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Blind Mules-Fiction
or Fact?
What Defense Attorneys Need to Know-an Expert
Opinion
By
Michael
Levine
(All rights reserved)
Abstract: "BLIND MULES, FICTION OR FACT?"
- Full article as published by the "Law Enforcement Executive Journal"
- Department of Law Enforcement and Justice Administration
Western Illinois University - April, 2006.
The current crop of law enforcement officers and prosecutors
who have sworn oaths to protect the people who hired them and our constitution
are too often not willing to go that extra mile, or I would not be writing
this article. Too many seem quite happy to make the arrests of whoever
walks into their outstretched arms without conducting a due diligence
investigation, add up the seizures to be paraded before congress, submit
themselves for cash awards for "excellence" of performance and
then rely on the word of government "experts" for conviction.
Adherence to the Search-for-Truth Doctrine and National Drug Policy are
things of the past. I cannot be certain precisely when or how this change
in prosecutorial and investigative practices occurred or whether or not
it came as a result of a deterioration of professionalism on the part
of investigative agencies of the type that led to the 9-11 tragedy. What
I am certain of is that the price America now pays for this change can
be felt in the deterioration of our system of justice and gangs of international
drug traffickers and terrorist sharks that can safely operate with impunity
while the American justice system targets the minnows. What criminal defense
attorneys must understand is that turning this dangerous tide must begin
in the courtroom.
On January 12, 2000, Gloria Cespedes-Cano and her
teenaged daughter Sandra 1 stepped through the doors of the LACSA (Costa
Rican national airline) baggage department at John F. Kennedy International
Airport and into a nightmare. She was there to reclaim checked bagged
that had been lost by the airlines seven days earlier during her return
trip home to the US from her native Colombia.
Things immediately got tense. The man at the other
side of the counter wore a LACSA uniform but he spoke Spanish the way
Ricky Ricardo spoke English.
"Are you certain this bag is yours?" he
said.
"Of course I am sure It's mine," said Gloria.
" That is why I am here." Something about the way he looked
at her started Gloria's heart racing.
"Did you pack this bag yourself in Colombia
before you left?" insisted the man.
"Of course," said Gloria. "I just
told you-it's my bag, I packed it, you lost it, that's why I am here."
"Mommy, what's wrong?" said Sandra, who
had been fretting her mother about the bag all week. It contained her
New York City high school soccer uniform that she'd brought to Colombia
to impress her cousins. "Just take it and let's go, Mommy."
The man produced a document. "I'll need you
to sign this," he said. "It says that the bag is yours and that
you're responsible for its contents."
Gloria quickly signed her name where the man indicated.
She had barely put the pen down and her world changed forever.
Gun toting federal agents in blue hats and windbreakers
surrounded her screaming commands in a loud cacophony of incomprehensible
voices. She felt herself shoved hard against a counter. Hands raced over
her body, touching her in intimate places. Hands bent her arms behind
her. She felt the steel of handcuffs for the first time in her life.
"You are under arrest," said one of the
officers. He read from a card, telling her in Spanish that she had the
right to remain silent, that she could have an attorney if she felt she
needed one.
"What did I do?" cried Gloria. Behind her
Sandra cowered and wailed in fear-a wounded doe in a crowded subway car.
"You are charged with smuggling heroin into
the United States...This," he said, removing a brick shaped package
from her bag and slapping it on the counter. "Are you willing to
make a statement?"
Willing? The Customs agents couldn't stop Gloria
from talking if they wanted to; she told them everything they asked, answered
every question. Volunteered information they didn't ask.
"You don't have to say anything," the man
reminded her. "You have the right to an attorney."
"Why do I need a lawyer?" she said. "I
did nothing wrong. I never saw that package before. Someone must have
put it in my bag."
Gloria explained that seven days earlier, she and
Sandra had checked their unlocked baggage at the airport in Cartagena,
Colombia for their return trip home to the USA. They had just spent two
weeks visiting family and friends over the Christmas and New Year holidays-a
trip for which she had planned and saved for more than two years. The
officers could check her bank account and see for themselves where the
money came from. Gloria gave him a full and detailed itinerary of her
trip, including the address and phone number of every relative with whom
she had stayed. She was willing to tell him anything he wanted to know,
give him any kind of cooperation he suggested. She lived simply, worked
hard and had never done anything illegal in her life.
