UNITED STATES v. FITZPATRICK
214 F.Supp. 425 (1963)
UNITED STATES of America ex rel. Roberto Santiesteban CASANOVA, Relator,
Walter W. FITZPATRICK, Warden, Federal Detention Headquarters, Respondent.
United States District Court S. D. New York.
January 16, 1963.
Rabinowitz & Boudin, New York City, for relator; Leonard B. Boudin, Victor Rabinowitz, Mary M. Kaufman, Arthur Schutzer, Henry Winestine, Michael B. Standard, New York City, of counsel.
Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, New York City, for respondent; Vincent L. Broderick, Chief Asst. U. S. Atty., Sheldon H. Elsen, Arnold M. Enker, Arthur I. Rosett, Asst. U. S. Attys., of counsel.
WEINFELD, District Judge.
The petitioner, Roberto Santiesteban Casanova, seeks his release from custody on a writ of habeas corpus on the ground of lack of the Court's jurisdiction over his person. He is under arrest and detention by virtue of a two-count indictment wherein he, two codefendants and two others not named as defendants are charged with conspiracy to commit sabotage and to violate the Foreign Agents Registration Act.1 He was originally arrested on a warrant issued by the United States Commissioner, based upon a complaint, and held in $250,000 bail fixed by the Commissioner. Thereafter, following his indictment by a grand jury, this Court set bail in the sum of $75,000, which it later reduced to $50,000. Petitioner has been confined since his arrest in default of bail. Petitioner contends he is entitled to diplomatic immunity and is not subject to Federal arrest, detention or prosecution. The basic facts upon which his claim to immunity rests are not in dispute. He is a Cuban national, appointed by his government as an attache and Resident Member of the Staff of the Permanent Mission of Cuba to the United Nations, hereafter referred to as the "Cuban Mission." He entered the United States on October 3, 1962 with a diplomatic passport issued by his own government, a nonimmigrant visa issued by our Department of State, and a landing card issued by the Immigration and Naturalization Service. From the time of his
admission to the United States to the date of his arrest on November 16th he was employed as a Resident Member of the staff of the Cuban Mission.
Petitioner contends that he enjoys diplomatic immunity from arrest and prosecution under (1) Article 105 of the United Nations Charter, (2) Section 15 (2) of the Headquarters Agreement of the United Nations, and (3) the Law of Nations. He further contends that even if his claim to immunity is overruled, nonetheless the writ must be sustained, since the Supreme Court of the United States has exclusive and original jurisdiction to try him under Article III of the Constitution of the United States and section 1251 of Title 28, United States Code.
Before considering his contentions, it is desirable to localize the issue with which we deal. The petitioner is not a member of a diplomatic staff accredited to, and recognized by, the United States Government.2 He is not a representative to,3 or an employee of,4 the United Nations. His claim to diplomatic immunity derives solely from his status as a Resident Member of the Cuban Permanent Mission to the United Nations. Whatever right to immunity exists must be considered within the context of that status.
A. THE CLAIM OF DIPLOMATIC IMMUNITY UNDER THE UNITED NATIONS CHARTER.
Article 105 of the Charter of the United Nations provides as follows:5