Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1909
File No. 16948/23.
The Acting Secretary of State to Ambassador Thompson.
Washington, April 10, 1909.
Sir: I have to acknowledge the receipt of your telegram of the 9th instant in regard to the detention of Juan de Dios Rodriguez, whose extradition from Mexico is desired.
Pursuant to your request that the department give you its reason for contending that a fugitive should be rearrested after the expiration of the period of 40 days’ detention, there is inclosed herewith a memorandum by the law officer of the department, in which this question is discussed.
As the department has already indicated to you in its telegram of April 7, it regards this matter as one of grave concern. Unless some provision can be made by which fugitives can be rearrested in cases such as the present, the department is apprehensive that owing to the great distances in the United States and in Mexico, it will in many cases be impossible for the United States to secure the extradition of criminals who have taken refuge in Mexico.
You will present the questions involved to the Mexican Government and urge that they be given serious consideration. In this connection you will also direct attention to the liberal practice governing this matter in the United States, a practice the advantage of which has not infrequently been extended to the Government of Mexico, and you will endeavor to secure from that Government such an adjustment of this matter as will permanently remove the difficulty which thus threatens the efficacy of our extradition treaty.
I am, etc.,
memorandum regarding the arrest of a fugitive after the expiration of the period of provisional detention.
Washington, April 10, 1909.
In his telegram of April 9, 1909, concerning the case of Juan de Dios Rodriguez, Minister Thompson makes the following request:
May I have reasoning of the department the question of rearrest after 40 days’ detention, that I may present it to foreign minister, or President if minister continues sick?
The inquiry has reference to the case of Rodriguez, who was provisionally arrested on or about December 14, 1908. Under the treaty the provisional period of detention expired on or about January 23, 1909. The formal papers, owing to the delay of the officials in Texas, did not reach the department until March 29. They were forwarded to our ambassador at Mexico on March 30, 1909. The period of preliminary detention had therefore expired even before the papers left the department.
Concerning this question of rearrest after the expiration of the first period of provisional detention, Ambassador Thompson states, in the telegram already quoted from, that:
The foreign office has always contended that it should not hold a man beyond the 40-day period stipulated in treaty, and that he could not be rearrested on same charge; but, under one pretext or another, they have always before held prisoners until papers have been presented. The present Sub-Secretary has not, in the Rodriguez case, seemed willing to do anything since amparo was commenced, the men being held without protest before.
The position of the Mexican Government in refusing to rearrest the fugitive upon the same charge after the expiration of the first period of provisional detention, seems to be not only unwarranted so far as the stipulations of the treaty are concerned, but is also not in accord with the uniform practice of this Government, a practice of which Mexico has often availed herself. That the treaty provisions do not authorize the attitude which the Government of Mexico assumes in this matter would seem to be apparent from a consideration of the articles which contain the stipulations that control the procedure.
Article X of the treaty between the United States and Mexico provides:
On being informed by telegraph or otherwise, through the diplomatic channel, that a warrant has been issued by competent authority for the arrest of a fugitive criminal charged with any of the crimes enumerated in the foregoing articles of this treaty, and on being assured from the same source that a requisition for the surrender of such criminal is about to be made, accompanied by such warrant and duly authenticated depositions or copies thereof in support of the charge, each Government shall endeavor to procure the provisional arrest of such criminal and to keep him in safe custody for such time as may be practicable, not exceeding 40 days, to await the production of the documents upon which the claim for extradition is founded.
This period of 40 days’ detention is computed from the time the fugitive is apprehended as a result of the request of the diplomatic representative.
As has been already indicated, the question in the present case is whether or not, under the treaty, the United States is entitled to have a fugitive from justice rearrested in Mexico upon the same charge as that first preferred, where the period of provisional detention, as prescribed in Article X, has expired.
In this connection the following articles of the treaty should be borne in mind:
In Article III it is provided that—
Extradition shall not take place in any of the following cases:
1. When the evidence of criminality presented by the demanding party would not justify, according to the laws of the place where the fugitve or person so charged shall be found, his or her apprehension and commitment for trial, if the crime or offense had been there committed.
