Opinion
06 Mag. 1540 (GWG).
April 11, 2008
OPINION AND ORDER
In response to a request from the Ministry of Foreign Affairs of the Republic of Trinidad and Tobago ("Trinidad"), the United States of America has petitioned for a certification that Joseph Ben-Dak ("Ben-Dak" or the "relator") is extraditable pursuant to the extradition treaty between the United States and Trinidad. Ben-Dak, an Israeli citizen and legal permanent resident of the United States, opposes extradition on numerous grounds. For the reasons herein, the petition for a certification of extraditability is denied.
I. FACTS
A. Background
In August 1998, the government of Trinidad requested Ben-Dak's assistance in connection with the bid process for the Point Lisas Desalination Plant. In August 1999, the selection committee awarded the contract for the plant to Desalcott, a joint venture between Ionics — a United States Company later purchased by General Electric — and Hafeez Karamath Engineering Services, Ltd. ("HKESL"), a company which was located in Trinidad. See Memorandum of Law in Opposition to the Extradition of Joseph Ben-Dak, filed Mar. 14, 2007 (Docket # 14) ("Ben-Dak Mem."), at 6. Pursuant to the agreement, Desalcott was to finance, construct and operate the desalination plant. Id. Trinidad's Water and Sewerage Authority ("WASA") agreed to buy minimum monthly and yearly quantities of the purified water under a twenty-year take-or-pay agreement. Id.
At some point thereafter, the Trinidadian government began investigating whether "the bid process was compromised and rigged to insure that the Karamath [or HKESL]/Ionics joint venture would be awarded the contract, and that payoffs to certain officials in Trinidad were an essential part of this effort." Letter from Paul V. Kelly to Vera Marino, dated June 13, 2005 (attached as Ex. 1 to Declaration in Opposition to the Extradition of Joseph Ben-Dak, filed Mar. 14, 2007 (Docket # 13) ("Levin Decl.")). On June 2, 2006, Hafeez Karamath, the principal of HKESL, was charged with conspiring to defraud Trinidad during the bid process. See Republic of Trinidad and Tobago, Country of Saint George West, Information No. 9150/06 charging Hafeez Karamath with Conspiracy to Defraud, dated June 2, 2006 (attached as Ex. 6 to Levin Decl.). Three days later, Trinidad withdrew the charge against Karamath and recharged him jointly with Ben-Dak and Daniel Hoffman, an individual retained by Ben-Dak to assist Trinidad in the bid process. See Republic of Trinidad and Tobago, County of Saint George West, Information No. 9247/06, dated June 5, 2006 (attached as Ex. G.A.3 to Complaint, filed Oct. 27, 2006 (Docket ## 1-2) ("Compl.")). The charging instrument charges that from January 1, 1998 to August 1999, Ben-Dak "conspired . . . with other persons to defraud the State of Trinidad and Tobago with a view to gain for themselves by dishonestly arranging for a water supply contract to be awarded to a joint venture between Hafeez Karamath Engineering Services Limited and Ionics, known as the Desalinization Company of Trinidad and Tobago (Desalcott), by the State through the Water and Sewerage Authority." Id. Specifically, the warrant charges Ben-Dak with "[f]alsely pretending that the [bidding] process was open, honest and competitive" and "manipulat[ing] . . . the Desalinization Project Evaluation Committee . . . so that the grant of the water supply contracts to the said Desalcott was pre-determined." Id.
The Magistrate's Court in and for the District of the County of St. George West issued a warrant for Ben-Dak's arrest. See Warrant of Apprehension Indictable Cases, dated June 5, 2006 (attached to Request for the Extradition of Joseph Ben-Dak from the United States of America to the Republic of Trinidad and Tobago, dated Aug. 16, 2006 (attached as Ex. A to Compl.)).
B. Extradition Proceedings
Pursuant to Article 7(1) of the extradition treaty, Trinidad submitted a formal request to the United States for the provisional arrest of Ben-Dak. See Compl. ¶¶ 9-10; see Extradition Treaty Between the Government of the United States of America and the Government of the Republic of Trinidad and Tobago, U.S.-Trin. Tobago, art. 7(1), Mar. 4, 1996, 1996 WL 910005 (attached as Ex. A to Compl.) ("Extradition Treaty"). Subsequently, at the request of the U.S. Government, a warrant was issued by a judge of this court for Ben-Dak's arrest pursuant to 18 U.S.C. § 3184. See Arrest Warrant, signed on Oct. 27, 2006 (Docket # 2). Ben-Dak was arrested but ultimately released on bail pending the outcome of these proceedings. See Filings of Nov. 17, 2006 (Docket ## 4-6).
On December 18, 2006, the Government filed a Memorandum of Law in Support of Extradition ("Gov't Mem."). (Docket # 8). Ben-Dak, through counsel, opposed the motion. See Levin Decl.; Ben-Dak Mem. Ben-Dak also submitted a letter and declaration with exhibits under seal. See Letter from Joshua L. Dratel, filed Under Seal, dated Mar. 14, 2007; Declaration in Opposition to the Extradition of Joseph Ben-Dak, filed Under Seal, dated Mar. 14, 2007. The Government submitted reply papers on April 27, 2007. See Reply Memorandum of Law in Support of Extradition (Docket # 17); Letter from Michael M. Rosensaft, filed Under Seal, dated Apr. 27, 2007.
