The defendants in the first 2009 case, pending in the Southern District of New York, Oumar Issa, Harouna Toure and Idriss Abdelrahman, are awaiting a decision on their motion to dismiss the charges for lack of jurisdiction. (Case No. 09 cr 01244.) All three have also filed motions to suppress their statements made to DEA agents on the flight from Africa to the U.S. (chartered flights, no less, paid for by the DEA.)

The DEA wasn't done having fun in Africa after the Issa romp. It tweaked the next sting (in May, 2010), by having its informant inform this next group of participants that he intended to have his portion of the cocaine proceeds flown to the U.S. in diplomatic pouches. Result: an added layer of protection against a claim of lack of jurisdiction and manufactured jurisdiction. And it worked. The Court denied this group's motion to dismiss because some of the cocaine (even though not their portions) was going to come to the U.S.

The six defendants in this case include Russian pilot Konstantin Yaroshenko, whose allegations he was tortured by Liberian authorities before being handed over to the DEA to be flown to New York were also brushed aside by the court. The judge noted:

[W]hile police brutality or other misconduct may lead to suppression of a defendant's statements or other evidence garnered thereby, it does not lead to the dismissal of the Indictment.

Also rejected was Yaroshenko's protest that the U.S. violated the Vienna Convention on Consular Relations and Liberian law after having him kidnapped from his hotel and failing to notify the Russian Embassy. (The U.S. acknowledged the error but said it was a clerical error. They simply faxed the notice to the wrong embassy.) The Judge wrote:

As to the abduction claim, even assuming arguendo that Yaroshenko's removal violated various laws and treaties and thus was the equivalent of an illegal, forcible abduction, the Supreme Court has flatly held that "the power of a court to try a person for [aJ crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.'" Frisbie v. Collins, 342 U.S. 519, 522 (1952)..."

Another claim of Yaroshenko and his co-defendants -- that the U.S. manufactured jurisdiction. -- was similarly rejected. The drugs in the Yaroshenko case were to go from South America to Liberia to Ghana. There was no connection to the U.S. --except that the DEA informant demanded some of his portion of the drugs go to the U.S. after reaching Ghana. Their lawyers unsuccessfully argued:

The essence of the charges is that defendants discussed air shipments of several tons of cocaine from Latin America to West Africa. (Indictment¶¶1-9). The only factual allegation connecting the alleged conspiracy to the United States is that the undercover DEA agent “CS” intended on his own behalf to send his share of cocaine to the United States. (Indictment ¶12®,12(s)). Upon information and belief, no cocaine was actually shipped anywhere.

...The Indictment in this case fails to set forth any facts connecting the alleged conspiracy to the United States, except for an allegation that the DEA agent CS intended, on his behalf, to transport drugs to the U.S. The sole purpose of that statement was to create the appearance of some nexus to the United States. The alleged object of the conspiracy was the transportation of drugs from Latin America to Africa and within Africa. The Indictment does not set forth any specific factual allegation that supports the conclusion that Konstantin Yaroshenko agreed to bring any drugs into the United States....Had Yaroshenko agreed to bring drugs to the U.S., the government would not have missed to include such fact in the Indictment...There is no factual allegation that Konstantin Yaroshenko either agreed to take any part in shipping the drugs to the United States nor concurred in such action.

Judge Jed Rakoff disagreed, and ruled:

The concept of "manufactured federal jurisdiction" is "properly understood not as an independent defense, but as a subset of three possible defense theories: (i) the defendant was entrapped into committing a federal crime, since he was not predisposed to commit the crime in the way necessary for the crime to qualify as a federal offense; (ii) the defendant's due process rights were violated because the government's actions in inducing the defendant to commit the federal crime were outrageous; or (iii) an element of the federal statute has not been proved, so federal courts have no jurisdiction over the crime."....

...As this Court explained in United States v. Al Kassar, 582 F. Supp. 2d 488 (S.D.N.Y. 2008), "the Second Circuit has refused to dismiss indictments 'when there is any link between the federal element and a voluntary, affirmative act of the defendant. Thus, when confronted with situations in which (i) the [Government] introduces a federal element into a non-federal crime and (ii) the defendant then takes voluntary actions that implicate the federal element, federal jurisdiction has not been improperly manufactured.'"

