author: PLATT, District Judge.

text:
    UNITED STATES of America v. Victoriano MOLINA-CHACON, Gaetano Giuffrida, Trinitario Ruiz-Saura, Theresa Ruiz, Anthony C. Castelbuono, Melania Lopez, Rudolfo Risatti, Francis DiTommaso, Salvatore Messina, and Sheila Silvetti, Defendants.
    No. 85 CR 168 (S-3).
    United States District Court, E.D. New York.
    Jan. 27, 1986.
    See also 625 F.Supp. 338.

      Raymond J. Dearie, U.S. Atty., E.D. New York, Brooklyn, N.Y. by Carol B. Scha-chner and Ephraim Savitt, for the Government.
    Schulman & Laifer, Brooklyn, N.Y. by Barry E. Schulman, for defendant Molina-Chacon.
   MEMORANDUM AND ORDER

PLATT, District Judge.

This Court is called upon once again to decide several motions submitted by defendant Victoriano Molina-Chacon in this multi-defendant, international, multi-million dollar heroin conspiracy and money laundering case. Molina-Chacon seeks the suppression of certain physical evidence seized from him upon his arrest in Bermuda as well as the suppression of certain statements made by him subsequent to his arrest. Additionally, Molina-Chacon, citing United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), seeks the dismissal of counts in the current superseding indictment on the grounds that they exceed the permissible indictable crimes specified in his “extradition.” For the reasons discussed in this opinion, all of the motions of the defendant must be denied.

I. Background

Based upon the documents and memo-randa submitted to this Court as well as the testimony given at a pre-trial suppression hearing held on November 19 and 20, 1985, the Court finds the following to be the facts of the case.

Victoriano Molina-Chacon and others were the subject of a long investigation conducted in the Eastern District of New York and elsewhere concerning their involvement in heroin trafficking and money laundering. By January of 1985 this investigation had convinced agents of the United States Drug Enforcement Administration (“DEA”) of Molina-Chacon’s substantial involvement in criminal activities. An arrest warrant for Molina-Chacon was obtained from United States Magistrate John L. Ca-den on January 21, 1985 in the Eastern District of New York for the crime of conspiracy to import heroin into the United States. At that time Molina-Chacon was somewhere overseas beyond the jurisdiction of United States law enforcement personnel. An undercover operation was conceived whereby agents of the DEA would meet Molina-Chacon in Bermuda and secure his apprehension there.

Sometime in February of 1985, Special Agent Kevin Gallagher, the DEA’s liaison with Bermudian authorities, communicated with Detective Inspector John L. Williams, who was the head of the narcotics section of the Bermuda Police Force. Agent Gallagher told Inspector Williams of the existence of the outstanding warrant for Molina-Chacon as well as the desire of the DEA to send agents to Bermuda to further their investigation of this case. Prior to this point in time, Inspector Williams knew absolutely nothing about the American investigation. Inspector Williams relayed this request to the Attorney General of Bermuda, Saul M. Froomkin, and the Commissioner of Bermuda’s Police, Frederick Bean. A decision was made to permit the United States to send DEA agents to Bermuda to further their investigation of Molina-Cha-con.

On Thursday, February 28, 1985, Special Agents Lucille Lanzar and Joel Gutensohn arrived in Bermuda with the arrest warrant that had been signed by Magistrate Caden. Inspector Williams took the United States warrant to Attorney General Froomkin and a request for a provisional arrest warrant was drawn up. This request was granted by Bermudian Magistrate Ephraim Georges on Friday, March 1, 1985.

The next day, Saturday, March 2, 1985, Inspector Williams drove Agents Lanzar and Gutensohn to Bermuda’s airport to watch for the arrival of Molina-Chacon. After deplaning, Molina-Chacon took a taxi, which Inspector Williams and the agents followed, to the Elbow Beach Hotel. Shortly after arriving at the hotel, Molina-Chacon went to the Seahorse Bar and Grill (located in the lower level of the Elbow Beach Hotel) and met with DEA Special Agents Art Reed and Frank Fernandez (they had arrived separately in Bermuda), who were acting in an undercover capacity. Agents Lanzar and Gutensohn also joined this meeting in an undercover capacity while Inspector Williams observed the entire group out of earshot. After the conclusion of the March 2nd meeting, Agents Lanzar and Gutensohn informed Inspector Williams that another undercover meeting with Molina-Chacon would take place in the late afternoon of March 3rd and that Inspector Williams should bring the provisional arrest warrant with him to the Elbow Beach Hotel in order to effect Molina-Chacon’s arrest.

On Sunday, March 3, 1985, Molina-Cha-con met again with the group of undercover DEA agents in the Seahorse Bar and Grill. At this time Inspector Williams was waiting in the lobby of the Elbow Beach Hotel along with Detective Sergeant Winston Esdaille of the Bermuda Police. After meeting for about an hour in the Seahorse Bar and Grill, the DEA agents led Molina-Chacon to the lobby of the hotel. At this point, Inspector Williams, through the translation into Spanish by Agent Fernandez, identified himself to Molina-Chacon as a Bermudian Police Official and informed him of his possession of a provisional arrest warrant.

Inspector Williams told Molina-Chacon (through Agent Fernandez’s translation) that he was not obligated to say anything unless he wished to do so and that anything he said would be written down and used in evidence. Inspector Williams took possession of an attache case which Molina-Chacon was carrying and led him to an unmarked police vehicle. Molina-Chacon made no significant statements at this time other than “thanking” the agents.

Molina-Chacon was placed in a car along with Inspector Williams and Agents Guten-sohn and Fernandez. Agents Lanzar and Reed followed in a second car operated by Sergeant Esdaille. En route to the Hamilton Police Station, Agent Gutensohn orally advised Molina-Chacon of his Miranda rights, which were translated into Spanish by Agent Fernandez. Molina-Chacon said he understood his rights and that he had not done anything.

Upon arrival at the Hamilton Police Station, Molina-Chacon was processed by the Bermuda Police which included a search of his person for valuables and other items, at which point his wallet was taken. Inspector Williams asked Agent Fernandez to read in Spanish to Molina-Chacon a “notice to prisoners” form which apparently is a statement of the rights which arrestees have under the law of Bermuda. Agent Fernandez translated the document but, being distrustful of Agent Fernandez's translation, Molina-Chacon refused to sign it.

After the initial processing by the Bermuda Police, Agent Lanzar asked Inspector Williams if she could question Molina-Cha-con to obtain some biographical information for DEA files. Inspector Williams provided Agent Lanzar with a blank personal history form utilized by the Bermuda Police and access to an interview room for this purpose. Agents Lanzar and Fernandez entered this room with Molina-Chacon. Agent Fernandez translated into Spanish the Miranda warnings from a standard DEA form. Molina-Chacon stated that he understood his rights and that he had done nothing illegal. At this point Agent Lan-zar, with Agent Fernandez translating, asked Molina-Chacon various biographical background questions. After obtaining the pedigree information, Agent Lanzar asked Molina-Chacon whether he knew Antonio Turano and Gaetano Giuffrida, two other individuals suspected of narcotics trafficking. Molina-Chacon described his association with these individuals in various business ventures, related that he suspected their being involved in illegal activities, but denied any personal involvement in heroin-trafficking. This ended the conversation with the agents.

At some point during the events at the Hamilton Police Station that day, Inspector Williams allowed DEA agents to photocopy documents which were contained in the attache case and wallet seized from Molina-Chacon. The originals remained in Bermudian custody as well as the wallet and attache case themselves. The DEA agents left for the United States the next day, Monday, March 4, 1985.

Molina-Chacon, meanwhile, remained in the custody of the Bermudian authorities. On the morning of March 4,1985, Inspector Williams communicated with the Spanish Consul to Bermuda, a Mrs. Dean, and informed her that he had a Spanish National (Molina-Chacon) in custody. According to Inspector Williams, the purpose of this communication was to have the Spanish Consulate attend to any “humanitarian needs” Molina-Chacon might have. Inspector Williams offered to have the Bermuda Police’s Spanish interpreter, a Colombian woman, meet with Molina-Chacon but Mrs. Dean rejected this idea. Instead, Mrs. Dean insisted that Molina-Chacon be seen by Jose Perez-Vivas, a Spanish citizen fluent in English and Spanish who resided in Bermuda, where he conducted an importing and distribution business. Inspector Williams had never dealt with Mr. Perez-Vivas before but he agreed to communicate with him to ascertain whether he would see Molina-Chacon on behalf of the Spanish Consul.

The next morning, March 5,1985, Inspector Williams went to Perez-Vivas’s office and explained the situation to him. Perez-Vivas readily agreed to meet with Molina-Chacon and asked Inspector Williams to drive him to his residence so that he could obtain his Spanish passport and other documents in order to prove his Spanish citizenship to Molina-Chacon. Parenthetically, it bears mentioning that Mr. Perez-Vivas accepted no fee for his services to the Spanish Consul. Apparently, Mr. Perez-Vivas considers the occasional translation work he does for the Spanish Consul, Bermudian government agencies and other organizations to be a public service for which he seeks no compensation.

