Amicus Curiae Brief — United States v. Alvarez-Machain

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No. 91-712

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1991

UNITED STATES OF AMERICA,

Petitioner

Vv.

HUMBERTO ALVAREZ-MACHAIN,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR AMICUS CURIAE

AND REAL PARTY IN INTEREST

RENE MARTIN VERDUGO-URQUIDEZ

LAW OFFICES OF

GOLDBERG, FRANT & HALL

2870 Fourth Avenue, Suite 100

San Diego, California 92103

619/297-1111

PATRICK Q. HALL

CHARLES L. GOLDBERG

Attorneys for Amicus Curiae and

Real Party in Interest

RENE MARTIN VERDUGO-URQUIDEZ

QUESTION PRESENTED

1. Whether the transborder kidnapping

from Mexico of two Mexican nationals by

United States agents, which action

violates the laws of Mexico and the

existing extradition treaty with Mexico,

mandates repatriation of the victims

upon the repeated and unequivocal

demands of Mexico.

TABLE OF CONTENTS

Interest of Amicus Curiae ........

Opinions below ........ oocceseenen

Jurisdiction ......6e6- TeTTTTy ee

Treaty Involved ....--+es-. eeccceces

Statement of the CaSe€ ...--eeeeees

Summary of Argument ........- cceece

Argument *eneeoeeteeeeeeeeeeeneeeeeee * #

I KIDNAPPING FOREIGN NATIONALS

TO DELIBERATELY BYPASS AN

EXISTING EXTRADITION TREATY

VIOLATES THE PURPOSES AND

SPIRIT OF THE TREATY, THUS

BREACHING AN IMPLICIT

CONDITION ...ccecccccccccveces

II THE TREATY VIOLATION HAS

DEPRIVED ARTICLE III COURTS

OF ANY JURISDICTION TO HOLD

RESPONDENT AND AMICUS CURIAE

TO ANSWER FOR CRIMINAL

OFFENSES AGAINST THE

UNITED STATES ..ceeeeececceces

III THE KER-FRISBEE DOCTRINE IS

INAPPLICABLE TO THE SPECIFIC

FACTS OF THIS CASE ...-+e+ee+-

IV THE VICTIM OF THE KIDNAPPING

HAS STANDING TO RAISE THE

TREATY VIOLATION AS A BAR TO

HIS PROSECUTION IN THE

OFFENDING COUNTRY ....--+eeee.

V THE INSTANT ISSUE IS NOT

A POLITICAL QUESTION .........

Conclusion

TABLE OF AUTHORITIES

Cases:

470 U.S. 392, 397 (1985) ..... passim

The Amiable Isabella

19 U.S. (6 Wheat)

be 72 (1921) *eeeee#e#e#sr+°5eee#eenfee#ee##e##se##s # # # ye,

In _ re Baiz

Ee Walls COS COON ccceveecsés 59

Baker v. Carr

369 U.S. 186 (1962) .......... passim

Banco Nacional de Cuba v. Sabbatino

376 U.S. 398, 423 (1964) ..... 29

Bacardi Corp. v. Domenech

311 U.S. 150, 165

Ue SOOO cidadececesesuuess 18

of the FBI

403 U.S. 388 (1971) ...-eeeee ° 52,62

Choctaw Nation of Indians v.

United States

318 U.S. 423,

Gee CEES: sccawedcdwnsanees 17

Clark v. Allen

331 U.S. 503 (1947) ..cce reer eT 58

Cook v. ited es

288 U.S. 102 (1933) ..........passim

Dennis v. Higgins

111 S.Ct. 865 (1991) cccccccces 48

v :

290 U.S. 276 (1933) seesvecesc ec SER

Vv.

342 U.S. 519 (1952) oeeneeeeeee#ee#e# 13,42

fe) Vv

273 U.S. 593 (1927) ..........-passim

wate

444 Woe 996 (1979) eeeeveveeeee8 60-62

, Se

a og oy oe

478 U.S. 221 (1986) ccccccccces 62

ohns Vv. owne

205 U.S. 309 (1907) ...... seeee 48

Jo nv. shiro

278 U.S. 123 (1972) ceccccccccs 17

Ker v. is

119 U.S. 436 (1886) wccccccccecs passim

Mahon v. Justice

127 U.S. 700 (1888) .cccccccece 47

Marbury v. Madison

5 U.S. (1 Cranch) 137 (1803) .. 62

Maximov v. United States

373 U.S. 49 (1963) cccccccccccs 17

Murray v. The Charming Betsy

6 U.S. G4 (1804) cccccccccces — 32

The Paquete Habana

RUE Dis SET COO kc ckdcceccs 29,64

a i Cee Seen civicesceees 53

Aerospatiale v. United States

482 U.S. 522 (1987) .....eeeeee 16

New Haven

21 U.S. (8 Wheat)

464 (1923) wccccccccccccceccccs 59

Sumitomo Shoji American Inc. v.

_Avagliano

S37 UeB. L7G (AGSR) ccccccscceces 17

erlind Vv mes

394 UB. 270 (3902) cccccccccce 59

Texas Pacific Railway Co. v. Rigsby

a ces Oe CEE 6éss0%s 505 5% 52

The Three Friends

BGS UeBe 2, BP CABST) ccoccceces 59

United States v. Choctaw Nation

‘Lee oe Ss. eee 27

United States v. Rauscher

BaP Gelle GEE ERE coesececses passim

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ........ 4% 34

United States v. C iss-W ,

299 U.S. 304 (1936) cccccccccece 34

Valentine v. U.S.

See Gebeo B CEPIG) ccoccseccesese 48

456 U.S. 25,

422 U.S. 490,

32 (1982) eeeneees+e#e#ses

498-499 (1975) ..

51 F.2d 17 (4th Cir. 1931) ....

E i v. District ¢ ,

834 F.2d 1444

(9th Cir.

1987)

6 ra 342 (S.D.Tex. 1934) ...

462 F.2d 475 (2d Cir. 1972)

cert. denied,

409 U.S. 1059 (1972) cccccccees

825 F.2d 304

(12th Car. 1987) cccccccccccces

tta-Ba steros v. Henman

896 F.2d 255 (7th Cir. 1990)

111 S.Ct. 209 (1990) wccccccces

od -Fe d v. Wi inson

654 F.2d 1382

(10th Cir. 1981) ccccccccccces

a Vv. 4 te

499 F.2d 527

(D.C. Cir.

1974)

Vv Vv.

381 F.2d 142

(9th Cir. 1967) eoeeeesetseenwe#ee#e#e#e#e#e#* 45

832 F.2d 492

(9th cir. 1987) *eeeeseee#eee*ese#e#e#e 61-62

668 F.2d 32 (lst Cir. 1981) ... 44

471 F.2d 744 (9th Cir. 1973)... 44

ite vas

847 F.2d 1417 (9th Cir. 1988)

cert. denied,

BED Bebe GEO COOGR) cccccccecs 56

nit SV vis

767 F.2d 1025 (2d Cir. 1985)... 46

United States v. Diwan

864 F.2d 715 (llth Cir. 1989) .. 56

nited tes onne Vv

Mulli

76 F.2d 411

ne Ce Mh wkd vcoeeuweoades 57

United States v. Hamilton

460 F.2d 1270

(9th Cir. BPVED 06 6060¢cacvcess 44

United States v. Herrera

504 F.2d 859 (5th Cir. 1974)... 44

United States v. Kaufman

858 F.2d 994 (5th Cir. 1988)...passim

515 F.2d 68 ‘2d Cir. 1975)

cert. denied

423 UsS. 847 (1975) wecccceeee: 44

Vv Vv 12)

520 F.2d 1270

(9th Cir. 1975) .......... ease 44

Ss e]

537 F.2d 257 (7th Cir. 1976)... 45

589 F.2d 862, 875

(5th Cir. 1979),

oe e ,

gt ge ee 39

United States v. Rosent

793 F.2d 1214

RSG GAG. BOOED cocccvcccccecs 45

United States v, Toro

840 F.2d 1221

i 2 si dineenaeees 44

United States v. Valot

625 F.2d 308 (9th Cir. 1980) .. 44

United States v. Zabaneh

837 F.2d 1249, 1261

(Sth Cir. 1988) ...cccccccccees 46,56

United States ex rel. Lujan v. Gengler

510 F.2d 62 (2d Cir. 1974)

cert. denied

421 U.S. 1001 (1975) ..cccceeee 45

Wentz v. United States

244 F.2d 172, 176

(9th Cir. 1957) ..... Aa eee 45

U S Vv. Ev

667 F.Supp. 974, 979

(S.D.N.Y. 1987) esene#eetrje#e#fee#ee#eee#ee#ee#e#r#+efee#ee#e«# 46

Vv.

