U.S. v. Cordero

• Decision Date: 15 January 1982
• Docket Number: 80-1015,Nos. 80-1011,s. 80-1011
• Citation: 668 F.2d 32
• Parties: UNITED STATES of America, Appellee, v. Josephine CORDERO, etc., Defendant, Appellant. UNITED STATES of America, Appellee, v. William SORREN, a/k/a Bill, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 32

668 F.2d 32

UNITED STATES of America, Appellee, v. Josephine CORDERO, etc., Defendant, Appellant.

UNITED STATES of America, Appellee, v. William SORREN, a/k/a Bill, Defendant, Appellant.

Nos. 80-1011, 80-1015.

United States Court of Appeals First Circuit.

Argued Sept. 16, 1981.

Decided Dec. 14, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc Jan. 15, 1982.

Harry Anduze Montano, Santurce, P.R., for defendant, appellant Josephine Cordero, Etc Harvey B. Nachman, Santurce, P.R., with whom Carlos V. Garcia Gutierrez, Santurce, P.R., was on brief, for defendant, appellant William C. Sorren.

Patty Merkamp Stemler, Atty., Dept. of Justice, Washington, D.C., with whom Raymond L. Acosta, U. S. Atty., San Juan, P.R., and Robert J. Erickson, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee.

Before CAMPBELL, VAN DUSEN ^* and BREYER, Circuit Judges.

BREYER, Circuit Judge.

Appellants, Josephine Cordero and William Sorren, were convicted for conspiracy to import cocaine into the customs territory of the United States, 21 U.S.C. §§ 952 ¹, 963 ², and of unlawfully using interstate communications facilities to facilitate that conspiracy, 21 U.S.C. § 843(b). ³ The evidence, which in this appeal we view in a light most favorable to the government-United States v. Stubbert, 655 F.2d 453, 455-56 (1st Cir. 1981)-suggest the following basic facts. Beginning in late 1978 and thereafter Felix Jimenez, a Drug Enforcement Administration undercover agent posing as a cocaine buyer, began to develop with Sorren plans to smuggle cocaine into Puerto Rico. Sorren is a pilot; he was to be responsible for transporting the cocaine. Subsequently, Sorren introduced Jimenez to Cordero with whom Jimenez thereafter spoke separately. Cordero had contacts with foreign drug dealers; she agreed that she would try to find a cocaine source. After a number of false starts, which will be described below, Cordero reached two men in Colombia: Jose Molina-Sevilla and Adriano Robinson-Whittiker. They agreed to supply the cocaine. In the meantime, Sorren contacted Warren Turner who agreed to help Sorren transport the cocaine. ⁴ Eventually, Sorren, Turner, Cordero, Robinson-Whittiker and Jimenez met in Panama City, where Jimenez, instead of producing payment, identified the other four to Panamanian authorities as drug dealers. The Panamanians arrested the four and held them in jail. They were then sent by air to Venezuela, and then were sent on to Puerto Rico. Cordero and Sorren were subsequently tried and convicted in Puerto Rico. We affirm their convictions in this appeal. We shall discuss each of their several arguments in turn.

I

Appellants' preliminary claim is that the circumstances surrounding their arrest and transport to Puerto Rico deprived the federal district court of jurisdiction to try them. Appellants primarily rely upon what is known as the Toscanino exception to the Ker-Frisbie doctrine.

As we pointed out when Sorren's case was previously before us, United States v. Sorren, 605 F.2d 1211, 1215-16 n.5 (1st Cir. 1979), ("Sorren I," seeking mandamus), "under the so-called Ker-Frisbie doctrine, the forceable abduction of a criminal defendant into the court's jurisdiction does not impair the court's power to try him." See Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). The vitality of this doctrine, which is widely applied throughout the world, ⁵ has recently been reaffirmed by the Supreme Court. United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251-52, 63 L.Ed.2d 537 (1980), ⁶ Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). ⁷

