BRING ME THE HEAD
ALFREDO GARCIA'S LAWYER
In 1990 our law firm discovered that we were enmeshed in an Orwellian nightmare of intrigue and collusion due - we maintained - to our aggressive and successful defense of dope cases in the Southern District of Alabama and our aggressive attacks upon Operation Skymaster, a "special operations" unit of the United States Customs Service. I had been appointed to represent a Bolivian national against charges of a cocaine importation and distribution charge only to discover that our firm had also been targeted by a clandestine governmental operation.
This story was covered by the Mobile Press Register. Click on the graphic to see the story. I apologize for the length of this article but, as I hope you will see, it's a fairly complex set of circumstances. This account is more accurate and contains more information than the news article. I offer it not only for historical accuracy but also to point out potential hazards to other criminal defense attorneys. This story ultimately has a happy ending, but, as I think you will see, that was mostly luck.)
The case of United States v. Garcia, originally involved four young Latin Americans and our client Alfredo Garcia. The defendants were arrested near Mobile, Alabama on November 15, 1989. The government alleged that Alfredo Garcia was a Bolivian drug baron who had a cocaine processing plant there. He was lured here by agents and immediately arrested. I was appointed to represent him on November 15, 1989.
The defendants were put to trial for a two-count indictment alleging a conspiracy beginning on November 3, 1989 and ending on November 15, 1989 and having as its dual purpose the importation and the distribution of 400 kilos of cocaine purportedly being shipped from Bolivia. Various pretrial motions were filed, including motions of entrapment and outrageous governmental misconduct (December 1, 1989 and January 17, 1990). The defendants all went to trial and on June 6, 1990, that jury acquitted all four defendants of the "Conspiracy to Distribute" charge and two of the defendants were acquitted of the remaining "Conspiracy to Import" charge.
The jury deadlocked (10 to 2 in favor of acquittal) on that charge as it related to one other defendant and Garcia. An Alabama jury took the word of four Latin Americans (each from a cocaine "Source Country") against the versions supplied by the United States Customs Service agents and their confidential informants. The theory of defense was that Customs' "Operation Skymaster" was a rogue operation riddled with "miscreants and scalawags".
The gist of the problem began, at least for me, immediately before the scheduled start of trial. During the first week of May, 1990, I received telephone calls from a person purporting to be my client's relative. He was in the United States and supposedly was concerned for Alfredo's well being. He asked me to help get him in to see his cousin. On May 11, 1990, I received a telephone call from a person identifying himself as Hugo Moraco who had arrived at a local hotel. As a precaution - one for which I now thank my lucky stars -I took my partner, Arthur J. Madden III.
He and I met with Moraco early that morning and he was accompanied by another person, also a Latin American. We discussed their visit with our client. In addition, the payment of a healthy legal fee was also discussed. It was apparent to us that there was some amount of subterfuge involved regarding their identities, other parties in South America, etc. They inquired into the case and our plans for defending the case. They volunteered to pay our legal fees (if we would not, please, report it so as not to get them in trouble). The entire meeting was couched in all sorts of subterfuge and it was apparent to us that something was going on.
The two men ultimately did acknowledge that our client had not been involved in the matter for which he was indicted, although how they would know that was never really answered. They were seeking information. They also told us that they would have someone at the trial to see how things were going, a fact that ultimately was disclosed to the US Attorney's office and which caused us great concern. These two persons left a phone number with the attorneys and defendant Alfredo Garcia.
We arranged for a "contact visit" for our client's "relatives", arranging to pick them up after we made a visit to our office. When we did not hear from them, I visited the jail and found them already inside talking to Alfredo. I intruded into their visit, they excused themselves so that I could confer with my client and I arranged to meet them later at my office.
Alfredo Garcia is a wonderful and well-educated man. A poet whose nom de plume was Carlos. He was a merchant who dabbled in all sorts of fields. He maintained at trial that he had come to Miami and only through a bizarre turn of events had happened to end up in Mobile accused of a massive cocaine importation. "I have never seen these men in my life," he now told me. "Life is getting stranger by the minute. My nightmare seems to take an increasing ever-brutish twist."
The visitors had inquired about his case, had spoken to him about what appeared to Alfredo to be some kind of clandestine dope deal and had offered him money to give to us for our lawyers' fees. They had visited his home town of Santa Cruz, Bolivia and had made inquiries with his wife, family, friends and acquaintances.