19 F.2d 925 (N.D. CA 1927) .... 39

United States v. Schouweiler

19 F.2d 387 (S.D. CA 1927) ..... 38

Treaties —

Charter of the United Nations,

June 26, 1945 59 Stat. 1031

T.I.A.S. No. 993,

SSEEGES BS GG) coccoccesscesecec 31

Charter of Organization

of American States,

April 30, 1948,

2 U.S.T. 2394, 2429,

SebeoMeBe BBe SIGL coccccccessecs 31-32

Treaty on Extradition, May 4, 1978,

United States-Mexico,

31 U.S.T. 5059,

BebetoOs BO. BESS cccccccsccese passim

utes

22 U.S.C. Section 2291(C) ..ccccece 32

isc ous

Letter of Secretary of State

James Blaine to O.R. Roberts,

Governor of Texas (May 3, 1881),

Department of State

1784-1906 (National Archives

Microfilm Publication

M40, Rule 93) ..weceeees eecccce 27

Foreign Assistance Act of 1961,

Section 481(c) e*eeeeeeee#se#e#e#ee#n5eee#ee#ee#*®

Hearings on S. 1429 Before the

Subcomm. on Security and Terrorism

of the Senate Comm. on the Judiciary

99th Cong., list Sess. (1986) ......

IV Moore, International Law

Digest, 321 (1906) e*“eeee#e#enre#ee#eee#ee#e#ee#eesee#e# 49

Presidential Message, Extradition

Treaty Between the United States

and Mexico-Changes in the New

Treaty at 19 w.ccececeeeeecereseees

sta fe |

Relations Law of the United

States, Section 432(2) ....-..+-. 31

Sen.Comm. on For. Rels., Internal

Security Assistance and Arms

Expert Control Act, Report On S.

2622, S.Rep.No. 605, 94th Cong.,

2d Sess. 55 (1976) .....-. eccccocces

No. 91-712

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1991

UNITED STATES OF AMERICA,

Petitioner

Vv.

HUMBERTO ALVAREZ-MACHAIN,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR AMICUS CURIAE

AND REAL PARTY IN INTEREST

RENE MARTIN VERDUGO-URQUIDEZ

INTEREST OF AMICUS CURIAE

RENE VERDUGO-URQUIDEZ is the

Respondent in Case No. 91-670, Petition

for Certiorari pending. In January of

1986, he was kidnapped from Mexicali,

Baja California, Mexico by paid agents

of the U.S. in violation of the

U.S.-Mexico extradition treaty. Mexico

objected to his kidnapping. The Court’s

decision in the instant case will

directly affect the authority of the

Bureau of Prisons to confine him and the

U.S. District Courts to enter and/or

enforce an invalid judgment of criminal

conviction against-_hin.

OPINIONS BELOW

The opinion of the Court of Appeals

is reported at 946 F.2d 1466. The

decision of the District Court is

reported at 745 F.Supp. 599. The

decision of the Court of Appeals was

founded on the authority of U.S. v.

Verdugo-Urquidez, 939 F.2d 1341 (9th

Cir. 1991), Petition for Certiorari

pending, No. 91-670. The opinion of the

District Court with respect to Amicus

Curiae’s rights under the Extradition

Treaty,is unreported.

JURISDICTION

The jurisdiction of this Court to

decide whether Article III Courts

possess personal and subject matter

jurisdiction over Respondent and Amicus

Curiae rests on Title 28, U.S.C. section

1254(1). Respondent and Amicus Curiae

have consistently asserted that the

District Court lacked jurisdiction to

proceed with criminal actions.

TREATY INVOLVED

The Extradition Treaty between the

U.S. and the United Mexican States,

which entered into force on May 4, 1978,

is located at 31 U.S.T. 5059, T.I.A.S.

No. 9656, and is reprinted in the Joint

Appendix at pages 72-87.

; STATEMENT OF THE CASE

Amicus Curiae would join in the

Statement of the Case filed by

Respondent ALVAREZ-MACHAIN with respect

to the circumstances concerning his

appearance before the District Court.

At an evidentiary hearing, Amicus

Curiae would show that from as early as

April, 1985 through January 24, 1986,

U.S. law enforcement officers formulated

a plan to unlawfully kidnap Respondent

and others from the Republic of Mexico

in connection with Operation Leyende,

the official investigation into the

disappearance and death of DEA Special

Agent Enrique Camarena-Salazar.

U.S. law enforcement officers and

Department of Justice officials

discussed among themselves their

unilateral conclusion that the formal

extradition of Mr. VERDUGO from the

Republic of Mexico pursuant to the

long-standing Extradition Treaty entered

into between the two countries would not

be successful. These persons neither

consulted with appropriate Mexican

officials or considered a request for

the provisional arrest of VERDUGO

pursuant to the Treaty. Intentionally

and deliberately determining that they

would not make a request for the

extradition of Respondent, U.S. law

enforcement officials contacted a group

of men, (some corrupt, local Mexican

police officers), who had previously

performed kidnappings. These men did

not seek to enforce any Mexican laws but

rather were acting solely for their own

pecuniary interests. The U.S. agents

then masterminded the kidnapping and

transportation of VERDUGO to the U.S.

It is believed that $50,000 was given to

these six men in advance of their

actions. Additionally, promises of the

payment of another $50,000 when the job

was finished were made.

On January 24, 1986, while driving

his vehicle on a street in San Felipe,

Baja California, Mexico, Mr. VERDUGO was

forced to stop his vehicle by the six

plain-clothed individuals, who were

driving two unmarked vehicles.

Without identifying themselves,

these individuals forcibly opened the

door to Mr. VERDUGO’s car and physically

removed him. He was then forced into

the rear seat of one of the two cars

driven by the six individuals and was

forcibly handcuffed, his hands twisted

behind his back. One of the six men

placed a blindfold on Mr. VERDUGO’s head

and forced his head down below the

windows of the car. At some point, a

jacket was placed over Mr. VERDUGO’s

head. He was held in this position the

entire time. He nearly suffocated due

to the manner in which he was held

captive. During the entire trip, Mr.

VERDUGO was in fear for his life.

Two unidentified U.S. law

enforcement officials were present at

the scene of the stop and supervised the

kidnapping. The agents followed the two

vehicles as they transported Mr. VERDUGO

towards Mexicali. Upon their arrival at

the border, Mr. VERDUGO was pushed

through a hole in the U.S. border fence

just west of Calexico. There, he was

taken into custody by U.S. law

enforcement officials who were awaiting

his forced entrance into the U.S.

