Judge quashes Roger Khan bid for testimony from FBI, Lesniak

Drug accused Roger Khan’s bid to secure documents and reports and get testimony from several government agents and the kidnapped US diplomat Stephen Lesniak during his upcoming trial has been thwarted, as Justice Dora L. Irizarry recently quashed most of the subpoenas following a motion by the government.

Among the testimonies sought by Khan, who is facing an 18-count indictment for the distribution, importation and possession of cocaine and engaging as a principal administrator, organiser, and leader of a continuing criminal enterprise in New York and elsewhere, was that of former US diplomat Lesniak, who was kidnapped by bandits during the 2003 crime spree in Guyana. Khan had claimed that he played a role in the release of the diplomat. However, Lesniak, by way of email, has since informed the defence that he knew nothing of Khan playing a role in his release.

Khan, who is also accused of heading a powerful, violent, cocaine trafficking organisation out of Guyana and could spend his life in prison if convicted, is also facing witness tampering charges along with his former lawyer Robert Simels, arising out of the said drug case. In March of last year, the court authorised the issuance of ex parte subpoenas on Khan’s request, pursuant to Rule 17 of the Federal Rules of Criminal Procedure.

According to Judge Irizarry, while defendants may seek the pre-trial production and inspection of certain materials by subpoena as set forth in Rule 17 such subpoenas are not “intended to provide a means of discovery for criminal cases,” as was stated in the case of the US versus Nixon. She said Rule 17 does not broaden the limited discovery available in criminal cases; rather, the purpose of the rule is to avoid unnecessary delay at trial by providing a mechanism for pre-trial production and inspection of certain material. The court is advised to quash or modify subpoenas when compliance would be “unreasonable or oppressive.”

Lesniak
Khan in his bid to get Lesniak to testify at his trial had argued that his testimony was relevant as it would demonstrate his “efforts at combating crime in Guyana [sic] on the United States.” However, the government in its motion contended that any subpoena seeking evidence for this purpose fails the first prong of the Nixon test, which is relevance. According to the government, the evidence sought by Khan is not relevant as it does not make less probable that he, while assisting the government, simultaneously engaged in drug trafficking.

But Khan had rebutted that the evidence does not preclude simultaneous drug trafficking but has “a tendency to make it less probable,” and also alleged it will show that he and an ex-army officer, whom he said had collaborated with criminals in Buxton while he was stationed there, and who is a potential government witness, were enemies. The officer’s faction was responsible for thwarting government efforts to locate and recue Lesniak, Khan alleged.
Judge Irizarry pointed out that evidence is relevant if it has “any tendency to make the existence of any fact… more probable or less probable.” She said that Khan’s alleged assistance, even if true, does not make more or less probable that he was not simultaneously engaged in narcotics trafficking.

“It is not unheard of for an individual assisting the government in some capacity to also engage in illegal conduct. Similarly, it is not uncommon for co-conspirators to disagree and fight over certain issues, while at the same time continue working together to further their mutual criminal goals,” the judge said. She therefore ruled that the abduction and safe return of Lesniak is not relevant to the issues of the case and granted the government’s motion to quash that subpoena.

Khan had also sought four other subpoenas which sought the trial testimony from several Federal Bureau of Investigation (FBI) employees and additional material pertaining to Lesniak’s abduction and safe return, including material documenting his contact with the Guyana Government and various US agencies. He also wanted recorded communications involving him, electronic or otherwise, and government reports, emails and communications discussing contact with him.

The drug accused had asserted that the evidence he sought is relevant as his cooperation will demonstrate that his efforts in combating crime in Guyana impacted on the US. But as in the case of Lesniak the judge ruled that the evidence is irrelevant to a determination of the issues of the case.

She said the material requested regarding communications with the defendant presents additional problems as defendants are not entitled to the pre-trial production and inspection of internal agency reports and communications under Rule 17 as this comes under other rules. Courts have consistently held that defendants may not circumvent these procedures through Rule 17 subpoenas.
Moreover, the judge said, it is likely that many of the communications between Khan and the Guyanese and United States governments and their agencies are hearsay and as result the communications are not only irrelevant but they are also likely inadmissible. The judge quashed all four of the subpoenas.

March 6 meeting
The sixth, eighth and eighteenth subpoenas sought by Khan were trial testimonies related to that March 6, 2006 meeting between him and various federal agents and his arrest in Trinidad in June of 2006. He also sought from several agencies evidence of any internal communications regarding the March meeting as the evidence that the meeting is relevant as it demonstrates “Khan efforts at combating crime in Guyana impacting [sic] on the United States.”

The judge said that the evidence sought is not only irrelevant but it is questionable whether the evidence, if produced, would demonstrate the proffered reason for its relevance – defendant’s efforts to combat crime impacting on the US.
Khan had requested and attended the meeting to clear his name as the US had classified him as a “known drug trafficker” in Guyana in that year’s drug report.

