US v. Noriega

746 F. Supp. 1506

UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, et al., Defendants.

No. 88-79-CR.

United States District Court, S.D. Florida.

June 8, 1990.

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Michael P. Sullivan, Myles H. Malman, Asst. U.S. Attys., Miami, Fla., William C. Bryson, Deputy Sol. Gen., for the U.S.

Frank A. Rubino, Steven Kollin, Coconut Grove, Fla., Jon May, Miami, Fla., David Lewis, New York City, for defendant Manuel Antonio Noriega.

Samuel I. Burstyn, Miami, Fla., for defendant Luis Del Cid.

OMNIBUS ORDER

HOEVELER, District Judge.

THIS CAUSE comes before the Court on the several motions of Defendants General Manuel Antonio Noriega and Lt. Col. Luis Del Cid to dismiss for lack of jurisdiction the indictment which charges them with various narcotics-related offenses.

The case at bar presents the Court with a drama of international proportions, considering the status of the principal defendant and the difficult circumstances under which he was brought before this Court. The pertinent facts are as follows:

On February 14, 1988, a federal grand jury sitting in Miami, Florida returned a twelve-count indictment charging General Manuel Antonio Noriega with participating in an international conspiracy to import cocaine and materials used in producing cocaine into and out of the United States. Noriega is alleged to have exploited his official position as head of the intelligence branch of the Panamanian National Guard, and then as Commander-in-Chief of the Panamanian Defense Forces, to receive payoffs in return for assisting and protecting international drug traffickers, including various members of the Medellin Cartel, in conducting narcotics and money laundering operations in Panama.

Specifically, the indictment charges that General Noriega protected cocaine shipments from Colombia through Panama to the United States; arranged for the transshipment and sale to the Medellin Cartel of ether and acetone, including such chemicals previously seized by the Panamanian Defense Forces; provided refuge and a base for continued operations for the members of the Medellin Cartel after the Colombian government's crackdown on drug traffickers following the murder of the Colombian Minister of Justice, Rodrigo Lara-Bonilla; agreed to protect a cocaine laboratory in Darien Province, Panama; and assured the safe passage of millions of dollars of narcotic proceeds from the United States into Panamanian banks. Noriega also allegedly traveled to Havana, Cuba and met with Cuban president Fidel Castro, who, according to the indictment, mediated a dispute between Noriega and the Cartel caused by the Panamanian troops' seizure of a drug laboratory that Noriega was paid to protect. All of these activities were allegedly undertaken for General Noriega's own personal profit. Defendant Del Cid, in addition to being an officer in the Panamanian Defense Forces, was General Noriega's personal secretary. He is charged with acting as liaison, courier, and emissary for Noriega in his transactions with Cartel members and other drug traffickers.

Because of the activities alleged, Defendants are charged with engaging in a pattern of racketeering activity, in violation of the RICO statutes, 18 U.S.C. ?? 1962(c) and 1962(d); conspiracy to distribute and import cocaine into the United States, in violation of 21 U.S.C. ? 963; and distributing and aiding and abetting the distribution of cocaine, intending that it be imported into the United States, in violation of 21 U.S.C. ? 959 and 18 U.S.C. ? 2. Defendant Noriega is further charged with aiding and abetting the manufacture of cocaine destined for the United States, in violation of 21 U.S.C. ? 959 and 18 U.S.C. ? 2; conspiring to manufacture cocaine intending that it be imported into the United States, in violation of 21 U.S.C. ? 963; and causing interstate travel and use of facilities in interstate commerce to promote an unlawful activity, in violation of 18 U.S.C. ? 1952(a)(3) and 18 U.S.C. ? 2.

Subsequent to the indictment, the Court granted General Noriega's motion to allow special appearance of counsel, despite the fact that Noriega was a fugitive and not before the Court at that time. Noriega's counsel then moved to dismiss the indictment on the ground that United States laws could not be applied to a foreign leader whose alleged illegal activities all occurred outside the territorial bounds of the United States. Counsel further argued that Noriega was immune from prosecution as a head of state and diplomat, and that his alleged narcotics offenses constituted acts of state not properly reviewable by this Court.

