not only to conversations of Toscanino but also to conversations of anyone else occurring on premises owned, leased or licensed by Toscanino." (p. 281.) The Court said that in the absence of such sworn written representations it was unable to affirm the denial of a hearing on the wiretap allegations.

The case was remanded for a hearing on the allegations of forcible abduction on condition that Toscanino offer some credible supporting evidence, including evidence that the actions were taken by or at the direction of U.S. officials.

In United States v. Herrera, No. 74-1831, decided by the U.S. Court of Appeals for the Fifth Circuit on December 5, 1974, it was held that the alleged illegality of defendant's arrest in Peru, his subsequent delivery to Federal authorities in the United States, and the failure of U.S. authorities to follow the orderly processes of extradition under the extradition treaty between the United States and Peru did not divest the District Court of jurisdiction over the defendant.

The appeal in this case was from the conviction of appellant by the District Court sitting without a jury on a charge of escape from the U.S. Penitentiary in Atlanta in violation of 18 U.S.C.A. § 751(a). Appellant was serving a sentence at the time of the escape for violation of the narcotics laws. Following his escape he made his way to Bogota, Colombia, his home, and some fifteen months later he was arrested in Peru and returned to Miami where he was placed in American custody.

The escape was not disputed. Appellant contended, however, that the District Court was divested of jurisdiction over him by virtue of an illegal arrest in Peru and subsequent delivery to the Federal authorities in Miami. He argued that he had been kidnapped and forcibly abducted in contravention of Federal statutes, and in a manner which violated the territorial integrity of Peru contrary to the United Nations Charter and the Charter of the Organization of American States. He also urged a loss of jurisdiction by reason of the failure of the United States to follow the extradition procedures under the United States-Peru treaty on extradition (TS 288; 31 Stat. 1921; 10 Bevans 1074; entered into force February 22, 1901).

The Court of Appeals said that "It is settled by both Supreme Court decisions and decisions of this court that these contentions are without merit." (Citing, inter alia, the Ker and Frisbie decisions of the Supreme Court and United States v. Caramian, 468 F.2d 1370, 5th Cir., 1972.) As for the Toscanino decision, the Court said: "It involves claims of kidnapping, extended torture and electronic surveillance by or at the direction of United States officials in a foreign country with the consent and knowledge of the United States Attorney for the

Eastern District of New York. Aside from the wide variance between the facts of this case and the claims asserted in Toscanino, we are bound on the basic proposition by the Ker and Frisbie decisions of the Supreme Court and our decisions . . .

82

Jurisdiction Based on Nationality

Military Jurisdiction

In Williams v. Froehlke, 490 F.2d 998 (1974), decided by the U.S. Court of Appeals for the Second Circuit on January 14, 1974, it was held that the rule of O'Callahan v. Parker, 395 U.S. 258 (1969) that a court-martial has no jurisdiction to try nonservice connected offenses "does not extend to the jurisdiction of courts-martial in peacetime to try nonservice offenses committed by servicemen against foreign persons in foreign lands."

Plaintiff, formerly a serviceman, had brought an action in the U.S. District Court for the Southern District of New York to compel defendant Secretary of the Army to set aside his conviction and to order the Army Board for Correction of Military Records to grant him an honorable discharge. Plaintiff, while serving in the U.S. army in Germany in 1960, and while in civilian clothes, had robbed a German citizen in Germany. He was tried by a general court-martial and convicted of robbery, disrespect, and communication of a threat. He was sentenced to five years at hard labor and a dishonorable discharge. He served his term.

Plaintiff argued that under O'Callahan the court-martial in Germany had no jurisdiction over the offense with which he was charged. Defendant moved to dismiss the complaint or, in the alternative, for summary judgment, on the ground that O'Callahan could not be applied retroactively and that even if it could, it did not apply to a court-martial outside U.S. territory. The District Court held that while O'Callahan could be applied retroactively, it could not be applied extraterritorially. 356 F.Supp. 591 (1972). The Court of Appeals for the Second Circuit affirmed.

After noting the uncertainty as to whether the Supreme Court intended O'Callahan to apply retroactively, the Court of Appeals stated: "We affirm on the ground that, even if O'Callahan is retroactive, its reach does not extend to the jurisdiction of courts-martial in peacetime to try nonservice offenses committed by servicemen against foreign persons in foreign lands." (at p. 1001.) O'Callahan involved a court-martial in the Territory of Hawaii, where civilian judicial processes were available, whereas in the case at bar the locus of the offense was Germany, where jurisdiction was governed by Arti

cle VII of the NATO Status of Forces Agreement (TIAS 2846; 4 UST 1792; entered into force August 23, 1953). The Court said:

The choice is, practically, between trial in a German civilian court and trial by an American court-martial. The witnesses are in Germany. To require their transportation to the United States is, in any event, beyond our power to command, for they are not subject to our process. It was undoubtedly thought a boon to the accused to permit his trial in a court-martial rather than in a foreign court where the soldier might be subjected to varying degrees of xenophobia. But assuming that the soldier feels, on the contrary, that he may be better off in a foreign court than in an Article I courtmartial, there is no constitutional guarantee that says he has a right to be tried in the foreign court. Pursuant to the treaty power, the United States has given Germany priority in the trial of offenses committed within its territory, and reserved to itself, if there is a waiver, trial in the military tribunal, which is the only United States court available [in Germany]. We think there was no mandate on the Congress to create Article III courts to be the repositories of the concurrent jurisdiction with Germany under the treaty, even if the obvious international obstacles to their creation were overcome. (at p. 1004.)

