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Rosado v. Civiletti

decided: April 23, 1980.


Appeal from a judgment entered in the United States District Court for the District of Connecticut, T.F. Gilroy Daly, District Judge, granting appellees' petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2241(b)(3) and 18 U.S.C. § 3244(4). Reversed.

Before Kaufman, Chief Judge, Timbers, Circuit Judge, and Lasker, District Judge.*fn*

Author: Kaufman

The proud heritage of the Anglo-American judicial system as a bastion of individual liberties is founded, in no small measure, upon the citizen's enduring right of access to courts of law to challenge unwarranted governmental infringements upon his freedom. When all other avenues of relief have been closed, our nation's courts have consistently vindicated the fundamental guaranties of due process of law by invoking their general jurisdiction, either to review executive action otherwise deemed final, or to free those unlawfully restrained through the issuance of a writ of habeas corpus.

In the case before us, petitioners are held in custody under federal authority. They have urged the district court to discharge its constitutional obligation to hear their claims and release them from custody. They have demonstrated that their convictions, under the laws of the sovereign state of Mexico, manifested a shocking insensitivity to their dignity as human beings and were obtained under a criminal process devoid of even a scintilla of rudimentary fairness and decency. Accordingly, we reaffirm the authority of the federal courts to hear due process claims raised, as they are here, by citizens held prisoner within the territorial jurisdiction of the United States. Nevertheless, we also recognize the laudable efforts of the executive and legislative branches, by both treaty and statute, to ameliorate, to their utmost power, the immense suffering of United States citizens held in Mexican jails. Indeed, because the statutory procedures governing transfers of these prisoners to United States custody are carefully structured to ensure that each of them voluntarily and intelligently agreed to forego his right to challenge the validity of his Mexican conviction, and because we must not ignore the interests of those citizens still imprisoned abroad, we hold that the present petitioners are estopped from receiving the relief they now seek.


In 1978, Efran Caban, Raymond Velez, Pedro Rosado, and Felix Melendez filed petitions in the District of Connecticut seeking release from federal incarceration in the Danbury Correctional Facility. The petitioners, all United States citizens, had been arrested in Mexico in November 1975 for narcotics offenses. They were subsequently convicted and sentenced to nine years' imprisonment by the Mexican courts.*fn1 In December 1977, the petitioners were transferred to United States custody pursuant to a treaty between the United States and Mexico providing for the execution of penal sentences imposed by the courts of one nation in the prisons of the other.*fn2 Under the terms of the treaty, each transferring prisoner is required to consent to his transfer, and is permitted to contest the legality of any change of custody in the courts of the receiving nation.*fn3 Thus, the petitioners in this case argued that their consents to transfer had been unlawfully coerced and that their continued detention by United States authorities based upon the convictions in Mexico violated their right to due process of law guaranteed by the Fifth Amendment. In support of federal jurisdiction, petitioners relied upon 18 U.S.C. § 3244,*fn4 as well as various sections of Title 28, including 28 U.S.C. § 2241.*fn5 To the extent that 18 U.S.C. § 3244(1)*fn6 purports to reserve to Mexican courts exclusive jurisdiction over challenges to the petitioners' convictions or sentences, they claimed that the limitation suspends the privilege of the writ of habeas corpus in violation of Art. I, § 9, cl. 2 of the Constitution.

Three days of hearings were held before Judge Daly during which Caban, Rosado, and Melendez each recounted their experiences in Mexico.*fn7 Miguel Calderone, a Puerto Rican attorney who had visited the petitioners during their incarceration in Lecumberri Prison also testified, as did the two public defenders who represented the petitioners at consent verification proceedings in Mexico.*fn8 On July 31, 1979, Judge Daly granted the petitions of Caban, Velez, and Rosado,*fn9 holding, in a thoughtful opinion, that the prisoners' consents to transfer had been unlawfully coerced by the brutal conditions of their confinement in Mexico. Emphasizing what he deemed to be circumstances unique to these petitioners, the district judge observed that the men lived in daily fear of bodily harm, and believed with justification that they would be killed if they remained incarcerated in Mexico. Consequently, he concluded, "petitioners would have signed anything, regardless of the consequences, to get out of Mexico." Velez v. Nelson, 475 F. Supp. 865, 874 (D.Conn.1979) (footnote omitted).*fn10 In view of our duty to make an independent determination of the voluntariness of petitioners' consents to transfer, Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S. Ct. 1761, 1764, 16 L. Ed. 2d 895 (1966), we shall first explore the history of petitioners' confinement in Mexico and the United States, then proceed to consider the legal principles raised by the Government's appeal in this difficult and perplexing case.


