sandra avila beltran motion to dismiss her narco trafficking case

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 04-CR-20154-KMM

UNITED STATES OF AMERICA, Plaintiff, vs.

SANDRA AVILA-BELTRAN, Defendant. _________________________________/

MOTION TO DISMISS INDICTMENT

DUE TO PROSECUTORIAL MISCONDUCT

Defendant Sandra Avila-Beltran, through undersigned counsel, hereby, requests that this

Court dismiss the indictment that was returned against Ms. Avila-Beltran on March 4, 2004.

This motion rests upon Ms. Avila-Beltran’s Fifth Amendment right to Due Process and upon this

Court’s supervisory power to ensure that fundamental fairness in the judicial process is served.

FACTS1

1 This statement of facts has been gleaned from a number of sources. It should not

be considered to be an admission by the defendant, nor should it be viewed as a substitute for tangible or testimonial evidence.

On or about March 12, 2004, the federal grand jury returned a two-count indictment

against Sandra Avila-Beltran and six others. (Court Docket # 3.) Count One charged Ms.

Avila-Beltran with conspiracy to import five (5) kilograms or more of a substance containing a

detectable amount of cocaine, commencing in or about January of 1999 and continuing until

March 12, 2004, in violation of 21 U.S.C. §§ 952(a), 963 and 960(b)(1)(B). Count Two charged

Ms. Avila-Beltran with conspiracy to possess with intent to distribute five kilograms or more of a

Case 1:04-cr-20154-KMM Document 219 Entered on FLSD Docket 01/11/2013 of 21

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substance containing a detectable amount of cocaine, commencing in or about January of 1999

and continuing until March 12, 2004, in violation of 21 U.S.C. §§ 841(a)(1), 846 and

841(b)(1)(A)(ii). The indictment also contained a forfeiture allegation. (Id.)

On an unknown date in 2006 or 2007, the United States filed a request with the Republic

of Mexico for the extradition of Sandra Avila-Beltran.2 Ms. Avila-Beltran was provisionally

arrested in Mexico on September 27, 2007. On an unknown date, the Republic of Mexico

denied the United States’ extradition request. The grounds for Mexico’s denial are not reliably

known. Newspaper reports in Mexico suggest that Mexico’s denial was predicated on the fact

that Ms. Avila-Beltran was criminally charged with the same offenses in Mexico and acquitted.

Under these circumstances, double jeopardy considerations would have barred Ms.

Avila-Beltran’s extradition. On February 5, 2010, the United States Embassy in Mexico

withdrew its request for formal extradition. Ms. Avila-Beltran was not, however, released from

custody.

On February 11, 2010, a second request for Ms. Avila-Beltran’s provisional arrest was

submitted to the Republic of Mexico. This request was granted on February 24, 2010, by Judge

Olga Sanchez Contreras of the Fifth District of the Federal Criminal Process of the Federal

District. On February 26, 2010, Mexico issued an order establishing that the United States had

sixty days to file a formal petition for Ms. Avila-Beltran’s extradition. The United States

submitted its second request for extradition on April 22, 2010.

2 In preparation for this motion, the defense has requested disclosure of the

extradition documents that are in the possession and control of the government. To date, the government has not complied with this request. Under these circumstances, the facts presented by the defense regarding Ms. Avila-Beltran’s extradition are necessarily vague and present the defense’s best effort to provide accurate information. The defense maintains that it cannot fully advance this motion in the absence of the requested discovery.


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The United States’ second extradition request contained the following supporting

documents:

(1) A sworn statement, dated March 26, 2010, authored by Assistant United States

Attorney (AUSA) Eric E. Morales. This document established that AUSA Morales is an expert

in United States law and that he was familiar with the charges and evidence in the case against

Ms. Avila-Beltran. It also included a description of the charges and pertinent United States law,

examined the applicable statute of limitations, and included a summary of the facts and evidence.

The statement also identified Avila-Beltran. (United States’ Request for the Extradition of

Sandra Avila-Beltran, Sworn Statement of AUSA Eric Morales; Exhibit A.)

(2) A sworn statement, dated March 26, 2010, authored by United States Drug

Enforcement Administration (DEA) Agent Stephen Kepper. This document established Agent

Kepper’s training and experience, and included a summary of the alleged facts and evidence

against Avila-Beltran. (United States’ Request for the Extradition of Sandra Avila-Beltran

Sworn Statement of DEA Agent Stephen Kepper; Exhibit B.)

(3) A sworn declaration, dated March 22, 2010, signed by Juan Carlos Lopez Correa

(aka: Pedro Juan Osorio). In this document, Lopez Correa stated that he was part of a group that

imported cocaine from Colombia to the United States through Mexico, and that he participated in

drug-related transactions with Avila-Beltran, Juan Diego Espinosa-Ramirez, and others.

