between now and a ruling on the merits of the habeas claim, the
Court finds that these interim harms are insufficient to be
considered irreparable. For this reason, the balance of harms
does not weigh in favor of the petitioner.
LIKELIHOOD OF SUCCESS ON THE MERITS
The general rule is that an allegedly illegal arrest, or
forcible abduction by authorities, will not provide grounds for
dismissal of an indictment. United States v. Yunis, 681 F. Supp. 909,
918 (D.D.C. 1988); Frisbie v. Collins, 342 U.S. 519, 72
S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7
S.Ct. 225, 30 L.Ed. 421 (1886). Petitioner, however, argues that
his claim falls within the exception to this rule set out by the
Second Circuit in United States v. Toscanino, 500 F.2d 267 (2d
Cir. 1974), which held that a court must "divest itself of
jurisdiction over the person of a defendant where it has been
acquired by the deliberate and unreasonable invasion of the
accused's constitutional rights," Id. at 275; specifically,
dismissal is warranted when the defendant has been abducted
abroad and tortured in a manner that shocks the court's
conscience. The reasoning in Toscanino has since been limited by
the Second Circuit, See United States ex rel. Lujan v. Gengler,
510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct.
2400, 44 L.Ed.2d 668 (1975), but most circuits have at least
acknowledged the Toscanino exception. See Yunis, 681 F. Supp. at
919-20 (collecting cases). In United States v. Marzano,
537 F.2d 257 (7th Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734,
50 L.Ed.2d 749 (1977), the Seventh Circuit declined to decide
whether it would adopt the rule in Toscanino. Marzano, 537 F.2d
at 272. Finally, although Toscanino involved the alleged
abduction and torture of a defendant to stand trial, at least one
Circuit Court has considered the Toscanino rule in a case
involving the re-apprehension of an escapee from a federal
penitentiary. United States v. Herrera, 504 F.2d 859, 860 (5th
Cir. 1974) (affirming conviction on a finding that Toscanino was
The Court is unaware of any case in which a prisoner was freed
under the Toscanino exception. See United States v. Toscanino,
398 F. Supp. 916 (E.D.N.Y. 1975) (on remand, court declined to
hold evidentiary hearing; defendants failed to make a claim of
participation by government agents in abduction or torture). As
the petitioner has failed to make the required showings of a lack
of an adequate remedy at law, and irreparable harm should the
injunction not issue, it is unnecessary to determine petitioner's
likelihood of success on the merits.
For the same reasons, it is not necessary for the Court to
address the issue of public policy concerns, and the Court makes
no determination as to that issue.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this matter pursuant to
28 U.S.C. § 2241.
2. The petitioner has failed to establish that he lacks an
adequate remedy at law should the injunction not issue. He may
move to dismiss any indictment pending against him, and each
district in which an indictment is pending provides an adequate
forum for his claims. Further, this Court retains jurisdiction
over his habeas petition.
3. The petitioner has failed to show that he has or will suffer
irreparable harm should the injunction not issue. Mere
speculation as to potential economic expenses cannot, standing
alone, constitute irreparable harm.
4. As the petitioner has failed to show irreparable harm
exists, the balancing of harms cannot, therefore, weigh in
5. The Court makes no ruling on petitioner's likelihood of
success on the merits, reserving the ruling for the Court's
threshold review of the petition for writ of habeas corpus.
6. The Court makes no ruling as to the public policy
Accordingly, the Court hereby DENIES petitioner's application
for Preliminary Injunction and, further, DISSOLVES the Temporary
Restraining Order heretofore issued.
IT IS SO ORDERED.
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