It is puzzling to think that the U.S. government has enough evidence to convict recently extradited Colombian paramilitaries of importation. They may well be conspirators in narcotics related activity in that they facilitate the distribution and transportation of drugs for a price or “tax,” but is there evidence that shows how each defendant individually knew the drugs were going to be imported into the United States? Why would the paramilitaries care where the drugs were going? Why would anyone tell them and thus compromise their security? Having knowledge of where the drugs were going will be hard for the U.S. government to prove.
Because of the Colombian government’s inability to stand up to terrorists, the AUC (Autodefensas Unidas de Colombia or United Self-Defense Forces of Colombia), unlike regular narcotics dealers, can be viewed more as an anti-terrorist group that had to take up the responsibility of protecting their way of life. This may be a stretch to those who know more about the activities of the AUC, but to a jury ignorant of the particulars of the group, they can be seen as a “contra” like group fighting the communists.
In testifying, DEA agents have always stressed that drug organizations are extremely closed mouthed, where one part of the operation does not know what the other parts are doing. They operate, as DEA agents likes to say, “on a need to know basis.” So if a defendant in a conspiracy to distribute narcotics (NOT to import) is involved in transporting drugs, it is entirely likely that the distributor would not tell the transporter where the drugs were going, when the drugs would be leaving port or what ship the drugs would be on, much less the drugs’ ultimate destination.
Even the distributors may not know of the ultimate destination. Most distributors have clients in Central American countries, Guatemala, Panama, Haiti and the Dominican Republic. Their business is with buyers in those countries and that is where their business ends. The buyers have no reason to tell Colombian distributors where the drugs are ultimately going. In fact, the buyers have every reason to keep this information from the distributors. This way they can be sure the distributors do not betray them and steal their clients. This fact is confirmed time and again by U.S. law enforcement and would be completely understandable to a jury.
Prosecutors often argue that Colombian distributors must know that drugs shipped to Mexico (and other Central American countries) are going to be imported into the United States. First of all, the law in most federal districts, (like New York and Washington D.C.) states that it is not enough that a defendant should know or must have known. The law states the government must show that the defendant actually knew.
Second of all, even if 98 percent of all drugs shipped to Mexico (and other Central American countries) go to the United States, that still means 2 percent of the drugs are being transported to other parts of the world. It is entirely reasonable, and thus possible, that the Mexicans, for example, may have the ability to send their drugs to non U.S. ports from Mexico but not from drug producing countries like Colombia. The amount of Euros now in the hands of Mexican drug dealers is telling of the burgeoning European market.
Defendants should not accept or believe that juries will convict them on the strength of expert testimony declaring that all drugs from Mexico wind up in the United States. Although some defendants have been convicted on the strength of this expert testimony, it is only because the defendants did not bring in their own experts to refute the argument.
It is thus frustrating to see so many defendants admit to importation when they did not know where the drugs were going. They may do so because they are being offered a plea bargain so good that they can not refuse it, which is perfectly understandable. But to plead guilty to ten years out of fear or because of the mistaken belief that a jury will be prejudiced against drugs or Colombians is a mistake. Juries are fair, and juries can get past the fact that defendants are Latin American drug dealers. They will hold the government to its obligation to prove beyond a reasonable doubt that the defendants are responsible for importing drugs into the United States.
In a recent case in Washington, D.C. where a defendant conceded distribution of tons of cocaine, the jury told the court they were “hopelessly deadlocked. The court would not accept such an outcome and sent them back in to deliberate. It took the jury 12 days to convict the defendant. The jury also refused to convict the co-defendant who was found to have fifty kilos of cocaine on his property in Colombia. Ultimately the co-defendant pled guilty, but only after the government promised to recommend a sentence of “time served,” an offer that can hardly be refused.
Defendants need to stop trying to defend themselves on the ground that they are not involved in narcotics activity. The only thing that matters is whether their activity, legal or not, led to the importation of drugs into the United States and whether or not the defendant was aware of it. So when attorneys try to scare defendants into taking pleas because juries are prejudiced, they should not listen to them. Evidence is what convicts. Lack of evidence is what acquits. The right to trial is a precious right. Do not sell it cheaply.