From top - L-R: Carlston Beazer, Chad Skelton, Roberto Harrigan and Bob Hodge in July 2012.
Photo Credit: BVI Platinum News
Two months after hearing arguments, High Court Judge, Justice Albert Redhead has ruled against the extraditing of the five men wanted by the United States (US) in connection with an alleged 13-year drug ring.
The Judge's landmark decision was delivered this morning, September 17.
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.
Justice Redhead ruled that Senior Magistrate Valerie Stephens' ruling in March was null and void, false and that the BVI is the appropriate forum for the men to be tried.
"In my conclusion, I hold, among other things, that the order by the Learned Magistrate to extradite the applicants was null and void as it was based on an invalid authority and in addition to the reasons given above, the order of the Learned Magistrate to extradite the applicants to the United States of America is quashed. It is hereby declared that the appropriate forum to try the applicants for the alleged drug offences is the British Virgin Islands. I must confess that it is not with any pleasure or gratitude that I have arrived at these conclusions, but that is the law as I see it" the Judge stated.
It is unclear at this time whether the Government will proceed to appeal the Judge's decision; however, the men are also on remand for local charges in relation to the same drug ring.
BVI Platinum News understands that the men's lawyers will be seeking bail in relation to the local charges; however, it was pointed out that this has to be done through the Magistrate's Court.
At the two-day hearing before Justice Redhead in July, lawyers for the men challenged the March magisterial decision where Senior Magistrate Stephens had ruled that she found a prima facie case was made out against the men who are wanted by the US Government.
The lawyers argued that the BVI is the appropriate forum for the men to be tried. They also argued the point of entrapment by the United States (US) Government because it was the US Government which purchased a registered US airplane to transport the drugs.
The defense lawyers also stated that the document issued by Governor Boyd McCleary for the Magistrate to hear the proceedings was flawed because the Governor issued an Authority to Proceed when it should have been an Order to Proceed; hence, the Magistrate's decision for committal of the men was invalid.
According to the defense lawyers, there was 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.
In his 38 page decision today, Justice Redhead stated that in his view, what the Magistrate purported to do in her written decision was a fundamental departure from her oral judgment in relation to the Authority to Proceed and an Order to Proceed.
He said the Committal Order of each of the five defendants was made on March 13, 2012, the same day as the oral judgment, and signed and stamped by the Learned Magistrate on that date. He viewed the written decision on March 15, 2012 as an extension of her oral decision.
"I make one observation that under the oral judgment...the Learned Magistrate ruled that she therefore make an order for committal under Section 9 (8) (a) of the Extradition Act." He said this is whereas the Learned Magistrate in her written decision ruled, "Order for Committal is made under Section 7 (1) of the Extradition Act in relation to each accused person."
He said the Senior Magistrate's mandate for extradition proceedings was a confidential memorandum from the Governor on October 26, 2011 as the Authority To Proceed with extradition proceedings.
The Judge said the hearing of the extradition proceedings commenced on February 3, 2012 and an adjournment was taken and then the hearing was resumed on February 24. According to the Judge, the Magistrate was then presented with supplementary orders directed to her from the Governor dated February 23, 2012.
Hodge's lawyer, Julian Knowles, QC had argued that the Governor purported to exercise a power which he did have, namely a power to issue an Authority to Proceed which was fundamentally flawed as the Governor purported to issue it under Section 7 of the Extradition Act, which is to be found in Part 3 of the Extradition Act of 1989. He had noted that this has no application in the BVI so far as United States is concerned.
Knowles had stated that what was required by way of initiating the process was an Order to Proceed issued under paragraph 4 of Schedule 1 of the Extradition Act 1989.
Justice Redhead ruled that he has absolutely no doubt that Schedule 1 paragraph 4 (1) of the Extradition Act is the authority under which the Learned Magistrate should have proceeded and would have given Authority to Proceed to determine the extradition proceedings.
He said he has no doubt also that the Learned Magistrate committed the five applicants under Schedule 9 (8) (a) of the Extradition Act 1989, and having made and signed the Order for Committal of the five applicants on March 13, 2012, the Learned Magistrate purported to correct that order two days later.
The Judge said this, in his considered opinion, the Magistrate could not lawfully do, as by then she was functus officio.
The Judge said the lead counsel for the Government, Alun Jones, QC argued that this was a clerical error.
"But, in my opinion, it could not have been as the Learned Magistrate based her ruling on the document which was before, i.e Authority to Proceed issued by the Governor. In her ruling, the Learned Magistrate actually recited the authority of Part 3 of the Extradition Act, Section 9 (8) (a). This is the same Authority that the Governor relied on in purporting to invest the Learned Magistrate with Authority to Proceed...," Justice Redhead stated.
Additionally, the Judge ruled that in his view, what the learned Magistrate purported to do in her written decision was a fundamental departure from her oral judgment. He said it was not to clarify any language in her oral judgment and that the written decision was a contradiction of her oral decision and it was not a case of taking evidence for reasons which she had given.
