Greene v. United States

Decision Date03 June 1907
Docket Number1,601.
Citation154 F. 401
PartiesGREENE et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Fifth Circuit

Wm Garrard, P. W. Meldrim, W. W. Osborne, and A. A. Lawrence for plaintiffs in error.

Marion Erwin, U.S. Dist. Atty. (Henry M. Hoyt, Sol. Gen., on the brief).

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

A brief statement of the case must be made, to be supplemented later by a fuller statement of the issues and facts pertinent to each contention considered and decided.

In the court below four indictments were found against the plaintiffs in error, Benjamin D. Greene and John F. Gaynor who will hereafter be called the 'defendants.' One of the indictments, No. 477, was dismissed, and need not be mentioned again. In two of the remaining cases the defendants were jointly indicted with Oberlin M. Carter, a captain in the Corps of Engineers of the United States Army, who, before the finding of the indictment, had been in charge of the river and harbor improvements in the Savannah, Ga., district and, while so employed as an officer and agent of the United States, had large sums of money placed in his hands and under his control for disbursement. The several counts of the three indictments all relate to money of the government which passed into his hands and under his control as an officer and agent of the United States. Each of the counts contain charges of the successful conspiracies of the defendants to fraudulently obtain possession of these funds, the presentation of false and fraudulent claims for payment out of them, or for the embezzlement of $575,749.90 of such funds. On motion of the United States attorney, the indictments were consolidated. Rev. St. Sec. 1024 (U.S. Comp. St. 1901, p. 720), 146 F. 781. The defendants were tried on the three indictments so consolidated. Indictment No. 322, hereafter called the first indictment, contains, as numbered thereon, 10 counts. The last two counts were stricken out, and the defendants were put to trial on the remaining counts numbered from 1 to 8, inclusive, which charged violations of Rev. St. Secs. 5438 and 5440. Indictment No. 371, hereafter called the second indictment, was evidently framed to cover the same offenses charged in the first indictment. The charges in the second indictment are made more elaborately, and apparently with the purpose of meeting objections which had been made to the first indictment. It contains six counts, four for violations of Rev. St. Sec. 5440, and two for offenses under Rev. St. Sec. 5438. Indictment No. 476, the third indictment, contains four counts, each charging embezzlement. Rev. St. Secs. 5497, 5488. After the court had disposed of preliminary questions, the defendants pleaded 'not guilty' to these several charges. The jury found the defendants 'guilty as charged' in all of the 18 counts submitted to them. By the judgment entered on the verdict, each of the defendants was sentenced (a) on the counts of the first and second indictments, held to be under the provisions of section 5440, Rev. St., to two years' imprisonment in the United States penitentiary at Atlanta, Ga., and to pay a fine of $10,000; (b) on the counts of the second indictment, held to be under the provisions of section 5438, Rev. St., to four years' imprisonment in the United States penitentiary at Atlanta, Ga.; (c) on the third indictment, held to be under sections 5488 and 5497, Rev. St., to four years' imprisonment in the United States penitentiary at Atlanta, Ga., and to pay a fine of $575,749.90, that being the amount alleged to have been embezzled. The several terms of imprisonment run concurrently, and begin at the date when the prisoners should be received by the warden of the penitentiary.

The defendants were extradited from Canada under the treaty of 1889-90 between the United States and Great Britain. We copy here parts of the treaty to which reference is necessary:

'The provisions of the said 10th article (of the treaty of 1842) are hereby made applicable to the following additional crimes: * * *
'(3) Embezzlement; larceny; receiving any money, valuable security, or other property, knowing the same to have been embezzled, stolen, or fraudulently obtained.
'(4) Fraud by bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries. * * *
'Extradition is also to take place for participation in any of the crimes mentioned in this convention or in the aforesaid 10th article, provided such participation be punishable by the laws of both countries. * * *
'No person surrendered by or to either of the high contracting parties shall be triable or be tried for any crime or offense, committed prior to his extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered.' 26 Stat. 1508.

The defendants presented certain defenses to the first and second indictments, which related to their extradition. These defenses had no application to the third indictment. The defenses were presented by pleas, which, so far as is necessary to state, were, in substance, that they had lately been in the Dominion of Canada and had been surrendered to the United States to be tried for 'participation in fraud by an agent or trustee' and 'participation in embezzlement,' and that neither of these offenses is charged by the two indictments to which the pleas were addressed, and that the court had no right or authority to try them for any crime or offense for which they were not extradited. The government answered the pleas, admitting that the defendants were extradited for the offenses stated in the pleas, and averring that the indictments charged them with the offenses for which they had been extradited. The third indictment was not involved in these contentions, for it clearly charged embezzlement, and the extradition admittedly included that offense. By consent of counsel, the issues raised by these pleas to the first and second indictments were tried by the court. The United States offered in evidence the opinion of the Extradition Commissioner awarding their surrender; the judgment of the Privy Council; the judgment of the Court of King's Bench for Lower Canada on mandamus proceedings; habeas corpus proceedings instituted by Benjamin D. Greene and John F. Gaynor before Mr. Justice Ouimet, of the Court of King's Bench for Lower Canada, and Mr. Justice Ouimet's opinion and judgment sustaining the extradition; the requisition for surrender made by the American Secretary of State on the British Ambassador; the President's warrant to George F. White and Joseph F. Doyle to receive Benjamin D. Greene and John F. Gaynor from the Canadian authorities and deliver them to the proper authorities in the United States; George F. White's return on bench warrants; and the President's warrant showing the return of the defendants, Benjamin D. Greene and John F. Gaynor, before the District Court at Savannah on October 9, 1905. No other evidence was offered. The court overruled the pleas, and to this ruling the defendants excepted.

The first question raised by these pleas is: Do the first and second indictments charge an offense for which the defendants were extradited? This question must be answered by a comparison of the extradition proceedings and warrant with the indictments. The formal statement in the pleas admitted in the answers is that the defendants were surrendered to be tried for (1) 'participation in fraud by an agent or trustee'; (2) 'participation in embezzlement.' The question here relates to the first charge, the charge of embezzlement appearing only in the third indictment. The words used are taken from the treaty as general descriptions of certain crimes that are made extraditable. The particular crimes or criminal acts that the Canadian government had in view when it surrendered the defendants to be tried for 'participation in fraud by an agent or trustee' can be ascertained by considering the demand that had been made on that government and the evidence that was submitted to it by the United States to sustain such demand, and, especially, the judgment or order of the Extradition Commissioner upon which the warrant of extradition was based. The demand of the United States was made on the charge, among others, that the defendants had entered into corrupt agreements with Oberlin M. Carter to defraud the United States out of large sums of money held by Carter as the agent of the United States. The facts were placed fully before the Canadian authorities substantially as they were subsequently presented to the jury on the trial of the defendants. On such demand and upon such evidence the judgment or order of the Extradition Commissioner was rendered. A brief excerpt from the order or judgment will show what was meant in the extradition warrant by the words 'participation in fraud by an agent or trustee':

'I have determined that they should be surrendered * * * on the ground that they are accused of the following extradition crimes; that is to say, for that the said Benjamin D. Greene and John F. Gaynor: (1) Did, on or about July 1, 1897, within the Eastern Division of the Southern District of Georgia, in the United States of America, participate in fraud then and there committed by Oberlin M. Carter, a disbursing officer, agent, and trustee in the employment of the government of the United States, (a) by entering into a corrupt agreement (conspiracy) with the said Oberlin M. Carter, the said officer and agent of the United States, to defraud the United States in the discharge of the duties of his said office and employment, and for the payment by him, as

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