United States District Court, S.D. New York
April 8, 2004.
UNITED STATES OF AMERICA -against- GEORGE HERBERT, Defendant
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
George Enrique Herbert has been charged in a two-count indictment
with violating 21 U.S.C. § 963 by participating in a conspiracy to
import cocaine into the United States in violation of 21 U.S.C. § 812,
952(a) and 960(b)(1)(B)ii) and distribution of cocaine with the
intent that it be imported into the United States in violation of
21 U.S.C. § 812, 959(a) and 960(b)(1)(B)(ii). Herbert now moves 1) to
dismiss the indictment pursuant to Fed.R.Crim.P. 12(b)(1)(2) on the
grounds that this prosecution violates the extradition treaty the United
States has entered into with Belize and 2) to suppress any statements
made by Herbert while under custodial interrogation in Belize pursuant to
Fed.R.Crim.P. 12(b)(3). For the reasons set forth below, Herbert's
motion is denied.
A. The Circumstances Surrounding Herbert's Transfer to U.S.
On April 11, 2003, U.S. Magistrate Judge Gabriel W. Gorenstein of the
Southern District of New York issued a warrant for the arrest of Herbert,
a resident and citizen of Belize. (Def. Notice of Mot., Exh. A). Pursuant
to the extradition treaty between the United States and Belize, the U.S. Embassy in Belize then sent a diplomatic notice to
the Belizian Ministry of Foreign Affairs on April 14, 2003 requesting the
provisional arrest for the purpose of extradition of George Enrique
Herbert." (Def. Reply, Exh. A). That document specified the crimes for
which Hebert was sought in the United States, and invoked Article 9 of
the extradition treaty between Belize and the United States,
(Id.: Extradition Treaty Between the Government of the United
States of America and the Government of Belize, Mar. 3, 2000, S. Treaty
Doc. No. 106-38). Pursuant to that diplomatic request, an order was
issued by the Belizian Minister of Foreign Affairs, Geodfrey Smith, to
the Belizian Chief Magistrate, Herbert Lord, on April 24, 2003 requiring
the Chief Magistrate to issue an "warrant of apprehension" for Herbert.
(Def. Reply, Exh. D). The warrant was never executed because according to
Minnet Hafiz, Crown Counsel for the Ministry of Foreign Affairs, "George
Herbert . . . left Belize voluntarily to go to the USA to face the
criminal charges for which [he was] wanted in that country" and not
pursuant to a warrant executed under the extradition treaty. (Gov't Mot.,
Hafiz Aff., ¶ 4).
Jose Zetina, Commissioner of Police in Belize, confirmed that Herbert
was not arrested pursuant to the U.S. extradition request. Herbert was
arrested by Belizian authorities on April 25 based not on any extradition
proceeding, but rather based on information that "gang rivalry,
shootings, aggravated assaults and kidnappings were being masterminded by
George Herbert . . . among others." (Def. Reply, Exh. B, Zetina Aff,
¶ 2). It was pursuant to that information not the extradition
procedure that Herbert was seized at his home, told the purpose
of his arrest, and permitted to contact an attorney. (Zetina Aff., ¶¶
3, 5). Only after this detention did Commissioner of Police Zetina learn
that Herbert's extradition had been requested by the United States. Upon
learning of the U.S. interest in Herbert, Zetina permitted the United States Drag Enforcement Agency agents to speak with Herbert.
(Id., ¶ 6).
According to Zetina, the DEA agents, after meeting with Herbert,
notified him that Herbert had voluntarily waived his rights pursuant to
the extradition treaty and had agreed to be transferred to the U.S.
(Id.). Accordingly, the Belizian police turned Herbert over to
DEA custody on April 26, 2003.*fn1 The DEA agents then transported
Herbert by airplane to New York. (Aff. Richard A. Medina, Ex. ¶ 5).
Herbert does not claim that there was any violent or outrageous conduct
such as brutality or torture in the course of these proceedings.
B. Herbert's Statements to Belizian Police
In August of 2002, eight months prior to his arrest, Herbert allegedly
had made a series of incriminating statements concerning his involvement
in drag trafficking to Belizian law enforcement officials, including a
statement that at one time he possessed a substantial amount of cocaine.