Shortly thereafter, his residence(s) in

Mexico were searched by U.S. and Mexican

law enforcement officers without a

warrant. U.S. v. Verdugo-Urquidez, 494

U.S. 259 (1990).

After the circumstances of Mr.

VERDUGO’s abduction were investigated, a

Mexican prosecutor issued arrest

warrants in the Republic of Mexico

charging five of the six individuals

with kidnapping and false imprisonment.

These individuals have been admitted

into the U.S. Witness Protection

Program, where they apparently remain

today.

The Republic of Mexico, in its first

diplomatic note dated April 23, 1986,

(Appendix. A, at pp. 2a), noted that the

reports of Mr. VERDUGO’s abduction by

former Mexican police personnel hired by

U.S. authorities, if true, “occurred

without the knowledge of the Mexican

Federal authorities and are violations

of Mexican law and international law."

On August 26, 1987, the Republic of

Mexico responded that "it cannot

recognize as valid a judicial practice

that disregards the procedures

established by the extradition treaty

currently in force between Mexico and

the U.S. The reason for this being that

such practice constitutes an

infringement of the constitutional

guarantee of due process of law that in

cases of deprivation of liberty like

this one is recognized by the Political

Constitutions of both Mexico and the

United States of America." The note

further requested the "kind mediation of

the Department of State" in "informing

the corresponding United States judicial

authorities of the position of the

Mexican government, so that this case

will be properly clarified". (App. B,

infra, pp. 4a-7a).

At a hearing held on June 20, 1988,

the District Court had denied Amicus

Curiae’s motion to dismiss the third

Ssuperseding indictment, which charged

five counts of kidnapping, murder,

conspiracy, and violent crimes in aid of

racketeering due to the manner of his

apprehension. The Court declined to

hold an evidentiary hearing for the

purposes of establishing the extent of

official U.S. involvement in the

kidnapping.

After a two month jury trial, Mr.

VERDUGO, an innocent man, was convicted

on all counts and sentenced to serve

four consecutive 60 year terms in

addition to a life sentence in the

custody of the Attorney General.

The Ninth Circuit ruled that if

Amicus Curiae could show at an

evidentiary hearing that the U.S.

Government was involved in his

kidnapping by way of participation or

sponsorship, Mexico’s protest gave him

standing to object to a violation of the

Extradition Treaty. The Court of

Appeals subsequently found that the

aforementioned diplomatic notes

constituted a formal protest by the

Republic of Mexico into the manner in

which the U.S. acquired personal

jurisdiction over Mr. VERDUGO. (939

F.2d at page 1343). Given the violation

of the Extradition Treaty which it held

had occurred, the proper remedy was to

repatriate Mr. VERDUGO to Mexico. (939

F.2d at page 1362).

The Court of Appeals found that the

treaty contained, by implication, a

proscription against "the abduction of

an individual from a foreign country

without that State’s consent." The

Government of Mexico, the state whose

sovereignty was violated in this case,

has also demanded on the return of

Respondent on this ground. ‘(Joint

Appendix 67-71).

On November 6, 1991, Mexico sent a

third diplomatic note to the Department

of State. This note referred to the

August 31, 1987 note which it said

"explicitly remarked on the illegality

of the kidnapping of Mr.

VERDUGO-URQUIDEZ from Mexican territory,

and denounced the violation of the

Extradition Treaty in force between

Mexico and the United States." (App. D,

pp. 24a). This note further stated,

"The Mexican agents that detained Mr.

VERDUGO-URQUIDEZ overstepped their

authority, and consequently ...

violated Mexican, U.S. and international

laws, since the Extradition Treaty forms

part of the legislation of both

countries." (App. D, pp. 25a).

Finally, the note expressly requested

the repatriation of Mr. VERDUGO.

SUMMARY OF ARGUMENT

The kidnapping of foreign nationals

from their own country presents federal

courts from exercising criminal

jurisdiction over the victims when (1)

an extradition treaty between the

offended sovereign and the U.S. is in

force; (2) when U.S. agents are

responsible for the kidnapping, either

through instigation or ratification; and

(3) the offended sovereign objects to

the exercise of jurisdiction over the

putative criminal defendant.

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

(1886), Ford v. U.S., 273 U.S. 593

(1927), and Cook v. U.S., 288 U.S. 102

(1933) all support this conclusion.

Petitioner’s reliance on Ker v.

Illinois, 119 U.S. 436 (1880) and

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

is misplaced as those cases did not

involve treaty violations, U.S.

Government responsibility, diplomatic

objection to criminal proceedings or

Federal courts.

The existence of an extradition

treaty with its detailed procedures for

rendition, and in the instant case,

alternative requirements that the

requested country prosecute one of its

nationals if the request is refused,

makes no sense whatsoever if the treaty

can be ignored at will. Absent the

existence of an extradition treaty,

countries are under, no obligation to

surrender persons found within their

territory to another nation to stand

trial.

Because extradition treaties are

self-executing, their terms, express or

implied, can be enforced by private

individuals, especially once the

offended sovereign has registered its

belief that a violation has occurred.

The only remedy which can redress the

affront to the sovereign which occurs in

this type of situation is repatriation

of the victim.

Finally, this Court is not barred

from reaching the merits of the issue by

the political question doctrine.

Article III clearly extends the judicial

power to treaties, which are the law of

the land under the Supremacy Clause.

The mere fact that this case "touches

upon foreign relations" is not

sufficient to render it non-justiciable.

This proposition is evidenced from the

fact that Ker, Rauscher, Ford, and Cook

were all decided upon their merits,

notwithstanding that the conduct of

foreign affairs was tangentially

implicated. Additionally, it was the

Government itself which invoked the

jurisdiction of the District Court, not

the Respondent or Amicus Curiae.

ARGUMENT

KIDNAPPING FOREIGN NATIONALS

TO DELIBERATELY BYPASS AN

EXISTING EXTRADITION TREATY

VIOLATES THE PURPOSE AND

SPIRIT OF THE TREATY, THUS

BREACHING AN IMPLICIT CONDITION.

In interpreting an international

treaty, courts should be mindful that it

is in the nature of a contract between

nations to which general rules of

construction apply. ocie ionale

Indu ielle os iale v

District Court, 482 U.S. 522, 533

(1987). A court called upon to

interpret a treaty must therefore begin

with the text of the treaty and the

context in which the written words are

used. an Vv. s, 470 U.S. 392,

397 (1985). The treaty’s history, the

negotiations, and the practical

construction adopted by the parties may

also be relevant. Choctaw Nation of

Ss Vv -S., 318 U.S. 423, 431-432

(1943).

The clear import of treaty language

controls unless application of the

treaty according to its obvious meaning

effects a result inconsistent with the

intent or expectations of its

Signatories. Sumitomo Shoji American

Inc. v. Avagliano, 457 U.S. 176, 180

(1982); Maximov v. U.S., 373 U.S. 49, 54

(1963); See also The Amiable Isabella, 6

Wheat 1, 72 (1921).

In construing a treaty, a Court has

the "responsibility to give the specific

words of the treaty a meaning consistent

with the shared expectations of the

contracting parties." Air France v.

Saks, 470 U.S. 392, 399 (1985).

In Factor v. Laubenheimer, 290 U.S.

276 (1933), this Court stated:

In choosing between conflicting

interpretations of a treaty

obligation, a narrow and restrictive

construction is to be avoided as not

consonant with the principles deemed

controlling in the interpretation of

international agreements. :

Considerations which should govern the

diplomatic relations between nations,

and the good faith of treaties, as

well, require that their obligations

should be liberally construed so as to

effect the apparent intention of the

parties to secure equality and

reciprocity between them. For that

reason if a treaty fairly admits of

two constructions, one restricting the

rights which may be claimed under it,

and the other enlarging it, the more

liberal construction is to be

preferred. (Citations).

