U.S. v. Rommy
| Decision Date | 05 November 2007 |
| Docket Number | Docket No. 06-0520-cr. |
| Citation | 506 F.3d 108 |
| Parties | UNITED STATES of America, Appellee, v. Henk ROMMY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Kevin R. Puvalowski, Assistant United States Attorney (Scott L. Marrah, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Before: JACOBS, Chief Judge, WALKER, and RAGGI, Circuit Judges.
Defendant Henk Rommy appeals from a judgment of conviction entered on January 27, 2006, in the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge), following a jury trial at which he was found guilty on one count of conspiracy to import methylenedioxymethamphetamine, commonly known as "MDMA" or "ecstasy," into the United States in violation of 21 U.S.C. §§ 952(a), 963. Presently incarcerated serving a twenty-year sentence, Rommy challenges his conviction on the grounds that the district court erred (1) in charging the jury that venue in the Southern District of New York could be established by a telephone call placed by an undercover agent in that district to Rommy in the Netherlands; and (2) in admitting evidence obtained in violation of the mutual legal assistance treaty in effect between the United States and the Netherlands, as well as various provisions of the Constitution and the Federal Rules of Evidence. Because we conclude that the alleged errors are either without merit or, in any event, harmless, we affirm the judgment of conviction.
From at least 1980, Dutch national Henk Rommy, also known as the "Cobra," headed an international drug ring that trafficked in large quantities of controlled substances. The trial evidence establishing Rommy's guilt included the testimony of co-conspirators, recorded conversations between Rommy and both a government informant and an undercover agent of the Drug Enforcement Administration ("DEA"), and statements volunteered by Rommy to federal agents with whom he asked to speak while incarcerated in Spain pending extradition to the United States.
Thomas Bosch, a Swiss banker turned drug trafficker, testified that, in the late 1980s and continuing for more than a decade thereafter, he and confederate Jack Zuchetto smuggled hundreds of kilograms of hashish from Rommy in the Netherlands to buyers in Switzerland.1 In or about 2000, Bosch learned from Zuchetto that Rommy was experiencing problems smuggling ecstasy pills into Switzerland and that he sought their assistance in transporting a 100,000 pill shipment from the Netherlands to Zurich. Bosch testified that the pills in question were light blue in color and stamped with the logo of the late Italian fashion designer Gianni Versace. After successfully completing this delivery, Bosch helped smuggle two more shipments of ecstasy pills into Switzerland for Rommy.
In 2000, Rommy also asked Bosch to smuggle one million ecstasy pills into the United States. Bosch explained that he had acquired some familiarity with transporting drugs into this country because, in the three preceding years, he and his fiancée, Daniela Rinaldi, had smuggled approximately 120 kilograms of hashish and marijuana into the United States, concealing the drugs in recreational vehicles shipped from Europe. Rommy told Bosch that he wanted the ecstasy imported into New York. When Bosch expressed a preference for Miami as the port of entry, Rommy agreed, advising Bosch that his New York contacts could travel to Miami to pick up the shipment. Eventually, Bosch and Rommy decided that half the pill shipment would be given to Rommy's New York confederates while Bosch would transport the remainder into Mexico for sale in that country. Bosch would convert the proceeds from the ecstasy shipment into cocaine for delivery to Rommy in Europe. In return, Rommy would pay Bosch one dollar per pill successfully smuggled, for an anticipated total of $1 million.
When, in late 2000, it came time to execute the million-pill shipment, Bosch could not locate Rommy. In fact, Rommy had been arrested by Dutch authorities in connection with an unrelated investigation into his drug activities. He remained incarcerated from November 2000 until May 2001.
In 2000, Bosch and Rinaldi successfully smuggled a load of ecstasy into the United States for a different Dutch trafficker named Redouan. Redouan arranged for the drugs to be sold in Miami by Thomas Allen. Upon the successful completion of this scheme, Bosch, Rinaldi, and Allen decided to team up to import another ecstasy shipment totaling 800,000 pills into the United States in 2001. As Bosch and Rinaldi each testified, Allen agreed to procure the pills in the Netherlands and to be financially responsible for half the shipment; Bosch and Rinaldi agreed to transport the pills into the United States and to be financially responsible for the remaining half.
