The opinion of the court was delivered by: PLATT
Defendant moves pursuant to the Sixth Amendment to the United States Constitution and Rule 48(b) of the Federal Rules of Criminal Procedure to dismiss the indictment herein on the ground that his rights to a speedy trial have been violated in that the indictment in the instant case was returned on June 20, 1978, and that he was not arrested until February 10, 1985.
On its return the indictment was sealed and was not thereafter unsealed until defendant's friend and co-defendant Bernabe Oliveras was arrested and arraigned thereon on July 22, 1981.
During the entire period between the return of the indictment and the date of his arrest the defendant has been a resident and a citizen of his native country of Venezuela, where he has lived (according to the testimony of his daughter) in four or more separate houses with his wife, son and daughter. His daughter also testified that the defendant was unaware of the pending indictment against him until he was arrested on February 10, 1985.
The testimony at the evidentiary hearing was further clear that during the period between indictment and arrest the defendant had undertaken a number of commercial transactions in the United States and in connection therewith had regularly traveled to the United States, making numerous trips thereto using passports and visas issued to him under his true name.
Moreover, on or about November 2, 1981, while the defendant was in Miami, Florida on one of these business trips, he was shot and wounded by one or more unidentified person or persons. During his treatment at Jackson Memorial Hospital he was interviewed by police officers about the shooting and various reports were made of the incident. Subsequent to his discharge from such hospital he traveled to and convalesced in Florence, Alabama.
In its memorandum the Government sets forth an interesting "Statement of Facts", a substantial portion (if not all) of which it presumably intends to prove at the trial and which we set forth in full herein so that the reader may be apprised of the nature of the Government's claims:
"In 1977, Eduardo Pernia Bonnett, a cooperating source, provided DEA agents with details of a large cocaine smuggling conspiracy whose membership included the defendant Agreda and which was responsible for the monthly importation in the United States of approximately 100 pounds of cocaine. Bonnett described one of the methods of importation as involving the acquisition of cocaine from laboratories in Colombia and the transportation of that cocaine to Venezuela. In Venezuela, the defendant arranged for 30-50 kilogram quantities to be placed on Venezuelan ships. This cocaine was then transported to Miami. In Miami, the defendant arranged for the offloading of the cocaine. The cocaine was then transported by car or by Amtrak's Autotrain to New York where the defendant supervised the distribution of the cocaine.
"Bonnett decided to cooperate with the Drug Enforcement Administration after the defendant Agreda and others threatened to kill Bonnett because they believed he had stolen $240,000 from them. Prior to Bonnett's coopertion, Bonnett had made reservations at the Hilton Hotel, 1335 Avenue of the Americas, New York for Agreda. Agreda brought a suitcase containing $240,000, the proceeds of cocaine distributions, to the hotel. After leaving the suitcase in that room, Agreda claimed that Bonnett had stolen the case from the hotel room.
"After the disappearance of this cash, Agreda and co-defendants Bernabe Oliveras, Jose Selimo Garcia, and Juan Manuel confronted Bonnett at his residence.Agreda threatened to kill Bonnett. Co-defendant Bernabe Oliveras interceded on behalf of Bonnett, asking that Bonnett's life be spared. Oliveras pointed out that Bonnett's father was a presidential candidate in Colombia and that he (Oliveras) was related by marriage to Bonnett. Agreda and the others were persuaded by Oliveras. After this incident, Bonnett contacted federal agents and began providing information concerning the importation of cocaine by Agreda and his co-conspirators.
"Bonnett's debriefings included his admission that on March 9, 1977, he smuggled $200,000 of currency in a false bottom suitcase out of the United States and into Colombia for Agreda and co-defendants Jose Selimo Garcia and Hector Chacon. Jose Selimo Garcia and Hector Chacon escorted Bonnett to the John F. Kennedy International Airport where he departed for Colombia. In Colombia, Agreda met Bonnett at the airport.
"During this trip to Colombia, Bonnett learned of the group's plans to import twenty kilograms of cocaine to the United States. The cocaine was to be driven from Bogota, Colombia to Caracas, Venezuela. Then, in Caracas, the defendant Agreda was to turn the twenty kilograms over to a Venezuelan ship's captain. This ship would transport the cocaine to Miami. From Miami, the cocaine would be transported to New York.
"On March 13, 1977, Bonnett returned to New York, and was contacted by Oliveras who asked Bonnett to keep 35 kilograms of cocaine in Bonnett's apartment. Subsequently, at Oliveras' request, Bonnett met Oliveras at the apartment. During the course of Bonnett's meeting with Oliveras, Agreda came to the apartment, picked up a large quantity of cocaine, placed it in a suitcase and left.
"At the request of DEA agents, Bonnett consented to the recording of phone conversations with Agreda as well as with co-defendants Bernabe Oliveras, Mendoza, and Jose Selimo Garcia. In addition, Bonnett wore a Nagra recorder during meetings with Agreda and Oliveras. During these discussions, particularly those with Agreda, frequest references were made to the cash taken from Agreda's hotel room. Bonnett also discussed, with Agreda, various ways that he could help Agreda recover the lost cash. Specifically, on August 10, 1977, Agreda offered to sell "pure" cocaine to Bonnett at $32,000 per kilogram.In this same conversation, Agreda indicated to Bonnett that he did not expect Bonnett to pay him for the lost cash and that he considered the stolen funds "a campaign contribution," an apparent reference to Bonnett's father.
"On June 21, 1978, a sealed indictment was filed, in the Eastern District of New York charging the defendant, and fourteen co-defendants, with conspiring to import substantial quantities of cocaine into the United States, in violation of Title 21, United States Code, ...