President of the United States of America v. Kelly, 304.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation96 F.2d 787
Docket NumberNo. 304.,304.
PartiesPRESIDENT OF THE UNITED STATES OF AMERICA, ex rel. CAPUTO, v. KELLY, United States Marshal, et al.
Decision Date09 May 1938

96 F.2d 787 (1938)

KELLY, United States Marshal, et al.

No. 304.

Circuit Court of Appeals, Second Circuit.

May 9, 1938.

96 F.2d 788

Lewis Landes, of New York City (Julius I. Puente, of New York City, of counsel), for relator-appellant.

Davis, Polk, Wardwell, Gardiner & Reed, of New York City (Ralph M. Carson and A. S. Edmonds, both of New York City, of counsel), for appellees.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The relator, Gennaro Caputo, was arrested on a warrant issued by a United States commissioner and held for extradition to France on the complaint of the assistant consul general of the French Republic in New York. Caputo sued out a writ of habeas corpus on grounds not now important which was dismissed by the District Court. See President of the United States v. Kelly, 19 F.Supp. 730. Its order was affirmed by this court pursuant to an opinion reported in 2 Cir., 92 F.2d 603. Caputo thereafter applied for another writ of habeas corpus contending that prosecution for the offenses for which extradition was sought was barred by the French statute of limitations. He had been charged in France with the murder at Marseilles on January 14, 1923, of one Marie Girere and of the attempt at the same time and place to cause the death of one Viola Sauveur. A judgment condemning him for the above offenses was entered in his absence on January 30, 1924, by the Court of Assizes sitting in Aix. Thus it was a judgment rendered by default or, to use the language of the French law, "par contumace," and it in terms condemned him to death.

The demand for the extradition of Caputo was made pursuant to the treaty with France, 37 Stat. 1526 et seq., and also pursuant to section 5270 of the Revised Statutes, 18 U.S.C.A. § 651, which governs proceedings in the United States for the extradition of persons who have committed crimes in foreign countries. The pertinent provisions are the following:

Extradition Convention of January 6, 1909:

"Article I.

"The Government of the United States and the Government of France mutually agree to deliver up persons who, having been charged with or convicted of any of the crimes or offences specified in the following article, committed within the jurisdiction of one of the contracting Parties, shall seek an asylum or be found within the territories of the other: Provided That this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offence had been there committed.

"Article II.

"Extradition shall be granted for the following crimes and offences:

"1. Murder. * * *

"Article III.

"Requisitions for the surrender of fugitives from justice shall be made by the diplomatic agents of the contracting Parties, or, in the absence of these from the country or its seat of government, they may be made by the consular officers.

"If the person whose extradition is requested shall have been convicted of a crime or offence, a duly authenticated copy of the sentence of the court in which he was convicted, or, if the fugitive is merely charged with a crime or offence, a duly authenticated copy of the warrant of arrest in the country where the crime or offence has been committed and of the depositions or other evidence upon which such warrant was issued, shall be produced.

"The extradition of fugitives under the provisions of this treaty shall be carried out in the United States and in France, respectively, in conformity with the laws regulating extradition for the time being in force in the State on which the demand for surrender is made.

* * *

"Article VIII.

"Extradition shall not be granted, in pursuance of the provisions of this convention,

96 F.2d 789
if the person claimed has been tried for the same act in the country to which the requisition is addressed, or if legal proceedings or the enforcement of the penalty for the act committed by the person claimed have become barred by limitation, according to the laws of the country to which the requisition is addressed."

Section 5270 of the United States Revised Statutes, 18 U.S.C.A. § 651:

"Fugitives from the justice of a foreign country."

"Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, or commissioner, authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within the limits of any State, District, or Territory, 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."

Prosecution for such offenses as those with which Caputo is charged is not barred by the laws of the place of asylum so that the provisions of article 8 of our Extradition Treaty with France do not apply.

It is the rule in extradition proceedings between states of the Union that the defense of the statute of limitations is one for the demanding state to pass upon when the case comes to trial. Biddinger v. Commissioner of Police, 245 U. S. 128, 38 S.Ct. 41, 62 L.Ed. 193. It is argued that, because of the provision of article 8 and of the canon "expressio unius exclusio alterius," the contracting sovereigns must have intended that only the statute of limitations of the country to which the requisition is addressed should be considered in extradition proceedings and that the application of the statute of the demanding state should be left for determination by the courts of the latter.

We are, however, referred to certain decisions of foreign courts, particularly of the courts of The Argentine and of Switzerland, which seem to have held that extradition should not be granted upon the demand of a foreign state if it appears that the prosecution of the accused is barred by the statute of limitations of the demanding country. In this view a number of text-writers appear to concur, and in the extradition of one Vizcarra to Mexico, our State Department passed on the question whether, upon the evidence before the Commissioner, the crime was barred by limitation in Mexico. Digest of International Law, John Bassett Moore, vol. 4, p. 404. See, also, comment on Article 4 of Draft Code on Extradition, Research in International Law, Harvard Law School, 29 American Journal of International Law Supp. Jan.-July, p. 103. But we need not decide whether, under the treaty with France, the determination of the scope of the French statute of limitations should be left to the courts of that country and may assume that we should ourselves interpret it for the purposes of extradition, since we are convinced that on the proofs the French statute has not run.

The following sections of the French Code of Criminal Procedure set forth the statutes of limitation which are thought by appellant or appellee to be applicable to the facts before us.

Section 635, as translated in English, provides:

"The punishment imposed by judgments in criminal matters shall be outlawed after twenty years from the date such judgments have been rendered. * * *"

Section 637 provides:

"The public action and the civil action resulting from a crime of a nature carrying the death penalty * * * shall be outlawed after ten years from the date of the commission of the crime, provided no proceedings of investigation or prosecution have been instituted within said period.

96 F.2d 790

"If in the interval proceedings of investigation or prosecution have been instituted not followed by a judgment, the public action and the civil action shall not be outlawed until after ten years from the last proceeding. * * *"

It is contended by counsel for the relator that the judgment rendered against him by the French Court of Assizes is no more than an indictment or charge, and accordingly that section 637, which outlaws prosecution after 10 years from the last proceeding, applies and that the action against him in France is barred. In support of this contention we are referred to two decisions in the Southern District of New York, namely, Ex parte Fudera, C.C., 162 F. 591, and Ex parte La Mantia, D.C., 206 F. 330, in which Judge Ward held that judgments by Italian courts in contumaciam were to be regarded as charges rather than convictions of crime in respect to the requirements of our statutes regarding proof of probable cause in extradition proceedings. Chelmsford, L. C., reached a similar conclusion as to the nature of a judgment of conviction "par contumace" under the law of France in In re Coppin, L.R. 2 Ch.App. 47 (1866). See, also, Hyde International Law, vol. 1, § 327, pp. 59-91.

Section 476 of the French Code of Criminal Procedure defines the rights of persons convicted "par contumace" as follows: "If the accused surrenders, or if he is arrested before the penalty is barred by prescription, the...

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