Petition for Writ of Certiorari — Kasi v. Virginia

981812 may 6-199

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

MIR AIMAL KASI

Petitioner,

VS

COMMONWEALTH OF VIRGINIA

Respondent.

On Petition for a Writ or Certiorari to the

Supreme Court of Virginia

PETITION FOR WRIT OF CERTIORARI

James Coyne King

Counsel of Record

Elwood Earl Sanders, Jr. Laune J. Hurtt

Commonwealth of Virginia HANIFY & KING

Public Defender Commission _ Professional Corporation

701 East Franklin Street One Federal Street

Richmond, VA 23219 Boston, MA 02110

(804) 225-3297 (617) 423-0400

Of Counsel Counsel for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED

Did the Virginia Supreme Court err in ruling that a

“person” lacks standing to challenge his seizure by United

States officials as unreasonable in violation of the Fourth

Amendment when (a) the seizure took place outside the

United States, and (b) the person is an alien who has

substantial connections with the United States?

Does a court within the United States have personal

jurisdiction over an alien whose presence was obtained in

violation of the mandatory process set forth in an

extradition treaty to which the United States is a signatory?

Did the Virginia Supreme Court err in refusing to suppress

evidence obtained (a) in violation of the consular

notification provision of the Vienna Convention on

Consular Relations or (b) as the fruit of the violation of an

extradition treaty?

Under this Court’s decision in United States ex rel. Touhy

vy. Ragen and the doctrine of sovereign immunity, do

federal agencies have an absolute right to refuse to comply

with subpoenas for exculpatory and mitigating evideice

issued by state courts in a criminal case?

ee gett”

TABLE OF CONTENTS

OPINIONS BELOW JURISDICTION......00.............cccccseeeeees l

CONSTITUTIONAL AND STATUTORY PROVISIONS

BEE VR WEEE Snsdbniiociicsistdiciannighanbalaaee bamenieichws l

SS EAR RGRICE. GF EEUEE GAMO casubicicssdiisnsicisaaphssossicssesiebptivens 4

The Abduction ........ sildesaaos Laesebiedones ih acpedisaimathaktevek 4

Petitioner’s Life in the United States .......................... 6

The Proceedings in Virginia ..................::.::00000e+ iets u

REASONS FOR GRANTING THE WRIT ......................60. 12

I. The Court Should Resolve The Conflict Among

Lower Courts As To The Standing Of Aliens To

Claim The Protection Of The Fourth

PRUNING atsiiictis iki tialebinchinbedinnss 12

I. This Court Should Address The Question Left

Open In Alvarez-Machain As To Whether

Violations Of Mandatory Extradition Process In

Treaties To Which The United States Is A Party

Impair An American Court’s Personal Jurisdiction

Oval TIE ii Se Ss 16

Ill The Court Should Correct The Lower Courts’

Expansion Of The Rule In Touhy Because That

Expansion Deprives Criminal

Defendants Of Constitutional Rights To

Exculpatory And Mitigating Evidence ......... 21

A.

CONCLUSION .......

APPENDICES

APPENDIX A

This Court Did Not Create A New Federal

Privilege In Touhy............<ccccecscosis.. 22

In Camera Review Would Protect Each

gw RT OC a,”

This Case Is An Appropriate Vehicle For

The Court To Clarify Its Decision In

The Opinion of the Virginia Supreme Court in Kasi v.

Commonwealth of Virginia... EY aS nee et

APPENDIX B

The Virginia Supreme Court’s Denial of Petition for Rehearing

aah a Medina totndenasetatcouieaivnaicéppbiceapiedesscae dcvée'ssurianeigig, Lnet, 24

APPENDIX C

The Virginia Trial Court’s and Sentencing Order............ 25

ul

APPENDIX D

The Virginia Trial Court’s oral findings on Entry of

Judgment and Sentencing Order ..................:0::cceeeeee 29

APPENDIX E

The Virginia Trial Court’s Denial of

Defendant’s Motion to Set Aside Verdict and Order

ng 5 FERRED ee. ERTER teat OT RE er, = Opa eR 36

APPENDIX F

The Virginia Trial Court’s Denial of Motion to Reconsider

Defendant’s Motion To Set Aside Verdict and For a New

APPENDIX G

The Virginia Trial Court’s Denial of Defendant’s Motion

to Suppress evidence seized as a result of Defendant’s

seizure in violation of the Fourth Amendment .......... 39

APPENDIX H

The Virginia Trial Court’s oral findings in connection with

Defendant's Motion to Suppress................:ccccseeeesees 4]

APPENDIX I

Further oral findings of the Virginia Trial Court in Support

of its Denial of Defendant’s Motion to Suppress....... 47

APPENDIX J

Further oral findings of the Virginia Trial Court in Support

of its Denial of Defendant’s Motion to Suppress....... 50

iV

APPENDIX K

The Virginia Trial Court’s Denial of Defendant’s Motion

to Dismiss for lack of jurisdiction and Denial of

Defendant’s Motions to Suppress Evidence obtained as a

result of the violations of the Extradition Treaty and

wees Comrie ee 53

APPENDIX L

The Virginia Trial Court’s oral findings in Support of its

Ruling on Defendant’s Motion regarding violation of the

SOOO SUNN oo Ee ee 56

APPENDIX M

The Virginia Trial Court’s oral findings in Connection

with its Ruling on Defendant’s Motions regarding the

Venn CONOR iia ee 58

APPENDIX N

The Virginia Trial Court’s Orders on Defendant’s Motions

to enforce subpoenas served upon the FBI and CIA.. 63

APPENDIX 0

The Virginia Trial Court’s oral findings in connection with

Defendant’s Motions to enforce the subpoenas served upon

Pee ne COR ee ie ee ... 66

APPENDIX P

The Virginia Trial Court’s Rule To Show with respect to

CP Ga rvicrlisissensciemaneehatinnieie ee Ri eee, 68

v

APPENDIX Q

The Virginia Trial Court’s Rule to Show Cause with

respect to the FBI........... iastigtciilaidibacisliieiicesdiaviieldatile Theis 69

