Opposition Brief — United States v. Alvarez-Machain

| FILE D

(2) NOW 22 YOR

No. 91-712 r

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

UNITED STATES OF AMERICA,

Petitioner,

vs.

HUMBERTO ALVAREZ-MACHAIN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

PAUL L. HOFFMAN

Counsel of Record

RALPH STEINHARDT

JOAN FITZPATRICK

ROBIN S. TOMA

TRACY RICE

ACLU FOUNDATION OF SOUTHERN CALIFORNIA

" 1616 Beverly Boulevard

Los Angeles, California 90026

(213) 977-9500

Of Counsel:

ROBERT STEINBERG

Attorneys for Respondent

HUMBERTO ALVAREZ-MACHAIN

Lawyers Brief Service * Appeilate Brief Printers « (213) 383-4457 * (714) 720-1510

QUESTION PRESENTED

Whether the federal courts may try

a Mexican national kidnapped by agents

of the Drug Enforcement Administration

in violation of the Extradition Treaty

between the United States and Mexico

after the Government of Mexico has made

unequivocal and repeated protests and a

formal demand for his repatriation.

QUESTION PRESENTED ..+ + «© « «

TABLE OF AUTHORITIES ...+. «

STATEMENT eo @ eo ® sd @ e e @ eS e ©

REASONS FOR DENYING THE WRIT ..

I.

THE COURTS BELOW CORRECTLY

FOUND THAT THE EXTRADITION

TREATY BFIWEEN THE UNITED

STATES AND MEXICO BARS THE

TRANSBORDER ABDUCTION OF

~ MEXICAN NATIONALS BY U.S.

AGENTS WITHOUT THE

ACQUIESCENCE OR CONSENT OF THE

GOVERNMENT OF MEXICO... .

A. The Ninth Circuit's

Decision is

Completely In

Accord With This

Court's Precedents...

ii

B. This Case Does Not Warrant

Supreme Court Review Because

It Presents a Unique set of

Factual and Legal Issues and

Creates No Conflict Among

Cirewits. « «-2«eeeeceeec 28

II. IF THE COURT DECIDEfF TO GRANT

THE PETITION IN UNITED STATES

Vv. VERDUGO-URQUIDEZ IT SHOULD

CONSOLIDATE THIS CASE FOR

ARGUMENT AND DECISION ...- 17

CONC LUS ION @ @ e @ @o es @ o e @ e es 1 8

APPENDIX AFFIDAVIT OF JOSE ANGEL

PESCADOR OSUNA; NINTH

CIRCUIT COURT OF APPEALS;

DATED NOVEMBER 9, 1990

iii

Cases Pages

Cook v. United States,

288 U.8. 102 i .~ »« « « « « @ @

Ford v. United States,

273 U.S. 593 (1927) .

Frisbie v. Collins

342 U.S. 519 (1952) ‘

e@

e

@

@

~

WwW

J

~

>

K Vv ois,

119 U.8. 436 (1886) e © © © ec «© £2234

M - ’

896 F.24 255 (7th Cir. 1990) - « 12

Vv ’

668 F.2d 32 (ist Cir. 1981) ... 12

United States v. Cotten,

471 F.2d4 744 (9th Cir.), cert.

denied, 411 U.8. 936 (1973) ... 12

Unites States v. Lovato

520 F.2d 1270 (9th Cir), cert.

denied, 423 U.S. 985 (1975) ... 12

United States v. Rauscher,

119 U.S. 407 (1886) .... 6, 8, 9

U

S00 F.2d 267 (24 Cir. 1974) .... 2

iv

625 F.2d 308 (9th Cir. 1980) .. 12

e

No. 91-670 eee fe @ @ 3, 11, 17-19

Treaties

Treaty on Extradition, May 4, 1978,

United States - Mexico, 31 U.8.T. 5059,

T.I.A.8. No. 9656 @ @ e@ e eo @ eo @ s eo 5

Article 1 @ _ @ eo e eo eS eo s e eo 4

Article 9 @ ® @ s @ @ e @ @ 7, 9

No. 91-712

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

UNITED STATES OF AMERICA,

Petitioner

vs.

HUMBERTO ALVAREZ-MACHAIN,

Respondent

On Petition For A Writ of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondent Humberto Alvarez-Machain

submits this brief in opposition to the

Petition for a Writ of Certiorari filed

by the United States in this case.

STATEMENT

Respondent Dr. Humberto Alvarez-

Machain is a medical doctor who resides

in Guadalajara, Mexico. In April 1990

he was kidnapped by agents of the U.S.

