By Anastasha Elliott
United States Magistrate Marian W. Payson denied Noel “Zambo” Heath bail on June 1, based on his lack of meaningful ties to the district of New York.
Magistrate Payson added that the substantial penalties Heath faces on the pending narcotics charges and the apparent strength of the government’s evidence, coupled with the statutory presumption in favour of detention, also influenced her decision.
The case involving Heath has gone through several judges and magistrates since his extradition in March.
On March 6, the United States District Judge Michael A. Telesca, (the district judge assigned to this case), originally referred the criminal prosecution of Heath, to Magistrate Jonathan Feldman in order to determine any pre-trial matters.
At the arraignment, the US government counsel moved to detain him as a serious risk of flight.
A detention hearing was therefore held before Judge Feldman on May 4, at which time he reserved his judgment.
On May 10, he issued an order disqualifying himself because while employed as the district’s Federal Public Defender, he had represented an individual who, according to government, had participated in the same narcotics conspiracy charge in the indictment against Heath.
On May 11, Judge Telesca referred the matter to Judge Payson.
Payson reviewed the transcript of the hearing in which no witnesses were called by either side. Both parties then proceeded to tender their arguments and supporting documents.
During the pre-trial hearing Jeffrey Lichtman, the New York attorney representing Heath, during his trial submitted a Memorandum of Law in support of Heath’s motion for bail pending trial.
The document argued that Heath should be released on bail pending trial because it has been shown that he is not a flight risk.
The document dated April 25 said that Heath had agreed to the stringent conditions of release.
The terms of his bail decreed that in addition to surrendering his passport, consenting to electronic monitoring, he would reside at his sister’ residence in Bronx, New York and limit his travel to Bronx and Manhattan where his lawyer’s office is located.
The bail also required that the homes and life savings of his friends and family in the amount of US$500,000 be forfeited if he violates any of his bail conditions.
On behalf of Heath, Lichtman argued that the charges brought against Heath does not trigger a statutory presumption of detention under the Bail Reform Act and he is therefore entitled to release on bail pending trial.
“Rather, although the indictment alleges offence(s) for which the maximum term of imprisonment, of ten years or more is prescribed in the Controlled Substance Act, there can be no doubt that they are bail-able offences,” Lichtman said. “Accordingly, Mr. Heath stands before this Court as both presumptively innocent, and presumptively eligible for pre-trial release.”
Lichtman further argued the effect of pre-trial detention on the presumably innocent defendant. He also said that the US government has not alleged that Heath is a flight risk; It cannot be credibly argue that Heath poses a serious flight risk, Lichtman said.
He also offered letters from friends and family of Heath who all asked the court to grant him bail, while painting a picture of a man revered for his generosity and kindness to others.
“In determining the issue of bail, the court is reminded that the conduct charged in this case is nearly 14-years-old,” Lichtman said. “In taking the measure of Mr. Heath on the issue of whether he can be trusted if released on bail, the Mr. Heath of today may be more relevant that who he was 14 years ago.”
Lichtman concluded that Heath should be released on bail pending trial because he is not a flight risk and has agreed to the conditions of release.
“While Mr. Heath is not an American citizen, his deep roots in his community make clear that the only place on earth in which he belongs – St. Kitts – is not a place he could flee too as he has already been extradited from there to the United States for trial.”
The New York based lawyer also tendered a letter written by Heath’s former lawyer Henry Browne who spoke to Heath as not a risk for flight.
Browne wrote, “I have acted as legal counsel to Mr. Heath since August 1996 when he was arrested. He was then immediately put on bail and remained on bail up to Dec. 22, 2005 when he was committed by a local magistrate to await his extradition to the US. He was never considered a flight risk. While on bail he scrupulously complied with the terms and conditions of his bail.”
“It is my considered view that Mr. Heath is a fit and proper person to be favourably considered for bail,” said Browne.
US Magistrate Judge Payson however was not swayed. In delivering her decision and order she said, “While I do not reach the same conclusion as does the government concerning means and intent, I nonetheless conclude that Heath should be detained as serious flight risk.