“There is a distinction between clearing one’s name and assisting the United States in its anti-drug trafficking efforts,” the judge asserted and she quashed three of the subpoenas in their entirety except for the seventh one which was quashed to the extent of Khan seeking material related to the March meeting. Under the seventh subpoena Khan had also sought from the State Department any material related to the residency status of individuals he anticipates will testify as cooperating witness for the government, including whether those individuals were in the US under the ‘S’ visa or as permanent residents. Khan had said the material bears on the “credibility” of the individuals. But the judge said the impeachment evidence fails the relevance requirement of Nixon, as at this time it is not known to the court or the defendant whether the individuals will testify at the trial. She said that it is also unknown whether the residency status of the individuals was affected by their alleged cooperation with the government.

While the judge asked the State Department for the residency status of the individuals, she precluded any pre-trail inspection by Khan.
Judge Irizarry also quashed the ninth subpoena sought by Khan for the testimony of FBI Agent Justin Krider and material in his possession related to an investigation he conducted into the sale of electronic equipment to him by the Spy Shop, a company located in Fort Lauderdale, Florida. Khan had argued that Krider’s investigation was relevant as it might have revealed that he had purchased the equipment to assist the Guyana Government in fighting crime and corruption – a legal purpose. But the judge ruled that evidence of Khan’s purpose for purchasing the equipment is irrelevant as he is not charged with any wiretap-related crimes. The government had also argued that the requested material “would primarily consist of witnesses’ statements and law enforcement reports.”

When Khan had further alleged that he had permission from the Guyana government to purchase the equipment, there was no response to this from the government. However, while in New York last year, President Bharrat Jagdeo had said that in fact only the US government could have given permission for the equipment to leave that country. In a background paragraph, the subpoena to the DEA said that Khan was alleged to have used the equipment to improperly wiretap various high-ranking officials and others within Guyana in order to maintain his “alleged drug organization.”

Khan, Haroon Yahya and policeman Sean Belfield had been detained at Good Hope, East Coast Demerara on December 4, 2002 by an army patrol and turned over to the police. The army had discovered sophisticated electronic surveillance equipment and arms in a pick-up the three were in. When they were held, Khan and his partners had told law enforcement officials that they were in search of Shawn Brown and the other prison escapees who had fled the Camp Street prison earlier that year. The men were later charged with possession of arms and ammunition and placed on $500,000 bail each.

The charges were dismissed by Magistrate Jerrick Stephney at the Sparendaam Magistrate’s Court the next year.
Khan’s lawyers told the court in New York that following the February 23, 2002 jailbreak when the escapees went on a killing spree he responded to the crisis, providing financial and logistical support to the government. “During the crime spree in 2002, I worked closely with the crime-fighting sections of the Guyana Police Force and provided them with assistance and information at my own expense.
“My participation was instrumental in curbing crime during this period,” Khan had said in a statement to the local media.
The US has since alleged that a group he had set up was responsible for the murders of over 200 people during that period.

Homeland Security
Khan’s bid to have the testimonies of three employees of the Department of Homeland Security as well as materials in their possession related to two other criminal investigations was also denied. He had said that the testimonies of the individuals, which were sought in subpoenas 10, 11 and 12, and the admission of the requested records were relevant to determine whether additional individuals of Guyanese descent were involved with drug trafficking in the US. But the judge ruled that whether additional Guyanese nationals imported drugs into the US or not was irrelevant to whether the defendant engaged in such behaviour. And to the extent that Khan sought evidence from the government in support of his mistaken identity defence – that ‘Shortman,’ his alleged alias, was a common nickname in Guyana – the judge pointed out that the court had previously ruled that the government was under no obligation to produce evidence on the issue.

In subpoena 13, Khan attempted to have material from the Drug Enforcement Administration (DEA), specifically country reports for Guyana and Venezuela for the period 2001 to 2006 and reports of searches conducted in the Narcotics and Dangerous Drug Information System for his alleged aliases – Shortman, Bossman and Roger – for the period 2001 to 2006. This subpoena was also questioned.

In the next subpoena, Khan sought from the United States Marshals Service information related to the transport of incarcerated individuals to attend the United States Attorney’s Office and any meetings they had with agents. He said that the records are relevant to demonstrate whether the individuals ever had “the opportunity for collusion and discussions regarding information provided during cooperation.” And in subpoena 17, Khan sought from the Federal Bureau of Prisons (BOP) a list of all inmates housed in the same cell unit as five individuals who he anticipates will testify as cooperating witnesses for the government. He asserted that the evidence is relevant, but the judge ruled that it is not relevant until and unless those witnesses testify at his trial.

While the US Marshal’s was ordered to provide the information requested in subpoena 14 to the government, pre-trial inspection by Khan was precluded. He will be permitted to review the information, if appropriate, after each witness’s direct testimony. The same order was made in respect to subpoena 17.

And Khan would only be allowed to review the information, if appropriate, if he sought permission from the US Immigration and Customs Enforcement (ICE) which included all regulations and policy statements related to the preservation of evidence, after each of the government witnesses testifies. He had contended under subpoena that the destruction and lack of physical evidence as to the quantity of drugs he allegedly trafficked is relevant.

A similar order was made in relation to subpoena 16 where Khan had sought from Knightsbridge Mortgage Bankers any employment applications they may have on file for an individual he anticipates that the government will call as a cooperating witness at trial. He had also sought from the Jamaica Hospital the billing records for treatment received by the individual.

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