Vv ub , Supra, at

pages 293-294. See also Jordan v.

Tashiro, 278 U.S. 123, 127 (1928).

The history of negotiations,

construction of the treaty by a

political department of the Government,

and diplomatic correspondence may also

be of significance in interpreting the

terms of a treaty. Factor v.

Laubenheimer, supra, at pages 293-294.

(See Bacardi Corp. v. Domenech, 311 U.S.

150, 165 fn.12 (1940) (diplomatic

correspondence from Cuba submitted by

Solicitor General as relevant to legal

position of Government of Cuba

concerning treaty interpretation).

Application of these principles of

treaty interpretation leads to the

inevitable conclusion that the U.S.

breached the terms of the Extradition

Treaty by conceiving, initiating and

participating in the forcible abduction

of foreign nationals from Mexican

territory.

In U.S. v. Rauscher, 119 U.S. 407

(1886), this Court noted that:

It is only in modern times that the

nations of the earth have imposed

upon themselves the obligation of

delivering up these fugitives from

justice to the States where their

crimes were committed, for trial and

punishment. This has been done

generally by treaties made by one

independent government with

another.

, it may be

stated as the general result of the

writers upon international law, that

ana it has never been recognized as

among those obligations of one

government towards another which

rest upon established principles of

international law.

x kk

(W)ith nearly all the nations of the

world with whom our relations are

such that fugitives from justice may

be found within their dominions or

within ours, we have treaties which

Vv the

j j . These

treaties are also supplemented by

acts of Congress, and both are in

their nature exclusive.

U.S. v. Rauscher, supra, at pages

411-412, 414-415. (Emphasis added).

The 1980 Treaty was designed to

further closer cooperation "in the fight

against crime" (Preamble, Jt.App. at

page 72), as well as to protect the

sovereignty and territorial integrity of

both the U.S. and Mexico.

Article 4(1) delineates the

territorial jurisdiction of the

signatories. The Treaty provides that

access to each country’s national

territory may only be gained pursuant to

the treaty. Article 20(1).

Article 1 of the Extradition Treaty

references the obligations of the

Signatories as "Contracting Parties."

The U.S. and Mexico obviously believed

that they were entering a valid and

binding contract. Such an

interpretation is entirely consistent

with Article 23(4), setting forth the

procedure whereby either Contracting

Party may terminate the treaty by simply

giving six months notice to the other

Party. The U.S. has at no time ever

suggested the treaty is not in force or

that it intends to terminate the treaty.

The Treaty explicitly establishes

the conditions under which either party

may request the surrender of a citizen

of a Party from its domestic territory.

However, these conditions are limited in

the following respects: First, Article

1 compels that all the provisions of the

treaty apply to extraditions and

restricts the obligation of the

requested party to extradite by limiting

extradition to offenses committed

outside the territory of the requesting

party.

Article 2 further delineates the

type of offenses for which extradition

may be sought. Specifically, Articles

2, 3 (as well as the other Articles to

the extradition treaty) repeatedly refer

to the obligation by using the term

"extradition shall take place" as

opposed to other less commanding terms.

This suggests these provisions are

affirmative, not discretionary.

Articles 5, 6 and 7 specifically set

forth circumstances under which

extradition shall not be granted. They

bar extradition for political offenses,

purely military offenses, crimes for

which the offender has already been

tried, and when prosecution is barred by

the statute of limitations. These

provisions must be contrasted to

Articles 8 and 9 of the treaty, which

confer discretion upon the requested

party to decline extradition. Under

Article 8, when the offense for which

extradition is requested is punishable

by death under the laws of the

requesting party, extradition then "may

be refused."

Similarly, Article 9 contains

discretionary provisions relating to

each party’s obligations to deliver its

own citizens and its obligation to

prosecute its citizens if a request for

extradition is denied. It should be

noted that Mexican law prohibits

extradition of Mexican citizens.

Article 11 even sets forth a

procedure in the case of urgency for the

provisional arrest of an accused or

convicted person.

Finally, Article 14 provides that

the decision of the territorial

sovereign whether to extradite its

national is final and that the surrender

of the person sought is controlled by

the laws of the territorial sovereign.

The detailed nature of the

procedures set forth in the Treaty, the

existence of discretion to decline to

surrender nationals for extradition, the

provision for finality of decisions, the

creation of procedures for communicating

the refusal to extradite, and the clear

import of the language of the treaty is

that the specified procedures limit the

circumstances under which a foreign

national shall be brought from the

territory of one contracting party into

the jurisdiction of the other. This is

in accordance with the lack of any duty

to extradite in the absence of a

treaty. This comprehensive framework

was Clearly intended by the parties to

delineate the exclusive circumstances

under which the surrender of suspects

could occur.

A contrary interpretation would

render certain provisions of the treaty

completely meaningless. To the extent

that Article 9 confers discretion to a

requested Party to refuse extradition of

its nationals, the U.S. could override

the decision explicitly committed to

Mexico’s discretion by Simply violating

its sovereign territory and kidnapping

the suspects as it did in these cases.

The procedures set forth throughout the

treaty would be completely gutted.

The U.S. fully recognized the import

of such a treaty provision. In the

Presidential Message accompanying the

treaty, President Carter stated that:

The new U.S.-Mexico treaty would

permit the U.S. to extradite its own

citizens, as does the old treaty.

Mexican law, however, prohibits the

extradition of Mexican nationals.

The treaty thus obliges the

requested state, j

Presidential Message, Extradition

Treaty Between the U.S. and

Mexico-Changes in the New Treaty at

19 (emphasis added).

Although forcible abductions violate

the terms of the treaty, there is

nothing to prevent a nation from

surrendering a fugitive as a matter of

comity in the absence of a treaty. (See

U.S. v. Kauffman, 858 F.2d 994, 1008

(5th Cir. 1988) (citing Fiocconi v.

i ee eel

Attorney General of U.S., 462 F.2d 475

(2d Cir. 1972), cert. denied, 409 U.S.

1059 (1972).

The aforementioned construction of

the treaty is entirely consistent with

the history of extradition treaties in

effect since the 1800’s. Apparently as

early as 1881, it was contemplated that

the extradition treaty between the U.S.

and Mexico was intended to prevent the

unconsented abduction of nationals from

a foreign country. Letter of Secretary

of State James Blaine to O.R. Roberts,

Governor of Texas (May 3, 1881), in

Domestic Letters of the Department of

State, 1784-1906 (National Archives

Microfilm Publication M40, Rule 93).

In 1887, after Ker v.Illinois had

been decided, Secretary of State Bayard

reaffirmed the position that Mexico’s

Kidnapping of Francisco Arresures from

Texas to stand trial was "obtained" not

—_—_»»' ye

in accordance with, but in fraud of

existing treaties.

In 1985, Abraham Sofaer, then the

legal advisor to the State Department,

further commented:

... Sucn acts (referring to foreign

abductions by U.S. officials) might

also be viewed by foreign states as

violations of international law _and

in tible w

extradition treaties that we have in

force with those nations.

Hearings on S. 1429 Before the

Subcomm. on Security and Terrorism of

the Senate Comm. on the Judiciary,

99th Cong., 1st Sess. (1986).

Based upon the diplomatic notes

exchanged between the Republic of Mexico

and the Department of State relating to

the kidnappings of Mr. VERDUGO and

Respondent, it is clear that Mexico

believes that the forcible abduction of

its nationals from within its borders

constitutes a violation of the

provisions of the extradition treaty.

This view is also consistent with the

exchange of diplomatic notes between the

U.S. and Canada wherein Secretary of

State George P. Schultz agreed to act to

deter "transborder abductions".

