Opinion
No. 04-M-0721(SMG).
January 24, 2005
MEMORANDUM AND ORDER
Introduction
Defendant Allison Hunte is before this Court pursuant to an extradition request made by the Government of Barbados. Hunte faces charges in Barbados of trafficking in a controlled substance. A hearing to consider whether the evidence presented by the Government of Barbados is sufficient to support extradition, and whether Hunte has established any defense to extradition, has been scheduled for March 14 and 17, 2005.
Defendant Hunte has moved to compel the United States to provide her with certain discovery. I heard argument on Hunte's motion on January 18, 2005. For the reasons discussed below, and those I stated in open court during the argument, Hunte's motion is granted in part and denied in part as specified below.
Discovery of Evidence Pertaining to Probable Cause
In the first prong of her motion, Hunte seeks a copy of her passport, copies of immigration logs maintained by the Government of Barbados, a copy of the passports of other individuals implicated in the investigation conducted by the Government of Barbados which led to her being charged there, and copies of affidavits submitted to government officials in Barbados in support of search warrants conducted as part of that investigation.
The charges pending against Hunte in Barbados are based in part upon statements made by individuals who have admitted to being involved with narcotics trafficking and who claim that Hunte participated in narcotics smuggling and distribution with them. One individual in particular claims to have met with Hunte and to have been paid by her for bringing drugs to Barbados at her instruction. Hunte contends that, if provided with her own passport, the passports of the other individuals who have implicated her, and immigration logs, she will be able to demonstrate that she could not have been present at the times and places described by her alleged co-conspirators. Hunte contends more generally that the information in the search warrant affidavits will help her explain why the government's probable cause showing in support of her extradition is deficient.
The scope of discovery available in an extradition proceeding is narrow, and rests within the discretion of the magistrate judge. Extradition of McMullen, 1988 WL 70296, at *5 (S.D.N.Y. June 24, 1988). In exercising this discretion, a court must bear in mind that "extradition proceedings are not to be converted into a dress rehearsal trial." Id., quoting Jhirad v. Ferrandina, 536 F.2d 478, 484 (2d Cir. 1976). Generally, an accused confronting extradition
has no right to introduce evidence which merely contradicts the demanding country's proof, or which only poses conflicts of credibility. On the other hand, the accused has the right to introduce evidence which is `explanatory' of the demanding country's proof.Extradition of Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978).See also Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984); Extradition of Orellana, 2001 WL 266073, at *6 (S.D.N.Y. Mar. 15, 2001).
Hunte has failed to demonstrate how the affidavits submitted to government officials in Barbados in support of search warrants will help her to "explain" the proof presented against her. With respect to the immigration logs maintained by the Government of Barbados and the passports of the individuals in Barbados who implicated her, Hunte apparently seeks these documents to impeach the statements of the witnesses against her about where and when they met with her.See, e.g., Def. Reply Mem. at 16 (arguing that "[w]e merely seek basic documents that will readily demonstrate the falsity of Alrick Johnson's statements"). However, as noted above, evidence which simply contradicts the proof offered by the requesting country is not properly considered when evaluating the evidence supporting an extradition request. Moreover, at least some courts have expressed concerns about ordering a foreign country to produce physical evidence to the United States for purposes of extradition hearings. See Extradition of Drayer, 190 F.3d 410, 415 (6th Cir. 1999); Sindona, 450 F. Supp. at 687. For these reasons, Hunte's motion to compel production of these documents is denied.
Hunte's argument in support of her request for a copy of her own passport is more persuasive. First, counsel has indicated that Hunte may testify at the extradition hearing. Hunte's recollection of when and where important events took place may be refreshed by a review of her passport. Hunte's counsel has also suggested that the passport may help to establish an alibi defense, and at least one court — albeit in the context of deciding a bail application — has considered whether evidence of an alibi negated probable cause. See Extradition of Gonzalez, 52 F. Supp. 2d 725 (W.D. La. 1999). Finally, a United States passport is and at all times remains the property of the United States. 22 C.F.R. § 51.9 (2005). Accordingly, compelling production of Hunte's passport would not raise the same comity concerns as requiring the Government of Barbados to produce its own documents, such as immigration logs, warrant applications, and passports of its citizens. For these reasons, Hunte's motion to compel production of a copy of her passport is granted.
Discovery of Evidence Pertaining to Due Process Claim
Hunte contends that, after being released on bail in Barbados, she began meeting with agents of the United States Drug Enforcement Administration ("DEA") stationed there. Affidavit of Jacques Semmelman, Esq., dated October 27, 2004, ¶¶ 4-6. According to Hunte, the agents were aware that she faced pending charges, but nevertheless proposed that she flee from Barbados, come to the United States, and cooperate with the DEA by providing information relevant to a pending narcotics investigation. Id. ¶¶ 7-9. One of the DEA agents promised in return that, if Hunte came to the United States, she would not be extradited to Barbados. Id. ¶ 9. In reliance on that promise, Hunte covertly fled from Barbados and came to New York. Id. ¶ 11. Hunte was subsequently arrested on the basis of a provisional arrest warrant pending extradition to Barbados. Id. ¶ 14.
