United States v. Rene Martin Verdugo-Urquidez

sleep agency upon a letters which majority hours of least five received opinion not state that the focuses. majority The did night. clearly finding was errone- court’s district CONCLUSION also does not address majority The ous. by Region Each directive relied on V to district court found fact that the support good faith defense was condi- many allowed to document were not LSTs (1) upon employer tioned and the em- interruptions. The ma- sleep time of their ployees agreeing in advance to exclude point, this distinguishes Hultgren on

jority time, (2) sleep employer providing a full- Hultgren did not involve arguing employees. home-like environment for the case, employees. In this time Region V did not meet these conditions. regu- employees considered full-time respectfully I weekday LSTs. The week- submit this court lations are LSTs are considered should end and substitute be bound the record and our own event, employees. the letters precedent. relief I therefore dissent. employ- that relief and full-time

also state regarding treated the same ees should be Appellant’s deductions. sleep time letter). (Aug. The App. at 27-28 distinguish Hultgren majority attempts Hultgren district on the basis that averaged employees court found night. The sleep hours of a zero four in- majority obviously finds that this was America, UNITED STATES of dis- regulations. consistent with Plaintiff-Appellee, Region trict court in this case found that hours of employees did not receive five V’s Thus, Region VERDUGO-URQUIDEZ, treatment sleep night. V’s Rene Martin obviously incon- Defendant-Appellant. employees of its also was regulations. regard In this sistent with the No. 88-5462.* majority’s analysis inexplic- remains able. Appeals, Court of Ninth Circuit. C. Substitute LSTs Argued Feb. 1991. same shift Substitute LSTs worked the 13, 1991. Submitted June they replaced. they person as the employees. considered relief should also be July Decided Depart- compliance To with the show requirements, Region

ment’s V asserted employees on call from 6:00 that its p.m. a.m. until 2:00 Tr. at 667-70. however, employees, were never called provide telephone they nor did have to they reached. number where could be employee Even if an “on-call” was needed reason, Region V would to work for some instead of a full-time em- call substitute ployee. Tr. at 566-70. This was an obvi- regulations. attempt to circumvent the

ous ignored These cannot be when violations alleged good reliance on weighing the faith * rez, dispose of Felix-Gutier- July No. 89-50028. We we issued an order consolidat- On opinion appeal separate issued concur- ing appeal appeal rez’ in a of one of Verdu- co-defendants, rently herewith. go-Urquidez’ Jesus Felix-Gutier- Hall, Hall, Q. Goldberg,

Patrick Frant & Cal., Diego, defendant-appellant. San for Chief, Brosio, Atty., Asst. Robert L. U.S. Div., Fahey, Crim. William F. Asst. U.S. Section, Chief, Atty., Major Narcotics Ste Chief, Zipperstein, Atty., ven E. Asst. U.S. Shubin, Appeals, Dorothy Asst. Crim. U.S. Cal., Atty., Angeles, plaintiff-appel Los for lee. Barr, Gen., Atty. An Deputy

William P. McBride, Deputy Atty. drew G. Associate Gen., Counsel, Barry, E. John Sr. D.C., Justice, Dept. Washington, plaintiff-appellee. BROWNING,

Before D.W. NELSON REINHARDT, Judges. Circuit

REINHARDT, Judge: Circuit presents

This case whether obligations the United States breaches motion, support Mexico of his at- treaty with its extradition under tak- sponsors copies forcible of two letters from the Mexi- tached authorizes that coun- Embassy Depart- Mexican national from ing of a can Mexican letters, the consent of the try without Mexico ment of State. these We government. We hold that it does. complaint it termed lodged what “a formal if the Mexican hold that further Verdugo by regarding the of” formally objects breach agents of the United States timely that breach and a defendant raises judicial and asked that “U.S. authori- proceeding courts pending criminal position. Verdugo ties” informed of its per- may not exercise of the United States presented Depart- two also letters that defendant, pro- jurisdiction over that sonal Embassy to the ment of State sent Mexican willing to Mexican vided the response protest. latter’s short, under such accept repatriation. Embassy Department and Mexican a district not sub- circumstances court differed in the State characterization trial, ject the defendant and a conviction Verdugo’s “kidnappers.” Mexican In view of our obtained must be vacated. August 26, 1987, Embassy letter of stated Verdugo-Urquidez’s holdings, we remand police surrepti- that Mexican officers were evidentiary court to the district for an case tiously kidnap hired the DEA to Verdu- the United hearing on whether contrast, go. By Department— the State kidnap- sponsored or his authorized States acknowledging although that the Mexican Mexico to ping unlawful removal from and police acted in “cooperation” officers country without the consent the United States authorities —claimed on such other Mexican and payment police officers Mexican proceed- be relevant to the matters prearranged. by the DEA was not ing. dispute Despite the over whether Verdu- go kidnapped by had been the United BACKGROUND voluntarily handed over to States (“Verdu- Verdugo-Urquidez Rene Martin police, the dis- United States Mexican Mexico. In go”) is a citizen and resident of evidentiary not hold an hear- trict court did in Mexi- January apprehended he was that such a ing. The court determined transported to by several individuals and co because, in its hearing unnecessary officially where he was the United view, Verdugo’s allegations were even custody. On March taken into correct, they would not dismissal. warrant grand jury returned a five-count federal Illinois, Citing Ker v. 119 superseding against Ver- second indictment (1888), 421 and Frisbie v. 30 L.Ed. offences, him dugo charging with various Collins, 96 L.Ed. S.Ct. including the murder of United States (1952),the court stated that “an abduc- (“DEA”) Spe- Drug Agency Enforcement trea- not violate an extradition tion does Agent Enrique cial Camarena-Salazar. ty.” filed a dismiss the Verdugo then motion to trial, Following jury Verdu- pursuant to the extradition trea- a two-month indictment charges against go Mexico. of all the ty was convicted between court him to alleged ap- who him. The district sentenced He individuals 60-year incarcer- prehended acting in Mexico at the terms of him four consecutive (for years), those terms government. a total of of the United States ation behest subject. arly opinion Subsequently, presenting in a case the identi- 1. Caro-Quintero, (C.D.Cal.1990). arising underlying F.Supp. issue and out of the same cal Caro-Quintero, occurrences, Judge judge, concluded Rafeedie the same district criminal Rafeedie, legal Judge must be returned conducted further re- that Dr. AIvarez-Machain abduction, own, opposite his authorized Mexico because search on his reached DEA, here. For observing violated the at issue After that counsel had conclusion. resolving clarity, decision in purposes we exclude the assistance been of little to him extradition, prior involving relevant Caro-Quintero when refer to the law of difficult issues area of proceeded schol- in this the law. to write exhaustive and decisions he required perform to answer here. To concurrently with a life sentence. run appeal. properly, only our task we not must review timely notice of Verdugo filed law, prior case but must also examine pursuant to 28 U.S.C. jurisdiction haveWe nations enter into extradition the reasons § expectations and their as to the treaties sepa raises 21 Although consequences agreements such will have. appeal, in view of the conclu rate issues on course, also, spe- must consider the We below, we need consider sion we reach governs cific of extradition that jurisdic challenge his to the district court’s relations between lacks over a tion. “If a court Mexico. jurisdiction’ adju ‘all party, then it lacks rights, party’s whether or not dicate the II properly subject before it.” matter 844, (9th Howard, 633 F.2d 848 Rankin v. January On the United States denied, 939, Cir.1980), 451 U.S. 101 cert. exchanged and Mexico official ratification 2020, (1981). L.Ed.2d 326 S.Ct. 68 Treaty notices Extradition Between States of America and the Unit United STANDARD OF REVIEW (“the Treaty”). ed Mexican 31 States 5059, No. The U.S.T. T.I.A.S. Interpretation treaty a Verdugo alleges in effect time was at the presents legal question, decide which we Quinn forcibly he from Mexico Robinson, that was abducted 783 F.2d de novo. v. 776, (9th Cir.1986). by the United and remains in effect 791 Whether the dis VI, day. 2 to this See U.S. Const. art. cl. jurisdiction court had if the trict (treaties Land”). “Supreme Law of the subject to violated is also de novo review. 1388, Verdugo contends that his violat abduction Layton, v. 855 F.2d Treaty, (9th Cir.1988), denied, ed the and that as a result of this 1394 cert. 489 U.S. violation, 1178, the district court 1046, was without 109 S.Ct. 103 L.Ed.2d 244 try jurisdiction to him. The (1)

counters that: if the States forci bly abducts an from another na individual DISCUSSION ordinarily personal there is tion bar to I jurisdiction a criminal trial even when presents This case fundamental issues of there is an extradition between the nation, impression purpose first involve United States and that other treaties, formally pro and effect of extradition the order- the other even when nation violation”; (2) ing treaty signatories, of relations between tests “the the Trea proper interpreting ty’s rules for such trea- silence to whether extradition is the ties, bringing judiciary enforcing the role of the exclusive means for a Mexican and, them, ultimately, of a defen- national to trial in the United neces object jurisdiction dant to to the court’s the conclusion sitates does (3) prohibit kidnapping; he has been abducted in violation of a trea- whether is, ty party agreement formally to the and a there has been violation event, protests prior reported that violation. No not an issue that a defendant properly present judiciary.2 case has decided the ultimate These 708, Patrin, (9th Cir.1978) Verdugo (quoting 2. The also contends that 575 F.2d 2868, properly Wulff, did not raise the issue in the court Singleton v. 428 U.S. disagree. below or in this court. We (1976)) added). (emphasis L.Ed.2d 826 49 Here, Verdugo record reflects that did indeed raise the Verdugo per- whether or not raised the Moreover, general issue below. our rule that jurisdiction precisely issue below in sonal we do not consider issues raised for first appeal, manner he has framed it on same see, appeal, e.g., time on States, Winebrenner v. United very decided the issue we now the district court (9th Cir.1991), 924 F.2d 856 n. 7 there is no doubt that we face. " the fundamental ‘a itself based on notion that appeal, unless consider the issue appellate does federal court not consider an ” passed upon issue not below.’ United States v. neatly compartmental- arguments are not between the United overlap nation, in a number of States and tend to and that other ized and when the Accordingly, we address the other respects. formally protests that viola- tion, as and when government’s contentions defendant successfully inter- pertinent pose the control- they appear objection to be to the court’s exercise of in the case. ling issues person. over his Whether a may prevail

defendant on such objection open remains an question. III A B government argues initially that this falls under the

