SAWTELLE, Circuit Judge.
An indictment was found in the United States District Court for the Eastern District of Washington, Northern Division, against Robt. T. Cochran & Co., a Nevada corporation, and three of its officers, including the appellants.
The defendants were charged with violating the Produce Agency Act, § 1 (7 USCA § 491), the material provisions of which are as follows: "* * * any person, firm, association, or corporation receiving any fruits * * * in interstate commerce * * * for or on behalf of another, * * * who shall knowingly and with intent to defraud fail truly and correctly to account therefor shall be guilty of a misdemeanor and upon conviction shall be punished by a fine," etc.
In a removal proceeding before the United States commissioner for the Northern District of California, the appellants were ordered removed from that district to the aforesaid district in the state of Washington. The order of the United States commissioner was supplemented by an order of the court below. The appellants filed a petition for a writ of habeas corpus, which was denied, and the appellants were ordered removed to the district in the state of Washington, as aforesaid. From those orders the present appeal was taken.
In their brief, the appellants state that their assignments of error raise five principal questions, as follows:
"1. The indictment is fatally defective in not stating any offense.
"2. The indictment fails to set out any venue.
"3. Allegations of indictment are inconsistent with any idea that venue of offenses attempted to be charged could have been in the State and Federal District of Washington.
"4. No probable cause to hold appellants for removal. Bankruptcy proceedings are a complete defense to removal.
"5. Error to hold that involuntary bankruptcy, conceded to be a complete defense on the trial of the case, could only be presented on the trial and not in removal proceedings."
It will be observed that points 2 and 3 in reality deal with the same question, and will be so treated herein.
The indictment contains nine counts, relating to apples of various growers. The material allegations of count 1, which is typical of the other eight, are as follows:
"(1) * * * the defendants having been engaged in the business of receiving on consignment, handling and selling on a commission basis as agents of persons and concerns from whom so received, apples and other perishable farm products; that said business and products are and at all times herein mentioned have been part of a stream of interstate commerce in said products, wherein said products were and continuously during all times herein mentioned have been received from purchasers, growers, and other consignors thereof within the State of Washington, loaded into railroad cars and in said cars shipped at consignors' expense to points outside of the State of Washington, and there sold to sundry purchasers on behalf of the said consignors.
"(2) * * * the defendants did in the course of business and in interstate commerce as hereinbefore described, receive from B. F. Perry, at Omak, in the County of Okanogan, in the Northern Division of the Eastern District of Washington, and within the jurisdiction of this Court, to be packed, shipped and sold for and on behalf of the said B. F. Perry, in said business and commerce, a quantity of apples in bulk, which after being packed in defendants' packing house amounted to 5525 packed boxes of apples, a perishable farm product, hereinafter called produce, and loaded the same into various and sundry railroad cars * * *; that the apples so packed and loaded were shipped in railroad cars in interstate commerce as aforesaid to various markets beyond the boundaries of the State of Washington, and were then and there sold by defendants for and on behalf of said B. F. Perry to one or more purchasers unknown.
"(3) That the said defendants in violation of the Act of Congress of March 3, 1927 (44 Stat. 1355) did knowingly and with intent to defraud fail truly and correctly to account to the said B. F. Perry for the said produce, in this, that the said defendants disposed of and sold the produce aforesaid for prices which, after all legitimate expenses and proper charges had been deducted from the selling prices thereof, left net proceeds due and owing to the said B. F. Perry by the above named defendants amounting to the sum of $4032.64, more or less, which sum the said defendants failed to remit and continue so to fail to remit to the said B. F. Perry."
The appellants lay chief stress upon the asserted defects in the indictment. We will not inquire into these alleged deficiencies of the indictment, since, under an unbroken line of decisions by the Supreme Court of the United States, the validity of the indictment is immaterial in removal proceedings, under R. S. § 1014, as amended (18 USCA § 591).
