948 F.2d 1168 (10th Cir. 1991), 90-5161, United States v. Abello-Silva

Docket Nº:90-5161.
Citation:948 F.2d 1168
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Rafael ABELLO-SILVA, Defendant-Appellant.
Case Date:November 06, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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948 F.2d 1168 (10th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Jose Rafael ABELLO-SILVA, Defendant-Appellant.

No. 90-5161.

United States Court of Appeals, Tenth Circuit

November 6, 1991

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Tony M. Graham, U.S. Atty. (David E. O'Meilia and Kathryn H. Phillips, Asst. U.S. Attys. with him, on the brief), Tulsa, Okl., for plaintiff-appellee.

Randy Schaffer P.C., Houston, Tex., for defendant-appellant.

Before MOORE, and McWILLIAMS, Circuit Judges, and KANE [*], Senior District Judge.

KANE, Senior District Judge.

Appellant, Jose Rafael Abello-Silva, (hereafter Abello) a citizen of the Republic of Colombia, was extradited to the United States to face drug conspiracy charges. Indicted for conspiring to import cocaine and marijuana in violation of 21 U.S.C. §§ 963 and 960(b)(1)(B), (G); and conspiring to possess with the intent to distribute and distribution of cocaine and marijuana in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), Abello was convicted of both counts. He was sentenced to concurrent terms of 30 years imprisonment on each count and fined a total of $5,000,000. 1

Abello challenges his conviction by raising the following points of error: 1) the circumstances of his extradition violate the doctrine of specialty because he was tried on a second superseding indictment which was not part of the extradition request served on the Colombian government; 2) the extensive pre-trial publicity made the

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Northern District of Oklahoma an improper venue for the trial; 3) the defense was denied access to exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and 4) the prosecutor tainted the trial with inflammatory comments during closing arguments. We affirm the conviction.

The government's case against Abello portrayed him as an important figure in a jet-set cocaine clan which supplied drugs to an eager American market. Narrated by the testimony of nine co-conspirators, the government described appellant's extensive Colombian drug manufacturing and distribution operation. The most damaging testimony came from co-conspirator, Boris Olarte. In 1986, Olarte found himself in jail in the Northern District of Oklahoma. In May, 1987, unhappy in his surroundings, he agreed to cooperate with the United States Government. While in prison, Olarte orchestrated a drug transaction which involved Abello. The contact person who arranged a meeting was Olarte's common law wife, Clara Lacle.

The proposed transaction was actually an attempt to revive an earlier deal which never took place. According to Olarte, he and Abello previously met in Aruba with two other co-conspirators, Robert Jamieson and Frank Palmero, to discuss smuggling a cocaine shipment into the United States. The plan was abandoned. By May, 1987, Olarte was cooperating with the government, and he identified Abello as a target. At Olarte's suggestion, Lacle flew to Florida in June, 1987 with two FBI agents to revive the Aruba transaction. Based on these events, Abello was indicted, extradited and convicted of participating in a drug importation and distribution conspiracy.

I. Extradition and the Doctrine of Specialty.

Abello was extradited to the United States in October, 1989 under a superseding indictment. The indictment charged him with two counts: 1) conspiracy to import schedule I and II controlled substances; and 2) conspiracy to possess with intent to distribute marijuana and cocaine. The request for extradition was presented to the Colombian Ministry of Foreign Relation by the United States Embassy in Bogota on October 20, 1989. The request contained a reference to an October 7, 1987 superseding indictment from the Northern District of Oklahoma. Copies of the arrest warrant and superseding indictment were included. Under the heading of "Overt Acts," the indictment contains lengthy discussion of the drug conspiracy but only a brief mention of Abello. Included in the extradition request itself, however, was the following narration of facts.

The facts of the case indicate that in 1986 and 1987, Abello-Silva actively participated in the planning of a shipment of 500 kilograms of cocaine into the United States from Colombia. The proposed shipment was planned by Abello-Silva and his associates at meetings in both Colombia and Aruba, but was ultimately abandoned because of difficulties in communication among the co-conspirators.