case so-called Ker/Frisbie We now turn to the line Ker/Frisbie Supreme rule. Named for the two Court begin cases. We with Ker. Ker was a Illinois, decisions of Ker v. 7 United States citizen who was wanted for (1886), S.Ct. L.Ed. and Frisbie larceny charges trial on in Illinois. After Collins, S.Ct. Peru, messenger he fled to was sent (1952), L.Ed. 541 this “rule” states that the President to retrieve him from the Pe- power try person “the of a court to a for ruvian in authorities accordance with the impaired by crime is not the fact that he extradition treaty between the United brought had the juris been within court’s 438, States and Peru. 119 U.S. at 7 S.Ct. ” by diction reason of a ‘forcible abduction.’ However, at 226. presenting instead of the 522, Although Id. at 72 S.Ct. at 511. papers extradition to the Peruvian authori- courts, commentators, politicians alike Ker, accepting ties and as he had been often imply have taken this statement do, instructed messenger simply kid- by that the means a defendant is napped placed him ship him on a bound brought before the court are rele never for the objected United States. Ker Id. jurisdictional question, vant to the gen see that the manner of his abduction violated Kester, erally Myths Some United process due and the treaty. extradition Law, 1441, States Extradition 76 Geo.L.J. Supreme The disagreed Court with both (1988), 1449-55 our review of the relevant contentions. cases indicates that this is a serious over fact, noted, statement. In there are numerous As we have it has sometimes been in by suggested cases which the method which a de very that Ker stands for the brought proposition fendant has been before the court broad that a court exercise jurisdiction. has held been to defeat a appears See over defendant who (discussing principle at 1351 regardless that forum of the circum- infra specialty). No recorded case has ad brought ever stances under which he was question view, dressed the whether when the there.3 In principal our there are two forcibly why removes an individu reasons Ker cannot be read this broad- ly- al from another an violation of during opportunity present somehow forfeited his to a decision that each side had a fair views, appellate process. parties supple- we instructed the to file supplemental reply mental briefs and briefs. contends sides, Having thoroughly by been briefed both appeal by failing waived the issue on to raise it kidnapping squarely issue is before us. disagree opening in his brief. We for two rea- First, sons. we conclude that the issue was example, Specter 3. For Senator Arlen of Penn- Second, adequately opening raised in the brief. sylvania, well-respected lawyer a and an able appellant may held that not an have raise Attorney, argued former District that as a appeal reply issue on in a brief if he has failed Ker, consequence treaty pre- brief, no extradition opening discuss it in his unless the trying vents a court of the United States from City appellee Eberle v. has raised it in his brief. 814, Anaheim, (9th Cir.1990). kidnapped terrorists who have been United 901 F.2d Here, agents Specter, States abroad. See government clearly How to Make addressed the Twice, Times, May question alleged kidnapping Terrorists Think N.Y. whether the violat- 1986, A31, ed the extradition in its brief. To ensure col. 1.

First, jurisdiction, notwithstanding was not a case of authorized Ker. Id. Ker kidnapping. expansive held that the extra Ford illustrates that the view of Court adopted by Supreme has not been implicated was not because Ker dition case of Court. abduction “was a clear kid Ker’s Peru, napping within the domains of with fact, States, Cook United pretence authority under the out (1933), 53 S.Ct. U.S. L.Ed. 641 from questions Justice Brandéis raised serious ” added). (emphasis States. Id. On United government may as to whether the benefit basis, the Court found no viola this private party when even seizure short, messenger since who tion. under “the itself Government wrongfully kidnapped acting Ker power to seize.” Id. at lack[s] States, the of the United on behalf Despite at 312.4 Justice intima- Brandéis’ treaty. did not breach the There contrary, pur- for tions to we assume fore, proposition Ker stands for the poses opinion properly that Ker — private kidnapping not violate does standing understood as limited treaty. It not address does proposition non-governmental that a kid- of a authorized napping does not violate an extradition government. Kes government ultimately even ter, 76 Geo.L.J. at 1449-55. law, thereby benefits —remains courts that subsequently have re- succinctly This limited view of Ker was holdings lied on Ker their err in did not Taft, expressed writing Chief Justice doing so. Court in for the Ford v. United S.Ct. 71 L.Ed. 793 Second, even if Ker were to a relevant

There, they the argued defendants that and government sponsored authorized kid- or ship their had been seized the United it napping, dispositive would still not be in treaty States Coast Guard in violation of a case, Ker, because in this the Peruvian the United Great Brit- between States and government object did not failure to to the regarding smugglers. Here, treaty.5 ain interdiction of extradition utilize the Ker, noted, on Relying government the General ar- have the Mexican Solicitor lodged protest. formal gued illegal that “an would a As the seizure not concedes, reported in no has a jurisdiction ousted the case have of the court to officially court held that an authorized try the defendants.” Id. at S.Ct. at sponsored kidnapping an did not violate expressly 535. The Court rejected ar- treaty country extradition the when gument, noting that not involve a Ker did object- kidnapped which the defendant was States,” of “a violation of the United fact, ed abduction. In to the numerous directly while Ford that issue. involved Id. suggested cases the have that were 606, 47 S.Ct. at 535. The Court then country an from which unequivocally question stated kidnapped lodge formal individual a whether the seizure violated the “af- States, protest protest fected the court hold [the might jurisdiction. infra, defeat n. 9 See persons for trial.” Id. Al- defendants’] though ques- the Court did not address the why The reason whether tion breached whether had been protest official there is an is critical because it found that had the issue been designed treaties are principally extradition court, suggested in waived the trial sovereign of na- to further interests tions, the issue properly preserved, any rights had been and therefore they confer had a seizure outside of the been are derivative of individuals shown, might personal there have been no Because there no nations. has been fact, "compare” place 4. Cook mentioned Ker in a cita- In because the relevant events took revolution, shortly apparently regarding after a there was tion common-law rule. 288 U.S. at functioning no Peruvian that could 53 S.Ct. at 312. Kester, registered protest. 76 Geo. have See L.J. at 1451. prior signatory the other to a napping case which Frisbie reaffirmed. How- —that protested alleged kidnapping ever, Verdugo’s grounded claim is in the consider, by the Treaty, we must process not the due clause.

here, for the first time whether such an Frisbie’s reaffirmance of Ker’s statement official clothes a defendant process about the due clause is irrelevant rights of the nation from which he was to this case.

abducted. Moreover, the rule announced in Frisbie is suited to cases of kidnapping, domestic

C kidnapping. international When an individual is abducted from another nation wholly Frisbie involves a different issue in violation of an treaty, extradition provides support broad read- remedy apparent: he must be returned ing Frisbie, petitioner of Ker. a habeas custody lodging Michigan asserted that trial court protest. infra, part By VII. con- juris- convicted him of murder lacked trast, if the Court had held in Frisbie that Michigan diction because authorities had jurisdiction (either there was no on the kidnapped him from Illinois. He based his process basis of the due clause objection or the Fed- process on the due clause of the Act), Kidnapping eral it would have fourteenth amendment and faced the Federal problem. intractable remedial Kidnapping Act. 342 U.S. at foreign national, case of a repa- at 510. No after he is extradition was involved. triated, Solely in the United States rejecting the context of could invoke the due claim, process, process depending the Court stated that it had on the outcome departed process, “never from the of that might rule announced able power However, Ker ... that the of a obtain over try court to him.6 person impaired by citizen, for crime is not the case of a United States there is brought fact that he possibility had been within the little that one state would at- jurisdiction by court’s reason of tempt fugitive a ‘forcible to harbor a from another. ” abduction.’ Id. at 72 S.Ct. at 511. (by See 18 U.S.C. 3182 1948 Act of Con- § noted, As we have gress, basis for the deci- each fugitives state must deliver sion in state). Ker was the Court’s requesting determination Had the Court ruled in that there Frisbie, had been petitioner act favor of the in any reme- no'official might States which violate ex- dy would have an in futility. been exercise Having tradition with Peru. Sending decided him only back to Illinois would treaty violation, there was no subsequent have resulted in his surrender Court in by Ker also declined to hold Michigan that due Illinois to the authorities. process posed jurisdiction. a bar to difficulty It is This remedial may have motivat- holding this second process Frisbie, the due ed part. the decision in at least in —that prohibit clause does not the exercise of It also makes clear the applicability limited personal jurisdiction over a defendant who kidnapping of inter-state cases to interna- brought has been before the court kid- tional cases.7 below, 3048, example, (1976); fully 6. For as we Pugh, discuss more 49 L.Ed.2d 1067 Gerstein v. 1350-1351, 103, 119, 854, 865-66, at Article Nine of the United 420 U.S. 95 S.Ct. 43 infra treaty gives extradition States/Mexico each na- Cotten, (1975); L.Ed.2d 54 United States v. 471 tion the discretion to surrender or not to surren- 744, (9th Cir.), denied, F.2d 936, cert. 411 U.S. der its own nationals. 1913, 93 S.Ct. 36 L.Ed.2d 396 As we IV, explain part infra, in extradition treaties set Equally irrelevant are those cases not involv- mandatory procedures forth that must be fol ing imply extradition treaties which refuse to lowed in order for a defendant who resides or "exclusionary” remedy suppression of of the de- refuge country has taken in another to be person fendant’s fully. where he was arrested unlaw- Therefore, brought to trial in the United States. 1032, Lopez-Mendoza, See INS v. 468 U.S. 1039, 3479, comply 3483, failure to with an extradition di 104 S.Ct. 82 L.Ed.2d 778 (1984); Crews, 463, rectly affects the of the court in a United States v. 445 U.S. 474, 1244, 1251, (1980); way illegal typical 100 S.Ct. 63 L.Ed.2d that a arrest —even if in viola Powell, 3037, Stone v. 428 U.S. 96 S.Ct. tion of the Constitution —does not. Moreover,

D we note that even the does not reading advance broad why reject final reason There is one suggested. of Ker that is sometimes Ac- line view of the Ker/Frisbie the broad cording government, “[t]he manifestly untrue that a court cases. It is precludes doctrine Ker-Frisbie claim inquire into how a criminal de- never based on a unless the trea- violation fendant came before it. United ty expressly grants a defendant the 234, Rauscher, S.Ct. prosecuted.” words, not to be In other (1886), clearly L.Ed. 425 illustrates this only asserts that a rule very fact. Rauscher was decided the same Ker is Ker, day opinions Quite apart and both were written of construction. from the fact Rauscher, Justice Miller. the Court absolutely there is in no discussion held that under the extradition implied Ker express treaty about versus 1842 between the United States and Great provisions, government’s argument it- Britain, only a defendant could be tried for seriously self undermines the broad read- a crime for which he had been extradited. ing of Ker because the ex- The Court thus read into the what pressly acknowledges properly re- —as “principle has come to be known as a quired light to do in of Rauscher —that specialty.” treaty may appropriate violation under prevent holding