After observing the witnesses' demeanor on direct and cross-examination, Judge Daly credited their testimony. Accordingly, for purposes of this appeal, we shall accept as true the petitioners' undisputed account of their arrests and convictions in Mexico.

In substance, the petitioners' testimony establishes that Caban and Freddie DePalm, also a United States citizen, departed New York's Kennedy Airport on November 18, 1975 for a vacation in Acapulco, Mexico. At the airport, the two men had become acquainted with Velez and the three sat together and conversed during the flight to Mexico. When their Aero Mexico airliner made its first scheduled landing in Mexico City, the passengers were informed there would be a one hour delay before proceeding to Acapulco. During the layover, Caban, DePalm, and Velez decided to leave the airport terminal and go to a Holiday Inn nearby. While browsing in the hotel's gift shop, the Americans were approached by six Mexicans in civilian dress, guns drawn, who stated that the Americans were under arrest. No arrest warrants were produced, nor did the Mexicans identify themselves as police officials. Nonetheless, Caban, DePalm, and Velez were each handcuffed and taken to an isolated area of the airport terminal.

In the terminal, Caban watched his captors drag Velez into a room, then heard Velez cry out in pain for close to an hour. Caban himself was taken into a separate room where he was searched, stripped and his legs bound. A watch, jewelry, and $400 in cash were taken from his person, but no drugs or contraband were found in his possession. Caban was then shown a photograph of a man represented to be Ramon Rodriguez and asked whether he knew him. When he denied any knowledge of Rodriguez, water was poured over his naked body and an electric cattle prod applied, first to his mouth, then to his testicles and buttocks. His persistent denial of any acquaintance with the man in the photograph led to repeated torture with the electric prod. Thereafter, Caban's interrogators suspended him from the ceiling by clamping a handcuff to his wrist and attaching it to a hook, causing him to lose consciousness from time to time. He remained in this position throughout the day while his captors continued to beat him, threatening to kill him if he refused to admit an acquaintance with Rodriguez. By the end of the day, the weight of Caban's suspended body against the handcuff caused a bone in his arm to break and tear through his wrist.

That night, Caban, DePalm, and Velez were taken to Los Separos detention center in Mexico City. Caban noticed that Velez was swollen and bruised, and that he was unable to walk unassisted. At Los Separos, the men were placed in small separate cells containing cement slabs for beds and no plumbing. They were held incommunicado for eight days. The food was inedible and the entire cellblock reeked of human excrement. Throughout their stay at Los Separos, interrogators continued to beat and torture the men with an electric prod in an attempt to elicit confessions.*fn11

Two days after Caban's arrest in Mexico City, Rosado was arrested in Acapulco upon his arrival on a flight from New York. Though unemployed, Rosado had planned to take a two-day vacation in Acapulco. After passing through customs at the airport, he was confronted by five plainclothes Mexicans bearing pistols and a submachine gun, who asked him to accompany them to a room in the airport. In the room, Rosado saw Melendez, who also had been detained upon his arrival in Acapulco. Rosado was held in the room for two hours while his luggage and personal effects were searched. His ticket, visa, jewelry, and $900 in cash were seized, and he was then driven to a nearby police station along with Melendez.

The following morning, the two Americans were flown to Mexico City along with several other prisoners arrested that day and, like Caban, DePalm, and Velez, ended their journeys at Los Separos. When they arrived, Rosado saw the badly beaten body of a man he later learned to be Caban. Melendez was taken into an interrogation room, and Rosado listened from an adjacent holding area as Melendez screamed in apparent agony. After Melendez was returned to the holding area, Rosado was asked by one Mexican officer whether he was ready to tell the truth. When Rosado's responses failed to satisfy his inquisitor, his hands were handcuffed behind his back, his pants lowered, and an electric prod was applied for several minutes at a time to his testicles and penis. Rosado then watched as Melendez was similarly questioned, with the interrogators alternating between beatings and electric torture.