Perhaps the leading case on the subject is Greene v. Henkel, 183 U. S. 249, 260, 261, 22 S. Ct. 218, 223, 46 L. Ed. 177, in which the court used the following language:
"It is not a condition precedent to taking action under § 1014 of the Revised Statutes that an indictment for the offense should have been found. Price v. McCarty, 32 C. C. A. 162, 89 F. 84, Circuit Court of Appeals, Second Circuit, June, 1898. * * *
"The finding of an indictment does not preclude the government under § 1014 from giving evidence of a certain and definite character concerning the commission of the offense by the defendants in regard to acts, times, and circumstances which are stated in the indictment itself with less minuteness and detail, and the mere fact that in the indictment there may be lacking some technical averment of time or place or circumstance in order to render the indictment free from even technical defects, will not prevent the removal under that section, if evidence be given upon the hearing which supplies such defects and shows probable cause to believe the defendants guilty of the commission of the offense defectively stated in the indictment. It follows, also, that a decision granting a removal under the section named, where an indictment has been found, is not to be regarded as adjudging the sufficiency of the indictment in law as against any objection thereto which may subsequently be made by the defendants. That is matter for the tribunal authorized to deal with the subject in the other district. We do not, however, hold that when an indictment charges no offense against the laws of the United States, and the evidence given fails to show any, or if it appear that the offense charged was not committed or triable in the district to which the removal is sought, that the court would be justified in ordering the removal, and thus subjecting the defendant to the necessity of making such a defense in the court where the indictment was found. In that case there would be no jurisdiction to commit nor any to order the removal of the prisoner.
"Upon this writ the point to be decided is, whether the judge who made the order for the removal of the defendants had jurisdiction to make it, and if he had, the question whether, upon the merits, he ought to have made it is not one which can be reviewed by means of the writ of habeas corpus.
"Jurisdiction upon that writ in such a proceeding as this does not extend to an examination of the evidence upon the merits. The matter for adjudication is similar to that which obtains in cases of international extradition. In such case, if there is competent legal evidence on which the commissioner might base his decision, it is enough, and the decision cannot be reviewed in this way. Bryant v. United States, 167 U. S. 104, 17 S. Ct. 744, 42 L. Ed. 94. There must be some competent evidence to show that an offense has been committed over which the court in the other district had jurisdiction, and that the defendant is the individual named in the charge, and that there is probable cause for believing him guilty of the offense charged." (Italics our own.)
The foregoing principles have been repeatedly reaffirmed by the Supreme Court, down to the present day. For example, in Morse v. United States, 267 U. S. 80, 83, 84, 45 S. Ct. 209, 210, 69 L. Ed. 522, Mr. Justice Sutherland said, with reference to the contention that the indictment was "fatally defective":
"The second contention proceeds upon a complete misconception of the purpose for which the indictment is produced and considered in removal proceedings, and the authoritative effect of the ruling of the commissioner and the court on habeas corpus in respect thereof. The inquiry in such proceedings is whether there is probable cause to believe the prisoner guilty and justify his removal for trial. That inquiry may be made and the prisoner removed to the trial district in advance of indictment or without the production of the indictment if one has been found. Greene v. Henkel, 183 U. S. 249, 260, 22 S. Ct. 218, 46 L. Ed. 177; Pierce v. Creecy, 210 U. S. 387, 403, 28 S. Ct. 714, 52 L. Ed. 1113; United States v. Greene (D. C.) 100 F. 941, 943. The indictment was before the commissioner simply as evidence for the purpose of establishing or tending to establish the commission of an offense; and the commissioner had authority to pass upon its effect in that aspect only. The court reviewing the action of the commissioner under section 1014 upon habeas corpus was governed by the same rules and its decision was subject to the same limitation. Henry v. Henkel, 235 U. S. 219, 230, 35 S. Ct. 54, 59 L. Ed. 203; Benson v. Palmer, 31 App. D. C. 561, 564, 565, 17 L. R....
