author: MANSFIELD, Circuit Judge: ROBERT P. ANDERSON,

text:
    UNITED STATES of America, Appellee, v. Francisco TOSCANINO, Appellant.
    No. 746, Docket 73-2732.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 13, 1974.
    Decided May 15, 1974.
    As Amended on Denial of Rehearing Aug. 21, 1974.
    Rehearing En Banc Denied Oct. 8,1974.

      Ivan S. Fisher, New York City (Alan Scribner, Krieger, Fisher, Metzger & Scribner, New York City, of counsel), for appellant.
    Thomas P. Puccio, Asst. U. S. Atty. (Edward J. Boyd, Y, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
    Before ANDERSON, MANSFIELD and OAKES, Circuit Judges.
   MANSFIELD, Circuit Judge:

Francisco Toscanino appeals from a narcotics conviction entered against him in the Eastern District of New York by Chief Judge Jacob Mishler after a jury trial. Toscanino was sentenced to 20 years in prison and fined $20,000. He contends that the court acquired jurisdiction over him unlawfully through the conduct of American agents who kidnapped him in Uruguay, used illegal electronic surveillance, tortured him and abducted him to the United States for the purpose of prosecuting him here. We remand the case to the district court for further proceedings in which the government will be required to respond to his allegations concerning the methods by which he was brought into the Eastern District and the use of electronic surveillance to gather evidence against him.

Toscanino, who is a citizen of Italy, and four others were charged with conspiracy to import narcotics into the United States in violation of 21 U.S.C. §§ 173 and 174 in a one count indictment returned by a grand jury sitting in the Eastern District on February 22, 1973. The other defendants were Armando Nicolay, Segundo Coronel, Roberto Arenas and Umberto Coronel. Also named as a conspirator but not as a defendant was one Hosvep Caramian. At a joint trial of all the defendants (except for Nicolay who had fled to Argentina), which began on May 22, 1973, the only government witness against Tos-canino was Caramian who testified that he met with Toscanino in Montevideo, Uruguay, during the summer of 1970 and agreed to find buyers for a shipment of heroin into the United States, which would be delivered by Nicolay. Caramian testified further that in November, 1970, he left Uruguay and came to the United States where he met with Arenas and the Coronel brothers who agreed to buy the heroin. On November 30, 1970, Caramian received part of Tos-canino’s shipment delivered by Nicolay in Miami, Florida, but ultimate distribution of the narcotics was intercepted by government agents who posed as buyers from Arenas and the Coronel brothers. Toscanino, testifying in his own behalf, denied any knowledge of these transactions. On June 5, 1973, the jury returned a verdict of guilty against him and all the other defendants.

Toscanino does not question the sufficiency of the evidence or claim any error with respect to the conduct of the trial itself. His principal argument, which he voiced prior to trial and again after the jury verdict was returned, is that the entire proceedings in the district court against him were void because his presence within the territorial jurisdiction of the court had been illegally obtained. He alleged that he had been kidnapped from his home in Montevideo, Uruguay, and brought into the Eastern District only after he had been detained for three weeks of interrogation accompanied by physical torture in Brazil. He offered to prove the following:

On or about January 6, 1973 Francisco Toscanino was lured from his home in Montevideo, Uruguay by a telephone call. This call had been placed by or at the direction of Hugo Campos Hermedia. Hermedia was at that time and still is a member of the police in Montevideo, Uruguay. In this effort, however, and those that will follow in this offer, Her-media was acting ultra vires in that he was the paid agent of the United States government. . tt

“. . . The telephone call ruse succeeded in bringing Toscanino and his wife, seven months pregnant at the time, to an area near a deserted bowling alley in the City of Montevideo. Upon their arrival there Hermedia together with six associates abducted Toscanino. This was accomplished in full view of Toscan-ino’s terrified wife by knocking him unconscious with a gun and throwing him into the rear seat of Hermedia's car. .Thereupon Toscanino, bound and blindfolded, was driven to the Uruguayan-Brazilian border by a circuitous route.

“At one point during the long trip to the Brazilian border discussion was had among Toscanino’s captors as to changing the license plates of the abductor’s car in order to avoid detection by the Uruguayan authorities. At another point the abductor’s car was abruptly brought to a halt, and Toscanino was ordered to get out. He was brought to an apparently secluded place and told to lie perfectly still or he would be shot then and there. Although his blindfold prevented him from seeing, Toscanino could feel the barrel of the gun against his head and could hear the rumbling noises of what appeared to be an Uruguayan military convoy. A short time after the noise of the convoy had died away, Tos-canino was placed in another vehicle and whisked to the border. There by pre-ar-rangement and again at the connivance of the United States government, the car was met by a group of Brazilians who took custody of the body of Francisco Toscanino.

“At no time had there been any formal or informal request on the part of the United States of the government of Uruguay for the extradition of Francisco Toscanino nor was there any legal basis to justify this rank criminal enterprise. In fact, the Uruguayan government claims that it had no prior knowledge of the kidnapping nor did it consent thereto and had indeed condemned this kind of apprehension as alien to its laws.

“Once in the custody of Brazilians, Toscanino was brought to Porto Alegre where he was held incommunicado for eleven hours. His requests to consult with counsel, the Italian Consulate, and his family were all denied. During this time he was denied all food and water.

“Later that same day Toscanino was brought to Brasilia. . . . For seventeen days Toscanino was incessantly tortured and interrogated. Throughout this entire period the United States government and the United States Attorney for the Eastern District of New York prosecuting this case was aware of the interrogation and did in fact receive reports as to its progress. Furthermore, during this period of torture and inter- ' rogation a member of the United States Department of Justice, Bureau of Narcotics and Dangerous Drugs was present at one or more intervals and actually participated in portions of the interrogation. . . . [Toscanino’s] captors denied him sleep and all forms of nourishment for days at a time. Nourishment was provided intravenously in a manner precisely equal to an amount necessary to keep him alive. Reminiscent of the horror stories told by our military men who returned from Korea and China, Toscanino was forced to walk up and down a hallway for seven or eight hours at a time. When he could no longer stand he was kicked and beaten but all in a manner contrived to punish without scarring. When he would not answer, his fingers were pinched with metal pliers. Alcohol was flushed into his eyes and nosq and other fluids were forced up his anal passage. Incredibly, these agents of the United States government attached electrodes to Toscanino’s earlobes, toes, and genitals. Jarring jolts of electricity were shot throughout his body, rendering him unconsious for indeterminate periods of time but again leaving no physical scars.

“Finally on or about January 25, 1973 Toscanino was brought to Rio de Janeiro where he was drugged by Brazilian-American agents and placed on Pan American Airways Flight # 202 destined for the waiting arms of the United States government. On or about January 26, 1973 he woke in the United States, was arrested on the aircraft, and was brought immediately to Thomas Puccio, Assistant United States Attorney.

“At no time during the government’s seizure of Toscanino did it ever attempt to accomplish its goal through any lawful channels whatever. From start to finish the government unlawfully, willingly and deliberately embarked upon a brazenly criminal scheme violating the laws of three separate countries.”

The government prosecutor neither affirmed nor denied these allegations but claimed they were immaterial to the district court’s power to proceed.

Toscanino alleged further that, prior to his forcible abduction from Montevideo, American officials bribed an employee of the public telephone company to conduct electronic surveillance of him and that the results of the surveillance were given to American agents and forwarded to government prosecutors in New York. According to Toscanino, the telephone company employee was eventually arrested in Uruguay for illegal eavesdropping and was indicted and imprisoned. In connection with these latter allegations Toscanino moved, pursuant to 18 U.S.C. § 3504, to compel the government to affirm or deny whether in fact there had been any electronic surveillance of him in Uruguay.

Toscanino’s motion for an order vacating the verdict, dismissing the indictment and ordering his return to Uruguay was denied by the district court on November 2, 1973, without a hearing. Relying principally on the decisions of the Supreme Court in Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), the court held that the manner in which Toscanino was brought into the territory of the United States was immaterial to the court’s power to proceed, provided he was physically present at the time of trial. Concerning the wiretap allegations, the court asked the prosecutor to represent whether there had actually been any electronic surveillance of Tos-canino in Uruguay. The prosecutor responded that “[i]n no way was electronic surveillance used or the fruits of electronic surveillance.” The court then ruled that no hearing was required on the wiretap allegations and denied the motion to vacate the verdict on that ground. From these rulings Toscanino appeals.

