# Petition for Writ of Certiorari — Matta-Ballesteros v. Henman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 878

## Text

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IN THE i

Supreme Court of the United States

OcToBER TERM, 1989

JUAN RAMON MATTA-BALLESTEROS,
Petitioner,
VS.

GARY ™.. HENMAN, Warden, United States Penitentiary,

Marion, Illinois,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

MARTIN R. STOLAR
Attorney for Petitioner

351 Broadway (4th Floor)
New York, New York 10013
(212) 219-1919

LAWRENCE MARK STERN
Of Counsel

100 Hudson Street

New York, New York 10013

(212) 925-6863

QUESTIONS PRESENTED

1. May officers or agents of the United States engage in tor-
ture on foreign soil? If not, may a suspect tortured abroad and
thereafter forcibly brought to this country nevertheless be held
for trial in this country?

2. Does international law prohibit kidnaping from abroad by
or on behalf of the United States of a suspect accused of crime
in this country?

3. Does the Constitution prohibit kidnaping from abroad by
or on behalf of the United States of a suspect accused of crime
in this country?

LIST OF PARTIES

The parties to the proceedings below were the petitioner Juan
Ramon Matta-Ballesteros and the respondent, Gary L. Henman,
Warden of the United States Penitentiary at Marion, I]linois.

TABLE OF CONTENTS

WuUnettne FRESENTIED ............
es
8 6)
JURISDICTION ...... <A hee

CONSTITUTIONAL AND TREATY
PROVISIONS INVOLVED.............

REASONS FOR GRANTING THE WRIT
8
APPENDIX

Opinion of the Court of Appeals for the
a

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tates A-]

Opinion of the United States District Court for

the Southern District of Illinois .......

ele Rt B-]

' i

TABLE OF AUTHORITIES

“Cases: Page
Bell v. Wolfish, 441 U.S. 520 (1979)............ 13n
Cook v. United States, 288 U.S. 102 (1933) ...... 10, 15
Coolidge v. New Hampshire, 403 U.S. 433, 488
18 | Bape a emiangae uae SPiPes Satire itp ae nee thee 12
Ford v. United States, 273 U.S. 593 (1927) ...... 9, 10,
13, 15
Frisbie v. Collins, 342 U.S. 519, 522 (1952)...... 13, 14
Gerstein v. Pugh, 490 U.S. 103 (37S)... 5... . ll
Graham v. O'Connor, 109 S Ct. 1865 (1989) .... 13n
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) .... 1]
Ker v. iitinois, 119: U.S. 496: (1902)... .-.. ... . 3,14
Mapp v. Ohio, 367 U.S. 643 (1961)............. 13

Matta-Ballesteros v. Henman, F.2d ;
No. 88-2767, February 21, 1990, slip. op. at 5

Re Ronin iy Maen Pkg far nek eral hatin’ 7n, lin
McNabb v. United States, 318 U.S. 332 (1946) .. 12
Rochin v. California, 342 U.S. 165 (1952) ....... 9, 10-11,

12, 14
Terry v. Ohio, 302 U.S. 1, 19 (1968) ........... 12
_ United States v. Crews, 445 U.S. 463 (1980) ..... 1]

United States v. Darby, 744 F.2d 1508 (11th Cir.,
1984) cert. den., 471 U.S. 1100 (1985) cert.
Gem, 423 U.S. GES (GTS) 2 eee. 9, 14

vi

Cases: Page

United States v. Emery, 591 F.2d 1296 (9th Cir.,

ei si ee ct Re ete: 14
United States v. Ferris, 19 F.2d 387 (N.D. Cal.,

RI rt Be J Citas BERGE 15
United States v. Fielding, 645 F.2d 719 (9th Cir.,

IT Fn ea rks Coe dg ans 14
United States v. Hasting, 461 U.S. 499 (1983)... 12

United States v. Herrera, 504 F.2d 859 (5th Cir.,
ER re hee Lala yar succes 14

irs rac ce eae hale ee 15
United States v. Lira, 515 F.2d 68, 72-73 (1975)

(Oakes, C.J., concurring), cert. den. 423 U.S.

ata es gle gk eo ee eet 12, 14

United States v. Lopez, 542 F.2d 283 (5th Cir.,
ET Ree en. Mit ee oo 1S ce ee 15

United States ex. rel. Lujan v. Gengler, 510 F.2d
62, 68 n.9 (2d Cir., 1975) cert. den. 421 U.S.
NS 5 So bat ang acs ace peek 14

United States v. Lovato, 520 F.2d 1270 (9th Cir.,
1975) cert. den. 423 U.S. 985 (1975).......... 14

United States v. Rauscher, 119 U.S. 407 (1988) .. 9, 10, 15

United States v. Russell, 411 U.S. 423, 431-32
an. a" akin s bE4 vee ee 1]

United States v. Schouweiler, 19 F.2d 387 (S.D.
| So nee iri 15

vi

Cases:

United States v. Toscanino, 500 F.2d 267 (2d
oe UOR ioc ee en eee

United States v. Trenary, 473 F.2d 680 (9th Cir.,
|< Oe ee ani rare ee we Pan etaaerg, WOU std Sepiat eee, 914
SO ire hc ah le ele ai ee eee ee ee

United States v. Verdugo-Urguidez,
ised BA ee GR. EE LE. os ee eae

United States v. Winter, 509 F.2d 975 (5th Cir.,
1975) cert. den. 423 U.S. 825 (1975)..........

Valentine v. United States ex. rel. Neidecker, 299
a ee ee ee ees

United States Constitution:

United States Constitution: Amendment V
(U.S.C.A. Const. Amend. V) ................

United States Constitution: Article VI Clause 2.
(U.5.4, A. Comet. Metis VE)... ee ce

Treaties:

1909 Extradition Treaty Between the United
States and Honduras (37 Stat 1616, 45 Stat
RON og ere Ce es

1933 Inter-Americas Treaty (49 Stat 31ll).......

International Covenant on Civil and Politica!

Rights (Dec. 16, 1966, 999 UNTS 171 reprinted
iS TE See CE ee wee

Si

Page

9, 14

14

9, 14

9

10

bo

bo

10n

Vill

Page
Universal Declaration of Human Rights (GA Res.

217 A (III), U.N. Doc. A/810 (1948).......... 5, 10n
Statutes:

Be ita SD oe ee ee oe ee. 2
De eee ee eee, ee Aes ihe 7n
ae es PE ae ee ee 7n
oe oe os ee ike see 13
Other Authorities:

Constitution of the Republic of Honduras,

January, 1982, Article 102. ............ ee
New York Times, October 14, 1989, p.6........ 8, 9
1 Oppenheim, International Law 295 (8th ed.,

oc ENP RE ee Vide, Rett ON ba tic = eit 2 Ae 10n

Restatement (Third) of the Foreign Relations Law
of the United States §§ 432(2), 433(1)(b) ...... 10n

No.

IN THE

Supreme Court of the United States

OctToBer TERM, 1989

JUAN RAMON MATTA-BALLESTEROS,
Petitioner.
VS.

GARY L. HENMAN, Warden, United States Penitentiary,

Marion, Illinois,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

The petitioner, Juan Ramon Matta-Ballesteros, respectfully
prays that a writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the Seventh
Circuit, entered in the above entitled proceeding on February
21, 1990.

OPINIONS BELOW
The opinion of the Court of Appeals for the Seventh Cir-

cuit has not been reported. It is reproduced in the appendix
hereto.

bo

The opinion of the United States District Court for the
Southern District of I!!inois is reported at 697 F. Supp. 1040
(S.D.III., 1988) and is reproduced in the appendix hereto.

JURISDICTION

The judgment of the Court of Appeals was entered on
February 21, 1990. The jurisdiction of this Court is invoked pur-
suant to 28 U.S.C.§ 1254(1).

CONSTITUTIONAL AND TREATY PROVISIONS
INVOLVED

United States Censtitution: Amendement V
(U.S.C.A. Const. Amend V)

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases aris-
ing in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall pri-
vate property be taken for public use, without just
compensation.

United States Constitution Article VI Clause 2.
(U.S.C.A. Const. Article VI)

This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, un-
der the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.

1909 Extradition Treaty Between the
United States and Honduras
(37 Stat 1616, 45 Stat 2489)

Article VIII

Under the stipulations of this Convention, neither
of the Contracting Parties shall be bound to deliver
up its own citizens.

Article XI

Requisitions for the surrender of fugitives from
justice shall be made by the respective diplomatic
agents of the Contracting Parties. . .

It shall be competent for such diplomatic or
superior consular officers to ask and obtain a man-
date or preliminary warrant of arrest for the person
whose surrender is sought, where upon the judges and
magistrates of the two governments shall respective-
ly have power and authority, upon complaint made
under oath, to issue a warrant for the apprehension
of the person charged, in order that he or she may
be brought before such judge or magistrate, that the
evidence of criminality may be heard and considered,
and if, on such hearing, the evidence be deemed suf-
ticient to sustain the charge, it shall be the duty of
the exaimining judge or magistrate to certify the same
to the proper executive authority, that a warrant may
be issued for the surrender of the fugitive.

1933 Inter-Americas Treaty
(49 Stat 3111)
Article 1

This right [of requisition] shall be claimed only
under the following circumstances: (a) That the
demanding state have the jurisdiction to try and to

punish the delinquency which is attributed to the in-
dividual whom it desires to extradite. (b) That the act
for which extradition is sought constitutes a crime and
is punishable under the laws of the demanding and
surrendering states with a minimum penalty of im-
prisonment for one year.

Article 2

When the person whose extradition is sought is a
citizen of the country to which the requisition is ad-
dressed, his delivery may or may not be made, as the
legislation or circurastances of the case may, in the
judgment of the surrendering State, determine. If the
accused is not surrendered, the latter State is obliged
to bring action against him for the crime for which
he is accused, if such crime meets the conditions
established in sub-article (b) of the previous article.
The sentence pronounced shall be communicated to
the demanding State.

Article 8

The request for extradition shall be determined
in acccordance with domestic legislation of the sur-
rendering State and the individual whose extradi-
tion is sought shall have the right to use all the re-
medies and resources authorized by such legislation,
either before the judiciary or the administrative
authorities as may be provided for by the aforesaid
legislation.

Constitution of the Republic of
Honduras, January, 1982
Article 102

No Honduran citizen may be extradicted nor turned
over to the authorities of a foreign state.

Universal Declaration of Human Rights
(GA Res. 217 A (III), U.N. Doc. A/810 (1948))

Article 9 (Article 3)

No one shall be subjected to arbitrary arrest, deten-
tion or exile.

Article 5

No one shall be subjected to torture or to cruel. in-
human or degrading treatment.

International Covenant on Civil and Political Rights
(Dec. 16, 1966, 999 UNTS 171 reprinted in 6 ILM
368 (1967))

Article 9(1)
[N]o one shall be deprived of his liberty except on such

grounds and in accordance with such procedure as are
established by laws.

STATEMENT OF THE C ASE

In 1985, the United States made a formal request to the
Republic of Colombia for the extradition of petitioner who had
been taken into custody in that country. After the formal ex-
tradition attempt failed when appellant was returned to his
native Honduras, the United States tried and failed three times
during the next three years to kidnap petitioner from Honduras.
No extradition request was made to the Honduran government.

Finally, on April 5, 1988, petitioner was seized at his home
in Honduras by United States law enforcement agents, pushed
onto the floor of a van, and hooded. The agents planted a plastic
bag of white powder in the house and drove petitioner to a U.S.
Air Force base in Honduras. During the hour and a half ride
in the van, petitioner was beaten and burned with electric stun

guns.

