President ex rel. Caputo v. Kelly

AUGUSTUS N. HAND, Circuit Judge. The relator, Gennaro Caputo, was arrested on a warrant issued by a United States commissioner and held for extradition to France on the complaint of the assistant consul general of the French Republic in New York. Caputo sued out a writ of habeas corpus on grounds not now important which was dismissed by the District Court. See President of the United States v. Kelly, 19 F.Supp. 730. Its order was affirmed by this court pursuant to an opinion reported in 2 Cir., 92 F.2d 603. Caputo thereafter applied for another writ of habeas corpus contending that prosecution for the offenses for which extradition was sought was barred by the French statute of limitations. He had been charged in France with the murder at Marseilles on January 14, 1923, of one Marie Girere and of the attempt at the same time and place to cause the death of one Viola Sauveur. A judgment condemning him for the above offenses was entered in his absence on January 30, 1924, by the Court of Assizes sitting in Aix. Thus it was a judgment rendered by default or, to use the language of the French law, “par contumace,” and it in terms condemned him to death. The demand for the extradition of Caputo was made pursuant to the treaty with France, 37 Stat. 1526 et seq., and also pursuant to section 5270 of the Revised Statutes, 18 U.S.C.A. § 651, which governs,, proceedings in the United States for the extradition of persons who have committed crimes in foreign countries. The pertinent provisions are the following: Extradition Convention of January 6, 1909: “Article I. “The Government of the United States and the Government of France mutually agree to deliver up persons who, having been charged with or convicted of any of the crimes or offences 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: Provided That this shall only be done 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 or her apprehension and commitment for trial if the crime or offence had been there committed. “Article II. “Extradition shall be granted for the following crimes and offences: “1. Murder. * * * “Article III. “Requisitions for the surrender of fugitives from justice shall be made' by the diplomatic agents of the contracting Parties,’ or, in the absence of these from the country or its seat of government, they may be made by the consular officers. “If the person whose extradition is requested shall have 'been convicted of a crime or offence, a duly authenticated copy of the sentence of the court in which he was convicted, or, if the fugitive is merely charged with a crime- or offence, a duly authenticated copy of the warrant of arrest in the country where the crime or of-fence has been committed and of the depositions or other evidence upon which such warrant was issued, shall be produced. “The extradition of fugitives under the provisions of this treaty shall be carried out in the United States and in France, respectively, in conformity with the laws regulating extradition for the time being in force in. the State on which the demand iqr surrender is made. * * * “Article VIII. “Extradition shall not be granted, in pursuance of the provisions of this conven [789] lion, if the person claimed has been tried for the same act in the country to which the requisition is addressed, or if legal proceedings or the enforcement of the penalty for the act committed by the person claimed have become barred by limitation, according" to the laws of the country to which the requisition is addressed.” Section 5270 of the United States Revised Statutes, 18 U.S.C.A. § 651 : “Fugitives from the justice of a foreign country “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, or commissioner, authorized so to do by any of the courts of the United States, 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 criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken Before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” Prosecution for such offenses as those with which Caputo is charged is not barred by the laws of the place of asylum so that the provisions of article 8 of our Extradition Treaty with France do not apply. It is the rule in extradition proceedings between states of the Union that the defense of the statute of limitations is one for the demanding state to pass upon when the case comes to trial. Biddinger v. Commissioner of Police, 245 U. S. 128, 38 S.Ct. 41, 62 L.Ed. 193. It is argued that, because of the provision of article 8 and of the canon “expressio unius exclusio alterius,” the contracting sovereigns must have intended that only the statute of limitations of the country to which the requisition is addressed should be considered in extradition proceedings and that the application of the statute of the demanding state should be left for determination by the courts of the latter. We are, however, referred to certain decisions of foreign courts, particularly of the courts of The Argentine and of Switzerland, which seem to have held that extradition should not be granted upon the demand of a foreign state if it appears that the prosecution of the accused is barred by the statute of limitations of the demanding country. In this view a number of text-writers appear to concur, and in the extradition of one Vizcarra to Mexico, our State Department passed on the question whether, upon the evidence before the Commissioner, the crime was barred by limitation in Mexico. Digest of International Law, John Bassett Moore, vol. 4, p. 404. See, also, comment on Article 4 of Draft Code on Extradition, Research in International Law, Harvard Law School, 29 American Journal of International Law Supp. Jan.