762 F. Supp. 2d 658
S.D.N.Y.2011Background
- Indictment charges a broad conspiracy involving Umeh and others to import cocaine from South America via Liberia to West Africa and the United States.
- Yaroshenko moves to dismiss on Oct. 13, 2010 arguing extreme governmental misconduct including torture, illegal abduction, secret Ukraine recordings, and manufactured jurisdiction.
- Government opposes; court held oral argument and denied the motion in its entirety on Nov. 29, 2010.
- Yaroshenko contends torture and abduction together create a due process defect, and that jurisdiction was manufactured.
- Court analyzes each prong: torture/abduction, illegal recording, and manufactured jurisdiction, applying framework from Toscanino and Ker-Frisbie.
- Court ultimately reaffirms denial, finding Toscanino no longer good law, and that the indictment shows adequate federal nexus and jurisdiction; rulings on other prongs follow accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Toscanino governs in this case | Yaroshenko argues Tsocanino applies due process concerns. | U.S. contends Toscanino is no longer good law due to later authorities. | Toscanino is no longer good law. |
| Does alleged torture/abduction require dismissal | Brutal treatment and illegal removal warrant dismissal. | Despite misconduct, indictment need not be dismissed; tainted evidence may be suppressible, not the indictment. | Indictment not dismissed; due process not offended to require dismissal. |
| Whether alleged Ukrainian-law violations and MLAT issues warrant suppression | Violations of Ukrainian law and MLAT justify suppression of recordings. | U.S. evidentiary admissibility depends on U.S. law; foreign-law violations do not mandate suppression. | No suppression; Ukrainian/MLAT issues do not bar admissibility. |
| Whether the government manufactured jurisdiction | Indictment lacks federal nexus; actions were inadequate to establish jurisdiction. | Defendant argues the government manufactured jurisdiction by coercive acts. | Indictment shows voluntary acts implicating federal elements; jurisdiction not manufactured. |
| Whether surplusage should be struck and Rule 16 discovery compelled | Reference to FARC and discovery requests are prejudicial/surplusage and incomplete. | Surplusage is prejudicial but admissible if probative; discovery requests are not missed. | Surplusage denied; Rule 16 discovery denied as moot. |
Key Cases Cited
- Toscanino, 500 F.2d 267 (2d Cir.1974) (due process exception for outrageous government conduct remanding to jurisdiction)
- Frisbie v. Collins, 342 U.S. 519 (Supreme Court 1952) (court power not impaired by forcible abduction)
- Ker v. Illinois, 119 U.S. 436 (Supreme Court 1886) (jurisdiction cannot be defeated by unlawful seizure)
- U.S. v. Crews, 445 U.S. 463 (1980) (illegality of detention cannot taint evidence; rights not voided by unlawful arrest)
- U.S. v. Alvarez-Machain, 504 U.S. 655 (1992) (Ker-Frisbie doctrine reaffirmed; abduction does not bar trial)
- Immigration & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032 (1984) (identity of defendant not suppressible due to unlawful arrest)
- Lujan v. Gengler, 510 F.2d 62 (2d Cir.1975) (Toscanino narrowed to torture/brutality cases)
- U.S. v. Best, 304 F.3d 308 (3d Cir.2002) (Ker-Frisbie doctrine remains intact; Toscanino vitality questioned)
- U.S. v. Mitchell, 957 F.2d 465 (7th Cir.1992) (Toscanino's vitality questioned in light of later authorities)
- Matta-Ballesteros v. Henman, 896 F.2d 255 (7th Cir.1990) (Toscanino's reach limited after other decisions)