United States v. Cournoyer

UNITED STATES,

v.JIMMY COURNOYER, Defendant

12-CR-65

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: December 14, 2012

MEMORANDUM AND ORDER

TOWNES, United States District Judge:

Jimmy Cournoyer ("Cournoyer" or "Defendant") is one of several defendants charged in an international narcotics conspiracy. He has filed motions (1) to dismiss the indictment without prejudice for violation of due process, violation of international law, and unlawful attainment of jurisdiction over the person; (2) to sever; and (3) to transfer the case to the Northern District of New York. For the reasons stated below, Defendant's motions are denied in their entirety.

BACKGROUND

On January 20, 2012, a Grand Jury sitting in this district returned an indictment charging Cournoyer and others in a conspiracy to import narcotics from Canada via the Akwesasne Native American Reservation, which straddles the international border in upstate New York. The indictment charges Cournoyer with, inter alia, engaging in a continuing criminal enterprise, conspiracy to import marijuana, conspiracy to distribute marijuana, conspiracy to export cocaine, conspiracy to distribute cocaine, use of firearms, and money laundering. The indictment further gives notice that, upon conviction, the government will seek forfeiture of proceeds in the sum of $800,000,000.

Following the indictment, the U.S. requested the issuance of a Red Notice through the International Criminal Police Organization, popularly known as "Interpol." On February 16th, 2012, Defendant flew from Canada to Cancun, Mexico. Mexican authorities denied Defendant entry into Mexico and placed him under detention. One day later, Mexican authorities forced Defendant to board a flight to Canada, with a scheduled stop in Houston, Texas. In Houston, American agents boarded the flight and placed Defendant under arrest.

Defendant and the government offer disparate accounts of what occurred during Defendant's detention in Mexico. The government asserts that, over twenty-four hours, Mexican authorities made four attempts to expel Defendant by placing him on flights to Canada, each flight having a stop-over in the U.S. Government's Response in Opposition to Defendant Jimmy Cournoyer's Pretrial Motions, p. 10. On the first three occasions Cournoyer became physically violent and had to be removed from the flight. Id. On the fourth occasion, "Mexican authorities finally succeeded in expelling Cournoyer by sending several Mexican law enforcement officers onto a commercial flight to accompany him." Id. p. 11.

Defendant, on the other hand, asserts that he was detained by Mexican authorities "for over thirty-two hours without food, drink or bedding." Defendant Jimmy Cournoyer's Memorandum of Law in Support of his Motion to Dismiss, p. 2. Mexican authorities locked Defendant in a detention room, told Defendant that he was on a "blacklist," jeered at Defendant "in order to exhaust and distress [Defendant] so that he [might] be coerced into boarding a flight to the United States," and denied Defendant access to the Canadian Embassy and an attorney. Id. pp. 2-4. A Mexican officer told Cournoyer that if he did not board the next plane to Los Angeles, he would suffer repercussions, "which [Cournoyer] believed to mean that he would be killed." Id. p. 3 Finally, "twenty armed guards stormed [Cournoyer's] cell."Id. p. 4. One of the guards"stomped" on Cournoyer's hand. Id. Another guard "choked [Cournoyer] to a near loss of consciousness. Id. p. 5. The guards covered Cournoyer's head with a hood and escorted Cournoyer onto a plane where Cournoyer "was seated in the last row with his hands and feet shackled together and to the floor, forcing [Cournoyer's] body to hunch over so that his head was in his lap." Id. Defendant claims that the Mexican authorities were "operating under the explicit direction of the United States government," id. p. 2, and that the actions of the Mexican authorities constitute "physical and mental torture," warranting dismissal of the indictment, id. p. 5. See also Reply Memorandum in Further Support of Jimmy Cournoyer's Motion to Dismiss, pp. 1-4.

DISCUSSION

1. Motion to Dismiss the Indictment

Cournoyer requests that this court dismiss the indictment and claims violation of his rights under the Due Process Clause, international law, and the Fourth Amendment. Each of these claims will be dealt with in turn.