Besides, Colombian security police had searched the
bag before she had checked it, and they had found nothing.
She begged the Customs agent to verify everything
she had said. If he checked her work records and bank accounts he'd find
that she and her husband each worked 60 hours a week to put food on the
table-did that sound like a drug dealer? What did she have to do to prove
to him that she was not a drug trafficker, that someone else must have
put the drugs in her bag?
My bet is that at this point most attorneys reading
this are thinking, "Big mistake. She should have kept her mouth shut
and called for a lawyer." By the end of this article I think you'll
agree that if you're claiming a blind mule defense, the worst thing you
can possibly do is to remain silent.
The officers didn't believe a word; the openly snickered.
In fact, they seemed completely disinterested in anything Gloria said
that wasn't a full confession. They had found three pounds of heroin at
the bottom of her bag worth millions of dollars on the street; she had
to know what she was carrying. There's no such thing as a blind mule,
said one in Spanish. Gloria Cespedes-Cano was formally charged with Smuggling,
Possession and Possession with Intent to Distribute and shoved into a
cage.
Three nightmare years later, at trial in the Eastern
Judicial District of New York, a badge-carrying government expert, wearing
a blue striped suit, a power tie and a little American flag pinned to
his lapel, would take the witness stand. He would speak with great authority
and in a professional manner as he told the jury deciding Gloria Cano's
fate, exactly the same thing: "There is no such thing as a blind
mule." He would weigh in with his years of training and experience,
like a Tom Clancy figure come-to-life and explain that the reason there
is no such thing as a drug courier who is unaware that he or she is carrying
drugs-a blind mule- is simply that the illegal cargo is so valuable that
professional drug dealers would only use people who are thoroughly trusted
and responsible for the safe delivery of said drugs.
The expert would be spouting the Drug Enforcement
Administration and the United States Justice Department's current and
official position as enunciated in a widely disseminated article entitled
"Blind Mules-Fact or Fiction?":
"It is incumbent on [DEA] to explain to judges,
juries, and the public the absurdity of the premise that drug traffickers
would entrust their extremely valuable commodities to unwitting couriers,
running the risks inherent in allowing the drugs to be in the possession
of someone not directly responsible for their successful delivery."
2
Take note here that the government's position does
not just limit itself to the Blind Mule defense, it includes all "unwitting
couriers," which as you are about to see, goes a lot farther than
cases like Gloria's. In my trial consulting practice of the past fifteen
years since my retirement from DEA, I have heard government experts consistently
testify that any kind of coerced or unwitting participation in drug trafficking
is a circumstance so absurd that on its surface it cannot be accepted
as a reasonable claim.
To any narcotic investigator with real experience
working with international drug traffickers during the 1970s and 80s,
this kind of expert testimony which denies the use of unwitting participants
in drug trafficking, is not only patently incorrect it is inconsistent
with two decades of drug war history and policy. That, in the world of
drug trafficking and crime, incidents like the one excerpted from drug
trafficker-turned-author-and-Hollywood producer Richard Stratton's memoir
are the rule not the exception:
"So I bought three kilos [of marijuana], removed
the door panel of my roommate's truck, and hid them in the door without
telling him. I figured if I told him, he'd be too nervous driving back
across the border..." 3
I happen to be a frontline witness to the changes
in narcotic enforcement prosecutions from the early 1970s, when President
Nixon first declared war on drugs, to the present time. A Blind Mule and/or
unwitting and/or coerced participation defense during those years, was
considered as both valid and in some circumstances likely, by both prosecutors
and investigators alike. It was understood that the narcotics trafficking
business was devoid of trust; that the closest of family members, under
threat of decades in prison and/or for the promise of six and seven figure
reward payments would easily turn informant on one another and that the
notion of a drug trafficker simply trusting a lowly mule-the current expert
opinion-was truly absurd.
Thus, the purpose of this article is to demonstrate
the change in government expert opinion and illustrate its overall negative
impact on our justice system, the war on drugs and the war on terror as
well as the fact that the logic behind this change is simply counterintuitive.
Sound like hyperbole? Just hang in there and let's see.
