Thursday, November 11, 2004
John had been charged in one of some 5 related indictments returned by the grand jury the same day. Each of the indictments was targeted at a different drug trafficking organization. John was alleged to be the leader of one of them. A huge war broke out among these groups for control of drug trafficking points. You had situations in which, at times, groups A and B banded together to fight groups C, D, and E, who had also banded together. At other times it would be groups A and D against groups B, C, and E. In any event, many, many persons ended up getting murdered. And these weren't just any murders, they were real massacres, where you would have one body with over 100 shots from AR-15's and AK-47's fired at him.
John had the drug trafficking conspiracy charge brought under 21 U.S.C. 846, and also a Continuing Criminal Enterprise (CCE) charge under 21 U.S.C. 848.
The amounts of heroin, powder cocaine, crack, and marihuana involved were definitely more than enough to place him at a Base Offense Level of 38 under the sentencing guidelines, which is the highest BOL the guidelines provide for drugs. The 2 level weapons enhancement was easy to establish, as John had weapons convictions during the course of the conspiracy plus there was much testimony coming in from snitches that would establish that. In fact, John was alleged to have participated in or directed numerous murders. It was also clear that John would receive an offense role enhancement of 4 levels for being a leader in an offense involving 5 or more participants. This placed John at an offense level of 44, which does not even exist under the sentencing guidelines, as the highest offense level is 43, which mandates life imprisonment. And I'm not even considering the alternate route through the cross-reference to the murder guideline, which would have also resulted in life imprisonment.
So why the prosecutor bothered to bring a CCE charge against John is beyond me to understand. To prove the CCE charge is a pain, rather than going with a much easier to prove conspiracy charge.
Did John have a chance of being acquitted? Hardly! The Government had as a witness John's closest friend, who allegedly had committed many of his crimes -and there were many he had admitted to- with John by his side. This fellow had already testified at several trials in the related cases and had been the strongest witness on the government's side. Everyone had been convicted in each of the cases in which he had testified.
Initially, John was being offered a plea for 25 years, which he had rejected. We had litigated a number of issues, including the constitutionality of section 841 (remember Buckland from the 9th, before they came down with an en banc opinion). We had also raised the stuff about the government paying, in essence, bribes to their snitches by offering them reduced sentences, etc. And we had even raised an issue as to whether an indictment returned under an acting U.S. Attorney whose duration in office without ever being nominated or confirmed by the Senate had de facto become an invalid appointment, and, for said reason, any indictment returned under his authority, was invalid. We lost them all.
Some months before trial I had convinced a supervisor (no longer there) at the U.S. Attorney's office to grant me a plea for 17 years, and had immediately gone to visit John, thinking he would jump at this offer. After all, he had been waiting trial for some 3 years and was 27 years old, and was fully aware that if -or should I say when- found guilty following a trial he would receive a life sentence. John was not impressed with the offer, and told me if I got him 15 years he would take it. I suggested that he should accept this one before the supervisor got a better look at the case file, since it was less than some of his underlings had plead to! John still said "no."
Shortly before trial, John decided that he wanted another attorney, perhaps thinking that the trial would again be delayed. I think that John figured on one of three things: First, that maybe a new attorney would get him less time. Second, that if his trial were postponed so much that his friend and government star witness were released before then, he would simply disappear and not testify against John. Third, that despite his friend already having sold his soul to the government, he just might not be able to testify against John knowing his testimony would put John -his dear friend- away for life.
As John was making arrangements for his new attorney at the last minute (something I found out about just the day before the scheduled trial), the prosecutor moved for dismissal of the CCE charge. This was a different prosecutor than the one who had presented the case before the grand jury. I had recently had a trial with him and had observed that he was not the sort of prosecutor that presented every piece of evidence he had at his disposal, but, instead, presented a very focused case, limiting the evidence to what was necessary and essential.