Under this provision it is entirely clear that either of the contracting Governments would not be justified in refusing to take the steps necessary to secure the extradition of a fugitive unless and until it had been determined that the evidence submitted by the demanding party “would not justify, according to the laws of the place where the fugitive or person so charged shall be found, his or her apprehension and commitment for trial, if the crime or offense had been there committed.” These are the express stipulations of the treaty itself. Anything less, therefore, than a determination that the evidence is, under this [Page 419] stipulation, insufficient, would not satisfy the obligations of the treaty, and therefore would not relieve the fugitive from liability to extradition under the treaty provisions.
It is provided in Article VIII that—
The formalities being fulfilled, the proper executive authority of the United States of America, or of the United Mexican States, as the case may he, shall then cause the apprehension of the fugitive, in order that he or she may be brought before the proper judicial authority for examination. If it should then be decided that, according to the law and the evidence the extradition is due pursuant to the terms of this convention, the fugitive may be given up according to the forms of law prescribed in such cases.
These are the provisions governing extradition between other than border States.
Article IX provides for the procedure as between border States. The language used is, however, essentially the same, and is as follows:
* * * such respective competent authority shall thereupon cause the apprehension of the fugitive, in order that he may be brought before the proper judicial authority for examination.
These stipulations are sufficiently clear to show that the determination regarding the sufficiency of the evidence as required by Article III is to be made by the “proper judicial authority,” at a formal hearing which shall be given to the prisoner. It would therefore seem, from these provisions, to be entirely clear that the extradition rights guaranteed by the treaty to the respective parties are not in any case exhausted until the competent judicial authority of either Government has passed upon the evidence of a particular case and has pronounced it such as would “not justify, according to the laws of the place where the fugitive or person so charged shall be found, his or her apprehension and committent for trial, if the crime or offense had been there committed.” In other words, the treaty contemplates and provides that in every extradition proceeding the fugitive shall first be apprehended, and that he shall then have a hearing before the proper judicial authorities of the Government within whose borders he is found. Now, the mere arrest of a fugitive is in no sense a hearing upon the evidence of his criminality, as submitted by the demanding Government. It is but a preliminary thereto, and obviously is only and merely for the purpose of securing the fugitive in order that he may not escape and that he may be present at the hearing. This is clearly shown by the facts that in the first instance the fugitive is arrested and detained without the submission of any evidence whatever but upon the statement of the representative of the demanding Government that he is wanted for a crime specified, and that formal requisition, accompanied by proper papers, will in due time be made. It is, of course, obvious that the arrest is not and can not be an adjudication concerning the guilt or innocence of the party charged. Indeed, it is first made in entire disregard of the party’s actual guilt or innocence and upon mere suspicion, and, as just stated, is made in order that he may be present at a hearing held for the purpose of determining whether or not there is probable ground to believe that he has been guilty of the offense which is charged against him.
Inasmuch, therefore, as the extradition process is not exhausted until there has been a hearing and formal determination upon the question of the probable guilt or innocence of the accused, there seems to be nothing to justify the position that a fugitive may not, upon the expiration of the first period of detention, be rearrested on the same charge and held pending the production of the formal requisition and the accompanying documents. Such indeed is the rule uniformly followed in the United States.
It is the well-established practice in the United States to cause the rearrest of a fugitive on the same charge, not only where the first period of provisional detention has expired without the production of the requisition accompanied by the necessary formal documents, but also even where the fugitive has been arrested, had his hearing, and has been discharged by the commissioner.
As pointed out in the department’s telegram of April 7 to Ambassador Thompson, the officers of this Government have recently rearrested fugitives from the justice of Mexico where the period of provisional detention had expired before the proofs had been received from the Government of Mexico, and the cases of George Deering Reed, an American citizen, and of the Matus brothers were pointed out as illustrating this fact. In the case of George Deering Reed the impropriety and illegality of the rearrest was specially argued before the commissioner by attorneys for the defense, and the commissioner squarely held that [Page 420] such a rearrest was proper. Attached hereto as Appendix A1 is an extract of the record of the proceedings in which this question is discussed.
