Transferring State of action affecting the sentence, take the appropriate action in accordance with such advice.

Article VII

An offender delivered for execution of a sentence under this Treaty may not be detained, tried or sentenced in the Receiving State for the same offense upon which the sentence to be executed is based. For purposes of this Article, the Receiving State will not prosecute for any offense the prosecution of which would have been barred under the law of that State, if the sentence had been imposed by one of its courts, federal or state.

Article VIII

(1) This Treaty may also be applicable to persons subject to supervision or other measures under the laws of one of the Parties relating to youthful offenders. The Parties shall, in accordance with their laws, agree to the type of treatment to be accorded such individuals upon transfer. Consent for the transfer shall be obtained from the legally authorized person.

(2) By special agreement between the Parties, persons accused of an offense but determined to be of unsound mental condition may be transferred for care in institutions in the country of nationality.

(3) Nothing in this Treaty shall be interpreted to limit the ability which the Parties may have, independent of the present Treaty, to grant or accept the transfer of youthful or other offenders.

For the purposes of this Treaty,—

Article IX

(1) "Transferring State" means the party from which the offender is to be transferred.

(2) "Receiving State" means the party to which the offender is to be transferred; and

(3) "Offender" means a person who, in the territory of one of the parties, has been convicted of a crime and sentenced either to imprisonment or to a term of probation, parole, suspended sentence, or any other form of supervision or conditional sentence without confinement.

(4) A "domiciliary" means a person who has been present in the territory of one of the parties for at least five years with an intent to remain permanently therein. Article X

(1) This Treaty is subject to ratification. The exchange of ratifications shall take place in Washington.

(2) This Treaty shall enter into force thirty days after the exchange of ratifications and shall remain in force for three years.

(3) Should neither contracting party have notified the other ninety days before the three-year period mentioned in the preceding paragraph has expired of its intention to let the Treaty terminate, the Treaty shall remain in force for another three years, and so on every three years.

DONE at Mexico City in duplicate, this twenty-fifth day of November, one thousand nine hundred seventy six, in the English and Spanish languages, each text of which shall be equally authentic.

Detlev Vagts, Department of State Counselor on International Law, wrote a memorandum dated December 15, 1976, in which he analyzed the basic provisions of the Treaty with Mexico on Transfer of Penal Sanctions, supra, and explored the question of its consistency with the Constitution of the United States. The substantive portion of that memorandum follows:

I. Description of the Treaty.

The Treaty is intended both to relieve the special hardships which fall upon prisoners incarcerated far from home and to make their rehabilitation more feasible and also to relieve diplomatic

and law enforcement relations between the two countries of the strains that arise from the imprisonment of large numbers of each country's nationals in the institutions of the other. It constitutes part of an ongoing effort to improve relations between the two countries. It is also part of various efforts to establish closer international cooperation in law enforcement activities. It is without a direct analogy in United States practice, except for the Status of Forces Agreement with South Korea, but there is precedent for such an arrangement in Europe.2

The basic terms of the Treaty are as follows. Each transfer would be contingent upon the consent both of the state which sentenced the prisoner (the transferring state) and of the state which was to receive and confine him (the receiving state). The decision to transfer would be made on the basis of the whole record of the prisoner and the authorities' estimate as to the likelihood that the transfer would be beneficial. (Article IV.) In each case, the express consent of the prisoner concerned would have to be obtained; there can be no involuntary transfer under this treaty. Certain categories of prisoners are excluded from the terms of the Treaty: (1) political and military offenders; (2) offenders who are domiciliaries of the transferring state; (3) those having less than six months to serve when processing of their transfer begins; and (4) offenders against the immigration laws (article II). The program is basically one between the two Federal governments. Prisoners who are transferred become the responsibility of the Federal government in the receiving state. However, a state in either country which wishes to allow some of the prisoners which it holds to be transferred may exercise that option if it chooses.

When a prisoner has been transferred, the following procedures govern his treatment thereafter. The original sentence would carry over to his new confinement, preserving deductions for good behavior in prison, labor done by him and pretrial confinement. The transferring state retains the power to grant pardon or amnesty. With these exceptions, the execution of the sentence is to be carried out according to the rules and practices prevailing in the state to which he is transferred (article V (2) ). In particular, the rules of the receiving state as to parole will determine the date at which the prisoner is released from confinement. Each nation is to report to the other on the manner in which it is administering the confinement of transferred prisoners.