Alleged Forcible Abduction From Uruguay

In an era marked by a sharp increase in kidnapping activities, both here and abroad, see, e. g., New York Times, Jan. 5, 1974, at 25, col. 6, Dec. 13, 1973, at 2, col. 5, Oct. 17, 1973, at 14, col. 5, we face the question as we must in the state of the pleadings, of whether a federal court must assume jurisdiction over the person of a defendant who is illegally apprehended abroad and forcibly abducted by government agents to the United States for the purpose of facing criminal charges here. The answer necessitates a review and appraisal of two Supreme Court decisions, heavily relied upon by the government and by the district court, Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1888), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). For years these two cases have been the mainstay of a doctrine to the effect that the government’s power to prosecute a defendant is not impaired by the illegality of the method by which it acquires control over him. This teaching originated almost 90 years ago in Ker. While residing in Peru, Ker was indicted by an Illinois grand jury for larceny and embezzlement. At the request of the Governor of Illinois the President, invoking the current treaty of extradition between the United States and Peru, issued a warrant authorizing a Pinkerton agent to take custody of Ker from the authorities of Peru. The warrant, however, was never served, probably for the reason that by the time the agent arrived there armed forces of Chile, then at war with Peru, were in control of Lima. See Ker v. Illinois Revisited, 47 Am.J.Int’l L. 678 (1953). Instead Ker was forcibly abducted by the agent, placed aboard an American vessel and eventually taken to the United States, where he was tried and convicted in Illinois. The Supreme Court rejected Ker’s argument that he was entitled by virtue of the treaty with Peru to a right of asylum there and held that the abduction of Ker did not violate the Due Process Clause of the Fourteenth Amendment (then less than 20 years old), which was construed as merely requiring that the party be regularly indicted and brought to trial “according to the forms and modes prescribed for such trials.” The Court accordingly held that Ker might be tried by Illinois, regardless of the method by which it acquired control over him.

Sixty-six years later the Supreme Court again faced the question in Fris-bie v. Collins, supra, in a slightly different context. There a Michigan state prisoner, petitioning for habeas corpus, alleged that he had been brought from Chicago, Illinois, to Michigan for trial only after he had been kidnapped, handcuffed and blackjacked in Chicago by Michigan police officers who had gone there to retrieve him. The prisoner claimed that his conviction in Michigan violated the Due Process Clause of the Fourteenth Amendment as well as the federal Kidnapping Act, 18 U.S.C. § 1201, and was therefore a nullity. Rejecting the due process claim the Supreme Court explained.

“This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, [7 S.Ct. 225, 229, 30 L.Ed. 421], that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after being fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.” 342 U.S. at 522.

Thus, under the co-ealled “Ker-Frisbie” rule, due process was limited to the guarantee of a constitutionally fair trial, regardless of the method by which jurisdiction was obtained over the defendant. Jurisdiction gained through an indisputably illegal act might still be exercised, even though the effect could be to reward police brutality and lawlessness in some cases.

Since Frisbie the Supreme Court, in what one distinguished legal luminary describes as a “constitutional revolution,” see Griswold, The Due Process Revolution and Confrontation, 119 U. Pa.L.Rev. 711 (1971), has expanded the interpretation of “due process.” No longer is it limited to the guarantee of “fair” procedure at trial. In an effort to deter police misconduct, the term has been extended to bar the government from realizing directly the fruits of its own deliberate and unnecessary lawlessness in bringing the accused to trial. See United States v. Russell, 411 U.S. 423, 430-431, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Wong Sun v. United States. 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Concurrent with these decisions the Ker-Frisbie rule has been criticized and its continued validity repeatedly questioned. See, e. g., Pitler, “The Fruit of the Poisonous Tree” Revisited and Shepardized, 56 Calif.L.Rev. 579, 600 (1968); Scott, Criminal Jurisdiction of a State Over a Defendant Based Upon Presence Secured by Force or Fraud, 37 Minn.L.Rev. 91, 102, 107 (1953); Allen, Due Process and State Criminal Procedures: Another Look, 48 N.W.U.L.Rev. 16, 27-28 (1953); Supreme Court 1951 Term, 66 Harv.L.Rev. 89, 126-27 (1953); United States v. Ed-mons, 432 F.2d 577, 583 (2d Cir. 1970); Government of Virgin Islands v. Ortiz, 427 F.2d 1043, 1045 n. 2 (3d Cir. 1970).

The erosion of Frisbie appears to have been anticipated by a decision handed down a little more than two months earlier. In Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), decided at the same Term as Frisbie, the Supreme Court broadened its interpretation of due process to set aside for the first time a state court conviction resting on evidence obtained through police brutality. In that case state police officers had frustrated a defendant’s efforts to swallow two morphine capsules in his possession by taking the defendant, handcuffed, to a hospital where a doctor was induced to force “an emetic solution through a tube into [the defendant’s] stomach against his will.” When the solution produced vomiting the capsules were recovered and subsequently introduced at defendant’s trial. Reversing the resulting conviction, Justice Frankfurter wrote for a majority of the Court :

“Regard for the requirements of the Due Process Clause ‘inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.’ ******
“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this. conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too categorically. This is conduct that shocks the conscience. .
“It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforcing the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend a ‘sense of justice.’ ” 342 U.S. 169, 172-173.

The underpinnings of Frisbie were further weakened by the Supreme Court’s landmark decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), where, overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), it interpreted the Due Process Clause of the Fourteenth Amendment to require that the Exclusionary Rule be applied in state prosecutions, just as it had for years been binding on the federal courts. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Thenceforth evidence obtained by state officers as the result of illegal search or seizure could no longer be admitted in a state criminal trial of the person from whom it was unlawfully seized. As the Su preme Court has repeatedly made clear, the Exclusionary Rule has nothing to do with the fair determination of the guilt or innocence of the accused. It represents a judicially-created device designed to deter disregard for constitutional prohibitions and give substance to constitutional rights. Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 6 L.Ed.2d 1081. In the words of Justice Holmes, to allow the government to benefit illegally from seized evidence, “reduces the Fourth Amendment to a form of words,” Silver-thorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The philosophy behind the rule and possible broader application of the basic principle underlying it was best described by Justice Brandéis in an oft-quoted passage from his dissenting opinion in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), which we have only recently invoked again, see United States v. Archer, 486 F.2d 670, 674-675 (2d Cir. 1973):

“The court’s aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. Then aid is denied despite the defendant’s wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination. .
“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imper-illed if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.” 277 U.S. at 484-485.

Society is the ultimate loser when, in order to convict the guilty, it uses methods that lead to decreased respect for the law. See United States v. Archer, supra at 677.

Thus the Court’s decisions in Rochin and Mapp unmistakably contradict its pronouncement in Frisbie that “due process of law is satisfied when one present in court is convicted of crime after being fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.” The requirement of due process in obtaining a conviction is greater. It extends to the pretrial conduct of law enforcement authorities. The force of Rochin continues to be recognized. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), for instance, the Court, although holding that the government’s alleged entrapment activities did not violate the Constitution or federal law, warned that

“While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Ro-chin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952), the instant case is distinctly not of that breed.” 411 U.S. at 431-432.

In United States v. Archer, supra, while basing our decision on other grounds, we referred to Olmstead and Rochin for the proposition that due process principles might be invoked to bar prosecution altogether where it resulted from flagrantly illegal law enforcement practices. In contrast, we have expressed doubt as to the validity of the Frisbie doctrine. In United States v. Edmons, 432 F.2d 577 (2d Cir. 1970), for instance, in rejecting the government’s attempt to invoke Frisbie by analogy as the basis for upholding a conviction obtained through the device of using arrests that were in fact pretexts for investigative activities, Judge Friendly stated:

“We do not find Frisbie and its predecessors . . . to be a truly persuasive analogy. Those cases were decided before the Fourth Amendment as such was held applicable to the states, . . . and thus rested only on general considerations of due process or, as in Frisbie, also on a claimed violation of the Federal Kidnapping Act. Whether the Court would now adhere to them must be regarded as questionable.” United States v. Edmons, supra at 583 [footnotes and citations omitted].

Similar doubt was indicated by the Third Circuit in Government of Virgin Islands v. Ortiz, 427 F.2d 1043, 1045 n.2 (3d Cir. 1970), where it stated “We recognize that'the validity of the Frisbie doctrine has been seriously questioned because it condones illegal police conduct.”

