United States v. Verdugo-Urquidez

494 U.S. 259 (1990)

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not.

Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization in Mexico that smuggles narcotics into the United States. Based on a complaint charging respondent with various narcotics-related offenses, the Government obtained a warrant for his arrest on August 3, 1985. In January 1986, Mexican police officers, after discussions with United States marshals, apprehended Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico, California. There, United States marshals arrested respondent and eventually moved him to a correctional center in San Diego, California, where he remains incarcerated pending trial.

Following respondent's arrest, Terry Bowen, a DEA agent assigned to the Calexico DEA office, decided to arrange for searches of Verdugo-Urquidez's Mexican residences located in Mexicali and San Felipe. Bowen believed that the searches would reveal evidence related to respondent's alleged narcotics trafficking activities and his involvement in the kidnaping and torture-murder of DEA Special Agent Enrique Camarena Salazar (for which respondent subsequently has been convicted in a separate prosecution. Bowen telephoned Walter White, the Assistant Special Agent in charge of the DEA office in Mexico City, and asked him to seek authorization for the search from the Director General of the Mexican Federal Judicial Police (MFJP). After several attempts to reach high ranking Mexican officials, White eventually contacted the Director General, who authorized the searches and promised the cooperation of Mexican authorities. Thereafter, DEA agents working in concert with officers of the MFJP searched respondent's properties in Mexicali and San Felipe and seized certain documents. In particular, the search of the Mexicali residence uncovered a tally sheet, which the Government believes reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United States.

The District Court granted respondent's motion to suppress evidence seized during the searches, concluding that the Fourth Amendment applied to the searches and that the DEA agents had failed to justify searching respondent's premises without a warrant. A divided panel of the Court of Appeals for the Ninth Circuit affirmed. It cited this Court's decision in Reid v. Covert, 354 U.S. 1 (1957), which held that American citizens tried by United States military authorities in a foreign country were entitled to the protections of the Fifth and Sixth Amendments, and concluded that "The Constitution imposes substantive constraints on the federal government, even when it operates abroad." Relying on our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a majority of Justices assumed that illegal aliens in the United States have Fourth Amendment rights, the Ninth Circuit majority found it "difficult to conclude that Verdugo-Urquidez lacks these same protections." It also observed that persons in respondent's position enjoy certain trial-related rights, and reasoned that "it would be odd indeed to acknowledge that Verdugo-Urquidez is entitled to due process under the fifth amendment, and to a fair trial under the sixth amendment, . . . and deny him the protection from unreasonable searches and seizures afforded under the fourth amendment." Having concluded that the Fourth Amendment applied to the searches of respondent's properties, the court went on to decide that the searches violated the Constitution because the DEA agents failed to procure a search warrant. Although recognizing that "an American search warrant would be of no legal validity in Mexico," the majority deemed it sufficient that a warrant would have "substantial constitutional value in this country," because it would reflect a magistrate's determination that there existed probable cause to search and would define the scope of the search.

The dissenting judge argued that this Court's statement in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), that "neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens," foreclosed any claim by respondent to Fourth Amendment rights. More broadly, he viewed the Constitution as a "compact" among the people of the United States, and the protections of the Fourth Amendment were expressly limited to "the people." We granted certiorari.

Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See Malloy v. Hogan, 378 U.S. 1 (1964). Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. Kastigar v. United States, 406 U.S. 441, 453 (1972). The Fourth Amendment functions differently. It prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable governmental intrusion. United States v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon, 468 U.S. 897, 906 (1984). For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. Whether evidence obtained from respondent's Mexican residences should be excluded at trial in the United States is a remedial question separate from the existence vel non of the constitutional violation.

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy, " "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.… The language of these Amendments contrasts with the words "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. The Framers originally decided not to include a provision like the Fourth Amendment, because they believed the National Government lacked power to conduct searches and seizures…. Many disputed the original view that the Federal Government possessed only narrow delegated powers over domestic affairs, however, and ultimately felt an Amendment prohibiting unreasonable searches and seizures was necessary. Madison, for example, argued that "there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all of the powers vested in the Government of the United States," and that general warrants might be considered "necessary" for the purpose of collecting revenue. The driving force behind the adoption of the Amendment, as suggested by Madison's advocacy, was widespread hostility among the former colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel. The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.

There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters…. The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power…. Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States….

To support his all-encompassing view of the Fourth Amendment, respondent points to language from the plurality opinion in Reid v. Covert, 354 U.S. 1 (1957). Reid involved an attempt by Congress to subject the wives of American servicemen to trial by military tribunals without the protection of the Fifth and Sixth Amendments. The Court held that it was unconstitutional to apply the Uniform Code of Military Justice to the trials of the American women for capital crimes. Four Justices "rejected the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." The plurality went on to say:

"The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." Id., at 5-6 (emphasis added; footnote omitted).

Respondent urges that we interpret this discussion to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. The concurring opinions by Justices Frankfurter and Harlan in Reid resolved the case on much narrower grounds than the plurality and declined even to hold that United States citizens were entitled to the full range of constitutional protections in all overseas criminal prosecutions…. Since respondent is not a United States citizen, he can derive no comfort from the Reid holding.

Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights…. These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with the country. Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not.

Justice Stevens' concurrence in the judgment takes the view that even though the search took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was "lawfully present in the United States ... even though he was brought and held here against his will." But this sort of presence—lawful but involuntary—is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment if the duration of his stay in the United States were to be prolonged—by a prison sentence, for example—we need not decide. When the search of his house in Mexico took place, he had been present in the United States for only a matter of days. We do not think the applicability of the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous circumstance of whether the custodian of its nonresident alien owner had or had not transported him to the United States at the time the search was made.

The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment's exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country….

Respondent also contends that to treat aliens differently from citizens with respect to the Fourth Amendment somehow violates the equal protection component of the Fifth Amendment to the United States Constitution….

Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, 393 U.S. 763 (1950), the result of accepting his claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries. The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in "searches or seizures." The United States frequently employs armed forces outside this country—over 200 times in our history—for the protection of American citizens or national security. Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1989 (E. Collier ed. 1989). Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters….

We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent's claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.

For better or for worse, we live in a world of nation-states in which our Government must be able to "function effectively in the company of sovereign nations." Perez v. Brownell, 356 U.S. 44, 57 (1958). Some who violate our laws may live outside our borders under a regime quite different from that which obtains in this country. Situations threatening to important American interests may arise halfway around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation.

The judgment of the Court of Appeals is accordingly Reversed.

