07.23.16: The Government’s Opposition

The prosecution in the drug trafficking case against Cilia Flores’ nephews – Efrain and Francisco Flores – has released a response to the defense’s pretrial motions which provides explicit detail into the investigation, including  hidden-camera photographs of the two men and transcripts of conversations with undercover DEA agents. The document is titled “The Government’s Opposition to the Defendants’ Pretrial Motions”, and was prepared by the office of district attorney Preet Bharara.

The 78-page document outlines key aspects of the the case against the two men, and provides direct responses to the claims made by the defense in recent weeks in an attempt to have evidence dismissed.

The document describes the case as “a straightforward two-defendant drug-trafficking” one, and lays bare its fact. The government’s case is based on the following allegations:

• Efrain Campo Flores and Francisco Flores conspired with undercover DEA agents posing as Mexican drug traffickers to ship hundreds of kilograms of cocaine from Honduras to the United States. The source country of the drugs would be Venezuela. During a meeting with the undercover agents, the accused said, “[W]e’re at war with the United States”.
• The idea for the drug trafficking operation came from the accused. The defendants sought out the undercover DEA agents through an informant in Honduras in early October 2015.
• As a result of the early October meeting, two DEA informants posing as Mexican drug cartel representatives traveled to Caracas in late October to meet with the the defendants. At that meeting, Efrain said that he would be “the one in charge” of the venture, and that the cocaine was destined for New York City. Efrain told the informants that the drugs would be loaded onto an airplane at the Maiquetia International Airport in Venezuela, and that the authorities would not interfere in the operation because the plane would “depart from her as if… someone from our family were on the plane”.
• On October 26, Efrain told the informants that he wanted to “get started immediately”, and that he hoped the operation would earn him $20 million.
• At a meeting between informants and the defendants on October 26 in Caracas, Efrain and Francisco brought a kilogram of cocaine for the informants to inspect. Hidden cameras captured the moment. In the image below, Campo and Efrain handle the cocaine. Note that Campo is wearing gloves “to avoid leaving fingerprints on the Kilo”:

• The defendants met informants in Honduras “on or about November 5, 2015” to finalize the deal. Below, an image seized from Flores’ phone allegedly showing him in Honduras for that meeting:

 

• On November 10, 2015, the defendants flew to Port-au-Prince, Haiti in order to meet with an informant who was going to provide them with “millions of dollars to be used for, among other things, the defendants’ future purchases of cocaine in Venezuela”. It was at this meeting that the defendants were arrested. Below, an image of the two men in custody:

The document also outlines how the defendants confessed to their crime in conversation with the authorities during the 3.5 hour flight to New York City. The document claims that the defendants signed Miranda rights waivers in Spanish, which essentially means that the defendants understood that everything they were about to say could be used against them in court, and that they did not want to speak with a lawyer before speaking to the authorities on the airplane.

During that conversation, Efrain allegedly made a number of confessions, including:

• He wanted to smuggle drugs to make money. Flores told the authorities that he only earned $800 a week from a taxi company in Panama that he was involved with. He also said that his cousin, Erick Malpica-Flores, a high-ranking PDVSA official, “had rejected a proposal arrangement with in which Campo would seek to collect ‘commission’ i.e. bribes, from debtors of” PDVSA.

At the same time, Francisco allegedly confessed to several facts, including:

• That he understood that the informants posing as Mexican drug cartel representatives would take the cocaine they would provide them with to the United States.

The government argues that the confessions were entirely voluntary, and that this is evidenced by the fact that they both signed waivers to their Miranda rights, and that there was “no coercive conduct by law enforcement” whatsoever in obtaining the confessions.

On the defense’s claim that the government tampered and/or destroyed evidence in the case in order to strengthen its own case, the document states:

The defendants’ arguments regarding the alleged destruction of evidence are based almost entirely on guesswork and speculation. As a result, they have not met their burden of demonstrating that any evidence was lost or mishandled, much less evidence whose exculpatory nature was apparent at the time when there was an opportunity for the DEA to collect it. The issues they have raised do not rise to the level of a due process violation, and they can be addressed adequately at trial through questioning of witnesses and arguments to the jury.

Since the document is a response to motions filed by the defense, the court must now consider these motions in light of the government’s response. Having heard the two sides of the argument, the judge must now decide whether to allow the defenses’ motions, which could include dismissing evidence as inadmissible in court.

Lopez’s Appeal to be Decided Within 10 Working Days

A Caracas court will decide whether to allow the appeal by Leopoldo Lopez of his 14 year prison sentence for his role in the 2014 protests.

Lopez’s appeal hearing took place in Caracas yesterday over a period of about 12 hours. Lopez’s lawyer, Juan Carlos Gutierrez, said:

This was undoubtedly an extremely long session, and it was full of irregularities. But the most important thing is that we were able to show clearly and overwhelmingly the legal arguments that leave the trial that unjustly convicted Leopoldo Lopez to 14 years of prison null. It has already been proven that Lopez’s speeches were not at all violent, and that while being combative was absolutely adhering to the Constitution.

Yesterday, Spanish media published a letter by the prosecution’s star witness, a linguist named Rosa Amelia Asuaje, whose testimony played a critical role in Lopez’s conviction. Asuaje wrote an open letter published yesterday criticizing the trial judge for “manipulating” her testimony, and leaping to conclusions that she would never had made.

Even though yesterday’s hearing was supposed to be opened to the public, it took place behind closed doors.

Prosecutor in Lopez Case Supports Appeal

Franklin Nieves, one of the two prosecutors responsible for winning the government’s case against Lopez, released a new YouTube video yesterday calling on the appeal court to free Lopez.

Below, the video along with my translation:

Nieves: Leopoldo Lopez’s hearing is scheduled to take place in Hall Number [nine?] at the Court of Appeals, where the defense will be able to argue against the unjust sentence which he was given. As the prosecutor of an innocent man, I have asked for Leopoldo Lopez’s forgiveness and for that of his family not to rid myself of responsibility, but to speak the truth about what took place during that farce.
I feel an obligation to make a call to my fellow prosecutors and the judges at the Court of Appeals whom I know well. You know that we received threats and orders to fabricate that case against Leopoldo Lopez. Colleagues, this is the opportunity. This hearing is the opportunity to make this right and to put our consciences at rest, and to [make peace] with justice, our families and our country. Mora than [exhibiting] a particular political slant, you know that his trial was a farce where every one of his constitutional and legal rights were violated.Colleagues, the duty to do justice and annul that trial is in your hands.

Nieves fled Venezuela shortly after the conclusion of the Lopez trial, and is currently suspected to be living in the United States. He has spoken with the media about how he was instructed and threatened by his superiors to falsify the case against Lopez in order to secure a conviction.

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