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The Court of Appeals agreed with Chief Judge Jacob Mishler of the U.S. District Court for the Eastern District of New York that the evidence was admissible, and affirmed the conviction of defendants for conspiring to import cocaine and concealing and transporting cocaine.
The defendants, Frank Cotroni and Frank Dasti, were Canadian citizens. The cocaine involved originated in Mexico and ended up in the hands of the Bynum drug ring in New York City. Important evidence leading to their convictions was provided by summaries, and transcripts of 32 wiretaps in 1970 and 1971 furnished by Canadian police. Appellants contended that many of the wiretaps were done in violation of the laws of both the United States and Canada. The District Court found that prior to the enactment of the Canadian Protection of Privacy Act in 1974, no law of that country outlawed wiretapping, and that the Protection of Privacy Act did not apply retroactively. The latter finding had also been confirmed in Canada in a case involving the same wiretap. Although the intercepted telephone conversations traveled in part over U.S. lines, Judge Mishler held that their use in evidence was not proscribed by Title III of the Omnibus Crime Control Act, relying on United States v. Toscanino, 500 F.2d 267 (1974). See the 1974 Digest, pp. 251-252, and the 1975 Digest, pp. 338-339. In affirming, the Circuit Court stated:
Our holding in Toscanino comports with the canon of construction which teaches that, unless a contrary intent appears, Federal statutes apply only within the territorial jurisdiction of the United States.
Appellants' arguments for exclusion receive no greater support from the U.S. Constitution. Appellants' rights vis-a-vis their own government are not defined by the provisions of the U.S. Constitution and are therefore "no legal concern of an American Court." Accordingly, information furnished American officials by foreign police need not be excluded simply because the procedures followed in securing it did not fully comply with our nation's constitutional requirements. The absence of Miranda warnings may be overlooked. . . . and the lack of a proper search warrant may be disregarded . The exclusionary rule is intended to inculcate a respect for the Constitution in the police of our own nation. . . . Since it has little if any deterrent effect upon foreign police, .. it is seldom used to bar their work product.
We need not concern ourselves with taint which might have resulted from American participation in the Canadian taps Chief Judge Mishler found that the U.S. Government did not "in any way initiate, supervise, control or direct the wiretapping," and this finding has support in the evidence.
In United States v. Morrow, 537 F.2d 120 (1976), decided on August 16, 1976, the U.S. Court of Appeals for the Fifth Circuit, on appeal from a conviction by the U.S. District Court for the Middle District of Florida for conspiracy in the distribution of stolen and counterfeited securities, held, inter alia, that the participation of American officials in a warrantless Canadian search and seizure had not been such as to invoke the protection of the Fourth Amendment exclusionary rule. The participation of American officials had consisted only of a telephone call by a Federal Bureau of Investigation agent alerting Canadian authorities to possession of information by an American informant living in Canada. The Court stated in part:
[T]he Fourth Amendment exclusionary rule does not apply to arrests and searches made by foreign authorities on their home territory and in the enforcement of foreign law, even if the persons arrested and from whom the evidence is seized are American citizens. . . . two exceptions to the general rule obtain. First, if the circumstances of the foreign search and seizure are so extreme that they "shock the judicial conscience," a Federal appellate court in the exercise of its supervisory powers can require exclusion of the evidence so seized . . . . Second, if American law enforcement officials participated in the foreign search, or if the foreign authorities actually conducting the search were acting as agents for their American counterparts, the exclusionary rule can be invoked ..
[T]he minimal participation of American law enforcement officials in the Toronto search and seizure is insufficient to invoke for the benefits of appellant . . . the protections of the Fourth Amendment. Looking to the facts, as we must, we perceive no possible way in which the goal of deterring unlawful conduct by American law enforcement officials can be served by excluding the evidence in question for the simple reason that there was no unlawful or unreasonable conduct on the part of the FBI. . . . Normal lines of communication between the law enforcement agencies of different countries are beneficial without question and are to be encouraged. Criminal conspiracies, as this case amply demonstrates, are sometimes international in scope, and the routine transmittal of the name and telephone number of a possibly valuable informant across national borders clearly is permissible under the Fourth Amendment.
