# Opposition Brief — Lovato v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1594%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1975 - **Citation:** 423 U.S. 985 ## Text 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- (1) “Ae PRU te CMRI SME Sante te ae | ail nee een Te ae aS 2 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). AP OARS oer e eR EW NN GN ETI 3 [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. NERNEY NA AMEE HERE ARO TES I AR ERITREA EES Oe: es oa ee. ae TK ae a le a a ae PAS ETIOLOGY LO EP LG TEI DET FIT 6 SIRE Nee eon g TE: 4 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1594%3A2. Public record. Not legal advice.