In re Wise, Cr. No. 17445.

• Decision Date: 31 October 1957
• Docket Number: Cr. No. 17445.
• Citation: 168 F. Supp. 366
• Parties: In the Matter of the Extradition of Abe WISE.
• Court: U.S. District Court — Southern District of Texas

168 F. Supp. 366

In the Matter of the Extradition of Abe WISE.

Cr. No. 17445.

United States District Court S. D. Texas, Laredo Division.

October 31, 1957.

Malcolm R. Wilkey, U. S. Atty., Newton B. Schwartz, Thomas E. Stinson, Asst. U. S. Attys., Houston, Tex., for Republic of Mexico.

Hall & Hall, Laredo, Tex., for defendant, Abe Wise.

ALLRED, District Judge.

The United States Attorney, for and in behalf of the government of Mexico, filed complaint for extradition against Abe Wise, a resident of this district and division, stating that he is informed, through diplomatic channels, that Wise is duly and legally charged with having committed the crime of fraud¹ within the state of Michoacan, Republic of Mexico; that Wise fled Mexico and is to be found in this district; that the said crime of fraud which Wise is charged to have committed in Mexico is among the offenses enumerated in the treaty between the two countries proclaimed April 24, 1899 (31 Stat. 1818); that the said crime of fraud is more particularly referred to in Article 2, subd. 19, of the said Treaty, reading as follows:

"Obtaining by threats of injury, or by false devices, money, valuables or other personal property, and the purchase of the same with the knowledge that they have been so obtained, when such crimes or offenses are punishable by imprisonment or other corporal punishment by the laws of both countries."

The complaint further alleges that through diplomatic channels the United States Attorney is informed and believes that requisition for the fugitive Wise had been made under the Treaty provisions by the government of Mexico, through its Ambassador, accompanied with the formal papers upon which the demand for extradition is found. A copy of these formal documents, properly attested, accompanies the complaint.

The United States Attorney prays for issuance of a warrant for arrest as authorized under Section 3184, Title 18 U.S.C.A., in order that Wise may be brought before a magistrate or judicial officer "to the end that evidence of criminality may be heard, and, if on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of said Treaty, said magistrate or judicial officer shall certify same to the Secretary of State * * * in order that warrant may issue * * * for the surrender of the said Abe Wise according to the stipulations of the said Treaty * * *".

Before a warrant issued Wise made an appearance before the court and moved to dismiss the complaint because it is insufficient to put Wise on notice as to what he is charged with in Mexico, or to show the commission of an extraditable crime under the Treaty. Defendant further says even if the complaint were sufficient, the evidence appearing in the exhibits and documents verified by the Mexican government, shows that the offense with which he is charged is not one for which extradition is authorized under the Treaty. Both of these contentions must be sustained.

The Treaty of 1899 authorizes extradition for some twenty offenses.² By a supplemental Convention, proclaimed April 3, 1903, provision was made for extradition for the additional crime of bribery; and, by another Convention, proclaimed July 1, 1926, provision was made for extradition for narcotic offenses, crimes relating to the manufacture of, or traffic in, substances injurious to health. Smuggling also was added.

Both parties here agree that the only provision of the Treaty that could possibly be applicable to the alleged offense committed by Wise is subd. 19, of Article II, quoted above,—obtaining money, valuables or other personal property, by threats of injury or by false devices; or the purchase of same, with knowledge that they had been so obtained. Significantly the offenses made extraditable by subd. 19 are the only ones with the proviso that they must be punishable by imprisonment by the laws of both countries.

Under Section 3184 of Title 18, a judge or commissioner may issue a warrant for Wise's arrest if (1) there is a treaty or convention for extradition and (2) a complaint is made under oath charging him with having committed in Mexico any of the crimes provided for by such Treaty or Convention. Here there is a treaty and supplemental treaties or conventions, in which twenty-six extraditable offenses are listed as set out above.

