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September 20, 1976

Dominique ORSINI, Defendant.

The opinion of the court was delivered by: BRAMWELL


BRAMWELL, District Judge.

 This matter comes before the Court on the motion of Newsweek Magazine Reporter Anthony Marro to quash a subpoena duces tecum issued upon the application of the defendant, Dominique Orsini. The subpoena seeks to compel Mr. Marro to disclose the identity of certain confidential sources from whom he obtained information. This information was subsequently published and disseminated to the general public in an article appearing in the August 16, 1976 edition of Newsweek Magazine.

 This article concerned the methods used by the Drug Enforcement Administration, an agency of the Federal Government, to obtain physical control and custody of suspected international drug dealers in order to bring such persons to the United States to stand trial for alleged violations of United States narcotics laws.

 Mr. Orsini seeks this information in order to show that the circumstances surrounding his apprehension in Senegal constituted a deprivation of due process of law, thus mandating a dismissal of the indictment against him.

 Specifically, Mr. Orsini seeks documents and testimony concerning two subject matters: first, the identity of, "U.S. Officials [who] privately tell the story of how the Government of Paraguay was threatened with the loss of American aid unless it extradicted one Auguste Ricorde"; and second, the identify of, "one federal official who said, 'Clearly, we have paid for some of these people. It might not have been a specific quid pro quo, but we would give x dollars or x cases of ammunition to officials who helped get these people on planes.'"


 It would seem to be the position of Mr. Orsini that the information sought in the instant subpoena would somehow prove of significant value in the determination of whether or not he was subjected to acts of "torture, brutality, and inhumanity committed against him by or at the direction of American agents". United States v. Orsini, et al., 402 F. Supp. 1218 at 1219 (E.D.N.Y. 1975). As indicated in this Court's order of October 24, 1975, such allegations, if substantiated, would require the dismissal of the instant indictment filed against the defendant, as mandated by United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir. 1975); and United States v. Lira, 515 F.2d 68 (2d Cir. 1975). See United States v. Orsini, et al., supra.

 Mr. Marro contends that this subpoena should be quashed on the following three grounds: first, that the information it seeks is immaterial and irrelevant to the Toscanino evidentiary hearing authorized by this Court's Order of October 24, 1975; second, that the information sought is privileged under the First Amendment to the Constitution of the United States; and third, that the information sought is privileged under New York's Newsmen's Shield Law, Section 79-H of the Civil Rights Law, and under Article I, Section 8 of the Constitution of the State of New York, as both are incorporated into the Federal Common Law.


 After careful consideration of all the motion papers, memoranda of law, and supporting affidavits submitted to it by the respective parties, and after oral argument, this Court is of the opinion that under the circumstances presented in the instant case, the subpoena duces tecum issued to Mr. Marro should and must be quashed.

 It is patently clear that the subject matter sought in the subpoena bears no reasonable relationship to the issue of gross mistreatment of Mr. Orsini by or at the direction of American officials. Counsel for Mr. Marro, Richard M. Cooper, Esq., and Edward L. Smith, Esq., have ably argued in motion papers and in oral argument that the information sought by the defendant is irrelevant and immaterial to the issue raised by the Toscanino Hearing. The Court agrees with, and has incorporated into its decision the persuasive reasoning of learned counsel on this point, concluding that the information sought by the instant subpoena has absolutely no connection with either the treatment that Mr. Orsini received while in Senegal, or with the role, if any, of representatives, officials, or agents of the United States Government with reference to such treatment.

 The first item sought in the subpoena relates to a statement concerning the case of one Auguste Ricorde the events of which transpired in Paraguay. Mr. Orsini, however, was arrested and expelled from Senegal and has no known connection with Auguste Ricorde or with the nation of Paraguay. Information which relates to communications between the Government of Paraguay and the Government of the United States has absolutely no bearing on the issue of Mr. Orsini's treatment in Senegal.

 The second item set forth in the subpoena is also of no relevancy to the issue of the standard of treatment accorded Mr. Orsini while he was in Senegal. The statement which is the subject of inquiry is itself not specific. Moreover, it too makes no reference to Mr. Orsini, or to any particular case. The statement does not even relate to the treatment of persons brought into the United States for trial, but rather it refers to payments, made in order to gain the cooperation of foreign governments. Such payments, to secure the return of fugitives to the United States, would not serve as a ground for dismissal of the indictment under the Toscanino Doctrine. See United States v. Toscanino, supra; United States ex rel. Lujan v. Gengler, supra; United States v. Lira, supra. See also United States v. Lovato, 520 F.2d 1270 (9th Cir. 1975).

 The standard of conduct which is proscribed by Toscanino and its progeny is the infliction upon the defendant of grossly cruel and inhumane treatment by or at the direction of American officials or agents. United States v. Toscanino, supra; United States ex rel. Lujan v. Gengler, supra; United States v. Lira, supra. See also United States v. Lovato, supra.

 Mr. Orsini apparently maintains that he need not prove such cruel and inhumane treatment, but rather that a showing of bribery of foreign officials by American agents is sufficient. This position is totally contrary to the law as it now stands. The case of the United States ex rel. Lugan v. Gengler, supra, has reasserted the continuing vitality of the "Ker-Frisbie" Doctrine which provides that:

 [Due] process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.

 Frisbie v. Collins, 342 U.S. 519 at 522, 72 S. Ct. 509 at 512, 96 L. Ed. 541 (1952) (Mr. Justice Black writing for a unanimous court). See also, Ker v. Illinois, 119 U.S. 436, 7 S. Ct. 225, 30 L. Ed. 421 (1886).It is manifest that if the Constitution tolerates the forcible kidnapping of a defendant to bring him to justice, then it also tolerates the payment of a bribe to obtain custody of a fugitive defendant.

 Accordingly, even if Mr. Orsini were able to establish that a bribe had been paid to Senegalese officials by American agents in order to secure his return to the United States for trial, he would not be entitled to any relief under the Toscanino Doctrine. Thus, a subpoena issued to prove that bribery took place is pointless and unwarranted since it fails to provide relevant and material evidence on the Toscanino issue presently before the Court. The obvious irrelevancy of the statement is further underlined by the fact that in the instant case for the purposes of the Toscanino hearings depositions ...

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