Engaging another to go to Mexico to join revolutionary forces,
under promise of a commission and probable reimbursement for
expense, is a "retaining," within the meaning of § 10 of the
Criminal Code. P. 252 U. S.
sufficient to show probable cause, and
sustain an order of removal.
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
The appellant, Gayon, was indicted in the Southern district of
Texas for conspiring (§ 37 of the Criminal Code) with one Naranjo,
of San Antonio, Texas, and with one Mendoza, of Laredo, Texas,
about January 1, 1919, to hire and retain Foster Averitt, a citizen
of the United States, to go to Mexico, there to enlist in military
forces organized in the interest of Felix Diaz, then in revolt
against the government of Mexico, with which the United
Page 252 U. S. 172
states was at peace, in violation of § 10 of the Criminal Code,
as amended May 7, 1917, 40 Stat. 39, c 11.
Gayon was arrested in New York, and, after a full hearing before
a commissioner of the United States, was held subject to the order
of the district court for his removal to Texas.
Thereupon, by petition for writs of habeas corpus and
certiorari, the case was removed to the District Court for the
Southern District of New York, and, upon a hearing on a transcript
of the evidence before the commissioner, that court discharged the
writ of habeas corpus and entered an order that a warrant issue for
the removal of the appellant to Texas. An appeal brings this order
here for review.
The principles and practice applicable to this case are
abundantly settled. Greene v. Henkel, 183 U.
, 183 U. S. 261
Beavers v. Haubert, 198 U. S. 77
Hyde v. Shine, 199 U. S. 62
199 U. S. 84
Tinsley v. Treat, 205 U. S. 20
Haas v. Henkel, 216 U. S. 462
216 U. S. 475
Price v. Henkel, 216 U. S. 488
216 U. S. 490
Hyde v. United States, 225 U. S. 347
Brown v. Elliott, 225 U. S. 392
Henry v. Henkel, 235 U. S. 219
Of many errors assigned, only two are argued, viz.,
that the court erred in holding (1) that the acts committed by the
appellant "of which there was any evidence before the commissioner"
constituted a crime under § 10 of the Penal Code, and (2) that the
evidence before the commissioner showed probable cause for
believing the defendant guilty of the crime charged in the
By these assignments of error, the correct rule of decision is
recognized that if there was before the commissioner or district
court evidence showing probable cause for believing the defendant
guilty of having conspired with Naranjo or Mendoza, when either was
in the Southern district of Texas, to hire or retain Averitt to go
to Mexico to enlist in the insurgent forces operating under General
Diaz against the Mexican government, the order of the district
court must be affirmed.
Page 252 U. S. 173
The evidence before the commissioner, carried to the district
court, may be summarized as follows:
The government introduced the indictment and, with the admission
by Gayon that he was the person named therein, rested. This
established a prima facie
case in the absence of other
evidence. Tinsley v. Treat, 205 U. S.
, 205 U. S. 31
and cases cited.
Thereupon, the testimony of the accused and of one Del Villar
was introduced by appellant, and that of Averitt by the government,
which we condense into narrative form:
For five years before the arrest, Del Villar, a political exile
from Mexico, had maintained offices in New York from which he had
conducted a systematic propaganda in the interest of Felix Diaz and
against the Mexican government.
The accused, Gayon, is a Mexican citizen, and during several
administrations prior to that of Carranza had served as consul for
the Mexican government at Roma, Texas, and at other places within
and without the United States. For about two years, he had been
secretary to Del Villar and for some time prior to his arrest was
in the joint service and pay of Del Villar and General Aurelio
Blanquet, the latter then in Mexico serving with the forces of
Naranjo was editor and publisher of a newspaper at San Antonio,
Texas, called "Revista Mexicana" (Mexican Review), which was
opposed to the established Mexican government and favorable to the
revolutionists operating in the interest of Diaz.
On December 12, 1918, Gayon wrote from New York to Naranjo at
San Antonio to secure an advertisement in the Review for "my work
El General Blanquet,'" saying, "There are some reasons that you
may know in the next few days why I want a big circulation of the
book," asking if he might send some copies to be sold at the
Page 252 U. S.
office, and concluding, "I will await your letters hoping to
give you good news in my next letter."
On December 23, 1918, Gayon wrote Naranjo, addressing him as "My
dear Friend," and saying that he had received his letter of the
18th instant. In this letter, a discussion of the sale of his book
"El General Blanquet" is followed by comment on the activities of
other persons in which he discourages new projects and urges
joining "with the National Union Committees," which he states had
already passed the embryonic state and now constitute a reality. He
"God grant us, now that we are on the threshold of success, we
may leave aside our obstinate custom of projecting, and go ahead to
produce results exclusively."
On January 14 and again on January 21, 1919, he addressed
Naranjo as "My dear Friend" and discussed further advertising and
circulating of his book.
This correspondence makes it clear enough that Gayon, although
in New York, in December, 1918, and January, 1919, was in close
association with Naranjo, and that the two were actively engaged in
promoting opposition to the established Mexican government.
On January 5, 1919, Foster Averitt, an American citizen whose
home was in Texas, called at the office of Gayon, and what passed
between them is derived from the testimony of the two as
Averitt had recently resigned from the United States Naval
Academy at Annapolis and, being without employment, says that he
called at the office of Gayon for the purpose of securing, if
possible, a position in Mexico or Central America as an engineer.
