International narcotics trafficking organizations are large, complex organizations, and investigations into organizations frequently involve multi-agency task forces involving law enforcement agencies from the U.S. and the country in which the agency is based. This means that U.S. law enforcement agencies are frequently working hand-in-hand with the law enforcement agencies of other countries where the rule of law may be weak and the law enforcement officials corrupt. This corruption can bleed over into the American judicial system and thereby taint any criminal case. When this happens, defense counsel must be prepared to raise the corruption as a defense.
How Does Corruption taint a Criminal Case in the U.S.
Any system of justice, including the U.S. system of justice is based upon the integrity of law enforcement investigators, the honesty of witnesses who provide testimony in court before judges and juries and the dedication to the truth of the finders of fact, whether they be judges or jurors. No system of justice can function as a true system of justice unless each part of the system does its job.
Unfortunately, powerful organized crime groups can and do corrupt law enforcement agencies and witnesses. The problem arises not only in Latin America. Southeast Asia and Central Asia but also within U.S. law enforcement agencies. When defending someone charged with an international drug trafficking conspiracy, the defense attorney must be willing to go after the prosecution’s case and ferret out corruption or dishonesty no matter where it exists.
Corruption in Foreign Countries
Some countries, unfortunately, have long histories of corruption. In the Americas, Mexico. Colombia, Venezuela Panama and Guatemala (just as examples) have long histories of political corruption, frequently involving narco-trafficking organizations. The same basic scenario plays out everywhere in the world. Local narcotics trafficking organizations will either intimidate or buy off law enforcement officials in their country. In exchange for the buyoff, law enforcement officials will “look the either way”, allowing the criminal organizations to operate with impunity. They may also provide the criminal organizations with information on ongoing investigations, and they may even provide criminal organizations with the names of individuals suspected of providing information to local or U.S. law enforcement. Sometimes, they will destroy evidence or kill people. It may also be convenient for law enforcement to frame an individual in order to misdirect a criminal investigation or remove someone who might stand in the way of the organization.
How high can the corruption go? Recently, the former Mexican Defense Minister was indicted in the United States, and the year before, the Mexican Security Minister was indicted for conspiring with narcotics trafficking cartels (he remains in U.S. custody). A Guatemalan presidential candidate was arrested in the U.S. in 2019 for conspiracy to import cocaine. Corruption can go all the way to the top, and corrupt officials at the top can corrupt everyone below them.
The primary problem with government corruption is that it taints entire investigations rendering law enforcement unreliable.
Corruption among U.S. Law Enforcement Officials
In the United States, there is a tendency, even amongst defense counsel, to assume that “corruption is a foreign problem. While American law enforcement is generally honest and more difficult to compromise that law enforcement is some other countries, one should not assume that corruption does not exist in American law enforcement agencies, and if it does exist, defense counsel needs the experience, the knowledge and the courage to go after it.
In Baltimore, Maryland recently, federal authorities arrested numerous officers on corruption charges resulting in the dismissal of 800 cases. Every year, an average of 250 Border Patrol Agents are arrested on corruption charges, and many of these arrests allege close ties with Mexican drug cartels. In one of the more infamous incidents of corruption, John Connolly, an Special Agent with the FBI, provided confidential information and protection to the head of an Irish Organized Crime Group resulting in the deaths of witnesses who had cooperated with the government.
Uncovering this corruption can be difficult, but it can lead to a dismissal if uncovered.
Incentives for “Cooperating Witnesses” to Lie
There are corrupt law enforcement practices that although dishonest are not illegal. For example, in Oregon v. Mathiason, the U.S. Supreme Court found that lies told to a defendant by the police did not affect the admissibility of a subsequent confession. Lying has now become a standard practice of U.S. law enforcement.
Even worse, the government even has the power to “buy” evidence. The government can and does offer witnesses a commodity even greater than money—freedom. A “cooperating witness” receives a reduction in his or her sentence, sometimes immunity, if the witnesses tells the “truth”, which the government interprets as testimony favorable to the government. Whitey Bulger, the head of the Irish Organized Crime Group that corrupted Special Agent Connolly was listed as a “cooperating witness” for his cooperation against the Italian Mafia in Boston. While working with the government, he was permitted to continue running his murderous criminal enterprise.
Just because this evidence is admissible does not mean it has to be accepted by a jury. An experienced trial attorney can effectively raise these issues before a jury and obtain an acquittal.
Raising Corruption as a Defense
Government corruption is a powerful defense, but it should not be raised in every case. The defense must be able to prove the existence of corruption through evidence that is admissible at trial. This requires investigation and hard work. If the defense is raised without evidence, defense counsel will lose all credibility, and the defendant is likely to pay a heavy price at sentencing. Also, if the evidence is to be raised, it must be raised strategically and with finesse.
Raising Corruption with U.S. Prosecutors
If there is corruption in a case, the Assistant United States Attorneys or Justice Department Trial Attorneys who are prosecuting the case are unlikely to know about it. Therefore, in many cases, bringing the corruption to the attention of prosecutors confidentially may be the best course of action. If a compelling showing can be made to the prosecutors, they may dismiss the charges. Even if a significant question is raised, that may be sufficient to cause the government to dismiss its indictment.
Raising Corruption at Trial
Government corruption is a good defense at trial, provided the evidence is properly presented and argued at trial. It begins with the receipt of “discovery” provided by the government, but defense counsel must be willing and able to investigate the investigation. This may require investigations in foreign countries, the use of private investigators either in the U.S. or abroad or both, the filing of motions or other activities. Corruption cannot be assumed; it must be proven. The successful defense at trial begins with pretrial preparation.
The successful pretrial preparation, however, must be able to capitalize on the investigation at trial. The defense counsel must have the knowledge, the experience and the courage to present the case at trial. We have tried over 200 jury trials and know how to properly present a law enforcement corruption case.
Using a Corruption Defense to Reduce a Sentence
Finally, even if corruption is not a defense to a charge, it may still be relevant in a sentencing. It can be a matter that explains or mitigates other conduct. Law enforcement officials cannot excuse or authorize a criminal violation, but if a defendant believes that he is authorized to engage in criminal conduct (even if he or she is not), that fact to reduce a sentence as well.