a. Due Process

Due process does not afford a criminal defendant a right to exclude his own body from the jurisdiction of a court. See Frisbie v. Collins, 342 U.S. 519 at 522 (1952) ("[T]he power of a court to try a person for [a] crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a forcible abduction.") (citing Ker v. Illinois, 119 U.S. 436 (1886)); United States v. Crews, 445 U.S. 463, 474 (1980) ("An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution.... [The defendant] is not himself a suppressible 'fruit,' and the illegality of his detention cannot deprive the Government of theopportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct."); United States v. Alvarez-Machain, 504 U.S. 655, 662 (1992) (reaffirming Ker-Frisbie doctrine); Brown v. Doe, 2 F.3d 1236, 1243 (2d Cir. 1993) (noting that "there is no authority for barring the prosecution of a defendant who was illegally taken into custody"); U.S. v. Yousef, 2011 WL 2899244 *6 (S.D.N.Y 2011) ("[T]he use of unconventional methods to secure a defendant's appearance in the United States does not strip the Government of the power to prosecute that defendant.... [T]here is no exclusionary rule relative to the defendant himself.") (Keenan, J.); U.S. v. Umeh, 762 F.Supp.2d 658, 661-662 (S.D.N.Y. 2011) ("[W]hile police brutality or other misconduct may lead to suppression of a defendant's statements or other evidence garnered thereby, it does not lead to the dismissal of the indictment.") (Rakoff, J.); U.S. v. Ghailani, 751 F.Supp.2d 502, 506 (S.D.N.Y. 2010) ("[T]he Court explicitly has refused to adopt an exclusionary rule that would operate on the defendant's person.") (Kaplan, J.).

Faced with this weight of precedent, Defendant centers his argument on the Second Circuit case of United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). Before his trial on narcotics charges, Toscanino, a citizen of Italy, offered to prove that he had been kidnapped in Uruguay, brought to Brazil, and there tortured for seventeen days by agents of the United States government. Toscanino, 500 F.2d at 268-271. The district court denied Toscanino's motion without a hearing and Toscanino was convicted. Id. The Second Circuit held that "due process [requires] a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as a result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights." Id. at 275. The court remanded the case with instructions that the district court hold an evidentiary hearing "if [Toscanino] offers some credible supporting evidence, including specifically evidence that the action was taken by or at the direction ofUnited States officials." Id. at 281. On remand, the district court held that Toscanino had failed to put forward credible evidence and denied the request for an evidentiary hearing. United States v. Toscanino, 398 F.Supp. 916, 917 (E.D.N.Y. 1975).

Although Toscanino has never been overruled, it is questionable whether it is still good law. See Umeh, 762 F.Supp.2d at 663 ("[I]t is reasonably clear that Toscanino is no longer good law."); Ghailani, 751 F.Supp.2d at 507 (noting that "it is doubtful that Toscanino remains authoritative"). Indeed, a year after Toscanino the Second Circuit essentially limited Toscanino to its "shocking and outrageous" facts, stating that it "did not intend to suggest [in Toscanino] that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would vitiate the proceedings of the criminal court." United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir. 1975) (rejecting claim that unlawful abduction without torture required dismissal). In the subsequent decades, no court has ever applied Toscanino to dismiss an indictment, and the authority of the decision has been eroded by the ill-favor to which its legal premises have fallen.

The first premise of Toscanino was that the Ker-Frisbie doctrine could "[not] be reconciled with the Supreme Court's expansion of the concept of due process." Toscanino, 500 F.2d at 275 (citing Mapp v. Ohio, 367 U.S. 643 (1961), Wong Sun v. United States, 371 U.S. 471 (1963), and Miranda v. Arizona, 384 U.S. 436 (1966)). However, the Supreme Court's repeated reaffirmations of the Ker-Frisbie doctrine in the intervening years have given this premise a hollow ring. See Alvarez-Machain, 504 U.S. at 669-662; Immigration & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1039-1040 (1984); Crews, 445 U.S. at 474; Stone v. Powell, 428 U.S. 465, 485 (1976); Gerstein v. Pugh, 420 U.S. 103, 119 (1975). The second premise of Toscanino was that Rochin v. California, 342 U.S. 165 (1952) grants courts a roving power to "bar prosecution altogether where it resulted from flagrantly illegal law enforcement practices."Toscanino, 500 F.2d at 274 (citing United States v. Russell, 411 U.S. 423, 431-432 (1973)). This might have been a plausible reading of Justice Frankfurter's opinion in 1952, or indeed in 1974, but not in 2012. In Brown, for example, the Second Circuit itself said that "Rochin stands at most for the proposition that a prosecution may effectively be foreclosed by exclusion of evidence tainted by a Fourth Amendment violation." Brown, 2 F.3d at 1243.¹ With its legal foundation removed, Toscanino is no longer authoritative.

However, even assuming that Toscanino remains good law, Cournoyer is not entitled to an...