According to Lopez Correa, in 2000 and 2001, he participated in numerous transactions

involving narcotics with Avila-Beltran, who frequently worked with Juan Diego. On numerous

occasions, Lopez Correa made arrangements so the organization, including Avila-Beltran, could

receive shipments of cocaine in Mexico. Avila-Beltran then made the arrangements to ship the

loads of cocaine into the United States. Lopez-Correa also helped Juan Diego ship large


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amounts of money resulting from the drug trade to Colombia in return for a fee.

Lopez Correa further stated that, in June of 2001, Avila-Beltran and Juan Diego agreed to

provide 100 kilograms of cocaine on credit and that Avila-Beltran introduced Lopez Correa to

three associates who had supply routes through which the cocaine could be shipped into the

United States. The 100 kilogram load of cocaine was later shipped to Lopez Correa’s associates

in Chicago, Illinois. Because the money to pay Avila-Beltran and Juan Diego for the cocaine

shipment was seized by law enforcement officers from a messenger in Chicago, Illinois, and

because Lopez Correa was unable to collect the proceeds from the sale of part of the cocaine, he

incurred a debt to Avila-Beltran and Juan Diego. On September 14, 2001, Lopez Correa had a

telephone conversation with Juan Diego and Avila-Beltran regarding the outstanding drug debt.

In October or November of 2001, Lopez Correa, Avila-Beltran, Juan Diego

Espinosa-Ramirez, and Mauricio Espinosa-Ramirez participated in negotiating and arranging a

9,000 kilogram shipment of cocaine from Colombia to the United States through Mexico.

Lopez Correa intended to pay Juan Diego and Avila-Beltran for the debt involving the 100

kilogram shipment of cocaine in Chicago from the proceeds of the 9,000 kilogram shipment.

Juan Diego and Avila-Beltran were responsible for storing the 9,000 kilogram shipment in

Mexico, and were responsible for either selling the shipment in Mexico or making arrangements

to transfer the shipment to the United States. Lopez Correa was arrested by DEA agents on

December 4, 2001, and began cooperating with law enforcement officers thereafter. (United

States’ Request for the Extradition of Sandra Avila-Beltran, Declaration of Juan Carlos Lopez

Correa; Exhibit C.)

(4) A sworn declaration, dated March 10, 2010, signed by Mauricio

Espinosa-Ramirez. In this document, Mauricio stated that, in 2000, he began working in a


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drug-trafficking organization, primarily based in Mexico, which was dedicated to the

transportation of large shipments of cocaine from Colombia to the United States through Mexico.

Mauricio met Avila-Beltran in 1999. Avila-Beltran assisted in the delivery of a 100 kilogram

shipment of cocaine to Juan Carlos Lopez Correa in Chicago. Following the delivery of the 100

kilogram shipment, Lopez Correa owed a debt for the cocaine. (United States’ Request for the

Extradition of Sandra Avila-Beltran, Declaration of Mauricio Espinosa-Ramirez; Exhibit D.)

(5) A sworn declaration, dated March 26, 2010, signed by Juan Diego Espinosa

Ramirez. In this document, Juan Diego stated that, in 2000, Juan Diego worked for a

drug-trafficking organization, primarily based in Mexico, that was dedicated to the transportation

of large shipments of cocaine from Colombia to the United States through Mexico. Juan Diego

met Avila-Beltran in 1999 and, thereafter, they entered into a romantic relationship. In 2001,

Avila-Beltran participated in a cocaine shipment with Juan Carlos Lopez Correa. After the

cocaine was delivered to the United States, Lopez Correa became indebted for the payment of the

cocaine. On September 14, 2001, Juan Diego, Avila-Beltran, and Lopez Correa were parties to

a telephone conversation regarding the money that Lopez Correa owed for the shipment of

cocaine. During the telephone call, Juan Diego asked Lopez Correa to pay for the cocaine

shipment. (United States’ Request for the Extradition of Sandra Avila-Beltran, Declaration of

Juan Diego Espinosa-Ramirez; Exhibit E.)

On June 7, 2012, following the review by a panel of judges, the Secretary of Foreign

Affairs for the Republic of Mexico assented to the extradition of Ms. Avila-Beltran.

(Extradition Order, Secretary of Foreign Affairs for the Republic of Mexico; Exhibit F.) In

support for its extradition order, the Secretary made clear that the decision relied heavily on the

statements provided by AUSA Morales, Agent Kepper, Lopez Correa, Mauricio


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Espinosa-Ramirez and Juan Diego Espinosa-Ramirez in determining that “Sandra Avila Beltran

is probably responsible for the crime of conspiracy to possess with intent to distribute cocaine in

the United States of America.” (Extradition Order, Secretary of Foreign Affairs for the Republic

of Mexico; Exhibit K.)

