Criminal Law

• Author: International Law Group
• Pages: 193-194

Page 193

BETWEEN the U.S. and The Netherlands, OBTAINED after The Netherlands denied U.S. request for assistance, Second Circuit finds that evidence was not WITHIN scope of MLAT and must only COMPLY with U.S. law, not foreign law Henk Rommy, a Dutch citizen who ran a large international drug ring, was convicted of importing the drug "ecstasy" (MDMA) into the U.S. The conviction was in part based on the testimony of his co-conspirators and recorded conversations with an informant and an undercover agent.

In early 2000, Dutch Authorities notified the Drug Enforcement Agency ("DEA") about plans to smuggle large amounts of ectasy pills to New York. Based on the Mutual Legal Assistance Treaty ("MLAT") between the two countries (Treaty on Mutual Assistance in Criminal Matters, June 12, 1981, U.S.-Netherlands, 35 U.S.T. 1361, T.I.A.S. No. 10,734). The DEA interviewed the Dutch Authorities' confidential informant and then, based on the MLAT, wanted to use him to introduce Rommy to an undercover agent, Mark Grey, and record the resulting conversations. Dutch Authorities denied the request.

The DEA nevertheless went ahead and used the confidential informant to put agent Grey in touch with Rommy. Between October 2001 and March 2003, DEA agents in New York recorded telephone conversations between the informant, Agent Grey and Rommy in The Netherlands about smuggling ectasy into New York. In March 2003, Rommy met with the informant and Agent Grey in Bermuda. There, Rommy spoke openly about his experience in drug trafficking, and explained the origin of the ectasy pills. U.S. authorities videotaped the meeting and subsequently requested Spanish authorities to arrest and extradite Rommy. He was convicted in U.S. district court for the Southern District of New York.

Rommy appeals his conviction, claiming, inter alia, that the district court erred in admitting evidence obtained in violation of the MLAT between the U.S. and The Netherlands. In particular, Rommy challenges the district court's failure to suppress the recorded telephone conversations and the video-taped Bermuda meeting as violations of the MLAT.

The U.S. Court of Appeals for the Second Circuit affirms the conviction. The Court disagrees with Rommy.

First, Rommy cannot demonstrate a treaty violation. The [MLAT] ... provides various means for the governments of the two countries to provide legal assistance to one another in criminal matters, ... It also places certain limitations on how...