From Honduras, petitioner was flown to Miami, then to Puer-
to Rico, then to New York City, and finally to the federal peniten-
tiary in Marion, Illinois, where twenty-four hours after his ab-
duction, he was incarcerated. During the two hour flight from
Honduras to Miami, United States agents beat and shocked him
with the stunguns about the body, testicles, and feet.

Upen his arrival at Marion, petitioner was examined by
medical personnel, and photographs of his body were taken. The
medical records report abrasions and blisters. The photographs
were submitted to the manufacturer of the electric stun gun,
and the manufacturer reported that the marks on petitioner’s
body were consistent with wounds made by the gun. The
manufacturer also reported that the United States Marshals
Service carries the gun.

On April 25, 1988, petitioner filed a petition for a writ of
habeas corpus in the United States District Court for the
Southern District of Illinois claiming that the United States had
obtained jurisdiction over him by kidnapping and torture in
violation of the Honduran and United States Constitutions, in-
ternational law and treaty, and the supervisory power of the

“I

Courts, and seeking petitioner’s release and return to Honduras'
Submitted in support of the petition were the affidavit of peti-
tioner swearing to the facts of kidnapping and torture by agents
of the United States; the original authenticated testimonies of
Jose Alfredo Carias Sierra, Mercedes Obdulio Posas Martinez,
and Yolanda Aquilera Larios who saw the abduction and tor-
ture by civilians who were later identified to them by Honduran
army officers as United States Drug Enforcement Agents; the
original authenticated testimony of Felix Cerna Salgado, a Hon-
duran Congressman, who represented that the Honduran peo-
ple, public officers of the three branches of government, and
civic and social organizations protested the kidnapping and that
a bill denouncing it was introduced in the Honduran legislature;
petitioner's medical records from the penitentiary at Marion,’
and the report of the stun gun manufacturer.

Petitioner also referred the Court to public sources of infor-
mation evidencing that the procedures used by the United States
in this case were standard operating procedures and that they
were directed by central governmental authorities. A factual
statement by Michael Pancer, attorney for Rene Martin Verdugo-
Urquidez, documented the kidnapping of Mr. Verdugo-
Urquidez from Mexico in 1986. Arribel Zapata was kidnapped
from Panama on May 5, 1987, and transported to the Central
District of California for trial on a narcotics case. In January,
1985, Thomas Roessler and his four year old daughter were kid-
napped in Baja, California, Mexico. On November 10, 1985,
Angel John Zabaneh was kidnapped by United States Drug En-
forcement Agents in Guatemala, tortured, and flown to Texas.

' The petition was filed pursuant to 28 U.S.C. § 224] challenging the lawfulness
of his custody obtained by abduction and torture. The Seventh Circuit er-
roneously characterized the petition as a challenge to an underlying judgment
of conviction pursuant to 28 U.S.C. § $2255. Matta-Ballesteros v. Henman,
F.2d ___, No. 88-2767, February 21, 1990, slip. op. at 5 n.4 (Appendix
A, infra).

* The prison authorities refused to release the photographs, but they have since
been obtained pursuant to the Freedom of Information Act.

In May, 1987, U.S. agents planned the kidnapping in Panama
of Jesus Anibal Zapata. From December, 1986, througl: January,
1988, U.S. Marshals and other law enforcement authorities tried
unsuccessfully to kidnap petitioner on four separate occasions
as part of “Operation Leyende,” a Washington directed inter-
national campaign to avenge the death of Drug Enforcement
Agent Enrique Camarena. On June 21, 1989, according to the
New York Times of October 14, 1989, at p.6, the Justice Depart-
ment officialy notified the Federal Bureau of Investigation that
it may kidnap people in foreign countries and that it may do
so without consent of the foreign governments.

The United States submitted an affidavit from Juan J. Donato
Morales, a Marshal, who admitted that petitioner was ab-
ducted, taken to a Marshals Service van, cuffed, hooded, and
placed on his back with his hands underneath him behind his
back. There were two Marshals and two Honduran officers in
the van, and one of the Hondurans had a stun gun. The Mar-
shal denied that petitioner had been abused _or tortured.

On August 16, 1988, the District Court denied the writ
without a hearing. It had considered the pleadings and affidavits
in the light most favorable to petitioner, and held that an of-
ficial Honduran government protest was necessary to effectuate
petitioner’s rights under the international treaties, that Fifth
Amendment due process does not require a United States Court
to divest itself of jurisdiction over a foreign national kidnapped
and forcibly brought to the United States by United States Law
enforcement agents, and that the allegations of torture of a
fugitive from United States courts do not rise to the level of
outrageousness necessary to come within any due process ex-
ception to United States jurisdiction.

An appeal was taken to the United States Court of Appeals
for the Seventh Circuit, which, on February 21, 1990, affirmed
the District Court, but held flatly that there was no due pro-
cess exception to United States Courts’ jurisdiction obtained by
torture of a foreign national.

REASONS FOR GRANTING THE WRIT

The writ should issue to resolve Circuit Court conflict over
whether international law and treaty, Article VI of the United
States Constitution, Fifth Amendment due process, and the
Court’s supervisory power require United States Courts to decline
jurisdiction when a foreign national has been kidnapped from
his country of residence by United States law enforcement agents
and tortured en route to arra.gnment on a criminal charge in
the United States. The United States Court of Appeals for the
Seventh Circuit in this case, and the Fifth and Eleventh Cir-
cuits in other cases, hold that jurisdiction should be retained
under these circumstances (United States v. Darby, 744 F.2d
1508 (11th Cir., 1984) cert. den., 471 U.S. 1100 (1985); United
States v. Winter, 509 F.2d 975 (5th Cir., 1975) cert. den. 423
U.S. 825 (1975)); the Second and Ninth Circuit Courts of Ap-
peal hold that jurisidiction should be declined (United States
v. Toscanino, 500 F.2d 267 (2d Cir., 1974); United States v. Valot,
625 F.2d 308 (9th Cir., 1980)); and this Court has held that
United States Courts must divest themselves of jurisdiction ob-
tained in violation of international] treaty and must dismiss pro-
secutions tainted by law enforcement conduct which shocks the
conscience. United States v. Rauscher, 119 U.S. 407 (1988): Ford
v. United States, 273 U.S. 593 (1927); Cook v. United States,
288 U.S. 102 (1933); Rochin v. California, 342 U.S. 165 (1952).
The Court should settle this conflict in the Circuits and the
misinterpretation of its precedents, because there is evidence that
in recent years the United States has been using kidnapping and
torture as institutionalized techniques for obtaining jurisdiction
over foreign nationals, and according to the New York Times
October 14, 1989, at p. 6, the Justice Department has officially
approved FBI kidnapping on foreign soil as a law enforcement
technique.

Petitioner was seized by abduction in violation of interna-
tional law, the 1909 Extradition Treaty between the United States
and Honduras (37 Stat. 1616, 45 Stat. 2489), the Inter Americas
Treaty oi 1933, to which both the United States and Honduras
are signatories (49 Stat. 3111), Article 102 of the Constitution

10

of the Republic of Honduras,’ and decisions of this Court declin-
ing jurisdiction in such cases. In 1888, in United States v.
Rauscher, 119 U.S. 407, the Court held that United States courts
could not try an international! fugitive in violation of a treaty
provision which limited jurisdiction to crimes set forth in an
extradition request. In 1927, the Court in Ford v. United States,
273 U.S. 593, held that if a motion to bar prosecution had been
made prior to the trial of defendants illegally seized in viola-
tion of international treaty, the case would have been dismiss-
ed. In 1933, in Cook v. United States, 288 U.S. 102, 121, the
Court held again that where the seizure of a boat used for smug-
gling liquor was rendered illegal by international treaty, “Our
government, lacking power to seize, lacked power, because of
the Treaty, to subject the vessel to our laws.” And again in 1936,
the Court held, “the Constitution creates no executive
prerogative to dispose of the liberty of the individual... The
Jegal authority does not exist save as it is given by act of con-

gress or by terms of a treaty.” Valentine v. United States ex. rel.
Neideckez, 299 U.S. 5,9 (1936).*

The Court has never retreated from the Rauscher-Ford-Cook
bar to jurisdiction in violation of treaty. Rather, it has expanded
upon the legal bases and factual circumstances that would re-
quire a United States Court to divest itself of the right to pro-
ceed to conviction in a criminal case. In 1952, in Rochin v.

* The 1909 Treaty guarantees adherence to Honduran Constitution Article 102,
which provides that no Honduran citizen may be extradicted “nor turned over
to the authorities of a foreign state,” and the 1933 Treaty specifically accords
to the citizens of signatory countries “the right to use all the remedies and
resources authorized” against extradition requests which have to be “deter-
mined in accordance with the domestic legislation of the surrendering state.”
According to Articles 2 and 8 of the 1933 Treaty, the United States was obligated
to formally seek extradition and upon its denial, Honduras was obligated to
try petitioner for the offenses charged in the extradition request.

* International law is violated by government abduction and torture. 1 Op-
penheim, International Law 295 (8th ed., 1955); The Universal Declaration
of Human Rights, GA Res. 217A (ill), U.N. Doc. A/810, at 71, Articles 3,52:
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS
171 reprinted in 6 ILM 368 (1967) Article 9(1); Restatement (Third) of the
Foreign Relations Law of the United States §§ 432(2), 433(1)(b).

1]

California, 342 U.S. 165, 171-172, the Court held that, “Regard
for the requirements of the Due Process clause inescapably im-
poses upon this Court an exercise of judgment .. . to ascertain
whether ... this course of proceeding by agents of the govern-
ment is bound to offend even hardened sensibilities [with]
methods too close to the rack and the screw to prevent consti-
tional differentiation.” In Rochin, government agents pumped
a stomach; in this case they abducted petitioner, hooded him,
and beat and burned him with a stun gun repeatedly over a
tweny-four hour period. “This is conduct that shocks the con-
science.” Rochin, supra.

The Court has repeatedly reaffirmed the Rochin principle in
distinguishing cases where government conduct did not involve
physical abuse such as kidnapping and torture. In United States
v. Russell, 411 U.S. 423, 431-32 (1973), the Court cited Rochin
and reaffirmed that there could be cases “in which the conduct
of law enforcement agents is so outrageous that due process prin-
ciples would absolutely bar the government from invoking
judicial process to obtain a conviction.”s In Russell the govern-
ment agents did not do violence; they supplied the chemical com-
pounds for manufacture and sale of illicit drugs. Nor was
violence involved in the group of cases relied upon by the Seventh
Circuit in which this Court held that dismissal was not the
remedy for technical violations of the Fourth Amendment law
of search and seizure. Those cases, as well as this Court’s recent
decision in United States v. Verdugo-Urguidez, US. ;
110 S. Ct. 1056 (1990), dealt with Fourth Amendment violations
which did not implicate the outrageousness component of Fifth
Amendment due process. Kidnapping, violence, and the abroga-
tion of international treaties were not involved. INS v. Lopez-
Mendoza, 468 U.S. 1032 (1984); United States v. Crews, 445 U.S.
463 (1980); Gerstein v. Pugh, 420 U.S. 103 (1975). Warrantless
arrests on probable cause or reasonable suspicion, or less, may

* The Seventh Circuit erroneously discounted Russell's applicability to this case
claiming “Matta does not base his argument on this defense.” Matta-Ballesteros
v. Henman, supra, slip. op. at 16, n.9. Russell relied on Rochin and Fifth
Amendment due process, therefore it was not necessary to cite Russell to render
it applicable to petitioner's arguments.

