U.S. ex rel. Lujan v. Gengler

• Decision Date: 02 June 1975
• Docket Number: No. 449,D,449
• Citation: 510 F.2d 62
• Parties: UNITED STATES of America ex rel. Julio Juventino LUJAN, on the petition of Frank A. Lopez, Petitioner-Appellant, v. Warden Louis GENGLER, Superintendent, Federal Detention Headquarters, New YorkCity, and Hon. David G. Trager, United States Attorney for the Eastern Districtof New York, and any other person having custody and control of the relator,Respondents-Appellees. ocket 74--2084.
• Court: U.S. Court of Appeals — Second Circuit

Page 62

510 F.2d 62

UNITED STATES of America ex rel. Julio Juventino LUJAN, on the petition of Frank A. Lopez, Petitioner-Appellant, v. Warden Louis GENGLER, Superintendent, Federal Detention

Headquarters, New YorkCity, and Hon. David G. Trager, United

States Attorney for the Eastern Districtof New York, and any

other person having custody and control of the

relator,Respondents-Appellees.

No. 449, Docket 74--2084.

United States Court of Appeals,

Second Circuit.

Argued Dec. 6, 1974.

Decided Jan. 8, 1975.

Certiorari Denied June 2, 1975.

See 95 S.Ct. 2400.

Frank A. Lopez, Brooklyn, N.Y., for petitioner-appellant.

Edward R. Korman, Chief Asst. U.S. Atty., E.D.N.Y., for respondents-appellees.

Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

The facts of this case present elements one might expect to encounter in a grade-B film scenario--an organized underworld conspiracy to import massive quantities of heroin into the United States, and American agents kidnapping the leading perpetrators from South America to bring them to trial. Our role in this drama is to determine whether our recent decision in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), petition for rehearing en banc denied, 504 F.2d 1380 (1974) (Mulligan and Timbers, JJ., noting their dissent from the denial of the petition for en banc consideration), ¹ precludes the court below from asserting jurisdiction over the protagonist, Julio Juventino Lujan, an Argentine citizen. We conclude that Toscanino does not extend to Lujan's case, and affirm the judgment of the district court.

I.

A grand jury empanelled in the Eastern District of New York indicted Lujan and eight others on July 19, 1973, charging them with conspiracy to import and distribute a large quantity of heroin. The conspiracy described was wide-ranging, involving overt acts in France, Brazil, Uruguay, Peru, Mexico, and Queens, New York, and the quantities of heroin involved were enormous. Arrest warrants were issued for all defendants with the exception of Francisco Toscanino, the subject of our earlier decision, who had been convicted two weeks earlier on another conspiracy to import 18 1/2 kilograms of heroin. The warrant for Lujan's arrest commanded any special agent of the Drug Enforcement Administration, United States Marshal or Deputy Marshal to bring him before the District Court for the Eastern District of New York.

Accepting, as we must for purposes of this appeal, that Lujan's allegations are true, the arrest warrant was enforced in an unconventional manner. Lujan, a licensed pilot, was hired in Argentina by one Duran to fly him to Bolivia. Although Duran represented that he had business to transact there with American interests in Bolivian mines, he in fact had been hired by American agents to lure Lujan to Bolivia. When Lujan landed in Bolivia on October 26, 1973, he was promptly taken into custody by Bolivian police who were not acting at the direction of their own superiors or government, but as paid agents of the United States. Lujan was not permitted to communicate with the Argentine embassy, an attorney, or any member of his family.

On the following day the Bolivian police, commanded by Police Major Guido Lopez, took Lujan from Santa Cruz to La Paz, where he was held until November 1, 1973. On that date a Lieutenant Terrazas and other Bolivian police, acting together with American agents, brought Lujan to the airport and placed him on a plane bound for New York. Upon his arrival at Kennedy Airport Lujan was formally arrested by federal agents. At no time had he been formally charged by the Bolivian police, nor had a request for extradition been made by the United States.

Lujan was arraigned on the day of his arrival, and pleaded not guilty. After this court's decision in Toscanino, Lujan took steps to challenge the manner in which he was brought to the United States. A series of procedural moves ensued, ² but the posture of the case before us is relatively straightforward. Judge Mishler dismissed without a hearing Lujan's petition for a writ of habeas corpus on June 21, 1974, and Lujan appeals.

II.

