In re OOLOORO. IJI. re OIENll'UlllGOa. In re BUSTAMANTE. (District Court, N. D. California. . Before MORROW, District JudSe, slttine as a Committing Magistrate. September 4, 1894.)
Nos. 11,095-11,099. By the treaty between the UJlitedStates and Salvador, they agree to deUtell tip persons who, .having been convicted or charged with certaln speciftedclimes committe4 within the jurisdiction of one of them, shall asylum or be found withintheterritolies of the other. Rev. St. U. s,' ·.5270 (Act Aug. 12, 1848), provides that, whenever there Is a treaty foreitrad1tion betweentlie UnitedStlites and any foreign government, any:jU8tlCe of the supreme court, circuit or district judge, etc., may, on complaint under oath charging any person found In any state, district, or having the jurisdiction of such foreign government, any erlme provided for by such treaty, issue his warrant for the apprehension of the person so charged, that he may be brought before him, to the end that the evidence oferlminality may be heard and consid;etc. Held, thatthe jurisdiction of such justice or judge, sitting as & comlI\ittln/r magistrate in a case in Which citizens of and fugitives from SalvlUlor are charged with extraditable. crimes, is in no way atrected by, all.dhew'lll not inquire into, the manner In which the persons so charged came;or were brought into the United States.
Applications for the extradition of Antonio Ezeta, Leon Bolanos, Jacinto 0010000, Juan Oienfuegos, and Florencio Bustamante, under the treaty between the United States of America and the republio of Salvador. Plea to jurisdiction. Plea overruled.
The defeJld8Jlts In the'above cases sought refuge on June 6,1894, on board the United States steamer Bennington, at the port of La Llbertad, Salvador. They requested an asylum untll the arrival of the steamer San BIas, on Its way to Panamli'. Antonio Ezeta, one of the defendants, was the commander In chief of the government forces, and the acting president ot the republic, by reason of the fI1ght of hiB brother, Don Oarlos Ezeta, who was the regularly constituted president. The otller defendants all occupied mllltary positions under Genera.l Antonio Ezeta. They had been unsuccessful In suppressing a revolution against the then existing government, and had retreated fl'om the Interior to the port of La Llbertad, where they arrived with but a few hundred men, and closely pursued by the fol'ces of the Insurgents. Their request fol' an asylum was granted, and also as to 12 others who accompanied them, but these latter persons are In no wise connected with these proceedings. Three days later the steamer San BIas arrived, at La Liberfad. when the commandCl' of the Bennington pl'oceeded to. make arrangements for the transter of the fugltlves on board.the vessel. The arrangements were Interrupted by commissioners, representing the successful revolutionary party, requestIng that they sbOttld have an opportunity to make a demand for the extradl, tlon of the fugitives on charges of murder, arson, robbery, and rape. The fugitives were accordingly detained on board the Bennington, and, in view of the disturbed condition of f!,trlllrs in Salvador, this concession was deemed by capt. Thomas a courtesy to the new government, of some consequence, In the favorable Intluence It would probably have.upon the authorities, In securing the safety of Ameriean citizens residing In that country. Upon the arrival of the nextvessei at La Llbertad, bound for Panama, the fugitives again requested permission to leave the Bennington, that they might take passage on the departing lJteamer; but the request was refused by Oapt. Thomas, under instructions from the secretary of the navy. The Bennington remained at La Libertad until July 25, 1894, during which time no extradition proceedIngs, other than a demand by the government of Salvador for the surrender of tJ}e fugitives. appears, to have,reached Capt: Tl!.omas. vessel then pro-
IN BE EZETA..
eeeded north with the five fugitives on board who are the subject of the extradition proceedings. The Bennington arrived at Acapulco, Mexico, July 30th or 31st, where a request on the part of the fugitives to be allowed to leave the vessel was again refused. Leaving Acapulco August 2d, the Bennington arrived off the harbor of San Francisco on the 14th of August. She, however, did not enter the harbor of the port of San ,Francisco, under Instructions from the secretary of the navy, until the 23d of August, 1894. when warrants for the arrest of the fugitives were duly served by the United States marshal. The counsel for the defendants offered to show these facts In support of the plea to the jUrisdiction of the committing magistrate, claiming that the defendants did not seek an asylum in this country, but were brought into the United States against their will, and that they were not found here according to law and the treaty, and that, therefore, the court had no jurisdiction.
