US v. BROE

• Decision Date: 19 February 2010
• Docket Number: Case No. 00-899-CR.
• Citation: 695 F. Supp.2d 1361
• Parties: UNITED STATES of America, Plaintiff, v. Camilla BROE, Defendant.
• Court: U.S. District Court — Southern District of Florida

695 F. Supp.2d 1361

UNITED STATES of America, Plaintiff, v. Camilla BROE, Defendant.

Case No. 00-899-CR.

United States District Court, S.D. Florida.

February 19, 2010.

David Stuart Weinstein, U.S. Attorneys, Miami, FL, for Plaintiff.

ORDER ADOPTING REPORT AND RECOMMENDATION

FEDERICO A. MORENO, District Judge.

The Court has reviewed Magistrate Edwin Torres' Report and Recommendation filed on January 5, 2010. After having reviewed the transcripts of the hearings held on December I and 11, 2009 and conducting a de novo review also, the Government's objections are overruled and counts 4 through 14 are dismissed for the reasons stated in the Report.¹ The Defendant's objections on constitutional speedy trial grounds are overruled. Because defendant Broe cannot be prosecuted in the United States for Counts 1 through 3, the Court need not rule on the separate motion for a speedy trial violation under the Constitution. Thus the Court also agrees with the Magistrate that such motion should be denied as moot.

As there can be no trial on the dismissed counts (4-14) nor on the counts remaining, in accordance with the law regarding her extradition, the case is CLOSED and the defendant shall be discharged from this case as of Wednesday, February 24, 2010.

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS COUNTS 4-14 OF THE SECOND SUPERSEDING INDICTMENT AS TIME-BARRED

EDWIN G. TORRES, United States Magistrate Judge.

This matter is before the Court on Defendant Camilla Broe's ("Defendant") Motion to Dismiss Counts 4-14 of the Second Superseding Indictment as Time-Barred Under 18 U.S.C. § 3282 D.E. 117.¹ Evidentiary hearings were held on December 1 and 11, 2009. Having carefully considered Defendant's motion and the related filings,² the testimony of the witnesses adduced at the hearings and the evidence admitted therein, the arguments of counsel, and the entire record, the Court reluctantly recommends that Defendant's motion to dismiss the indictment be Granted.

We note that reluctance given the time and effort that went into this case, starting in about 2005, to convince Danish authorities to live up to the spirit and letter of an extradition treaty despite the past practice of not extraditing Danish nationals. It took much time and effort to achieve that correct result under the law. And once that was accomplished, it took additional time and effort by Danish officials to overcome objections to extradition lodged by the Defendant in Denmark. As a consequence, it is well known and has been widely reported that this Defendant is the first Danish national extradited under its extradition treaty with the United States.

The pending recommendation to dismiss this indictment, we respectfully submit, also flows from our judicial system's obligation to follow the law. It results from the government's inaction long prior to 2005—while the statute of limitations in this case was running under federal law. And it results from the fact that the government now, six years after the expiration of that limitations period, has failed to satisfy its burden to invoke a statutory exception that applies to the pending charges. Despite the persuasive and admirable efforts of the government's counsel now charged with that difficult task, the government has not shown that the limitations period was tolled, starting in 2001, when this Danish national left the country to return to her homeland while the investigation underlying the case was pending. The government had to show that she did so with the intent of fleeing prosecution. The government could not overcome the fact, however, that the record shows that during the time she was supposedly fleeing prosecution, her lawyer was constantly communicating with the government to arrive at an agreed-upon outcome to the charges, providing information to the government at its request, and offering to have the government have direct communication with the Defendant if the government were satisfied with that information. The government was apparently not satisfied. But it never advised Defendant of that fact and never asked for a direct communication. The government indeed sat on the case for over two years prior to obtaining an indictment on charges that were indictable, by the government's own admission, as early as October 2000. The government's inaction, which had nothing to do with the fact that the Defendant was longer in the country, led to the filing of an indictment one month after the limitations period on these particular charges expired.

