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U.S. v. HERBERT

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.

I. Background

 A. The Circumstances Surrounding Herbert's Transfer to U.S. Custody

  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 interrogation. (Id.).

  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. 21.).

  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, p. 3).

 II. Discussion

 A. The United States-Belize Extradition Treaty ...


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