Proceeding to an analysis of the nature of the jurisdiction invoked by the FTC's service, Judge Wilkey described the district court's order as an attempt to exercise enforcement jurisdiction within foreign territory before prescriptive jurisdiction over the conduct investigated had been proven to exist. In ruling that the district court's enforcement order violated a fundamental international legal principle, the Court referred to the Restatement (Second) of the Foreign Relations Law of the United States and to conclusions adopted by the International Law Association at its Fifty-first (Tokyo) Conference and its Fifty-second (Helsinki) Conference, regarding the invalidity under international law of orders that compel production of documents from abroad. The district court, Judge Wilkey summed up, had determined the propriety of the FTC's method of service by reference to the agency's subject matter jurisdiction, deriving its specific subpoena authority abroad by implication from the agency's "general investigatory and regulatory jurisdiction." The implication was not warranted, Judge Wilkey determined, and he suggested in view of the international interests at stake the following "appropriate interpretation":

(footnotes omitted)

At the time of service, the best reading of congressional intent with regard to permissible modes of subpoena service was one authorizing the FTC to use all customary and legitimate methods of service of compulsory process commonly employed by American courts and administrative tribunals. Such a reading would have imposed the requirement of personal service found in Federal Rule of Civil Procedure 45(c), governing permissible methods of subpoena service by a federal court, upon FTC subpoenas as well. It would have further required that wherever possible, an agency attempting subpoena service on foreign citizens residing on foreign soil should make initial resort through established diplomatic channels or procedures authorized by international convention.

To interpret the congressional intent underlying the FTC Act as authorizing methods of agency subpoena service abroad less rigorous than the means used to serve judicial subpoenas domestically . . . run[s] counter to common intuition. . . . We cannot imagine that when Congress enacted the FTC Act in 1914 it could have intended an administrative agency such as the FTC to procure witnesses and documents from abroad by means which no civil litigant had ever been able to employ within the borders of the United States. Nor can we imagine that Congress originally intended that the federal courts exercise their enforcement powers to aid administrative agency investigations initiated by registered mail, without making provision for the inevitable infringements upon foreign sovereignty which would result from such exercises.

636 F.2d 1323-1324.

Judge Wilkey noted that direct service of American subpoenas abroad did not always violate international law. He pointed out that nations might consent generally

to service of compulsory process upon their nationals by another nation's government agencies through becoming party to an international convention, such as the (Hague) Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, done Nov. 15, 1965 (TIAS 6638; 20 UST 361; entered into force for the United States, Feb. 10, 1969). Alternatively, a nation might consent to a particular request for service of another nation's compulsory process upon its own citizens and thus minimize the infringement upon national sovereignty caused by the service itself.

The Court also took judicial notice of a 1980 amendment to the FTC Act, enacted after the subpoena under challenge had been issued (sec. 20(c)(6)(B), added by sec. 13 of the Federal Trade Commission Improvements Act of 1980, Pub. L. No. 96-252, approved May 28, 1980, 94 Stat. 381, 15 U.S.C. 57b-1(c)(6)(B)). The amendment expressly authorized the FTC to serve its civil investigative demands outside the United States "in such a manner as the Federal Rules of Civil Procedure prescribe for service in a foreign nation." The Court commented that passage of the amendment indicated that "when Congress intends to authorize extraterritorial service of investigative subpoenas, it will express that intent explicitly." Even if the agency could accomplish proper service, the Court observed, whether it could actually obtain the documents in question was not settled, and it noted passage of a "fresh wave of foreign nondisclosure laws", in response to the "willingness of American courts to order production of foreign documents." 636 F.2d, at 1324-1326.

Special Aircraft Jurisdiction of the United States

Chumney v. Nixon, 615 F.2d 389 (6th Cir. 1980), was a civil action for damages allegedly sustained during a fracas aboard a chartered aircraft en route from Rio de Janeiro to Memphis, Tennessee, while the aircraft was some 29,000 feet over the Brazilian jungle.

On January 24, 1980, the United States Court of Appeals for the Sixth Circuit reversed the district court's dismissal on motions and remanded the case, holding that a private right of action was consistent with, and could be derived from, the Federal criminal assault statute, 18 U.S.C. 113, made applicable by 49 U.S.C. 1472 (k)(1) to the "special aircraft jurisdiction of the United States", as defined in 49 U.S.C. 1301(34)(d)(1).

Writing for the Court, Chief Judge George Clifton Edwards summarized existing case law, including five Supreme Court decisions subsequent to the district judge's dismissal of the case under appeal. He concluded that although the case did not involve a constitutional violation nor did the applicable Federal statutes either "hint at" or "reject" the plaintiffs' claim for civil damages, the action was justifiable in the Federal courts under the Federal question statute, 28 U.S.C. 1331(a). Although the sanctions established in 18 U.S.C. 113 were "purely criminal", a civil action for damages, the Court said, would be consistent with, and should be inferred from, the overall Congressional purpose of protecting passenger safety on U.S. airlines or on aircraft destined for or departing from U.S. airports.

Criminal Jurisdiction

Alleged Illegal Apprehension

In United States v. Heller, 625 F.2d 594 (5th Cir. 1980), the United States Court of Appeals for the Fifth Circuit, affirming the defendant's conviction of conspiracy to pass, utter, and publish 121 counterfeit $100,000 United States Treasury Bills, held, inter alia, that the defendant's challenge to his arrest was not sustainable under the Fourth and the Fifth Amendments to the Constitution in the circumstances of his detention and arrest by British authorities at the London airport.

