United States v Toscanino

Date08 October 1974
CourtU.S. Court of Appeals — Second Circuit
United States, Court of Appeals, 2nd Circuit.

(Anderson, Mansfield and Oakes, Circuit Judges)

United States
and
Toscanino

International law in general — Relation to municipal law — Whether individual allegedly abducted in violation of treaty can invoke treaty violation in municipal court — Effect of absence of protest by State in which abduction took place — The law of the United States

State territory — In general — Nature of territorial sovereignty — Alleged abduction of Italian citizen from Uruguay by United States officials — Whether an infringement of territorial sovereignty contrary to the Charter of the United Nations and the Charter of the Organization of American States — The law of the United States

The individual in international law — In general — Position of individuals in international law — Violation of treaty provisions prohibiting infringements of territorial sovereignty — Whether violations can be invoked by individual before municipal courts — The law of the United States

Treaties — Conclusion and operation — Operation and enforcement — Whether individual can invoke treaty violation in municipal courts — The law of the United States

Jurisdiction — In general — Territorial jurisdiction — Exemptions from and restrictions upon territorial jurisdiction — Irregular apprehension — Italian citizen allegedly abducted to the United States from Uruguay — Whether United States court has jurisdiction to try him — Alleged kidnapping a breach of the Charter of the United Nations and the Charter of the Organization of American States — Whether individual can invoke treaty violations — Alleged telephone-tapping by United States officials in foreign countries Whether covered by United States constitutional safeguards — The law of the United States

Summary: The facts:—The defendant, an Italian citizen, was convicted in the United States District Court of conspiracy to import and distribute narcotics. He appealed to the Court of Appeals on the ground that the District Court had lacked jurisdiction. He alleged that he had been kidnapped from Uruguay by persons acting as agents of the United States, taken to Brazil, where he had been interrogated, tortured and finally brought, under sedation, to the United States. He also alleged that United States agents in Uruguay had tapped his telephone contrary to United States law.

Held:—The case was remanded to the District Court. Although the general rule was that a United States court had jurisdiction over someone who was physically present before it, no matter how his presence had been obtained, that rule had been eroded by a number of recent decisions on due process and was no longer applicable in a case involving kidnapping and torture. Moreover, if Toscanino's allegations were true, the United States had been guilty of violating its treaty obligations under Article 2 of the Charter of the United Nations and Article 17 of the Charter of the Organization of American States, since it would have infringed the territorial sovereignty of Uruguay. In such circumstances, it would be an abuse of process for the District Court to exercise jurisdiction.

The constitutional safeguards affecting telephone-tapping applied to the activities of United States officials abroad, even where the victim was a foreign national.

The case was therefore remanded to the District Court for further proceedings to inquire into the truth of Toscanino's allegations.

per Circuit Judge Anderson (concurring in the result): the case could have been decided on due process grounds alone. It was unnecessary to hold that constitutional safeguards had extraterritorial application for foreign nationals. Moreover, the defendant could not personally invoke a treaty violation by the United States.

Further proceedings:—On 8 October 1974 the Court of Appeals denied a rehearing en banc. Circuit Judge Mulligan appended a dissenting opinion in which Circuit Judge Timbers concurred.1

On remand to the District Court, Chief Judge Mishler held that Toscanino had failed to produce any evidence which showed alleged participation by United States officials in the alleged kidnapping and torture and therefore refused Toscanino's motion to dismiss the indictment for want of jurisdiction.2

The following is the text of the judgment of the Court of Appeals of 15 May 1974, delivered by Circuit Judge Mansfield. The opinion of Circuit Judge Anderson appears at p. 204 below. The decision of 8 October 1974, refusing a rehearing en banc was given without reasons but the dissenting opinion of Circuit Judge Mulligan appears at p. 205 below.

Francisco Toscanino appeals from a narcotics conviction entered against him in the Eastern District of New York by Chief Judge Jacob Mishler after a jury trial. Toscanino was sentenced to 20 years in prison and fined $20,000. He contends that the court acquired jurisdiction over him unlawfully through the conduct of American agents who kidnapped him in Uruguay, used illegal electronic surveillance, tortured him and abducted him to the United States for the purpose of prosecuting him here. We remand the case to the district court for further proceedings in which the government will be required to respond to his allegations concerning the methods by which he was brought into the Eastern District and the use of electronic surveillance to gather evidence against him.

