United States of America v. Peter Omagbemi

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PETER OMAGBEMI,
Defendant - Appellant.
No. 16-50050
D.C. No. 2:09-cr-01258-GW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted October 2, 2017**
Pasadena, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,***
District Judge.
FILED
OCT 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

-- 1 of 4 --

Peter Omagbemi pleaded guilty to one count of wire fraud. As part of his plea,
he reserved the right to appeal from the denial of his motion to dismiss the indictment.
The motion to dismiss was based on Omagbemi’s claim that, after he got lost near the
U.S.-Canada border, he was approached by a Customs and Border Protection officer
who ordered Omagbemi to follow the officer across the border into the United States.
In this appeal, Omagbemi argues that the indictment should have been dismissed
“because the government failed to preserve evidence of his abduction by United States
border patrol [sic] officers from Canada into the United States in violation of due
process and because the destroyed evidence would have established lack of
jurisdiction [sic] over Omagbemi as a result of the abduction.” This argument is
without any merit.
Even if the government in fact improperly failed to preserve evidence of
Omagbemi’s “abduction” to the United States—a question we do not decide—the
evidence in question would have established no more than Omagbemi was in fact
“abducted” in the manner in which he alleges. Yet, even if he had been “abducted” in
that manner, Omagbemi would not be entitled to any relief from an indictment
charging him with wholly unrelated criminal conduct. In United States v. Alvarez-
Machain, 504 U.S. 655 (1992), the Supreme Court held that the Ker-Frisbie doctrine,
which permits jurisdiction when suspects are taken from foreign countries in order to
2

-- 2 of 4 --

bring them to trial in the United States, Ker v. Illinois, 119 U.S. 436 (1886), or from
one state for trial in another state, Frisbie v. Collins, 342 U.S. 519 (1952), applied
even when (1) the United States government was involved in the taking and (2) an
extradition treaty existed between the United States and the country from which the
defendant had been taken. Id. at 660–62, 669–70. The critical basis for the holding in
Alvarez-Machain was that the treaty in that case, between the United States and
Mexico, “says nothing about the obligations of [the party nations] to refrain from
forcible abductions,” id. at 663, and that in the absence of such an obligation, the
abduction of a criminal defendant to the United States does not deprive the district
court of jurisdiction to hear the case, id. at 664–70.
Omagbemi does not rely on the language of the extradition treaty between the
United States and Canada, or any of its subsequent protocols. Instead, he relies on a
1988 exchange of letters between the United States Secretary of State and the
Canadian Secretary of State for External Affairs that addresses the issue of
“transborder abduction of persons found in Canada to the United States of America
by civilian agents of bail bonding companies.” Protocol Amending the Treaty on
Extradition, Can.-U.S., Jan. 11, 1988, 27 I.L.M. 422, 427 (1988). Moreover, the letter
and response reflect that the exchange was “not intended . . . to create or otherwise
alter any rights or privileges for private parties.” Id. at 429. This language, which
3

-- 3 of 4 --

Omagbemi ignores in his brief, removes any shadow of doubt that the 1988 exchange
provides him with no grounds to challenge the jurisdiction of the district court and the
validity of his conviction.
The judgment of the district court is AFFIRMED.
4

-- 4 of 4 --