[A very sad case that probably happens very often in this country, but never gets the media coverage it deserves. We were shocked. The following was our response to a Colombian friend who asked me if I would represent the accused. Fortunately, in the Southern and Eastern Districts of New York, rarely, if ever, do we see this result in such a case.
Dear [friend,]
I had a chance to look at your friend’s case. And it’s a very sad case. Nobody helped the guy. No one stepped in. No one stopped the madness, receiving a dozen years more than he had to serve. His life is ruined. His reality is to live in an American prison for the better part of the prime of his life, removed from family, friends, and community. He is now and, for the foreseeable future, an American prisoner. All for being part of a tiny crew attempting to transport to the United States.
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The file reveals the following: the Defendant was arrested for being a crewmember of a “fast boat” that was laden with cocaine and destined for the U.S. He and the others were spotted by DEA aircraft, and upon realizing they had been spotted, the defendants threw all the bales of cocaine overboard. The crew was arrested and brought to the federal court. During or after the arrest, the defendant was asked what the bales contained and the defendant said, “conch.”
The defendant went to trial. The government presented their video showing the crew throwing the 32 bales of cocaine over the side. Using, the government said, some sophisticated detection device, the government was able to prove that the bales contained cocaine. The defendants were convicted.
The government in its pre-sentence memorandum stated that the crew did not merit “minor role” consideration or “safety valve” consideration both considerations that would have reduced his sentence substantially. The safety valve eligibly consists of telling the government all he knew, a mea culpa but without cooperating. That would have eliminated the 10-year mandatory minimum sentence.
The assigned counsel, for his part, presented no mitigating circumstances nor amplified the personal history and poverty of the defendant other than what was contained in the generic presentence report prepared by the probation department. He simply argued that the defendant should receive no more than the mandatory minimum sentence.
The judge sentenced the defendant and his co-defendants each to 19 and half years.
What happened?
No one cared. And everyone was at fault. The owners of the drugs turned their backs on these fishermen. The defense lawyer did not prepare the defendant for his “safety valve” interview, and the judge who had the most maturity and power did not use her discretion to limit the sentence to the ten- year mandatory sentence.
The one guy, ironically, that actually doesn’t bear any blame is the defendant who was flying blind through this whole process. And he won’t get any mercy on appeal. While a sentence can be appealed, the only time I have heard of a sentence being modified is when the court found the sentence too low! And his appellate court is known to be one of the most conservative appellate courts in the U.S.
Very sad. This case, if it had been handled right, would have resulted in a sentence of five years.
David Zapp and Johanna Zapp