I find no crime denominated as fraud listed in the Treaty or Supplemental Conventions. That term seems to have crept into the complaint by reason of the use of the term in some of the documents and records of the Mexican Government accompanying the complaint. The offense sought to be charged here, and which the complaint should charge, if extradition is to be had, is that of obtaining money, valuables or other personal property by false devices. Mexico seems to have such a law, and Texas has such a law—swindling,³ punishable by imprisonment as for theft.⁴ But the complaint does not charge Wise with obtaining money, valuables or other personal property by false devices; it charges commission "of the crime of fraud more particularly referred to in Section subd. 19 of the Treaty." But it does not charge what Wise obtained—whether money, or what valuable or what personal property!

Despite intimations to the contrary in some of the cases, a complaint seeking the issuance of a warrant for extradition to a foreign country must allege facts sufficient to apprise the defendant of the nature of the charge against him and to show that an extraditable offense has been committed. While it is not necessary to charge the offense with the particularity of an indictment, it should be sufficiently explicit to inform the accused of the nature of the charge. This principle is best set out in Ex Parte Sternaman, D.C., 77 F. 595, quoted with approval in Yordi v. Nolte, 215 U.S. 227, 230, 30 S.Ct. 90, 54 L.Ed. 170. It is implicit in all of the cases announcing the rule that the complaint need not meet the requirements of an indictment.⁵

The Government relies upon Fernandez v. Phillips, 268 U.S. 311, 313, quoting from page 312-13, 45 S.Ct. 541, 542, 69 L.Ed. 970 as follows:

"It is objected in the first place that the complaint and warrant are defective. The complaint was filed by an Assistant District Attorney of the United States for the District of New Hampshire. It alleged that the complainant was informed `through diplomatic channel' that the appellant was duly and legally charged by the United States of Mexico with the crime, and on behalf of that government prayed the arrest. Of course whatever form of words was used, the complaint necessarily was upon information, but as appeared at the hearing it was filed by order of the Attorney General, upon request of the Secretary of State, enclosing a request for the extradition from the Mexican Government and a copy of proceedings in a Mexican Court finding that the crime was duly proved against the appellant and ordering his arrest, many pages of evidence being appended. This was enough. Yordi v. Nolte, 215 U.S. 227, 231, 232, 30 S. Ct. 90, 54 L.Ed. 170; Rice v. Ames, 180 U.S. 371, 375, 376, 21 S.Ct. 406, 45 L.Ed. 577; Glucksman v. Henkel, 221 U.S. 508, 514, 31 S.Ct. 704, 55 L.Ed. 830."⁶

But immediately after the foregoing is the following:

"The crime charged is embezzlement or peculation of the public funds between May, 1922, and February 1, 1923, while a public officer of the United States of Mexico, to wit, the Cashier of the Department of Special Taxes. The crime is within the treaty and sufficiently alleged. The warrant is said to be bad because it names Mariano Viamonte and not Mariano Viamonte Fernandez, the appellant. He is named both ways in the proceedings and is identified by testimony. There is nothing in this objection, if a warrant is required."

These fact allegations are far more than is charged in the complaint here. Had the complainant there simply charged that Fernandez had committed the crime of embezzlement in Mexico "as more particularly defined in the treaty," I have no doubt the court would have held it insufficient to confer jurisdiction, even though Fernandez v. Phillips, like most of the cases dealing with extradition, was a habeas corpus proceeding where the only inquiry is "whether the magistrate has jurisdiction, whether 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."⁷

The complaint filed by the United States Attorney, therefore is insufficient since it does not charge an offense covered by the treaty; and does not sufficiently apprise the defendant as to what the charge is.

The court has written at length upon the question for future guidance in this district. Recognizing, however, the possibility of error and that, in any event, a new complaint might be filed, the second proposition advanced by Wise will be discussed. This is appropriate also because of the contention of counsel for the government that any imperfections in the complaint are taken care of by the exhibits attached thereto, consisting of the records of the Mexican government as to the charges, affidavits, etc., from the District Court in Michoacan.

An examination of these exhibits discloses they do not by any stretch of the imagination charge Wise with obtaining money, valuables or other personal property by threats of injury or by false devices, the offense for which extradition is authorized by subd. 19 of Article II of the treaty. On the contrary, taking as admitted all of the fact allegations and conclusions set out in the Mexican proceedings, the record shows that Wise committed, and is charged with committing, in Mexico, the crime of "drawing a check without funds," in settlement of a profit sharing contract between himself and an association of collective farmers.

This is an offense for which the treaty does not authorize...