The U.S. Court of Appeals for the Seventh Circuit in United States v. Marzano, 537 F.2d 257 (1976), affirmed, on May 18, 1976, the conviction of defendant Marzano for offenses arising out of the theft of $3 million from the vaults of a security company. U.S. District Court, 388 F. Supp. 906 (1975) (see the 1975 Digest, pp. 334-336). It held, inter alia, that where Federal Bureau of Investigation (FBI)
agents did not participate in the detention of the defendant in a foreign country, even though they were present, a foreign police officer's actions were not subject to Fourth Amendment scrutiny.
In this case the factual findings of the District Court were that the foreign police officer, in Grand Cayman, met two FBI agents who were attempting to locate the defendant. The foreign officer informed the agents that they could not carry weapons or interrogate or take defendant into custody, and that they had no jurisdiction but could accompany him on his investigation. He then took defendant into custody for various infractions of local law and asked him to board a plane bound for the United States after determining that the FBI was willing to pay the cost of airfare. In these circumstances, where the FBI agents did not take the defendant into custody or even speak to him about a crime, the Court of Appeals found no Government involvement to render the Fourth Amendment operative. It found further that no illegal seizure by FBI agents took place from the fact that the Grand Cayman officer had voluntarily turned over to them items taken from the defendant.
Jurisdiction Based on Nationality
Jurisdiction Based on Agreement
The United States and Mexico, on November 25, 1976, signed a Treaty on the Execution of Penal Sentences. It was the first treaty of its kind for both countries. Under it U.S. nationals sentenced in Mexico, and Mexican nationals sentenced in the United States, might elect to serve their sentences in their own country, with the concurrence of the two nations' authorities. In determining whether a transfer should be requested, the treaty provides several factors which may be taken into account. Among these are: the type and seriousness of the crime for which the prisoner was sentenced; his previous criminal record, if any; the strength of his connections by residence, family relations and otherwise to the social life of the country where he is imprisoned or with his native country.
The transfer of a prisoner would require the initiation of the request by the state in which the sentence has been imposed and the approval of the request by the other state. No transfer would take place without the consent of the offender.
The treaty is subject to ratification in both countries. The Government of Mexico made clear in the negotiations that ratifica
tion by Mexico was also subject to the approval by the majority of the state legislatures of an amendment to article 18 of the Constitution proposed by the Federal Executive Authority on September 4, 1976, and favorably approved by the Congress of the Union. The Senate of Mexico approved the treaty on December 30, 1976. In the United States, ratification with the advice and consent of two-thirds of the Senate and enabling legislation are required.
The U.S.-Mexico treaty was transmitted to the Senate, for advice and consent to ratification, on Feb. 21, 1977 (S. Ex. D, 95th Cong., 1st Sess.). The text of the U.S.Mexico treaty follows:
The United States of America and the United Mexican States, desiring to render mutual assistance in combating crime insofar as the effects of such crime extend beyond their borders and to provide better administration of justice by adopting methods furthering the offender's social rehabilitation, have resolved to conclude a Treaty on the execution of penal sentences and, to that end, have named their plenipotentiaries Joseph John Jova, Ambassador Extraordinary and Plenipotentiary by the President of the United States of America and Alfonso Garcia Robles, Secretary of Foreign Relations by the President of the United Mexican States, Who, having exchanged their full powers and having found them in proper and due form, have agreed on the following Articles:
(1) Sentences imposed in the United Mexican States on nationals of the United States of America may be served in penal institutions or subject to the supervision of the authorities of the United States of America in accordance with the provisions of this Treaty.
(2) Sentences imposed in the United States of America on nationals of the United Mexican States may be served in penal institutions or subject to the supervision of the authorities of the United Mexican States in accordance with the provisions of this Treaty.
This Treaty shall apply only subject to the following conditions:
(1) That the offense for which the offender was convicted and sentenced is one which would also be generally punishable as a crime in the Receiving State, provided, however, that this condition shall not be interpreted so as to require that the crimes described in the laws of the two States be identical in such matters not affecting the character of the crimes such as the quantity of property or money taken or possessed or the presence of interstate commerce.
(2) That the offender must be a national of the Receiving State.
(4) That the offense not be a political offense within the meaning of the Treaty of Extradition of 1899 between the parties, nor an offense under the immigration or the purely military laws of a party.
