Trawczynski v. United States, 6105

• Decision Date: 04 May 1937
• Docket Number: 6106.,No. 6105,6105
• Parties: TRAWCZYNSKI v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

89 F.2d 922 (1937)

TRAWCZYNSKI v. UNITED STATES.

Nos. 6105, 6106.

Circuit Court of Appeals, Seventh Circuit.

May 4, 1937.

Jacob S. Rothstein, of Milwaukee, Wis., for appellant.

B. J. Husting, U. S. Atty., and L. Hugo Keller, Asst. U. S. Atty., both of Milwaukee, Wis., for the United States.

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

Appellant with others was charged by indictment in the Western district of South Dakota with conspiracy to violate the Internal Revenue Laws of the United States. He was apprehended in the Eastern district of Wisconsin where appropriate removal proceedings were brought before a United States Commissioner. The government offered in evidence a certified copy of the indictment and the testimony of two witnesses on the question of the identification. Appellant specifically denied all the charges contained in the indictment and the testimony of other witnesses was offered which to some extent corroborated that of the defendant. The Commissioner allowed the petition for removal and committed appellant to the custody of the United States Marshal. Appellant thereupon sued out a writ of habeas corpus to test the validity of such commitment. The application for such writ, in so far as is here material, alleges that the proof before the Commissioner failed to establish probable cause that the defendant was guilty of the offense charged in the indictment. A hearing was had by the District Court, both upon the government's motion for an order of removal and the application for habeas corpus. The court allowed the motion for removal and vacated the writ. From both orders an appeal was perfected and the causes here consolidated. Appellee has moved for the dismissal of the appeal from the order of removal on the ground that such an order is not appealable. Counsel for appellant in oral argument concede that such motion should be allowed, and the appeal from the order of removal is therefore dismissed.

It is the contention of appellant that the District Judge in the habeas corpus proceedings refused to consider the testimony offered by appellant in the removal proceedings, and that he erroneously proceeded on the theory that a case was established by the indictment in connection with proof of the identity of the accused. The record before us to some extent bears out this contention, although the record does disclose that appellant was permitted to testify in denial of the charge and to offer the testimony of other witnesses bearing upon the question of probable cause. Numerous authorities are cited as to the proper procedure under the removal statute. Without undertaking to review all of such authorities or distinguish between them, it seems to be the well-established law that the petitioner in such a proceeding establishes a prima facie case of probable cause by proof of an indictment which properly charges the defendant with the commission of a crime against the United States, together with proof of identity. It seems equally well settled that the defendant is entitled to offer any proof otherwise competent with a view of overcoming such prima facie case. On the whole, it is for the Commissioner, upon application for removal, and for the District Court, in an appropriate proceeding to determine from all the evidence whether probable cause has been shown. This appears to be the rule announced in Tinsley v. Treat, 205 U.S. 20, on page 29, 27 S.Ct. 430, 432, 51 L.Ed. 689, where the court said: "And it has been repeatedly held that in such cases the judge exercises something more than a mere ministerial function, involving no judicial discretion. He must look into the indictment to ascertain whether an offense against the United States is charged, find whether there was probable cause, and determine whether the court to which the accused is sought to be removed has jurisdiction of the same."

In the same opinion on page 32 of 205 U.S., 27 S.Ct. 430, 433, 51 L.Ed. 689, the court said: "Appellant was entitled to the judgment of the district judge as to the existence of probable cause on the evidence that might have been adduced, and even if the district judge had thereupon determined that probable cause existed, and such determination could not be revised on habeas corpus, it is nevertheless true that we have no such decision here, and the order of removal cannot be sustained in its absence. Nor can the exclusion of the evidence offered be treated as mere error, inasmuch as the ruling involved the denial of a right secured by statute under the Constitution."

Again in United States ex rel. Kassin v. Mulligan, 295 U.S. 396, on page 401, 55 S.Ct. 781, 783, 79 L.Ed. 1501, the court said: "He was...