JUSTICE KENNEDY, concurring.

I agree that no violation of the Fourth Amendment has occurred and that we must reverse the judgment of the Court of Appeals. Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join.

In cases involving the extraterritorial application of the Constitution, we have taken care to state whether the person claiming its protection is a citizen, see, e. g., Reid v. Covert, 354 U.S. 1 (1957), or an alien. The distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory. We should note, however, that the absence of this relation does not depend on the idea that only a limited class of persons ratified the instrument that formed our Government. Though it must be beyond dispute that persons outside the United States did not and could not assent to the Constitution, that is quite irrelevant to any construction of the powers conferred or the limitations imposed by it….

I cannot place any weight on the reference to "the people" in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of "the people."

I take it to be correct, as the plurality opinion in Reid v. Covert sets forth, that the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic. But this principle is only a first step in resolving this case. The question before us then becomes what constitutional standards apply when the Government acts, in reference to an alien, within its sphere of foreign operations….

The conditions and considerations of this case would make adherence to the Fourth Amendment's warrant requirement impracticable and anomalous. Just as the Constitution in the Insular Cases did not require Congress to implement all constitutional guarantees in its territories because of their "wholly dissimilar traditions and institutions," the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien. If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply. But that is not this case. The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country. For this reason, in addition to the other persuasive justifications stated by the Court, I agree that no violation of the Fourth Amendment has occurred in the case before us. The rights of a citizen, as to whom the United States has continuing obligations, are not presented by this case.

I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant. Indeed, as Justice Harlan put it, "the question of which specific safeguards . . . are appropriately to be applied in a particular context . . . can be reduced to the issue of what process is 'due' a defendant in the particular circumstances of a particular case." … Nothing approaching a violation of due process has occurred in this case.

JUSTICE STEVENS, concurring in the judgment.

In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court's sweeping opinion. I do agree, however, with the Government's submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not "unreasonable" as that term is used in the first Clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches. I therefore concur in the Court's judgment.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

Today the Court holds that although foreign nationals must abide by our laws even when in their own countries, our Government need not abide by the Fourth Amendment when it investigates them for violations of our laws. I respectfully dissent.

Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects in this country. Foreign nationals must now take care not to violate our drug laws, our antitrust laws, our securities laws, and a host of other federal criminal statutes. The enormous expansion of federal criminal jurisdiction outside our Nation's boundaries has led one commentator to suggest that our country's three largest exports are now "rock music, blue jeans, and United States law." …

The Constitution is the source of Congress' authority to criminalize conduct, whether here or abroad, and of the Executive's authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government's authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic….

What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The "sufficient connection" is supplied not by Verdugo-Urquidez, but by the Government. Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose "societal obligations," such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.

By concluding that respondent is not one of "the people" protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers….

Finally, when United States agents conduct unreasonable searches, whether at home or abroad, they disregard our Nation's values. For over 200 years, our country has considered itself the world's foremost protector of liberties. The privacy and sanctity of the home have been primary tenets of our moral, philosophical, and judicial beliefs. Our national interest is defined by those values and by the need to preserve our own just institutions. We take pride in our commitment to a Government that cannot, on mere whim, break down doors and invade the most personal of places. We exhort other nations to follow our example. How can we explain to others—and to ourselves—that these long cherished ideals are suddenly of no consequence when the door being broken belongs to a foreigner? …

The majority's rejection of respondent's claim to Fourth Amendment protection is apparently motivated by its fear that application of the Amendment to law enforcement searches against foreign nationals overseas "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest." The majority's doomsday scenario-that American Armed Forces conducting a mission to protect our national security with no law enforcement objective "would have to articulate specific facts giving them probable cause to undertake a search or seizure," is fanciful. Verdugo-Urquidez is protected by the Fourth Amendment because our Government, by investigating and prosecuting him, has made him one of "the governed." Accepting respondent as one of "the governed," however, hardly requires the Court to accept enemy aliens in wartime as among "the governed" entitled to invoke the protection of the Fourth Amendment.

Moreover, with respect to non-law-enforcement activities not directed against enemy aliens in wartime but nevertheless implicating national security, doctrinal exceptions to the general requirements of a warrant and probable cause likely would be applicable more frequently abroad, thus lessening the purported tension between the Fourth Amendment's strictures and the Executive's foreign affairs power. Many situations involving sensitive operations abroad likely would involve exigent circumstances such that the warrant requirement would be excused. Cf. Warden v. Hayden, 387 U.S. 294, 298(1967). Therefore, the Government's conduct would be assessed only under the reasonableness standard, the application of which depends on context….

Because the Fourth Amendment governs the search of respondent's Mexican residences, the District Court suppressed the evidence found in that search because the officers conducting the search did not obtain a warrant…. The Warrant Clause would serve the same primary functions abroad as it does domestically, and I see no reason to distinguish between foreign and domestic searches….

The Warrant Clause cannot be ignored simply because Congress has not given any United States magistrate authority to issue search warrants for foreign searches. See Fed. Rule Crim. Proc. 41(a). Congress cannot define the contours of the Constitution. If the Warrant Clause applies, Congress cannot excise the Clause from the Constitution by failing to provide a means for United States agents to obtain a warrant….

Nor is the Warrant Clause inapplicable merely because a warrant from a United States magistrate could not "authorize" a search in a foreign country. Although this may be true as a matter of international law, it is irrelevant to our interpretation of the Fourth Amendment. As a matter of United States constitutional law, a warrant serves the same primary function overseas as it does domestically; it assures that a neutral magistrate has authorized the search and limited its scope. The need to protect those suspected of criminal activity from the unbridled discretion of investigating officers is no less important abroad than at home.

When our Government conducts a law enforcement search against a foreign national outside of the United States and its territories, it must comply with the Fourth Amendment. Absent exigent circumstance or consent, it must obtain a search warrant from a United States court. When we tell the world that we expect all people, wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same. Because we cannot expect others to respect our laws until we respect our Constitution, I respectfully dissent.

JUSTICE BLACKMUN, dissenting.

I cannot accept the Court of Appeals' conclusion, echoed in some portions of JUSTICE BRENNAN's dissent, that the Fourth Amendment governs every action by an American official that cab be characterized as a search or seizure. American agents acting abroad generally do not purport to exercise sovereign authority over the foreign nationals with whom they come in contact. The relationship between these agents is therefore fundamentally different from the relationship between United States officials and individuals residing within this country.