As will be discussed in detail, infra, evidence that establishes that much of the

information contained in the declarations that were provided to the Republic of Mexico by the

United States was false or materially misrepresented, and AUSA Morales and others were aware

of the misrepresentations prior to submitting the declarations to the Mexican tribunal.3

LAW AND ARGUMENT

I. Prosecutorial Misconduct

3 The fact that AUSA Morales is not the attorney of record for the government in

the immediate matter does not relieve the current AUSA of her responsibility to recognize and respond to misconduct. The American Bar Association Standards for Criminal Justice, Prosecution Function, dictate the steps that a prosecutor should follow when he or she becomes aware of the fact that “another person associated with the prosecutor’s office is engaged in action, intends to act or refuses to act in a manner that this a violation of a legal obligation to the prosecutor’s office or a violation of law.” ABA Standards for Criminal Justice: Prosecution and

Defense Function, 3d ed., 1993 American Bar Association, Standard 3-1.5.

It has long been recognized that the government attorney in a criminal prosecution “is not

an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United

States, 2985 U.S. 78, 88 (1935); Cone v. Bell, 556 U.S. 449, 451 (2009); United States v. Agurs,

427 U.S. 97, 111 (1976). As a “servant of the law,” the prosecutor’s aim is twofold; “that guilt

shall not escape or innocence suffer.” Id. “It is as much his duty to refrain from improper

methods calculated to produce a wrongful conviction as it is to use every legitimate means to


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bring about a just one.” Id. See e.g., ABA Standards for Criminal Justice: Prosecution and

Defense Function, 3d ed., 1993, American Bar Association, Standard 3-1.2(c) (The duty of the

prosecutor is to seek justice, not merely to convict.”). “These [principles] are not mere words but

a mandate and a charter.” In re Stewart, 571 F.2d 958, 967 (5th Cir. 1978).

Actions through which a prosecutor can unfairly prejudice an accused are numerous and

varied. Traditionally established forms of misconduct include the knowing use of false

testimony and evidence. Wiman v. Powell, 293 F.2d 605, 608 (5th Cir. 1961)(conviction

obtained through the use of false evidence must fall), citing, Napue v. People of State of Illinois,

360 U.S. 264, 269 (1959); Davis v. Zant, 36 F.3d 1538, 1550 (11th Cir. 1994), citing, Giglio v.

United States, 405 U.S. 150 (1972); and, Brown v. Wainwright, 785 F.2d 1457, 1464 (11th Cir.

1986). A Giglio violation, for example, occurs when “undisclosed evidence reveals that the

prosecution knowingly made false statements or introduced or allowed trial testimony that it

knew or should have known was false.” Smith v. Secretary, Department of Corrections, 572

F.3d 1327, 1333 (11th Cir. 2009), citing, Agurs, 427 U.S. at 103-104; Giglio v. United States, 405

U.S. at 153. The same violation occurs when the government “although not soliciting false

evidence, allows it to go uncorrected when it appears.” Id., quoting, Giglio v. United States, 405

U.S. at 153.

Prosecutorial misconduct also arises when the government knowingly makes material

misrepresentations and misstatements of fact. United States v. Ash, 413 U.S. 300, 320

(1973)(misconduct includes the manipulation of witness statements); Brooks v. Kemp, 762 F.2d

1383, 1403 (11th Cir. 1985)(en banc)(prosecutor’s misstatement of fact, when placed before a

jury or tribunal prior to deliberation, can approach a level equivalent to the knowing use of false

evidence), judgment vacated on other grounds, Kemp v. Brooks, 478 U.S. 1016 (1986); Davis v.


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Zant, 36 F.3d at 1548 n.15 (“Little time and no discussion is necessary to conclude that it is

improper for a prosecutor to use misstatements and falsehoods. It is a fundamental tenant of the

law that prosecuting attorneys may not make material misstatements of fact . . . .”); United

States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985)(“A prosecutor is . . . forbidden to make

improper suggestions, insinuations, and assertions calculated to mislead . . . .”); Smith v.

Secretary, Department of Corrections, 572 F.3d at 1333, citing, United States v. Alzate, 47 F.3d

1103, 1110 (11th Cir. 1995) (Giglio violation does not merely apply to explicit false

representations; it also applies to implicit representations.).

Indeed, the unfair and misleading manipulation of evidence formed the basis for one of

the Supreme Court’s seminal misconduct decisions in Berger v. United States, where the

prosecuting attorney “overstepped the bounds of . . . propriety and fairness” by:

. . . misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous and improper manner.