For Gloria Cespedes-Cano' attorney, Michael Hammerman
of New York City, understanding the facts behind this fact-to-fiction
change in expert opinion and prosecutorial philosophy would make the difference
between a successful defense strategy and his client spending decades
behind bars.
Blind Mules as Fact
I first heard the term blind mule in 1970, when I
was one of three Spanish-speaking agents assigned to the Hard Narcotics
Smuggling Division of US Customs in the Port of New York. The cocaine
and heroin markets were expanding rapidly as were the numbers of "mules"-drug
couriers-arriving from source countries like Colombia, Mexico and Southeast
Asia. Being a fluent Spanish speaker I worked round the clock on interdiction,
arresting and debriefing mules by the hundreds; trying to "flip"
them -convince them to turn informant-as quickly as possible in order
that they could effectively aid us in identifying and arresting those
who were awaiting their imminent arrival.4
Whenever headquarters notified me that a customs
inspector had detained a mule it meant a 100 MPH race to the airport.
A flip had to be done quickly, because often the drug cartel would have
its people waiting in the airport scant yards from where their mule was
being held. If too much time elapsed they would vanish. I would have at
most an hour to convince the mule to cooperate, put the dope back into
his or her bra, or prosthetic leg, or bowling ball, or coffin, or shoes,
then seal up the drilled hole from whence spurted white powder-whatever
concealment technique they happened to be using-in order to complete a
"controlled delivery"-an undercover delivery of the drugs under
tight surveillance to the intended receivers.
In those early years of drug war, most of the mules
I encountered at JFK airport, and later at Miami International, claimed
they had no idea they were carrying drugs. The term "Blind Mules"
was born.
Some had alibis that would have strained the credulity
of a pet rock, like Maria Gloria Naranjo, who was traveling on a false
passport and claimed she thought she was carrying "white gold"
sewn into the padding of her bra and panties by people she had never met,
to be delivered to people she didn't know. Or Felix Rodriquez, who claimed
he thought he was carrying "white gold" in his prosthetic leg,
put there by unknown people at a time and place he couldn't quite remember
and who had supplied him with a false passport and paid him $500 to make
the delivery in New York where he would be met by more people he didn't
know at an address that didn't exist.
Other alibis, like those of a series of women who
claimed they were prostitutes hired to work in New York or Miami were
more plausible. They carried specially constructed suitcases full of new
clothing concealing large amounts of cocaine in false bottoms and sides,
claiming they had been given the suitcases and the clothing as part of
their "jobs" but were ignorant of the hidden drugs.
I qualify the prostitutes' blind-mule alibi as "more
plausible" as the direct result of three days of face-to-face undercover
meetings in Buenos Aires with, Pedro Castillo, a major Bolivian cocaine
supplier in 1979.5 Castillo, who believed he was dealing with an American
Mafiosi, agreed to deliver 10 kilos of cocaine to me in Miami; a deal
which he subsequently completed sending him to federal prison for 20 years.
During my undercover meetings with international drug traffickers like
Castillo-and there were many-I would always use the long hours spent in
negotiations as a pretext to learn all I could about how they operated.
How they thought.
I pressed Castillo hard for details as to how the
drugs were entering the U.S. and who was to be responsible if they were
seized-important items for dope dealers to iron out before a transaction.
He told me that for larger loads of cocaine-more than ten kilos-he would
hide the drugs in commercial shipments. For the smaller loads going to
both the U.S. and Europe, he used prostitutes.
"The U.S. government will pay any one of them
hundreds of thousands of dollars for dropping a dime on you," I said.
"How can you trust them?" His answer was that some would not
know what they were carrying others had families to worry about. Blind
Mules and coercion as far as this real-life drug trafficker was concerned
were facts of life- "trust" was not.6
Unwitting Recipients as Fact
In 1971, Jaime Ibarra, the intended recipient of
unaccompanied baggage from Santiago, Chile, claimed that he had no idea
why the baggage was addressed to his name and temporary address at a New
York City hotel. The unaccompanied suitcase crammed with old shoes which
in turn were crammed with 6 kilos of cocaine had been seized by customs
inspectors at the Lufthansa Airlines baggage department. Things looked
bad for Jaime; he had overstayed his visa, lied to me as any illegal alien
might have done and had the Bill of Lading for the undelivered suitcase
in his hotel mailbox where it had been sent by Lufthansa Airlines.