The detention took place after a United States Secret Service agent, relying upon an informant's tip, had informed Scotland Yard of the fact that Heller was in London and in possession of counterfeit Treasury Bills. British authorities had already detained Heller and seized the counterfeit Treasury Bills when an American agent arrived on the scene.

The appellant contended on appeal that his arrest did not comport with Fourth Amendment requirements of probable cause and the securing of a warrant, that his statements to British authorities were inadmissible in evidence because he had not been given a Miranda [Miranda v. Arizona, 384 U.S. 436 (1966)] warning, and that American law enforcement officers participated in the interrogation or that the British authorities acted as their agents. The Fifth Circuit rejected these arguments.

Writing for a three-judge panel, Circuit Judge Phyllis A. Kravitch stated in her opinion, dated September 8, 1980:

Conduct of the British Authorities

Ordinarily, the fourth amendment does not apply to arrests and searches made by foreign authorities in their own country and in enforcement of foreign law. United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Similarly, statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused. Kilday v. United States, 481 F.2d 655 (5th Cir. 1973).

Two exceptions to this general rule have been recognized. The first, clearly inapplicable here, provides that if the conduct of the foreign officers shocks the conscience of the American court, the fruits of their mischief will be excluded. United States v. Morrow, supra at 139. The second exception, and the one urged by appellant, provides that if American officials participated in the foreign search or interrogation, or if the foreign authorities were acting as agents for their American counterparts, the exclusionary rule should be invoked. United States v. Morrow, supra.

The record indicates that the participation of American law enforcement officers in appellant's arrest was peripheral at most. It is true that but for a tip from an American official appellant probably would not have been arrested. However, appellant was detained and the treasury bills seized before any American agents arrived. He was charged initially with violating British, not American, law. When the American agent arrived, he interviewed appellant, but only after first obtaining permission from the British and then only for the limited time allowed by them." The American agent and the British officers did not exchange information regarding their separate interrogations of appellant. We conclude that the British officers were not acting as agents of American officers. Thus, appellant could not invoke the protection of the fourth and fifth amendments.

7 While in custody in London appellant made two statements to United States Secret Service Agent Petievich. Because Petievich gave appellant a full Miranda warning, Petievich's testimony concerning those statements was admissible.

625 F.2d 594, 599-600.

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Jurisdiction Based on Nationality

Jurisdiction Based on Agreement With the
Territorial State

Bilateral Agreements

Applications for Writ of Habeas Corpus

Constitutional challenges to the Treaty between the United States and Mexico on the Execution of Penal Sentences, signed November 25, 1976 (TIAS 8718; 28 UST 7399; entered into force, November 30, 1977), were rejected in Rosado v. Civiletti, 621 F.2d 1179 (2d Cir. 1980), cert. denied, 449 U.S. 856, reh'g denied, 449 U.S. 1027 (1980), in Pfeifer v. United States Bureau of Prisons, 615 F.2d 873 (9th Cir. 1980), cert. denied, 447 U.S. 908 (1980), and in Mitchell v. United States, 483 F. Supp. 291 (D.C. Wisc. 1980).

In Pfeifer the Ninth Circuit, affirming the district court's denial of Pfeifer's application for writ of habeas corpus, rejected his arguments that: (1) those portions of the Treaty and the implementing legislation that deny transferred prisoners the right to challenge the constitutionality of their foreign convictions in United States courts

are unconstitutional; and (2) in the alternative, even if the Treaty is constitutional, its provisions were not met in his case, because his consent to transfer had not been voluntarily and knowingly given. Writing the Court's decision dated March 26, 1980, Circuit Judge Jerome Farris pointed out at the outset that the Treaty created no new rights to enable a review of an otherwise final foreign conviction, the constitutionality of which was not before the Court.

The Ninth Circuit did not even reach the district court's holding that the United States Constitution had no relation to the validity of Pfeifer's foreign conviction for a foreign crime, the Court said, because the consent of an offender to the Treaty's conditions prior to the transfer, required under both the United States-Mexico Treaty and under the statutory provisions implementing treaties for the transfer of offenders to or from foreign countries (Public Law 95144, approved October 28, 1977; 91 Stat. 1212; 18 U.S.C. 4100 et seq., in particular §4108), constitutes "a waiver of, or at least an agreement not to assert, any constitutional rights the offender might have regarding his or her conviction."

The Court then reviewed the requirements for a valid waiver of constitutional rights in general and specific statutory provisions implementing prisoner transfer treaties, and found that "an offender's consent to be transferred pursuant to the Treaty [between the United States and Mexico] is a constitutionally valid waiver of any constitutional rights he or she might have regarding his or her conviction."

The Court also ruled that the requirement for an offender to agree not to challenge his or her conviction in a United States court was not an unconstitutional condition, since Americans incarcerated in Mexican prisons had no vested right to relief from United States courts. Those accepting the opportunity presented by the Treaty, the Court said, lost nothing by consenting to limit themselves solely to Mexican remedies after transfer.

Rejecting Pfeifer's contention that a waiver under the Treaty "cannot be valid because the duress caused by the brutal conditions of Mexican prisons denies the transferring prisoner any real choice", the Ninth Circuit agreed with the district judge that the record did not support Pfeifer's allegations that his consent had not been voluntarily and knowingly given.

Because of the waiver the Court held "inapposite" Pfeifer's contention that he had the right to challenge the validity of his Mexican conviction in a United States court under the joint venture doctrine, which, Judge Farris stated, would not apply to the facts of the case in any event. (Under the doctrine evidence obtained through activities of foreign officials, in which United States agents have substantially