record before us no adequate basis for jurisdiction exists and that the Delaware statute is unconstitutional on its face.

Id. 4858. (Footnotes omitted.)

Portions of the statement of the facts found on pp. 4850 and 4851 of the opinion follow:

Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound Corporation, a business incorporated under the laws of Delaware with its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a shareholder's derivative suit in the Court of Chancery for New Castle County, Del., in which he named as defendants Greyhound, its wholly owned subsidiary Greyhound Lines, Inc., and 28 present or former officers or directors of one or both of the corporations. In essence, Heitner alleged that the individual defendants had violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporations being held liable for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. The activities which led to these penalties took place in Oregon.

Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the Delaware property of the individual defendants pursuant to 10 Del. C. § 366. This motion was accompanied by a supporting affidavit of counsel which stated that the individual defendants were nonresidents of Delaware. The affidavit identified the property to be sequestered as

common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase said stock issued to said individual Defendants and all contractural [sic] obligations, all rights, debts or credits due or accrued to or for the benefit of any of the said Defendants under any type of written agreement, contract or other legal instrument of any kind whatever between any of the individual Defendants and said corporation. The requested sequestration order was signed the day the motion was filed. Pursuant to that order, the sequestrator "seized" approximately 82,000 shares of Greyhound common stock belonging to 19 of the defendants, and options belonging to another two defendants. These seizures were accomplished by placing "stop transfer" orders or their equivalents on the books of the Greyhound Corporation. So far as the record shows, none of the certificates representing the seized property was physically present in Delaware. The stock was considered to be in Delaware, and so subject to seizure, by virtue of 8 Del. C. § 169, which makes Delaware the situs of ownership of all stock in Delaware corporations. All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known addresses and by publication in a New Castle County newspaper. The 21 defendants whose property was seized (hereafter referred to as appellants) responded by entering a special appearance for the purpose of moving to quash service of process and to vacate the sequestration order. They contended that the ex parte sequestration procedure did not accord them due process of law and that the property seized was not capable of attachment in Delaware. In addition, appellants asserted that under the rule of International Shoe Co. v. Washington, 326 U.S. 310, (1945), they did not have sufficient contacts with Delaware to sustain the jurisdiction of that State's courts.

The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose of the Delaware sequestration procedure:

The primary purpose of "sequestration" as authorized by 10 Del. C. § 366 is not to secure possession of property pending a trial between resident debtors and creditors on the issue of who has the right to retain it. On the contrary, as here employed, "sequestration" is a process used to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity. Sands v. Lefcourt Realty Corp., Del. Supr., 117 A. 2d 365 (1955). It is accomplished by the appointment of a sequestrator by this Court to seize and hold property of the nonresident located in this State subject to further Court order. If the defendant enters a general appearance, the

sequestered property is routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion.

On appeal, the Delaware Supreme Court affirmed the judgment of the court of chancery.

The concluding portion of the majority opinion on p. 4856 began with the following statement:

The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants' property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants' holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over appellants.

(Footnotes omitted.)

The full text of the Shaffer v. Heitner decision appears in 14 International Legal Materials 885-908.

Criminal Jurisdiction

Illegal Apprehension

On May 17, 1977, the U.S. Court of Appeals for the Second Circuit rendered a summary judgment (77-1019; 559 F.2d 1206) affirming the decision of the U.S. District Court of the Eastern District of New York, Henry Bramwell, District Judge, quashing a subpoena and denying a motion to dismiss indictment in United States v. Orsini, 424 F. Supp. 229 (1976), a case involving the expulsion from Senegal to the United States of Dominique Orsini who had been indicted in 1974 by a grand jury sitting in the Eastern District of New York for a conspiracy to import and distribute narcotics into the United States. The defendant Orsini moved for a dismissal of the indictment against him on the grounds of the doctrine set forth in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), that the treatment he had allegedly received during his expulsion from Senegal and surrender to custody of U.S. officials was grossly cruel and inhumane and by or at the direction of U.S. officials. To show that the circumstances surrounding his expulsion and arrest required dismissal of his indictment, Mr. Orsini sought by a subpoena duces tecum to compel a reporter to disclose the identity of certain confidential sources from whom he obtained information to publish an article describing methods used by the U.S. Drug Enforcement Administration to bring suspected international drug dealers to the United States to stand trial for alleged violations of U.S. narcotics laws. The Court ordered the subpoena quashed because the information sought was irrelevant and immaterial to the defendant's motion to dismiss the indictment against him and because the First Amendment protected the news

man's confidential source. The Court further held that the evidence at the Toscanino hearing concerning the circumstances surrounding his expulsion and arrest failed to "reach the standard of conduct condemned and proscribed by the Toscanino doctrine." Id. 236.