APPENDIX R

Extradition Treaty of 1931, 47 Stat. 2122 (1931)...... 71

APPENDIX S

Extradition Act, Act XXI of 1972 of the Republic of

Pakistan, The Pakistan Code, Volume XVIII ............ 87

APPENDIX T

Vienna Convention on Consular Relations,

RE Sees, FF CAPE oncctcctcbonsnisasinciadanininical ‘ncdbukini 100

APPENDIX U

it sR eS RR ene Ear ETL ATg 103

APPENDIX V

Se Grieg OE ROO ROTI OR oiicriccitnceiintin eae 116

APPENDIX W

Testimony of FBI Agent Bradley J. Garrett .............. 122

APPENDIX X

Transcript of hearing in Virginia Trial Court on

Defendant’s Motion to Suppress Evidence seized in

violation of the Fourth Amendment.......................... 200

vi

APPENDIX Y

Transcript of evidentiary hearing in Virginia Trial Court

on Defendant’s standing to assert the Fourteenth

TRE ERC ERO eT EE 241

APPENDIX Z

Motion To Suppress Evidence and Memorandum of Points

and Authorities in Support Thereof........................... 324

APPENDIX AA

Commonwealth of Virginia’s Response to

ibe ig, SOR AME SEALED 330

APPENDIX BB

Transcript of hearing in Virginia Trial Court on

Defendant’s Motion regarding the Extradition

APPENDIX CC

Transcript of hearing in Virginia Trial Court on

Defendant’s Motion regarding the Vienna

cg OA ANSARI Ne 2 ELT TSF CRO PE ET 345

APPENDIX DD

Transcript of hearing in Virginia Trial Court on

Defendant’s Motion to enforce subpoenas served to the

FIER bei insscctecotionechccob picatnisainnesined aie. Pas e

Vii

APPENDIX EE

Defendant’s Motion for Order to Show Cause with regard

to the CIA’s failure to comply with a subpoena and

Affidavit in support Thereof .................::cc:cccseeeeeeeees 386

APPENDIX FF

Defendant’s Motion for Order to Show Cause with regard

to the FBI’s failure to comply with a subpoena and

Affidavit in support Thereof....................ccccccssseeeeeees 390

APPENDIX GG

Memorandum in Support of Defendant’s Motions for

COE Be CIR i aicicsiccnciscittacesnnssaunsuriszonnccttedes 394

APPENDIX HH

CIA’s Response to the Rule to Show Cause.............. 399

APPENDIX II

FBI’s Response to the Rule to Show Cause .............. 414

APPENDIX JJ

Executed Bench Warrant for Petitioner..................... 423

APPENDIX KK

Testimony of Mirwais Kasi ...............:.ccccccessccsessnesees 425

APPENDIX LL

Robert O’Harrow, Jr., Suspect in CIA Slayings is Returned

to U.S., WASHINGTON Post, June 18, 1997, at Al, Al0

Vili

APPENDIX MM

Thomas A. Lippman, 2 Governments Cloak Details of the

Capture, WASHINGTON Post, June 19, 1997 at Al0, All

APPENDIX NN

David B. Ottaway, Suspect’s Moves, Motive Remain

Mysterious: Kansi Left Life of Privilege to Move to U.S,

WASHINGTON Post, June 19, 1997, at Al2, Al3......... 482

ix

TABLE OF AUTHORITIES

PAGE

CASES NUMBER

Alexander v. Texas, 450 S.W.2d 70

(Frans, Sle. Ba: TOI Bio icteric ae 24

Boron Oil Co. v. Downie, 873 F.2d 67 (4" Cir. 1989)........... 23

Brady v. Maryland, 373 U.S. 83 (1963) .o.....ccccccccccceceeeeeeseeees 27

Breard v. Pruett, 134 F.3d 615 (4” Cir. 1998),

cert. denied, 523 U.S. 371 (1998) ooo oeccccccceceeseeee 20

Buford v. Georgia, 282 S.E.2d 134

EE RENT AB A nO eC ee 25

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)... .cccccececeee 24

Commonwealth of Pennsylvania v. Smith,

208 A.2d 229 (Pa. 1965) .....ccccccccecccseeeees 25, 27, 28, 29

Connaught Labs., Inc. v. SmithKline Beecham, P.L.C.,

7 F. Supp.2d 477 (D.Del. 1998), appeal dismissed,

165 F.3d 1368 (Fed.Cir. 1999) oo... occccccccececeseeeeeee 27

Dugan v. Rank, 372 U.S. 609 (1962)........cccccccccececcsecesceceeseees 24

Ed v. Uni k ice,

MD a iain sccrvscaticen 23

Elson v. Brown, 436 P.2d 12 (Nev. 1967) ........cccccccccsceeeeeeeee 26

Exxon Shippi o. v. Uni tof Interior,

SOT ET i rec tcke stan, 27

Ferrell v. Yarberry, 848 F. Supp. 121

UD FA, TID a ve iisitrbicthetissiaeah ca ener 23

Frisbee v. Collins, 342 U.S. 519 (1952) 19

JU 1687t PUSIIVS. VL git? Li

86 F.3d 1208 (D.C. Cir. 1996) ...........cccccceseseseeeeeeees 23

In re Gray, 1998 U.S. App. LEXIS 25779(10" Cir. 1998) .....24

In re Pratt, 170 Cal.Rptr. 80 (Cal.Ct.App. 1980).................... 24

Mn es TOPOS, OG ei cts dss 19

Kyles v. Whitley, 514 U.S. 419 (1995) ...0....cccccccceceseseseeeeeees 29

Larson v. Domestic & Foreign Commerc: ,

ET ii... 23, 24

Maddox v. Williams, 855 F. Supp. 406 (D.D.C. 1994),

affirmed, 62 F.3d 408 (1995) ..0........ccccccccccccseeeseeeeeees 23

Commonwealth of Massachusetts v. Manning, 359 N.E.2d 51

(Mass. App. Ct. 1977), reversed,

New York v. Heller, 483 N.Y.S.2d 540, 126 Misc.2d 575

UU Dia CS WOON oo ieee at ke .. 25

New York v. Kronberg, 672 N.Y.S.2d 63, 243 A.D.2d 132

(N.Y. App. Div. 1998), appeal denied,

CORNET aS Bk eax... 24

xi

New York v. Santos, 368 N.Y.S.2d 130

18 8 A. 0 | PR en ee no mee 26

Ohio v. Lanci, 1980 Ohio App. LEXIS 12551

CRAIN ike PRU SION ibis cndscchbonocchndéae chsvekinhs inveesbhaia’ 26

Ohio v. O’Neal, 1985 Ohio App. LEXIS 6819

Cai GA TIO aia iit. gicinins wncdiv dass 24

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ........ 25, 26, 28, 29

Reichmann vy. State of Florida, 581 S.2d 133 (FI. 1991),

cert. denied, 506 U.S. 952 (1992)... eee 13, 14

Roviaro v. United States, 353 U.S. 53 (1957).........cececeeeeee. 25

Smith v. Cromer, 159 F.3d 875 (4” Cir. 1998) .....23, 24, 26, 27

Smith v. Pennsylvania, 376 U.S. 354 (1964) 0000000... eeceeeeeee 28

State of Florida v. Cohen, 887 F.2d 1451(11" Cir. 1989).......26

State of Louisiana v, Andrews, 250 So. 2d 359 (La. 1971)....24

State of Louisiana v, Parker, 661 So. 2d 603

(La.App. 2 Cir. 1995), appeal denied,

G67 So. Bh 100 Ce NOG iii cicescsisiedsesecdsecdciss 23

State of Louisiana v. Sparks, 978 F.2d 226 (5" Cir. 1992)..23, 24

Tholen Supply Co. Inc. v. Continental Cas. Co.,

859 F. Supp. 467 (D.Kan. 1994) .oo....c.ccccescceseseceeeene 23

United States v. Alvarez-Machain,

$00 UR: GAS 99D oie ess. 11, 16, 18, 19, 21

United States v. Barona, 56 F.3d 1087 (9 Cir. 1995),

cert. denied, U.S. , 116 S.Ct. 813 (1996).......... 13, 14

a

aaa

United States v. Bizzard, 674 F.2d 1382 (11" Cir. 1982),

cert. denied, 459 U.S. 973 (1982) oo... oecccccccccccecceeee. 26

United States y. Cardenas, 9 F.2d 1139 (5" Cir. 1993),

cert. denied, U.S. , 128 L.E.2d 876 (1994)............. 15

United States v. Guitterez, 983 F. Supp. 905

RE ELS aE SE ee Cee 14, 15, 16

United States v. Juda,

797 F. Supp. 774 (N.D.Cal. 1992)

affirmed, 46 F.3d 961 (9 Cir. 1995) ooo. 14

United § v. Matta-Ball ;

71 F.3d 754 (9 Cir. 1995), modified, 98 F.3d 1100 (9

Cir. 1996), cert. denied, 519 U.S. 1118 (1997........... 20

United States vy. Nixon, 418 U.S. 683 (1974)...... 24, 25, 26, 27

United States v. Noriega, 117 F.3d 1206 (11™ Cir. 1997),

cert. denied, US. , 118 S.Ct. 1389

ESTEE URIS ga OST Cn 20

United States v. Reynolds, 345 U.S. 1 (1953).....0..-ccccccccccee 26

United States v. Rezag, 134 F.3d 1121 (D.C. Cir. 1998),

cert. denied, U.S. , 119 S.Ct. 90 (1998)... 19

United States v. Tehrani, 826 F. Supp. 789 (D.Vt. 1993),

affirmed, 49 F.3d 54 (2™ Cir. 1995)... coccccccceceee, 14

nited S$ x rel. T v. en,

co | EOE eR passim

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990)............. ieickabecchisneieaiie’ 10, 13, 14

