1 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.

2 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.”

3 9 Stat. 302, as amended 62 Stat. 822.

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

5 The Court’s opinion, which is unreported, is reproduced in the petition for writ of certiorari, No. 958, Oct. Term, 1962.

6 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 per-son, 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.”

7 See note 5, supra.

8 Jimenez v. Aristeguieta, 311 F. 2d 547, 558 (C. A. 5th Cir. 1962). [Noted, 2 International Legal Materials 206 (1963).]

9 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.

10 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 embezzlement 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 he 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.”

11 See note 4, supra.

12 9 Stat. 302.

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

14 I do not pass on whether the statute contemplates application for release under 18 U. S. C. § 3188 to a state judge in cases where extradition was commenced under 18 U. S. C. § 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); MacDonnell v. Fiske, 45 How. Pr. 294 (N. Y. Sup. Ct. 1873); In the Matter of Metzger, 1 Barb. 248 (N. Y. Sup. Ct. 1847).

15 See note 10, supra.