After the 800,000 ecstasy pills were successfully smuggled into Miami, Allen told Rinaldi that Allen's half of the shipment had to be sold first because it belonged to the "Cobra" (i.e., Rommy), who wanted his money right away. In fact, Allen did sell his half of the shipment; meanwhile Bosch and Rinaldi were arrested by Florida authorities in possession of the remaining 400,000 pills.
In early 2000, at the same time that Rommy was plotting with Bosch, Rinaldi, and Allen to smuggle ecstasy pills into the United States, Dutch authorities contacted DEA agents stationed in the Netherlands to advise them that a confidential informant, Alexander Van der Laan DeVries ("DeVries"), had been approached by Rommy to transport ecstasy to New York City.2 After debriefing DeVries, the DEA decided to use him to introduce Rommy to an undercover agent, Mark Grey, whose purported criminal connections at New York ports would allow him to smuggle ecstasy into New York cached in vintage cars.
To facilitate this plan, in April 2000, pursuant to a mutual legal assistance treaty then in effect between the United States and the Netherlands, see Treaty on Mutual Assistance in Criminal Matters, June 12, 1981, U.S.-Neth., 35 U.S.T. 1361, T.I.A.S. No. 10,734 ("MLAT"), the United States formally requested Dutch authorization to employ various investigative techniques in the Netherlands. Specifically, the United States sought to use DeVries in an undercover capacity and, pursuant thereto, to make audio or video recordings in the Netherlands of conversations between the confidential informant and Rommy. Authorization was also requested for United States officials to wiretap Rommy's telephone in the Netherlands. Dutch authorities denied the April 2000 request.
A second MLAT request from the United States, in September 2002, sought access to evidence and witnesses developed by Dutch authorities in the course of their investigations into Rommy's criminal activities. In granting this request, the Netherlands provided the United States with a transcript of an October 30, 2000 telephone call intercepted by the Dutch police in which Rommy and an unnamed confederate discussed the limited supplies of "Versace t-shirts." At trial, the government would use Bosch's testimony about ecstasy pills stamped with the Versace logo to argue that this conversation related to drugs. See infra at 137-38.
Despite the denial of the initial MLAT request, United States authorities proceeded with their plan to use DeVries in an undercover investigation of Rommy, but they conducted no electronic monitoring in the Netherlands. Instead, between October 2001 and March 2003, DEA agents working in Manhattan recorded five telephone calls in which Rommy, DeVries, and Agent Grey engaged in thinly veiled discussions about smuggling ecstasy into New York. Because the location of the parties and the initiator of the calls are issues relevant to the venue argument on appeal, we duly note these facts.
It is undisputed that the first recorded call was placed by DeVries in Manhattan to Rommy in the Netherlands on October 20, 2001. In that conversation, DeVries not only told Rommy that he was in New York City, he specifically reported that he was standing near the site of the recently destroyed World Trade Center. With respect to the smuggling plan, Rommy asked DeVries if his "friend" (Agent Grey) was going "to look at the car." Telephone Tr. Oct. 20, 2001, at 1. When DeVries replied that this had already been done, Rommy inquired, "Do you think he can sell it, do you think?" Id. DeVries assured Rommy of his friend's ability to do what was necessary, and advised that he (DeVries) would be back in the Netherlands the following week.
It would be almost a year before the next recorded call on September 17, 2002. On that date, DeVries was again in Manhattan meeting with federal agents at the United States Attorney's Office. According to the agent who recorded this call, Rommy, who was then in the Netherlands, placed the call to the informant's cell phone. At trial, Rommy's counsel disputed his client's initiation of the call, an argument made possible by the fact that the recording of the start of the call was inaudible. In the ensuing conversation, DeVries reported that he was "going to come to Spain with Mark [i.e., Agent Grey]." Telephone Tr. Sept. 17, 2002, at 2. Rommy stated that he would meet the men there. The Spain meeting,...
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