Associated Press, November, 15, 2016.
“NEW YORK —With Manhattan federal court jurors watching, an Assistant U.S. Attorney confronted a government informant after a defense attorney played the audio of recorded prison phone calls that the lawyer said proved that the informant in recent weeks engaged in drug trafficking from prison and lied about communicating with his son.
“The defense lawyer presented the evidence to the surprise of prosecutors who had grown increasingly disappointed with the informant and his son, another informant, after discovering last spring they were engaging in drug trafficking for years while earning up to $2 million working for the Drug Enforcement Administration and others to help capture suspected drug dealers.
“Both recently pleaded guilty to drug trafficking charges in the hopes of reducing potential prison sentences by cooperating with U.S. authorities.
“The Manhattan prosecutor, furious that a star witness compromised himself by lying, lash[ed] into him in front of the jury:
“Sir, you were told repeatedly that if you lied, your cooperation agreement would be ripped up?” the prosecutor said to the informant.
“Yes sir,” The informant responded.
“And you now understand that your cooperation agreement is getting ripped up, correct?” the prosecutor asked.
“No sir,” The informant said.
“You understand that you are not getting a 5K letter, correct?” referring to the letter that the government writes to a sentencing judge to request leniency in return for substantial cooperation.
“No sir,” The informant said.
“You should,” the prosecutor snapped.
“The revelation gave the defense reason for hope by unearthing the jailhouse conversations and confronting the informant.”
So what do you make of it?
David Zapp Nothing. It doesn’t surprise me.
Why? Didn’t you think that the revelation was explosive and would compromise the case?
David Zapp No.
David Zapp: Because the government is risk averse so it always has back up evidence especially when an informant is involved. No prosecutor would ever base his case on an informant. That is why cooperating defendants seeking to get their friends to surrender and cooperate mislead them by saying that because so and so is talking about you, you are going to be indicted. No prosecutor will ever indict anyone based solely on the word of one informant no matter how much the prosecutor believes the informant is telling the truth. An informant has a motive to lie, and a jury knows that. So there had to be other and better evidence to support their case, testimony from the agents, tape-recorded conversations, post arrest statements, and overtures by defendants who typically try to curry favor with the agents and make damning admissions. And since defendants typically don’t take the stand or present other evidence, the defense generally comes down to “liar liar pants on fire,” and you’re not going anywhere with that defense.
So why did the defendants go to trial then?
David Zapp Because they probably had to. A defendant has only three choices: go to trial, plead guilty, or plead guilty with cooperation. Cooperating was out of the question because it would be too explosive given who these defendants are (relatives to the president of Venezuela’s wife), and pleading guilty without more would expose them to enormous amounts of time in prison, although in retrospect it might not have been a bad idea. From what I know it seemed pretty clear that these folks were not major players and the judge who is known to be fair would have taken that into consideration. But the defendants would have had to declare themselves guilty and they may not have wanted to do that even though going to trial exposed them to great risks both as to conviction and sentence. So I guess it seemed to these defendants the lesser of three evils.
Well do you think the defense lawyers told them all that.
David Zapp Oh sure. These defense lawyers are well-respected lawyers from well-respected law firms, former prosecutors in that office, in fact, and probably prosecuted defendants just like their clients when they were in office, and that office nurtures integrity. So I have no doubt they acted honorably and ethically.
So you’re saying nothing surprised you?
David Zapp Well I was surprised that the prosecutors were caught off guard.
David Zapp: Because I would have expected them to have obtained the telephone recordings themselves and have reviewed them. They are certainly going to do that now! I can assure you! And secondly the Bureau of Prisons (“BOP”) could have and should have let the prosecutors know that the defense attorneys had requested them. They are on the same team, and as soon as the prosecutors would have gotten wind of the demand for the tapes, they would have asked for their own copies. It was a nice bit of showmanship on the part of the defense attorneys, but they knew they were far from victory.
The whole thing is a shame, really. In an ordinary case like this where there would be little risk of cooperating, these young defendants with no previous records would have cooperated and have been given “time served.” They were never the real targets.
And for all the storm and stress it was an open and shut case: two inexperienced defendants meeting with undercover seasoned agents who were probably taping every word they said and manipulating the conversation to get the most incriminating remarks on tape along with seasoned prosecutors prosecuting the case. A garden-variety drug case for the Southern District of New York. If you expected high drama (except for the double-dealing informant), and a long drawn out affair you would be disappointed. It took a week to try the case, if that, and they were convicted. Really, no surprises.
Well thank you, Mr. Zapp
David Zapp My pleasure.