United States v. Joseph Damion Lovato

Defendant asserts that Mexican Army personnel, acting in effect as agents of the United States, engaged in misconduct in the course of his expulsion from that country and delivery to the United States officers at the border; he contends that he is entitled to have his prosecution for offenses against the United States terminated under the supervisory power of the courts in order to discourage prosecutorial misconduct. We adhere to our former decisions, and affirm this narcotics conviction.

Lovato relies upon United States v. Toscanino, 500 F.2d 267 (2d Cir.), petition for rehearing en banc denied, 504 F.2d 1380 (1974). We need not decide whether, if faced with a set of facts like those of Toscanino , we might find that decision helpful. The allegations of official participation by United States officers in Lovato’s repatriation (by force) from Mexico fall within the Ker-Frisbie doctrine and an unbroken line of cases in this circuit holding that forcible return to the jurisdiction of the United States constitutes no bar to prosecution once the defendant is found within the United States.

We note further that the Second Circuit, after its decision in Toscanino , has…