So John got his new attorney, with only a week (after a brief continuance granted by the Court) to prepare for a case involving a lot of evidence. In my presence, one of the new attorney's first actions was to try to see if he could get John an offer for 20 years. The prosecutor laughed at him, and told him that perhaps he had not spoken enough with his client, since John had already rejected the 17 years and I had managed to keep that offer open for months with no results, so why would John accept 20 now? In any event, the prosecutor said that it was 25 years or trial.
So John went to trial with an attorney who had little time to prepare a complex (even if a losing) case, and was found guilty.
John is now serving life. He left behind a wife and kids and I wonder how he will feel when the time comes that he would already have been released had he taken up the 17 years. I have no idea what issues he raised on appeal, and did not attend the oral argument yesterday.
John is a fighter. He always was. He always had a joke to tell, and laughed with a lot of feeling. He was also a bright guy, and I always found him easy to get along with. You always wanted to help him. But if you ask me why he said no to the 17 years, knowing the consequences, I don't have any answers for you. At least not any satisfactory answers. This was not a defendant who was telling counsel "let them prove it!" No, John knew better. Or did he?
Friday, October 29, 2004
FBI: Man arrested at eatery had mouth full of heroin
Knoxville News Sentinel (subscription) - Knoxville,TN,USA
... Assistant US Attorney David Jennings said at a hearing in US District Court that Jaquez faces a mandatory minimum sentence of 10 years and as much as life in ...
If the headline is accurate, I hope they checked out the eatery. Is it a front? I have not read the actual article, since a subscription is required, but I'm left wondering what kind of food this eatery serves. Perhaps the arrested party should sue the eatery, and defend himself by blaming the Cook.
Tuesday, October 12, 2004
Many of you will be surprised to read this, but in the Commonwealth of Puerto Rico Courts it is indeed very rare to see anyone charged in a drug conspiracy. They are mostly charged with substantive drug offenses. And I have never heard of anyone being charged in the Commonwealth of Puerto Rico Courts for possession of cocaine when the substance was sham cocaine, i.e., not cocaine at all, but something made to look like it.
The entire investigation began when local authorities busted one police officer who had accompanied a known drug dealer to make a delivery of some heroin to an informant and an undercover Commonwealth Special Investigative Bureau (SIB) agent. The cop was offering protection. No arrests were made at the time of the delivery. Some months later and very quietly, the cop was arrested by Commonwealth agents and he immediately told the agents he was willing to cooperate. They contacted the FBI. The entire incident of his arrest was kept under wraps; the Puerto Rico Police Department assisted at the highest levels by not letting on that the cop had been busted, or that he had in fact been dismissed from the force. Instead, phony paperwork was prepared to make it appear as if the cop had been reassigned to an FBI Task Force.
The fellow gave the FBI a list of about 11 or 12 other police officers and former police officers with whom he had engaged in illegal activities, including drug trafficking, stealing seized property (drugs, weapons, money, etc.) and other offenses. The FBI then set the guy with a phony FBI Task Force ID, a vehicle, and cell phone, and rented a villa at a resort for him. The villa was set up with video equipment, as were all of the vehicles used by the busted cop.
The now FBI informant commenced contacting his fellow partners in crime. The usual setup was as follows: He would paint himself as having lucked out to be assigned to the Task Force (which meant more pay), as well as having continued to lead a dual life by assisting a big contact of his - a Colombian drug trafficker - by providing "protection" for the drug deliveries by actually delivering himself. Many of those contacted knew that this cop did have an uncle who was in prison for drug trafficking and so they swallowed the story line with all the details. I will not go into all the details of the story he fed them, but suffice it to say the guy was very convincing. The Colombian supposedly only wanted cops to offer protection to his shipments once in Puerto Rico, and had entrusted this cop with recruiting other cops to assist him. Payment would be at $2,000 per kilo of cocaine transported, to be divided in equal shares among those who participated.
