The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_712/91_712.zo

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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 91-712
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UNITED STATES, PETITIONER v. HUMBERTO
ALVAREZ-MACHAIN
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 15, 1992]

  The Chief Justice  delivered the opinion of the Court.
  The issue in this case is whether a criminal defendant,
abducted to the United States from a nation with which it
has an extradition treaty, thereby acquires a defense to the
jurisdiction of this country's courts.  We hold that he does
not, and that he may be tried in federal district court for
violations of the criminal law of the United States.
   Respondent, Humberto Alvarez-Machain, is a citizen and
resident of Mexico.  He was indicted for participating in the
kidnap and murder of United States Drug Enforcement
Administration (DEA) special agent Enrique Camarena-
Salazar and a Mexican pilot working with Camarena,
Alfredo Zavala-Avelar.  The DEA believes that respondent,
a medical doctor, participated in the murder by prolonging
agent Camarena's life so that others could further torture
and interrogate him.  On April 2, 1990, respondent was

forcibly kidnapped from his medical office in Guadalajara,
Mexico, to be flown by private plane to El Paso, Texas,
where he was arrested by DEA officials.  The District Court
concluded that DEA agents were responsible for respond-
ent's abduction, although they were not personally involved
in it.  United States v. Caro-Quintero, 745 F. Supp. 599,
602-604, 609 (CD Cal. 1990).
  Respondent moved to dismiss the indictment, claiming
that his abduction constituted outrageous governmental
conduct, and that the District Court lacked jurisdiction to
try him because he was abducted in violation of the
extradition treaty between the United States and Mexico.
Extradition Treaty, May 4, 1978, [1979] United States-
United Mexican States, 31 U. S. T. 5059, T. I. A. S. No.
9656 (Extradition Treaty or Treaty).  The District Court
rejected the outrageous governmental conduct claim, but
held that it lacked jurisdiction to try respondent because
his abduction violated the Extradition Treaty.  The district
court discharged respondent and ordered that he be
repatriated to Mexico.  Caro-Quintero, supra, at 614.
  The Court of Appeals affirmed the dismissal of the
indictment and the repatriation of respondent, relying on
its decision in United States v. Verdugo-Urquidez, 939 F. 2d
1341 (CA9 1991), cert. pending, No. 91-670.  946 F. 2d 1466
(1991).  In Verdugo, the Court of Appeals held that the
forcible abduction of a Mexican national with the authoriza-
tion or participation of the United States violated the
Extradition Treaty between the United States and Mexico.
Although the Treaty does not expressly prohibit such
abductions, the Court of Appeals held that the -purpose- of
the Treaty was violated by a forcible abduction, 939 F. 2d,
at 1350, which, along with a formal protest by the offended
nation, would give a defendant the right to invoke the
Treaty violation to defeat jurisdiction of the district court to
try him.  The Court of Appeals further held that the
proper remedy for such a violation would be dismissal of the
indictment and repatriation of the defendant to Mexico.
     In the instant case, the Court of Appeals affirmed the
district court's finding that the United States had autho-
rized the abduction of respondent, and that letters from the
Mexican government to the United States government
served as an official protest of the Treaty violation.
Therefore, the Court of Appeals ordered that the indictment
against respondent be dismissed and that respondent be
repatriated to Mexico.  946 F. 2d, at 1467.  We granted
certiorari, 502 U. S. -- (1992), and now reverse.
  Although we have never before addressed the precise
issue raised in the present case, we have previously
considered proceedings in claimed violation of an extradi-
tion treaty, and proceedings against a defendant brought
before a court by means of a forcible abduction.  We
addressed the former issue in United States v. Rauscher,
119 U. S. 407 (1886); more precisely, the issue of whether
the Webster-Ashburton Treaty of 1842, 8 Stat. 576, which
governed extraditions between England and the United
States, prohibited the prosecution of defendant Rauscher for
a crime other than the crime for which he had been
extradited.  Whether this prohibition, known as the doctrine
of specialty, was an intended part of the treaty had been
disputed between the two nations for some time.  Rauscher,
119 U.S., at 411.  Justice Miller delivered the opinion of the
Court, which carefully examined the terms and history of
the treaty; the practice of nations in regards to extradition
treaties; the case law from the states; and the writings of
commentators, and reached the following conclusion:
-[A] person who has been brought within the jurisdic-
tion of the court by virtue of proceedings under an
extradition treaty, can only be tried for one of the
offences described in that treaty, and for the offence
with which he is charged in the proceedings for his
extradition, until a reasonable time and opportunity
have been given him, after his release or trial upon
such charge, to return to the country from whose
asylum he had been forcibly taken under those proceed-
ings.-  Id., at 430 (emphasis added).
