DOMINICAN SUPREME COURT JUSTICES FREE NARCO

C O N F I D E N T I A L SANTO DOMINGO 001246

SIPDIS

SIPDIS

DEPARTMENT FOR WHA/CAR SEARBY, INL, L/LEI FOR TORRES AND
MUELLER; DEPARTMENT OF JUSTICE FOR CRIM/OIA ORJALES AND
ESTABROOK;
US MARSHALS SERVICE PLEASE PASS TO JIM SCHIELD;
DEA FOR OF,OFI,DO,DCO; SOUTHCOM ALSO FOR POLAD

E.O. 12958: DECL: 05/25/2027
TAGS: CJAN CVIS KCRM SNAR PGOV DR
SUBJECT: DOMINICAN SUPREME COURT JUSTICES FREE NARCO
FUGITIVES ON QUESTIONABLE PRETEXT

REF: 2003 STATE 303696

Classified By: EcoPol Counselor Michael Meigs for
reasons 1.4 (b) and (d)


1. (C) Summary. In yet another bizarre turn in the Juan
Flete - Lourdes Machuca extradition saga (reftel),the five
justices of the Penal Chamber of the Dominican Supreme Court
have rejected the use of confidential witnesses in
establishing probable cause in extradition proceedings -
freeing both Flete and Machuca and probably undercutting the
future extradition of narcotics traffickers and other
organized crime figures. Members of the Attorney General's
office smell a rat and suggest two of the judges may be in
the pocket of narcotics traffickers. End summary.

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Background: Case History
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2. (SBU) According to a U.S. indictment, between 2000 and
2003, husband-and-wife team Juan Flete and Lourdes Machuca
trafficked hundreds of kilograms of cocaine in Massachusetts
and New York. They then set out to launder the proceeds
through a number of mechanisms, including smuggling several
million dollars worth of U.S. currency back to the Dominican
Republic aboard automobiles destined for export. Before a
U.S. indictment was handed down for these activities on April
24, 2003, the couple fled U.S. jurisdiction for the Dominican
Republic.


3. (SBU) That Flete was no virgin in regard to criminal
activity is clear: his record includes a 1991 racketeering
conviction, a 1993 conviction for possessing cocaine with
intent to distribute, and a 2002 conviction for knowingly
receiving stolen property and possessing a dangerous weapon.
On the latter occasion the facts of the case demonstrate that
a narcotics sniffer dog's alert to Flete's vehicle sparked
the discovery of approximately USD 280,000 in currency hidden
in the car, as well as a loaded illegal handgun.


4. (SBU) But what really ties Flete and his wife to a
narcotics and money-laundering conspiracy during the time in
question is the testimony of unnamed cooperating witnesses,
determined by U.S. authorities to be reliable.


5. (SBU) Unfortunately for the administration of justice in
the Dominican Republic, in their decision the five members of
the Criminal Chamber of the Dominican Supreme Court, without
making any finding regarding the reliability of the specific
witnesses, simply determined the use of confidential
witnesses to be inherently untrustworthy and insufficient to
establish probable cause. This blocked the possibility of
extraditing the defendants for their cocaine trafficking
activities. This reasoning flies in the face of Court
precedent, most notably in the 2004 extradition case of
cocaine kingpin Quirino Ernesto Paulino Castillo.


6. (SBU) The same Court also refused to extradite on
money-laundering charges. While unpalatable, this part of
the decision was at least well explained. The defendants had
been "absolved" of money-laundering charges by a lower
Dominican court, a legally mandated measure taken after local
prosecutors dropped their charges in order to clear the way
for extradition. The Court decided that U.S. court
proceedings on the same grounds would constitute double
jeopardy.

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Confidential Witness

SIPDIS
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7. (SBU) The U.S. Government's primary witness (CW1) is
certainly no angel. He purports to have direct knowledge of


the workings of the Flete organization. Per the affadavit of
the U.S. Prosecutor (AUSA),after Machuca recruited CW1 to
sell drugs on behalf of Flete, he did, in fact, receive from
Flete two kilograms of cut cocaine for sale in the summer of
2000 for the purchase price of USD 16,000 per kilogram. Two
weeks later CW1 received three additional kilograms of uncut
cocaine for sale from Flete at a substantially higher price.
He subsequently received between three and four kilograms of
cocaine for sale from Flete approximately every two weeks
through early 2001. After a brief pause, cocaine sales
resumed in the summer of 2001, with the transfer of more than
150 kilograms of cocaine to CW1 at the price of USD 20,000
per kilogram.


8. (SBU) This same witness spoke directly to Flete in the
summer of 2001 regarding a scheme to ship cars loaded with
drug proceeds to the Dominican Republic. In one case more
than USD 2,000,000 was concealed. Machuca took
responsibility to see that the cars avoided Dominican customs
inspection.

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Corroboration
--------------


9. (SBU) Evidence tending to demonstrate the credibility of
CW1 includes records demonstrating the couple purchased more
than USD 600,000 worth of luxury automobiles, many of which
were shipped to the Dominican Republic. This was during
period where their Federal tax returns reported an annual
income not exceeding USD 12,500. State and local authorities
confirmed that various residences, self-storage units, and
businesses were associated with Flete and Machuca, as alleged
by the witness.


10. (SBU) Additional corroboration comes in the form of a
second confidential witness, described as a "long-time
acquaintance" of Flete and Machuca who also regularly made
multi-kilogram purchases of cocaine from them during the
latter half of 2000.


