84 S.Ct. 14, 11 L.Ed.2d 30

Supreme Court of the United States

Flor Chalbaud de Perez JIMENEZ for and on behalf of her husband, Marcos Perez Jimenez, Petitioner, v. The Honorable the UNITED STATES DISTRICT COURT FOR the SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION, and the Honorable William A. McRae, Jr., Judge Thereof, Respondents.

Aug. 23, 1963.

HEADNOTE:  Proceeding on application for stay of extradition. Held: by Mr. Justice Goldberg in chambers: where accused had instituted and pursued review of his extradition order, the two-month period after commitment in which he had to be delivered up for rendition to foreign government began to run from the time his claims were finally adjudicated and not from the time of the original commitment order which he was challenging. Stay denied.

[*14] Before Mr. Justice GOLDBERG in Chambers.

Petitioner, the former Head of State of the Republic of Venezuela, [FN1] applies to me for a stay of extradition pending review. The application is opposed by the United States and by the intervenor, the Republic of Venezuela through its Consul General. Petitioner contends that he must be released pursuant to 18 U.S.C. s 3188 [FN2] because he has not been “delivered  [*15]  up and conveyed out of the United States within two calendar months after * * * commitment” and because there was no “sufficient cause” for the delay. He alleges, moreover, that he was entitled to have this contention adjudicated by the state judge to whom he submitted the issue rather than by the federal court to which the Government submitted the issue. A brief re sume of the litigation leading up to the present application will suffice for purposes of assessing these claims.

FN1. The formal petitioner in this action is the wife of the accused. But since it is brought for and on behalf of the accused, he will be referred to herein as petitioner.

FN2. 9 Stat. 302, as amended 62 Stat. 824. “Whenever any person who is committed for rendition to a foreign government to remain until delivered up in pursuance of a requisition, is not so delivered up and conveyed out of the United States within two calendar months after such commitment, over and above the time actually required to convey the prisoner from the jail to which he was committed, by the readiest way, out of the United States, any judge of the United States, or of any State, upon application made to him by or on behalf of the person so committed, and upon proof made to him that reasonable notice of the intention to make such application has been given to the Secretary of State, may order the person so committed to be discharged out of custody, unless sufficient cause is shown to such judge why such discharge ought not to be ordered.”

On August 24, 1959, following a formal request for extradition by the Venezuelan Government, a complaint was filed, pursuant to 18 U.S.C. s 3184, [FN3] before a United States District Judge in Florida for the extradition of petitioner to stand trial in Venezuela on charges of murder, embezzlement, and related financial crimes. After a full evidentiary hearing, District Judge Whitehurst, sitting as an extraditing magistrate certified to the Secretary of State that petitioner was extraditable under the treaty between the United States and Venezuela. [FN4] The judge filed detailed findings of fact and conclusions of law. [FN5] He found the evidence insufficient to sustain the murder charges “in that it fails to show the necessary direct connection between the defendant and the commission of such murders.” He held the evidence sufficient, however, to establish probable cause that embezzlement and related financial crimes had been committed by petitioner for “private financial benefit,” and that such crimes were specifically encompassed by the extradition treaty and were not of “a political character.” On June 16, 1961, petitioner was committed “to the custody of the United States Marshal to await action by the Secretary of State.” [FN6]

FN3. 9 Stat. 302, as amended 62 Stat. 822.

FN4. The extradition treaty between the United States and Venezuela specifically included “Embezzlement or criminal malversation (of funds exceeding a designated amount) committed * * * by public officers or depositories.” 43 Stat. 1698 (1922).

FN5. The Court’s opinion, which is unreported, is reproduced in the petition for writ of certiorari, Jimenez v. Hixon, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415.

FN6. Section 3184 provides that if the extraditing magistrate “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.”

