Petition — Lovato v. United States

tt JR_,CLERK

Supreme Court of the United tatty

Octobe a as 197

No ab 230

Joz DAMION LOVATO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

RON MINKIN,

Attorney at Law,

316 West Second Street,

Suite 400,

Los Angeles, Calif. 90012,

(213) 485-1001,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

Ro ccnmuboeuaiinns 1

EERE EASE ar Pn e t a ce ORE ALPE 1

I css npechilauniatanedecndbeneties 2

Constitutional Provision Involved .........................--- 2

I a cesinsibinteenemmace 2

SES TORE De eer OR a ae 5

Reasons for Granting the Writ -.........................-....- 10

1. The Petitioner Was Denied Due Process of

Law Where He Had Offered Sufficient and

Credible Evidence That He Had Been Pur-

posely and Physically Mistreated and Illegal-

ly and Forcibly Abducted Into the Jurisdic-

tion of the Court and Where the District

Court Failed to Grant an Evidentiary Hear-

ing to Determine if the Court Was Re-

quired to Divest Itself of Jurisdiction Over

PIII oid icincdinicmtnteanaiianbigdatineodeninanne

i

Appendix A. Opinion of United States Court of

Appeals for the Ninth Circuit -................. App. p.

10

15

TABLE OF AUTHORITIES CITED

Cases Page

Byars v. United States, 273 U.S. 28, 47 S.Ct. 248,

We I SIE Giese whititiccentcvosetatiicadielem omnia. 15

Corngold v. United States, 367 F.2d 1 (9th Cir.

SOD Seiericictaniiai hearin a itiatibiaiadiia classi hie Re 15

Frisbie v. Collins, 342 U.S. 519 (1952) -.00....000... 11

Giordenello v. United States, 357 U.S. 480, 78 S.Ct.

+ eee + 8. EG, | | ore 12

Henry v. United States, 361 U.S. 98, 80 S.Ct. 168,

Ee UG , Se nee 12

Ker v. Illinois, 119 U.S. 436, 444 (1888) —...000000.. 11

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.

SI I a 12

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

FR = Ff 2) — Peer geeere ere eras 12

Rochin v. California, 342 U.S. 165, 72 S.Ct. 205,

ft 5. _. ERG NSS Cee 12

Silverman v. United States, 365 U.S. 505, 81 S.Ct.

7 eg | gw. fy | ee ee 12

United States v. Carrion, 463 F.2d 704 (8th Cir.

TRISTATE eer Nesarer veomnnen aN es RH AEA 9 ER 15

United States v. Davis, 482 F.2d 893, 904 (9th

SRE ere aa kuin Hw Nene 15

United States v. Guest, 383 U.S. 745, 755-756 ...... 15

United States v. Russell, 411 U.S. 423, 430-431, 93

S.Ct. 1637, 36 L.Ed.2d 366 (1973) —...000000... a. Sa

United States v. Thoresen, 428 F.2d 654 (9th Cir.

SUTITTD cisccisndchahiasniimaiclsdasaitiadibdiidbagtinidaiiiaame te digaaadacaa se laa. 15

United States v. Toscanino, 500 F.2d 267 (1974)..

entntaseataentaneniaceanetinnensntiseenannesaatamensentanltetnnittietiie 11, 13, 14

Page

United States, ex rel. Lujan v. Gengler, 510 F.2d

I i eesernidiiemete 11, 14

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.

aig I RE CUD occ cicecccccenssccsenscesecee 12

Statutes

United States Code, Title 18, Sec. 371 -................ 2

United States Code, Title 21, Sec. 174 -.......02000022.... 3

United States Code, Title 21, Sec. 176(a) ............ 2

United States Code, Title 21, Sec. 331(g)(2) ...... 2

United States Code, Title 21, Sec. 331(g)(2)(3) .. 2

United States Code, Title 21, Sec. 331(g)(3) ...... 2

United States Code, Title 21, Sec. 4705(a) -........... 3

United States Code, Title 26, Sec. 4742(a) ............ 3

United States Code, Title 28, Sec. 1254(1) -........... 1

United States Constitution, First Amendment ........ 2

United States Constitution, Fourth Amendment ...... 12

United States Constitution, Fourteenth Amendment

$3 a ee

IN THE

Supreme Court of the United States

October Term, 1975

Eo

JozE DAMION LOVATO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

The petitioner, Joe Damion Lovato, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Ap

peals for the Ninth Circuit, entered in this proceeding

on July 14, 1975.

