finding fact that U.S. Marshals may have kidnaped defendant in Honduras and tortured him with stun gun applied to his genitals did not impact upon the government’s authority to try him for a crime
How later courts described this case
- finding fact that U.S. Marshals may have kidnaped defendant in Honduras and tortured him with stun gun applied to his genitals did not impact upon the government’s authority to try him for a crime
- noting that a Taser “sends an electric pulse through the body of the victim causing immobilization, disorientation, loss of balance, and weakness”
- in response to allegation that abduction violated extradition treaty the court held that “[i]t is well established that individuals have no standing to challenge violations of international treaties in the absence of a protest by the sovereign involved.”
- district court, following procedure for summary judgment, was not acting inconsistently with the habeas rules governing when a hearing is necessary
Written by the judges who cited it.
The opinion
WILL, Senior District Judge,
concurring.
I concur in the result reached by the majority. I would not, however, have taken the same road to get there. There is no need to disparage or reject Toscanino in this case, which is clearly distinguishable on its facts. First, the torture Toscanino alleged was grossly more egregious than what Matta alleges, although both shock the conscience. Second, and perhaps more importantly, release as contemplated in Toscanino is not an appropriate remedy here. Matta was a fugitive and release would mean effectively commuting his earlier, lawfully imposed sentence, an unwarranted result. That was not the case in Toscanino.
The last time Toscanino was raised in this circuit we refrained from deciding whether to follow it, on the basis that the case in front of us was distinguishable. United States v. Marzano, 537 F.2d 257 (7th Cir.1976). I would have taken that *264 route here too, leaving open the question whether or not to follow it until we are presented with a ease with comparable facts.
It is conceivable to me that, in the words of Justice Rehnquist, there may be cases “in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-32 , 93 S.Ct. 1637, 1642-43 , 36 L.Ed.2d 366 (1973) (entrapment case) (citing Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952) (not an entrapment case)). See also Olmstead v. United States, 277 U.S. 438, 485 , 48 S.Ct. 564, 575 , 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). This court has previously expressed skepticism about whether the government would ever, by outrageous conduct, surrender its authority to prosecute as a matter of due process. E.g., United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989); United States v. Bontkowski, 865 F.2d 129, 131-32 (7th Cir.1989); United States v. Curtis Miller, 891 F.2d 1265, 1271 (7th Cir.1989) (Easterbrook, J., concurring). But we have never foreclosed that possibility — for entrapment cases, excessive force cases, or any other kind of case — and I see no reason to reject Toscan-ino and thereby foreclose it for future cases by our decision today.
I have no doubt that judges will disagree about the level of outrageousness, if any, that it should take to bar judicial process. But the simple fact of disagreement does not make the determination of what “outrageous” conduct would consist of somehow judicially more unmanageable or subjective than, for instance, the balancing that goes into distinguishing a reasonable from an unreasonable search or even guilt from innocence, and I would reserve the possibility that some day we may, given the facts, want the option of attempting that determination.
Finally, the majority states that any excessive force used was applied “during the course of” Matta’s arrest and assumes the arrest did not occur until Matta arrived at the U.S. border. An arrest occurs when a reasonable person, in view of all the circumstances, would believe himself to be under arrest. United States v. Boden, 854 F.2d 983, 991-93 (7th Cir.1988); United States v. Robertson-Steeprow, 833 F.2d 777, 780 (9th Cir.1987); United States v. Borys, 766 F.2d 304, 308-09 (7th Cir.1985). Matta was therefore arrested long before he reached American soil. By that time, he had already been shoved into a van, with a hood over his head, and had been in the company of U.S. Marshals for twenty-four hours. I do not imagine that he was either traveling voluntarily or felt free to leave the marshals during those twenty-four hours. Accordingly, the excessive force here would have been applied after Matta’s arrest and during his pretrial detention before he reached Marion, removing this case from the reach of Graham v. Connor. Graham specifically reserves the question whether a fourth amendment analysis applies “beyond the point at which arrest ends and pretrial detention begins.” 109 S.Ct. at 1871 n. 10. That does, not change the result to be reached in this case, however. Release remains an inappropriate remedy on the facts before us.