Jaime's innocence was proven by a three-month investigation
that revealed the existence of a Colombian Cartel that was able to select
names of South American tourists from hotel registers in New York, to
whom unaccompanied baggage containing cocaine would be addressed. If the
bag made it through customs, someone masquerading as the addressee would
make the pickup at the baggage counter.7 If Customs detected the drugs,
as happened in the Ibarra case, the unwitting addressee was, as they say,
on his own.
If the Ibarra case had happened in the past fifteen
years, he would have been arrested without any follow-up investigation
and prosecuted. A government expert would have appeared at his trial to
assure the jury that there was no such thing as an unwitting receiver
of $1/2 million in cocaine and he would probably still be in jail today.
National Drug Policy and the Search for Truth Doctrine
-Then
The kind of investigation and prosecution that Gloria
Cespedes-Cano and many others who claim unwitting and/or coerced participation
in drug trafficking face today could never have happened during the early
years of our war on drugs. Both my training and the Prosecutors with whom
I worked demanded a due diligence investigation to prove, beyond a reasonable
doubt, that a man or woman caught transporting or receiving drugs knew
exactly what he or she were doing. We were trained to adhere to the Search-for-Truth
Doctrine which meant that if an investigative step held a likelihood of
unearthing exculpatory evidence or information, a case agent was not permitted
to omit or avoid it for any reason.
Full and careful debriefings of all who claimed to
be blind mules and/or unwitting and/or coerced participants, supported
by painstaking corroborative investigations and other interdiction tactics,
was SOP for all agents working interdiction. Both our supervisors and
the United States Attorneys offices demanded strict adherence to the Search-for-Truth
doctrine and National Drug Policy. A due diligence investigative effort
would either reveal continuing efforts to deceive and that the Blind Mule
claim was not a reasonable one, or that the defendant's story might be
true. What is important to stress here is that, with the "discovery"
that a Blind Mule claim is "absurd," the due diligence investigation
no longer happens and, as a result our Department of Justice is now working
for the drug traffickers.
For example, during the 1970s and 80s all those claiming
blind mule status, no matter how incredible sounding the story, were given
the opportunity to tell their stories fully and/or aid in a controlled
delivery to whomever was expecting their arrival. The thorough documentation
and investigation of blind mule statements, often resulted in the arrests,
convictions and conspiracy indictments of top-level traffickers.
In cases of deception, it was the Search-for-truth
investigative effort that furnished the prosecution with evidence that
Blind Mule (unwitting participation) claims were untrue beyond a reasonable
doubt-not that they were simply "absurd" by virtue of expert
testimony. I served often as a prosecution expert during the 1970s and
80s and never uttered those words.
National Drug Policy
Adherence to the Search-for-Truth Doctrine also forced
investigators to adhere to what is referred to as National Drug Policy.
NDP, reiterated by every presidential administration in White House Drug
Policy Statements, has always been interpreted by the Drug Enforcement
Administration, the lead agency in our war on drugs, as a national mandate
for investigators to pursue and exhaust all investigative leads and/or
information that even might reveal the sources and tentacles of distribution
of a drug organization. It was the very heart and soul of the War on Drugs.
During the early 1980s, as an Operational Inspector
assigned to the office of Professional Responsibility, one of my primary
duties was to ensure that DEA offices worldwide in every one of its investigations
adhered to National Drug Policy.
The bottom line, as I will illustrate below, is that,
with the "discovery" during recent years that any claim of forced
or unwitting participation must be false, National Drug Policy and the
Search-for-Truth doctrine became meaningless phrases and the quality and
professionalism of world class investigative organizations hit bottom,
where it remains to this day. In fact, in a very real sense, our Department
of Justice is now working for the dopers. And in this era of terrorism
supported by drug trafficking, this is no small matter.
Do Prosecutors Really Believe There is No Such Thing
as a Blind Mule?
Under cross-examination, during a recent trial wherein
I provided expert testimony as to the federal agents' violations of the
Search-for-Truth Doctrine, standards and training and National Drug Policy
during and after the arrest of a defendant claiming blind mule status,
I was asked: "Isn't it true that when these blind mule claims are
in fact investigated, nothing ever comes of the investigation?"