Drug Enforcement Agency (DEA) in his

medical office and forcibly transported

to Texas where he was taken into custody

by waiting DEA officials.’ The

Government has not’ challenged’ the

district court's findings of DEA

responsibility for Respondent's abduction.

Respondent claimed that he was

subjected to "shocking" and "outrageous"

treatment justifying the -denial of

personal jurisdiction under

States v. Toscanino, 500 F.2d 267 (2d

Cir. 1974). The Ninth Circuit did not

reach this issue.

Similarly, the Ninth Circuit did

not reach Respondent's contention that

the repatriation order was supported by

the Court's supervisory power.

2

In a diplomatic note dated May 16,

1990, the Government of Mexico stated

that Respondent had been abducted "in

violation of the procedure established

in the extradition treaty between the

two countries." App., 13a.* The May

16, 1990, note further requested

Respondent's repatriation to Mexico.

Id.

In the Ninth Circuit the Mexican

Government reiterated this unequivocal

position by submitting a letter to the

court in which it’ protested the

violation of the Extradition Treaty and

supported Respondent's reliance on the

. "App." refers to the Appendix to

the Government's Petition. "Resp. App."

refers to the Appendix to this brief.

"Verdugo App." refers to the Appendix to

the Government's Petition in United

States v. Verdugo-Urquidez, No. 91-670.

3

Treaty in the courts. The Government

of Mexico has never wavered from this

position.

In addition, the Government of

Mexico has stated that it is fully

prepared to fulfill its obligations

under the Extradition Treaty after

Respondent is repatriated. esp. App.,

6a. Under Article 1 of the Extraditon

Treaty, if a request for respondent's

extradition was made, the Government of

Mexico must either extradite Respondent

or submit the case for prosecution in

Mexico. Verdugo App. 70a.

. The text of the affidavit

submitted in the Ninth Circuit by the

Mexican Consul in Los’ Angeles. is

included in the Appendix to this brief.

Petitioner claims that there is

"no reason to believe" that Mexico will

extradite Respondent under the treaty.

Petition, at 10 n. 7. However, there is

4

REASONS FOR DENYING THE WRIT

I

THE COURTS BELOW CORRECTLY

FOUND THAT THE EXTRADITION

TREATY BETWEEN THE UNITED

STATES AND MEXICO BARS THE

TRANSBORDER ABDUCTION OF

MEXICAN NATIONALS BY U.S.

AGENTS WITHOUT THE

ACQUIESCENCE OR CONSENT OF THE

GOVERNMENT .? MEXICO

In its Petition for Certiorari the

Government makes the extraordinary claim

that it may violate with impunity the

Extradition Treaty between the United

States and Mexico, May 4, 1978, 31

U.S.T. 5059, T.1T.A.S. No. 9656

("Extradition Treaty"), by kidnapping

no evidence in the record of this case

concerning the number of extradition

requests the United States has made

concerning Mexican nationals or the

results of such requests. The United

States has never requested Respondent's

extradition; nor have they sought his

prosecution in Mexican courts.

5

Mexican nationals from Mexican territory

over the formal protest of the Mexican

government. This claim has never been

accepted by any court and the

unprecedented nature of the Government's

claim alone cannot justify review by

this Court.

In contrast, the Ninth Circuit's

judgment in this case is solidly rooted

in this Court's precedents, see, e.g.,

United States v. Rauscher, 119 U.S. 407

(1886), and in the clear language and

manifest purpose and intent of the

Extradition Treaty between the United

States and Mexico. Moreover, because

this Court should not lightly assume

that our Government will kidnap persons

in violation of extradition treaties and

over the protests of their governments,

the unique factual context of this case

makes it an inappropriate candidate for

plenary review in this Court.

A. The Ninth Circuit's

Decision is

Completely In

Accord With This

Court's Precedents

The outcome of this case derives

from two uncomplicated propositions:

First, that the Extradition Treaty

prohibits the kidnapping of a Mexican

national on Mexican territory by United

States agents; second, that’ treaty

violations can limit or affect the

jurisdiction of United States courts.

The Extradition Treaty between the

United States and Mexico explicitly

provides in Article 9 that neither

government "shall be bound to deliver up

7

its own nationals," though the

extradition of nationals is contemplated

as a possibility, and though each nation

is compelled to prosecute those

nationals it chooses not to extradite.

This provision does more than merely

suggest that the Treaty prohibits

abduction of the other country's

nationals; it makes it abundantly clear.

indeed, a prohibition on

transborder abductions is implicit in

the "manifest scope and object of the

treaty itself." United States v.