I am inclined to agree with JUSTICE BRENNAN, however, that when a foreign national is held accountable for purported violations of United States criminal laws, he has effectively been treated as one of "the governed" and therefore us entitled to Fourth Amendment protections. Although the Government's exercise of power abroad does not ordinarily implicate the Fourth Amendment, the enforcement of domestic criminal law seems to me to be the paradigmatic exercise of sovereignty over those who are compelled to obey…. Under these circumstances I believe that respondent is entitled to invoke protections of the Fourth Amendment. I agree with the Government, however, that an American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen's residence outside this country.

The Fourth Amendment nevertheless requires that the search be "reasonable." And when the purpose of a search is the procurement of evidence for a criminal prosecution, we have consistently held that the search, to be reasonable, must be based upon probable cause. Neither the District Court not the Court of Appeals addressed the issue of probable cause, and I do not believe that a reliable determination could be made on the basis of the record before us. I therefore would vacate the judgment of the Court of Appeals and remand the case for further proceedings.

United States v. Balsys

524 U.S. (1998)

JUSTICE SOUTER delivered the opinion of the Court.

By administrative subpoena, the Office of Special Investigations of the Criminal Division of the United States Department of Justice (OSI) sought testimony from the respondent, Aloyzas Balsys, about his wartime activities between 1940 and 1944 and his immigration to the United States in 1961. Balsys declined to answer such questions, claiming the Fifth Amendment privilege against self-incrimination, based on his fear of prosecution by a foreign nation. We hold that concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause.

Respondent Aloyzas Balsys is a resident alien living in Woodhaven, New York, having obtained admission to this country in 1961 under the Immigration and Nationality Act, 8 U.S.C. § 1201, on an immigrant visa and alien registration issued at the American Consulate in Liverpool. In his application, he said that he had served in the Lithuanian army between 1934 and 1940, and had lived in hiding in Plateliai, Lithuania, between 1940 and 1944. Balsys swore that the information was true, and signed a statement of understanding that if his application contained any false information or materially misleading statements, or concealed any material fact, he would be subject to criminal prosecution and deportation.

OSI, which was created to institute denaturalization and deportation proceedings against suspected Nazi war criminals, is now investigating whether, contrary to his representations, Balsys participated in Nazi persecution during World War II. Such activity would subject him to deportation for persecuting persons because of their race, religion, national origin, or political opinion under §§ 1182(a)(3)(E), 1251(a)(4)(D) as well as for lying on his visa application under §§ 1182(a)(6)(C)(i), 1251(a)(1)(A).

When OSI issued a subpoena requiring Balsys to testify at a deposition, he appeared and gave his name and address, but he refused to answer any other questions, such as those directed to his wartime activities in Europe between 1940-1945 and his immigration to the United States in 1961. In response to all such questions, Balsys invoked the Fifth Amendment privilege against compelled self-incrimination, claiming that his answers could subject him to criminal prosecution. He did not contend that he would incriminate himself under domestic law, but claimed the privilege because his responses could subject him to criminal prosecution by Lithuania, Israel, and Germany.

OSI responded with a petition in Federal District Court to enforce the subpoena under § 1225(a). Although the District Court found that if Balsys were to provide the information requested, he would face a real and substantial danger of prosecution by Lithuania and Israel (but not by Germany), it granted OSI's enforcement petition and ordered Balsys to testify, treating the Fifth Amendment as inapplicable to a claim of incrimination solely under foreign law. 918 F. Supp. 588 (EDNY 1996). Balsys appealed, and the Court of Appeals for the Second Circuit vacated the District Court's order, holding that a witness with a real and substantial fear of prosecution by a foreign country may assert the Fifth Amendment privilege to avoid giving testimony in a domestic proceeding, even if the witness has no valid fear of a criminal prosecution in this country. 119 F.3d 122 (1997). We granted certiorari to resolve a conflict among the Circuits on this issue and now reverse.

The Self-Incrimination Clause of the Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5. Resident aliens such as Balsys are considered "persons" for purposes of the Fifth Amendment and are entitled to the same protections under the Clause as citizens. The parties do not dispute that the Government seeks to "compel" testimony from Balsys that would make him "a witness against himself." The question is whether there is a risk that Balsys's testimony will be used in a proceeding that is a "criminal case."

Balsys agrees that the risk that his testimony might subject him to deportation is not a sufficient ground for asserting the privilege, given the civil character of a deportation proceeding. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-1039 (1984). If, however, Balsys could demonstrate that any testimony he might give in the deportation investigation could be used in a criminal proceeding against him brought by the Government of either the United States or one of the States, he would be entitled to invoke the privilege. It "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory," in which the witness reasonably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent state or federal criminal proceeding. But Balsys makes no such claim, contending rather that his entitlement to invoke the privilege arises because of a real and substantial fear that his testimony could be used against him by Lithuania or Israel in a criminal prosecution. The reasonableness of his fear is not challenged by the Government, and we thus squarely face the question whether a criminal prosecution by a foreign government not subject to our constitutional guarantees presents a "criminal case" for purposes of the privilege against self-incrimination.

Balsys relies in the first instance on the textual contrast between the Sixth Amendment, which clearly applies only to domestic criminal proceedings, and the compelled self-incrimination Clause, with its facially broader reference to "any criminal case." The same point is developed by Balsys's amici, who argue that "any criminal case" means exactly that, regardless of the prosecuting authority. According to the argument, the Framers' use of the adjective "any" precludes recognition of the distinction raised by the Government, between prosecution by a jurisdiction that is itself bound to recognize the privilege and prosecution by a foreign jurisdiction that is not…. In the Fifth Amendment context, the Clause in question occurs in the company of guarantees of grand jury proceedings, defense against double jeopardy, due process, and compensation for property taking. Because none of these provisions is implicated except by action of the government that it binds, it would have been strange to choose such associates for a Clause meant to take a broader view, and it would be strange to find such a sweep in the Clause now…. The oddity of such a reading would be especially stark if the expansive language in question is open to another reasonable interpretation, as we think it is. Because the Fifth Amendment opens by requiring a grand jury indictment or presentment "for a capital, or otherwise infamous crime," the phrase beginning with "any" in the subsequent Self-Incrimination Clause may sensibly be read as making it clear that the privilege it provides is not so categorically limited. It is plausible to suppose the adjective was inserted only for that purpose, not as taking the further step of defining the relevant prosecutorial jurisdiction internationally. We therefore take this to be the fair reading of the adjective "any," and we read the Clause contextually as apparently providing a witness with the right against compelled self-incrimination when reasonably fearing prosecution by the government whose power the Clause limits, but not otherwise. Since there is no helpful legislative history, and because there was no different common law practice at the time of the Framing, … there is no reason to disregard the contextual reading. This Court's precedent has indeed adopted that so-called same-sovereign interpretation….

