The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Francisco Torres-Garcia is charged alone, in a two-count indictment, with narcotics trafficking and money-laundering. The charges stem from an alleged conspiracy, with unindicted coconspirators, to import cocaine and methamphetamine into the United States from Latin America. Mr. Torres-Garcia filed two motions to dismiss the indictment: (1) for lack of jurisdiction because, he asserts, the Government illegally abducted him from Panama; and (2) for improper venue because, he argues, there is no factual nexus to the District of Columbia. As explained below, the Court will deny the motions to dismiss.
On July 21, 2005, the government filed a two-count indictment against Mr. Torres-Garcia, a citizen and resident of Mexico, in the United States District Court for the District of Columbia. The Grand Jury in Washington, D.C. indicted Torres-Garcia for: (1) conspiring and attempting to distribute five kilograms or more of cocaine and 500 grams or more of methamphetamine, intending and knowing that the drugs will be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 963, 960(a)(1), 960(a)(3), 960(b)(1)(B)(ii), 960(b)(1)(H) and 18 U.S.C. §2; and (2) conspiring to launder monetary instruments, in violation of 18 U.S.C. §§ 1956(h), 1956(a)(2) and 1956(a)(3) and 18 U.S.C. § 2. A magistrate judge issued an arrest warrant for Mr. Torres-Garcia on the same day as the indictment.
On August 3, 2005, this arrest warrant was entered into INTERPOL's international database, alerting police agencies world-wide that the defendant was wanted in the United States. Panama is a member country of INTERPOL and its police authorities have access to this database. Thereafter, an undercover agent of the Drug Enforcement Administration ("DEA"), who had twice met with Mr. Torres-Garcia in Panama, scheduled a third meeting with him in Panama for August 8, 2005. On August 7, Mr. Torres-Garcia flew to Panama for this meeting. Mr. Torres-Garcia proffers that after stepping off the plane and onto the passenger bridge, he was detained by DEA agents, who escorted him out a side door in the passenger bridge, down a flight of stairs, and onto the tarmac to an awaiting car. He was then taken to a U.S. plane, on which he was flown to Fort Lauderdale, Florida., via Guantanamo Bay, Cuba. The Government elaborates that it secured custody of Mr. Torres-Garcia by working with the Panamanian authorities, proffering that, upon his arrival in Panama, Mr. Torres-Garcia was met at the plane by Panamanian officers, who confirmed his identity, denied him admission to Panama, and escorted him from the gate to the tarmac, where DEA officials waited.
Also in August 2005, the Government filed a criminal complaint against Mr. Torres-Garcia and four alleged coconspirators in the Northern District of Illinois, charging them with money laundering and narcotics conspiracy. A few weeks later, on September 6, 2005, that complaint was replaced with a one-count indictment charging the same defendants with a narcotics conspiracy. Neither indictment provides factual details. However, Mr. Torres-Garcia and the Government appear to agree that the affidavit attached to the Illinois indictment provides the relevant background facts. In essence, the Government alleges that Mr. Torres-Garcia, operating from Mexico, directed the activities of coconspirators located in Illinois and Texas. The parties agree that Mr. Torres-Garcia did not set foot in the United States.
Mr. Torres-Garcia contends that (a) the U.S. government's conduct leaves this Court without jurisdiction to hear this case, and also contends that (b) a person operating outside the United States in a conspiracy to manufacture or distribute controlled substances outside the territory of any state has a Constitutional and statutory right to be tried only in a district where co-conspirators committed overt acts.
Mr. Torres-Garcia's jurisdictional argument is twofold. First, he argues that the Government violated the United States's extradition treaty with Panama by essentially kidnapping him in Panama after his flight landed but before he passed through customs. The Government does not assert that it complied with the extradition treaty; in fact, it denies that it is required to use the extradition process. Second, Mr. Torres-Garcia argues that the Government's "outrageous" conduct is an independent basis for dismissal of the Indictment.
1. U.S.--Panama Extradition Treaty
This issue is controlled by the Supreme Court's decision in United States v. Alvarez-Machain, 504 U.S. 655 (1992), and the D.C. Circuit's recent decision in United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006), cert. denied, 127 S.Ct. 989 (2007). In Alvarez-Machain, the Supreme Court sanctioned the use of forcible kidnapping of a criminal defendant, outside the provisions of an extradition treaty, so long as the extradition treaty does not provide the exclusive method for obtaining custody of the defendant. In doing so, it reaffirmed the rule first announced in Ker v. Illinois, 119 U.S. 436, 444 (1886), that:
[T]he power of a court to try a person is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a forcible abduction. . . . [D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized [sic] of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There 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.
Alvarez-Machain, 504 U.S. at 662 (quoting Frisbie v. Collins, 342 U.S. 519, 522 (1952)) (internal quotation marks omitted). The Alvarez-Machain Court set forth the following framework to evaluate jurisdictional challenges that hinge on the interpretation of an extradition treaty:
[O]ur first inquiry must be whether the abduction of respondent from Mexico violated the Extradition Treaty between the United States and Mexico. If we conclude that the Treaty does not prohibit respondent's abduction, the rule in Ker applies, and ...