After obtaining his Spanish documents, Perez-Vivas went with Inspector Williams to the Hamilton Police Station. Inspector Williams brought Perez-Vivas to an interview room where Molina-Chacon was held and introduced the two. Inspector Williams (through Perez-Vivas’s translation) again informed Molina-Chacon that he was not obligated to say anything unless he wished to do so and that anything he did say would be taken down in writing for evidence. Perez-Vivas displayed his Spanish documentation to Molina-Chacon and the two began to converse. Inspector Williams remained in the room and Perez-Vivas translated what Molina-Chacon was saying and took notes. Perez-Vivas and Molina-Chacon had a wide-ranging discussion which initially involved topics of family, Spain and Molina-Chacon’s shoe business. Molina-Chacon also spoke of monetary transactions in the United States and mentioned the first names of various individuals. Most significantly, Molina-Chacon mentioned a 2.4 million dollar transaction in New York which involved a lawyer named “Tony Castelbuono” (a co-defendant in this case). When first names were mentioned by Molina-Chacon, Inspector Williams asked for clarification of identities, which Molina-Chacon did not provide. These were apparently the only questions asked by Inspector Williams, the lion’s share of the questioning came directly from Perez-Vivas. At one point, Inspector Williams left the room to try to communicate with the DEA in New York to inform them of the then occurring conversation. The entire session lasted for about one hour. At the conclusion of the conversation Inspector Williams asked for and received Perez-Vivas’s notes and obtained Perez-Vivas’s agreement to act as Molina-Chacon’s interpreter at an appearance before a Bermudian Magistrate later that day. Inspector Williams subsequently telephoned Agent Lanzar in New York and relayed the statements Molina-Chacon had made to Perez-Vivas.

On the afternoon of March 5, 1985, Molina-Chacon was brought before a Bermudian Magistrate. With Perez-Vivas serving as interpreter the Magistrate informed Molina-Chacon of the charges against him. Through Perez-Vivas, Molina-Chacon informed the Magistrate of his desire to go to the United States to face his charges. The Bermudian Magistrate remanded Molina-Chacon into custody pending the preparation of a waiver of extradition.

The Bermudian Attorney General, Saul M. Froomkin (who was also during the time in question the acting Deputy Governor of Bermuda), prepared a waiver and consent to extradition as well as a deportation order. Molina-Chacon was brought before a Bermudian Magistrate a second time, on March 11, 1985, and, with Perez-Vivas again acting as interpreter, the Magistrate read to Molina-Chacon the contents of the waiver and consent to extradition. After the Magistrate explained to Molina-Chacon in lay terms that signing the waiver was not an admission of -guilt Molina-Chacon signed the waiver, which said in pertinent part: “I, Victoriano Molina Chacon ... hereby freely and voluntarily waiver and forego all my rights under The Extradition Act 1870....”

It should also be noted that at neither appearance before the Bermudian Magistrates was counsel present for Molina-Cha-con. However, the Spanish Consul had retained a barrister, Brian Smedley, to represent Molina-Chacon. Mr. Smedley had apparently visited Molina-Chacon while he was in custody. There is no indication that Mr. Smedley was dissatisfied with the proceedings involving Molina-Chacon or that his representation of Molina-Chacon was somehow incompetent under the law of Bermuda.

On March 12, 1985, Molina-Chacon was taken to the Bermuda airport by Inspector Williams. Inspector Williams released Molina-Chacon into the custody of a United States Marshal and boarded the plane with them. He also brought along the attache case and wallet seized from Molina-Chacon. Upon his arrival in New York, Inspector Williams turned over the attache case and wallet to DEA agents.

II. Discussion

A. The Wallet and Attache Case

Molina-Chacon seeks the suppression of the contents of the wallet and attache case seized from him in Bermuda. He contends that these seizures were performed by Bermudian authorities at the behest of the DEA for the express purpose of obtaining evidence for a United States prosecution, in violation of the Fourth Amendment. He further maintains that his privacy interests in these items outweigh any of the factors typically used to sustain inventory searches.

In view of the facts of this case, these arguments must fail. To begin with, it is clear from the record that the seizure of the attache case and wallet was done by Bermudian police officials. It is a well accepted principle of American law that the requirements of the Fourth Amendment do not apply to foreign searches by foreign officials:

It is obvious and the decisions have therefore recognized, that since United States courts cannot be expected to police law enforcement practices around the world, let alone to conform such practices to Fourth Amendment standards by means of deterrence, the exclusionary rule does not normally apply to foreign searches conducted by foreign officials.

United States v. Mount, 757 F.2d 1315, 1317 (D.C.Cir.1985) (citations omitted).

The Second Circuit has recognized two exceptions to this general rule. If the circumstances of the foreign search were such that they “shocked the judicial conscience,” then the evidence thereby obtained might be excluded. Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir.1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2862, 61 L.Ed.2d 299 (1979); United States v. Cotroni, 527 F.2d 708, 712 n. 10 (2d Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976); United States v. Na- gelberg, 434 F.2d 585, 587 n. 1 (2d Cir.1970), cert. denied, 401 U.S. 939, 91 S.Ct. 935, 28 L.Ed.2d 219 (1971). The circumstances of this case clearly do not warrant such a finding. Molina-Chacon suffered no mistreatment by Bermudian officials and, indeed, it seems that Inspector Williams scrupulously honored Molina-Chacon’s rights under the law of Bermuda.

A second exception would be a situation where the United States officials were involved to such an extent in the search and seizure that the foreign officials could be considered agents of the United States. United States v. Toscanino, 500 F.2d 267, 280 n. 9 (2d Cir.1974). The Second Circuit has expressly reserved decision on the precise test to be employed in determining whether a “joint investigation” with foreign authorities has reached the point where the strictures of the Fourth Amendment must be applied to the foreign officials. United States v. Paternina-Vergara, 749 F.2d 993, 998 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985); United States v. Busic, 592 F.2d 13, 23 n. 7 (2d Cir.1978).

Other courts have dealt with this “joint investigation exception.” The Ninth Circuit in Stonehill v. United States, 405 F.2d 738, 743 (9th Cir.1968), cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969), established the following test:

Thus, the Fourth Amendment could apply to raids by foreign officials only if Federal agents so substantially participated in the raids so as to convert them into joint ventures between the United States and the foreign officials.

Other Circuits have established seemingly more lenient standards. In Birdsell v. United States, 346 F.2d 775, 782 (5th Cir.), cert. denied, 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366 (1965), the Fifth Circuit stated:

[TJheir reasoning, that the United States is bound by the Bill of Rights wherever it acts, is inapplicable to an action by a foreign sovereign in its own territory in enforcing its own laws, even though American officials were present and cooperated in some degree.

This Court need not attempt, however, to predict what particular test or standard the Second Circuit might adopt in construing the joint investigation exception to the principle that the Fourth Amendment does not apply to foreign searches by foreign officials. No matter what the phraseology employed by the various federal courts, the result, as the Second Circuit has noted, has been almost uniformly the same:

There exists no case, so far as we are aware, which suppresses evidence obtained in a foreign country under such conditions, regardless of whether the foreign officers failed to follow American constitutional procedures or of the extent to which American agents may have been involved in their activities. The courts can hardly be said to have spoken with one voice in articulating the reasons for their decisions, but as a statistical matter they have apparently been unanimous in rejecting attempts to suppress the challenged foreign evidence.

Stowe, 588 F.2d at 342.

The implication is clear that a federal court must look at the particular facts of each case involving a search or seizure by foreign officials and make a determination whether the application of the Fourth Amendment and its attendant exclusionary rule is worthwhile. The guiding principle is that the exclusionary rule is not a constitutional right of an individual but rather a judicially created device to deter United States police misconduct, to be applied only in those situations where this objective can be achieved. United States v. Janis, 428 U.S. 433, 446-47, 96 S.Ct. 3021, 3028-29, 49 L.Ed.2d 1046 (1976).

The facts of this case do not warrant the application of the exclusionary rule and the suppression of the items seized by the Bermudian authorities. There is simply no evidence of misconduct by United States agents or the Bermudian officials and no indication that suppression here would serve a deterrent purpose. See United States v. Rose, 570 F.2d 1358, 1362 (9th Cir.1978); United States v. Morrow, 537 F.2d 120, 140 (5th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).

It is true that the Bermudian authorities were acting subsequent to a request for assistance by the United States and had no prior knowledge of the investigation. However, the mere fact that a foreign search or seizure is prompted by information from United States officials is not sufficient justification to apply the Fourth Amendment. See United States v. Wolfish, 525 F.2d 457, 463 (2d Cir.1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976); Brulay v. United States, 383 F.2d 345, 348 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967).

The fact that Agent Fernandez interpreted for the Bermudian authorities does not require application of the exclusionary rule. See Birdsell, 346 F.2d at 782 n. 11 (Texas Deputy Sheriff interpreted for Mexican Customs authorities). The fact that United States agents were present during the seizure and were allowed to photocopy the documents seized does not require the application of the exclusionary rule. See Stonehill, 405 F.2d at 741-42 (IRS officials copied documents seized in illegal Philippine raid). The eventual turning over of the attache case to United States authorities also does not require the application of the exclusionary rule. See Busic, 592 F.2d at 23 (French authorities turned over flight bag to United States officials). In sum, nothing in the facts of this case is so out of the ordinary or egregious as to require the suppression of the evidence seized.