295 U.S. at 84.

Likewise, a prosecutor unfairly prejudices an accused and commits misconduct when he

or she fails to supervise an investigation by prescribing procedures to be used by agents, or when

he or she fails to screen evidence with a view to eliminating unreliable statements and

identifications. United States v. Ash, 413 U.S. at 320, n.16. It has, in fact, been long held that

“[t]he means [a prosecutor] employs are as important as the ends he seeks to achieve.” United

States v. Beckett, 706 F.2d 519, 522 (5th Cir. 1983). Moreover, misconduct, and the concomitant

violation of a defendant’s Constitutional right to Due Process, can occur “irrespective of the good


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faith or bad faith of the prosecution.” Cone v. Bell, 556 U.S. at 541, citing, Brady v. Maryland,

373 U.S. 83, 87 (1963).

These principles are also heavily embedded in standards for the legal profession. ABA

Standards for Criminal Justice: Prosecution and Defense Function, 3d ed., American Bar

Association, Standard 3-2.8 (prosecutor should not intentionally misrepresent matters of fact or

law to the court); State Bar of Florida Rules of Professional Conduct, 7/1/12, Rule 4-3.3 (lawyer

shall not knowingly make a false statement of material fact or law to a tribunal; fail to disclose a

material fact to a tribunal; permit a witness to offer testimony or other evidence the lawyer knows

to be false); State Bar of Florida Rules of Professional Conduct, 7/1/12, Rule 4-3.4(b) (lawyer

shall not fabricate evidence, counsel or assist a witness to testify falsely).4 This Court’s local

rules further establish:

Acts and omissions by an attorney admitted to practice before this Court, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct, Chapter 4 of the Rules Regulating the Florida Bar shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney/client relationship.

(Local Rules for the U.S. District, S.D.Fla., Rules Governing Attorney Discipline, Rule 1.)

Despite the vital and indispensable nature of these precepts, in this case, there exists

evidence that, when the government submitted its request for extradition to the Republic of

Mexico, it was aware of the fact that the sworn statements and declarations contained material

misstatements and false information. Support for this assertion has been gathered from

numerous sources:

4 This Court’s local rules that govern attorney conduct make applicable the Rules of

Professional Conduct of the Florida Bar and, to the extent that they are not inconsistent with the local and Florida rules, the American Bar Association Model Rules of Professional Conduct. (Local Rules for the U.S. District, S.D.Fla., Rules Governing Attorney Discipline, Rule 1.)


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(1) Sources involving Juan Diego Espinosa-Ramirez:

(a) Juan Diego’s Sentencing Hearing:

In preparation for sentencing, the United States Probation Officer assigned to Juan

Diego’s case prepared a presentence investigation report that contained gross misstatements

involving the degree of his involvement in the alleged conspiracy. These erroneous statements

included the alleged fact that Juan Diego provided 100 kilograms of cocaine to Lopez Correa in

Chicago and that Lopez Correa owed Juan Diego a resulting debt for the shipment. In order to

correct this misconception, Juan Diego insisted that he be provided a polygraph examination.

Following a consultation between Juan Diego’s attorney, Maria Elena Perez, and AUSA

Morales, the parties agreed to conduct the polygraph and that the results of the polygraph would

be admissible for or against Juan Diego at sentencing. (Reporter’s Transcript (RT) 10/7/09 at 8

& 16, Exhibit G; DEA Report of Investigation 8/13/09, Exhibit H.) The polygraph examination,

which was administered on August 13, 2009, revealed that Juan Diego did not participate in the

negotiation or delivery of the 100 kilogram shipment of cocaine to Chicago and, instead,

established that Juan Diego only became involved in the collection of the debt, well after the sale

of the cocaine was consummated.5 (Id.)

Juan Diego Espinosa-Ramirez was sentenced on October 7, 2009.6 His sentencing

hearing was attended by AUSA Morales and DEA Agent Kepper. (RT10/7/09 at 2.) During

5 It is noteworthy that Juan Diego’s polygraph examination occurred on August 13,

2009; while the declarations were dated March 10, 2010, through March 26, 2010, and were submitted to the Republic of Mexico on or about April 22, 2010. This means information that contradicted the declarations was unquestionably in the government’s possession at least eight months before the declarations were signed and submitted.

6 It is, again, noteworthy that the date of Juan Diego’s sentencing hearing preceded the date of the declarations that were submitted to the Republic of Mexico by at least six months.


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the sentencing hearing, AUSA Morales made the following admissions regarding the limited role

played by Juan Diego in the alleged conspiracy:

· AUSA Morales admitted that Juan Diego did not broker, coordinate, negotiate, organize, or supervise the shipment of 9,000 kilograms of cocaine. Although Juan Diego was aware of the shipment, his brother, Mauricio Espinosa-Ramirez, was responsible for coordinating the transfer. (RT 10/7/09 at 4-6.)

