471 F.2d 744 (9th Cir. 1973), 72-1242, United States v. Cotten

Docket Nº:72-1242.
Citation:471 F.2d 744
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Milton COTTEN and William Lowell Roberts, Defendants-Appellants.
Case Date:January 02, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 744

471 F.2d 744 (9th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,


James Milton COTTEN and William Lowell Roberts, Defendants-Appellants.

No. 72-1242.

United States Court of Appeals, Ninth Circuit.

January 2, 1973

Certiorari Denied April 16, 1973.

See 93 S.Ct. 1913.

Page 745

John S. Edmunds (argued), of Mattoch, Edmunds & Kemper, Honolulu, Hawaii, for defendants-appellants.

Gary D. Jackson, Atty. (argued), Washington, D. C., Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Before BARNES and TRASK, Circuit Judges, and BATTIN, [*] District Judge.

BATTIN, District Judge:

The appellants, James Milton Cotten, and William Lowell Roberts, appeal their convictions in the United States District Court for the District of Hawaii for violations of 18 U.S.C. § 371, conspiracy, and 18 U.S.C. § 641, theft of Government property. The criminality of the conduct which resulted in the convictions is not in doubt. The only questions raised on appeal concern the jurisdiction of the district court.

The expansive nature of the case required that it be submitted to the court upon an agreed statement of facts. 1 Those facts are important to the questions raised and are substantially as follows:

During 1969, James Milton Cotten and William Lowell Roberts, who were civilian United States Citizens in the Republic of Viet Nam, conspired to defraud the United States by knowingly converting money and other property of the United States Military Exchanges in Japan to their own use and for the use of others. In furtherance of their conspiracy, they obtained falsified military identification cards, falsified military orders showing them to be on authorized "R&R" leave in Japan and opened a checking account.

They arrived at Japan in April, 1969, stayed there approximately two weeks, and returned to the Republic of Viet Nam. During their stay in Japan, they negotiated numerous worthless checks drawn on the previously mentioned account at several United States Military Exchanges. The checks were exchanged for cash and for merchandise which was then sent through the military mail system to military acquaintances of the defendants in Viet Nam.

On August 5, 1970, a twenty-three count indictment was brought against the appellants in the Northern District of California. Both appellants were charged with conspiracy to defraud the United States 2 and with several substantive counts of theft of Government property 3 by means of the worthless checks.

At the time of the indictment, the appellants were still in the Republic of Viet Nam. Immediately after the return of the indictments, the United States Department of State, pursuant to prior arrangements, instituted proceedings to revoke the appellants' passports and to arrange their deportation to this country. In the meantime, the appellants were arrested by Vietnamese officials and charged with several minor local offenses. The Vietnamese officials refused to relinquish custody of the appellants or their passports until final disposition of the local charges. The United States does not have an extradition treaty with the Republic of Viet Nam.

After weeks of negotiation, the Vietnamese charges against the appellants were dropped and, on separate occasions, the appellants were delivered to United States officials waiting to take them to Hawaii. Once in Hawaii, the appellants were arrested and subsequently delivered to the custody of the United States Marshal in San Francisco. Eventually, the parties made and the district court in California granted separate motions

Page 746

for a change of venue to the District of Hawaii. Both appellants timely filed motions to dismiss for want of jurisdiction over the person and to dismiss for want of jurisdiction over the offense. The court denied the motions.

Although the circumstances of the return of Cotten and Roberts to the United States are important to their claim of violation of their Constitutional rights, they will not be set out at length. The briefs and record of the court below reflect the fact that the appellants were forcibly returned to this country. A synopsis of those facts appears in the margin. 4

From the extensive factual background of the case, only two issues emerge on appeal:

1. Whether the United States District Court for the District of Hawaii had jurisdiction over the persons of the appellants for violations of 18 U. S.C.§§ 641 and 371 when the appellants were involuntarily removed from the Republic of Viet Nam to the United States for trial; and

2. Whether the United States has jurisdiction to prosecute the appellants for violating 18 U.S.C. §§ 371 and 641 where all the acts alleged

Page 747

which constitute the crimes occurred in foreign countries.