12

indeed be illegai and constitutionally violative, but they are more
examples of “combatting crime too energetically” (Rochin v.
California, supra) than of the vicious, sadistic actions employed
here in the name of the United States government. Petitioner’s
claims are made under the Fifth Amendment, not the Fourth
Amendment.

This Court has also traditionally invoked its supervisory power
to retain for the Courts the integrity which the executive branch
sometimes compromises in the name of expedience. United States
v. Hasting, 461 U.S. 499 (1983); McNabb v. United States, 318
U.S. 332 (1946). The supervisory power is the last bastion of
restraint on widespread governmental excess where other
remedies are unavailable or are not effective. Petitioner had of-
fered to prove, and the iower Courts assumed for the sake of
legal argument, that kidnapping and torture have become in-
stitutionalized methodology of the United States in foreign ar-
rests and that the order for the use of those methods against peti-
tioner came from central authorities in the agencies involved.
The preliminary evidence submitted with petitioner's request
for a hearing is set forth in the Statement of the Case, supra,
and the institutionalization of these practices has been legally
approved by the Justice Department and recognized in condem-
nation by a Judge of the United States Court of Appeals for the
Second Circuit, who has written,

To my mind the Government in the laudable interest
of stopping the international drug traffic is by these
repeated abductions inviting excercise of that super-
visory power in the interests of the greater good of
preserving respect for law.

United States v. Lira, 515 F.2d 68, 72-73 (1975) (Oakes, C.]J.,
concurring), cert. den. 423 U.S. 847 (1975).

Even in cases of an individual law enforcement officer’s viola-
tion of constitutional rights, the possibility of civil remedies
against the officer is not an effective alternative to exclusion or
dismissal. Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971);
Terry v. Ohio, 392 U.S. 1, 12 (1968). The very proliferation and

13

official sanction of the kidnappings in recent years proves the
inefficacy of remedies short of dismissal, just as the prolifera-
tion of illegal searches and seizures proved to this Court the in-
efficacy of remedies other than the exclusionary rule. Mapp v.
Ohio, 367 U.S. 643 (1961). Indeed, civil redress may be
unavailable in this case according to the exception to the Federal

Tort claims Act for “any claim arising in a foreign country.” 28
U.S.C. § 2680(k).

Thus, the Seventh Circuit and the other Circuits in accord
with it, are wrong when they rest their opposition to dismissal
on the availability of other remedies and on cases in the Fourth
Amendment context which do not involve torture and kidnap-
ping and the institutionalized governmental practice thereof.
They are also wrong in employing the so-called Ker-Frisbie doc-
trine that “the power of a court to try a person for a crime is
not impaired by the fact that he has been brought within the
court’s jurisdiction by reason of a ‘forcible abduction’.” Frisbie
v. Collins, 342 U.S. 519, 522 (1952) (citing Ker v. Illinois, 119
U.S. 436 (1886)). This Court has expressly held that the doctrine
is not applicable where a treaty of the United States has been
violated. Ford v. United States, 273 U.S. 593, 605-606 (1927),’
and Ker and Frisbie involved abductions only. No court, save
the Seventh Circuit in this case, has applied the doctrine to re-
tain jurisdiction in cases of torture or in cases of kidnapping

* Separate civil redress may be the only appropriate remedy when the law
enforcement misconduct is itself unrelated to the criminal case. Hence the
Seventh Circuit's citation to Graham v. O'Connor, 109 S. Ct. 1865 (1989) and
Bell v. Wolfisk, 441 U.S. 520 (1979) where damages and injunctions were held
to be the only remedies for constitutionally violative pre-trial conditions of
confinement are inapposite. In this case kidnapping and torture initiated the
criminal case.

’“But the Ker Case does not apply here. It related to a trial in a state court,
and this court found that the illegal seizure of the defendant therein violated
neither the federal constitution, nor a federal law, nor a treaty of the United
States, and so that the validity of their trial after alleged seizure was not a
matter of federal cognizance. Here a treaty of the United States is directly
involved, and the question is quite different.”

14

as governmental practice, and the Second and Ninth Circuits
have held the Ker-Frisbie doctrine inapplicable in such cases
and would decline jurisdiction.

In United States v. Toscanino, 500 F.2d 267 (2d Cir., 1974),
the Second Circuit held that if the defendant could prove his
allegations that he was kidnapped from his home in Uruguay
and tortured by United States agents en route to court in the
United States, the case should be dismissed. The element of tor-
ture brought the case within the Rochin undue process shock-
ing to the conscience. Petitioner in this case has submitted sworn
allegations to the same facts and has asked for the same oppor-
tunity to prove them. Had he been incarcerated in the Second
Circuit he would have been granted the hearing. Likewise in
the Ninth Circuit. United States v. Lovato, 520 F.2d 1270 (9th
Cir., 1975) cert. den. 423 U.S. 985 (1975); United States v. Valot,
625 F.2d 308 (9th Cir., 1980); United States v. Fielding, 645 F.2d
719 (9th Cir., 1981). Even without the torture element, these
Courts would have granted the hearing because of the evidence
that the United States government is using kidnapping in foreign
countries as a regular means of affording jurisdiction to United
States Courts and that it was specifically ordered against peti-
tioner by central law enforcement authorities. “If this assump-
tion [that kidnappings will not be numerous] should in the future
prove to be ill-founded, our conclusion [that kidnapping alone
does not require dismissal] can be reconsidered.” United States
ex. rel. Lujan v. Gengler, 510 F.2d 62, 68 n.9 (2d Cir., 1975)
cert. den. 421 U.S. 1001 (1975); United States v. Lira, 515 F.2d
68, 72-73 (2d Cir., 1975) (Oakes, C.J. concurring) cert. den.
423 U.S. 847 (1975); United States v. Emery, 591 F.2d 1296 (9th
Cir., 1978); United States v. Trenary, 473 F.2d 680 (9th Cir.,
1973).

Even in the Fifth and Eleventh Circuits the rejections of the
Toscanino exception to the Ker-Frisbie doctrine have come in
cases where there were no allegations of torture (United States
v. Darby, 744 F.2d 1508, 1531 (11th Cir., 1984) cert. den. 471
U.S. 1100 (1985)), and no allegations of a pattern of governmental
abuse or central direction of such abuse against the defendant
at issue. United States v. Herrera, 504 F.2d 859 (5th Cir., 1974):

~

15

United States v. Lava, 539 F.2d 495 (5th Cir., 1976); United
States v. Lopez, 542 F.2d 283 (5th Cir., 1976).

Finally, that coreign. government objection is necessary to
United States recognition of treaty and international law pro-
scriptions against jurisdiction by kidnapping is not a require-
ment founded in this Court’s decisions. The Seventh Circuit cites
to no decision of this Court for that exception to the law laid
down in United States v. Rauscher, supra; Ford v. United States,
supra, and Cook v. United States, supra. Law is supposed to
provide a guide to rightful conduct and a deterrent to illegality
before action is taken; there is no precedent for ex post facto,
ad hoc decriminalization on a case-by-case basis, and the treaties
do not so provide. Executive action was limited by the terms
of the treaties which prima facie indicate their self-executing
nature without additional legislation and their intent that the
parties be bound. United States v. Schouweiler, 19 F.2d 387 (S.D.
Cal., 1927); United States v. Ferris, 19 F.2d 925 (N.D. Cal., 1927).
There was no determination to the contrary by the lower courts
in this case, and no assertion of, or hearing into, parole evidence
of contrary intentions in regard to the treaties, therefore the
resort to lack of official foreign government protest to negate
self-execution of the treaties was akin to using the silence of
legislators to justify amnesty in a particular case of violation
of a law previously enacted by them.

In fact, however, the Honduran government and its people
have protested. Honduran Congressman Feliz Cerna Salgado
has submitted an affidavit of protest on behalf of himself and
other republic officials and civic organizations, and he has
described the mass protests in the streets against petitioner's ab-
duction. Several Congressman have introduced a bill of protest
in the Honduran legislature.

16

CONCLUSION

FOR THE ABOVE STATED REASONS, CERTIO-
RARI SHOULD BE GRANTED, THE JUDGMENT
OF THE COURT OF APPEALS REVERSED, AND
THE WRIT OF HABEAS CORPUS ISSUED.

Respectfully submitted,

MarTIN R. STOLAR
Attorney for Petitioner

351 Broadway (4th flr.)
New York, New York 10013
212-219-1919

LAWRENCE MARK STERN
Of Counsel

100 Hudson Street

New York, New York 10013

212-925-6863

APPENDICES

A-1l
APPENDIX A

In the

United States Court of Appeals
For the Seventh Circuit

No. 88-2767
JUAN RAMON MATTA-BALLESTEROS,
Petitioner,
- v.
GARY L. HENMAN, Warden,
United States Penitentiary
at Marion, Illinois,
Respondert.

Appeal from the United States District Court for
the Southern District of Illinois.
No. 88 3267—William D. Stiehl, Judge.

ARGUED NOVEMBER 1, 1989—DecIDED FEBRUARY 21, 1990

Before CUMMINGS and FLAuUM, Circuit Judges, and WILL,
Senior District Judge.*

FLAuM, Circuit Judge. Juan Ramon Matta-Ballesteros
(““Matta’’), petitions this Court by writ of habeas corpus
claiming that the United States illegally kidnapped him from
his home in Honduras and tortured him before transport-

* The Honorable Hubert L. Will, Senior District Judge of the
United States District Court for the Northern District of Illinois,
Eastern Division, is sitting by designation.

A-2

No. 88-2767

ing him to the United States to face trial on pending crim-
inal charges. Based on these allegations, Matta claims that
the United States violated the Honduran Constitution, in-
ternational law, and the due process clause of the United
States Constitution and as a result, the United States is
without personal jurisdiction over him. The district court
denied his petition without a hearing on the basis that
the facts, as alleged, did not entitle him to the requested
relief. Matta petitions us to remand the case to the dis-
trict court for an evidentiary hearing. For the reasons set
forth below, we affirm.

I. FACTS

In 1971, Matta escaped from the United States Prison
Camp at Eglin Air Force Base in Florida and fled to Hon-
duras. He is a Honduran citizen and because Honduras
does not extradite its own citizens, he believed that he
had found a safe haven from the reach of United States
law enforcement officials. While he was in the Honduras,
he allegedly became heavily involved in the narcotics trade
and now faces crirninal charges in the federal district courts
of Arizona, Central California, and Southern California.
At the time he filed the writ, he was also under indict-
ment in the Northern District of Florida for escape pur-
suant to 18 U.S.C. § 75l(a). He has since been convicted
of that crime and sentenced to three years imprisonment.

At about 6:00 a.m. on the morning of April 5, 1988, Matta,
accompanied by his bodyguards, arrived at his home in
Tegucigalpa, Honduras.! Upon his arrival, Matta was sur-
rounded by armed members of the Honduran Special Troops
or “Cobras,” who were accompanied by at least four United
States Marshals. He was arrested and handcuffed, alleged-
ly at the direction of the United States Marshals. A black

1 Since Matta was denied discovery and an evidentiary hearing,
we consider the facts alleged in the pleadings and affidavits in
the light most favorable to him in determining whether to grant
the writ.

A-3

No. 88-2767 3

hood was placed over his head and he was pushed onto
the floor of a car driven by the United States Marshals.