On July 6, 2007 this Court directed the Government to state its views as to whether the affidavit signed by Geoffrey A. Henderson ("Original Affidavit"), which was the only evidentiary matter supporting the application, reflected probable cause if the Court were to strike any paragraphs that did not identify the source of the information contained in those paragraphs. See Order, filed July 12, 2007 (Docket # 19); Case Summary by Geoffrey A. Henderson, dated Aug. 3, 2006 (attached as Ex. G.H.4 to Compl.) ("Orig."). The Government addressed this question in a responsive letter and also submitted a "Supplemental Affidavit" from Henderson. See Letter from Michael M. Rosensaft, filed July 30, 2007 (Docket # 20) ("Rosensaft Letter"). Ben-Dak objected to the Supplemental Affidavit as improperly certified and unauthorized, and also argued that it did not support extradition on other grounds. See Letter from Joshua L. Dratel, dated Aug. 16, 2007 (Docket # 26) ("Dratel Letter"), at 14-15; Second Declaration in Opposition to the Extradition of Joseph Ben-Dak, dated Aug. 22, 2007 (Docket # 27). The Government responded to some of these arguments in a letter to the Court from Michael M. Rosensaft dated August 23, 2007. (Docket # 21). In addition, the Government submitted a sworn and certified version of the Supplemental Affidavit. See Letter from Michael M. Rosensaft, filed Feb. 7, 2008 (Docket # 25) ("Second Rosensaft Letter"); Affidavit of Geoffrey A. Henderson, dated July 2007 (attached to Second Rosensaft Letter) ("Supp.").
II. DISCUSSION
A. Extradition Generally
"In the United States, extradition is governed by the federal extradition statute." Cheng v. United States, 213 F.3d 82, 87 (2d Cir. 2000) (citing 18 U.S.C. §§ 3181- 3196); accord Lo Duca v. United States, 93 F.3d 1100, 1103-04 (2d Cir.), cert. denied, 519 U.S. 1007 (1996). That statute provides that the extradition judge shall issue a certificate of extraditability if "he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention." 18 U.S.C. § 3184. "The judicial officer's inquiry is confined to the following: whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof." Cheng, 213 F.3d at 88 (citing Lo Duca, 93 F.3d at 1103-04; United States v. Kin-Hong, 110 F.3d 103, 109-10 (1st Cir. 1997)); accord In re Ribaudo, 2004 WL 213021, at *3 (S.D.N.Y. Feb. 3, 2004); In re Neto, 1999 WL 627426, at *3 (S.D.N.Y. Aug. 17, 1999).
Here, neither party disputes that a valid treaty between Trinidad and the United States respecting the extradition of fugitives is in force. See Extradition Treaty. In addition, neither party contests that conspiracy to defraud is a crime under both United States and Trinidadian law, and that this crime is an extraditable offense under the Extradition Treaty. Accordingly, only the last element of the inquiry is at issue: whether there is sufficient evidence to sustain the charge against Ben-Dak.
Nor is there any dispute that the formal requirements of the treaty were met. Article 7(2) of the treaty requires that all requests for extradition be supported by (a) a description of the identity and probable location of the person sought; (b) a description of the facts of the offense and the procedural history of the case; (c) the text of the relevant provision of the laws of the Requesting State; (d) a description of the law prescribing punishment for the offense; and (e) any applicable statute of limitations. Extradition Treaty, art. 7(2). The Government's complaint satisfies these requirements. In addition, pursuant to Article 7(3) of the Extradition Treaty: "[a] request for extradition of a person who is sought for prosecution shall also be supported by": a copy of the warrant for arrest, a copy of the charging document and "such evidence as, according to the laws of the Requested State, would justify the issue of a warrant for arrest if the offense had been committed in the Requested State." Extradition Treaty, art. 7(3). The Government submitted copies of the arrest warrant and charging document. See Compl.
B. Law Governing the Determination of Sufficiency of the Evidence
In the case of a request for extradition, the function of the extradition judge "is to determine whether there is competent evidence to justify holding the accused to await trial." Collins v. Loisel, 259 U.S. 309, 316 (1922); accord Lo Duca, 93 F.3d at 1104. "[W]hether the evidence is sufficient to justify a conviction" is not relevant. See Collins, 259 U.S. at 316. Rather, the request for extradition is to be granted if the evidence presented "would support a reasonable belief that [the relator] was guilty of the crime charged." Ahmad v. Wigan, 910 F.2d 1063, 1066 (2d Cir. 1990). Thus, "[t]he judicial officer who conducts an extradition hearing `. . . performs an assignment in line with his or her accustomed task of determining if there is probable cause to hold a defendant to answer for the commission of an offense.'" Lo Duca, 93 F.3d at 1104 (quoting Ward v. Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990)) (elision added). The probable cause standard applicable in extradition proceedings is defined in accordance with federal law. See, e.g., Sindona v. Grant, 619 F.2d 167, 175 (2d Cir. 1980); Sandhu v. Burke, 2000 WL 191707, at *5 (S.D.N.Y. Feb. 10, 2000). Under federal law, probable cause exists where there is "knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." United States v. Howard, 489 F.3d 484, 491 (2d Cir.) (internal quotation marks and citation omitted), cert. denied, 128 S. Ct. 525 (2007).
While the evidence in support of extradition must be "competent and adequate," Bingham v. Bradley. 241 U.S. 511, 517 (1916), neither the Federal Rules of Criminal Procedure nor the Federal Rules of Evidence apply, Simmons v. Braun. 627 F.2d 635, 636 (2d Cir. 1980); see also United States ex rel. Klein v. Mulligan, 50 F.2d 687, 688 (2d Cir.) (evidentiary rules of criminal litigation do not apply to extradition proceedings), cert. denied, 284 U.S. 665 (1931). Instead, the admissibility of evidence is governed by 18 U.S.C. § 3190, which provides that:
[d]epositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.18 U.S.C. § 3190.
Accordingly, hearsay evidence is admissible. Simmons, 627 F.2d at 636; accord Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006);United States v. Pena-Bencosme, 2006 WL 3290361, at *2 (E.D.N.Y. Nov. 13, 2006) (citing cases). The court may even rely on "unsworn statements of absent witnesses." Collins, 259 U.S. at 317; accord Simmons, 627 F.2d at 636. However, this does not mean that the hearing court should act as a "rubber stamp."Pena-Bencosme, 2006 WL 3290361, at *2 (quoting United States v. Fernandez-Morris, 99 F. Supp. 2d 1358, 1366 n. 7 (S.D. Fla. 1999)); accord In re Extradition of Platko, 213 F. Supp. 2d 1229, 1239 (S.D. Cal. 2002) (quoting Matter of Extradition of Lehming, 951 F. Supp. 505, 514 (D. Del. 1996)). Rather, "a court must conduct an independent assessment of the evidence and closely examine the requesting country's submissions to ensure that any hearsay bears sufficient indicia of reliability to establish probable cause." Pena-Bencosme, 2006 WL 3290361, at *2 (citing Gill v. Imundi, 747 F. Supp. 1028, 1041 (S.D.N.Y. 1990)).
