For the second time in recent months, a federal appeals court ruled Friday that a foreign defendant kidnaped abroad at the behest of U.S. agents cannot be prosecuted here if there is an extradition treaty with the country and its government protests the abduction.
The U.S. 9th Circuit Court of Appeals upheld a lower court decision dismissing five felony charges against Dr. Humberto Alvarez Machain, a suspect in the 1985 kidnaping and murder of U.S. drug agent Enrique Camarena.
Alvarez was abducted in Guadalajara, Mexico, in April, 1990, by Mexican nationals who were paid $50,000 by a Los Angeles operative of the Drug Enforcement Administration.
The kidnaping strained relations between the United States and Mexico, whose officials lodged vigorous protests with the State Department.
On Friday, the appeals court issued a brief decision, saying that it was following the reasoning of an earlier ruling in which the 9th Circuit criticized the kidnaping of another Mexican national in the Camarena case.
The two decisions, in some respects, constitute a significant departure from a long line of federal court rulings.
Since 1886, U.S. courts have generally held that a forcible abduction does not violate due process or prohibit a U.S. court from trying someone after being kidnaped.
However, in its July decision involving Mexican drug trafficker Rene Martin Verdugo Urquidez, the 9th Circuit said there was a vital distinction between his case and those decided earlier.
The judges said none of the previous cases had addressed the question posed by Verdugo's challenge--whether a U.S. court can try a defendant who has been kidnaped from a country with whom the United States has an extradition treaty and when the other country protests the abduction.
The foreign kidnaping issue has become politically thorny in recent years. The Justice Department has argued for aggressive prosecution of drug traffickers and terrorists, including the use of kidnapings abroad, while the State Department has urged a more cautious approach.
William P. Barr, the Justice Department's No. 2 official, who was nominated to be attorney general this week by President Bush, wrote a controversial, internal advisory opinion in 1989 authorizing federal agents to seize fugitives overseas without a foreign government's permission.
Friday's ruling upheld the August, 1990, decision by U.S. District Judge Edward Rafeedie, who held that "the United States violated its extradition treaty with Mexico when it unilaterally abducted" Alvarez.
A group of current and former Mexican law enforcement officers kidnaped Alvarez from his Guadalajara office in April, 1990, flew him to El Paso, Tex., and turned him over to DEA agents there. He was brought to Los Angeles and has been held without bail since then.
Two months before his kidnaping, Alvarez was indicted in Los Angeles. He was accused of administering drugs to revive Camarena while the agent was being interrogated, tortured and murdered by narcotics traffickers at the Guadalajara home of drug kingpin Rafael Caro Quintero.
On Friday, the appeals court said its decision was governed by the ruling in the Verdugo case.
"The Verdugo decision requires the dismissal of the indictment and the repatriation" of Alvarez to Mexico, wrote Appellate Judges Alfred T. Goodwin and Mary M. Schroeder, who were joined by U.S. District Judge Samuel P. King.
Verdugo was arrested in San Felipe, Mexico, in January, 1986, blindfolded, handcuffed, placed in the back seat of a car and driven to the border at Calexico, where he was handed through the fence to waiting U.S. marshals, who had a warrant for his arrest. U.S. authorities have acknowledged paying $32,000 for the transaction.
He now is serving a 240-year prison term stemming from Camarena's murder, but the appeals court ruled in July that he is entitled to a new hearing because of his kidnaping.
The appellate court stressed Friday that the ruling in the Verdugo case applied even more strongly to Alvarez because the Mexican government "made several specific formal diplomatic protests to the United States government" about the doctor's kidnaping and had stated its position unequivocally to the court.
"We're very pleased with the decision and in the recognition that our case is much clearer and stronger than the Verdugo case," said American Civil Liberties Union attorney Paul Hoffman, who handled Alvarez's appeal.
However, it seems unlikely that Alvarez will be released soon. A Justice Department spokesman said late Friday that the government plans to appeal the decision to the U.S. Supreme Court.