Both the and the rationale circumstances a court from exer- utterly reading cising jurisdiction Rauscher belie the broad over a defendant. As to Ker. Rauscher held that a defendant who express provision barring pros- whether an by operation has come before the court (a) required: ecution is there is no authori- “shall be tried ty supporting proposition whatsoever charged for the offense with which he is (b) specialty Rauscher and the other proceedings the extradition and for which cases, Cook, squarely as well as up, he was delivered and that if not tried contrary. Although involved a sei- Cook that, acquittal, or after trial and he subsequent penalty zure and a criminal shall have reasonable time to leave the fine, the form of a 288 U.S. at country_” Id. at 7 S.Ct. at 243. In at while Rauscher involved an extradi- short, Rauscher, very under it matters purpose subsequent tion for a limited and a happened much how a defendant to come prosecution, S.Ct. at before the court. If he came before the principle is identical. In both cases the operation court of an extradition express provisions treaty regulated treaty, any he not be tried for crime the acts of extradition or seizure. In nei- but one for which he was extradited. ther was there mention made of subse- Indeed, did, reaching the result that it quent judicial proceedings. Yet in both expressly rejected Court Rauscher subsequent judicial cases the proceedings defendant, proposition that a imposition penalties were barred being jurisdiction once within the of [the implied provisions because the of the trea- States], by no matter what contri- ties were violated. by pretence vance or fraud or what establishing charge provided by for E may extradition he have been brought is, jurisdiction, within the he conclude that proper analysis We here, when to any liable be tried for support the cases does not the contention against though offence the laws as ar- progeny that the broad view of Ker and its originally. rested here adopted by has been the decision of court. Thus, Rauscher, argu- That does not mean that an Id. at at 242. S.Ct. day Ker, ment cannot be made for such a unequivocally decided the same as view—or rejects the broad that there is not some dictum ef- formulation of to that However, Ker/Frisbie doctrine. fect.8 considerably there is more Lovato, Ker, (9th 8. See United Cir.1975) (relying States Frisbie 520 F.2d Id.; Laubenheimer, view of conditions. Factor v. the effect that broad dictum to 276, 287, 54 S.Ct. apply to cases which Ker does not exchange legal a L.Ed. 315 for its the nation from which government of persons suspected kidnapped protests promise to surrender or has been defendant strong activity of criminal A are reasons convicted kidnapping,9 and there treaty, accordance with the terms of the sweeping interpretation of Ker why the reciprocal promise nation B obtains a adopted. should not be Whereas, treaty, A. absent the B would stated, open question it is an As we have way compel have no A to surrender an States violates an whether when the United individual, treaty provides such meth- with another nation extradition od. order to secure the benefits of authorizing participating in the forcible cooperation, international the United States an individual from that nation removal of has entered into extradition treaties with consent, and, that nation’s when without over one hundred nations of the world. objection, that nation’s over Kester, 76 Geo.L.J. at 1489. subject him to trial in this seeks to country, may interpose defendant typical A extradition as the —such juris- objection personal to the assertion of great one involved here—sets forth in de- proceed an- diction over him. We now steps tail the that each nation must take in law, light of the case swer compel order to other to abide treaties, purposes the basic treaty obligation. example, For it lists understanding proper role of and our crimes for which individuals extra- the courts. be, dited and they may those for which

the evidence that must be adduced ob- extradition, tain and the method IV Yet, presented. such evidence must be A views extradition treaties brief, begin by examining pur requirements pure in its for- We poses underlying according government, extradition treaties. Un malities: law, accepted principles treaty provide of international the terms of an extradition der required A in the of an extradition that nation is not to surrender a absence B, general given to nation nation B is obligation there is no of nations to individual comprehensive persons sought by ignore another na free to scheme of surrender tion, person. although simply kidnap such the a nation surrender comity Similarly, contends that if individuals as a matter of and dis Rauscher, provide for the 119 U.S. at the terms of the do cretion. explicit pursuant trea return of the individual at 236. Nations enter into extradition procedures by impose legal such rules and set forth detailed ties order to obli jurisdiction gations appropriate under which nation B obtain over on one another protested appellant’s proposition de cases for the "that Guatemala nor Belize Ninth Circuit appel forcible return to the of the United tention and removal to the United prosecution once the States constitutes bar to standing lant lacks to raise the treaties as basis States”). defendant is found within the United challenging jurisdiction.”); the court’s Unit Reed, 896, (2d F.2d 902 Cir. ed States v. 639 Valot, v. 625 F.2d 310 9. See United States 1981) ("The States has an fact that the United (9th Cir.1980) (noting that "individual are does not with the Bahamas only through the states” and that derivative any The Bahamian make difference at all. initiated, acquiesced in Valot’s aided and “Thailand sought his return or made has not States”); re moval to the United Matta-Bal Cordero, ...”); any protest 668 United States v. Henman, Cir.), (7th F.2d 260 lesteros v. 896 Cir.1981) (1st (observing that neither F.2d — denied, —, 209, 112 cert. objected appellants' "Panama Venezuela [n]or (1990) ("Without protest, L.Ed.2d 169 an official territories”); departure their Waits v. (3rd objected we cannot conclude that Honduras has McGowan, & n. Cir. 516 F.2d Therefore Matta’s claims of to Matta's arrest. 1975) ("The allege pleadings Canada do not that violations of international law do not entitle Zabaneh, way relief.”); objected the removal of Waits has him to (5th 1988) ("Because country”). neither to this F.2d Cir. nationals, perfectly B is free to own person, that it has two choices: it procedures, individual, its discretion extradite that ignore of those rules or it all A, submit the case to its own seize individ- authorities flout the laws of nation Nevertheless, prosecution. for forcibly him from nation ual and remove ment would have us believe that there is no knowledge or con- territory A’s without Treaty if deprived violation of the Mexico is give example To but one sent of nation A. opportunity options of the to exercise both theory government’s of how the would reading under Article Nine. This renders Iraq could practice, kidnap the work in pointless formality. Article Nine a The the United States without President of vio- purpose pre- manifest of Article Nine is to States/Iraq lating Extradition the United right serve each nation’s not to have its Treaty, April Stat. not- own nationals tried the courts of the withstanding Iraq the fact that if followed Reserving other without its consent. set forth in that procedures treaty, it right not to extradite nationals is instru- unlikely to would be most succeed in ob- to that aim. It seriously mental cannot be custody over our taining Chief Executive. (or maintained that’ Mexico the United legal underpinning for As the its extraordi- States) only preserve wished to treaties, narily limited view of extradition formally not to have its citizens extradited. government argues that such treaties possible purpose provi- What would such a consequence only they are of when have only sion serve? Article Nine makes sense formally been invoked aas blanket reservation of each nation’s they otherwise that do not limit sovereign in subjecting interest its own citi- ability our to take actions within the terri- courts, only by zens to its own limited its tory of other nations. purely discretionary power own to deliver government’s contention that it is upon such citizens to the other nation ignore free to invoke or extradition treaties proper request. will, and that the terms of a Moreover, without assumption “operative” only it when chooses to invoke Treaty’s requirements must be fol- agreement blatantly contravenes the Treaty lowed whether or not the has been purposes underlying extradition treaties. invoked, formally impossible would be requirements extradition treaties im- make sense of other of the provisions Trea- pose constitute a means safeguarding ty apply to nationals of the sovereignty nations, signatory country from which sought, extradition is ensuring well as the fair treatment of indi- example, but to all individuals. For Article example, viduals. Article Nine of “[ejxtradition Five states that shall not be provides: at issue in this case granted when the offense for which it is requested political political or of a char- Extradition Nationals acter,” gives the Executive of the re- Contracting 1. Party Neither shall be quested power nation the to decide whether nationals, up bound to deliver its own but political. an offense is Article Five also authority requested the executive “[ejxtradition states shall not be Party shall, prevented by if not the laws granted when offense for which extra- Party, power have the to deliver requested purely military dition is is a of- if, discretion, up them in its it be deemed addition, Eight gives fense.” Article proper to do so. each nation the discretion to refuse to ex- If granted pursu- extradition is not anyone might tradite who be executed for Article, paragraph ant to 1 of this penalty an offense for which the death requested Party shall submit the case to imposed requested could not na- competent purpose authorities for the provisions tion. Each of these would be prosecution, provided Party utterly frustrated if jurisdiction over the offense. permissible held to be a course of When Mexico receives an extradition re- provisions mental conduct. These of the quest from the United Treaty typical States for one of its at issue in this case are of persons into the extradition treaties tween nations of wanted for numerous sus- As a pected the States has entered. activity, subject which criminal to certain matter, governing rules extra- general the forth agreed-upon limitations set in the only set forth in treaties procedures dition treaties, signa- into a for license or charter they are understood as re- make sense if tory engage to nations unlawful conduct treaty comply signatory to quiring each categories in all those in which cases procedures whenever it wishes with those treaty prohibits extradition. As we have over to obtain an individual noted, treaty Mexico, many with like nation, treaty in another who is located treaties, prohibits our politi- extradition for country treaty unless the host waives its military cal permits or offenses and to obtaining juris- or consents host to capital nation refuse extradition manner. at diction a different See infra government’s view, cases. Under since (discussing consent). waiver 1352-1355 treaty prohibit the terms of the extradition Indeed, categories in all certain one of rules embodied cases but do not provide or im- explicitly extradition treaties —either the exclusive which means plicitly which specialty,10 desiring the rule custody to obtain of an —is detention, punishment trial forbids or for custody, must seek individual such the sole an than extra- offense other that for which effect of the respect those Five granted. dition has been Like Articles categories of preclude possi- cases is to here, Eight Treaty at issue bility orderly return of individuals individuals, applies rule na- just to all committing the described offenses and in- requested tionals of the nation. Under stead mandate their unlawful seizure rule, specialty if defendant were extradit- whenever the United States desires to ob- ed from Mexico an embezzlement custody tain over them. instead of charge, example, only for he could tried prohibiting the involuntary per- return of embezzlement, extortion, for and not for political military sons accused of or of- though even he could have been extradited execution, persons subject fenses or for either offense.11 It follows a serves, government’s view, fortiori in the that, specialty principle from the if indi- an specify custody persons over such kidnapped by treaty sig- vidual has been only by be obtained forcible seizure. Sim- natory i.e., if has not he been extradited — ilarly, government’s theory under for any at all—he not be offense there can be no violation of the detained, punished tried offense spe- unless it is invoked—to return to our without the consent the nation from example, cialty once it is clear that pur- which he was abducted. manifest foreign government only will extradite a pose specialty of the rule of is to ensure suspect not for ex- for embezzlement and that an individual is tried crime for a tortion, simply drop can according for which he has extradited been proceedings, kidnap the individ- treaty. to the terms of the It would ele- ual, try him for without extortion vio- vate form over substance to hold that proceeded lating the it has —because protection sovereign of each nation’s us, To outside of framework. compliance to insist on strict with the trea- light government’s argu- viewed in this ty party may be circumvented the other simply makes whatsoever. no sense simply at chooses not invoke the all. B government’s purposes view of the that extradition treaties and effects of would Our conclusion extradition treaties agreements proscribe government-sponsored kidnap- convert those from instru- principles arranging orderly pings gains support general ments for be- transfers Appendix provides example implicit sets forth in its Rauscher of an 11. The 422-23, specialty, rule of 242, U.S. at be extradited. crimes for individuals Treaty at issue con- while the in this case express specialty tains rule in Article 17. Valot, (9th Cir.1980) (find- law. Whether or not an v. 625 F.2d 308 of international grounded make claims may ing no violation where Thai authori- individual law, directly in international international ties surrendered defendant to United Thailand). However, relevant to the back- principles law States authorities that inform the mak- ground assumptions may the fact that a nation consent to sur- ing treaties. One of the fugitive of extradition render a outside of the extradition principles most fundamental of internation- process violating without an extradition principle al relations is the that the territo- upon does not bear integrity sovereign may a nation not rial whether a forcible removal of an individual principle force. This be breached without the consent of the nation in which in Article 17 of the embodied Charter refuge he resides or has taken constitutes Organization Apr. of American thing say, many a violation. It is one 2394, 2361, 30, 1948, 2 T.I.A.S. No. U.S.T. do, rendering may cases that a as amended the Protocol of Buenos procedures waive extradition without vio- 607, Aires, 21 U.S.T. T.I.A.S. Feb. lating treaty. quite an extradition It is provisions No. as well as numerous say another to that a forcible abduction of Charter, of the United Nations June by treaty an individual a signatory without (The No. 59 Stat. T.S. acquiescence he nation which signatories United States and Mexico are taking refuge resides or is is consistent documents.) both of these When it is rec- stated, treaty. with such As we have no ognized per- that international law does not holds, case so and such a rule would frus- forcibly mit one nation to remove an indi- very purpose trate the for which nations another, vidual from the reason that extra- enter into extradition treaties. typically expressly dition treaties do not deny power apparent: nations this it is Moreover, may a nation consent to impermissi- assumed that such conduct is the removal of an individual from its terri stated, ble. And as we have an extradition tory pro outside of the formal extradition treaty only purposive makes sense as a fact, by failing cess after assumption. document on this kidnapping. analogy private con tract law is useful here as If A well. C obligation breaches an he B owes to under contract, may B Our conclusion that extradition trea choose not to hold A prohibit government Similarly, ties authorized or liable for the breach. if the Unit sponsored kidnapping kidnaps of an individual from ed individual from Mexi signatory of one nation for territory Treaty, can in violation of the purpose trying him in the may courts of object Mexico decide not to other, does not mean the two coun kidnapping, its silence waive the agree tries an individual case Thus, Treaty’s protection. the cases state fugitive that a should be delivered from register a nation fails to a formal invoking one to the other without the for complaint kidnapping by to a process. mal extradition As we have not States, an individual not invoke the ed, are in the treaties nature of contracts supra, violation. See n. 9. Because private party between nations. Just as a kidnapping violates the nation’s may waive a term in a contract that is Treaty, under the the nation waive benefit, the contract signatory for his so a rights. those treaty may to an extradition waive the re foregoing quirement considerations make signatory that the other follow general procedures proposition, clear that as a if the treaty. set forth in the sponsors the fact that there is an United States authorizes kidnapping between two of an individual from another nations is bar to one surrendering of those nation’s voluntarily nation with which has an extradition treaty, treaty, an individual to the other without invoca violates that See, treaty. tion of e.g., may by prior but the other nation con-