Toscanino, who is a citizen of Italy, and four others were charged with conspiracy to import narcotics into the United States in violation of 21 U.S.C. §§ 173 and 174 in a one count indictment

returned by a grand jury sitting in the Eastern District on February 22, 1973. The other defendants were Armando Nicolay, Segundo Coronel, Roberto Arenas and Umberto Coronel. Also named as a conspirator but not as a defendant was one Hosvep Caramian. At a joint trial of all the defendants (except for Nicolay who had fled to Argentina), which began on May 22, 1973, the only government witness against Toscanino was Caramian1 who testified that he met with Toscanino in Montevideo, Uruguay, during the summer of 1970 and agreed to find buyers for a shipment of heroin into the United States, which would be delivered by Nicolay. Caramian testified further that in November, 1970, he left Uruguay and came to the United States where he met with Arenas and the Coronel brothers who agreed to buy the heroin. On November 30, 1970, Caramian received part of Toscanino's shipment delivered by Nicolay in Miami, Florida, but ultimate distribution of the narcotics was intercepted by government agents who posed as buyers from Arenas and the Coronel brothers. Toscanino, testifying in his own behalf, denied any knowledge of these transactions. On June 5, 1973, the jury returned a verdict of guilty against him and all the other defendants.

Toscanino does not question the sufficiency of the evidence or claim any error with respect to the conduct of the trial itself. His principal argument, which he voiced prior to trial and again after the jury verdict was returned, is that the entire proceedings in the district court against him were void because his presence within the territorial jurisdiction of the court had been illegally obtained. He alleged that he had been kidnapped from his home in Montevideo, Uruguay, and brought into the Eastern District only after he had been detained for three weeks of interrogation accompanied by physical torture in Brazil. He offered to prove the following:

‘On or about January 6, 1973 Francisco Toscanino was lured from his home in Montevideo, Uruguay by a telephone call. This call had been placed by or at the direction of Hugo Campos Hermedia. Hermedia was at that time and still is a member of the police in Montevideo, Uruguay. In this effort, however, and those that will follow in this offer, Hermedia was acting ultra vires in that he was the paid agent of the United States government …

‘… The telephone call ruse succeeded in bringing Toscanino and his wife, seven months pregnant at the time, to an area near a deserted bowling alley in the City of Montevideo. Upon their arrival there Hermedia together with six associates abducted Toscanino. This was accomplished in full view of Toscanino's terrified wife by knocking him unconscious with a gun and throwing him into the rear seat of Hermedia's car. Thereupon Toscanino, bound and blindfolded, was driven to the Uruguayan-Brazilian border by a circuitous route. …

‘At one point during the long trip to the Brazilian border discussion was had among Toscanino's captors as to changing the license plates of the abductor's car in order to avoid detection by the Uruguayan authorities. At another point the abductor's car was abruptly brought to a halt, and Toscanino was ordered to get out. He was brought to an apparently secluded place and told to lie perfectly still or he would be shot then and there. Although his blindfold prevented him from seeing, Toscanino could feel the barrel of the gun against his head and could hear the rumbling noises of what appeared to be an Uruguayan military convoy. A short time after the noise of the convoy had died away, Toscanino was placed in another vehicle and whisked to the border. There by pre-arrangement and again at the connivance of the United States government, the car was met by a group of Brazilians who

took custody of the body of Francisco Toscanino.

‘At no time had there been any formal or informal request on the part of the United States of the government of Uruguay for the extradition of Francisco Toscanino nor was there any legal basis to justify this rank criminal enterprise. In fact, the Uruguayan government claims that it had no prior knowledge of the kidnapping nor did it consent thereto and had indeed condemned this kind of apprehension as alien to its laws.

‘Once in the custody of Brazilians, Toscanino was brought to Porto Alegre where he was held incommunicado for eleven hours. His requests to consult with counsel, the Italian...

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