United States District Court, Northern District of Illinois, E.D
January 28, 1975
UNITED STATES OF AMERICA, PLAINTIFF,
PASQUALE CHARLES MARZANO ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on the motions of
defendants Luigi Michael DiFonzo and Pasquale Charles Marzano
for the Court to discharge them from custody and to suppress
The defendants in this action were named in an indictment
presented before this Court on November 7, 1974 accusing them
of stealing an estimated 4.3 million dollars from the
headquarters of the Purolator Company located here in Chicago.
Defendants DiFonzo and Marzano were arrested in Miami, Florida
on October 31, 1974, by agents of the Federal Bureau of
Investigation. They were immediately placed under arrest upon
disembarking from an airplane which had just arrived from
Grand Cayman Island in the British West Indies.
In support of their motion defendants charge that: "[t]he
Government's illegal, forcible abduction of defendants from
the British West Indies deprived defendants of their rights to
due process of law, and therefore this Court must divest
itself of personal jurisdiction over each of them, and
discharge them." On January 24, 1975, this Court held an
evidentiary hearing directed at determining the nature of
defendants' arrest. In addition counsel for defendants and the
Government have filed extensive briefs on this issue.
There appears to be no serious dispute as to the facts
surrounding the defendants' return to the United States. In no
way did the United States Government illegally or forcibly
abduct the defendants from the British West Indies. In fact,
the evidence is manifestly clear the the Federal Bureau of
Investigation played little or no part in the return of the
defendants to the United States. A review of the evidence
indicates that the defendants' return to the United States
resulted principally from the efforts of one Grand Cayman
police officer, Detective Superintendent Derrick Tricker.
In summary, Supt. Tricker testified that he was aware of the
fact that the defendants were present on the Island and had in
their possession a large quantity of American currency. When
contacted by the F.B.I. he agreed to meet two agents of the
Bureau who were attempting to locate the defendants. However,
Supt. Tricker admonished the agents upon arriving on the
Island that they could not carry weapons (prohibited under
Island law) nor could they interrogate or to take into custody
the defendants. As he testified, "I informed them that they
had no jurisdiction but allowed them to accompany me
in my investigation." At the hearing the F.B.I. agents totally
corroborated Supt. Tricker's testimony. The agents did not
take the defendants into custody nor even speak to the
defendants about the crime committed and the ensuing
investigation by American authorities. No evidence to the
contrary was offered.
On the morning of October 31, Supt. Tricker asked the
defendants to board a plane bound for Miami. He had previously
taken defendants into custody for various infractions of Grand
Cayman law. At no time did the defendants resist boarding the
flight for Miami. On no occasion did agents of the F.B.I.
actively involve themselves in the process whereby the
defendants returned to the United States.*fn* Even if the
F.B.I. agents had wanted to arrest, illegally kidnap, or
forcibly abduct the defendants, it was clear that Supt.
Tricker would not permit such actions since the American
agents were without any form of authority or jurisdiction on
the Island. Indeed, as Supt. Tricker made imminently clear by
his testimony, he was the one responsible for defendants'
return to the United States, not the F.B.I. agents. The agents
throughout the time in question were mere observers.
JURISDICTION IS NOT AFFECTED BY THE METHOD IN WHICH THE
DEFENDANTS WERE BROUGHT BEFORE THE COURT.
It has been asserted by the defendants that this Court has
not acquired jurisdiction over them because their return to
the United States violated due process and a British-American
extradition treaty. Yet it is well settled that the factors
surrounding the presence of a defendant in a jurisdiction are
generally irrelevant in a criminal prosecution. Ker v.
Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).
Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541
(1952); United States ex rel. Calhoun v. Twomey, 454 F.2d 326
(7th Cir. 1971); United States v. Rodriquez y Paz,
435 F.2d 1304 (5th Cir. 1970); In Re Chan Kam-Shu, 477 F.2d 333 (5th
Cir. 1973); Hobson v. Crouse, 332 F.2d 561 (10th Cir.1964);
Chandler v. United States, 171 F.2d 921 (1st Cir. 1948). The
Supreme Court of the United States established this rule in
1886 and has not yet departed from it.