In 1964 our precedent took a turn away from the unqualified proposition that fear of prosecution outside the jurisdiction seeking to compel testimony did not implicate a Fifth or Fourteenth Amendment privilege, as the case might be. In Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U.S. 52 (1964), we reconsidered the converse of the situation in Murdock, whether a witness in a state proceeding who had been granted immunity from state prosecution could invoke the privilege based on fear of prosecution on federal charges. In the course of enquiring into a work stoppage at several New Jersey piers, the Waterfront Commission of New York Harbor subpoenaed the defendants, who were given immunity from prosecution under the laws of New Jersey and New York…. This Court held the defendants could be forced to testify not because fear of federal prosecution was irrelevant but because the Self-Incrimination Clause barred the National Government from using their state testimony or its fruits to obtain a federal conviction. We explained "that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law." 378 U.S. at 77-78.

Murphy is a case invested with two alternative rationales. Under the first, the result reached in Murphy was undoubtedly correct, given the decision rendered that very same day in Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964), which applied the doctrine of Fourteenth Amendment due process incorporation to the Self-Incrimination Clause, so as to bind the States as well as the National Government to recognize the privilege. Prior to Malloy, the Court had refused to impose the privilege against self-incrimination against the States through the Fourteenth Amendment, thus leaving state-court witnesses seeking exemption from compulsion to testify to their rights under state law, as supplemented by the Fourteenth Amendment's limitations on coerced confessions. Malloy, however, established that "the Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." 378 U.S. at 8.

As the Court immediately thereafter said in Murphy, Malloy "necessitated a reconsideration" of the unqualified Murdock rule that a witness subject to testimonial compulsion in one jurisdiction, state or federal, could not plead fear of prosecution in the other. After Malloy, the Fifth Amendment limitation could no longer be seen as framed for one jurisdiction alone, each jurisdiction having instead become subject to the same claim of privilege flowing from the one limitation. Since fear of prosecution in the one jurisdiction bound by the Clause now implicated the very privilege binding upon the other, the Murphy opinion sensibly recognized that if a witness could not assert the privilege in such circumstances, the witness could be "whipsawed into incriminating himself under both state and federal law even though the constitutional privilege against self-incrimination is applicable to each." … Murphy accordingly held that a federal court could not receive testimony compelled by a State in the absence of a statute effectively providing for federal immunity, and it did this by imposing an exclusionary rule prohibiting the National Government "from making any such use of compelled testimony and its fruits," 378 U.S. at 79.

… After Murphy, the immunity option open to the Executive Branch could only be exercised on the understanding that the state and federal jurisdictions were as one, with a federally mandated exclusionary rule filling the space between the limits of state immunity statutes and the scope of the privilege. As so understood, Murphy stands at odds with Balsys's claim.

There is, however, a competing rationale in Murphy, investing the Clause with a more expansive promise. The Murphy majority opened the door to this view by rejecting this Court's previous understanding of the English common-law evidentiary privilege against compelled self-incrimination, which could have informed the Framers' understanding of the Fifth Amendment privilege…. In sum, to the extent that the Murphy majority went beyond its response to Malloy and undercut Murdock's rationale on historical grounds, its reasoning cannot be accepted now. Long before today, indeed, Murphy's history was shown to be fatally flawed….

Murphy's policy catalog would provide support, at a rather more concrete level, for Balsys's argument that application of the privilege in situations like his would promote the purpose of preventing government overreaching, which on anyone's view lies at the core of the Clause's purposes. This argument begins with the premise that "cooperative internationalism" creates new incentives for the Government to facilitate foreign criminal prosecutions. Because crime, like legitimate trade, is increasingly international, a corresponding degree of international cooperation is coming to characterize the enterprise of criminal prosecution. The mission of the OSI as shown in this case exemplifies the international cooperation that is said to undermine the legitimacy of treating separate governmental authorities as separate for purposes of liberty protection in domestic courts. Because the Government now has a significant interest in seeing individuals convicted abroad for their crimes, it is subject to the same incentive to overreach that has required application of the privilege in the domestic context. Balsys says that this argument is nothing more than the reasoning of the Murphy Court when it justified its recognition of a fear of state prosecution by looking to the significance of "'cooperative federalism,'" the teamwork of state and national officials to fight interstate crime.

But Balsys invests Murphy's "cooperative federalism" with a significance unsupported by that opinion…. Since in this case there is no analog of Malloy, imposing the Fifth Amendment beyond the National Government, there is no premise in Murphy for appealing to "cooperative internationalism" by analogy to "cooperative federalism." Any analogy must, instead, be to the pre-Murphy era when the States were not bound by the privilege. Then, testimony compelled in a federal proceeding was admissible in a state prosecution, despite the fact that shared values and similar criminal statutes of the state and national jurisdictions presumably furnished incentive for overreaching by the Government to facilitate criminal prosecutions in the States.

But even if Murphy were authority for considering "cooperative federalism" and "cooperative internationalism" as reasons supporting expansion of the scope of the privilege, any extension would depend ultimately on an analysis of the likely costs and benefits of extending the privilege as Balsys requests. If such analysis were dispositive for us, we would conclude that Balsys has not shown that extension of the protection would produce a benefit justifying the rule he seeks.

The Court of Appeals directed careful attention to an evaluation of what would be gained and lost on Balsys's view. It concluded, for example, that few domestic cases would be adversely affected by recognizing the privilege based upon fear of foreign prosecution, 119 F.3d at 135-137; that American contempt sanctions for refusal to testify are so lenient in comparison to the likely consequences of foreign prosecution that a witness would probably refuse to testify even if the privilege were unavailable to him, 119 F.3d at 142 (Block, J., concurring); that by statute and treaty the United States could limit the occasions on which a reasonable fear of foreign prosecution could be shown, as by modifying extradition and deportation standards in cases involving the privilege, 119 F.3d at 138-139; and that because a witness's refusal to testify may be used as evidence in a civil proceeding, deportation of people in Balsys's position would not necessarily be thwarted by recognizing the privilege as he claims it.

