January 27, 1990
By DAVID LYONS
Herald Staff Writers
Prosecutors in the case against deposed Panamanian leader Manuel Antonio Noriega asked a judge Friday to reject arguments by co-defendants Luis del Cid that the U.S. government acted illegally when it arrested him in Panama.
Prosecutors Michael P. Sullivan and Myles Malman also asked U.S. District Judge William Hoeveler to note that the Supreme Court "dealt a blow" to del Cid's claim that his arrest by American soldiers and drug agents was akin to kidnapping.
Del Cid's attorney, Samuel I. Burstyn, has said that del Cid should be released because the invasion violated the charters of the United Nations and the organization of American States. Burstyn asked Hoeveler to assume, for the purposes of future proceedings, that last December's invasion of Panama was illegal.
Burstyn has also said that the arrest was similar to a 1974 case involving accused drug smuggler Francisco Toscanino, who was abducted in Uruguay, tortured in Brazil and forcibly brought to the United States to stand trial in New York. In that case, a federal appeals court ruled that if Toscanino could prove that he was arrested through violent and blatantly illegal means, the charges against him could be dismissed.
In a memo to Hoeveler, Sullivan and Malman said Burstyn's arguments are invalid.
Del Cid, they said, has no personal rights under the OAS and U.N. charters that can be used by individuals in American courts.
The OAS, they said, "stopped short of condemning the United States action or declaring it unlawful." And the U.N. General Assembly, while deploring the invasion, did not create any "authoritative statement of international law."
The prosecutors also said their position was buttressed last week when the U.S. Supreme Court upheld the legality of warrantless searches and seizures overseas. Under the Fourth Amendment, police generally need warrants to arrest suspects and seize their property.
The high court's ruling, the prosecutors said, made the seizure of del Cid in Panama legal.
"The court held that the Fourth Amendment is inapplicable to a search and seizure in a foreign country if the target ... is an alien 'with no voluntary attachment to this country,'" the prosecutors wrote.
The ruling, the prosecutors added, eliminates the Toscanino case as a legal weapon for Del Cid.
Burstyn, del Cid's attorney, admitted last week that the Supreme Court ruling canceled Toscanino as an issue in the Noriega case. He was unavailable for comment late Friday.
But Frank Rubino, one of Noriega's lawyers, said Friday he intends to proceed with a hearing on the Toscanino issue, scheduled for April 2.
Rubino conceded that the court can't assume that the invasion itself was illegal because there is no consensus on the issue.
But he said that he and his fellow lawyers think they can persuade Hoeveler to draw parallels between the destruction in Panama and the violent kidnapping of Toscanino.
Mid-Trial Offer of Probation for Client
