How the US failed to stop a Cambodian monkey ‘smuggling conspiracy’ — Radio Free Asia

Kry Masphal landed at Phnom Penh airport late last month to a hero’s welcome. His wife and children, as well as his colleagues and superiors from the Ministry of Agriculture, Forests and Fisheries, or MAFF, thrust a bouquet of flowers in his hand and garlands around his neck. 

For most of the previous 18 months, the former director of Cambodia’s Department of Wildlife and Biodiversity had been held under house arrest in the U.S., allowed out for just 45 minutes each day to stroll in a nearby park. 

Last month, he was finally tried in Miami, where his indictment had been issued. Accused by U.S. federal prosecutors there of helping to run a research monkey smuggling operation, the senior official faced 25 years imprisonment if found guilty. 

Instead, after a 10-day trial and two days of jury deliberation, Kry was acquitted of all charges. 

His acquittal, announced MAFF, “affirms that Cambodian officials have consistently upheld laws, regulations and international conventions,” on protecting endangered wildlife. In their statement, they added that “the allegations against Cambodia regarding the long-tailed macaque trade had no evidence and relied on unfounded assertions.”

But while the ministry celebrated Kry’s release as clearing the Cambodian government of any wrongdoing in the monkey trade, court transcripts – as well as an extensive Radio Free Asia investigation last year – showed the U.S. had acquired significant evidence that macaques were being traded illegally even if it didn't have sufficient evidence to convict Kry of being a willing participant.

Instead, a strikingly narrow scope and a reliance on a controversial undercover investigation seem to have doomed the U.S. government’s case from the start. 

Demand and supply

As the COVID-19 virus took hold in 2020 and scientists raced to find a vaccine, Cambodia became the world’s leading provider of research primates – specifically, long-tailed macaques. The endangered monkeys are critical to vaccine development and demand soon reached unprecedented levels, sending prices skyrocketing to tens of thousands of dollars per animal. 

Cambodia’s farms struggled to keep pace with demand. In the case against Kry, prosecutors alleged that at least one farm resorted to passing off wild-caught monkeys as lab-ready macaques purposely bred in captivity. The distinction is crucial from a scientific perspective, since the often-symptomless diseases carried by wild monkeys can skew test results, potentially leading to unsafe medicines being approved for public consumption. 

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In November 2022, Kry was arrested while transiting through New York’s JFK airport on his way to represent Cambodia’s Forestry Administration at a conference on endangered species in Panama. He was charged with abusing his position to abet an alleged eight-man conspiracy to smuggle endangered monkeys from Cambodia’s jungles into American biomedical laboratories. 

The indictment against Kry charged seven others: his boss, Forestry Administration director Keo Omaliss, and six Chinese individuals involved in the management of Vanny Bio-Research (Cambodia) Co. Ltd., a company that runs two macaque farms in Cambodia. In the eyes of the U.S. justice system, the seven others charged are still fugitives.

During the trial, even Kry’s lawyers accepted that there was abundant evidence of an underlying conspiracy by Vanny to re-label and smuggle the primates. In her opening argument, Stacey Mitchell, one of Kry’s lawyers noted that the prosecution’s key witness, a former Vanny employee, dealt with “multiple black-market suppliers who were bringing smuggled monkeys into Vanny, and he absolutely knew that Vanny was sending those monkeys to the United States.”

They argued that Cambodian authorities could have prosecuted Vanny themselves had it not been for the meddling of investigators from the U.S. Fish and Wildlife Service, the agency that ultimately arrested Kry in November 2022.

Almost two years on from Kry’s arrest, though, Vanny continues to operate. As of April 10 this year, the company was recruiting for 10 positions in Cambodia, including managers for its monkey farms, lab technicians and veterinarians. Emails to Vanny seeking comment went unanswered.

Kry, meanwhile, was acquitted of wrongdoing after his lawyers convinced the jury their client was not guilty of partaking in Vanny Bio’s conspiracy to smuggle. His lawyers were drawn from the ranks of Akin Gump, a prestigious U.S. law firm that had been registered as lobbyists for the Cambodian government for 11 months prior to his arrest. 

While stressing that they did not represent Vanny, whose owners remain under federal indictment, Kry’s lawyers noted that much evidence surrounding the company came out at the trial. 

“But whether the owners of Vanny will be found guilty of criminal offenses in the United States is a matter to be decided another day and by a different jury,” the lawyers told RFA in a statement.

A star witness?

Kry’s journey to the Miami courthouse began in 2017, before the pandemic and before the U.S. Fish and Wildlife Service investigators even knew his name. Much of that journey became public only at last month’s trial, transcripts of which were obtained by the animal welfare charity People for the Ethical Treatment of Animals, or PETA, and shared with RFA.

The prosecution’s star witness, Francis Yeung, was head of security for Vanny’s Cambodian monkey farms at the time. According to court transcripts, he had reached out to Cruelty Free International, a British animal rights organization looking for a job, hoping to leverage his insider knowledge of the primate trade’s dark underbelly into a career change. No such job emerged, but the NGO introduced Yeung to investigators at the Fish and Wildlife Service. Within a year he was serving two masters – and crucially, in the eyes of Kry’s lawyers, drawing two pay checks.

The U.S. federal agency matched Yeung’s monthly salary of 43,000 Hong Kong dollars ($5,500). In return, he took the secret cameras, recording devices and computer spyware they furnished him with and set about gathering evidence. He forwarded to the U.S. investigators internal Vanny emails detailing payoffs to the Forestry Administration and the ruling Cambodian People’s Party in exchange for deliveries of wild-caught monkeys. Other emails detailed Vanny’s relationships with two U.S.-based monkey brokers and how the farm would allegedly collude with the brokers to obscure the fact that many of the macaques exported by Vanny were not captive bred as described.