The Court of Appeals accordingly thought the net burden of the expanded privilege too negligible to justify denying its expansion. We remain skeptical, however. While we will not attempt to comment on every element of the Court of Appeals's calculation, two of the points just noted would present difficulty. First, there is a question about the standard that should govern any decision to justify a truly discretionary ruling by making the assumption that it will induce the Government to adopt legislation with international implications or to seek international agreements, in order to mitigate the burdens that the ruling would otherwise impose. Because foreign relations are specifically committed by the Constitution to the political branches, U.S. Const., Art II, § 2, cl. 2, we would not make a discretionary judgment premised on inducing them to adopt policies in relation to other nations without squarely confronting the propriety of grounding judicial action on such a premise.

Second, the very assumption that a witness's silence may be used against him in a deportation or extradition proceeding due to its civil nature, 119 F.3d at 136 (citing Lopez-Mendoza, 468 U.S. at 1038-1039), raises serious questions about the likely gain from recognizing fear of foreign prosecution. For if a witness claiming the privilege ended up in a foreign jurisdiction that, for whatever reason, recognized no privilege under its criminal law, the recognition of the privilege in the American courts would have gained nothing for the witness. This possibility, of course, presents a sharp contrast with the consequences of recognizing the privilege based on fear of domestic prosecution. If testimony is compelled, Murphy itself illustrates that domestic courts are not even wholly dependent on immunity statutes to see that no use will be made against the witness; the exclusionary principle will guarantee that. See Murphy, 378 U.S. at 79. Whatever the cost to the Government may be, the benefit to the individual is not in doubt in a domestic proceeding.

Since the likely gain to the witness fearing foreign prosecution is thus uncertain, the countervailing uncertainty about the loss of testimony to the United States cannot be dismissed as comparatively unimportant. That some testimony will be lost is highly probable, since the United States will not be able to guarantee immunity if testimony is compelled (absent some sort of cooperative international arrangement that we cannot assume will occur). While the Court of Appeals is doubtless correct that the expected consequences of some foreign prosecutions may be so severe that a witness will refuse to testify no matter what, not every foreign prosecution may measure up so harshly as against the expectable domestic consequences of contempt for refusing to testify. We therefore must suppose that on Balsys's view some evidence will in fact be lost to the domestic courts, and we are accordingly unable to dismiss the position of the United States in this case, that domestic law enforcement would suffer serious consequences if fear of foreign prosecution were recognized as sufficient to invoke the privilege.

In sum, the most we would feel able to conclude about the net result of the benefits and burdens that would follow from Balsys's view would be a Scotch verdict. If, then, precedent for the traditional view of the scope of the Clause were not dispositive of the issue before us, if extending the scope of the privilege were open to consideration, we still would not find that Balsys had shown that recognizing his claim would be a sound resolution of the competing interests involved.

This is not to say that cooperative conduct between the United States and foreign nations could not develop to a point at which a claim could be made for recognizing fear of foreign prosecution under the Self-Incrimination Clause as traditionally understood. If it could be said that the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and if it could be shown that the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries, then an argument could be made that the Fifth Amendment should apply based on fear of foreign prosecution simply because that prosecution was not fairly characterized as distinctly "foreign." The point would be that the prosecution was as much on behalf of the United States as of the prosecuting nation, so that the division of labor between evidence-gatherer and prosecutor made one nation the agent of the other, rendering fear of foreign prosecution tantamount to fear of a criminal case brought by the Government itself.

Whether such an argument should be sustained may be left at the least for another day, since its premises do not fit this case. It is true that Balsys has shown that the United States has assumed an interest in foreign prosecution, as demonstrated by OSI's mandate and American treaty agreements requiring the Government to give to Lithuania and Israel any evidence provided by Balsys. But this interest does not rise to the level of cooperative prosecution. There is no system of complementary substantive offenses at issue here, and the mere support of one nation for the prosecutorial efforts of another does not transform the prosecution of the one into the prosecution of the other…. In this case there is no basis for concluding that the privilege will lose its meaning without a rule precluding compelled testimony when there is a real and substantial risk that such testimony will be used in a criminal prosecution abroad.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

JUSTICE STEVENS, concurring.

While I join the Court's opinion without reservation, I write separately to emphasize these points.

The clause that protects every person from being "compelled in any criminal case to be a witness against himself" is a part of the broader protection afforded by the Fifth Amendment to the Constitution. That Amendment constrains the power of the Federal Government to deprive any person "of life, liberty, or property, without due process of law," just as the Fourteenth Amendment imposes comparable constraints on the power of the States. The primary office of the clause at issue in this case is to afford protection to persons whose liberty has been placed in jeopardy in an American tribunal. The Court's holding today will not have any adverse impact on the fairness of American criminal trials.

The fact that the issue in this case has been undecided for such a long period of time suggests that our ruling will have little, if any, impact on the fairness of trials conducted in other countries. Whether or not that suggestion is accurate, I do not believe our Bill of Rights was intended to have any effect on the conduct of foreign proceedings. If, however, we were to accept respondent's interpretation of the clause, we would confer power on foreign governments to impair the administration of justice in this country…. A law enacted by a foreign power making it a crime for one of its citizens to testify in an American proceeding against another citizen of that country would immunize those citizens from being compelled to testify in our courts. Variants of such a hypothetical law are already in existence. Of course, the Court might craft exceptions for such foreign criminal laws, but it seems far wiser to adhere to a clear limitation on the coverage of the Fifth Amendment, including its privilege against self-incrimination. That Amendment prescribes rules of conduct that must attend any deprivation of life, liberty, or property in our Nation's courts.

JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting.

Were Aloyzas Balsys to face even a theoretical possibility that his testimony could lead a State to prosecute him for murder, the Fifth Amendment would prohibit the Federal Government from compelling that testimony. The Court concludes, however, that the Fifth Amendment does not prohibit compulsion here because Balsys faces a real and substantial danger of prosecution not, say, by California, but by a foreign nation. The Fifth Amendment, however, provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5 (emphasis added). This Court has not read the words "any criminal case" to limit application of the Clause to only federal criminal cases. See Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964). That precedent, as well as the basic principles underlying the privilege, convince me that the Fifth Amendment's privilege against self-incrimination should encompass, not only feared domestic prosecutions, but also feared foreign prosecutions where the danger of an actual foreign prosecution is substantial.

… I see no reason why the Court should resurrect the pale shadow of Murdock's "same sovereign" rule, a rule that Murphy demonstrated was without strong historical foundation and that would serve no more valid a purpose in today's world than it did during Murphy's time. Murphy supports recognizing the privilege where there is a real and substantial threat of prosecution by a foreign government. Balsys is among the few to have satisfied this threshold. The basic values which this Court has said underlie the Fifth Amendment's protections are each diminished if the privilege may not be claimed here. And surmountable practical concerns should not stand in the way of constitutional principle.