1353 Moreover, objec- its Executive’s views. even those object to waive or its failure sent relevant, they support to, ratify, act.12 views were do not the unlawful tion or position government espouses. the the now D government submits as evidence of ar- to bolster its government seeks on the the Executive’s view issue now be- legality support gument fore us a letter from Edwin D. Williamson kid- sponsored or government authorized Department of the State addressed to the urging in this case and napping by Attorney in which Mr. Williamson General adopt should the views others like it courts arguments makes same rather than seek the Executive Branch government has advanced here. The let- regarding any objective conclusion to reach ter, September which is dated treaty. As a meaning and effect of responds Attorney request to General’s matter, resolving “in doubts general Department’s State view political by of a construction district court’s decision in the related case government, while department Caro-Quintero, v. United States 745 upon called to con- upon courts conclusive (C.D.Cal.1990). F.Supp. 599 That case is it, weight.” is nevertheless strue currently subject separate appeal of a Factor, 295, at 196. at 54 S.Ct. 290 U.S. in this court. however, to Here, are no “doubts” there Mr. We do not find Williamson’s views underlying pur- review of the resolve. Our treaties, persuasive. appear Those views to have including the poses of extradition Mexico, eye adopted been with an towards States and one between However, litigation. before it be they not in- current us to conclude that are leads government that the intended to encourage government came clear permit or tended argue present position, the Executive sponsored kidnappings. authorized or contrary example, expressed a view. For to turn to the we have no occasion thereafter). protest We note that the upholding personal did not 12. The cases foreign these cases to the to have been references in some of over a defendant who claimed (1) prior superfluous. kidnapped consent or involve either nation's failure partic- participation by to or When a nation consents in advance forcibly ipates defendant was removed of an individual from its from which the in the removal (2) acquiescence by protec- expelled, territory, or or that fact alone means that the subsequent failure as demonstrated been of the extradition has waived. tion leading categorize protest. foreign government may now We Cases in which the including by the acquiesced all the cases cited advance but not have consented in cases— position support have object of its by failing in the to trial thereafter —that Matta-Ballesteros, upheld jurisdiction was over a defendant who 896 United States include: forcibly expelled na- (discussed 9); removed or from another supra, United States at 260 n. F.2d 1221, ("nei Toro, (5th Cir.1988) tion for trial in the United States. 1235 v. 840 F.2d Zabaneh, objected”); party ther involving prior participation consent or Cases Reed, 9); (discussed supra, n. 837 F.2d at 1261 from which the of the nation (discussed 9); supra, n. McGow 639 F.2d an, 902 Valot, forcibly removed include: defendant (discussed supra, n. F.2d at 208 & n. 9 initiated, 516 ("Thailand aided and F.2d at 310 625 9); Lujan Gengler, 510 ex rel v. acquiesced in Valot’s removal to the United 1001, denied, 62, Cir.), (2d 421 U.S. cert. F.2d 67 Lovato, (in States”); 1272 a case not 520 F.2d at (defendant 2400, (1975) violation, 44 L.Ed.2d 668 95 S.Ct. involving char even claimed of an international claim a violation cannot capture acterizing surrender as a Lovato’s protest by a alien”); agreement of a in the absence expulsion of an undesirable "routine alia, state) (discussing, signatory Eich inter 381 F.2d 143-44 Stevenson v. United (9th Sobell, case); 244 F.2d 1967) fugitive (voluntary mann surrender of Cir. denied, (2d Cir.), Mexico); Kaufman, cert. 858 F.2d 520 United States v. (1957) (no (5th Cir.1988) indication that (noting Mexico 2 L.Ed.2d 1006-09 Yunis, protested); United States v. Mexico had defendant and did not subse surrendered the ("there (D.D.C.1988) Cordero, (Pan is no F.Supp. quently protest); F.2d at 37 objected Cyprus deported that Lebanon or evidence protested amanian and Venezuelan authorities under subsequently object to the circumstances defendants and did not pro States); Absent such formal arrested. United States v. Yunis was tests, their trial in the United Evans, raising (S.D.N.Y.1987) precluded his defendant F.Supp. objection.”) (Bermuda voluntarily deported defendant signatory commenting territory, pur- on an incident which er nation’s for the him, allegedly pose trying Florida agents of the state of of when the nation from national, formally protests. then Secre he kidnapped a Canadian is abducted George remarked that tary According government, of State Schultz to the this silence treaty light of the extradition between dispositive: Treaty the constitutes no bar Canada, kidnap the the and sponsored authorized or kid- ping considered “a violation of the However, could be napping. foregoing as our dis- law, as treaty illustrates, and of international well cussion the hears sovereignty.” an affront Treaty’s [Canada’s] far more in the sounds of the Contemporary Practice pur- silence than is warranted. The entire of Affairs, Relating to International pose Treaty, treaty of as well as law (1984). Then Le 78 Am.J.Int’l.L. general, compels opposite conclusion. gal Department Advisor to the State Abra point, At this we would add that expressed a similar view ham Sofaer before Rauscher demonstrates that extradition Congress he testified that “seizures when treaty may implicit explicit have as well as of United States officials terrorist sus noted, terms. As we have at incompatible pects [might abroad with be] issue in Rauscher did contain an ex- the bilateral treaties that we have in force press specialty principle. In Rauscher Hearings with nations.” on S. [other] government argued that the absence of Security and Ter Before Subcomm. express such an meant statement that no rorism of the Senate Comm. on the Judi implicit principle could inferred. The ciary, Cong., 99th 1st Sess. And in rejected argument Court because it commenting on an earlier extradition purposeless would have rendered most of Mexico, Secretary of with State James provisions treaty including of the — unequivocally Blaine that the stated requirement country seeking that a extra- party, “does not authorize either prove sought dition that the individual cause, to deviate from forms or arbi [its] committed one of the enumerated crimes trarily territory abduct from the of one for which one be extradited. 119 U.S. crime, party person charged for trial 422-23, at 7 S.Ct. at 242. and Rauscher within the of the other.” Let subsequent cases stand for the uncontr- Roberts, ter to O.R. Governor of Texas proposition construing oversial that in trea- 3, 1881), (May in Domestic Letters of ties purposes we must look to their State, (National Department 1784-1906 of implicit assumptions as as their well ex- M40, Archives Microfilm Publication Roll press proscriptions See, prescriptions. 93). light longstanding of these views e.g., v. Cook United Department, of the State we must view its 121-22, 305, 312, 53 S.Ct. 77 L.Ed. 641 change skepti recent of heart with some Rauscher, (citing holding in light most, cism. At the the letter from Mr. purposes of 1924 with Great Williamson shows views of the Britain, grant permission to board subject Executive on the us are un before sailing vessels within one hour’s distance hardly clear or This ambivalent. would call of three miles off the coast of the United into our resolution of the issue. States, impliedly boarding forbade of ves- Here, away). sels that were further we do E just that. indicated, already gener-

As we have general As our discussion and the exam- principles al interpre- ples provisions applicable tation that we discussed above are to the demonstrate, specific have considered above “the treaty we consider here. The text notes that the text of the trea- and the context in which ” ty used, respect with Mexico is silent with the written words are Air France precise i.e., Saks, question before whether U.S. us— Treaty prohibits signatory (1985) one (emphasis 84 L.Ed.2d 289 add- abducting ed), clearly support an individual from the oth- the conclusion we conclusion, only, rejected reach. To summarize we ment that rule was long ago, provide Supreme hold that extradition treaties a when the Court held that an indi comprehensive regulating means of vidual defendant raise a violation of which one nation principle methods remove specialty as an objection to from another nation for the jurisdiction. Rauscher, individual him purpose subjecting pros- 424, to criminal 7 S.Ct. at 243. involving Our decisions ecution, and that unless the nation from principle specialty make clear forcibly which an individual has been ab- person those cases at least “the extradited advance, ducted to that action in consents objections raise whatever the render subsequently by or its silence or otherwise ing country might have.” United States v. object, government waives its (9th Najohn, Cir.) 785 F.2d (per sponsored authorized or abduction consti- curiam), denied, cert. treaty.

tutes a breach of the To hold to the S.Ct. Thus, L.Ed.2d 707 contrary seriously would undermine the Verdugo’s complaint grounded in a utility vitality only of our extradi- violation of the specialty, rule of there tion Mexico our but of all of would be no doubt that he would have extradition treaties. standing to raise the violation as a personal jurisdiction.13

bar to V see why applicable We no reason the rule We must now address the specialty cases apply should not also in whether, if the nation from which an indi the case of a authorized or kidnapped by vidual has been the United sponsored kidnapping that violates an ex- formally objects, the individual has treaty. tradition The relevant factors bear- standing objection in to raise the a criminal ing on whether a defendant should have trial as to the court’s a bar exercise of standing nearly identical in the two personal jurisdiction over him. cases. Both concern prosecu- a criminal cases, tion. In both objects defendant