The FBI, in the meantime, prepared sham cocaine kilo bricks, with a smell of diesel and other stuff on the wrapper to -supposedly- camouflage the cocaine odor. Once people tentatively agreed to participate (through consensually recorded telephonic and in person conversations), then the group that would participate in each delivery would be asked to a meeting at the villa. There they were once more told of what they would have to do -all in the midst of many other war stories- and they were given the chance to back out (in an obvious attempt to forclose an entrapment defense). They were told, "if you don't want to go ahead, now is the time to back down, and we can get someone else, but don't say yes now and then make me look bad. The manner of the deliveries, in which only policemen would participate, was made to look so failsafe that hardly nobody rejected the idea. Keep in mind, also that police officers in Puerto Rico make a lot -and I really mean a lot- less than police officers stateside, so the money was a huge incentive for them.
They were all told to go with their police uniforms, and would accompany a federal task force agent who would tell any one who intervened that they were assisting the feds in a drug operative.
The vehicles used by the cooperating ex-cop were all wired for video and sound. A few days after each delivery or pick up they would be called back to the villa to get paid, also videotaped.
Of the 11 or 12 original targets of the investigation, each was asked to recruit more officers for different deliveries, and told that they had to be different officers for each delivery other than for themselves. A wide net was thus cast. The indictments charged them with conspiracy to possess with intent to distribute pursuant to 21 U.S.C. 846, as well as weapons violation pursuant to 18 U.S.C. 924(c), and criminal forfeiture (of the monies paid to them).
After indicted, almost all defendants remained without bail. Their first reaction was to say "entrapment" - but this was a hard row given the videotapes.
Soon enough the officers came down with their defense theory and insisted that they had even done research to get it right. I went as follows: Because there really was no cocaine, as it was sham cocaine, there was no drug offense, and the drug charge had to be dismissed. Because there was no underlying drug offense, there could not be a violation of 924(c), as no weapon was used or carried in relation to a drug trafficking offense. And the criminal forfeiture of the monies paid to them, you ask? Well, you have to understand these were not proceeds of a drug offense, so they could not be subject to forfeiture. Lost to these defendants was the idea that they were not charged with a substantive drug offense, but a drug conspiracy.
The Government offered most of them, other than the initial targets who did most of the recruiting, 10 years. Most took the deals. My client insisted on going to trial and was found guilty and ended up getting a sentence of more than 20 years. I always wonder when clients make these choices whether they really understand what they are doing to themselves. They tend to believe that things will get straightened out on appeal, and only look at the one or two inmates around them whose convictions were reversed, and not at all the rest whose convictions are routinely affirmed. It is sad, perhaps a result of not wanting to accept their own predicament, only to dig themselves into a deeper hole.
Tuesday, September 21, 2004
But I have learned that sometimes -unusual, but it happens- some of these fellows can be of great assistance to your client. For example, I recently had a case in which every government witness who had stated anything about my client seemed to involve him as the owner of marihuana and cocaine drug points in a public housing project. My client always denied that he dealt with any cocaine. They also involved him in a few murders, and the government intended to present that evidence as well. My client denied ever participating in any murders.
Some months back, one of my client's co-defendants --who knew him far better than any of the other witnesses-- decided to cooperate (see? . . . no "snitching" here) with the government. We had been trying to reach a plea agreement for some time based solely on my client's marihuana distribution and leaving out any cocaine or murders. This had been impossible until that co-defendant started cooperating. He was the supplier of marihuana for my client and had participated in the very murders in which others had stated my client had participated. He has clarified that my client had nothing to do with the murders, and that my client sold only marihuana, and the government considers him a much more knowledgeable witness than the others, as least as regards my client.
So you can see that this is one case of a snitch actually coming to one's assistance by simply being truthful.
