Two Barbadians, who along with two Guyanese and another were charged with being part of a drug ring, an allegation which US authorities later threw out, have lost their bid to have their matters ‘dismissed with prejudice’ (extinguishing any right to pursue a claim in another suit) following the United States Court of Appeals denial of their appeal.
Senior Circuit Judge Harry Thomas Edwards and Circuit Judges Gregory G. Katsas and Cornelia Pillard in the District of Colombia Circuit on April 16, dismissed the appeal filed by the two men to a lower court’s decision not to re-designate the dismissals of their cases. The judges found that their court had no basis to entertain the matter before them.
The men wanted the matters against them to be dismissed ‘with prejudice’ as against ‘without prejudice’, as the latter means that authorities are free to file new charges against them arising out of the same investigation.
The men, John Wayne Scantlebury and Sean Gaskin, were charged along with another Barbadian, Frederick Christopher Hawkesworth (now deceased) and Guyanese, Raphael Douglas and Terrence Sugrim.
In 2004, the four were indicted in the US. The men were being sought for trafficking between Guyana, Barbados, St Lucia and the US and it was alleged that they committed the crimes between January 1999 and March 27, 2004. While the Barbadian trio fought their extradition, which eventually led to their matters being dismissed ‘without prejudice’, Douglas had pleaded guilty to his charges in the US and was sentenced to time served. He was then deported to Guyana.
Sugrim was arrested and an extradition hearing was held, following which he had been committed into custody to await extradition to the US to face trial. However, on April 17, 2008, Justice Jainarayan Singh Jr. released him on $1 million bail in the High Court, following a habeas corpus application by his legal team. Stemming from the application filed by Sugrim’s legal team, Justice Singh had found that many factual errors were made by the magistrate during the extradition hearing and there were serious enough transgressions to render her rulings in relation to the committal unlawful and unfair.
In the US Appeal Court, the two were represented by attorney Lawrence J. Joseph, while Vijay Shanker was the US State Attorney who argued the case for the state.
According to the decision, seen by this newspaper, the case fought by the two men along with their now deceased co-accused, lasted for over nine years. Finally, in December 2013, the US Government moved to dismiss the charges against the three without prejudice, citing “the age of the case, government resources, and other factual and legal issues which indicate the case is no longer viable.”
When they first filed the case, the three argued that the prosecutors in the United States knew for years, well before they moved to dismiss the charges, that the cases had “cratered” and that there was no probable cause to support the indictments. They had asserted that the District Court should have dismissed the indictments with prejudice.
However, a decision was not granted in their favour and they appealed, seeking a remand to the District Court with instructions to dismiss the charges with prejudice. The Government in turn contended that the Appeal Court had no basis upon which to entertain the appeal. The Justices of Appeal agreed with the Government and as a result dismissed the appeal.
The judges, in their decision, pointed out that they are bound by the Supreme Court’s decision in Parr v. United States, 351 U.S. 513 (1956), which held that, without more, a criminal defendant whose indictment is dismissed without prejudice is not aggrieved and, therefore, has no standing to appeal.
Secondly, it was noted that even assuming, arguendo (the Latin term which means for the sake of argument), that the threat of subsequent prosecution might be sufficient in some cases to support an appeal of a dismissal without prejudice, the statute of limitations has run on the charges against the two men, so the question is moot.
Thirdly, the judges ruled that while the men asserted ongoing reputational injuries allegedly caused by their arrest and indictment records, they lack standing to pursue these claims because dismissing the indictment with prejudice would not redress the alleged reputational harms.
The court also found that it lacked jurisdiction to consider the Appellants’ request for declaratory relief.
Background
In giving a background to the cocaine case against the men, the court said that the US Government began investigating Hawkesworth for cocaine trafficking in 2000. At the time, the Government suspected that Raphel Douglas and Terrence Sugrim were supplying cocaine from Guyana to Hawkesworth. Scantlebury and Gaskin were suspected of assisting Hawkesworth in an international drug trafficking operation that distributed cocaine in Barbados and transported cocaine from Barbados and Guyana to the United States.
As part of its investigation, the Government worked with an unnamed confidential informant. The informant allegedly spoke with the three Barbadians on several occasions and made plans to help them transport cocaine to the United States.
As a result, in 2004, a federal grand jury in Washington, D.C., returned a two-count indictment against all five of the men. The first count alleged that all five defendants had conspired to distribute more than five kilogrammes of cocaine. The second count alleged that Hawkesworth and Douglas distributed 500 grams or more of cocaine. With respect to Scantlebury and Gaskin specifically, the indictment alleged that they “obtained false identification cards and documents in order to travel to the United States to facilitate the importation of cocaine from Barbados, Guyana and elsewhere into the United States.”