Rauscher, 119 U.S. at 422. See also,

Ford v. United States, 273 U.S. 593

(1927); Cook v. United States, 288 U.S.

102 (1933).

: The Ninth Circuit also had before

it extensive information about’ the

history of extradition treaties and

8

Based on the Treaty's' language,

therefore, the courts below came to the

unexceptional conclusion that the

unconsented to kidnapping of Dr.

Alvarez-Machain by United States agents

from Mexican territory violated its

terms.

Nor was there anything unusual in

the conclusion that, as a result of the

government's incontrovertible violation

of Article 9, United States courts

lacked jurisdiction over the kidnapped

defendant. This is a straightforward

application of this Court's decisions in

Rauscher, which recognized the right of

an individual to challenge jurisdiction

diplomatic practice between the United

States and Mexico which supported this

view of the plain language and structure

of the Treaty. See Amicus Curiae brief

of Lawyers Committee for Human Rights.

9

resulting from the breach of an implicit

term of an extradition treaty, and in

Cook, which held that treaty violations

may deprive domestic courts of

jurisdiction.”

Nothing in these conclusions

warrants review by this Court.

This principle appears self-

evident when applied to other provisions

in the Treaty reflecting the legal and

policy concerns of each government which

would clearly be enforced by our courts.

For example, Article 8 permits Mexico,

which has no death penalty in peacetime,

to refuse to extradite a fugitive unless

it receives adequate assurances from the

United States that the death penalty

will not be imposed, or, if imposed,

executed. Surely, were a Mexican

national extradited to the United

States, following such assurances, he

could not thereafter be executed in

violation of the Treaty. The exact same

principle is at play in this case.

10

B. This Case Does Not

Warrant Supreme

Court Review

Because It Presents

a Unique set of

Factual and Legal

Issues and Creates

No Conflict Among

Circuits.

This case does not warrant Supreme

Court review, not only because it is a

direct application of the Court's well-

established precedents, but also because

it involves unique circumstances. This

case and the pending Verdugo-Urquidez

case (No. 91-670), are the only reported

cases in which a criminal defendant has

been abducted by agents of the United

States government over the objection of

a foreign government and in plain

violation of an existing extradition

treaty.

Conversely, in every reported

11

decision involving an_ international

abduction, beginning with Ker v.

Illinois, 119 U.S. 436 (1886), there was

either consent’ or acquiescence by the

foreign government, the absence of an

extradition treaty, or the absence of

any U.S. government involvement in the

abduction.” Indeed, in Ker v. Illinois

See, e.g., United States v.

Cordero, 668 F.2d 32, 37-38 (lst Cir.

1981); United States v. Valot, 625 F.2d

308, 310 (9th Cir. 1980).

See, e.g., Ma -Ballesteros v.

Henman, 896 F.2d 255, 259-60 (7th Cir.

1990).

See, e.g., United States vy.

Cotten, 471 F.2d 744 (9th Cir.), cert.

denied, 411 U.S. 936 (1973).

10

See, e.g., United States v.

Lovato, 520 F.2d 1270, 1272 (9th Cir.),

cert. denied, 423 U.S. 985 (1975)

("Lovato's ... allegations amount to

little more than the scenario of a

routine expulsion by Mexican officers of

an undesirable alien.")

12

itself there was no United States

government involvement and there was no

protest from the government of Peru.

The unique facts of this case

explain why there is no conflict among

the Circuits on this question. For the

same reason, the decisions below will

have no effect on the ordinary

application of the principles in the

line of cases originating in Ker v.

Illinois, 119 U.S. 436 (1886), and

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

Fairly read, the decisions below

are legally confined and factually

specific. Contrary to the government's

broad assertions, nothing in the Ninth

Circuit's opinion defeats, or even casts

doubt on, the ability of American courts

to assert jurisdiction over foreign

13

defendants in circumstances where their

abduction is not the responsibility of

agents of the U.S. government, where

there is no extradition treaty between

the United States and the country where

an abduction takes place,’ Or where a

foreign government with which we have an

extradition treaty consents to or

acquiesces in the abduction or informal

rendition of persons within its

territory.” Thus, the Ker-Frisbie

'' This category includes Libya,

Syria, Iran, Lebanon, Jordan, Yemen,

Tunisia, Algeria, North Korea, the

Peoples Republic of China, Viet Nan,

Afghanistan, Kampuchea, Kuwait, Morocco,

Ethiopia, Somalia, Sudan, and

Mozambique.

