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Prosecutor Ripped for Withholding Details in Drug Case
Daily Business Review
A visibly frustrated judge called a federal prosecutor "disingenuous," in questioning her candor about when she knew "vetted units" of the Colombian national police were on the payroll of the Drug Enforcement Administration.
The issue arose in the Miami courtroom of U.S. District Judge Marcia Cooke after defense attorneys raised questions about the role Colombian police played in the investigation of a cocaine trafficking ring that resulted in charges in Florida against 18 people. Defense attorneys started asking in April if Colombian police were paid for their assistance.
Assistant U.S. Attorney Andrea Hoffman told Cooke's court she learned of the payments only after a jury was chosen last week.
The trial came to an abrupt halt last week when Jose Salazar Buitrago and John Finkelstein Winer pleaded guilty in exchange for a sentence of three years each, according to Cooke's office. The two have been imprisoned since September 1, 2011, already serving 20 months. If convicted of all the counts, they were facing 10 years to life in prison.
Miami defense attorney Jose Quinon, who represented Finkelstein, said previous plea offers had been made that he felt were not in the best interests of his client. That apparently changed after the contentious hearing last week on the DEA payments.
Cooke heard a defense motion to dismiss for "outrageous government conduct" by Hoffman about the payments issue. In open court, the judge repeatedly lectured Hoffman, who is assigned almost exclusively to Colombian drug cases.
Hoffman was apologetic and blamed miscommunication and a language barrier with Colombian police.
"This is why this does not make sense to me. This is all you do," Cooke replied. "Answer me this: Why does the government get a pass?"
The judge indicated she would reserve judgment on what sanctions, if any, she would impose, but her anger and frustration were palpable. She said Hoffman had breached her ethics as a prosecutor and apparently forgotten she represents the people of the United States.
The exchange with Cooke was not the first time Hoffman faced intense questioning by a Miami federal judge over her conduct in a criminal case. Hoffman was one of three prosecutors who faced sanctions for not telling a defense attorney that the government had its witnesses secretly tape his phone calls.
She was sanctioned in 2009 for her part in failing to inform accused pill mill Dr. Ali Shaygan that two prosecution witnesses had secretly taped phone calls to his defense team. Sanctions against three prosecutors and their office and a $601,000 penalty were overturned by the U.S. Court of Appeals for the Eleventh Circuit. But the substance of findings by U.S. District Judge Alan S. Gold's were not in dispute.
In the Colombian drug case, Hoffman had to dismiss charges last year against a co-defendant who had been misidentified by the government from wiretaps. Carlos Ortega Bonilla, who served as the head of Colombia's equivalent of the Federal Aviation Administration, was held for more than a year in a Colombian jail before being extradited. The U.S. Attorney's Office in Miami eventually consented to drop charges last year after an unyielding effort by Ortega's defense.
When the issue involving the Colombian police was raised last week, prosecution witnesses from the DEA and Colombian police contradicted Hoffman, who gave the judge different times for when she learned of the U.S. payments made to police.
"If you don't consider this outrageous governmental misconduct, then I don't know what is," said Assistant Public Defender Kashyap P. Patel, who represents Salazar.
Quinon told Cooke that prosecutors led the defense to believe the criminal charges were based on an independent Colombian police operation. Quinon said the DEA's involvement was of utmost importance to Finkelstein's defense.
The defense attorneys said they inquired after receiving a tip that the U.S. government paid Colombian police officers $200 each per month for their assistance in the three-year investigation. The defense asked for reports that they believe were prepared by the officers for the DEA.
The tip was confirmed last week during the cross-examination of the government's first witness, a Colombian national police officer. Cooke sent the jury home to conduct an inquiry into the matter. A DEA special agent told her Hoffman had inquired about the payments.
Patel and Quinon said withholding the information constituted a violation of due process for their clients. The case was built on hundreds of wiretaps, but the indictment was sketchy on the details of how the ring operated.
The scope of the defense case would have been different had the U.S. Attorney's Office provided information about payments to the Colombian police, the defense attorneys argued.
"I would have dug deeper. I would have asked different questions of my witnesses. Now I'm in trial," Patel said.
He read emails in court showing he repeatedly asked the U.S. Attorney's Office for the information but was sharply rebuffed. Cooke said it was obvious prosecutors didn't want to cooperate with a routine defense request for discovery.
"Such flagrant disregard for the rule of law and brazen dishonesty to the court and to opposing counsel should certainly shock the conscience of the court," Patel wrote in his motion for dismissal.
Hoffman is a prolific prosecutor known for her determination. She was key in uncovering how Wachovia Bank Corp. was being used by Mexican currency exchanges to launder drug proceeds and has been working closely with the DEA in the war on drugs in Colombia for at least two years.
Yet another discovery issue was looming. The defense attorneys said a lawyer for a convicted drug felon wrote the U.S. Attorney's Office saying testimony against Salazar and Finkelstein had been bought. The lawyer retracted the letter, but defense attorneys wanted to question all involved.
Assistant Public Defender Helaine Blythe Batoff, who is defending Salazar, said a skeptical person could assume the letter was retracted because the felon wants to strike a deal to reduce his sentence and "be on Team USA."
"We are again being asked to take the government's word on this matter," she said.
Patel reminded Cooke that she promised to hold Hoffman's "feet to the fire." "Maybe it should be asked why you had to hold her feet to the fire," he said.
Cooke declined to dismiss the case or declare a mistrial but added, "The tug in that direction is quite strong."
She noted the government witnesses were forthright about the police officers being paid and there seemed to be nothing illegal or nefarious about any bonuses.
Cooke also said she understood the defense may believe the officer's objectivity has been tainted by the DEA payments and wondered aloud if an appellate court might overrule her.
She then turned to Hoffman and said she would reserve judgment on her behavior in the case.
"To say that the level of professionalism is disappointing is an understatement," Cooke said.
Quinon said he didn't think the defense would submit a motion for sanctions in light of the plea bargain.
"Let's close this case and move on," he said.