· AUSA Morales admitted that Juan Diego’s role in the alleged conspiracy involved

completing certain tasks for Mauricio, including collecting money that was due to Mauricio and counting kilograms of cocaine. Juan Diego was not responsible for organizing or coordinating any of the cocaine shipments. (Id. at 6-7.)

· AUSA Morales admitted that the government had no evidence to contradict the

fact that Juan Diego’s role was “akin to that of a warehouse boy.” Juan Diego’s knowledge of the conspiracy was limited to counting large quantities of drugs as they came into the warehouse. He was not responsible for storing the cocaine in Mexico. (Id. at 7-10.)

· With regard to the 100 kilogram shipment of cocaine to Lopez Correa in Chicago,

AUSA Morales did not contest the fact that Mauricio Espinosa-Ramirez asked Juan Diego to attempt to collect the debt. Mauricio made this request because Juan Diego was a long-time family friend of the debtor (Lopez Correa). AUSA Morales specifically stated that the government could not confirm that Juan Diego “took any part in the actual sale or anything to do before the debt came up and the debt was being collected.” (Id. at 7-9.)

· AUSA Morales made no attempt to contradict the court when it instructed the

probation officer to modify the presentence investigation report to reflect that “Mr. Espinosa Ramirez did not have any equity interest in the drugs that he helped count and partly collect,” or that “he was not the person who was responsible for storing the cocaine in Mexico.” (Id. at 10.)

· AUSA Morales admitted that the government could not confirm that Juan Diego

was second in command of the drug cartel, as erroneously reflected in the presentence investigation report. (Id. at 12.)

· AUSA Morales admitted that information received indicating that Juan Deigo

played a leadership role in the alleged conspiracy proved to be unsubstantiated and unreliable. There was no evidence to establish that Juan Diego managed or supervised any other participant. (Id. at 14-15.)

· AUSA Morales agreed that Juan Diego deserved a two-level adjustment for the

mitigating role he played in the alleged conspiracy. (Id. at 17-18.)


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These admissions by AUSA Morales regarding the limited role played by Juan Diego

stand in stark contrast to statements contained in the declarations (that AUSA Morales compiled

and submitted to the government of Mexico) and which paint Ms. Avila-Beltran and Juan Diego

as major participants, who arranged, negotiated, organized, and controlled numerous shipments

of cocaine. In fact, many of AUSA Morales’ admissions at Juan Diego’s sentencing hearing are

irreconcilable with the information submitted to the Mexican government.

(b) The Involuntary Nature of Juan Diego’s Declaration:

Support for the conclusion that the government knowingly included false statements and

material misstatements of fact in the declarations has been provided by Juan Diego

Espinosa-Ramirez, who is prepared to testify in this matter on behalf of the defense. According

to Juan Diego, his declaration was not freely and voluntarily provided and he was denied the

advice of counsel prior to signing the document.

The government presented the declaration to Juan Diego while Juan Diego was in custody

in Miami, Florida. Juan Diego was removed from his cell block and transported to a meeting

room in the prison, where AUSA Morales and Agent Kepper were waiting. AUSA Morales

presented the typed declaration to Juan Diego and instructed him to sign the document. Juan

Diego attempted to read the declaration, disagreed with the contents, and asked to speak with his

attorney, Ms. Perez. In response, AUSA Morales and DEA Kepper explained that they

attempted to contact Attorney Perez, but that she had not responded to their calls.7 Instead,

AUSA Morales explained the document to Juan Diego, and AUSA Morales and Agent Kepper

7 Attorney Perez is prepared to testify that no one from the United States Attorney’s

Office or from the DEA made an effort to contact her. In contrast, Ms. Perez was aware of the fact that AUSA Morales wanted Juan Diego to sign a declaration and, during communications with AUSA Morales, strongly insisted that she be present during any communications with Juan Diego.


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repeatedly assured Juan Diego that any questionable statements contained in the declaration

“were no big deal.”8 Under pressure from the government, and fearing that he would face

consequences for failing to assist the government, Juan Diego finally signed.

(c) Information Provided During Juan Diego’s Free Talk:

On April 7, 2009, and on April 15, 2009,9 Juan Diego Espinosa-Ramirez was interviewed

by AUSA Morales, Agent Kepper, and IRS Agent Marlene Exposito. During this interview,

Juan Diego made it clear that his role in the narcotic business only involved the collection and

transportation of proceeds on behalf of, and at the direction of, his brother, Mauricio

Espinosa-Ramirez. (DEA Report of Investigation 4/10/09; Exhibit I.) Juan Diego described his

assistance to his brother as sporadic and explained that he collected a small commission of

$1,000 to $2,000 for his efforts. (Id.) Juan Diego also assisted by “counting kilograms” of

cocaine. When asked about his involvement with the 100 kilogram shipment of cocaine that

was sent to Chicago, Juan Diego explained that, as a result of problems with the shipment, the

recipient incurred a debt to Mauricio Espinosa-Ramirez; a debt that Juan Diego estimated to be

$700,000. (Id.) Juan Diego became involved in the collection of the debt at Mauricio’s

request. (Id.)

