UNITED STATES OF AMERICA, PETITIONER V. RENE MARTIN VERDUGO-URQUIDEZ No. 88-1353 In The Supreme Court Of The United States October Term, 1988 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Reply Memorandum For The United States The question presented in this case is whether evidence seized from the overseas residence of a foreign national must be suppressed under the Fourth Amendment because the United States law enforcement officers who conducted the seizure -- in conjunction with, and with the approval of, foreign officials -- did not have a search warrant. The court of appeals answered that question in the affirmative. It reasoned that "(t)he Constitution imposes substantive constraints on the federal government, even when it operates abroad" (Pet. App. 8a). Moreover, the court stated, to "relieve the government" of the warrant requirement in this context "would be to treat foreign searches differently from domestic searches just because they are foreign" (id. at 35a). In our petition, we explained why we believe that the court of appeals' decision is wrong, is at odds with decisions of this Court and of other courts of appeals, and presents a recurring question of substantial importance to American law enforcement overseas. 1. For the most part, respondent does not defend the court of appeals' decision on its own terms. He contends, instead, that the judgment below may be upheld on two other grounds, not addressed by the court of appeals. Relying on those alternative grounds, respondent urges the Court not to review the question presented. a. Respondent first notes (Br. in Opp. 27-28) that at the conclusion of the Mexicali search Commandante Salazar placed the remaining documents in a briefcase and directed the DEA agents to complete their examination of those documents at a later date. Respondent asserts that when, after returning to the United States, the agents opened the briefcase to complete their examination, without first securing a search warrant, they committed an independent violation of the Fourth Amendment, wholly apart from the initial seizure in Mexicali. In light of that subsequent violation of the Fourth Amendment, respondent contends that the Court "need not determine the question presented by petitioner" (id. at 33). That contention is meritless for two reasons. First, respondent does not and cannot show that the tally sheet -- which is the only document seized from respondent's residence that the government seeks to offer at trial (see Pet. App. 29a) -- was in fact one of the documents that Salazar placed in the briefcase. The lower courts made no such finding, and there is no evidence in the record to support such a finding. /1/ Second, even if the tally sheet was in fact contained in the briefcase, the Fourth Amendment would not prohibit the agents from opening the briefcase upon their return to the United States. As the trial court found (Pet. App. 89a), Agent Bowen was already in the process of examining the remaining documents when Commandante Salazar placed them in the briefcase. And as this Court explained in United States v. Jacobsen, 466 U.S. 109 (1984), "(t)he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated" (id. at 117). "Merely inspecting (documents) that c(o)me into view during (an earlier) search (does) not * * * constitute() an independent search, because it * * * produce(s) no additional invasion of respondent's privacy interest." Arizona v. Hicks, 480 U.S. 321, 325 (1987). Because the DEA agents had already seized the documents and had begun to examine them when Commandante Salazar placed them in the briefcase, the agents were not precluded by the Fourth Amendment from reopening the briefcase and completing the examination. Accordingly, if the initial seizure in Mexicali was lawful -- and that is the question presented in this case -- then the continued examination of the documents in the United States was lawful as well. See also United States v. Felton, 753 F.2d 256, 260-261 (3d Cir. 1985); United States v. Morgan, 744 F.2d 1215, 1219-1221 (6th Cir. 1984). b. Second, respondent urges (Br. in Opp. 48-52) the Court to decline to consider the question presented because "the conduct of DEA agents in conjunction with foreign officials" in "kidnapping" respondent from Mexico violated the Due Process Clause of the Fifth Amendment. But "(t)his Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444 (1886), that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.'" Frisbie v. Collins, 342 U.S. 519, 522 (1952). Accord United States v. Crews, 445 U.S. 463, 474 (1980); Gerstein v. Pugh, 420 U.S. 103, 119 (1975). Nor does it matter that respondent was seized in purported "disregard for Mexican, United States and International law" (Br. in Opp. 52). See Frisbie, 342 U.S. at 522-523 (the fact that defendant was seized in purported violation of the Federal Kidnapping Act does not bar prosecution). As the Court explained in Frisbie, "(t)here is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will" (id. at 522). This Court's decisions in United States v. Russell, 411 U.S. 423 (1973), and Rochin v. California, 342 U.S. 165 (1952), on which respondent relies (Br. in Opp. 48-49), are not to the contrary. In rejecting an entrapment claim in Russell, this Court acknowledged that it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction" (411 U.S. at 431-432). Similarly, in Rochin, the Court held that evidence may be suppressed on due process grounds when the manner in which the government obtains the evidence offends the decencies of a civilized society. Neither case, however, applies by its terms to the manner in which jurisdiction over the defendant is acquired, and neither case calls into question the decisions in Ker and Frisbie. Finally, and in any event, the courts that have addressed the defense of outrageous government conduct have emphasized that "'the due process channel which Russell kept open is a most narrow one'" and that "(t)he outrageous government conduct defense is available only where 'the government is so involved in the criminal endeavor that it shocks (the) sense of justice.'" United States v. Stenberg, 803 F.2d 422, 429 (9th Cir. 1986) (citation omitted). See, e.g., United States v. Nations, 764 F.2d 1073, 1077 (5th Cir. 1985) (emphasis in original) ("the outrageous government conduct defense is available only upon proof of government overinvolvement in the charged crime"); United States v. Tobias, 662 F.2d 381, 386 (5th Cir. 1981) (same), cert. denied, 457 U.S. 1108 (1982). See also United States v. Kelly, 707 F.2d 1460, 1468 (D.C. Cir.), cert. denied, 464 U.S. 908 (1983); United States v. Myers, 692 F.2d 823 (2d Cir. 1982), cert. denied, 461 U.S. 961 (1983). In the present case, the trial court found that "(a)tno time was (respondent) beaten, tortured, physically struck or verbally threatened or tormented" (Excerpt of Record 75). The court accordingly concluded that respondent's apprehension did not rise "to the level of an act so shocking the conscience that dismissal (of the indictment) is warranted" (id. at 80). /2/ 2. When respondent turns finally to the merits of the question presented, he offers little to contradict the reasons that favor further review by this Court. Respondent contends at length (Br. in Opp. 34-38) that the courts of appeals have applied the Fourth Amendment to searches and seizures conducted as "joint ventures" between American and foreign officials. He does not dispute, however, that both this Court and the D.C. Circuit have broadly rejected the extraterritorial application of the Constitution to claims by foreign nationals. See United States v. Belmont, 301 U.S. 324, 332 (1937); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); Pauling v. McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir.), cert. denied, 364 U.S. 835 (1960). Respondent also argues (Br. in Opp. 41-45) that aliens within this country have been afforded constitutional protection against certain domestic actions taken against them by the government. He does not explain, however, why the Fourth Amendment must therefore be applied to overseas searches and seizures of the property of a foreign national. Finally, respondent fails to come to grips with the impracticability of the Warrant Clause in the context of overseas searches and seizures. He states (Br. in Opp. 53-54) that the Mexican authorities showed "great deference" (id. at 54) to an American arrest warrant, when they seized respondent and delivered him to the custody of United States officials. Respondent asserts that the readiness of the Mexicans to honor the arrest warrant undermines our view -- and the view of the court of appeals, for that matter -- that an American search warrant "would be a dead letter in Mexico" (Pet. App. 35a). But the circumstances of respondent's arrest by the Mexican authorities proves our point precisely. As the trial court found, the United States agents were required to contact Mexican officials and "persuade() them to apprehend (respondent)" (Excerpt of Record 75). Although the American agents were thereafter in the vicinity of the arrest, they "did not directly participate in the apprehension" (ibid.). Rather, the Mexican authorities planned respondent's arrest and were entirely responsible for its execution. In short, the execution of respondent's arrest confirms our view (Pet. 14-17) that, in the context of searches and seizures abroad, American agents must defer to the primary authority of their hosts, and that the conventional purposes of a search warrant are therefore rendered largely irrelevant. /3/ For the foregoing reasons and those stated in our petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. WILLIAM C. BRYSON Acting Solicitor General APRIL 1989 /1/ If anything, the evidence suggests just the opposite. The documents placed inside the briefcase at Salazar's direction were seized from "the back area of the house where there (were) some large cabinets with shelves" (10/23/86 Tr. 346). By contrast, in a related prosecution of one of respondent's confederates, the government has adduced evidence showing that the tally sheet was found inside a briefcase in a closet just off the master bedroom in the Mexicali residence. See United States v. Jones, No. 86-0961, 6/11/87 Tr. 1239-1241. /2/ In reaching that result, the trial court distinguished (Excerpt of Record 79-80) the Second Circuit's decision in United States v. Toscanino, 500 F.2d 267 (1974). In Toscanino, the court of appeals held that a defendant was entitled to a hearing on his allegation that he had been apprehended and brought to the United States for trial in violation of due process. Among other things, the defendant in Toscanino claimed that he had been knocked unconscious in Uruguay, driven to Brazil, held for some time at gunpoint, denied food and water for an extended period of time, kicked, beaten, subjected to electric shocks throughout his body, and only then placed on a plane destined for the United States. See 500 F.2d at 269-270. No such allegations have been made in the present case. /3/ Respondent suggests (Br. in Opp. 55-56) that the government never argued in the courts below the impracticability of securing an American warrant to search overseas. That is not so. See Government's Response and Opposition to Defendants' Motions, Excerpt of Record 228; Gov't C.A. Br. 18. And both the district court (see Pet. 94a-98a) and the court of appeals (see id. at 34a-36a) addressed that issue at length. Moreover, although respondent contends (Br. in Opp. 56-57) that the applicability of the Warrant Clause depends upon "a set of facts incompletely developed at the lower court level" (id. at 57), he fails to explain how "the circumstances of the 'seizure' of respondent * * * by Mexican officials" or "the DEA agents' knowledge of the corrupt reputation of the officials" (id. at 56) bears on that aspect of the question presented.