Opinion Below.

The opinion of the United States Court of Appeals

for the Ninth Circuit is unreported and is printed for

the convenience of the Court in Appendix A hereto.

Jurisdiction.

The judgment of the Court of Appeals for the Ninth

Circuit was entered on June 16, 1975. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

~~

Questions Presented.

Petitioner was denied due process of law in that the

District Court failed to grant an evidentiary hearing to

determine if the court was required to divest itself of

jurisdiction over the petitioner after petitioner had of-

fered sufficient and credible evidence that he had been

illegally and forcibly abducted into the jurisdiction of

the court.

Constitutional Provision Involved.

The First Amendment to the United States Constitu-

tion provides that no person shall be deprived of life,

liberty or property without due process of law. The

Fourteenth Amendment to the United States Constitu-

tion protects these rights of all citizens from similar ac-

tions by state entities.

Statement of the Case.

Petitioner was charged by Indictment No. 5902 CD,

filed on April 22, 1970, in the United States District

Court, Central District of California. There was a total

of eight defendants named in the fourteen-count indict-

ment. The petitioner was charged in Count One with

violation of 18 U.S.C., Section 371; 21 U.S.C. §331

(g)(2)(3), that petitioner confederated and conspired

with others to possess for sale and to sell amphetamine

tablets ard barbiturate capsules and dangerous drugs

in violation of 21 U.S.C., Section 331(g)(2) and Sec-

tion 331(g)(3); Count Two, violation of 21 U.S.C.,

Section 176(a), having knowingly received, con-

cealed and facilitated the transportation of marijuana

known to have been illegally imported into the United

States; Count Three, violation of 21 U.S.C., Section

176(a), having sold marijuana known to have been

_—

illegally imported into the United States; Count Four,

violation of 26 U.S.C., Section 4742(a), having trans-

ferred marijuana to an agent of the FBI without ob-

taining a written order issued by the Secretary of the

Treasury; Count Five, violation of 21 U.S.C., Section

174, having conspired to receive, conceal, transport

and sell heroin; Count Six, violation of 21 U.S.C., Sec-

tion 174, having received, concealed and transported

heroin known to have been illegally imported into the

United States; Count Seven, violation of 21 U.S.C., Sec-

tion 174, having sold heroin to an agent of the FBI;

Count Eight, violation of 21 U.S.C., Section 4705(a),

having sold, exchanged and given away heroin to an

assistant of the FBI without a written order issued by

the Secretary of the Treasury; Count Nine, violation of

21 U.S.C., Section 174, having received, concealed and

facilitated the transportation of heroin; Count Ten,

violation of 21 U.S.C., Section 174, having sold heroin

to an assistant of the FBI; Count Eleven, violation of

26 U.S.C., Section 4705(a), having sold, exchanged

heroin to an assistant of the FBI without a proper writ-

ten order; Count Twelve, violation of 21 U.S.C., Section

174, having received, concealed, transported heroin;

Count Thirteen, violation of 21 U.S.C., Section 174,

having sold heroin to an undercover agent of FBI and

DD; Count Fourteen, violation of 26 U.S.C., Section

4705(a), having sold heroin to an undercover assistant

of the FBI.

On May 3, 1974, petitioner was arraigned and plead-

ed not guilty to all counts. Jury trial was set for June

25, 1974.

On June 6, 1974, petitioner’s motion to set bail was

heard and granted. Bail was reduced to $50,000.00 cor-

—_

porate surety on the condition that the petitioner not

leave the County of Los Angeles.

On June 10, 1974, the Government presented a mo-

tion for change of petitioner’s conditions for release.

Court ordered the motion denied.

On June 18, 1974, the court held a motion by at-

torney Ron Minkin to substitute in as attorney for the

petitioner and for continuation of trial. The motion for

substitution was granted and trial was continued to Au-

gust 13, 1974. Condition of bond on the petitioner re-

mained the same.