It is an unfortunate phenomenon that modern day narcotics trafficking is conducted on a global scale with the dealers or traffickers frequently crossing national boundaries. It is to be expected that United States law enforcement agencies will have to enlist the cooperation of their counterparts in other parts of the world. This international cooperation does not mandate the conclusion that the assistance rendered by foreign officials thereby makes them agents of the United States and thus subject to our Constitution and jurisprudence. It may not be expected that foreign law enforcement officials will be familiar with our legal system. To impose such an onerous burden would unduly hamper cooperative international efforts to stem the flow of narcotics that are poisoning our nation’s youth.

Of course, United States courts must guard against those rare situations where overzealous United States law enforcement personnel attempt to use foreign officials to circumvent constitutional safeguards. The present case, where United States officials request that their counterparts in another country apprehend a criminal wanted by the United States and transport him to the United States in accordance with that country’s laws, is not such a situation.

The facts of this case are strikingly similar to those in United States v. Marzano, 537 F.2d 257 (7th Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977), where a defendant also attempted to suppress evidence seized by a foreign police official. In Marzano, the FBI requested the assistance of the Detective Superintendent of Grand Cayman Island in apprehending an individual wanted for a major theft in the United States. The Detective Superintendent allowed the FBI agents to accompany him but he personally took the defendant into custody, seized items from the defendant and placed him on a plane to the United States. The FBI agents had no weapons and had no jurisdiction in Grand Cayman Island, their presence was simply at the good graces of their host, the Detective Superintendent. The Court held that no purpose would be served by excluding the evidence turned over to the FBI by the Detective Superintendent.

The present case is much the same. The agents had no weapons or jurisdiction in Bermuda. Their presence was totally in the control of Inspector Williams. Inspector Williams was far from an “agent” of the Americans, rather he was a host overseeing the presence of the DEA and controlling their limited actions on his island. As the Inspector testified:

Mr. Schulman: Would you say you were assisting in the surveillance?
Inspector Williams: I didn’t consider that to be my function at that time.
Mr. Schulman: Well, what were you doing at that time?
Inspector Williams: To use a phrase to make sure the wheel didn’t come off, I was there to make sure that they didn’t do anything illegal in my country and to make sure that they followed the laws and the procedures.
Mr. Schulman: You were keeping an eye on the agents?
Inspector Williams: Yes, to make sure that they didn’t do anything that was illegal in Bermuda.

Eecord at 342.

The Court concludes that the Bermudian officials were not acting as mere agents of the Americans and therefore the Fourth Amendment does not apply to the seizure in question. The attache case, wallet and their contents will not be suppressed. We should also make it clear that, even assuming arguendo that the Fourth Amendment did apply to this seizure, it would be lawful both as a search incident to a lawful arrest and a valid inventory search. See Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Eatherton, 519 F.2d 603 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975).

B. Molina-Chacon’s Statements to Agents Lanzar and Fernandez

The statements made by Molina-Chacon to Agents Lanzar and Fernandez at the Hamilton Police Station following his arrest require little discussion. The record indicates that Molina-Chacon had twice been advised of his rights pursuant to Miranda prior to his questioning by Agent Lanzar. There is nothing in the record to suggest that the translation of the Miranda warnings into Spanish by Agent Fernandez was not adequate and there is also no reason to question Molina-Chacon’s understanding of the warnings. It should also be noted that much of Agent Lanzar’s questioning involved pedigree information. Questions as to pedigree are not considered interrogation and do not require Miranda warnings. United States ex rel. Hines v. La Vallee, 521 F.2d 1109, 1113 n. 2 (2d Cir.1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976); United States v. Badr, 604 F.Supp. 569, 578 (E.D.N.Y.1985). The statements will not be suppressed.

C. Molina-Chacon’s Meeting With Perez-Vivas

Molina-Chacon also seeks the suppression of statements given during the course of his conversation with Perez-Vivas on March 5, 1985. He alleges that no Miranda warnings were given on that day prior to the conversation and that the entire session was a custodial interrogation at the behest of the United States.

For the moment, we will assume that Molina-Chacon was indeed not fully informed of his rights and that Perez-Vivas was conducting a custodial interrogation as an agent of the Bermuda Police. Even under these assumptions it is clear that the statements in question should not be suppressed. The analysis here is much the same as that undertaken with regard to the suppression of the contents of Molina-Cha-con’s wallet and attache case.

Just as it is true that the Fourth Amendment with its exclusionary rule does not generally apply to searches conducted by foreign officials, so too do the Miranda warnings attendant to the Fifth Amendment generally not apply to interrogations conducted by foreign officials. Cotroni, 527 F.2d at 711; United States v. Trenary, 473 F.2d 680, 681-82 (9th Cir.1973); Kilday v. United States, 481 F.2d 655, 656 (5th Cir.1973); United States v. Welch, 455 F.2d 211, 213 (2d Cir.1972); United States v. Chavarria, 443 F.2d 904, 905 (9th Cir.1971).

Once again there are two exceptions to this general principle. Statements obtained by foreign officials under circumstances that shock the judicial conscience will be suppressed. Nagelberg, 434 F.2d at 587 n. 1. The “interrogation” conducted by Perez-Vivas and Inspector Williams involved no mistreatment of Molina-Chacon and thus this exception does not apply to the present case.

There also appears to be a “joint investigation” exception such that if United States authorities participated in the interrogation in order to utilize foreign officials as their agents to circumvent the requirements of Miranda, the statements obtained will be suppressed. See United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980); Trenary, 473 F.2d at 682; Welch, 455 F.2d at 213. As in the case with the Fourth Amendment, the Second Circuit has expressly reserved decision on the precise test to be employed in determining whether a “joint investigation” with foreign authorities requires the use of Miranda warnings. United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983).

/ As we did with the exclusionary rule of the Fourth Amendment, this Court will not attempt to predict what should be the test for applying the joint investigation exception with regard to the Miranda warnings of the Fifth Amendment. The proper procedure is to make a case-by-case determination of whether the imposing of a requirement of giving Miranda warnings upon foreign officials is worth while in achieving the goals of Miranda.

It is clear that the Miranda warnings, like the exclusionary rule of the Fourth Amendment, are not individual constitutional rights in and of themselves. Rather, they are a judicially created device designed to deter unlawful police conduct, in this instance coercive interrogation which infringes on the right against self-incrimination. See New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984). The question in a case involving statements or confessions obtained by foreign police officials is whether imposing the Miranda requirements will deter unlawful interrogation by foreign officials. See Kilday, 481 F.2d at 656; Welch, 455 F.2d at 213; Chavarria, 443 F.2d at 905.

In the present case there is no indication of any misconduct on the part of United States or Bermudian officials and the imposition of Miranda requirements would serve no legitimate purpose. The record shows that the United States had no advance notice of the meeting between Molina-Chacon, Perez-Vivas, and Inspector Williams. Nothing in the record indicates that the DEA had requested Inspector Williams to interview Molina-Chacon to develop further information. The actions of Inspector Williams were totally independent and apparently out of a motivation to attend to Molina-Chacon’s humanitarian needs, not to develop information for the DEA.

The DEA could not be responsible for the independent actions of Inspector Williams. It was certainly not the case here that Inspector Williams and Perez-Vivas were “agents” of the United States in a joint venture. The requirements of Miranda are totally inapplicable here.

The fact that it was the United States that initiated Molina-Chacon’s arrest by requesting the assistance of Bermuda in apprehending him is irrelevant. The United States should not be deterred from requesting the assistance of other nations in catching wanted criminals because of possible misconduct in foreign interrogations. See United States v. Lira, 515 F.2d 68, 71 (2d Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975); Di Lorenzo v. United States, 496 F.Supp. 79, 81 (S.D.N.Y.1980). The role of the United States in helping to plan the arrest of Molina-Chacon does not impose the requirements of Miranda on the “interrogation” by Bermudian officials. See United States v. Mundt, 508 F.2d 904, 906-07 (10th Cir.1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975).

Having held that Miranda does not apply to the situation in question is not necessarily the end of our inquiry. It could conceivably be argued that the prohibition against self-incrimination may still apply to a foreign interrogation even if the requirements of Miranda do not. See Brulay v. United States, 383 F.2d 345, 349 n. 5 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). If such is the case, it would appear that the following test would apply:

Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, the primary criterion of admissibility [remains] the ‘old’ due process volun-tariness test.

Oregon v. Elstad, — U.S.-,-, 105 S.Ct. 1285, 1292-93, 84 L.Ed.2d 222 (1985).

The facts of this case indicate no overreaching on the part of Inspector Williams or Perez-Vivas. Molina-Chacon’s statements were clearly voluntary and satisfied the relevant due process standards (if they do in fact apply to a foreign interrogation).

Having said all of the above, it is also clear to this Court that the requirements of Miranda do not apply to this situation because no custodial interrogation occurred. The Supreme Court has defined custodial interrogation as:

questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) (emphasis added).

