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610. Deportations, Expulsions, or other Extraordinary Renditions

Fugitives deported to the United States or otherwise returned under other than a formal order of extradition often claim that they were kidnapped (by United States or foreign agents) and returned illegally. The courts generally dispose of those arguments under the Ker-Frisbie doctrine, holding that a defendant in a Federal criminal trial may not successfully challenge the District Court's jurisdiction over his person on the grounds that his presence before the Court was unlawfully secured. Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952). See, e.g., United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995); United States v. Mitchell, 957 F.2d 465 (7th Cir. 1992); United States v. Matta, 937 F.2d 567 (11th Cir. 1991); United States v. Pelaez, 930 F.2d 520 (6th Cir. 1991); United States v. Riviere, 924 F.2d 1289 (3d Cir. 1991); United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1988); United States v. Porter, 909 F.2d 789 (4th Cir. 1990); United States v. Winter, 509 F.2d 975 (5th Cir.), cert. denied, 423 U.S. 825 (1975); United States v. Postal, 589 F.2d 862, 873 (5th Cir.), cert. denied, 444 U.S. 832 (1979). One court found an exception to the general doctrine, declaring that a court could refuse to exercise its jurisdiction if the person's presence had been secured by conduct shocking to the conscience of the court. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). No court has followed Toscanino, however, see Matta-Ballesteros v. Henman, 896 F.2d 255, 262-263 (7th Cir.), cert. denied, 498 U.S. 878 (1990); United States v. Darby, 744 F.2d 1508, 1530 (11th Cir. 1984), cert. denied, 471 U.S. 1100 (1985); and the Second Circuit itself in a subsequent decision limited the exception to situations of extreme misconduct. Lujan v. Gengler, 510 F.2d 62 (2nd Cir.), cert. denied, 421 U.S. 1001 (1975).

[cited in JM 9-15.610]

Updated September 19, 2018