Pierson & Mitchell, for the republic of Salvador. Charles Page, Horatio S. Reubens, and Gonzalo De Quesada, for the defendants. Charles A. Garter, U. S. Atty., for the United States. MORROW, District Judge (orally). My jurisdiction in this case over the subject-matter and the persons accused is regulated and controlled by the treaty between the United States and the republic of Salvador, and the statute of the United States passed to execute such treaty and other treaties that may have been entered into by the United States. Therefore, in determining whether or not I have jurisdiction of the persons of the accused in this case, I must go to the law of the United States and the treaty, and determine from them what the jurisdiction is, and the limitations that have been placed upon it. The treaty has been referred to, and will again be cited upon this subject Article 1 of the treaty between this country and Salvador is as follows:
"The government of the United States and the government of Salvador mutually agree to deliver up persons who, having been convicted of or charged with the crimes specified In the following article, committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other."
Section 5270, Rev. St (Act Aug. 12, 1848), under which treaties of extradition are carried into effect by the officers of the United States, provides that:
"Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any justice of the supreme court, circuit judge, district judge, commissioner, or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath, charging any person found within the limits of any state, district, or territory, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of crimlnal1ty may be heard and considered," etc.
Under the provision of this statute and the treaty, complaints were made before me, and warrants of arrest issued. The warrants were placed in the hands of the marshal. The marshal has made return to these warrants that he found these accused persons in this district, and brings them before the court. As is admitted by both sides, primarily this gives me jurisdiction to inquire whether or not
:111·, been committed,; which,under the, !treaty, .requires idtraidition proceedings. Btit'it·is said ·on behalt:ot ·the accused should now bepernH;tted to introduce evi4ence tending tQ these persons were .D,ot in fact found within. the terrirory,,()f the United States, and did nota,eek an asylum within that Is it incumbent upon me,asa judge or committing mag· whether or not these persons were found withi.n States, or sought asyhlJil" under the circumstances which .thecoun,sel offers to prove by testimony? In support of the contentionthat I may make such an inquiry, a number of cases have been cited. I have not had an opportunity to examine all of them, but I think I understand the principles of law which have been declared, i;nthose' cases. , As has been properly observed by, counsel for the government of Salvador, there is a differenoe in·,the application of the law to interstate rendition cases and international extradition cases. This is clearIy,_tated by Judge JenkiJl.s in the case.of In re Cook, 49 Fed. 836. So far as the rendition of fugitives between the states is concerned, the proceedings are governed by section 5278, Rev. St., which procedure and fixes the limitation of the court with respect to such matters. With respect to. international extradition, I must consult the treaty, as I said before, and the acts of congress governing the proceedings, and. such principles of law as have been declared hy the courts. The question is the proper application of such principles of law... We must be very careful in co.nsidering the principles that have been declared by the courts, and apply them properly to facts to which they relate. The Case of Watts, reported 870, 14 Fed. ISO, has been cited. The Case of Rauscher, in 8 U. S. 407, 7 Sup.Ct. .234" has also cited. The Case of Rauscher follows after the Case. of Watts, and refers to the decision in that case. The Case of Watts was briefly this: Watts was indicted in this court for crimes arising under the laws of the United States. Watts fled to England. He was extradited, and brought back to this district. It was claimed on his behalf that he for which he had been extradited. could only be tried for Judge Roffman held that an extradited fugitive could not. under the treaty.of1842 between the United States and Great Britain. be held to answer for an offense for which his surrender couln not and would not havel)een granted. This question afterwarfis.,came up befQre the supreme court of the United States in the Case of Rauscher. In that case, Rauscher had been indicted Of murder committed upon the high within the upon admiralty-and maritime juI,'isdiction of the United States. He fled to He was and brought back to New York. The question in that case arose whether or not he' could be tried upon the' charge of Wating and ,wounding a sailor on board a ship, it being admitted that the saIl1e witnesses and substantially the$'a,n1e testimony delivered in the case of beating aud woundIng would have beend,eli.ve.red in the case of murder. There were other questions involved in that case. The supreme court of the United States, following the Cases of Watts and others, held that