This Court finds that Perez-Vivas was not acting on behalf of the Bermuda Police but rather as a private individual performing a public service for the benefit of the Spanish Consul. The requirements of Miranda do not apply to questioning by private individuals even if they turn over information to law enforcement authorities. United States v. Bowers, 739 F.2d 1050, 1056 (6th Cir.), cert. denied, — U.S.-, 105 S.Ct. 195, 83 L.Ed.2d 128 (1984); United States v. Rose, 731 F.2d 1337, 1345 (8th Cir.), cert. denied, — U.S.-, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984); United States v. Pullen, 721 F.2d 788, 790 (11th Cir.1983); United States v. Solomon, 509 F.2d 863, 867 (2d Cir.1975); United States v. Antonelli, 434 F.2d 335, 337 (2d Cir.1970).

It is true that Inspector Williams asked Molina-Chacon some questions in addition to those posed by Perez-Vivas. However, as we just described in detail, Miranda is inapplicable to questioning by foreign police under circumstances like those of this case. There is no indication of any due process violation here and thus there are no grounds on which to suppress any of the statements in question.

D. Motion for Dismissal

Molina-Chacon urges the dismissal of the latest superseding indictment on the grounds that it contains counts which allege additional charges and a broader conspiracy than that for which he consented to be returned to the United States. He cites United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), for the proposition that one may not be tried for a crime other than the offense for which one was extradicted. Accordingly, Molina-Cha-con seeks to limit his prosecution to the offense of conspiring to import 80 kilograms of heroin into the United States, on or about January 22, 1983, which was referred to in the waiver of extradition that he signed. These arguments are totally without merit.

The holding in Rauscher is actually an interpretation of a principle of international law known as the “doctrine of speciality.” Rauscher is a narrow exception to the more general rule that the means by which the presence of a defendant is obtained does not affect the jurisdiction of a federal court. See Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Later decisions have strictly limited Rauscher (and the doctrine of spe-ciality) to its facts, which involved a formal extradition pursuant to treaty. See, e.g., United States v. Valot, 625 F.2d 308, 310 (9th Cir.1980)

In the present case the doctrine of speciality simply does not apply. Molina-Chacon was not extradited, rather he waived extradition and was deported. It is not appropriate for a federal court to determine whether a waiver of extradition in a foreign country was knowing or voluntary. See United States v. Vreeken, 603 F.Supp. 715, 722-23 (D.Utah 1984). We will note, nevertheless, that from the evidence in the record it is clear that Molina-Chacon’s waiver was knowledgeable and voluntary. Faced with a valid waiver of extradition this Court will not apply the doctrine of speciality.

The defendant’s argument is also flawed in that he misconstrues the purpose of the doctrine of speciality. Courts have recognized that the doctrine is a privilege of the asylum state, not the individual right of one accused of a crime. Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973); Berenguer v. Vance, 473 F.Supp. 1195, 1197 (D.D.C.1979).

The proper inquiry, therefore, is whether the country surrendering the accused would object to the prosecution in question. United States v. Jetter, 722 F.2d 371, 373 (8th Cir.1983); Fiocconi v. Attorney General of United States, 462 F.2d 475, 480 (2d Cir.), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972). Nothing in the record leads this Court to believe that the Bermudian authorities would have any objection to the present indictment against Molina-Chacon. If there has been any violation of international law in this case it is incumbent upon the offended country to raise it, not the defendant herein. United States v. Reed, 639 F.2d 896, 902 (2d Cir.1981). See generally Privitera, Toward a Remedy for International Extradition by Fraud: The Case of Leonard Peltier, 2 Yale Law & Pol’y Rev. 49, 56-57 (1983).

Finally, it is clear that the superseding indictment does not violate the doctrine of speciality. The offenses charged in the indictment, although perhaps enlarged in time, are all part of the same heroin conspiracy of which Molina-Chacon was originally appraised and are not so separate as to offend the doctrine. Under circumstances such as these the defendant’s argument must fail. See United States v. Rossi, 545 F.2d 814, 815 (2d Cir.1976), cert. denied, 430 U.S. 907, 97 S.Ct. 1178, 51 L.Ed.2d 584 (1977); United States v. Paroutian, 299 F.2d 486, 490-91 (2d Cir.1962).

III. Conclusion

For all of the foregoing reasons defendant Molina-Chacon’s motions are all denied.

SO ORDERED.

      . Some sort of suitcase belonging to Molina-Chacon was also seized from the hotel by the Bermuda Police. However, it appears that this piece of luggage only contained clothes, none of which have any evidentiary value to the parties in these proceedings.

      . The Court sees no reason to address Molina-Chacon’s argument concerning the gap in time between the Miranda warnings given by the DEA agents at the Hamilton Police Station and his discussion with Perez-Vivas, except to say that where the warnings were given, as here, in defendant’s native language, twice, by U.S. officers and defendant said he understood them in each instance on the day of his arrest, it would scarcely seem necessary that they be repeated in haec verba three days later when he was talked to again by a Bermudian official, even if it be assumed arguendo that the latter was then acting at the instance of the U.S. authorities. The Bermudian abbreviated warning given to him at the later interview that he need not say anything and that anything he said would be taken down in writing for evidence, would seem to us to be an ample reminder of the rights that he said he understood he had. Of course, as indicated in the text, in this case the statements need not be suppressed even if Molina-Chacon had not received adequate warnings.


source: Caselaw Access Project

author: RODRIGUEZ, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Robert F. SIMONE, Defendant.
    Crim. No. 85-330.
    United States District Court, D. New Jersey.
    Jan. 30, 1986.

      Stuart L. Peim, Asst. U.S. Atty., Newark, N.J., for plaintiff, U.S.A.
    Stephen Robert LaCheen, Philadelphia, Pa., for defendant, Robert F. Simone.
   OPINION

RODRIGUEZ, District Judge.

The defendant, Robert F. Simone, Esquire, is accused of having committed perjury before the Honorable Harold A. Ack-erman, U.S.D.J. for the District of New Jersey during the course of a disqualification hearing on October 16, 1984. Although there are a variety of defenses to the charge of perjury, defendant has raised two somewhat novel defenses at the pretrial stage in the context of the present motion to dismiss the indictment. First, defendant contends that this Court should dismiss the indictment because he is the victim of a “perjury trap” set by the government. Second, defendant asserts that he is the victim of a selective prosecution. Defendant seeks, at the least, a hearing to explore the government’s conduct in this case.

Before embarking on an analysis of these defenses, it is necessary to set forth a brief chronology of the events leading up to the defendant’s indictment.

CHRONOLOGY

In 1981, the Federal Bureau of Investigation began an undercover investigation into organized crime’s involvement in Atlantic City. During the course of that investigation, on April 24, 1984, Simone was called to appear as a witness before the Grand Jury. As a result of the investigation, on September 18, 1984, a federal grand jury returned an indictment against Philip Leo-netti, charging Leonetti with conspiracy to extort over $650,000 and two substantive counts of extortion in violation of the Hobbs Act. At the time, Simone was legal counsel to Leonetti. The government, however, objected to his representation on the following grounds:

(1) Simone was an unindicted co-conspirator in the Leonetti indictment and the subject of a continuing grand jury investigation;
(2) Evidence to be introduced at trial, including tape recordings, would identify Simone as an unindicted co-conspirator;
(3) Simone was a witness to certain conspiratorial acts;
(4) Simone had refused to answer questions before the Grand Jury on the grounds that the answers would tend to incriminate him and had broached the possibility of receiving immunity;
(5) Simone had and does represent other unindicted co-conspirators, including Ni-codemo Scarfo and Frank Gerace; and
(6) Simone previously represented another witness to the conspiratorial acts, but withdrew his representation when informed by the government of his own status as a witness in the case.

Letter dated September 20, 1984 from Stuart Peim, A.U.S.A., to Robert F. Simone, Esquire (hereinafter the “September 20 letter”).

Leonetti was arraigned before the Hon. Harold A. Ackerman, U.S.D.J., on September 28, 1984 and the government moved formally at that time to disqualify Simone from representing him. The disqualification hearings began on September 28; continued on October 5; and culminated on October 16, when Simone was sworn, took the stand and answered questions concerning the government’s contention that he was a potential witness in his client’s case. On October 23,1984, the government made an ex parte submission of transcripts and summaries of consensual taped conversations on which Simone was a speaker to Judge Ackerman for an in camera inspection. It is Simone’s testimony, when viewed in light of his taped statements, which forms the basis of the present perjury indictment. On November 19, 1984, Judge Ackerman ruled that (1) Simone was not entitled to review the tapes as a release of the tapes “would jeopardize witnesses and an extremely sensitive investigation” and (2) Simone was disqualified from representing Leonetti. The present indictment charging perjury was returned against Simone on September 19, 1985.

PERJURY TRAP DEFENSE

The defendant first contends that the conduct of the government was so outrageous as to deny him due process under the Fifth Amendment in that he alleges that the government created and forced him into a “perjury trap.” This argument is based essentially upon one act by the government which the defendant alleges fell below the standard acceptable to proper use of governmental power. According to the defendant, the government concealed from him and from the Court the existence of taped conversations on which he was a speaker, and then after he testified, made a secret submission of these tapes to the Court in camera. In other words, defendant argues that the government knew the answers to the questions it planned to ask and knew the answers he was going to give, having heard them before, and that its only purpose in placing him on the witness stand was to obtain a perjury charge.