Faced with this record, and given the credibility findings that we make following the evidentiary hearing, we conclude that we have no choice but to apply the untolled limitations period prescribed by Congress to the pending charges, which requires that the case be dismissed. As Danish officials have now learned, following the law is not easy in the face of political expediency. It is hard. It is equally hard to make this recommendation now. But the harm that results from leaving a foreign national and admitted drug smuggler unprosecuted are far outweighed by us ignoring the faithful and impartial application of our own federal law to a defendant whose case is squarely governed by it.

I. FACTUAL FINDINGS

A. Procedural Background

This case began with the government investigating the importation of ecstasy tablets into the United States from Europe. The original Indictment in the case was filed on October 24, 2000 and charged Fernando Luminati-Tonelli with one count of conspiracy to possess with intent to distribute ecstasy. D.E. 1.

On March 21, 2003, a Superceding Indictment was filed against Luminati-Tonelli and three (3) co-defendants, including Defendant Broe, a Danish national. D.E. 8. The Superceding Indictment charged Defendant with conspiracy to import ecstasy, conspiracy to possess with intent to distribute ecstasy, and conspiracy to commit money laundering. The Indictment alleged that each of these conspiracies occurred between January 1995 and October 2000. A warrant was issued for Defendant's arrest on the same date the Superceding Indictment was filed. D.E. 10.

Nearly six and one half years later, on September 3, 2009, a Second Superseding Indictment was filed against Defendant that included the same conspiracy charges set forth in the Superceding Indictment as well as adding eleven (11) new substantive drug counts against her. D.E. 101.³ These new charges cover nine separate importations of approximately 85,000 ecstasy tablets into Miami from Amsterdam between June 30, 1997 and February 22, 1998. The government alleges that Defendant managed and utilized couriers to carry the drugs from Amsterdam to Miami. More specifically, the government alleges in relevant part that Defendant and co-Defendant Fernando Luminati-Tonelli paid couriers to fly to Amsterdam where one or both of them met the couriers and strapped ecstasy tablets to the couriers' bodies; that the couriers then flew back to Miami and went to Defendant's condominium; and that there, Defendant or another co-Defendant took the tablets from the couriers.

Defendant, who moved from the United States to Denmark sometime between May and July 2001, was arrested in Denmark in December 2007 pursuant to an extradition request by the United States. She challenged the Danish authorities' decision to approve her extradition D.E. 152 but eventually lost in the Danish courts. She was extradited to the United States on September 4, 2009. She is the first Danish national extradited from Denmark to the United States.

B. Summary of DEA Investigation Relating to Defendant

Special Agent ("SA") Joseph Kilmer of the United States Drug Enforcement Agency ("DEA") first became aware in late 1998 or early 1999 that someone named "Camilla" who matched Defendant's description was working with Luminati-Tonelli to import ecstasy tablets into the United States. It was not until the summer of 2000, however, that SA Kilmer was able to make a positive identification of Defendant. He learned her identity and that she was living in an apartment in Miami paid for by her boyfriend, Luminati-Tonelli.

Between the summer of 2000 and October 2000, the government's investigation of the drug smuggling ring continued as the government tried to determine the scope of the operation and who was involved. By September 2000, SA Kilmer believed the government had enough evidence to indict Defendant for her participation in 1997 and 1998 in the trafficking organization.

On October 24, 2000, the government indicted Luminati-Tonelli on one count of conspiracy to possess with intent to distribute ecstasy.⁴ Defendant was not indicted, and the government continued to investigate the importation ring through March 2003. SA Kilmer conceded that probable cause existed by that point to arrest the Defendant as well. In any event, new arrests were being made every few months, resulting in additional evidence about the scope of the conspiracy. However, SA Kilmer was not able to articulate what evidence was gained after the fall of 2000 that related to the government's case against Defendant. He acknowledged that the last date on which they had evidence establishing probable cause of Defendant's drug smuggling activities was February 1998. All parties agree that, under federal law, the limitations period for those substantive offenses would have expired in February 2003.

Yet, not until March 21, 2003, did the government go to the Grand Jury for the return of a Superseding Indictment that named Defendant and three others, including Luminati-Tonelli, which charged them with three conspiracy counts connected with importing ecstasy into the United States.

C. Government's Communications with Defendant or her Attorney

On January 24, 2001, well after probable cause existed to charge this Defendant, SA Kilmer first approached her and told her that she was the target of a drug investigation, and advised her to obtain an...