Gayon v. McCarthy

Background

Gayon, a Mexican citizen who had once served as a consul and who worked with a political exile in New York, was accused of conspiring to hire or retain an American, Foster Averitt, to go to Mexico and enlist with rebel forces led by Felix Diaz. Gayón wrote and gave letters in New York addressed to a San Antonio editor and to General Aurelio Blanquet in Mexico. Averitt, a former Naval Academy midshipman, carried those letters to San Antonio and Laredo, met local contacts, and was arrested trying to cross into Mexico. Gayón was held after a hearing before a Commissioner and sought habeas relief in the federal district court, which denied relief and ordered his transfer to Texas.

Reasoning

The Court framed two questions: whether the acts shown would violate the statute forbidding hiring or retaining someone to enlist in a foreign force, and whether the evidence before the Commissioner created probable cause. The government relied on the indictment, Gayón’s identity, testimony, correspondence dated in December and January, the letters given to Averitt, and testimony that promises of a commission and expense reimbursement were discussed. The Court explained that “retain” can include engaging someone by promise or invitation, not only by immediate payment. It found that the letters, introductions through the San Antonio and Laredo contacts, and attempts to cross the border gave substantial evidence of a conspiracy and probable cause. The district court’s order was therefore affirmed.

Real world impact

The decision lets Texas authorities proceed with prosecution by permitting Gayón’s transfer. It confirms that giving letters, arranging introductions, and promising rank or payment can support criminal charges for recruiting Americans to fight abroad, reinforcing enforcement of the neutrality statute.