(Def. Reply, Mem. from Officer Commanding, Special Branch Eastern
Division to Head Special Branch, "Herbert Kidnapping Case," Sept. 3,
2002). Herbert requests that those statements be suppressed on the
grounds that they were made under circumstances that violated his rights
pursuant to United States and Belizian laws. He claims that he "was not
free to leave" and "was not permitted access to a lawyer." (Herbert Aff.,
¶¶ 3,4,5,6). He refused to sign a statement at the end of the
The circumstances surrounding that interview were presented at a
factual hearing held before this Court to determine whether or not
Herbert's August 2002 statements were made voluntarily. The U.S. government introduced the testimony of
Assistant Superintendent of the Belizian Police Force Joseph Myvette, who
was present when the August 2002 statements were made and also prepared a
report of that interview. (Hearing Transcript, Dec. 19, 2003,14:5-15:12).
Assistant Superintendent Myvette testified that Herbert came to the
Racoon Street police station in Belize City on the afternoon of August
29, 2002 to report his own kidnapping. (Trans., 18:19-24). Myvette
testified that the Racoon Street station is an administrative building
and not a detention center. (Trans. 16:1-24). An arrested person would
not be brought there because it is not equipped to process a detainee and
has no detention facilities, according to Myvette. (Id.).
Herbert arrived at the Racoon Street station with the Belizian
Ombudsman, Paul Rodriguez, and his deputy, Lionel Castillo. (Trans.
16:19-13). Myvette described the Ombudsman as a "watchdog which looks
into the rights of people" and conducts investigations into the rights of
"aggrieved individual[s]." (Trans. 19-20). Herbert was neither escorted
by armed officers, nor was he handcuffed. (Trans. 19:13-20:17). Herbert
was interviewed for approximately ninety minutes in the Commissioner's
office and no one in that room was armed. (Trans. 21:1-26:8). Present at
his interview were the Ombudsman and his deputy, Assistant Superintendent
Myvette, Police Commissioner Zetina, and one plain clothes officer.
(Trans. 21). There is no allegation that U.S. agents were involved in the
interview. During the interview, Herbert was asked and answered questions
and was not forced to make any statements, according to Myvette. (Trans.
Defendant's account of the encounter differs in that he claims he was
"brought to police headquarters" by "agents of the government of Belize"
and taken to a room where there were four "armed officers." He believed
he "was not free to leave" and "was not permitted access to a lawyer." (Herbert Aff., dated Oct. 27, 2003, PP 3-4).
At the factual hearing before this Court, Herbert's attorney challenged
Myvette's credibility on the grounds that "this testimony is incredible"
because it is hard to believe "somebody would . . . volunteer that they
had a substantial amount of cocaine in their possession. . . ." (Trans.
p. 35,37). In his post-hearing submission, defense counsel makes the
same point as follows: "Myvette's entire testimony defies common sense
and logic. It is incredible as a matter of law. No other argument need be
made with regard to this issue." (Santangelo letter, dated Feb. 3, 2004,
A. The United States-Belize Extradition Treaty Was Not
Herbert contends that the indictment must be dismissed because his
extradition to the United States was in violation of the United
States-Belize extradition treaty and therefore this Court has no
jurisdiction over him. Defendant is incorrect for three reasons. First,
the Court finds that he was not transferred to United States custody
pursuant to the extradition request of the U.S. authorities, and thus he
cannot raise a violation of the extradition treaty as an obstacle to this
Court's jurisdiction. Second, defendant has not shown that even if the
treaty had been formally invoked, that his transfer was pursuant to that
treaty request. Third, even if a violation of the treaty had occurred,
Herbert does not have standing to raise that violation here.
1. Herbert Was Not Transferred to U.S. Custody
Pursuant to the Extradition Request
In the face of the affidavits from the Belizian Minister of Foreign
Affairs and the Belizian Chief Magistrate as well as the DEA report
stating that Herbert willingly left Belize, he now contends that Belize
surrendered him to the United States officials pursuant to, but in violation of, the United States-Belize extradition treaty. He
contends that because his extradition violates that treaty, the
indictment must be dismissed
Although the U.S. submitted an extradition request on April 14, 2003,
Herbert has in no way supported his contention that he was arrested and
turned over to United States custody pursuant to that extradition
request. The Commissioner of Police of Belize submitted an affidavit that
DEA agent Williams informed him of the extradition request, to which the
Commissioner replied that the agents could "speak with" Herbert because
he was already in custody. (Zetina Aff. ¶ 5). In addition, Belize
voluntarily transferred Herbert to United States custody, without
requiring the United States to follow specific, formal procedures
required by the extradition treaty.