United States v. Williams,

1999 U.S. App. LEXIS 3843 (4" Cir. 1999) .....23, 24

Zurcher v. Stanford Daily, 436 U.S. 547 (1978).................. 16

CONSTITUTIONAL PROVISIONS

RE REE ae Sh SN EN, eT passim

UB, COME: CIN AE gk iicsinssncoteiciaclaietaibieliad passim

U.S: Ce, SIE TING 6 A vesdecccircitecstcecctecberial passim

U. 5. Qomees a0 0. Sas titniticcunenas agian passim

INTERNATIONAL LAWS AND TREATIES

Act XXI of 1972 of the Republic of Pakistan,

The Pakistan Code, Volume XVIII............... 3, 11,17

Extradition Treaty between the United States and

the Republic of Pakistan, 47 Stat. 2122

CRB sccicsctcdhsnschaisdite wile taasined dcaabe bane abst passim

Vienna Convention on Consular Relations,

21 US.5. Ft GRR iin ttitdnntidiictehadii passim

STATUTES AND RULES

RUS Ff wok A) pita tae eee Sonayee seen mores Gg rey StF EmIEOF passim

Be CPR BS BG Bei ee incccecisscg sane ee 3, 22

xiv

32 C.F.R. §§1905.1-1905.4....0000.. pubieiihidiltislacmiadsiaends Gan

Va. Cope ANN. §§ 19.2-264.2. oe ie enone

7A. UO Sissies... ll

XV

THIS PAGE INTENTIONALLY LEFT BLANK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue

to the Supreme Court of Virginia to review the judgment below.

P N Ww

The opinion of the Supreme Court of Virginia is reported

at 508 S.E.2d 57 and 256 Va. 407, and is located in the Appendix

submitted herewith at page 1. The Order denying petitioner’s

motion for a rehearing is not officially reported. Record Nos.

980797, 980798, Circuit Court No. 791148. A copy of the Order is

in the Appendix at page 24.

JURISDICTION

The Final Judgment of the Supreme Court of Virginia was

entered on January 8, 1999, after that court denied petitioner’s

motion for rehearing. This Court granted petitioner’s Application

for Extension of Time to File Petition for Writ of Certiorari in

Application No. A-748 and extended the time for petitioner to file

the Petition until May 7, 1999. This Court has jurisdiction

pursuant to 28 U.S.C. § 1257(a).

ONSTI ONA STA RY PROVISIONS

U.S. Const. art. VI, cl. 2

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, under 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.

U.S. Const. amend. IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized.

U.S. Const. amend. VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of

the laws.

Extradition Treaty between the United States and the Republic

of Pakistan, 47 Stat. 2122 (1931)

The text of the Treaty is set forth in the Appendix at page

71.

Act XXI of 1972 of the Republic of Pakistan, The Pakistan

Code, Volume XVIII

The text of the Extradition Act, 1972 is set forth in the

Appendix at page 87.

Vienna Convention on Consular Relations, 21 U.S.T. 77 (1963)

The pertinent text from the Vienna Convention is set forth

in the Appendix at page 100.

5 U.S.C. § 301

The head of an Executive department or military

department may prescribe regulations for the government of his

department, the conduct of its employees, the distribution and

performance of its business, and the custody, use, and preservation

of its records, papers, and property. This section does not

authorize withholding information from the public or limiting the

availability of records to the public.

28 C.F.R. §§ 16.21-16.29

The text of the Federal Bureau of Investigations’

Production and Disclosure in Federal and State Proceedings, 28

C.F.R. §§ 16.21-16.29, is set forth in the Appendix at page 103.

32 C.F.R. §§1905.1-1905.4

The text of the Central Intelligence Agency’s Production

of Official Records or Disclosure of Official Information in

Proceedings Before Federal, State or Local Governmental Entities

of Competent Jurisdiction, 32 C.F.R. §§ 1905.1-1905.4, is set forth

in the Appendix at page 116.

STATEMENT OF THE CASE

The Abduction

On June 15, 1997, at four in the morning, four unidentified

men wearing native clothing rushed into petitioner’s hotel room in

Pakistan and, with guns drawn, wrestled petitioner to the ground.

Kasi v. Commonwealth of Virginia, 508 S.E.2d 57, 60-61 (Va.

1998), Appendix at 5. The four men handcuffed, gagged, shackied

and hooded petitioner, dragged him from the room, and transported

him in a vehicle for approximately 45 minutes to an unknown

location. Id. at 61, Appendix at 5. While in the vehicle, one of the

men identified himself as an agent of the United States Federal

Bureau of Investigation (“FBI”). Id.

When the vehicle stopped, the four men grabbed

petitioner—still handcuffed, shackled, and hooded—and forced

him onto an airplane which flew for approximately an hour to

another unknown location. Id.; Appendix at 167-168. After the

plane landed, petitioner was kept on the plane for another hour and

a half. Appendix at 168. Eventually, petitioner was moved from

the plane to yet another vehicle and driven another half hour—still

handcuffed, shackled and hooded—to an unidentified facility

controlled by Pakistanis. Kasi, 508 S.E.2d at 61, Appendix at 6.

Petitioner was held in a small, barred and locked cell at the

facility for the next two days. Id.; Appendix at 171-172. At all

times during the two days, petitioner was kept in the cell,

handcuffed and under the constant supervision of the FBI agents.

ee) a

Kasi, 508 S.E.2d at 61, Appendix at 6; Appendix at 172, 173-174.

The cell had no windows and there was no way for petitioner to

tell time. Appendix at 171. The temperature in the cell was well

over eighty degrees, and petitioner had no access to anyone other

than FBI agents and the unidentified individuals who delivered

petitioner food. Appendix at 173-174, 176.

On June 17, 1997, petitioner was taken from the facility in

the custody of the FBI agents and transported to an airfield from

which he and the FBI agents were flown on a twelve-hour flight to

the United States.’ Kasi, 508 S.E.2d at 61, Appendix at 6. Upon

arrival in the United States, the FBI agents turned petitioner over to

Virginia law enforcement authorities who arrested him for the

murder of two agents of the Central Intelligence Agency (“CIA”)

in Virginia on January 25, 1993. Appendix at 423-424.

At no point at or prior to his arrest did the FBI agents or

the Virginia authorities tell petitioner that he had the right to

contact a representative of the Pakistani consulate. Kasi, 508

' It is believed that the United States negotiated petitioner’s release

from the facility with those that controlled the facility, and eventually

gave those people or their principals money (up to $3.5 million)

and/or property in exchange for petitioner’s release. Appendix at

470, 475, 479. It is unclear from the record what, if any, connection

the people who controlled the facility had with the Federal

Government of Pakistan or with Pakistan’s foreign affairs personnel.

However, the four FBI agents apparently entered Pakistan

surreptitiously and did not provide the Federal Government of

Pakistan with any documents relating to their entry into, activities in

or exit from Pakistan.

S.E.2d at 62, Appendix at 9. In fact, the Commonwealth of

Virginia and the petitioner stipulated in the trial court that the

petitioner was not informed of his right to contact the consulate

until July 3—some two weeks after his arrival in the United States.

Id. At no time after the seizure of petitioner did the agents or any

official of the United States requisition the Federal Government of

Pakistan for the extradition of petitioner from Pakistan, as required

by the Pakistani Extradition Act, 1972.’ Id. That law and the

Extradition Treaty it implemented were at all times relevant hereto

the supreme law of the United States. U.S. Const. art. VI, cl. 2.

