United States v. Unverzagt

• Decision Date: 07 May 1924
• Docket Number: 151-C.
• Citation: 299 F. 1015
• Parties: UNITED STATES v. UNVERZAGT.
• Court: U.S. District Court — Western District of Washington

299 F. 1015

UNITED STATES v. UNVERZAGT.

No. 151-C.

United States District Court, W.D. Washington, Northern Division.

May 7, 1924

John A Frater, Asst. U.S. Atty., of Seattle, Wash., for the United states.

F. C Reagan, of Seattle, Wash., and Glenn Madison, of Bellingham Wash., for defendant.

NETERER District Judge.

By his petition the petitioner alleges in substance that he is unlawfully restrained of his liberty, in that the basis of his commitment is an indictment returned in the Western district of New York, proceedings having been instituted to remove him from this district to the district of New York that he did not commit the crime charged in the indictment, that of using the mails to defraud, and that he 'by artifice and physical violence was abducted and kidnapped from the city of Vancouver, province of British Columbia, Dominion of Canada, by certain purported officials of the United States of America,' he being in Vancouver on business with relation to a mine of which he is manager in British Columbia; that he is a citizen of the United States, and that his detention is unlawful; and prays that he be produced in court and, after hearing, discharged.

It is contended by the defendant that, being in British Columbia, a British province, he could not be removed without the permission of the British Columbia authorities; that, having been abducted, he is unlawfully before the court, and this court has no jurisdiction. The offense of which the defendant is charged does not appear to be within the extradition convention between the United States and Great Britain (26 Stat. p. 1508). Article 1 enumerates the causes applicable, and a mail fraud case is not one of them. No asylum is guaranteed to defendant in Canada, and if a treaty did cover the offense charged it would be political, and not judicial, and before the matter could be presented to the court the Congress must make it a rule for the court. The treaty between the United States and Great Britain is a compact depending upon honor between the governments. Any infractions are subject to international negotiation, so far as the party chooses to seek redress. It must be obvious that with this the courts have nothing to do. U.S. v. Rauscher, 119 U.S. 407, at page 418, 7 Sup.Ct. 234, 30 L.Ed. 425.

Chief Justice Marshall in Foster v. Neilson, 27 U.S. (2 Pet.) 253, at 314 (7 L.Ed. 415) said:

'A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territoral, but is carried into execution by the sovereign power of the respective parties to the instrument.'

The right of British Columbia to give asylum to the defendant is different from the right of the defendant to demand and insist upon security in such asylum. England or Canada, through its sovereignty, if unlawfully invaded, may demand reparation and a surrender of the abducted party and also the parties committing the offense, and in case of refusal to comply with the demand might resort to reprisals or take any other measures it deems necessary as redress for the past and security for the future. Mahon v. Justice, 127 U.S. 700 at 705, 8 Sup.Ct. 1204, 32 L.Ed. 283.

The defendant, even though abducted from British Columbia, was subsequently arrested in the United States on the indictment or complaint under the fugitive from justice statute, predicated upon an indictment returned in the Western district of New York. The sole question before the court is the legality of his arrest in the United States. On that I do not understand that there is any question. The proceedings before the court, had subsequent to the arrest, appear to be regular. There is no question as to the indictment or identity of the defendant. There is no power vested in this court to dispose of the matter other than as provided by law, the determination of the identity of the defendant and probable cause, and to direct his removal.

Chief Justice Waite, in U.S. v. Rauscher, supra, at 435 (7 Sup.Ct. 249) in a dissenting opinion, said:

'Under ' * * * the law and practice * * * in the United States, a prisoner is not permitted to set up such a defense (violation of the extradition treaty) for the clear reason that he is within the jurisdiction of the court, which has the authority to try him for the offense of which he is charged, and that whether he ought to be tried for an offense other than that for which he has been surrendered is a matter of diplomacy between the two countries, and not a question between the prisoner and the court before which he is being tried.' Foreign Relations of the United States, 1876, 291.'

Justice Miller for the court, at page 412 in the same cause (7 Sup.Ct. 237), said:

' * * * That judges could not legally deliver up (a defendant before them), nor could they command the executive to do so.'

In Ker v. Illinois, 119 U.S. 436, 7 Sup.Ct. 225, 30 L.Ed. 421, the defendant was abducted from Peru. The Supreme Court at page 443 (7 Sup.Ct. 229) said:

'It was a clear case of kidnapping within the dominions

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