L-R: Carlston Beazer, Chad Skelton, Roberto Harrigan and Bob Hodge in July 2012.
Photo Credit: BVI Platinum News
Attorneys for the Government and for the five men facing extradition to the United States (US) in connection with an alleged 13-year drug ring, battled in the High Court for and against the extradition request. The two-day hearing where the lawyers for the accused men challenged the magisterial decision took place on Thursday, July 12 and Friday, July 13 before Justice Albert Redhead.
The men wanted by the US are local businessman Earl Delville Hodge known as 'Bob Hodge'; Customs Officer Roberto Harrigan known as 'Tico'; Chad Skelton; Carlston Beazer; and Juan Valdez.
During the hearing, the lead UK Queen's Counsels (QC) on both sides argued several points before Justice Redhead.
The lawyers for the men brought up issues such as the BVI being the appropriate forum for the men to be tried; entrapment by the United States (US) Government with the purchase of a registered US airplane to transport the drugs; the document issued by Governor Boyd McCleary for the Magistrate to hear the proceedings was flawed, hence the Magistrate's decision for committal of the men was invalid; and that there is no evidence to support that the men were aware that the airplane used in the airdrops in the BVI waters was registered in the US and the drugs were destined to the US, among other issues.
Government contracted Alun Jones, QC out of the UK to represent the prosecution, who was the respondent in the hearing, while former Director of Public Prosecutions, Terrence Williams, who was contracted for the hearing in the Magistrate's Court was also on the prosecution team along with the Attorney General, Dr. Christopher Malcolm and Senior Crown Counsel in the DPP's Office, Valston Graham.
Three of the defendants hired UK attorneys. Lord Kenneth Macdonald, QC was Skelton's lead counsel along with his initial lawyer, Tana'ania Small-Davis; Harrigan's lead counsel was Edward Fitzgerald, QC along with his initial lawyer, Patrick Thompson; and Julian Knowles, QC for Hodge. Beazer's lawyer remained the same Mr. Richard Rowe and Valdez - Attorney at Law Stephen Daniels.
Entrapment, Conspiracy, Contemplation
Skelton's lawyer, Lord Kenneth Macdonald, QC put forward that by the undercover US agent purchasing a US registered aircraft, it was an entrapment by the US Government to get jurisdiction in relation to the case.
Macdonald, QC said they have argued that as part of the abuse in the case is that it was precisely the action of the American Government's agents which resulted in Skelton quite unknowingly becoming involved in committing an offence in relation to the US.
"...Having clearly facing evidence of a crime in the BVI and then simultaneously having behaved that way, having we would say, entrap him into providing evidence into commission of a US crime and now to seek to extradite him for that is abusive...We are talking about a case in which it is their [US] action - they didn't know him at that time and he didn't know them - which created conditions for him weeks later going out on a boat into the sea over here and finding himself to possibly face potentially decades in prison in the US. And that we say, that is abusive conduct and we say the proper course is for the BVI proceedings to run their course...There is simply no evidence that he has been involved in extradition crime," he told the court.
Prosecutor Williams in his argument said the defense is stating that the US instigated, lured or incited the accused men. "So they have argued on the assumption that the US agent purchased the plane as some use or device to find jurisdiction when otherwise there would be no jurisdiction in America. It is important then, to look at the facts that we do have before us."
He said the affidavit of Corrine Martin states that CS 1 [undercover US agent] who had infiltrated the drug trafficking organization was always under the official control of US agents and agencies where they realized that there was a drug trafficking organization and in that organization there were two individuals including Roberto Mendez-Hurtado, a Colombian drug lord. Williams said the US agent began communications and it was Hurtado who wanted the aircraft and who asked that the aircraft be purchased by the agent. He said it was Hurtado who caused money to purchase the aircraft to be delivered by his agents into an account opened for that purpose.
He argued that Martin was actively involved in receiving the money and putting it into that account to purchase the aircraft.
"It was purchased and GPS tracking device placed on it...Even with regards to Hurtado dealing with CS 1 [US agent], there is no incitement, there is no persuasion of or for him to cause this aircraft to be purchased. It was a properly conducted investigation and properly conducted infiltration of the enterprise," Williams stated.
He said the men went out to sea in the BVI to receive cocaine that was dropped from the aircraft which they did on their own free will.
"There is no element of them being persuaded by any Government agent, local or US, to take to sea or to see the drugs that came from the aircraft. They did that on their own free will. We argue that what we have here by these acts is clear evidence of their involvement in conspiracy. They are engaged in a conspiracy with the other parties regarding the dropping of the drugs...Well the conspiracy has many parts to it; one part is to drop in the sea of Tortola and the other part is to possess it on an aircraft to which it had been...So the conspiracy is not just limited to dropping it into the BVI waters," he stated.
Williams said indeed the presence of Edwardo Diaz here in the Territory, the movement of money from the Territory back to Hurtado and the fact that Hurtado was here to perform supervisory role in the operations shows that an inference can be drawn that the men were aware of a wider conspiracy which was being engaged.
