Rosado v. Civiletti

• Decision Date: 23 April 1980
• Docket Number: D,Nos. 980-982,s. 980-982
• Parties: Pedro ROSADO, Efran Morales Caban, and Raymond Bayron Velez, Petitioners- Appellees, v. Benjamin CIVILETTI, Attorney General of the United States, Raymond Nelson, Warden of the Federal Correctional Institution at Danbury, Connecticut, and The United States of America, Respondents-Appellants. ockets 80-2001 to 80-2003.
• Court: U.S. Court of Appeals — Second Circuit

Page 1179

621 F.2d 1179

Pedro ROSADO, Efran Morales Caban, and Raymond Bayron Velez, Petitioners- Appellees, v. Benjamin CIVILETTI, Attorney General of the United States, Raymond Nelson, Warden of the Federal Correctional

Institution at Danbury, Connecticut, and The United States

of America, Respondents-Appellants.

Nos. 980-982, Dockets 80-2001 to 80-2003.

United States Court of Appeals, Second Circuit.

Argued March 21, 1980.

Decided April 23, 1980.

Richard Blumenthal, U. S. Atty., D. Conn., New Haven, Conn. (George J. Kelly, Jr., Asst. U. S. Atty., Hartford, Conn., and Michael Abbell, Crim. Div., U. S. Dept. of Justice, Washington, D. C., of counsel), for respondents-appellants.

Eric M. Freedman, New York City (Steven Duke and Dennis Curtis, Yale Law School, of counsel; Robert Suomala, law student intern, on the brief), for petitioner-appellee Rosado.

Andrew B. Bowman, Fairfield, Conn. (Kleban, Samor, Perles, Dardani & Silvestro, Fairfield, Conn., of counsel), for petitioner-appellee Caban.

David S. Golub, Stamford, Conn. (Ernest F. Teitell and Silver, Golub & Sandak, Stamford, Conn., of counsel), for petitioner-appellee Velez.

Before KAUFMAN, Chief Judge, TIMBERS, Circuit Judge, and LASKER, District Judge. ^*

IRVING R. KAUFMAN, Chief Judge:

The proud heritage of the Anglo-American judicial system as a bastion of individual liberties is founded, in no small measure, upon the citizen's enduring right of access to courts of law to challenge unwarranted governmental infringements upon his freedom. When all other avenues of relief have been closed, our nation's courts have consistently vindicated the fundamental guaranties of due process of law by invoking their general jurisdiction, either to review executive action otherwise deemed final, or to free those unlawfully restrained through the issuance of a writ of habeas corpus.

In the case before us, petitioners are held in custody under federal authority. They have urged the district court to discharge its constitutional obligation to hear their claims and release them from custody. They have demonstrated that their convictions, under the laws of the sovereign state of Mexico, manifested a shocking insensitivity to their dignity as human beings and were obtained under a criminal process devoid of even a scintilla of rudimentary fairness and decency. Accordingly, we reaffirm the authority of the federal courts to hear due process claims raised, as they are here, by citizens held prisoner within the territorial jurisdiction of the United States. Nevertheless, we also recognize the laudable efforts of the executive and legislative branches, by both treaty and statute, to ameliorate, to their utmost power, the immense suffering of United States citizens held in Mexican jails. Indeed, because the statutory procedures governing transfers of these prisoners to United States custody are carefully structured to ensure that each of them voluntarily and intelligently agreed to forego his right to challenge the validity of his Mexican conviction, and because we must not ignore the interests of those citizens still imprisoned abroad, we hold that the present petitioners are estopped from receiving the relief they now seek.

I

In 1978, Efran Caban, Raymond Velez, Pedro Rosado, and Felix Melendez filed petitions in the District of Connecticut seeking release from federal incarceration in the Danbury Correctional Facility. The petitioners, all United States citizens, had been arrested in Mexico in November 1975 for narcotics offenses. They were subsequently convicted and sentenced to nine years' imprisonment by the Mexican courts. ¹ In December 1977, the petitioners were transferred to United States custody pursuant to a treaty between the United States and Mexico providing for the execution of penal sentences imposed by the courts of one nation in the prisons of the other. ² Under the terms of the treaty, each transferring prisoner is required to consent to his transfer, and is permitted to contest the legality of any change of custody in the courts of the receiving nation. ³ Thus, the petitioners in this case argued that their consents to transfer had been unlawfully coerced and that their continued detention by United States authorities based upon the convictions in Mexico violated their right to due process of law guaranteed by the Fifth Amendment. In support of federal jurisdiction, petitioners relied upon 18 U.S.C. § 3244, ⁴ as well as various sections of Title 28, including 28 U.S.C. § 2241. ⁵ To the extent that 18 U.S.C. § 3244(1) ⁶ purports to reserve to Mexican courts exclusive jurisdiction over challenges to the petitioners' convictions or sentences, they claimed that the limitation suspends the privilege of the writ of habeas corpus in violation of Art. I, § 9, cl. 2 of the Constitution.

