United States v. Artukovic

• Citation: 170 F. Supp. 383
• Decision Date: 15 January 1959
• Docket Number: No. 9.,9.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America ex rel. Branko KARADZOLE, Consul General, Federal People's Republic of Yugoslavia, Complainant, v. Andrija ARTUKOVIC, Defendant.

170 F. Supp. 383

UNITED STATES of America ex rel. Branko KARADZOLE, Consul General, Federal People's Republic of Yugoslavia, Complainant, v. Andrija ARTUKOVIC, Defendant.

No. 9.

United States District Court S. D. California, Central Division.

January 15, 1959.

George E. Danielson, Los Angeles, Cal., for plaintiff.

O'Connor & O'Connor, Vincent G. Arnerich, Los Angeles, Cal., Robert T. Reynolds, Washington, D. C., for defendant.

THEODORE HOCKE, United States Commissioner.

First I want to compliment counsel for the courteous and competent manner in which this case was presented. Tension was high during the hearings and it would have been excusable if counsel had absorbed some of it. They maintained the decorum expected of them at all times and the respect due their opponent.

The briefs were necessarily voluminous. They show the industry and competency of the attorneys. I think I have read every case on extradition which is even remotely similar to any aspect of this case. No party could have received better representation.

The above entitled cause is now under submission for decision upon the amended complaint on extradition filed by the complainant's predecessor on October 15, 1951, based upon an indictment entitled in the People's Republic of Croatia, Presidency of the County Court, Zagreb, received on September 5, 1951. The amended complaint is in twenty-two counts charging the defendant with murder and with participation in murder during the period from April 16, 1941, to October 10, 1942, during which time the defendant was the Minister of Internal Affairs in the Independent State of Croatia.

Hearing on the amended complaint was commenced on June 16, 1958, and completed on July 8, 1958, at which time the matter was taken under submission on briefs to be filed by the parties.

The briefs have now been filed and duly considered. The evidence submitted by both sides has been read and reread, together with the authorities submitted by the parties.

Considerable time has elapsed between the filing of the complaint on August 29, 1951, and the start of the extradition hearing on June 16, 1958. For the benefit of anyone not familiar with the history of this case I believe an explanation is in order. Chronologically the following steps were taken:

August 29, 1951 — Complaint for Extradition filed with the Commissioner, warrant issued. The defendant was arrested on the warrant and arraigned on the complaint. The defendant was committed to the custody of the United States Marshal without bail.

September 10, 1951 — Motion to fix bail was heard by the Commissioner and denied. Extradition hearing was set for October 22, 1951.

September 12, 1951 — Petition for Writ of Habeas Corpus was filed by the defendant in the United States District Court for the Southern District of California and Order to Show Cause why the writ should not be granted was issued. Artukovic v. Boyle, infra.

September 14, 1951 — Return to Order to Show Cause was filed by the United States Marshal in the District Court.

September 17, 1951 — Appearance of Rafo Ivancevic, Consul General of the Federal People's Republic of Yugoslavia, was filed in the District Court.

September 19, 1951 — Amended Petition for Writ of Habeas Corpus was filed in the District Court and, after hearing, bail was fixed in the sum of $50,000 and a date set for hearing on the petition.

September 20, 1951 — Bond was posted and the defendant released from custody.

October 15, 1951 — Amended Complaint for Extradition filed with the commissioner.

October 22, 1951 — Extradition hearing continued by the commissioner to October 24, 1951.

October 24, 1951 — Evidence of criminality filed with the commissioner. Extradition hearing again continued for resetting for hearing because of the Habeas Corpus proceeding.

From time to time thereafter continuances were granted until July 14, 1952, at which time the matter was placed off calendar for setting of an extradition hearing until final disposition of the Habeas Corpus proceeding.

July 14, 1952 — Petition for Habeas Corpus was granted, the District Court holding there was no existing treaty between the United States of America and the Federal People's Republic of Yugoslavia (Artukovic v. Boyle, D.C.1952, 107 F.Supp. 11). The defendant was released on bail pending appeal from that judgment.

