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convicted the defendant on a narcotics charge after his motion to dismiss had been denied. The defendant appealed, and the U.S. Court of Appeals affirmed the District Court's decision. Although no direct involvement by the U.S. Government in his torture could be proved, the defendant argued that the Government was “vicariously responsible” for his torture, since the DEA requested his arrest and expulsion and thus “placed the matter in motion." Circuit Judge Mansfield, speaking for the Court of Appeals, rejected the argument, stating:
Unlike Toscanino, where the defendant was kidnapped from Uruguay in defiance of the laws of the country, here the Government merely asked the Chilean Government to arrest and expel Mellafe in accord with its own procedures. This action can hardly be faulted. Agencies such as the DEA presumably must cooperate with many foreign governments in seeking transfer to the United States of violators of United States law. The DEA can hardly be expected to monitor the conduct of representatives of each foreign government to assure that a request for extradition or expulsion is carried out in accordance with American constitutional standards. Moreover, no purpose would be served by holding the Government responsible for the actions of Chilean police. Our decision in Toscanino was grounded on the same principle which underlay the Supreme Court's adoption of the exclusionary rule in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6L.Ed.2d 1081 (1961). In both cases the purpose of the rule was to deter police misconduct by barring "the government from realizing directly the fruits of its own deliberate and unnecessary lawlessness in bringing the accused to trial,” 500 F.2d at 272. Hopefully divestiture of jurisdiction over a defendant forcibly abducted by our Government from a foreign jurisdiction would inhibit our Government from engaging in similar unlawful conduct in the future. However, where the United States Government plays no direct or substantial role in the misconduct and the foreign police have acted not as United States agents but merely on behalf of their own government, the imposition of a penalty would only deter United States representatives from making a lawful request for the defendant and would not deter any illegal conduct. Since our Government has no control over the foreign police, extension of Toscanino to the present case would serve no purpose. (p. 71.)
The appellant-defendant also argued that Chilean law was violated when the Chilean Government issued an expulsion decree directing that he be sent to the United States. The Court held that the U.S. Government did not owe him any obligation to enforce his asserted right under Chilean law, and where Chile was aware of the alleged violations on the part of its own officials and did not interfere, such alleged violation of defendant's rights by Chile did not affect the jurisdiction of courts in the United States. It also stated that the DEA agents were entitled to rely on the Chilean Government's interpretation and enforcement of its own laws in expelling the defendant from Chile at U.S. Government request.
În a concurring opinion, Circuit Judge Oakes stated that he found the case more troublesome than did the majority. He expressed concern at "giving further countenance to this kind of conduct by law enforcement agents.” He felt called upon to point out that "there is a very strong policy which would be operative if the abduction here were from an objecting country (as was allegedly the case in Toscanino) or in violation of a treaty. .. That policy is of course respect for the law of nations, the requirements of world society, and the integrity and independence of other nations, not only under formal charters like those of the United Nations (Art. 2, par. 4) and the Organization of American States (Art. 17), but as unwritten obligations of international law. . . . That respect for the sovereign integrity of other nations is, in addition to conforming to high moral principles, a self-serving pragmatic viewpoint for the United States to take; we can better demand in the international court of public opinion similar respect for our sovereign integrity if we extend such respect to others. Nothing in Lujan [ante, p. 332] is to the contrary.” (pp. 72–73.)
In concluding his separate opinion, Circuit Judge Oakes suggested a possible basis for barring jurisdiction in abduction cases. He stated:
Finally it should be said that, regardless of the abstract doctrine Ker and Frisbie are said to stand for, we can reach a time when in the interest "of establishing and maintaining civilized standards of procedure and evidence," we may wish to bar jurisdiction in an abduction case as a matter not of constitutional law but in the exercise of our supervisory power under McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1942), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).As we pointed out in Toscanino, supra, that "supervisory power is not limited to the admission or exclusion of evidence, but may be exercised in any manner necessary to remedy abuses of a district court's process." 500 F.2d at 276. To my mind the Government in the laudable interest of stopping the international drug traffic is by these repeated abductions inviting exercise of that supervisory power in the interests of the greater good of preserving respect for law. (p. 73.)
Upon rehearing in United States v. Toscanino, 398 F. Supp. 916 (1975), pursuant to the remand order of the Second Circuit Court of Appeals, 500 F.2d 267 (1974), the District Court for the Eastern District of New York held that U.S. officials had not participated in the alleged forcible abduction and torture of Toscanino, an Italian citizen and convicted narcotics trafficker. For a summary of the Second Circuit Court's opinion in 1974, see the 1974 Digest, pp. 251-254.
Chief Judge Jacob Mishler (E.D.N.Y.) in a memorandum opinion dated July 10, 1975, noted that Toscanino had submitted only an 11-page affidavit as evidence of his allegations of due process violations. In Judge Mishler's view, the affidavit failed to show that United States officials had participated in Toscanino's alleged abduction or torture and supplied no credible evidence of violation of his due process rights. Judge Mishler denied Toscanino's motion to vacate his conviction and denied his motion to dismiss the indictment on jurisdictional grounds.
