VZCZCXYZ0000
PP RUEHWEB

DE RUEHDG #2260/01 2781524
ZNR UUUUU ZZH
P 051524Z OCT 07
FM AMEMBASSY SANTO DOMINGO
TO RUEHC/SECSTATE WASHDC PRIORITY 9324
INFO RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
RUCOWCV/CUSTOMS CARIBBEAN ATTACHE MIAMI FL PRIORITY
RHMCSUU/FBI WASHINGTON DC PRIORITY
RUEAHLC/HOMELAND SECURITY CENTER WASHINGTON DC PRIORITY
RUEFHLC/HQS DHS WASHDC PRIORITY

UNCLAS SANTO DOMINGO 002260 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
DEPARTMENT FOR WHA, WHA/PPC, WHA/CAR JAFFEE AND WARD 
L/LEI FOR TORRES AND MUELLER 
DEPARTMENT OF JUSTICE FOR CRIM/OIA ORJALES AND ESTABROOK 
US MARSHALS SERVICE PLEASE PASS TO JIM SCHIELD 
DEA FOR OF,OFI,DO,DCO 
 
E.O. 12958: N/A 
TAGS: PREL CJAN KCRM KPAO KJUS DR
SUBJECT: BLOWBACK PREDICTED IF DOMINICAN EXTRADITION 
REQUEST FAILS 
 
¶1. Summary.  Accused cop-killer and top-wanted Dominican 
fugitive Jeffry Alejandro Pena Bencosme remains in custody in 
New York while fighting extradition to the Dominican 
Republic.  A combination of legal maneuvering and doubts 
about the Dominican claims have caused the hearing to morph 
into a "mini-trial" - a rarity in an extradition case. 
Embassy has already seen a degree of discontent among members 
of both the Dominican Attorney General's Office and the 
Dominican Supreme Court based on perceptions of unreasonable 
delay and a failure to fully understand concepts of judicial 
independence and separation of powers in the United States. 
Embassy predicts highly-negative press play and likely 
blowback in higher than average denial of extradition cases 
should the extradition of Pena ultimately be denied.  End 
summary. 
 
------------- 
¶2. Background 
------------- 
 
Pena is accused of murder in the October 25, 2004, shooting 
death of a policeman in the city of Santiago.  The facts of 
the case indicate that Pena was stopped for public urination 
outside of a bar by a police sergeant, engaged in a verbal 
confrontation, and then drew a weapon and shot the sergeant 
in the chest, killing him. 
 
Though he was quickly apprehended, Pena was not placed in 
custody pending trial and fled the Dominican Republic for New 
York in mid-November 2004.  An arrest warrant was issued for 
Pena by the Penal Chamber of the Appellate Court of the 
Judicial Department of Santiago, Dominican Republic on 
December 6, 2004. 
 
While the initial inability of the Dominican government to 
provide information regarding Pena's possible location caused 
significant investigative delays (the government simply 
alleged that Pena was in Brooklyn, New York), continued 
cooperation with the Dominican government and intense work by 
the U.S. Federal Bureau of Investigation, the U.S. Marshals 
Service, and the New York - New Jersey Regional Fugitive Task 
Force led to Pena's eventual arrest outside his Brooklyn 
residence on December 6, 2006. 
 
Since that time, Pena has been held in U.S. custody while 
challenging his extradition before federal Magistrate Judge 
Steven Gold.  Pena has skillfully played the system to date, 
dismissing counsel when decisions were going against him, 
filing late motions pro se (knowing that the Court would 
extend every possible deference to a pro se defendant), and 
ultimately retaining new counsel. 
 
In the latest conference before Magistrate Gold on September 
27, 2007, the Magistrate took the unusual step of ordering 
live witness testimony and scheduled the next hearing for 
October 10, 2007.  As defense witnesses will be unable to 
appear in New York State (because of an inability to obtain 
non-immigrant visas), the current plan is for the Embassy to 
facilitate their testimony via digital video conference. 
 