The Toscanino exception to the Ker-Frisbie doctrine requires a court, in the name of due process, to divest itself of jurisdiction of the person of a criminal defendant "where it has been acquired as the result of the (U.S.) government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights." United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). This exception, however, has been narrowly interpreted to cover only egregious cases. Thus, in Toscanino itself, the " 'unreasonable' invasion of ... rights included beatings, denial of sleep for prolonged periods, fluids injected in his eyes and nose, and electric shocks administered to his ears, toes, and genitals." Sorren I, 605 F.2d at 1215-16 n.5. And, where less outrageous treatment was at issue, the courts have tended to apply Ker-Frisbie not the exception. See, e.g., United States v. Lopez, 542 F.2d 283 (5th Cir. 1976) (abduction at "instigation" of United States but without direct United States involvement in torture insufficient to divest court of jurisdiction); United States v. Lara, 539 F.2d 495 (5th Cir. 1976) (no Toscanino violation where defendant failed to show direct United States involvement in torture; forceable abduction without more insufficient); United States v. Lira, 515 F.2d 68 (2d Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975) (no Toscanino violation without showing direct United States involvement); United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975) (seizure of defendant not in violation of treaty or against wishes of foreign government and no showing of "shocking" conduct by United States agents made Toscanino inapplicable.). Sorren I, 605 F.2d at 1216. See generally Henkin, International Law 477-78 (2d ed. 1980). ⁸

After Sorren I and after the subsequent trial, the district court held a hearing outside the presence of the jury to determine the relevant Toscanino facts. We have reviewed the record of that hearing with care. It fails to show either the shocking circumstances or the type of U. S. Government involvement in those circumstances which might together bring the Toscanino exception into play. The record indicates that U.S. Drug Enforcement Administration agent Jimenez identified Sorren to several Panamanian officials at Sorren's hotel on May 8, 1979. Cordero was arrested by Panamanian authorities the next day at the Panama City airport. Cordero states that she saw Jimenez once again after she was arrested. Both appellants saw an American consul who visited them. Aside from this, however, there is no evidence linking American agents to the appellants' treatment. Indeed, when Sorren's counsel asked co-defendant Warren Turner whether he had seen or heard American agents while he was under arrest, Turner replied that he did not. ⁹

More importantly, the record does not show the outrageous conduct involved in Toscanino. At worst, it shows poor treatment by the Panamanian authorities and poor conditions in Panamanian jails. When Panamanian officials arrested Sorren they insulted him, pushed him and slapped him. In jail, Sorren was poorly fed, he had to sleep on the floor and had to "huddle up in a corner" to avoid the splashing of urine coming from prisoners in other cells. The Panamanian arresting officers insulted Cordero. They also fed her badly while she was in jail. She had to sleep on the floor or in a chair. These conditions may be poor, unfortunate, hardly decent, but they are a far cry from deliberate torture, and they are beyond the control of American law enforcement authorities and American courts. Were American courts to seek to improve conditions in foreign jails by refusing to try those who are temporarily held there, the result would not be better jails, but the creation of safe havens in foreign lands for those fleeing the reach of American justice. Hence, the Toscanino exception does not apply here.

Appellants seek to bolster their "lack of jurisdiction" claim by arguing that their arrests in Panama and subsequent return to Puerto Rico via Venezuela violated extradition treaties between the United States and those countries. See Treaty between the United States of America and the Republic of Panama, Providing for the Extradition of Criminals, May 25, 1904, 34 Stat. 2851; T.S. No. 445; Extradition Treaty January 19-21, 1922, United States of America-United States of Venezuela, 43 Stat. 1968; T.S. No. 675. The procedures used to return them to the United States were quite different from the extradition procedures referred to in these treaties. The short and conclusive answer to appellants' claim, however, is that nothing in these treaties suggests that the countries involved must follow the extradition procedures set out in the treaties when they return criminal defendants to the United States. Extradition treaties normally consist of commitments between governments to the effect that each will return those accused of certain crimes at the request of the other. See H. Kelsen, Principles of International Law, 373 (1966). Nothing in the treaty prevents a sovereign nation from deporting foreign nationals for other reasons and in other ways should it wish to do so.

Moreover, insofar as relevant here, extradition treaties are made for the benefit of the governments concerned. See I. Brownlie, Principles of Public International Law, 307 (2d ed. 1973); Kirkemo, An Introduction to International Law, 31-32 (1974); But cf. Garcia Mora, International Law and Asylum as a Human Right, 30-51 passim, 133-36 (1956). And, under international law, it is the contracting foreign government, not the defendant, that would have the right to complain about a violation. United States v. Reed, 639 F.2d 896, 902 (2d Cir. 1981); United States ex rel. Lujan v. Gengler, 510 F.2d at 67-68. The record here provides no basis for any inference that either Panama or Venezuela objected to appellants' departure from their territories. To the contrary, it was Panamanian and Venezuelan authorities who deported them. Cf. 88 Harv.L.Rev. 813, 818-19 (1975).

The cases that appellants cite to do not...