Europe, signed in Helsinki, it is the sense of the House of Representatives (1) that there has been no change in the longstanding policy of the United States on nonrecognition of the illegal seizure and annexation by the Soviet Union of the three Baltic nations of Estonia, Latvia, and Lithuania, and (2) that it will continue to be the policy of the United States not to recognize in any way the annexation of the Baltic nations by the Soviet Union.

Cong. Rec., Vol. 121, No. 176, Dec. 2, 1975, p. H11587 (daily ed.). The resolution noted that the President and the Assistant Secretary of State for European Affairs had previously stated that U.S. policy on nonrecognition of the Soviet Union's forcible annexation of the Baltic nations had not been affected by the CSCE. For the full text of the Final Act of the CSCE, see Dept. of State Bulletin, Vol. LXII, No. 1888, Sept. 1, 1975, pp. 323-350. See also index entries, this Digest, under Conference on Security and Cooperation in Europe (CSCE) (1975).

Foreign States

In Republic International Corporation, et al. v. Amco Engineers, Inc. et al., No. 73-2459, the Ministry of Public Works of the Republic of Uruguay, a codefendant, appealed from a default judgment entered in favor of Republic International Corporation for damages for breach of contract. On April 25, 1975, the U.S. Court of Appeals for the Ninth Circuit held that service of process on the appellant under Rule 83 of the Federal Rules of Civil Procedure was proper in view of the issuance of letters rogatory to the Uruguayan court and service by special agent to the special residence of the Ministry of Public Works in Montevideo with a return of summons to the Court. The opinion also held that the dispatch of engineers by the Ministry to the offices of Amco in Los Angeles and their presence there for several months was sufficient to support a finding of personal jurisdiction over the appellant. However, the Court held that the action should have been dismissed because forum selection clauses in the original contract provided that suit should be brought in the courts of Uruguay.

Criminal Jurisdiction

Illegal Apprehension

On January 8, 1975, the United States Court of Appeals for the Second Circuit decided in the case of United States ex rel. Lujan v. Gengler, 510 F.2d 62 (1975), cert. denied 421 U.S. 1001 (1975), that

the abduction and transportation of petitioner, a resident of Argentina, to the United States from Bolivia for arrest under indictment in New York, in the absence of any contention that he was subjected to torture, terror, or custodial interrogation of any kind or that either Argentina or Bolivia protested his abduction, did not constitute a violation of due process which would require Federal courts to divest themselves of jurisdiction over him.

Lujan had been indicted by a grand jury in the Eastern District of New York, with eight others including Francisco Toscanino, all charged with conspiracy to import and distribute a large quantity of heroin. The arrest warrant for Lujan commanded any special agent of the Drug Enforcement Administration, U.S. Marshal or Deputy Marshal to bring him before the District Court for the Eastern District of New York. Lujan claims to have been lured to Bolivia by a businessman hired by American agents. In Bolivia he was taken into custody by Bolivian police, also claimed by him to have been paid agents of the United States, and was not allowed to communicate with the Argentine Embassy, an attorney, or any member of his family. Bolivian police, acting together with American agents, placed him aboard a plane bound for New York. On arrival at Kennedy Airport, he was formally arrested by Federal agents. He had not been formally charged by the Bolivian police, nor had a request for extradition been made by the United States. After the decision in United States v. Toscanino, 500 F.2d 267 (1974) (see the 1974 Digest, pp. 251-252), Lujan challenged the manner in which he was brought to the United States, and he petitioned for a writ of habeas corpus. The District Court dismissed the petition without a hearing and the prisoner appealed. The Court of Appeals, the same court that had decided the Toscanino case, affirmed the judgment of the District Court. It readily distinguished the two cases, stating:

It requires little argument to show that the government conduct of which he complains pales by comparison with that alleged by Toscanino. Lacking from Lujan's petition is any allegation of that complex of shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to a violation of due process. Unlike Toscanino, Lujan does not allege that a gun blow knocked him unconscious when he was first taken into captivity, nor does he claim that drugs were administered to subdue him for the flight to the United States. Neither is there any assertion that the United States attorney was aware of his abduction, or of any interrogation. Indeed, Lujan disclaims any acts of torture, terror, or custodial interrogation of any kind.

In sum, but for the charge that the law was violated during the process of transporting him to the United States, Lujan charges no deprivation greater than that which he would have endured through lawful extradition. We scarcely intend to convey approval of illegal government conduct. But we are forced to recognize that, absent a set of incidents like that in Toscanino, not every violation by prosecution or police is so egregious that [it]. . . requires nullification of the indictment. (p. 66.)

Chief Judge Irving R. Kaufman, speaking for the Court, also rejected Lujan's contention that his abduction violated the Charter of the United Nations (Article 2, paragraph 4) and the Charter of the Organization of American States (Article 17), which proscribe use of force by one state against the territory of the other. The Court stated that, unlike Toscanino, Lujan failed to allege that either Argentina or Bolivia in any way protested or even objected to his abduction. That omission, the Court said, was fatal to any reliance on the Charters. It added:

The provisions in question are designed to protect the sovereignty of states, and it is plainly the offended states which must in the first instance determine whether a violation of sovereignty occurred, or requires redress. H. Kelsen, Principles of International Law 234 (Tucker ed. 1966); ALI, Restatement (Second) of the Foreign Relations Law of the United States § 1, comment f; § 163, comment d (1965). Indeed, even where a treaty provides certain benefits for nationals of a particular statesuch as fishing rights-it is traditionally held that

any rights arising out of such provisions are, under international law, those of the states and . . . individual rights are only derivative through the states.

