U.S. v. Matta-Ballesteros

• Decision Date: 01 December 1995
• Docket Number: D,No. 91-50336,MATTA-BALLESTERO,91-50336
• Citation: 71 F.3d 754
• Parties: 43 Fed. R. Evid. Serv. 338, 95 Cal. Daily Op. Serv. 9042, 95 Daily Journal D.A.R. 15,853 UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramonefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 754

71 F.3d 754

43 Fed. R. Evid. Serv. 338, 95 Cal. Daily Op.

Serv. 9042,

95 Daily Journal D.A.R. 15,853

UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramon MATTA-BALLESTEROS, Defendant-Appellant.

No. 91-50336.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 4, 1993.

Submission Vacated April 7, 1994.

Resubmitted June 6, 1994.

Decided Dec. 1, 1995.

Martin R. Stolar, Michael J. Burns, New York City, for defendant-appellant.

Manuel A. Medrano, John L. Carlton, Assistant United States Attorneys; Los Angeles, CA, and Sean Connelly, Joseph D. Wilson, United States Department of Justice; Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, POOLE, and JOHN T. NOONAN, Jr., Circuit Judges.

Concurrence by Judge NOONAN.

POOLE, Circuit Judge:

Appellant Juan Ramon Matta-Ballesteros appeals his convictions following jury trial on the following charges: (1) committing a crime of violence in aid of racketeering in violation of 18 U.S.C. Sec. 1959; (2) conspiring to kidnap a federal agent engaged in his official duties in violation of 18 U.S.C. Sec. 1201(c); and (3) kidnapping a federal agent engaged in his official duties in violation of 18 U.S.C. Sec. 1201(a)(5). Matta-Ballesteros contends that the district court lacked jurisdiction over him and committed various reversible errors during his trial. We reject his arguments and affirm his convictions.

I

Rafael Caro-Quintero, Ernesto Fonseca-Carrillo, Miguel Angel Felix-Gallardo, Ruben Zuno-Arce, Manuel Ibarra, Miguel Aldana and Javier Barba-Hernandez, all Mexican nationals, jointly operated a marijuana and cocaine trafficking enterprise centered in Guadalajara, Mexico. ¹ The enterprise operated marijuana ranches in various Mexican locations.

Matta-Ballesteros, a Honduran, became involved with the enterprise in 1982 or 1983, and attended meetings where drug trafficking plans were discussed and decided. Felix-Gallardo and Matta-Ballesteros imported large amounts of cocaine into the United States on a number of occasions. At one point during their cocaine trafficking, Matta-Ballesteros and Felix-Gallardo grossed over $5 million a week from this enterprise.

During 1984, the Drug Enforcement Administration (DEA) made several significant seizures of marijuana and cocaine which resulted in substantial losses for the enterprise. At a gathering held after the baptism of Barba-Hernandez' daughter in Guadalajara in September 1984, members of the enterprise--with the exception of Matta-Ballesteros--discussed these losses and suggested that the DEA agent they believed was responsible should be "picked up."

At a meeting held prior to the wedding of Barba-Hernandez' brother in Guadalajara in October 1984, members of the enterprise, including Matta-Ballesteros, met and discussed the DEA seizures as well as a police report file covering one of the major marijuana seizures at Zacatecas, Mexico. The DEA agent responsible for the seizures was again discussed. The enterprise held yet another meeting after the wedding, in which Zuno-Arce suggested that the DEA agent should be "picked up" when his identity was discovered.

By December 1984, Fonseca-Carrillo had identified the responsible DEA agent as Special Agent Enrique Camarena. Fonseca-Carrillo said that he would "take care of" Camarena. In February 1985, Zuno-Arce, Fonseca-Carrillo, Caro-Quintero and Barba-Hernandez met in Guadalajara and once again discussed picking up the DEA agent, finding out how much he knew, and learning who was cooperating with him.

Camarena disappeared on February 7, 1985 after leaving the DEA office in Guadalajara. Out-of-court statements, audiotapes and physical evidence, including hair, carpet fibers, sheet fabric and rope strands, showed that Camarena had been taken to a house at 881 Lope del Vega in Guadalajara, where he was held, tortured, interrogated and finally killed.

Matta-Ballesteros was seen checking out of a hotel in Guadalajara on February 12, 1985, apparently after learning he was under surveillance. Hairs consistent with Matta-Ballesteros's were found in the guest house and bedroom at Lope del Vega, suggesting his presence there sometime after the house had been recarpeted in January 1985.