--------------- 
¶3. The Standard 
--------------- 
 
Typically, extradition hearings are relatively simple legal 
proceedings.  The State presents evidence designed to:  1) 
demonstrate that the subject before the Court is indeed the 
subject requested (identity), 2) that the crime alleged is 
covered by the extradition treaty, and 3) that there is 
"probable cause" that the subject committed the crime in 
question.  Proof of all three are necessary for extradition 
to be granted.  While the defense may also offer evidence, it 
must limit its submission to these three questions and the 
evidence must be explanatory and not contradictory in nature. 
 Moreover, the defense may not offer an affirmative defense 
(e.g., self-defense).  Probable cause is a relatively low 
legal standard and is normally fairly easy to satisfy.  A 
typical definition of the term referenced in cases of the 
U.S. District Court for the Southern District of Florida 
states:  "Probable cause means that there is evidence 
sufficient to cause a person of ordinary prudence and caution 
 
to conscientiously entertain a reasonable belief of the guilt 
of the accused." 
 
-------------------- 
¶4. Defense Challenge 
-------------------- 
 
Pena's attorneys, after repeatedly and improperly attempting 
to directly introduce an affirmative defense (i.e., 
self-defense), have now shifted tack and will present 
testimony from 2 witnesses swearing that the declarations 
submitted by the Dominican government in support of the 
extradition request do not accurately reflect the statements 
they originally gave to Dominican investigators.  While the 
testimony will likely result in the "self-defense" argument 
coming in the back door, it is purportedly offered to 
challenge the probable cause requirement detailed above. 
Evidence of recanted testimony is explicitly permitted and 
has been described in some federal districts as evidence that 
"obliterates" probable cause. 
 
------------------------ 
¶5. Dominican Credibility 
------------------------ 
 
Although this type of argument is not always successful, a 
recanted testimony argument may have greater traction in the 
instant case:  the credibility of the Dominican government in 
extradition cases has already been effectively shattered by a 
disastrous 2005 Dominican request for the extradition of 
alleged fraudster Shlomo Ben Tov (aka Sam Goodson). 
Bypassing the details of the Dominican allegations in that 
case, it is sufficient to note that a Magistrate Judge of the 
U.S. District Court for the Southern District of Florida 
found such irregularities in the Dominican submissions to 
declare that he had "no confidence in the reliability of the 
submissions of the Dominican Republic" and, moreover, that 
there was suggestion of purposeful misrepresentation that 
"could rise to the level of fraud on the Court." 
 
------------------------------------- 
¶6. Dominican Discontent and Confusion 
------------------------------------- 
 
Discontent was high after the Ben Tov decision, with numerous 
nationalist press pieces decrying a "one-way" extradition 
agreement (i.e., from the Dominican Republic to the United 
States) and at least one high-ranking Dominican justice 
official suggesting shortly afterward that it was a challenge 
to remain motivated in processing U.S. extradition requests. 
That same official suggested that Secretary Rice speak to the 
Chief Justice of the U.S. Supreme Court, so that the Chief 
Justice could then instruct Magistrate Judges to "go easy" on 
Dominican requests for extradition.  Despite lengthy 
explanations regarding why this would and could not occur, 
this official, likely joined by many others, persists in the 
belief that U.S. failure to extradite Dominican fugitives is 
nothing less than lack of U.S. political will.  Embassy 
predicts Dominican reaction to a second refusal will only be 
amplified. 
 
---------- 
¶7. Summary 
---------- 
 
Given the history of this case and the precedent established 
by the failed Ben Tov request, Embassy thinks it prudent to 
begin exploring possible points in the event that Pena's case 
ultimately fails.  Preparation will enable all agencies 
involved in law enforcement cooperation in the Dominican 
Republic, as well as Department/agency spokespersons to speak 
authoritatively and defuse tensions in the event that this 
latest Dominican extradition request is denied. 
GOUGHNOUR