BVI premier Fahie claims ‘immunity’ from charges in Miami cocaine case
British Virgin Islands Premier Andrew Alturo Fahie, who was arrested in Miami last week on drug-related charges, claims that as the head of the British territory he cannot be prosecuted for any crime in the United States because he has immunity, according to a new federal court filing.
His defense lawyer argues that as BVI’s “duly elected and sitting head of government,” Fahie is immune from arrest and detention in the United States and that federal prosecutors should dismiss the charges so he can be released immediately.
The highly sensitive issue is likely to surface during Fahie’s detention hearing Wednesday in Miami federal court, where prosecutors are expected to argue that the BVI premier should be held behind bars before trial because they consider him a risk of flight and danger to the community. Prosecutors plan to seek pretrial detention of another defendant, BVI’s port director Oleanvine Maynard, who has yet to hire a defense attorney. A magistrate judge will decide whether they will be released on bail.
Fahie’s lawyer, Theresa Van Vliet, a former federal prosecutor, declined to comment Tuesday about her client’s plan to invoke an immunity defense in the Miami federal case. The BVI premier and two others are accused of
plotting to accept cash bribes from an undercover U.S. informant posing as a Mexican drug smuggler in exchange for providing protection in the British territory.
In the court filing, Van Vliet asserts that the Department of Justice “concedes” that Fahie, as BVI’s premier, is the “constitutional head” of the British Virgin Islands.
AN UNCOMMON ISSUE
The immunity issue is uncommon in federal criminal cases because foreign leaders and diplomats are rarely accused of crimes in the United States. The fundamental question under international and U.S. law is whether Fahie is recognized by the Biden administration as a “head of state” or as a “locally elected official” of a British territory. Fahie, 50, was elected as premier in February 2019.
“The bottom line is, how has our State Depart
ment recognized him since he was elected?” said lawyer Dick Gregorie, a retired career prosecutor with the U.S. Attorney’s Office in Miami, who was involved in a similar case involving the leader of the Turks and Caicos nearly four decades ago. “If he’s recognized as a head of state, then he has absolute immunity. If he’s not, he can be arrested, charged and prosecuted in the United States.”
The Miami Herald inquired about Fahie’s official status with the U.S. Attorney’s Office and
State Department; the former declined to comment and the latter did not immediately respond.
In 1985 the then-chief minister of the Turks and Caicos, Norman Saunders, became the first head of state charged with violating U.S. drug laws after he was arrested by Drug Enforcement Administration agents and accused of accepting $30,000 from undercover agents to ensure safe passage of Colombian cocaine through his island chain by permitting flights to refuel.
Saunders sought immunity from prosecution as the British territory’s “head of state,” but a Miami federal judge rejected his bid after the State Department declared he was only a “locally elected official of a British colony.”
Saunders was convicted of conspiracy to violate travel laws and with traveling to promote an illegal business, but he was acquitted on charges that he offered to bribe undercover drug agents and of conspiracy to import cocaine and marijuana into the United States. He was sentenced to eight years in prison and fined $50,000.
South Florida defense attorney Jon May, who worked on Panamanian general Manuel Noriega’s legal team after his arrest on drug trafficking charges in 1990, said he believes that the BVI premier, Fahie, has a solid shot at immunity.
“I’m convinced that the district court [judge] will find that he’s a head of state and entitled to head of state immunity, and the case will be dismissed,” May said. “Based on precedent, the court looks to the executive branch [of the U.S. government] to determine whether someone is a head of state.
“In the Noriega case, the United States never recognized him as a head of state” in his losing bid for immunity, May said. “[Prosecutors] took the position that he may have been a dictator, but he was not a head of state.” A Miami federal judge agreed, and Noriega was convicted at trial and served 20 years in prison.
Asked whether Fahie might run into a barrier as the “head of state” of a self-governing British territory rather than a sovereign nation such as France, May said: “That’s a good question.
“But it shouldn’t make any difference — a head of state is a head of state.”
UNITED KINGDOM COULD WAIVE STATUS
However, a potential wild card in Fahie’s immunity defense is the United Kingdom, which has authority over the British Virgin Islands and could waive his status as a “head of state” — leaving the premier without official protection against the drug-related charges filed in Miami.
Fahie and Maynard were arrested in Miami last Thursday. Her son, Kadeem Maynard, was arrested in St. Thomas, the U.S. Virgin Islands.
All three defendants are charged with conspiring to import more than five kilos of cocaine into the United States and conspiring to commit money laundering.
According to the DEA criminal affidavit, all three were recorded in talks and meetings with the agency’s undercover informant over the past two months in which they plotted to move loads of Colombian cocaine on boats through the British Virgin Islands to Miami. In exchange for their protection, the informant, pretending to be a Mexican drug smuggler, promised to pay Fahie and Oleanvine Maynard $700,000 at first and millions of dollars later as part of their cut of the expected cocaine proceeds, the affidavit says. Based on the arrangement with the DEA informant, Fahie expected to receive $500,000 and Maynard $200,000.
Both foreign officials came to Miami last Wednesday for a cruise convention along with other Caribbean officials. The following day, the informant and another DEA undercover operative lured them to Miami-Opalocka
Executive Airport to check out their cash payment, which was loaded onto an airplane that they believed was destined for the British Virgin Islands, according to the affidavit.