Art. VII of the NATO Status of Forces Agreement provides:

1. Subject to the provisions of this Article.

(a) the military authorities of the sending state shall have the right to exercise within the receiving state all criminal and disciplinary jurisdiction conferred on them by the law of the sending state over all persons subject to the military law of that state;

(b) the authorities of the receiving state shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offenses committed within the territory of the receiving state and punishable by the law of that state.

2. (a) The military authorities of the sending state shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that state with respect to offenses, including offenses relating to its security, punishable by the law of the sending state, but not by the law of the receiving state.

(b) The authorities of the receiving state shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offenses, including offenses relating to the security of that state, punishable by its law but not by the law of the sending state. (c) For the purposes of this paragraph and of paragraph 3 of this Article a security offense against a state shall include

(i) treason against the state;

(ii) sabotage, espionage or violation of any law relating to official secrets of that state, or secrets relating to the national defense of that state.

In United States v. Newvine, No. 28,113 (1974), decided on August 2, 1974, the U.S. Court of Military Appeals upheld military jurisdiction over violations of the Uniform Code of Military Justice (UCMJ) occurring in a foreign country while the defendant was acting in a "nonmilitary capacity." The accused in that case was stationed at an Air Force Base in Texas near the Mexican border. While off duty, he went to Mexico and killed a girl with whom he had had a personal

dispute. During and following his General Court Martial conviction of unpremeditated murder, the accused contended that his visit to Mexico "for an evening's entertainment" was "totally unrelated to the military" and was thus not triable under O'Callahan v. Parker, 395 U.S. 258 (1969).

The Court of Military Appeals found nothing in the Uniform Code of its historical antecedents which absolved an accused from a courtmartial trial because his offense was committed in a foreign country to which he journeyed for private reasons. It was noted that the O'Callahan restrictions were perceived as a way of saving service personnel the constitutional benefits of indictment and jury trial-such rights not necessarily assured in the courts of a foreign country in a prosecution for a violation of its penal code.

The Court also rejected a defense argument based upon the hypothesis that court-martial jurisdiction can be exercised as to a violation of the UCMJ committed in a foreign country only if the offender was present there "in some military capacity." The opinion noted that Congress can impart extraterritorial effect to criminal statutes as to persons subject to its sovereign authority, and that a member of the U.S. Armed Forces retains his status as such when he moves from one place to another, whether because of military order or as a matter of personal need or desire, and whether he travels alone or as part of a military unit. The Court observed that a member of the armed forces "is subject to the Uniform Code of Military Justice, and the Code subjects him to its provisions 'in all places'."

The Offshore Shrimp Fisheries Act of 1973 (P.L. 93-242; 87 Stat. 1061; see Ch. 7, § 4, infra, pp. 327-330), approved on January 2, 1974, provides for the enforcement of the 1972 Shrimp Fishing Agreement between the United States and Brazil in part by the Government of Brazil. Section 10(b) of the Act is as follows:

Any duly authorized law enforcement officer of the Government of Brazil who is exercising responsibility under article V of the treaty shall be impowered to act on behalf of the United States to enforce the provisions of the treaty in the area of agreement as follows: Any such officer may board and search any vessel which he has reasonable cause to believe has violated any provisions of the treaty. If after boarding and searching such vessel the officer continues to have rea

sonable cause to believe that a violation has been committed, he may seize and detain the vessel for the sole purpose of delivering it, as soon as practicable, to an agent of the United States Government at the nearest port to the place of seizure or any other place which is mutually agreed upon by the Government of Brazil and the Secretary of State.

The 1972 Shrimp Fishing Agreement between the United States and Brazil is at TIAS 7603; 24 UST 923. It entered into force February 14, 1973. See the 1973 Digest, Ch. 7, § 4, pp. 260-261, and Ch. 6, § 3, p. 200.

The Antihijacking Act of 1974 (P.L. 93–366; 88 Stat. 409), approved by President Nixon on August 5, 1974, amends the definition of "special aircraft jurisdiction of the United States" in section 101 (32) of the Federal Aviation Act of 1958 (49 U.S.C. 1301 (32)) to read as follows:

(32) The term "special aircraft jurisdiction of the United States" includes

(a) civil aircraft of the United States;

(b) aircraft of the national defense forces of the United States; (c) any other aircraft within the United States;

(d) any other aircraft outside the United States

(i) that has its next scheduled destination or last point of departure in the United States, if that aircraft next actually lands in the United States; or

(ii) having "an offense", as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft, committed aboard, if that aircraft lands in the United States with the alleged offender still aboard; and

(e) other aircraft leased without crew to a lessee who has his principal place of business in the United States, or if none, who has his permanent residence in the United States;

while that aircraft is in flight, which is from the moment when all external doors are closed following embarkation until the moment when one such door is opened for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the aircraft and for the persons and property aboard.

See also Ch. 8, § 3, infra, pp. 386–388. The 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft is at TIAS 7192; 22 UST 1641. It entered into force for the United States Oct. 14, 1971. Section 101 (32) of the Federal Aviation Act of 1958 originally provided:

(32) The term "special aircraft jurisdiction of the United States" includes the following aircraft while in flight