Opposition Brief — Lovato v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-230

Joe DAMION LOVATO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that he was denied due process by

the district court’s failure to grant him an evidentiary

hearing to determine whether the court should have dis-

missed the indictment for lack of jurisdiction, after

petitioner had alleged that he was forcibly abducted

into the jurisdiction.

Following a non-jury trial in the United States District

Court for the Central District of California, petitioner was

convicted on two counts of conspiring to sell heroin, in

violation of 21 U.S.C. (1964 ed.) 174. He was sentenced to

concurrent terms of five years’ imprisonment (Pet. 5).

The court of appeals affirmed per curiam (Pet. App. A).

The evidence showed that in January 1974 a federal

narcotics agent stationed in Guadalajara, Mexico, dis-

covered that petitioner, a United States citizen who was

known to have several federal arrest warrants outstand-

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ing against him, was also present in Guadalajara (C.T. 62-

63, 71).! The agent thereupon notified Mexican military

officials and the American legal attache; the American

legal attache in turn notified Mexican immigration

officials (C.T. 71-72). Thereafter, on January 30, 1974,

petitioner was arrested by the Mexican military officials

(C.T. 53); he was then transported by the immigration

officials to the United States border at Laredo, Texas,

where he was taken into custody by federal agents (C.T.

55, 72).

Petitioner thereafter moved in the district court for an

order dismissing the indictment? for lack of jurisdiction

(Pet. 5; C.T. 49). In an affidavit filed with the district

court (Pet. 6-9), petitioner alleged that he had been forc-

ibly abducted by Mexican authorities and subjected to “ex-

treme mental and physical torture” (Pet. 9)3 prior to being

taken into federal custody. Petitioner now contends that he

was denied due process by the district court’s failure to

grant him an evidentiary hearing before denying this

motion.

The district court did not abuse its discretion in failing

to grant petitioner an evidentiary hearing. Even assum-

ing the truth of petitioner’s allegations that jurisdiction

was obtained as a result of forcible abduction accompanied

by the mistreatment he described, that would not bar the

district court from trying him, nor would petitioner be

immune from prosecution because of the alleged cir-

cumstances of his arrest (Ker v. Illinois, 119 U.S. 436).

As this Court stated in Frisbie v. Collins, 342 U.S. 519, 522

(footnote omitted):

\“C.T.” refers to the record on appeal filed with the court of appeals.

2In 1970, the grand jury had returned an indictment (C.T. 21-40)

in the United States District Court for the District of California, charg-

ing petitioner with, inter alia, conspiracy to sell heroin (Pet. 2-3).

‘Petitioner alleged that he was handcuffed, blindfolded, denied

food, drink, and access to toilet facilities, and threatened (Pet. 6-9).

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[T]he power of a court to try a person for crime is

not impaired by the fact that he ha[s] been brought

within the court’s jurisdiction by reason of a “forcible

abduction.” * * * [D]ue process of law is satisfied

when one present in court is convicted of crime after

having been fairly apprized of the charges against him

and after a fair trial in accordance with constitutional

procedural safeguards. There is nothing in the Con-

stitution that requires a court to permit a guilty per-

son rightfully convicted to escape justice because he

was brought to trial agains} his will.*

Petitioner relies on the Second Circuit’s decision in

United States v. Toscanino, 500 F.2d 267, rehearing en

banc denied, 504 F.2d 1380, in which the court of appeals,

relying in part upon Rochinv. California, 342 U.S. 165,5and_

United States v. Russell, 411 U.S. 423, 431-432, held that

certain alleged conduct of federal law enforcement of-

ficers (including their participation in the defendant’s

kidnapping from Uruguay, without the knowledge or con-

sent of Uruguayan authorities, and his torture in Brazil)

would, if proved, require the district court to dismiss the

case. Petitioner’s reliance on TJoscanino is misplaced,

since in the instant case the United States agents had

merely requested the Mexican authorities to arrest

4See also, e.g., United States v. Sobell, 244 F.2d 520 (C.A. 2),

certiorari denied, 355 U.S. 873; United States v. Sherwood, 435 F.2d

867 (C.A. 10), certiorari denied, 402 U.S. 909; United States v. Cotten,

471 F.2d 744 (C.A. 9), certiorari denied, 411 U.S. 936; United States \.

Vicars, 467 F.2d 452 (C.A. 5), certiorari denied, 410 U.S. 967. Cf. John-

son v. Louisiana, 406 U.S. 356, 365; Lamb v. Beto, 423 F.2d 85(C.A. 5),

certiorari denied, 400 U.S. 846.

‘Rochin involved only the question whether evidence seized in

violation of the Constitution was admissible in a criminal trial; it

did not question the court's authority to try the victims of such unlaw-

ful police conduct. See United States ex rel. Lujan v. Gengler, 510 F.2d

62, 68, n. 9 (C.A. 2), certiorari denied, 421 U.S. 1001.

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petitioner and expel him in accord with their own pro-

cedures; there was no direct allegation that United States

agents had participated in, or even knew of, the alleged

mistreatment associated with his expulsion. “[WJhere the

United States Government plays no direct or substantial

role in the misconduct and the foreign police have acted

not as United States agents but merely on behalf of their

own government, the imposition of a penalty would only

deter United States representatives from making a lawful

request for the defendant and would not deter any ille-

gal conduct.” United States v. Lira, 515 F.2d 68, 71 (C.A.

2), certiorari denied October 6, 1975, No. 74-6501.°

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RosBerT H. Bork,

Solicitor General.

NOVEMBER 1975.

*Moreover, as the Second Circuit has subsequently noted, Toscanino

is applicable only in the limited situation where the accused is brought

before the court by means of “cruel, inhuman and outrageous” gov-

ernment conduct. United States ex rel. Lujan v. Gengler, supra,

510 F.2d at 65-66. Here, however, the deprivations alleged by petitioner

are far less significant than those claimed in Toscanino, supra. As

the court below correctly observed (Pet. App. 2-3):

When [petitioner’s] affidavit is stripped of its opinions, suspicions,

and conclusions, his allegations amount to little more than the

scenario of a routine expulsion by Mexican officers of an undesir-

able alien.

See also United States v. Herrera, 504 F.2d 859 (C.A. 5); In re Chan

Kam-Shu, 477 F.2d 333, 338, n. 10(C.A. 5), certiorari denied, 414 U.S.

847; United States v. Vicars, 467 F.2d 452, 455-456 (C.A. 5), certiorari

denied, 410 U.S. 967; United States ex rel. Calhoun v. Twomey, 454

F.2d 326, 328 (C.A. 7); United States v. Cotten, 471 F.2d 744, 748

(C.A. 9), certiorari denied, 411 U.S. 936.

DOJ-1975-11