                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-50050

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01258-GW-1

 v.                                              MEMORANDUM*

PETER OMAGBEMI,

              Defendant - Appellant.


                    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.




        *
             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.
      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

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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
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.




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