8 See ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d

ed., 1993 American Bar Association, Standard 3-3.1(d) (“A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. A prosecutor should not advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give.”); State Bar of Florida Rules of

Professional Conduct, 7/1/12, Rule 4-4.2 (“. . . a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”)

9 Events that precede the date of the extradition declarations by nearly one year.

Most tellingly, the DEA report establishes that Juan Diego exonerated Sandra Avila


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Beltran of involvement in the alleged conspiracy. “When asked about AVILA’s involvement in

narcotics trafficking, Juan ESPINOSA did not provide any pertinent information and further

stated that he did not know of AVILA’s involvement in narcotics trafficking.” (Id.) Juan

Diego further “stated that as far as he knew, AVILA was a wealthy female who earned income by

loaning money to others for construction projects, etc.” (Id.) When specifically asked about

Avila-Beltran’s involvement in the 100 kilogram shipment of cocaine that was sent to Chicago,

Juan Diego stated that “he had no knowledge of AVILA’s involvement in this shipment either.”

(Id.) When asked why Avila became involved in the debt that Lopez Correa owed for the 100

kilogram shipment of cocaine to Chicago, Juan Diego explained that Lopez Correa owed

Avila-Beltran a separate debt which totaled approximately $10,000. (Id.) Juan Diego further

explained that, when he discussed the drug-related debt with Lopez Correa, he included the

separate debt owned to Avila-Beltran in an effort to shame Lopez Correa into paying the total

debt. (Id.)

When the admissions made by AUSA Morales during Juan Diego Espinosa-Ramirez’s

sentencing hearing, combined with the results of Juan Diego’s polygraph examination, combined

with the statements made by Juan Diego during his free talk, combined with the circumstances

under which Juan Diego’s declaration was signed, are juxtaposed against the statements

contained in the declarations that were submitted to the Republic of Mexico, it becomes evident

that the declarations are riddled with falsehoods and misstatements. There appears to be no

factual support for statements contained in the declarations which asserted that Juan Diego and

Ms. Avila-Beltran provided loads of cocaine to Lopez Correa and/or others; maintained a level of

ownership in the cocaine; were responsible for the negotiating, arranging or directing the transfer

of loads of cocaine from Colombia; or participated in the negotiation and delivery of 100


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kilograms of cocaine to Lopez-Correa in Chicago.

(2) Admissions by AUSA Cynthia Wood:

On December 19, 2012, AUSA Wood responded by letter to discovery requests that were

submitted by undersigned counsel. As detailed below, information contained in Ms. Wood’s

letter further establishes that false and misleading statements were contained in the United

States’ request for Ms. Avila-Beltran’s extradition.10 (Letter from AUSA Wood, 12/19/12;

Exhibit J.)

(a) AUSA Wood admitted that Juan Diego Espinosa-Ramirez received an

adjustment for the minimal role he played in the offense; the adjustment was based on statements

made by Mauricio Espinosa-Ramirez and by the lack of supporting documentation by Mexican

authorities. (Id.) In order to receive a downward adjustment for the role Juan Diego allegedly

played in the offense, however, it was not possible for him, or Ms. Avila-Beltran, to have

participated in the conspiracy at the level alleged in the declarations that were provided to the

Republic of Mexico.

(b) AUSA Wood’s letter described an interview with Mauricio

Espinosa-Ramirez that was conducted by Mexican prosecutors and an attorney from the United

States Office of International Affairs in December of 2011. During that interview, Mauricio

signed a sworn statement that exculpated Ms. Avila-Beltran. (Id.) This essential evidence –

which has been requested by the defense, but is yet to be disclosed – establishes that statements

10 Based on the information contained in Ms. Wood’s letter, the defense has made

numerous requests for discovery from the government. At this writing, those requests have gone unanswered despite the fact that the requests involve evidence to which the defense is undoubtedly entitled. Under these circumstances, the defense cannot fully develop the arguments contained in this motion and, again, requests that this Court order the government to disclose this essential evidence.


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made by Mauricio Espinosa-Ramirez in his declaration to the government of Mexico, implicating

Ms. Avila-Beltran in the alleged cocaine trafficking, were false.