Petitioner was tried by jury in November 1997 over ten

days. Kasi, 508 S.E.2d at 59, Appendix at 2. The jury found

petitioner guilty and recommended death based on the “vileness”

of the crime.’ Id. at 59-60, Appendix at 2-3. The trial court, after

reviewing a post-sentencing report which did not contain any

information from the files of the FBI or CIA as subpoenaed by

petitioner, agreed with the jury’s determination and sentenced

petitioner to death. Id. at 60, Appendix at 3.

Petitioner is a native and citizen of Pakistan. Kasi, 508

S.E.2d at 61, Appendix at 6. During the Afghanistan War, the CIA,

through the ISI, Pakistan’s intelligence and national security

* The Commonwealth of Virginia and petitioner stipulated that “the

seizure in Pakistan was not made pursuant to any Pakistani paper or

document, which would allow him to be seized under the laws of

Pakistan.” Kasi, 508 S.E.2d at 62, Appendix at 9.

> Va. Cope ANN. §§ 19.2-264.2, 19.2-264.4(c).

service, sought the aid and assistance of the petitioner and

members of his family, including his father, uncle and other

members of his tribe. Appendix at 483. After the war, one of

petitioner’s family members was killed—the CIA is believed to be

responsible. Id.

Sometime in late 1990 or early 1991, petitioner made

preparations to move to the United States. Appendix at 280, 460-

461. As part of these efforts, petitioner obtained a business visa

from United States authorities in Pakistan and secured $100,000 of

capital from his share of the family business for use in the United

States. Appendix at 280, 461. Petitioner entered the United States

in February 1991 on the business visa. Id. at 280. The visa

expired on March 30, 1991. Id. at 283. Sometime after March 30,

1991, petitioner secured an amnesty and work permit from the

United States Immigration and Natural Services (“INS”),

Appendix at 325, and continuously resided at one location in

Northern Virginia until January 1993.4 Kasi, 508 S.E.2d at 59,

Appendix at 1; Appendix at 246-247, 251.

* The INS files regarding petitioner’s immigration status were

reported as lost when petitioner requested them in this case, until an

INS employee, called to testify on behalf of the prosecution at the

hearing on the Motion to Suppress Evidence secured in violation of

the Fourth Amendment, was able to locate copies of a few documents

from the files that were important to the Commonwealth’s opposition

to the Motion. Appendix at 288, 294-295, 298-299. The INS never

found the other documents from the file. Petitioner believes that the

“missing” documents would show a connection between the CLA’s

efforts in the Afghanistan War and CIA involvement with the

amnesty and work permit issued to petitioner by the INS.

When petitioner first entered the United States, he lived in

Virginia and worked occasionally for Ace Movers and Rentals.

Appendix at 250-251. In the summer of 1991, petitioner helped a

Pakistani friend finance the purchase of a truck for his friend’s

moving business. Id. at 258-259. Over the next year, petitioner

worked with his friend, helped finance the operations, and

developed his business skills, such as how to manage and operate a

moving business. Id. at 260-261.

Petitioner next entered into a contract to work for Excel

Courier, a delivery and transport company in Northern Virginia.

During his residency in Virginia, petitioner held a Virginia driver’s

license, maintained car insurance, and otherwise engaged in

activities associated with his living and working in the United

States. Kasi, 508 S.E.2d at 59, Appendix at 1-2; Appendix at 269-

270. On January 25, 1993, two CIA agents were shot to death near

the entrance to the CIA headquarters. Kasi, 508 S.E.2d at 59,

Appendix at |. Other than the statement given by petitioner after

he was abducted by the four FBI agents in Pakistan, no direct

evidence placed the petitioner at the murder scene. See id. at 61,

Appendix at 7.

Between January 1993 and June 1997, the CIA and FBI

conducted an extensive investigation into the murders of the two

CIA agents, both in the United States and abroad. Id. at 61,

Appendix at 6. The federal agents acted as investigators for the

Commonwealth attorney for Fairfax County. See id.; Appendix at

423-424. As part of the investigation, the federal agents paid

unidentified persons in excess of two million dollars for

information and traveled to multiple countries before tracking

petitioner down in Pakistan. Kasi, 508 S.E.2d at 61, Appendix at

6; Appendix at 470, 475, 479.

As part of discovery in the trial court, petitioner caused

subpoenas to be served on the FBI and CIA seeking documents

concerning him, his family and the killings, including documents

relating to the FBI and CIA hunt for petitioner, his capture by the

FBI, his family’s history with the CIA, the killing of his family

member and the CIA’s involvement with his amnesty permit

issued by the INS. Appendix at 403, 411-413, 421-422. The FBI

and CIA refused to produce the requested documents.° Id.;

Appendix at 399, 402, 414-417. The trial court denied petitioner’s

requests to enforce the subpoenas and compel the FBI and CIA to

produce the documents stating: “I don’t find there’s any

jurisdiction of a state court to hold a federal official in contempt

for failing to respond to a state court’s subpoena. And for that, and

the other reasons stated by [the FBI and CIA’s attorney], the rule

to show cause is dismissed.” Id. at 64, 67. The Supreme Court of

Virginia summarily affirmed the trial court’s rulings. Kasi, 508

S.E.2d at 60, Appendix at 4, 5.

Prior to trial, petitioner also moved the Court to suppress

evidence stemming from the FBI’s seizure of him based on the

unreasonableness of the seizure. Id. at 63, Appendix at 12:

: Petitioner followed the regulatory procedures established by the

FBI and CIA but did not obtain the requested documents for use in

this case.

Appendix at 324-329. The trial court, relying on this Court’s

opinion in United States v. Verdugo-Urquidez, 494 U.S. 259

(1990), found that petitioner must prove that he has substantial

voluntary contacts with the United States to claim the protections

of the Fourth Amendment: “[Petitioner] has to make a prima facie

case to show that he is entitled to claim that protection and at least

a prima facie case that it was violated.” Appendix at 43. After

conducting a hearing at which both petitioner and the

Commonwealth of Virginia presented testimony, Id. at 241-323,

the tral court ruled that petitioner did not have standing to

challenge the FBI’s seizure of him as unreasonable. Id, at 40, 47-

52.

The Supreme Court of Virginia upheld the trial court’s

ruling. Kasi, 508 S.E.2d at 63, Appendix at 12. Significantly, the

Virginia Supreme Court did not assess petitioner’s contacts with

the United States, but rather reasoned that the Fourth Amendment

is inapplicable to federal government conduct towards aliens that

takes place outside of the United States.° See id.

° The Supreme Court of Virginia reasoned as follows: “In United

States v. Verdugo-Urquidez [citation omitted], the Supreme Court

held: The available historical data show...that the purpose of the

Fourth Amendment was to protect the people of the United States

against arbitrary action by their own Government, it was never

suggested that the provision was intended to restrain the actions of

the Federal Government against aliens outside of the United States

territory.’ The Court also said, “There is likewise no indication that

the Fourth Amendment was understood...to apply to activities of the

United States directed against aliens in foreign territory or in

international waters. [citation omitted].’” Kasi, 508 S.E.2d at 63,

Appendix at 12.

Prior to trial, petitioner also moved to dismiss the charges

against him on grounds that the trial court did not have jurisdiction

over him. Id, at 62, Appendix at 8-9. In the alternative, petitioner

asked that evidence resulting from his abduction from Pakistan in

violation of the Extradition Treaty between the United States and

Pakistan and the Vienna Convention on Consular Relations be

suppressed. Id. at 62, 63-64, Appendix at 8-9.