-July, p. 103. But we need not decide whether, under the treaty with France, the determination of the scope of the French statute of limitations should be left to the courts of that country and may assume that we should ourselves interpret it for the purposes of extradition, since we are convinced that on the proofs the French statute has not run. The following sections’ of the French Code of Criminal Procedure set forth the statutes of limitation which are thought by appellant or appellee to be applicable to the facts before us. Section 635, as translated in English, provides: “The punishment imposed by judgments in criminal matters shall be outlawed after twenty years from the date such judgments have been rendered. * * * ” Section 637 provides: “The public action and the civil action resulting from a crime of a nature carrying the death penalty * * * shall be outlawed after ten years from the date of the commission of the crime, provided no proceedings of investigation or prosecution have been instituted within said period. [790] “If in the interval proceedings of investigation or prosecution have been instituted not followed by a judgment, the public action and the civil action shall not be outlawed until after ten years from the last proceeding. * * * ” It is contended by counsel for the relator that the judgment rendered against him by the French Court of Assizes is no more than an indictment or charge, and accordingly that section 637, which outlaws prosecution after 10 years from the last proceeding, applies1 and that the action against him in France is barred. In support of this contention we are referred to two decisions in the Southern District of New York, namely, Ex parte Fudera, C.C., 162 F. 591, and Ex parte La Mantia, D.C., 206 F. 330, in which Judge Ward held that judgments by Italian courts in "contumaciam were to be regarded as charges rather than convictions of crime in respect to the requirements of our statutes regarding proof of probable cause in extradition proceedings. Chelmsford, L. C., reached a similar conclusion as to the nature of a judgment of conviction “par contumace” under the law of France in In re Coppin, L.R. 2 Ch.App. 47 (1866). See, also, Hyde International Law, vol. 1, § 327, pp. 59-91. Section 476 of the French Code of Criminal Procedure defines the rights of persons convicted “par contumace” as follows : “If the accused surrenders, or if he is arrested before the penalty is barred by prescription, the (judgment rendered par contumace and the measures taken- against him after the warrant of arrest or his appearance shall bé vacated as of right, and he shall be proceeded against in the ordinary form.” Yet, however vulnerable may be a judgment par contumace under the French rules of criminal procedure and ^however absolute the right of the accused to appear, have the judgment vacated and defend, the Court of Cassation held in the case of Semonin (December 5, 1861, D.P. 62 1, 399) that the statute of limitations applicable to such a judgment was 20 and not 10 years. The Court of Cassation spoke as follows: “ * * * the judgment * * * when rendered in contumaciam, has the effect of cutting off the period of limitations applicable to a public action and of substituting therefor the statutory limitation applicable to the punishment decreed by such judgment. * * '* “* * * the punishment decreed by judgment in contumaciam against Semonin * * * is not outlawed until twenty years have elapsed since the judgment in contumaciam was rendered. * * * * It was conceded on argument that the Semonin case correctly set forth the French law. But we are referred to decisions of The Argentine courts in Extradition of Mastrangelo (1897) 71 Fallos 182, Extradition of Orsini (1901) 90 Fallos 409, and Extradition of Viscussi (1907) 108 Fallos 181, all dealing with requests for extradition by the Kingdom of Italy where there had been an Italian judgment of conviction in contumaciam. In each case The Argentine court apparently applied the statute of limitations of the demanding state applicable to prosecutions rather than to judgments of conviction. It is true that in the present proceeding the French government submitted the proofs taken in France under which the judgment . par contumace was rendered, and not the judgment only. It is said that this shows that reliance was placed on the charge . against Caputo in the foreign country buttressed by proof of probable cause rather than upon the judgment of conviction. But the issue we have to deal with is not what proof of probable cause has been submitted as a basis for extradition but whether the judgment par contumace is outlawed. The relator relies on the statute of limitation of France and the French courts have held .that a judgment par contumace, however much it may resemble an indictment, has sufficient attributes of a judgment so that it is. not barred until after 20 years from the date of rendition. Its nature is thus explained in Dalloz — R.P.—Contumace No. 40: “The judgment in contumaciam is deemed as finally rendered and this not under conditions suspending its effectiveness to the time after the expiration of the 'period of statutory limitation, but on condition of repeal in the event of personal appearance of the person sentenced. The sentenced fugitive from justice is not sentenced on condition that the status of a fugitive sentenced in absentia shall continue for twenty years, but he is finally sentenced subject to the sentence being quashed in the event of personal appearance within the period of statutory limitation. In brief it is not the expiration of the period of limitation that causes the judgment to be followed by the [791] results it calls for but it is the personal appearance of the fugitive which retroactively annuls the effect produced by the judgment.” We are not concerned with completely rationalizing the process by which a judgment par contumace is in some aspects treated by the French law as a mere charge and in other 're'spects as a judgment, since we find that such a judgment is not barred for 20 years and that consequently the extradition" of Caputo should be allowed. Accordingly we hold that the writ of habeas corpus was properly dismissed by the court below. The order is affirmed.