He was wearing his uniform as midshipman of the United States Navy,
and he first showed Gayon some official papers, which the latter
did not read, and then said that he was of the United States Navy,
and that he must go at once Mexico to see Generals Diaz and
Blanquet personally. He did not give
Page 252 U. S. 175
any reason for desiring to see these men, but asked for letters
of introduction to them, which Gayon refused until he could confer
with Del Villar. Averitt returned the next day, and, after
discussing with Gayon conditions in Mexico, the location of the
several armed forces near the border, and whether he should go by
sea to Vera Cruz or overland, he again left for the day. On
returning the next day, he received from Gayon two letters, one
addressed to Naranjo at San Antonio and one to "General Aurelio
Blanquet, General Headquarters, Mexico."
Gayon had no knowledge of or acquaintance with Averitt before
his first call at his office, and he did not present any letters of
introduction, but, in the letter to Naranjo, Gayon introduced him
as "undertaking a trip to Mexico on special mission to General
Felix Diaz and Aurelio Blanquet," and requested that he "supply him
the necessary information to enable him to make his trip as quickly
The letter which he gave to Averitt addressed to General
Blanquet opens with this paragraph:
"The bearer, Mr. Foster Averitt, Marine Guard of the United
States, will inform you about the reasons for his trip and of the
work we are undertaking here. I kindly request from you, after
meeting Mr. Foster [sic
], to be good enough to introduce
him to General Felix Diaz, as he wants to take up some matters with
both of you."
The remainder of the letter explains how he had given publicity
to "the recent successful arrival" of the general in Mexico and the
motives inspiring the movement of reorganization under the
leadership of General Diaz. It predicts early recognition by our
government of the belligerency of the Diaz insurgents and urges the
general to write as often as possible to enable "us to continue our
campaign of propaganda."
Supplied with these letters, Averitt straightway went to San
Antonio and presented his letter to Naranjo, who,
Page 252 U. S. 176
after some conferences with him, gave him a letter to General
Santiago Mendoza at Laredo, on the border. This letter was
presented to Mendoza, and through him arrangements were made for
Averitt's crossing into Mexico with two or three others, but they
were arrested by customs guards, and the proceedings we are
In the interviews in New York, there was suggestion of payment
of expenses and a commission for Averitt, but Gayon, saying that
the furnishing of either would violate the neutrality laws of the
United States, told him there would be no difficulty in his getting
a commission from General Blanquet on his arrival in Mexico, and
the last thing he said to him when leaving was "that he expected
that he should be at least a colonel when he saw him again down
there." He told him it might be possible to have his expenses made
up to him when he arrived in Mexico, and, as a matter of fact, he
received $15 from General Mendoza at Laredo.
The statute which Gayon is charged with violating provides
"whoever, within the territory or jurisdiction of the United
States . . . , hires or retains another . . . to go beyond the
limits or jurisdiction of the United States with intent to be
enlisted . . . in the service of another foreign . . . people"
shall be punished as provided. And the overt acts charged in the
indictment are that Gayon delivered to Averitt at New York a letter
addressed to Naranjo, and at the same time gave him instructions
with respect to presenting it, and impliedly promised Averitt that,
upon his arrival in Mexico, he would be given a commission in the
army of General Blanquet; that, at the same time, he delivered to
Averitt a letter addressed to General Blanquet, who was then in
Mexico in command of revolutionary forces; that Averitt visited and
held conferences with Naranjo, who gave him a letter to Mendoza at
Laredo, in the Southern District of
Page 252 U. S. 177
Texas, and that Averitt, under instructions received from
Naranjo, called upon and conferred with Mendoza at Laredo and with
him arranged to enter Mexico with others with intent to join the
forces of Diaz under General Blanquet.
While the narration of what took place between Gayon and Averitt
does not show a hiring of the latter in the ordinary sense of the
word, yet, when taken with the conduct of Averitt in going
immediately to Texas, and in attempting to cross into Mexico,
plainly it tends to show that Gayon retained Averitt in the sense
of engaging him to go to Mexico, that he was induced to enter into
that engagement by the promise that he would be given a commission
in the forces of Diaz when he arrived there, and that he would
probably be reimbursed for his expenses.
There was also evidence tending to show that, by communication
and concerted action between Gayon, Naranjo, and Mendoza, Averitt
was induced to go from New York to the border, and would have
succeeded in reaching Mexico and joining the insurgent forces but
for the vigilance of the United States officers who arrested him.
The evidence also is that Mendoza conferred with Averitt and acted
in promotion of the conspiracy when, in the Southern district of
Texas, thus establishing the jurisdiction of the court to which the
indictment was returned, under Hyde v. United States,
225 U. S. 347
Brown v. Elliott, 225 U. S. 392
The word "retain" is used in the statute as an alternative to
"hire," and means something different from the usual employment
with payment in money. One may be retained, in the sense of
engaged, to render a service as effectively by a verbal as by a
written promise, by a prospect for advancement or payment in the
future as by the immediate payment of cash. As stated long ago by a
noted Attorney General in an opinion dealing with this statute:
Page 252 U. S. 178
"A party may be retained by verbal promise or invitation for a
declared or known purpose. If such a statute could be evaded or set
at naught by elaborate contrivances to engage without enlisting, to
retain without hire, to invite without recruiting, . . . it would
be idle to pass acts of Congress for the punishment of this or any
7 Ops.Atty.Gen. 367, 378-379.
This discussion of the record makes it sufficiently clear that
there was substantial evidence before the commissioner and the
court tending to show that § 10 of the Criminal Code had been
violated and that there were was probable cause for believing the
appellant guilty of conspiring with Naranjo and Mendoza to compass
that violation, as charged in the indictment, and therefore the
order of the district court must be