Monday, September 13, 2004
The same Judge wants counsel to include in the attachments to the CJA Voucher what each call or meeting with defendant concerned. Sometimes this is a no brainer, such as "reviewing discovery materials obtained on 10/20/04," or "reviewing presentence report," etc. I don't spend my days at the federal detention facility visiting clients. Many times when I go I may have a very important reason to meet with two clients, and I bring down a third just so he knows I have not forgotten him, even if I only have a very brief meeting with him. At times, when I go to meet a client, he asks about (or disputes) matters I have previously explained to him, but which he either failed to grasp, or simply can't or does not want to accept. Do I have to explain that I spent the time with client once more explaining to him that, yes, even though he was acquitted of the murder charges in a previous local case before the Commonwealth of Puerto Rico courts, the feds are now alleging that he committed said murder in furtherance of the instant drug trafficking conspiracy and that they can present all of the evidence in the instant case, even though (at least pre-Blakely) the jury will never have to pass upon whether he in fact had anything to do with the murder, but merely whether the conspiracy involved in excess of 5 kilograms of cocaine, and that if they find him guilty the judge can sentence him to life if he concludes that it is more likely than not that he in fact committed said murder? Maybe I could just state: "Explaining for the fourth time to client with common sense that the sentencing guidelines allow for a cross reference to murder guidelines. Client has found it difficult to grasp how he could have been acquitted of the murder charges and how they can use it to sentence him now."
Oh, well, maybe Booker and Fanfan will make my life easier.
A brief recess had been called, and I immediately ran outside to the courthouse entrance to smoke a cigarette. My client came with me. My cousin's wife, who at the time clerked for a federal judge, came out on her way to lunch and, seeing me smoking, said "Tom, you're going to kill yourself. Stop smoking!"
I could only wonder at the irony of the fact that I was trying to avoid having my client go to prison for having smoked marihuana which, while illegal, would hardly end up killing him, while I was standing outside the courthouse at the first chance to smoke a cigarette, which will probably kill me or at least cause serious health problems, but my weed was legal. My client did not even smoke cigarettes because, as he told me, "that stuff screws you up." I went back in and I believe that I was able to convince the judge not to revoke supervised release.
There are also stories about that biggest of all criminal defense law firm - the one made up of all the jailhouse lawyers housed with our clients, and how our clients pay more attention (and often money) to them than the attention (and often money) they pay their own lawyers.
Then there are those "lawyers" who are always hustling cases by suggesting either directly or through third parties -other inmates, paralegals and chasers- that the inmate should switch lawyers because nobody who is Court-appointed or a federal public defender is going to look out for their interests the same as if the guy had retained "his own" attorney. There are very good reasons why criminal defendants time and again fall for this dishonest pitch. More often than not, at least as regards criminal defense lawyers who practice before the U.S. District Court in Puerto Rico, the representation provided by the Federal Public Defender is of very good quality, many times much better than the representation afforded by many attorneys in private practice. And as to attorneys in the Criminal Justice Act panel, I can only say that -by and large- they are very dedicated to their clients, and I have yet to meet one of these attorneys who pays more attention to their paying clients than to their appointed ones. The few that do, are probably irresponsible attorneys to begin with, and you would be better off with someone else.
Then there are the federal criminal laws, including the draconian (seems to be the "in" word for describing the guidelines) federal sentencing guidelines, and how these so-called guidelines have affected the practice of law, not to mention chilled defendants' exercise of their right to jury trial, and practically eviscerated the proof beyond a reasonable doubt standard in so many sentencing enhancing aspects, etc. In many cases, for example, the Government no longer needs to go through the complex Continuing Criminal Enterprise provisions to put someone away for life. It often suffices to charge the same person with a conspiracy involving sufficient amounts of drugs, and other adjustments that will increase the sentencing range to life can be taken care of at the time of sentencing by the judge using the preponderance of the evidence standard, hearsay, and what have you. This is also a corrupting influence in the criminal justice system. Blakely's aftermath may or may not assist in clearing this up, depending first on what the Supreme Court does in Booker and Fanfan, as well as in Shepard (possible death knell for Almendarez-Torres) does.
These and some more stories will form part of this blog, although the names will be altered to protect both the guilty, the not guilty and the innocent. Don't be confused, since "not guilty" is not the same as "innocent." All the "innocent" are "not guilty," but not all the "not guilty" are "innocent." See United States v. Mendoza-Acevedo, 950 F.2d 1 (1st Cir. 1991) (discussing jury instruction on guilt or innocence of the accused v. guilt or lack therof, and agreeing that difference between not guilty and innocent is more than semantics, as district court had labeled it).