After seven or eight days of unceasing brutality, each of the prisoners was finally taken to the prosecutor's office at Los Separos. Caban was told to sign a statement acknowledging his acquaintance with Rodriguez, but refused. Instead, he signed a paper disclaiming any knowledge of Rodriguez or his activities. Rosado was given a statement confessing participation in a gang seeking to import cocaine into Mexico, but he too refused to sign, stating that his sole purpose in coming to Mexico was for a vacation. At no time during the prisoners' initial detention and interrogation were they apprised of the charges against them, or permitted to consult with counsel.

Following their visits to the prosecutor, Caban, DePalm, Velez, Rosado, and Melendez were all transferred to Lecumberri Prison, the so-called "Black Castle," where they were crowded into tiny, unheated cells with only two or three beds for ten or twelve prisoners. Four days after Caban's arrival, he was transferred to a more spacious cell, one with five other inmates, a broken toilet, and a single bed but no mattress. His new cell, he was told, would cost $2,000. Failure to pay would result in "discipline" by the "Major," a powerful inmate who enforced this system of extortion with the evident blessing of prison officials, and the muscle of a band of hoodlums called the "Commandos."*fn12

With the help of his mother, Caban was able to pay the warden $1,700 shortly after his transfer to Lecumberri. Since he was unable to pay the full $2,000, however, he was forced to do faena, a daily work routine for those who failed to pay Lecumberri's "dormitory fee." Work began each day at 3 a. m. when the prisoners were taken from their cells, organized into three groups and ordered to clean the cellblock. One group would be given brooms, another buckets of soapy water, and the third small rags. The remainder of the day would then be spent repeatedly sweeping, washing, and drying the cellblock floors. For hours on end, prisoners would squat and move across the cellblock floor, scrubbing, drying, then scrubbing again. A prisoner who did not move quickly enough, or who refused to work, would be beaten. After seven months of faena, Caban was able to raise the remaining $300 and escape the daily toil.

Shortly after their transfer to Lecumberri, the prisoners were brought to los hugados, a courtroom within the prison. There, they were crowded into a small pen separated from the courtroom by a chain link fence. A judge's law secretary briefly informed the men that they had been charged with illegal importation of cocaine, and then sent them back to their cells. Approximately one month later, the prisoners returned to los hugados and were formally advised by the law secretary that they had been indicted for illegal importation of cocaine. The men were shown copies of the statements that had previously been read to them by the prosecutor at Los Separos, and asked whether they were true. Both Caban and Rosado disclaimed the reports, insisting that they were false. The law secretary offered to help the prisoners for a fee but was told that they did not have enough money. The entire proceeding lasted no longer than ten minutes.

Two weeks after this "arraignment," the prisoners were brought back to los hugados, ostensibly for a correo constitutional, that is, an opportunity to confront the witnesses against them. Inside the courtroom, Caban saw the officers who had detained and questioned him at the Mexico City Airport, but none of the officers who had arrested Rosado in Acapulco was present. Once again, the law secretary presided over the proceeding, asking each officer whether he ratified his earlier statement against the defendants. At no time were the prisoners permitted to cross-examine the arresting officers, to read the officers' statements, or to speak to the charges against them. The entire proceeding was over in less than fifteen minutes.

Seven months later, on August 10, 1976, the men returned to los hugados and were informed by the law secretary that a judge had considered their cases and had sentenced each man to nine years' imprisonment. At no time did they see the judge who sentenced them, obtain the assistance of counsel, or confront the witnesses against them.