For these and related reasons elaborated by the Second Circuit, I respectfully dissent.

United States v. Kole

164 F.3d 164 (3d Cir. 1998)

McKEE, Circuit Judge.

Agnes Kole pled guilty to violating 21 U.S.C. §§ 952(a), 960(a)(1), and 963 based upon her involvement in a conspiracy to import heroin into the United States from Thailand. Thereafter, the government filed an enhanced penalty information under 21 U.S.C. § 851(a) in an effort to enhance Kole's sentence based upon a prior felony drug conviction in the Philippines. The district court granted the requested enhancement, and Kole appeals. She claims that the enhancement was improper because she was denied effective assistance of counsel in the Philippines, and because the Philippine legal system does not recognize the right to a jury trial. For the reasons that follow, we will affirm….

In the instant case, Kole and a coconspirator were apprehended in New Jersey and charged with attempting to import heroin. Kole subsequently pled guilty to one count of conspiring to import 3.5 kilograms of heroin into the United States in violation of 21 U.S.C. § 942(a). Following the change of plea proceeding, the government filed an information under 21 U.S.C. § 851(a) in an effort to enhance Kole's sentence to a term of imprisonment of at least 20 years based upon her drug conviction in the Philippines.

Kole argued that 21 U.S.C. § 851(c)(2) precluded the court from using the Philippine conviction to enhance her sentence because she had been denied a jury trial in the Philippines, and because her defense counsel there labored under a conflict of interest that caused her to be denied effective assistance of counsel. Since § 851(c)(2) expressly bars consideration of any prior conviction that "was obtained in violation of the Constitution of the United States," Kole asserted that the sentencing court could not apply the mandatory minimum for repeat felony drug offenders contained in 21 U.S.C. § 960(b)(1)(A).

The district court held a sentencing hearing, and scrutinized Judge Felix's opinion. The district court concluded that both of Kole's assertions were within the scope of the collateral attack allowed under 21 U.S.C. § 851(c)(2), but that Kole had not satisfied her burden of proof as to either claim. Accordingly, the court ruled that the Philippine conviction was a prior drug felony for purposes of sentencing, and sentenced Kole to the mandatory minimum period of incarceration (20 years) under 21 U.S.C. § 960(b)(1). This appeal followed….

Here, we must decide whether the Constitution applies Ex Proprio vigore to the Philippines. …  We conclude that Congress did not intend a contrary result when it enacted 21 U.S.C. § 851. Rather, as the district court concluded, Congress intended only to ensure fundamental fairness by excluding any conviction that was obtained in a manner inconsistent with concepts of fundamental fairness and liberty endemic in the Due Process Clause of the Fifth Amendment of the United States Constitution….

Kole's argument is bottomed upon an assumption that Congress could not have intended to allow a conviction that was obtained in violation of such a fundamental right to enhance a subsequent sentence in a court of the United States. However, this position overlooks the purpose behind § 960 as well as the fact that jury trials, though fundamental to the system of justice established under the United States Constitution, are nevertheless relatively unique to that system…. Although the Court answered that question in the affirmative as applied to the American legal system, it left no doubt that other societies may well be able to fashion a system with no juries that is fundamentally fair to the accused, thus comporting with our concept of due process….

We do not think that Congress enacted a law that was intended to reach persons involved in international drug trafficking and then limited enhanced penalties to those persons who had previously been convicted in a court in the United States. That is inconsistent with Congress' attempt to reach those involved in importing or exporting controlled substances. Yet, since the United States Constitution does not apply to any foreign sovereign, that would be the result of adopting Ms. Kole's argument.

Kole also argues that use of the Philippine conviction violated her Sixth Amendment right to counsel because her trial attorney labored under an irreconcilable conflict of interest that prevented him from effectively representing her. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Court established a two-part test for evaluating a claim of ineffective assistance of counsel and we apply it here. Under Strickland, a defendant must show that "counsel's representation fell below an objective standard of reasonableness." Id. If defendant is able to make that showing, he or she must then establish that counsel's dereliction prejudiced the defendant. Where the claim rests upon an alleged conflict of interest, defendant "must identify something that counsel chose to do or not do, as to which he had conflicting duties, and must show that the course taken was influenced by that conflict." Vance v. Lehman, 64 F.3d 119, 124 (3d Cir. 1995) …. In other words, the defendant must "show some actual conflict of interest that adversely affected his counsel's performance in order to prevail." United States v. Preston, 910 F.2d 81, 88 (3d Cir. 1998).

Here, Kole alleges that the joint representation created a simultaneous duty to represent Ike that prevented her defense attorney from distinguishing between her involvement and his. Her argument suggests that her attorney could have attempted to equate Kole's role with that of the codefendants who were acquitted rather than being lumped with her fiance. However, "hindsight rationalization alone cannot support a claim of ineffective assistance of counsel." … Kole's attorney mounted a vigorous attack on the credibility of the police, and informant Williams. As noted above, he was able to raise serious questions as to the credibility of the prosecutor's witnesses. In fact, the trial judge did not credit substantial portions of the prosecution's case.

Moreover, the appendix filed in this court contains a "Demurrer to Evidence" that defense counsel filed following trial, and prior to Judge Felix issuing his opinion. In that demurrer Kole's attorney argues that all of the physical evidence must be suppressed based upon the warrantless search, the lack of credibility of the prosecution witnesses including the police, the chemist's expertise and bias, Jacqueline Williams' open case with the police, and the likelihood of her bias based upon asserted promises that the case would be dismissed if she cooperated against Kole….

There is no irreconcilable tension in defense counsel's strategy. Indeed, Kole's attorney would have been hard pressed to draw distinctions between her involvement and Ike's while arguing that the police and Williams were lying about finding evidence inside of their apartment. As noted above, "an actual conflict of interest occurs when counsel cannot use his best efforts to exonerate one defendant for fear of implicating the other." …

Although Kole asserts her Philippine attorney could have used a different strategy had he not also represented Ike, she has not met her burden of proving that she was prejudiced by the joint representation. Moreover, we do not think that the strategy actually adopted compromised her defense. Since Kole and Ike occupied the apartment and had equal access to the suitcase with the heroin, a coordinated attack on the prosecution's cooperating witness, and upon the police was strategically sound…. It is the particular circumstances of a joint prosecution of husband and wife, rather than the fact of the relationship, that creates any conflict of interest between spouses in a joint prosecution. Although the circumstances could be such that a conflict of interest would flow from the relationship of husband and wife, this is not such a case. Kole has not established such circumstances existed when she was convicted in the Philippines. Judge Felix did conclude that Kole and Ike had joint control over the apartment, and joint access to the heroin inside of it, but the conflict of interest Kole complains of is more a creature of hindsight than of record….