Moreover, Herbert has in fact contended in a Belizian forum that he was
"kidnapped by Belizian authorities and expelled from Belize," rattier
than extradited. (George Enrique Herbert v. The Attorney
General Action No. 398, at ¶ 21 (Sup.Ct. Belize, 2003)).
Herbert characterized his transfer of custody as a "kidnapping and
expulsion from Belize," not as an extradition. (Id.). Chief
Justice Abdulai Conteh of Belize, presiding over that action, found that
the actions of the Belizian police violated Herbert's civil rights
because the circumstances of Herbert's departure from Belize were "a
circumvention" of the extradition treaty. Specifically, he found that the
Belizian police "simply handed [Herbert] over" to the DEA "even before
the [extradition] warrant had been "signed or issued." (Id.)
Indeed, "[Before the] formal request could run its course or be brought
to fruition, the Commissioner of Police, at the behest or information of agents of the DEA, short-circuited the whole
process. . . ." (Id. ¶ 38).*fn2 Moreover, Chief Justice
Conteh's account of the events of April 25th and 26th, 2003 is consistent
with the facts presented by the litigants here, and was formulated after
a hearing in Belize on the issues in which Herbert submitted evidence
through affidavits and testimony and was represented by counsel, who
cross-examined the adverse witnesses. The weight of the evidence, based
on facts in the affidavits of Officers Zetina and Hafiz, as well as the
moving papers of both parties, and the opinion of the Supreme Court of
Belize, all indicate that Herbert was not transferred to the United
States agents pursuant to the extradition treaty. Indeed, as noted above,
Herbert argued in Belize as opposed to his argument here
that he was "kiddnapp[ed] and expell[ed]" from Belize and not extradited
pursuant to the extradition treaty with the U.S. and Chief Justice Conteh
agreed with that argument.
2. The Mere Existence of an Extradition Request Does
Not Prevent Transfer of Custody Outside the Extradition
The extradition treaty between the United States and Belize is not the
exclusive method by which the United States can gain custody over a
Belizian national. The extradition treaty only serves to "provide a
mechanism which would not otherwise exist, requiring, under certain
circumstances, the [signatory countries] to extradite individuals to the
other country, and establishes procedures to be followed when the Treaty
is invoked." United States v. Alvarez-Machain, 504 U.S. at
664-65. In order for the mechanism for extradition established in the
treaty to be the only method by which a person can be transferred from one
country to another, the treaty must explicitly state that no other method
for transferring custody shall be used. Id. See also Kasi v.
Angelone, 300 F.3d 487,499 (4th Cir. 2002). Moreover, that express
prohibitory term cannot be implied: "[the treaty should not be read] so
as to include an implied term prohibiting prosecution where the
defendant's presence is obtained by means other than those established by
the treaty." Alvarez-Mechain, at 666; 71 F.3d 754, 762; US
ex rel. Saroop v. Garcia, 109 F.3d 165,168 (3d Cir. 1997). See
also United States v. Noriega, 117 F.3d 1206, 1213 (11th Cir. 1997)
("Under Alvarez-Machain, to prevail on an extradition treaty claim, a
defendant must demonstrate by reference to the express language of a
treaty and/or the established practice thereunder, that the United States
affirmatively agreed not to seize foreign nationals from the territory of
its treaty partner."). Thus, absent such a specific prohibition, even
after the instigation of formal extradition, the U.S. government may act
to obtain custody of the defendant through other channels without
invoking or violating an extradition treaty. Kasi v. Angelone,
300 F.3d at 499. The United States and Belize circumvented the
extradition treaty when bringing Herbert to the United States to stand
trial on this indictment and that circumvention does not invalidate his
Where the United States gains custody over a foreign national by some
method other than extradition, the rule established in Ker v.
Illinois applies: `The power of a court to try a person for crime is
not impaired by the fact that he had been brought within the court's
jurisdiction by reason of a `forcible abduction.'" Frisbie v.