Defendant concedes that a prosecutor need not warn a witness before a Grand Jury of contrary surveillance materials, but argues that “[s]uch a principle would not be applicable in the context of a disqualification hearing where critical First and Sixth Amendment rights are implicated.” (Defendant’s brief, at 12). The defendant then suggests that if he “had ... been provided with copies of these transcripts when he requested them, [h]e would have had an opportunity to either explain what they meant, recant, further resist disqualification, or agree to be disqualified.” (Defendant’s brief, at 8). It is defendant’s position that ours is a “government of laws and not of men” and that there are bounds beyond which the prosecution may not go without offending traditional notions of fair play.

The question before this Court is whether, on the record before it, the indictment should be dismissed as having been obtained in violation of Fifth Amendment due process principles, or whether there is insufficient evidence before the Court to make this decision and a due process hearing is required to further explore the government’s conduct. This Court holds, for the reasons set forth below, that there is no need for an evidentiary hearing as there is sufficient evidence in the record for it to determine that defendant’s due process rights have not been violated. Accordingly, defendant’s motion to dismiss the indictment on the ground that he was “trapped” into committing perjury is denied.

a. Definitions

The essential elements of perjury are that (1) the declarant must be under oath, (2) the testimony must have been' given in a proceeding before a court of the United States, (3) the declarant must have knowingly made a false statement and (4) the statement must be material to the proceeding before the court. 18 U.S.C. § 1623(a) (1984); United States v. Whimpy, 531 F.2d 768 (5th Cir.1976).

Perjury is a crime of magnitude as it threatens the fair and effective administration of justice. As the Supreme Court has stated:

Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative.

United States v. Mandujano, 425 U.S. 564, 576, 96 S.Ct. 1768, 1776, 48 L.Ed.2d 212 (1976). Since it is “only from the mouths of those having knowledge of the [events] that the facts can be ascertained,” Brown v. Walker, 161 U.S. 591, 610, 16 S.Ct. 644, 652, 40 L.Ed. 819 (1896), great trust must be placed in a witness’s ability to testify truthfully. So critical is this need for truthful testimony that Congress has determined that

[t]he power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath —cannot insure truthful answers.

Mandujano, supra, 425 U.S. at 576, 96 S.Ct. at 1776 (emphasis added). Consequently, to guarantee that testimony will be truthful, Congress has made false swearing a criminal act punishable by severe penalties. Id.

Against this fundamental need in our judicial system to rely on a person’s sworn statement — his or her “word” — this Court now must weigh the defense of a perjury trap. This phrase suggests the deliberate use of a judicial proceeding to secure perjured testimony, a concept in itself abho-rant. See Gershman, The Perjury Trap, 129 U.Pa.L.Rev. 624 (1981).

The idea of a perjury trap is related to the statutory defense of entrapment; however, it does not fit within the established framework of an entrapment defense. The defense of entrapment is available:

[W]hen the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.

Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212-13, 77 L.Ed. 413 (1932) as cited in Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820-21, 2 L.Ed.2d 848 (1958).

It is readily apparent that this defense is not applicable to the crime of perjury. First, perjury is not the kind of crime to which undercover techniques of law are directed. In other words, entrapment is typically found in those cases where undercover techniques were used by law enforcement officials to bait an individual through repeated temptations into committing a crime. Gershman, supra, 129 U.Pa.L.Rev. at 644. For example, the Supreme Court has held that an entrapment defense is applicable in the context of a narcotics offense where undercover agents approached the defendants, gained their confidence and repeatedly asked them to procure illegal substances. See, e.g., Sherman, supra; Sorrells, supra. Second, it is incongruous to speak of a predisposition to commit perjury. Gershman, supra, 129 U.Pa.L.Rev. at 644.

Although entrapment is limited to its statutory elements and is not a defense of constitutional magnitude, United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973), outrageous government conduct may invoke constitutional principles of due process, United States v. Beverly, 723 F.2d 11 (3d Cir.1983), and provide a defense of constitutional dimension. See also, Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring) (government conduct must rise to a “demonstrable level of outrageousness” to compel acquittal on constitutional grounds); United States v. Jannotti, 673 F.2d 578, 608 (3d Cir.), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982) (defense of constitutional dimensions should only be accepted by the court to curb “the most intolerable government conduct”). In other words, in the context of a perjury indictment, the question is not whether the government implanted the disposition to speak falsely in the witness, but whether there was a premeditated design on the part of the government to trap the witness into perjury in such an unfair way that a due process test may provide a viable defense.

Although the defendant would have the Court focus solely on the government’s conduct in refusing to disclose the existence of the tapes and in submitting them to the Court in camera, the Court will not so limit its inquiry. Instead, the Court will conduct a due process analysis of how “fairly” Simone was treated prior to, during and after his testimony at the October 16 hearing.

b. Fairness Analysis

Basic to the concept of “fairness” to a witness is the government’s warning of and the witness’s knowledge of (1) the subject matter of the government’s inquiry and (2) the witness’s constitutional rights. See, Mandujano, supra, 425 U.S. at 600, 96 S.Ct. at 1788 (Brennan, J., concurring) (proof of warning prior to questioning can constitute proof of waiver of Fifth Amendment privilege). The fact that Simone was treated “fairly” by the government and was not “trapped” into committing perjury is readily apparent from a review of the record.

First, the record supports a finding that Simone was warned repeatedly prior to the questioning at the October 16 hearing that he was under criminal investigation for his involvement in a stated crime and that he was a witness to various illegal acts involving Philip Leonetti. In other words, he was without a doubt on notice of the Government’s reasons for seeking his disqualification. Approximately six months before the October 16 hearing, on April 24, 1984, Simone was summoned to appear as a witness before the Grand Jury investigating Philip Leonetti. Immediately after Philip Leonetti was indicted, Simone requested from the government its reasons for insisting that he disqualify himself from representing Leonetti. Twenty-six days prior to the hearing, on September 20, 1984, Simone received a letter setting forth the government’s belief that he was subject to continuing investigation, was an unin-dicted co-conspirator and was a witness to various illegal acts. (September 20 letter discussed supra, at 1266-1267). Eighteen days before the hearing, on September 28, 1984, the government moved to disqualify him on the grounds that he was an unin-dicted co-conspirator in the Leonetti indictment and was subject to a continuing Grand Jury investigation.

At that time, Simone denied the government’s allegation that he was a courier for the Scarfo organized crime family. (September 28 T. 3:13-15). Even after being reminded by the Court of the government’s reasons for seeking his disqualification as set forth in the September 20 letter and being given the opportunity to disqualify himself without a hearing, (September 28 T. 5), Simone insisted that he was prepared at that time to proceed with the hearing on disqualification. (September 28 T. 6). Pri- or to commencing the hearing, Judge Ack-erman read into the record the September 20 letter (September 28 T. 10-13) and again asked Simone if he wanted to resist the government’s application to have him disqualified (September 28 T. 13:8-12). Simone then requested that the government produce evidence to support its allegations. (September 28 T. 14:1-2).

From a review of the government’s presentation of evidence and Simone’s own statements during that presentation, it becomes clear that Simone was aware of the government’s areas of concern — those very areas about which the government later questioned him under oath. On October 5, 1984, Simone admitted that he had been notified by letter that he was the subject of a continuing grand jury investigation. (October 5 T. 5-6). He admitted that he knew “within a matter of two to four weeks before the [Leonetti] indictment” that the government viewed him in a position of conflict (October 5 T. 6:16-25). When faced with the government’s representation that it had informed him on the very day of the Leonetti indictment that he himself was viewed as an unindicted co-conspirator, he stated to the Court, “You can consider that a matter that’s not in question, your Hon- or.” (October 5 T. 7:9-15). In addition, he was aware that former Atlantic City Mayor Michael Matthews’ confession referred to his presence at a meeting critical to the Leonetti indictment, (October 5 T. 24), and that the government could place him at a second critical meeting during which certain alleged conspiratorial acts occurred (October 5 T. 33). Clearly, Simone was well informed by the government of its reasons for wanting to disqualify him prior to testifying under oath.

Second, the record supports a finding that Simone knew prior to testifying under oath of his constitutional rights, including his Fifth Amendment right to refuse to answer any and all questions that might tend to incriminate him. During his appearance before the Grand Jury on April 24, 1984, he was specifically informed of this right by the prosecuting attorney, Mr. Bennett, (April 24 T. 3:12-16), and in fact invoked this privilege throughout the Grand Jury questioning. (See, e.g., April 24 T. 5-7). Again, at the October 16 hearing when informed at that time that he was to be placed on the stand under oath, he stated, “I have a Fifth Amendment right I assume.” (October 16 T. 32:8).

