# United States v. Francisco Toscanino

> Court of Appeals for the Second Circuit · October 8, 1974 · 500 F.2d 267

URL: https://www.frixlaw.com/law-library/cases/9460821

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Francisco TOSCANINO, Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 8, 1974
- **Citations:** 500 F.2d 267
- **Precedential status:** Published
- **Opinion:** Concurrence by Anderson
- **Judges:** Anderson, Mansfield, Oakes
- **Cited by:** 265 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled — as noted by 2 later courts.
- Negative treatments: 4
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460821

## How later opinions describe it (automated extraction)

- holding that, in extreme circumstances, a district court should divest itself of jurisdiction over a criminal case if the defendant's presence was secured by the government's "deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights"
- finding that state-sponsored kidnapping as alleged violated the territorial integrity of the sovereign and thereby violated provisions of the Charter of the United Nations and the Charter of the Organization of American States
- reversing a lower court ruling that allegations of government kidnaping and torture of a defendant would not require dismissal of the case if proved, and distinguishing prior inconsistent cases on the grounds that they did not involve “violation of international treaties” even…
- describing the defendant’s allegations that he was forced to walk for seven to eight hours at a time, was kicked and beaten, had his fingers pinched with pliers, had alcohol flushed into his nose and eyes, and endured electrodes being attached to his ears, toes, and genitals

## Opinion text

ROBERT P. ANDERSON,
Circuit Judge (concurring in result):
I concur in the result.
My .concurrence is so limited because this case can be disposed of on" due process grounds alone. Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952). The majority opinion well establishes that if the defendant is successful in proving what he has alleged about the highly irregular activities of the Federal agents, this court is not going to sanction or validate them by affirming the conviction of the defendant. United States v. Archer, 486 F.2d 670 (2 Cir. 1973). The courts of this country, in dealing with cases before them, no longer completely disregard the behavior of our police agents when they are operating outside of the national boundaries.
To reach this conclusion, however, this court need not hold that the Bill of Rights has extraterritorial application for foreign nationals. Defendant could show that he was carried into this jurisdiction in violation of the Fourth Amendment, but the Government need not comply with the Fourth Amendment or the United States wire tap laws in foreign jurisdictions. To hold otherwise would be novel and would make unreasonable demands on our foreign agents, whether in law enforcement or national security, who by following the law of the country in which they are staying, could at the same time find themselves in defiance of United States constitutional safeguards.
Further, defendant did not enter this country pursuant to any treaty; he is, therefore, not “clothed” in any treaty rights and cannot invoke the extradition treaty or the charters of the Organization of American States and the United Nations as personal defenses, United States v. Sobell, 142 F.Supp. 515 (S.D.N.Y.1956) (Kaufman, Judge), aff’d 244 *282 F.2d 520 (2 Cir.), cert. den. 355 U.S. 873 , 78 S.Ct. 120 , 2 L.Ed.2d 77 (1957). Violation of the standards laid down by these treaties is again indicative of the denial of due process, but not a defense in and of itself. By and large treaties are to be enforced by governments, rather than by their individual citizens, and neither the United States, Uruguay nor Brazil contemplated that, under these circumstances, a defendant could personally seek to invoke these treaties.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460821. Public record. Not legal advice.