It was a Kundalini moment for an expert witness.
I could not believe the soft arcing pitch this experienced prosecutor
had just tossed me. But something was wrong. It was too easy-was it a
setup? 8
Instead of just citing about fifteen or twenty cases
emanating from blind mule arrests, that, due to search-for-truth investigative
efforts during the 1970s and 80s had been hugely successful on a global
scale and contrasting them with the monstrous investigative failures of
today, I was short-circuiting. The question had also provoked an instant
of blinding insight.
This prosecutor actually believed the government
expert or (I reasoned) he would never have asked such a question. For
an instant the implications of this level of (lets be charitable here)
naïveté left me breathless. Prior to this moment it had always
been much easier for me to look at the discovery of the non-existence
of blind mules as just another tactic of inept or lazy federal investigators
of the type that allowed 9-11 to happen right under their noses combined
with win-at-all-cost prosecutors.
I started to slip into lecture mode. My answer was
that the prosecutor's assertion could not have been more untrue and that
the dogged and thorough investigation of blind mule claims has led to
some of the farthest reaching international drug cases in history; cases
that simply do not happen any more. I began to illustrate with examples.
Of course, the prosecutor quickly cut off any elaboration with no objection
from the defense. Thank God I don't have to depend on the Rules of Criminal
Procedure in the writing of this piece. And there is no investigation
that better illustrates the point I was trying to make than one that began
with my arrest of John Edward Davidson, Blind Mule extraordinaire.
US v John Edward Davidson & Liang Saw Tiew et
al.
The year I met John Edward Davidson, 1971, was the
same year that President Nixon declared war on drugs. The Special Agents
of US Customs didn't need a declaration of war, by 1971 they had been
combating drug smugglers for decades. The investigative tactics involved
with the apprehension of a "mule" -the "flip" followed
by the "controlled delivery" run concurrently with an intensive
conspiracy investigation-had already been initiated and were showing huge
and unprecedented successes. Books have been written about this era and
the accomplishments of these immensely talented and streetwise investigators,
who were second to the FBI and CIA only in public relations and in the
imaginations of fiction writers. Thus, for the purposes of this article
I will confine my examples to cases in which my knowledge comes from my
own participation.
When I transferred into the Customs Agency Service
from the Bureau of Alcohol Tobacco and Firearms in 1970 I was a willing
student of these tactics and soon found myself deeply involved in many
of the major international investigations of that time. In 1973, the Drug
Enforcement Administration was created by Presidential Order. I was one
of 750 U.S. Customs agents transferred into the new agency. One of my
first assigned duties was the management of smuggling investigations as
well as the training of DEA Agents without Customs experience in the same
interdiction and investigative tactics I had used as a Customs Agent.
One of the investigations I used as a lecture tool, US v John Edward Davidson,
et al, began on July 4, 1971.
I had "the duty" that day, which in Customs
parlance meant I was on 24 hour call status. It was about 1:PM, when headquarters
called. I was at a party at an uncle's home in Babylon, Long Island. There
had been two arrests at JFK International; one a Peruvian woman with a
half kilo of cocaine hidden in body orifices where the sun doesn't shine
and a Caucasian male with 3 kilos of heroin hidden in the false bottoms
of three Samsonite suitcases. Each had been in custody for about 10 minutes
when I got the call.
I made it, red light spinning, siren screaming and
brake drums smoking, to the rear entrance of the IAB (International Arrivals
Building) in less than 15 minutes, which meant that I would have, at most,
an hour to flip one of the two mules and let him (or her) walk out the
double doors into the arrivals area with his bags to see if anyone approached
or followed. I had a couple of undercover, plainclothes patrol officers
standing by and more agents on the way.
As luck would have it the other agent on call that
day was Jack Daniocek, another fluent Spanish speaker. Jack was senior
to me and wanted to handle the Peruvian woman, so by default I would,
within minutes, find myself in a windowless room seated across a bare
metal table from John Edward Davidson and the beginning of an adventure
that would take me to the other side of the world. It would also be my
first, personal glimpse into the minds of major international drug traffickers
who would accept me as one of their own-a firsthand, uncensored perspective
that I believe is entirely absent from most of today's expert testimony.