Prior to being questioned before the Grand Jury he was also informed that (1) his answers could be used against him in a subsequent criminal procedure (2) he could be prosecuted for perjury if he made a materially false statement intentionally and (3) he had a right to consult with an attorney. (April 24 T. 3-4). He also asserted the attorney-client privilege with respect to questions concerning a former client, Philip Leonetti, and a present client, Stanley Branche. During the course of the hearings on September 28 and October 16, Simone stated that he had consulted counsel, specifically a constitutional law attorney, “Mr. Lore, who had been advising [him] _” (September 28 T. 2; October 16 T. 34). Simone also was aware that he might have an additional option in testifying, to receive immunity from prosecution. In fact, he specifically asked prior to being sworn at the October 16 hearing, “Are they going to give me immunity?” (October 16 T. 37:10).

The record evidence supports a conclusion that Simone understood the nature of his situation and his rights prior to giving testimony under oath on October 16. He was aware of the Grand Jury investigation (October 5 T. 4-7); he was given written notice of the government’s objections to his representation of Philip Leonetti (September 20 letter); he was reminded of these objections throughout the proceedings; he was given opportunities to disqualify himself; he was instructed by the Court to reflect carefully on the government’s objections (September 28 T. 31, 37); he was warned by the Court that the government-was going to put him on the witness stand and informed by the government that he would not be given immunity (October 16 T. 37); and he was informed of the scope of the questioning prior to the questions being asked. (October 16 T. 44-45).

This is not a situation like those in which the courts have voided perjury convictions. This is not a situation where the questioning body was acting outside the scope of its lawful authority and therefore, the courts voided the convictions. Brown v. United States, 245 F.2d 549 (8th Cir.1957) (grand jury inquired into matters not within its competence); United States v. Cross, 170 F.Supp. 303 (D.D.C.1959) (congressional committee acting as criminal investigator without legitimate legislative purpose).

Nor is this a situation where the questions asked were so unrelated to the inquiry before the Court that the only possible government motive in calling the witness could have been to induce perjury. Brown v. United States, supra, 245 F.2d at 553 (Eighth Circuit quoted district court’s finding that grand jury activities had come “ ‘perilously close to being a fraud on the jurisdiction of this Court.’ ”).

Rather, this is a situation more akin to the situation before the district court in the Northern District of Illinois in United States v. Gonzales, 620 F.Supp. 1143 (N.D.Ill.1985). In that case, the Court was faced with an attorney who when called to appear before the Grand Jury, was told that he was the subject of the investigation, was advised of his Fifth Amendment rights, was given the option not to testify at all, was asked questions material to the grand jury investigation, gave answers consistent with past answers, and subsequently was charged with perjury. The Court refused to dismiss the indictment. In finding no perjury trap, the Court stated:

While the story of the conversion of Saul on the road to Damascus perhaps lives on partly because genuine conversions are so uncommon, there was nothing inherently unfair in the government obtaining the defendant’s testimony in the circumstances presented here. It was not inconceivable that, under oath for the first time, defendant would testify as the government apparently believed the truth to be, and its case would be certain. If in fact he lied under oath, as the government charges, he cannot be insulated from a perjury charge solely because he said what the government anticipated he probably would say. Defendant had non-coercive options and he was fully warned if he, an attorney, chose to lie, that was his decision, and the government can compel him to answer for the consequences.

Id. at 1148-49.

When viewed against the backdrop of the record in this case, Simone’s allegation that he was trapped into committing perjury is without merit. Simone is an attorney, who was informed of the areas of government concern well in advance of his testimony, who knew his constitutional rights and in fact invoked those rights on numerous occasions. The Court is not persuaded that the government’s conduct in not bringing the existence of the defendant’s taped conversations to the Court’s and to the defendant’s attention prior to his taking the stand is so outrageous as to constitute a material misrepresentation offending traditional notions of due process. Not only was the government under no obligation to inform Simone that it had information contrary to his “preferred” testimony, see United States v. Goguen, 723 F.2d 1012, 1018 (1st Cir.1983); United States v. Jacobs, 531 F.2d 87, 89 (2d Cir.1976); United States v. Chevoor, supra, 526 F.2d at 185; United States v. Sun Myung Moon, 532 F.Supp. 1360, 1371 (S.D.N.Y.1982); but also, in light of the facts of this case, the government had a sufficient reason for not disclosing the existence of the tapes in that disclosure would jeopardize an ongoing criminal investigation and perhaps the lives of undercover witnesses. Judge Ackerman ruled, after reviewing the tapes in camera, that Simone was not entitled to review them.

Defendant contends that the government’s conduct in not revealing the existence of the tapes prior to his testimony is somehow more egregious in the instant context of a disqualification hearing where his client’s Sixth Amendment rights were at stake than in the more common context, exemplified in the above-mentioned cases, of a grand jury proceeding. This Court does not agree.

The Court has reviewed the transcript of the questions put to Simone while under oath and finds that they are directly related to the question which was before the Court on October 16, 1984 — whether Simone should be disqualified from representing Philip Leonetti on conflict of interest grounds as he was a potential witness in the Leonetti trial. Where, as here, the questions bear directly on the question before the Court, no further inquiry into the prosecutor’s purpose need be made. See United States v. Nickels, supra, 502 F.2d at 1176; Gershman, supra, 129 U.Pa.L. Rev. at 688.

c. Conclusion

It is the opinion of the Court that no hearing is required to determine whether the defendant was “trapped” into perjuring himself as this question can be answered from evidence already in the record. The Court concludes from a review of the record evidence that Simone’s due process rights were not violated.

Our legal system provides methods for challenging the government’s right to ask questions; however, lying is not one of them. Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969); see United States v. Wong, 431 U.S. 174, 178, 97 S.Ct. 1823, 1825-26, 52 L.Ed.2d 231 (1977). In this situation, Simone could have (1) agreed to disqualification, (2) declined to answer, (3) asserted a privilege either not to incriminate himself under the Fifth Amendment or not to disclose attorney-client communications, (4) testified truthfully under a grant of immunity if the government had been willing to offer this, or (5) answered honestly. If, as the government contends, he answered falsely, he took a course that the Fifth Amendment gave him no privilege to take. Mandujano, supra, 425 U.S. at 584, 96 S.Ct. at 1780. Defendant’s answers were not induced by governmental tactics or procedures so inherently unfair under all circumstances as to constitute a prosecution for perjury in violation of the Due Process Clause of the Fifth Amendment. Defendant’s motion to dismiss the indictment on the ground that he was “trapped” into committing perjury is denied.

SELECTIVE PROSECUTION DEFENSE

Defendant’s second contention is that the indictment should be dismissed because the government’s conduct in investigating and prosecuting the present case was so outrageous as to constitute “government harassment and intimidation designed to curb zealous advocacy on behalf of unpopular clients.” (Defendant’s brief, at 19). It is defendant’s position that the prosecution was undertaken solely to punish him for defending so-called “organized crime” figures. According to defendant, he has been the victim of secret tap-ings for approximately three years and, in fact, was indicted for a tax crime in 1984 in the Eastern District of Pennsylvania, although ultimately acquitted of the charge.

The government argues in opposition that it is the defendant’s burden to establish that he is the victim of a selective prosecution and that defendant has failed to meet this burden in that he has presented to the Court only unsubstantiated allegations.

Defendant replies that a due process hearing may be necessary to inquire into the government’s motives.

The Court concludes that the defendant has not sustained its burden either of proving selective prosecution or to warrant a hearing on the matter. The Supreme Court has made it clear that the decision to prosecute is within the sound discretion of the prosecutor and that courts should be reluctant to examine a prosecutor's motives except in exceptional circumstances:

This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.

Wayte v. United States, — U.S. -, -, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547, 556.

Therefore, defendant’s burden is a heavy one. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). To shift the burden to the government to prove a non-discriminatory motive to prosecute, defendant must show: (1) while others similarly situated have not generally been proceeded against because of conduct of the type of which he has been accused, he has been singled out for prosecution and (2) the government’s discriminatory selection of him has been invidious or in bad faith, such as the desire to prevent his exercise of constitutional rights. United States v. Myers, 635 F.2d 932, 940 (2d Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980); Berrios, supra, 501 F.2d at 1211.

Defendant has made no showing as 'to the first part of this two-part test. As to the second part, defendant makes the con-elusory allegation that the government has prosecuted him for perjury in retaliation for his exercise of his constitutional right to represent “unpopular” clients. The record does not support such a conclusion.

The record shows that defendant' was advised by the government, in advance of the indictment of his former client Philip Leonetti, that the government was opposed to such representation on the grounds that he was an unindicted coconspirator and a witness to various conspiratorial acts. Defendant was given the opportunity to disqualify himself or to testify truthfully concerning the government’s allegations. He was afforded all constitutional safeguards. It is the government’s position that the defendant chose instead to lie. The fact that he is an attorney who defends unpopular clients does not make him any different from or his rights any greater than those of any other witness who testifies under oath in a manner which the government believes to be untruthful. There is ample evidence justifying initiation of the prosecution in this case.

Defendant has presented no evidence that he has been singled out for prosecution from others similarily situated. Nor has he presented sufficient facts to create a reasonable doubt about the constitutionality of the prosecution. Therefore, no evi-dentiary hearing on the defense of selective prosecution is warranted, United States v. Ream, 491 F.2d 1243, 1246 (5th Cir.1974), and defendant’s motion to dismiss the indictment on this ground is denied.