A United States Marshal immediately drove him to a
United States Air Force base approximately an hour-and-
a-half away. During the ride, Matta claims that he was
severely beaten and burned with a “‘stun gun’ at the
direction of the United States Marshals. Once he arrived
at the airport, Matta was flown to the United States. He
claims that during this flight, he was once again beaten
and shocked about the body, including on his testicles and
feet, again by United States Marshals.

Upon his arrival in the United States, Matta was imme-
diately transferred to Marion Penitentiary. Approximately
24 hours had passed from the time of his apprehension.
Matta was subsequently examined by a physician who found
abrasions on his head, face, scalp, neck, arms, feet, and
penis, as well as blistering on his back. According to the
examining physician, these injuries were consistent with
those which could have been caused by a stun gun.

Based on these allegations, Matta filed a writ of habeas
corpus in the Southern District of Illinois claiming that
the United States had acted in violation of the Honduran
Constitution, international law, and the United States Con-
stitution. He demanded his release back to Honduras on
the basis the United States was without jurisdiction to
— him as a result of the alleged due process vio-
ations.

At the time he filed the writ, Matta faced indictment
in the Northern District of Florida for escape from the
United States Prison Camp at Eglin Air Force Base in
1971, along with indictments on various narcotics charges

2 The stun gun or “Taser’’ is a non-lethal device commonly used
to subdue individuals resisting arrest. It sends an electric pulse
through the body of the victim causing immobilization, disorienta-
tion, loss of balance, and weakness. See Thomas v. City of Zion,
665 F.Supp. 642, 644 (N.D. Ill. 1987). It leaves few, if any, marks
on the body of the victim. Aff. of D. Donovan.

A-4

No. 88-2767

in the central and southern districts of California, and the
district of Arizona. After filing the writ, he sought a pre-
liminary injunction to prevent the government from trans-
ferring him from Marion to face prosecution in these dis-
tricts. Matta-Ballesteros ex rel. Stolar v. Henman, 697
F.Supp. 1036 (S.D. III. 1988). Matta did not face charges
anywhere within the jurisdiction of the district court where
he brought his petition. He was simply being held in Marion
Penitentiary pending transfer to jurisdictions where he did
face charges. The preliminary injunction was denied by
the district court on the basis that Matta failed to estab-
lish that he had no adequate remedy at law and failed
to show irreparable harm. Jd.

After denying the preliminary injunction, the district
court ordered an expanded record from the parties, in-
cluding affidavits from the petitioner and any occurrence
witnesses. In addition to other documents, Matta filed af-
fidavits from his bodyguards who were with him at the
time of his arrest confirming his allegations. The govern-
ment filed affidavits by various United States Marshals
denying most of Matta’s allegations, especially those con-
cerning torture. The United States contended that the
Honduran government, and not the United States, arrested
Matta and was responsible for any mistreatment. Based on
this expanded record, the district court found that Matta’s
claims failed as a matter of law, holding that even if the
facts were as Matta alleged, he was not entitled to the
relief he sought. The court, therefore, denied Matta’s re-
quest for discovery and an evidentiary hearing, ruling on
the pleadings and affidavits alone, much in the manner
of a summary judgment. Matta-Ballesteros ex rel. Stolar
v. Henman, 697 F.Supp. 1040 (S.D. Ill. 1988). Since the
district court’s denial of the writ, Matta has been trans-
ferred to a prison in Flonda, arraigned, tried, and con-
victed of escape from federal custody. 18 U.S.C. § 751(a).*

3 Prior to trial, the district court in Florida heard similar argu-
ments to those presented here and decided, in a published cpinion,
(Footnote continued on following page)

No. 88-2767

Il. ANALYSIS

The district court’s decision not to grant an evidentiary
hearing was based on Rule &a) of the Rules Governing
Section 2254 Cases‘ (the ‘‘Rules”’) which states that after
the transcript and record of the state court proceedings
are filed, the trial judge may determine if an evidentiary
hearing is needed, and if not, shall ‘tmake such disposi-
tion of the petition as justice shall require.’’ Rule 8a) of
the Rules; 28 U.S.C. § 2554. The district court held that
it could consider the facts much as in a summary judg-
ment motion, reading any facts in dispute in favor of the
non-movant, in this case Matta, and then applying the law
to those facts.

Matta’s only claim on appeal is based on this denial: he
claims he was entitled to an evidentiary hearing by the
district court. To advance this claim, Matta presents two
arguments. First, he asserts that he was entitled to an
evidentiary hearing because of the unique posture of his
case, 1.e., there was no trial court record upon which the
denial of the writ could be based. Second, he maintains
that the facts, as he alleges them, entitle him to relief as

3 continued

that the United States had jurisdiction over Matta. United States
v. Matta-Ballesteros, 700 F.Supp. 528 (N.D. Fla. 1988). This deci-
sion has apparently been appealed to the Eleventh Circuit. Counsel
for Matta told us at oral argument that Matta has also raised these
claims before a district court sitting in the Ninth Circuit. That
court apparently held that Matta was collaterally estopped from
bringing those claims because they had been fully and fairly liti.
gated by the district court in the case at hand.

‘ This suit was brought under 28 U.S.C. § 2254 which provides
relief from state custody. Technically, this suit should have been
brought under 28 U.S.C. § 2255, as Matta was asking for relief
from federal custody. Sections 2254 and 2255, however, are mate-
rially the same for the purposes of our analysis, except as indicated
in note&, and therefore, for the purposes of this case, we will not
distinguish between these statutes. See United States v. Hayman,
342 US. 205 (1952), Hill v. United States, 368 U.S. 424 (1962).
See also § 2255 Ruies.

A-6

No. 88-2767

a matter of law, and therefore, there are material issues
of fact that must be determined through an evidentiary
hearing. We consider each of these in turn. Both claims
present questions of law, so we review the district court’s
decision de novo. See Christianson v. Colt. Indust. Oper-
ating Corp., 870 F.2d 1292, 1299 (7th Cir. 1989).

A. Denial of an Evidentiary Hearing

Matta’s first contention is, in essence, that where there
has been no prior trial, a writ of habeas corpus may not
be denied without a hearing.5 Common sense, however,
dictates that if the facts as alleged by the applicant do
not entitle him to relief, a hearing at which the applicant
may prove those facts is useless. This reasoning, which was
relied on by the district court, is reflected by 28 U.S.C.
§ 2254(d) and by the decisions of both this Court and the
Supreme Court.

The Seventh Circuit has held that ‘“‘an evidentiary hear-
ing is not necessary when the facts essential to considera-
tion of the constitutional issue are already before the court.”’
Jeter v. Keohane, 739 F.2d 257 n.1 (7th Cir. 1984); see
also Bergenthal v. Cady, 466 F.2d 635, 648 (7th Cir. 1972),
cert. denied, 409 U.S. 1109 (1973). Our holding in Jeter

5 To advance this argument he observes that habeas peiitions are
normally brought after sentencing, not before trial. Rule &a), upon
which the district court relied, assumes that this is the case. It
states that ‘‘after .. . the transcript and record of state court pro-
ceedings is filed’”’ the judge shall decide if an evidentiary hearing
is necessary. Rule &a) of the Rules Governing Habeas Corpus.
Matta argues, the trial transcript is vital to the decision to grant
the writ. Townsend v. Sain, 372 U.S. 293, 319 (1963), (“{tJhe trial
record is indispensable to determining whether the habeas applica-
tion received a full and fair . . . evidentiary hearing’’). Matta con-
cludes from this, that because he never had an evidentiary hear-
ing at trial and because it is indispensable to the decision to grant
the writ, he deserves a hearing now. That is, Matta argues, a ha-
beas petition deserves some kind of evidentiary hearing, whether
it is during the underlying criminal trial or during the habeas hear-
ing, and as he has not yet had a chance to present evidence, he
deserves one now.

A-7

No. 88-2767

is based on Townsend v. Sain, 372 U.S. 293, 319 (1963)
and its codification at 28 U.S.C. § 2254, both of which
detail the situations where an evidentiary hearing is man-
datory. Each situation listed by Townsend assumes that
material facts are in dispute. Two of the listed situations
are relevant for our purposes. First, the Court stated that
a hearing is mandatory where “‘the merits of the factual
dispute were not resolved in the state court hearing.’’ 372
U.S. at 318. The merits of a dispute, however, only con-
cern material facts. Second, the Court required a hear-
ing where “the material facts were not adequately devel-
oped... .” Jd. at 313. Again, material facts must be at
issue. Section 2254 echoes the requirements of Townsend.®
Section 2254(dX3), the provision most applicable to this
case, mandates a hearing when ‘“‘material facts were not
adequately developed... .”” 28 U.S.C. § 2254(dX3). Simi-
larly, section 2254(dX1) requires a hearing when the merits
of the factual dispute were not resolved earlier. Once again,
the “merits” of a dispute only concern material facts.

® Section 2254(d) requires an evidentiary hearing when the appli-
cant shows any of the following circumstances:
“(1) that the merits of the factual dispute were not resolved
in the State court hearing;
(2) that the factfinding procedure employed by the State
court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed
at the State court hearing;
‘“(4) that the State court lacked jurisdiction of the subject
matter or over the person of the applicant in the State court
preceeding;
(5) that the applicant was an indigent and the State court,
in deprivation of his constitutional night, failed to appoint coun-
sel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and ade-
quate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of
law in the State court proceeding.”

28 U.S.C. § 2254(d).

A-8

Neither Townsend nor § 2254 require a hearing where
no material facts are in dispute.

Moreover, under the Rules Governing Habeas Corpus,
“the district judge . . . may employ a variety of measures
in an effort to avoid the need for an evidentiary hearing.”
Blackledge v. Allison, 431 U.S. 63, 81 (1977). For instance,
rule 6(a) requires good cause for discovery in habeas pro-
ceedings. Good cause cannot exist where the facts alleged
do not provide a basis for relief. Rule 7 which governs
expansion of the record, is a method specifically designed
to avoid evidentiary hearings. When enacting the rule, the
advisory committee noted that ‘the purpose [of Rule 7]
is to enable the judge to dispose of some habeas petitions
not dismissed on the pleadings, without the time and ex-
pense required for an evidentiary hearing.”” Advisory Com-
mittee Note to Rule 7 of the Rules Governing Habeas
Corpus. Moreover, Rule 8 mandates that when a hearing
is not required by section 2254, the trial judge shall ‘“‘make
such disposition of the petitions as justice shall require.”
Finally, Rule 11 of the Rules Governing Habeas Corpus
allows courts to follow the Federal Rules of Civil Proce-
dure during habeas proceedings where they are not incon-
sistent with the habeas rules. Here, the district court fol-
lowed the procedure for summary judgment and in doing
SO was not acting inconsistently with the habeas rules gov-
erning when a hearing is necessary. Each of these rules
directs district judges to expedite the process, hearing
evidence only when necessary. Where there are no mate-
rial facts at issue, it is consistent with these rules to de-
cide the case without a hearing. We conclude in light of
this analysis that Matta was entitled to an evidentiary
hearing only where material facts are in dispute, notwith-
standing the unique posture of his case.

B. The Applicable Law

If Matta’s allegations do not entitle him to relief, then
we may rule as a matter of law, taking his allegations
to be true. We, therefore, examine the applicable law to

A-9

No. 88-2767

determine if any of Matta’s claims entitle him to relief.
Matta makes two claims. First, Matta asserts that his ar-
rest violates international law, namely the Honduran Con-
stitution and two extradition treaties to which the United
States and Honduras were parties. Second, Matta con-
tends his abduction violated the fifth amendment due
process clause. We consider each in turn.

