In Washington, D.C. and perhaps elsewhere in the United States, Colombian defendants are being accused of a crime they did not necessarily commit, importation of cocaine. Colombian defendants plead guilty to importing cocaine into the United States when the crime they actually commit is cocaine distribution in Colombia, which is not a crime in the United States. But Colombian defendants are likely to cooperate with the U.S. government for fear of receiving long sentences. This results in the conviction other Colombians for importation.
This is how it works: The CNP (Colombian National Police) or the SIU (Special Investigation Units) uses wiretaps to investigate a group of individuals and builds enough evidence to prosecute them for drug dealing or money laundering. But rather than prosecute the individuals in Colombia, the CNP or SIU turns the evidence over to the U.S government. The United States then formally requests “judicial assistance,” as if they always had an interest in the case.
Prior to the investigation, of course, the U.S. had no interest in the Colombian suspects. In many cases the U.S. does not even know who they are. The problem is that the U.S. has to prove that the drug dealers knew they were exporting the cocaine into the United States. The U.S. government has no right to extradite a Colombian drug dealer simply because he is a drug dealer. It is only a crime in the U.S. if the drug dealer knows that the drugs are coming into the U.S. However, the United States cannot justify its extradition request by saying that all drug dealers in Colombia “know” that the drugs they sell in Colombia are going to the U.S. or Puerto Rico. U.S. law requires that the prosecutor actually prove that the drug dealers know.
In the case against Samuel Lopesierra, a.k.a. the “Marlboro man,” nine people were extradited from Colombia. Some were actual drug dealers who sold their drugs in Venezuela and Colombia. Others were money launderers who had no direct connection to drugs. Yet most pled guilty, stating that they knew the drugs were coming into the U.S., which was factually untrue. Those who said they were guilty convicted themselves by offering the government evidence that it was previously unaware of. Shockingly, the money launderers pled too and cooperated. A defendant who pleads guilty to something he or she did not do is extremely worried and frightened. Prosecutors are aware of this and capitalize on that fear.
A defendant should not plead guilty until he or she has had a chance to review their evidence with the aid of an American lawyer. A lawyer who knows what he or she is doing and is not afraid of the prosecution. A defendant who delays their decision to plead guilty is doing the right thing.
The evidence against Lopesierra came exclusively from the individuals who were extradited and pled guilty. There was no evidence from Colombia. There were wiretaps, but without the defendants’ cooperation, the wiretaps meant nothing.
Defendant’s need to know what is happening in Washington, D.C. Right now there is a case there where the only evidence against a defendant (I am advised that he is still at Combita) is that he forged a passport, absolutely not a crime against the U.S. But he is being extradited on an importation charge, and in all likelihood he is going to plead guilty and cooperate.
A defendant must take a good look at the evidence in his or her case, without letting fear affect his or her judgment. A traditional importation case should look like this: People from an “oficina” are arrested in New York. They claim that Juan Perez from Cali is their boss. There are tapes of Juan Perez in Colombia talking about drugs with his employees in New York. That is a legitimate importation case. It starts in the U.S and is investigated in the U.S. Drugs may even be seized in the U.S. This is a case that the U.S. government has every right to prosecute.
Lawyers in Colombia should tell the extradition courts in Colombia that it is a grave mistake to make decisions based only on the language of an indictment. Colombia needs to amend its law to require the U.S. government to produce proof, even slight proof, of importation. Just accepting an agent’s affidavit in importation cases is insufficient. It plays into the cynical notion held by many Americans that Colombia will sell out its own.