In case where district court admitted evidence allegedly
in violation of the Mutual Legal Assistance Treaty (MLAT) between the U.S. and
The Netherlands, obtained after The Netherlands denied U.S. request for
assistance, Second Circuit finds that evidence was not within scope of MLAT and
must only comply with U.S. law, not foreign law
Henk Rommy, a Dutch citizen who ran a large international
drug ring, was convicted of importing the drug “ecstasy” (MDMA) into the U.S.
The conviction was in part based on the testimony of his co‑conspirators and
recorded conversations with an informant and an undercover agent.
In early 2000, Dutch Authorities notified the Drug
Enforcement Agency (“DEA”) about plans to smuggle large amounts of ectasy pills
to New York. Based on the Mutual Legal Assistance Treaty (“MLAT”) between the
two countries (Treaty on Mutual Assistance in Criminal Matters, June 12, 1981,
U.S.‑Netherlands, 35 U.S.T. 1361, T.I.A.S. No. 10,734). The DEA interviewed the
Dutch Authorities’ confidential informant and then, based on the MLAT, wanted
to use him to introduce Rommy to an undercover agent, Mark Grey, and record the
resulting conversations. Dutch Authorities denied the request.
The DEA nevertheless went ahead and used the confidential
informant to put agent Grey in touch with Rommy. Between October 2001 and March
2003, DEA agents in New York recorded telephone conversations between the
informant, Agent Grey and Rommy in The Netherlands about smuggling ectasy into
New York. In March 2003, Rommy met with the informant and Agent Grey in
Bermuda. There, Rommy spoke openly about his experience in drug trafficking,
and explained the origin of the ectasy pills. U.S. authorities video‑taped the
meeting and subsequently requested Spanish authorities to arrest and extradite
Rommy. He was convicted in U.S. district court for the Southern District of New
York.
Rommy appeals his conviction, claiming, inter alia, that the
district court erred in admitting evidence obtained in violation of the MLAT
between the U.S. and The Netherlands. In particular, Rommy challenges the
district court’s failure to suppress the recorded telephone conversations and
the video‑taped Bermuda meeting as violations of the MLAT.
The U.S. Court of Appeals for the Second Circuit affirms the
conviction.
The Court disagrees with Rommy. “First, Rommy cannot
demonstrate a treaty violation. The [MLAT] ... provides various means for the
governments of the two countries to provide legal assistance to one another in
criminal matters, ... It also places certain limitations on how information
obtained pursuant thereto may be used. ... By its express terms, however, the
treaty has no application to evidence obtained outside the MLAT process.
Article 18, subsection 1, states:”
“‘Assistance and procedures provided by this Treaty shall be
without prejudice to, and shall not prevent or restrict, any assistance or
procedure available under other international conventions or arrangements or
under the domestic laws of the Contracting Parties.’”
“... This does not mean that United States or Dutch
authorities, operating without MLAT authorization, may act with impunity in
conducting law enforcement investigations in each others’ countries. To the
contrary, it means that, when securing evidence without MLAT authorization,
foreign government officials lacking diplomatic immunity must conduct
themselves in accordance with applicable ‘domestic laws.’ ...”
“Thus, when DEA agents proceeded to use [the] confidential
informant in the Netherlands even after their MLAT request to do so was denied,
they did not violate the treaty. They did, however, subject themselves and
their informant to any constraints imposed on private actors by Dutch law. We
need not here decide whether any DEA actions violated Dutch domestic law. ...
The admissibility of evidence in a United States court depends solely on
compliance with United States law. See United States v. Morrison, 153 F.3d 34,
57 (2d Cir. 1998) (observing that “federal law governs the admissibility of
evidence in a federal criminal trial”) ... Rommy makes no claim on appeal that
the DEA’s undercover investigation generally, or its recording of the telephone
calls in the United States or the meeting in Bermuda specifically, violated any
United States law.” [Slip op. 24‑35]
Further, the MLAT does not appear to create individual
rights. There is a general presumption against individual enforcement rights.
Absent treaty language conferring individual enforcement rights, treaty
violations are handled by diplomatic means. Sometimes sovereign nations decide
to overlook such treaty violations.
In this case, it is clear that the MLAT signatories did not
intend to create individual rights. Article 18, subsection 2, specifically
states that “the provisions of this Treaty shall not give rise to a right on
the part of any person to take any action in a criminal proceeding to suppress
or exclude any evidence.”
Rommy then points to MLAT Article 2, subsection 2, which
states that “[t]he Requesting State shall not use any evidence obtained under
this Treaty ... without the prior consent of the Requested State.”
Here, The Netherlands denied the U.S. request under the
MLAT. Therefore, the evidence is not subject to the MLAT Article 11. The
admissibility of this evidence is governed solely by U.S. domestic law.
Consequently, Rommy’s argument for suppression of the
evidence lacks any foundation in the text of the MLAT, and district court
properly denied it.
Citation: United States v. Rommy, No. 06‑0520‑cr (2d
Cir. November 5, 2007).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