In light of these developments we are satisfied that the “Ker-Frisbie” rule cannot be reconciled with the Supreme Court’s expansion of the concept of due process, which now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part. Although the issue in most of the cases forming part of this evolutionary process was whether evidence should have been excluded (e. g., Mapp, Miranda, Wong Sun, Silverman), it was unnecessary in those cases to invoke any other sanction to insure that an ultimate conviction would not rest on governmental illegality. Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and when an accused is kidnapped and forcibly brought within the jurisdiction, the court’s acquisition of power over his person represents the fruits of the government’s exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, which guarantees “the right of the people to be secure in their persons . . . against unreasonable . . . seizures,” the government should as a matter of fundamental fairness be obligated to return him to his status quo ante.

Faced with a conflict between the two concepts of due process, the one being the restricted version found in Ker-Frisbie and the other the expanded and enlightened interpretation expressed in more recent decisions of the Supreme Court, we are persuaded that to the extent that the two are in conflict, the Ker-Frisbie version must yield. Accordingly we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights. This conclusion represents but an extension of the well-recognized power of federal courts in the civil context to decline to exercise jurisdiction over a defendant whose presence has been secured by force or fraud. See In re Johnson, 167 U.S. 120, 126, 17 S.Ct. 735, 42 L.Ed. 103 (1896); Fitzgerald Construction Co. v. Fitzgerald, 137 U.S. 98, 11 S.Ct. 36, 34 L.Ed. 608 (1890).

If the charges of government misconduct in kidnapping Toscanino and forcibly bringing him to the United States should be sustained, the foregoing principles would, as a matter of due process, entitle him to some relief. The allegations include corruption and bribery of a foreign official as well as kidnapping, accompanied by violence and brutality to the person. Deliberate misconduct on the part of United States agents, in violation not only of constitutional prohibitions but also of the federal Kidnapping Act, supra, and of two international treaties obligating the United States Government to respect the territorial sovereignty of Uruguay, is charged. See U.N. Charter, art. 2; O.A.S. Charter, art. 17. The conduct alleged here satisfies those tests articulated by the Supreme Court in its most recent “entrapment” decision, United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), where, in holding that due process did not bar prosecution for the manufacture and sale of an illegal drug, even though a government undercover agent had supplied a scarce chemical required for its synthesis, it noted that the government agent had violated no constitutional prohibition or federal law and had committed no crime in infiltrating the defendant’s drug enterprise. It furthermore appeared that the type of undercover activity engaged in there by the agent was necessary in order to gather essential evidence. Here, in contrast, not only were several laws allegedly broken and crimes committed at the behest of government agents but the conduct was apparently unnecessary, as the extradition treaty between the United States and Uruguay, see 35 Stat. 2028, does not specifically exclude narcotics violations so that a representative of our government might have been able to conclude with Uruguay a special arrangement for Toscanino’s extradition. Cf. Fiocconi v. Attorney General of United States, 339 F.Supp. 1242, 1244 (S.D.N.Y.1972).

In any event, since Ker and Frisbie involved state court convictions only, the views expressed in those cases would not necessarily apply to the present case, which is an appeal from a judgment entered by a federal district court. Here we possess powers not available to a federal court reviewing a state tribunal’s resolution of constitutional issues. In this case we may rely simply upon our supervisory power over the administration of criminal justice in the district courts within our jurisdiction. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972); United States v. Freeman, 357 F.2d 108 (2d Cir. 1967); Williamson v. United States, 311 F.2d 441 (5th Cir. 1962). See Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 29, 32 (1952) (The “real roots of the McNabb rule” are found in a refusal to countenance “trials which are the outgrowth or fruit of the Government’s illegality,” since they “debase the processes of justice.”). See also Government of Virgin Islands v. Ortiz, 427 F.2d 1043, 1045 n.2. Clearly this power may legitimately be used to prevent district courts from themselves becoming “accomplices in willful disobedience of law.” See McNabb, supra at 345. Moreover the supervisory power is not limited to the admission or exclusion of evidence, but may be exercised in any manner necessary to remedy abuses of a district court’s process. Cf. Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1955). Drawing again from the field of civil procedure, we think a federal court’s criminal process is abused or degraded where it is executed against a defendant who has been brought into the territory of the United States by the methods alleged here. Cf. Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 29 S.Ct. 445, 53 L.Ed. 782 (1909); Fitzgerald Construction Co. v. Fitzgerald, supra. We could not tolerate such an abuse without debasing “the processes of justice.”

If distinctions are necessary, Ker and Frisbie are clearly distinguishable on other legally significant grounds which render neither of them controlling here. Neither case, unlike that here, involved the abduction of a defendant in violation of international treaties of the United States. Frisbie presented an alleged interstate abduction in which the appellant was clearly extraditable and an order returning him to his asylum state, Illinois, would have been an exercise in futility since Illinois would have been obligated to return him to Michigan for trial. U. S.Const. Art. IV, § 2, cl. 2; 18 U.S.C. § 3182. Although the appellant in Ker argued that his forcible abduction by the Pinkerton agent violated the extradition treaty between the United States and Peru, the Supreme Court disagreed, holding that the extradition treaty did not apply and that it would have been violated by the demanding state only if, after receiving a fugitive, it tried him for a crime other than that for which he was surrendered. See United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1888). Here, in contrast, Toscanino alleges that he was forcibly abducted from Uruguay, whose territorial sovereignty this country has agreed in two international treaties to respect. The Charter of the United Nations, the members of which include the United States and Uruguay, see Department of State, Treaties in Force 402-03 (1973), obligates “All Members” to “refrain from the threat or use of force against the territorial integrity of political independence of any state. . ” See U.N. Charter, art. 2 para. 4. Additionally, the Charter of the Organization of American States, whose members also include the United States and Uruguay, see Department of State, Treaties in Force 359 (1973), provides that the “territory of a state is inviolable; it may not be the object, even temporarily, ... of ... measures of force taken by another state, directly or indirectly, on any grounds whatever. . . . ” See O.A.S. Charter, art. 17.

That international kidnappings such as the one alleged here violate the U.N. Charter was settled as a result of the Security Council debates following the illegal kidnapping in 1960 of Adolf Eichmann from Argentina by Israeli “volunteer groups.” In response to a formal complaint filed by the U.N. representative from Argentina pursuant to article 35 of the U.N. Charter the Security Council, by eight votes to none (with two abstentions and one member — Argentina — not participating in the vote), adopted a resolution condemning the kidnapping and requesting “the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and rules of international law. . . . ” U.N.Doc. S/4349 (June 23, 1960), quoted in W. Fried-mann, O. Lissitzyn & R. Pugh, International Law: Cases and Materials 497 (1969). The resolution merely recognized a long standing principle of international law that abductions by one state of persons located within the territory of another violate the territorial sovereignty of the second state and are redressable usually by the return of the person kidnapped. See The Vincenti Affair, 1 Haekworth, Digest of International Law 624 (1920); The Cantu Case, 2 Haekworth 310 (1914); The Case of Blatt and Converse, 2 Hack-worth 309 (1911).

Since the United States thus agreed not to seize persons residing within the territorial limits of Uruguay, appellant’s allegations in this case are governed not by Ker but by the Supreme Court’s later decision in Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933). In Cook officers of the United States Coast Guard boarded and seized a British vessel, the Mazel Tov, in violation of territorial limits fixed by a treaty then in force between the United States and Great Britain. The Supreme Court held that the government’s subsequent libel for forfeiture of the vessel in the federal district court was properly dismissed, since under the treaty the forcible seizure was incapable of giving the district court power to adjudicate title to the vessel regardless of the vessel’s physical presence within the court’s jurisdiction. Distinguishing Ker v. Illinois, the Court said:

“It is true that where the United States, having possession of property, files a libel to enforce a forfeiture resulting from a violation of its laws, the fact that the possession was acquired by a wrongful act is immaterial. Dodge v. United States, 272 U.S. 530, 532 [47 S.Ct. 191, 71 L.Ed. 392], Compare Ker v. Illinois, 119 U.S. 436, 444 [7 S.Ct. 225, 30 L.Ed. 421]. The doctrine rests primarily upon the common-law rules that any person may, at his peril, seize property which has become forfeited to, or forfeitable by, the government; and that proceedings by the government to enforce a forfeiture ratify a seizure made by one without authority, since ratification is equivalent to antecedent delegation of authority to seize. . . . The doctrine is not applicable here. The objection to the seizure is not that it was wrongful merely because made by one upon whom the government had not conferred authority to seize at the place where the seizure was made. The objection is that the government itself lacked power to seize, since by the treaty it had imposed a territorial limitation upon its own authority. The Treaty fixes the conditions under which a ‘vessel may be seized and taken into a port of the United States, its territories or possessions for adjudication in accordance with’ the applicable laws. Thereby, Great Britain agreed that adjudication may follow a rightful seizure. Our government, lacking power to seize, lacked power, because of the Treaty, to subject the vessel to our laws. To hold that adjudication may folloiv a wrongful seizure would go far to nullify the purpose and effect of the Treaty. Compare United States v. Rauscher, 119 U.S. 407, [7 S.Ct. 234, 30 L.Ed. 425].” 288 U.S. at 121-122 (emphasis supplied).