Jurisdiction Based on Nationality
Nationality of the Victim
On August 29, 1975, the Department of State sent a note to the Embassy of Greece in Washington protesting the continued practice of the Greek Consul in New Orleans of serving summonses for courts in Greece in cases in which there was no valid basis for the exercise of jurisdiction. Such service on a U.S. citizen resident in Louisiana had been protested by the Department of State in a note of June 18, 1973, to the Greek Embassy in Washington. See the 1973 Digest, pp. 197–198. Despite that protest, the Consul of Greece in New Orleans had served on a U.S. citizen in Louisiana a similar summons, dated June 26, 1975, issuing from the Court of Petty Sessions of Athens. Both the 1973 and 1975 summonses related to action arising out of an automobile accident which occurred in Louisiana involving a U.S. citizen and a Greek national. The U.S. protest note of August 29, 1975, recalled the 1973 protest and went on to state:
As the Embassy of Greece is aware, the Department of State does not recognize as a basis for the exercise of jurisdiction by a Greek court over a United States citizen an accident occurring within the territory of the United States; nor is such exercise of jurisdiction generally accepted under international law. The service of summons in the United States by foreign diplomatic or consular representatives is clearly improper in these cases because the incidents involved are exclusively within the domestic jurisdiction of the United States.
The Department of State requests, therefore, that the Consuls of Greece cease service in the territory of the United States of summons on Mr. Andermann and in similar cases.
In a letter to Representative Gillis Long, dated August 29, 1975, Ambassador Robert J. McCloskey reported the U.S. protest concerning the summons and pointed out that under U.S. treaties with Greece and U.S. law, the U.S. citizen involved in the accident was not subject to extradition in the matter. He added that nonacceptance by the United States of the Greek court's jurisdiction would not invalidate the service so far as the Greek courts were concerned, but that any action taken by them against the U.S. citizen would be protested by the Department of State. His letter added a strong recommendation, however, that the individual summoned refrain from visiting Greece.
Dept. of State File Nos. P75 0141-667 and P75 0139_595.
In Cooley v. Weinberger, 398 F. Supp. 479 (1974), the United States District Court for the Eastern District of Oklahoma held that an Iranian conviction of the plaintiff for the willful homicide of her husband was properly accorded recognition by the Secretary of Health, Education, and Welfare in denying her benefits under the Social Security Act based on the earnings of her husband. In a memorandum opinion on March 26, 1974, the Court concluded that the Iranian conviction was valid and was not against the public policies or laws of the United States, although Iran did not afford the plaintiff the very same facets of due process which the United States affords in criminal process. The Court stated:
Every sovereign state must recognize the independence of every other sovereign state and the courts of one will not sit in judgment upon the acts of the government of another done within its own territory. ... It is true that one state will not enforce the penal laws of another state. . . . A penal law is a law, the purpose of which is to punish an offense against public
justice of the state rather than to afford a private remedy to a person injured by a wrongful act. . . . The general rule is that things done in one sovereignty in pursuance of the law of that sovereignty are regarded as valid and binding everywhere, and, vice versa, things invalid where done are invalid everywhere.
Although a violation of a penal law is involved herein, there is not a request to enforce it but a request by an individual to refute it. The conviction in Iran was based on and pursuant to the laws of Iran and therefore is a valid conviction.
The plaintiff claims that it is against public policy and without due process to deny the benefits to her based upon her Iranian conviction. This is not true as the Iranian conviction is based upon a law prohibiting homicide which is not against the public policy in the United States. It is true that a foreign "act of state" will not be given effect against property in this country if it is inconsistent with the public policy and laws of the United States and it will not be recognized or enforced. . . . But, as stated, that is not the case here. The public policy and laws of the United States prohibit homicide. Thus, the Iranian conviction for homicide is not against public policy or laws in this country. The conviction in Iran was one where the court had jurisdiction of the case and of the parties and became a final judgment when the conviction was affirmed by the Second Bench on appeal. The test here is the final conviction, not the local procedures by which it was accomplished.
On plaintiff's motion for a new trial, the decision was affirmed, 10 Cir., 518 F.2d 1151, June 10, 1974. The Court of Appeals referred to the case of Hilton v. Guyot, 159 U.S. 113 (1895), holding that a French judgment should be given validity in the United States even though plaintiff in France was allowed to testify without oath or cross-examination which was in accordance with the laws and practices of France, and not in accordance with those of the United States. It cited, also, the rule in 47 Am. Jur. 2d, Judgments, $ 1247, that recognition is not to be affected by the existence of different procedures in the courts of two countries, but that "proceedings must have been conducted with no flagrant departure from the ordinary course of judicial procedure, but, on the contrary, according to the course of a civilized jurisprudence. .." The Court then added:
In this connection, the Court will take judicial notice of the Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran, 8 U.S.T. 901 (1955), which treaty was in force at the time of the homicide of the insured individual and plaintiff's Iranian criminal proceedings which are involved in this case. The rights thereunder to be afforded the plaintiff of just and humane treatment, the right to contact a consular representative, to be informed of the charges against her, the facilities necessary to her defense, and a prompt and a fair disposition of her case are shown by the record to