Upon hearing arguments of counsel, and after due consideration of the memoranda filed, the Court denied Defendant's motion, for reasons fully set forth below. At that time, the Court noted that this case was fraught with political overtones, but that it was nonetheless unlikely that General Noriega would ever be brought to the United States to answer the charges against him.¹ The former observation proved to be considerably more correct than the latter, in light of subsequent events.

In the interval between the time the indictment was issued and Defendants were arrested, relations between the United States and General Noriega deteriorated considerably. Shortly after charges against Noriega were brought, the General delivered a widely publicized speech in which he brought a machete crashing down on a podium while denouncing the United States. On December 15, 1989, Noriega declared that a "state of war" existed between Panama and the United States. Tensions between the two countries further increased the next day, when U.S. military forces in Panama were put on alert after Panamanian troops shot and killed an American soldier, wounded another, and beat a Navy couple. Three days later, on December 20, 1989, President Bush ordered U.S. troops into combat in Panama City on a mission whose stated goals were to safeguard American lives, restore democracy, preserve the Panama Canal treaties, and seize General Noriega to face federal drug charges in the United States. Before U.S. troops were engaged, American officials arranged a ceremony in which Guillermo Endara was sworn in as president and recognized by the United States as the legitimate head of the government of Panama. Endara was reported to have won the Panamanian presidential election held several months earlier, the results of which were nullified and disregarded by General Noriega.

Not long after the invasion commenced, Defendant Del Cid, the commander of about two thousand Panamanian troops located in the Chiriqui Province, surrendered to American forces. He was then transferred into the custody of agents from the United States Drug Enforcement Agency, who thereupon arrested Del Cid for the offenses for which he is under indictment in this Court. The apprehension of General Noriega was not quite so easy. He successfully eluded American forces for several days, prompting the United States government to offer a one million dollar bounty for his capture. Eventually, the General took sanctuary in the Papal Nunciature in Panama City, where he apparently hoped to be granted political asylum. Noriega's presence in the Papal Nunciature touched off a diplomatic impasse and a round of intense negotiations involving several countries. Vatican officials initially refused to turn Noriega over to the United States. While he was still ensconced in the nunciature, American troops stationed outside pelted the building with loud rock-and-roll music blasted through loudspeakers. The music was played continuously for three days until church authorities protested the action as offensive. After an eleven-day standoff, Noriega finally surrendered to American forces, apparently under pressure from the papal nuncio and influenced by a threatening crowd of about 15,000 angry Panamanian citizens who had gathered outside the residence. On January 3, 1990, two weeks after the invasion began, Noriega walked out of the Papal Nunciature and surrendered himself to U.S. military officials waiting outside. He was flown by helicopter to Howard Air Force Base, where he was ushered into a plane bound for Florida and formally arrested by agents of the Drug Enforcement Agency. During the course of this litigation, which has included several hearings, no evidence was presented nor suggestion made that Noriega was in any way physically mistreated.

As is evident from the unusual factual background underlying this case, the Court is presented with several issues of first impression. This is the first time that a leader or de facto leader of a sovereign nation has been forcibly brought to the United States to face criminal charges. The fact that General Noriega's apprehension occurred in the course of a military action only further underscores the complexity of the issues involved. In addition to Defendant Noriega's motion to dismiss based on lack of jurisdiction over the offense and sovereign immunity, Defendants Noriega and Del Cid argue that they are prisoners of war pursuant to the Geneva Convention. This status, Defendants maintain, deprives the Court of jurisdiction to proceed with the case. Additionally, Noriega contends that the military action which brought about his arrest is "shocking to the conscience", and that due process considerations require the Court to divest itself of jurisdiction over his person. Noriega also asserts that the invasion occurred in violation of international law. Finally, Noriega argues that, even in the absence of constitutional or treaty violations, the Court should dismiss the indictment pursuant to its supervisory powers so as to prevent the judicial system from being party to and tainted by the government's alleged misconduct in arresting Noriega.² The Court examines each of these issues, in turn, below.

I. JURISDICTION OVER THE OFFENSE

The first issue confronting the...