The relator may introduce evidence in the extradition proceeding, but the relator's "right to introduce evidence is . . . `limited to testimony which explains rather than contradicts the demanding country's proof.'" Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.) (quoting United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir. 1963),cert. denied, 376 U.S. 952 (1964)), cert. dismissed, 414 U.S. 884 (1973). "In admitting `explanatory evidence,' the intention is to afford an accused person the opportunity to present reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause." In Matter of Extradition of Sandhu, 1997 WL 277394, at *6 (S.D.N.Y. May 23, 1997) (quoting Matter of Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978)) (some internal quotation marks omitted). Put differently, "`what tends to obliterate probable cause may be considered [by the extradition court] but not what merely contradicts it.'" Sandhu, 1999 WL 277394, at *6 (quoting Shapiro v. Ferrandina, 355 F. Supp. 563, 572 (S.D.N.Y.), modified and aff'd, 478 F.2d 894, 904 (2d Cir. 1973)); accord United States v. Hunte, 2006 WL 20773, at *6 (E.D.N.Y. Jan. 4, 2006).
"The extent of such explanatory evidence to be received is largely in the discretion of the judge ruling on the extradition request." Sindona, 450 F. Supp. at 685 (citing Collins, 259 U.S. at 315-17; Charlton v. Kelly, 229 U.S. 447, 461 (1913);Petrushansky, 325 F.2d at 567). Some courts have held that an extradition judge is permitted to "go beyond the face of the government's affidavits for purposes of determining credibility or reliability." Gill, 747 F. Supp. at 1041 (citing cases). Nonetheless, "[t]he extradition hearing conducted pursuant to
section 3184 `is not . . . in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him. . . .'" Lo Duca, 93 F.3d at 1104 (quoting Benson v. McMahon, 127 U.S. 457, 463 (1888)). Indeed, the hearing court must ensure that the extradition proceedings are not converted into a "dress rehearsal trial." Jhirad v. Ferrandina, 536 F.2d 478, 484 (2d Cir.), cert. denied, 429 U.S. 833 (1976).
C. Validity of Supplemental Affidavit
Before examining whether the evidence presented is sufficient to make out probable cause, we note that Ben-Dak has argued that the Supplemental Affidavit should be disregarded because it was submitted in violation of the Extradition Treaty. Dratel Letter at 14-15. Before the resubmission of the Supplemental Affidavit in September 2007, Ben-Dak contended that the original iteration of the Supplemental Affidavit should not be considered because it "was not `certified by the principal diplomatic or consular officer of the United States resident in Trinidad and Tobago,'" nor was it "`certified or authenticated in any other manner accepted by the law of the [United States].'" Id. at 14 (quoting Article 8(b) and Article 8(c) of the Extradition Treaty, respectively) (alteration in original). In addition, Ben-Dak argued that the Supplemental Affidavit was "not sworn to under penalty of perjury and is undated" in violation of 28 U.S.C. § 1746. Id. These arguments were mooted, however, when the Government re-filed a version of the Supplemental Affidavit that had been certified through the proper diplomatic channels and was executed under oath. See Second Rosensaft Letter.
Ben-Dak had also argued that the Government "failed to identify any authority permitting the submission of the Supplemental Affidavit." Dratel Letter at 15. In response, the Government noted that in Greci v. Birknes, 527 F.2d 956, 960-61 (1st Cir. 1976), the First Circuit remanded an extradition case to the extradition judge to "receive additional or corroborative documents, if such are deemed necessary." Id.; see Rosensaft Letter at 3. It is not necessary to reach the question of whether the submission of the Supplemental Affidavit was proper because, as is described further below, consideration of the Supplemental Affidavit does not permit a finding of probable cause.
D. Summary of the Competent Evidence
The Original Affidavit proffered in support of the request for extradition purports to have been made on the "personal knowledge" of a prosecutor, Mr. Geoffrey A. Henderson, "except where otherwise stated to be based on information in which case I verily believe same to be true and correct." Orig. ¶ 1. In fact, it is obvious that with respect to large portions of this affidavit, the facts stated are not based on Henderson's personal knowledge, and yet he gives no indication that they were made on information or belief. These portions read simply as an account of criminal conduct, without citations, sources or references. Thus, the Court has no basis on which to consider the facts contained in these portions as supporting a determination of probable cause.
The Government urges consideration of these "unsourced" paragraphs on the ground that hearsay is permissible in determination of probable cause. See Rosensaft Letter at 4 n. 1. This argument provides no justification for considering the unsourced paragraphs, however. Obviously, hearsay statements may be used to support probable cause. Simmons, 627 F.2d at 636. The problem is not that Henderson's Original Affidavit contains hearsay, but that many statements or paragraphs do not disclose which factual allegations are based on his personal knowledge, which are based on the personal knowledge of some other individual, and which are merely conjecture. As one case considering a request for a certificate of extradition has noted, "the materials submitted must set forth facts from which both the reliability of the source and probable cause can be inferred." In Matter of Extradition of Ernst, 1998 WL 395267, at *9 (S.D.N.Y. July 14, 1998) (emphasis added); see also Fernandez-Morris, 99 F. Supp. 2d at 1366 (rejecting extradition request where, inter alia, the submitted affidavit contained "a variety of conclusory and speculative statements") (internal quotation marks omitted).
The Supreme Court made precisely this point in Illinois v. Gates;
A sworn statement of an affiant that "he has cause to suspect and does believe that" liquor illegally brought into the United States is located on certain premises will not [establish probable cause]. Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159 (1933). An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and the wholly conclusory statement at issue in Natahanson failed to meet this requirement. An officer's statement that "affiants have received reliable information from a credible person and believe" that heroin is stored in a home, is likewise inadequate. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). As in Nathanson, this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.462 U.S. 213, 239 (1983); accord id. at 241-42 (affidavit relying on hearsay must provide "a substantial basis for crediting the hearsay") (citation and internal quotation marks omitted).
