Kry Masphal looks likely to spend the weekend in jail, and if U.S. prosecutors have their way he’ll spend the foreseeable future there, too.
Arrested last month while flying through New York’s Kennedy International Airport on this way to a conference on the trade in endangered species, Kry is accused of abusing his position as director of Cambodia's Department of Wildlife and Biodiversity to facilitate the illicit export of endangered long-tailed macaques.
Lawyers retained for Kry by the Cambodian Embassy in Washington have maintained his innocence, as has the Agriculture Ministry, which includes Kry’s department.
As part of a bail proposal to get him out of Brooklyn’s Metropolitan Detention Center, the embassy last week offered to house Kry within its own premises as he awaits trial. A New York magistrate judge accepted Ambassador Keo Chhea’s offer on Monday, pending an appeal from prosecutors, who registered their objections on Tuesday.
Caught on camera
Lead prosecutor Thomas Watts-Fitzgerald rejected the claims of lawyers for the ambassador and Kry that the Cambodian wildlife official “does not represent a flight risk.”
Not only do the crimes Kry is accused of carry lengthy sentences, but the evidence against him is “very strong,” Watts-Fitzgerald wrote in a motion to the court. In particular, he revealed for the first time that the U.S. authorities possess video evidence of Kry’s alleged role in the monkey smuggling plot.
“The defendant was captured on video delivering the illegally captured NHPs [non-human primates] to the putative ‘breeding facility’ where they were ‘laundered’ through the system, crated, and shipped, all under the cover of fraudulent paperwork,” Watts-Fitzgerald wrote.
At a Dec. 5 bail hearing, Ian McGinley, one of Kry’s lawyer’s, challenged the strength of the evidence against his client, noting that the last overtly criminal act alleged against Kry in the indictment took place in 2020. “If the evidence was so strong, they would have indicted him sooner,” McGinley said.
Kry and his direct superior Keo Omaliss, director of Cambodia’s Forestry Administration, were indicted earlier this year alongside six alleged co-conspirators, the owner and employees of Hong Kong-headquartered macaque breeder Vanny Bio Research.
Together the eight are accused of illegally capturing wild macaques in Cambodia and Thailand and passing them off as having been bred in captivity at Vanny Bio Research’s two Cambodian breeding centers before exporting them to the U.S. for use in medical research.
Long-tailed macaques, also known as crab-eating macaques or cynomolgus monkeys, are prized by medical researchers for their physiological similarity to humans. They were one of three monkey breeds found to be receptive to the COVID-19 virus, and so played a crucial role in the development of vaccines against the virus.
Between 2017 and 2021, Cambodia reported exporting 93,834 long-tailed macaques globally. The U.S. imported 76,568 of them, more than half of which arrived in 2020 following the start of the pandemic.
To insure against contamination during experiments, only captive-bred macaques are supposed to be used in research. But because female macaques only give birth roughly once every two years and nurse their young for 420 days, breeding new specimens is a costly and time-consuming process.
As such, many commercial breeders are incentivized to pass off wild-caught monkeys as captive bred to meet high demand. It is precisely this that Kry, Keo and Vanny Bio Research are accused of.
Flight risk
In opposing the bail request, Watts-Fitzgerald raised the possibility that members of the Cambodian government might help Kry to flee the country.
“The defendant’s connections to a GOC [Government of Cambodia] Department, and to a more highly placed co-defendant suggest that despite the sequestration of his passport, he may enjoy support within his government,” Watts-Fitzgerald wrote. “New travel documents and assistance in leaving the United States are a serious concern.”
The suggestion is a blunt rebuff to Ambassador Keo's proposal last week that Kry could be effectively bailed into the custody of the embassy, which pledged to house Kry and guaranteed his attendance at trial under the deal.
To secure the deal, the ambassador said he was willing to irrevocably waive the embassy’s diplomatic immunity, the guarantee under international law that embassy staff and premises will not be subjected to searches, arrest or interference from the authorities in their host country.
Watts-Fitzgerald argued in his motion on Tuesday that the proposal was “illusory and impracticable.” Firstly, he wrote, the embassy would be powerless to prevent Kry from fleeing while traveling the 500 miles between the Cambodian Embassy in Washington and Miami’s Wilkie D. Ferguson Jr. federal courthouse, where his trial is set to take place.
“Once embarked on those trips, KRY would effectively be beyond the control of the embassy and free to flee the United States,” he wrote.
Less diplomatically, Watts-Fitzgerald questioned whether the Cambodian government would honor Ambassador Keo’s promise to irrevocably waive his embassy’s immunity.
“While the United States does not question the good faith of the current undertakings, they are subject to the future decisions of the GOC – including the possibility that the decision to waive the protections attached to Embassy premises may be revoked by that government,” he wrote.
“Sovereigns can be relied upon to act in their perceived best interests,” Watts-Fitzgerald added. “Should the policy or interests of the GOC be altered, and defendant be assisted in any way by diplomatic personnel to flee, there is little recourse for the United States or this Court.”
As of publication, Cambodian Council of Ministers spokesman Phay Siphan and Foreign Ministry spokesman Chum Sounry had not responded to requests for comment on the suggestion that his government’s word might not be reliable.
At the Dec. 5 bail hearing, Mark MacDougall, another lawyer for Kry, had countered that such an about face was unlikely because “the consequences to the ambassador, to the embassy, and to the Government of Cambodia of violating the terms of this agreement would be enormous.”
If Ambassador Keo or any of his successors decide to help Kry escape, the strongest response open to the U.S. government would be to expel the ambassador, Watts-Fitzgerald argued.
“Since any such assistance would likely be at the direction of [the Government of Cambodia], the ‘recall’ of one of its diplomats would be of minimal effect,” he wrote.