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U.S. v. ORLANDEZ-GAMBOA

January 29, 2003

UNITED STATES OF AMERICA
v.
ALBERTO ORLANDEZ-GAMBOA, DEFENDANT



The opinion of the court was delivered by: Thomas P. Griesa, United States District Judge

OPINION

Defendant has moved to suppress certain statements he made to Drug Enforcement Administration agents while being transported by the DEA from Colombia to the United States. The motion is denied.

Defendant relies on his own affidavit dated January 28, 2002. The Government relies upon the testimony of DEA agents Matthew Donahue and Richard Bendekovic given at a hearing held on September 12-13, 2002. Following the direct examination of Donahue and Bendekovic, the defense attorney declined to cross-examine.

Defendant Gamboa was turned over by Colombian officials to the DEA in Bogata, Colombia on August 18, 2002. He was placed on board a DEA aircraft at approximately 10:00 a.m. and then flown to Fort Lauderdale. Florida a stop at Guantanamo Bay, Cuba. At Fort Lauderdale Gamboa was placed on another DEA plane and flown to Teterboro, New Jersey, arriving at about 11:00 p.m., August 18. Gamboa was then taken to the DEA's Manhattan headquarters for processing, and ultimately to the Metropolitan Correctional Center in Manhattan.

The Gamboa affidavit asserts that prior to his journey, he had retained a criminal defense attorney in Colombia, and also on attorney in New York to represent him in connection with the extradition matter as well as the indictment against him in the Southern District of New York. Gamboa asserts that the New York attorney had visited him in jail in Colombia on one occasion, and that this was known to Colombian jail officials and also, he assumes, to United States authorities.

Gamboa states that he was taken out of his prison cell in Bogata at about 11:00 p.m. on August 17, 2002 and transported by Colombian officers to the Bogata airport where he was delivered to DEA agents and placed on a plane to be flown out of Colombia. Gamboa claims that from the time he was removed from his prison cell until the time the plane left Bogata he repeatedly asked for food and drink, and was given none. For almost all of this time he was in the custody of Colombian officers.

Gamboa states that after the DEA plane took off from Bogata, he repeatedly asked for something to eat and drink, and to use the bathroom. On the first leg of the journey — to Cuba — Gamboa was, according to his affidavit, given a hamburger but was given nothing to drink and was denied permission to use the bathroom. He asserts that during the short stay in Cuba, and during the flight to Florida, his multiple requests for food and drink and to use the bathroom were ignored. His affidavit states that in Florida he was finally permitted to use the bathroom but was given no food or water.

Regarding the flight from Fort Lauderdale to Teterboro, Gamboa does not go into detail regarding the food, drink and bathroom issues. However, he states in general that during the entire plane trip from Colombia to the United States (presumably meaning to the ultimate destination near New York), he was given no food other than a hamburger and no water at all, and was permitted one usage of the bathroom while in Florida.

Gamboa asserts that he was never advised of his Miranda rights during the course of the journey. He states that he had no conversation whatever with the DEA agents on the flight from Colombia to Cuba, or from Cuba to Florida. He states that during the trip from Florida to Teterboro the agents attempted to question him and persuade him to cooperate, but he did not respond.

The testimony of DEA agents Donahue and Bendekovic is different in almost every respect.

Donahue was with Gamboa during the flight from Bogata to Cuba, the stop in Cuba and the flight from Cuba to Fort Lauderdale. On the trip from Bogata to Cuba. according to Donahue, Gamboa was offered sandwiches potato chips and a choice of soft drink or water. He refused them, except for a bottle of water. Donahue asserts that during the stop in Cuba, Gamboa used the bathroom and had something to eat from a vending machine.

Donahue testified that upon leaving Bogata he read Gamboa his Miranda rights twice in Spanish and showed him the card with the Miranda rights printed on it in Spanish. Gamboa stated that he understood these rights. Shortly thereafter, Donahue asked Gamboa if he was ready to leave Colombia and Gamboa stated that he was. Gamboa then asked about constitutional rights, specifically about how the system in America works, and whether he would need to pay for a lawyer or if one would be provided to him. Donahue explained the system of judicial proceedings in the United States. Gamboa made no incriminating statements on this occasion.

Shortly before the plane landed in Florida, Donahue pointed out Fort Lauderdale to Gamboa from the air, after which Gamboa stated that he wasn't that big of a trafficker, and that he was just involved in a 1,000 kilogram cocaine deal. Donahue responded that if Gamboa wished to cooperate, he should speak to Agent Bendekovic, who would be at the Fort Lauderdale airport.

In Fort Lauderdale Gamboa was handed over to Bendekovic and other agents. Donahue informed Bendekovic that Gamboa had been informed of his Miranda rights and that he appeared ...


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