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Washington, DC 20036
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Colombia is a country rich in culture with beautiful mountains and gorgeous beaches. There are few nations in the world that have as much to offer as Colombia, but, unfortunately, since the 1980s, many Americans have associated Colombia with large scale international drug trafficking. News accounts and television docudrama’s like Netflix’s Narcos, portray the conflict between Pablo Escobar and the Colombian government in the 1980s and 1990s in Medellin, albeit in a highly fictionalized version of the truth. Unfortunately, there continue to be large organized crime groups involved in the exportation of cocaine to the United States.
U.S. law enforcement has been quite active in the investigation and prosecution of Colombian citizens. In addition to those associated with the major drug cartels, U.S. federal prosecutors have prosecuted members of the Fuerzas Armadas Revolucionarias de Colombia Fuerzas Armadas Revolucionarias de Colombia (FARC) and the Autodefensas Unidas de Colombia (AUC). These organization are large, wealthy, sophisticated and dangerous. The investigation of these organizations is therefore difficult. In these types of investigations, U.S. authorities make mistakes, and the wrong people are sometimes arrested.
As the arrest of the former Mexican Defense Minister demonstrates, corrupt officials involved in American criminal investigation can and do corrupt investigation to the point where reliable evidence of guilt is too difficult to determine. In addition, not everyone involved in a narcotics trafficking organization is truly a criminal. As with organized crime anywhere, there are those who run and benefit from the organization; there are those who are complicit with the organization; there are those who are forced to work for the organization; and there are those who are acting unwittingly or without the intent to commit any crime.
Regardless of the level of culpability, an individual could find himself or herself under investigation for an organized crime offense.
A defense attorney in an organized crime case does not assist the criminal enterprise in furthering its legal activities. Rather, the attorney represents an individual or individuals accused of or suspected of involvement in the criminal organization. The attorney first and foremost advises the client on the laws related to organized crime and the criminal process in the United States. The attorney also advocates for the client, whether it be in terms of representation at trial or attempting to resolve the case with the government.
When a criminal organization has its roots in Colombia, the attorney must understand the cultural and legal environment where a case arises. Fortunately, Dennis Boyle has lived in Colombia and was a student at the Universidad Pontifica Bolivariana in the early 1980s when the Medellin Cartel was at the height of its power. He understands that when a criminal organization “asks” someone to become involved, that person may have no real choice. Even if the person asked is located in the United States, he or she may still not be able to refuse, especially if the person has friends or family members in a country where the group holds sway. There may also be tribal entanglements or cultural understandings that make it difficult to resist the requests of organized crime groups.
One of the roles of the defense counsel will be to learn all of the issues relevant to a particular case. Every case is different, and every individual is different. Sometimes the government will have a misunderstanding as to a particular individual’s role, especially in organized crime cases. It is not unusual for government sources to lie about their roles. This may involve “framing” an innocent or less culpable person in an effort to reduce their own more serious conduct. By properly investigating the case, defense counsel may be able to set the record straight and help the client avoid a wrongful conviction or an excessive sentence.
Finally, in the American system of justice, it is the jury—comprised of 12 randomly chosen citizens—that ultimately determines an accused person’s guilt or innocence. An experienced defense attorney, one who has tried a large number of trials, will be better equipped to appear in court and secure a verdict of Not Guilty. We have tried over 200 criminal jury trials. We know what we are doing.
The short answer is: “Yes”. Every case is different, and every person is different. The success of any particular defendant in any particular case is dependent upon the facts of the case. The first thing that a defense counsel must do is investigate the facts leaving no stone unturned. There are constitutional defenses that sometimes lead to the suppression of a confession or the exclusion of evidence obtained in an unlawful search.
It may be that the defendant lacked the criminal intent necessary to commit a crime or engage in a conspiracy. For example, let’s assume that an individual flying to the United States has his baggage searched, and during the search, ICE agents discover a quantity of cocaine. Is the defendant guilty? What if the defendant had no idea there was any contraband in his luggage? What if the drugs were stashed in his luggage by a baggage handle in Medellin or Cali without his knowledge? Under these circumstances, the defendant would not be guilty, but the defense counsel can only discover this information through a proper investigation.
Every criminal offense has “elements”, i.e., the things that the government has to prove in order to establish guilt. If the government fails to prove all of the elements of a crime, then the defendant is “Not Guilty”. A conspiracy, for example, requires an agreement to commit an illegal act (or a legal act by illegal means), an intent to commit the underlying crime and an overt act in furtherance of the conspiracy. If the defendant did not intend to commit the underlying crime, there is no conspiracy. If there was no overt act, then there is no crime. The defense counsel must therefore understand everything that happened.
The defense of “Duress” is commonly raised in organized crime cases. Duress basically means that a defendant was forced to commit a criminal act. This may be by direct or implied threat, “plata o plomo”, silver or lead, has a common and well-known meaning. It means that one can either accept money from a cartel or be killed. This is a textbook example of duress.
There are other defenses that arise in different cases. The important thing to remember is that a thorough investigation is the beginning foundation for any defense.
The United States Federal Sentencing Guidelines are draconian, even with modifications made in recent years. One way to avoid a vicious application of the guidelines is to cooperate with the government. If the cooperation rises to the level of “substantial assistance”, a standard that seems to vary from prosecutor to prosecutor, then, under USSG 5k1.1, the government can file a motion requesting the Court depart from the guidelines and impose a lower sentence. The motion even releases the Court from any mandatory minimum.
USSG 5k1.1, however, is not the only way to reduce a sentence, and, in fact, there is no guarantee that cooperation will actually reduce a sentence. We have had cases where individuals who were apparently major players in white collar schemes or narcotics distribution conspiracies have received sentences that were a fraction of what the guidelines called for. We have seen other cases, where defendants who cooperated received little or no benefit for their cooperation. How can these differences be explained?
First, ever since Booker v. Washington was decided in 2005, the sentencing guidelines have been advisory only. Under 18 U.S.C. 3553, the guidelines are only one of many factors to be considered. In the vast majority of federal sentencings, no one knows what the sentence will be until after the Court conducts a hearing and decides what sentence to impose. Skilled defense counsel know that it is important to scour the defendant’s background and examine his or her involvement in the offense to find all mitigating factors applicable and then to argue these matters to the Court. Federal judges are human, and they are frequently moved by compelling arguments. Even if a technical defense of duress does not exist, a Court may still grant a lower sentence because of the danger associated with a criminal organization. Also, if the defendant’s involvement was minimal and he or she had no prior record, these reasons would be substantial reasons to impose a sentence that is way below the guidelines.
On the other hand, just because a defendant cooperated does not mean ipso facto that the defendant will receive a lower sentence. If a defendant is not completely honest or attempts to minimize his or her conduct, there would be reasons for a defendant to be denied a sentence reduction. Sometimes a defendant may cooperate fully but not provide the government with any information it did not already know. In these cases, the government will likely conclude that the defendant’s assistance was not “substantial” and therefore decline to file a motion for a sentence reduction. Sometimes a defendant’s conduct will be so reprehensible in the eyes of the Court that a sentencing reduction is considered inappropriate.
The bottom line is that a defendant does not need to cooperate to receive a substantially reduced sentence. Every case is different, but there is frequently a lot that can be done to reduce or mitigate a sentence.
We know Colombia, we understand the culture, and we know what we’re doing. One of the principal factors in obtaining a favorable outcome is to hire the right attorney as soon as possible. The earlier competent counsel is retained, the greater the odds of a successful outcome. Call us today.