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UNITED STATES v. MARZANO

January 28, 1975

UNITED STATES OF AMERICA, PLAINTIFF,
v.
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 certain evidence.

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
  regular indictment."

The Seventh Circuit, in United States ex rel. Calhoun v. Twomey, supra, 454 F.2d at 326, commenting on Ker and Frisbie, stated:

  "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
  ...

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