In addition, Justice Miller's opinion noted that any doubt as
to this interpretation was put to rest by two federal statutes
which imposed the doctrine of specialty upon extradition
treaties to which the United States was a party.  Id., at
423.  Unlike the case before us today, the defendant in
Rauscher had been brought to the United States by way of
an extradition treaty; there was no issue of a forcible
abduction.
  In Ker v. Illinois, 119 U. S. 436 (1886), also written by
Justice Miller and decided the same day as Rauscher, we
addressed the issue of a defendant brought before the court
by way of a forcible abduction.  Frederick Ker had been
tried and convicted in an Illinois court for larceny; his
presence before the court was procured by means of forcible
abduction from Peru.  A messenger was sent to Lima with
the proper warrant to demand Ker by virtue of the extradi-
tion treaty between Peru and the United States.  The
messenger, however, disdained reliance on the treaty
processes, and instead forcibly kidnapped Ker and brought
him to the United States.  We distinguished Ker's case
from Rauscher, on the basis that Ker was not brought into
the United States by virtue of the extradition treaty
between the United States and Peru, and rejected Ker's
argument that he had a right under the extradition treaty
to be returned to this country only in accordance with its
terms.  We rejected Ker's due process argument more
broadly, holding in line with -the highest authorities- that
-such forcible abduction is no sufficient reason why the
party should not answer when brought within the jurisdic-
tion of the court which has the right to try him for such an
offence, and presents no valid objection to his trial in such
court.-  Ker, supra, at 444.
  In Frisbie v. Collins, 342 U. S. 519, rehearing denied, 343
U. S. 937 (1952), we applied the rule in Ker to a case in
which the defendant had been kidnapped in Chicago by
Michigan officers and brought to trial in Michigan.  We
upheld the conviction over objections based on the due
process clause and the Federal Kidnapping Act and stated:
       -This Court has never departed from the rule an-
nounced in [Ker] 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.'  No persuasive reasons are now
presented to justify overruling this line of cases.  They
rest on the sound basis that due process of law is
satisfied when one present in court is convicted of
crime after having been fairly apprized 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.-
Frisbie, supra, at 522 (citation and footnote omitted).
    The only differences between Ker and the present case
are that Ker was decided on the premise that there was no
governmental involvement in the abduction, 119 U. S., at
443; and Peru, from which Ker was abducted, did not object
to his prosecution.  Respondent finds these differences to
be dispositive, as did the Court of Appeals in Verdugo, 939
F. 2d, at 1346, contending that they show that respondent's
prosecution, like the prosecution of Rauscher, violates the
implied terms of a valid extradition treaty.  The Govern-
ment, on the other hand, argues that Rauscher stands as an
-exception- to the rule in Ker only when an extradition
treaty is invoked, and the terms of the treaty provide that
its breach will limit the jurisdiction of a court.  Brief for
United States 17.  Therefore, our 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 the
court need not inquire as to how respondent came before it.
  In construing a treaty, as in construing a statute, we first
look to its terms to determine its meaning.  Air France v.
Saks, 470 U. S. 392, 397 (1985); Valentine v. United States
ex. rel. Neidecker, 299 U. S. 5, 11 (1936).  The Treaty says
nothing about the obligations of the United States and
Mexico to refrain from forcible abductions of people from
the territory of the other nation, or the consequences under
the Treaty if such an abduction occurs.  Respondent
submits that Article 22(1) of the Treaty which states that
it -shall apply to offenses specified in Article 2 [including
murder] committed before and after this Treaty enters into
force,- 31 U. S. T., at 5073-5074, evidences an intent to
make application of the Treaty mandatory for those
offenses.  However, the more natural conclusion is that
Article 22 was included to ensure that the Treaty was
applied to extraditions requested after the Treaty went into
force, regardless of when the crime of extradition
occurred.