The trial court denied each of these pretrial motions,

Appendix at 54-55, 57, 59-62, and the Virginia Supreme Court

affirmed stating that the Court’s decision in United States v.

Alvarez-Machain, 504 U.S. 655 (1992), controlled and that the

Vienna Convention on Consular Relations does not give

individuals any legal, enforceable rights. Kasi, 508 S.E.2d at 63,

64, Appendix at 11-12, 13.

The Virginia Supreme Court also conducted a

proportionality review of his death sentence mandated by Virginia

statute. Id. at 68, Appendix at 22-23; see Va. Cope Ann. §17-

313(C)(2). The court upheld petitioner’s eligibility for death on

the basis of the “vileness” factor. Id., Appendix at 23. The court

reviewed the record in the case which did not contain any

documents from the CIA or FBI, compared the sentence in

Petitioner’s case to those imposed for supposedly similar crimes in

Virginia, and concluded that the trial court’s sentence was “not

excessive or disproportionate.” Id.

1]

N R NTIN WRIT

I. THE COURT SHOULD RESOLVE THE CONFLICT

AMONG LOWER COURTS AS TO THE STANDING

OF ALIENS TO CLAIM THE PROTECTION OF

THE FOURTH AMENDMENT.

In this case, the Supreme Court of Virginia held that

petitioner, regardless of his contacts with the United States,’ lacked

standing to claim that his seizure violated the Fourth Amendment

because it took place overseas. Kasi, 508 S.E.2d at 63. Asa

consequence, the Virginia Supreme Court squelched petitioner’s

Fourth Amendment challenge to the reasonableness of his

seizure—a challenge which, based on the facts, would likely have

been successful. *

” Petitioner legally lived and worked continuously in the United

States for nearly two years, had substantial voluntary and legal

contacts in the United States and was seized in Pakistan by federal

agents based on alleged conduct that occurred exclusively in the

United States.

* Neither the trial court nor the Supreme Court of Virginia ruled

whether the government’s seizure of petitioner was reasonable.

However, the FBI and CIA officers clearly acted unreasonably

when they entered his hotel room at four in the moming without

identifying themselves, gained physical control over him through

the use of force, molested him, placed a hood over his head,

gagged, handcuffed and shackled him, transported him in a van for

almost an hour, placed him on a plane for over an hour, placed him

in another van for almost an hour, held him in a cell for two days

and then flew with him on a twelve hour flight to the United States.

alah Bi Lad BR site. wali

The decision of the Virginia Supreme Court generally

follows the decisions of the Fifth Circuit Court of Appeals on the

issue of Fourth Amendment standing, but conflicts with decisions

of the Ninth Circuit Court of Appeals and the Supreme Court of

Florida. Conflict in lower court decisions also exists on the issue

of whether an alien bears the burden of proving standing. The

Court should grant certiorari to resolve the conflict on these issues

of significant constitutional importance.

In United States v. Verdugo-Urquidez, the Court, in a

plurality decision, found that a Mexican citizen and resident, who

had no substantial voluntary connections with the United States,

lacked standing to challenge under the Fourth Amendment the

search of his home by agents of the United States government.

494 U.S. 259, 274-275 (1990). Tae Court did not rule that the

Fourth Amendment is inapplicable to an extraterritorial search or

seizure.” See United States v. Barona, 56 F.3d 1087, 1094 (9" Cir.

1995), cert. denied, U.S._, 116 S.Ct. 813 (1996); Reichmann y.

State of Florida, 581 So. 2d 133, 138 (Fla. 1991). Nor did this

Court rule that only resident aliens are “people” deserving of the

protection of the Fourth Amendment. See Verdugo, 494 U.S. at

” Compare Verdugo, 494 U.S. at 270, 274-275 (“he was a citizen and

resident of Mexico with no voluntary attachment to the United States

and the place searched was located in Mexico”) (emphasis added)

with Verdugo, 494 U.S. at 277, 278 (Kennedy, J., concurring) (“the

Constitution does not require United States agents to obtain a warrant

when searching the foreign home of a non-resident alien... [i}f the

search had occurred in a residence with the United States, I have little

doubt that the full protections of the Fourth Amendment would

apply”).

>

13

271-272, 272-273, 279 (Stevens, J., concurring), 282 (Brennan, J.,

dissent); see also United States v. Guitterez, 983 F.Supp. 905,

915-916 (N.D.Cal. 1998); United States v. Tehrani, 826 F Supp.

789, 793-794 n.1 (D.Vt. 1993), affirmed, 49 F.3d 54 (2™ Cir.

1995). Indeed, the Court in Verdugo specifically limited its

holding to the circumstances of an alien who had no voluntary

connection with the United States and whose home was outside the

United States and stated that the Fourth Amendment nights of an

alien depend on his voluntary contacts with the United States.

Verdugo, 494 U.S. at 274-275.

Since the decision in Verdugo, the Supreme Court of

Florida has held that aliens can claim the protection of the Fourth

Amendment regarding searches conducted by United States

government agents abroad. Reichmann v. State of Florida, 581 So.

2d 133, 138 (Fla. 1991). In Reichmann, the Florida Court found

that a German citizen and resident who had been legally visiting

the United States for less than a month had standing to challenge

the search of his property by United States agents in Germany.

581 So. 2d at 138. Similarly, the Ninth Circuit Court of Appeals

has held that an alien who had substantial voluntary connections to

the United States can challenge United States government searches

and seizures abroad. United States v. Juda, 797 F.Supp. 774, 781

(N.D.Cal. 1992) (resident alien has standing to challenge federal

government’s search and seizure abroad), affirmed, 46 F.3d 961

(9" Cir. 1995); see Barona, 56 F.3d at 1093, 1094 (acknowledging

that this question remains undecided and assuming for purposes of

the motion that alien had standing to challenge conduct abroad).

To the contrary, the Fifth Circuit Court of Appeals has

held that an alien who has substantial voluntary connections to the

United States does not have standing to challenge the federal

government's conduct abroad. United States vy. Cardenas, 9 F.3d

1139, 1157 n.8 (S" Cir. 1993) (resident alien cannot challenge

federal government conduct taking place in another country), cert.

denied, U.S._, 128 L.E.2d 876 (1994). Similarly, in this case, the

Virginia Supreme Court found that petitioner, despite his residence

at one location in the United States for approximately two years,

could not assert a Fourth Amendment challenge to his seizure by

FBI agents in Pakistan. Kasi, 508 S.E.2d at 63, Appendix at 12.

As to who bears the burden of proof on Fourth

Amendment standing, the Virginia trial court found that petitioner

bore the burden of proving standing while the Federal District

Court for the Northern District of California declined to place a

higher burden on a non-citizen defendant moving to suppress

evidence resulting from unreasonable United States government

conduct. Compare Guitterez, 983 F. Supp. at 916 (“[gliven the

lack of any clear appellate guidance which alters the applicable

standard... the court is disinclined to impose a greater burden on

this category of criminal defendants as a prerequisite to seeking the

shelter of the Fourth Amendment”) with Kasi, Appendix at 43

(“[Petitioner] has to make a prima facie case to show that he is

entitled to claim [the] protection [of the Fourth Amendment]...”).

Had petitioner been prosecuted in the state court in Florida

or the federal district court in California, the trial court would have

found that petitioner has standing—petitioner lived, worked, held a

15

driver’s license, maintained car insurance, invested in business,

and participated in civic and religious activities in the United

States as a legal alien for approximately two years, and the incident

that gave rise to his seizure occurred in the United States during his

legal residence—and proceeded to evaluate the reasonableness of

the FBI’s seizure. Evaluation of petitioner’s seizure would expose

its unreasonableness and result in the suppression of petitioner’s

confession.