(5) That at least six months of the offender's sentence remains to be served at the time of petition; and
(6) That no proceeding by way of appeal or of collateral attack upon the offender's conviction or sentence be pending in the Transferring State and that the prescribed time for appeal of the offender's conviction or sentence has expired.
Each State shall designate an authority to perform the functions provided in this Treaty.
(1) Every transfer under the Treaty shall be commenced by the Authority of the Transferring State. Nothing in this Treaty shall prevent an offender from submitting a request to the Transferring State for consideration of his transfer. (2) If the Authority of the Transferring State finds the transfer of an offender appropriate, and if the offender gives his express consent for his transfer, said Authority shall transmit a request for transfer, through diplomatic channels, to the Authority of the Receiving State.
(3) If the Authority of the Receiving State approves the request, it shall promptly
so inform the Transferring State and shall initiate the necessary procedures to effect the transfer of the offender. If it does not approve the request, it shall so notify promptly the Authority of the Transferring State.
(4) În deciding upon the transfer of an offender the Authority of each Party shall bear in mind all factors bearing upon the probability that the transfer will contribute to the social rehabilitation of the offender, including the nature and severity of his offense and his previous criminal record, if any, his medical condition, the strength of his connections by residence, presence in the territory, family relations and otherwise to the social life of the Transferring State and the Receiving
(5) If the offender was sentenced by the courts of a state of one of the Parties, the approval of the authorities of that state, as well as that of the Federal Authority. shall be required. The Federal Authority of the Receiving State shall, however, be responsible for the custody of the transferred offender.
(6) No offender shall be transferred unless either the sentence which he is serving has a specified duration, or such a duration has subsequently been fixed by the appropriate administrative authorities.
(7) The Transferring State shall furnish the Receiving State a statement showing the offense of which the offender was convicted, the duration of the sentence, the length of time already served by the prisoner and any credits to which the offender is entitled, such as, but not limited to, work done, good behavior or pretrial confinement. Such statement shall be translated into the language of the Receiving State and duly authenticated. The Transferring State shall also furnish the Receiving State a certified copy of the sentence handed down by the competent judicial authority and any modifications thereof. It shall also furnish additional information that might be useful to the Authority of the Receiving State in determining the treatment of the convict with a view to his social rehabilitation. (8) If the Receiving State considers that the documents supplied by the Transferring State do not enable it to implement this Treaty, it may request additional information.
(9) Each Party shall take the necessary legislative measures and, where required, shall establish adequate procedures to give for the purposes of this Treaty, legal effect, within its territory to sentences pronounced by courts of the other Party.
(1) Delivery of the offender by the authorities of the Transferring State to those of the Receiving State shall occur at a place agreed upon by both parties. The Transferring State shall afford an opportunity to the Receiving State, if it so desires, to verify, prior to the transfer, that the offender's consent to the transfer is given voluntarily and with full knowledge of the consequences thereof, through the officer designated by the laws of the Receiving State.
(2) Except as otherwise provided in this Treaty, the completion of a transferred offender's sentence shall be carried out according to the laws and procedures of the Receiving State, including the application of any provisions for reduction of the term of confinement by parole, conditional release or otherwise. The Transferring State shall, however, retain the power to pardon or grant amnesty to the offender and the Receiving State shall, upon being advised of such pardon or amnesty release the offender.
(3) No sentence of confinement shall be enforced by the Receiving State in such a way as to extend its duration beyond the date at which it would have terminated according to the sentence of the court of the Transferring State.
(4) The Receiving State shall not be entitled to any reimbursement for the expenses incurred by it in the completion of the offender's sentence.
(5) The Authorities of each party shall, every six months, exchange reports indicating the status of confinement of all offenders transferred under this Treaty. including in particular the parole or release of any offender. Either Party may, at any time, request a special report on the status of the execution of an individual
(6) The fact that an offender has been transferred under the provisions of this Treaty shall not prejudice his civil rights in the Receiving State in any way beyond those ways in which the fact of his conviction in the Transferring State by itself effects such prejudice under the laws of the Receiving State or any State thereof.
The Transferring State shall have exclusive jurisdiction over any proceedings, regardless of their form, intended to challenge, modify or set aside sentences handed down by its courts. The Receiving State shall, upon being advised by the