Id. § 115, comment e.

Thus, the failure of Bolivia or Argentina to object to Lujan's abduction would seem to preclude any violation of international law which might otherwise have occurred. . . . (p. 67.)

In United States v. Marzano, 388 F. Supp. 906 (1975), the U.S. District Court for the Northern District of Illinois, on January 28, 1975, rejected the argument of defendants that their arrest in Grand Cayman and the manner of their return by airplane to the United States violated due process and did not comply with the 1931 extradition treaty between the United States and the United Kingdom (TS 849; 47 Stat. 2122; 12 Bevans 482). It denied their motion for discharge from custody.

The defendants were charged with stealing an estimated $4.3

million from corporate headquarters in Chicago. They were arrested in Grand Cayman by a Grand Cayman police officer on charges of infractions of Grand Cayman law, and brought to the United States aboard an airplane which they voluntarily boarded. On their arrival in Miami they were immediately arrested by agents of the Federal Bureau of Investigation. The defendants argued that the United States had not complied with the extradition treaty which requires that extradition shall take place only if the evidence be found sufficient, in accordance with the laws of the country applied to, in order to justify the committal of the prisoner for trial. They asserted that the United States had not presented any evidence to the British authorities but instead had abducted defendants without following the mandate of the treaty.

The Court held that the evidence presented showed that the Grand Cayman police officer had asserted complete control over the investigation of the defendants in Grand Cayman and that the FBI agents had played no part therein, although they had been allowed to accompany the Grand Cayman police officer in his investigation and had paid the airfare of the defendants and the Grand Cayman officer who accompanied them to the United States. The Court said that the fact that an extradition treaty existed between the United States and the United Kingdom did not affect the defendants' status before the Court. It found that the Government had not taken action in violation of the extradition treaty and it distinguished the case from others cited by the defendants where the Government had taken "some form of affirmative action to secure the arrest and return of defendants."

Relying on the Ker-Frisbie rule, based on Ker v. Illinois, 119 U.S. 436 (1886) and Frisbie v. Collins, 342 U.S. 519 (1952), the Court stated that the factors surrounding the presence of a defendant in a jurisdiction are generally irrelevant in a criminal prosecution. It distinguished the present case from the facts in United States v. Toscanino, 500 F.2d 267 (1974). See the 1974 Digest, pp. 251-252. In this regard the Court stated:

in holding that the Ker-Frisbie rule was not intended to give government agents a carte blanche in bringing home defendants from abroad by use of torture, brutality or other outrageous conduct, the Court [in Toscanino] did not intend to suggest that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would result in a dismissal of the indictment and a discharge from custody. . . .

This Court is also of the opinion that the Ker-Frisbie rule is still the appropriate test to be applied in evaluating the question of a Court's jurisdiction over defendants who have been returned to the United States against their will. The Toscanino decision is only applicable in those cases that present an egregious factual situation involving torture, brutality, or some form of an official protest to the violation of an extradition treaty by a foreign government. None of those factors are present in the instant case. . . . (p. 910.)

With respect to the defendants' contentions that their arrest in Grand Cayman was a pretext, and that the evidence in bank deposits there was unlawfully seized and therefore inadmissible, the Court replied that the exclusionary rule does not apply to evidence seized in a foreign country by foreign agents unless the conduct which produced the evidence was in violation of the United States Constitution and United States agents substantially participated in the conduct.

In United States v. Lira, 515 F.2d 68 (1975), decided on April 14, 1975, the U.S. Court of Appeals for the Second Circuit, in a narcotics case involving forcible abduction of the defendant into the jurisdiction, applied the Ker-Frisbie rule and again found the Toscanino doctrine inapplicable. The Court held that in the absence of any direct evidence of any misconduct on the part of the U.S. Government, the Court's power to bring the defendant to trial on criminal charges was not impaired by his forcible abduction into the jurisdiction following alleged torture by the Chilean police. The Court also stated that the mere fact that the Government had asked the Chilean Government for the arrest and expulsion of the defendant before he was tortured by the Chilean police did not call for application of the Toscanino doctrine, which would deny the Government the right to take advantage of its own misconduct.

The defendant in the present case was a Chilean national, named Rafael Lira, whose true name was Rafael Mellafe. He had been arrested in Santiago and taken to the local police station, where he claims to have been blindfolded, beaten, and tortured. He testified that he was thereafter taken to the Chilean Naval Prison and forced to sign a decree expelling him from Chile, and that two men standing by in a hallway were identified to him by a fellow prisoner as agents of the U.S. Drug Enforcement Administration (DEA). He was placed aboard a plane on which were two DEA officials and eight Chilean policemen. On arrival in New York he was arrested. A DEA agent testified that the defendant had been arrested in Chile at the DEA's request and that the U.S. Government had also requested an expulsion order. He denied that the DEA was involved in the Chilean investigation.

The U.S. District Court for the Southern District of New York