## Facts

- Francisco Toscanino, an Italian national, was indicted in the Eastern District of New York for conspiracy to import narcotics under 21 U.S.C. §§ 173 and 174.
- After a joint jury trial, he was convicted and sentenced to 20 years’ imprisonment and a $20,000 fine.
- Toscanino did not challenge the sufficiency of the evidence or trial errors; he challenged how he was brought before the federal court.
- He alleged that U.S. agents arranged for him to be lured from his home in Uruguay, kidnapped, transported through Brazil, tortured, and forcibly brought to the United States without extradition or other lawful process.
- He also alleged U.S. officials conducted illegal electronic surveillance of him in Uruguay to obtain evidence.
- The government did not concede or deny the allegations at that stage and argued they were irrelevant to the district court’s personal jurisdiction.
- The district court denied Toscanino’s pretrial and post-verdict motions to dismiss and to order his return, without holding an evidentiary hearing, relying on Ker v. Illinois and Frisbie v. Collins.

## Issues

1. Whether due process requires a federal court to decline personal jurisdiction when a defendant’s presence is allegedly procured by deliberate and extreme misconduct by U.S. agents abroad (including kidnapping and torture), notwithstanding the Ker–Frisbie rule.
2. Whether alleged unlawful electronic surveillance by U.S. authorities abroad requires judicial inquiry and may trigger suppression or other relief under Fourth Amendment and exclusionary-rule principles.

## Decision

- The Second Circuit did not vacate the conviction on the existing record; it remanded for further proceedings.
- The court directed the government to respond to Toscanino’s allegations and required the district court to conduct an evidentiary inquiry into the alleged abduction and surveillance.
- The court held that Ker–Frisbie is not absolute where the government’s conduct in securing a defendant’s presence is so egregious that it violates due process; if the allegations were proved, the district court would be required to divest itself of jurisdiction and grant appropriate relief.
- The court indicated that unlawful electronic surveillance by U.S. agents abroad could require factual development and could warrant exclusionary-rule remedies if trial evidence was tainted.

## Legal Principles

- A court’s power to try a defendant is not invariably insulated from scrutiny of how the defendant was brought before the court; due process can impose limits when government conduct is extreme and conscience-shocking.
- Where U.S. agents procure a defendant’s presence through deliberate, unnecessary, and unreasonable misconduct (including kidnapping and torture), due process may require dismissal or other relief, including divestiture of personal jurisdiction.
- Allegations of U.S.-directed electronic surveillance abroad may require an evidentiary hearing to determine legality and whether evidence introduced at trial was derived from unlawful surveillance.
- When a defendant makes substantial allegations of jurisdiction-defeating misconduct, the district court should require a government response and develop a factual record rather than denying relief solely on Ker–Frisbie.

## Conclusion

The Second Circuit remanded for a hearing on allegations that U.S. agents kidnapped, tortured, and unlawfully surveilled Toscanino abroad, holding that sufficiently egregious government misconduct may violate due process and require the federal court to decline personal jurisdiction and provide appropriate remedies.


United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974)