1. Violations of International Law

It is well established that individuals have no standing
to challenge violations of international treaties in the ab-
sence of a protest by the sovereigns involved. ‘“{E]ven
where a treaty provides certain benefits for nationals of
a particular state—such as fishing rights—it is traditionally
held that ‘any rights arising from such provisions are, ui-
der international law, those of states and. . . individual
rights are only derivative through the states.’’’ United
States ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir.),
cert. denied, 421 U.S. 1001 (1975) (quoting Restatement
(Second) of the Foreign Relations Law of the United States
§ 115, comment e (1965)). Treaties are ‘‘designed to pro-
tect the sovereign interests of nations, and it is up to the
offended nations to determine whether a violation of sov-
ereign interests occurred and requires redress.” United
States v. Zabaneh, 837 F.2d 1249, 1261 (5th Cir. 1988).
See also United States v. Cadena, 585 F.2d 1252, 1261
(5th Cir. 1979); United States v. Davis, 767 F.2d 1025,
1030 (2nd Cir. 1985); United States v. Cordero, 668 F.2d
32, 37-38 (1st Cir. 1981); United States v. Valot, 625 F.2d
308, 310 (9th Cir. 1980).

Matta makes no claim that the government of Honduras
has made an official protest. Indeed, Matta admits that
the Honduran military cooperated in his arrest. Instead,
he asserts that the protests before the American Embassy
in Honduras and a bill introduced in the Honduran legis-
lature (which was never voted on) show that the people
of Honduras objected to the abduction. The United States,

No. 88-2767

however, recognizes the Honduran government as the of-
ficial government of the Republic of Honduras. Were we
to conclude that Honduras protested Matta’s arrest in the
absence of word from the Honduran government, we would
be denying the sovereignty of the Republic of Honduras.
See Societe Nationale v. United States Dist. Court, 107
S.Ct. 2542, 2562 (1987) (“‘each state has a monopoly of gov-
ernmental power within its borders’’). Without an official
protest, we cannot conclude that Honduras has objected
to Matta’s arrest. Therefore Matta’s claims of violations
of international law do not entitle him to relief.

2. Violation of Matta’s Fourth and
Fifth Amendment Rights

For the past 100 years, the Supreme Court has con-
sistently held that the manner in which a defendant is
brought to trial does not affect the ability of the govern-
ment to try him. The Ker-Frisbie doctrine, as this rule
has come to be known, states that ‘the power of a court
to try a person for a crime is not impaired by the fact
that he has been brought within the court’s jurisdiction
by reason of a ‘forcible abduction’”’. Frisbie v. Collins,
342 Us 519, 522 (1952) (citing Ker v. Illinois, 119 U.S.
45" iss While notions of due process have been ex.
pandes since Frstue, see Rochin v. California, 342 U.S.
oe i452 Mapp v Ohw, 367 U.S. 648 (1961); Wong Sun

F 4 ites. 371 U.S. 471 (1968), the Supreme Court

na -rt.\ reaffirmed the Ker-Frisme doctrine. See
~pez- Mendoza, 468 U.S. 1032, 1039-40 (1984);

tate Crews, 445 U.S. 463, 474 (1980); Stone

Powe. 42= US. 465, 485 (1976); Gerstein v. Pugh, 420
Lis. 105 1975). In United States v. Crews, the Court rec-
ogmuzec that “ain legal arrest, without more, has never
been viewed as a bar to subsequent prosecution, nor as
a defense to a valid conviction. . . . Respondent himself
is not a suppressible ‘fruit’ and the illegality of his deten-
tion cannot deprive the Government of the opportunity
to prove his guilt .. .”’ 445 U.S. at 474. And in Gerstein
v. Pugh, the Court held that “{[nJor do we retreat from
the established rule that illegal arrest or detention does

A-11

No. 88-2767

not void a subsequerit conviction.’’ 420 U.S. at 119. It is,
therefore, inadequate for Matta to allege, without more,
that the arrest was illegal.

To create a colorable argument in the face of this rule,
Matta relies on an “exception” to the Ker-Frisbie doctrine
carvec out by the Second Circuit in United States v. Tos-
canino, 500 F.2d 267 (2d Cir. 1974). Prior to trial for nar-
cotics offences, Toscanino challenged the ability of the dis-
trict court to try him, contending his presence had been
illegally obtained through torture and kidnapping by the
United States. Toscanino offered to prove in support of
his motion that’he and his pregnant wife had been lured
from his home in Montevideo, Uruguay to a deserted area.
There, Toscanino claimed, he was abducted by being knocked
unconscious with a gun, placed into a car, bound and blind-
folded and driven across the border to Brasilia where he
was incessantly tortured and interrogated for seventeen
days. After this ordeal Toscanino was drugged and placed
on an American commercial flight. Once he arrived in the
United States, he was taken into custody by waiting United
States law enforcement officials.

Faced with these allegations, the Second Circuit held
that “we view due process as now requiring a court to
divest itself of jurisdiction over the person of a defendant
where it has been acquired as the result of the govern-
ment’s deliberate, unnecessary and unreasonable invasion
of the accused’s constitutional rights.” 500 F.2d at 275.
In so holding, that court relied on Rochin v. California,
342 U.S. 165 (1952), where the Supreme Court applied
the due process clause, to the ‘‘the whole course of the
proceedings in order to ascertain whether they offend those
canons of decency and fairness which express the notions
of justice of English-speaking peoples even toward those
charged with the most heinous offences.” Jd. at 169 (cita-
tions omitted). See also United States v. Russell, 411 U.S.
423 (1973).

In United States ex rel. Lujan v. Gengler, 510 F.2d 62
(2d Cir.), cert. denied, 421 U.S. 1001 (1975), the Second
Circuit clarified and narrowed Toscanino. In this case, the

A-12

No. 88-2767

court was faced once again with an international abduction
but there was no contention of torture or terror. The Sec-
ond Circuit said that Toscanino only applied where the
defendant could prove “torture, brutality, and similar out-
rageous conduct,’ and therefore, there was no violation
of the due process clause. Jd. at 65. The conduct must
‘shock the conscience” before a violation can occur. Jd.,
(quoting Rochin v. California, 342 U.S. 165, 172 (1952)).
Matta asserts that he falls under Toscanino and Gengler.

The Seventh Circuit has never squarely faced the Tos-
canino exception to the Ker-Frisbie doctrine. In United
States v. Marzano, 5387 F.2d 257 (7th Cir. 1976), cert. de-
nied, 429 U.S. 1038 (1977), this Court expressly refrained
from deciding whether to follow Toscanino and we have
not faced the issue since. Several other circuits, however,
have considered Toscanino. While the Ninth Circuit has
adopted this exception, United States v. Valot, 625 F.2d
308, 309 (9th Cir. 1980), the Fifth and the Eleventh Cir-
cuits have rejected it. United States v. Darby, 744 F.2d
1508, 1531 (llth Cir. 1984), cert. denied, 471 U.S. 1100
(1985); United States v. Winter, 509 F.2d 975, 986-988 (5th
Cir.), cert. denied, 423 U.S. 825 (1975). In addition, no
court, including the Toscanino court which remanded the
case for factual findings, has ever found conduct that rises
to the level necessary to require the United States to di-
vest itself of jurisdiction. The decision to follow Toscanino
is now squarely before this Court.

We initially note that Toscanino is of ambiguous con-
stitutional origins. On its face, Toscanino purports to rely
on the due process clause (of either the fifth amendment
or the fourteenth amendment). Yet the Second Circuit re-
lied for support on Mapp v. Ohio, 367 U.S. 643 (1961),
a fourth amendment exclusionary rule case.

The due process clause has been held to “protect | a
pre-trial detainee from the use of excessive force that
amounts to punishment.” Graham v. Connor, 109 S.Ct.
1865, 1871 n.10 (1989) (citing Bell v. Wolfish, 441 U.S. 520,
535-39 (1979)). Under this holding, if Matta could prove that
he was punished as a pre-trial detainee, then he might

A-13

No. 88-2767

be entitled to some relief under the due process clause
(although not necessarily the divestiture of jurisdiction by
the United States). Matta, however, does not allege pun-
ishment during his pre-trial detention at Marion prison.
Instead, he claims that he was tortured during the course
of his arrest.”

Claims such as Matta’s involving constitutional violations
during arrest, however, are properly analyzed under the
fourth amendment rather than the fifth amendment. While
examining a claim of use of excessive force during arrest,
the Supreme Court recently held that “[b]ecause the Fourth
Amendment provides an explicit textual source of constitu-
tional protection against this sort of physically intrusive
governmental conduct, that Amendment, not the more gen-
eralized notion of ‘substantive due process,’ must be the
guide for analyzing [claims of excessive force].’’ Graham,
109 S.Ct. at 1871. See also United States v. Miller, Slip Op.
No. 89-1615 (7th Cir. December 18, 1989) (Easterbrook,
J. concurring).

Graham, however, concerned a § 1983 action for use of
excessive force while Matta has brought a habeas petition.
Nevertheless, underlying Matta’s petition is the use of ex-
cessive force by the police and, therefore, a similar analy-
sis is appropriate. The fourth amendment covers claims
for excessive force such as Matta’s under a reasonable-
ness standard by balancing ‘‘the nature and quality of the
intrusion on the individual’s fourth amendment interests”
against the governmental interests at stake. United States
v. Place, 462 U.S. 696, 703 (1983). And ‘“‘the ‘reasonable-
ness’ of a particular seizure depends not only on when

7 The concurrence argues that the torture took place after the
arrest. If the concurrence is correct that the arrest took place in
Honduras and the ensuing flight to the United States was part
of pretrial detention, then the due process clause would clearly
be implicated. Bell v. Wolfish, 441 U.S. 520 (1979). The remedy,
however, for violations of the due process clause during pre-trial
detention is not the divestiture of jurisdiction, but rather an in-
junction or money damages. See id

No. &8&-2767

it is made, but also on how it is carried out.”’ Graham,
109 S.Ct. at 1871 (emphasis in original). Under this reason-
ableness standard, the fourth amendment provides an ex-
plicit textual basis for claims such as Matta’s of un-
constitutional conduct during arrest.

Matta’s requested relief, however, is not supported by
the fourth amendment. His claim is essentially an exclu-
sionary rule for the body of the defendant. Exclusionary
rules are simply means of enforcing the provisions of the
constitution.§ Stone v. Powell, 428 U.S. 465, 486 (1976),
United States v. Leon, 468 U.S. 897, 911-22 (1984). **The
primary justification for the exclusionary rule then is the
deterrence of police conduct that violates Fourth Amend-
ment rights.’’ Stone, 428 U.S. at 486; see also Leon, 468
U.S. at 911-22. In addition, the imperative of maintaining
judicial integrity may play some role in the exclusionary
rule calculus. See United States v. Peltier, 422 U.S. 531
(1975). But see Stone, 428 U.S. at 485. We believe that
neither rationale supports the application of the exclusion-
ary rule to this case.

There are several reasons why the deterrence rationale
fails to support the application of the exlcusionary rule
to the present case. First, the Supreme Court has explicit-
ly rejected the use of the deterrence rationale in this sit-
uation. In United States v. Crews, the Court held:

The exclusionary principle of Wong Sun and Silver-
thorne Lumber Co. delimits what proof the Govern-
ment may offer against the accused at trial, closing
the courtroom door to evidence secured by official
lawlessness. Respondent is not himself a suppressible
“fruit,’’ and the illegality of his detention cannot de-
prive the Government of the opportunity to prove

8 This is the one area where the district court’s use of § 2254
would result in a different analysis because Stone precludes exclu-
sionary rule claims under § 2254 but eft open the question under
§ 2255. Reasons such as comity may dictate such a difference, and
therefore, it is important to petition for habeas under the correct
statute.