(c) AUSA Wood admitted that Lopez Correa perjured himself before the

Federal Grand Jury by referring to himself as “Pedro Osorio.” (Id.) This evidence establishes

that Lopez Correa was not forthcoming with the government and calls into question all of the

statements he made in his declaration to the Republic of Mexico.

(d) AUSA Wood disclosed a DEA report detailing an interview with Juan

Diego Espinosa-Ramirez in which Juan Diego exculpated Ms. Avila-Beltran. (Id.) As

explained, supra, at 13-14, this information directly impugns the statements Juan Diego made in

his declaration provided to the government of Mexico.

(e) AUSA Wood’s letter described “a number of incarcerated individuals who

have been interviewed in connection with this matter,” some of whom did not know Ms.

Avila-Beltran and never dealt with her. (Id.) Ms. Wood’s letter also described an government

witness/informant identified as “E.R.O.,” who stated he had seen Ms. Avila-Beltran three or four

times, “and that she was not involved in the drug business but was involved in selling jewelry to

narcotics traffickers.” (Id.) Again, this evidence calls into question the statements that were

included in the declarations that were submitted to the Republic of Mexico.

In light of the admissions contained in AUSA Wood’s letter – which the defense

anticipates will be further developed with the disclosure of the evidence that underpins the

admissions – there is good cause to believe that the sworn declarations (which were written and

developed by representatives of the United States government, and signed under pressure by

affiants whose veracity was highly questionable) contain false information, misstatements of fact,

and material omissions that strongly influenced the outcome of the extradition decision. In


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addition, the evidence clearly established that the United States government was well aware of

these defects prior to submitting the declarations to the Republic of Mexico.

Furthermore, there exists firm evidence to establish that the Mexican tribunal that

reviewed the United States’ request for extradition heavily relied upon the false information

contained in the declarations. The extradition order issued by the Republic of Mexico

establishes that the documents submitted by the United States were “analyzed jointly and related

to one another” to arrive at the conclusion that Sandra Avila-Beltran is “probably responsible for

the crime of conspiracy to possess with intent to distribute cocaine in the United States of

America.” (Extradition Order, Secretary of Foreign Affairs for the Republic of Mexico, at

105-106; Exhibit K,) In so finding, the Mexican tribunal and the Secretary of Foreign Affairs

specifically made reference to the seizure of $66,275.00 in profits from the sale of 100 kilograms

of cocaine, provided by Sandra Avila-Beltran, which led to the debt that Lopez Correa owed to

Avila Beltran and Juan Diego. (Id. at 107). The Mexican authorities made reference to their

reliance on the sworn statements, and supporting documents, provided by AUSA Eric Morales

and DEA Agent Stephen Kepper, and repeated many of the sworn statements, verbatim, in the

order. (Id. at 108-110.) Likewise, the Mexican authorities made reference to the sworn

declarations of Juan Carlos Lopez Correa, Juan Diego Espinosa, and Mauricio Espinosa, and

repeated many of the statements contained in the declarations, verbatim, in the order. (Id. at

110-112.)

Thus, in the circumstances of this case, there exists clear and compelling evidence which

establishes that the declarations of Juan Carlos Lopez Correa, Juan Diego Espinosa-Ramirez, and

Mauricio Espinosa-Ramirez; as well as the sworn statements of AUSA Eric Morales and DEA

Agent Stephen Kepper contained false and materially misleading statements. And there exists


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tangible evidence of the fact that the Mexican Secretary of Foreign Affairs relied heavily on

those false and materially misleading statements in authorizing the extradition of Sandra

Avila-Beltran.

REQUEST FOR REMEDY

Although the primary safeguard against abuses involving prosecutorial misconduct “is the

ethical responsibility of the prosecutor, who, as so often has been said, may ‘strike hard blows’

but not ‘foul ones,’ . . . [i]f that safeguard fails, review remains available under due process

standards.” United States v. Ash, 413 U.S. at 300, citing, Giglio v. United States, 405 U.S. 150

(1972); Mooney v. Holohan, 294 U.S. 103 (1935); Miller v. Pate, 386 U.S. 1 (1967); Chambers

v. Mississippi, 410 U.S. 284 (1973). In addition to the reversal of a criminal matter by an

appellate court, recalcitrant prosecutors can be subjected to disciplinary action. United States v.

Beckett, 706 F.2d at 522 (warning, “To appear as counsel in a federal court is a privilege which

may be forfeited,” and directing the district court to hold a hearing on the question of whether the

prosecutor should be subjected to disciplinary action). See e.g., Brooks v. Kemp, 762 F.2d at

1416, n.51 (a court with supervisory powers “may well reverse convictions or pursue other

sanctions to eliminate improper conduct”).