Portions of the Court's findings of fact follow:

On July 30, 1975, the United States Department of State directed the American Embassy in Dakar, Senegal, to contact the Senegalese Government in order to effect the provisional arrest of the defendant, Dominique Orsini....

On August 6, 1975, the defendant, Dominique Orsini, left Buenos Aires, Argentina, for Nice, France, via Dakar, Senegal. Agent Tryal of the United States Drug Enforcement Administration travelled aboard the very same aircraft. Upon arrival at the airport in Dakar, Senegal, Agent Tryal identified Mr. Orsini to Chargé D'Affaires Allan Davis of the American Embassy in Dakar, Senegal, who in turn requested the Senegalese police to arrest Mr. Orsini. Shortly thereafter Mr. Orsini was arrested by the Senegalese police who removed him from the Dakar Airport. . . .

No United States Government official, representative or agent had any contact or communication with Mr. Orsini between August 7, 1975, and August 25, 1975. No payment of any kind, whether of money, goods, or services was made by any American official, representative, or agent to any official, representative, agent, or member of the Senegalese Government in exchange for their assistance in the arrest and expulsion of Mr. Orsini to the United States. . . . On August 22, 1975, State Department Legal Adviser Louis Fields, Esq. and Drug Enforcement Administration Agent Bocchichio traveled from the United States to Dakar, Senegal. Mr. Fields possessed extradition documents for defendant Orsini. Shortly after their arrival in Dakar, Mr. Fields and Agent Bocchichio met with Allan Davis, Chargé D'Affaires of the American Embassy in Dakar. Thereafter, they visited the Senegalese Ministry of the Interior and the Ministry of Justice. Mr. Fields and Mr. Davis presented the extradition documents to the appropriate representatives of the Senegalese Government. . . .

On August 23, 1975, a representative of the Senegalese Government, Sadibou Ndiaye, the head of the Federal Judiciary Police, indicated in a telephone call he placed to Mr. Davis that the Senegalese Government would retain custody of Mr. Orsini until Monday morning, August 25, 1975, at which time Orsini would be delivered to American agents at the Dakar Airport for a Pan American flight to New York. Mr. Davis had anticipated this possibility and prior to his conversation with Mr. Ndiaye had made flight reservations for the defendant and Agents Bocchichio and Collier. This was done because Dakar-New York flights do not depart on a daily basis and are usually overbooked. Agent Collier had previously been notified in Paris, France, that it would be necessary for him to assist in the escort of Mr. Orsini from Senegal to New York

in the event that the Senegalese Government was to determine that Mr. Orsini be placed in the custody of American officials. . . .

On August 23, 1975, the Court of Appeals of Senegal ordered Mr. Orsini released. Shortly thereafter, the Senegalese Federal Judiciary Police apparently rearrested him.

On August 24, 1975, Agent Collier arrived in Dakar, Senegal. . . . In the early morning hours of August 25, 1975, the Senegalese police attempted to take Mr. Orsini from the jail in which he was incarcerated in order to transport him to the Dakar Airport. Mr. Orsini resisted and struggled with the police. During the course of the scuffle with the police, Mr. Orsini suffered a cut wrist. Mr. Orsini was taken to the airport after receiving medical treatment for his superficial wound.

Upon his arrival at the Dakar Airport, Mr. Orsini violently struggled with the Senegalese police and screamed continuously. Finally, Mr. Orsini was placed aboard the aircraft which was scheduled to fly to New York. However, for safety reasons, the pilot refused to depart with Mr. Orsini aboard unless Orsini was sedated. A Peace Corps doctor who was then called, administered, with the express consent of the defendant, a dosage of valium in order to calm him. Subsequently, the aircraft departed for the United States....

To the extent that Mr. Orsini alleges that he was struck by Agent Bocchichio and that excessive force was utilized by the Senegalese police in removing him from the jail to take him to the airport, his testimony is unsubstantiated and the Court discredits that testimony. The Court further finds that Agent Bocchichio did not assault the defendant Orsini.

This Court finds that Mr. Orsini was treated by the Senegalese in a fashion similar to that accorded to all other prisoners held in custody by them. . .

...