The Judge said he is in agreement with the men's lawyers that the October 2011 Authority to Proceed is invalid because the Governor purported to issue it under Part 3 of the Extradition Act 1989 which has no application in the Virgin Islands in relation to the United States. Hence, the Magistrate committed the applications on the basis of a defective Authority to Proceed and that her Order for Committal was made without jurisdiction.
"I yield to and I am in total agreement with this submission. Having so ruled, the applicants are entitled to the Order of Habeas Corpus which they seek," he said.
Entrapment & Conspiracy
Meanwhile, in relation to the entrapment with the US registered air craft and conspiracy arguments, Justice Redhead said as he understands that the issue surrounding the acquisition of the plane by Roberto Mendez-Hurtado was desire obviously, to his mind, of expanding his drug trafficking trade.
"I am of the view that CS-1, the American agent became aware of Mendez-Hurtado´s desire to purchase a plane and the purpose for which it was required. CS-1 therefore facilitated Mendez-Hurtado´s purchase of the plane," the judge stated.
Terrence Williams on behalf of the government during the hearing had argued that as regards to Mendez-Hurtado, he was the one directly dealing with CS-1.
He had stated that there was no incitement, no persuasion for him to cause the aircraft to be purchased, and that it was a properly conducted investigation, a properly conducted infiltration of the enterprise.
"What is clear is that Mr. Skelton, Beazer, Valdez and Hodge; Hodge on one occasion, Skelton and Beazer on both occasions, went out to sea to receive cocaine that was dropped from an aircraft. There is no element of them being persuaded by any government agent, local or US, to take to the sea or to receive the drugs that came from the aircraft. They did all that of their own free will," Williams had stated.
However, in his judgment today, Redhead said, "I do not, for one minute, understand that Counsel for the applicants to be saying that the applicants were persuaded by anyone to go out and retrieve the drugs dropped from an aircraft or that it was not their free will. I understand the argument to be it was a US registered aircraft that was involved with an American citizen on board which gave the US jurisdiction in this case. If, for instance, the airdrop was made from another aircraft which was not US registered the US would be unable to claim jurisdiction, according to the arguments of the applicants," he said.
He said Williams had argued that conspiracy is not just limited to the dropping of the drugs in the BVI waters, but the presence of Edwardo Diaz here in the Territory, the movement of money from the territory back to Mendez-Hurtado, and in fact, Hurtado´s presence in the territory would make it patent that an inference can be drawn that they were aware of the wider conspiracy which was being engaged.
Justice Redhead said indeed those things may point to a wider conspiracy.
"However, could one draw from these actions an inescapable inference of a conspiracy to send cocaine to the US? I think not. The conspiracy if course, is largely a matter of inference. How do we know what the conspirators contemplated? What they intended? Mr. Williams argues that James Springette and Mr. Elton Turnbull tell us what was in their contemplation. Otherwise, we have to infer it from their actions," he said.
The Judge said he cannot embrace the Attorney General´s Dr. Christopher Malcolm´s submission that once the cocaine gets on board the aircraft, the crime would have been committed.
"Suppose for example, the drugs get on board the air craft which is not in flight, whilst the aircraft is on the ground for instance, then the requirements of the statue would not have been met. No offense would have been committed," the Judge said.
Justice Redhead added, "In my opinion, there is no doubt that the defendants/applicants may have conspired to import cocaine into the BVI. Were they parties to a conspiracy to import cocaine into the United States? This is the critical question."
He said nowhere in the affidavit evidence of Diaz could the inference be drawn that the applicants had knowledge that the drugs were consigned to the US.
"The requesting authority, in my opinion, seemed to have concluded that since the applicants were engaged in a Caribbean based trafficking organization, they must have been aware that the drugs were destined for the United States. This, to my mind, is a quantum leap. In my considered opinion, it could never seriously be contended with certainty or by inference that because a US registered aircraft was involved that the destination of the drugs was for the US. No evidence was put forward that the applicants knew or suspected that the plane was a registered US plane, bearing in mind that they were not involved in its purchase," the Judge said.
Photo Credit: BVI Platinum News
Meanwhile, on the issue of the BVI being the right forum for the men to be tried, the lawyers had stated that hat it is oppressive for the United States as the requesting state to ask for their extradition to be tried for the offences.
They had argued that the men are before the court in the BVI for the same offences which began before the US stepped in to have them extradited to stand trial.
The Judge said in his view, the defendants would be entitled to jury trial under Section 16 (1) (g) of the BVI Constitution to have have a trial before their peers.
"In my opinion, one is entitled to that right whenever that is possible. To extradite the defendants to stand trial in a foreign jurisdiction will deprive them of that right," he stated.
Government contracted Alun Jones, QC out of the UK to represent the prosecution, who was the respondent in the July 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; 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.
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.