On July 30, 1974, petitioner filed a notice of motion

to dismiss indictment for lack of jurisdiction, supported

by memorandum of points and authorities, and affi-

davits of petitioner, Joe Lovato, and his attorney, Ron

Minkin. On August 7, 1974, the Government filed an

opposition to petitioner's motion for orders to dis-

miss indictment for lack of jurisdiction.

On August 13, 1974, petitioner’s attorney, Ron Min-

kin, presented a motion to have an evidentiary hearing

on petitioner’s motion for order to dismiss indictment

for lack of jurisdiction. The court ordered the hearing

of the motion continued to August 15, 1974. Jury and

one alternate was impaneled and sworn. Court ordered

continuance of jury trial to August 16, 1974.

On August 15, 1974, hearing of petitioner’s motion

for order to dismiss was continued to August 16, 1974.

On August 16, 1974, the court heard petitioner’s at-

torney for a motion for evidentiary hearing regarding

motion to dismiss indictment for lack of jurisdiction.

Motion was denied without prejudice.

_—

On August 19, 1974, trial by jury began. Petitioner

requested waiver of trial by jury and waiver of jury

was granted.

On August 20, 1974, petitioner pleaded guilty to

Counts V and X of the Indictment. Court found the

petitioner guilty of Counts V and X. Probation and

sentence hearing was set for September 23, 1974.

On September 23, 1974, petitioner’s counsel renewed

motion to dismiss and a motion for mistrial as to counts

6, 7, 8, 9, 11, 12, 13 and 14. Motion was granted

Court ordered petitioner committed to the custody of the

United States Attorney General for a period of five years

as to Count 5 and five years as to Count 10, to run

concurrently with each other. Bond on appeal was set

in the amount of $50,000.00 corporate surety on the

condition that petitioner not leave the jurisdiction of the

United States District Court, for the Central District of

California, and petitioner is to report to his attorney

every other Monday morning. On motion of the United

States Attorney, Counts 1, 2, 3 and 4 were ordered

dismissed as to the petitioner.

On September 23, 1974, the petitioner, through his

attorney, filed a Notice of Appeal.

On July 14, 1975 the United States Court of Appeals

for the Ninth Circuit affirmed the decision of the dis-

trict court.

Statement of Facts.

On July 30, 1974, petitioner through his attorney,

Ron Minkin, filed a notice of motion to dismiss indict-

ment for lack of jurisdiction. On August 13, 1974,

petitioner’s attorney moved the court to grant an eviden-

tiary hearing on petitioner’s motion.

ne SS sien

In petitioner’s affidavit for such motion, hereinafter

quoted in total, the following allegations were made:

not given any food or medical treatment and was

in the next morning placed in a vehicle that was

“AFFIDAVIT/DECLARATION

OF JOE DAMION LOVATO

State of California, County of Los Angeles—ss.

“I, JOE DAMION LOVATO, being first duly

sworn, under penalty of perjury, depose and say:

“I am a natural born citizen of the United States

of America.

“That I was residing in Guadalajara, Jalisco,

Republic of Mexico on January 30, 1974.