Three days of hearings were held before Judge Daly during which Caban, Rosado, and Melendez each recounted their experiences in Mexico. ⁷ Miguel Calderone, a Puerto Rican attorney who had visited the petitioners during their incarceration in Lecumberri Prison also testified, as did the two public defenders who represented the petitioners at consent verification proceedings in Mexico. ⁸ On July 31, 1979, Judge Daly granted the petitions of Caban, Velez, and Rosado, ⁹ holding, in a thoughtful opinion, that the prisoners' consents to transfer had been unlawfully coerced by the brutal conditions of their confinement in Mexico. Emphasizing what he deemed to be circumstances unique to these petitioners, the district judge observed that the men lived in daily fear of bodily harm, and believed with justification that they would be killed if they remained incarcerated in Mexico. Consequently, he concluded, "petitioners would have signed anything, regardless of the consequences, to get out of Mexico." Velez v. Nelson, 475 F.Supp. 865, 874 (D.Conn.1979) (footnote omitted). ¹⁰ In view of our duty to make an independent determination of the voluntariness of petitioners' consents to transfer, Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966), we shall first explore the history of petitioners' confinement in Mexico and the United States, then proceed to consider the legal principles raised by the Government's appeal in this difficult and perplexing case.

A

After observing the witnesses' demeanor on direct and cross-examination, Judge Daly credited their testimony. Accordingly, for purposes of this appeal, we shall accept as true the petitioners' undisputed account of their arrests and convictions in Mexico.

In substance, the petitioners' testimony establishes that Caban and Freddie DePalm, also a United States citizen, departed New York's Kennedy Airport on November 18, 1975 for a vacation in Acapulco, Mexico. At the airport, the two men had become acquainted with Velez and the three sat together and conversed during the flight to Mexico. When their Aero Mexico airliner made its first scheduled landing in Mexico City, the passengers were informed there would be a one hour delay before proceeding to Acapulco. During the layover, Caban, DePalm, and Velez decided to leave the airport terminal and go to a Holiday Inn nearby. While browsing in the hotel's gift shop, the Americans were approached by six Mexicans in civilian dress, guns drawn, who stated that the Americans were under arrest. No arrest warrants were produced, nor did the Mexicans identify themselves as police officials. Nonetheless, Caban, DePalm, and Velez were each handcuffed and taken to an isolated area of the airport terminal.

In the terminal, Caban watched his captors drag Velez into a room, then heard Velez cry out in pain for close to an hour. Caban himself was taken into a separate room where he was searched, stripped and his legs bound. A watch, jewelry, and $400 in cash were taken from his person, but no drugs or contraband were found in his possession. Caban was then shown a photograph of a man represented to be Ramon Rodriguez and asked whether he knew him. When he denied any knowledge of Rodriguez, water was poured over his naked body and an electric cattle prod applied, first to his mouth, then to his testicles and buttocks. His persistent denial of any acquaintance with the man in the photograph led to repeated torture with the electric prod. Thereafter, Caban's interrogators suspended him from the ceiling by clamping a handcuff to his wrist and attaching it to a hook, causing him to lose consciousness from time to time. He remained in this position throughout the day while his captors continued to beat him, threatening to kill him if he refused to admit an acquaintance with Rodriguez. By the end of the day, the weight of Caban's suspended body against the handcuff caused a bone in his arm to break and tear through his wrist.

That night, Caban, DePalm, and Velez were taken to Los Separos detention center in Mexico City. Caban noticed that Velez was swollen and bruised, and that he was unable to walk unassisted. At Los Separos, the men were placed in small separate cells containing cement slabs for beds and no plumbing. They were held incommunicado for eight days. The food was inedible and the entire cellblock reeked of human excrement. Throughout their stay at Los Separos, interrogators continued to beat and torture the men with an electric prod in an attempt to elicit confessions. ¹¹

Two days after Caban's arrest in Mexico City, Rosado was arrested in Acapulco upon his arrival on a flight from New York. Though unemployed, Rosado had planned to take a two-day vacation in Acapulco. After passing through customs at the airport, he was confronted by five plainclothes Mexicans bearing pistols and a submachine gun, who asked him to accompany them to a room in the airport. In the room, Rosado saw Melendez, who also had been detained upon his arrival in Acapulco. Rosado was held in the room for two hours while his luggage and personal effects were searched. His ticket,...