U.S. v. Verdugo-Urquidez

Decision Date22 July 1991
Docket NumberVERDUGO-URQUIDE,No. 88-5462,D,88-5462
Citation939 F.2d 1341
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rene Martinefendant-Appellant. *
CourtU.S. Court of Appeals — Ninth Circuit

Patrick Q. Hall, Goldberg, Frant & Hall, San Diego, Cal., for defendant-appellant.

Robert L. Brosio, Asst. U.S. Atty., Chief, Crim. Div., William F. Fahey, Asst. U.S. Atty., Chief, Major Narcotics Section, Steven E. Zipperstein, Asst. U.S. Atty., Chief, Crim. Appeals, Dorothy Shubin, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

William P. Barr, Deputy Atty. Gen., Andrew G. McBride, Associate Deputy Atty. Gen., John E. Barry, Sr. Counsel, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before BROWNING, D.W. NELSON and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

This case presents the question whether the United States breaches its obligations under its extradition treaty with Mexico if it authorizes or sponsors the forcible taking of a Mexican national from that country without the consent of the Mexican government. We hold that it does. We further hold that if the Mexican government formally objects to the treaty breach and a defendant timely raises that breach in a pending criminal proceeding the courts of the United States may not exercise personal jurisdiction over that defendant, provided the Mexican government is willing to accept repatriation. In short, under such circumstances a district court may not subject the defendant to trial, and a conviction obtained must be vacated. In view of our holdings, we remand Verdugo-Urquidez's case to the district court for an evidentiary hearing on the question whether the United States authorized or sponsored his kidnapping and unlawful removal from Mexico to this country without the consent of the Mexican government and on such other matters as may be relevant to the proceeding.


Rene Martin Verdugo-Urquidez ("Verdugo") is a citizen and resident of Mexico. In January 1986, he was apprehended in Mexico by several individuals and transported to the United States, where he was officially taken into custody. On March 16, 1988, a federal grand jury returned a five-count second superseding indictment against Verdugo charging him with various offences, including the murder of United States Drug Enforcement Agency ("DEA") Special Agent Enrique Camarena-Salazar. Verdugo then filed a motion to dismiss the indictment pursuant to the extradition treaty between the United States and Mexico. He alleged that the individuals who apprehended him in Mexico were acting at the behest of the United States government.

In support of his motion, Verdugo attached copies of two letters from the Mexican Embassy to the United States Department of State. In these letters, Mexico lodged what it termed "a formal complaint regarding the kidnapping of" Verdugo by agents of the United States government and asked that the "U.S. judicial authorities" be informed of its position. Verdugo also presented two letters that the Department of State sent to the Mexican Embassy in response to the latter's protest. The Mexican Embassy and the Department of State differed in the characterization of Verdugo's "kidnappers." The Mexican Embassy letter of August 26, 1987, stated that Mexican police officers were surreptitiously hired by the DEA to kidnap Verdugo. By contrast, the State Department--although acknowledging that the Mexican police officers acted in "cooperation" with the United States authorities--claimed that the payment of the Mexican police officers by the DEA was not prearranged.

Despite the dispute over whether Verdugo had been kidnapped by the United States or voluntarily handed over to the United States by Mexican police, the district court did not hold an evidentiary hearing. The court determined that such a hearing was unnecessary because, in its view, even if Verdugo's allegations were correct, they would not warrant dismissal. Citing Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1888), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), the court stated that "an abduction does not violate an extradition treaty." 1

Following a two-month jury trial, Verdugo was convicted of all the charges against him. The district court sentenced him to four consecutive 60-year terms of incarceration (for a total of 240 years), those terms to run concurrently with a life sentence. Verdugo filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

Although Verdugo raises 21 separate issues on appeal, in view of the conclusion we reach below, we need only consider his challenge to the district court's jurisdiction. "If a court lacks jurisdiction over a party, then it lacks 'all jurisdiction' to adjudicate the party's rights, whether or not the subject matter is properly before it." Rankin v. Howard, 633 F.2d 844, 848 (9th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981).


Interpretation of a treaty presents a legal question, which we decide de novo. Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir.1986). Whether the district court had jurisdiction if the treaty was violated is also subject to de novo review. United States v. Layton, 855 F.2d 1388, 1394 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989).


This case presents fundamental issues of first impression that involve the purpose and effect of extradition treaties, the ordering of relations between treaty signatories, the proper rules for interpreting such treaties, the role of the judiciary in enforcing them, and, ultimately, the right of a defendant to object to the court's jurisdiction if he has been abducted in violation of a treaty and a party to the agreement formally protests that violation. No prior reported case has decided the ultimate question we are required to answer here. To perform our task properly, we not only must review the prior case law, but must also examine the reasons nations enter into extradition treaties and their expectations as to the consequences such agreements will have. We must also, of course, consider the specific treaty of extradition that governs the relations between the United States and Mexico.


On January 25, 1980, the United States and Mexico exchanged official ratification notices of the Extradition Treaty Between the United States of America and the United Mexican States ("the Treaty"). 31 U.S.T. 5059, T.I.A.S. No. 9656. The Treaty was in effect at the time Verdugo alleges that he was forcibly abducted from Mexico by the United States, and remains in effect to this day. See U.S. Const. art. VI, cl. 2 (treaties are "Supreme Law of the Land"). Verdugo contends that his abduction violated the Treaty, and that as a result of this violation, the district court was without jurisdiction to try him. The government counters that: (1) if the United States forcibly abducts an individual from another nation there is ordinarily no bar to personal jurisdiction in a criminal trial even when there is an extradition treaty between the United States and that other nation, and even when the other nation formally protests "the treaty violation"; (2) the Treaty's silence as to whether extradition is the exclusive means for bringing a Mexican national to trial in the United States necessitates the conclusion that the treaty does not prohibit kidnapping; and (3) whether there has been a treaty violation is, in any event, not an issue that a defendant may properly present to the judiciary. 2 These arguments are not neatly compartmentalized and tend to overlap in a number of respects. Accordingly, we address the government's contentions as and when they appear to be pertinent to the controlling issues in the case.


The government argues initially that this case falls under the so-called Ker/Frisbie rule. Named for the two Supreme Court decisions of Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), this "rule" states that "the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.' " Id. at 522, 72 S.Ct. at 511. Although courts, commentators, and politicians alike have often taken this statement to imply that the means by which a defendant is brought before the court are never relevant to the jurisdictional question, see generally Kester, Some Myths of United States Extradition Law, 76 Geo.L.J. 1441, 1449-55 (1988), our review of the relevant cases indicates that this is a serious overstatement. In fact, there are numerous cases in which the method by which a defendant has been brought before the court has been held to defeat jurisdiction. See infra at 1351 (discussing the principle of specialty). No recorded case has ever addressed the question whether when the United States forcibly removes an individual from another nation in violation of an extradition treaty between the United States and that other nation, and when the other nation formally protests that violation, the defendant may successfully interpose an objection to the court's exercise of jurisdiction over his person. Whether a defendant may prevail on such an objection remains an open question.


We now turn to the Ker/Frisbie line of cases. We begin with Ker. Ker was a United States citizen who was wanted for trial on larceny charges in Illinois. After he fled to Peru, a messenger was sent by the President to retrieve him from the Peruvian authorities in accordance with the extradition treaty between the United States and Peru. 119 U.S. at 438, 7 S.Ct. at 226. However, instead of presenting the extradition papers to...

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