For the reasons set forth above, we affirm the district court's imposition on Kole of an enhanced sentence of twenty years under 21 U.S.C. § 960(b)(1)(A).

United States v. Alvarez-Machain

504 U.S. 655 (1992)

CHIEF JUSTICE REHNQUIST 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 kidnaped 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 respondent's abduction, although they were not personally involved in it.

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 Court of Appeals affirmed the dismissal of the indictment and the repatriation of respondent …. We granted certiorari … 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 extradition 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 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 jurisdiction 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 proceedings." 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 extradition treaty between Peru and the United States. The messenger, however, disdained reliance on the treaty processes, and instead forcibly kidnaped 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 jurisdiction 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, 522 (1952), we applied the rule in Ker to a case in which the defendant had been kidnaped 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 Kidnaping Act and stated:

"This Court has never departed from the rule announced 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."

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 Government, 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. 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 individual 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 kidnaping to gain the presence of an individual for prosecution in a manner not contemplated by the Treaty.

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. 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 establishing 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.

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. Respondent agrees that the right exercised by the individual is derivative of the nation's right under the Treaty, since nations are authorized, 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, respondent 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." 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 that an invasion of the United States by Mexico would violate the terms of the Extradition Treaty between the two nations….

Respondent and his amici may be correct that respondent's abduction was "shocking," and that it may be in violation of general international law principles. Mexico has protested the abduction of respondent through diplomatic notes, 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 abduction 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.

JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, dissenting.

The Court correctly observes that this case raises a question of first impression.. The case is unique for several reasons. It does not involve an ordinary abduction by a private kidnaper, or bounty hunter, as in Ker v. Illinois, 119 U.S. 436 (1886); nor does it involve the apprehension of an American fugitive who committed a crime in one State and sought asylum in another, as in Frisbie v. Collins, 342 U.S. 519 (1952). Rather, it involves this country's abduction of another country's citizen; it also involves a violation of the territorial integrity of that other country, with which this country has signed an extradition treaty.

A Mexican citizen was kidnaped in Mexico and charged with a crime committed in Mexico; his offense allegedly violated both Mexican and American law. Mexico has formally demanded on at least two separate occasions that he be returned to Mexico and has represented that he will be prosecuted and, if convicted, punished for his offense. It is clear that Mexico's demand must be honored if this official abduction violated the 1978 Extradition Treaty between the United States and Mexico. In my opinion, a fair reading of the treaty in light of our decision in United States v. Rauscher, 119 U.S. 407 (1886), and applicable principles of international law, leads inexorably to the conclusion that the District Court … and the Court of Appeals for the Ninth Circuit correctly construed that instrument.

The extradition treaty with Mexico is a comprehensive document containing 23 articles and an appendix listing the extraditable offenses covered by the agreement. The parties announced their purpose in the preamble: The two governments desire "to cooperate more closely in the fight against crime and, to this end, to mutually render better assistance in matters of extradition." From the preamble, through the description of the parties' obligations with respect to offenses committed within as well as beyond the territory of a requesting party, the delineation of the procedures and evidentiary requirements for extradition, the special provisions for political offenses and capital punishment, and other details, the Treaty appears to have been designed to cover the entire subject of extradition. Thus, Article 22, entitled "Scope of Application," states that the "Treaty shall apply to offenses specified in Article 2 committed before and after this Treaty enters into force," and Article 2 directs that "extradition shall take place, subject to this Treaty, for willful acts which fall within any of [the extraditable offenses listed in] the clauses of the Appendix." Moreover, as noted by the Court, ante, at 663, Article 9 expressly provides that neither contracting party is bound to deliver up its own nationals, although it may do so in its discretion, but if it does not do so, it "shall submit the case to its competent authorities for purposes of prosecution."

The Government's claim that the Treaty is not exclusive, but permits forcible governmental kidnaping, would transform these, and other, provisions into little more than verbiage. For example, provisions requiring "sufficient" evidence to grant extradition (Art. 3), withholding extradition for political or military offenses (Art. 5), withholding extradition when the person sought has already been tried (Art. 6), withholding extradition when the statute of limitations for the crime has lapsed (Art. 7), and granting the requested country discretion to refuse to extradite an individual who would face the death penalty in the requesting country (Art. 8), would serve little purpose if the requesting country could simply kidnap the person. As the Court of Appeals for the Ninth Circuit recognized in a related case, "each of these provisions would be utterly frustrated if a kidnapping were held to be a permissible course of governmental conduct." United States v. Verdugo-Urquidez, 939 F.2d 1341, 1349 (1991). In addition, all of these provisions "only make sense if they are understood as requiring each treaty signatory to comply with those procedures whenever it wishes to obtain jurisdiction over an individual who is located in another treaty nation." Id. at 1351.

It is true, as the Court notes, that there is no express promise by either party to refrain from forcible abductions in the territory of the other nation. Relying on that omission, the Court, in effect, concludes that the Treaty merely creates an optional method of obtaining jurisdiction over alleged offenders, and that the parties silently reserved the right to resort to self-help whenever they deem force more expeditious than legal process. If the United States, for example, thought it more expedient to torture or simply to execute a person rather than to attempt extradition, these options would be equally available because they, too, were not explicitly prohibited by the Treaty. That, however, is a highly improbable interpretation of a consensual agreement, which on its face appears to have been intended to set forth comprehensive and exclusive rules concerning the subject of extradition. In my opinion, "the manifest scope and object of the treaty itself," Rauscher, 119 U.S. at 422, plainly imply a mutual undertaking to respect the territorial integrity of the other contracting party. That opinion is confirmed by a consideration of the "legal context" in which the Treaty was negotiated.

In Rauscher, the Court construed an extradition treaty that was far less comprehensive than the 1978 Treaty with Mexico…. After Rauscher had been extradited for murder, he was charged with the lesser offense of inflicting cruel and unusual punishment on a member of the crew of a vessel on the high seas. Although the treaty did not purport to place any limit on the jurisdiction of the demanding state after acquiring custody of the fugitive, this Court held that he could not be tried for any offense other than murder. Thus, the treaty constituted the exclusive means by which the United States could obtain jurisdiction over a defendant within the territorial jurisdiction of Great Britain.