Collins, 342 U.S. 519,522 (1952) (citing Ker v. Illinois,
119 U.S. 436,444 (1886). In Ken the Court held that even where
the agent who abducted the defendant in Peru traveled there with an
extradition request in his pocket, the existence of the written extradition request did not invoke the
extradition treaty. 119 U.S. at 442-43. Notwithstanding the existence of
an extradition request, defendant had simply been abducted by the United
States. Id. Similarly, this Court finds that Herbert was not
extradited to the United States pursuant to the United States-Belize
extradition treaty, notwithstanding the existence of the April 14
extradition request, and therefore the legality of the method by which
Herbert was brought before this Court on the present indictment cannot
serve as a challenge to the underlying indictment.
3. Even if the Treaty Had Been Invoked Herbert Has
No Standing To Object to the Extradition
Herbert asserts that when a person is extradited pursuant to a treaty,
and the terms of that treaty are violated, the person cannot be
prosecuted in the United States. Herbert fails to recognize the
difference between violations of the "rule of speciality," which can be
raised by defendants to defeat a court's jurisdiction, and mere
procedural violations such as those alleged in this case
which cannot be raised to defeat an indictment.
The U.S. Court of Appeals for the Second Circuit in United States
v. Reed 639 F.2d 896,902 (2d Cir. 1981), held that "absent protest
or objection by the offended sovereign, [a defendant] has no standing to
raise violation of [an extradition treaty] as an issue." Courts have
subsequently found that in limited circumstances a defendant may have
standing to raise violations of an extradition treaty. Those exceptions
arise where the extradition has violated the rule of speciality or where
the United States government participated in shocking and outrageous
conduct in securing the presence of the defendant.
The `Yule of speciality" requires that a defendant's prosecution be
based on the same facts as those set forth in an extradition request. United
States v. Sensi, 879 F.2d 888,895-96 (D.C. Cir. 1989); United
States v. Rausher, 119 U.S. 407,416-22 (1886). There is a circuit
split on whether a defendant has standing to raise a violation of this
rule, or whether the rule exists only to protect the sovereignty of the
signatory nations and thus can only be raised by those nations. See
United States v. Garrido-Santana, 360 F.3d 565,578 & fa. 10 (6th
Cir. 2004)(collecting cases); United States v. Nosov. 153 F. Supp.2d 477,
(S.D.N.Y. 2001). Some courts have found that a properly extradited
defendant who "came to this country clothed in protection . . . the
extradition treaty gave him" may have standing to raise the rule of
speciality because of that protection. Ker v. Illinois, 119 US
at 443; United States v. Martonak 187 F. Supp.2d 117 (S.D.N.Y.
It is not necessary to resolve whether Herbert would or would not have
standing to raise a violation of the rule of speciality because no
violation of that rule has been alleged. Instead, Herbert alleges that
his procedural rights pursuant to the treaty have been violated because
"the necessary steps that must be taken," absent a waiver, in order to
extradite someone, have not in fact been taken. (Def's Mem. of Law, p.
3). The "rule of speciality" allows a defendant to raise objections to
the substantive counts of an indictment that were not disclosed in the
extradition request. No such objections are being raised by Herbert here.
The substantive right vindicated by the "rule of speciality" has been
contrasted with "procedural violations" of extradition treaties.
United States v. Najohn, 785 F.2d 1420,1422 (9th Cir. 1986).
Courts have consistently refused to allow defendants standing to raise
procedural violations to extradition treaties. Id.; See also United
States v. Antonakeas, 255 F.3d 714 (9th Cir. 2001). Because Herbert
seeks to raise procedural violations to the extradition treaty which
could have been raised by Belize, he has no standing to do so.
Another exception to the general rule that a defendant cannot challenge
the jurisdiction of a court based on the method by which he was brought
before it was established in United States v. Toscanino,
500 F.2d 267 (2d Cir. 1974). In that case, the court exercised its
supervisory powers to dismiss an indictment in the face of government
conduct of the most shocking and outrageous kind. This case does not
involve the type of violent or inhumane treatment of defendant that has
led courts in the past to dismiss indictments. In order to invoke
Toscanino, the defendant must allege a "complex of shocking
governmental conduct sufficient to convert an abduction which is simply
illegal into one which sinks to a violation of due process." U.S.
ex rel. Lujan v. Gengler, 510 F.2d 62,66 (2d Cir. 1975). Abduction
alone is not that sort of "shocking governmental conduct." The court must
look to see whether any violent or offensive conduct occurred, such as
torture, brutality and similar outrageous conduct." Id. at 65.
