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The problem arises from the fact that... United States patent laws are territorial in their application and by their own terms are not infringed by acts in foreign countries that would be infringements at home. . .

It has several times been held that the fiction, as it has been called, that a United States flag vessel is United States territory, does not extend so far as to make general United States laws, enacted for territorial application, and without express reference to shipping, applicable to United States flag ships at sea . . .

In the situation of "flag of convenience" ships beneficially owned by United States nationals, but under foreign flags, the Supreme Court has had difficulty, whether and when to imply exceptions to United States law of this kind. . . .Sometimes it does so, sometimes not, as these cases illustrate.

It might be thought... that an implied exemption of foreign flag shipping from U.S. laws, even when in U.S. ports, might as a logical corollary demand a corresponding extension of the same laws to U.S. ships, even though at sea or in foreign waters. However, an exception to a statute is always easier to imply than an extension is. Any such proposed extension would have to be considered on the merits of the case. Of course, when Congress expressly and consciously legislates for shipping or aircraft, the problem vanishes: it is solely one of construing general statutes. In the case of the patent laws the canon of hostile interpretation. provides an added obstacle to implying an extension of the U.S. patent laws.

In view of the foregoing, we think a decision founded on the fiction that for purposes of the patent laws, U.S. ships and planes wherever found, are United States territory, would be founded on water. We think, however, that the question can be left open, and still we find enough other basis for concluding that the location of the infringement is within United States territory, not abroad. [Id. at 1072-1974]

The Court of Claims went on to hold that the U.S. Government's allegedly infringing radio navigation system was located in the United States for the purposes of U.S. patent laws, although one of the broadcasting stations was located in a foreign country (Norway) and other foreign locations were contemplated, and although the ships and planes receiving the signals were generally not within the United States. It reached its conclusion on the grounds that the "master" station or stations were in the United States, all stations were monitored, all stations in the system had to be brought into exact synchronization with the U.S. stations, and the broadcasting equipment was designed and built by the United States.

Criminal Jurisdiction

Narcotics Control

Section 504 of the International Security Assistance and Arms Export Control Act of 1976 (P.L. 94-329; 90 Stat. 764), approved June 30, 1976, added a new subsection to section 481 of the Foreign Assistance Act of 1961, with respect to international narcotics control, providing in part as follows:

(c) (1) Notwithstanding any other provision of law, no officer or employee of the United States may engage or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts.

See post, Ch. 11, § 2, pp. 602-610, for Drug Enforcement Administration guidelines, prohibiting U.S. personnel from engaging in direct police actions in foreign countries with respect to narcotics control but permitting passive presence in the vicinity of arrests by foreign officers.

Trial Abroad

On May 17, 1976, the Department of State instructed the U.S. Embassy in Bonn that it could not accept the trial of an individual in the Federal Republic of Germany (F.R.G.) by F.R.G. authorities for crimes committed in the United States, in the absence of a showing of a context sufficient to establish F.R.G. jurisdiction. The Department agreed, however, to the supplying of evidence of alleged crimes of the individual in the United States for use in an F.R.G. trial for crimes arising in the Federal Republic of Germany, to show recidivism or habitual or hard-core criminality, thereby possibly supporting a stiffer sentence.

The Department's instruction was in response to the Embassy's report of a notification from the F.R.G. Federal Criminal Police (BKA) that an individual arrested on bank robbery charges in the Federal Republic had confessed to committing ten armed robberies in the United States. The BKA had raised the question of prosecution in the Federal Republic for crimes committed in the United States. and the furnishing of documents supporting such prosecution.

Dept. of State telegram no. 121320 to Bonn.

Irregular Apprehension

United States v. Cotroni, 527 F.2d 708 (1975), decided on December 22, 1975, by the U.S. Court of Appeals, Second Circuit, involved evidence obtained by foreign authorities in a manner which does not comport with U.S. constitutional and statutory requirements. The evidence came from Canadian wiretaps placed by that country's police without judicial authorization such as is required by Title III of the Omnibus Crime Control Act of 1968 (18 U.S.C. 2510 et seq.).

The Court of Appeals agreed with Chief Judge Jacob Mishler of the U.S. District Court for the Eastern District of New York that the evidence was admissible, and affirmed the conviction of defendants for conspiring to import cocaine and concealing and transporting cocaine.

The defendants, Frank Cotroni and Frank Dasti, were Canadian citizens. The cocaine involved originated in Mexico and ended up in the hands of the Bynum drug ring in New York City. Important evidence leading to their convictions was provided by summaries, and transcripts of 32 wiretaps in 1970 and 1971 furnished by Canadian police. Appellants contended that many of the wiretaps were done in violation of the laws of both the United States and Canada. The District Court found that prior to the enactment of the Canadian Protection of Privacy Act in 1974, no law of that country outlawed wiretapping, and that the Protection of Privacy Act did not apply retroactively. The latter finding had also been confirmed in Canada in a case involving the same wiretap. Although the intercepted telephone conversations traveled in part over U.S. lines, Judge Mishler held that their use in evidence was not proscribed by Title III of the Omnibus Crime Control Act, relying on United States v. Toscanino, 500 F.2d 267 (1974). See the 1974 Digest, pp. 251-252, and the 1975 Digest, pp. 338-339. In affirming, the Circuit Court stated:

Our holding in Toscanino comports with the canon of construction which teaches that, unless a contrary intent appears, Federal statutes apply only within the territorial jurisdiction of the United States..