The Treaty provides in article II(5) that no prisoner will be transferred until the time for leave to appeal has expired and that no proceedings by way of appeal or collateral attack be pending. It further provides that any collateral attack on the sentence must proceed through the courts of the country which imposed the sentence (article VI). It is to be expected that prisoners transferred from Mexico to the United States will challenge the validity of this provision and assert that they cannot be constitutionally confined by the United States on the basis of proceedings conducted by Mexico. Parts II and III of this memorandum are devoted to an analysis of those contentions, concluding that they should not prevail.

II. The Offenders' Convictions Were Products of Mexican Law and the United States Constitution does not Apply.

The offenders with whom the Treaty deals were sentenced by Mexican courts for crimes they were found to have committed within the sovereign nation of Mexico. The Mexican constitution sets forth an extensive list of procedural guarantees afforded to defendants in criminal trials and affords various avenues of relief for those who claim to have been denied such guarantees. The Treaty preserves such avenues of appeal to the offenders. With all of this the Constitution of the United States has no concern. As stated in Wentz v. United States, 244 F.2d 172 (9th Cir. 1957):

In the affidavit no action of officers of the United States begins before the defendant is brought to them in the United States. Therefore, the charge, if true, must be that the defendant was denied "due process" in Mexico by Mexicans. If true, that is no legal concern of an American court.

Numerous other opinions have made the same points, for example, that in United States v. Toscanino, 500 F.2d 267, 280 n. 9 (2d Cir. 1974):

The Constitution, of course, applies only to the conduct abroad of agents acting on behalf of the United States. It does not govern the independent conduct of foreign officials in their own country. In Holmes v. Laird, 459 F.2d 1211(D.C. Cir. 1972), cert. denied, 409 U.S. 869 (1972), the court pointed out the difference between a U.S. trial abroad, which is not legally permitted to transgress the limitations of the United States Constitution, Reid v. Covert, 354 U.S. 1 (1957), and a foreign trial:

Obviously, the constitutional provisions appellants invoke exerted no force of their own upon the Federal Republic [of Germany] in that exercise of its sovereignty.

Thus, immediately before their transfer offenders had no basis for claiming any deprivation of rights under the Constitution of the United States.

III. The Acceptance by the United States of the Transfer of Prisoners from Mexico is not Such Involvement in the Mexican Proceedings as to Render the U.S. Constitution Applicable.

The critical question in this case is whether the receipt by the United States of prisoners transferred from Mexico under the Treaty so involves the United States as to make their continued imprisonment here somehow the unlawful fruit of the lawful Mexican trial. In Holmes v. Laird, supra, the court phrased the contention thus:

The argument, in essence, is that a turnover of an American citizen for service of a sentence imposed in culmination of an unfair foreign trial is a governmental involvement which the Constitution does not tolerate.

The court rejected that argument, made in the context of a surrender of American citizens for trial by Germany under the provisions of the Status of Forces Agreement. Similar contentions have been made in a number of different contexts, all of which arise out of the growing interconnections between national criminal systems in the fight against international crime. In all but one case, discussed below, the courts have rejected contentions that the

United States was involved to the degree that the Constitution applied. None of the situations is precisely like this one because no treaty of this type has ever been implemented by the United States, but no reason appears to suggest that this situation should be treated differently. Indeed, it seems a less suitable case for the application of a rule of U.S. involvement than many others.

Extradition or Surrender by the United States.

In Holmes v. Laird, supra, the court sustained the surrender by the United States of American citizens to a foreign sovereign for trial according to procedures which the court assumed would deviate substantially from American practice. It specifically rejected the contention that the entanglement of functions made the United States responsible for the whole. It is but one of a large number of cases reaching the same result, including Wilson v. Girard, 354 U.S. 524 (1957). To like effect we have a number of cases in which persons being extradited to face foreign trials argued that it was unlawful to do so when the procedures awaiting them abroad fell below U.S. constitutional standards. The courts have consistently taken the position that:

The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. Neely v. Henkel, 180 U.S. 109, 122 (1901).