A process by which he has been principal argument against finding The brought before the court. both cases standing that an individual defendant has country of the from which raise the issue of his in viola- he registered has been removed has objection tion of an extradition is the claim pro- one instance a formal —in relating issues to a in expressly limiting violation test and the other governments should grant be resolved specific of extradition to trial for the United States and Mexico as a supra, Finally, matter offenses. n. 13. See both diplomacy. might rights Whatever said in be cases concern rooted in an extradi- remedy favor of a rule that a defendant’s treaty, consequence, tion and as a both for violation of an extradition upon foreign must cases touch relations of political lie with the signatory branches the United States and the other Second, Thus, objection charges. 13. While the Fifth and Sixth Circuits to his trial on other in specialty specialty require allow a defendant to raise a only violation cases we do not an additional protest permitting when the nation from which he has been formal before the defendant formally protests, objections requested extradited the rule is other to raise the nation. Second, Eighth, contrary wise in the Ninth and Eleventh Circuits. rule of the Fifth and Sixth Turner, Leighnor apparently See (8th 884 F.2d 388 & n. 4 based Circuits specific on the view that a Cir.1989) cases). circuit, (collecting required In our official the de- after objections a defendant raise the fendant has been extradited to ensure that the requested nation from which he has been extradited un nation has not affirmatively changed less that nation consents to a trial its mind and that it still wishes to charges. Najohn, objection previously on other 785 F.2d at 1422. assert the entertained. event, appears split rule Our to be based on the belief that the circuit is not material to case, pro present formally once there has been a formal extradition ceeding because Mexico has nation, requested protested in the that nation’s violation. were this a case, agreement specific charges specialty to extradite would be entitled to equivalent be must construed as the of a formal assert violation under either rule. that class the violation concerns for the class when treaty. Whatever concerns specialty permit cases powers separation member. principle of agree- this one are party case such as not a to an implicated in a individual who is in degree same precisely the implicated in States and a for- ment between the United long we have cases—where specialty rights of that eign nation to assert difficulty finding that an individual had no see no reason nation in our courts. We treaty violation. standing to raise the logic experience why the individual vic- of other government’s tim of our breach recognize that there are some differ- We treaty should not aspects of an extradition specialty case and a kid- ences between signatory nation’s however, be able to assert None, militates napping case. as well. respect to our courts a different result with favor of consider standing question. We will Indeed, view, the case for afford- our First, special- in a briefly. differences defendant is ing standing to the individual itself ty case it is the United States which kidnapping case compelling more in a even in a treaty, while invokes the extradition specialty Although a viola- than in a case. signatory kidnapping case it is the other specialty constitutes principle tion of the so. This distinction is nation which does obligations of the of the a serious breach cases, a legal significance. In both without States, only such a breach occurs treaty provi- has invoked its party to the initially has com- after the United States sions. in plied procedures with the set forth the Next, argues the the that contrast, treaty. By kidnapping is a fla- a standing special- in the granting reason for wholly cir- grant treaty violation because it States has ty case is that the United process, cumvents the extradition and with of extradition” with formed a “contract it the commitment of the United States to This respect particular defendant. the rule of law in its international follow the argument runs counter injury in the case of a relations.14 The an individu- position that the reason ment's kidnapping egregious, only is more treaty objec- may not raise a al defendant wronged the offended nation but to treaty kidnapping is that a is tion to a event, we fail to individual well. agreement nations and the defen- between argument logic government’s see the party agreement. dant is not a standing object that the defendant has specific a extra- Both an overall in personal jurisdiction in cases which in fact contracts be- agreement dition the United States has invoked indi- In neither case tween nations. in cases in but not which party. The fact that the extradi- vidual a particularly signatory, the other invoked treaty relates to a class of individuals tion light in the fact that the individual’s “contract of extradition” relates to while a of that is “derivative” of consequence particular individual is of nation, not other nation and it is the other as a whole nor because neither bargained agreement con- individual provision aggrieved indi- which benefits any provision conferring standing on tains vidual. Furthermore, any individual. there is no conclude that the rule which logical why reason the violation of an to raise a permits an individual defendant agreement relating particular to a individu- precluding individual, treaty violation as a basis for litigable by al should be personal jurisdiction in a the exercise of particular agree- while a violation of an in a specialty equally applicable case is relating to a class of individuals sponsored kid- litigable by should not authorized or member standing specialty objections attempts even 14. nonetheless to dis- to raise tinguish specialty by pointing pro- express specialty cases out that when a contains no express specialty provi- Rauscher, contains an U.S. at 7 S.Ct. at vision. See IV(E), part supra, sion. As we concluded in 243. consequence. A distinction is of no defendant case, being napping difference dition “injected” judi- has not ciary political dispute. in the case there must be a into a He or she has govern- merely the offended formal carried out the court’s constitution- kidnapping, light while in the ment after the al function of the statutes Con- case, specialty (including gress pass in some circuits has seen fit to and the treaties ours) foreign government’s original it has ratified. statement of limitation is deemed sufficient reject government’s We also sugges- requisite protest. to constitute the See su- tion permitting standing individual n.

pra, cases such signifi- as this one will lead to a expansion cant of the role of the courts in

B the area of international relations. As we way Our is in no inconsistent conclusion stated, have the fact that we have allowed principle separation powers with the standing individual specialty cases responsibility and the Executive’s for con- any suggestion belies that extradition trea- ducting foreign policy. explana- The short ties have not heretofore been enforceable why tion for this is so is that the courts of by our courts on behalf of individuals. long the United States have so held the Moreover, assume, we can with a consider- Furthermore, specialty significant cases. degree able of confidence that our courts interpretation role for the courts in the of will not be flooded with cases in which the justified extradition treaties is because government, in defiance of courts are the forum in which extradition treaty obligations and of international typically Generally, issues arise. individu- law, has sponsored authorized or the kid- brought als are extradited or here viola- napping of foreign individuals from lands. express purpose tion of a for the of Finally, we note that numerous other trea- subjecting prosecution. them to criminal It ty rights long have been in our enforceable hardly pointing prose- needs out that such light courts individuals.15 In of this place cutions cannot take forum but long judicial tradition of enforcement of a court. by private parties, treaties we find no merit government’s in the position granting that Moreover, supervision of the extradition standing individual here would amount to process uniquely province is judicial purely encroachment into a Execu- Congress expressly delegated courts. realm. tive responsibility to the courts the for deter- mining whether an individual within the C be extradited to another Furthermore, pursuant treaty. reject government’s to a 18 See U.S.C. doing, Congress Verdugo’s 3184 In so en- legality contention that the § power nonjusticiable political ques- trusted to the courts the to make abduction is a Carr, precisely interpretative the kinds of deci- tion. The cites Baker v. 186, 691, Contrary sions at issue this case. to the 369 U.S. 82 S.Ct. 7 L.Ed.2d 663 government’s suggestion, judge (1962), proposition a who de- for the that there when “judicially manage- termines that a defendant has been are no discoverable brought resolving” question, into court in violation of an extra- able standards for a or See, Allen, 503, 102, e.g., Clark v. 331 U.S. 67 S.Ct. v. United U.S. S.Ct. Cook 15. 305, (1933), 1431, particularly (1947) (inheritance relevant 77 L.Ed. 641 91 L.Ed. 1633 case, regard. present in this Like the Cook Germany); Corp. under with Bacardi seizure, property a rather involved than a rely upon albeit one of Domenech, 150, America v. 61 S.Ct. person. permitted The Court Cook to 219, (1940) (trademark rights 85 L.Ed. 98 under between the United States Seattle, treaty); multilateral 332, Asakura v. 265 U.S. regulated boarding by and Great Britain that 515, (1924) (right 44 S.Ct. 68 L.Ed. 1041 United States officials of British vessels located engage alien to in trade under with Ja held that the in international waters. The Court 199, (Dall.) pan); Hylton, v.Ware 3 U.S. 1 L.Ed. imposition subsequent vessel’s seizure and the (1796) (right private to collect debts under treaty and were therefore of a fine violated the Britain). treaty with Great 121, unlawful. Id. at 53 S.Ct. at 312. proper requires

when its resolution “initial treaty, understanding, legislation.” (“Verdugo policy Verdugo-Urquidez United States v. clearly of a kind for determination[s] discretion,” nonjudicial ), 259, courts not de 494 U.S. 110 S.Ct. I” question. Id. at cide the (1990) 82 S.Ct. at (emphasis L.Ed.2d adde general d).16 This certainly a correct long Our courts tradition of have statement, but Baker itself illustrates that scrutinizing legality governmental it has application here. As the Court during conduct the course of a criminal Baker, stated in suppose “it is error to prosecution. scrutiny may While such every controversy case or which touches upon” “touch foreign relations —in much foreign beyond judicial cogni relations lies way the same foreign the trial of a zance.” Id. at 707. 82 S.Ct. national foreign itself touches on rela example, in may generally the courts tions —it does not judges call for to exer terpret notwithstanding treaties the effects cise the kind of discretion that is committed interpretation such to the foreign Rather, have on Executive Branch. it calls affairs, supra, see upon them perform n. 15. the other type On the same hand, fact-finding generally they it will not function regularly be assumed that perform on a requiring day-to-day decisions exercise of “Presi basis determin ing circumstances respect relating dential discretion” to issues of arrest or person. seizure of a foreign policy subject judicial review. Lines, Chicago & Southern Air Inc. v. Finally, is worth recalling that Corp., Waterman S.S. 333 U.S. government concedes that an extradition (1948) (hold 92 L.Ed. 568 expressly states ing that President’s discretionary award of sponsored authorized or kid- overseas subject airline routes is not napping breaches pros- and bars

judicial review). See also United States v. ecution of the kidnapped individual would Curtiss-Wright Export Corp., standing confer on an individual to raise an 304, 319-20, 216, 220-21, 57 S.Ct. 81 L.Ed. objection personal jurisdiction based on a (1936) (holding Congress may del kidnapping. course, Of foreign policy the egate greater authority to the President in implications of a kidnapping in violation of foreign policy matters of than in matters of an extradition treaty precisely the same policy). domestic in a case in which the contains an express provision standing for in a as case It is clear that the resolution of Verdu in which it does govern- not. the go’s claim will not involve the courts in ment’s suggests concession that even it properly decisions that are subject the of recognizes that allowing standing to an Executive Although discretion. “the protest individual to government a autho- courts of country one judg will not sit in sponsored rized or kidnapping would not ment on the government acts of the of work an intolerable judi- intrusion of the another done within territory,” its own ciary into the affairs of the Executive. Oetjen Co., v. Central Leather 297, 303, 62 L.Ed. 726 We conclude that political question the (1918), Supreme Court has in stated a doctrine does not Verdugo’s bar assertion involving case very defendant now Treaty Therefore, be of the violation. Verdu- us, fore that restrictions on go may extraterritorial raise his claim that he was kid- searches and by seizures conducted napped our in violation Treaty as a own imposed by “be challenging means of jurisdiction ' political through branches diplomatic district court person.17 over his Verdugo 16. In I the Court held that the fourth trine even if the fourth amendment does have effect, apply amendment does not of extraterritorial the its own force to the Court instead reached language merits. It then agents searches and included the cited seizures United States of regarding possibility imposing in the text property foreign country. that is located in a by treaty. fourth amendment limitations Although the Court could have ruled that fourth scrutiny amendment of such extraterritorial argues Verdugo 17. The also political searches is barred doc- rely implicit not on the because an government’s