See also United States v. Ferris, 19 F.2d 925 (N.D.Cal.1927); United States v. Schouweiler, 19 F.2d 387 (S.D.Cal.1927).

Thus Ker does not apply where a defendant has been brought into the district court’s jurisdiction by forcible abduction in violation of a treaty. See Ford v. United States, 273 U.S. 593, 605-606, 47 S.Ct. 531, 71 L.Ed. 793 (1927) (Ker v. Illinois is “inapplicable where a treaty of the United States is directly involved. . . .”). The rule in Cook is consistent with the traditional doctrine that “the construction of treaties is judicial in its nature, and courts when called upon to act should be careful to see that international engagements are faithfully kept and observed. . . see Sullivan v. Kidd, 254 U.S. 433, 442, 41 S.Ct. 158, 162, 65 L.Ed. 344 (1921), and “that the Executive lives up to our international obligations,” Shapiro v. Ferrandina, 478 F.2d 894, 906 n.10 (2d Cir. 1973). It derives directly from the Court’s earlier decision in United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1888), decided the same day as Ker and written by the same Justice. In Rauscher, the Court held that United States courts were barred from trying a fugitive, surrendered by Great Britain pursuant to a treaty of extradition, for a crime other than that for which he had been extradited, at least until he had been afforded an opportunity to return to the country from which he had been brought. In reaching this result the Court rejected the argument that even where a trial might be in violation of a treaty obligation, the defendant’s exclusive remedy was an “appeal to the executive branches of the treaty governments for redress.” See 119 U.S. at 430-432. See also Johnson v. Browne, 205 U.S. 309, 27 S.Ct. 539, 51 L.Ed. 816 (1907).

The government’s reliance on United States v. Sobell, 244 F.2d 520 (2d Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 120, 2 L.Ed.2d 77 (1957), is misplaced. In that case, as in Ker, the only treaty relied on by Sobell, who claimed he had been abducted into the United States from Mexico by Mexican police acting without authority from their government but at the behest of United States government agents, was the existing extradition treaty between the United States and Mexico, 31 Stat. 1818. Relying solely on the extradition treaty, So-bell argued that Ker was distinguishable since there the illegal abduction was accomplished by an individual, the Pinkerton agent, who was acting in a purely private capacity whereas in his (So-bell’s) case the illegal abduction was accomplished by persons who at the time of the kidnapping were acting as agents of the United States Government. However, we concluded that, even assuming the truth of these allegations, the extradition treaty with Mexico had not been violated any more than the treaty with Peru in Ker, United States v. Sobell, 244 F.2d 520 at 525.

United States v. Cotten, 471 F.2d 744 (9th Cir. 1973), is also clearly distinguishable. Although the appellants there were forcibly returned from the Republic of Viet Nam to face criminal charges in the United States, the Vietnamese authorities, after disposing of pending charges by their government against appellants, relinquished custody to United States officials who transported them to Hawaii. Furthermore as the court noted “The United States does not have an extradition treaty with the Republic of Viet Nam,” 471 F.2d at 745. Thus the transportation of the appellants there to the United States did not violate international law or an international treaty.

The Allegation of Unlawful Wiretapping

With respect to Toscanino’s request pursuant to 18 U.S.C. § 3504 for a statement from the government affirming or denying the occurrence of an “unlawful act” in the form of eavesdropping or surveillance on the part of agents of the United States Government in Uruguay, we agree with the government that the federal statute governing wiretapping and eavesdropping, 18 U.S.C. § 2510, et seq., has no application outside of the United States. The term “wire communication,” as used in the statute, 18 U.S.C. § 2510(1), is intended to refer to communications “through our Nation’s communications network.” See 1968 U.S. Code Cong. & Admin. News, 90th Cong., 2d Sess. p. 2178 (emphasis added). In prescribing the procedures to be followed in obtaining a wiretap authorization, see 18 U.S.C. § 2518, the statute significantly makes no provision for obtaining authorizations for a wiretap in a foreign country.

Section 3504, however, is not satisfied merely by showing the inapplicability of our federal wiretap law. Section 3504(b) defines an “unlawful act” as including “any act — in violation of the Constitution.” The government concedes that the Fourth Amendment functions independently of the statute. Compare Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), with Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The question to be resolved, therefore, is whether it applies under the circumstances of this case.

That the Bill of Rights has extraterritorial application to the conduct abroad of federal agents directed against United States citizens is well settled. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (Fifth and Sixth Amendments); Balzac v. Puerto Rico, 258 U.S. 298, 312-313, 42 S.Ct. 343, 66 L.Ed. 627 (1922) (due process); Best v. United States, 184 F.2d 131, 138 (1st Cir.), cert. denied, 340 U.S. 939, 71 S.Ct. 480, 95 L.Ed. 677 (1950) (Fourth Amendment.) The government, however, while not denying that American citizens may invoke the Fourth Amendment against unreasonable searches and seizures conducted by our government beyond the continental limits of the United States, contends that such rights are not available to aliens who are the victims of such conduct. We disagree. Like the Fifth Amendment guarantee of due process, the Fourth Amendment refers to and protects “people” rather than “areas,” Katz v. United States, supra at 353, or “citizens,” compare United States v. Pink, 315 U.S. 203, 228, 62 S.Ct. 552, 86 L.Ed. 796 (1942), and Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931); with Au Yi Lau v. United States Immigration, and Naturalization Service, 144 U.S.App.D.C. 147, 445 F.2d 217, cert. denied, 404 U.S. 864, 92 S.Ct. 64, 30 L.Ed.2d 108 (1971). “The Constitution of the United States is in force . . . whenever and wherever the sovereign power of that government is exerted,” Balzac v. Puerto Rico, supra at 312-313. It is beyond dispute that an alien may invoke the Fourth Amendment’s protection against an unreasonable search conducted in the United States. Au Yi Lau v. United States Immigration & Naturalization Serv., supra at 223. No sound basis is offered in support of a different rule with respect to aliens who are the victims of unconstitutional action abroad, at least where the government seeks to exploit the fruits of its unlawful conduct in a criminal proceeding against the alien in the United States. It is no answer to argue that the foreign country which is the situs of the search does not afford a procedure for issuance of a warrant. As the court pointed out in Best v. United States, supra at 138:

“Obviously, Congress may not nullify the guarantees of the Fourth Amendment by the simple expedient of not empowering any judicial officer to act on an application for a warrant. If the search is one which would otherwise be unreasonable, and hence in violation of the Fourth Amendment, without the sanction of a search warrant, then in such a case, for lack of a warrant, no search could lawfully be made.” 184 F.2d at 138

Even if a more relaxed interpretation were given to the term “unreasonable” as applied to an unauthorized search conducted by our government in Uruguay, appellant alleges that the search here was found to have violated the laws of that country, resulting in the arrest and conviction of the Uruguayan telephone employee hired by the United States Government for unlawful eavesdropping.