"International law is part of our

law, and must be ascertained and

administered by the courts of justice of

appropriate jurisdiction as often as

questions of right depending upon it are

duly presented for their

determination." The Paquete Habana, 175

U.S. 677, 700 (1900). See also, Banco

Nacional de Cuba v. Sabbatino, 376 U.S.

398, 423 (1964).

Interpretation of the instant

provisions of the extradition treaty in

accordance with customary international

law also mandates the conclusion that

forcible abductions violating the

sovereign territory of Mexico violated

the provisions of the treaty and

customary international law. See

Rodriquez-Fernandez v. Wilkinson, 654

F.2d 1382 (10th Cir. 1981), (applying

customary international law relating to

the Universal Declaration of Human

Rights and the American Convention of

Human Rights to the due process clause

to the U.S. Constitution).

Article 31(3)(c) of the Vienna

Convention on the Law of Treaties

adopted, May 22, 1969, U.N. Doc. A/CONF.

39/27 (1969), reprinted in 8 INT'L

LEG.MAT. 674 (1969), requires that, in

interpreting a treaty, "there shall be

taken into account ... any relevant

rules of international law applicable in

the relations between the parties." The

Executive Branch has stated that the

Convention "is already recognized as the

authoritative guide to current treaty

law and practice." S.Exec.Doc.L, 92d

Cong.1st Sess. (1971) at 1.

The international norm is that "a

state’s law enforcement officers may

exercise their functions in the

territory of another state only with the

consent of the other state, given by

duly authorized officials of that

state." Restatement (3d) of Foreign

Relations Law of the U.S., section

432(2).

The treaty’s lack of an express

prohibition on state sponsored

kidnapping is of no importance, because

the parties already believed such action

was barred under international norms.

According to the Charter of the

United Nations, June 26, 1945, 59 Stat.

1031 T.I.A.S. No. 993, Article 2(4), the

avoidance of kidnapping a foreign

national was one of the focuses of

modern extradition treaties. See also

Charter of Organization of American

States, April 30, 1948, 2 U.S.T. 2394,

2429, T.I.A.S. No. 2361, as amended,

Protocol of Buenes Aires, February 27,

1967, 21 U.S.T. 607, T.I.A.S. No. 6847,

Article 20.

This Court has noted that statutes,

wherever possible, must be interpreted

consistently with international law.

Weinberger v. Rossi, 456 U.S. 25, 32

(1982). (Citing Murray v. The Charming

Betsy, 6 U.S. 64, 118 (1804)).

In 1976, Congress specifically

prohibited the DEA from taking part in

arrests of foreign nationals in the

sovereign territory of other

governments. 22 U.S.C. section

2291(c). Foreign Assistance Act of 1961

as amended, section 481(c), as enacted

by section 504(b) of the International

Security Assistance and Arms Export

Control Act of 1976, Pub. L. No. 94-329,

90 Stat. 764 ("Mansfield Amendment").

This action was a specific response *o

concerns over DEA activities abroad.

Sen. Comm. on For. Rels., Internal

Security Assistance And Arms Expert

Control Act, Report On S. 2662,

S.Rep.No. 605, 94th Cong.,2d Sess. 55

(1976), reprinted in, 1976 U.S. Code

Cong. & Admin. News 1378. This statute

the aforementioned international law,

prohibits the type of actions undertaken

by the Government in these cases.

Notwithstanding the foregoing weight

of authority, the Government has chosen

to ignore its international obligations

and to flagrantly disregard the

sovereignty of a Government with whom it

professes to maintain friendly

relations. Simply put, the extradition

treaty was violated.

Bahe

THE TREATY VIOLATION HAS

DEPRIVED ARTICLE III COURTS OF

ANY JURISDICTION TO HOLD

RESPONDENT AND AMICUS CURIAE

TO ANSWER FOR CRIMINAL

OFFENSES AGAINST THE

UNITED STATES.

Restrictions on American seizures

which occur incident to American action

abroad may be imposed by the political

branches through diplomatic

understanding, treaty or legislation,

even though the Constitution itself may

not impose similar restrictions. U.S.

v. Verdugo-Urquidez, 494 U.S. 259, 275

(1990). U.S. Vv. Curtiss-Wright Corp.,

299 U.S. 304, 318 (1936) ("Operation of

the nation in foreign territory must be

governed by treaties, international

understandings and compacts and the

principles of international law").

Accordingly, an extradition treaty may

properly limit the circumstances by

which the U.S. may obtain jurisdiction

over an individual.

This Court has previously ruled that

violations of self-executing treaties

can deprive the Court of jurisdiction.

In U.S. v. Rauscher, 119 U.S. 407

(1886), this Court rejected the same

arguments presently advanced by the

Government, where it held that a person

extradited pursuant to the Great

Britain/U.S. extradition treaty had

standing to object to his prosecution on

different charges. Notwithstanding the

absence of a provision in the treaty

adopting the Rule of Specialty, the

court held that the defendant could

properly object to his prosecution as a

violation of the treaty. The Court

specifically noted that the "proposition

of the absence of express restriction in

the treaty of the right to try him for

other offenses than that for which he

was extradited is met by the manifest

scope of the treaty itself." usc

at page 422.

In Rauscher, this Court explained

that:

It can hardly be supposed that a

Government which was under no treaty

obligation or any absolute

obligation of public duty to seize a

person who had found an asylum

within its bosom and turn him over

to another country for trial, would

be willing to do this, unless the

case was made of some specific

offense of a character which

justified the Government into

depriving the party of his asylum.

It is unreasonable that the country

of the asylum should be expected to

deliver up such a person to be dealt

with by the demanding government

without any limitation, implied or

otherwise, upon its prosecution of

the party.

(The foregoing authorities} all

show that e treat is

limited and defined purpose that the

transfer is made, it is impossible

to conceive of the exercise of

jurisdiction in suc as

other purpose than t ntioned i

the treaty, and ascertained by the

proceedings under which the party is

extradited, without an implication

fe) ud upon the rights

a di d a

to the country which permitted his

extradition. No such view of solemn

public treaties between the great

nations of the earth can be

Sustained by a tribunal called upon

to give judicial construction to

them.

U.S. ¥, Rauscher, supra, at page

422. (Emphasis added).

In Cook v. U.S., 288 U.S. 102

(1933), this Court interpreted the same

treaty involved in Ford v. U.S., 273

U.S. 593 (1927), as imposing a

limitation upon U.S. seizures of British

vessels on the high seas. Cook was the

master of the vessel who contested

forfeiture proceedings of the cargo and

Ship. This Court considered the

language of the treaty and its history

in concluding that Cook had standing to

raise violations of the treaty.

Although the record does not reflect an

official protest by Great Britain, it is

evident that prior protests of seizures

had occurred and that the treaty was

designed to avoid further difficulties.

See U.S. v. Kaufman, 858 F.2d 994, 1008

(Sth Cir. 1988) ("Rauscher , which

involved an extradition treaty between

the U.S. and Britain, was decided

against a backdrop of political

controversy over precisely whether the

treaty contained a rule of specialty").

The Government argued that the

illegality of the seizure was

immaterial, that the Federal court had

jurisdiction and that the claimant by

answering waived any rights to object.

This Court explicitly rejected these

arguments, stating that, "To hold that

adjudication may follow a wrongful

seizure would go far to nullify the

purpose and effect of the Treaty." Id.

at pages 121-122.

This application of Rauscher, Cook,

and Ford has been consistently applied

by the lower courts. U.S. V.

Schouweiler, 19 F.2d 387 (S.D. Cal.

1927); U.S. v. Ferris, 19 F.2d 925 (N.D.