In October 1976, Lecumberri was closed by the Mexican authorities and the appellees were transferred to Oriente Prison, a more modern and sanitary facility. In contrast to Lecumberri, Oriente was staffed by better trained, less corrupt officers. The prisoners remained at Oriente until July 1977, when they were moved to Santa Marta Penitentiary. Initially, the men were placed in "the hole," a windowless, unheated cell in which there was one bed and no toilet. There, the men were held incommunicado for approximately ten days until the prison director informed them that they would be moved to more habitable cells in the dormitory if they promised to pay him $2,000. Although the men knew they did not have sufficient money to pay the director, they promised to pay and were moved to better quarters in the dormitory. Soon, however, the men learned that Santa Marta differed little from Lecumberri. In addition to the dormitory fee, prisoners regularly paid for the basic necessities of life. Those who disobeyed the guards, or were slow in making payments, were subject to brutal beatings by a favored group of inmates known as the "Fourth Guard." At night, those who had angered the Fourth Guard would be taken from their cells, beaten, stabbed, and frequently left for dead.*fn13 As a result, both Caban and Rosado feared for their lives, since they were certain the Fourth Guard would kill them if they did not soon raise the $2,000 dormitory fee promised to the director.


In 1974, public attention was drawn to the outrageous conditions of confinement in Mexico's jails when Congressmen and journalists in the United States began to investigate complaints of American prisoners and their families. In March 1975, Congressman Fortney Stark of California introduced a resolution calling for increased cooperation and disclosure by the Executive Branch on the plight of some 150 Americans held in Mexico. H.Res. 313, 94th Cong., 1st Sess. (1975). See 121 Cong.Rec. 6740 (Mar. 14, 1975). At congressional hearings on the resolution held in April 1975, Congressman Stark reported that his staff had investigated allegations by 159 Americans imprisoned in Mexico, finding 61 cases in which prisoners claimed they had been forced to sign a confession in Spanish without benefit of an interpreter, 96 cases in which physical torture during interrogation was alleged, 80 cases in which a prisoner claimed to have been held incommunicado for extended periods of time, 50 cases of physical abuse in prison, and 68 cases of extortion by Mexican counsel. U. S. Citizens Imprisoned in Mexico: Hearings Before the Subcommittee on International, Political, and Military Affairs of the House Committee on International Relations (Part I), 94th Cong., 1st Sess. 5 (1975) (statement of Rep. Fortney H. Stark, Jr.) Following a case-by-case review of some 514 Americans incarcerated in Mexico, the State Department's Bureau of Security and Consular Affairs reported in January 1976 that the alleged deprivations of basic rights formed a "credible pattern." U. S. Citizens Imprisoned in Mexico: Hearings Before the Subcommittee on International, Political, and Military Affairs of the House Committee on International Relations (Part II), 94th Cong., 2d Sess. 48 (1976) (statement of Leonard F. Walentynowicz, Administrator, Bureau of Security and Consular Affairs, Department of State). The Bureau was able to substantiate 96 of 136 claimed instances of denied access to counsel or embassy officials, 34 of 48 claimed instances of prolonged detention prior to trial, and 45 of 140 cases in which physical abuse in prison had been asserted. Of the 219 instances in which prisoners claimed to have been physically tortured following arrest, the Bureau found only 33 cases to be unsubstantiated, while 21 instances were proven, and 165 were deemed too inconclusive to resolve. Id. at 49.

Efforts to ameliorate the plight of these American citizens were intensified, but new arrestees continued to complain of physical abuse and inadequate process. Indeed, the number of substantiated cases of physical abuse increased from 40 instances in the last six months of 1975, to 61 cases in the first half of 1976. Id. (Part III) at 9 (statement of Leonard F. Walentynowicz, Administrator, Bureau of Security and Consular Affairs, Department of State). Finally, in June 1976, Mexico's Foreign Minister proposed a treaty between the two countries permitting the citizens of either nation who had been convicted in the courts of the other country to serve their sentences in the penal institutions of their native land. Negotiations progressed rapidly and a treaty was signed by representatives of both nations in Mexico City on November 25, 1976. See Letter from Secretary of State Kissinger to President Ford (Jan. 17, 1977), reprinted in H.R.Rep.No. 95-720, 95th Cong., 1st Sess. 17-18 (1977). Following extensive hearings in the Senate Foreign Relations and Judiciary Committees, the full Senate unanimously approved the treaty by a vote of 90 to 0 on July 21, 1977. 123 Cong.Rec. S12,553 (daily ed. July 21, 1977).*fn14 Enabling legislation was ...

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