February 19, 1954 — The United States Court of Appeals for the Ninth Circuit in Ivancevic v. Artukovic, 211 F.2d 565, certiorari denied 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 698, rehearing denied 348 U.S. 889, 75 S.Ct. 202, 99 L.Ed. 698, reversed the District Court, holding the treaty between the United States and Servia in 1902 was a present, valid and effective treaty between the United States and the Federal People's Republic of Yugoslavia.

April 3, 1956 — The District Court in the Habeas Corpus proceeding held that the offenses for which the surrender of the defendant was sought were of a political character and therefore not extraditable under the treaty. Artukovic v. Boyle, D.C.1956, 140 F.Supp. 245.

March 10, 1958 — Mandate of the United States Supreme Court was filed in the District Court vacating the judgment of the United States Court of Appeals affirming the judgment of the District Court (Karadzole v. Artukovic, 9 Cir., 1957, 247 F.2d 198) and remanding the matter for a hearing pursuant to 18 U.S. C. § 3184. Karadzole v. Artukovic, 1958, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356.

March 10, 1958 — The parties appeared before me and June 16, 1958, was set for the commencement of the extradition hearing pursuant to 18 U.S.C. § 3184.

June 16, 1958-July 8, 1958 — Extradition hearing was held and the matter taken under submission on briefs to be filed.

The above is set forth to show that any delay in the hearing of the extradition proceeding was caused by the defendant's filing of the petition for Habeas Corpus and was not the fault of the commissioner. My predecessor had set an early hearing and I am sure would have held an early hearing but for the Habeas Corpus proceeding.

Motions

Several motions were made during the hearing which should receive attention before the merits of the complaint are considered.

The first motion is made by defendant to strike the exhibits which were presented after the two month period following the arrest of the defendant on August 29, 1951. The demand for extradition is based upon the treaty between the United States of America and the Kingdom of Servia concluded October 25, 1901, and proclaimed May 17, 1902 (Exhibit No. 131) 32 Stat. 1890, and the statutes of the United States pertaining to extradition — Title 18 U.S.C. §§ 3181-3195. This treaty has been held to be in full force and effect between the United States of America and the present Federal People's Republic of Yugoslavia by the United States Court of Appeals for the Ninth Circuit in Ivancevic v. Artukovic (9 Cir., 1954), supra.

Article IV of this treaty provides:

"The provisional detention of a fugitive shall cease and the prisoner shall be released if a formal requisition for his surrender, accompanied by the necessary evidence of criminality, has not been produced under the stipulations of this Treaty, within two months from the date of his provisional arrest and detention."

The original complaint was filed with my predecessor on August 29, 1951, on which date the defendant was arrested on the commissioner's warrant and arraigned on the complaint.

On October 24, 1951, within two months of the arrest and provisional detention, the complainant filed approximately ninety documents which it contends meets the requirements of the treaty.

On June 6, 1958, ten days before the date set for the hearing on the amended complaint, complainant filed a number of additional documents in support of its complaint. It is to these documents that defendant now directs his motion to strike.

Counsel indicate they have been unable to find any court decision construing such a treaty provision and my research has disclosed no such case.

I must hold that the treaty means just what it says, i. e.: The provisional detention of the fugitive shall cease and the prisoner released if the necessary papers are not on file within two months. Here we do not have this situation. The defendant was released on bail in the Habeas Corpus action on September 20, 1951, long before the two months from the date of his provisional arrest and detention. The treaty does not provide that all proceedings shall cease, merely that any detention shall cease. His release for failure to furnish the necessary evidence of criminality would not be res judicata. A hearing could still be held or a new complaint could be filed, a new warrant issued, and another provisional detention, starting anew the time for filing the necessary evidence.

Therefore, the motion to strike these exhibits is denied and they are admitted into evidence.

I cannot condone the action of the complainant in waiting until June of 1958 to file these additional documents. The documents themselves indicate they were obtained early in 1952. They should have been filed as soon thereafter as possible to enable the defendant to obtain evidence to refute them. However, defendant could have obtained relief by a motion to continue the hearing to a later date, if he had been so inclined, in order to obtain his evidence. No such motion was made.

The next motion is to strike all exhibits offered by the complainant on the grounds they do not comply with the code sections pertaining to the evidence required at the hearing.

Title 18 U.S.C. § 3190 provides:

"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

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