The opinion of the court was delivered by: Trager, District Judge.
On July 2, 1998, defendant Reginald Rodrigues ("Rodrigues") was
indicted on three counts of federal narcotics charges: conspiracy
to distribute and possession with the intent to distribute a
Schedule II controlled substance (cocaine), conspiracy to import
a Schedule II controlled substance (cocaine) into the United
States, and possession of a Schedule II controlled substance
(cocaine) with the intent to distribute.
On June 5, 1998, several shipping containers, with a bill of
lading listing J & W Seafood Vegetable and Fruits Corp., 125 Mott
Street, New York, New York as consignee, arrived at
Philadelphia's port from Guyana. See Letter from Karen R. Sage,
Esq., Assistant U.S. Attorney, dated Dec. 15, 1998 at 1
[hereinafter "Dec. Ltr."].*fn2 According to its manifest, the
containers held frozen headless sea trout; however, upon
inspection, customs officers found two containers filled with
boxes labeled frozen shrimp. See id. Two of these boxes actually
contained 25 kilos of a white substance which later proved to be
cocaine. See id. Customs agents refilled the two frozen shrimp
packages with a "sham load" that included an electronic tracking
device. See id. All the containers were then released from
customs, unloaded, and brought to a cold storage facility in
Brooklyn, New York. See id.
Surveillance of the cold storage facility on June 9, 1998
revealed a man, later identified as defendant Rodrigues, taking
the two boxes containing the tracking device out of storage,
loading them into the back of a white van, and boarding the van
himself. See id. The van went to 295 East 38th Street in
Brooklyn, where Rodrigues took the two boxes into an apartment
building.*fn3 See id. at 2. Frank Wray arrived at the building
soon thereafter, and both Wray and Rodrigues transferred the
boxes from the apartment building to the trunk of Wray's car. See
id. Wray then drove alone to 1455 St. Johns Place, Brooklyn,
where he was arrested in the hallway outside his apartment door.
Rodrigues was arrested a short time later outside the front
door of 295 East 38th Street, Brooklyn. See Jan. Tr. at 31. Since
Rodrigues did not have any ID on him at the time of his arrest,
one of the customs agents instructed him to ask a friend to go
inside and get his passport, which he did.*fn4 See id. at 32-33.
Once the passport was obtained, Rodrigues was transported to the
World Trade Center, where he was processed and placed in a room
to be questioned. See id. at 40-41. As part of the processing
routine, Rodrigues completed a "Personal History Report" (DEA
Form — 202) on which he indicated he was a citizen of Guyana and
had a permanent address there, as well as immediate family. See
Letter from Robert S. Wolf, Esq., dated May 26, 1999, Ex. A
[hereinafter "May Ltr."].
In response to their questions, Rodrigues told the agents that
he was the shipper/exporter of the containers from Guyana and
that he was the person responsible for completing the manifest,
bill of lading, and customs documents. See Dec. Ltr. at 2; Jan.
Tr. at 30, 52. He said he had flown into JFK airport early that
same morning (June 9, 1998), having left Guyana as soon as he was
notified the containers had cleared customs. See Jan. Tr. at 30.
He also admitted to the agents that he knew there was cocaine in
the boxes labeled frozen shrimp and that he had been given
instructions by an unnamed source in Guyana to notify Wray when
the shipment arrived and to give Wray the boxes. See id. These
statements were presented to the Grand Jury and formed part of
the basis for Rodrigues' indictment.
Article 36 of the Vienna Convention on Consular Relations, to
which both the United States and Guyana are parties, states, in
Article 36: Communication and contact
with nationals of the sending State
1. With a view to facilitating the exercise
of consular functions relating to