  More critical to respondent's argument is Article 9 of the
Treaty which provides:
``1.  Neither Contracting Party shall be bound to deliver
up its own nationals, but the executive authority of the
requested Party shall, if not prevented by the laws of
that Party, have the power to deliver them up if, in its
discretion, it be deemed proper to do so.
``2.  If extradition is not granted pursuant to paragraph
1 of this Article, the requested Party shall submit the
case to its competent authorities for the purpose of
prosecution, provided that Party has jurisdiction over
the offense.''  Id., at 5065.
According to respondent, Article 9 embodies the terms of
the bargain which the United States struck:  if the United
States wishes to prosecute a Mexican national, it may
request that individual's extradition.  Upon a request from
the United States, Mexico may either extradite the individ-
ual, or submit the case to the proper authorities for
prosecution in Mexico.  In this way, respondent reasons,
each nation preserved its right to choose whether its
nationals would be tried in its own courts or by the courts
of the other nation.  This preservation of rights would be
frustrated if either nation were free to abduct nationals of
the other nation for the purposes of prosecution.  More
broadly, respondent reasons, as did the Court of Appeals,
that all the processes and restrictions on the obligation to
extradite established by the Treaty would make no sense if
either nation were free to resort to forcible kidnapping to
gain the presence of an individual for prosecution in a
manner not contemplated by the Treaty.  Verdugo, supra,
at 1350.
  We do not read the Treaty in such a fashion.  Article 9
does not purport to specify the only way in which one
country may gain custody of a national of the other country
for the purposes of prosecution.  In the absence of an
extradition treaty, nations are under no obligation to
surrender those in their country to foreign authorities for
prosecution.  Rauscher, 119 U. S., at 411-412; Factor v.
Laubenheimer, 290 U. S. 276, 287 (1933); cf. Valentine v.
United States ex. rel. Neidecker, supra, at 8-9 (United
States may not extradite a citizen in the absence of a
statute or treaty obligation).  Extradition treaties exist so
as to impose mutual obligations to surrender individuals in
certain defined sets of circumstances, following established
procedures.  See 1 J. Moore, A Treatise on Extradition and
Interstate Rendition,  72 (1891).  The Treaty thus provides
a mechanism which would not otherwise exist, requiring,
under certain circumstances, the United States and Mexico
to extradite individuals to the other country, and establish-
ing the procedures to be followed when the Treaty is
invoked.
  The history of negotiation and practice under the Treaty
also fails to show that abductions outside of the Treaty
constitute a violation of the Treaty.  As the Solicitor
General notes, the Mexican government was made aware,
as early as 1906, of the Ker doctrine, and the United States'
position that it applied to forcible abductions made outside
of the terms of the United States-Mexico extradition
treaty.  Nonetheless, the current version of the Treaty,
signed in 1978, does not attempt to establish a rule that
would in any way curtail the effect of Ker.  Moreover,
although language which would grant individuals exactly
the right sought by respondent had been considered and
drafted as early as 1935 by a prominent group of legal
scholars sponsored by the faculty of Harvard Law School,
no such clause appears in the current treaty.
  Thus, the language of the Treaty, in the context of its
history, does not support the proposition that the Treaty
prohibits abductions outside of its terms.  The remaining
question, therefore, is whether the Treaty should be
interpreted so as to include an implied term prohibiting
prosecution where the defendant's presence is obtained by
means other than those established by the Treaty.  See
Valentine, 299 U. S., at 17 (-Strictly the question is not
whether there had been a uniform practical construction
denying the power, but whether the power had been so
clearly recognized that the grant should be implied-).