Petitioner filed for a writ of habeas corpus with the United States District Court in Florida attacking the extradition order on numerous grounds. After the submission of briefs and extensive oral argument by counsel, District Judge McRae rejected each of the contentions. [FN7] Petitioner then appealed to the United States Court of Appeals for the Fifth Circuit. That court on December 12, 1962, affirmed the dismissal of habeas corpus in a carefully considered opinion, which concluded, inter alia, that the crimes for which petitioner was being extradited were “common crimes committed  [*16]  by the Chief of State * * * in violation of his position and not in pursuance of it.” [FN8] Petitioner, who until then had been free on bail, was remanded to the custody of the Attorney General for incarceration pending extradition. Petitioner thereafter applied to this Court for a writ of certiorari, which was denied on May 13, 1963. 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415. At petitioner’s request, and pursuant to an order of The Chief Justice, entry of the final judgment was delayed pending the outcome of a petition for rehearing. Rehearing was denied on June 17, 1963. 374 U.S. 858, 83 S.Ct. 1867, 10 L.Ed.2d 1083.

FN7. See note 5, supra.

FN8. Jimenez v. Aristeguieta, 311 F.2d 547, 558 (C.A.5th Cir., 1962).

After this Court denied certiorari, petitioner applied to the Honorable Henry T. Balaban, a Florida state judge, for discharge from custody pursuant to 18 U.S.C. s 3188. The application, in the form of a petition for a writ of habeas corpus, alleged that the Secretary of State of the United States did not deliver up and convey the petitioner out of the United States within two calendar months after his commitment by Judge Whitehurst on June 16, 1961, and that the circumstances for failure to do so did not constitute “sufficient cause” for the delay. Judge Balaban ordered the United States Marshal to show cause why a writ of habeas corpus should not issue under 18 U.S.C. s 3188 and to keep the petitioner within the judge’s jurisdiction pending hearing and determination of the matter. A hearing was scheduled for May 27, 1963, and later postponed to June 26. On June 3, 1963, the United States appeared before Federal District Judge McRae, who had denied petitioner’s habeas corpus petition, and filed a motion in the form of a request for a clarification of an earlier order. [FN9] After a hearing and argument by counsel, the motion was granted on June 10, 1963, and the order was amended to provide in effect, that commitment for purposes of the two-month limitation of 18 U.S.C. s 3188 would begin if, and when, this Court denied rehearing of the petition for a writ of certiorari. On June 11 the United States appeared before State Judge Balaban with a copy of Federal Judge McRae’s order for the previous day and asked dismissal of petitioner’s application for discharge. Judge Balaban postponed consideration of this request until the June 26 hearing. After that hearing Judge Balaban issued a writ of habeas corpus against the United States Marshal to produce the body of petitioner at his chambers on July 11, 1963.

FN9. The order related to petitioner’s custody subsequent to the decision by the Court of Appeals on December 12, 1962, affirming the dismissal of habeas corpus.

On July 10, Federal Judge McRae, on application by the United States, issued an injunction staying the proceeding before State Judge Balaban. Petitioner then moved, in the Court of Appeals for the Fifth Circuit, for leave to file a petition for mandamus and prohibition directing the federal judge to permit the proceedings before the state judge to continue. This motion was denied on August 2, 1963. Petitioner then filed a formal notice of appeal to the Court of Appeals for the Fifth Circuit and unsuccessfully asked that court for a stay of extradition pending disposition of the appeal. On August 12, 1963, the Secretary of State executed the warrant surrendering petitioner to the Venezuelan Government. [FN10] Petitioner thereupon applied to me for a stay pending disposition by the Court of Appeals of the appeal which he has filed, and by this Court of a petition for a writ of certiorari which he proposes to file.

FN10. The following letter accompanied the warrant of surrender:

“August 12, 1963

“Excellency:

“I have the honor to refer to note No. 320, dated August 5, 1961, in which the Government of Venezuela formally requested the extradition of Marcos Perez Jimenez for the crimes of embezzement or criminal malversation, receiving money or valuable securities knowing the same to have been unlawfully obtained, and fraud or breach of trust, as specified in paragraphs 14, 18 and 20 of Article II of the Extradition Treaty of 1922, between our two countries.

