The prosecution in the Roger Khan drug trial is asking Justice Dora L. Irizarry to exclude testimony such as the defendant’s alleged help in the release of a kidnapped US diplomat and his alleged “covert assistance” to the Guyana Police Force, arguing that these matters are irrelevant to Khan’s charge of exporting cocaine to the US.
In a memorandum of September 12 seen by this newspaper, the prosecution said that it did not want any evidence included pertaining to Khan’s alleged assistance in the release of the former diplomat in Guyana, Stephen Lesniak. Lesniak was kidnapped in April 2003 and was taken to Buxton from where he was released. The prosecution also does not want any evidence of any information Khan may have provided to US authorities during a March 2006 meeting at Ocean View and any assistance he may have given to the local police.
“Second the government [prosecution] seeks to exclude from the trial any evidence concerning political relations between the United States and Guyana, including Guyana’s purported ‘strategic value to the United States’ and ‘the possibility of an American-supported effort’ to oust the ruling political party in Guyana,” the court document said. It was pointed out that despite Khan’s repeated suggestions to the contrary, “…these topics are irrelevant to the charges in this case.”
It was noted that any evidence concerning United States-Guyana relations, in particularly allegations of an American-supported effort to oust the ruling party, “would improperly divert attention from the relevant issue of the defendant’s conduct to irrelevant actions by the United States. Such evidence would waste time, distract and confuse the jury, and invite jury nullification based on alleged irrelevant government misconduct. The court should not permit Khan to use this case to put United States foreign policy on trial.”
Khan, who is facing an 18-count drug trafficking charge including heading a criminal enterprise in the furtherance of his illegal trade, had though his lawyers sought to have the above evidence included in the trial.
He is now in even more hot water after being indicted along with his lead attorney, Robert M Simels and his assistant, for alleged witness tampering in the said drug case. Simels, who has now been ordered to have no contact with Khan, has been placed on US$3.5M bail while his assistant was granted US$500,000. And while Khan has not been arraigned he has also been indicted.
In its new motion the prosecution said that during the trial they would establish “that the defendant was the leader of a violent drug trafficking organisation that was based in Georgetown, Guyana, from at least 2001 until his arrest in June 2006. Khan and his co-conspirators obtained large quantities of cocaine and then imported the cocaine into…New York, among other places, where it was further distributed.” The prosecution said that Khan was “ultimately able to control the cocaine industry in Guyana, in large part because he was backed by a para-military squad that would murder, threaten, and intimidate others…”
According to the document, Khan’s statements in relation to Lesniak “are self-serving and inadmissible”. The prosecution recalled in his motion Khan had said that the diplomat was kidnapped by former prison escapee, Shawn Brown, and that a former GDF officer, who was station in Buxton at the time and who he named, was working for Brown and his cohorts. He said that his “intelligence activities” revealed the diplomat’s location, which was provided to the search party although he “referred vaguely to his ‘coordination with the US agents in seeking Lesniak’s release.’”
In relation to the March 2006 meeting at Ocean View, the prosecution said that Khan allegedly made “assorted accusation against [a former army officer], [former] Guyana Police Commissioner Winston Felix, and other Guyanese officials concerning internal Guyanese politics and law enforcement activities.” He also allegedly provided US officials with recordings of calls he had intercepted involving Felix.
He also alleged that he had “lent his covert assistance and resources” to local police, including developing confidential sources within the army and that he “assisted” the government’s efforts to “neutralize the Buxton faction and its supporters.”
However, the prosecution said that Khan’s purported assistance to the US and Guyana governments “simply has no bearing on the charges here.” It was pointed out that even Khan himself concedes that his alleged with respect to Lesniak “does not preclude simultaneous drug trafficking.” “The same is true for his alleged assistance during the March 6 meeting and with general law enforcement activities.”
It was noted that Khan’s alleged cooperation with government officials does not have a tendency to make drug trafficking by him less probable. “At most, his alleged cooperation is suggestive of good character, but specific acts are inadmissible to prove character in a case, like this one, in which character is not an element of a charge or defence,” the prosecution said.
The prosecution made mention of another case in the US where the defendant was convicted of various charges in connection with illegal exportation of technology. During that trial, the court upheld the exclusion of evidence concerning the defendant’s purported cooperation with the US Army Intelligence Agency during the charged conspiracy. The court had held that such evidence would have been irrelevant and, even if relevant, would have been improper proof of the defendant’s character through specific acts.
“The same is true here. Khan may prove specific acts of government cooperation with the aim of suggesting that a person who would cooperate with law enforcement is not the type who would traffic in drugs,” the prosecution said.
Meanwhile, the prosecution has also revealed that there are at least two other people in Guyana, who are involved in drug trafficking and go by the alias ‘Shortman.’
The prosecution made this information known on September 9 after Khan’s lawyers asked the US government to reveal whether investigations into cocaine importations from Guyana have identified any person or persons other than Khan referred to as ‘Shortman.’
The letter, by the lawyers, Simels and Diarmuid White, was written before Simels and his assistant, Arienne Irving, were hauled before a New York judge last Wednesday.
According to the prosecutors, in a response to the lawyer’s letter seen by this newspaper, they have provided the defence with the name of a Guyanese individual who uses the nickname ‘Shortman’ and is believed to be involved in drug trafficking. This individual is known to potential government witness.
“In addition there is at least one other Guyanese individual, also involved in drug trafficking who is known to a potential government witness as Shortman,” the prosecution said. It was stated that the prosecution did not wish to disclose the source(s) of the information as it “may compromise the safety of potential government witnesses (es).”
White and Simels had said in a letter to Justice Irizarry, that it was important that the prosecution provided the information because a review of recordings of the conversations of Devendra Persaud, whom the prosecution said Khan had murdered, showed there were a number of references to ‘Shortman.’