  Respondent contends that the Treaty must be interpreted
against the backdrop of customary international law, and
that international abductions are -so clearly prohibited in
international law- that there was no reason to include such
a clause in the Treaty itself.  Brief for Respondent 11.  The
international censure of international abductions is further
evidenced, according to respondent, by the United Nations
Charter and the Charter of the Organization of American
States.  Id., at 17.  Respondent does not argue that these
sources of international law provide an independent basis
for the right respondent asserts not to be tried in the
United States, but rather that they should inform the
interpretation of the Treaty terms.
  The Court of Appeals deemed it essential, in order for the
individual defendant to assert a right under the Treaty,
that the affected foreign government had registered a
protest.  Verdugo, 939 F. 2d, at 1357 (-in the kidnapping
case there must be a formal protest from the offended
government after the kidnapping-).  Respondent agrees that
the right exercised by the individual is derivative of the
nation's right under the Treaty, since nations are autho-
rized, notwithstanding the terms of an extradition treaty,
to voluntarily render an individual to the other country on
terms completely outside of those provided in the Treaty.
The formal protest, therefore, ensures that the -offended-
nation actually objects to the abduction and has not in some
way voluntarily rendered the individual for prosecution.
Thus the Extradition Treaty only prohibits gaining the
defendant's presence by means other than those set forth in
the Treaty when the nation from which the defendant was
abducted objects.
     This argument seems to us inconsistent with the
remainder of respondent's argument.  The Extradition
Treaty has the force of law, and if, as respondent asserts, it
is self-executing, it would appear that a court must enforce
it on behalf of an individual regardless of the offensiveness
of the practice of one nation to the other nation.  In
Rauscher, the Court noted that Great Britain had taken the
position in other cases that the Webster-Ashburton Treaty
included the doctrine of specialty, but no importance was
attached to whether or not Great Britain had protested the
prosecution of Rauscher for the crime of cruel and unusual
punishment as opposed to murder.
  More fundamentally, the difficulty with the support
respondent garners from international law is that none of
it relates to the practice of nations in relation to extradition
treaties.  In Rauscher, we implied a term in the Webster-
Ashburton Treaty because of the practice of nations with
regard to extradition treaties.  In the instant case, respon-
dent would imply terms in the extradition treaty from the
practice of nations with regards to international law more
generally.  Respondent would have us find that the
Treaty acts as a prohibition against a violation of the
general principle of international law that one government
may not -exercise its police power in the territory of
another state.-  Brief for Respondent 16.  There are many
actions which could be taken by a nation that would violate
this principle, including waging war, but it cannot seriously
be contended an invasion of the United States by Mexico
would violate the terms of the extradition treaty between
the two nations.
     In sum, to infer from this Treaty and its terms that it
prohibits all means of gaining the presence of an individual
outside of its terms goes beyond established precedent and
practice.  In Rauscher, the implication of a doctrine of
specialty into the terms of the Webster-Ashburton treaty
which, by its terms, required the presentation of evidence
establishing probable cause of the crime of extradition
before extradition was required, was a small step to take.
By contrast, to imply from the terms of this Treaty that it
prohibits obtaining the presence of an individual by means
outside of the procedures the Treaty establishes requires a
much larger inferential leap, with only the most general of
international law principles to support it.  The general
principles cited by respondent simply fail to persuade us
that we should imply in the United States-Mexico Extradi-
tion Treaty a term prohibiting international abductions.
  Respondent and his amici may be correct that respond-
ent's abduction was -shocking,- Tr. of Oral Arg. 40, and that
it may be in violation of general international law princi-
ples.  Mexico has protested the abduction of respondent
through diplomatic notes, App. 33-38, and the decision of
whether respondent should be returned to Mexico, as a
matter outside of the Treaty, is a matter for the Executive
Branch.  We conclude, however, that respondent's abduc-
tion was not in violation of the Extradition Treaty between
the United States and Mexico, and therefore the rule of Ker
v. Illinois is fully applicable to this case.  The fact of
respondent's forcible abduction does not therefore prohibit
his trial in a court in the United States for violations of the
criminal laws of the United States.
  The judgment of the Court of Appeals is therefore
reversed, and the case is remanded for further proceedings
consistent with this opinion.
                                                  So ordered.