The Customs inspector who had detected the heroin
quickly filled me in on what I needed to know. Davidson had just arrived
from Bangkok, Thailand carrying three expensive Samsonite suitcases full
of gifts and clothing. His passport showed seven trips to Thailand in
the past 18 months. The weight of each empty suitcase was exactly one
kilo more than it should weigh. A small hole drilled though the bottom
of each revealed that the extra kilo was 99% pure heroin, known as "Dragon
Brand." Davidson's claim, so far, was that the suitcase had been
filled by "Chinese People" he'd met in Thailand during his R&Rs
from the battlefields of Vietnam, and that he thought he was smuggling
precious gems to evade import duties.
Blind Mule? A Vietnam vet who thought he was smuggling
jewelry? Gimme a New York break, I thought. This guy knew exactly what
he was doing. But I also knew that no federal prosecutor would accept
that assessment without an investigation that would show that it was unreasonable
to believe his claim; an investigation that might lead to the identification
of the true source of the drugs, or one that would show proof of the kind
of deception common in drug smuggling cases.
Davidson was a smallish man with close-cropped blonde
hair. He wore granny glasses that gave him the look of a graduate student
in theology. As it would turn out, he was anything but.
As I took a seat across from him, I noted grey eyes
that reacted to my every expression. He studied me as I read his two page,
handwritten declaration. I was conscious of the passing time. I had to
assume that, since he was carrying millions of dollars worth of heroin,
blind mule or not, somebody was waiting for him. I had at most 30 minutes
to get his cooperation and put him out on the airport concourse like a
baited hook.
"I read your claim," I said. "I don't
think a jury is going to believe it, but if you are truly a blind mule,
you have a chance to prove it yourself." I had his rapt attention.
"Are you willing to cooperate with me?"
"What do I have to do?"
"First, according to your statement, some John
Doe should be waiting for you right outside."
"I doubt if they'll still be waiting,"
he said.
"They will," I said. "That's more
than a million bucks worth of heroin you're packing, my friend. They'll
wait to make certain this isn't a typical airline delay."
"What if they don't wait?"
"Why wouldn't they? We just announced over the
PA that due to a baggage belt breakdown, some of the passengers on your
flight will be delayed. Right now we're holding a bunch of them just waiting
for you to make a decision, John."
It was all a lie, but he couldn't know any different.
Without waiting for an answer I shoved his statement
at a Customs Patrol Officer. "Get the attaché in Bangkok on
the phone right now. I want this guy's every movement checked. Particularly
phone calls made from hotels. Dates, times, numbers called, run everything
for drug connections. Also check Mr. Davidson's finances. Call IRS, get
his tax returns. I want to know everything about this man possible before
we bring him to the magistrate. If he's lying I want to be able to tell
that to the judge."
The bewildered CPO took the paper and left. Of course
most of that could be not be done any time soon, but to defeat a claim
of Blind Mule at trial, I knew it all and more, had to be done before
trial.
I looked at Davidson, the color had drained from
his face.
"I'm gonna be straight with you," I said.
"I don't believe you. I'm just giving you all the rope you need to
hang yourself. If I can prove you lied on this paper... (I shoved it in
front of him) ... you're just gonna end up pissing off some judge and
maybe a jury, and your facing a possible five decades in prison. The secret
you're carrying right now is how much time you've got left before who's
ever waiting for you is in the wind and I won't be able to help you any
more. Thirty of forty years from now when you're still in a cage, you
might remember this moment as your last chance. It's your choice my friend.
"
Davidson looked at the government-issue clock on
the wall in front of him and then said:. "I have about 3 minutes
to make a phone call, or they'll vanish."
Within a minute and half he was dialing a phone number
in Gainesville, Florida. It was answered by Allan Trupkin, the financier,
at the time one of the major heroin trafficking groups on the East Coast.
"Yeah," said Trupkin.
"It's me," said John, his eyes on the rolling
tape-recorder. He was now officially flipped.
"Where the fuck are you?" said Trupkin..
"Still at the airport," answered Davidson
smoothly. "The baggage belt broke or something."