The Prosecutor went on to argue that the drugs was on American Territory when it was on the American plane, so the overt act was committed in America.
"Our facts are that there is no reason to infer that the reason why the American purchase an American plane is to ground jurisdiction because it was indeed Mr. Hurtado who sent money to America to purchase the plane...In our case, there is clear evidence that it was on an American soil; that is, on the American plane."
He added, "When the men went out to sea to receive the drugs, they would not have received the drugs if they knew it was an American plane; that is a proposition they [accused lawyers] suggested...The argument they are making from what I understand is that were it not for the Americans purchasing an American plane, then they would not have committed the offence...but there is no evidence of enticement."
Williams asked if the men were searched or sought out by the Americans and asked to receive drugs. "They went out of their way; one would say without navigation and lights as we would see in one of the affidavits...They went out to sea to receive these drugs."
He also commented that Beazer and Valdez spoke to Diaz in Her Majesty's prison and explained to him why they thought the last operation failed, which was due to the fact that Hodge may have been too cheap.
The Prosecutor said it is open to draw the inference that the men were engaged in a conspiracy where they contemplated the movement of drugs by air or aircraft; hence, drugs on the US aircraft was an overt act of furtherance of their conspiracy.
"This means that whilst the drugs were on that plane, they were in constructive possession of the drugs...So they too were also committing overt acts in the US...The American Government therefore did nothing to incite them to do or cause them to do which they were not otherwise doing...," Williams told the court.
However, Justice Redhead then stated that there is no evidence to show they knew it was an American plane. Williams then stated that they can use inferences to know what the men were contemplating, where it could either mean that they had no concern where the plane was from [what the flag of the plane is], they contemplated it was American plane and where they didn't want it to be an American plane.
He went on to argue that if the Magistrate was acting as a jury in this case, then it would have had to be proven beyond reasonable doubt; however, she was there to decide whether a prima facie case was made out.
Williams said it is his submission that entrapment is an issue that should be dealt with by the courts in the requesting state.
"The issue of entrapment, raised as it has been, ought really to be a matter for the court of the requesting state. It has been raised as an issue of abuse of process and the testing is whether it abuses the extradition process or the claim is that it abuses the trial process. An entrapment as we understand it is largely a question for whether it abuses the trial process. It has always been that ordinarily, the extradition court would not consider the fair trial issue in the requesting state, respecting that there are the mechanisms in place for those issues to be properly considered," he argued on Friday, July 13.
Queen's Counsel Alun Jones said the Prosecution is stating that the nature of the agreement is to take part of the supply of vast amount of cocaine and they were contemplating the US as one of the jurisdictions. "The plane was registered in the US, not Mexico...The US was a high candidate...So the purchase of the plane was an overt act."
Meanwhile, Skelton's lawyer Macdonald, QC in response argued that this is not a case in which the men's lawyers are stating that someone was persuaded or pushed onto a boat off the shores of the BVI with bales of cocaine. He told the court that his client is not charged with a substantive offence, but rather a conspiracy charge and in that case, by law, he must be aware of certain things including that the airplane was an American registered airplane.
"I reassert that what has to be proven in this case, on the BVI law, is that my client, Mr. Chad Skelton knew at the time he entered into this agreement, either the drugs were destined to the United States, or that the US plane was involved. There is no sufficient evidence to achieve that..."
He further argued, "The point is that he is not charged with a substantive offence, he is charged with conspiracy so he has to know those things. It is not enough...He has to be aware of them...but their [Prosecution] analysis of the law is misconceived...This conspiracy is governed by the BVI criminal code...The evidence doesn't even go close to it...In my submission, the court should refuse his [Skelton] extradition on that fundamental basis."
Macdonald, QC said the lead Prosecutor, Jones QC argued two questions - did the defense agree that drugs might be carried on the US plane, or might be destined to the US. According to Macdonald, QC this admission by the Prosecution "may in one sense reflect their understanding that they cannot possibly prove on the state of the evidence that he did know...now they are saying he might have known..."
Hodge's lawyer, Knowles QC said with the issue of them knowing that the plane was US registered, there is no evidence that the men were involved in the purchasing of the plane and no evidence to show that they travelled to the US or had any contact with the US agent.
BVI Is Right Forum For Trial
The lawyers for the men argued strongly that the BVI is the right forum for the men to be tried and noted that it is unfair to have concurrent prosecution against the men, where there are also local charges against them. The men are also facing local charges in relation to the same drug ring and those charges were adjourned in late September 2011 to allow for the extradition hearing to take priority.
However, Attorney General, Dr. Christopher Malcolm who is on the Prosecution team, said the moment that the drugs got onto the US airplane, an offence was already committed. He said whether or not there was an ultimate destination thereafter for the US or anywhere else is another question to be determined and possibly another offence to be committed, but an offence was already committed.