Cal. 1927) (sustaining pleas to the

jurisdiction of the court); and U.S. v.

Postal, 589 F.2d 862, 875 (5th Cir.

1979), cert. denied, 444 U.S. 832 (1979)

("We read Cook and Ford to stand for the

proposition that self-executing treaties

may act to deprive the U.S., and hence

its courts, of jurisdiction over

property and individuals that would

otherwise be subject to that

jurisdiction."); Collier v. Vaccaro, 51

F.2d 17, 19 (4th Cir. 1931) ("An

unlawful arrest is not merely an offense

against the peace and dignity of the

State; an unlawful carrying of a citizen

beyond its boundaries to be dealt with

by the laws of another state is a

violation of the sovereignty of the

former."); Jaffe v. Smith, 825 F.2d 304

(llth Cir. 1987) (acknowledging that

removal of a foreign national from a

country which is a party to an

extradition treaty with the U.S.

accomplished by U.S. agents would

constitute a violation of the treaty.)

Under Rauscher, Cook, and Ford, this

Court clearly lacks jurisdiction over

Respondent and Amicus as a result of

their seizure in violation of the

extradition treaty.

Iil.

THE KER-FRISBEE DOCTRINE IS

INAPPLICABLE TO THE SPECIFIC

FACTS OF THIS CASE.

In Ker v. Illinois, 119 U.S. 436

(1886), a U.S. citizen was forcibly

returned to the U.S. by private

Pinkerton security guards. Ker had fled

to Peru after his indictment in Illinois

state court on fraud and embezzlement

charges. At the time of Ker’s

abduction, Peru was in fact occupied by

the Chilean Army. The private security

guard carried an officia] request for

aaa

extradition within the framework of the

1870 extradition treaty between the U.S.

and Peru, but the seizure was made

outside of formal extradition

proceedings. This Court explicitly

rejected Ker’s claimed "right of asylum"

under the treaty, which presupposed that

a criminal defendant has the right to

insist that procedures under an existing

extradition treaty be followed. This

Court reasoned that since Peru had the

sovereign right to deport Ker if it

chose, it similarly had the right to

consent explicitly or tacitly to his

"informal rendition."

Ker did comment that the treaty did

"regulate or impose a restriction upon

the right of the government of the

country of the asylum to protect the

Criminal from removal therefron." Id.

at 442.

Ker did not address the present

situation in which a signatory to a

treaty with the U.S. formally objected

to the forcible abduction of one of its

nationals from within its borders.

Rather, Peru did not object at all.

Petitioner also relies upon Frisbie

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

Frisbie involved the forcible kidnapping

by Michigan police of a murder suspect

living in Illinois. This Court rejected

a due process claim based on this

forcible abduction and also a claim

based on the Federal Kidnapping Act.

Frisbie did not deal with claimed treaty

violations and thus does not support

Petitioner’s arguments in any way.

All of the cases cited by Petitioner

which rely upon Ker-Frisbee and its

progeny, are factually and legally

distinguishable from the instant case by

one or more of the following factors:

1) The absence of an official protest

by the government of the country from

which the suspect was abducted, 2)

direct involvement or consent of the

foreign government in the rendition of

the suspect to the U.S.; 3) the absence

of direct involvement of the U.S. in the

abduction (or the fact that a state, not

the federal government, was a party to

the criminal proceedings); or 4) the

lack of a valid international

extradition treaty.

In the past fifty years, there have

apparently been only three formal

protests filed by foreign sovereigns

regarding the circumstances in which an

individual has been abducted, namely the

instant cases and Jaffe v. Smith, 825

F.2d 304 (llth Cir. 1987) (protest by

Canada, but no U.S. involvement in

abduction).

See U.S. v. Lira, 515 F.2d 68 (2d

Cir. 1975), cert. denied, 423 U.s. 847

(1975) (Chilean Government voluntarily

honored a DEA request); U.S. v. Cordero,

668 F.2d 32 (1st Cir. 1981), (Panama and

Venezuela voluntarily deported

suspects); U.S. v. Valot, 625 F.2d 308

(9th Cir. 1980), (Thailand voluntarily

deported the suspect); U.S. Vv. Lovato,

520 F.2d 1270 (9th Cir. 1975), cert.

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

was expelled by Mexican officials); U.S.

vV._¢ en, 471 F.2d 744 (9th Cir. 1973),

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

citizens voluntarily deported from

Vietnam); U.S. v. Hamilton, 460 F.2d

1270 (9th Cir. 1972), (U.S. citizen

voluntarily delivered); U.S. v. Herrera,

504 F.2d 859 (5th Cir. 1974), (defendant

voluntarily deported by Peruvian

authorities); U.S. v. Toro, 840 F.2d

1221 (5th Cir. 1988), (Panamanian

authorities voluntarily turned the

defendant over to DEA agents) ; U.S. v.

Rosenthal, 793 F.2d 1214 (11th Cir.

1986), cert. denied 480 U.S. 919

(1987) (defendant turned over pursuant to

a Colombian expv sion Order); U.S. yv.

Marzano, 537 F.2d 257 (7th Cir. 1976),

cert. denied, 429 U.s. 1038

(1977) (defendant turned over by Grand

Cayman authorities); Wentz v. U.S., 244

F.2d 172, 176 (9th Cir. 1957), (no U.S.

involvement in defendant’s voluntary

rendition to U.S. by Mexican officials);

Stevenson v. U.S., 381 F.2d 142 (9th

Cir. 1967), (no U.S. involvement in

Mexican decision to deport U.S.

citizen); U.S. v. ex rel. Lujan Vv.

Gengler, 510 F.2d 62 (2d Cir. 1975),

cert. denied, 421 U.s. 1001

(1975) (absence of an official protest) ;

Matta-Ballesteros Vv. Henman, 896 F.24q

255 (7th Cir. 1990), cert. denied, 111

S.Ct. 209 (1990) (Honduran participation

in Matta’s arrest); U.S. v. Kaufman, 858

F.2d 994 (5th Cir. 1988), (no evidence

that the Mexican Government objected to

trial); U.S. v. Zabaneh, 837 F.2d 1249,

1261 (5th Cir. 1988) (Neither Guatamala

nor Belize protested Respondent’s

detention); U.S. v. Evans, 667 F.Supp.

974, 979 (S.D.N.Y. 1987), (no protest by

Bermuda); U.S. v. Davis, 767 F.2d 1025

(2a Cir. 1985), (given the absence of

any protest from either Switzerland or

the U.S. as to a mutual assistance

treaty, the defendant had no standing to

move to exclude or suppress Swiss bank

records on the basis of a purported

violation of the treaty.) Ex Parte

Lopez, 6 F.Supp 342 (S.D. Tex. 1934) (no

U.S. involvement. )

The Frisbie line of cases deals only

with abductions of suspects from one

state to another. There were no

international treaty obligations at

issue under Frisbie. See e.g. Mahon v.

ustice, 127 U.S. 700 (1888) (states of

the Union have only limited sovereignty

and therefore do not have the same

sovereign rights to protest the invasion

of their territory).

In Ford v. U.S., 273 U.S. 593

(1927), this Court highlighted the

critical turning point distinguishing

that case and the instant case from Ker

, namely, Ker was not decided upon

treaty grounds. The Court specifically

stated that Ker did not call upon the

Court to determine whether the seizure

violated the treaty and if so, whether

"the power of the Court to hold the

defendant for trial" was implicated.

Id. at page 606.

Because a treaty violation is at

issue, unlike Ker and Frisbee, and also

because the U.S.’ involvement is

manifest, those cases are simply not

applicable to the instant facts. AS was

the case in Ford v. U.S., supra, this

Court should reject the Solicitor

General’s assertion that Ker v. Illinois

governs what is a quite different

question.