Moreover, as stated by Mr. Van Dyne in his little booklet on Extradition (see Cyc, vol. 19, p. 50 et seq.):
Where an alleged fugitive has been discharged, a new complaint may he made and a new warrant issued for his arrest, with a view to a reexamination of the case. (10 Op. Atty. Gen., 501; 6 Op. Atty. Gen., 91. See Miller’s case, 5 Phila. (Pa.), 289; in re Kelly, 26 Fed., 852; In re Macdonnell, 16 Fed., Cas. No. 8, 772, 11 Blatch., 170.) In Canada the same doctrine obtains. (Reg. v. Morton, 19 U. C. C. P., 9; In re Parker, 10 Can. L. T., 373.) Where an extradition commissioner has committed the accused for extradition and the commitment has been set aside on habeas corpus for errors on the examination, the accused is not necessarily released, but may be held under the warrant of arrest with a view to a new examination before the commissioner. (In re Farez, 8 Fed. Cas. No. 4645, 2 Abb., 346; 7 Blatch., 345; 40 How., Pr. N. Y., 107.) Where the first warrant of arrest is of questionable regularity, and no order is entered upon the first complaint and warrant under the statute (U. S. Rev. St., 1876, §5270, U. S. Comp. St., 1901, p. 3591), a second warrant may be issued. (Fergus, Petitioner, 30 Fed., 607.) In Canada a prisoner who has been discharged upon habeas corpus because the extradition commissioner had no jurisdiction to act judicially on the complaint laid before him may be rearrested and tried before a commissioner having jurisdiction over the complaint. (Ex. p. Seitz, 3 Can. Cr. Cas. 127, 8 Quebec, Q. B., 392.)
The following extracts from the cases cited by Mr. Van Dyne would indicate the general attitude which our courts have taken regarding this matter.
In an opinion regarding the Calder case, dated August 31, 1853, Attorney General Cushing used the following language:
One thing only, it seems to me, can be done in behalf of the British Government. Mr. Crampton may, undoubtedly, cause a new complaint to be entered against Calder, and apply for a new warrant of arrest either with or without a new mandate from the President. Calder has not been tried. He has been examined by a magistrate, and the evidence is adjudged to be insufficient to justify his extradition. But, on a new complaint, he may be examined anew by the same or by another magistrate, and the exhibition of additional evidence may lead to the conclusion of his criminality and the certificate thereof to the President. (6 Op. At. Gen., 91–97.)
The same principle is expressed by Attorney General ad interim Coffey in connection with the extradition of Trangott Muller, July 6, 1863 (10 Op., 501–596).
In the case of Macdonnell, 1873 (11 Blatch., 170–179), Judge Woodruff discussed the matter as follows:
It is, however, insisted that the discharge from arrest under the first warrant was such an acquittal as precluded another arrest under the second warrant. The reasons which we have given for our view of the other points, in the order in which they were presented by the counsel, lead necessarily to the answer which we give, decidedly, that it has no such legal effect. Not only so; we purposely refrain from even affirming, or admitting, that, if the offense charged had been identical in both complaints, the prior discharge would have operated as a necessary legal bar to a subsequent arrest, commitment, and surrender, when the demanding Government was able to produce proper evidence to sustain it. Be that as it may, we do hold that such discharge has no legal operation or effect upon proceedings for the surrender of a fugitive, based upon complaint of a distinct offense. The Executive may be called upon to guard against abuse, or against oppressive proceedings. The Executive may, perhaps, be justified in saying to the demanding Government: “You have had your day. You have had your opportunity. We have, in good faith, given you the benefit of the instrumentalities pointed out in the treaty, in order to effect the surrender of the alleged fugitive whom you demand; but we will see to it that needless or vexatious prosecution be not indulged in.” On the other hand, we unhesitatingly say that if the Government be satisfied that a failure to procure a surrender in the first instance was due to circumstances explainable, consistently with good faith, and consistently with proper respect to our Government, and the case be such as properly appeals to the sense of justice which this Government always entertains, a further mandate may be issued on a second requisition, and the proceedings that will follow, conducted by the judicial officers of the Government, will be legal. Indeed, on that subject, we apprehend that the magistrate before whom the prisoner is brought has no right to entertain the question. And, in reference to this point, we add that there is no necessary legal obligation on the part of the demanding Government to place in its original requisition all the offenses of which it may suppose that the fugitive has been guilty. What may, in fairness and candor, be due between the two Governments, and whether the President would grant further and successive mandates, where the proceedings were rendered unnecessarily vexatious, by withholding the information which the demanding Government possesses, and so instituting several successive prosecutions, when one is sufficient, is, we think, a question for the Executive, and not for the court or the commissioner.
