# Petition for Writ of Certiorari — Kasi v. Virginia

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0802%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1038

## Text

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............ 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

27

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

28

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

29

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
30

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0802%3A1. Public record. Not legal advice.