United States v. Moore, 34.

• Decision Date: 06 September 1941
• Docket Number: No. 34.,34.
• Citation: 40 F. Supp. 543
• Parties: UNITED STATES ex rel. SAUERBREY v. MOORE, U. S. Marshal.
• Court: U.S. District Court — Eastern District of Kentucky

40 F. Supp. 543

UNITED STATES ex rel. SAUERBREY v. MOORE, U. S. Marshal.

No. 34.

District Court, E. D. Kentucky, Catlettsburg.

September 6, 1941.

Daniel W. Davies, of Newport, Ky., for petitioner.

J. T. Metcalf, U. S. Atty., of Lexington, Ky., and Claude P. Stephens, Asst. U. S. Atty., of Prestonsburg, Ky., for the United States.

SWINFORD, District Judge.

William A. Sauerbrey petitions the Court to release him from the custody of the United States Marshal for the Eastern District of Kentucky by whom he is being held for removal to the Northern District of Illinois, Eastern Division, under an order of removal issued by a United States Commissioner in this District (Eastern District of Kentucky).

A hearing was had in accordance with the provisions of Revised Statutes, Sections 758, 759, 760 and 761, 28 U.S.C.A. §§ 458, 459, 460 and 461. From the record made at that hearing this Court must "determine the facts of the case", and "dispose of the party as law and justice require". Rev.St. § 761, 28 U.S. C.A. § 461.

Sauerbrey, with thirty-seven other persons, is under indictment in the Northern District of Illinois for violations of the revenue laws pertaining to illicit liquor transactions. The indictment contains forty-five counts. The first forty-four counts charge substantive offenses occurring in the Northern District of Illinois. The forty-fifth count charges a conspiracy "to commit divers offenses against the said United States, that is to say, the offenses set forth in the preceding counts of this indictment, which offenses are herein incorporated by reference as though fully set forth and made a part hereof, together with numerous other offenses of a like nature as those contained in the said preceding counts."

Of the twenty-eight overt acts set out in the conspiracy count only one of them refers to the petitioner. This overt act is as follows: "8. That on, to wit, July 15, 1939, at Newport, Kentucky, defendants Harry Kaurisch and William Sauerbrey, alias Dutch, did meet Joseph Graceffa;".

The record discloses that petitioner on this occasion purchased or participated in the purchase of a load of alcohol from Graceffa. As the purchaser of the product of the unlawful stilling operations in the Northern District of Illinois the petitioner committed no offense. The following is quoted from United States v. Farrar, 281 U.S. 624, 50 S.Ct. 425, 427, 74 L.Ed. 1078, 68 A.L.R. 892: "Since long before the adoption of the Eighteenth Amendment, it has been held with practical unanimity that, in the absence of an express statutory provision to the contrary, the purchaser of intoxicating liquor, the sale of which was prohibited, was guilty of no offense."

Where the identity of the petitioner as being the person charged in the indictment is admitted relief should be denied if it appears from the record, First: That an offense against the United States is charged in the indictment under which the warrant for arrest was issued and on which the removal is sought. Second: That the Court to which the removal is sought has jurisdiction of the offense charged. Third: That there is probable cause for belief that the defendant committed the offense with which he is charged. United States, etc., v. Mathues, United States Marshal, D. C., 6 F.2d 149.

The case of United States v. Andrade, D. C., 10 F.2d 572, was before the Circuit Court of Appeals for the Fifth Circuit, 16 F.2d 776, on a petition for an order of removal and application for discharge on habeas corpus. The following language from the case of United States v. Johnston, D. C., 292 F. 491, 493, was quoted with approval in the opinion 10 F.2d 574:

"It is settled by the Supreme Court that the order of removal is a judicial act, and that the prima facie case made by the indictment and proof of identity may be overcome by testimony, that the burden to overcome such prima facie case is on the defendant, and that a defendant is entitled to the judgment of the court from which removal is sought as to the existence of probable cause upon the testimony presented. Tinsley v. Treat, 205 U.S. 20, 27 S.Ct. 430, 51 L.Ed. 689; United States v. Morse (D.C.) 287 F. 906. In Tinsley v. Treat, supra, the court quoted Justice Brewer in Beavers v. Henkel, 194 U.S. 73, 24 S.Ct. 605, 48 L.Ed. 822.

"`"It may be conceded that no such removal should be summarily and arbitrarily made. There are risks and burdens attending it which ought not to be needlessly cast upon any individual. * * * We must never forget that in all controversies, civil or criminal, between the government and an individual, the latter is entitled to reasonable protection. * * * In other words, the removal is made a judicial rather that a mere ministerial act."

"`Probable cause means more than opportunity to commit crime, or presence in a particular place. It must be more than surmise or suspicion. There must be some tangible fact or incident which will support a judicial act, something which invokes discrimination of judicial discretion. The facts and circumstances before the court must be such as to warrant a man of prudence and caution in believing that the defendant is guilty. Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035.' United States v. Johnston (D.C.) 292 F. 491, 493."

In the instant case it is admitted that Sauerbrey is the identical person charged in the indictment, that the offense charged is one of which the United States takes cognizance and that the Northern District of Illinois has jurisdiction.

The only question for determination is whether from the record here there is probable cause for the belief that Sauerbrey committed the offense.

A certified copy of an indictment is taken as prima facie evidence of probable cause. Beavers v. Henkel, 194 U.S. 73, 24 S.Ct. 605, 48 L.Ed. 882. It is also true that acts of a grand jury should be taken with the greatest respect. Neither should a showing of probable cause be ignored because the Court may believe from other evidence that the defendant is not guilty of the crime with which he is charged. United States, etc. v. Gault, Marshal, 271 U.S. 142, ...