The Senegalese Government did not protest the expulsion of Mr. Orsini to the United States. . . .

424 F. Supp. 233–234.

After analyzing the "principles of law articulated" in United States v. Toscanino, supra; 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), the Court reached the following conclusions of law:

1. The arrest and subsequent expulsion of the defendant Dominique Orsini from Senegal were sovereign and legitimate acts of the Senegalese Government. 2. Mr. Orsini was not beaten, tortured, or subjected to inhumane treatment by American agents or officials. Moreover, there is no evidence to indicate any American involvement in any alleged assault on Mr. Orsini by Senegalese or other foreign agents or policemen. Furthermore, if Mr. Orsini was assaulted, this Court finds that American agents or officials had no knowledge of said alleged assault. Finally, the Court finds that Mr. Orsini was neither tortured nor subjected to inhumane treatment by anyone, whether American, Senegalese, or other foreign national agents.

3. The dosage of valium administered to Mr. Orsini was given with his express consent and only after the aircraft's pilot refused to depart unless Mr. Orsini was sedated. The injection was given by a licensed physician.

4. There is nothing in the record of the evidentiary hearing conducted by this Court to support a finding of American governmental conduct sufficiently shocking to reach the level of a violation of Mr. Orsini's due process rights.

5. There has been no protest lodged by the Government of Senegal with reference to the departure of Mr. Orsini from Senegal to the United States. 424 F. Supp. 235.

The extradition documents described in the fifth finding of fact are described in the following note which the U.S. Embassy in Dakar presented to the Ministry of Foreign Affairs of the Republic of Senegal:

As requested by the Ministry of Foreign Affairs in conversations with the chargé d'affaires a.i. of the Embassy on August 21, 1975, the United States Government has prepared and delivered to the Embassy the following attached documentation which it hopes will meet the requirements of the Senegalese Government for the extradition of Dominique Orsini: warrants, indictments, affidavits concerning crimes committed and laws violated, and affidavits on the background of the acts done by the fugitive upon which the warrants and indictments are based. The foregoing documentation has been authenticated by the Attorney General and by the Secretary of State of the United States and has been translated into the French language. It was delivered to the Embassy on this date by the Assistant Legal Adviser of the United States Department of State, Mr. Louis G. Fields, Jr. Mr. Fields is presently in Dakar and would be available to respond to any legal questions or possible requests for further information from the Government of Senegal. Mr. Fields is accompanied by a representative from the United States Drug Enforcement Agency, Mr. Anthony Bocchichio, who has served as agent for the Orsini Case and is fully conversant with the facts of the prosecution of Orsini. Mr. Fields and Mr. Bocchichio would also be available to serve as escort in the event that the Government of Senegal decides to extradite Orsini to the United States.

The Government of the United States again expresses its appreciation for the assistance and cooperation of the Government of Senegal and reiterates its earlier assurances of its desire to cooperate fully with the Senegalese Government in providing any further information which might be required in connection with its request for the extradition or expulsion of Dominique Orsini to the United States.

Dept. of State File No. P77 0123-639.

The United States did not have an extradition treaty with Senegal at the time of the expulsion of Mr. Orsini.

Subsequent to the arrest of Mr. Orsini, the Embassy of France sent a note to the Dept. of State requesting the return to France of Mr. Orsini. The Dept. of State response indicating that Mr. Orsini might be returned to the country whence he came after his release by U.S. officials follows:

Mr. Orsini, who was indicted on July 24, 1974, by a Grand Jury of the United States District Court for the Eastern District of New York for conspiracy to import into the United States large quantities of heroin and cocaine in violation of United States law, entered a plea of guilty to this charge in a hearing before United States District Judge Henry Bramwell on September 28, 1976. Judge Bramwell is expected to sentence Mr. Orsini in approximately five weeks, whereupon Mr. Orsini will be delivered into the custody of the Attorney General or his authorized representative to serve whatever term of imprisonment permitted by law the Court may prescribe. The offense to which Mr. Orsini has pled guilty carries a maximum term of imprisonment of up to twenty-five years.

In view of Mr. Orsini's plea and the fact that he is thus subject to the penalty required by law, the Department regrets that it is unable to consider the request of the Embassy of France at this time. Upon the expiration of such term of imprisonment affixed by the Court or his earlier release by the U.S. Parole Board, Mr. Orsini will automatically be subjected to an exclusion hearing under Section 1226, Title 8 of United States Code since he was paroled into the United States for the purpose of a Federal prosecution. It is usual to re