“As you are aware, an extradition hearing was held pursuant to the provisions of Section 3184, Title 18, United States Code, at the conclusion of which the Honorable George W. Whitehurst, United States District Judge for the Southern District of Florida, sitting as extradition magistrate, found that the evidence presented by your Government showed probable cause to believe Marcos Perez Jimenez guilty of the above-mentioned crimes, but that insufficient evidence had been presented to warrant his extradition on the charges of complicity in murder with which he was also charged in Venezuela. Habeas Corpus proceedings brought to challenge the decision of the extradition magistrate resulted in his decision being upheld by the United States District Court for the Southern District of Florida and by the United States Court of Appeals for the Fifth Circuit. On June 17, 1963, the United States Supreme Court denied the petition of Marcos Perez Jimenez for a rehearing on that Court’s denial of his petition for certiorari to review the decision of the Court of Appeals.

“I have taken note of your Government’s assurances, contained in your note No. 1396, dated July 22, 1963, that careful security arrangements have been made by your Government to eliminate any risk of physical harm to Marcos Perez Jimenez should he be extradited, that he would be tried only for those offenses for which his extradition is granted, that he would be given all the rights accorded an accused under the laws of your country, including the right to full and effective defense, and that he would have the right to adequate legal counsel of his own choice.

“Accordingly, there is enclosed my warrant directing the United States Marshal for the Southern District of Florida or any other public officer or person having charge or custody of Marcos Perez Jimenez to surrender and deliver him up to such person or persons as may be duly authorized by your Government to receive him in order that he may be returned to Venezuela for trial for the crimes of embezzlement or criminal malversation, receiving money or valuable securities knowing the same to have been unlawfully obtained, and fraud or breach of trust. The specific offenses which are considered, in this case, to be encompassed by the crimes and those for which extradition is granted are those charges set forth in paragraphs 15.B, 15.C and 15.D(3) of the Second Amended Complaint for Extradition filed March 8, 1960, in the District Court of the United States for the Southern District of Florida, Miami Division, by Manuel Aristequieta in case No. 9425--M--Civil entitled Manuel Aristeguieta, Consul General of the Republic of Venezuela, Plaintiff, $v Marcos Perez Jimenez, Defendant.

“Inasmuch as the extradition magistrate found sufficient evidence of criminality of Marcos Perez Jimenez only with respect to these crimes, his extradition is granted on the condition, specified in Article XIV of the Extradition Treaty of 1922, that he shall be tried only for those crimes.

“Accept, Excellency, the renewed assurances of my highest consideration.

“/s/ Dean Rusk

“His Excellency

“Dr. Enrique Tejera-Paris,

“Ambassador of Venezuela

“Enclosure:

“Warrant of surrender.”

[*17]  In considering the application, I am mindful that this is the first time in our history a former head of state has been extradited for offenses allegedly committed during his incumbency. I am equally aware and respectful of the long tradition, reflected in our treaties and statutes, against extradition for political offenses. The extraditing magistrate determined, however, that the crimes for which petitioner is being extradited were not of “a political character” and that a solemn treaty between the United States and Venezuela requires extradition for “Embezzlement * * * by public officers.” [FN11] A petition for a writ of habeas corpus challenging this determination was dismissed by a district judge. A Court of Appeals painstakingly reviewed this issue and concluded that the *18 crimes in question were not political. This Court denied certiorari and rehearing, thereby leaving the judgment of the Court of Appeals undisturbed. The alleged political nature of the crimes does not form the basis for the present application; the contention here is that 18 U.S.C. s 3188 requires petitioner’s release because he was not delivered to the extraditing government within two months of his commitment.

FN11. See note 4, supra.

Petitioner construes the two-month period in s 3188 to run from the time of the original commitment order of the extraditing magistrate, not from the time his legal rights were finally determined by this Court’s denial of certiorari and rehearing. From this construction, one of two results must follow: If the Government were prevented from removing him during the pendency of review proceedings, then the accused could readily frustrate this country’s treaty obligations simply by invoking such proceedings for two months; if, on the other hand, the Government were permitted to remove him while proceedings were pending, then the statute would effectively foreclose review of extradition orders. A construction which compels a choice between such alternatives is untenable.

Section 3188, originally enacted in 1848 [FN12] as part of a general scheme governing extradition from this country, was intended to implement our treaty obligations “without delay and the danger of a denial of justice” to the accused. [FN13] Its purpose was to ensure prompt action by the extraditing government as well as by this government so that the accused would not suffer incarceration in this country or uncertainty as to his status for long periods of time through no fault of his own.