No. 88-2767

guilt through the introduction of evidence wholly un-
tainted by the police misconduct.

445 U.S. 468, 474 (1980). This decision is based on the
Court’s opinion that the deterrent effect of excluding the
body of the defendant is not sufficient to warrant this ex-
treme measure: ‘[s]o drastic a step might advance mar-
ginally some of the ends served by exclusionary rules, but
it would also increase to an intolerable degree interference
with the public interest in having the guilty brought to
book.” Crews, 445 U.S. at 474 n.20 (quoting United States
v. Blue, 384 U.S. 251, 255 (1966)).

In addition, there are other means of deterring police
misconduct in cases such as this that are less intrusive
than a constitutionally based exclusionary rule. For exam-
ple, Matta could file a Bivens action alleging violation of
his due process rights. Alternatively he could ask that the
case be dismissed for prosecutorial misconduct. (We take
no position on the merits of these claims.) Moreover, com-
plaints from foreign nations of violations of international
law as well as the loss of international standing provide
an additional deterrent effect. We believe, that where the
interference with the judicial process is so severe and where
other means of deterrence are already in place, the addi-
tional deterrence created by the exclusionary rule is not
enough to justify its use.

In Stone, the Court considered the judicial integrity ra-
tionale for the exclusionary rule. The Court stated that
the imperative of judicial integrity plays a limited role,
holding that judicial integrity itself is not enough to man-
date a retreat “from the proposition that judicial pro- ©
ceedings need not abate when the defendant’s person is
unconstitutionally seized.”” 428 U.S. at 485. In addition,
reliance on the judicial integrity rationale has become
suspect in recent years. In Leon, the Court held that the
“the question of whether the use of illegally obtained evi-
dence in judicial proceedings represents judicial participa-
tion in a Fourth Amendment violation and offends the in-
tegrity of the courts is essentially the same as the inquiry

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No. 88-2767

into whether exclusion would serve a deterrence purpose
.... 468 U.S. at 921 n.21. (citations omitted). There-
fore, analysis of the judicial integrity rationale separate
from the deterrence rationale may not be warranted. More-
over, judicial integrity can be protected through motions
for prosecutorial misconduct.

Finally, the Supreme Court has twice more (in addition
to Stone and Crews) reaffirmed Ker-Frisbie since Toscanino,
although it is unclear on what grounds. In Lopez-Mendoza,
the Court reaffirmed that ‘{tJhe ‘body’ or identity of a de-
fendant or respondent in a criminal or civil proceeding is
never itself suppressible as a fruit of an unlawful arrest,
even if it is conceded that an unlawful arrest, search, or
interrogation occurred.” 468 U.S. at 1039-40. And in Ger-
stein v. Pugh the Court stated that ‘[nlor do we retreat
from the established rule that illegal arrest or detention
does not void a subsequent conviction.” 420 U.S. at 119.

While we do not condone government misconduct such
as Matta alleges, we cannot create an exclusionary rule
for the person of the defendant in light of our analysis
and in the face of repeated re-affirmation by the Supreme
Court that no such rule exists. The Court has rejected
both the deterrence and the judicial integrity rationales
for the exclusionary rule applied to this context. We there-
fore conclude that Toscanino, at least as far as it creates
an exclusionary rule, no ‘onger retains vitality and there-
fore decline to adopt it as the law of this circuit. If Matta

® As we have rejected Toscanino on exclusionary rule grounds,
we take no position on whether the government’s conduct, as al-
leged, violated the fourth amendment. In addition, we do not reach
the ‘outrageous government conduct” defense of United States
v. Russell, 411 US. 423 (1973). Matta does not base his argument
on this defense and even if he had, we recently noted that the
continued vitality of this doctrine is questionable given the holding
of a three-justice plurality in Hampton v. United States, 525 U.S.
484 (1976). United States v. D’Antoni, 874 F.2d 1214 (7th Cir.
1989). To the best of our knowledge, there are no cases that apply
the outrageous government conduct defense to allegations of tor.
ture such as those in the pres-it case.

A-17

No. 88-2767

wishes to object to his mistreatment, he must do so on other
grounds. Matta has failed to state a claim upon which re-
lief can be granted. Accordingly, we affirm the district
court. }°

WILL, Senior District Judge, concurring. I concur in
the result reached by the majority. I would not, however,
have taken the same road to get there. There is no need
to disparage or reject Toscanino in this case, which is
clearly distinguishable on its facts. First, the torture Tos-
canino alleged was grossly more egregious than what Matta
alleges, although both shock the conscience. Second, and
perhaps more importantly, release as contemplated in Tos-
canino is not an appropriate remedy here. Matta was a
fugitive and release would mean effectively commuting his
earlier, lawfully imposed sentence, an unwarranted result.
That was not the case in Toscanino.

The last time Toscanino was raised in this circuit we
refrained from deciding whether to follow it, on the basis
that the case in front of us was distinguishable. United
States v. Marzano, 537 F.2d 257 (7th Cir. 1976). I would
have taken that route here too, leaving open the question
whether or not to follow it until we are presented with
a case with comparable facts.

It is conceivable to me that, in the words of Justice
Rehnquist, there may be cases ‘“‘in which the conduct of
law enforcement agents is so outrageous that due process
principles would absolutely bar the government from in-
voking judicial process to obtain a conviction.”’ United States
v. Russell, 411 U.S. 428, 431-32 (1973) (entrapment case)
(citing Rochin v. California, 342 U.S. 165 (1952) (not an

10 We take no position on the collateral estoppel effects of this
decision except to note that Matta has failed to state a claim upon
which relief can be granted.

A-18

No. 88-2767

entrapment case)). See also Olmstead v. United States,
277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). This
court has previously expressed skepticism about whether
the government would ever, by outrageous conduct, sur-
render its authority to prosecute as a matter of due proc-
ess. E.g., United States v. D’Antoni, 874 F.2d 1214, 1219
(7th Cir. 1989); United States v. Bontkowski, 865 F.2d 129,
131-32 (7th Cir. 1989); United States v. Curtis Miller, No.
89-1615, slip op. at 12 (7th Cir. Dec. 18, 1989) (Easter-
brook, J., concurring). But we have never foreclosed that
possibility—for entrapment cases, excessive force cases,
or any other kind of case—and I see no reason to reject
Toscanino and thereby foreclose it for future cases by our
decision today.

I have no doubt that judges will disagree about the level
of outrageousness, if any, that it should take to bar judi-
cial process. But the simple fact of disagreement does not
make the determination of what “outrageous” conduct would
consist of somehow judicially more unmanageable or sub-
jective than, for instance, the balancing that goes into dis-
tinguishing a reasonable from an unreasonable search or
even guilt from innocence, and I would reserve the pos-
sibility that some day we may, given the facts, want the
option of attempting that determination.

Finally, the majority states that any excessive force used
was applied “during the course of” Matta’s arrest and as-
sumes the arrest did not occur until Matta arrived at the
U.S. border. An arrest occurs when a reasonable person,
in view of all the circumstances, would believe himself to
be under arrest. United States v. Boden, 854 F.2d 983,
991-93 (7th Cir. 1988); United States v. Robertson-Steeprow,
833 F.2d 777, 780 (9th Cir. 1987); United States v. Borys,
766 F.2d 304, 308-09 (7th Cir. 1985). Matta was therefore
arrested long before he reached American soil. By that
time, he had already been shoved into a van, with a hood
over his head, and had been in the company of U.S. Mar-
shals for twenty-four hours. I do not imagine that he was
either traveling voluntarily or felt free to leave the mar-
shals during those twenty-four hours. Accordingly, the ex-

No. 88-2767

cessive force here would have been applied after Matta’s
arrest and during his pretrial detention before he reached
Marion, removing this case from the reach of Graham v.
Connor. Graham specifically reserves the question whether
a fourth amendment analysis applies ‘beyond the point
at which arrest ends and pretrial detention begins.” 109
S.Ct. at 1871 n.10. That does not change the result to
be reached in this case, however. Release remains an in-
appropriate remedy on the facts before us.

A true Copy:
Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA 79004—Midwest Law Pmnnting Co., Inc., Chicago—2-21-90—500

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JUAN RAMON MATTA-
BALLESTEROS, on the relation of
MARTIN R. STOLAR, his attorney,

Petitioner,
v. CAUSE NO. 88-3267

GARY L. HENMAN, Warden, United
States Penitentiary at Marion, Illinois,

Respondent.

MEMORANDUM AND ORDER
STIEHL, District Judge:

Before the Court is Juan Ramon Matta-Ballesteros’ (Matta)
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241

by a Person in Federal Custody.
I. INTRODUCTION

This cause is before the Court in a posture somewhat different
from the majority of federal habeas actions which the court is
regularly required to review. The petitioner is not challenging
the duration or nature of his confinement; rather, he challenges
the legality of his detention. Petitioner asserts that he was il-
legally and unconstitutionally taken from his home in Honduras
and removed to the United States by federal agents. The relief
Matta seeks is to have this Court declare that the United States
is without jurisdiction over petitioner due to alleged violations
ot his right to due process in the manner of his apprehension,
and order that Matta be returned to Honduras.

B-2

Matta is under indictment in the Northern District of Florida
for an alleged escape from the United States Prison Camp at
Eglin Air Force Base in 1971, and faces indictments on various
narcotics charges in the Central and Southern Districts of
California, and the District of Arizona. Matta originally sought
a temporary restraining order from this Court to prevent the
government from transferring him from the United States
Penitentiary at Marion, Illinois, where he is currently detained,
to face prosecution in any other district. The Court, upon con-
sent of the government, entered its temporary restraining order
on April 25, 1988. The Court directed the parties to brief cer-
tain issues prior to the preliminary injunction hearing on May
16, 1988. On May 4, 1988, again upon consent of the govern-
ment, and for good cause shown, the TRO was extended until
May 16, 1988. The Court heard extensive oral argument on the
application for preliminary injunction, including arguments on
the likelihood of success on the merits of the underlying habeas
corpus action. The government agreed to a further extension
of the TRO until the Court’s ruling on the application for
preliminary injunction.

On May 25, 1988, the Court denied Matta’s application for
a preliminary injunction. The Court ruled that petitioner had
failed to establish that he lacked an adequate remedy at law;
that he failed to show irreparable harm; and that the balance
of harms did not weigh in petitioner’s favor. The Court made
no ruling as to the likelihood of success on the merits. The merits
of Matta’s habeas petition are now before the Court.

On June 2, 1988, the Court directed the government to show
cause why the writ should not issue, and on June 20, 1988,
ordered an expanded record from the parties, including affidavits
from the petitioner and any occurrence witnesses. The parties
have complied with the Order, and the Court has before it the
petition for a writ of habeas corpus, the affidavits of Matta,
certain occurrence and other witnesses, and certain reports.

B-3

II. BACKGROUND
A. UNCONTROVERTED FACTS

The following is a description of the events surrounding the
arrest which are uncontroverted:

Juan Ramon Matta-Ballesteros, a/k/a Juan Ramon Mata del
Pozo, a/k/a Juan Ramon Mata, (Matta) is a resident of Teguci-
galpa, Honduras. Very early on the morning of April 5, 1988,
Matta, accompanied by two security guards/drivers, went a short
distance from his home to the residence of his attorney, Carlos
D. Lorenzana. His guards remained outside while he went into
the house. Within minutes of arriving, Matta received a telephone
call from his wife. Matta exited his attorney’s house to return
to his home. Matta’s security guards informed him that they had
observed members of the military, described by one as the Hon-
duras Special Troops known as “Cobra” watching the attorney's
home while standing at either end of the street. Matta, accom-
panied by his security guards, drove the van back to his home.

