September 2015

When Does a Diplomatic Passport Not a Diplomat Make?

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It seemed like a good deal.  Shortly after his 62nd birthday, Ernesto Delgado Salazar, the Colombian consul in Miami, was approached by a friend of a friend who had a business proposition. The friend was traveling to New York but had to check out of his hotel. He was carrying valuable commercial merchandise and did not want to leave it in his rental car over the weekend. Could Ernesto hold the merchandise for a weekend?

Ernesto had children and grandchildren and a home in Kendall. Truth be told, money was always in short supply. The businessman offered Ernesto $5000 for his services. What could possibly go wrong?

Ernesto was told to travel to the Marriott Hotel near Miami International. There he was shown two catalog cases. “If you could take these home and watch them I’ll pick them up on Monday.”

Ernesto agreed. It was then that the government agents opened the door, shouting obscenities and pushing Ernesto to the floor. Even though the catalog cases contained ten kilos of cocaine, when they finally sat him in handcuffs back on the bed, Ernesto was calm.

Ernesto told everyone in the room that he had a diplomatic passport and so had diplomatic immunity.

Sheikh Khalid Hamad Al-Thani likes both fast cars and the weather in Southern California. One day last week he decided to combine his two loves and go for a drive, racing down the streets in a yellow Ferrari GT3. Nosy Beverly Hills neighbors spoiled the fun by calling 911, the number for emergency services in the United States.

The police went to the Sheikh's home, where they found a Ferrari in the driveway. The engine had overheated and was venting smoke. A captured video went viral: http://www.bbc.com/news/world-us-canada-34293057.

None of the witnesses who called 911 claimed that they could identify the drag-racing driver. To bring a case of felony endangerment, more evidence was needed. An interview might clarify matters, though it is doubtful such an interview could possibly benefit Sheikh Khalid.

The detectives asked the Sheikh, when he finally came to the door, if he would be available to answer a few questions. Not schooled in the ways and means of American justice, the Sheikh simply stated that there would be no need for questioning because he was in the United States on a diplomatic passport and so had diplomatic immunity.

Both Ernesto and Sheikh Khalid were, of course, incorrect. Ernesto suffered the indignity of two nights at the Metropolitan Correctional Center on 137th Avenue in Miami and was rudely surprised when an Assistant United States Attorney advised the presiding magistrate judge that a check with the United States Department of State showed only that Ernesto was accredited as a consul and so only enjoyed those few benefits of consular immunity, and immunity from the criminal laws of the United States was not one of them.

His diplomatic passport was of some use, however--it was confiscated as a condition of his bond. 

According to the Beverly Hills police press liaison, a check with the Department of State shows that though Sheikh Khalid had indeed entered the United States on a diplomatic passport, he was not accredited to the Qatari Mission to the United States. In short, Sheikh Khalid has no diplomatic immunity.

After the unscheduled police visit to his home, Sheikh Khalid--presumably, still without the benefit of counsel--made arrangements and shipped his Ferrari to Qatar. Within forty-eight hours both Sheikh and sayyara (car) had left the state. Shipping an automobile is not a trivial task. Sheikh Khalid simply could not take his million dollar Ferrari GT3 race car as excess baggage. But last Wednesday, an Antonov Design An-124 cargo plane with ample room to carry a Ferrari was on the tarmac at Washington Dulles.

It is a popular misconception that the issuance of a diplomatic passport confers diplomatic immunity on the holder. This is not the case. Holders of such passports may enjoy the VIP lane when traveling and they may find that their baggage often is not searched. But if a cocaine canine alerts, a search may indeed be conducted unless the traveler is able to show full accreditation. 

In some countries, obtaining a diplomatic passport is considered a courtesy extended to members of royal or ruling families as well as prominent members of society. But make no mistake: unless a passport holder is accredited to the embassy diplomatic immunity will not be extended. In the United States, this means the country's embassy in Washington or the United Nations. Holders of such passports should not be fooled into thinking they otherwise have immunity: they do not. Some countries also issue “official” passports. These do not even pretend to confer diplomatic immunity. 

I know one Saudi diplomat--well, he's not really a diplomat but holds a diplomatic passport because once upon a time he worked at the Saudi Embassy in a European--or was it an Asian? country--who travels from time to time to North America in the full and mistaken knowledge that the police wouldn't be able to touch him. Of course he is wrong. Just as Ernesto. Just as Sheikh Khalid.

Filippo Tommaso Marinetti famously wrote in 1909 that “a roaring motorcar is more beautiful than the Winged Victory.” Sheikh Khalid clearly shares these sentiments, but lacking diplomatic immunity, he will not be able to share such beauty with his (former) neighbors in Beverly Hills.

The usual disclaimers: opinions are my own.  The Winged Victory quote is from The Futurist Manifesto, 1909. 

Martha Stewart and Cecil the Lion: What Links these Cases?

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Martha Stewart and the Lion-Killer Dentist: What do they have in common?



