Robinson, K. G., Jr.

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International Law -- Conflicting Jurisdictions

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NORTH CAROLINA LAW REVIEWVolume 46 | Number 3 Article 124-1-1968International Law -- Conflicting JurisdictionsK. G. Robinson Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationK. G. Robinson Jr., International Law -- Conflicting Jurisdictions, 46 N.C. L. Rev. 658 (1968).Available at: http://scholarship.law.unc.edu/nclr/vol46/iss3/12NORTH CAROLINA LAW REVIEWInternational Law-Conflicting JurisdictionsThe recent case involving Mehdi Eatessami, 1 an Iranian-bornIsraeli citizen extradited from New York to Switzerland, points outagain, this time in the context of international extradition, the warn-ing of the New York Court of Appeals2 that the "center of gravity"8concept so important in choice of laws is not fungible with the con-cept of "minimal contacts" for jurisdictional purposes.Eatessami was accused by the Swiss of having mastermindeda loan swindle against the Swiss Bank Corporation. Accountiopened with the main office of the Swiss Bank, in Geneva, werefilled with counterfeit stock certificates prepared and mailed fromNew York. Subsequent loans totalling 300,000 dollars were se-cured and the proceeds paid to Eatessami and his confederatesthrough New York banks.In an earlier tort action brought in the New York state courtsfor fraud,4 the question of jurisdiction under section 302 (a) (2) ofthe New York procedure act had been determined. That section pro-vides that New York courts may assert personal jurisdiction over anondomiciliary who "commits a tortious act within the state... ,5and coincides with similar "long-arm" statutes enacted in otherstates.6 In this pre-trial determination of jurisdiction, a findingthat the various fraudulent communications between Eatessami andthe Swiss Bank had been prepared and mailed in New York suppliedthe necessary acts to support jurisdiction without violation of dueprocess. The court did not determine which law, Swiss or NewYork, would apply in a trial on the issues. Generally, choice of lawsUnited States ex rel. Eatessami v. Morasco, 275 F. Supp. 492 (S.D.N.Y.1967).'Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d443, 463, 209 N.E.2d 68, 80, 261 N.Y.S.2d 8, 23 (1965).That jurisdiction would be the "center of gravity" whose law and pub-lic policy is most concerned with the issues raised by the litigation. SeeHanson v. Denckla, 357 U.S. 235, 254 (1958); Babcock v. Jackson, 12N.Y.2d 473, 481-82, 191 N.E.2d 279, 283-84 (1963)."Swiss Bank Corp. v. Eatessami, 26 App. Div. 2d 287, 273 N.Y.S.2d 955(1966).N.Y.R. Civ. PiAc. 302 (a) (2) (McKinney 1967)."See, e.g., N.C. GEn. STAT. § 55-145 (1966). Compare Totero v. WorldTelegram Corp., 41 Misc. 2d 594, 245 N.Y.S.2d 870 (Sup. Ct. 1963) withPainter v. Home Fin. Co., 245 N.C. 576, 96 S.E.2d 731 (1957).[Vol. 46CONFLICTING JURISDICTIONSteaches that the law of the place of the last occurrence necessaryto make the actor liable governs.7 However, determining whetherthat last event is the receipt of the fraudulently obtained funds (NewYork), or the making of the fraudulent representation (Geneva), isunconnected with the question of jurisdiction. Under certain situa-tions, New York may assert personal jurisdiction, yet be required toapply the law of a sister state, or of a foreign nation.'Yet little more than a year later, the Swiss government filed aformal request9 for the extradition of Eatessami. Extradition, theestablished method of recovery of the international fugitive,'0 isgoverned in the United States by treaty" and federal statute,12 andH. GOODRICH, CONFLICT OF LAWS 168 (1964).' Cf. Bernhardt v. Polygraphic Co., 350 U.S. 198 (1956); New YorkLife Ins. Co. v. Dodge, 246 U.S. 357 (1918); Walton v. Arabian AmericanOil Co., 233 F.2d Cir. 1956, cert. denied, 352 U.S. 872 (1956).'A formal request for extradition requires authenticated documents sup-porting the requesting state's contention that the surrender of the accused isjustified, including identification of the accused, a statement of the chargeswith texts of the relevant laws, a warrant for arrest, depositions and relatedevidence. Memorandum in opposition to writ of habeas corpus filed on behalfof the Swiss government, Dkt. No. 67 Civil 3983 (S.D.N.Y. 1967).o See, e.g., Valentine v. United States ex rel. Neidecker, 299 U.S. 5(1936). The actual proceedings differ, however, from normal probable causecause hearings. For example, 18 U.S.C. § 3190 (1964) permits the de-manding country to introduce ex parte depositions gathered at home, but thedefendant may not do likewise. In re Oteiza y Cortes, 136 U.S. 330 (1890).Nor can the accused introduce evidence which contradicts the demandingcountry's proof, Collins v. Loisel, 259 U.S. 309 (1922); nor evidence toestablish an alibi, Desmond v. Eggers, 18 F.2d 503 (9th Cir. 1927); norevidence of insanity, Charlton v. Kelly, 229 U.S. 447 (1913); nor evidencethat the statute of limitations has run, unless the treaty otherwise provides,Merino v. United States Marshal, 326 F.2d 5 (9th Cir. 1963). Furthermore,an American citizen may be held for extradition on deposition evidence whichwould not be admissible at a preliminary hearing on a domestic crime.Bingham v. Bradley, 241 U.S. 511, 517 (1916); Glucksman v. Henkel, 221U.S. 508, 512 (1911) ; Wacker v. Bisson, 348 F.2d 602, 605 (5th Cir. 1965).Indeed, "all the fictitious niceties of a criminal trial at common law" are ab-sent. Gluckman v. Henkel, 221 U.S. 508, 512 (1911). See, Note 61 COL L.REv. 105 (1961) ; cf. Evans, Acquisition of Custody Over the InternationalOffender-Alternatives to Extradition: A Survey of United States Practice,[1964] BRIT. Y.B. INT'L L. 77."1 18 U.S.C. §§ 3181, 3184 (1964). Extradition can take place only in pur-suance to a treaty. Factor v. Laubenheimer, 290 U.S. 276, 287 (1933)."See 18 U.S.C. §§ 3181-95 (1964). Interstate rendition is generallycontrolled by the Uniform Extradition Act, now adopted by all states exceptAlaska, Louisiana, Mississippi, Nevada, North Dakota, South Carolina, andWashington. New York and Rhode Island adopted the Act, amending sec-tion 6, so as to provide for "double-criminality," i.e., the offense must becriminal in both states. N.Y. CODE CRIm. PROC. § 834 (McKinney 1967);R.I. GEN. LAWS ANN. § 12-9-8 (1956). See, e.g., People ex rel. Burtman1968]NORTH CAROLINA LAW REVIEWcommitted solely to the federal government as an adjunct of thetreaty power.' 3 Usually, the jurisdiction of the requesting stateand that of the requested or asylum state over the accused is basedupon the principle of territoriality. 4 That is, the particular treatyoffense' 5 must have been committed within the territorial jurisdic-tion of the requesting state, and the fugitive found within theterritory of the asylum state.' 6 Arguably, upon reviewing the findingof the United States Commissioner that Switzerland had sufficientbasis for a claim to criminal jurisdiction over Eatessami, the federaldistrict court was obligated to take notice of the similar proceedingsof its New York counterpart. While full faith and credit does notgenerally apply between federal and state courts beyond enforce-v. Silberglitt, 15 Misc. 2d 847, 187 N.Y.S.2d 536 (Sup. Ct. 1956) (booksobscene in Pennsylvania not in New York); People ex rel. Albert v.Commissioner of Correction, 111 N.Y.S.2d 307 (Sup. Ct. 1952) (gamingtables illegal in Maryland are "games of skill" in New York)."s U.S. CONsT. art. II, § 2. While the executive has no inherent power toextradite on its own initiative, Valentine