Upon arriving at his home, Matta got out of the van and iden-
tified himself to members of the Honduran military. The van
was surrounded by many military men with weapons. A beige
Land Cruiser Toyota pickup truck pulled up and two men ar-
rested Matta. Included among the group at Matta’s house were
some Americans in civilian clothing. Matta was grabbed, a brief
struggle ensued, a black hood was placed over his head, and
he was pushed onto the floor in the back seat of the Land
Cruiser. At some point during the apprehension, Matta may have
been shocked several times by a stun gun.

Deputy United States Marshal, Juan J. Donato Morales, drove
the Land Cruiser to an air base, an hour to an hour and a half
away. Sometime thereafter, Matta was placed on an airplane.
He was subsequently flown to the United States, and then
transferred to the United States Penitentiary at Marion, IIlinois,
in this District, early on the morning of April 6, 1988. Approx-
imately 24 hours elapsed from the time of his apprehension to
the time of his arrival at Marion Penitentiary.

B-4

Upon his arrival at Marion on April 6, 1988, Matta was given
an initial medical examination. The examination revealed, in

part, the following:
Clinical Evaluation
18. Head, Face, Neck
and Scalp

34. G-U System

35. Upper Extremities

36. Feet

39. Identifying Body
Marks, Scars, Tattoos

Notes
Linear abrasions at left and
posterior basal aspect of
the neck

Presence of depigmented
area with some scaling at
the left side of proximal
shaft of the penis

Linear abrasions at the
distal part of both forearms
mostly at the lateral and
posterior side. Palmar side
of both hands are smeared
light red (per pt’s informa-
tion it’s from blood)

Abrasion about 1%3 x 2
cm at dorsum of left foot

Multiple erythematous spots
of about 3-5 mm at the
back. Few of these spots
have denuded skin compati-
ble with ruptured blister

B. CONTROVERTED FACTS

The expanded record reveals the following questions of fact

exist:

1. Petitioner asserts that a large group of United States agents
were present at Matta’s home. The government asserts that there
were only four members of the United States Marshals Service

near Matta’s residence.

B-5

2. Petitioner asserts that he was seized by American “agents”
in civilian clothing. The government asserts that the apprehen-
sion was made by Honduran officers, and that no United States
agents were involved in the struggle with Matta.

3. Matta claims that the American agents, during the one and
one half hour drive to the air base, beat him on the head, back
and arms and burned him with a “double pronged electric.” He
further claims that they mixed their shocks with “shouted in-
terrogation,” in both English and Spanish (with non-Honduran
accents). The government, through the affidavit of Deputy Mar-
shal Donato Morales, asserts that Honduran officers placed Mat-
ta on the floor of the Land Cruiser, that one Honduran rode
in the back seat with Matta, and the other with Donato Morales
in the front. Donato Morales observed the officer in the front
to carry a stun gun device which was placed on the floor. He
did not see Matta receive shocks from the stun gun during the
trip.

4. Matta claims that upon arrival at the air base he was placed
aboard a jet and flown to the United States. The government
asserts that Matta remained at the air base in an air conditioned
vehicle for two to two and one half hours while awaiting an
airplane.

5. Matta claims that during the two hour flight, the hood re-
mained on his head and he was repeatedly beaten and shocked
about the body, including his testicles and feet. He claims that
upon arrival in the United States he was flown aboard a com-
mercial jet to Puerto Rico and was forced to sign an Entry
Declaration, and was advised that he was under arrest. The
government denies that Matta was beater or shocked during
the trip to the United States, denies that he was flown from the
United States to Puerto Rico, and denies that Matta was forced
to sign an entry declaration.

B-6

III, APPLICATION OF LAW

Petitioner has asked this Court to issue a writ of habeas cor-
pus and declare that no court in the United States has jurisdic-
tion over Matta, and to order his return to Honduras. Petitioner
asserts two grounds entitling him to the relief he seeks: First,
that the apprehension of Matta violated the Honduran Con-
stitution, which prohibits extradition of Honduran citizens, the
1909 Extradition Treaty between the United States and Hon-
duras, and the Inter-American Extradition Treaty of 1933, to
which the United States and Honduras are signatories; Second.
that Matta’s Fifth Amendment right to due process was violated
when he was tortured and abducted from Honduras. Both
grounds present questions of jurisdiction and standing.

A. STANDARD OF REVIEW

The government asks this Court to determine that, as a mat-
ter of law, petitioner is not entitled to the relief he seeks. Under
Rule 8(a) of the Rules Governing Habeas Corpus cases under
Section 2254, 28 U.S.C. foll. § 2254, the Court may determine.
upon review of the expanded record, whether an evidentiary
hearing is required. “If it appears that an evidentiary hearing
is not required, the judge shall make such disposition of the peti-
tion as justice shall require.” The review, therefore, is in the nature
of the review the Court makes when considering a motion for
summary judgment.

In Jeter v. Keohane, 739 F.2d 257 (7th Cir. 1984), the court
stated, “an evidentiary hearing is not necessary when the facts
essential to consideration of the constitutional issues are already
before the court. Bergenthal v. Cady, 466 F.2d 635, 648 (7th
Cir. 1972), cert. denied, 409 US. 1109 (1973); 28 U.S.C. 2243.”
739 F.2d 257, n.l.

The Court must determine if petitioner has presented suffi-
cient allegations to entitle him to the habeas relief he seeks as
a matter of law. The Court will, therefore, consider the pleadings
and the affidavits in the light most favorable to the petitioner.
Petitioner must raise a question of material fact to entitle him

B-7

to habeas review; that is. his allegations must be outcome-
determinative under the applicable law.

B. VIOLATION OF EXTRADITION TREATIES

Matta asserts that his capture violated the Honduran Con-
stitution, and at least two extradition treaties to which the United
States and Honduras are signatories,

The well-recognized rule of international law is that “only
sovereign nations have the authority to complain about viola-
tions of extradition treaties.” United States v. Yunis, 68] F. Supp.
909, 916 (D.D.C. 1988). Similarly, “[E]xtradition treaties are
made for the benefit of the governments concerned .... And,
under international law, it is the contracting foreign government,
not the defendant, that would have the right to complain about
a violation.” United States v. Cordero, 668 F.2d 32, 37-38 (Ist
Cir. 1981), quoted in Yunis, 681 F.2d at 916. See also, United
States v. Valot, 625 F.2d 308 (9th Cir. 1980); United States ex
rel Lujan v. Gengler, 510 F.2d 62, 67-68 (2d Cir.), cert. denied,
421 U.S. 1001 (1975). Further:

Indeed, even where a treaty provides certain benefits
for nationals of a particular state __. it is traditionally
held that “any rights arising out of such provisions are
under international law those of the States and ...
individual rights are only derivative through the
states.”

Lujan, 510 F.2d at 67, quoting ALI, Restatement (Second) of
the Foreign Relations Law of the United States, § 115, comment
(e) (1965). Therefore, absent an objection by Honduras as to
Matta’s capture, he is precluded from personally asserting that
a violation of any extradition treaty has occurred, whether it
be that between the United States and Honduras, or the Inter-
American Extradition Treaty.

It only remains to be emphasized that by no means
every irregularity in the recovery of a fugitive from
criminal justice is a “recourse to measures in violation

B-8

of international law or international convention.” If
the State in which the fugitive is found acquiesces or
agrees, through its officers or agents, to a surrender
accomplished even in the most informal and ex-
peditious way, there is no element of illegality.

Comment to Article 16, Harvard Research in International Law
Draft Extradition Treaty, 29 Am. Jur. Int’l Law Supp. 631 (1935);
quoted in Lujan, 510 F.2d at 67.

As the Second Circuit in Lujan noted, in reference to United
States v. Toscanino, 500 F.2d 267 (2d Cir.) pet. for reh’g en banc
denied, 504 F.2d 1380 (2d Cir. 1974), “[T]o support this claim
[of a violation of an extradition treaty], Toscanino would have
to prove that the Uruguayan government registered an official
protest with the United States Department ef State.” 510 F.2d
at 67, n.8.

In support of his claim Matta has included in the expanded
record an affidavit of Felix Cerna Salgado, a member of the Na-
tional Congress of the Republic of Honduras for the Depart-
ment of Olancho. His affidavit states that the apprehension of
Matta “has been repudiated by the majority of the Honduran
people and especially by public officers of the legislative, judiciary,
and executive powers of the Republic...” He further states that
Matta’s apprehension provoked public demonstrations and an
attack on the American Embassy and that five Honduran citizens
were killed, six million dollars in property was damaged and a
state of national emergency was declared. The affidavit includes
an extensive list of public officials and professional organiza-
tions that protested the apprehension. However, notably absent
is any reference to an official protest having been made by the
Honduran government, Foreign Ministry, or President.

Similarly, the “Declaration” submitted by the petitioner, is
a declaration or bill merely submitted to the National Congress
by seven congressmen. It is of no official weight, the record does
not reflect that it has even been voted on, or approved by the
congress, and there is no indication that its sentiments have been
adopted by the executive branch of the government.

B-9

Absent the fact of an official protest, petitioner is without
standing to assert the violation of any extradition treaty as
grounds for the relief he seeks.

To the extent that Matta’s claim is based on the Honduran
Constitution, this Court is clearly without jurisdiction to inter-
pret or appy it to proceedings before the Court. Furthermore,
the failure of the Honduran government to object to Matta’s ap-
prehension similarly prevents him from asserting an infringe-
ment of the Honduran Constitution as grounds for the relief he
seeks.

C. VIOLATIONS OF PETITIONER'S FIFTH
AMENDMENT RIGHTS

1. Application of the United States Constitution to
Aliens

Petitioner claims that his forcible abduction and transporta-
tion from Honduras to the United States violated his right to
due process. The Supreme Court has not resolved the question
of whether the Constitution of the United States affords its pro-
tection to aliens. The Court has, however, held that the Con-
stitution is in force “wherever and whenever the sovereign power
of [the United States] is exerted.” Balzac v. Porto Rico, 258 U.S.
298, 312 (1922). Most circuits have applied the Constitution to
situations where the government acts extraterritorially, requir-
ing those acts “to conform to constitutional proscriptions when
acting overseas.” Yunis, 681 F. Supp. 917 (citations omitted). This
Court is similarly persuaded, and finds that Matta is entitled
to the guarantees and protections of the Constitution as it ap-
plies to the activities of government officials in Matta’s capture
and transportation from Honduras to the United States.

2. Whether the circumstances and nature of Matta’s
capture violated his Fifth Amendmeni Rights.

The long-standing rule of law is that a forcible abduction does
not offend due process nor does it require that courts dismiss
an indictment for loss of jurisdiction on those grounds. The
Seventh Circuit, in United States v. Marzano, 537 F.2d 257 (7th
Cir. 1976), cert. denied, 429 U.S. 1038 (1977), stated:

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It has long been held that due process has been
satisfied when a person is apprised of the charges
against him and is given a fair trial. The power of a
court to try a person is not affected by the impropriety
of the method used to bring the defendant under the
jurisdiction of the court.