"It's okay? "
"I'm fine. I missed my connection, but I'm okay."
"What time you gonna get here?"
Davidson looked at me for a cue. I mouthed his answer.
"Next plane I can get," he said.
"Fuck! You don't know, man. We were really worried."
"Okay, I'm on my way," said Davidson and
he hung up.
I had an immediate problem. Davidson had cut the
conversation short while Trupkin was still clearly willing to talk-a sign
of deception. The only evidence the recording would reveal was that Trupkin
was waiting anxiously for Davidson's arrival-end of story. This did not
look good. Davidson was now my confidential and very criminal informant,
my CI, which opened a textbook full of legal problems, the first being
that Mr. Trupkin might be some low level dupe Davidson was using to protect
the main man-the head of his organization whom he might fear more than
a long jail term-a very common ploy of all criminal informants.9
I had to prove differently. It was now time for the
Controlled Delivery operation.
Customs technicians working quickly, replaced all
but one ounce of the heroin with a white powder substance that looked
and felt identical to the heroin, all of which was perfectly resealed
inside the false bottom suitcases. Within two-and-a-half hours Davidson,
my partner George Sweikert and the suitcases were on a flight to Jacksonville,
Florida, where a team of twenty Customs agents and plainclothes patrol
officers were waiting to convoy us to Gainesville.
At about 3:a.m., about fourteen hours after the arrest
of Davidson at JFK International airport, I lay hiding in a rear room
of a luxuriously equipped house trailer in the middle of a Gainesville
swamp watching Allan Trupkin's headlights approach through a field of
high grass that concealed twenty federal agents laying in ambush. Within
minutes, Trupkin and his heroin addicted gofer, John Clements were ripping
into the Samsonite suitcases, as a hidden tape-recorder rolled .
"What did you get, Dragon or Elephant?"
Trupkin asked.
"Dragon," said Davidson.
"I love you brother," said a jubilant Trupkin.
Within minutes, I had enough on tape to establish
that Trupkin was, neither a blind mule receiver nor an innocent or entrapped
dupe. I gave the bust signal and the trap was closed. Ironically, it was
the drug addicted-gofer, John Clements who would refuse to either cut
a deal or cop a plea that ended up with the longest jail term of the three:
27 years in prison-a sentence which he has since completed.
Undercover With the Source in Thailand
What had started out as a Blind Mule case in New
York did not end in Gainesville, Florida. Davidson next agreed to introduce
me to his Bangkok heroin connection as his Mafia financier. One month
later-after coded letters were interchanged between Davidson and a man
I would later identify as Liang Sae Tiew, a/k/a "Gary" -I landed
in Bangkok, Thailand posing as "Mike Pagano" Mafia capo.
For the next two weeks I had daily meetings and "social"
outings with "Gary" and his associate, "Mr. Geh,"
whose Thai name I would later learn was Thirachai Pluksamanee. They were
associated with a place called "The Factory" in Chiang Mai,
Thailand where their organization was producing hundreds of kilos of heroin
a week, by far the largest source of heroin discovered at that time. I
read Gary and Mr. Geh as being anxious to increase their distribution
in the United States. And there I was sitting right in front of them,
the capo di tutti fruti of the fake Mafia.
My cover story was that since the French Connection
had been busted, we (the Italian Mafia) were looking to expand our operations
into Asia and that I knew almost nothing about Golden Triangle heroin
other than what John had told me. They believed me and wanted to do business
with me badly, enough to answer any questions I had. One of the areas
I focused on was the methodology of smuggling. None of "my people"
liked the idea of doing the smuggling ourselves, the way John did; it
was just too risky. What did they suggest?
Among the many ideas they suggested was the use of
tourists and American GIs as unwitting dupes-blind mules. The rare gem
and jewelry market in Bangkok was known as a place where jewelry could
be purchased at as little as a tenth of appraised value in the U.S. It
was common for Customs Inspectors to catch tourists with undeclared jewelry.
This was not considered a criminal offense, and once the duty was paid
the "violator" was usually sent on his or her way. There was
also a market for rare artifacts uncovered in ancient temples and archeological
digs, which had to be smuggled out of the country. My two hosts had a
false-bottom suitcase manufacturing operation where expensive luggage
was turned into undetectable containers for drugs; they also had skilled
artisans who could perfectly conceal drugs in the actual artifacts or
exotic Thai food products, all which made a blind mule scam a fairly easy
operation to run.