The difference between hearsay and an unsourced statement may be seen in the example of an affidavit in support of an arrest warrant that states without elaboration: "John Doe killed Jane Doe with a shotgun in their home on January 1, 2008." Such an affidavit would not provide a basis on which to find that John Doe had committed this murder because it would be unknown how the affiant knew the fact alleged. If, by contrast, the affiant stated, "Bill Smith told me that he was in the home of John Doe on January 1, 2008, when he saw John Doe kill Jane Doe with a shotgun," the affidavit would provide a basis for using the statement to find probable cause.
As noted, the Court pointed out this failing in an Order issued on July 6, 2007, and asked the Government to give its views as to whether probable cause was made out if the unsourced paragraphs were not considered. The Government made such arguments and also submitted the Supplemental Affidavit from Mr. Henderson. The Supplemental Affidavit does not cite a source for each of the unsourced paragraphs of the Original Affidavit, however. Instead, it gives new versions of certain portions of the narrative in the Original Affidavit (for which sources have largely been provided). Thus, many allegations from the original affidavit remain without sources.
Because the unsourced portions of the affidavits are not legally "competent," the Court considers only (1) the sourced allegations in the Original Affidavit and (2) the sourced allegations in the Supplemental Affidavit. In other words, the Court ignores the portions of the Original Affidavit that did not provide a source (for example, the entireties of paragraphs 15, 24-29, 31, 40-41, 45, 51) and the portions of the Supplemental Affidavit for which there is no source or other basis provided (discussed in section II.E. 1 below).
Accordingly, we now combine the sourced portions of the Original and Supplemental Affidavits to arrive at the set of facts that has been considered by the Court. In a few instances, we have considered explanatory (though not contradictory) material submitted by Ben-Dak. Some of this material consists of documentary evidence partially quoted by Henderson in his affidavits. We omit some facts because they are not relevant to the probable cause determination.
While Ben-Dak denies the truth of large portions of these affidavits, we do not accept Ben-Dak's version of events to the extent that it contradicts any matters within the personal knowledge of the sources relied upon by the Government.
1. Solicitation of Bids for Desalination Plant in 1998
In 1997, Trinidad was experiencing a water shortage and decided that one of the solutions to this shortage would be to arrange for the construction of a water desalination plant. Supp. ¶ 4. During the period from late 1997 to early 1998, Hafeez Karamath expressed his interest in being selected to develop or construct such a facility to the Trinidad government office overseeing the bid process, the Ministry of Public Utilities ("MPU"). Supp. ¶ 5.
In early July 1998, the MPU issued an announcement requesting expressions of interest by private firms to build, own and operate a desalination plant to produce potable water for the "Point Lisas Industrial Estate." Orig. ¶ 13. Letters of interest were to be submitted to Emmanuel George, Permanent Secretary of the MPU, by July 27, 1998. Orig. ¶ 13; Supp. ¶ 6. This announcement was followed in late July 1998 by a formal "Invitation to Pre-Qualify for the `Build, Own and Operate' Project Involving a Desalination Plant at or in the Vicinity of the Point Lisas Industrial Estate," which was advertised in various local newspapers. Orig. ¶ 13; Supp. ¶ 6. The MPU requested completion and submission of pre-qualification documents by August 21, 1998. Orig. ¶ 13; Supp. ¶ 6. On July 31, 1998, Karamath mailed the pre-qualification documents to Christian Miller at Ionics, the firm with which Karamath was collaborating on his bid. Orig. ¶ 14; see id. ¶ 42; Supp. ¶¶ 10-11.
Paragraph 6 of the Supplemental Affidavit gives the date of "1996" for these events, rather than 1998. Given the Supplemental Affidavit's reference to paragraph 13 of the Original Affidavit, however, it is obvious that this is a typographical error.
2. Karamath and Ben-Dak's Relationship/Engagement
Prior to this time Karamath had had business dealings with Ben-Dak, as reflected in documents dating from 1996 and 1997 found in Karamath's office unrelated to the desalination plant. Supp. ¶ 7. Such dealings included communications regarding private sector participation in the Trinidadian postal service. Id.
On August 18, 1998, after the MPU's solicitation regarding the desalination plant, Ben-Dak traveled with his family to Trinidad. Orig. ¶ 17. Between August 19 and August 21, while Ben-Dak was in Trinidad, four fax transmissions were made between an entity called Group+One LLC and either Hafeez Karamath Construction Limited ("HKCL") or Jade Development Limited, entities formed and controlled by Karamath. Id. While Group+One LLC is not specifically described in any of the sourced paragraphs of Henderson's affidavits, it is not contested (and is otherwise obvious from the context of the sourced allegations) that Ben-Dak and an individual named Gary Sazer were employees or principals of this entity.
On August 25, 1998, two days after Ben-Dak left Trinidad, Emmanuel George of the MPU sought Ben-Dak's assistance in the bid process. Supp. ¶ 8. Specifically, George sent a letter to Ben-Dak in his capacity as chairman of the International Industrial Development Foundation seeking assistance in the "short-listing" of interested bidders on the desalination project, the "judging of presentations and final selection," and "negotiations with the selected proposer." Orig. ¶ 18; Supp. ¶ 8; Ben-Dak Mem. at 6. In late August 1998, Ben-Dak contacted Daniel Hoffman, a desalination expert from Israel, to ask him if he was interested in serving as an expert consultant for the Trinidad project. Orig. ¶ 19. Another of Ben-Dak's companies, ReGenesis Fund for United Nations Programming in Science and Technology ("ReGenesis"), engaged Hoffman, who was himself affiliated with an entity called ADAN Technical Economic Services Ltd. See Orig. ¶ 32; Supp. ¶ 12.