The alleged deprivation of defendant's rights to formally challenge his
extradition are not the type of shocking and outrageous conduct which
requires the court to exercise supervisory powers. Additionally,
"[e]ssential to a holding that Toscanino applies is a finding
that the gross mistreatment leading to the forcible abduction of the
defendant was perpetrated by representatives of the United States
Government" United States v. Lira, 515 F.2d 68,70 (2d Cir.
1975). Here, any "mistreatment" was effectuated by representatives of
Belize, not the U.S. agents.
Herbert attempts to establish his standing to challenge the extradition
based on language that appears in United States v.
Alvarez-Machain that treaties are all "self-executing" and that
therefore a court must enforce a treaty "on behalf of an individual
regardless of the offensiveness of the practice of one nation to the other nation."
504 U.S. at 667. This language, appearing in dicta in
Alvarez-Machain, and couched in hypothetical language, has not
led other courts to find that defendants have standing to raise an
objection to an extradition outside the rule of speciality. Subsequent
courts addressing the issue of whether a defendant has standing to
challenge an indictment based on imperfect extradition have specifically
found that phrase to be insignificant. See e.g., United States v.
Matta-Ballesteros, 71 F.3d 754,762 (9th Cir. 1996) "[I]n the absence
of express prohibitory terms [specifiying extradition as the only method
one signatory country can gain jurisdiction over nationals of another] a
treaty's self-executing nature is illusory.").
B. Herbert's Statements Made on April 29, 2002 Were
Voluntary and Are Admissible in this Proceeding
A statement made by a defendant to foreign police in the absence of
Miranda warnings is only admissible against that defendant in a
prosecution in the United States if the statement was made voluntarily.
United States v. Yousef, 327 F.3d 56,145 (2d Cir. 2003)
(collecting cases). In order to determine whether a statement was
voluntary when made, the Court applies a `totality of the circumstances"
test that includes an examination of "the characteristics of the accused,
the conditions of the interrogation, and the conduct of the law
enforcement officials." United States v. Yousef, 327 F.3d at
56; see also United States v. Welch, 455 F.2d 211 (1972). In
evaluating the totality of the circumstances," a court should examine,
among other matters, the conduct of law enforcement officers, the length
of the interrogation and detention, and whether any physical or
psychological coercion took place. United States v. Yousef,
925 F. Supp. 1063,1075-76 (S.D.N.Y. 1996). According to the government, the 2002 Belizian police report, which
contains several potentially incriminating statements by Herbert
regarding his involvement in the drug trade, is a voluntary statement
Herbert made in reporting his own kidnapping the day that Herbert
appeared at the Racoon Street Station as a complainant.
Herbert's challenge to the Belizian government's account of the
interview is to claim that Assistant Superintendent Myvette's testimony
should not be believed because it is "incredible" that Herbert would go
to a Belizian police station and incriminate himself voluntarily, much
less do so and then leave the police station without being arrested.
(Trans. 36:17-21, Santangelo letter, dated Feb. 3, 2003, p. 3).
However, Myvette's testimony was credible and Myvette explained why
Herbert incriminated himself at the police station: a person cannot be
arrested in Belize for drug crimes based solely on his own testimony, but
rather must be apprehended with actual contraband. (Trans. 33:21-24).
This aspect of Belizian law lends credibility to Myvette's statements
that Herbert make incriminating statements voluntarily, because if he was
not in possession of contraband at the time when he made the statements,
he apparently was not vulnerable to criminal sanctions. Additionally,
Herbert has not alleged any physical or psychological coercion in his
affidavit and the police questioning lasted less than two hours. (Herbert
The Court also credits Myvette's testimony that the police station was
an administrative center and that no one was armed in the room where the
questioning of Herbert tookplace. (Trans. 19:13-20:17; 21:1-26:8;
22:5-17). In light of these facts, there is no reason to think that
Herbert did not volunteer the information contained in his statement, and
the government has met its burden of proving by a preponderance of the
evidence, and considering the totality of the circumstances, that Herbert's statements were
made voluntarily. See United States v. Diaz, 891 F.2d 1057,1060
(2d Cicr. 1989) (citing Lego v. Twomey, 404 U.S. 477,482-89
For the reasons set forth above, Herbert's motion to dismiss the
indictment and to exclude incriminating statements from the evidence
offered at trial is denied.