United States v. Rafael Lira

OAKES, Circuit Judge

(concurring):

While I concur in the result, I find the case more troublesome perhaps than does the majority. Having sat on both United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), and United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir. 1975), and now on this case, I agree that this case falls — just barely — on the Lu-ja n rather than the Toscanino side of the line. But since this is the third case in our court of DEA abduction from abroad, and we were told on argument that there were six more likely to come before us, one is led to wonder whether, by giving further countenance to this kind of conduct by law enforcement agents, we are forgetting the admonitions, albeit in Fourth Amendment contexts, of the judicial lions of the past— Mr. Justice Brandeis’s ringing phrases in dissent in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928);1 Judge Learned Hand’s remark in United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926);2 Mr. Justice Frankfurter’s essay also in dissent in Harris v. United States, 331 U.S. 145, 172, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947).3

I recognize that only the other day, citing Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), the Supreme Court said “Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction.” Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). We are, of course, bound by Supreme Court decisions as evidenced by Lujan, supra. In addition to what Judge Manfield said in Toscanino, 500 F.2d at 277—79, it is well to point out, however, that there is a very strong policy which would be operative if the abduction here were from an objecting country (as was allegedly the ease in Toscanino) or in violation of a treaty. Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933); United States v. Rauscher, 119 U.S. 407, 422, 7 S.Ct. 234, 30 L.Ed. 425 (1886).4 That policy is of course respect *73for the law of nations, the requirements of world society, and the integrity and independence of other nations, not only under formal charters like those of the United Nations (art. 2, para. 4) and the Organization of American States (art. 17), but as unwritten obligations of international law. See Garcia-Mora, Criminal Jurisdiction of a State over Fugitives Brought from a Foreign Country by Force or Fraud: A Comparative Study, 32 Ind.L.J. 427 (1957). See also The Paquette Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900). That respect for the sovereign integrity of other nations is, in addition to conforming to high moral principles, a self-serving pragmatic viewpoint for the United States to take; we can better demand in the international court of public opinion similar respect for our sovereign integrity if we extend such respect to others. Nothing in Lujan is to the contrary.

Finally it should be said that, regardless of the abstract doctrine Ker and Frisbie are said to stand for, we can reach a time when in the interest “of establishing and maintaining civilized standards of procedure and evidence,” we may wish to bar jurisdiction in an abduction case as a matter not of constitutional law but in the exercise of our supervisory power under McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1942), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). As we pointed out in Toscanino, supra, that “supervisory power is not limited to the admission or exclusion of evidence, but may be exercised in any manner necessary to remedy abuses of a district court’s process.” 500 F.2d at 276. To my mind the Government in the laudable interest of stopping the international drug traffic is by these repeated abductions inviting exercise of that supervisory power in the interests of the greater good of preserving respect for law.

. Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

. Nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.

. Stooping to questionable methods neither enhances that respect for law which is the most potent element in law enforcement, nor, in the long run, do such methods promote successful prosecution. In this country police testimony is often rejected by juries precisely because of a widely entertained belief that illegal methods are used to secure testimony. Thus, dubious police methods defeat the very ends of justice by which such methods are justified. No such cloud rests on police testimony in England. Respect for law by law officers promotes respect generally, just as lawlessness by law officers sets a contagious and competitive example to others. See IV Reports of the National Commission on Law Enforcement and Observance (“Lawlessness in Law Enforcement”) passim, especially pp. 190-92. Moreover, by compelling police officers to abstain from improper methods for securing evidence, pressure is exerted upon them to bring the resources of intelligence and imagination into play in the detection and prosecution of crime.

. Rauscher was -handed down the same day as Ker and written by the same author, Mr. Justice Miller. His distinction between treaty obligations and unwritten obligations of customary international law I find untenable. See *73Garcia-Mora, Criminal Jurisdiction of a State over Fugitives Brought from a Foreign Country by Force or Fraud: A Comparative Study, 32 Ind.L.J. 427, 441-42 (1957).