CONCLUSION

There is sufficient evidence in the record for the Court to conclude that the defendant is not the victim of either a “perjury trap” or a selective prosecution. Accordingly, defendant’s motion to dismiss the indictment on these grounds is denied.

      . Defendant also seeks a dismissal of the indictment on the following grounds: (1) improper references to organized crime in the indictment prejudiced the Grand Jury against him; (2) the alleged perjurious statements were not material to the disqualification proceedings; and (3) the indictment is multiplicitous. These issues will be addressed in separate opinions.

      . The October 16, 1984 hearing on disqualification will be referred to as the "October 16 hearing”.

      . In analyzing how "fairly" the government treated Simone in its attempt to disqualify him from representing Leonetti, the Court is cautioned by one commentator not to confuse a "prosecutor’s expectation that perjury will be committed — a matter of prosecutorial experience and judgment” with a "prosecutor’s active design to cause perjury to be committed.” Gershman, supra, 129 U.Pa.L.Rev. at 685; see also, United States v. Chevoor, 526 F.2d 178, 185 (1st Cir.1975) (Court could not say that calling witness “even in the anticipation that he would perjure himself is beyond the pale of permissible prosecutorial conduct"); United States v. Nickels, 502 F.2d 1173, 1176 (7th Cir.1974), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976) (Court found that even if the questions were asked with the expectation of perjured answers, the government did not solicit or encourage peijury; at most it created a situation in which perjury appeared expedient).

      . All references to notes of testimony will identify the hearing date, followed by the letter "T” and the page number, and where applicable, a colon followed by the line numbers.


author: CALLISTER, Chief Judge.

text:
    The STATE OF IDAHO, Plaintiff, v. HOWMET TURBINE COMPONENT CORPORATION, Hanna Mining Company, Noranda Mines Limited, a Delaware corporation, Noranda Exploration, Inc., a Delaware corporation, and John Does 1 to 100, Defendants.
    Civ. No. 83-4179.
    United States District Court, D. Idaho.
    Jan. 30, 1986.
    John J. Hockberger, Jr., Patrick J. Kole, Cheryl P. Koshuta, Deputy Attys. Gen., Div. of Environment, Dept, of Health & Welfare, State of Idaho, Cline J. Strong, Chief, Natural Resources Div., State of Idaho, Boise, Idaho, for plaintiff.
    Robert Monte MacConnell, Boise, Idaho, Anthony O. Garvin, Robert R. Klotz, Deborah Schmall, Amy B. Slater, San Francisco, Cal., for Noranda Exploration and Noranda Min.

      H. Edward Dunkelberger, Theodore L. Garrett, Steven J. Rosenbaum, Washington, D.C., Carl P. Burke, Boise, Idaho, for Howmet Turbine Components.
    Gary D. Babbitt, Don A. Olowinski, Boise, Idaho, Wesley F. Merrill, Kim B. Loveland, Pocatello, Idaho, for Hanna Min. Co.
   MEMORANDUM DECISION

CALLISTER, Chief Judge.

Before the Court are the motions to dismiss and for summary judgment of defendants Hanna Mining Company, Noranda Mines Limited, and Noranda Exploration, Inc. Counsel presented oral argument on these matters in a hearing held January 17, 1986. The Court has reviewed the memo-randa filed by the parties as well as all other materials on file in the case.

This is an environmental law action brought for injunctive and monetary relief by the State of Idaho against Hanna Mining Company (Hanna), Noranda Mines Limited and Noranda Exploration, Inc. (collectively, Noranda), Howmet Turbine Component Corporation (Howmet) and John Does 1 to 100. Defendant Howmet has now been voluntarily dismissed from the action by the plaintiff. Jurisdiction is based on federal question and pendent jurisdiction.

In its complaint, plaintiff alleges that the defendants disposed of large quantities of mining wastes and hazardous chemical wastes in and around five creek drainages located in Lemhi County approximately 21 miles west of Salmon, Idaho. Plaintiff alleges that these wastes have all been produced from the operation of the Blackbird Mine, beginning about 1917. Plaintiff alleges that these wastes have contaminated ground and surface waters and have damaged aquatic life and wildlife in the area. The complaint alleges that the harmful effects of the waste disposal began to evidence themselves in the 1950’s and continue to the present date.

Plaintiff’s complaint contains four causes of action:

1. Strict liability under 42 U.S.C. § 9601 et seq., part of the so-called “Superfund Act” known officially as the “Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

2. Strict liability under the common-law theory of abnormally dangerous activity.

3. Nuisance — negligent creation of a continuing public nuisance.

4. Nuisance — negligent maintenance of a continuing public nuisance.

The parties have submitted statements of undisputed facts along with their motions for summary judgment from which the Court has sifted out the following undisputed facts.

The Blackbird Mining District is located in east central Idaho approximately 21 miles west of Salmon, Idaho. The Blackbird Mine, initially discovered in 1893, was the principal mine in the district. Cobalt and copper sulfides were mined and milled by various companies at the Blackbird Mine from 1917 to 1967, with the main period of extraction from 1949 to 1967. Since 1967 little or no commercial mining operations have been conducted at the mine, although the defendants, have run two small pilot programs to test the feasibility of reopening mining operations. These pilot programs were implemented long after the main period of commercial mining operations ceased in 1967.

Blackbird Mine has been mined by both underground and open pit mining. The open pit mining that occurred in the late 1950’s left a 10.3 acre unreclaimed pit and approximately 3.8 million tons of waste rock deposited on 45.8 acres in the headwaters of the Blackbird and Bucktail Creeks. The underground mine has resulted in the development of at least 10 miles of underground workings. Approximately one million tons of waste rock have been removed from the underground workings and deposited in the drainage of Blackbird, Meadow and Bucktail Creeks.

Between the 1890’s and 1967, ore tailings were disposed of throughout the Blackbird Creek Drainage system. During the early period of operation, the tailings were deposited directly into Blackbird Creek for disposal. In 1950, a tailings dam was constructed to collect the tailings which washed downstream. This dam currently contains approximately 2 million tons of tailings. In 1967, defendant Hanna, through a subsidiary company, acquired the Blackbird Mine and/or surrounding properties in the Blackbird Mining District. Hanna maintained only minimum crews at the mine and conducted no commercial mining activities.

Defendant Noranda Exploration, Inc., conducted limited exploration activities at the Blackbird Mine between 1978 and 1982. In August 1980, Hanna transferred its Blackbird properties to the Blackbird Mining Company, a limited partnership composed of defendant Hanna as the limited partner, and defendant Noranda as the general partner.

Defendant Noranda conducted limited mining activities at the Blackbird Mine between December 1979 and May 1982 as a general partner of the Blackbird Mining Co. During this period, Noranda removed approximately 2500 tons of ore from the mine as part of a pilot project to determine the feasibility of full-scale operation of the mine.

On September 25, 1980, Noranda and the State of Idaho entered into a stipulation for entry of compliance schedule order regarding operation of the Blackbird Mine. On that same date, the United States Environmental Protection Agency (EPA) issued a National Pollution Discharge Elimination System (NPDES) permit to Noranda regarding the Blackbird Mine. The State of Idaho certified to the EPA pursuant to § 401 of the Federal Water Pollution Control Act that issuance of the NPDES permit to Noranda was in compliance with Idaho water quality standards.

In accordance with the compliance order and NPDES permit, defendant Noranda constructed a waste water treatment plant at the Blackbird Mine to treat mine drainage from the mine at a capital cost of approximately $1.5 million. The waste water treatment plant was completed in November 1980 and has been operated since that date in compliance with standards established by the NPDES permit. The total cost of all environmental work by Noranda mining is approximately $3 million.

Noranda’s plan for a pilot mining program was approved by the United States Forest Service on September 8, 1980. The Environmental Assessment prepared by the U.S. Forest Service stated that the pilot program would have no significant impact upon the environment. Following issuance of its decision notice, the Forest Service issued a use permit to Noranda for use of Forest Service lands. The Forest Service also approved Noranda’s proposal for full-scale operation of a 1200-ton per day operation in February 1982, after issuance of a final Environmental Impact Statement. This Environmental Impact Statement identified that past mining practices had had an adverse effect upon fisheries and natural resources in the Panther Creek drainage and that Noranda would not be required to correct past damages to natural resources.

Noranda ceased all mining operations at the Blackbird Mine in 1981 and ceased all underground activities in May 1982 at the completion of the pilot program and prior to the initiation of any full-scale operation of the mine. No further activities have been conducted at the mine by defendants. Noranda has continued to maintain and operate the wastewater treatment plant for collection and treatment of drainage since that time in compliance with the standards established in the NPDES permit issued by the EPA. Following closure of the mine, all employees of Noranda were terminated with the exception of a caretaker crew of three individuals. Discharges of pollutants continue on the properties owned by the defendants.

On September 28, 1984, the EPA reissued a second NPDES permit to Noranda for the Blackbird Mine which established treatment requirements during the period that the mine is closed.

The Idaho Department of Health and Welfare and Idaho Department of Fish and Game have been involved in the regulation and monitoring of water quality from the Blackbird Mine for several decades.

CERCLA was enacted December 11, 1980. This suit was filed December 12, 1983. Notices of claims were mailed to the defendants on December 12, 1985.