We will dispose of the issues in the order designated above, for if the first issue is decided adversely to the Government, the second issue will be moot.


The appellants contend that the conduct of the Government officials in returning them to the United States to face the charges here in question was so blatantly violative of their constitutional rights as to deprive the court below of personal jurisdiction. Their argument is based on the concept of fundamental fairness they correctly view as embodied in the due process standard of both the Fifth and Fourteenth Amendments.

Operating from this obviously acceptable premise, the appellants point to cases such as Rochin v. California, 5 and Miranda v. Arizona, Katz v. United States, and Sorrells v. United States, 6 in which the Supreme Court of the United States has established standards for the fair administration of criminal justice. They argue that the conduct of the Government agents in this case is so shockingly offensive of these standards and to the conscience of civilized men as to require dismissal for want of jurisdiction of their persons.

The appellants urge that the seizure of their persons constituted a violation of the Fourth Amendment. It is their position that the Government's actual physical seizure of each person, rather than evidence which might have been suppressed if seized under similar circumstances, is no less violative of due process than had physical evidence been seized. The same interest analysis which supports the exclusionary rule is urged by the appellants to support dismissal of these charges. It is their contention that the present case is one in which the courts should take notice of the obnoxious and illegal conduct of Government agents and react by reversing the trial court's refusal to dismiss the case.

Finally, appellants make an analogy to civil procedure. They note that it is a well-settled rule that a defendant who is lured into another state by fraud or force will not be subject to the jurisdiction of that state. Beale, Conflict of Laws, Sections 78.3 and 78.4 (1935). They urge the rationale of the rule to be that a state will not allow a plaintiff to profit from his underhanded conduct. Similarly, they continue, a state should not be permitted to benefit from the illegal activities of its agents. Thus, a court should exercise its discretionary powers and refuse to sanction such unreasonable conduct, as is found here, by dismissing this case where police conduct is so blatantly in violation of due process.

In their reply brief, the appellants raise a new issue regarding the jurisdiction over their persons: that the use of a United States Air Force aircraft and personnel to forcibly return the appellants to the United States is a violation of 18 U.S.C. § 1385. That section provides, in pertinent part:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws [violates this section]."

It is the appellants' view that the use of a United States Air Force aircraft and attendant personnel to transport them to the United States to face charges for civilian crimes was a criminal act, and therefore requires either a dismissal of charges or a finding of lack of jurisdiction.

It is our conclusion that the court below was not without jurisdiction. The

Page 748

very narrow issue presented here questions only the power of the lower court to proceed. 7 We are compelled by old and well-established authority to conclude that the court below did have jurisdiction over the persons of the appellants.

Conceding that appellants were in fact kidnapped or forcibly removed without their consent to the territorial limits of the United States by and under order of government personnel, that fact does not preclude assertion of jurisdiction over their persons. 8

"There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense, and presents no valid objection to his trial in such court."

Ker, Note 8, 117 U.S. at 444, 7 S.Ct. at 229.

The Supreme Court has not since abandoned the Ker principle, 9 and it has been widely reasserted, though at times critically, by the Circuits. 10 The fact that it was state court jurisdiction that was questioned in the early cases which established the rule is unimportant. The protection sought in the cases enunciating the principle was that of the Federal Constitution. The Supreme Court found that none was afforded then; we are unable to find any now. 11

As did the Tenth Circuit in the Hobson, case, we find nothing in Mapp v. Ohio 12 or Fay v. Noia, 13 nor in the cases cited by the appellants, 14 which implies that the expanded scope of protection afforded to accused persons by both the Fifth and Fourteenth Amendments would preclude trial of the accused by a court of competent jurisdiction. The remedy for the...

To continue reading