“On January 30, 1974, I was taken into cus-

tody by officers and enlisted men of the Republic

of Mexico, Department of the Army and I believe

a member of the American Consulate in Guadala-

jara was also present. I was taken from Guadala-

jara on January 30, 1974, to a military facility

ten or fifteen minutes outside of Guadalajara. I

was blindfolded, so that my vision was impaired

and I was handcuffed by agents of the Mexican

Government. At the first military facility that I

was detained, I was handcuffed, my eyes remained

_ bandaged and I was forced to keep my head low-

ered at all times. Before my eyes were covered, I

observed the vehicle in which I was forcibly

confined in being followed by a Ford Mustang

automobile that followed us until the four Mexican

nationals covered my eyes. From my familiarity

with Guadalajara, I believe that I was transferred

from the first military facility to a military airfield

that is controlled by the Fourth Regiment or Divi-

sion of the Mexican Military Air Service. At the

airfield, I was kept confined in a small room, was

followed by an American Government car for four

or five hours. At 2:00 p.m., in the afternoon of

the second day, approximately January 31, 1974,

I again observed the 1973 Ford Mustang con-

tinue to follow the vehicle in which I was forcibly

being transported north toward the United States

border. During my period of forcible detention by

officials of the Mexican Government, I was never

advised of any violations of law that I was accused

of committing while in Mexico. The only thing that

I was told was that they had been requested by

American officials to arrest me and transfer me to

the American border where I would be turned

over to American authorities because the Ameri-

can authorities had been looking for me for a long

time. During the time that it took to travel

from the military airfield to the American border,

the Mexican authorities who identified themselves

to me by badges, but not by names, made several

telephone calls, they said, to the people who had

requested my arrest that were paying for my re-

turn to the United States. I was forcibly trans-

ferred by the Mexican authorities to Nuevo Laredo

and the Mexican authorities in whose custody I

was in advised the Mexican border authorities

that they had an American prisoner whom they

were going to deliver to the American authorities

in Laredo, Texas. At the Nuevo Laredo border

station, Nuevo Laredo, Mexico, in the State of

Tamaulipas, I again saw the Ford Mustang auto-

mobile blinking its lights in a signal fashion and I

was removed from the Mexican Government ve-

a

hicle at Nuevo Laredo on February 1, 1974, at

or about 3:00 a.m. I was forced to sign some

documents with the Mexican authorities and told

by the Mexican authorities to sign them or else! I

was not permitted to read the papers, nor was I

physically capable of reading the papers in that the

material used to bind my face and eyes had im-

paired my vision and I could only observe certain

matters, but I was unable to read. After being

forced to sign these papers, the Mexican Govern-

ment officials disarmed themselves, put me back

into the Mexican Government vehicle and drove to

the American border station at Laredo, Texas. At

that time my captors showed their badges of iden-

tification to American customs officers and we

were directed to pull over to where MR. LEO AR-

MIJO of the Federal Bureau of Investigation was

waiting and upon being turned over to MR. AR-

MIJO, MR. ARMIJO told me that he had been

looking for me for a long time; that I was wanted

in San Diego and Los Angeles. MR. ARMIJO

read my rights, and there were two other Ameri-

cans present and I was told that I had a brother in

Mexico, LEO LOVATO, and if I tell them where

he could be located, so that they could get him,

they would tell the judge to go easy on me. I

was held in Laredo, Texas for 17 days and in El

Rio, Texas; La Tuna, New Mexico, until I was

brought to San Diego on or about March 11, 1974.

I asked for medical treatment in Laredo, Texas,

and was treated at the hospital in Laredo, Texas.

“From the beginning of my capture in Guadala-

jara, by agents of the Mexican and United States

Governments, attempts were made to intimidate me

—

psychologically and I was subjected to extreme

mental and physical torture. I was denied food,

drink and access to toilet facilities; I was not al-

lowed to relieve my bowels or bladder; the band-

ages that were used to blindfold me caused a bleed-

ing reaction, which necessitated receiving medical

attention in Laredo, Texas; I was handcuffed

continuously until being turned over the American

authorities in Laredo, Texas. At times while I was

held prisoner in Mexican military establishments, I

was bound and suspended from rods thrust through

my arms, which were handcuffed to the rear of me.

I was told that I would be taken to the United

States border, dead or alive, that it did not make

any difference to them, as the Mexican-American

officials advised me that they were being paid to

get me to the border one way or the other and that

any attempt to escape would result in my death.

“The following named persons are all residents

of Guadalajara, Mexico, and are witnesses to the

events herein described and can verify my declara-

tion and affidavit.

1. JOSE ROMERO

ROGELIO GARCIA

RAFAEL OCHOA

JUAN ALFERES

FIDEL ALFERES

“T had been living a peaceful, law-abiding life,

engaged in the livestock business in the Republic

of Mexico since 1970.

“I declare, under penalty of perjury, that the

foregoing is true and correct.”

AP YN

—

REASONS FOR GRANTING THE WRIT.