Since appellant here alleges that he was the victim of unlawful wiretapping conducted at the direction of United States employees in violation of his constitutional rights, he was entitled to invoke 18 U.S.C. § 3504. The district court was obligated to direct the prosecutor to put his oral denial of the allegation in affidavit form, indicating which federal agencies had been checked and extending the denial not only to conversations of Toscanino but also to conversations of anyone else occurring on premises owned, leased or licensed by Toscanino. See Beverly v. United States, 468 F.2d 732 (5th Cir. 1972); In re Horn, 458 F.2d 468 (3d Cir. 1972); In re Grumbles, 453 F.2d 119 (3d Cir.), cert. denied, 406 U.S. 932, 92 S.Ct. 1806, 32 L.Ed.2d 134 (1971); In re Marx, 451 F.2d 466 (1st Cir. 1971). In the absence of such sworn written representations we are unable to affirm the denial of a hearing on Toscanino’s wiretap allegations. Cf. In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239 (1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342 (1972) (18 U.S.C. § 3504 is triggered by mere assertion that unlawful wiretapping has been used against a party).

Conclusion

The case is remanded to the district court for further proceedings not inconsistent with this opinion. Our remand should be construed as requiring an evi-dentiary hearing with respect to Toscan-ino’s allegations of forcible abduction only if, in response to the government’s denial, he offers some credible supporting evidence, including specifically evidence that the action was taken by.or at the direction of United States officials. Upon his failure to make such an offer the district court may, in its discretion, decline to hold an evidentiary hearing. Cf. Russo v. United States, 404 U.S. 1209, 92 S.Ct. 4, 30 L.Ed.2d 13 (Douglas, J., sitting as a circuit judge).

ROBERT P. ANDERSON,

Circuit Judge (concurring in result):

I concur in the result.

My .concurrence is so limited because this case can be disposed of on" due process grounds alone. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The majority opinion well establishes that if the defendant is successful in proving what he has alleged about the highly irregular activities of the Federal agents, this court is not going to sanction or validate them by affirming the conviction of the defendant. United States v. Archer, 486 F.2d 670 (2 Cir. 1973). The courts of this country, in dealing with cases before them, no longer completely disregard the behavior of our police agents when they are operating outside of the national boundaries.

To reach this conclusion, however, this court need not hold that the Bill of Rights has extraterritorial application for foreign nationals. Defendant could show that he was carried into this jurisdiction in violation of the Fourth Amendment, but the Government need not comply with the Fourth Amendment or the United States wire tap laws in foreign jurisdictions. To hold otherwise would be novel and would make unreasonable demands on our foreign agents, whether in law enforcement or national security, who by following the law of the country in which they are staying, could at the same time find themselves in defiance of United States constitutional safeguards.

Further, defendant did not enter this country pursuant to any treaty; he is, therefore, not “clothed” in any treaty rights and cannot invoke the extradition treaty or the charters of the Organization of American States and the United Nations as personal defenses, United States v. Sobell, 142 F.Supp. 515 (S.D.N.Y.1956) (Kaufman, Judge), aff’d 244 F.2d 520 (2 Cir.), cert. den. 355 U.S. 873, 78 S.Ct. 120, 2 L.Ed.2d 77 (1957). Violation of the standards laid down by these treaties is again indicative of the denial of due process, but not a defense in and of itself. By and large treaties are to be enforced by governments, rather than by their individual citizens, and neither the United States, Uruguay nor Brazil contemplated that, under these circumstances, a defendant could personally seek to invoke these treaties.

      .' At tlie time of Toscanino’s trial, Caramian was already serving an 18-year sentence for narcotics violations and bail jumping.

      . 18 U.S.C. § 3504 provides:
      ■‘(a) In any trial, hearing, or other proceeding in or before any court ... of the United States
      (1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;
      *****
      (b) As used in this section ‘unlawful act’ means any act the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.”

      . 18 U.S.C. § 1201 provides:
      “(a) Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.”

      . An illegal arrest constitutes a seizure of the person in violation of the Fourth Amendment, see Henry v. United States, 361 U.S. 98, 100-101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Giordenello v. United States, 357 U.S. 480, 485-488, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Frankel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361 (1921).

      . The relevant provisions of these Charters are set forth and discussed infra.

      . We recognize that the Ninth Circuit, in United States v. Cotten, 471 F.2d 744, 747-748 (9th Cir. 1973), adhered to Ker and Kristie in affirming the convictions of defendants who had been forcibly taken by United States officials from Viet Nam to the United States to stand trial. The case is distinguishable on several grounds. It may be judicially noticed that at the time of the transfer South Viet Nam, as an ally, was being maintained and supported by the United States and was occupied by American forces. Control over the appellants was relinquished by the Vietnamese authorities to the United States officials, and no extradition treaty existed between the Republic of Viet Nam and the United States, see pages 3515-16, supra. Furthermore, the Ninth Circuit noted, 471 F.2d at 748 n. 11:
      “11. While the court recognizes that the vitality of the doctrine we follow may be in doubt, and that federal officers might he held to a higher standard of conduct than their state counterparts, we will not strike it down. Recent legislation and constitutional protections enunciated in the last decade provide viable alternative means of coping with undisciplined law enforcement activities.”
      The suggestion that such means offer an adequate substitute for the sanction of exclusion or dismissal has repeatedly been rejected by the Supreme Court. See Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (Exclusionary Rule is “only effectively available way” to compel respect for constitutional guarantees). Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968) (“experience has taught us that [Exclusionary Rule] is only effective deterrent . . . ”).

      . Article 35 of the U.N. Charter permits member nations to bring “any dispute . . . to the attention of the Security Council or of the General Assembly.”

      . Appellant’s Brief on Supplementary Motion, United States v. Sobell, 244 F.2d 520 (2d Cir.), cert. denied, 355 U.S. 873, 78 S.Ct. 120, 2 L.Ed.2d 77 (1957).

      . The Constitution, of course, applies only to the conduct abroad of agents acting on behalf of the United States. It does not govern the independent conduct of foreign officials in their own country. Birdsell v. United States, 346 F.2d 775, 782 (5th Cir.) (per Friendly, C. J., sitting by designation), cert. denied, 382 U.S. 963, 86 S. Ct. 449, 15 L.Ed.2d 366 (1965). Whether or not United States officials are substantially involved, or foreigners are acting as their agents or employees, is a question of fact to be resolved in each case. Stonehill v. United States, 405 F.2d 738, 743-745 (9th Cir. 1968).


source: Caselaw Access Project

author: SNEED, Circuit Judge:

license: Public Domain

text:
    COMMUNITY BANK et al., Appellants, v. FEDERAL RESERVE BANK OF SAN FRANCISCO, and Board of Governors of the Federal Reserve System, Appel-lees.
    No. 73-1808.
    United States Court of Appeals, Ninth Circuit.
    July 22, 1974.

      James B. Irsfeld, Jr. (argued), of Irsfeld, Irsfeld & Younger, Hollywood, Cal., for appellants.
    Michael Kimmel (argued), Dept, of Justice, Washington, D. C., for appellees.
    Before TRASK and SNEED, Circuit Judges, and POWELL, District Judge.

       Honorable Charles L. Powell, Senior Judge, Eastern District of Washington, sitting by-designation.

   OPINION

SNEED, Circuit Judge:

On June 21, 1972, the Board of Governors of the Federal Reserve System unanimously approved changes in Regulation J, 12 C.F.R. § 210, which governs the collection of checks and other items by Federal Reserve Banks. Appellant State Banks, who are neither members of nor affiliated with the Federal Reserve System, object to the amendments to Regulation J insofar as they affect nonmember and non-affiliated payor banks.

Briefly stated, the changes in Regulation J affect both the time and manner in which payor banks must settle for demand items presented for collection by Reserve Banks. Prior to the amendments, payor banks became accountable if they failed to settle for demand items before midnight of the banking day of receipt, and settlements made earlier could be revoked prior to the midnight deadline. The amendments to Regulation J advance the settlement time to the clos.e of the banking day of receipt, and only if settlement is made prior to this time may it be revoked before midnight of the banking day of receipt. The amendments also affect the manner in which settlement may be made by eliminating drafts drawn on other banks as permissible forms of settlement.

Appellants attack the amendments to Regulation J on two broad grounds. First, they urge that the changes are inconsistent with the time and manner of settlement provisions contained in the California Commercial Code, which they contend should govern the operations of nonmember banks chartered under the laws of the State of California. Second, they argue that, to the extent that they attempt to bind payor banks which are not members of the Federal Reserve System, the amendments to Regulation J exceed the power conferred on the Board under the Federal Reserve Act.

Appellant State Banks’ application for a preliminary injunction was denied by the district court on October 10, 1972, and on February 8, 1973, the court entered summary judgment in favor of ap-pellees. We affirm.

