On Appeal from the United States District Court for the District of New Jersey. (D.C. Crim. No. 91-00443)
Before: Becker, Hutchinson and Cowen, Circuit Judges
This case involves an unusual set of facts and an apparent question of first impression in the federal judicial system: whether a federal district court has the power to order federal law enforcement agents to refrain from arresting the subject of a valid arrest warrant in order to ensure that the subject of the warrant, who is a fugitive in a foreign country, will have an opportunity to give deposition testimony exculpating other criminal defendants. Unsure whether this district court order falls within the collateral order doctrine, making it immediately appealable, the government has proceeded on alternative jurisdictional theories. These two alternatives are to appeal the district court's order or to seek the extraordinary writ of mandamus or prohibition preventing the enforcement of the order. We will grant the writ to prohibit enforcement of the order of the district court.
The fugitive who is the subject of the warrant in question is Boris Conde. Conde is an unindicted coconspirator of the defendants in this criminal matter. The government alleges that from August 1, 1991 until early October, 1991, Conde, along with defendants Gonzalo Higera Pena, Jaime Idarraga Arenas, Harold Holquin and Paulo Santtini,*fn1 was involved in a conspiracy to manufacture, distribute, and possess with intent to distribute, cocaine. Specifically, the conspirators allegedly helped to move various precursor chemicals and equipment from Florida, through New Jersey, to Pleasant Valley, New York, where they set up a cocaine conversion laboratory.
In September, 1991, special agents of the Drug Enforcement Administration and investigators of the Somerset County Prosecutor's Office learned that Boris Conde and Martin Barrientos had driven a truck containing materials for use in the conversion laboratory from Florida to a New Jersey location. The agents conducted a consent search of the truck and discovered materials used in the cocaine conversion process. Conde agreed to cooperate with the law enforcement agents and met the following day with Pena, Arenas and Holquin. Their Discussions regarding future plans to move the chemicals and other materials to New York were recorded and before the materials reached their new destination, Pena, Arenas and Holquin were arrested. The cocaine conversion laboratory in Pleasant Valley, New York was subsequently discovered by law enforcement agents.
Based on the information obtained, a federal grand jury returned a two-count indictment charging Pena, Arenas, Holquin and Santtini with (1) conspiracy to manufacture, distribute and possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988) and (2) traveling in interstate commerce with the intent to promote unlawful activity, namely, the manufacture and distribution of cocaine, in violation of 18 U.S.C. §§ 1952 and 2 (1988). A superseding indictment embodying the same charges was returned on January 14, 1992.
Following the return of the indictment, Conde, along with his attorney, met with representatives of the federal government and was fully interviewed. He explained the details of the conspiracy and roles of his coconspirators, and at the end of the meeting was told that a plea agreement would be sent to him within a week. Approximately one week later, in mid-November 1991, the government learned that Conde had fled from New Jersey and could not be located.
On December 6, 1991, after efforts to locate Conde proved unsuccessful, the government filed a criminal complaint against him for the crimes committed in connection with the cocaine conversion laboratory. The complaint and accompanying affidavit charged Conde with violating 21 U.S.C. § 846 and 18 U.S.C. §§ 1952 and 2. Based on the complaint and affidavit, United States Magistrate Judge Stanley R. Chesler found probable cause to believe Conde had committed the crimes charged and issued a warrant for his arrest pursuant to Fed. R. Crim. P. 4.
On December 20, 1991, after federal charges against Conde had been filed, a package containing a sworn statement by Conde was sent to the office of the United States Attorney. In the statement Conde fully exculpated all of his alleged coconspirators, contending that he alone was responsible for all criminal acts and that he had only implicated the others to gain his own freedom. This sworn statement was executed in the United States Embassy in Bogota, Colombia in the presence of Vice Consul James E. Connor, Jr. Conde's fingerprint was affixed at the end of the statement. The government forwarded copies of this statement to defense counsel.
On January 13, 1992, the government received another package. This package contained two documents, one a sworn statement by Patricia Conde, Conde's wife, and the other the sworn statement of Martin Barrientos, another coconspirator. Patricia Conde's statement, like her husband's, was sworn out at the United States Embassy in Bogota in the presence of Mr. Connor. The statement alleged that law enforcement officers held a gun to her head and threatened to take away her child unless she agreed to implicate and testify against Santtini in future criminal proceedings. Mrs. Conde explained that she had fled to Colombia because she was afraid of the government agents and would not testify against Santtini, who she alleged was innocent of any wrongdoing.
The statement by Mr. Barrientos was also sworn out at the United States Embassy in Bogota. Barrientos claimed that he had been illegally detained by government agents while in the United States and that they had threatened him and searched his apartment without authorization. In his statement he contended that government agents told him he would go to jail for many years and never see his family again unless he agreed to testify against Santtini. Finally, he stated that Santtini was "totally innocent" and in fact, Boris Conde was the only one "who is guilty and [the] leader of all of this." Supp. App. at 9. Both Conde and Barrientos deny consensual participation in the taped conversations which the government plans to use to prove the guilt of the four defendants in this case.
Based on the statements received from Boris Conde, Patricia Conde, and Barrientos, defendant Santtini made an oral application to take the deposition of Boris Conde in Colombia pursuant to Fed. R. Crim. P. 15.*fn2 The government opposed the motion for the following reasons: (1) counsel in civil and criminal cases are barred from conducting discovery in Colombia because the United States does not have a treaty or judicial assistance agreement with Colombia and (2) Santtini failed to carry his burden under Rule 15 to show that Conde was "unavailable" and would provide material exculpatory information. The court denied Santtini's motion on the ground that parties are prohibited from taking discovery in Colombia.
Following the court's denial of the motion, Conde's Colombian attorney informed the parties that Conde was willing to have his deposition taken in Costa Rica. The court asked counsel to appear for a hearing on this new development after being notified of the proposed alternative.
On January 31, 1992, the court considered the defendants' renewed application. Following argument, the court concluded that a prima facie showing of unavailability and materiality had been made, thereby satisfying Rule 15, but reserved decision. The government then informed the court that it would withdraw its opposition to the deposition if it was videotaped and conducted at the United States Embassy in Costa Rica.
On February 3, 1992, the court learned that Conde was willing to be deposed at the Colombian but not the United States Embassy in Costa Rica. However, the government advised the court that this proposal was unacceptable because the Colombian Embassy was considered Colombian soil and no discovery could be conducted thereon. The court asked whether Conde's appearance at the United States Embassy would subject him to the risk of arrest. The government explained that there was an extradition treaty between Costa Rica and the United States and that Conde could therefore be arrested.
Defense counsel informed the court that Conde was willing to be deposed at the United States Embassy if the court would sanction an agreement that Conde not be arrested. The government offered not to arrest Conde prior to the Conclusion of the deposition but would not guarantee him complete immunity from arrest once the deposition had been concluded. The court noted the likelihood that Conde was simply trying to sabotage the trial and help his friends, rather than establish truth but concluded that it must "make any reasonable arrangements . . . to have his testimony taken." App. at 28. The court, in response to the government's opposition, stated:
As a practical matter, he's not going to turn up anymore there than he would if he thinks you're going to arrest him and bring him back here and try him. . . . You're no worse off than you are now. The only ...