1. The Petitioner Was Denied Due Process of Law

Where He Had Offered Sufficient and Credible

Evidence That He Had Been Purposely and Phys-

ically Mistreated and Illegally and Forcibly Ab-

ducted Into the Jurisdiction of the Court and Where

the District Court Failed to Grant an Evidentiary

Hearing to Determine if the Court Was Required to

Divest Itself of Jurisdiction Over the Petitioner.

In the case at bar, prior to trial the petitioner moved

the district court for an evidentiary hearing to present

his allegations that he had been forcibly and illegally

abducted into the territorial jurisdiction of the Court.

In support of that motion, the petitioner alleged in an

affidavit, that during the course of his abduction from

Mexico to the United States. ibe had been bound and

suspended from rods thrust through his arms which

were handcuffed behind him; his eyes had been band-

aged in such a manner as to impair his vision and to

later necessitate medical treatment; he had been denied

food, drink, medical treatment and access to toilet

facilities. Also included among the allegations was that

while he had been kidnapped by enlisted men of the

Republic of Mexico, Department of the Army, at one

point he noticed the presence of an American Govern-

ment vehicle and at other times was able to observe

the presence of a Ford Mustang automobile. The peti-

tioner also stated that he had been told that United

States officials had requested and had paid Mexican

authorities for his return to the United States. Included

in the affidavit were the names of possible witnesses

to the events concerning his forcible abduction. Later

the Assistant United States Attorney stipulated, “(t)hat

the United States, through the Federal Bureau of In-

vestigation, requested Mexican authorities to locate,

arrest and return the defendant to the United States.”

Record on Appeal, pages 62-3.

Under Ker v. Illinois, 119 U.S. 436 (1888) and

Frisbie v. Collins, 342 U.S. 519 (1952), the Supreme

Court has set forth the rule that the manner in which

a defendant is brought into the jurisdiction of the court

does not affect the court’s power to proceed. However,

in the recent case of United States v. Toscanino, 500 F.

2d 267 (2d Cir. 1974), it was held that in view of the

Supreme Court’s expanded interpretation of “due proc-

ess”, the “Ker-Frisbie” rule can no longer be construed

as applicable to a situation where a defendant was

brought into the United States, as a result of outrageous

and reprehensible conduct by government agents. See

also United States ex rel. Lujan v. Gengler, 510 F.2d

62 (2d Cir. 1975).

The Court in Toscanino, supra, stated that this hold-

ing was compelled by the recognition that the Supreme

Court decisions since Ker and Frisbie, supra, have ex-

panded the interpretation of due process from the

guarantee of “fair procedure at trial” to the protection

against pretrial police misconduct, and thus “unmis-

takably contradict its pronouncement in Frisbie, supra,

that “due process of law is satisfied when one present

in court is convicted of crime after being fairly apprised

of the charges against him and after a fair trial in

accordance with constitutional procedural safe-

guards.” Citing United States v. Russell, 411 U.S. 423,

1The validity of Ker is also raised by the following statement

in that case: “In fact that treaty was not called into operation,

was not relied upon. was not made the pretext of arrest, and

the facts show that it was a clear case of kidnapping . . . with-

out any pretense of authority under the treaty or from the Gov-

ernment of the United States.” Ker, supra, at 443. (Emphasis

(This footnote is continued on next page)

= =

430-431, 93 S.Ct. 1637, 36 L.Ed. 2d 366 (1973);

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.

2d 1081 (1961); Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Wong Sun v.

United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d

441 (1963); Silverman v. United States, 365 U.S. 505,

81 S.Ct. 679, 5 L.Ed.2d 734 (1961).

For example, in Rochin v. California, 342 U.S. 165,

72 S.Ct. 205, 96 L.Ed. 183 (1952), in reversing the

conviction of a defendant based on evidence received

by pumping his stomach against his will, Justice Frank-

furter stated, “(i)t has long since ceased to be true

that due process of law is heedless of the means by

which otherwise relevant and credible evidence is ob-

tained.” Although the instant case does not involve a

question of an illegal seizure of evidence, is it any less

true that due process of law is not heedless of the

means by which a defendant is brought to trial? It is

well established that the parameters of due process ex-

tend beyond its manifestation in the exclusionary rule.