In Ker v. Illinois, supra, 119 U.S. at 440, 7 S.Ct. at 227,
the Supreme Court stated:
"We do not intend to say that there may not be
proceedings previous to the trial, in regard to
which the prisoner could invoke in some manner
the provisions of this clause of the
constitution, but, for mere irregularities in the
manner in which he may be brought into the
custody of the law, we do not think he is
entitled to say that he should not be tried at
all for the crime with which he is charged in a
The Seventh Circuit, in United States ex rel. Calhoun v.
Twomey, supra, 454 F.2d at 326, commenting on Ker and Frisbie,
"But we are aware of no decision of the Supreme
Court of the United States which rejects the
teaching of these cases that absent some other
factor which has resulted in a forfeiture of
jurisdiction, the method by which a person is
returned to a State does not affect that State's
jurisdiction over him. Once a person is within
the jurisdiction of a State and held under valid
process, the circumstances surrounding his being
there will not be inquired into," 454 F.2d at
In establishing this rule, the Supreme Court was cognizant
of both due process and treaty arguments.
The contention that the recent expansion of procedural due
process by the Supreme Court impliedly overrules the
Ker and Frisbie line of cases has not been widely successful.
The Seventh Circuit implicitly rejected it in United States ex
rel. Calhoun v. Twomey, supra. The Ninth and Tenth Circuits
have explicitly rejected it. United States v. Cotten,
471 F.2d 744 (9th Cir. 1973). Hobson v. Crouse, supra 332 F.2d at 561.
In Cotten, supra,the court stated:
"As did the Tenth Circuit in the
Hobson case, we find nothing in Mapp v. Ohio,
[367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081,] or Fay v.
Noia [372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837],
nor in the cases cited by the appellants, which
implies that the expanded scope of protection
afforded to accused persons by both the Fifth and
Fourteenth Amendments would preclude trial of the
accused by a court of competent jurisdiction. The
remedy for the conduct appellants complain of, if
one exists, is not the bar to the prosecution they
suggest when urging the court below was without
jurisdiction," 471 F.2d at 748-749.
The argument that Rochin v. California, 342 U.S. 165
, 72 S.Ct.
205, 96 L.Ed. 183 also implicitly overruled the
Ker-Frisbie doctrine was also rejected by the Ninth Circuit in
Cotten, supra 471 F.2d at 748.
Defendants place great reliance upon United States v.
Toscanino, 500 F.2d 267 (2nd Cir. 1974) claiming that this
decision shows the invalidity of the Ker-Frisbie rule. The
facts in the Toscanino case are totally different than what
occurred in the instant case. It is like comparing a domestic
arrest to an international kidnapping.
Toscanino charged and was prepared to prove that on January
6, 1973, he and his seven-month pregnant wife had been lured
to a deserted area in Montevideo by seven Uruguayan policemen,
acting as paid agents of the United States government.
Toscanino was knocked unconscious with a gun, in full view of
his wife, bound and blindfolded, and thrown into the rear seat
of a car. During a long and circuitous trip to the Brazilian
border his abductors dodged the Uruguayan authorities, and at
one point, a gun was placed to Toscanino's head to compel him
to lie quietly while a Uruguayan military convoy passed.
Toscanino was eventually brought to Brasilia, where over a
period of seventeen days he was incessantly subjected to
brutal torture and interrogation by Brazilians acting as
agents of the United States government. His captors, he
claimed, denied him sleep and all forms of nourishment for
days at a time. He was fed only intravenously in amounts
barely sufficient to keep him alive. He was compelled to walk
up and down a hallway for seven or eight hours at a time, and
when he fell, was kicked and beaten. To induce him to respond
to the interrogation, his fingers were pinched with metal
pliers, alcohol was flushed into his eyes and nose, and other
fluids were forced in his anal passage. Electrodes were
attached to his earlobes, toes, and genitals, and electricity
was shot throughout his body, leaving him unconscious for
periods of time.