v. United States cx rel. Niedecker,299 U.S. 5 (1936), Congress does enjoy plenary power over aliens, Harisiadesv. Shaughnessy, 342 U.S. 580, 587 (1952), and the immigration law "bristleswith severities," Scales v. United States, 367 U.S. 203, 222 (1961). See alsoUnited States ex rel. Feretic v. Shaughnessy, 211 F.2d 262, 264 (2d Cir.1955); it re Gonzalez, 217 F. Supp. 717 (S.D.N.Y. 1963); United Statesex rel Paschalides v. District Comm'r, 143 F. Supp. 310, 312 (S.D.N.Y.1956)." See Berge, Criminat Jurisdiction and the Territorial Principle, 30MicH. L. REV. 238 (1931). But see the criticism of the territorial principleby Judge Frank in Walton v. Arabian American Oil Co., 233 F.2d 541, 543& n.5 (2d Cir. 1956)." Local law is used in defining the particular "treaty offense." SeePetitt v. Walshe, 194 U.S. 205, 207, 218 (1904); United States ex rel.Rauch v. Stockinger, 269 F.2d 681 (2d Cir. 1959); In re Gonzales, 217 F.Supp. 717 (S.D.N.Y. 1963)." The fugitive may have been in the asylum state when the crime was com-mitted. United States v. Steinberg, 67 F.2d 77 (2d Cir. 1932), cert. denied,287 U.S. 640 (1932); Wacker v. Beeson [sic], 256 F. Supp. 542 (E.D. La.1966), aff'd, Wacker v. Bisson, 370 F.2d 552 (5th Cir.), cert. denied, 387U.S. 936 (1967). See also In re Harris, 170 Ohio St. 151, 163 N.E.2d 762,10 Ohio Op. 2d 99 (1959) (non-support constitutes an "act" within thejurisdiction of the requesting state, for extradition purposes)."' Here review of the commissioner's decision was through habeas corpus,an alternative is an action for a declaratory judgment. Wacker v. Bisson,348 F.2d 602, 606 (5th Cir. 1965). The scope of review, in any case, is thesame. Brownell v. Tom We Shung, 352 U.S. 180 (1956). The reviewingcourt determines only whether the magistrate had jurisdiction, whether theoffense was within the treaty, and whether there is probable cause to believethe accused guilty. Collins v. Loisel, 259 U.S. 309 (1922). The courts testonly the legality of the extradition proceedings; the wisdom of extraditionremains for the executive to decide. 18 U.S.C. § 3184 (1964). See Note, 62COL. L. REv. 1313, 1315 (1962); Note, 61 MicH. L. Rzv. 383, 387 (1962).[Vol. 46CONFLICTING JURISDICTIONSment of judgments,' 8 except in the taxation field,'" the SupremeCourt has been reluctant 20 to upset state court findings of jurisdic-tion. Moreover, federal courts have followed state jurisdictionallaws in cases involving nondomiciliaries. 2 ' Furthermore, the deter-mination of the state court that it had civil jurisdiction over Eates-sami because of certain tortious acts done in New York, would im-ply that it also had criminal jurisdiction,22 as those same acts werecriminal under New York statute.23 Ordinarily, the territorialsovereign, being competent to prosecute for offenses committedwithin its territory, would not extradite for such an offense.24However, without reference or mention of the New York court'sfindings, the federal court found the extradition proceedings legal,and following the approval of the Secretary of State, Eatessami wasextradited to Switzerland.25Was the federal district court correct? First, it is important torealize that it was concerned with treaty law.2" Familiar learningteaches that treaties override state laws when a conflict arises. Be-' Milwaukee County v. M.E. White Co., 296 U.S. 268, 275 (1935). Seealso 28 U.S.C. § 1738 (1964).10 Curry v. McCanless, 307 U.S. 357 (1939); Worcester County Co. v.Riley, 302 U.S. 292, 299 (1937).20 Except in extraordinary circumstances. Cf. Texas v. Florida, 306 U.S.398, 342 (1939) (dissenting opinion of Frankfurter, J.).1 United States v. Montreal Trust Co., 358 F.2d 239, 249 (2d Cir. 1966)(concurring opinion); Arrowsmith v. United Press Int'l, 320 F.2d 219, 221(2d Cir. 1963) (en banc).22 N.Y. PENAL LAW § 1930(1) (McKinney 1967)."3 N.Y. PENAL LAW §§ 881(3), 884(5) (McKinney 1967).' Evans, The New Extradition Treaties of the United States, 59 Am.J. INT'L L. 351, 354 (1965)." Extradition was approved by the Secretary of State on the charges ofobtaining money by false pretenses and the fraudulent use of counterfeited orforged private instruments. However, the Secretary determined that therecord did not contain evidence that such instruments were counterfeited orforged in Switzerland, and so refused extradition for the forgery charge.Letter from the Secretary of State to the Swiss Ambassador, January 12,1968. Eatessami was extradited on January 13, 1968 and will be tried underArticles 148 and 251 of the Swiss Criminal Code, relating to embezzlementand use of counterfeit securities. The Swiss statute provides for a maximumsentence of five years imprisonment. Letter from Bernard J. Reverdin to thewriter February 23, 1968."0Art. II § 4 of the Extradition Treaty Between the United States andSwitzerland of May 14, 1900, 31 Stat. 1928, 1929 (1900), T.S. No. 354(effective February 28, 1901), provides:Extradition shall be granted for . . . (4) The counterfeiting or forgeryof public or private instruments; the fraudulent use of counterfeited orforged instruments.Cf. Hauenstein v. Lynham, 100 U.S. 483 (1879), reVg, 69 Va. 62 (1877).1968]NORTH CAROLINA LAW REVIEWyond reference to the applicable New York law for definition of theelements of the relevant treaty offense, the state jurisdictional lawwas not considered. Secondly, reference to New York state courtdecisions would support the conclusion of the federal court thatindeed a crime, or at least punishable elements of a crime, had beencommitted within the territory of the requesting state, in this caseSwitzerland. In People v. Adams 7 New York courts convicted anOhio resident of the offense of obtaining money by false pretenses,though the defendant was, at the time of the crime and for a whilethereafter, in Ohio, and did not come to New York until later.Similarly, in People v. Zayas,2" the New York court held that ithad jurisdiction to try the defendant for a crime committed partiallyin New York, where the false pretenses were made, and partiallyin Pennsylvania, where the money was received. Thus, by NewYork standards, culpable elements of the alleged crime had beencommitted in Switzerland, though Eatessami had remained all thewhile in New York.Thirdly, the federal court apparently realized that the New Yorkcourt was not attempting to assert a preEmptive jurisdiction. Hadthe New York court asserted exclusive jurisdiction based upon the"center of gravity" concepts familiar to choice of laws, the questionmight have been different. However, by merely determining thatit had jurisdiction because of certain "minimal contacts" with thestate, the New York court did not foreclose the assertion of a supple-mental jurisdiction by another state,29 such as Switzerland. And,as the federal court emphasized, any excessively complicated andtechnical application of traditional jurisdictional concepts is ill-suitedto deal with the problems of multinational crime.80 Thus the federalcourt was probably correct, and was able to insure the fulfillment ofnational treaty obligations without offending federalistic guidelines.K. G. ROBINSON, JR.273 Denio (N.Y.) 190, aff'd 1 N.Y. 173 (1848).-8217 N.Y. 78, 111 N.E. 465 (1916).Cf. United States v. Arnhold & S. Bleichroeder, Inc., 96 F. Supp. 240(S.D.N.Y. 1951); Eisler v. Soskin, 272 App. Div. 894, 71 N.Y.S.2d 682,aff'd, 297 N.Y. 841, 78 N.E.2d 862 (1948)."0 See Re Vignoni, 17 Int'l L. Rep. 263, 264 (Chile, Sup. Ct. 1950).[Val. 46

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International Law -- Conflicting Jurisdictions

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