An arrest is said to constitute a seizure of the person

in terms of the Fourth Amendment. See Henry v.

United States, 361 U.S. 98, 100-101, 80 S.Ct. 168,

4 L.Ed.2d 134 (1959); Giordenello v. United States,

357 U.S. 480, 485-488, 78 S.Ct. 1245, 2 L.Ed.2d

1503 (1958); Wong Sun v. United States, 371 U.S.

471, 479, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963);

Frankel, Concerning Searches and Seizures, 34 Harv.

L.Rev. 361 (1921). And the Fourth Amendment con-

tains prohibitions not only as to seizures without prob-

added.) Under present law, it is well established that even where

illegal conduct by a Government official is not specifically au-

thorized, it is the Government who must nevertheless be held

responsible for acts of its agents.

= =

able cause but “unreasonable seizures” as well. The

policy reasons behind the exclusionary rule are just as

compelling in the case of the illegal seizure of evidence

as in the illegal seizure of a person by way of an “un-

reasonable” arrest. In either case, the two-fold obliga-

tory considerations of the court must be to deter ex-

cesses of governmental misconduct and to preserve the

respect for and integrity of the judicial processes. Al-

though by requiring a court to divest itself of juris-

diction illegally obtained would in effect confer total

immunity to criminal prosecution, this result is no differ-

ent than the practical effect in the majority of cases

where the exclusionary rule is applied. As drastic as

this remedy may seem, it serves not to expand existing

constitutional rights, but to guarantee that the specific

dictates of the Constitution are more than empty com-

mands.

In the instant case, the allegation of the petitioner,

if proved to be true, constitutes not only an unreason-

able seizure of his person, but one in clear violation

of due process of law. The petitioner’s affidavit stated

that during the course of his abduction from Mexico

to the United States, he had been bound and suspended

from rods thrust through his arms which had been hand-

cuffed behind him; his eyes had been bandaged in such

a manner as to impair his vision and which later

necessitated medical treatment: he had been denied

food, drink, medical treatment and access to toilet facili-

ties. Although perhaps not reaching the magnitude of

the governmental misconduct alleged by Toscanino,

nevertheless the petitioner suffered more than minor

irregularities and violations of a citizen’s justifiable ex-

pectation of fair treatment under the Constitution.

cnslliliieds

In United States ex rel. Lujan v. Gengler, supra, the

Second Circuit Court of Appeals, in further clarifying

its decision is Toscanino, supra, as being applicable to

situations involving violations of due process, refused

to grant relief to a defendant who alleged “no depriva-

tion greater than that which he would have endured

through lawful extradition.” supra at 1205. Assuming

the Lujan holding to be the correct statement of the

law, the facts alleged in the instant case come more

under the holding of Toscanino than Lujan, supra.

In Lujan the defendant’s charges were apparently de-

void of any allegations of physical or psychological

abuses upon the defendant. On the other hand, in the

present case, it cannot seriously be contended that the

petitioner Lovato had received the same type of

treatment he would have had had he been lawfully

extradited. It is not to be assumed that denial of food,

medical treatment and access to toilet facilities and

being suspended from rods are all part of the normal

procedures in a lawful extradition or arrest.

The Court of Appeals for the Ninth Circuit in deny-

ing the petitioner relief, concluded that his “allegations

amount to little more than the scenario of a routine ex-

pulsion by Mexican officers of an undesirable alien.”

Whatever may be a correct characterization of Mexi-

can procedures, officials of the United States Govern-

ment are bound to act within the bounds of the

Constitution, whether home or abroad and where the

actions of foreign officials were at the instigation of the

United States Government, the responsibility of the

latter cannot be disclaimed. The mere fact that the

United States Government may not have been directly in-

volved in all aspects of the abduction, does not preclude

the Government from being held responsible. As stated

==

in United States v. Davis, 482 F.2d 893, 904

(9th Cir. 1973), “. . . even if governmental involve-

ment at some point . . . could be characterized ac-

curately as mere ‘encouragement,’ or as peripheral, or

. one of several cooperative forces leading to the

(alleged) constitutional violation, see United States v.