Hunte argues that she reasonably relied to her detriment upon the promises made by the DEA agents, and that due process now demands that those promises be enforced. In the motion now pending before the court, Hunte seeks to compel discovery from the government in anticipation of attempting to prove, at the hearing set for March 14 and 17, that the promises she describes were in fact made by the DEA agents with whom she cooperated. The government opposes Hunte's discovery demands primarily by arguing that, even if true, Hunte's assertions are irrelevant because they would pose no bar to her extradition. For the reasons stated below, I disagree.
In Santobello v. New York, the Supreme Court held that, "when a [guilty] plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. 257, 262, 92 S.Ct. 495, 499 (1971). The holding in Santobello has been applied to cooperation agreements as well as plea agreements. See, e.g., United States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 1990). Santobello was recently further extended to apply to promises made to a defendant by prosecutors after the defendant entered a guilty plea and intended to induce the defendant's continued cooperation. In Williams v. Spitzer, the court held that
reason and common sense require the extension of the due process principle declared in Santobello, in the context of a prosecutor's promise given to induce a guilty plea, to the present context of a prosecutor's promise given to induce cooperation with law enforcement. There is no principled difference between the two. . . . In the plea context, the prosecutor's promise is the consideration given to induce the defendant to plead guilty; if the defendant pleads, Santobello holds the prosecutor to his promise. In the cooperation context, the prosecutor's promise is the consideration given to induce the defendant to cooperate with law enforcement; if the defendant cooperates, . . . what legal principle, what concept of fairness, what distinction founded in reason, relieves the prosecutor of his promise? I am unable to discern any, and therefore extend the principle of Santobello. . . .246 F. Supp. 2d 368, 383 (S.D.N.Y. 2003).
Hunte contends that government agents made her promises to induce her cooperation, and that she cooperated in reliance on those promises. Hunte now seeks to hold the government to the promises made by its agents. The rationale of Santobello, particularly as extended in Williams, supports Hunte's argument.
The government denies Hunte's allegations. More relevant for present purposes, the government argues that, even if they were true, those allegations would be insufficient to defeat extradition. In particular, the government asserts that, before enforcing a promise which would have the effect of requiring the executive branch to violate its obligations pursuant to treaties with foreign nations, courts should at a minimum require that the promise have been made by a government agent with actual authority over extradition matters. Thus, the government argues that the discovery Hunte seeks is irrelevant and that Hunte's motion to compel should be denied.
Although the government's sensitivity to its treaty obligations is understandable, that Hunte asserts a constitutional claim in the context of an extradition proceeding is no bar to her claim's success. To the contrary, the Supreme Court "has regularly and uniformly recognized the supremacy of the Constitution over a treaty." Reid v. Covert, 354 U.S. 1, 17, 77 S.Ct. 1222, 1231 (1957). Moreover, several courts have concluded that extradition might well be precluded if facts similar to those alleged by Hunte were established.
For example, in Extradition of Romeo, the Court reasoned as follows:
If the Government makes an agreement with a person in which it promises not to extradite him or her, a subsequent attempted [sic] by the government to extradite the person is a violation of the person's rights to due process and a Federal Court, on a petition for writ of habeas corpus, may enjoin the extradition.
1987 U.S. Dist. LEXIS 9347, at *18 (D. Mass. Apr. 27, 1987). Similarly, in Plaster v. United States, 720 F.2d 340 (4th Cir. 1983), the Court reasoned that "fundamental fairness could well require habeas corpus relief and enforcement of the government's promise not to extradite Plaster." 720 F.2d at 350.
Geisser v. United States, 627 F.2d 645 (5th Cir. 1980), involved a promise by federal prosecutors to two defendants, made as part of a plea and cooperation agreement, that the government would use its "best efforts" to avoid the deportation of the defendants to France or Switzerland. When Switzerland attempted to extradite one of the defendants, she sought to avoid extradition by invoking the promise made by the prosecutors. After lengthy proceedings in which the government was called upon to fulfill its promise to use its "best efforts" to avoid extradition, the court ultimately held that "`best efforts' cannot be taken to require a violation of a treaty by the United States. The promise would have to contain stronger and more specific language to force this." 627 F.2d at 755. Clearly, the import of the court's holding is that, had the government's promise been made in stronger and more specific language, extradition might well have been precluded; indeed, in the course of reaching its decision, the court reasoned that "[i]f the United States government has not complied with the plea bargain, [defendant's] constitutional claim is a valid one and a purported treaty obligation of the United States government cannot override an individual constitutional right." 627 F.2d at 750.
