U.S. v. SISSOKO No. 96-759-CR.
995 F.Supp. 1469 (1997)
UNITED STATES of America, Plaintiff, v. Foutanga Dit Babani SISSOKO, Defendant.
United States District Court, S.D. Florida.
September 3, 1997.
Richard J. Scruggs, Stephen J. Binhak, Asst. U.S.Attys., Miami, FL, for Plaintiff.
Alfonso J. Perez, Haley, Sinagra & Perez, Miami, FL, Thomas Spencer, Spencer & Klein, Miami, FL, Theodore Klein, Bierman, Shohat, Loewy & Perry, Miami, FL, for Defendant.
ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION
K. MICHAEL MOORE, District Judge.
THIS CAUSE came before the Court upon The Gambia's Motion to Stay Proceedings and Dismiss the Case (D.E.190). THE MATTER was referred to the Honorable Ted E. Bandstra, United States Magistrate. A Report and Recommendation ("R & R") dated July 3, 1997 has been filed, recommending that the motion to stay and dismiss be DENIED. The Gambia filed objections to the R & R, to which the United States responded and in support of which The Gambia replied. The Court has reviewed the entire file and record herein, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that United States Magistrate Judge Ted E. Bandstra's Report and Recommendation of July 3, 1997 be, and the same is, hereby ADOPTED as set forth herein and The Gambia's Objections are OVERRULED.
On January 15, 1997, in the U.S. District Court for the Southern District of Florida, Foutanga Dit Babani Sissoko ("Sissoko")
In his Report, Magistrate Judge Bandstra found that this Court had jurisdiction over Sissoko, that The Gambia had standing to assert diplomatic immunity on behalf of Sissoko and that The Gambia had not waived the issue of Sissoko's diplomatic immunity by its belated assertion of said immunity. Magistrate Judge Bandstra then found that The Gambia had designated Sissoko as a "Special Advisor to a Special Mission to the United States," which designation the United States
R & R at 15.
The Magistrate Judge framed the dispositive question as "whether Sissoko's status as a Special Advisor on a Special Mission to the United States entitles him to diplomatic immunity." Id. The Magistrate Judge found that Sissoko's status as "special advisor" did not entitle him to diplomatic immunity, because he had not been submitted to the U.S. State Department for certification.
In its objections to the Report, The Gambia contends that Sissoko was a diplomat of The Gambia, that he was accepted as such by the United States, and that the United States' prosecution of Sissoko was barred by diplomatic immunity. Crucial to The Gambia's argument is the assumption that a member of a special mission is entitled to full diplomatic immunity without performing the accreditation process set forth for members of a permanent mission in the Diplomatic Relations Act and the Vienna Convention. The Gambia argues that the procedures set forth in the diplomatic circular note are inapplicable because they apply only to diplomats assigned to permanent missions. The Gambia argues that, in the absence of governing U.S. law, this Court must look to "customary international law," specifically, the U.N. Convention on Special Missions (the "convention").
Nor is there controlling Eleventh Circuit precedent. The Gambia's reliance on Abdulaziz v. Metropolitan Dade Co., 741 F.2d 1328 (11th Cir.1984) is unavailing. In that case the State Department certified the prince as a diplomat. Here, no such certification has occurred, and indeed, The Gambia has not sought to have Sissoko certified by the State Department as a diplomat.
The Court is unpersuaded by defendant's argument that, contrary to the formal position of the State Department, a "Special Advisor" to a special mission in the United States should be accorded full diplomatic immunity merely by issuance of an A-2 visa, based on "customary international law" evidenced by a convention that has not been signed by either of the nations involved here.
The Court has reviewed the transcript of the evidentiary hearing conducted by Magistrate Judge Bandstra, the arguments presented by counsel and the record herein. Although sensitive to the problem at hand, the Court cannot hold, on the facts before it, that Sissoko is entitled to full diplomatic immunity when such has not been conferred by the State Department.
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