The Court noted that the treaty included several specific provisions, such as the crimes for which one could be extradited, the process by which the extradition was to be carried out, and even the evidence that was to be produced, and concluded that "the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offence and for no other." 119 U.S. at 423. The Court reasoned that it did not make sense for the treaty to provide such specifics only to have the person "pas[s] into the hands of the country which charges him with the offence, free from all the positive requirements and just implications of the treaty under which the transfer of his person takes place." Id., at 421. To interpret the treaty in a contrary way would mean that a country could request extradition of a person for one of the seven crimes covered by the treaty, and then try the person for another crime, such as a political crime, which was clearly not covered by the treaty; this result, the Court concluded, was clearly contrary to the intent of the parties and the purpose of the treaty….

Thus, the Extradition Treaty, as understood in the context of cases that have addressed similar issues, suffices to protect the defendant from prosecution despite the absence of any express language in the Treaty itself purporting to limit this Nation's power to prosecute a defendant over whom it had lawfully acquired jurisdiction.

Although the Court's conclusion in Rauscher was supported by a number of judicial precedents, the holdings in these cases were not nearly as uniform as the consensus of international opinion that condemns one nation's violation of the territorial integrity of a friendly neighbor. It is shocking that a party to an extradition treaty might believe that it has secretly reserved the right to make seizures of citizens in the other party's territory. … Thus, a leading treatise explains:

"A State must not perform acts of sovereignty in the territory of another State….

"It is … a breach of International Law for a State to send its agents to the territory of another State to apprehend persons accused of having committed a crime. Apart from other satisfaction, the first duty of the offending State is to hand over the person in question to the State in whose territory he was apprehended." 1 Oppenheim's International Law 295, and n. 1 (H. Lauterpacht 8th ed. 1955).

Commenting on the precise issue raised by this case, the chief reporter for the American Law Institute's Restatement of Foreign Relations used language reminiscent of Justice Story's characterization of an official seizure in a foreign jurisdiction as "monstrous":

"When done without consent of the foreign government, abducting a person from a foreign country is a gross violation of international law and gross disrespect for a norm high in the opinion of mankind. It is a blatant violation of the territorial integrity of another state; it eviscerates the extradition system (established by a comprehensive network of treaties involving virtually all states)."

In the Rauscher case, the legal background that supported the decision to imply a covenant not to prosecute for an offense different from that for which extradition had been granted was far less clear than the rule against invading the territorial integrity of a treaty partner that supports Mexico's position in this case. If Rauscher was correctly decided—and I am convinced that it was—its rationale clearly dictates a comparable result in this case.

A critical flaw pervades the Court's entire opinion. It fails to differentiate between the conduct of private citizens, which does not violate any treaty obligation, and conduct expressly authorized by the Executive Branch of the Government, which unquestionably constitutes a flagrant violation of international law, and in my opinion, also constitutes a breach of our treaty obligations. Thus, at the outset of its opinion, the Court states the issue as "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." That, of course, is the question decided in Ker …; it is not, however, the question presented for decision today.

The importance of the distinction between a court's exercise of jurisdiction over either a person or property that has been wrongfully seized by a private citizen, or even by a state law enforcement agent, on the one hand, and the attempted exercise of jurisdiction predicated on a seizure by federal officers acting beyond the authority conferred by treaty, on the other hand, is explained by Justice Brandeis in his opinion for the Court in Cook v. United States, 288 U.S. 102, 77 L. Ed. 641, 53 S. Ct. 305 (1933). That case involved a construction of a Prohibition Era treaty with Great Britain that authorized American agents to board certain British vessels to ascertain whether they were engaged in importing alcoholic beverages. A British vessel was boarded 11 1/2 miles off the coast of Massachusetts, found to be carrying unmanifested alcoholic beverages, and taken into port. The Collector of Customs assessed a penalty which he attempted to collect by means of libels against both the cargo and the seized vessel.

The Court held that the seizure was not authorized by the treaty because it occurred more than 10 miles off shore. The Government argued that the illegality of the seizure was immaterial because, as in Ker, the court's jurisdiction was supported by possession even if the seizure was wrongful. Justice Brandeis acknowledged that the argument would succeed if the seizure had been made by a private party without authority to act for the Government, but that a different rule prevails when the Government itself lacks the power to seize….

The Court's failure to differentiate between private abductions and official invasions of another sovereign's territory also accounts for its misplaced reliance on the 1935 proposal made by the Advisory Committee on Research in International Law. See ante, at 665-666, and n. 13. As the text of that proposal plainly states, it would have rejected the rule of the Ker case. The failure to adopt that recommendation does not speak to the issue the Court decides today. The Court's admittedly "shocking" disdain for customary and conventional international law principles, see ante, at 669, is thus entirely unsupported by case law and commentary.

As the Court observes at the outset of its opinion, there is reason to believe that respondent participated in an especially brutal murder of an American law enforcement agent. That fact, if true, may explain the Executive's intense interest in punishing respondent in our courts. Such an explanation, however, provides no justification for disregarding the Rule of Law that this Court has a duty to uphold. That the Executive may wish to reinterpret the Treaty to allow for an action that the Treaty in no way authorizes should not influence this Court's interpretation. Indeed, the desire for revenge exerts "a kind of hydraulic pressure . . . before which even well settled principles of law will bend," but it is precisely at such moments that we should remember and be guided by our duty "to render judgment evenly and dispassionately according to law, as each is given understanding to ascertain and apply it." United States v. Mine Workers, 330 U.S. 258, 342 (1947) (Rutledge, J., dissenting). The way that we perform that duty in a case of this kind sets an example that other tribunals in other countries are sure to emulate.

The significance of this Court's precedents is illustrated by a recent decision of the Court of Appeal of the Republic of South Africa. Based largely on its understanding of the import of this Court's cases—including our decision in Ker—that court held that the prosecution of a defendant kidnaped by agents of South Africa in another country must be dismissed. The Court of Appeal of South Africa—indeed, I suspect most courts throughout the civilized world—will be deeply disturbed by the "monstrous" decision the Court announces today. For every nation that has an interest in preserving the Rule of Law is affected, directly or indirectly, by a decision of this character. As Thomas Paine warned, an "avidity to punish is always dangerous to liberty" because it leads a nation "to stretch, to misinterpret, and to misapply even the best of laws." To counter that tendency, he reminds us:

"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

I respectfully dissent.