the person extradited could only be tried for the crimes for whiclr he was extradited, unless, after having been tried for such crimesy a sufficient time had elapsed after being released for him to go to' another country. It had been said in that class of cases that the reason why a person could not be tried for any crime other than the one for which the extradition had been made was that the court would not go behind the fact that the person was brought into the district within the jurisdiction of the court, and, he being in the jurisdiction of the court,-having been brought there, if you please, without authorit,r of law,-nevertheless the court would not inquire, as to how be had been brought within the jurisdiction. Had that doctrine been denied in the Case of Rauscher, it would ba\-e established the principle for all such cases that such an inquiry would be made by the court, but the decision in that case was not placed upon that ground. This is made clear by the cuse of Kerr v. People of Illinois, 119 U. S. 436, 7 Sup. Ct. 225, immedi· ately following. The accused in that case had been indicted in Oook county, Ill., for larceny, the indictment including also of embezzlement. He had escaped, and gone to Peru. Extradition papers had been secured from the United States government, and agents of the were dispatched to Peru to bring back the accused. The agents did not make use of the extradition papers, but took the person on board of the United States steamer Essex, in the harbor of Callao. The steamer Essex carried him to Honolulu, where he was transferred on board the City of Sydney. in which he was carried a prisoner to San Francisco, in the state of California. After being- brought to California, he was then arrested on extradition papers that had been issued under the laws of the state; that is to say, he was taken upon interstate rendition papers,-the extradition papers procured from the United States not being made use of,-and he was transferred to the state of Illinois, where he was tded. His went to the supreme court of the state, and from there to the supreme court of the United States. It was claimed on bebalf of the accused, among other things, that, he had been kidnapped in Peru, and transferred by the United States steamer Essex, by force, to Honolulu, and from there on board of the City of Sydney, and brought to San Francisco; that he had been refused an opportunity, from the time of his arrest in Lima until he was delivered over to the authorities of Cook county, of communicating with any person, or seeking any advice or assistance, in regard to procuring his release by legal process or otherwise; and he alleged that the proceedings were in violation of the provision of the treaty between the United States and Peru. and his rights under the constitution of the United States. The case was very carefully considered, and, as I said before, it followed immediately aftler the Rauscher Case. In order to point the distinction between the two cases, it is proper that I should now refer to a portion of the decision in the Case of Rauscher. In that case the court say:
"Upon a review of these decisions"-in which the CasPfl of Watts and othel"ll are reviewed-"upon a review of these decisions of the federal and stAte
CQ1l.Irtli,towhich may be added the opinions of the distinguished writers whicb the earlier part of tbis opinion, we feel authorized to state that the weight of authority and of .80und principle are .favor of the proposition that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offenses described in that treaty,and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge. to l'eturnto the country from whose asylum he had been forcibly taken under those proceedings."
Following this case comes the Case of Kerr, the facts being as I have stated. The supreme court says, in concluding the opinion in the KerI' Case:
'''.rhe question of how far his forcible seizure in another country, and transfer, by vIolence, force, or fraud, to this country, could be made available to resist trial ill the state court for the offense now charged upon him, is one which we do not feel called Upon to decide, for in that transaction we do not see that the cOnstitution or laws or treaties of the United States guaranty him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answerwben brought within the jurisdiction of the court which has the right to try him for such an offense, and presents no valid objection to his trial in such court. Among the authorities which support the proposition are the following: Ex parte Scott (1829) 9 Barn. & C.446; Lopez and Sattler's Cases, 1 Dears. & B. Cr. Cas, 525; State v. Smith (1829) 1 Bailey, 283; State v. Brewster (1835) 7 Vt. 118; Dow's Case, (1851) 18 Pa. St. 37; State v. Ross (1866) 21 Iowa, 467; The Richmond v. U. S., I} Cranch, 102. .However this may be, the decision of thatquest!on is as much within the province of the state court as a question of common law or of the law of nations, of which that court is bound to take notice as it is of the courts of the United States; and, though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision. It must be remembered that this view of the subject does not leave the prisoner or the gOvernment of Peru without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnapping, and, on demand from Peru, JUlian, the party who is guilty of it, could be surrendered and tried in its courts for this violation of its laws. The party hiJll.self would probably not be without redress, for he could sue .Julian in an action of trespass and false imprisonment, and the facts. set out in the plea would, without dOUbt, sustain the action. Whether he could recover a sum sufficient to justify the action would probably depend upon the moral aspect of the case, which we cannot here consider."