Throughout this period, Toscanino asserted, the United
States government and the United States Attorney for the
Eastern District of New York were aware of the interrogation
and received reports of its progress. Moreover, a member of
the Bureau of Narcotics and Dangerous Drugs of the Department
of Justice was present at times, and actually participated in
some of the interrogation.
Eventually, Toscanino claimed, he was drugged and flown to
New York. He awakened when the aircraft reached the United
States. Upon landing and while still aboard he was arrested.
The district court never held a hearing with respect to
On appeal from his conviction, the Court found that
Toscanino had alleged a violation of due process which, if
proven, would require the trial court to dismiss the case. Yet
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 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. United States ex rel.
Lujan v. Gengler, 510 F.2d 62 (2nd Cir., 1975); United States
v. Herrera, 504 F.2d 859 (5th Cir., 1974).
In Lujan, supra, the Second Circuit carefully distinguished
the ramifications of its holding in Toscanino stating:
"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 Rochin and its progeny requires
nullification of the indictment."
And further, as Judge Anderson stated in concurring:
". . . Judge Kaufman has correctly, it seems to
me, noted and applied the thrust of the action of
the majority of this court in denying an en banc
hearing in Toscanino to the effect that whenever
a foreign national is abducted or kidnapped from
outside of the United States and is forcibly
brought into this Country by United States agents
by means of torture, brutality or similar
physical abuse the federal court acquires no
jurisdiction over him because of a violation of
due process. Otherwise the holdings of the Supreme
Court in Ker v. Illinois, 119 U.S. 436, 7 S.Ct.
225, 30 L.Ed. 421 (1886), and Frisbie v. Collins,
342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952)
govern. (Emphasis added.)
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. The
defendants' return to the United States resulted from the
efforts of Supt. Tricker. Furthermore, even if Supt. Tricker
had acted illegally under Grand Cayman law in returning the
defendants to the United States, that would not affect the
jurisdiction of this Court. This Court has no authority nor
desire to rule upon the propriety of Supt. Tricker's actions.
Yet the dictates of good common sense show that Supt. Tricker
acted in a reasonable, intelligent, and concise fashion in
returning the defendants to the United States. The actions he
took, and the involvement of the F.B.I. agents, simply cannot
be compared to the facts in the Toscanino case. The cases are
THE FACT THAT AN EXTRADITION TREATY EXISTED BETWEEN THE
UNITED STATES AND GREAT BRITAIN DOES NOT AFFECT DEFENDANTS'
STATUS BEFORE THIS COURT.
Defendants argue that the United States did not comply with
the British-American extradition treaty which requires that
extradition shall take place only if the evidence be found
sufficient, according to the laws of the country applied to,
in order to justify the committal of the prisoner for trial.
They assert further: "[t]he United States chose not to present
any evidence to British authorities, and instead abducted
defendants without following the mandate of the treaty."
Defendants, in their rush to argue the law of extradition,
look at the facts only with a jaundiced eye. Despite hours of
cross-examination by defense counsel at the hearing the only
evidence this Court heard was of Supt. Tricker's efforts to
return the defendants to the United States. There simply was
no abduction or kidnapping by American agents. Even if the
agents had sought to return the defendants to the United
States in violation of the treaty, it is very unlikely that
Supt. Tricker would have permitted such conduct. He was
running the show, and, like a true British gentleman that he
appears to be, "everything was to be done properly".