Finally, in Valenzuela v. United States, 286 F.3d 1223, 1230 (11th Cir. 2002), the Court enforced a promise of confidentiality with the result that an extradition request was denied. Valenzuela involved two defendants who cooperated with the DEA in return for a promise that the DEA would use all lawful means to protect their confidentiality. Nevertheless, when Italy attempted to extradite the defendants, the government's probable cause showing included an affidavit of a DEA agent setting forth incriminating statements made by the defendants in the course of their cooperation. The court held that, by submitting the affidavit, the DEA breached its promise to protect the defendants' confidentiality and, citing Santobello, concluded that the affidavit could not be considered. Because the evidence submitted in support of extradition absent the affidavit failed to establish probable cause, the court issued a writ of habeas corpus and the defendants were not extradited.
In sum, there is ample support for Hunte's position that, when a defendant relies upon a promise made by federal officials to her detriment, a defendant has a due process right to have that promise enforced, even when as a result an otherwise proper extradition request is denied or the United States is otherwise precluded from complying with its obligations pursuant to a treaty. However, the government argues that, even if promises not to extradite may be enforceable, only officials with actual authority may make binding promises not to comply with properly presented extradition requests. This argument presents a closer question.
In Plaster, government officials had promised a defendant he would not be extradited. Nevertheless, the court declined to enforce the promise without first examining the scope of the authority of the officials who made it.
The second principal question is whether [the government officials] had the authority to include in the immunity agreement a promise, binding on the President of the United States, not to extradite Plaster. Although we have indicated that precise formalisms as to actual authority will not be controlling as regards the enforceability of plea bargains, we have held that there must at a minimum be apparent authority.720 F.2d at 354 (internal citations omitted). The Court then remanded for further fact-finding. On remand, the district court found that the officials who made the promise not to extradite were authorized to do so, and held that Plaster could not be extradited. 605 F. Supp. 1532 (W.D. Va. 1985). The government appealed, and the case returned to the Circuit Court, where the district court's finding of actual authority was affirmed.Plaster v. United States, 789 F.2d 289, 291 (4th Cir. 1986). However, while the language of its earlier opinion seemed to suggest that the Fourth Circuit would have enforced the promise not to extradite even if it had been made with apparent rather than actual authority, the court stated in its opinion after the remand that "a grant of immunity from extradition must be made by one to whom the authority to issue such immunity has actually been delegated." 789 F.2d at 292.
Other cases applying Santobello, however, have held that apparent authority is sufficient to bind the government. Ironically, the only Second Circuit authority cited by the parties is found in the government's brief, and suggests that, when liberty interests are at stake, apparent authority is sufficient to bind the United States. In Doe v. Civiletti, 635 F.2d 88, 96 (2d Cir. 1980), the Court invoked the rule that "the United States is not bound by the unauthorized acts of its agents." The claim at issue, however, involved property rights, and the Court distinguished cases such as Santobello and noted that rights implicating constitutional liberty interests "may be a basis for an exception to the actual authority doctrine." Id. at 97. In Palermo v. Warden, 545 F.2d 286 (2d Cir. 1976), prosecutors argued that a promise of early release on parole they made to a defendant should not be enforced because it "was ultra vires and not binding on the State." 545 F.2d at 295. The Court rejected this argument, reasoning that
Santobello requires relief when the prosecutor fails to fulfill promises within his power made in negotiating a plea bargain. We believe that the reasoning underlying Santobello applies no less when the prosecutor makes unfulfillable promises in negotiating a plea. . . . [C]ourts have afforded relief where prosecutors have made specific sentencing promises which were unfulfillable, since sentencing lies totally within the court's discretion. . . . We . . . hold that where a defendant pleads guilty because he reasonably relies on promises by the prosecutors which are in fact unfulfillable, he has a right to have those promises fulfilled.545 F.2d at 296 (internal citations omitted). See also Bemis v. United States, 30 F.3d 220 (1st Cir. 1994) (rejecting argument that promise by prosecutor that defendant would be permitted to enter witness protection program was unenforceable because the promise was made without actual authority); United States v. Carter, 454 F.2d 426, 428 (4th Cir. 1972) (holding that, when federal prosecutors make promises without authority, the "solution does not lie in formalisms about . . . express, implied or apparent authority" but in "the administrative controls which . . . regulate . . . the conduct of cases by United States Attorneys and their assistants. . . . There is more at stake than just the liberty of this defendant. At stake is the honor of the government [and] public confidence in the fair administration of justice").
In any event, the question presented by the motion now pending before me is not whether Hunte, if her allegations are believed, is immune from extradition, but rather whether Hunte has articulated a sufficiently colorable claim of immunity from extradition to justify the discovery she seeks. For the reasons stated above and in court during oral argument, and subject to the limitations imposed in court after hearing oral argument, I conclude that she has, and grant her motion to compel to that extent.
Conclusion
For the reasons stated above and in open court during the arguments held on January 18, 2005, Hunte's motion to compel discovery is granted in part and denied in part as specified on the record at the time of oral argument.
SO ORDERED.