“Having carefully considered the package of conditions posed by the defendant, as well as the ten letters of support has tendered to the Court and the many family members and friends who support him with their presence and willingness to post property to secure his release, I find that the proposed conditions are simply inadequate to assure against the very serious risk of flight presented in this case,” the judge said.
The Judge however said that she did not accept the US Government’ argument that because several friends and family members were willing to post property owned by them to secure Heath’s release, means that he has access to substantial funds to finance his flight.
Additionally that because someone is willing to post property for the lawful purpose of securing another’s release does not mean that the property owner would be willing to sell that property and transfer those proceeds directly to the defendant (Heath).
She also did not agree with the argument that Heath’s decision to challenge the extradition that spanned ten years is evidence of his intent to flee and to avoid prosecution.
The Magistrate concluded that the balance of factors coupled with the statutory presumption in favour of detention, compels the conclusion that there exist no conditions sufficient to assure against serious risk of flight that Heath poses.
“He has no ties of which the court is aware of to the Western District of New York, and his ties to the State of New York appear limited to the fact that his sister lives in the Bronx. In other words, no substantial employment, religious, financial or social connections tie him to the district of prosecution or to any other federal court district for that matter,” Payton said. “The evidence proffered by the government appears strong, involving various intercepted conversations between Heath and Webbe, (who is currently serving an 18-year prison term as a result of his conviction on charges stemming from the alleged conspiracy), during which they discussed their plans for the subsequent failed delivery of 13 kilograms of cocaine to Webbe.”
“Heath’s participation in those conversations is evidence by the voice identification made by an investigator familiar with his voice,” said Magistrate Payton. “Additionally, Heath is recorded as identifying himself in certain of the conversations by his nickname ‘Zambo,’ the fact that the calls were made to or from a telephone subscribed by Noel Heath at his address.”
Some of the persons who tendered letters of support on Heath’s behalf included: Dr. Henry Browne, who represented Heath during his fight against the extradition; attorney Vernon Viera, who has known Heath for decades; David Penny; Valentine Morris; Donald Caines; Franklin Maitland; Earl Clarke; Ava Henry; and Heath’ children – Ianna and Lynell Heath.
Ianna in her letter described her father as admirable. She described some of his charitable endeavours including his contribution of food and clothing to the elderly or anyone in need, donations to the Cardin Home for the Elderly, the Children’s Home, books to the CFB College in addition to helping the troubled youths of St. Kitts.
Caines in his letter told the court that Heath became a ‘missing father figure’ to him after his own father passed at the age of 10 and said that if it was not for his guidance he would have been in jail.
“Instead he helped me to become the person that many citizens are proud of,” Caines said.
He added that Heath is one of the elders of the Spiritual Theocratic Order, and has taught the group to achieve goals through teamwork, honesty and commitment.
Clark, a truant officer, said that Heath is a well respected and loved resident in his community and that the senior citizens of the community are now without a benefactor to look after them.
“The young, poor, talented soccer players who would be without the necessary capabilities with which to equip themselves in order for them to display their skills on the soccer field are now friendless and incapable of lifting themselves out of the depth of poverty, for Heath has been whisked away from them,” Clark said.
Lynell Heath described his father as a thorough, assiduous, conscientious, honest, good, decent, loving, kind, thoughtful, generous and peaceful.
Heath is charged for conspiring to import in excess of five kilograms of cocaine into the United States, importation of in excess of five kilograms of cocaine and conspiring to possess with intent to distribute and distributing five kilograms of cocaine or more.
He is also charged with possession with intent to distribute and distribution of five kilograms of cocaine or more and use of a telephone to facilitate a narcotics offence.
The offences the US Government alleges stem from a drug deal that occurred between June 15 and July 5, 1992 in which a seizure of 13 kilograms of cocaine was made in Rochester on June 25, 1992.
He was indicted on October 18, 1995 and extradition proceedings spanning ten years began soon after.
Heath, who was said to be one of DEA New York Field Division’s Top Ten Fugitives, was extradited from St. Kitts to face federal drug charges in Rochester, New York in March, along with Glenroy “Bobo” Matthew.
If convicted, Heath faces a maximum prison term of life in prison and a mandatory minimum term of ten years in prison on four of the five charges laid against him. The fifth charge carries a maximum sentence of four years in prison.
