Voloshin v. Ridenour

• Decision Date: 08 May 1924
• Docket Number: 4240,4228,4263.
• Citation: 299 F. 134
• Parties: VOLOSHIN et al. v. RIDENOUR, U.S. Marshal (three cases).
• Court: U.S. Court of Appeals — Fifth Circuit

299 F. 134

VOLOSHIN et al. v. RIDENOUR, U.S. Marshal (three cases).

Nos. 4228, 4240, 4263.

United States Court of Appeals, Fifth Circuit.

May 8, 1924

L. S Carrington, of Ancon, Canal Zone, Harmodio Arias, of Panama City, Republic of Panama, J. Zach Spearing, of New Orleans La., and William C. Todd, of Cristobal, Canal Zone, for appellants.

G. H Martin, U.S. Atty., of Ancon, Canal Zone, and J. J. McGuigan Asst. U.S. atty., of Balboa Heights, Canal Zone, for appellee.

Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

These three cases were submitted together. Each of them is an appeal from an order discharging a writ of habeas corpus sued out by the appellants and remanding them to the custody of the appellee, the marshal for the Canal Zone. The appellee's custody of the appellants began with their arrest on May 28, 1923, under a warrant issued in extradition proceedings instituted against them in the Canal Zone in behalf of the republic of Chile, an affidavit in which alleged the issuance of a warrant in Los Andes, Chile, for the arrest of appellants on charges of robbery and homicide committed there. The appellants were discharged from custody under that warrant after they had been held thereunder for a period of two months. Immediately following such discharge, and on the same day, they were rearrested by the appellee under another warrant issued upon a second extradition complaint, an affidavit in which was similar to the above-mentioned one. Thereupon the first of the three habeas corpus proceedings was instituted, which resulted as above stated. The appellants were detained under the second warrant until September 28, 1923, when they were brought into court and a second time discharged.

On the same day they were rearrested under a third extradition complaint, made in behalf of the same republic. That complaint, which was signed and sworn to by Carlos Edwards, Chilean charge d'affaires and consul general to the republic of Panama and Chilean consul to the United States in the Canal Zone, alleged the issuance on or about April 21, 1923, of warrants in the republic of Chile for the arrest of the appellants on a charge of murdering Joseph Lipshic at Los Andes, Chile, on or about April 21, 1923. Thereupon the second of the habeas corpus proceedings was instituted, which resulted as above stated. On October 29, 1923, a hearing was had in the extradition proceeding instituted by the filing of the last-mentioned complaint. That hearing resulted in the court adjudging, on October 29, 1923, that the crime of the murder of Joseph Lipshic was committed at Los Andes, in the republic of Chile, on or about the 21st day of April, 1923, that there is reasonable, probable, and good cause for believing that the appellants are guilty of said crime, and that they be committed to the custody of the appellee, there to remain pending action in the premises by the Secretary of State of the United States. Following the making of that order the third habeas corpus proceeding was instituted, and resulted as above stated. The appellee's return to the writ of habeas corpus issued in that proceeding stated that he took the appellants into custody under and by virtue of the commitment warrant issued in pursuance of the above mentioned order of October 29, 1923, and that he 'still has them in his custody solely by virtue of said warrant of commitment, and not otherwise.'

It was made to appear that the discharge of the appellants from custody under the warrant issued in the first instituted extradition proceeding was occasioned by the facts that the first requisition for their surrender was addressed by the Chilean authorities to the republic of Panama, instead of to the United States, and that the required evidence of their criminality was not produced within the time, two months, fixed by article 4 of the extradition treaty between Chile and the United States (32 Stat. 1850) as the limit of the period of detention under a provisional arrest in extradition proceedings. It was also made to appear that at the time of the discharge of the appellants from custody under the warrant issued in the second extradition proceeding, and of the institution of the third extradition proceeding, a requisition for the surrender of the appellants, and accompanying formal documents in support thereof, had been sent from Chile to the Chilean Embassy at Washington on September 6, 1923, and that as soon as such papers had been received and examined by the Department of State they would be forwarded for presentation to the District Court of the Canal Zone. That requisition and the documents accompanying it were before the court at the hearing in the third extradition proceeding.

None of the appeals from the several orders made in the habeas corpus proceedings had the effect of terminating or suspending the court's power or jurisdiction to act in an extradition proceeding which was pending when such appeal was taken. The action of the court in remanding the appellants to the custody of the appellee upon the discharge of each of the habeas corpus writs was in pursuance of the provisions of rule 33 of this court. No order staying the proceedings under which the appellants were detained was made or applied for. The appeals were allowed upon the appellants giving cost bonds, which did not purport to have the effect of superseding or staying anything. Such appeals did not operate to stay the extradition proceedings. Ex parte Green (D.C.) 165 F. 557; 29 Corpus Juris, 190.

The detention of the appellants under any warrant or action of the court in the first and second extradition proceedings has ceased. The above set out part of the appellee's return to the writ issued in the last-instituted habeas corpus proceeding was not traversed or impeached in any way. That return explicitly shows that the detention of the appellants which was brought into question by the appeal last sued out is solely by virtue of the warrant issued in pursuance of the order made on October 29, 1923, in the third extradition proceeding. The questions raised by the two appeals which were first and second in order of time have become moot, as the detention of the appellants which was the subject of complaint in those cases has ceased. This court will not inquire into the propriety of rulings made in a habeas corpus proceeding instituted for the sole purpose of impeaching the rightfulness or legality of a detention of the appellants on a disclosed ground which no longer exists; the sole cause of their detention at this time being a subsequently made order and process issued in pursuance thereof. The detention of the appellants which is complained of in the case which was brought to this court by the last sued out appeal being the only one which is now in existence and subject to be complained of by the appellants, and the questions raised in the cases brought here by the other two appeals having become purely moot, the appeals in those cases, numbered in this court 4228 and 4240, respectively, will be dismissed.

It is contended that the discharge of the appellants from custody on July 28, 1923, after they had been held for two months under the provisional detention warrant issued in the extradition proceeding instituted in May, 1923, without a formal requisition for their surrender, accompanied by the necessary evidence of their criminality, being produced, had the effect of depriving the court of power or jurisdiction to order the detention of the appellants in the same or another proceeding instituted in pursuance of a request for extradition based upon substantially the same criminal charge which was disclosed in the original extradition proceeding against them. This contention is based upon the following provision of article 4 of the above-mentioned treaty:

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

The language of that provision indicates that the sole purpose of it was to prescribe the length or period of time a provisional arrest or detention should be effective, in the absence of the production of a formal requisition for the surrender of the fugitive, accompanied by the necessary evidence of his criminality. It does not purport to forbid the issuance in one proceeding of more than one order or warrant for the provisional arrest or detention of the fugitive, or the institution of successive extradition proceedings founded upon the same criminal charge.

In this connection the counsel for the appellants rely on the decision in the case of Ex parte Reed (D.C.) 158 F. 891. Reed was detained under a warrant for his provisional arrest and detention issued in a proceeding seeking his commitment for extradition to Mexico. Our extradition treaty with Mexico contains a provision similar to the above quoted one. Reed's application for a discharge was made after the expiration of the time for which, under the terms of the treaty, the provisional warrant of arrest was effective. The action of the court in discharging him was in line with that which was twice taken by the court below. That the opinion rendered in that case was not intended to have the meaning now attributed to it in behalf of the appellants is persuasively indicated by the following footnote which was made a part of the report of that case 'Note.-- Between the date of filing the above opinion and the date of signing an order discharging the prisoner, the documents upon which the claim for extradition was founded arrived...