Guest, 383 U.S. 745, 755-756, that involvement would

nevertheless be ‘significant’ for purposes of the Fourth

Amendment.” See also Corngold v. United States, 367

F.2d 1 (9th Cir. 1967); Byars v. United States, 273

U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520.

In the instant case, the papers in support of the mo-

tion to dismiss alleged facts with sufficient definiteness,

clarity and specificity to enable the District Court to

conclude that relief must be granted if the facts are al-

leged to be true. Therefore, the court was in error in

denying the petitioner an evidentiary hearing on the

matter to determine whether the petitioner’s right of

due process had been violated and whether he was en-

titled to relief.

United States v. Carrion, 463 F.2d 704 (9th Cir.

1972);

United States v. Thoresen, 428 F.2d 654 (9th

Cir. 1970).

Conclusion.

In view of the foregoing reasons, it is respectfully

submitted that this petition for certiorari should be

granted.

RON MINKIN,

Attorney at Law,

Attorney for Petitioner.

APPENDIX A.

Opinica.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

United States of America, Appellee, v. Joseph Damion

Lovato, Appellant. No. 74-3088.

Appeal from the United States District Court for the

Central District of California.

Before: KOELSCH and GOODWIN, Circuit Judges,

and WOLLENBERG,* District Judge.

PER CURIAM:

Defendant asserts that Mexican Army personnel, act-

ing in effect as agents of the United States, engaged in

misconduct in the course of his expulsion from that

country and delivery to the United States officers at the

border; he contends that he is entitled to have his

prosecution for offenses against the United States termi-

nated under the supervisory power of the courts in

order to discourage prosecutorial misconduct. We adhere

to our former decisions, and affirm this narcotics con-

viction.

Lovato relies upon United States v. Toscanino, 500

F.2d 267 (2d Cir.), petition for rehearing en banc

denied, 504 F.2d 1380 (1974). We need not decide

whether, if faced with a set of facts like those of Tos-

canino, we might find that decision helpful. The allega-

tions of official participation by United States officers

in Lovato’s repatriation (by force) from Mexico fall

*The Honorable Albert C. Wollenberg, United States District

Judge for the Northern District of California.

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within the Ker-Frisbie doctrine’ and an unbroken line

of cases in this circuit holding that forcible return to

the jurisdiction of the United States constitutes no bar

to prosecution once the defendant is found within the

United States.”

We note further that the Second Circuit, after its de-

cision in Toscanino, has refused to extend that holding

to a Toscanino codefendant who also claimed that he

had been kidnapped by South Americans who were the

paid agents of, and directed by, United States govern-

ment agents. See United States ex rel. Lujan v. Gengler,

[510 F.2d 62] (2d Cir. 1975). The Lujan case makes

it clear that even in the light of Toscanino, the

Second Circuit continues to follow the Ker-Frisbie line

of cases unless the person claiming that he was kid-

napped makes a strong showing of grossly cruel and

unusual barbarities inflicted upon him by persons who

can be characterized as paid agents of the United States.

Cf. In re Weir, 495 F.2d 879 (9th Cir.), cert. denied,

419 U.S. 1038 (1974).

In the case at bar, when Lovato’s affidavit is

stripped of its opinions, suspicions, and conclusions, his

1Ker vy. Illinois, 119 U.S. 436 (1886), and Frisbie v. Collins,

342 U.S. 519 (1952), held that the manner of a defendant’s

entry into the United States did not affect the court’s power to

proceed.

2United States v. Cotten, 471 F.2d 744, 748 (9th Cir.),

cert. denied, 411 U.S. 936 (1973); United States v. Hamilton,

460 F.2d 1270 (9th Cir. 1972); Bacon v. United States, 449

F.2d 933, 943 (9th Cir. 1971) (a material witness); Wentz

v. United States, 244 F.2d 172, 176 (9th Cir.), cert. denied,

355 U.S. 806 (1957).

—3—

allegations amount to little more than the scenario of a

routine expulsion by Mexican officers of an undesirable

alien. Lovato’s delivery at the United States border into

the hands of officers who were undoubtedly expecting

him created no bar to his prosecution.

Affirmed.