Martha Stewart is the face of a successful home furnishings design company. In 2001, she received inside information about ImClone Systems stock and sold all her shares. The stock declined the next day.

Trading on inside information is a violation of the securities laws of the United States. She was indicted for making the illegal trades, but was
convicted of making false statements to investigators under 18 U.S.C. 1001. She ended up in jail not because she bought and sold shares, but because she lied about it to a federal agent.

People are often surprised to find that in the United States it is illegal to lie to a federal agent. A person can be prosecuted for making a false statement in an informal setting. The statement does not have to be made under oath, nor does it have to be accompanied by a promise to tell the truth.

Lie to a federal agent and you have committed a crime.

Does the lie have to be in writing? No.
Does the lie have to be memorialized in some fashion; say, on audio or videotape? No.
Does the lie have to be witnessed by a third party? No.

The sole, uncorroborated testimony of a single federal agent is sufficient to convict.

Several years ago, the U.S. Fish and Wildlife Service was investigating bear hunting in Wisconsin and Dr. Walter Palmer became a ''person of interest.”

Palmer was interviewed about the bear hunts and their location. He denied knowledge of the hunts and shortly thereafter, plead guilty to lying to a federal agent.

A rare black-maned, family favorite tourist attraction and today probably the most famous dead lion in Africa, Cecil, was killed by Palmer who purchased a permit from the Zimbabwean government to hunt big game.

Fishing around to punish Palmer for violations of U.S. law in Zimbabwe, the Fish and Wildlife Service has been pushing to locate Palmer for a friendly chat about the hunt. Not surprisingly, this time Palmer lawyered up. His lawyer--though admitted to the Bar, the lawyer claims to be only an "unpaid legal advisor"--told the agents that there would be no unrecorded interview. The agents then declined to interview Palmer.

Perhaps the agents don't realize that Palmer has learned his lesson. That lesson is not, “don't hunt bears without a permit in Wisconsin” but, “don't speak to federal agents—ever—without the intermediary of a lawyer.”

Martha Stewart and Palmer were both convicted of lying to federal agents. The moral of the story is “don't talk to federal agents without first consulting an attorney.” And that attorney will tell you, “don't talk to federal agents.”

Keep this advice in mind when selecting fabric patterns or stringing your compound bow.  Or doing almost anything else, for that matter.

The photograph of Dr. Palmer and Cecil the Lion is copyright by the Tim Stewart News Service. The photograph of Martha Stewart was taken by the U.S. Marshal's Service. The U.S. Government does not claim copyright in its photographs. 

2018 Update: This principle is why there is so much commotion over special prosecutor Robert Mueller's desire to interview Donald Trump. Once a prosecutor himself, Trump's attorney, former U.S. Attorney Rudolph Giuliani knows just how easy it is to convict under 18 U.S.C. 1001 and how easy it is to mis-step.

Do Bits and Bytes an Old Document Make?

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The word "hearsay" has almost become synonymous with the word "lie" in modern discourse. This is ironic, because the purpose of the hearsay rule is to enhance the truth-seeking process at trial.

Generally, out of court statements are inadmissible if introduced to show the truth of the matter asserted. But the rule has exceptions, and one of the most underutilized is FRE 803 (16), the exception for ancient documents. 

To qualify for the exemption, a document must: a)be 20 years old or more; and b) have its authenticity established. It wasn't that long ago that finding such a relevant document was a difficult task, involving trips to the library and a good deal of luck.

But what about now?

At the time I write this, twenty years ago was 1995. Today it is a trivial task to search Google for a document predating 1995. Trying to introduce yesterday's newspaper in evidence will bring a quick rebuke from a judge. But offering a newspaper article from 1995, if otherwise relevant, would be admissible under this exception. 

In the early 1990's a scholarly paper written by a professor at the Thunderbird School of Management reached the conclusion that the vast majority of irregular dollar transactions in Colombia were linked not to narcotics trafficking, but to the legitimate economy.

The author of the document would not agree to testify for the defense of these cases as an expert witness. So this important evidence was kept from the jury in countless cases. Ah, you say, wait.

You could have authenticated the document as a learned treatise through the government's expert. Then you could have used the exception for learned treatises, FRE 803(18). But that assumes the government expert, who in most cases was the arresting agent, would concede that the Thunderbird study was authoritative. That ain't gonna happen, as they say. 

Today, the Thunderbird study could be introduced as an ancient document and the jury would have heard that the economics of unofficial exchange rates and the hawala system are used, more often than not, for legitimate purposes. 

Keep in mind that the Rules of Evidence apply equally to criminal and to civil cases. Most U.S. states (and even that outlier, Louisiana) have similar state rules of evidence. Lawyers with upcoming trials are well-advised to spend a little time data mining.

Google, Nexis and many others may have crawled and copied information more than twenty years old that can now effectively be used as evidence at trial. This is a particularly useful tactic to level the playing field where trial budgets are meager or where defending indigent defendants.

The opinions expressed in this article are mine, mine and no one else's. The photograph of ancient documents from British India is taken from a Google search. The copyright holder is unknown.