Judge reports ill in Roger Khan case
-defence files response to US Government
Kaieteur News
January 5, 2007
Attorneys for Guyanese businessman Roger Khan, who is facing drug trafficking charges in the United States of America , yesterday continued their efforts to have him released on bail pending his trial.
Khan appeared in the Eastern District of New York Court yesterday for another scheduled hearing, which was postponed to January 20 th because of the reported illness of Judge Dora Irizarry.
But, in a written response to submissions made by the United States Government, Khan's US attorney Robert Simmels reiterated that Khan is not a flight risk, and using previous case laws, he argued that Khan should be released on bail.
In the letter, which was addressed to judge Irizarry, Simmels stressed the need for two witnesses -- US Charge D'Affaires at the Georgetown embassy, Michael Thomas, and DEA agent Gary Tuggle -- to testify.
The US Government had stated in court that the testimony of Thomas and Tuggle is irrelevant to Khan's bail hearing.
Simmels contends that both statements support Khan's claims that the testimony of Thomas and Tuggle is relevant to the issues to be determined.
He points out that although the court ruled that their testimony was immaterial, the government's position confirms their relevancy to a hearing to establish the circumstances of Khan's flight from Guyana .
The US Government advised the court that Khan "…was found after there was an arrest warrant for him. Also, he was wanted in Guyana on separate things, and went on the lam and was found in Suriname , when he was arrested by Surinamese law enforcement."
In response, the Court also noted that "the fact that he may have had another arrest somewhere else for drugs, that he may be wanted by yet another jurisdiction, may be relevant as well with respect to detention…"
“Simply put, the government misses the point. The circumstances of Mr. Khan's arrest is not the thrust of our submission, and thus, the basis for our request for reconsideration of the Court's denial of our application to have Michael Thomas and Gary Tuggle testify.
Indeed, no matter how the government now seeks to minimise its statement to the Court that Khan was facing charges in Guyana, fled to Suriname, and was arrested there on narcotics related charges, it was made, and this Court accepted said representations in making its comments that the information would be factors in assessing release,” Simmels wrote.
Simmels is insisting that Thomas and Tuggle are first-hand witnesses to the series of events that led to Khan's departure from Guyana .
In this regard, he says, their anticipated testimony is directly relevant to the issues to be determined by the Court at the detention hearing, including Khan's propensity as a flight risk and a danger to the community, as claimed by the US Government.
He stated that the thrust of the defence's application for reconsideration is that Khan was not a fugitive from Guyana, and that his alleged involvement in a drug case in Suriname was dismissed within two weeks, when it was determined he had no involvement.
He said that that is what the two witnesses could testify to, if called.
Simmels also noted that since the defence's last submission to the Court, it has learnt that the other three individuals arrested with Khan in Suriname , in June 2006, and detained there after his release, were in fact released at the end of November by the Suriname Government, with no charges brought.
Yesterday's postponed hearing was attended by Khan's defence team as well as about 20 family members.
The Guyanese businessman's attorney is also contending that the evidence of the two men, coupled with official statements of the Government of Guyana, following Mr. Khan's arrest in Suriname , that they had no interest in seeking his extradition from Suriname , are also relevant and within the province of Messrs. Thomas and Tuggle, who are permitted to testify as to hearsay.
“The government continues to hammer at non-issues in this proceeding. First, the Vermont and Maryland matters have little to do with this Court's role in assessing release…
“We are not claiming that the Court cannot consider those matters, but this Court is required to make an independent finding with respect to the instant charges, not other jurisdictions,” Simmels contended.
With regard to the government's claim that Mr. Khan has no legal status, Simmels pointed out that as part of the discovery provided, there is a copy of a Deportation Order from Trinidad , so Mr. Khan is not without status.
“That Deportation Order demonstrates a violation of Due Process by the United States in bringing Mr. Khan here without a hearing having been conducted in Trinidad first,” the US attorney noted.
Simmels stated that the court is also required to consider the length of the proceedings, noting that the US Government has asked the court to declare the matter a complex case, and a trial date is not forseeable.
“Mr. Khan has been incarcerated since June 29, 2006. We submit, in this regard, that we would be able to obtain a statement from the Government of Guyana that Khan cannot return to Guyana , and that if he did, they will send him back to the United States .
“Mr. Khan has no passport, and cannot go back to Guyana or anywhere else,” Simmels said.
He explained that the US Government's proffer was woefully insufficient, since it stated in broad terms that Khan was involved in drug trafficking, specifically with regard to a 2003 seizure.
That case, he said, with extensive eavesdropping and more, as well as sworn statements from the agents involved, did not produce any evidence of Khan's involvement, but, in fact, to the contrary.
“The law requires that there must be clear and convincing evidence presented by the government to demonstrate that Mr. Khan is a danger to community , and that there must be preponderance of evidence to establish risk of flight .
“Bail should be denied only for the strongest of reasons” U.S. v. Motamedi, 767 F.2d 1403 (9th Cir. 1985),” Simmels cited.
According to Simmels, the strength of the government's case is further weakened by the fact that the documents seized from Khan's office and home in Guyana were obtained illegally.
He urged the court to conduct an inquiry into the circumstances of the legality of the seizure of these items, and whether the chain of custody of any alleged item seized was proper, before giving any weight to the government's reliance thereupon.
He noted Khan has almost his entire family in the United States , and would be staying at a relative's home in the Eastern District of New York.
Further, he explained, Khan's family is willing to post property worth approximately $2 million, and to pay for electronic monitoring and private security to insure his presence.
“Mr. Khan made no effort to avoid facing the pending charges in the Eastern District of New York; his presence in Guyana , operating several successful legitimate businesses, was well known to the United States Government for the past ten years.
“Certainly, according to the report of the March 6, 2006 meeting in Guyana , Mr. Khan willingly met with, and attempted to assist, the DEA with respect to corruption in Guyana etc...
“(This) is a strong indication that he is not a flight risk. The Court must also be mindful that opportunities for flight alone are insufficient grounds for denial of bail. For all of the reasons stated above, release should be granted,” Simmels submitted.