President of the United States of America v. Kelly
Decision Date | 09 May 1938 |
Docket Number | No. 304.,304. |
Citation | 96 F.2d 787 |
Parties | PRESIDENT OF THE UNITED STATES OF AMERICA, ex rel. CAPUTO, v. KELLY, United States Marshal, et al. |
Court | U.S. Court of Appeals — Second Circuit |
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.
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:
* * *
Section 5270 of the United States Revised Statutes, 18 U.S.C.A. § 651:
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:
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 judgment rendered par contumace and the measures...
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