In the case of In re Kelly, 1886 (26 Fed., 852), Judge Brewer recognized the principle that a fugitive may be rearrested after having been once discharged by the committing magistrate, but laid down the following limitations thereupon:
We do not assent, however, to the proposition that was suggested that these preliminary examinations for local offenses may be continued indefinitely. We do not believe it is [Page 421] true that a man can be subjected time after time to the annoyance, vexation, and harass of repeated examinations. And while it may be technically true that one examination is no bar to another, yet whenever it becomes apparent that the examinations are instituted and carried on, not with a view to the furtherance of public justice, but with a view of enforcing personal spite and private malice, no doubt it is in the power of the court at any time to interfere and stop them. It is unnecessary to wait until the close of an examination, and then, if the accused is bound over, to interfere; but whenever, in a case of a preliminary examination for a local offense, it is apparent that the same is carried on with the purpose of gratifying personal spite, or for the annoyance and vexation of the party arrested, we think a court has power to take hold of it with a strong hand; and so in cases where proceedings are instituted under and by virtue of treaty stipulations, and it is apparent that the arrest is simply to gratify the personal malice of an individual or of the authorities of a foreign nation, I have no question as to the power and duty of the court to lay strong hands upon those proceedings, and to stop them altogether. But the mere fact that one examination has failed by reason of a lack of sufficient testimony is no bar in law to a second, and the court ought not to interfere until it appears that the second is instituted for the purpose of private malice. We all know how often the administration of justice, it happens that a preliminary examination fails. The testimony first presented is insufficient; the officer is found not to have jurisdiction; the complaint is technically defective; and the proceedings fail. It would be an outrage upon justice if for any such reason as that there could be no further prosecution of one charged with crime, and equally, in extradition cases, a violation of the spirit, if not of the letter, of the treaty. It seems to us as if it is that this Government should say to a foreign nation: “True, we have agreed by solemn compact to return to you a man who is charged by a person duly authorized with having committed a crime, if the evidence of his crime is satisfactory, but in this instance we will not surrender him simply because on the first presentation of your case you have failed to make out a sufficient showing.”
(See also the case of Fergus, Petitioner, 1887, 30 Fed., 607.)
It will be entirely clear from the above that the right to rearrest a fugitive, either at the expiration of the period of provisional detention, or after a discharge by the committing magistrate upon a formal hearing, seems well established in the United States. The limitation upon the exercise of this right so far as has been suggested or expressed is only that it shall not be permitted where it is evident that the demanding Government is attempting to harass or oppress the fugitive.
It is clear that, unless fugitives are to be permitted to escape upon the merest technicalities, there must be some arrangement or provision by which the fugitive may be rearrested, either upon the expiration of the period of provisional detention or after his discharge upon insufficient evidence submitted in the first instance to the commissioner. Where distances are so great as in the United States and in Mexico, it is oftentimes absolutely impossible for the demanding Government to present the papers within the 40-day period. Unless, therefore, it is possible to rearrest a fugitive upon the expiration of this period, it is clear that in many cases fugitives will be able to escape just punishment for crimes which they have committed.
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