Merino v. Hocke
| Citation | 289 F.2d 636 |
| Decision Date | 26 April 1961 |
| Docket Number | No. 17062.,17062. |
| Parties | Jaime J. MERINO, Appellant, v. Theodore HOCKE, U. S. Commissioner, and the United States of America, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sheela, O'Laughlin & Hughes and John F. O'Laughlin and Peter Hughes, San Diego, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, Ernest A. Long, Asst. U. S. Attys., Los Angeles, Cal., for appellees.
Before CHAMBERS, JERTBERG and MERRILL, Circuit Judges.
Before us is an appeal from an order of the United States District Court denying an application for writ of mandamus and, in the alternative, a motion for an order directing the United States Commissioner to make an order authorizing the taking of depositions by appellant of certain persons residing in the Republic of Mexico for introduction in evidence in an extradition proceeding then pending before the Commissioner.
The jurisdiction of the United States Commissioner Hocke to hear extradition matters is based on said Commissioner's Order of Appointment, dated February 28, 1959. The jurisdiction of the District Court and said United States Commissioner was based upon Section 3184 of Title 18 U.S.C., and the extradition treaty existing between the United States of America and the Republic of Mexico, ratification exchanged April 22, 1899, proclaimed April 24, 1899, as amended, 31 Stat. 1818. This court has jurisdiction to entertain this appeal and to review the order in question under the provisions of Sections 1291 and 1294, Title 28 U.S.C.
The extradition complaint filed February 1, 1960, as amended April 12, 1960, charges in essence that appellant is duly and legally charged with having committed in Mexico the crimes of falsification of the official acts of the Government or public authority and the uttering or fraudulent use of the same; and embezzlement of public funds by a public officer or depository, while employed by Petroleos Mexicanos, an agency of the Government of Mexico, in the capacity of superintendent of the District of Posa Rica, the State of Vera Cruz, Mexico, during the years 1957 and 1958.
The amended extradition complaint further charges that the appellant has been found outside the boundaries of the said Mexico; that a warrant for the arrest of appellant cannot be served in Mexico; and that the appellant has sought asylum within the jurisdiction of the United States of America and may be found in the State of California, City of Redondo Beach; and that said appellant is not a citizen of the United States of America.
On April 25, 1960, appellant moved the United States Commissioner for the Southern District of California, Central Division, for an order authorizing the taking of depositions of certain parties more particularly described therein. Said motion came on for hearing before the United States Commissioner on May 26, 1960, and was denied.
In the motion before the United States Commissioner the appellant sought authority to take depositions of certain individuals domiciled in Mexico. The United States Commissioner denied the motion. The appellant then applied to the United States District Court for a writ of mandamus or, in the alternative, an order in the nature of a writ of mandamus directing the United States Commissioner to:
(1) Make an order authorizing the taking of depositions in the Republic of Mexico by attorneys for appellant, pursuant to the motion made before said Commissioner and denied by him, and in the alternative:
(2) Exercise his discretion in determining whether or not appellant should be granted an order authorizing the taking of depositions in the Republic of Mexico.
Appellant specifies as errors:
(1) That the district court erred in denying appellant's application for a writ of mandamus, compelling the United States Commissioner to permit appellant to take depositions in the Republic of Mexico and, in the alternative, to compel the United States Commissioner to exercise his discretion in permitting the taking of depositions;
(2) That the district court erred in denying appellant's motion for an order directing the United States Commissioner to make an order authorizing the taking of depositions in the Republic of Mexico and, in the alternative, to order the United States Commissioner to exercise his discretion in determining whether or not appellant should be permitted to take depositions in the Republic of Mexico.
Title 18 U.S.C.A. § 3184 provides in substance, in its relevant...
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Wacker v. Bisson
...1963, 375 U.S. 49, 84 S.Ct. 144, 11 L.Ed.2d 106. See also Note, Jiminez v. Aristeguieta, 61 Mich.L.Rev. 383 (1962). Cf. Merino v. Hocke, 9 Cir. 1961, 289 F.2d 636; Merino v. Hocke, 9 Cir. 1963, 324 F.2d 687; Merino v. United States Marshal, 9 Cir. 1964, 326 F.2d 5. In the first two Merino c......
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Millholland v. Oglesby
...F.2d 308. It is 'but a preliminary, inconclusive step on the road toward final disposition of the proceeding on the merits.' Merino v. Hocke (9th Cir.), 289 F.2d 636. The order may be modified or revoked when it appears to the court that its purpose has been served, or that justice requires......
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In re Ellsberg
...here, since Congress has specifically proscribed review of the grant or denial of habeas corpus relief. Cf. Merino v. Hocke, 289 F.2d 636, 639 (9th Cir. 1961). Another alleged source of jurisdiction is a commonly employed end run around the "in aid of appellate jurisdiction" requirement. It......
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Merino v. United States Marshal
...application and motion. Upon appeal to this Court the appeal was dismissed. Merino, Appellant v. Hocke, United States Commissioner, United States Marshal, Appellees, reported 289 F.2d 636 (9th Cir. 1961). Following the hearing by the Commissioner under the provisions of 18 U.S.C. § 3184, ap......