I sought and received his approval to relay this information to the United States Attorney's office. We were all convinced that they were some type of Grade A criminals. Their documents were first class and their accents and appearance made them appear to be what they alleged to be. We warned our client that this might put more attention on him as it would stretch the imagination that an innocent person would have these people visit him.
On the morning of May 14, 1990 we met with Jefferson Sessions, United States Attorney for the Southern District of Alabama (now, a United States Senator), his chief assistant Virginia Granade (now, a United States District Judge), a member of the FBI and Customs. During the conversation at my law office the two visitors had said that "Chacho" would "have someone at the trial to keep an eye on things". The prosecutors and law enforcement officers were filled in concerning all of these details. The parties listened but took no notes. They thanked us for coming forward and said that they would look into the matter.
This apparent lack of concern from the true believers at the US Attorney's office regarding the two strangers led us to file a "Motion to Compel Disclosure" of the contents of a US Attorney's June 19, 1990 filing under seal, a filing that had been kept secret even from the AUSA prosecuting the case.
Pursuant to Garcia's motion to compel disclosure and the accompanying affidavit which was filed under seal on September 17, 1990, United States District Court Judge Charles R. Butler convened an in camera informal conference on Wednesday, October 7, 1990 with the attorneys for defendant Alfredo Garcia and Sessions and Granade.
Arthur and I had met with Judge Butler immediately prior to the filing of the motion to compel in order to brief the court about what had been happening: that we had been visited by the two strangers, had gone to the US Attorney, had met with the FBI, and that there had been no action forthcoming. The purpose of the informal conference, as stated by Butler, was to work out the problem and see if our questions could be answered.
The judge allowed that he had seen the documents filed by the US Attorney's office on June 19, 1990, that he did not really recall much about them, and that he had not really been bothered by their content at the time that he read them. We maintained that there were egregious problems and issues raised by the specter of the visitors: interference in the defense of a criminal trial - be it by criminals who might be able to provide exculpatory information concerning our client, or by government misconduct, entrapment of lawyers, interference in our representation of our client by making us witnesses to government misconduct, etc.
"What's the problem," he posited, "if they are criminals and merely the focus of an ongoing investigation unrelated to your case?" "None," we answered. "If that is the case tell us now, and this ends." After that brief initial query, the conversation then centered on the second option: that they were agents and whether or not they had merely been here to collect information from our client regarding another case. From the tone of the meeting and short shrift given to the first option by the court and by the US Attorney, it was obvious that the visitors had been agents.
The court postponed coming to any decision concerning our request to reveal the information pending a filing by the US Attorney's office of copies of the documents previously filed (they couldn't be found in the court file) and their official position on the impact of disclosure to us. Upon Judge Butler's return from a judicial conference, he would schedule a hearing on the matter.
Immediately following the informal conference, I again met with Garcia for the purpose of establishing what had happened during the visit to Garcia by the two persons purporting to be his relatives. We filed a document under seal with a summary of his recollection of the conversation with them. (1)
Upon the court's return, a deadline of November 12, 1990 was set to enable the U.S. Attorney to respond to the motion to compel. By November 14, 1990 , the government had not responded and we inquired of the government and protested to the trial court. The government requested a continuation to November 15, 1990 due to Jeff Sessions' "busy trial schedule". That deadline again passed without response.
On Tuesday, November 20, 1990, I again called Sessions to inquire and to tell him that a motion for sanctions was being composed. As a courtesy to the office of United States Attorney, I told him, I would wait until the following Monday to file such a motion. The United States Attorney thanked me and said that he would "file something".
On November 20, 1990, the US Attorney's office filed another request for extension of time and a motion to reconsider, citing the court's alleged lack of jurisdiction based on the fact that the matter of the retrial was pending before the 11th Circuit on the Double Jeopardy issue. We filed a motion for sanctions. On December 11,1990 the entire matter finally came to a head.
The court scheduled a meeting concerning our pending motions. Sessions told Butler that he did not have jurisdiction to order him to disclose whether or not the two persons were agents or not or to order the provision of the requested transcripts and tapes. "That may be so, Mr. Sessions," the court said. "But if by tomorrow at noon you do not provide the tape and transcripts to Mr. Soto you can argue your contempt citation to the Eleventh Circuit." Whether or not we would get the items requested - and indeed, the fact of their existence - was no longer academic.