Our consideration of the issues presented in this appeal will begin with a brief description of the check collection process and the effects of the amendments to Regulation J on this process. We will then turn to a more detailed examination of the provisions of the California Commercial Code and Regulation J to determine if the amendments to the regulation give rise to a federal-state conflict in the area of banking regulation. Finally, finding no such conflict, we will consider whether Regulation J as amended exceeds the scope of authority conferred on the Board by the Federal Reserve Act.

I.

Background

Approximately 25 billion checks were collected by banks in 1972; of these, eight billion, or roughly one-third, were handled by Federal Reserve Banks. The Reserve Banks provide check collection services for member banks and affiliated nonmember banks which maintain a certain balance with a Reserve Bank; neither the members nor the affiliated nonmembers, however, are required to use the services of the Reserve Banks to collect checks which have been presented to them.

To handle the increased volume of checks, Federal Reserve and other large banks now use computer-controlled, highspeed electronic sorters which are capable of handling 1000 checks per minute. For this purpose, “Magnetic Ink Character Recognition” (MICR) units are pre-printed on each check. The first group of four digits in the MICR number encoded on the bottom of each check designates the Federal Reserve district, territory, and relationship to the local Federal Reserve office. Each of the appellant State Banks encode their checks with a MICR number that begins with “12”, which indicates that they are located in the district of the Federal Reserve Bank of San Francisco. The consequence of this is that checks which are drawn on appellants may be presented by a member or affiliated nonmember bank for collection through the Federal Reserve system.

When checks are presented to a Reserve Bank for collection, settlement is made on the basis of a deferred-payment schedule. This schedule is, with one important exception, based on the amount of time usually required for the Reserve Bank to collect items of a similar type. Since checks drawn on banks in the same city may usually be collected on the same day, same-day credit is passed to the depositor. Checks drawn on banks in other cities having Federal Reserve offices may usually be collected the following day; accordingly, one-day credit is passed to the depositor. Two-day credit is passed when the check is drawn on banks located within the same Federal Reserve territory but outside of a Reserve office city. The exception exists because, while three days may be required to collect checks drawn on banks outside of the Reserve territory and not located in an office city, two-day credit is the maximum length of deferment for any check presented to a Reserve Bank for collection. Thus, in this latter situation the Reserve Bank pays for a check on the basis of the deferred-payment schedule one day before that check is actually collected; this effectively generates a one-day, interest-free loan to the bank involved. The total amount of such loans is known as Federal Reserve “float.” Aggravating the problem of delay in the process of settlement is the practice of some payor banks to settle by means of drafts drawn on other banks.

To alleviate these problems, the amendments to Regulation J (1) advance the time within which payor banks must settle for checks presented for collection by Reserve Banks, and (2) eliminate the use of bank drafts as permissible forms of settlement by requiring settlement to be in immediately-available funds. The resulting acceleration of the process, in turn, enables the Reserve Bank in some instances to pass earlier credit to the depositor bank. From the vantage point of the Federal Reserve, the changes are particularly desirable in that they tend to reduce the problem of “float.”

II.

State Law

We now turn to a consideration of whether the amendments to Regulation J are, as the appellants insist, in conflict with the pertinent provisions of the California Commercial Code.

A. Time of Settlement

Two principal California Commercial Code provisions governing the time in which a payor bank must settle when presented with a check for collection are affected by the amendments to Regulation J. Section 4302 makes a payor bank accountable if it retains an item beyond midnight of the banking day of receipt without settling for it, and Section 4301 allows the payor banks to revoke a provisional settlement if such revocation is made before the midnight deadline. Section 210.-9(a)(1) of the amended Regulation J, however, makes a payor bank accountable if it fails to settle for demand items before the close of its banking day of receipt, and Section 210.12(a) provides that only if settlement has been made by this time may the payor bank revoke prior to midnight of the banking day of receipt.

Taken this far, Regulation J quite obviously is in conflict with the above provisions of state law. The conflict disappears, however, in light of the flexibility provided in Section 4103 of the Commercial Code. Subsection (1) of this provision permits variation of the Code’s provisions by agreement, and subsection (2) provides that “Federal Reserve regulations and operating letters, clearing house rules, and the like, have the effect of agreements . . . whether or not specifically assented to by all parties interested in the items handled.”

Appellants contend that Section 4103(2) does not operate to make Federal Reserve regulations binding on nonmember, payor banks. We disagree. The legislative history behind the language of subsection (2), which elevates Federal Reserve regulations to the status of agreements, “whether or not specifically assented to by all parties interested in the items handled,” makes clear that it may be applicable to non-member pay- or banks. The California Commercial Code Comment indicates that, under pri- or California law, clearinghouse rules “did not govern the rights of a drawer and payee who were not members of the clearinghouse and who did not contract with express reference to those rules.” (emphasis added). The reference to the rights of drawers and payees under “prior California law” suggests that the Code has changed this result. That this change effected by the Code is not limited to drawers and payees is indicated by the breadth of the following comment of the Senate Fact Finding Committee: “Subdivision 2 apparently changes the rule insofar as it applies between parties who are not members of the clearinghouse.” (emphasis added). Sixth Progress Report to the Legislature by the Senate Fact Finding Committee on the Judiciary: Part I, The Uniform Commercial Code 87.

The Report of the New York Law Revision Commission contains an even stronger indication that Section 4103(2) is applicable to nonmember, payor banks which affiliate themselves with the Federal Reserve’s check collection process:

Federal Reserve Regulations and operating letters now operate as ‘agreements’ between the Federal Reserve Banks and banks using the Federal Reserve facilities for collection, and clearinghouse rules now operate of course as agreements among member banks and banks clearing through banks that are members of the clearinghouse association. They are similarly effective as agreements binding on other banks, and their customers, whenever a claim, of agency and suba-gency can be made out connecting the remote bank, and its customer, with the banks that are parties to the agreement, and the agency includes, as a term of the agreement binding the remote party, the power to adhere to that agreement on behalf of the remote principal. Explicit agreement is sometimes difficult to spell out, however. Section 4103(2) postulates an implied assent as a rule of law. (emphasis added).

2 Report of the New York Law Revision Commission for 1955: Study of the Uniform Commercial Code 1262-63. The “claim of agency or subagency” referred to in the Report, which constitutes the necessary predicate for Federal Reserve regulations to be binding on nonmember banks, is readily established by the current voluntary use of MICR members by appellants.

As mentioned above, each of appellants encode their checks with the number “12”, which indicates that they are located in the 12th Federal Reserve district. Obviously, if this number is merely removed, appellants’ checks cannot be electronically processed. If, however, it is replaced by appropriate symbols, the checks may be electronically processed and collected outside of the Federal Reserve system.

That elimination of the Federal Reserve routing numbers is commercially feasible is demonstrated by the current practices of nonpar banks. Since Reserve Banks are prohibited by statute from paying an exchange fee, 12 U.S.C. § 342, checks drawn on nonpar banks cannot be collected through the Federal Reserve system. Nonpar banks replace the Federal Reserve routing number on the lower left-hand portion of their checks with the number “9”. This enables the checks of nonpar banks to be electronically processed even though the MICR number begins with a “9” and even though it does not contain a number referring to any Federal Reserve office. A somewhat similar system as an alternative to the use of Federal Reserve routing numbers is available to appellants. The fact that nonmember banks may find it less commercially advantageous than utilizing the Federal Reserve routing number does not militate against this conclusion.

In sum, appellants are not required to include the Federal Reserve routing number on their checks, and so long as they continue to use this number, the “claim of agency or subagency” referred to in the Report of the New York Law Revision Commission exists, and the terms of Regulation J are binding upon them because of the operation of Section 4103(2).

B. Manner of Settlement

The asserted conflict between the amended Regulation J and Section 4211 of the California Commercial Code is also nonexistent.

Section 4211 lists six forms of remittance which “a collecting bank may take in settlement of an item.” The first of these, Section 4211(1)(a), is “a check of the remitting bank or of another bank or any bank except the remitting bank.” Section 210.9(a) of Regulation J, however, provides that settlement shall be affected in one of three ways: (1) a debit to an account on the books of a Federal Reserve Bank; (2) payment in cash, or (3) at the discretion of the Federal Reserve Bank, any other form of remittance, provided that the proceeds of such payment are available to the Reserve Bank “not later than the close of the banking day for such Federal Reserve Bank on the day on which such item was so received by the paying bank.” A check of the payor bank drawn on another bank would not be convertible into proceeds within the time limits set forth in Section 210.9(a) of the amended Regulation J; thus, Section 4211(1) (a) of the Commercial Code is no longer available as a means of settlement for checks cleared through the Federal Reserve system.