” There are many examples of such

informal renditions between the United

States and Mexico. One of the most

recent and sensational examples is the

1989 return of Mexican national Ramon

Salcido to face capital charges of

murdering his wife and children in

14

doctrine remains undisturbed.

In addition, this case does not

involve the authority of the Executive

Branch to engage in international

abductions in violation of customary

international law. Nor does this case

affect the President's power to abrogate

the obligations this country has assumed

in this or any other extradition treaty.

Rather, this case involves an existing

treaty which has not been abrogated and

which specifically restricts the

circumstances in which the nationals of

each country may be extradited.”

Thus, this case presents none of

California.

'S under Article 23(4) of the Treaty

the United States may terminate the

Treaty on six months notice. Verdugo

App., 83a.

15

the apocalyptic issues suggested in the

Government's Petition. Only if our

government intends to engage routinely

in the kind of snatch and grab abduction

that occurred in this case, in clear

violation of existing extradition

treaties and over the protests of our

treaty partners, will the decisions

below stand in the way. There is no

reason to believe that the government of

the United States has adopted a policy

so antithetical to a world order based

on respect for the basic principles of

international law and the territorial

integrity of states.

16

II

IF THE COURT DECIDES TO GRANT

THE PETITION IN UNITED STATES

v. VERDUGO-URQUIDEZ IT SHOULD

CONSOLIDATE THIS CASE FOR

ARGUMENT AND DECISION

If this Court decides to reach the

issues raised by the decisions below in

United States v. Verdugo-Urquidez, No.

91-670, and this case, Respondent urges

the Court to consider these issues by

granting the Petition in this case or by

granting the Petitions in both cases.

This case presents none of the

factual uncertainties raised in Verdugo.

The Government has conceded

responsibility for Respondent's

abduction. The Government of Mexico

has, from the time of Respondent's

abduction to the present, unequivocally

protested the abduction as a violation

17

of the Extraditon Treaty, demanded

Respondent's repatriation to Mexico and

supported his efforts to raise the

Extradition Treaty as a defense to the

personal jurisdiction of U.S. courts to

try Respondent. In short, the factual

questions that led the Ninth Circuit to

remand Verdugo for further proceedings

are not presented in this case.

CONCLUSION

For the foregoing reasons, the

Petition For a Writ of Certiorari should

be denied. In the alternative, if this

Court decides to hear argument on these

issues, the Petition in this case should

be granted. If the Petition in United

18

States v. Verdugo-Urquidez, No. 91-670,

is granted,

this case should

be

consolidated with Verdugo for argument

and decision.

Dated: November 21, 1991.

Respectfully submitted,

PAUL L. HOFFMAN

COUNSEL OF RECORD

RALPH STEINHARDT

JOAN FITZPATRICK

ROBIN S. TOMA

TRACY RICE

ACLU Foundation of

Southern California

1616 Beverly Blvd.

Los Angeles, CA 90026

(213) 977-9500

19

APPENDIX

Secretaria NOVEMBER 9, 1990.

De

Relaciones Exteriores

Consulado General

TO THE HONORABLE JUSTICES OF THE NINTH

CIRCUIT COURT OF APPEALS

RE: United States vs.

Humberto Alvarez

Machain No. 90-50459

Be JOSE ANGEL PESCADOR OSUNA,

accredited at the United States

Department of State as Consul General of

the United Mexican States in Los

Angeles, California, following the

instructions of my government and in the

exercise of my consular functions as

provided by the 1963 Vienna Convention

of Consular Relations, to which both

Mexico and the United States are

parties, wish to communicate to this

honorable court the position of the

Government of Mexico regarding the above

referenced case which involves a mexican

national.

In so doing, nothing in this

communication or its submission shall be

construed, in any way, as a waiver of

the sovereign immunity which Mexico and

its Consulate General enjoy in

accordance with international law, nor

as a submission to the jurisdiction of

this Honorable Court.

la

In reference to this case, this

communication takes into account the

facts established in and adopted by the

United States District Court for the

Central District of California, and

contained in the record before this

Honorable Court.

The position of the Government of

Mexico is as follows:

1.- The Government of Mexico concurs

with part of the ruling of the United

States District Court for the Central

District of California, as stated below.

2.- A violation has been committed to

the Extradition Treaty in force between

the two countries (henceforth "The

Treaty"), and to the General Principles

of International Law.

3.- Mexico expressed its official

attitude to this violation as

established in the record of the

district Court, via diplomatic notes to

the State Department of the United

States, and sought the return to Mexico

of DR. HUMBERTO ALVAREZ MACHAIN.