High noon the next day, Sessions walked down the corridor to Judge Butler's chambers and handed me the tapes. The US Attorney acknowledged that the two men were "agents". One was a confidential informant and the other a member of the Los Angeles Police Department. They were working with the FBI and the Organized Crime Task Force. (2) That afternoon we picked up the other transcript of the conversation between the agents and Garcia which was held at the jail and a tape of the conversation between myself and the agents in our office. I also received the affidavit filed by the Los Angeles FBI Agent Allen Ducote. (Ducote is now an agent assigned here.)
Ducote's affidavit, aside from the boilerplate foundational averments, asserted that for the previous ten months he had been working on an undercover operation that had targeted a Bolivian cocaine trafficking cartel. A cooperating witness had developed contacts with individuals in Bolivia who were highly placed in the cartel and they had requested that Garcia be visited. (3)
According to the affidavit (which included the instructions supposedly given to the agents by Agent Ducote prior to their visit with Garcia, as well as the results of a subsequent debriefing), the agents were told not to elicit information about the case even to the point of interrupting the interview: they did not discuss the case, they did not pass any of the information along to anyone currently involved in the case, and none of the information was exculpatory. (4)
We also received the affidavit of Horacio N. Marco (the LAPD officer) and it echoed Ducote's statements as a firsthand Spanish-speaking participant supposedly versed in the law. These, apparently, were the documents filed with the court in June and were completely untrue. In fact, the tape and the transcript were tangible proof that belied the officers' assertions. The entire conversation with me can only be described as a debriefing about the case. (5)
We had discussed the trial strategy and the fact that my client was an innocent bystander. At one point during the conversation Alfredo called and we, alternately, spoke to him. Alfredo inquired if he could talk about the case on our telephone line and I assured him (as I had assured him about our conversations in the jail) that the attorney-client conversation is privileged and sacrosanct.
The transcript of the conversation with him at the jail was, likewise, a debriefing about our case and contained Garcia's repeated assertions to Chacho that he was innocent. (6) Garcia's version of the facts as they had previously been submitted to the court under seal were substantiated by the transcript. The lawyers' protestations that the case was discussed at length was also clearly shown.
At any rate, the story has a somewhat happy ending. The whole thing blew up in the government's face. We exposed not only Operation Skymaster but also whatever clandestine operation that had been operating out of Los Angeles. We filed a suit against the FBI under the Freedom of Information Act but that ultimately petered out when we kept running into the security exceptions. The court became more aware of the kinds of abuses that agents are capable of.
Alfredo? Well, the government offered a 5K1.1 motion and a sentence recommendation of 3 years, half of which had already been completed. Not bad for a 400 kilo importation charge. It took all of my coercive powers to convince Alfredo to take the deal and this only after Judge Butler had guaranteed that he would follow the recommendation. "I thought you told me your client was completely innocent?" Butler chided me at sentencing. I held my tongue. How could I tell him that Alfredo's substantial assistance consisted of telling the US Attorney's office that there are drugs in Bolivia?
Alfredo called me shortly after that and accused me of not having had confidence in him. "We could have beat this" he said. He called me a little after he got to the penitentiary and his attitude had begun to change. There, he encountered the horror stories warehoused there. He was aghast at the punishments meted out to others. He was such a short timer when he got there that he was already in the "out processing". Everyone thought he was a snitch. I guess he was, there are drugs in Bolivia. He called me a few years ago from Brazil. He was sitting on a beach, looking out at the ocean and thinking of me and wanted to thank me for his sunset.
1. The document that we filed stated that Garcia maintained that he was visited by the two men who had introduced themselves to him as his cousins. The elder of the two ("Chacho") initiated the conversation by saying, "My son, I wanted to see you."
He told Garcia that he had come on behalf of Garcia's family. As Garcia has been informed by defense counsel of the impending visit by his "relatives" and had been told by his wife and immediate family members that they had not sent anyone, he inquired further. "Chacho" responded that he had been sent by Miguel. Miguel Ardaya is a person known by Alfredo Garcia and is a person who resides in Santa Clara, Bolivia.
The conversation was initially vague. "Chacho" described "finishing the contract" and having the "lumber" (or railroad ties) ready. After initially considering that the two visitors were engaged in some sort of legitimate business with Mr. Ardaya, it became obvious to Alfredo Garcia that his visitors were speaking of something else. The "lumber" was apparently some sort of contraband. The two visitors were inquiring regarding his contacts.
The visitors counseled Afredo Garcia not to discuss too much about the case, to plead guilty, and that they would take care of his family. Alfredo Garcia related this situation to him: that he had been brought here under false circumstances and that he had fallen into the reverse sting.
