Tuesday, October 12, 2004

When defendants think they know more than the lawyers.

This is a real story of a federal indictment against a group of Puerto Rico Police Officers who were caught in an FBI sting operation referred to as "Lost Honor." While I believe that the FBI really went overboard in this investigation -a matter for another post- I will relate here what these police officers' (not their attorney's) theory of defense was, and how for a long time they insisted on counsel pursuing this theory.

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.