11. (SBU) A third confidential witness who worked at a car
dealership confirmed that Machuca purchased several of the
automobiles in question under the alias "Carmen Hernandez."

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Dominican Processing Marred by Corruption and Delay
-------------- --------------


12. (SBU) With this wealth of evidence, one might have
anticipated a speedy return to the United States for these
fugitives. Local events and dubious decisions, however,
proved insurmountable obstacles. This can be quickly
summarized in a timeline:

03/31/03 -- Both were arrested on or about March 31,
2003, on local charges, to include money laundering.

10/29/03 -- Embassy requested extradition in Note 246 -
extradition based on indictment filed 04/24/03 in the
U.S. District Court for the District of MA. The indictment
alleges: 1 count conspiracy to possess cocaine with intent
to distribute and an assortment of money laundering offenses
under 18 USC 2 and 1956, as well as 31 USC 5324.

03/23/04 -- Released from custody by Dominican Attorney
General Victor Cespedes on purported health/humanitarian
grounds (according to Cespedes Machuca was suicidal).
Neither the local case nor the extradition request was
dismissed.

04/07/04 -- Embassy informed by credible source that
release involved substantial payoff and sexual favors.


06/23/04 -- Extradition request reiterated in Note 112.

05/25/05 -- Supreme Court orders provisional arrest
under extradition warrant

07/01/05 -- Both were arrested.

08/12/05 -- Supreme Court rules that extradition
request is "suspended" while local charges are pending.
Defendants released.

01/03/07 -- Prosecutor petitions to drop local charges.

01/16/07 -- Court of First Instance (Trial Court)
"absolves" defendants of all local charges (money laundering)
as required by Criminal Procedures Code Art. 337.

02/19/07 -- Supreme Court "reactivates" extradition
request.

03/16/07 -- Both were re-arrested by Dominican law
enforcement.

05/09/07 -- Supreme Court finds money laundering issue
to be resolved by lower court's decision, given issue
of double jeopardy. Finds lack of probable cause on
cocaine conspiracy charge. Defendants freed.


13. (SBU) In short, four years working toward a resolution on
local charges resulted in little significant movement to
conclusion and a strong impetus to drop local charges despite
risks of a double jeopardy finding on money laundering
charges (the assumption being that the defendants would
escape local justice in any event).


14. (SBU) Embassy predicted, erroneously as it turned out,
that the defendants would be extradited on the cocaine
charges regardless of whatever decision was taken on the
money laundering issue.

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The Supreme Court's ruling
--------------


15. (SBU) In a surprise move, the Penal Chamber justices held
for the first time that confidential witnesses are inherently
untrustworthy and provide an insufficient foundation upon
which to base probable cause. Probable cause is a
requirement of all extraditions.


16. (U) In a translation of the Court's own words:

-- Considering, as has been said, that the petition for
extradition is based on three charges, two referring to money
laundering and one for conspiracy to possess cocaine with the
intent to distribute... (p.33, para 2)

-- Considering, that, finally, the charge of conspiracy to
distribute cocaine that has been attributed to the defendants
by U.S. criminal (law enforcement) authorities is sustained
only in a VAGUE MANNER by virtue of SUPPOSED WITNESSES whose
names are not mentioned in the extradition petition, this
Criminal Chamber (of the Supreme Court) is inclined to think
that there exists a reasonable doubt concerning the existence
of this crime (charge); (p. 34, 1st full para) (EMPHASIS
ADDED)

-- Considering that . . . (the defendants) were already
irrevocably judged and discharged by a Dominican tribunal in
relation to those same charges (money laundering) that were
the grounds for the petition . . . accepting these would be
an attack against the sovereignty of the Dominican State and,
as a consequence, a failure to recognize the attributions the
Constitution attributes to Dominican tribunals; (p.34, 2nd

full para)

-- . . . accepts the conclusions of the defense . . .and, as
a consequence, declares from a judicial point of view the
rejection of the (request for extradition) for the motives
expressed.

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Next steps?
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17. (SBU) There is no possible appeal to this decision, but
the Embassy reads the decision as one that still allows
resubmission of an extradition request, albeit on the cocaine
charge only. That said, there will be no chance of success
with the current Court unless the AUSA is willing to provide
more information about his confidential witnesses. The
Embassy does not advocate this approach. Indeed, there's a
great danger in such an undertaking, both to the overall
process here and to the witnesses themselves. But it is the
AUSA's prerogative.


18. (C) The Embassy is not aware of any other time that the
Supreme Court has rejected an extradition case as lacking
because of the use of confidential witnesses. That this
concern would be raised at all in this case, where
allegations of corruption had already surfaced, is in and of
itself troubling. The defendants have moved lots of cash,
they made corrupt arrangements with the former Attorney
General, and they have been repeatedly in and out of jail
over the past four years.


19. (C) Of even greater concern is the suggestion made by
Dominican Assistant Attorney General for Extraditions and
International Affairs Gisela Cueto (STRICTLY PROTECT) that
two of the Criminal Chamber judges, Julio Ibarra Rios and
Edgar Hernandez Mejia, are known to engage in ex parte
meetings with narco-defense attorneys. Ibarra and Hernandez,
by virtue of these meetings and other "suspect" behavior
(e.g., putting additional burdens on individuals who wish to
wave extradition hearings and to return voluntarily to the
United States),are thought by various staff of the Attorney
General to be in the pocket of unnamed narcotics traffickers.
The Embassy is seeking further information and will take
appropriate action following its investigation.
BULLEN