4.- Since under the Treaty the United

States had the right to request the

extradition of DR. ALVAREZ MACHAIN, the

Treaty was applicable to DR. ALVAREZ

MACHAIN.

5.- The Treaty recognizes certain

rights possessed by individuals to whom

2a

the Treaty's provisions apply.

6.- Individuals have often gone to

court to ensure observance of the rights

they derive from this Treaty.

7.- It is from the Treaty itself, as

well as from the official diplomatic

attitude taken by Mexico to its

violation in this case, that DR. ALVAREZ

MACHAIN can oppose the violation to his

detriment of the treaty and to the

jurisdiction asserted over his person in

the United States after his abduction

from Mexico.

8.- The Treaty constitutes the

exclusive and sole means by which the

Government of the United States can seek

to bring a Mexican National present in

Mexico to justice. Mexican legislation

in force and effect makes it illegal for

Mexican Government authorities to

exclude a Mexican national from Mexican

territory, or for Mexican Government

authorities to deport a Mexican national

from Mexican territory. Therefore

Mexican Government authorities have not

entered, and could not enter, into any

special arrangement or agreement, either

with the United States or with any other

country, to surrender its own nationals.

In the case of extradition treaties

to which Mexico is a party, the

Government of Mexico has invariably and

expressly reserved to the parties the

right to refuse the requested

3a

extradition to one of their own

respective nationals, agreeing instead

to prosecute them in their own national

courts, in the interest of justice.

9.- The purpose and object of the

Treaty, was from its inception,

precisely to provide the legal

framework, with which one of the parties

could request of the other the

extradition of persons from the

territory of the former to the territory

of the latter. The Treaty is binding on

its parties, but serves no purpose if

the parties are free to ignore its

terms.

10.- The only legal means by which the

United States could have pursued the

prosecution of DR. HUMBERTO ALVAREZ

MACHAIN, a Mexican national, was through

the specific provision of the Treaty,

which was negotiated, agreed upon and

ratified precisely to deal, with the

extradition of nationals. Article 9 its

paragraph 1 that “neither contracting

party shall be bound to deliver up its

own nationals, but the executive of the

requested party shall, if not prevented

by the laws of the party, have the power

to deliver them up if, in its

discretion, it be deemed proper to do

so", Paragraph 2, on the other hand,

provides that "if extradition is not

granted pursuant to paragraph 1 of this

article, the requested party shall

submit the case to its competent

authorities for the purpose of

4a

prosecution, provided that party has

jurisdiction over the offense".

11.- The judiciary of each of the

parties to the Treaty is given, through

several of the Treaty's provisions,

ample participation in any extradition

proceeding. Therefore, the

pronouncements of a nation court of one

of the parties, in a case where the only

legal means for bringing an individual

to justice was to invoke the Extradition

Treaty, in no way may be construed as an

interference with the authority of the

Executive branch for the conduct of

Foreign Affairs.

12.- Not affirming the district court's

holding in this case, would emasculate

the Extradition Treaty for all practical

and future effects. As governmental

operations of this nature would receive

implicit approval, and since abductions

of Mexican suspects in the sovereign

territory of Mexico would result in a

legitimized assertion of personal

jurisdiction, some United States

authorities wovld find it easier not to

resort to the binding terms of the

Treaty.

13.- Moreover, not affirming the

district court's holding in this case,

would mean that a case such as the one

at hand would be repeated, with all the

negative diplomatic and legal

consequences which have derived from it,

to the detriment of the friendly

5a

relations that should always prevail

between the two countries including in

law enforcement and administration of

justice matters, and which relationship

should be maintained within the bounds

of international law.

14.- The Mexican Government does not and

will not limit itself to the mere

reiteration of the criteria and

principles stated above. The Mexican

Government is in a position to insist

that there is and always was an

alternative means by which the interest

of justice, so that crimes do not go

unpunished. The Government of Mexico

uwaintains that, in this case, justice

can be administered, but that it has to

be administered legally and in

conformity with the requirements forth

in the Extradition Treaty.

15.- The Mexican Government is

consequently prepared to put into motion

the administration of justice, as soon

as the Government of the United States,

in compliance with article 9 of the

Treaty, provides it with the necessary

elements, as required by the Treaty, to

enable it to comply in its turn with its

treaty obligation to prosecute.

Respectfully,

JOSE ANGEL PESCADOR OSUNA

CONSUL GENERAL OF MEXICO

LOS ANGELES

6a