CHICAGO (July 1) – The extradition trial of Michael Ray B. Aquino scheduled on July 1 has been put off. No date has been announced for its continuance, according to Aquino’s lawyer, Mark A. Berman.
Mr. Berman also said that the deposition of Mr. Aquino’s co-accused, Glenn G. Dumlao, “has been adjourned without a date.”
The extradition trial and deposition were sidetracked as Berman and the United States government represented by Assistant U.S. Attorney Eric T. Kanefsky await the decision of U.S. District Judge Esther Salas of New Jersey in Newark whether to compel Dumlao to “answer questions at a deposition or otherwise.”
In a letter to Judge Salas last May 28, Berman said that Dumlao’s attorney informed him that he had received text message from the wife of Dumlao, stating that Dumlao would assert his Fifth Amendment right to remain silent “for fear that any testimony he might give in the United States would be used against him in the Philippines.”
As a result, Aquino is now demanding that the “U.S. expend additional time and expenses to transport Dumlao back to the East Coast (New Jersey) so that “his deposition can take place in the federal courthouse where any issues arising from his assertion of privilege can be addressed in the Court’s presence and appropriate sanctions can be imposed.”
For his part, Kanefsky said, “While Berman is correct that I would like to avoid traveling to California to be confronted with a witness who is unwilling to testify, I simply see no legitimate reason to expend the government’s resources and delay this matter to bring Dumlao to New Jersey so that he can refuse to testify here as opposed to him doing the same in California.”
He said it will cost the “government far more and will take longer to bring Dumlao to New Jersey via Con-Air with U.S. marshal escorts than it will for Mr. Berman and me to travel to Los Angeles. Neither is necessary.”
Kanefsky added, “The government believes that the representation of Dumlao’s counsel that he is refusing to testify is more than adequate for this court to impose any sanction it believes is appropriate.
“However, the U.S. believes that no sanction is warranted under the circumstances and that the court should allow the U.S. to immediately extradite Dumlao back to the Philippines.”
The government does not agree with defendant Aquino’s position that Dumlao cannot refuse to testify. Dumlao faces double-homicide charges for the abduction and murder of publicist Salvador “Bubby” Dacer and Dacer’s driver, Emmanuel Corbito, as soon as he returns to the Philippines and has already been deemed extraditable. The government has no doubt that the transcript from Dumlao’s deposition in this matter will be obtained by the Philippine government and used against Dumlao at his trial.
Forcing Dumlao to testify will violate his Philippines’ Bill of Rights and his United States’ Fifth Amendment right against self-incrimination.
Aquino asserts that a witness cannot invoke a privilege against self-incrimination where he has a “concern with prosecution by a foreign government” and the government may not compel witnesses to testify so long as the witness is not the target of a criminal case.
In his June 15 letter to Judge Salas, Berman said the Supreme Court authority discussed in Aquino’s initial application is binding and Dumlao’s testimony may, and should be compelled.
In a June 16 letter, Kanefksy told Judge Salas that because the U.S. is “acting for and on behalf of the Philippines,” the instant situation is even stronger than where two governments are working together as a joint prosecution. Here, the U.S. is literally acting as the Philippines to further its prosecutions of Dumlao, Aquino and Cezar Mancao.
Kanefsky cited the ruling of U.S. Associate Justice David H. Souter in U.S. v. Balsys, which said that when “cooperative conduct between the U.S. and foreign nations develop to a point at which a claim could be made for recognizing fear of foreign prosecution, an individual may invoke his right against self-incrimination.”