Lawyers for Guyanese businessman Roger Khan, who is facing drug charges in the US, have filed a pre-trial motion seeking to have US Judge Dora Irizarry dismiss the superseding indictment on several grounds.

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The 38-page motion, seen by this newspaper, was filed in the Brooklyn court early last week by Khan's four lawyers. It includes a section called 'factual background' in which Khan makes several allegations, which were made before, against US authorities in Guyana and former commissioner of police Winston Felix, among others. The 'factual background' gives details about the crime rampage the country experienced during the reign of the five prison escapees, the kidnapping of US Embassy official Steve Lesniak and the role Khan allegedly played in the fight against the crime upsurge.

The first point listed in the motion to support the call for dismissal is the lack of personal jurisdiction, based on the rule of speciality. The lawyers question their client's removal from Trinidad and Tobago to the US. Listing several cases to support their arguments, they said two questions that must be addressed were whether he was extradited and if so what the scope of Trinidad to grant the extradition was. The motion said it was essential that the parties and the court examine any documents that maybe relevant to the questions, including diplomatic notes and other communications between the US and Trinidad concerning Khan and his transfer to US custody, and internal communications to and from Special Agent Gary Tuggle, who is based in Trinidad, regarding the process by which Khan was taken to the US. It was pointed out that since August 21 counsel for Khan, via letter, requested that the government provide the documents but to date none had been forthcoming. "The defendant therefore requests that the court direct the government to do so. Pending that event, the defendant requests leave to supplement this motion asking the court to dismiss the charges in the superseding indictment as violating the rule of speciality over the defendant Khan with regard to those charges," the motion said.

Vindictive prosecution

The lawyers are also seeking to have the indictments dismissed because according to them, Khan is being vindictively prosecuted. They cited three cases where the judges stated that even where an "actual vindictive motive" had not been established, an indictment must nevertheless be dismissed "if there is a presumption of vindictiveness that has not been rebutted by objective evidence justifying the prosecutor's action" According to Khan's lawyers, within two weeks of his March 6, 2006, meeting with officials from the US embassy in Guyana where several disclosures were made about the crime situation and alleged phone conversations between former commissioner Felix and others, his properties were searched and within five days of the searches a wanted bulletin was issued for Khan by the police. Only three weeks later, a one-count, fact-bare indictment was returned in the Eastern District of New York charging Khan with conspiring to import cocaine into the US, the motion said.

"The remarkable confluence of these precipitous events supports the inference that the American officials disclosed Khan's revelations to Felix and/or other PNC supporters and that they sought Khan's indictment in the United States in order to protect Felix and interdict Khan's efforts to expose Felix and other supporters whose conduct was threatening the security of the Guyanese people and the stability of the elected government," the motion said. Should this inference be correct in whole or in part, an "actual vindictive motive" for Khan's prosecution would be established, requiring dismissal of the indictments owing to vindictive prosecution.

In the third point the lawyers asked that evidence seized from Khan's property in Guyana be precluded stating that the government provided "one compact disc containing copies of items seized from a property in Guyana." They said that in opposing bail for Khan, government relied on the items, mostly documents, as evidence of guilt. They argued that no search warrant, return on the warrant or inventory, or their equivalents were provided, nor had the government responded to a request to disclose how copies of the documents came into the possession of the representatives of the US. It was disclosed that the government advised defence counsel informally that it did not have the original documents seized, only copies and as a result in the absence of any documentation whatsoever establishing the authenticity, the integrity and the completeness of the disclosed documents, that evidence should be precluded under the due process clause as unreliable.

Witnesses and disclosures

The lawyers also want to reserve the right to depose witnesses in Guyana since the court does not have the power to subpoena them. Although a Guyanese witness could testify at the trial voluntarily, counsel for Khan and defence investigators have spoken with potential witnesses whose depositions might be sought, and they have "invariably indicated they would not voluntarily come to the United States to testify". Further, the lawyers state that in order to satisfactorily establish that a given witness's testimony is material he is in need of the discovery and particulars requested in the pre-trial motions. Because the government has not disclosed the identity of its witnesses, and has expressly declined to confirm persons identified by the defence and even more importantly has not identified the alleged co-conspirators, the defendant was unable at this time to determine what witnesses in Guyana maybe necessary to impeach the government's witnesses or decolourants' statements, the motion said.

The defence is seeking to have the government directed to provide a bill of particulars which is not to obtain discovery but to "permit a defendant to identify sufficient particularly the nature of the charge pending against him, thereby enabling the defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offence."

The lawyers said their client's request was not designed to learn evidentiary details, but simply to be given notice of the scope of the charges contemplated by the indictment so that he could prepare for trial and know what he must defend against. It was pointed out that since the charges are not only temporally broad, but appear to be geographically broad, alleging offences in the Eastern District of New York and "elsewhere" the defendant was at least entitled to know what other district(s) he was alleged to have committed offences in.

The last point listed in support for the dismissal was that government should be compelled to provide the defendant promptly with all discoveries to which he was entitled. The lawyers said they have written several letters to the government seeking disclosures of evidence but the government only provided some discovery which adds up to hundreds of pages of documents and most of the pages consist of documents seized from Khan's property in Guyana, the substance of which has little or no direct bearing on the charges. The lawyers said government has provided "ledgers" and shipping documents apparently related to the importation and/or distribution charges in the indictment although the government declined to identify the author of the "ledgers" or the place where they were recovered. Khan's lawyers said they have specifically requested that the government provide them with any information that persons other than Khan involved in cocaine importation and distribution used the nicknames 'Short man' or 'Boss man', aliases set forth in the indictment as Khan's, and any information that persons other than Khan were the source of the cocaine which the indictment alleges was imported.

The prosecution would now have to respond to this motion. Khan is currently before a New York court on 18 drug trafficking charges and faces a maximum of life imprisonment if convicted.