United States v. Rene Martin Verdugo-Urquidez

939 F.2d 1341 UNITED STATES of America, Plaintiff-Appellee, v. Rene Martin VERDUGO-URQUIDEZ, Defendant-Appellant. No. 88-5462. * United States Court of Appeals, Ninth Circuit. Argued Feb. 4, 1991. Submitted June 13, 1991. Decided July 22, 1991. Patrick Q. Hall, Goldberg, Frant & Hall, San Diego, Cal., for defendant-appellant. Robert L. Brosio, Asst. U.S. Atty., Chief, Crim. Div., William F. Fahey, Asst. U.S. Atty., Chief, Major Narcotics Section, Steven E. Zipperstein, Asst. U.S. Atty., Chief, Crim. Appeals, Dorothy Shubin, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. William P. Barr, Deputy Atty. Gen., Andrew G. McBride, Associate Deputy Atty. Gen., John E. Barry, Sr. Counsel, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before BROWNING, D.W. NELSON and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 This case presents the question whether the United States breaches its obligations under its extradition treaty with Mexico if it authorizes or sponsors the forcible taking of a Mexican national from that country without the consent of the Mexican…

concurring in part and dissenting in part.

I

The court holds that all extradition treaties to which the United States is a party, including the Mexican-American Extradition Treaty, bar the United States from arresting any suspect within the territory of any other signatory nation. See supra at 1362.

I would rest our holding solely on the ground that Article 9 of the Mexican-American Extradition Treaty bars the United States from arresting a Mexican national like Verdugo within the territory of Mexico. This does not imply that I would disagree with the court’s ruling if I were to reach it, but only that I believe our ruling should be no broader than required for the disposition of the case before us, particularly in a developing area of the law.

Article 9 of the Treaty provides:

The text of Article 9 plainly reveals the intent of each of the contracting nations to retain absolute discretion to decide whether its own nationals shall be tried in its own courts, or in those of the other contracting nation. The Treaty declares “Neither Contracting Party shall be bound to deliver up its own nationals,” Treaty, Article 9, 111, but imposes on each nation an obligation to prosecute…

This case presents the question whether the United States breaches its obligations *1343 under its extradition treaty with Mexico if it authorizes or sponsors the forcible taking of a Mexican national from that country without the consent of the Mexican government. We hold that it does. We further hold that if the Mexican government formally objects to the treaty breach and a defendant timely raises that breach in a pending criminal proceeding the courts of the United States may not exercise personal jurisdiction over that defendant, provided the Mexican government is willing to accept repatriation. In short, under such circumstances a district court may not subject the defendant to trial, and a conviction obtained must be vacated. In view of our holdings, we remand Verdugo-Urquidez’s case to the district court for an evidentiary hearing on the question whether the United States authorized or sponsored his kidnapping and unlawful removal from Mexico to this country without the consent of the Mexican government and on such other matters as may be relevant to the proceeding.

BACKGROUND

Rene Martin Verdugo-Urquidez (“Verdu-go”) is a citizen and resident of Mexico. In January 1986,…