The lawyers said the government would undoubtedly contend that the call name belonged to Khan and he was the person being referred to in the conversations.
“Since Mr Persaud is deceased, the government may seek to introduce recordings as to which no participant would testify regarding who ‘Shortman’ refers to, as is ordinarily the case,” the letter said, adding that it made it critical that the government provide the requested information.
Meanwhile, the prosecution said that while it has provided some information to the defence in relation to the kidnapping of former US Embassy Regional Security Officer (REO), Lesniak, it continues to “object the subpoenas submitted to the State Department and the Federal Bureau of Investigation (FBI) regarding the kidnapping of Steve Lesniak.” It was pointed out that in its response to the motion filed by the prosecution the defence conceded that its subpoenas “were too broad but were designed to obtain documents ‘showing communication with Khan.’”
Lesniak was kidnapped on April 13, 2003 and the former diplomat is one of several US officials who have been subpoenaed by Khan’s lawyers to testify in his trial.
In an e-mail dated March 26, Lesniak had told Simels that having read a correspondence from him he was forced to respond to “clarify what I believe are misconceptions regarding the incident of my kidnapping.” He had that he could not offer any assistance in the lawyer’s representation of Khan, as he had “no knowledge of Mr Khan before, during or for some time after my kidnapping in Guyana.
I became aware of Mr Khan only through the media after my name, and the incident, was linked to his following his arrest for what was reported as narcotics trafficking.”
He had said that if Khan had made any efforts to secure his release they “have remained to this day unknown to me and my wife, who is equally adamant that she had had no contact with Mr Khan before, during or after the incident, nor any prior knowledge of Mr Khan, nor knowledge of any involvement by Mr Khan during or following the incident. We are both very confused and disturbed by any alleged associations.” Lesniak’s wife, who was his fiancée at the time of his kidnapping, is Guyanese.
Further, Lesniak had told Simels that if Khan had any contact with any persons during the incident or subsequent investigation, they remain unknown to him. He suggested that efforts be “made to contact those persons… I departed Guyana several days after the incident and have never returned, nor have I kept abreast of any current events.”
Simels, in a response to Lesniak, had told the ex-diplomat that he still felt his testimony may be “invaluable at the trial.” He had said that the “very fact of your kidnapping is significant in establishing the climate and other related aspects of Guyana during the period 2002-2003.”
And in relation to the depositions being taken from defence witnesses in Guyana, the prosecution said it “wishes to raise with the court its concerns about the timing and manner of the depositions in Guyana.”
In its September 9 letter to the judge, the prosecution said the defence has advised that “it has not been able to arrange for the government to participate in the depositions by video-conferencing and, in any event, it believes the Guyana court will not permit video-conferencing.” The prosecution said it was also not clear whether Guyana’s High Court would allow the depositions to be video-taped.
“The government has requested that the defence provide whatever information it has available regarding when, where and how these depositions are expected to occur, but this information has not been available to date.”
It was also stated that it is possible that the authorities in Guyana will not permit the depositions to be taken at the US Embassy or a location chosen by the parties, and instead, will require the depositions to be taken in a courthouse.
“The government cannot assess whether it will be safe for the government lawyers to attend these depositions in person without more information,” the letter said.
One of Khan’s lawyers has since written to Justice Irizarry, informing her that while her letter to Guyanese authorities had been delivered to the High Court, a request had been made for the letter to be sent directly to Registrar Sita Ramlal. The letter should also include a specific statement that Khan was authorized and permitted by the laws of the US to make an application to the local court to request the appropriate judicial authority of Guyana to enforce the court’s order that depositions of the witnesses be taken.
Khan is facing 18 counts of conspiracy to import cocaine into the US between 2001 and 2006 and for heading a criminal enterprise. The trial should have commenced in April but Justice Irizarry said the new start date would be in November. This date may now be further affected by the new witness tampering charge.
… Status conference
set for October 1
Justice Dora L Irizarry has set October 1, for a status conference on the Roger Khan drug trial following the stunning arrest and arraignment of Khan’s lead counsel on a witness tampering charge.
Responding yesterday to a letter from Benton Campbell, who asked for a status conference on the trial at the earliest convenience following the arrests of Robert M Simels and his assistant, Arienne Irving, Justice Irizarry said that the status conference would be held on the first day of next month.
Last week Wednesday, Simels and Irving were hauled before the courts and charged with conspiracy to tamper with witnesses relating to the drug trial. Simels was released on US$3.5 million bail while his assistant was granted US$500,000 bail. Both face 10 years in prison if convicted.
Khan, who had also been indicted, is also expected to appear in court on a similar charge. Simels’ dealings in the matter involve an alleged US$1,000 payout and discussions about “eliminating and neutralizing” witnesses. He and his assistant allegedly had numerous discussions with someone over a US government informant, to locate certain individuals close to the case and to get them to rescind statements, not testify against Khan, and or even to be “eliminated”.
In his letter, Campbell had said: “There continues to be a firewall between the Assistant United States Attorneys handling the [Roger Khan prosecution] and those handling the obstruction of justice investigation. While the prosecution team in [the Roger Khan case] is walled off from the obstruction case, it is clear that a status conference is needed to address defence counsel’s conflict of interest and other issues arising from defence counsel’s arrest.”
And another lawyer for Khan, Diarmuid White, also wrote a letter to the judge last week and requested that motions by Khan, which were due to be heard on Thursday last, be stayed until further notice, in the light of Simels’ arrest.
“The arrests throw into uncertainty the questions of Khan’s future legal representation and the trial schedule. In addition Mr Simels’ office was searched in connection with the arrests and all his computers and files were seized…,” the letter had said.