The defendants’ motions raise the following issues:

1. Does the three-year statute of limitations in § 112(d) of CERCLA, 42 U.S.C. § 9612(d), bar this action?

2. Did the State’s failure to present a notice of claim sixty days before the commencement of this action preclude this suit under CERCLA § 112(a), 42 U.S.C. § 9612(a)?

3. Were the discharges of wastes in the present case federally-permitted releases within the meaning of CERCLA, i.e., were they authorized by federal and/or state permits?

4. Did the environmental impact statement identify the alleged damages to natural resources as irreversible and irretrievable commitments of natural resources under CERCLA?

5. Are mining wastes excluded from coverage of CERCLA?

6. Are the state causes of action barred by the four-year statute of limitations contained in Idaho Code § 5-224?

7. Are nuisance actions for the protection of water quality pre-empted by the Idaho Environmental Protection Act?

CERCLA THREE-YEAR STATUTE , OF LIMITATIONS

The Court agrees with the plaintiffs that this action is not barred by the three-year statute of limitations contained in § 112(d) of CERCLA, 42 U.S.C. § 9612(d). Section 112(d) states:

No claim may be presented, nor may an action be commenced for damages under this title, unless that claim is presented or the action commenced within three years from the date of the discovery of the loss or the date of the enactment of this act [enacted of December 11, 1980], whichever is later.

(emphasis added).

It is undisputed that the State discovered the harm involved here well over three years ago, so it must rely on having commenced its action within three years from the enactment of CERCLA, that date being December 11, 1980. Plaintiff’s complaint was filed December 12, 1983 — one day beyond the limitations period, but December 11, 1983, fell on a Sunday. Thus, the dispute is whether the one-day late filing of this action was timely. The Court is of the opinion that under Fed.R.Civ.P. 6(a) the filing was timely because the last day of the limitations period fell on a Sunday. Rule 6(a) states:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday.

There is a split of authority among the federal circuit and district courts as to whether Rule 6(a) can extend a federal statute of limitations. The majority view, according to Wright & Miller's treatise, is that Rule 6(a) does apply to federal statutes of limitation and that in this situation the filing was not time-barred. 4 A. WRIGHT and C. MILLER, Federal Practice and Procedure § 1163 at pp. 614-16 (1969 and 1985 supp.). In addition, giving Rule 6(a) broad application leads to uniformity in computation of time under all federal statutes and rules, a desirable objective.

CERCLA SIXTY-DAY NOTICE OF CLAIM REQUIREMENT

The applicable provision of CERCLA here is § 112(a), 42 U.S.C. § 9612(a), which reads:

All claims which may be asserted against the fund pursuant to Section 9611 of this title shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under § 9607 of this title. In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guarantor or other person or to present a claim to the fund for payment.

(emphasis added).

The State of Idaho concedes that the sixty-day notice was not given in this case, its notice of claim being mailed to the defendants the same day this action was filed. The issue before the Court is the legal effect of this failure to give the notice of claim.

After diligent search, the Court is unable to find (and counsel have not cited) any federal appellate decisions dealing with the notice of claim provision in § 112(a). There are, however, six federal district court decisions discussing the question.

In Dedham Water Company v. Cumberland Farms Dairy, Inc., 588 F.Supp. 515 (D.Mass.1983), the court held that the notice requirement of § 112(a), like that of 83 U.S.C. § 1365(b) of the Clean Water Act, is jurisdictional and absent “substantial compliance” or filing of an amended complaint alleging compliance with the notice requirement, an action would be dismissed. Id. at 517.

In United States v. Allied Chemical Corp., 587 F.Supp. 1205 (N.D.Cal.1984), the court held that failure to allege compliance with § 112(a) results in failure to state a claim under CERCLA. Id. at 1207.

Finally, in Bulk Distribution Centers, Inc. v. Monsanto Company, 589 F.Supp. 1437 (S.D.Fla.1984), the Court held that compliance with § 112(a) is a condition precedent to a cost recovery action brought under § 107. Id. at 1438.

In contrast, in State of New York v. G.E., 592 F.Supp. 291 (N.D.N.Y.1984), the court held that the notice provision in § 112(a) applies only to actions in which a claim is made against the Fund created by CERCLA; in the alternative, the court stated that notice requirement is not jurisdictional. Id. at 301.

In United States v. Conservation Chemical Co., 619 F.Supp. 162 (W.D.Mo.1985), the court held that § 107 claims are unfettered by § 112 restrictions and that § 112 applies only when the Government is making a claim against the Fund. Id. at 210-11. The court acknowledged that its decision was “against the weight of caselaw authority.” Id. at 211.

Finally, in State of Colorado v. Asarco, Inc., 616 F.Supp. 822 (D.Colo.1985), the court followed the G.E. case in holding that § 112(a) does not apply to actions brought under § 107. Id. at 824-25. In so holding, the court stated:

I acknowledge that this interpretation of § 112(a) does not harmonize completely with the language of that subsection which states,
In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guarantor, or other person or to present the claim to the Fund for payment.
It is puzzling that Congress included the emphasized language, for it does suggest that a claim letter must precede every court action. Perhaps the phrase was intended to signify that a claimant still retains the option to sue under § 107 after presenting the claim letter.

Id. at 826.

The foregoing review of the case-law indicates the difficulty courts have had on the present issue. After wrestling with the matter, the Court feels most persuaded by, and will adopt, the reasoning and result in the Dedham line of cases. That is, this Court holds that the sixty-day notice requirement is a jurisdiction prerequisite to a CERCLA action. In the alternative, the Court rules that plaintiffs complaint, by failing to allege compliance with § 112(a), fails to state a claim upon which relief may be granted.

The Court believes that the sixty-day notice requirement, as an integral part of CERCLA, must apply to actions brought under § 107. As the court stated in Bulk Distribution:

[Declaring section 9607(a) completely independent of CERCLA’s other provisions is inefficient and costly because it permits parties to take unilateral actions when a joint effort may have been possible had the parties attempted to settle their differences before undertaking a response.

589 F.Supp. at 1449. The Court believes that the plain language of the statute, specifically §§ 101(4), 107 and 112, supports the conclusion that the notice requirement is applicable to actions brought under § 107.

The Court also notes that in this case, unlike the Dedham and Allied Chemical cases, there is no substantial compliance or possibility of alleging compliance through amended pleadings. The notice of claim was mailed on December 12, 1983, the same day suit was filed and presumably was received by the defendants not only after the suit was commenced, but also beyond the three-year statute of limitations in § 112(d), which expired, as already held, on December 12, 1983. Thus, amending the complaint would be futile in this action. For this reason, the Court does not reach the question of what is entailed by “substantial compliance” or whether substantial compliance would satisfy § 112(a).

Because of the foregoing ruling, the Court does not reach the other grounds asserted by defendants for granting summary judgment on plaintiffs CERCLA claims.

Having determined that summary judgment must be granted on plaintiffs CERCLA claims, the Court turns next to plaintiffs pendent state law causes of action. It is the Court’s determination the summary judgment should also be granted on these causes of action because they have no independent jurisdictional basis. The Court realizes that it has the discretion to dismiss or retain these pendent claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Because the issues are of unique concern to the State of Idaho and because plaintiff will suffer no prejudice by having to bring suit in state court, the Court will decline to exercise its pendent jurisdiction over these claims. If, as alleged, the nuisance is a continuing one, plaintiff will not be barred by the statute of limitations upon refiling its action in the state court. If the nuisance is a permanent one, the present causes of action are time-barred regardless of whether suit is maintained in this Court or in state court. Thus, the Court will grant summary judgment on plaintiffs state law causes of action.

As a concluding remark, the Court voices its disapproval of the tactics employed by the State of Idaho in the circumstances leading up to, and including the filing of this lawsuit. The record clearly demonstrates that the defendants made conscientious and good-faith efforts to comply with existing federal and state laws, to remedy the serious past degradation of the environment caused by others, and to minimize or prevent further environmental damage resulting from their own operations. Defendants obtained a state compliance order and two federal NPDES permits authorizing their activities at the Blackbird Mine. Thorough environmental assessment and environmental impact statements were prepared and drafted by the appropriate state and federal agencies. The State of Idaho was fully aware of and involved in the above matters. The Court notes that the State of Idaho has known of the environmental problems at the Blackbird Mine area for over two decades. Defendants have spent over $3 million in remedial measures largely intended to alleviate past damage caused by others. The defendants currently maintain and operate a $1.5 million water treatment facility at the site. The State’s response to all of the above was to sue the defendants for $25 million. The Court feels that the State’s eleventh hour decision to sue combined not only bad timing but also poor judgment.

JUDGMENT

In accordance with the views expressed in the memorandum decision filed herewith,

' IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendants’ motions to dismiss and for summary judgment be, and the same are hereby, GRANTED, and summary judgment is granted as’to all plaintiff’s claims.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff take nothing by reason of its complaint and that the complaint and action be, and they are hereby, DISMISSED.

      . The Court notes also that it would have been sufficient if the State had made a "claim” to the defendants within three years of the enactment of CERCLA; the State failed to do so, however.