BLOWBACK PREDICTED IF DOMINICAN EXTRADITION

UNCLAS SANTO DOMINGO 002260

SIPDIS

SENSITIVE
SIPDIS

DEPARTMENT FOR WHA, WHA/PPC, WHA/CAR JAFFEE AND WARD
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

E.O. 12958: N/A
TAGS: PREL CJAN KCRM KPAO KJUS DR
SUBJECT: BLOWBACK PREDICTED IF DOMINICAN EXTRADITION
REQUEST FAILS


1. Summary. Accused cop-killer and top-wanted Dominican
fugitive Jeffry Alejandro Pena Bencosme remains in custody in
New York while fighting extradition to the Dominican
Republic. A combination of legal maneuvering and doubts
about the Dominican claims have caused the hearing to morph
into a "mini-trial" - a rarity in an extradition case.
Embassy has already seen a degree of discontent among members
of both the Dominican Attorney General's Office and the
Dominican Supreme Court based on perceptions of unreasonable
delay and a failure to fully understand concepts of judicial
independence and separation of powers in the United States.
Embassy predicts highly-negative press play and likely
blowback in higher than average denial of extradition cases
should the extradition of Pena ultimately be denied. End
summary.

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2. Background
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Pena is accused of murder in the October 25, 2004, shooting
death of a policeman in the city of Santiago. The facts of
the case indicate that Pena was stopped for public urination
outside of a bar by a police sergeant, engaged in a verbal
confrontation, and then drew a weapon and shot the sergeant
in the chest, killing him.

Though he was quickly apprehended, Pena was not placed in
custody pending trial and fled the Dominican Republic for New
York in mid-November 2004. An arrest warrant was issued for
Pena by the Penal Chamber of the Appellate Court of the
Judicial Department of Santiago, Dominican Republic on
December 6, 2004.

While the initial inability of the Dominican government to
provide information regarding Pena's possible location caused
significant investigative delays (the government simply
alleged that Pena was in Brooklyn, New York),continued
cooperation with the Dominican government and intense work by
the U.S. Federal Bureau of Investigation, the U.S. Marshals
Service, and the New York - New Jersey Regional Fugitive Task
Force led to Pena's eventual arrest outside his Brooklyn
residence on December 6, 2006.

Since that time, Pena has been held in U.S. custody while
challenging his extradition before federal Magistrate Judge
Steven Gold. Pena has skillfully played the system to date,
dismissing counsel when decisions were going against him,
filing late motions pro se (knowing that the Court would
extend every possible deference to a pro se defendant),and
ultimately retaining new counsel.

In the latest conference before Magistrate Gold on September
27, 2007, the Magistrate took the unusual step of ordering
live witness testimony and scheduled the next hearing for
October 10, 2007. As defense witnesses will be unable to
appear in New York State (because of an inability to obtain
non-immigrant visas),the current plan is for the Embassy to
facilitate their testimony via digital video conference.

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3. The Standard
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Typically, extradition hearings are relatively simple legal
proceedings. The State presents evidence designed to: 1)
demonstrate that the subject before the Court is indeed the
subject requested (identity),2) that the crime alleged is
covered by the extradition treaty, and 3) that there is
"probable cause" that the subject committed the crime in
question. Proof of all three are necessary for extradition
to be granted. While the defense may also offer evidence, it
must limit its submission to these three questions and the
evidence must be explanatory and not contradictory in nature.
Moreover, the defense may not offer an affirmative defense
(e.g., self-defense). Probable cause is a relatively low
legal standard and is normally fairly easy to satisfy. A
typical definition of the term referenced in cases of the
U.S. District Court for the Southern District of Florida
states: "Probable cause means that there is evidence
sufficient to cause a person of ordinary prudence and caution

to conscientiously entertain a reasonable belief of the guilt
of the accused."

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4. Defense Challenge
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Pena's attorneys, after repeatedly and improperly attempting
to directly introduce an affirmative defense (i.e.,
self-defense),have now shifted tack and will present
testimony from 2 witnesses swearing that the declarations
submitted by the Dominican government in support of the
extradition request do not accurately reflect the statements
they originally gave to Dominican investigators. While the
testimony will likely result in the "self-defense" argument
coming in the back door, it is purportedly offered to
challenge the probable cause requirement detailed above.
Evidence of recanted testimony is explicitly permitted and
has been described in some federal districts as evidence that
"obliterates" probable cause.

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5. Dominican Credibility
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Although this type of argument is not always successful, a
recanted testimony argument may have greater traction in the
instant case: the credibility of the Dominican government in
extradition cases has already been effectively shattered by a
disastrous 2005 Dominican request for the extradition of
alleged fraudster Shlomo Ben Tov (aka Sam Goodson).
Bypassing the details of the Dominican allegations in that
case, it is sufficient to note that a Magistrate Judge of the
U.S. District Court for the Southern District of Florida
found such irregularities in the Dominican submissions to
declare that he had "no confidence in the reliability of the
submissions of the Dominican Republic" and, moreover, that
there was suggestion of purposeful misrepresentation that
"could rise to the level of fraud on the Court."

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6. Dominican Discontent and Confusion
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Discontent was high after the Ben Tov decision, with numerous
nationalist press pieces decrying a "one-way" extradition
agreement (i.e., from the Dominican Republic to the United
States) and at least one high-ranking Dominican justice
official suggesting shortly afterward that it was a challenge
to remain motivated in processing U.S. extradition requests.
That same official suggested that Secretary Rice speak to the
Chief Justice of the U.S. Supreme Court, so that the Chief
Justice could then instruct Magistrate Judges to "go easy" on
Dominican requests for extradition. Despite lengthy
explanations regarding why this would and could not occur,
this official, likely joined by many others, persists in the
belief that U.S. failure to extradite Dominican fugitives is
nothing less than lack of U.S. political will. Embassy
predicts Dominican reaction to a second refusal will only be
amplified.

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7. Summary
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Given the history of this case and the precedent established
by the failed Ben Tov request, Embassy thinks it prudent to
begin exploring possible points in the event that Pena's case
ultimately fails. Preparation will enable all agencies
involved in law enforcement cooperation in the Dominican
Republic, as well as Department/agency spokespersons to speak
authoritatively and defuse tensions in the event that this
latest Dominican extradition request is denied.
GOUGHNOUR