On September 1, 1998, Ben-Dak sent a handwritten fax to Karamath. Orig. ¶ 20. In the fax, Ben-Dak informed Karamath that Hoffman would be coming to New York on September 6 "to review work load and evaluation criteria," and would then be traveling to Trinidad to spend four days "for review of prep." Id. Karamath responded by fax on September 3, 1998 that he would "cover transportation costs of $3,000 and Mr. Hoffman's $1,000 per day, plus any other miscellaneous costs. I can immediately effect this transfer upon your advice. I want it to appear that this is a Non Commercial Service. Yours sincerely." Supp. ¶ 9; Orig. ¶ 20. Attached as part of this fax was a "DRAFT" letter addressed to the Permanent Secretary of the MPU (without his name being used) to be sent by ReGenesis. Orig. ¶ 20.
The draft letter states in part:
Dear Honorable Secretary . . . The ReGenesis Foundation for United Nations Programming in Science and Technology has received your request for the three stages of evaluative and substantive inputs for your proposed desalinization project ("Project"). Your outline of the Project requirement for comprehensive planning including all impacted areas and the need/response items deserve the best that our team can bring to the project.
Daniel Hoffman has accepted the valuation assignment for the immediate first state. His C.V. is attached. We may be able to use his services or other team members for the next state. I should hasten to add the cost of his service will be borne by us. However each day Mr. Hoffman attends to this phase of the project, transportation, housing, hospitality and airport transfers in Port of Spain and logistical support, are the responsibilities of the Ministry.
Supp. ¶ 9; Orig. ¶ 20. In handwriting on the second page is recorded "please re-do and send to me for final approval. Call Me! HK." Supp. ¶ 9. On September 3, 1998 the letter was retyped onto the letterhead of ReGenesis, signed by Mac Shaibe as Chairman of the Board of ReGenesis, and sent to George, Permanent Secretary of the MPU. Orig. ¶ 21. The only addition to the letter was a final sentence indicating that Hoffman would arrive in Trinidad on September 7 and depart on September 11. Id.
In an affidavit submitted by Shaibe, he explains the reason this letter was sent was that it was not clear to him that George had understood that Hoffman would have to be paid for his visit. Declaration of Mac Shaibe, dated Aug. 16, 2007 (attached as Ex. 3 to Dratel Letter) ("Shaibe Decl."), ¶ 17. Shaibe states that he called upon Karamath to assist in contacting George based on his prior dealings with Karamath in areas unrelated to the desalination proposal and based on his belief that Karamath's assistance was sanctioned by the Government of Trinidad. Id. ¶¶ 11, 18-20. Corroborating the latter point, it was indeed Karamath, and not the Government of Trinidad, who later notified Ben-Dak's company that there was to be a change in the schedule in that the MPU required Hoffman in Trinidad from September 14-18. Orig. ¶ 22; Shaibe Decl. ¶ 23.
On September 4, 1998 Karamath sent a fax to Ben-Dak commenting that the letter (sent to George) is "perfect" and stating, "However, I would like to meet with him [referring to Hoffman] and yourself on Friday 11th September, 1998 in New York. Is this possible?" Orig. ¶ 22. Karamath then asked Ben-Dak to "confirm the meetings in New York" and offered to pay "for any costs due to any inconvenience caused and for any additional stay in New York." Id. He ended the fax with a handwritten notation to Ben-Dak: "Please call me if you can. HK." Id. (emphasis omitted).
3. Meetings on September 11, 1998 in New York
Karamath traveled to New York on September 10, 1998, stayed at the Palace Hotel for one night, and returned to Trinidad the following day. Orig. ¶ 23. Hoffman arrived in New York from Tel Aviv, Israel on September 11 and stayed two nights at the Palace Hotel before departing for Trinidad on September 13. Id.
There were two meetings on September 11, 1998, the description of which is attributed to Sazer. See Supp. ¶ 10. The first meeting was held in the morning at a restaurant in the Helmsley Palace Hotel in New York. Id. Sazer, Ben-Dak and Karamath attended this meeting, which lasted approximately one hour. Id. The meeting focused on the consulting relationship between Karamath's engineering company (HKESL) and Ben-Dak's company, Group+One LLC. Id. The parties discussed the bidding process for the construction of the water desalination plant at Port Lisas, Trinidad in conjunction with the Massachusetts firm, Ionics. Id. Karamath's role in the construction project was also discussed.Id. Prior to this meeting, Karamath had been involved in the construction of a new Hilton Hotel in Tobago and was in need of additional financing for the completion of that project. Id. Karamath was also interested in bidding for a new health care facility in Barbados. Id. Ben-Dak told Sazer and Karamath that Group+One would assist Karamath in obtaining financing to bid on the water desalination plant in Port Lisas. Id.
The second meeting on this date and took place in the courtyard of the Helmsley Palace Hotel, and Sazer, Ben-Dak and Hoffman attended. Id. Ben-Dak advised Hoffman and Sazer that the desalination project at Point Lisas, Trinidad was going forward, and that Karamath was going to win the bid. Id. Karamath stated he was certain he had some high ranking Trinidadian officials in "his pocket." Id. Karamath told Sazer and Ben-Dak that he had recruited the following persons to "work the bid process": Brian Kuei Tung, Rupert Griffith, Ganga Singh, George, Khansham Kanhai and I. DeSouza, who was Karamath's associate at the Republic Bank in Trinidad. Id. Thus, Karamath could be assured he would get the contract for the desalination plant. Id. There were no statements about payoffs to the government officials at this meeting. Id.
The meeting ended when Sazer told Ben-Dak and Hoffman that this plan was illegal, and he would not participate. Id. Hoffman and Ben-Dak told Sazer that the project was outside the United States of America, and there would be no exposure for the group. Id. Sazer departed, advising Ben-Dak and Hoffman that he would not participate in the scheme. Id.
While it has had no bearing on the Court's probable cause analysis, the Supplemental Affidavit notes that Hoffman denies ever meeting Sazer and has no recollection of meeting with Karamath. Supp. ¶ 10. He states that his purpose for travel to New York during September 1998 was to meet with Ben-Dak regarding the Point Lisas project. Id.
