The opinion of the court was delivered by: GASCH
Defendant is charged with distribution of cocaine in violation of 21 U.S.C. § 841(a) at a time when he enjoyed diplomatic immunity as a member of the administrative staff of the Embassy of Peru. He has moved to dismiss the indictment under the provisions of 22 U.S.C. § 254d, which reads as follows:
Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 3(b) or 4 of this Act [ 22 USCS §§ 254b or 254c], or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.
It appears from the submissions of the parties that defendant entered into a narcotic transaction with an undercover agent of the Metropolitan Police Department. Thereafter, sergeant Gonzalez of the Metropolitan Police Department, with the knowledge and approval of an Assistant United States Attorney, spoke with defendant and advised him that he would be subject to immediate deportation from this country under the circumstances unless he agreed to cooperate with the police and the Drug Enforcement Administration. It was represented to defendant that, if he did this, his departure from the country could be delayed until his cooperation had been completed and a reasonable time thereafter. A reasonable time is usually interpreted as thirty days.
It further appears from the pleadings that, following defendant's cooperation with the authorities, the Embassy of Peru terminated his employment and he was given the usual period within which to depart the country. In the interim, he married an American citizen and has been accorded permanent resident alien status by the Immigration and Naturalization Service.
The government, among other exhibits, has filed the declaration of the legal adviser of the Department of State, Judge Abraham Sofaer. The Court notes that the Supreme Court has stated in Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85, 72 L. Ed. 2d 765, 102 S. Ct. 2374 (1982): "Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight." Accordingly, the Court notes from the declaration of Judge Sofaer:
The United States Government has consistently interpreted Article 39 of the VCDR to permit the exercise of U.S. jurisdiction over persons whose status as members of the diplomatic mission has been terminated for acts they committed during the period in which they enjoyed privileges and immunities, except for acts performed in the Exercise of the functions as a member of the mission. (Article 3 of the VCDR lists the permissible functions of a diplomatic mission.) The Department of State has publicly stated this interpretation to U.S. law enforcement authorities, to Congress, and to members of foreign diplomatic missions in the United States.
An official State Department publication intended to provide guidelines to law enforcement authorities on various categories of foreign missions personnel and the privileges and immunities to which they are entitled, states, in pertinent part, as follows:
. . . criminal immunity expires upon the termination of the diplomatic or consular tour of the individual enjoying such immunity, including a reasonable period of time for such person to depart the U.S. territory. Thereafter, if the law enforcement authorities of the United States can obtain personal jurisdiction over a person alleged to have committed criminal acts in the United States, normal prosecution may go forward.
United States Department of State, Guidance for Law Enforcement Officers: Personal Rights and Immunities of Foreign Diplomatic and Consular Personnel, Department of State Publication 9533 at 18 (1987). The declaration of Judge Sofaer also states that this official interpretation of the pertinent sections of the Vienna Convention on Diplomatic Relations,
of which the United States is a signatory, has been communicated to all diplomatic missions.
On March 21, 1984, the Secretary of State declared:
On the termination of criminal immunity, the bar to prosecution in the United States would be removed and any serious crime would remain as a matter of record. If a person formerly entitled to privileges and immunities returned to this country and continued to be suspected of a crime, no bar would exist to arresting and prosecuting him or her in the normal manner for a serious crime allegedly committed during the period in which he or she enjoyed immunity. This would be the case unless the crime related to ...