiction of Great Britain — in London, England — the crime of fraudulent conversion and the crime of obtaining money or valuable securities by false pretenses. The commissioner issued his warrant for the apprehension of appellee, appellee was apprehended and brought before the commissioner, the commissioner heard evidence of appellee's criminality and thereupon committed him to jail,³ to be surrendered, upon requisition, to the British authorities. Appellee, alleging that his detention was unlawful, petitioned the District Court for a writ of habeas corpus. The court issued the writ and, after a hearing, ordered appellee discharged. From that order, this appeal is prosecuted.

The original complaint was filed by an assistant United States Attorney for the Southern District of California. The amended complaints were filed by the then British consul, Francis E. Evans. The original complaint and both amended complaints were for and on behalf of the British government. The habeas corpus proceeding was brought against the United States marshal for the Southern District of California, but was defended by Consul Evans, by whom also this appeal was taken. The present consul, Eric Arthur Cleugh, was substituted as appellant on October 17, 1939. The British government being the real party in interest, its consul, acting for it, was a proper party to prosecute the extradition proceeding and to defend the habeas corpus proceeding, and is a proper party to prosecute this appeal. Ornelas v. Ruiz, 161 U.S. 502, 507, 16 S.Ct. 689, 40 L.Ed. 787.

Article 1 of the Dawes-Simon Extradition Treaty provides: "The High Contracting Parties the United States and Great Britain engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused * * * of any of the crimes or offenses enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party." Article 3 enumerates, among others, the crime of fraudulent conversion and the crime of obtaining money or valuable securities by false pretenses. The second amended complaint charged appellee with having committed the crime of fraudulent conversion three times and the crime of obtaining money or valuable securities by false pretenses sixteen times. Thus appellee was charged with having committed, in all, nineteen crimes.

Article 8 of the treaty provides: "The extradition of fugitive criminals under the provisions of this Treaty shall be carried out in the United States and in the territory of His Britannic Majesty respectively, in conformity with the laws regulating extradition for the time being in force in the territory from which the surrender of the fugitive criminal is claimed." In the United States, extradition was at all pertinent times, and is now, regulated by § 5270 of the Revised Statutes, 18 U.S.C.A. § 651, which provides:

"Whenever there is a treaty * * * for extradition between the Government of the United States and any foreign government,⁴ any * * * commissioner, authorized so to do by any of the courts of the United States⁵ * * * may, upon complaint made under oath,⁶ charging any person found within the limits of any State⁷ * * * with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty⁸ * * * issue his warrant for the apprehension of the person so charged, that he may be brought before such * * * commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty * * * he shall certify the same * * * to the Secretary of State, that a warrant may issue * * * for the surrender of such person, according to the stipulations of the treaty * * * and he the commissioner shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made." (Italics ours.)

The extradition proceeding here in question was instituted and prosecuted under and in conformity with § 5270, supra. It is clear that the commissioner had jurisdiction, and that the crimes charged were extraditable crimes. Hence, the sole question before the commissioner was whether the evidence was "sufficient to sustain the charge under the provisions of the proper treaty" — in this case, the Dawes-Simon Extradition Treaty.

Article 9 of the treaty provides: "The extradition shall take place only if the evidence be found sufficient according to the laws of the High Contracting Party applied to * * * to justify the committal of the prisoner for trial, in case the crime or offence had been committed in the territory of such High Contracting Party * *." As regards sufficiency of the evidence, "the laws of the High Contracting Party applied to" are, in this case, the laws of California. Charlton v. Kelly, 229 U.S. 447, 456, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A.,N.S., 397; Collins v. Loisel, 259 U.S. 309, 314-317, 42 S.Ct. 469, 66 L.Ed. 956; Curreri v. Vice, 9 Cir., 77 F.2d 130.

Section 871 of the Penal Code of California provides that a defendant brought before a magistrate for examination must be discharged if, "after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense." Section 872 of said Code provides that the defendant must be held to answer if "it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof." It is conceded that, in this case, it appeared that public offenses had been committed. The question was whether there was "sufficient cause" to believe appellee guilty thereof.

The phrase "sufficient cause," in §§ 871 and 872 of the Penal Code, means reasonable or probable cause. This appears from § 1487 of the same Code, which provides that where "a party has been committed on a criminal charge without reasonable or probable cause," he shall be released on habeas corpus. Thus, in California, to justify committal of an accused person for trial, the evidence need not be such as would support a conviction. Evidence showing reasonable or probable cause to believe the accused guilty is sufficient. Curreri v. Vice, supra; In re Mesquita, 139 Cal.App. 91, 33 P.2d 459; In re McCarty, 140 Cal.App. 473, 35 P.2d 568.

The commissioner found that there was sufficient cause — in other words, reasonable or probable cause — to believe appellee guilty of the crimes charged. Except to the limited extent presently to be indicated, the commissioner's finding was not reviewable on habeas corpus. For, as said by Justice Holmes in Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970: "That writ * * * cannot take the place of a writ of error. It is not a means for rehearing what the magistrate already has decided. The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, where the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." See, also, Benson v. McMahon, 127 U.S. 457, 461-463, 8 S.Ct. 1240, 32 L.Ed. 234; In re Oteiza y Cortes, 136 U.S. 330, 334, 10 S.Ct. 1031, 34 L.Ed. 464; Ornelas v. Ruiz, supra, 161 U.S. at pages 508, 509, 16 S.Ct. at page 689, 40 L.Ed. 787; Bryant v. United States, 167 U.S. 104, 105, 17 S.Ct. 744, 42 L.Ed. 94; Terlinden v. Ames, 184 U.S. 270, 278, 22 S.Ct. 484, 46 L.Ed. 534; Grin v. Shine, 187 U.S. 181, 192, 23 S.Ct. 98, 47 L.Ed. 130; Elias v. Ramirez, 215 U.S. 398, 406, 407, 30 S.Ct. 131, 54 L.Ed. 253; Charlton v. Kelly, supra; Bingham v. Bradley, 241 U.S. 511, 516, 517, 36 S.Ct. 634, 60 L.Ed. 1136.

In this case, appellee never claimed or contended that the commissioner lacked jurisdiction, or that the crimes charged were not within the treaty. Hence, the sole question was, and is, whether there was any evidence warranting the finding that there was reasonable or probable cause to believe appellee guilty — not whether such evidence was sufficient, but whether there was any such evidence. The sufficiency or insufficiency of such evidence was for the commissioner, not the court, to determine. See authorities last hereinabove cited.

Evidence before the commissioner included, inter alia, certified copies of thirty depositions taken by a British magistrate, Sir Harry Twyford, in London, England.⁹ The copies were authenticated in accordance with § 5271 of the Revised Statutes, 18 U.S.C.A. § 655,¹⁰ and were received in evidence without objection. From the depositions, these facts appear:

The crimes for which appellee's extradition is sought were committed in London between February 5, 1935, and February 2, 1937. They were committed by Stanley Grove Spiro and persons associated with him. Spiro and his associates had offices in London, where, masquerading...