Wiretap evidence fails in NY drug case against Jamaican

In July this year two New York Federal Court-appointed officials flew into Kingston.

They had read a story in this column about intercepted communication which had been illegally passed from a government interception facility in Kingston to US authorities, and which was used in the request by the Americans for the extradition of Christopher "Dudus" Coke to face drug charges. Among other things, they were here to interview me on matters relating to a case involving another Jamaican, Octavia "Mendez" Austin of Rockfort, Eastern Kingston who was facing six drug charges in the US District Court, Eastern District of New York.

The US officials, Attorney Ephraim Savitt and Gerard Gardner, head of Gardner Investigative Services, were representing Austin. The view was expressed in this column on July 6 that their appointment by the US District Court on an all-expense-paid mission to Jamaica demonstrated the extent to which the court will go to pursue the course of justice.

Under the Jamaica Interception Law, a judge of the Supreme Court in Jamaica issued a warrant in 2006 authorising a telephone company to intercept all telephone communications to and from a cell number and to furnish all intercepted communications to one of the officials of agencies authorised by the Jamaica Supreme Court to receive such information. Austin and others were, thereafter, indicted by a Grand Jury in New York. Apparently, the wiretap information was passed on illegally to US authorities by a Jamaican agent working in the multinational interception facility in Kingston.

At the trial in the US Federal Court in the Eastern District of New York, which ended on September 29, the jury returned a verdict of not guilty on any of the six counts against Austin. The jury also found Stephen Lee, Austin's co-defendant, guilty on all but two counts.

The trial judge Allyne R Ross last week was contemplating granting a Rule 29 motion to dismiss the case against Austin because of the lack of evidence submitted by his attorney, Ephraim Savitt, who argued during the trial that the Assistant US Attorney did not have sufficient evidence to support the indictment. He demonstrated that an analysis of the Jamaican interception on which Austin's voice is recorded, reduces the case against him to speculation and conjecture. Therefore, the indictment lacked substance and he submitted that the case against Austin be dismissed.

The prosecutor argued that the evidence based on Jamaican telephone Interception Law was supportive and that Austin had knowledge of the conspiracy to import and distribute drugs. The prosecutor further argued that in one specific instance Austin had to have knowledge of the conspiracy because he was intercepted talking about airline tickets.

A note to me from New York on the trial said many of the US prosecutor's Jamaican wire interceptions that were provided in the case against Austin were without evidence of Jamaican Interception Orders. This seems to suggest that the prosecutor had other sources of information.

After the arguments, Judge Ross reserved her decision on the motion of dismissal of the case against Austin until after the jury deliberated. However, the jury found Austin not guilty so the judge did not have to make a decision on Savitt's motion.

Austin remains in Federal custody on an immigration violation issue. A date for the sentencing of Lee is scheduled for mid-January 2011.

Unjust police act

Last week I heard a mother complaining to Wilmot Perkins, host of the Power 106 call-in programme Perkins on Line about her 16-year-old son being taken from his Tivoli Gardens home by the police. After inquiring at police stations in the Corporate Area she was finally told at one station that the policeman who detained the boy was on leave and nothing could be done until he returned to work. This is totally unjust to the boy and his parents.

There is a rule in the police force that a detainee must be allowed one telephone call. This must be told to the detainee by the arresting policeman or policewoman or station guard. And in a country which is saturated with cellphones, there ought to be someone whose cell number the detainee knows.

However, I have heard of cases where public relations conscious police personnel, particularly women, get the cellphone or landline telephone number from the detainee and inform the parents or guardians of the detention. In some of the other cases where telephone contact is not possible, the police would travel to the home of the detainee. I am suggesting to Commissioner Owen Ellington that a reminder included in the next issue of the Force Orders of the rule for police to allow detainees one telephone call.