VI protest Mexican neces- sarily requires hearing with respect to stated, we have the district court As assertion the United States that Verdugo’s for an evidentiary denied motion Verdugo voluntarily was turned over to view that even hearing based on its government. our We know of no case sponsored United States had authorized which it was found that another nation he not be entitled to kidnapping, his would voluntarily surrendered an individual to the exer interpose objection to the court’s notwithstanding the fact that ground. jurisdiction personal cise of on that the other protested nation itself that the concluded, As we have that determination individual had been abducted without its however, decide, error. We do consent by government. our Contrast in fact autho whether Valot, fact, 625 F.2d 308. In voluntary sponsored Verdugo’s rized or surrender would be inconsistent with a govern without the consent of the Mexican good protest. Nevertheless, faith we do ment. The issue before us is whether not exclude the possibility that the Mexican evidentiary Verdugo is entitled to hear participated fact in and ing question. We on that hold that he is. therefore consented Verdugo’s appre- hension and removal.18 Verdugo alleged police has that local of- The district court ficers, inquire should into acting govern- this possibility not on behalf of the well. as Mexico, but on instructions VII Drug Agency, Enforcement were re- sponsible support his abduction. A allegations his he has attached the formal court, By order parties were protest government, of Mexican directed to inform us of their views Verdugo’s “kidnappers” contends appropriate remedy in the event that acting on surreptitiously behalf ultimately were to conclude that Department States. Even Treaty was violated and that the violation response State’s to the Mexican defeated in the court below. acknowledges police that the local officers suggested appropri- that the “cooperation” acted in with the United remedy ate such case would light States. of the Mexican repatriate agree. him We Mexico.19 protest and ment’s formal its assertion that Verdugo by agents treaties, of kidnapped Treaty the Like all extradition the government, provides specific steps we cannot as- at issue here evidentiary an sume in the absence of hear- must taken that be before an individual ing Verdugo’s allegations may require without steps are be extradited. These judgment by merit. of and the exercise discretion Co., self-executing. Republic Boeing term of a can never be tion.” Iran Islamic of (9th reject suggestion. self-executing 1985). We A trea- 771 F.2d Cir. the For which, force, discussed, ty rights already of is one its own confers reasons we have we have no individuals, Treaty implicit imple- on the the without need for doubt that the napping and no-kid legislation. menting provision self-executing. Rauscher illustrates that implied term of a self-execu- be stated, ting. Verdugo’s supra separate In we have trial on narcotics As 18. Supreme charges, Judge Irving implicit the Court Court J. Lawrence Rauscher found an District Rauscher, self-executing police specialty principle. the interviewed Mexican officers who inquiry apparently Verdugo’s appre- involved in 119 U.S. at S.Ct. at The into self-executing transcript hension. sealed of inter- whether a does not focus The these particular suggests possibility express views the on whether term is or im- involvement "(1) high plied purposes court but on: the of the level Mexican officials. district and creators, (2) objectives evi- the of its should determine in the first instance the the existence of procedures dentiary transcript, any. appropri- of this domestic and value institutions (3) implementation, ate for direct the availabili- ty feasibility government of alternative enforcement 19. has chosen not to address methods, (4) relying long-range question, argument the immediate and our instead on its consequences remedy. self- social or non-self-execu- that there is violation to requested custody of the nation. States must offer to surrender the authorities Treaty of the example, kidnapped Article Ten sets foreign For the individual to the showing legal and factual forth the government. Only then can that government the must be made before rights treaty. ment exercise its under the Mexico the States or either Therefore, should the district court con- extradition re- obliged comply with an evidentiary clude the basis of the hear- Article 12 entitles the quest by the other. ing that authorized or requested nation to re- government of the sponsored Verdugo’s kidnapping, it shall event that evidence in the quest additional Verdugo order the United States to tender initially the evidence it is not satisfied with to the Mexican authorities. Furthermore, Article under adduced. “processed requests must all extradition be B legislation with the accordance Treaty Finally, requested party.” 26,1987, In August its letter Mexi- gives the discretion not to ex- government each nation can made it clear that its earli- charged political tradite: individuals er letter regarded was to be as “a formal offenses; military individuals who or complaint regarding kidnaping,” executed; (like and individuals who Ver- it judicial wished the “U.S. authori- nation, requested of the dugo) are nationals ties” to position be informed “of the requested long so as the nation subse- government.” purpose Mexican The clear quently proper submits the case to the of the letter was to call the court’s atten- prosecution.20 domestic authorities for tion to the violation and the court’s resulting personal jurisdiction lack of over the United States asks another When provide requisite and to foun- custody to surrender nation over proceedings leading grant- dation for to the individual, other nation ing appropriate judicial relief. How- discretion and to to exercise its make ever, government argues that the necessary legal and factual determinations purpose of the letters from the Mexican required by treaty. that are some Embassy Department to the United States result in a instances this decision attempt of State was to to resolve the issue government other not to surrender the through diplomatic disagree. channels. We If person demanded. the United States case, In this the Mexican did treaty by authorizing spon- breaches simply file a formal with the soring of an individual from step Executive branch. It took the added territory, deprives the other nation’s asking Executive branch to refer the other of its to exercise judicial Clearly, matter to the appropriate its discretion and make the fac- branch.21 legal tual and determinations. the Mexican believed that the order to position permit effect of its letter restore offended would be to Verdugo’s kidnapping which it would have been had the United issue of to be raised complied treaty, pending States with the the United in the proceedings.22 criminal relating provisions capital punishment proceeding. merely point 20. The to We out that here the expressly grant and the extradition of nationals government Mexican did more. requested discretionary power the nation the to appropriate extradition under refuse circum- 22.Judge Browning contends that we should not provision relating political stances. The military to and protest decide that Mexico’s formal confers offenses, hand, on the other states that standing Verdugo interpose objection to on an granted” extradition “shall not be for such of- jurisdiction to the district court's exercise of provision "discretionary" fenses. This is in the alleged kidnapping. over him based on the Post requested sense that the waive its at 1363. He would remand to the district court rights under the whenever it chooses to for a determination whether a "formal com- supra do so. See at 1350. "judicial plaint” addressed to the authorities" of suggest anything protest We the United States constitutes a sufficient do not that more than protest by government complaint expressly an official the offended if the formal does not also However, required request remedy repatriation. to the Executive Branch is in order to the standing government position afford to a defendant in a criminal does not take the that

1361 point government should out that a did We that not call for Eichmann’s re- after protest Argentina. withdraw a it has been turn to Accordingly, when so, generally it lodged. attempted object Once it does is Eichmann juris- to to the accepted in international law that indi- diction of Israeli court based on the standing longer object no has to to fact that he had vidual been abducted from Ar- gentina by over jurisdiction person. agents, the exercise of his Israeli the court held case of criminal Eich- The Nazi war Adolf that there was no bar light Argentina’s is Eichmann ab- mann illustrative. pro- withdrawal of its Attorney Eichmann, General v. Argentina agents. Israeli ducted test. 36 protested Initially, Argentina L.Rep. Int’l (Dist.Ct.Israel, 1961), abduc- 70-71 tion, Argen- but before Eichmann was tried 36 Int’l L.Rep. (Sup.Ct.Israel 277 affirmed diplomatic 1962).23 If tina Israel reached settle- government Mexican express repatriation request necessary, express unequivocal repatriation is not of an "de- though even it filed three briefs in our court mand” of the offended na- advancing against arguments 331-32, other the conclu- tion. id. at Reporters' See Note 3. The standing. parties that has sion case actual in which a court has taken the legal question asked have us to decide position specific repatriation that a demand is protest whether Mexico's formal conferred necessary for treaty objec- a defendant to raise a standing Verdugo. simply justi- on There is tion to an abduction is a decision of the German remanding fication district court for Supreme by Judge Browning. Court cited See argument consideration of an unmeritorious post (citing at 1366 19 GGART25 Verfahrenshin- party neither has raised. that wegen Verletzung dernis von Hoheitsrechten re- printed in 1985 Neue Zeitschrift fur Turning legal Strafrecht to the merits 464). STZ And even in that decision the state- Judge Browning would have us remand dictum, ment was since the note from the Dutch court, express district view that an embassy did not meet the German Constitution's “repatriation" request necessary contrary is is requirement foreign government that the for- only pertinent statements found in Ameri object mally prosecution. to the defendant's principal decisional law. can None cases event, post any at See 1366. In we do not find discussing standing suggests any derivative is, course, persuasive view German it thing protest required. more than a formal is binding hardly light on our court. standing Those cases all discuss derivative above, reject colleague's suggestion must we our complain about a violation men without adopt procedural require- we additional tioning standing request specific remedy ment that See, repatriation. e.g., Matta-Ballesteros v. requested might has not in this case Henman, (7th Cir.1990); 896 F.2d 259 Unit retroactively deprive the Mexican Cordero, (1st States v. 668 F.2d Cir. ed 38 remedy. and the individual defendant of their 1981); Reed, United States v. 639 F.2d 902 Finally, disagree Judge Browning with Cir.1981); Valot, (2d 308, States v. F.2d 625 engage that the district court should in factual Cir.1980); (9th 310 rel. ex hearings regarding foreign the true intent of a (2d Lujan Gengler, Cir.), F.2d cert. government. By contrast the factual denied, in- S.Ct. 44 L.Ed.2d surrounding quiry circumstances surround- abduction, ing Verdugo’s Moreover, the kind of fact-find- agree partially we do not with our ing Judge hearing Browning in the involved dissenting colleague that under international require dangerously would comes close to the anything protest law more than a formal inquiries political question forbidden under leading required. At least one commentator V(C). event, supra, part doctrine. asserted even a formal is not neces- Bassiouni, hearing such a sary. unwarranted because the Mex- See M. International Extradi- government's protest judged ican should tion: United States Law and Practice § 5.4 law; (2d 1987). a matter of such we As face as have held rev. ed. for the Restatement (3d) Foreign it to be sufficient. Relations the United States (1987), categorically 432 at does state § Judge Browning cites Eichmann as an exam- person that the state from which the was "[i]f ple personal jurisdiction return, in which of a case over does not his abducted demand under kidnapped proper a individual deemed be- abducting may was prevailing proceed state view the However, prosecute cause the nation from he was abducted which to him under its laws." expressly repatriation. did demand not his what the authors of the Restatement mean fact, jurisdiction post of far at 1366. the exercise “demand his return” is different from what Judge proper Browning suggests. Reporters’ at the Note over Eichmann because time proceedings conducted its there was to Restatement uses as illustrations what the court of required any any longer outstanding protest the cases of were no of kind individuals who simple Argentine government. Although Argén- "protest,” a returned the basis of Verdugo over one nations of protest, treaties with hundred its formal

to withdraw object intending protect to to its entitled world without longer would no be against own intentional law- personal jurisdiction of citizens such court’s exercise evidentiary- holding And while as to time lessness. our him. At the over standing person in viola- kidnapped is free to a hearing the Mexican —that directly treaty may court or tion of an extradition raise the the district inform judicial proceeding— of in a through the States violation reciprocal its of change respect guarantee to the status of treatment any lands, foreign a United States citizens in protest. contrary ruling surely provide other would point out that a deci- Finally, we should denying nations with a reasonable basis repatriation accept of by Mexico not to sion access to in their courts. Americans relief Verdugo tantamount to a with- would be country A protest. of drawal its today may our The fact that decision affords a defendant lodges protest a which ultimately result in the Mexicoof release to standing personal jurisdiction object to to felon convicted should not obscure accept necessary willing must be to larger meaning Although of this cáse. consequences that action. The nation of sunt servanda (agree- principle of facta unlawfully jurisdiction that has obtained obeyed) always ments must be has not expected cannot be to over an individual scrupulously been in the affairs of followed Rather, him its borders. nations, turn loose within this and other if are to see the we obligation to return him to its is to offer emergence a “new in which of world order” violat- the nation whose to subject use of force is be to the rule so, Having it has satisfied ed. done law, begin by holding must our own we obligations and remedied the legal to its com- fundamental rejected, If no the offer barri- breach.24 mitments. personal juris- er exists to its reassertion of any previ- reinstatement

diction CONCLUSION judgment or ously dismissed indictment alleged sufficient facts conviction and sentence. evidentiary hearing on the warrant autho- whether VIII rized his sponsored or Conse- abduction. two-way is a An extradition instru- quently, remand the to the dis- matter ment. That it forbids one nation to per- trict purpose court for the limited other permit do it does not to do either. mitting hearing, to conduct it such a Similarly, engage is free to one nation any further receive communications conduct, particular so is the form government, the Mexican to rule on Verdu- hold, other. Were we to dismiss, go’s necessary, motion to and if urges, the United States order his release the Mexican authori- sovereign territory Mexico invade the ties. retain over fur- We violating kidnap without individual appellate ther re- proceedings that obligations, nation’s it would quired. exists inexorably follow bar by foreign governments REMANDED FOR THE LIMITED PUR- to similar acts against in this POSE FUR- citizens of OF CONDUCTING SUCH accept BE country. We that THER PROCEEDINGS AS MAY CON- cannot view negotiated THIS extradition SISTENT WITH OPINION. return, originally 24.' that an serves tina demanded Eichmann's Our statement offer of return protest. purposes subsequently remedy the entire Isra- the breach is made for withdrew only. Argentina joint communique el and the remedies, us Whether additional issued issues before otherwise, necessary stating voluntary they regard or had decided to the en- Pearlman, affecting appropriate purposes tire incident M. for other as closed. See Capture Adolph two that does not and countries involved a matter Trial Eichmann of (1963) (quoting communique). concern us here. BROWNING, Judge, ing courts, Circuit its own citizens to its own R. limit- JAMES concurring part dissenting part. only by purely in in ed its own discretionary power to deliver such citizens to the other