IV.

THE VICTIM OF THE KIDNAPPING

HAS STANDING TO RAISE THE

TREATY VIOLATION AS A BAR TO

HIS PROSECUTION IN THE

OFFENDING COUNTRY.

This Court has long recognized

extradition treaties as self-executing

regardless of whether the treaty term is

implicit (U.S. v. Rauscher, supra) or

explicit, or whether it provides a

mechanism for domestic enforcement.

Valentine v. U.S., 299 U.S. 5 (1936);

Johnson v. Browne, 205 U.S. 309 (1907).

See Dennis v. Higgins, 111 S.Ct. 865

(1991) (finding implicit rights of

individuals under the commerce clause, a

self-executing constitutional limit

action on state power).

As early as 1865, the U.S.

Government recognized that extradition

treaties create more than "rights only

between the Governments concerned."

Letter from Secretary of State Gresham

to German Ambassador. See IV Moore,

International Law Digest, 321 (1906).

Some years earlier, this Court in

v.S. ¥,. Rauscher, Supra, stated that:

A treaty may also contain provisions

which confer certain rights upon the

citizens or subjects of one of the

nations residing in the territorial

limits of the other, which partake

of the nature of municipal law and

which are Capable of enforcement as

between private parties in the

courts of the country .. . When

rights (of a private citizen or

subject under a treaty) are to be

enforced in a court of justice, that

court resorts to the treaty for a

rule of decision for the case before

it as it would to a statute.

- = =

Nor can it be said that, in the

exercise of such a delicate power

under a treaty so well guarded in

every particular, its provisions are

obligatory alone on the State which

makes the surrender of the fugitive,

and that fugitive passes into the

hands of the country which charges

him with the offense, free from all

the positive requirements and just

implications of the treaty under

which the transfer of his person

takes place. A moment before he is

under the protection of a government

which has afforded him an asylum

from which he can only be taken

under a very limited form of

procedure, and a moment after he is

found in the possession of another

sovereignty by virtue of that

proceeding, but divested of all the

rights which he had the moment

before, and of all the rights which

the law governing that proceeding

was intended to secure.

x * *

{U)}nder the doctrine that the treaty

is the supreme law of the land, and

is to be observed by all the courts,

state and national, “anything in the

laws of the states to the contrary

notwithstanding," if the state court

should fail to give due effect to

the rights of the party under the

treaty, a remedy is found in the

judicial branch of the Federal

Government, which has been fully

recognized. This remedy is by writ

of error from the Supreme Court of

the U.S. to the state court which

may have committed the error. ... If

the party, however, is under arrest

and desires a more speedy remedy in

order to secure his release, a writ

of habeas corpus from one of the

Federal Judges or Federal Courts,

issued on the ground that he is

restrained of his liberty in

violation of the Constitution or a

law or a treaty of the U.S., will

bring him before a Federal tribunal,

where the truth of that allegation

will be inquired into, and, if it be

well founded, he will be discharged.

cee t ° Ww

ositi i

ersons

persons extradited under the treaty

cannot be enforced by the judicial

branch of the governm ent, and that

executive branches eat

governments for redress.

U.S. v. Rauscher, supra, at pages

418-419, 421, 430-431. (emphasis

added).

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

993 (1927), this Court explicitly

recognized that persons seized on the

high seas in violation of a treaty

between Great Britain and the U.S. may

raise the violation of the treaty as a

defense. There, the defendants did not

enter a plea to the jurisdiction

(subsequently abolished by the Federal

Rules of Criminal Procedure) and

therefore could not raise it for the

first time on appear. See alsoCook v.

United States, 288 U.S. 102 (1933)

(private party had standing under same

treaty).

The purpose of the treaty and

objectives of its creators clearly

indicate that the treaty, especially

Article 9, was intended to confer

individual rights enforceable in court,

at least as an affirmative bar to

jurisdiction. Moreover, because the

treaty creates a specific right, 4

remedy must be implied to protect that

right. See Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971) (allowing

award of damages to redress Fourth

Amendment violations); Texas Pacific

Railway Co. v. Rigsby, 241 U.S. 33, 40

(1916) ("A civil remedy may be implied

for those clearly within the protective

realm of legislation or obligations in

the national interest").

Respondent and Amicus have standing

to raise the treaty violation as a bar

to prosecution in this country by virtue

of the fact that they are the direct

beneficiaries of the interests protected

by the treaty.

In Sierra Club v. Morton, 405 U.S.

727 (1871), this Court stated that:

Where the party does not rely on any

Specific statute authorizing

invocation of the judicial process,

the question of standing depends

upon whether the party has alleged

such a ‘personal stake in the

outcome of the controversy, ’

(citation) as to ensure that ‘the

dispute sought to be adjudicated

will be presented in an adversary

context and in a form historically

viewed as capable of judicial

resolution." (Citation).

Sierra Club v. Morton, Supra, at

pages 732-733.

The doctrine of standing serves both

as a constitutional limitation on

judicial power deriving from the case in

controversy requirement in Article III

for exercise of the federal judicial

power, and a self-imposed prudential

doctrine intended to monitor judicial

review of public acts. The standing

inquiry focuses on the party before the

court, asking whether he has such a

personal stake in the outcome of the

controversy as to warrant his invocation

of federal court jurisdiction and to

justify exercise of the court’s remedial

powers on his behalf. Werth v. Selden,

422 U.S. 490, 498-499 (1975); Baker v.

Carr, 369 U.S. 186, 204 (1962). Here,

Respondent and Amicus are not invoking

federal court jurisdiction, but

challenge it by virtue the violation of

a treaty which confers certain rights

upon them. They are only seeking to

justify the exercise of the Court’s

remedial powers.

In this sense, the term standing is

misleading. Nevertheless, Respondent

and Amicus have a direct interest

against being subject to any criminal

proceedings that violate treaty

provisions. The fact that Amicus is

currently imprisoned in the Federal

Penitentiary at Leavenworth, Kansas, and

ineligible for parole until the late

2lst century (and Respondent being held

in lieu of a ten million dollar bond) is

sufficient interest to invoke the

court’s remedial powers.

Federal courts have repeatedly held

that individuals situated in the same

positions as Respondent and Amicus have

standing to raise the treaty violation

as the result of a clear and unequivocal

protest by the offended sovereign.

Matta-Ballesteros v. Henman, 896 F.2d

255, 259 (7th Cir. 1990), cert. denied,

111 S.Ct. 209 (1990); U.S. v.

Verdugo-Urquidez, supra, 939 F.2d at

page 1355, fn.13 (noting that some

circuits no longer require a protest be

filed to coffer standing to raise a

specialty violation); U.S. v. Cuevas,

847 F.2d 1417, 1427 (9th Cir. 1988),

cert. denied, 109 S.Ct. 422 (1989); U.S.

v. Zabeneh, 837 F.2d 1249 (5th Cir.

1988).

As the Court stated in U.S. Vv.

Diwan, 864 F.2d 715 (llth Cir. 1989),

cert. denied, 109 S.Ct. 3249 (1989):

In U.S. v. Rauscher, 119 U.S. 407

(1886), the Supreme Court fashioned

a remedy for the accused threatened

with prosecution for offenses other

than those for which extradition had

been granted. However, the

objective of the rule is to ensure

that the treaty is faithfully

observed by the contracting party.

(Id. at page 430). The extradited

individual therefore, can raise only

those objections ' ition

ount iaht conside ac f

the extradition treaty.

U.S. v. Diwan, supra, at page 721.