The prisoner himself cannot set up the mode of his capture by way of defense. Mahon v. Justice, 127 U. S. 700-717, 8 Sup. Ct. 1204. It is contended that, while this may be the law with respect to a case where a person is brought from a foreign country to this country for trial, it is not applicable to a case where a person has been found in the United States, and is to be extradited or returned to the country from whence he CaIne. Still, the principles of law may be the same with respect to the two classes of cases. The fact is, there is no case in the books which presents precisely the same state of facts as we have in this case. As I said in the beginning, it is therefore necessary for us to apply to this case such principles of law as we may find applicable. The question is as to whether or not the principle involved in the Case of Kerr, as distinguished from the Case of Rauscher, is applicable to this case. It seems to me that, if anything, there is more of a limitation upon the judge in
IN BE EZETA.
inquiring Into how the persons came Into this jurisdiction in the present case than there would be in such a case as that of Kerr, and that the question, under this treaty and under the law, is simply for me to determine whether or not these defendants have been found here, and whether or not it is reasonable to believe they have committed the crimes charged against them. Let us see what position we would be in if we extended our investigation any further. The respondents propose to show, as I understand it, that they have been outraged by the executive department, by being brought to this country by force and against their will. The United States is not a party to the proceeding now before me. So far as these proceedings are concerned, it is between the republic of Salvador and these defendants. By the law of congress and by the treaty, the republic of Salvador is permitted to come before me, and say that these persons have been guilty of crimes in Salvador, and that, by an agreement which has been entered into between the United States and Salvador, they are entitled to come and have these persons returned to the country from whence they came. The United States simply furnishes the process, and furnishes the machinery for these proceedings. It is in accordance with the enlightened administration of law allover the world that criminals should be extradited for those crimes which are recognized as crimes by all nations. Therefore, the government of the United States simply furnishes the machinery for the extradition of persons charged with such crimes. It is not a party to these proceedings. If the United States is to be a party,-if it is to be charged here with having committed an outrage on these persons,-it should come before me, and should have an opportunity of saying whether or not it was proper for the commander of this vessel to take these parties. But that is not the position. That is not the fact. The United States is not before me, and these accused persons propose to show that they have been brought here by force by the United States in this case, and perhaps it might be, in some other case, by some German or British vessel, or some other power or party. It occurs to me that that plea is outside of the case. If the United States has done these parties an injustice, which I do not admit, undoubtedly the government of the United States will make reparation for it. If I should hold that these persons have committed a crime within the republic of Salvador, and should extradite them, the proceedings will be certified to the secretary of state for the action of the executive dep:wtment. "'Whether, upon such certificate, the executive will extradite these persons, is a matter entirely in the judgment and discretion of the president of the United States and the secretary of state. I may hold that they have committed all the crimes charged against them, and that they should be extradited, and that they come within the treaty, but there is then no obligation resting on the president of the United States or the secretary of state to return them to Salvador. They may review the evidence in the case, and conclude that these crimes charged are peculiarly political offenses, and therefore within the cognizance of the executive department of this government to (',()nsider, no matter what I may determine; so that, this case being eel'-
tided to"'thein'esident of the United States and secretary of state. if they deterDline that these partiea"have been improperly brought within this jurisdiction, it is pecpilJiarly within the province of the secretary of· state and the president to so determine;. and to act in accordance with their judgment in that respect. That this is the proper view to take of the situation in this case, and of the decisions that have been rendered in the various cases tha t have been cited, I think is fttlly sustained by avery able article in the Amer1ran Law RevieW', for the month of august of this year, entitled "The Right to Try: an Extradited Fugitive for an Offense Other than That Specified'iIi the Extradition Proceedings." This article is by Ardemus Stewart, of Philadelphia. It is subject to the criticism that it refers to the question of trying a fugitive for a crime other than tha:t for which he was extradited; but, as I said before, I think the prtnclples of law are applicable here. Mr. Stewart reviews all of the cases that have been cited,aJid many others. He says:
"It pri'nciple of criminal law that a court which has obtained jUrisdiction of the person of the accused wUl not inquire Into the means by which: thatjurla(llction was acqUired. The mere fact of jurisdiction is all with Is concerned, .As was .said above. a fugitive wbo has been kidntlppedln a foreign country, and brought, forcibly and against his will. Into the jurISdiction where he stands accused,will not be released on that ground; although the act ot kidnapping Is ,an offense against the government within wbosetel'ritory he:ll!found, as waH as a plain violation of his personal right to free40m by ,due process of law. So, too, the fact that an lirre\lUs by fraUd, or the employment of other illegal means to bring the'crimInal within the jurIsdiction., will not entitle him to discharge. Whatever, :Dlaybe the 1l1egaUty· of the arrest In the place where made, as soon al!. is brought, :in pursuance of it, within the jurisdiction of the proper court, that attaches, and the subsequent proceedings are based 'tJIx)'n that, without regard to the first arrest When, therefore, .the court has thetugltlve within: its juris.diction, it has a perfect right to deal with him as far as its own lllWS permit, regardless of the fact that by so doing it may cause poUticalcpmplicatlons with the surrendering government. The judiciary h.ave nothing to do with the political relations of the government, these belonging wholly to the domain of the executive, as was acknowledged by JtJstlce Gray In his ooncurrlng opinion in the Rauscher Case."
It seems to me the law p.ere stated is applicable to the case before me; peculiarly so may be the evidence in this case, as interpol!\ed in liiIupportof this plea, it relates entirely to political matters, or to matters coming within the jurisdiction of the political department of the government. I do not tbink, under any circumstances, it is proper for me to enter into an inquiry as to the conduct of a war vessel of the United States. In·· this case it appears, SQ far as the testimony has gone, that the was from this country to Salvador to protect American interests; .that she proceeded to execute the commands of tbeexecutive department of the government. While there, persons came on board the vessel, flying from the opposing 'in. sight, and took refuge on board this vessel. It might be said with much force that when these persons took refuge on board oian .American man-of-war, they were flying to territory of the,United States, and l;leeking asylum in the territory of the United It has been sa.idthat the deck of an American
pnblic vessel is the territory of the United States. Then, when the fugitives came on board the Bennington, they camt:: seeking asylum. "The right of asylum is frequently claimed by refugees, not only on the actual ,territory of a foreign state, but on board vessels belonging to that state, and even on board merchant vessels carrying its flag. A distinction must be drawn here. It is clear that, since a man-of· war is part of the public force of an independent state, and represents that state, in some respects, wherever it floats the national colors, it is, by a fiction of international law, considered a portion of the foreign territory to which it belongs. Hence, all nations admit, without difficulty and without any kind of restriction, the principle of exterritoriality in favor of the military marine, and waive, with respect to it, the right of searching for, pursuing, or claiming the persons who, having violated the civil or political laws of the country, have succeeded in sheltering themselves under the flag of a foreign man-of-war." Calvo's Dictionnaire de Droit International, . Public, et Prive. But it is said that when these fugitives went on board the Bennington they did so with the understanding that they would be transferred to another vessel. When a fugitive seeks an asylum in another territory, it is not for him to make conditions. As well might a person come into this country, and, stepping upon one of our docks, say: "I have come here seeking an asylum, but I want it distinctly understood that I must be transferred immediately to British Columbia, or some other territory. I am not to remain here." The political department of the government would say: "If you come seeking an asylum in this country, you COme seeking it on such conditions as you find. We make no agreement with persons under such circumstances." 80 it maybe said with respect to persons coming on board an American man-of-war. When they come there they are subject to the rules governing the vessel,-to the directions that may he given to the officer in command,-and it is not for fugitives to say whether they shall be placed on shore, or on another vessel. 80, there is even much in this view of the case opposed to the plea of jurisdiction. At all events, on the whole case, as it appears to me, without entering into a critical review of these cases in detail, which I have not had the time to examine carefully, I think the principle of law is as I have stated. The plea to the jurisdiction is therefore overruled, and the objection to the evidence is sustained. Mr. Page: We had hoped that we might be allowed to take this testimony, in order that when the case is certified, if it be necessary to certify it, these facts might he included in the case presented to the political department. THE COURT: I have considered the possibility of a motion of that kind being made. In view of what I have said,-that this plea is peculiarly one that addresses itself to the executive department, and if I shall hold these persons as haying come within the provisions of the treaty, and therefore to be extradited, that question may be reviewed by the executive department upon such evidenc t-
I· bavedete,rmined, in case you make that motion, to allow th'e testimony to betaken, and certify it with the other evidence in' the case.