The cases cited by the defendants, United States v. Ferris,
19 F.2d 925 (N.D.Cal. 1927); Cook v. United States,
288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933); Ford v. United States,
273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927); United States
v. Schouweiler, 19 F.2d 387 (S.D.Cal. 1927), all involve
occasions wherein the government took some type of affirmative
action to secure the arrest and return of the defendants. Yet
in the case at bar this Court need not concern itself with
this question because no evidence has been presented that
agents for the government took action in violation of the
DEFENDANTS' MOTION TO SUPPRESS EVIDENCE IS WITHOUT LEGAL
The defendants have moved to suppress "cash and other
objects seized from the defendant[s] . . . at the time of
[their] arrest; any testimony relating to the circumstances of
the arrest . . .; and any currency or other objects seized
from any bank or safe-deposit box in Grand Cayman, British
West Indies," on the alleged grounds that: (1) the $26,000 in
case seized from the defendants cannot be proved to be the
fruits of a crime; (2) the defendants' arrest was a pretext
and without probable cause; (3) the return of the defendants
to the United States was unlawful; and (4) the seizures made
at banks or safe-deposit boxes in Grand Cayman violated
international law and the United States Constitution.
The first ground raised by the defendants is not the proper
subject of a motion to suppress. Whether the government can
lay an adequate foundation for the admission of such evidence
is governed by the rules of evidence. A ruling on its
admission must await the offer, at which time the court can
determine the adequacy of the foundation and the relevance of
the evidence in light of the other evidence in the case. On
the other hand, extraterritorial application of the
exclusionary rule is determined by an examination of the
purpose for which the rule was fashioned, that is, to curb
unlawful conduct of law enforcement officers by suppressing
the fruits of that conduct. Therefore, the 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. United
States v. Tierney, 448 F.2d 37 (9th Cir. 1971); United States
v. Shea, 436 F.2d 740 (9th Cir. 1970); Stonehill v. United
States, 405 F.2d 738 (9th Cir. 1968), cert. denied
395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969); Brulay v. United
States, 383 F.2d 345 (9th Cir. 1967), cert. denied,
389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1968).
United States v. Shea, supra, and United States v. Tierney,
supra, involved the same facts. Brazilian agents searched
Tierney's room after he and Shea had been arrested. Evidence
seized was introduced against them at a trial in the United
States. In Shea the court stated:
"[A]side from the question of standing, we hold
that the record before us supports the finding of
the trial judge that the arrest and search were
made by Brazilian authorities and that there was
no substantial American participation.
Consequently, the motion to suppress was denied.
The mere fact that an official of the American
Embassy in Brazil may have known of proposed
action by the Brazilian police did not place on
the appellee the burden of showing no
participation by American authorities
in the Brazilian arrest or search." United States
v. Shea, supra, at 741.
In Tierney the court added:
"The public policy behind the exclusion of
evidence found inadmissible under this country's
search and seizure laws does not extend to the
education of foreign police, or officers of
another sovereign state, in their searches within
their own jurisdiction." United States v.
Tierney, supra, at 39.
Brulay v. United States, supra, involved the seizure of
amphetamines by Mexican authorities. The court found that no
United States officer participated in questioning the defendant
at or prior to the time of the seizure, and "although the
customs agents of the United States had alerted Mexican federal
police to the defendant's activities, the Tijuana municipal
policemen who made the seizure were not acting at the
instigation of United States customs or narcotic officials." In
ruling the evidence admissible, the court stated:
"The Fourth Amendment is directed at the
Federal Government and its agencies. Fourth
Amendment rights are protected from state
encroachments by the Fourteenth Amendment which
reaches the states and their agencies. The Fourth
Amendment does not, by its language, require the
exclusion of evidence and the exclusionary rule
announced in Weeks is a court-created prophylaxis
designed to deter federal officers from violating
the Fourth Amendment. Neither the Fourth nor the
Fourteenth Amendments are directed at Mexican
officials and 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, supra,
at 348 (footnotes omitted).
Accordingly, it is hereby ordered that defendants' motions
for the Court to discharge them from custody and to suppress
certain evidence are both denied.