"...The onus is on the applicant of establishing that it is unjust or oppressive to extradite him...The fact that there is prosecution here going on is no bar at all to these extradition proceedings. And it is these submissions that we make here as well, that the fact that there may have been a prosecution commence here, is absolutely no bar and in the facts of this case, we are suggesting from the reasons mentioned that the US is as good, if not a better forum than the BVI is. And that there is absolutely no bar and that reason should not be a significant reason considered when the question of whether or not the extradition to the US should happen," Dr. Malcolm argued on Friday, July 13.
Prosecutor Terrence Williams said the first schedule of the Extradition Act recognizes that a person can be facing local charges whilst he is wanted overseas.
"At the time of decision making; it is not at the time of committal. What the local charges will bar is extradition, not committal for extradition. So at the extradition stage, the Governor could not, if something is not done with the local charge - whether to place them on file...So that will be bar for extradition, not abuse of process because the statue has a machinery to deal with the eventuality," he said.
Queen's Counsel Alun Jones told the Judge that he decides on the Habeas Corpus, not if they should be returned to the US, rather that is for the Governor. He argued that the matter of extradition is reserved to the Governor on his discretion under the Extradition Act of 1989.
Jones, QC said Trinidad court said it is an executive decision, not a judicial decision. "It's a matter for him [Governor] if extradition is ordered."
He said it should be weighed which Police Force played a major role in the investigations and who has completed the investigations and are ready to take the men to trial.
"Which Police played a more role in the investigations?" The US already has a comprehensive case; the US is ready to proceed with a trial...Where is the evidence located...which jurisdiction has the severity sentence," he asked, pointing out that it is the US.
One of Roberto Harrigan's lawyers, Patrick Thompson on Friday, July 13 stated that the BVI and not the US is the proper forum for the men to be tried. He said the issue of the local charges in relation to the conspiracy here in the BVI laid against the defendants and the conspiracy against them in the United States is indeed a weighty factor.
"It need not have to come to that stage as we term it, concurrent prosecution against the men...It is in fact an abuse of the court's process to do so...The BVI is the only appropriate forum for the trial of Mr. Harrigan and others," Thompson stated.
Magistrate Decision Invalid
Hodge's lawyer, Knowles, QC brought up the issue of the document signed by the Governor for the Magistrate to carry out the extradition hearing, which he said had a fundamental flaw. He said Governor Boyd McCleary, who apparently acted on advice from the Director of Public Prosecutions Office, signed an Authority to Proceed when he should have issued an Order to Proceed; hence, they ended up with a document under the wrong law with the wrong title.
"That document is legally invalid, because it was headed Authority to Proceed...therefore, the Magistrate based herself on that October document and said this is the jurisdiction, I do not look any further...So in our respectful submission, it is absolutely clear the Magistrate did not have and did not base her jurisdiction on a document issued under paragraph 4 of schedule 1. And if Your Lordship [Justice Redhead] agrees with me on that, that is the end of this extradition case...Whoever advised the Governor advised him wrongly," Knowles, QC stated.
He argued that the order for committal by the Magistrate was invalid.
"...The Magistrate ruling on the 13 March and the committal made, were made in pursuance to a judgment which stated in clear terms that the order was made under section 9, sub-section 8, paragraph A, which is part three of the Extradition Act. And it is clear why the Magistrate fell into that mistake, because she had an order or document from the Governor saying I authorize you..."
Meanwhile, Following the two-day hearing, Justice Redhead said he will provide a written judgment as soon as humanly possible.
Photo Credit: BVI Platinum News
On completion of the extradition hearing in March in the Magistrate's Court, Senior Magistrate Stephens on March 13, 2012 had ruled that she found a prima facie case was made out against the men who are wanted by the US Government.
The men are all wanted by Florida law enforcement officials, while Hodge was committed for extradition to face trial in both Florida and North Carolina.
In delivering her decision on March 13, the Magistrate said that she was committing each of the men to Her Majesty's Prison to await a decision from the Governor on the extradition. At the time, she also told the men that they have a right to file a Habeas Corpus in the High Court and following this, lawyers for the men filed a Habeas Corpus, hence the two-day hearing.
In her March ruling, Senior Magistrate Stephens said in relation to the North Carolina request, the extradition request came through the right diplomatic channels. She said she was also satisfied that Bob Hodge was identified by James Springette, Elton Turnbull and Sandra Harrison. Stephens said in relation to Florida, the right diplomatic channels were also used in relation to this request. She said she was also satisfied that the men were identified by Edwardo Diaz and Roberto Mendez.
She said after weighing all the submissions, the US would have jurisdiction to try the matter given the overt acts that were committed.
It is alleged that the five men were parties to a conspiracy to import cocaine from South America into the Virgin Islands for onward shipment to Puerto Rico, the United States Virgin Islands and the United States mainland. Bob Hodge made arrangements with several persons, including Roberto Mendez-Hurtado, a Colombian drug lord.
According to the US, the agreement was to unlawfully import cocaine by way of airdrops at night in the Territorial waters of the Virgin Islands. Those arrangements allegedly began sometime in 1998 until September 29, 2010. It is further alleged that payments for each shipment were made to Bob Hodge, initially in the amount of 10 percent per worth of each load and later to 15 percent per load.