In re EZETA. In re BOLANOS. In re COLOCHO. In re BUSTAMANTE.
In re CIENFUEGOS.
, (District Court, N. D. California.
September 22, 1894.)
INTERNATIONAL EXTRADITION-PRELIMINARY PROOF.
Rev. St. U. S. § 5270, relating to extradition, provides that if the committing magistrate deems the evidence su1liclent to sustain the charge, under the proper treaty, he shall certify the same, etc. The treaty between the United States and Salvador provides that fugitives from justice shall be delivered up only on such evidence of criminality as, according to the laws of the where the fugitive is found, would justify his commitment for trial if the crime had been there committed. Rev. St. U. S. § 1014, provides that persons charged with crimes against the United States may be arrested and imprisoned or bailed "agreeable to the usual mode of process against offenders in such state." Pen. Code Cal. § 872, provides that if it appears public offense has been committed, and there is sufficient cause to believe defendant guilty theroof, the mfrgistrate shall make an orderto that effect, and that defendant be held to answer. Held, that in the el!amination of persons found in California, charged with being fugi· tives from the justice of Salvador, the evidence of criminality must con· form to, and be weighed and judged by, the laws of this country. and particularly the laws of California, and that the evidence of criminality which will justify holding the accused need be such only as ordinarily obtains at a preliminary examination, and amounts to probable cause, or such as would justify a cautious man in believing the accused guilty.
SAME-EXAMINATION OF ACCUSED-DEPOSITIONS-WHEN ADMISSIBLE.
Act Aug. 3, 1882 (22 Stat. 216) § 5, provides that any depositions or other papers, or copies thereof, shall be received in evidence on the hearing of any extradition case under Rev. St. U. S. tit. 26, if they are properly and legally authenticated so as to entitle them to be received for similar purposes by the tribt'nals of the foreign country from which the accused shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that they are authenticated in the manner required by this. act. that papers purporting to be depositions, so certified, are admissible on such hearing, though the recitals contained in 'the introdUCtory part thereof show that they are mere statements, and not depositions.
J. C., a military officer of Salvador, was accused of attempt to murder one A. in front of the latter's residence in Salvador, while Carlos Ezeta was president, and Antonio Ezeta was general of the army, and four months before the revolution of 1894. Q., a police officer, testified the day after the alleged attempt that he heard several shots while near A.'s residence, and saw three persons running; that he found J. C. and another person together; that he captured J: C., but the other person escaped; that J.e. had a revolver in his hand, from which three shots had been fired by him at A.; and that he could not identify the persen who was with J. C. The record contained a statement by J. C., deslb'1lated as a deposition, made to , the authorities upon his arrellt, to the effect that while he, one C., and three Qtl1ers were passing the porch ,of A.'s residence, A. shot at the group; that e. iIDltantly fired a shot, and 'afterwards two more; that 'declarant fired two shots at A.; that his companions scattered, and he appeared before Q., handed him his revolver, and told him he had fired two shots.at A.; that he wasCGIlstantly escortillgO., by o,rder of Gen. Ezeta.
SAME-ATTEMPT TO MURDER-EVIDENCE-SUFFICIENCY.