The opinion of the court was delivered by: AVIS
The bill of complaint is filed by and on behalf of Ellis H. Parker and Ellis H. Parker, Jr., against whom an indictment has been returned by the grand jury of the United States District Court for the Eastern District of New York, and upon which indictment application had been made by the authorities of that district to the authorities of the District of New Jersey for the removal of said Parkers to the Eastern District of New York for the purposes of trial. Upon this request a complaint was filed in this district and a warrant duly issued. This warrant required the marshal of the District of New Jersey to apprehend the said Parkers and produce them before the United States District Court for the District of New Jersey at Newark in said district.
Other complainants in said bill are Abram Gerber, John N. Chant, and Willitt D. Shinn, who are sureties for the appearance of said Parkers in this court, by reason of an appeal taken by them to the Circuit Court of Appeals of the Third Circuit after their conviction and sentence in this court on an indictment duly returned against them, and tried herein.
This insistment of counsel was based upon the act of Congress found in 18 U.S.C.A. § 595, and reads as follows: "It shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest United States commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint, and upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any officer violating the provisions hereof."
The bill of complaint asserts that the sureties aforesaid have an interest in the action, and are entitled to relief because of their property interest as such sureties, and that the Parkers are entitled to the restraint because of the fact that the defendants threatened to violate the provisions of the aforesaid act.
Upon the filing of the bill, supported by affidavits verifying its allegations, an order to show cause was issued, returnable March 31, 1938, at 10:30 a.m.
The question of right to equitable restraint as against the enforcement of the criminal laws has been raised and argued. The United States attorney contends that the allegations of the bill of complaint and affidavits do not justify the court in granting an injunction staying in any manner a criminal prosecution, because the only cases in which such action many be taken is where there is an allegation of the unconstitutionality of the statute under which the procedure is being had, and property rights are affected.
We are satisfied that the surety complainants have no property rights that can be injured in such removal. The Parkers are now held in bail in this court on the appeal from the conviction herein noted, and are regarded as in their custody. The constructive custody which the sureties have is a continuance of the original imprisonment, and, if this court orders the removal of Parkers to another jurisdiction, I am satisfied that the result will be the discharge of the sureties. See Taylor v. Taintor, Treasurer, 16 Wall. 366, 83 U.S. 366, 21 L. Ed. 287; Peckham v. Henkel, United States Marshal, 216 U.S. 483, 486, 30 S. Ct. 255, 256, 54 L. Ed. 579.
The next question to be determined is the right of the Parkers to be taken before a United States commissioner or a judicial officer, other than the nearest one having jurisdiction under existing law for a hearing, commitment, or taking of bail for trial.
The usual practice in cases of removal is stated fully in the case of United States v. Yarborough, D.C.W.D.Va., 122 F. 293, wherein the court stated on page 296: "While there are numerous officers given authority by section 1014 [ 18 U.S.C.A. § 591] to hold the preliminary hearing of one arrested for removal to another district, it is preferable that, after the arrest, the accused should be taken before the nearest United States commissioner."
The court discussed the subsequent proceedings, including "Probable Cause," "Sufficiency of Indictment or Complaint," and "Notice of Application for Warrant of Removal." I am satisfied that the practice defined in that case is the ordinary practice, and seems to be sustained by other cases which I have examined.
Under this case notice must be given of the time and place that a hearing will be had before the judge. See Beavers v. Henkel, 194 U.S. 73, 24 S. Ct. 605, 48 L. Ed. 882; Tinsley v. Treat, United States Marshal, 205 U.S. 20, 29, 30, 27 S. Ct. 430, 432, 433, 51 L. Ed. 689; In re Beshears, D.C.S.D.Iowa, 79 F. 70; United States v. Beiner, D.C.W.D.Pa., 275 F. 704; United States v. Johnston, D.C.W.D.Wash.N.D., 292 F. 491.
The United States attorney argues that the statute aforesaid is a procedural statute regulating the action of the marshals and was not intended to apply to, or protect, the individual arrested. While it is true that the statute was originally a part of an appropriation act and that most of the cases relate to mileage and fees of marshals, the Supreme Court in the case of Pettit ...