4. Correspondence between Sazer or Ben-Dak and Karamath in September 1998
On September 14, Sazer sent a four-page fax to Karamath, with copies to Ben-Dak, that included a retainer agreement in which Karamath agreed to pay Group+One LLC $20,000, plus expenses, by wire transfer each month through February 1999. Orig. ¶ 30. In addition, the letter proposed that Group+One LLC would receive a 7.5% "equity participation" in any of the projects that materialize. Id. Finally, the letter instructed that wire transfers be sent to an account at Citibank under the name Sazer Associates. Id. Sazer's fax also included a letter to Karamath from Group+One LLC, signed by Sazer, requesting $21,500 in "expenses" incurred to date, and requesting that this sum be transmitted to the above account at Citibank. Id. On September 17, Karamath sent a fax to Ben-Dak that was a draft of a proposed response to the correspondence sent by Sazer on September 14. Orig. ¶ 33. In the draft, Karamath asserts that "my arrangement with Dr. Ben-Dak for his assistance, which he is presently rendering to me, would be compensated on the basis of cost times two." Id. (emphasis omitted). Upon receiving this fax, Ben-Dak forwarded it to Sazer with a fax note reading: "This is what `our friend' intends to send you. It is a draft (confidential). Let me know what you think." Id. The following morning, Sazer faxed a reply to Ben-Dak that read: "I think this redrafted letter agreement meets the requirements of informality and flexibility within a clearly defined structure. As I read Hafeez's letter, I think we have met all of his objections except for the carve out of the current project. Since in his mind that project is personal to you, no exception is necessary for this agreement." Orig. ¶ 34 (emphasis omitted). The final version of the letter from Karamath, including the sentences handwritten in by Ben-Dak, was faxed to Sazer at Group+One LLC on the letterhead of F K Holdings Ltd. (another corporate entity created by Karamath) on September 18, 1998. Orig. ¶ 35.
The full text of the September 18 letter, which was provided by Ben-Dak and not the Government, makes no reference to the desalination plant in its text but instead refers to various other projects and to payments to be made with respect to other projects. See Letter from Hafeez Karamath to Gary Sazer, dated Sept. 18, 1998 (attached as Ex. 34 to Levin Decl.) ("Sept. 18 Letter").
On the previous day, a wire transfer of $21,500 was sent from the bank account of HKCL at Republic Bank to the Group+One LLC account at Citibank. Orig. ¶ 35. On October 9, 1998, HKCL wire transferred another $20,000 to the Group+One LLC account at Citibank. Orig. ¶ 36.
5. Pre-Qualification Process in Trinidad, September 14-18, 1998
In the meantime, on September 13, 1998, Daniel Hoffman flew to Trinidad for the pre-qualification process. Supp. ¶ 11. On September 14, 1998, the pre-qualification bid documents were opened by the "Evaluation Committee," which consisted of Kanhai, R. De Souza, George and Shobna Persaud. Id. Daniel Hoffman was there on behalf of ReGenesis and was contributing his services in evaluating the ability of applicant desalination companies to perform the project. Id.
Three specialist members of the Committee — Hoffman, Kanhai and De Souza — consulted with each other in scoring the responsive bids. Id. As a report on the process authored by Hoffman stated, "[t]his cross-fertilization enabled each and every Committee member to complete his Applicant Evaluation Sheet, scoring also [sic] times outside his knowledge and/or expertise." Id. Of the 7 bids that qualified and had sufficient scores, each member of the committee scored Karamath's bid in first place. Id. The evaluation was completed on September 18, 1998. Id.
6. Contacts between Ben-Dak or Sazer and Karamath in late 1998
On November 18, 1998, Sazer, on behalf of Group+One LLC, sent a letter to Karamath requesting payment of $90,000 for "October and November consulting (US$40,000) and the agreed reimbursement for the ReGenesis expenditures (US$50,000)." Orig. ¶ 37. The following day, HKCL wire transferred $20,000 to Citibank in New York for the benefit of Group+One LLC. Id. This transaction is confirmed by bank records of both Citibank and Republic Bank. Id.
On November 25, 1998, Ben-Dak sent a fax to Karamath attaching recent "communications from Dan." Orig. ¶ 38. In his covering note, Ben-Dak told Karamath that he needed Karamath's "input to guide him." Id. The questions from Hoffman related to how members of the Evaluation Committee were communicating with Hoffman and/or Ben-Dak's company. Id. One of the communications enclosed with the above fax was an email from Hoffman to Ben-Dak in which Hoffman complains about the "cumbersome, repetitive and not too well ordered" nature of what the affidavit refers to as "the submissions" — implying that they are submissions from bidders.Id. Hoffman ends this email with the following question to Ben-Dak: "Please let me know how you wish me to treat this endeavor and how much effort and time to devote to the Documents." Id. While the Original Affidavit states that this is a "curious" question that must refer to "review of the submissions," id., the full e-mail — which was placed in the record by Ben-Dak, not the Government — shows that the references are to the "Tender Documents," not to "submissions" by the bidders. See E-mail from Daniel Hoffman to Joseph Ben-Dak, dated Nov. 25, 1998 (attached as Ex. 35 to Levin Decl.). The e-mail reflects that Hoffman had produced a draft of these documents, but that certain persons, presumably associated with the MPU or on the Evaluation Committee, had rearranged material Hoffman provided to make the draft Tender Documents "cumbersome, repetative [sic] and not too well ordered." Id. This point was brought up in Ben-Dak's submissions, yet the reason for the seemingly incorrect representation in the Original Affidavit is nowhere addressed in the Supplemental Affidavit.
The fax to Karamath asked him to answer the following questions raised by Hoffman: "(A) Why this man Bachan [one of the members of the bid evaluation committee, see Supp. ¶ 16] is there altogether? (B) Why does he not communicate with the ReGenesis Foundation or me by email as was agreed with Kanhai. Is he not aware that he should communicate with me? — I can do it by myself but you ought to look at these items first. (C) Why is the quality of the presentations so poor given the excellent introduction we did for them?" Orig. ¶ 38.
On December 2, 1998, HKCL wire transferred another $28,000 to the Citibank account of Group+One LLC, bringing the total of payments made by Karamath to the consulting firm operated by Ben-Dak and Sazer to $89,500. Orig. ¶ 39. Sazer sent a fax to Karamath's assistant, Farsana Mohammed, requesting to "advise us by fax when the wire transfer order is placed." Id.