On April 29, 1985, in Cartagena, Colombia, Matta-Ballesteros was detained by Colombian police on charges unrelated to Camarena's kidnapping and murder. The Colombian police took him to Bogata where DEA agents interviewed him. He denied participating in Camarena's murder but admitted having some knowledge of it, which he refused to share because he feared he would be killed if he did. The United States unsuccessfully sought Matta-Ballesteros's extradition on an unrelated criminal complaint filed in the Southern District of New York and failed to follow through on extradition efforts with regard to a previously dismissed, but newly revived fourteen-year-old charge for escape from federal authorities. Matta-Ballesteros returned to Honduras.

Near dawn on April 5, 1988, Matta-Ballesteros was abducted from his home in Tegucigulpa, Honduras. Aided by Honduran Special Troops, or "Cobras," four United States Marshals bound his hands, put a black hood over his head, thrust him on the floor of a car operated by a United States Marshal, and drove him to a United States Air Force Base in Honduras. The Marshals then moved him to the United States, via the Dominican Republic. Within twenty-four hours of his armed abduction Matta-Ballesteros was a prisoner in the federal penitentiary at Marion, Illinois. The government does not dispute that he was forcibly abducted from his home in Honduras.

The government does dispute his account of how he was treated by his abductors. Matta-Ballesteros claims that while being transported bound and hooded to the United States Air Force Base he was beaten and burned with a stun gun at the direction of the Marshals. He claims that during his flight he was once again beaten and tortured by a stun gun applied to various parts of his body, including his feet and genitals.

Matta-Ballesteros unsuccessfully petitioned for a writ of habeas corpus. Matta-Ballesteros v. Henman, 896 F.2d 255 (7th Cir.1990), cert. denied, 498 U.S. 878, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990). Subsequently, he was convicted in the Northern District of Florida for various narcotics charges and escape. These convictions were upheld on appeal. United States v. Matta, 937 F.2d 567 (11th Cir.1991).

Following that conviction, Matta-Ballesteros was brought before the Central District of California to face charges that he participated in the conspiracy to kidnap and kill Camarena. In the trial which we review, Matta-Ballesteros was charged, tried and convicted of the following: (1) committing, aiding and abetting or conspiring to commit a violent act in support of an enterprise engaged in racketeering, in violation of 18 U.S.C. Sec. 1959; (2) conspiracy to kidnap a federal agent, in violation of 18 U.S.C. Sec. 1201(c); and (3) participating in the kidnapping of a federal agent, in violation of 18 U.S.C. Sec. 1201(a)(5). He was acquitted on charges of murdering a federal agent engaged in his official duties, in violation of 18 U.S.C. Sec. 1111(a).

II

Matta-Ballesteros argues that because of his abduction from Honduras and his being beaten and interrogated during his trip to the United States, the district court was precluded from exercising jurisdiction over him. Specifically, Matta-Ballesteros argues that (a) the extradition treaties between Honduras and the United States prohibit his prosecution, and (b) the shocking nature of his abduction and mistreatment requires dismissal. We review this jurisdictional challenge de novo. United States v. Walczak, 783 F.2d 852, 854 (9th Cir.1986). ²

A

Matta-Ballesteros argues that the extradition treaties between Honduras and the United States preclude his prosecution because of the recent Supreme Court ruling that treaties are self-executing and bestow rights upon individuals. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). However, Alvarez-Machain primarily holds that where the terms of an extradition treaty do not specifically prohibit the forcible abduction of foreign nationals, the treaty does not divest federal courts of jurisdiction over the foreign national. Id. at 664-66, 112 S.Ct. at 2193-95. Alvarez-Machain therefore dictates that, in the absence of express prohibitory terms, a treaty's self-executing nature is illusory.

The treaties between the United States and Honduras contain preservations of rights similar to those which Alvarez-Machain held did not sufficiently specify extradition as the only way in which one country may gain custody of a foreign national for purposes of prosecution. Compare 504 U.S. at 665-66, 112 S.Ct. at 2194-95 with 1909 Honduras-United States Extradition Treaty (37 Stat. 1616; 45 Stat. 2489), Art. VIII; 1933 Inter-Americas Extradition Treaty (49 Stat. 3111), Arts. II-IV, XXI. Nothing in the treaties between the United States and Honduras authorizes dismissal of the indictment against Matta-Ballesteros.

B

The Supreme Court has long held that the manner by which a defendant is brought to trial does not affect the government's ability to try him. Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952).

Though we may be deeply concerned by the actions of our government, it is clear in light of recent Supreme Court precedent that the circumstances surrounding Matta-Ballesteros's abduction do not divest this court of jurisdiction in this case. Since we have already concluded that the relevant treaty does not prohibit the abduction, "the rule in Ker applies, and the court need not inquire as to how respondent came before it." Alvarez-Machain, 504 U.S. at 662, 112 S.Ct. at 2193. ...