This rule has been consistently followed, so that a court could say ... we have discovered no case authorizing a Federal court, in a habeas corpus proceeding challenging extradition from the United States to a foreign nation, to inquire into the procedures which await the relator upon extradition." Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960), cert. denied, 364 U.S. 851 (1960).

Surrender to the United States.

In a number of cases prisoners have challenged the process whereby they were turned over to the U.S. authorities for trial. The general answer of the courts has been that quoted above from Wentz v. United States, 244 F.2d 172 (9th Cir. 1957), that what happened in Mexico is "no legal concern of an American court." The one exception to this line of cases has been United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), which stated that a district court should inquire into allegations that agents of the United States had not only participated in forcefully bringing the accused into the country from Uruguay via Brazil without benefit of any request for extradition, but had also been involved in torturing him. The subsequent cases, e.g., United States v. Lira, 515 F.2d 68 (2d Cir. 1975), show that this constitutes a very narrow exception to the rule of noninquiry.

Procurement of Evidence Abroad.

In a number of cases the accused has made the claim that evidence procured by foreign police forces in violation of the rules that would be applicable to U.S. law enforcement agencies should be excluded from an American trial. The courts have conceded that a confession obtained abroad under extreme pressures might be untrustworthy, and hence unusable, and have further stated that if

the foreign police acted so closely with U.S. law enforcement officials as to convert their activities into a joint venture, the results of a search might be excluded. Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968). For the rest, the courts have rejected arguments that wiretapping or searches unlawful under American law is a basis for exclusion in the United States:

no prophylactic purpose is served by applying an exclusionary rule here since what we do will not alter the search policies of the sovereign Nation of Mexico. Brulay v. United States, 383 F.2d 345 (9th Cir. 1967).

The same result has been arrived at in an increasing number of cases. E.g., Birdsell v. United States, 346 F.2d 775 (5th Cir. 1965), cert. denied, 382 U.S. 963 (1966); United States v. Cotroni, 527 F.2d 708 (2d Cir. 1975); cf. Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 154-55 (D.D.C. 1976).

Confinement.

No case is found under which the United States confined an American citizen pursuant to an order of a foreign court- as distinguished from pretrial confinement pending surrender to the foreign state for trial or punishment. The one agreement under which that is called for has not been implemented, i.e., the Status of Forces Agreement with South Korea, 17 U.S.T. 1677, Article XXII(7) (b). The United States is authorized by statute and by the typical Status of Forces Agreement to enforce sentences of imprisonment handed down in its territory by the courts-martial of friendly foreign forces. In a terse per curiam opinion, the Supreme Court in Hirota v. McArthur, 338 U.S. 197 (1949), rejected an attempt to review the trial by an international war crimes tribunal of a Jananese prisoner held in U.S. custody. Under 22 U.S.C. 257 foreign seamen may be confined for two months pursuant to a determination by the consul of the relevant foreign country. See Dallemagne v. Moisan, 197 U.S. 169 (1905). Citizens taken into custody abroad by reason of their insanity may, under 24 U.S.C. 321, be transferred into American institutions. That law has been applied to a citizen who had been convicted of a crime abroad but moved to an institution for the criminally insane. De Marcos v. Overholser, 122 F.2d 16 (D.C. Cir. 1941).

While the international movement of prisoners has been rare. transfers between two States, between a State and the Federal government, and between Federal prisons have been quite frequent. (See 18 U.S.C. 4002, 5003.) Note that generally such transfers have been challenged in situations where the transfer was involuntary and away from the prisoner's home in contrast with those under the Treaty. The courts have sustained such moves despite claims that the transfer constituted cruel and unusual punishment, e.g., Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969); Hillen v. Director, 445 F.2d 510 (9th Cir. 1972), although one decision did indicate that a hearing should be granted prior to transfer. Hoitt v. Vitek, 361 F. Supp. 1238 (D.N.H. 1973), modified, 495 F.2d 219 (1st Cir. 1974). The decision in Meachum v. Fano, 427 U.S. 215 (June 1976), although arising in an intrastate context, does indicate that the courts will regard the question. where a prisoner is held as not a matter for judicial inquiry.