7. Continuation of the Bid Process in Trinidad in December 1998
On December 1, 1998, George issued the "Tender Package for the Establishment of A Desalination Plant at Point Lisas Industrial Estate" in a letter addressed to the seven pre-qualified companies. Supp. ¶ 12. The package set the date for submission of proposals as January 14, 1999. Id. The bidders were required to confirm their intention to bid by December 18. Id. Daniel Hoffman remained a member of the committee evaluating the bid. Id. Eventually, the deadline was extended to February 19, and the three final bidders included HKESL. See Supp. ¶ 13. According John Arnold of Ionics, Karamath's role in the preparation of the bid document was limited to insisting on the price to be charged for water. Orig. ¶ 42. After an analysis of unit costs and production projections, officials from Ionics and its engineering consultants at Montgomery Watson proposed to bid at 58 US cents pcm. Id. Ionics expected competitive bids to come in at between 56 and 65 US cents pcm, and did not want to risk losing out on the project. Id. Karamath insisted that their bid be submitted at 65 US cents pcm. Id.; Supp. ¶ 14.
8. Trinidad's Award of the Contract
On February 24, 1999, Kanhai, as Technical Advisor to the MPU, hired Hoffman for its Evaluation Committee for the bids at a cost of $33,600. Orig. ¶ 44; Supp. ¶ 15. Hoffman came through New York on his way to Trinidad and stayed from March 19 to March 21. Orig. ¶ 46. There were calls between Karamath and Ben-Dak on March 14, 15 and 19. Id. No indication is given as to whether this was an unusual pattern of calling between Karamath and Ben-Dak.
On March 22, 1999, the three bids were opened during the first meeting of the Evaluation Committee and were signed by Hoffman, Persaud and Bachan. Supp. ¶ 16. In one meeting, Hoffman explained the scoring system that he proposed and outlined the basic objectives of the process. Orig. ¶ 48. He advised that he would assist Committee members in their evaluation by preparing a Table of Comparison covering five different categories. Id. Hoffman stated that, on first impression, two of the three bids were "well prepared and excellent in form, complete and detailed." Id. He described the third bid (that of Bhagwansingh/US Filter, the low bidder on price) as "poor on all counts, incomplete, undetailed, conditional, etc.," and said that it would require "a long list of queries." Id. Requests for further information were made to the bidders. Supp. ¶ 17.
The committee held various meetings in April 1999, and Hoffman prepared documents used to evaluate the bids. Supp. ¶ 17. The Committee Members were significantly influenced by the expert advice and guidance of Hoffman, who was the only committee member with experience in desalination. Orig. ¶¶ 50, 52. Each of the eight other members who submitted score sheets followed very closely Hoffman's comparison and score sheet. Orig. ¶ 53. Every member ranked Karamath/Ionics in first place (with a total of 685.9 total points), Bhagwansingh/US Filter in second place (with a total of 576.2 points), and Power Gen/Stone Webster in last place (with a total of 519.7 points). Id.; Supp ¶ 18. Ionics/Karamath was awarded the contract to build, own and operate the plant. Supp. ¶ 18; see Orig. ¶ 55.
Karamath made telephone contact with Ben-Dak within a day of being informed of the decision, and then had extensive phone contact with Ben-Dak almost daily between April 26 and May 10. Orig. ¶ 54.
E. Application of the Probable Cause Standard to the Facts
1. Discounted Statements
As noted, the above summary does not include numerous unsourced statements made in the affidavits. In addition, the Court notes that it has also not considered the following statements in the Supplemental Affidavit, which either do not contain a source or lack any stated basis.
First, it has discounted the statement that "[a]ccording to Sazer, ReGenesis served as a conduit for payments from Hafeez Karamath through Joseph Ben-Dak to Daniel Hoffman." Supp. ¶ 10. This statement is included in a paragraph that otherwise describes what occurred at the first of the September 11, 1998 meetings. The Court has considered the allegations of this paragraph that assert what was "discussed" at the meeting and what Ben-Dak "told" people at the meeting. Nothing in the paragraph (or elsewhere), however, reflects the basis for Sazer's knowledge that "ReGenesis served as a conduit for payments." Thus, we do not know whether someone said this at the meeting, or if it is merely Sazer's own surmise as to what was occurring based on other events of which he had personal knowledge and which are not disclosed in the affidavit.
Harkening back to the example given earlier regarding unsourced statements, the statement that ReGenesis served as a conduit for payments would be equivalent in value to an affidavit that stated merely: "Bill Smith told me that on January 1, 2008, John Doe killed Jane Doe." This statement would be insufficient to show probable cause that John Doe killed Jane Doe because it does not make clear how Smith knew this. Did he witness it? Did John Doe confess to him? If he did witness it, why does he not say how John Doe killed Jane Doe?
Second, the Court has discounted the statement that "Ben-Dak brought Hoffman into the project, as a desalination expert who would `rig' the bid process to assure Karamath would win the contract." Supp. ¶ 10. First, no source is provided for this statement. Assuming arguendo, it was meant to be attributed to Sazer, it would still be insufficient for the same reason just given with respect to the first statement: no basis is given for Sazer's knowledge of this fact, and thus we do not know if the statement merely represents his surmise.
Third, there is a statement that "Sazer indicated that the second meeting on [September 11, 1998] focused on the mechanics of the bidding `scheme.'" Supp. ¶ 10. The mechanics of this "scheme," however, are not specifically described, and thus there appears to be no basis for the statement beyond what is elsewhere described in the paragraph. It is entirely possible that the "scheme" consisted solely of Karamath's claim that he had control over high-ranking Trinidadian officials, or that he had recruited certain individuals — none of whom included Hoffman — to "work the bid process." Id. There is no indication of Ben-Dak's involvement in either scenario.
Fourth, the Original Affidavit contains the statement that language in a document "refers to the bid-rigging scheme for the desalination project that was discussed between Karamath, Ben-Dak and Hoffman." Orig. ¶ 34. Once again, the details of this scheme are simply not described anywhere in admissible form, and thus this statement adds nothing to the facts before the Court beyond what is contained in the sourced allegations of the affidavits.