Since Lujan's allegations are to be measured against Toscanino, the facts of that case must be presented in some detail. Toscanino, an Italian citizen, alleged that he had been kidnapped from his home in Montevideo, Uruguay, brought to Brazil, and taken from that country to stand trial in the United States, all at the illegal instigation of the United States government. The particular circumstances of the abduction, if Toscanino's claims are true, represent government conduct appropriately condemned as most inhuman.

Toscanino charged and was prepared to establish that on January 6, 1973, he and his seven-month pregnant wife had been lured to a deserted area in Montevideo by seven Uruguayan policemen, acting as paid agents of the United States government. Toscanino was knocked unconscious with a gun in full view of his wife, bound and blindfolded, and thrown into the rear seat of a car. During a long and circuitous trip to the Brazilian border his abductors dodged the Uruguayan authorities, and at one point, a gun was placed to Toscanino's head to compel him to lie quietly while a Uruguayan military convoy passed.

Toscanino was eventually brought to Brasilia, where over a period of seventeen days he was incessantly subjected to brutal torture and interrogation by Brazilians acting as agents of the United States government. His captors, he claimed, denied him sleep and all forms of nourishment for days at a time. He was fed only intravenously in amounts barely sufficient to keep him alive. He was compelled to walk up and down a hallway for seven or eight hours at a time, and when he fell, was kicked and beaten. To induce him to respond to the interrogation, his fingers were pinched with metal pliers, alcohol was flushed into his eyes and nose, and other fluids were forced in his anal passage. Electrodes were attached to his earlobes, toes, and genitals, and electricity was shot throughout his body, leaving him unconscious for periods of time.

Throughout this period, Toscanino asserted, the United States government and the United States Attorney for the Eastern District of New York were aware of the interrogation and received reports of its progress. Moreover, a member of the Bureau of Narcotics and Dangerous Drugs of the Department of Justice was present at times, and actually participated in some of the interrogation.

Eventually, Toscanino claimed, he was drugged and flown to New York. He awakened when the aircraft reached the United States. Upon landing and while still aboard he was arrested. The district court never held a hearing with respect to Toscanino's allegations.

On the appeal from his conviction, we held that Toscanino had alleged a violation of due process which, if proved, would require the district court to divest itself of jurisdiction over him. Our opinion recognized the traditional rule, set forth in a line of cases from Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) to Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), declaring that the manner in which a defendant was brought into the United States did not affect the court's power to proceed. The Ker-Frisbie doctrine was rooted in the perception that

due process of law is satisfied when one present in court is convicted of crime after being fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.

Frisbie, 342 U.S. at 522, 72 S.Ct. at 512. Its effect was to render 'police brutality and lawlessness,' Toscanino, 500 F.2d at 272, involved in obtaining jurisdiction over the defendant almost wholly immune from judicial scrutiny. ³

Toscanino viewed the Ker-Frisbie doctrine, however, as not preventing judicial scrutiny of conduct of the most outrageous and reprehensible kind by United States government agents, because of recent pronouncements by the Supreme Court in the area. Id. at 272--275. Any other approach, Toscanino declared, would be inconsistent with cases refusing to permit the government to benefit from illegal police conduct in obtaining evidence, id. at 272, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), extracting confessions, id., citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1961), and inducing criminal conduct by the defendant, id., citing United States v. Russell, 411 U.S. 423, 430--431, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

Yet in recognizing that Ker and Frisbie no longer provided a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality and similar outrageous conduct, we did not intend to suggest that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would vitiate the proceedings of the criminal court. In holding that Ker and Frisbie must yield to the extent they were inconsistent with the Supreme Court's more recent pronouncements we scarcely could have meant to eviscerate the Ker-Frisbie rule, which the Supreme Court has never felt impelled to disavow. ⁴ Although we cited other cases in Toscanino as evidence of the partial erosion of Ker and Frisbie, the twin pillars of our holding were Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) and dictum in United States v. Russell, 411 U.S. at 431--432, 93 S.Ct. 1637, both of which dealt with government conduct of a most shocking and outrageous character. For example, in Rochin, which Toscanino described as an illustration of when the Frisbie rule would yield, an emetic solution was forced through a tube into a defendant's stomach to recover two morphine capsules which he had swallowed; the capsules were later introduced at his trial. We quoted at length from Justice Frankfurter's opinion reversing the...