Opinion
No. 5159.
July 25, 1933. Rehearing Denied October 2, 1933.
Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Habeas corpus proceeding by the United States on the relation of Harry H. Weinberger against Frederick C. Schneider, United States Marshal for the District of New Jersey. From an order dismissing the writ of habeas corpus, and awarding a warrant for the removal of relator to the Southern District of New York, for trial under an indictment, relator appeals.
Affirmed.
Minturn Weinberger, of Newark, N.J. (Merritt Lane, of Newark, N.J., of counsel), for appellant.
Harlan Besson, U.S. Atty., of Trenton, N.J., and George Z. Medalie, U.S. Atty., of New York City (Edmund Palmieri, of New York City, and Oliver Randolph, of Newark, N.J., of counsel), for appellee.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
Harry H. Weinberger, a citizen of New Jersey, had been indicted by the Grand Jury for the Southern District of New York for devising a scheme to defraud and using the mail, or causing it to be used, for the purpose of executing the same. Title 18 USCA § 338, Criminal Code § 215. After a hearing before a Commissioner, he was committed for removal. Weinberger then filed a petition for a writ of habeas corpus in the District Court of the United States for the District of New Jersey, which, after a lengthy hearing, dismissed the petition and granted a warrant of removal. From that order the petitioner appealed, contesting its validity on the ground that the government had, under the authorities, failed to show probable cause. In a case of this kind probable cause extends to both elements of the offense; that of devising a scheme to defraud and that of using the mail to execute it. On both of these elements we find, after a study of a huge record made as though the petitioner were on trial, evidence of probable cause quite enough to sustain the order dismissing the writ of habeas corpus and awarding the warrant of removal.
As a discussion of the evidence in this opinion might improperly influence the trial, we shall do nothing more than rule on the single question before us and affirm the order.