United States v. Mulligan, 368.

• Decision Date: 25 June 1931
• Docket Number: No. 368.,368.
• Parties: UNITED STATES ex rel. KLEIN v. MULLIGAN, Acting United States Marshal.
• Court: U.S. Court of Appeals — Second Circuit

50 F.2d 687 (1931)

UNITED STATES ex rel. KLEIN v. MULLIGAN, Acting United States Marshal.

No. 368.

Circuit Court of Appeals, Second Circuit.

June 25, 1931.

D. Basil O'Connor, of New York City (Arnold T. Koch, of New York City, of counsel), for appellant.

Edward H. Lockwood, of New York City (Thomas Gregory, of New York City, of counsel), for appellee.

Before MANTON, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

Upon complaint of the British consul general at New York, the appellant, Arthur J. Klein, a British subject sought as a fugitive from justice, was arrested on December 27, 1930, and, after a hearing before a United States commissioner, was committed to the custody of the marshal to await the receipt of an extradition warrant from the Secretary of State. The complaint and warrant of arrest charged that on specified dates during the year 1930 Klein had received in the city of London, England, from Harry Wise, who passed under many aliases, two sums of money aggregating £250,000, and other specified sums from a corporation named Broad Street Press Limited, "knowing the same to have been fraudulently obtained." An information supported by depositions charging receipt of the same sums, "knowing the same to have been obtained under circumstances which amount to a misdemeanor, to wit, conspiracy to defraud, in each case contrary to section 33 (1) of the Larceny Act, 1916," had been lodged against Klein in London on December 10, 1930, and forthwith a warrant of arrest thereon had been issued. This is the charge upon which the extradition proceedings must be supported, although the record also shows two earlier British informations and warrants against Klein. Copies of the British documents, duly authenticated, were received in evidence on behalf of the demanding government upon the hearing before the United States commissioner. Klein offered no evidence whatever. The commissioner having ordered him committed, he sued out writs of habeas corpus and certiorari, which the District Judge dismissed after a hearing. This appeal followed.

Under the Treaty of 1842 (8 Stat. 572, 576) as amended in 1889 (26 Stat. 1508, 1509), the crime of "receiving any money, * * * knowing the same to have been embezzled, stolen, or fraudulently obtained" is an extraditable offense. The treaty (article 10) also provides that extradition may be had only "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 apprehension and commitment for trial, if the crime or offence had there been committed." The acts charged against Klein are a crime under the laws of the state of New York (N. Y. Penal Law Consol. Laws N. Y. c. 40 § 1308) as well as in England, and since they are also an extraditable offense under the treaty, commitment for extradition was proper, provided there was evidence to warrant a finding of reasonable ground to believe the accused guilty. Glucksman v. Henkel, 221 U. S. 508, 512, 31 S. Ct. 704, 55 L. Ed. 830; Collins v. Loisel, 259 U. S. 309, 312, 42 S. Ct. 469, 66 L. Ed. 956; Fernandez v. Phillips, 268 U. S. 311, 312, 45 S. Ct. 541, 69 L. Ed. 970. The authorities just cited also make clear that competent evidence to establish reasonable ground is not necessarily evidence sufficient to convict, nor only such as can pass technical rules governing the admissibility of evidence in criminal trials.

For purposes of this appeal Klein admits his receipt of the several sums of money which he is charged with receiving, but he contends that the evidence is insufficient to establish reasonable ground for believing that Wise or the Broad Street Press obtained the money fraudulently, or, if they did, that he had knowledge of it. All the money received by Klein came from the Broad Street Press, for the sums he received from Wise were obtained by the latter from that corporation. Broad Street Press was organized to do a stock brokerage business, and it is the claim of the demanding government that Wise and his confederates used this corporation as a tool to defraud investors who were induced to purchase stocks through it. It published a weekly financial paper which the District Court aptly characterized as a "tipster sheet," and its method of attracting clients was the familiar one of "baiting" its victims by allowing them to make a profit on their initial dealings and then inducing them to invest in unlisted and worthless stocks of three companies which were controlled by persons...