...For example, the Indictment states that when "Yaroshenko agreed to supply the aircraft, pilots, and crew that were to be used for shipments of cocaine from South America to Liberia, Yaroshenko understood that from Liberia, portions of this cocaine would subsequently be imported into the United States."...Without multiplying examples, the Indictment clearly charges instances where Yaroshenko took "voluntary actions that implicate the federal element[s]" of the charged crimes, which is enough for jurisdictional purposes.

I have great respect for Judge Rakoff, but I agree with Yaroshenko's lawyer. And with the lawyer for a defendant in yet a third African adventure case pending in New York, U.S. v. Ali Sesay, et.al., Case No. 10-457 (SDNY):

In short, the only connection to the United States was manufactured by one “Nabil”, a cooperating source with the Drug Enforcement Administration, who insisted that he get paid in cocaine to be trans-shipped from Liberia to Ghana and then to New York. Nabil’s insistence on being paid in cocaine to be sent to the United States had nothing to do with the charged conspiracy and was a blatant attempt on the part of the Drug Enforcement Administration agents to justify their involvement in this investigation, and to manufacture subject-matter jurisdiction, where none existed. Nabil, clearly acting as a government agent, entered into his own separate agreement with Kamara to route his payment to the United States. No cocaine was actually shipped to Ghana for later shipment to the United States.

The Government in these cases does not dispute that the only connection to the U.S. is that the DEA informant asked that after the group finishes its business of shipping drugs from South America to Liberia to Ghana, that his portion of drugs be shipped from Ghana to the U.S. It argues there's nothing wrong with the DEA's practice and it's what Congress intended.

(On Feb. 17, 2011, the Judge in the Sesay case denied the defense motions to dismiss on jurisdictional grounds and to suppress the statements of one defendant. On March 1, Ali Sesay entered a plea of guilty to conspiracy to import cocaine. Trial for the others is set for September.)

With pre-trial motions decided against pilot Yaroshenko and his codefendants, trial begins Monday in the Southern District of New York before Judge Jed Rakoff.

The case is U.S. v. Chigbo Peter Umeh, et. al. , Case No. 09 cr 00524. The defendants are Chigbo Peter Umeh, Jorge Salazar Castano, Konstantin Yaroshenko, Nathaniel French, Kudufia Mawuko, and Marcel Acevedo Sarmiento.

Still at issue is a Government motion in limine to introduce evidence at trial from yet another South America-to-Africa operation involving a vessel called the Blue Atlantic. The defense claims its unrelated and prejudicial and the court has not yet ruled.

I hope some enterprising legal bloggers attend the trial and report on it. All I can do, 2,000 miles away, is read the filed pleadings and cursory news reports. The case is deserving of much wider interest. As I wrote in an earlier post:

How much of our money is the DEA spending on its African adventures? And how much are we spending to fly these sting targets from Africa to the U.S., hold them for a year or more in pre-trial detention, fund their defense, try them, incarcerate them for decades, and then fly them back when they are deported after their sentences? Considering unless the DEA demands otherwise, the (illusory) drugs are going from South America to Africa to Europe, why is it even their business to intervene? Or to steer non-U.S. criminal activity into the U.S.?

I'd bet that if you told every American how much money Congress has authorized the DEA to spend on stings designed to stop drugs being shipped from South America to Africa to Europe, and then to fly those arrested to the U.S. for trial and how much we'll be paying for their years of incarceration, you could fit all those who approved on the head of a pin.

All of the Wikileaks cables on the DEA and African drug trade are accessible here.

Also recommended: From the New York Times, Cables Portray Expanded Reach of Drug Agency.

Related earlier posts:

• Wikileaks Cables Reveal DEA's Increasing Global Reach
• Wikileaks Releases Embarrassing African Cocaine Cables
• How Much Did the DEA Spend on its Africa Vacation?