I supra nation.” See at 1350. all extradition trea- The court holds that suggest indicia Other this intent. The party, ties to which the United States is a Mexican Extradition of prohibits Law 1975 including Extradi- the Mexican-American of extraditing Mexico from Treaty, tion bar the United States from Ley its own nationals. de Extradición In- arresting any suspect territory within ternacional, Diario Official de la Federación signatory supra other nation. See (Dec. 29, 1975). Mexicana The purpose of at 1362. guarantee the statute is to Mexican nation protections als the judicial their own holding solely I rest our on the would system, shielding them from the uncertain ground of the that Article 9 Mexican- exposure ties of to those of other nations. Treaty American Extradition bars the Unit- important right So is this to arresting a Mexican nation- Mexico that ed States adoption territory since of its Constitution at Verdugo al like within the of Mex- century of the imply This that I would dis- turn it has never entered ico. does agree ruling any Treaty obligating if I into it with the court’s to extradite its it, ruling only reach but that I believe our own nationals. Garcia-Moreno De& La Fuente, required for the Ley should be no broader than La Nueva Mexicana de Ex- us, particu- disposition Internacional, of the case before tradición 1 Revista Mexi larly developing 47, 1979). in a area of the law. (Sept.-Oct. cana de Justicia 56-57 Treaty provides:

Article When the United States entered into the Treaty, Mexican-American Extradition Extradition Nationals Treaty knew the was intended to confine prosecution of Mexican citizens to Mexican Contracting Party 1. Neither shall be nationals, submitting Treaty up courts. bound to deliver its own but ratification, authority Secretary Senate for requested the executive State shall, Party prevented by if not the laws Vance wrote “Article 9 ... takes into ac- Party, power prohibiting of that have the of Mexico deliver count law if, discretion, up them allowing its it be deemed extradition of its nationals for but ” proper to do so. prosecution their in Mexico.... Senate Exec.Rep. Cong., No. 96th 1st Sess. 6 granted If pursu- extradition is not (1979) (Letter Submittal). it is Article, Since paragraph 1 ant to of this that Mexico enter into inconceivable would requested Party shall the case to submit designed in part protect competent purpose authorities of Mexican nationals to tried prosecution, provided Party courts, yet agree jurisdiction their own that the over the offense. power kidnap retained United States plainly The text of Article 9 reveals the try Mexican nationals contracting intent of each of the nations to Mexico, the consent of Arti- courts without retain absolute discretion to decide whether prohibiting cle 9 must be read as the kid- its own nationals shall be tried its own napping in Mexico. of Mexican nationals courts, contracting or in those of the other kidnapped nation. The declares “Neither If the Con- United tracting Party up in Article 9 and Mexico did not shall be bound to deliver violation of nationals,” Treaty, acquiesce, its own Article the courts of the United States Treaty and decline imposes obligation but on each nation an are bound to enforce the the defendant. prosecute its nationals whom it chooses not to exercise over clear in Treaty, Supreme to extradite. Article As the The Court made this II2. states, Rauscher, requirements 119 U.S. “only court these v. (1886), sense as a 30 L.Ed. 425 and Cook blanket reservation S.Ct.

make[] sovereign subject- each nation’s interest in 1364 stand for (1933). Together, Rauscher and Cook Neither Ker v. Illi- 641

77 L.Ed. unsurprising proposition that 436, 225, 7 30 L.Ed. 421 nois, S.Ct. 119 U.S. may States enter government of the United 519, Collins, Frisbie v. 342 U.S. (1886),nor regulating American extrater treaty into a 509, (1952), 96 is to the L.Ed. 541 72 S.Ct. activities, and ritorial law enforcement contrary. such American courts are bound to enforce III(D), in Part As the court states supreme as “the Law of recognized from the Supreme Court VI, cl. 2. Land.” U.S. Const. art. en- day decided that courts will Ker was reasonably be and Frisbie cannot Ker meth- that limit the treaty provisions force suggest otherwise. The Court read to may use to obtain States ods the United treaty interpreta Ker held as a matter of In custody suspect. criminal United of a treaty did particular tion that the Peruvian 407, Rauscher, 119 U.S. 7 S.Ct. v. provide fugitives fleeing justice from not (1886), companion 234, case 30 L.Ed. guarantee asy the United States with a Ker, held that when the Unit- the Court Ker, they safely lum if reached Peru. custody over a defendant ed States obtains 442, at 7 S.Ct. at 228. As Court U.S. process, extradition through the formal observed, has since Ker involved no violation; for crimes other may try the defendant if the United States violates a quite 419- different.” crime of extradition. Id. at “the than the 593, 606, States, 273 Ford v. United U.S. 23, explicitly at 240-42. The Court 7 S.Ct. 71 L.Ed. 793 argument “that rejected government’s Mexican-American Since Article 9 of the being jurisdiction once within [the Treaty clearly bars the United States States], by contri- no matter what kidnapping national like Verdu a Mexican fraud[,] pretence what vance or go in Mexico for trial in United States charge provided establishing a courts, holding inapposite. Fris the Ker he have been observes, bie, also has no as this court is, brought jurisdiction, he when within strictly case. It deals relevance to this here, tried for offence liable be a claim that an interstate though here against the laws as arrested and the violated the Due Process Clause 242; originally.” at 7 S.Ct. at see Id. Kidnapping supra at Federal Act. See Browne, also Johnson Frisbie, (citing 342 U.S. at (1907) (applying 51 L.Ed. 816 S.Ct. 510). at S.Ct. Rauscher). sum, In Article 9 of the Mexican-Ameri- v. United Cook Treaty in itself barred the can Extradition (1933), 77 L.Ed. 641 American S.Ct. Verdugo from Mexico. alleged abduction and seized a British ves- officials boarded II Tov, sel, Mazel and assessed a substantial master, against fine Frank Cook. Id. at Although agree I with the court that the 107-08, argued 53 S.Ct. at 306-07. Cook Treaty if it kid- violated the the seizure violated a between napped Verdugo, agree I cannot regulating Britain or of United States and Great decide either as a matter law now boarding by officials of fact that has derivative rely to bar his trial and upon that violation wa- British vessels located international my court. conviction a United States 109-11, ters. Id. at 53 S.Ct. at 307-08. opinion that issue should remanded be agreed The Court and held that because initial consideration. the district court for violated the the seizure States was without to libel the rights at majority recognizes, the As the 120-22, vessel. Id. at 53 S.Ct. at 311-12. rights; any right Verdu stake are Mexico’s said, adjudica- hold that As the Court go may entirely. derivative. See “[t]o have is wrongful tion follow a seizure would rights under the supra at 1346-1347. The go nullify purpose far and effect of Mexico over the Treaty may waived 1352; 121-22, supra Treaty.” objection, see Id. at 53 S.Ct. at 312. defendant’s

1365 Valot, impression, Cox, F.2d v. States v. see Badea 931 F.2d United (9th Cir.1980), (9th Cir.1991); and Mexico’s silence after a 575 n. and we should do so violation will be construed as a waiv issues, course, in this instance. Factual of 1352; at rights. supra Mat er of are within province the exclusive of the Henman, v. F.2d ta-Ballesteros district court and should be left to that (7th Cir.1990); United States v. Za 259-60 court. (5th baneh, Cir.1988); 837 F.2d If these easily issues were resolved it Lujan Gengler, ex. rel. United States might be permissible for this court to re- Cir.1975). (2d 67-68 Verdu 510 F.2d solve them in judicial the interest of econo- standing go’s repatriation to seek because my, but this is case. not the alleged treaty depends thus violation upon right by an assertion of that Mexico. The materials us strongly suggest before

The court concludes that because Mexico the court is in concluding mistaken dip- protested alleged of Verdu- protest necessarily lomatic and as a matter Treaty, go as violation of the Mexico implies lawof a reservation of all of a law, necessarily, object- of and as a matter treaty rights nation’s and a objec- blanket Verdugo’s sought return, ed to trial and his proceedings tion all criminal against the preserving Verdugo’s thus derivative defendant. As most recent Restate- standing right. to assert that Alternative- ment of the foreign relations law court fact ly, the finds that in Mexico did explains: and did object Verdugo’s trial seek his If a state’s law enforcement officials ex- rulings return. Both of the court’s ercise their in the territory functions and, ill premature my opinion, in advised. another state without latter’s con- legal question The decides the court sent, and, protest that state is entitled to factual issue it resolves not cases, appropriate in to receive rep- squarely district by addressed court. offending aration from the state. If the solely The district court rested its decision unauthorized action includes abduction of ground kidnapping by on the that a person, the state from which the States would violate the Mexi- person was abducted demand return Treaty. can-American Extradition The person, international law re- legal question did not court address the quires that he be returned. the state If protest whether Mexico’s person which the was abducted by Verdugo’s alleged had been violated kid- return, does not demand his under the napping enough give Verdugo was alone prevailing abducting view the state standing to nor repatriation, demand did it may proceed prosecute him under its whether fact decide Mexico had demand- laws. Verdugo’s ed return. (3d) Foreign Restatement Relations legal Neither the nor the factual issue Law the 432 comment c United States § until this court we ordered briefed added).1 (1987) (emphasis supplemental parties briefs. The briefs the legal filed than did not discuss issue that under appear it would interna- or the issue at all. adequately factual practice tional a nation’s that its treaty rights by violated have been question have discretion We to remand when, custody of a criminal here, manner which de- to the district law court fendant was does not itself not been the district obtained addressed court, objection the defendant’s properly has not been briefed constitute parties, or a demand for his return. involves a first trial Contrary majority’s suggestion, brought see from another state that state su- pra Reporters’ note 3 of the Note Restate- demands his return. entirely consistent with Restatement (3d) Foreign Relations Law Restatement o/ Reporters’ unambiguously text. Note 3 states: Reporters' Note 3. § prevailing practice ... states ordi- Under narily trying persons illegally refrain from following kidnap- confirms the the United States the authorities A review cases, In most the of- ping Michigan by view. of an American from