The ability to challenge government conduct that violates

the Fourth Amendment is crucial to the protection of defendants’

interest in privacy and bodily integrity and the prevention of

unlawful government conduct. See Guitterez, 983 F.Supp. at 911

(citing Zurcher vy. Stanford Daily, 436 U.S. 547, 559 (1978)). The

remedy relative to these issues on which the conflict exists—

exclusion of the unlawfully obtained evidence—is outcome-

determinative and resolution of these conflicts will ensure that

similarly situated defendants, including petitioner, are not treated

differently solely because of the court in which their cases are

heard.

Il. THIS COURT SHOULD ADDRESS THE QUESTION

LEFT OPEN IN ALVAREZ-MACHAIN AS TO

WHETHER VIOLATIONS OF MANDATORY

EXTRADITION PROCESS IN TREATIES TO

WHICH THE UNITED STATES IS A PARTY

IMPAIR AN AMERICAN COURT’S PERSONAL

JURISDICTION OVER DEFENDANTS.

Article 8 of the Extradition Treaty between the United

States and the Republic of Pakistan provides:

16

— ES AE a ee A es he LENS we names Aaa ae mae?

The extradition of fugitive criminals

under the provisions of this Treaty shall be

carried out...in conformity with the laws

regulating extradition for the time being in

force in the territory from which the

surrender of the fugitive criminal is claimed.

[emphasis added]. 47 Stat. 2122 (1931),

Appendix at 71.

Act XX] of the Republic of Pakistan (“Extradition Act.

1972”) implements the Extradition Treaty and sets forth an

exclusive extradition procedure. The Pakistan Code, Volume

XVIII. Chapter II, Section 6 of Extradition Act, 1972 provides:

6. Requisition for surrender of fugitive

offender. A requisition for the surrender of a

fugitive offender shall be made to the Federal

Government... [emphasis added]. Appendix at

87.

Article 36(2) of the Vienna Convention on Consular

Relations confers a national of a signatory country with the right to

be advised that he can communicate with his country’s consul

without interference immediately upon his detention by agents of a

foreign state. 21 U.S.T. 77 (1963), Appendix at 100.

In this case, petitioner was kidnapped by four (4) FBI

agents, handcuffed, shackled and hooded, and taken by car and

airplane to a facility controlled by Pakistanis. After two days at

this facility under continuous supervision by the FBI agents, the

petitioner was turned over to the custody of the agents. The agents

17

Sentene.

took petitioner to an airport from which he and the agents were

flown to the United States.

The United States did not make a requisition to the Federal

Government of Pakistan or advise him of his right to unfettered

contact with his consulate. Kasi, 508 $.E.2d at 62, Appendix at 9.

In fact, petitioner was not advised of his right to contact his

consulate until the Commonwealth’s attorney wrote to the defense

counsel fourteen days after his return to the United States. Id.

Despite the lack of the required requisition and the failure

to advise petitioner of his rights under the Vienna Convention, the

Virginia Supreme Court found that the trial court had personal

jurisdiction because of this Court’s ruling in United States v.

Alvarez-Machain, 504 U.S. 655 (1992). Id. at 63, Appendix at 8.

The Virginia Court stated that petitioner’s abduction did not

violate the Extradition Treaty between the United States and

Pakistan, because nothing in the Treaty prohibited the abduction or

required that sanctions be imposed for an alleged violation of the

Treaty. Id.

The Virginia Supreme Court also found that the Vienna

Convention did not require the FBI agents to notify petitioner of

his right to contact Pakistani authorities because petitioner was

“turned over” to Pakistani authorities and that, as soon as the

petitioner was returned to the United States, the prosecutor notified

the defense that petitioner had the right to contact the Pakistani

consulate. Id, at 64, Appendix at 9.

Both of these findings are erroneous and outcome-

determinative. The failure to follow the mandatory extradition

18

procedure set forth in the Extradition Act, 1972 deprived the

Virginia court of personal jurisdiction over petitioner in violation

of petitioner's Fourteenth Amendment right to due process.

In Alvarez-Machain, the Court held that the forcible

abduction of a Mexican citizen in Mexico at the direction of DEA

agents is not prohibited by the Extradition Treaty between Mexico

and the United States. 504 U.S. at 670. The Court reasoned that

the forcible abduction was permissible because the Extradition

Treaty did not provide for a mandatory extradition process or

expressly bar kidnapping by government agents. Id. at 666, 669:

Ker v. Illinois, 119 U.S. 436 (1886); see also Frisbie v. Collins,

342 U.S. 519 (1952). Unlike the situation in Alvarez-Machain, the

Treaty between the United States and Pakistan, implemented by

the Extradition Act, 1972, specifically provides for exclusive use

of the requisition procedure in the extradition process, especially

where officials of both counties are involved in the process.

Since no such requisition was ever made for petitioner

after he was held in the facility controlled by the Pakistanis and

before he was “turned over” to the custody of the FBI agents, the

Virginia Court had no jurisdiction over petitioner. Indeed, the four

(4) FBI agents simply ignored the mandatory extradition procedure

despite the Extradition Treaty’s status as the supreme law of the

United States. In essence, the Extradition Act, 1972 provides “the

only way by which one country may gain custody of a national of

the other country for purposes of prosecution,” and the Ker-Frisbie

doctrine does not apply. Alvarez-Machain, 504 U.S. at 664; see

United States v. Rezag, 134 F.3d 1121, 1130 (D.C. Cir. 1998), cert,

19

denied, U.S._, 119 S.Ct. 90 (1998); United States v. Noriega, 117

F.3d 1206, 1213 (11" Cir. 1997), cert. denied, U.S. _, 118 S.Ct.

1389 (1998); United States v, Matta-Ballesteros, 71 F.3d 754, 763

(9" Cir. 1995), modified, 98 F.3d 1100 (9 Cir. 1996), cert. denied,

519 U.S. 1118 (1997).

In stating that no sanctions were required, the Virginia

Supreme Court chose to ignore the clear rule of law that, where the

trial court lacked personal jurisdiction, the Fourteenth Amendment

requires reversal without prejudice and the suppression at any new

trial of evidence obtained in the unconstitutional process through

which the presence of the defendant was secured.

Furthermore, the Vienna Convention grants an individual

the night, when seized by agents of a foreign state, to immediately

consult with his own government’s consulate. Breard v. Pruett,

134 F.3d 615, 622 (4" Cir. 1998) (Butzner, J., concurring), cert.

denied, 523 U.S. 371 (1998). The rationale for this right is

evident, i.e., unfettered consultation ensures individual rights and

the rule of law. The Virginia Supreme Court is simply in error in

ruling that the rationale is satisfied because petitioner was held for

two days in a facility controlled by Pakistanis. Kasi, 508 S.E.2d at

64, Appendix at 9. During those days, the FBI agents maintained

continuous surveillance of petitioner and did not give petitioner

any Opportunity to consult, independently or otherwise, with

personnel of the foreign office of Pakistan—much less advise him

of his night to do so.

The Virginia Supreme Court is plainly wrong in stating

that as soon as petitioner returned to the U.S. the defense was

20

advised that petitioner could contact his consulate. Id. The record

clearly shows that such advice was not given until July 3, 1997,

some fourteen days after his return and well after petitioner had

been subjected to extensive interrogation and had given a

Statement to one of his abductors.

Neither the United States nor the Republic of Pakistan or

any other nation-state with an extradition law compelling a

mandatory extradition process or which is a signatory to the

Vienna Convention can ignore these laws. They are the supreme

laws of the United States. U.S. Const. art. VI, cl. 2. All unlawful

attempts to obtain jurisdiction over a person protected by such laws

fail and violate the person’s Fourteenth Amendment rights. The

Court should grant the Petition and clarify its decision in Alvarez-

Machain, especially in situations where a foreign state’s

extradition law provides for an exclusive extradition process.

iil. |THE COURT SHOULD CORRECT THE LOWER

COURTS’ EXPANSION OF THE RULE IN TOUHY

BECAUSE THAT EXPANSION DEPRIVES

CRIMINAL DEFENDANTS OF CONSTITUTIONAL

RIGHTS TO EXCULPATORY AND MITIGATING

EVIDENCE.

