he was formally arrested by federal agents. The Court stated that
the arrest in Lujan may have been unconventional, but it did not
afford grounds for challenging the jurisdiction of the Court. In
distinguishing Toscanino, the Court stated, "In holding that
Ker and Frisbie must yield to the extent they were
inconsistent with the Supreme Court's more recent pronouncements, we
scarcely could have meant to eviscerate the Ker-Frisbie rule,
which the Supreme Court has never felt impelled to disavow."
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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