As a result of Mexico’s protest, the

harm to Respondent, and Amicus and the

purpose of the treaty, standing to

object to the violation of a

self-executing treaty has been

conferred. To deny standing would be to

totally ignore the purpose and

objectives of the treaties’ founders.

See U.S. ex rel. Donnelly v. Mulligan,

76 F.2d 411, 512-513 (2d Cir 1935) ("A

rule of domestic law conferring a

judicial remedy on the extraditee can be

a rule according him the remedy only if

the surrendering Government would

object, since the underlying substantive

wrong, which grows out of international

law, is only to the latter.") Fiocconi

v. Attorney General of U.S., 462 F.2d

475 (2d Cir. 1972), cert. denied, 409

U.S. 1059 (1972) ("Justice Gray

concurred in the result of Rauscher on

the grounds that, in his view, Rev.Stat.

section 5275 (now Title 18 U.S.C.

section 3192), providing for the

protection of persons delivered by any

foreign government, indicated the

intention of Congress to vest extradited

persons with a judicial remedy for

breach of an extradition treaty by the

U.S.").

Vv.

THE INSTANT ISSUE IS NOT

A POLITICAL QUESTION.

As this Court itself noted in Baker

v. Carr, 369 U.S. 186 (1962), “It is

error to suppose that every case or

controversy which touches foreign

relations lies beyond judicial

cognizance." Id. at page 211. This

Court has stated that an issue is

nonjusticiable under the political

question doctrine when one of the

following circumstances is present:

(1) ‘a textually demonstrable

constitutional commitment of the

issue to a coordinate political

department’; (2) ’a lack of

judicially discoverable and

manageable standards for resolving

it’; (3) ‘the impossibility of

deciding without an initial policy

determination of a kind clearly

nonjudicial discretion’; (4) ‘the

impossibility of a court’s

undertaking independent resolution

without expressing lack of the

respect due coordinate branches of

government’; (5) ‘an unusual need

for unquestioning adherence to a

political decision already made’; or

(6) ‘the potentiality of

embarrassment from multifarious

pronouncements by various

departments on one questions.’

INS v. Chadha, 462 U.S. 919, 941,

2779, 77 L.Ed.2d 317 91983) (quoting

Baker v. Carr, 369 U.S. 186, 217

(1962).

The Baker Court identified several

instances where, although the Executive

Branch’s dominant role in conducting the

foreign affairs of the U.S. was

implication, the controversy was subject

to judicial action:

‘Although a court will not

Ordinarily determine whether a

treaty has been terminated, in the

absence of conclusive government

action, a court may construe a

treaty and determine the answer’.

Terlinden v. Ames, 184 U.S. 270, 285

(1902); Society for the Propagation

of the Gospel in Foreign Parts v.

New Haven, 21 U.S. (8 Wheat) 464 ,

492-495 (1823); Clark v. Allen, 331

U.S. 503 (1947).

Similarly, a court may act to

determine whether a state of

belligerency exists abroad to

determine the applicability of

neutrality statutes when the

"executive proclamations" fall short

of "a conclusive answer." The Three

Friends, 166 U.S. 1, 63, 66 (1897).

Although it is the executive that

determines a person’s status as a

representative of a foreign

government, (Ex Parte Hitz, 111 U.S.

766 (1884)), the executives’

statements will be construed where

necessary to determine the court’s

jurisdiction. In re Baiz, 135 U.S.

403 (1890).

Similar judicial action in the

absence of a recognizedly

authoritative executive declaration

occurs in cases involving the

immunity from seizures of vessels

owned by friendly foreign

governments. Compare Ex Parte Peru,

318 U.S. 578 (1943) with Mexico v.

Hoffman, 324 U.S. 30, 34-35 (1945).

Baker v. Carr, supra, at pages

211-213.

Properly understood, the political

question doctrine restrains courts from

reviewing an exercise in foreign policy

judgment by the coordinate political

branch to which authority to make that

judgment has been constitutionally

committed. Goldwater v. Carter, 444

U.S. 996, 1006 (1979) (Brennan, J.,

dissenting from grant of certiorari and

dismissal of case.) This case presents

no such instance.

hapiro v e P

499 F.2d 527 (D.C. Cir. 1974), the Court

noted that:

--.- Subject to judicial

determination of the applicability

of t s e

of the U.S. to the facts of a given

case, extradition is ordinarily a

matter within the exclusive purview

of the executive.

Shapiro v. Secretary of State,

Supra, at page 531.

Courts presiding over extradition

cases are routinely called upon to

determine the existence of subject

matter and personal jurisdiction as well

as the existence of a valid treaty.

Courts are also called upon to interpret

the terms of the treaty. mani v.

District Court, 834 F.2d 1444, 1447 (9th

Cir. 1987); v. U.S. s , 832

F.2d 492, 495 (9th Cir. 1987), cert.

denied, 486 U.S. 1059 (1988).

Under Article III, the courts

clearly have textual authority to

construe treaties and fashion remedies

to enforce rights, Japan Whaling

Association v. American Cetacean

Society, 478 U.S. 221, 230 (1986);

Bivens v. Six Unknown Named Agents,

supra, 403 U.S. at page 392.

Furthermore, it is beyond dispute that

it is the province of the judiciary to

say what is the law. Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803).

All that this Court is required to

do in this case is determine which of

the contracting parties’ interpretations

of the treaty is more consistent with

the purpose and objectives of the treaty

and the long-standing norms of

international law which of necessity,

govern the relations between the U.S.

and Mexico. As Respondent ably points

out, the Government, not Respondent or

Amicus, has invoked the jurisdiction of

this Court by filing criminal charges

and orchestrating kidnappings from

Mexico to enforce the narcotics laws.

It then asks this Court to turn a blind

eye towards its actions, in effect

giving it carte blanche to act around

the world as it sees fit without any

accountability. This Court is the final

arbiter of the legality of Government

action and has the clear authority to

determine whether a treaty, as the

supreme law of the land, has been

violated as the result of the

Executive’s failure to faithfully

execute the laws.

' See The Paquete Havana, 175 U.S. 677

(1900), (holding that the seizure of

fishing vessels in violation of

customary international law was found to

be justiciable in U.S. courts)

. a= a eet =

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pas

CONCLUSION

"For better or worse, we live in a

world of nation-states," in which our

Government must honor the letter and

spirit of its freely negotiated

international compacts and obligations.

U.S. v. Verdugo-Urquidez, 494 U.S. at

page 275. Repatriation of Respondent

and Amicus will serve this important

interest.

Amicus Curiae VERDUGO respectfully

requests that the decisions of the U.S.

Court of Appeals for the Ninth Circuit

be affirmed.

Respectfully submitted,

GOLDBERG, FRANT & HALL

PATRICK Q. HALL

March 4, 1992

CHARLES L. GOLDBERG

March 4, 1992

CERTIFICATE OF SERVICE

I, RONALD M. FRANT, hereby certify

that I am a member of the Bar of the

United States Supreme Court and that on

March 5, 1992, I caused forty copies of

the revised Brief of Amicus Curiae RENE

MARTIN VERDUGO-URQUIDEZ in Support of

Respondent HUMBERTO ALVAREZ-MACHAIN to

be mailed first class to the Clerk of

the United States Supreme Court. I also

certify that I served in identical

fashion three copies of the

aforementioned document upon the Office

of the Solicitor General of the United

States, Department of Justice,

Washington D.C. 20530 and three copies

upon Paul L. Hoffman, Counsel of Record

for Respondent HUMBERTO ALVAREZ-MACHAIN

by mailing them to the ACLU Foundation

of Southern California, 1616 Beverly

Boulevard, Los Angeles, California 90026.

RONALD M. FRANT

AMICUS. BRF/VERDUGO

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.