The opinion of the court was delivered by: Foreman, District Judge:
Now before the Court is defendant's Motion for an Order
Compelling Answers to Interrogatories. The interrogatories seem
to concern the general issue of whether David was kidnapped and
brought to the United States. Plaintiff has filed objections to
the answering of these questions, claiming that they are
irrelevant. It is the Government's position that the kidnapping,
if it did occur, did not deprive this Court of jurisdiction nor
would it constitute a defense to this extradition proceeding.
David seems to contend that he was kidnapped by agents of the
United States from Brazil and returned to New York. Subsequently,
on December 1, 1972, he entered a plea of guilty to Count 7 of an
eleven-count indictment which charged David along with sixteen
other defendants with various narcotic violations. Chief Judge
Jacob Mishler made patient, painstaking efforts to insure that
David understood that his entry of a plea of guilty did not
protect him from subsequent extradition. The transcript of
David's guilty plea also clearly reflects that there was no
agreement of any kind between David and the United States
David's contentions have never been spelled out with
specificity. In his answer, David presents only the conclusory
allegation "that [David] was brought to the United States
illegally by employees, agents, or deputies of the United States
Government." He has not alleged torture by agents of any
In the analogous area of interstate extradition the rule has
long been that one state still has jurisdiction to try a criminal
defendant even where the defendant was forcibly abducted from
another state by agents of the state which eventually tried him.
Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541
(1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421
(1886). See also United States v. Miller, 384 F. Supp. 56
In a thorough analysis of the Ker-Frisbie doctrine, the Court
of Appeals for the Second Circuit has noted criticisms thereof
and its partial erosion. United States v. Toscanino, 500 F.2d 267
(2d Cir. 1974). Placing primary reliance upon Rochin v.
California, 342 U.S. 165, 77 S.Ct. 205, 96 L.Ed. 183 (1952) and
United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d
366 (1973), the Second Circuit held that the requirement of due
process in obtaining a conviction extends to the pretrial conduct
of law enforcement authorities and stated that if the defendant
could prove his claims that he was kidnapped from Uruguay and was
severely tortured, the Court would lack jurisdiction to try him.
Toscanino had alleged almost inhuman Government misconduct with
interrogation methods that included beatings, starvation, and the
administration of electrical shocks. The treatment was so
shocking that the Court characterized it as being "reminiscent of
the horror stories told by our military men who returned from
Korea and China." (500 F.2d at 270).
Despite severe criticisms of the Ker-Frisbie doctrine, the
Supreme Court has never seen fit to reverse those decisions and
this court feels bound by them. Additionally, this Court notes
that David's allegations are much closer to those of Lujan,
rather than those of Toscanino. David has not alleged the
egregious and shocking type of torture that was alleged in
Toscanino. Thus, assuming arguendo that David was
kidnapped, his kidnapping was not so egregious as to bring it within the
Toscanino exception to the Ker-Frisbie doctrine, if
indeed the exception exists.
Another major impediment to David's utilization of the alleged
kidnapping as a device to assert that this Court is without
jurisdiction is his plea of guilty entered in New York. It
appears from the transcript of that proceeding that David and his
attorney were very much aware that extradition proceedings might
be instituted against him. Nonetheless, David with the assistance
of counsel entered a knowing and intelligent plea of guilty. If
he had desired, he could have raised the issue of the alleged
kidnapping at that time, as both Toscanino and Lujan
did. That would have been the proper time for raising the kidnapping issue.
His failure to do so constitutes a waiver of his right to assert
the lack of jurisdiction at this time. By pleading guilty to the
federal narcotics charge in New York, he submitted himself to the
jurisdiction of the United States and, thus, he became eligible
Moreover, the Court has grave doubts about whether a kidnapping
could ever deprive the Court of jurisdiction in an extradition
proceeding or serve as a defense therein. Toscanino was a
criminal action and the decision was predicated upon the Fifth
Amendment which provides that a person can not be deprived of
life, liberty or property without due process of law. Unlike the
criminal trial courts in Lujan and Toscanino,
this Court is not able to deprive David of his liberty. The issue
in this case is a very narrow one i.e. whether David should be
returned to France to stand trial on a pending criminal charge.
This Court can not and will not impose any punishment upon David.
For the foregoing reasons, David's assertion of the alleged
kidnapping can not be a defense to this extradition proceeding.
Nor can it deprive the Court of jurisdiction in this matter.
Thus, the Court will not order the plaintiff to answer
interrogatories 13, 14, 15 and 16. Thus, David's Motion for an
Order Compelling Answers to these Interrogatories is hereby
denied. Similarly, the request for witnesses who will testify
regarding the kidnapping is hereby denied.
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