FN12. 9 Stat. 302.

FN13. Cong.Globe, 30 Cong., 1st Sess. 868 (1948).

The procedural history of this litigation leaves no doubt that the Government of Venezuela has acted with diligence to effect petitioner’s extradition. The United States Government has acted with equal diligence, consistent with its duty to protect the rights of all within its jurisdiction by affording them recourse to its courts. Petitioner having sought review of the extradition order, the Secretary of State properly deferred execution of the surrender warrant until petitioner’s claims were fully adjudicated. This case is unlike In re Dawson, 101 F. 253 (C.C.N.Y.). There, “petitioner had interposed no captious objection to the proceeding”; the two-month delay was caused solely by “the leisurely movements” of the extraditing government which had acted without “any measure of diligence” upon being informed of this country’s readiness to deliver up the accused. Here, the delays resulted from petitioner’s pursuit of legal remedies, not from the dilatory actions of either party to the extradition treaty.

The common-sense reading of s 3188 is that where as here, the accused has instituted and pursued review of his extradition order, the two-month period runs from the time his claims are finally adjudicated, not from the time of the original commitment order he has been challenging. In any event, since the delays were attributable to the proceedings prosecuted by petitioner, there certainly was “sufficient cause” for the delay, within the intended meaning of s 3188. Thus petitioner’s contention regarding the two-month limitation is without merit.

[4] Link to KeyCite Notes It is in light of this assessment of petitioner’s substantive contention that I consider his procedural argument that the s 3188 determination should have been made by State Judge Balaban rather than Federal Judge McRae. Petitioner’s substantive contention seems to be so lacking in merit that it could not reasonably be resolved in his favor, regardless of which judge considered it in the first instance. I cannot say, therefore,  [*19]  that he was prejudiced by its determination by the federal rather than state judge. [FN14]

FN14. I do not pass on whether the statute contemplates application for release under 18 U.S.C. s 3188 to a state judge in cases where extradition was commenced under 18 U.S.C. s 3184 before a federal judge, and where the accused has made application for habeas corpus to a federal judge and has been in continuous federal custody. For conflicting intimations, see e.g., 1 Moore, Extradition 537 (1891); 6 Op.Atty.Gen. 237, 270 (1853, 1854); People ex rel. Macdonnell v. Fiske, 45 How.Pr. 294 (N.Y.Sup.Ct.1873); In the Matter of Metzger, 1 Barb. 248 (N.Y.Sup.Ct.1874).

Petitioner has had full hearings on the merits of his extradition before a federal district judge sitting as an extraditing magistrate, a different federal judge sitting as a habeas corpus court and a United States Court of Appeals. This Court also considered, and declined to review, the merits of his extradition. His present contention cencerning delay has been passed upon by a federal district judge as well as the Court of Appeals and has now been considered by me. Throughout the proceedings, petitioner has been represented by able counsel of his own choice. He has certainly been afforded all due process of law. The only effect of granting his application for a stay would be to preserve the jurisdiction of this Court to review a procedural ruling which, however determined, could only delay but not prevent extradition.

If the record disclosed sufficient merit in petitioner’s contentions to make review by this Court likely, I would, of course, grant the requested stay. But, considering the lack of merit in the substantive contention, and this Court’s denial of certiorari and rehearing in the earlier phase of the litigation, it is my judgment that this Court probably would not grant certiorari to review the present contentions. At some point all litigation must end. I see no compelling reason for further delaying this one. Petitioner’s request for a stay is, therefore, denied.

In denying the stay, I assume, of course, that the Government of Venezuela will honor its commitment to our Government:

“* * * that careful security arrangements have been made by (the Venezuelan Government) to eliminate any risk of physical harm to Marcos Perez Jimenez should he be extradited, that he would be tried only for those offenses for which his extradition is granted, that he would be given all the rights accorded an accused under the laws of your country, including the right to full and effective defense, and that he would have the right to adequate legal counsel of his own choice.” [FN15]

FN15. See note 10, supra.

Stay denied.