The Virginia courts deprived petitioner of his Sixth

Amendment right to compulsory process and his Fourteenth

Amendment rights to due process and equal protection when the

courts failed to compel the FBI and CIA to produce documents

likely to contain exculpatory and mitigating evidence.

The FBI and CIA refused to comply with subpoenas for

such documents, citing regulations adopted pursuant to the

21

Housekeeping Statute, 5 U.S.C. § 301,"° this Court’s opinion in

U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and other lower

court opinions that have expanded Touhy. The Virginia trial court

agreed, finding no power to order the CIA or the FBI to produce

the documents—even for the court’s in camera review. The trial

court did not review the documents, nor petitioner's reasons for the

requests. The Virginia Supreme Court summarily affirmed. Kasi,

508 S.E.2d at 60, Appendix at 4, 5.

A. This Court Did Not Create A New Federal

Privilege In Touhy.

In Touhy, this Court ruled that a state court cannot hold a

subordinate of a federal agency in contempt for refusing to comply

with a state-issued subpoena because of his superior’s instructions

not to do so, when the federal agency's regulations enacted

pursuant to the Housekeeping Statute require that he follow his

superior’s instructions. 340 U.S. at 466-467, 468. The Touhy

Court expressly declined to determine whether the agency superior

has the authority to refuse to produce the documents sought,

whether the federal agency may properly refuse to produce such

information when the information is sought in the context of a

criminal prosecution, and whether the federal agency can refuse to

produce such documents because of national secrets contained

therein. Id. at 467, 468.

Despite the Court’s narrow ruling in Touhy, lower courts

have expanded that decision to stand for the principle that state

' 28 CFR. §§ 16.21-16.29; 32 CFR. §§ 1905.1-1905.4.

22

courts can never enforce subpoenas against federal agencies. The

lower courts began this expansion of Touhy by reference to the

principle of sovereign immunity.'' See U.S. v. Williams, 1999 U.S.

App. LEXIS 3843 (4" Cir. 1999); Smith vy. Cromer, 159 F.3d 875,

881 (4" Cir. 1998); Houston E

|

PU. lis

mo JUUTTIA ii 1% afi

Comptroller of Currency, U.S. Dep’t of Treasury, 86 F.3d 120

1211 (DC. Cir. 1996); Edwards v, United States Dep’t of Justice,

43 F.3d 312, 315 (7 Cir. 1994); State of Louisiana v. Sparks, 978

F.2d 226, 236 (5 Cir. 1992); Ferrell v. Yarberry, 848 F.Supp. 121,

123 (E.D. Ark. 1994).

8,

However, instead of applying the Court’s actual holding in

Touhy and the doctrine of sovereign immunity, the lower courts

created a mutation that acts as a federal privilege. E.g., Williams,

1999 U.S. App. LEXIS 3843 at *10; Smith, 159 F.3d at 879;

Houston Business Journal, 86 F.3d at 1212 n. 4, 1213; Edwards, 43

F.3d at 314, 315, 316; _V

Co., 859 F Supp. 467, 469 (D.Kan. 1994): State of Louisiana v.

Parker, 661 So. 2d 603, 611 (La. App. 2 Cir. 1995), appeal denied,

667 So. 2d 1049 (La. 1996); see Sparks, 978 F.2d at 236 n. 18.

This mutation actually ignores the long-standing rulings of this

Court that the doctrine of sovereign immunity is inapplicable when

” Sovereign immunity precludes state governments from interfering

with the federal government’s conduct of its business, Boron Oil Co.

y. Downie, 873 F.2d 67, 71 (4" Cir. 1989); see Larson y. Domestic &

Foreign Commerce Corp. 337 U.S. 682, 688 (1949), and bars state

court actions against the federal government. Maddox y. Williams,

855 F Supp. 406, 414 (D_D.C. 1994), affirmed, 62 F.3d 408 (D.C.Cir.

1995), Smith v. Cromer, 159 F.3d 875, 879 (4" Cir. 1998).

23

the federal agent acts unconstitutionally, Dugan v. Rank, 372 U.S.

609, 621-622 (1962); Smith, 159 F.3d at 884 (Phillips, J.,

dissenting); see Larson, 337 U.S. at 690, and that the courts must

determine whether any privilege can be legitimately asserted when

there is a countervailing constitutional interest.'* United States v.

Nixon, 418 U.S. 683, 708, 709 (1974).

Lower courts applying the mutation to state criminal

defendants’ subpoenas for documents and testimony—like the

Virginia trial court—accept the federal agencies” bare assertions of

“privilege” and find that the agencies are immune from

compulsory process. E.g., Williams, 1999 U.S. App. LEXIS 3843

at *8-9; Smith, 159 F.3d at 881; In re Gray, 1998 U.S. App.

LEXIS 25779 (10" Cir. 1998)."°

These courts fail to evaluate whether or acknowledge that

the agencies’ refusal to provide the information could or does

'? The mutation also ignores Congress’ amendment of the

Housekeeping Statute in 1958 to prevent this very occurrence. See

Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979).

” See also McClure y. United States, 1995 WL 299849 (9” Cir.

1995); New York v. Kronberg, 672 N.Y.S.2d 63, 243 A.D.2d 132,

154 (N.Y. App. Div. 1998), appeal denied, 678 N.Y.S.2d 27 (N.Y.

1998); Ohio y. O’Neal, 1985 Ohio App. LEXIS 6819 (Ohio Ct.

App. 1985); Nebraska v. Rice, 335 N.W.2d 269, 277 (Neb. 1983);

In re Pratt, 170 Cal.Rptr. 80, 112 Cal.App.3d 795, 880

(Cal.Ct.App. 1980); Massachusetts v. Manning, 359 N.E.2d 51,

53-54 (Mass. App. Ct. 1977), reversed on other grounds, 367

N.E.2d 635 (1977); State of Louisiana v. Andrews, 250 So. 2d

359, 366 (La. 1971); Alexander v. Texas, 450 S.W.2d 70, 72 (Tex.

Crim. App. 1970); see Sparks, 978 F.2d at 234-236.

24

violate the criminal defendants’ Sixth and Fourteenth Amendment

rights to exculpatory and mitigating evidence. Commonwealth of

Pennsylvania v. Smith, 208 A.2d 219, 223, 225, 229 (Pa. 1965)

(court reversed defendant’s conviction because trial court violated

defendant’s rights to compulsory process and due process when it

failed to compel FBI to produce information); New York v.

Heller, 483 N.Y.S.2d 540, 126 Misc. 2d 575, 577, 578 (N.Y. Sup.

Ct. 1984) (court denied federal government’s motion to quash

subpoena because granting the motion would deprive criminal

defendant of his rights to compulsory process and due process);

Buford v. Georgia, 282 S.E.2d 134, 137, 138 (Ga. Ct. App. 1981)

(court reversed defendant’s conviction because trial court deprived

him of his right to compulsory process when it refused to compel

the DEA to produce exculpatory information).

“It is well settled that the government has the obligation to

turn over evidence in its possession that is both favorable to the

accused and material to guilt or punishment.” Pennsylvania v.

Ritchie, 480 U.S. 39, 56, 57 (1987)); Nixon, 418 U.S. at 711-712

(“allowance of the privilege... relevant in a criminal trial [] cut[s}

deeply into the guarantee of due process of law and gravely

impair(s} the basic function of the courts”); cf. Roviaro v. United

States, 353 U.S. 53, 60-61 (1957) (informer’s privilege must give

way if informant’s identity is relevant to defense).