Appellants argue that Section 4211 treats settlement as a two-way proposition, and that it was designed for the convenience of both the payor and the collecting banks. From this, they conclude that the collecting bank, in this case the Federal Reserve, does not have the option of refusing to accept any of the six forms of settlement listed in Section 4211.

Those contentions are refuted by the background of and change effected by Section 4211. At common law, a collecting bank which accepted anything short of specie in settlement did so at its own risk. As the Uniform Commercial Code Comment makes clear, the purpose of Section 4211 is to protect the collecting bank if it accepts something less than legal tender:

Subsection (1) states various types of remittance instruments and authorities to charge which may be received by a collecting bank in a settlement for an item, without the collecting bank being responsible if such form of remittance is not itself paid Since it is not feasible for banks to perform their collection functions except with the use of these provisional remittances, they should not be penalized for acting in the only way they can act.

Thus, the thrust of Section 4211 is to alleviate the problems of the collecting bank in accepting in settlement various types of remittances. It was not designed to require a collecting bank to accept any one or all mentioned forms of remittances in settlement of items. Collecting banks may, with legal safety, accept any one of the mentioned forms. Whether they will accept a given form is a different issue, one to which the amended Regulation J is directed.

Thus, neither the time of settlement nor the manner of settlement provisions of Regulation J are contrary to California law.

III.

Federal Law

Finally, we turn to a consideration of whether the regulation is within the scope of authority conferred on the Board by the Federal Reserve Act. Appellants strongly contend that it is not.

The critical statutory provision dealing with the Federal Reserve’s role in the check collection process is 12 U.S.C. § 342, which provides:

Any Federal reserve bank may receive from any of its member banks checks, and drafts, payable upon presentation, and also, for collection, maturing notes and bills; or solely for purposes of exchange or of collection, may receive from other Federal reserve banks deposits of checks upon other Federal reserve banks, and checks and drafts, payable upon presentation within its district . . . ; or, solely for the purposes of exchange or of collection, may receive from any nonmember bank or trust company deposits of checks and drafts payable upon presentation ; Provided, such nonmember bank or trust company maintains with the Federal reserve bank of its district a balance sufficient to offset the items in transit held for its account by the Federal reserve bank; ....

The authority of Reserve Banks under this section includes the power to collect checks drawn on nonmember banks. See American Bank and Trust Co. v. Federal Reserve Bank of Atlanta, 262 U.S. 643, 43 S.Ct. 649, 67 L.Ed. 1153 (1923). The Board is also authorized to promulgate rules and regulations necessary to the performance of its functions. 12 U.S.C. § 248(i). See also 12 U.S.C. § 248(o).

The appellant State Banks heavily rest their contention on Farmers and Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U.S. 649, 43 S.Ct. 651, 67 L.Ed. 1157 (1923). The problem in Farmers and Merchants Bank arose because of the practice of many nonmember and non-affiliated North Carolina State Banks to charge a fee when presented with a check for collection. This practice, also followed by certain banks in other states, is known as “no par clearance,” and the Federal Reserve is prohibited by statute from paying such a fee. 12 U.S.C. § 342. The Federal Reserve attempted to pressure the State Banks into accepting par clearance by presenting checks drawn on banks following no par practices over the counter for settlement in cash. The common law required that over the counter settlements be in cash. To remove this instrument from the hands of the Reserve, North Carolina enacted legislation providing that, unless the drawer indicated by notation on the face of the check that he required payment in cash, the payor bank was at liberty when the check was presented by a Federal Reserve Bank to pay the check by exchange drawn on its reserve deposits. The statute was thus clearly designed “to relieve state banks from the pressure which . . . Federal Reserve banks were in a position to exert and thus compel submission .to par clearance.” 262 U.S. at 659, 43 S.Ct. at 655.

The Supreme Court sustained the North Carolina statute, and, for purposes of the present controversy, two points resolved in the opinion are significant. First, the Court rejected the Federal Reserve’s argument that the state statute impaired the legitimate functions of the Federal Reserve in the area of check collection. The Court reasoned that, since the Act does not require the Federal Reserve to collect checks drawn on banks which follow no par practices, “ [n] o duty or right of the Federal Reserve Bank to collect checks is obstructed by the North Carolina statute which merely gives to the drawee bank the right to pay in the customary exchange draft, where its depositor has, by the form used in drawing the check, consented that this be done.” 262 U.S. at 664, 43 S.Ct. at 657.

There is nothing in this that supports the appellants. The Court only recognized the right of a state to alter the common law rules relating to bank collections. Here we only recognize the right of the Federal Reserve to promulgate rules with respect to check collections in a manner countenanced by applicable state law. Neither the Federal Reserve here nor North Carolina in Farmers and Merchants Bank acted beyond its power.

The Federal Reserve also argued that the North Carolina statute interfered with the duty of the Board to establish a universal system of par clearance and check collection. There can be little question that, if the Federal Reserve correctly perceived its role, the state statute would have been a serious impediment to the exercise of its responsibilities. The Court, however, flatly rejected the argument that the Federal Reserve Board was charged with the responsibility of establishing universal par clearance and collection of checks.

Congress did not in terms confer upon the Federal Reserve Board or the federal reserve banks a duty to establish universal par clearance and collection of checks; and there is nothing in the original act or in any amendment from which such duty to compel its adoption may be inferred.
262 U.S. at 664, 43 S.Ct. at 657.

Since the amendments to Regulation J do not, in our view, represent an attempt to establish a universal system of check clearance, appellants’ reliance on Farmers and Merchants Bank is misplaced. Because the State Banks are not required to use Federal Reserve routing numbers on their checks, and because alternatives exist to the use of such numbers, the system must be characterized as essentially voluntary. Under such circumstances, the amendments to Regulation J cannot be viewed as an attempt by the Board to establish a universal system of check collection. If the amended Regulation J proves too onerous to the State Banks, they are free to remove themselves from the system.

The amendments to Regulation J are both consistent with California law and within the power conferred on the Board by the Federal Reserve Act. The judgment of the district court is, therefore, affirmed.

      . Prior to the amendments, the time and manner of settlement provisions of Regulation J and the California Commercial Code were virtually identical.

      . See 12 U.S.C. § 342.

      . In addition, the numerator of the fraction located on the upper right-hand portion of appellants’ checks represents the Federal Reserve routing number.

      . The three days include: (1) one day to process the item at the Reserve Bank of first receipt" and transmit it to the Reserve Bank for the area in which the payor bank is located; (2) one day for the item to be processed by the second Reserve Bank and transmitted to the payor bank; and (3) one additional day to receive the remittance.

      . Federal Reserve Operating Circular No. 1.

      . A draft on the remitting bank itself is not permissible because it would merely substitute for the original item another item on the same payor. California Commercial Code § 4211(a).

      . The elimination of float, which approximates $2 billion a year, causes a comparable loss of reserves for those banks enjoying the deferred-payment aspects of this system. To ease this blow, the Board amended Regulation D, 12 C.F.R. § 204, to permit members of the Federal Reserve to reduce their reserve requirements proportionately. Although the lowering of reserve requirements does not benefit nonmember appellants, the California Superintendent of Banks has announced his intention to reduce the reserve requirements applicable to the State Banks in order to offset the same-day requirements for checks collected through the Federal Reserve System.

      . Unless otherwise indicated, all citations are to provisions of the California Commercial Code.

      . Section 4302 provides, inter alia:

      In the absence of a valid defense such as breach of a presentment warranty (subdivision [1] of Section 4207), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of
      (a) A demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or

      . Section 4301 provides, inter alia:

      (1) Where an authorized settlement for, a demand item (other than a documentary draft) received by a payor bank otherwise than for immediate payment over the counter has been made before midnight of the banking day of receipt the payor bank may revoke the settlement and recover any payment if before it has made final payment (subdivision [1] of Section 4213) and before its midnight deadline it
      (a) Returns the item; or
      (b) Sends written notice of dishonor or nonpayment if the item is held for protest or is otherwise unavailable for return.
      (2) If a demand item is received by a payor bank for credit on its books it may return such item or send notice of dishon- or and may revoke any credit given or recover the amount thereof withdrawn by its customer, if it acts within the time limit and in the manner specified in the preceding subdivision.