Restatement release or seek “the Moore, nation does fended Canadian authorities. See J.B. IV illegally person carried of the restoration Digest A International Law 603 at § granted by is ],” that relief away[ and 329 Moore, 1 A Treatise offending state. J.B. reported The most recent decision is that Interstate Rendition and on Extradition Supreme Germany in # Court of However, (1891).2 nations do 194 at 288 § wegen GGART 25 Verfahrenshindernis upon the dismissal always not insist Verletzung reprinted von Hoheitsrechten of an abducted charges repatriation and 1985 Neue in remedy not re- this is Zeitschrift fur Strafrecht defendant. When case, the defendant was STZ 464. id. 193 at quested it is not awarded. See § by arrested in the Netherlands a German 287. police Germany officer and taken back case, Thus, in the celebrated Eichmann for theft. The Netherlands to stand trial upon Eich Argentina initially insisted abduction, protested the but did not re- later determined repatriation, mann’s but quest the defendant’s return. The German by in return for a concession not to do so Supreme rejected the defendant’s ar- Court sovereign rights Argentina’s Israel gument the tri- that his abduction divested by Eichmann’s abduction. had been violated al court of because it violated Argentina chose not to demand Because return, the Israeli court held Eichmann’s Dutch-German kidnapping not the ex Eichmann’s did bar customary international law. The court jurisdiction over Eichmann. See ercise of held: (Dist.Ct. Eichmann Attorney General v. procedural There is no tri- obstacle [to 1961) Intl.L.Rep. reprinted Israel in because of the manner which al] (1968), sub nom. Eichmann v. aff'd police arrested the accused. viola- (Supreme Ct.Israel Attorney General sovereign rights tion of Dutch needs to 1962) Intl.L.Rep. 277 reprinted in 36 considered, according be to Article 25 of case, (1968). Similarly, Nogales in the [incorporating the German Constitution “rescued” a Mexi when Mexican soldiers law], part international of German law prison, American prisoner can from an only if the Netherlands claims that its accepted Mexico’s offer to sovereignty and its has been violated kidnap punish escaped prisoner and the oppose claims of the criminal continuance pers, insisting upon than the return rather prosecution, and the Netherlands has de- Moore, 1 A prisoner. J.B. Treatise manded, delay, repatria- without undue Interstate Rendition on Extradition and request tion of the accused.... No was Again, Texas 196 at 288-90. when a § by authorities al- made the Netherlands fugi arranged of a sheriff though knowledge they had of the cir- Tombstone, Arizona, tive in Mexico near cumstances which the accused was the Mexican did not insist the Dutch Em- arrested. a note from upon fugitive, demanded return of the but bassy no re- dated December kidnappers punished; the that the be Unit quest According was mentioned. to that promised so. 193 at ed States to do Id. § note, apology required An all that was the “Dutch considered 287. government complied. example, Id. at § 2. For in the Bratton case over a centu the British ry ago, kidnapped recently, Canadian national 285. More in United States v. Caro- brought Canada to South Quintero, (C.D.Cal.1990), Americans F.Supp. Carolina for trial. The British de government of Mexico demanded the return of charges manded that the be dismissed and Brat following kidnapping by paid the defendant his permitted ton be to return to Canada. The 603-04, agents at of the United id. Moore, complied. J.B. 1 A Trea Id. at and the district court ordered his return. tise on Extradition and Interstate Rendition currently appeal Caro-Quintero be- case, Similarly, in the Blair § 190 283-84. panel fore another of this court sub nom. United upon of an the United States insisted the return Alvarez-Machain, States v. No. 90-50459. kidnaped by American citizen Great Britain and Dutch this incident a serious offense to Even if it were appropriate appel- for an sovereignty” Foreign “requests the issue, late to resolve court this factual Department reply” immediate but for an record adequate available us is not repatriation did include a not [the note] permit to do us so. All we have before us demand.3 is the text two notes sent Mexico to our Department. State We do not know explored Because the was not issue the circumstances in which the notes the district court and this court has presented nor briefing, what other adequate been aided we cannot communication fully confident have we are aware of occurred between two significance diplomatic protest governments. of a treaty. has violated a

abduction From Moreover, the scanty record before us cited, however, appears possible material strongly indicates not Mexico did intend probable holding not this court’s protest to its seek Verdugo’s to return protest as a law such a is matter of trial. appears Mexico for This clearly most equivalent right to an un- assertion comparison from a protest Mexico’s pros- der the to a terminate criminal protest this its companion case with in a defendant, repatriate ecution and is involving case Doctor Alvarez-Machain. contrary prevailing diplomatic to under- Caro-Quintero, See v. standing expectations and hence to the (C.D.Cal.1990) F.Supp. (pending on ap- protesting nation. As the United peal in court this sub United nom. States court, argued to States has nations Alvarez-Machain, 90-50459). No. lodge protest only a often formal to vindi- dignity satisfy their national cate domes- evidentiary hearing, After an the district political tic concerns. Under the court’s Caro-Quintero court in found the United approach, option a nation not elect this States had hired Mexican to citizens abduct aborting proceed- without also the criminal bring Dr. Alvarez-Machain and him to the ing offending in the requiring nation and alleged for trial for his role return of an individual offended nation Agent in the murder Camarena. Id. at (or unable) bring not wish be to 603. trial in its courts.4 own prompt Mexico’s reaction was and unam- holding protest addition to is alone biguous. April The abduction occurred on trigger sufficient to all of poten- Mexico’s 2,1990. 18,1990, April request- On Mexico Treaty, tial under the the court finds Department provide ed our State a fact that Mexico intended to exercise report official on the role of Verdugo’s to halt trial require and Following States in the abduction. Id. finding his return. The court rests this response,5 United States’ Mexico submitted upon subsidiary fact that Mexico asked protest Department to the State dated Department of State to inform the May 1990: The note stated: judicial “U.S. authorities” that Mexico had Verdugo’s protested abduction as a viola- The Government Mexico considers Treaty. supra tion of the at 1360. that the of Dr. Alvarez Ma- 3.Contrary majority’s suggestion, majority bright su- 4. line see defends its rule suggesting inquiry that an actual pra into the intent at note the German court's conclusion dangerously “comes close to of Mexico quiries the in- repatriation request required that a not was political forbidden under the reveals, quoted dictum. As the text the lack of Supra majority at note doctrine.” 22. The fails repatriation request essential to the court’s why explain presuming, contrary dip- holding. Nor was the German court’s decision practice, lomatic that Mexico’s was in- upon peculiarities based of German consti- Verdugo’s repatriation, tended demand for as a tutional law. tion, 25 of the Article German constitu- sphere invasive of the less executive than court, merely upon by relied the German determining whether in fact Mexico de- incorporates part international law as Ger- Verdugo’s manded return. law. German man court’s decision squarely upon customary practice rests copy does not have a of the United This court among response. nations. States' long-standing local plished pursuant to a from Mexican ter- transfer and his

chain law en- practice cooperation between of America ritory to the United agents of the United States knowledge of forcement out with were carried Mexico, police that the Mexican working the U.S. Govern- persons Af- authorities. not hired United States procedure estab- ment, in violation Mexico sent a a silence of six months treaty in force ter in the extradition lished communication, Judge noting that J. second countries. the two between over Ver- Irving, presiding then Lawrence The note concluded: charges, had re- dugo’s trial on narcotics Mexico, Embassy of Consequently, the finding cently made a factual Unit- of its Govern- specific instructions on the police officers had hired Mexican ed States Department of ment, that the requests Verdugo, contrary to the earlier kidnap appropriate au- intercede with State States. Mex- representations of the United Machain can that Dr. Alvarez thorities so Irving Judge also noted found ico investigated regarding returned and Mexico had had occurred because violation offenses, the in- participation possible Verdugo’s abduction. Mexi- protested of which are vestigation prosecution requested “the kind mediation co of the Mexican Govern- responsibility informing in the cor- Department of State respect- Embassy therefore ment. The judicial authorities of the responding U.S. to offer fully urges the U.S. Government so that position of the Mexican Government that the aforemen- cooperation so properly case will be clarified.” this tried and sen- can be tioned individual return; request Verdugo’s respect Mexican Mexico did not tenced with absolute say investigate and may in he it did not it intended any offenses which laws for Verdugo pursuant to Article 9 of the try have been involved.6 Treaty. It the district asked Mexi- protest left doubt Mexico’snote charges trying Verdugo on narcotics court Alvarez-Ma- sought the return of Dr. co objected to his advised that Mexico had in Mexico investigation and trial chain for abduction. Treaty. conformity Article 9 of 9, 1990, Moreover, Mexico’s on November by pointing responded The United States Angeles in Los submitted a Consul General Judge Irv- out Mexico had misconstrued reiterating po- Mexico’s letter to this court Judge Irving actu- ing’s findings —and Extradi- that the Mexican-American sition found, ally consistent with the United Treaty required that Alvarez-Maehain tion Mexico, representations to earlier States’ urging this be returned to Mexico paid had not the United States ruling court’s uphold court to the district Verdugo. kidnap Mexican officers that effect. also advised Mexico Department of State request Mexico’s that in accordance with The contrast with Mexico’s communica- that Mexi- striking, district court had been informed present case is tions protested kidnapping. had The note significant. In this case Mexi- co well be the United dated three closed with assurances that diplomatic co’s first note was respected sovereignty Verdugo’s apprehension. It States territorial months after good reports of Mexico and that it had acted newspaper that Verdu- referred delivery police Mexican faith the reasonable belief go had been abducted States, by Mexi- Verdugo and of to the United States hired officers enforcement regarding the inci- can officers reflected law requested information appropriate Mexican author- responded that decision of the dent. The United States Depart- “The ities. The note concluded: apprehension Verdugo was accom- Corp. Bay part Paper v. East Union protest Fibreboard Prod. 6. Mexico’s letter of was not 1304, 300, Machinists, However, n. 2 diplomatic protest Local 344 F.2d below. record of (9th Cir.1965); Corp., public judi- Zahn v. Transamerica take document of which 36, (3d Cir.1947); See, e.g,, Payton, n. 20 National Labor States v. F.2d cial notice. United Co., (8th Cir.1990); v. E.C. Atkins & 147 F.2d United States v. Relations Board 918 F.2d Cir.1945). Jordan, Cir.1990); (7th (8th 734 n. 1 913 F.2d 1287 n. foregoing trusts that the clarifies case, misunderstandings regarding this ADAMS, Petitioner-Appellant, David L. cooperation to continued be looks forward governments the two on law en tween PETERSON, Superintendent R.S. Following forcement matters.” these as O.S.C.I., Respondent-Appellee. by the surances the Director of the Mexican Federal Judicial General No. 87-4191. joint authorized a Mexican-American Police Appeals, United States Court of Verdugo’s search of homes in Mexicali and Ninth Circuit. Felipe, San Mexico. United States v. Ver dugo-Urquidez, Argued and Submitted June 1989. 108 L.Ed.2d 222 July Decided significant It also be that Mexico’s lodged Verdugo note of was while facing charges trial on narcotics be- Judge Irving

fore in the Southern District California, year well over a before this prosecution began. for murder So far as indicates,

the record before us Mexico did object proceeding against Ver- dugo for murder: Mexico remained silent present when was indicted on the charges, Verdugo remained silent when trial, went to remained silent when Verdu- go ruling received an below on unfavorable issue, and remained silent when Verdugo was convicted. information,

On the basis of this properly developed such other evidence a contain, might might record a trier of fact agree finding with this court’s that Mexico proceeding intended that this criminal abated and be returned to Mexico. However, a trier of fact could also conclude pos- that Mexico intended integrity sible invasion of its territorial treaty rights; that it was satisfied with the given

explanation by the United States and with the formal assurances respected States that the United States sovereign Mexico’s as a and as a party Treaty; and that Mexico was Verdugo’s

satisfied to allow trial and con- viction to stand. The trial court should be to decide which

allowed inference to draw. reasons, For these I dissent.

Case Details

Case Name: United States v. Rene Martin Verdugo-Urquidez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 22, 1991

Citation: 939 F.2d 1341

Docket Number: 88-5462

Court Abbreviation: 9th Cir.