"Chacho" informed Alfredo Garcia that "they" had already invested five hundred thousand dollars ($500,000) and were waiting on his instructions. He denied knowing what they were talking about. "Just tell us who to call so this contract won't be lost," was the response by "Chacho". "I don't know what you're talking about, let me call Miguel," was Alfredo Garcia's response. At that point, "Chacho" backed off.
The two men then proceeded to inquire about the information that defense counsel or Alfredo Garcia might have learned from Alberto Salguero. Garcia related to them that Salguero had spoken a lot of nonsense during the videotapes. He had told the agents about someone who owned sixty planes. "Chacho" then asked Garcia if he did not know who the person with the sixty planes was. The two men discussed different names, among them Roberto Suarez, a notorious Bolivian drug baron.
The two men also discussed the fee arrangements between Alfredo Garcia and his attorney. They discussed the payment of Alfredo Garcia's attorney's fees. However, they wanted the attorney's fees to be paid under the table so that they could not be traced back to them. Moraco suggested that the attorney not declare the fee.
At that point, I entered into the visiting cell. They repeated their considerations about paying the fee. I informed both of them that my fee was being paid by the court. However, if they wanted to pay a fee to the family, I told them, I would be willing to take the fee from the family. (I had not as yet filed a CJA fee petition.) I informed them that I could not accept the fee and not report it as income. The matter was dropped.
2. The agents, he told the court, had been involved in an ongoing investigation of "national importance" in California. They had received allegations that I had improperly taken payments and they felt that this was enough probable cause to initiate an investigation. An Assistant United States Attorney in California (later in Washington, D.C., identified by Sessions as a woman named Jimmy Warren) was seeking clearance to investigate. Supposedly, Sessions told Warren that I would not be involved in such a thing. However, the importance of the allegations (and in an effort not to appear guilty of "home cooking", he said) prompted him to give approval.
Sessions was not sure if the agents were not actually seeking permission after the fact of their visit or not. He thought it was a Saturday when they first called and they visited us on a Friday. The confidential informant is formerly a drug smuggler and the other man is a Los Angeles Policeman, he said. Sessions agreed to turn over "everything" he had to Madden and Soto, including the tape made at the jail cell and the transcript of a conversation had with me.
Sessions told the court that nothing involving the case was discussed, a matter that the attorneys knew firsthand to be false. The agents, he said, denied making any offers of money and that Garcia made any exculpatory statements. Their report, he said, stated that I did not act inappropriately. The investigation that the officers were involved in had petered out and that was the reason he could now reveal this information to us.
3. At the December 11 meeting with Judge Butler Sessions had stated that the Assistant US Attorney in Los Angeles had claimed that the allegation about me was the "probable cause" for the investigation. The affidavit from agent Ducote was initiated on May 14, 1990.
4. The assertions in the affidavit are discussed throughout this memo. One important point concerning the issue of disclosure to those directly involved in the case merits mention here. The AUSA and the agents have remained convinced that, despite all of the evidence to the contrary, Garcia was some sort of Bolivian kingpin. In this mania they were fed by their "intelligence".
Prior to any of this coming up, the US Attorney's office had fought our request for disclosure regarding any investigations concerning our client. They ultimately maintained that Alfredo was not being investigated in Bolivia. During the trial, I cross-examined a DEA agent regarding any information that might be contained in the intelligence databases here in the United States. Although the information initially given to us indicated that there was no information in the database, the agent testified that there now was "something".
We objected and the matter was not developed further. However, this transpired in front of the jury and there is no way of telling just what impact it had on the hung verdict. We suspect that this California investigation and the visit are contained in that database and, at the very least entered into our trial through that vehicle. The other point, of course, is that since the information filed by the agents in the affidavits is untrue, how can you believe them when they say that they haven't discussed the case with anyone?
5. The conversation held at our office was the second that we had had that morning with the agents. We had met them at a local coffee shop. It was during that conversation that a discussion of our clandestine fee was first broached. It was also discussed in our office and at the jail.
Supposedly, no recording apparently existed of the hotel conversation and the discussion did not appear in either the transcript nor the tape. We were not furnished with any other work product such as the reports of the agents.
6. Even assuming that Garcia's statements were self-serving, they were not anything but 100% exculpatory material. The remarks made by Garcia to the agents regarding a co-defendant's misfortunes were also completely exculpatory and the agents withheld that information from her defense counsel and, presumably, the Assistant US Attorney who prosecuted the case.
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