2. Analysis
Excising the above-mentioned statements along with many other unsourced statements, the evidence consists essentially of the following allegations: (1) Ben-Dak had a continuing business relationship with Karamath unrelated to the desalination plant that pre-dated the announcement of the request for proposals; (2) Karamath planned to bid on the desalination project; (3) Karamath had contact with Ben-Dak (on unknown subjects) after bidding for the project was announced; (4) Trinidad approached Ben-Dak to serve as a consultant on the bidding process; (5) Ben-Dak decided to hire Hoffman to assist Trinidad in this process; (6) Ben-Dak informed Karamath that Hoffman was coming to Trinidad; (7) Karamath offered to pay for Hoffman's expenses; (8) Karamath drafted a letter to Trinidad for Ben-Dak's signature regarding Hoffman's visit to discuss the bid process; (9) Karamath asked to meet with Ben-Dak and Hoffman; (10) Ben-Dak met with Karamath and discussed the bid process for the project; (11) Ben-Dak then met with Hoffman and Karamath, during which (a) Ben-Dak said he would assist Karamath in obtaining financing to bid on the project, (b) Karamath implied he had improper influence over Trinidadian officials and others involved in the project, and (c) Ben-Dak told Hoffman that Karamath was going to win the bid; (12) when Sazer, a participant in both meetings, stated the scheme — the precise nature of which is not clear — was illegal, Hoffman and Ben-Dak stated that the project was outside the United States of America, and there would be no exposure for the group; (13) Karamath subsequently made payments to Ben-Dak, although the writings relating to these payments are consistent with the payments corresponding to projects other than the desalination project; (14) Ben-Dak forwarded to Karamath inquiries from Hoffman to Ben-Dak as to matters relating to the desalination bid process prior to the receipt of bids; (15) Hoffman played an important role in the ratings given to the bid proposals; and (16) Karamath was awarded the contract based on the ratings that were influenced by Hoffman.
Obviously, it is highly suspicious for a potential bidder on a contract to meet with (a) representatives of the firm that is advising the Trinidadian Government with respect to the contract and (b) with one of the individuals who will ultimately rate the bids on that contract, and for that bidder to engage in discussion regarding the project. Thus, there seems little doubt that there is probable cause to believe that Karamath was planning to commit some kind of fraud. But, while Karamath may have had such plans and announced them to Ben-Dak and Hoffman, such an announcement does not by itself show probable cause to believe that Ben-Dak entered into a conspiracy to defraud Trinidad.
As for the payments made from Karamath to Ben-Dak, no evidence has been presented as to which of any payments made by Karamath might have related to other projects as opposed to the alleged desalination plant scheme. Even though it is not necessary for such details to have been specified in order to infer that payments were improper, the Court will not simply ignore the evidence of the pre-existing relationship between Karamath and Ben-Dak and the contemporaneous evidence that the payments related to other matters. For example, one of the statements made as part of these transactions was that Ben-Dak was to obtain "equity participation" in an unnamed project, see Orig. ¶ 30 — but there is no suggestion that Ben-Dak has any equity interest in the desalination facility.
Moreover, the Government's submission by itself suggests that the communications and payments after September 11 were not payments and communications for an improper purpose: after all, Sazer was the individual principally involved in the drafting of the September 14 retainer agreement and subsequent documents, and he had just days earlier announced that he would take no part in any illegal conduct. There is no statement from Sazer, who is the source for all of the statements regarding the meetings, that he subsequently changed his mind on this point. And, as previously noted, the full text of the September 18 letter makes no reference to the desalination plant in its text but instead refers to various other projects and payments to be made with respect to other projects. See Sept. 18 Letter. While the Court recognizes that "an innocent explanation . . . consistent with the facts alleged . . . does not negate probable cause," United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985), case law explicitly permits consideration of explanatory evidence in extradition proceedings. Thus, we consider it in making the probable cause determination.
With the unsourced, vague and conclusory matters excised from the affidavits, the description of what occurred at the meetings is so disjointed as to add little to the potential existence of probable cause. While the sourced statements make reference to an "illegal" scheme for which Ben-Dak and Hoffman would face "no exposure," the affidavits give no competent evidence of what the scheme actually was. See, e.g., Sandhu, 1997 WL 277394, at *6 ("`the vagueness of testimony [submitted in support of an extradition request] may destroy the probability of guilt'" (quoting Shapiro, 355 F. Supp. at 572)); see generally Ernst, 1998 WL 395267, at * 10 (denying extradition where it was "impossible to determine the veracity and bases of knowledge of the witnesses"). As noted, the unconsidered portions of the affidavits state that the scheme was that Karamath would funnel payments to Hoffman through Ben-Dak. Orig. ¶ 25; Supp. ¶ 10. But there is simply no competent evidence given to support this. The most damning piece of the sourced evidence is Ben-Dak's statement that Karamath is "going to win the bid." Supp. ¶ 10. Yet even that statement does not show an agreement by Ben-Dak to engage in fraudulent conduct himself. Rather, it seems to follow naturally from Karamath's statement that he had improper influence over Trinidadian officials involved in the project.
In sum, while the September 11, 1998 meetings and the other contacts between Karamath and Ben-Dak, including the transfer of moneys to Ben-Dak, are plainly suspicious, the manner in which the September 11 meetings have been recounted in the affidavits does not give rise to the conclusion that Ben-Dak engaged in a conspiracy to defraud. In the end, the Court must view the evidence as a "reasonable and prudent" person and ask whether it has a "reasonable ground for belief of guilt."Maryland v. Pringle, 540 U.S. 366, 370-71 (2003) (internal citations and quotation marks omitted). While it is a close question, the Court cannot say that the Government has met the probable cause standard based on the evidence properly before the Court.
Because it is not necessary to the disposition of the Government's request, the Court does not reach any of the other arguments presented by the relator.
Conclusion
For the reasons stated above, the request for a certificate of extradition is denied.
SO ORDERED.