Merino v. United States Marshal

• Decision Date: 21 January 1964
• Docket Number: No. 18714.,18714.
• Citation: 326 F.2d 5
• Parties: Jaime J. MERINO, Petitioner-Appellant, v. UNITED STATES MARSHAL, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

326 F.2d 5 (1963)

Jaime J. MERINO, Petitioner-Appellant, v. UNITED STATES MARSHAL, Respondent.

No. 18714.

United States Court of Appeals Ninth Circuit.

December 14, 1963.

Rehearing Denied January 21, 1964.

Sheela, O'Laughlin, Hughes & Hunter and Peter J. Hughes, San Diego, Cal., and David C. Marcus, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Crim. Section, and Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for respondent.

Newman & Newman and Philip M. Newman, Los Angeles, Cal., as amicus curiae.

Before CHAMBERS and JERTBERG, Circuit Judges, and MURRAY, District Judge.

JERTBERG, Circuit Judge.

Before us is an appeal from a judgment of the United States District Court for the Southern District of California dismissing a petition for habeas corpus filed by appellant. Said petition for writ of habeas corpus was filed in the District Court after an adverse decision by the United States Commissioner following a hearing pursuant to the provisions of 18 U.S.C. § 3184. Following such hearing the Commissioner found as a fact, "that the evidence presented is sufficient under 18 U.S.C. § 3184 to sustain the charges under the provisions of the treaty, and" concluded "that the defendant should be surrendered to the proper officials of Mexico." From such findings and conclusion the Commissioner ordered "that the defendant stand committed to the custody of the United States Marshal without bail until the surrender shall be made."

Jurisdiction of the Commissioner to hear extradition matters is based on said Commissioner's Order of Appointment dated February 28, 1959, and pursuant to the provisions of Title 18 U.S.C. § 3184 and the Treaty of Extradition between the United States of America and the Republic of Mexico, ratification exchanged April 22, 1899, proclaimed April 24, 1899 31 Stat. 1818, amended by supplemental convention effective July 11, 1926 44 Stat. 2409, again amended by supplemental convention effective April 14, 1941 55 Stat. 1133.

The District Court had jurisdiction to entertain appellant's petition for writ of habeas corpus pursuant to the provisions of Title 28 U.S.C. § 2241(a). This Court has jurisdiction to entertain this appeal under the provisions of Title 28 U.S.C. § 2253.

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 Poza 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.

Prior to the hearing before the United States Commissioner, appellant moved the Commissioner for an order authorizing the taking of depositions of certain persons residing in Mexico. Following denial of said motion by the Commissioner appellant applied to the United States District Court for a writ of mandamus or, in the alternative a motion for an order directing the Commissioner to make an order authorizing the taking of the depositions. The District Court denied the 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, appellant renewed his application for a Writ and Order to the District Court. Following denial of the renewed application and motion by the District Court, appeal from such denial was taken to this Court. The appeal was dismissed by this Court in Merino, Appellant, v. Hocke, et al., Appellees, No. 18271 of this Court, 324 F.2d 687 (9th Cir. 1963).

The Treaty of Extradition between the United States of America and the Republic of Mexico, as amended, in pertinent part provides as follows:

ARTICLE II of the Treaty of February 22, 1899 31 Stat. 1818 provides in pertinent part:

"Persons shall be delivered up, according to the provisions of this convention, who shall have been charged with, or convicted of, any of the following crimes or offenses:

"1. * * *

"2. * * *

"3. * * *

"4. * * *

"5. * * *

"6. * * *

"7. * * *

"8. * * *

"9. * * *

"10. The forgery, or falsification of the official acts of the Government or public authority, including courts of justice, or the utterance or fraudulent use of any of the same.

"11. * * *

"12. * * *

"13. Embezzlement or criminal malversation of public funds committed within the jurisdiction of either party by public officers or depositaries.

"14. * * *

"15. * * *

ARTICLE III of the same Treaty provides in pertinent part as follows:

"Extradition shall not take place in any of the following cases:

"1. When the evidence of criminality presented by the demanding party would not justify, according to the laws of the place where the fugitive or person so charged will be found, his or her apprehension and commitment for trial, if the crime or offense had been there committed.

"2. When the crime or offense charged shall be of a purely political character.

"3. When the legal proceedings or the enforcement of the penalty for the act committed by the person demanded has become barred by limitation according to the laws of the country to which the requisition is addressed."

ARTICLE VIII of the same Treaty provides in pertinent part as follows:

"Requisitions for the surrender of fugitives from justice, under this present convention, shall be made by the respective diplomatic agents of the contracting parties, or, in the event of the absence of these from the country or from its seat of government, they may be made by superior consular officers.

"If a person whose extradition is asked for shall have been convicted of a crime or offense, a copy of the sentence of the court in which he was convicted, authenticated under its seal, with attestation of the official character of the Judge by the proper executive authority, and of the latter by the minister or consul of the respective contracting party, shall accompany the requisition.

"When, however, the fugitives shall have been merely charged with a crime or offense, a similarly authenticated and attested copy of the warrant for his arrest in the country where the crime or offense is charged to have been committed, and of the depositions upon which such warrant may have been issued, must accompany the requisition as aforesaid.

"Whenever, in the schedule of crimes and offenses of article 2nd, it is provided that surrender shall depend on the fact of the crime or offense charged being punishable by imprisonment or other corporal punishment according to the laws of both contracting parties, the party making the demand for extradition shall furnish, in addition to the documents above stipulated, an authenticated copy of the law of the demanding country defining the crime or offense, and prescribing a penalty therefor.

"The formalities being fulfilled, the proper executive authority of the United States of America, or of the United Mexican States, as the case may be, shall then cause the apprehension of the fugitive, in order that he or she may be brought before the proper judicial authority for examination. If it should then be decided that, according to the law and the evidence, the extradition is due pursuant to the terms of this convention, the fugitive may be given up according to the forms of law prescribed in such cases."

18 U.S.C. § 3184 provides:

"§ 3184. Fugitives from foreign country to United States.

"Whenever there is a treaty or convention for extradition between the United States and any foreign government, any justice or judge of the United States, or any commissioner authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or 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 or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he 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."

18 U.S.C. § 3190 provides:

"§ 3190. Evidence on hearing

"Depositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which

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