At times, Yeung donned a baseball cap fitted with a hidden camera to record deliveries from monkey poachers, as well as from Forestry Administration officials. In one memorable clip, Kry is heard suggesting to the undercover informant where Vanny should build a road to be “more safe for your smuggling.” (Kry’s lawyers, in their opening statement, claimed that this was an example of their client “investigating” using skills he had learned in law enforcement. It is unclear what he was investigating.)

But, for most of the seven-year investigation, the U.S. investigators did not even know Kry’s name. He had introduced himself to Yeung as “Mark Sophal” and up until the second half of 2022, that was the only name the Fish and Wildlife Service had for the Cambodian official in the video recordings and mentioned in the emails.

The initial indictment from July 28, 2022, did not even mention Kry. The mysterious “Mark Sophal” had not yet been identified. A second, superseding, indictment naming and charging Kry was not issued until Nov. 3, 2022, just 13 days prior to his arrest at JFK airport. 

Holes in the case

From the beginning, the case against Kry had issues.

His lawyers alleged that Kry was only tacked on to the indictment at the last minute because investigators had learned that he would be transiting through the U.S., noting that one agent’s response to the news was to text, “Let’s get that indictment” — though this argument was dismissed by the judge.

The prosecutors, meanwhile, were bound by an unusually narrow set of permissible arguments. In part, they were constrained by the Act of State doctrine, which prohibits U.S. courts and juries from passing judgment on the actions of foreign states. 

This restriction appeared to present a challenge to the prosecutor in a case where one of the central allegations was that Cambodia’s longtime ruling party was being paid for its participation in the scheme. 

More than a year ago, Kry’s lawyers attempted to get the case thrown out under the Act of State doctrine. They argued that Kry’s delivery of wild macaques to Vanny was in accordance with a lawful MAFF order calling for the monkeys to be rounded up and delivered to Vanny, where they were to be used for breeding purposes only. (Though they are endangered, the macaques were deemed by MAFF to be a public nuisance.) 

The prosecution and defense differed only in that the former claimed Kry knew the monkeys would be exported, while the latter said that no evidence pointed to his knowledge of their eventual illegal trade.

“What Mr. Kry did was what he was lawfully ordered and directed to do in Cambodia,” Mitchell said in her opening argument. “Namely, to collect monkeys from public places and take them to Vanny to raise, care and breed.”

There had initially been eight criminal charges in the indictment against Kry and his alleged co-conspirators. In a statement issued following their victory last month, Akin Gump noted that by the time the case came to trial prosecutors had withdrawn five of those counts and the judge ordered another removed.

The first of the two remaining charges was that he conspired with Vanny, Keo (his Cambodia Forestry Administration boss) and the U.S. brokers to import macaques into America and to create false records to support their transport. The second was that he “aided and abetted” the smuggling.

Just following (lawful) orders?

Arresting a foreign government official is a step law enforcement officials would not take lightly. The Fish and Wildlife Service did not respond to a request for comment and a spokesperson for the prosecutor’s office declined an interview request. But, if the prosecutors felt confident enough in the evidence to make this extraordinary move – one with the potential to damage relations between two nations – why did the jury disagree so strongly?

American jury deliberations are secret and jurors are not required to explain their verdict. However, to find Kry guilty the jurors would have had to unanimously agree on a set of criteria for each of the two charges. 

For the first, they would have to find that a conspiracy to illegally smuggle wild monkeys into the U.S. existed; that Kry knew of the plan and took part in it voluntarily; and that at least one of the alleged conspirators took at least one action to further the plan. For the second charge of aiding and abetting, the jurors would have had to agree that Kry imported wild-caught monkeys into the U.S.; that doing so was in violation of the law; and that Kry knew it to be illegal. 

The trial concluded on March 21. The following day, a Friday, the jury informed the judge that they had come to an agreement on the second count (aiding and abetting) but had yet to arrive at a unanimous verdict on the conspiracy charge. She sent back a message instructing them to continue their deliberations until they had a unanimous verdict on both counts. By mid-afternoon they had acquitted Kry on both counts in time for everyone to start their weekend early. 

It appeared that the jury had fairly quickly come to the conclusion that prosecutors had not proven beyond a reasonable doubt that Kry “intentionally… participated in the crime.” They took a little longer to decide that he either had not known any details of the plan or had not “willfully joined” it.

For others, there have been wider issues at stake in this trial. Lisa Jones-Engel is a primatologist. She spent most of her career working in the research primate industry, including in Cambodia, before defecting to lead PETA’s campaign against the monkey trade. Though Jones-Engel spent the last 18 months as a vocal cheerleader of the government’s case against Kry, she was not especially disheartened by his acquittal. 

The trial brought into the public domain what she sees as damning evidence of the pharmaceutical industry’s widespread use of illegal, wild-caught macaques, she told RFA. The Fish and Wildlife Service’s investigations into the two U.S. brokers identified as unindicted co-conspirators are ongoing. 

Separately, Charles River Laboratories, an American company valued at $12.5 billion which specializes in pharmaceutical testing, announced last year that it, too, was the subject of a U.S. government investigation into its alleged use of Cambodian monkeys. The company’s employees were identified by Yeung in photographs as visiting Vanny’s farms – he told the court they were considered “VIP” customers. The company’s CEO said on an earnings call last year that it was cooperating fully with the investigation, which he said he expected to vindicate Charles River fully.

Though the jury found that the evidence gathered by the Fish and Wildlife Service did not prove Kry was part of a scheme to smuggle monkeys, Jones-Engel believes prosecutors can and should use the same evidence to prove that U.S. labs are complicit in the illicit trade.

“They lost this battle,” Jones-Engel said. “But they’re going to win the war.”

Edited by Boer Deng and Abby Seiff. 

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