By failing to consider the criminal defendant’s

constitutional rights, the lower courts abdicate their responsibility

to assess application of the doctrine of sovereign immunity and the

legitimacy of the assertion of the “privilege.” See Nixon, 418 U.S.

25

at 705; United States v. Reynolds, 345 U.S. 1, 9-10 (1953)

(“Judicial control over the evidence in a case cannot be abdicated

to the caprice of executive officers”).

B. In Camera Review Would Protect Each Party’s

Interests.

At the very least, when faced with a defendant, like

petitioner, in a state court criminal prosecution who is seeking

exculpatory and mitigating information from a federal agency, the

court should first review the information sought and held by the

federal agency in camera. See Nixon, 418 U.S. at 711, 712, 713-

714 (importance of privilege must be weighed against the

detriment caused thereby to the guarantee of due process in the

criminal justice system), Reynolds, 345 U.S. at 12; State of

Florida y. Cohen, 887 F.2d 1451, 1455 (11" Cir. 1989) (remand to

district court necessary for balancing of criminal defendant's

interest in having potentially exculpatory evidence withheld by

federal agency on claim of privilege with federal government’s

interest in protecting the flow of information in light of new facts);

Ohio v. i, 1980 Ohio App. LEXIS 12552 at *29-30 (Ohio Ct.

App. 1980) (tral court properly reviewed FBI documents to

determine whether criminal defendant's interest outweighed the

government’s interest), New York v. Santos, 368 N.Y.S.2d 130,

140 (N.Y. Sup. Ct. 1975); Elson vy. Brown, 436 P.2d 12, 16-17

(Nev. 1967); see also Smith. 159 F.3d at 881; of, Ritchie, 480 U.S.

at 58 (criminal defendant was entitled to have trial court review

file withheld by state on claim of privilege for exculpatory

evidence); United States v, Bizzard, 674 F.2d 1382, 1386 (11 Cir.

26

1982) (trial court properly conducted in camera review of

personnel file held by FBI when determining whether federal

government was obligated to produce file to defendant pursuant to

Brady v. Maryland, 373 U.S. 83 (1963)), cert. denied, 459 U.S.

973 (1982).

Jn camera review of the documents would allow for the

protection of any government interest and ensure that any such

interest is not unduly exercised at a sacrifice of “the fair

administration of criminal justice.” Nixon, 418 U.S. at 71 1-712;

Smith, 159 F.3d at 885 (Phillips, J., dissenting) (“the right is not

adequately protected by the court’s simply accepting the

government's proffer of non-materiality without conducting its

Own inspection”).

Indeed, to hold otherwise would create an anomaly.

Commonwealth of Pennsylvania v. Smith, 208 A.2d at 225. Were

the criminal defendant being tried by the federal government in the

federal court, he would be entitled to information held by federal

agencies. See, ¢.g., Exxon Shipping Co. v. United States Dep’t of

Interior, 34 F.3d 774, 778, 780 (9 Cir. 1994) (neither Touhy nor

the doctrine of sovereignty prevent a federal court from ordering a

federal agency to comply with a subpoena); National Labor

Relations Board v. Capitol Fish Co., 294 F.2d 868, 875 (5" Cir.

1961) (federal agency cannot assert blanket privilege—rather

federal court determines whether federal agency can refuse to

produce documents); Connaught Labs., Inc. v. SmithKline

Beecham P.L.C., 7 F Supp.2d 477, 479, 480 (D.Del. 1998) (federal

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court can enforce subpoena against federal agency), appeal

dismissed, 165 F.3d 1368 (Fed.Cir. 1999).

Likewise, if the investigation was conducted by the state

prosecutor or state agencies rather than federal agents, the criminal

defendant would be entitled to the information. See, e.g., Ritchie,

480 US. at 56, 57 (state prosecution must turn exculpatory and

mitigating evidence over to criminal defendant); Commonwealth

of Pennsylvania v. Smith, 208 A.2d at 225 (criminal defendant

entitled to exculpatory information held by state).

a8 This Case Is An Appropriate Vehicle For The

Court To Clarify Its Decision In Touhy.

The Court has not addressed the “privilege” created by the

lower courts” mutation of Touhy. However, in Smith v.

Pennsylvania, 376 U.S. 354 (1964), this Court granted certioran

where the petitioner, a criminal defendant, claimed that the state

trial court denied him the due process of law and deprived him of

his nght to compulsory process when it failed to compel the FBI to

produce documents to him. The FBI was investigating the

circumstances surrounding the crime for which the petitioner was

arrested, so the petitioner subpoenaed the FBI. The trial court

granted the FBI’s motion to quash the subpoena and the

Pennsylvania Supreme Court affirmed.

This Court, in response to the petition for a writ of

certioran, asked the Solicitor General for its position. The

Solicitor General reported that the only objection to the subpoena

was its breadth and indicated that there would be no objection to a

narrower subpoena. This Court granted the petition and remanded

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the case to the Pennsylvania Supreme Court for reconsideration in

light of the Solicitor General’s statement. 376 U.S. at 355. On

remand, the Pennsylvania Supreme Court reversed the conviction

because the trial court’s failure to compel the FBI to produce the

documents denied the petitioner his rights to compulsory process

and due process. Commonwealth of Pennsylvania v. Smith, 208

A.2d at 229.

This Court has made it clear that the Virginia trial court’s

failure to review the information held by the FBI and CIA is

reversible error if the information is material to petitioner’s guilt or

punishment. Ritchie, 480 U.S. at 58; see Kyles v. Whitley, 514

U.S. 419, 434 (1995) (the question is whether the inability to have

the information “undermines confidence in the outcome of the

tnal”).

Here, petitioner made a plausible showing of the existence,

materiality and favorable quality of the documents held by the FBI

and CIA. See Ritchie, 480 U.S. at 60 n.15. The FBI and CIA have

documents regarding petitioner and petitioner’s family because of

their investigation of petitioner as a suspect in the killing of the CLA

agents and also because of petitioner's family’s previous history with

the ISI and CIA.

These documents would have supported petitioner’s motion

to suppress evidence obtained as a result of his unreasonable seizure.

The documents concerning the FBI’s seizure of petitioner would

expose its unreasonableness and the failure of the United States to

comply with the mandatory extradition process set forth in the

Extradition Act. The documents concerning the communications

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among the ISI, CLA and petitioner’s family, the killing of petitioner’s

relative, and the CIA’s involvement in the issuance of an amnesty

and work permit to petitioner would have provided the jury a

reasonable explanation for any reaction by petitioner to the CLA’s

interference with Islamic affairs and given petitioner another avenue

for convincing the jury and the court to spare his life.

Independent of petitioner’s interest, the broader and more

important question is whether federal agencies can conduct

investigations, arrest individuals and turn them over to the states for

prosecution in order to avoid producing exculpatory and mitigating

evidence that they would otherwise have to produce in federal

prosecutions. The Court should exercise its jurisdiction pursuant to

28 U.S.C. § 1257(a) and review the extension of Touhy by the lower

courts in state criminal cases which implicate defendants’ Sixth and

Fourteenth Amendment nights.

CONCLUSION

For all the foregoing reasons, petitioner respectfully

requests that the Court grant the Petition For A Writ of Certiorari.

lly submitted,

Elwood Earl Sanders, Jr. Laurie J.

Commonwealth of Virginia HANIFY & KING

Public Defender Commission Professional Corporation

701 East Franklin Street One Federal Street

Richmond, VA 23219 Boston, MA 02110

(804) 225-3297 (617) 423-0400

Of counsel Counsel for Petitioner

May 5, 1999

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