Appellants' arguments for exclusion receive no greater support from the U.S. Constitution. Appellants' rights vis-a-vis their own government are not defined by the provisions of the U.S. Constitution and are therefore "no legal concern of an American Court.". Accordingly, information furnished American officials by foreign police need not be excluded simply because the procedures foliowed in securing it did not fully comply with our nation's constitutional requirements. The absence of Miranda warnings may be overlooked, . . . and the lack of a proper search warrant may be disregarded. . . . The exclusionary rule is intended to inculcate a respect for the Constitution in the police of our own nation. . . . Since it has little if any deterrent effect upon foreign police, it is seldom used to bar their work product.

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We need not concern ourselves with taint which might have resulted from American participation in the Canadian taps. Chief Judge Mishler found that the U.S. Government did not "in any way initiate, supervise, control or direct the wiretapping," and this finding has support in the evidence.


In United States v. Morrow, 537 F.2d 120 (1976), decided on August 16, 1976, the U.S. Court of Appeals for the Fifth Circuit, on appeal from a conviction by the U.S. District Court for the Middle District of Florida for conspiracy in the distribution of stolen and counterfeited securities, held, inter alia, that the participation of American officials in a warrantless Canadian search and seizure had not been such as to invoke the protection of the Fourth Amendment exclusionary rule. The participation of American officials had consisted only of a telephone call by a Federal Bureau of Investigation agent alerting Canadian authorities to possession of information by an American informant living in Canada. The Court stated in part:

[T]he Fourth Amendment exclusionary rule does not apply to arrests and searches made by foreign authorities on their home territory and in the enforcement of foreign law, even if the persons arrested and from whom the evidence is seized are American citizens.... two exceptions to the general rule obtain. First, if the circumstances of the foreign search and seizure are so extreme that they "shock the judicial conscience," a Federal appellate court in the exercise of its supervisory powers can require exclusion of the evidence so seized. Second, if American law enforcement officials participated in the foreign search, or if the foreign authorities actually conducting the search were acting as agents for their American counterparts, the exclusionary rule can be invoked...


[T]he minimal participation of American law enforcement officials in the Toronto search and seizure is insufficient to invoke for the benefits of appellant. . . the protections of the Fourth Amendment. Looking to the facts, as we must, we perceive no possible way in which the goal of deterring unlawful conduct by American law enforcement officials can be served by excluding the evidence in question for the simple reason that there was no unlawful or unreasonable conduct on the part of the FBI. . . . Normal lines of communication between the law enforcement agencies of different countries are beneficial without question and are to be encouraged. Criminal conspiracies, as this case amply demonstrates, are sometimes international in scope, and the routine transmittal of the name and telephone number of a possibly valuable informant across national borders clearly is permissible under the Fourth Amendment.

The U.S. Court of Appeals for the Seventh Circuit in United States v. Marzano, 537 F.2d 257 (1976), affirmed, on May 18, 1976, the conviction of defendant Marzano for offenses arising out of the theft of $3 million from the vaults of a security company. U.S. District Court, 388 F. Supp. 906 (1975) (see the 1975 Digest, pp. 334-336). It held, inter alia, that where Federal Bureau of Investigation (FBI)

agents did not participate in the detention of the defendant in a foreign country, even though they were present, a foreign police officer's actions were not subject to Fourth Amendment scrutiny.

In this case the factual findings of the District Court were that the foreign police officer, in Grand Cayman, met two FBI agents who were attempting to locate the defendant. The foreign officer informed the agents that they could not carry weapons or interrogate or take defendant into custody, and that they had no jurisdiction but could accompany him on his investigation. He then took defendant into custody for various infractions of local law and asked him to board a plane bound for the United States after determining that the FBI was willing to pay the cost of airfare. In these circumstances, where the FBI agents did not take the defendant into custody or even speak to him about a crime, the Court of Appeals found no Government involvement to render the Fourth Amendment operative. It found further that no illegal seizure by FBI agents took place from the fact that the Grand Cayman officer had voluntarily turned over to them items taken from the defendant.

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Jurisdiction Based on Nationality

Jurisdiction Based on Agreement
with the Territorial State

Bilateral Agreements

The United States and Mexico, on November 25, 1976, signed a Treaty on the Execution of Penal Sentences. It was the first treaty of its kind for both countries. Under it U.S. nationals sentenced in Mexico, and Mexican nationals sentenced in the United States, might elect to serve their sentences in their own country, with the concurrence of the two nations' authorities. In determining whether a transfer should be requested, the treaty provides several factors which may be taken into account. Among these are: the type and seriousness of the crime for which the prisoner was sentenced; his previous criminal record, if any; the strength of his connections by residence, family relations and otherwise to the social life of the country where he is imprisoned or with his native country.

The transfer of a prisoner would require the initiation of the request by the state in which the sentence has been imposed and the approval of the request by the other state. No transfer would take place without the consent of the offender.

The treaty is subject to ratification in both countries. The Government of Mexico made clear in the negotiations that ratifica

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