According to the information provided in the decision, the indictment stated that Hawkesworth was the leader of the organisation, which had allegedly shipped 184 kilogrammess of cocaine from Guyana to JFK Airport in New York City. The indictment also alleged that Scantlebury and Gaskin met with the informant to discuss whether contacts were in place for a test shipment of cocaine and that the informant provided Scantlebury and Gaskin with fake identification cards.
It was following indictment, the Government sought extradition of Scantlebury, Gaskin, and Hawkesworth from Barbados and Douglas and Sugrim from Guyana. Douglas was extradited, but Sugrim was never taken into custody, the decision said. The three Barbadian defendants were arrested by Barbadian law enforcement officials, but they challenged extradition and remained in Barbados. All three were released on bail in late 2004 or early 2005. Then, for reasons that are not indicated in the record, their bail was revoked and they returned to jail in Barbados in 2011. Scantlebury, Gaskin, and Hawkesworth remained incarcerated in Barbados from 2011 until the indictments were dismissed on January 9, 2014.
Requests
In support of its requests for extradition from Barba-dos, the U.S. Government submitted affidavits written by a Senior Trial Attorney in the Criminal Division of the Department of Justice (“Trial Attor-ney”), a Drug Enforcement Administration (“DEA”) special agent, and the confidential informant. The Trial Attorney’s affidavit had stated that the evidence against the defendants included the testimony of the confidential informant and of DEA agents, audio and video recordings of conversations, photographs, telephone records, passport records, airline records, and seized cocaine. On the other hand, the DEA special agent’s affidavit had stated that 184 kilogrammes of cocaine, packed in a shipment of frozen seafood, was seized at JFK Airport on September 20, 2003, and that, later that day, the confidential informant met with Sugrim and Hawkesworth, who said that they had lost a load of 180 kilogrammes of cocaine that had been shipped to JFK. The DEA affidavit also noted that the confidential informant “was told that nobody was arrested.” In addition, the DEA affidavit noted that the confidential informant had worked with the DEA for approximately five years and had proven to be “completely reliable.”
In support of its request for extradition of Douglas, U.S. Government officials made several additional statements attesting to the reliability of the confidential informant. Douglas was extradited from Trinidad to the United States in October 2005.
“It was later determined, however, that several of the Government’s claims made in support of the confidential informant’s reliability were not true,” the decision stated.
In February 2007, the U.S. Government moved to dismiss without prejudice the District of Colum-bia indictment against Douglas. The motion was granted by the District Court.
The Government subsequently filed a second indictment against Douglas, Hawkesworth and Sugrim in the Eastern District of New York on narcotics and use of telephone charges. In the New York case, the Government acknowledged that there were inaccuracies in the materials that it had submitted supporting Douglas’s extradition. Douglas ultimately pled guilty to a telephone charge and was sentenced to time served.
In November 2013, Gaskin consented to extradition to the United States, but he was never extradited. Instead, on December 24, 2013, the U.S. Govern-ment filed a motion to dismiss without prejudice the District of Columbia indictment against Scantlebury, Gaskin, Hawkesworth, and Sugrim.
At the time, the Govern-ment explained that its motion was made “in good faith” based on “the age of the case, government resources, and other factual and legal issues which indicate the case is no longer viable.”
Approximately two weeks later, on January 9, 2014, the District Court granted the Government’s motion and the defendants were released from Barbadian custody.
But it was in 2015 that the Barbadian defendants filed civil actions against the United States and certain federal officers. In February 2016, the Barbadian defendants moved in the criminal case for alteration of the dismissal of the indictment from a dismissal without prejudice to a dismissal with prejudice. The defendants argued that they were innocent of the charges in the indictment, that the charges harmed their reputations, and that the Government had committed prosecutorial misconduct by swearing to inaccurate statements and failing to notify the Barbadian government in a timely matter when the case against the defendants fell apart.
Their motion did not request expungement of the records of arrest or indictment. Instead, the defendants merely sought to “reserve the right to seek the lesser relief” of expungement if the motion requesting dismissal with prejudice was denied. Hawkesworth had passed away before the District Court ruled on the motion.
The District Court denied the motion to alter the dismissal without prejudice to a dismissal with prejudice, concluding that dismissal with prejudice was not warranted because the defendants “failed to rebut the presumption that the government sought dismissal in good faith and because the circumstances here do not rise to the level of being exceptional.” The District Court acknowledged however, that the defendants had reserved the right to seek expungement and stated that it would “address any such request [for expungement]” if “movants [sought] additional relief following the Court’s decision on the pending motions.”
The Appellants moved for reconsideration of the District Court’s denial of their motion to alter the dismissal without prejudice to a dismissal with prejudice. Their request for reconsideration was denied. Appellants never filed a motion with the District Court seeking expungement.
They then filed appeal against the District Court’s denial and this was dismissed on April 16 this year.