Improper conduct by the government warrants relief when it renders a proceeding

“fundamentally unfair.” Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). In determining

whether prosecutorial misconduct is actionable, courts assess whether the conduct was “so

egregious as to create a reasonable probability that the outcome was changed.” Id. at 645; see

e.g., Davis v. Zant, 36 F.3d 1538, 1546 n.11 (11th Cir. 1994)(applying Brooks, which dealt

exclusively with prosecutorial argument, to other stages of criminal proceedings). A

“reasonable probability” is a probability sufficient to undermine confidence in the outcome.


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Strickland v. Washington, 466 U.S. 668, 694 (1984). In making this assessment, courts

evaluate: (1) the degree to which the challenged remarks have a tendency to mislead and to

prejudice the accused; (2) whether they are isolated or extensive; (3) whether they were

deliberately or accidentally placed; and (4) the strength of the competent proof. Davis v. Zant,

36 F.3d at 1546 & 1549.

Where the government’s violation involves knowingly made false statements or the

introduction of evidence that the government knew or should have known was false, the

defendant is entitled to relief if there is any reasonable likelihood that the false evidence “could

have” affected the outcome of the proceeding. Smith v. Secretary, Department of Corrections,

572 F.3d at 1333, citing, United States v. Agurs, 427 U.S. at 103. “[The “could have”] standard

favors relief. It is shaped by the realization that deliberate deception of a court . . . by the

presentation of false evidence is incompatible with rudimentary demands of justice.” Id.,

quoting, Giglio v. United States, 405 U.S. at 153. To prevail on a Giglio claim, “a petitioner

must establish that (1) the prosecutor knowingly used perjured testimony or failed to correct what

he subsequently learned was false testimony; and (2) such use was material.” Id., quoting, Ford

v. Hall, 546 F.3d 1326, 1331-1332 (11th Cir. 2008).

In the case sub judice, there exists a reasonable probability that the Republic of Mexico

would have come to a different conclusion regarding Ms. Avila-Beltran’s extradition but for the

fact that the United States government knowingly and substantially misrepresented the evidence

against Ms. Avila-Beltran. Under these circumstances, fundamental fairness was denied.

As this Circuit has long held:

A United States district attorney carries a double burden. He owes an obligation to the government, just as any attorney owes an obligation to his client, to conduct his case zealously. But he must remember also that he is the representative of a government dedicated to fairness and equal justice to all and, in this respect, he owes a heavy


20

obligation to the accused. Such representation imposes an overriding obligation of fairness so important that Anglo-American criminal law rests on the foundation: better the guilty escape than the innocent suffer.

Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1957).

In light of these fundamental precepts of the American justice system, the misconduct in

which AUSA Morales engaged is all the more egregious because, in an extradition proceeding,

the willful presentation of false evidence involves the tribunal of a foreign nation. In the context

of an extradition proceeding, prosecutorial misconduct involving the presentation of false or

misleading evidence could be viewed as an effort to disregard or circumvent the interests that are

served by international treaties. It is beyond question that it is in the interest of both the United

States and the Republic of Mexico to engage in peaceful extradition proceedings.

United States v. Alvarez-Machain, 504 U.S. 655, 668 (1992)(In a broad sense, most international

agreements have the common purpose of safeguarding the sovereignty of signatory nations, in

that they seek to further peaceful relations between nations.). If the government of Mexico

concludes that the United States’ extradition requests do not contain fair and accurate

information, our ability to effectively secure extradition will undoubtedly be damaged.

In consideration of the level of misconduct that was exhibited by the government in this

case, dismissal of the immediate indictment is warranted.

RESPECTFULLY SUBMITTED, this 11th day of January, 2013.

/s/ Stephen G. Ralls STEPHEN G. RALLS Attorneys for Sandra Avila-Beltran

LAW OFFICES OF STEPHEN G. RALLS, P.C. 273 South Scott Avenue Tucson, Arizona 85701


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(520) 884-1234 Facsimile: (520) 884-9687

Email: [email protected] Arizona Bar Number: 007772

/s/ Howard Schumacher HOWARD J. SCHUMACHER Attorneys for Sandra Avila-Beltran

LAW OFFICES OF HOWARD J. SCHUMACHER, P.A. One East Broward Boulevard, Suite 700 Wells Fargo Tower Fort Lauderdale, Florida 33301 Telephone: (954) 356-0477

Email: [email protected] Florida Bar Number: 776335

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 11th

day of January 2013, via ECF/CM to all parties hereto.

HOWARD J. SCHUMACHER, P. A.

Counsel for Defendant

One East Broward Blvd, Suite 700

Wachovia Tower

Fort Lauderdale, Florida 33301 Telephone: (954) 356-0477 [email protected]

By: /s/Howard J. Schumacher____

Howard J. Schumacher, Esq. FL. Bar No: 776335


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