Attorney Says Client Was Kidnaped; Wants Drug Charges Dropped

The attorney for a Mexican national who was brought to the United States to face drug charges after he was allegedly kidnaped by Mexican police paid by U.S. officials said Tuesday that the government’s conduct was outrageous enough to warrant dismissal of the charges.

Howard Frank, attorney for Rene Martin Verdugo, is basing his argument on a 1974 2nd U.S. Court of Appeals decision that dismissed drug charges against an accused South American drug smuggler who charged that he had been kidnaped, tortured and turned over to U.S. agents to stand trial in this country.

U.S. officials have said Verdugo may have information about the slaying of Drug Enforcement Administration (DEA) agent Enrique Camarena. DEA officials believe Camarena was ordered killed by Mexican drug traffickers in Guadalajara, Mexico.

In the 1974 decision, the appellate court overturned Francisco Toscanino’s conviction on grounds that he suffered “cruel, inhuman and outrageous” treatment. Toscanino charged that he was knocked unconscious near his home in Uruguay and taken to Brazil, where he was tortured and interrogated by Brazilian authorities for 17 days. After that he was handed over to DEA agents and put on a plane to New York and arrested.

But the following year the same court ruled that Juventino Lujan, an Argentine accomplice of Toscanino, had to stand trial in the United States on drug charges even if he was kidnaped by U.S. agents in South America. DEA agents lured him from Argentina to Bolivia, where he was seized by Bolivian police. He was then put on a plane to New York, where he was arrested.

While agreeing that Lujan had been kidnaped, the appellate justices ruled that “not every violation by prosecution or police is so egregious that it requires nullification of the indictment.” The court found that the two cases were not identical because Lujan did not claim that he was the victim of “torture, brutality and similar outrageous conduct,” as in the Toscanino case.

In Verdugo’s case, Frank charged that his client was kidnaped by six Mexican nationals, including four officers from the Baja California State Judicial Police, in San Felipe, Baja California. Frank said Verdugo was handcuffed, blindfolded and driven to Mexicali, where he was shoved through a hole in the border fence into the arms of waiting U.S. marshals. He was promptly arrested and brought to San Diego to face charges that in 1983 he smuggled more than a ton of marijuana from Mexico to Tucson and then to Vista.

Frank has not claimed that Verdugo was tortured or beaten during his abduction, but he said that reports that the U.S. government paid the six men to kidnap Verdugo should be enough to “shock the conscience of the court” and lead to a dismissal of the drug charges.

However, some criminal law experts believe that the U.S. Supreme Court has so narrowed the interpretation of the 4th Amendment’s right of protection against illegal search and seizure that federal judges can no longer dismiss a case solely on the “shocking” conduct of U.S. law enforcement agencies.

Stanley Goldman, criminal law expert at Loyola Marymount University Law School in Los Angeles, said that the U.S. Supreme Court has not ruled in kidnaping cases similar to those of Toscanino, Lujan or Verdugo. But Goldman said that if the present court were to rule in such cases, “it would probably be prepared to overlook the offensive conduct of U.S. agents and agencies.”

Even if U.S. government agencies did plan Verdugo’s abduction and paid his abductors, Goldman said, U.S. prosecutors could probably present a convincing argument that there was no violation of U.S. law because the kidnaping took place in a foreign country.

“If the defense attorney is prepared to use the 4th Amendment as a defense, well, the law protects U.S. citizens and aliens living in the United States against unreasonable search and seizure by our government. The law does not apply to a foreign national in a foreign country. And it would be difficult to apply it in a case where a Mexican fugitive wanted in the U.S. was kidnaped by his countrymen and turned over to U.S. authorities.

“There’s no chance in the real world that a court will hold that as illegal conduct. The analogy is much too close to seizing a terrorist and bringing him to the United States to stand trial,” said Goldman.

The U.S. Marshals Service has admitted that Verdugo was handed to them blindfolded and handcuffed. But spokesmen for the service have declined to comment on reports that the alleged kidnapers were paid by U.S. officials. Several government sources have confirmed that the six men and their families are hiding in the United States.

U.S. officials agreed to allow them into the country after the men allegedly received death threats from Mexican drug traffickers who were upset over their collaboration with the DEA and U.S. marshals in Verdugo’s arrest.

The case has raised numerous questions on both sides of the border. A Mexican law enforcement official in Mexicali, who did not want to be identified, said Tuesday that the four policemen “disappeared” Jan. 15 and were summarily fired when they failed to report for work after three days. The U.S. Marshals Service said that Verdugo was arrested Jan. 24, almost 10 days after the policemen’s disappearance.