      . Section 4104 of the Commercial Code provides :
      (c) ‘Banking day’ means that part of any day on which a bank is open to the public for carrying on substantially all of its banking functions;
      (h) ‘Midnight deadline’ with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later;
      Section 4107 provides:
      (1) For the purpose of allowing time to process items, prove balances and make the necessary entries on its books to determine its position for the day, a bank may fix an afternoon hour of 2 p. m. or later as a cutoff hour for the handling of money and items and the making of entries on its books.
      (2) Any item or deposit of money received on any day after a cutoff hour so fixed or after the close of the banking day may be treated as being received at the opening of the next day.
      These provisions of the California Commercial Code are consistent with Section 210.9 (a) of Regulation J, as amended.

      . Section 4211 provides, inter alia-.

      (1) A collecting bank may take in settlement of an item
      (a) A check of the remitting bank or of another bank on any bank except the remitting bank; or
      (b) A cashier’s check or similar primary obligation of a remitting bank which is a member of or clears through a member of the same clearinghouse or group as the collecting bank; or
      (c) Appropriate authority to charge an account of the remitting bank or of another bank with the collecting bank; or
      (cl) If the item is drawn upon or payable by a person other than a bank, a cashier’s check, certified check or other bank check or obligation; or
      (e) Credit on the books of any federal reserve bank or of any bank designated as a depositary by the collecting bank; or
      (f) Money.

      . See generally New York Law Rev. Comm’n, supra at 1355.

      . Compare American Bank & Trust Co. v. Federal Reserve Bank, 262 U.S. 643, 648, 43 S.Ct. 649, 651, 67 L.Ed. 1153 (1923) :
      Country Banks are not entitled to protection against legitimate competition. Their loss here shown is of the kind to which business concerns are commonly subjected when improved facilities are introduced by others, or a more efficient competitor enters the field. It is damnum aibsque injur-ia.


author: STEPHENSON, Circuit Judge.

text:
    Dorothy M. COATNEY, Appellant, v. Robert L. BERKSHIRE and United States of America, Appellees.
    No. 73-1741.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 10, 1974.
    Decided July 22, 1974.

      Thaine Q. Blumer, Kansas City, Mo., for appellant.
    Bert C. Hum, U. S. Atty., Robert G. Ulrich, Asst. U. S. Atty., Kansas City, Mo., and Neil R. Eisner, Trial Atty., Federal Aviation Administration, Washington, D. C., for appellees.
    Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

This is an appeal from a decision in favor of defendant-appellees in an action arising out of a mid-air collision of two light aircraft. It is contended that the finding of the trial court that the negligence of both pilots and not the control tower was the proximate cause of the collision is clearly erroneous. Appellant further urges that the trial court erred in denying recovery under the Missouri Humanitarian Doctrine. We affirm.'

Suit was brought by the widow of Homer E. Coatney, deceased, under the Missouri Wrongful Death Statute, § 537.080 R.S.Mo.1969, V.A.M.S. The United States was joined as a defendant pursuant to the Tort Claims Act, 28 U. S.C. § 2671. The complaint alleged that employees of the Federal Aviation Administration (FAA), an agency of the United States, were negligent in several respects in authorizing the take-off of appellee Berkshire from the Fairfax Airport in Kansas City, Kansas, and in failing to warn Coatney, who was approaching the airport intending to land, of the approach of Berkshire’s aircraft. It was further alleged that Berkshire was negligent in the operation of his aircraft.

The trial court found that the two aircraft collided approximately one and one-half miles northwest of the Fairfax Airport at approximately 5:31 P.M.; at the time the weather was reported as clear, visibility 15 miles, wind light and variable; official sunset was at 6:50 P. M.; both pilots were operating under Visual Flight Rules (VFR) ; both were holders of Private Pilot Certificates; both had substantial flying experience; and both were in command of their respective aircraft.

The record indicates that Berkshire was cleared for take-off on runway 35 at Fairfax Airport at approximately 5:28, three minutes before the collision. At approximately 5:29 Coatney radioed the local controller he was “approaching Tank Inbound.” (The Tank intersection was situated 2.5 miles due north of the north end of runway 35.) The controller instructed Coatney to “break off at the Tank” (meaning the pilot should make a right turn and proceed southwest to stay clear of the traffic pattern) and to notify him when his aircraft reached the Tank intersection. Ten seconds later Coatney reported, “I just showed Tank intersection, I’m a little bit west about even with the bridge.” The controller then instructed, “Fly your downwind west of the bridge and report there for sequence; I’ll have traffic ahead of you.” Coatney acknowledged, “Will do.” This was his last transmission.

Plaintiff’s principal allegation of negligence on the part of the controller is that he failed to warn either pilot of the converging courses of their aircraft.

The Fairfax Airport control tower was staffed by employees of the Federal Aviation Administration whose job it was to facilitate the movement of traffic on and around the airport.

At the time of the accident and at material times prior thereto both pilots were operating within the Fairfax Airport traffic area and had the duty to remain in radio contact with the controller and to monitor transmissions on the tower radio frequency. 14 C.F.R. § 91.-87. Records prior to the accident indicate that from the time Berkshire was cleared for take-off (three mindtes before this collision) until the collision the controller spoke to at least eight separate aircraft and there were 37 separate transmissions between the various aircraft and the tower. While the controller’s primary duty is to establish the sequence of arriving and departing aircraft, he cannot be expected to give constant and exact traffic information to all aircraft in the airport traffic area.

It is well settled law that under VFR conditions the primary responsibility for safe operation of the aircraft rests with the pilot, regardless of the traffic clearance. In the instant case, each pilot was directly responsible for, and had the final authority as to the operation of his aircraft. American Airlines v. United States, 418 F.2d 180, 193 (CA5 1969); United Airlines, Inc. v. Wiener, 335 F.2d 379, 389 (CA9 1964); United States v. Miller, 303 F.2d 703, 709-710 (CA9 1962); 14 C.F.R. § 91.3. Under Visual Flight Rules, and in Visual Flight Rule weather conditions, it is the pilot, and not the air traffic controller, who has the primary responsibility for preventing collisions between aircraft. Tilley v. United States, 375 F.2d 678, 682-684 (CA4 1967); American Airlines v. United States, supra; United States v. Miller, supra; United States v. Schultetus, 277 F.2d 322 (CA5 1960); Hamilton v. United States, 497 F.2d 370 (CA9 1974) aff’g, 343 F.Supp. 426 (N.D.Cal.1971).

Here, in the controller’s last instruction, which Coatney acknowledged, he was told to report at the bridge for sequence and warned, “I’ll have traffic ahead of you.” Coatney was thus alerted that other aircraft would be ahead of him as he entered the traffic pattern in the vicinity of the bridge. The controller also had a right to expect that both pilots would monitor the tower and would be familiar with the relative position of traffic in the area.

The trial court considered all the evidence and made findings that the air traffic controller defendants were not negligent and that each of the pilots was contributorily negligent for failure to keep an adequate lookout. Upon our study of the record, we cannot say these findings are clearly erroneous and so we affirm the trial court.

Plaintiff further contends that notwithstanding Coatney’s negligence she is entitled to recover under the Missouri Humanitarian Doctrine. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482 (1924); Rudloff v. Johnson, 267 F.2d 908 (CA3 1959); Turbett v. Thompson, 363 Mo. 577, 252 S.W.2d 319 (1952).

We agree with the trial court that there is nothing in this record to indicate that the air controller, in the exercise of ordinary care, should have observed Coatney in a “position of imminent peril” at any time prior to the accident. The Missouri Humanitarian Doctrine is not applicable to the facts of this case.

Affirmed.

      . Berkshire, who survived the crash, stated that he liad climbed to and leveled off at 1500 feet above mean sea level (about 155 feet above the established traffic pattern for the subject aircraft, wliic was 600 feet above ground level) when the collision occurred.

      . 14 O.F.B.. § 91.105.

      . 14 C.F.R. § 1.1, at the time the accident occurred, defined an “airport traffic area” as “that airspace within a horizontal radius of five statute miles from the geographical center of any airport at which a control tower is operating, extending from the surface up to, but not including, 2000 feet above the surface.”