Id. at 271, citing Frisbie v. Collins, 342 U.S. 519 (1952); Ker v.
Illinois, 119 U.S. 436 (1886).

The Ker-Frisbie doctrine, as it has come to be known, stands
for the premise that the “forcible abduction of a criminal defen-
dant into the court’s jurisdiction does not impair the court’s
power to try him.” United States v. Cordero, 668 F.2d 32, 36
(Ist Cir. 1981). This doctrine has been reaffirmed by the Supreme
Court in United States v. Crews, 445 U.S. 463, 474 (1980); Stone
v. Powell, 428 U.S. 465 (1976); Gerstein v. Pugh, 420 U.S. 103
(1975). (In which the Supreme Court stated “Nor do we retreat
from the established rule that illegal arrest or detention does
not void a subsequent conviction.” Jd. at 119.)

The petitioner is not under indictment in this district. This
fact places petitioner’s claim in a unique position before the
Court. Petitioner seeks relief from this Court which, if granted,
would result in his return to Honduras, and, therefore, affect
the personal jurisdiction of those courts in which he faces in-
dictment. Under the Ker-Frisbie doctrine, courts are not required
to dismiss an indictment for lack of jurisdiction based on the
defendant’s forcible abduction. To the extent that this is a case
of first impression, the Court holds that the Ker-Frisbie doc-
trine applies to alleged escapees who seek habeas relief based
on the “impropriety of the method” used to bring the petitioner
within the jursidiction of the Court. 537 F.2d at 271. To that
extent, the Court finds that no Fifth Amendment violation oc-
curred that would warrant the relief Matta seeks.

3. The Toscinano Exception

The petitioner would have this Court apply an exception to
the Ker-Frisbie doctrine pursuant to the Second Circuit ruling
in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). The

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Court first notes that the Seventh Circuit has vet to apply the
Toscanino exception to any case before it, nor has the Seventh
Circuit indicated any intent to limit the Ker-Frisbie doctrine.
This Court does not believe that Toscanino should be applied
to Matta’s habeas petition to afford him the extraordinary relief,
return to Honduras, which he seeks. To date, the Toscanino argu-
ment, or one similar, has been rejected by the Fifth, Ninth,
Tenth, and Eleventh Circuits. See: United States v. Postal, 589
F.2d 862 (5th Cir.), cert. denied, 444 U.S. 832 (1979); United
States v. Winter, 509 F.2d 975 (5th Cir.), cert. denied, 423 U.S.
825 (1975); United States v. Herrera, 504 F.2d 859 (5th Cir. 1974);
United States v. Cotten, 471 F.2d 744 (9th Cir.), cert. denied,
411 U.S. 936 (1973); Hobson v. Crouse, 332 F.2d 561 (10th Cir.
1964); United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986),
cert. denied, US. ___, 107 S. Ct. 1377 (1987). And no court
applying Toscanino has dismissed an indictment. In Marzano,
537 F.2d at 272, the Seventh Circuit found: “No facts have been
alleged or proved which could be termed shocking to the con-
science. Toscanino is therefore inapposite. We need not decide
whether we would follow Toscanino if similar facts were
presented.”

In Toscanino, the Second Circuit, determined that the Ker-
Frisbie doctrine was weakened by the Supreme Court’s ruling
in Rochin v. California, 342 U.S. 165 (1952) (where the court
set aside a conviction based on evidence that had been obtain-
ed by pumping the defendant’s stomach, against his will). The
Toscanino court stated:

Faced with a conflict between the two concepts of
due process, the one being the restricted version found
in Ker-Frisbie and the other the expanded and
enlightened interpretation expressed in more recent
decisions of the Supreme Court, we are persuaded that
to the extent that the two are in conflict, the Ker-
Frisbie version must yield. Accordingly we view due
process as now requiring a court to divest itself of
jurisdiction over the person of a defendant where it
has been acquired as the result of the government’s

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deliberate, unnecessary and unreasonable invasion of
the accused’s constitutional rights.

500 F.2d at 275. The allegations were as follows: Toscanino was
a citizen of Italy who was lured from his home in Uruguay by
a telephone call from a co-conspirator. Toscanino was knocked
unconscious with a gun, thrown into the rear seat of a car, bound
and blindfolded and driven to the Uruguayan-Brazilian border.
He was denied food, water and sleep and was “incessantly tor-
tured and interrogated” for seventeen days. He was forced to
walk a hallway for seven or eight hours, and was kicked and
beaten. His fingers were pinched with metal pliers, alcohol was
flushed in his eyes, and other fluids were forced into his body
cavities. He received electric shocks to his ears, toes and genitals.
He alleged that agents of the United States Department of
Justice, Bureau of Narcotics and Dangerous Drugs were present
at some of the torture and participated in portions of the inter-
rogation. Id. at 269-70.

The Second Circuit remanded the case to the District Court
which denied the motion to dismiss, ruling that there was no
claim of participation by United States agents in Toscanino’s ab-
duction and torture. 398 F. Supp. 916, 917 (E.D. N.Y. 1975).
Therefore, the Tascanino exception requires that both conditions
be met for the court to be divested of jurisdiction. The first is
that there must be government participation, and the second
is that the government agents’ conduct must rise to a level that
shocks the conscience of the Court.

The Second Circuit, shortly after Toscanino, narrowed its
holding, and recognized the vitality of the Ker-Frisbie doc-
trine. In Lugan v. Gengler, 510 F.2d 62, the Second Circuit
stated:

Yet in recognizing that Ker and Frisbie no longer pro-
vided a carte blanche to government agents bringing
defendants from abroad to the United States by the
use of torture, brutality and similar outrageous con-
duct, we did not intend to suggest that any irregularity
in the circumstances of the defendant’s arrival in the

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jurisdiction would vitiate the proceedings of the
criminal court.

Id. at 65 (emphasis supplied). Further:

We scarcely intend to convey approval of illegal
government conduct. But we are forced to recognize
that, absent a set of incidents like that in Toscanino,
not every violation by prosecution or police is so egre-
gious that Rochin and its progeny requires nullifica-
tion of the indictment.

Id. at 66. Therefore, even the circuit that developed the
Toscanino exception has refused to apply it generally, absent ac-
tivity that “shocks the conscience.”

Even if the Toscanino exception were to be applied in the
Seventh Circuit, the Court finds that, as a matter of law, the
allegations of petitioner do not rise to the threshold standard
of Toscanino. The allegations of torture do not meet the required
level of outrageousness, nor do they shock the conscience to the
extend that they would require the Court to afford Matta the
relief he seeks, thereby divesting each court under which he is
indicted of its jurisdiction over him. Rosenthal, 793 F.2d at 1232.

The Court again stresses that Matta is an alleged escapee,
under indictment for escaping federal custody. The indictment
charging Matta with escape was returned in the Northern
District of Florida on December 10, 1986. The Court is unaware
of any case applying Toscanino to dismiss an indictment or grant
habeas relief where an alleged escapee has been returned to the
jurisdiction of the court. Furthermore, the Second Circuit, in
United States v. Reed, 639 F.2d 896 (2d Cir. 1981), drew a distinc-
tion between the re-capture of a fugitive from justice and the
initial capture of a defendant.

It should also be noted that the agents’ conduct would
have been legal had it occurred anywhere in the
United States or in any country where the United

States exercises extraterritorial jurisdiction; see 18
U.S.C. § 3041-3042, for Reed, unlike the defendant

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in Toscanino, was a fugitive from justice who had
jumped bail, who was the subject of a bench warrant,
and who had been sought for some weeks. . . . We do
believe, however, that this case is different from one in
which jurisdiction is initially obtained by illegal means.

Id. at 904 n.2 (emphasis added). The Toscanino exception is
limited, and does not apply to fugitives brought back to the
United States to face the charges against them. Therefore, not
only do the allegations of torture fail to rise to the level of
Toscanino, but petitioner is an alleged escapee who is not en-
titled to review under the Toscanino exception. /d.

Although, for purposes of review, the Court has construed the
petition in the light most favorable to the petitioner, certain
allegations are less than credible. Under Fed. R. Civ. P. 56(e),
affidavits must be “made on personal knowledge, shall set torth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the mat-
ters stated therein.”

The Court first notes that parts of Matta’s affidavit are less
than credible due to his admission that he had a black hood
placed over his head throughout the apprehension and drive to
the air base. For example, Matta’s affidavit states that “one of
the agents was seen to carry a briefcase into the house and he
knew that they opened it, removed a plastic bag containing a
white powder and threw it on the floor,” a statement which is
not made on his own knowledge. Matta, by his own admission,
had a black hood over his head at the time this incident occur-
red. Similarly, his affidavit states that he was given electric shocks
by United States agents, again these incidents occurred while
his head was covered. He does not aver that he could see through
the hood, nor that the hood was, at anytime, removed from his
head prior to his arrival in the United States.

Even if the Court were to accept all of Matta’s allegations
as true and disregard the affidavits and reports of the govern-
ment, the treatment he received, even if solely at the hands of
United States agents, clearly does not rise to the level of the

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“set of incidents” alleged in Toscanino. Morever, the medical
report of April 6, 1988 fails to support Matta’s allegations of tor-
ture. Although the Court acknowledges that there is some
medical evidence to support Matta’s claim that he received shocks
from a stun gun, his abrasions were medically classified as “com-
patible with a ruptured blister.” By his own affidavit, Matta’s
return to the United States took little more than 24 hours. Clear-
ly, his treatment did not rise to the level of torture described
in Toscanino.

Therefore, the Court, under Toscanino would not be required
to order Matta returned to Honduras as there has not been an
“unreasonable invasion of [Matta’s] constitutional rights.”
Toscanino, 500 F.2d at 275. The Court notes that a similar deci-
sion was reached by the United States District Court for the Nor-
thern District of Florida in a related case. United States v. Matta-
Ballesteros, slip op. PCA 86-00511-RV (N.D. Fla.) (Aug. 4, 1988).
The Court denied Matta’s Motion to Dismiss the Indictment,
which was also based on the Toscanino exception. The court
ruled:

I conclude that the Toscanino rationale should not
apply under the facts of this case. First, ... the
Supreme Court has implicitly rejected Toscanino in
decisions subsequent to 1974 which have reaffirmed
the Ker-Frisbie doctrine.

[E]ven if Toscanino represented the law, the facts
alleged in this case by the defendant do not establish
the kind of cruel, barbaric, and outrageous conduct
by United States officials needed for the application
of the substantive due process prong of the rule.

Id. at pp.9-10.

Under the law, therefore, the Court finds that petitioner’s
claim fails to raise any issues that would entitle him to an eviden-
tiary hearing. The allegations of the petitioner, the affidavits

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and reports, considered in the light most favorable to Matta,
conclusively establish that Matta is not entitled to habeas cor-
pus relief. The factual allegations, as a whole, do not allege cir-
cumstances of a kind that would require this Court to authorize

further discovery or order an evidentiary hearing. Cf.
Machibroda v. United States, 368 U.S. 487, 494-95 (1962).

While Matta is entitled to all of the substantive and procedural
protections of the Constitution that are afforded to all criminals
facing trial in the United States, the Court finds that the record
shows that no grounds exist which would entitle petitioner to
a writ of habeas corpus from this Court. Accordingly, the Court
DENIES Matta’s petition for a writ of habeas corpus, and finds
that as a matter of law no hearing is required. This cause of
action is hereby DISMISSED.

IT IS SO ORDERED.

DATED: 16 August 1988

/s/

DISTRICT JUDGE

eod August 16, 1988 dw

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1540%3A1. Public record. Not legal advice.