Vol. 3, Doc. 244, Exhibit F.

A second superseding indictment was obtained after Abello was extradited to the United States. The second superseding indictment, returned by the grand jury on January 3, 1990, charged Abello with the identical two offenses set out in the first superseding indictment. Added, however, were more facts detailing Abello's illegal activities. While the first superseding indictment was directed at several alleged co-conspirators and a plethora of criminal activity, the second indictment was directed only at Abello and focused on his particular role in the conspiracy.

The second superseding indictment linked Abello with members of the "Medellin" and "Cali" drug cartels and drug kingpins like Pablo Escobar-Gaviria, Jose Gonzalo Rodriguez-Gacha and Jorge Ochoa-Vasquez. The new indictment expanded on the scope of Abello's drug smuggling activities and detailed the mechanics of his cocaine and marijuana smuggling operation.

Abello alleges the second superseding indictment violates the "doctrine of specialty." After extradition was complete, Abello was tried under an indictment containing

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broader allegations of facts than the indictment on which his extradition was based. The government responds it prosecuted Abello for the identical crimes contained in both indictments. According to the government, the doctrine of specialty is about parallel offenses and not parallel facts in an indictment. Further, raising the doctrine is within the province of the asylum country and the asylum country must itself object. The District Court, in a March 7, 1990 order, ruled in favor of the government. Since the issue involves a legal dispute about the specialty doctrine, our review is de novo. Quinn v. Robinson, 783 F.2d 776, 791-92 (9th Cir.1986), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986).

Abello refers to several diplomatic communications which purportedly register Colombia's objection to prosecuting Abello on the second superseding indictment. The government argues the diplomatic notes merely relay concerns expressed by defense counsel and not the official position of the Republic of Colombia. This distinction is important, the government argues, because the asylum state is the party with standing to raise the specialty issue. We conclude the dispute over who raised the objection is irrelevant. Although there is disagreement whether a criminal defendant may raise the specialty doctrine in his own right, 2 we recently held in United States v. Levy, 905 F.2d 326, 328 n. 1 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 759, 112 L.Ed.2d 778 (1991) that a criminal defendant may raise the issue himself.

The diplomatic communications serve a second purpose in Abello's argument. He asserts any legal dispute over emphasis on "facts" or "offenses" in applying the specialty doctrine is resolved by the laws of the asylum country: Colombia in this case. He argues the second superseding indictment charges him with additional wrongdoing which constitutes a separate matter; whether a new, separate matter was added is for Colombia to decide.

Abello cites United States v. Paroutian, 299 F.2d 486, 490-91 (2nd Cir.1962): "So the test whether trial is for a 'separate offense' should be not some technical refinement of local law, but whether the extraditing country [Colombia] would consider the offense actually tried 'separate.' " Attempting to show Colombian law focuses on the particular "deeds" of the accused and would scrutinize the "facts" presented in the extradition request, Abello cites Articles 650 and 651 of the Colombian Code of Criminal Procedure (1987).

Abello, however, fails to support his claim that Colombian law controls the dispute. We perceive only two situations where Colombian law is relevant. First, precedent in this country directs that the asylum country's law defines the doctrine of specialty. Second, the United States, by treaty, agrees to be bound by foreign law. We find neither. The quoted passage from Paroutian refers to the court's deference to the asylum country's interest in protecting its residents. It is not a statement about international choice of laws. As a creature of international law, the specialty doctrine forbids the requesting country from prosecuting an extradited defendant for more than it set out in its extradition request. "The doctrine of 'specialty' prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering country agreed to extradite." United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir.1988). See also Quinn v. Robinson, 783 F.2d at 782; United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886).

The Paroutian court recognized the asylum country's desire to extradite

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only those individuals against whom a substantial case lies. A reviewing court places itself in the position of the asylum country and inquires whether the asylum state would consent to the extradition. In other words, we examine whether there is sufficient evidence in the request for extradition to grant the request. If the accused is tried for a matter different from the one mentioned in the request, the requesting country has not...

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