A "friendship" is struck up with a gullible
tourist at one the luxury hotel discos, traveling to either Europe or
the U.S. and a seduction begun. If the dupe seems appropriate, an offer
is made to carry some "jewelry" or rare artifacts, back to the
U.S. concealed in suitcase, in return for cash and/or another all expense
paid vacation to Thailand. A selection of expensive jewelry, or some seemingly
rare artifacts might even be shown to the dupe. Or one might use the actual
artifact that would later be filled with drugs. It seemed that Davidson's
claim of blind mule was-as opposed to current government claims-based
on solid fact, not invention.
In one recent case of mine, precisely this was done
with a Canadian college student. 10 He was befriended and seduced in an
extremely careful and methodical manner. His new "friend" gave
him a birthday "gift" of an all expense paid trip to an Asian
country. At the last minute the friend asked the dupe to deliver some
hard-to-find coffee to other friends in Asia. The coffee cans were precise
duplicates of the well known brand name, "Melita", the only
difference was that they contained Canadian grown marijuana worth as much
as $500,000 in this country.
Gary and Mr. Geh also suggested a mail drop operation.
Heroin perfectly concealed inside wooden and bronze sculptures and then
mailed to a location or business from where I could receive packages anonymously.
While they did not specify the use of "blind mule" recipients,
the possibility, depending on specific situations, was clearly there.
The notion of drug smugglers having illegal narcotics
mailed to their true addresses and/or the addresses of witting conspirators,
seemed too stupid to even discuss, yet my reviews as trial consultant
of numerous "mail delivery" cases (a species of Controlled Delivery)
would indicate that the prosecution, in a majority of cases around the
nation, would have juries believe that this is common practice.
According to Gary and Mr. Geh, these scams were working
well for some of their customers in both Europe and the U.S., but they
were limited to relatively smaller amounts of heroin. If I truly wanted
to expand operations to hundred kilo shipments as I had claimed, they
recommended my investment in a business that imported goods to the US
from Thailand, as a front. They had expert craftsmen who could conceal
heroin within just about any article or container imaginable. Here again
it should not take much imagination to realize that the use of this type
of front business would involve the handling and transportation of hidden
drugs by any number of blind mules.
Ship Smuggling Cases - Blind Mules Then
As my heroin trafficker hosts spoke of the effectiveness
of using front organizations to avoid detection, my mind went to some
of the other cases we were investigating at that moment. The Hard Narcotics
Smuggling Unit was then deeply involved in complicated international investigations
involving the use of major corporations like Gran Colombiana Shipping
lines and Pan American airways for the smuggling of drugs, all of which,
by both necessity and design, involved the use of blind mules and/or unwitting
accomplices.
Ships from Colombia, for example, would arrive in
port with hundreds of kilos of cocaine masterfully secreted in ship containers,
cargo and even inside the hull compartments of the ship itself.
As a Spanish speaker I had personally interrogated
hundreds of crewmembers, most of whom claimed total ignorance of the illegal
cargo. Thousands of man hours were spent interviewing and investigating
all Blind Mule claims, at the same time taking advantage of the cooperation
of these crewmen by delving for more information and leads; leads that
often led to the identification and indictment of entire organizations
and/or proved deception.
This strict adherence to National Drug Policy and
the Search-for-Truth doctrine, during the 1970s and 80s, paid its dividends.
It was, for example, the investigation of the Gran Colombiana Lines that
first led to the identification of the Medellin Cartel and the thorough
investigation of countless blind mule claims were important stepping-stones
in the first massive, conspiracy indictments of that organization.11 It
was unthinkable then, as it should be now, to, with little or no investigation,
simply charge all crewmembers with knowledgeable participation in drug
smuggling on the basis of "expert" testimony that it is "absurd"
to believe otherwise.
Ship Smuggling Cases-Blind Mules Now
To contrast the past with the present and illustrate
the damage done to both our justice system and the drug war itself, by
the "discovery" that the Blind Mule does not exist, I need to
look no further than some of the biggest drug seizures in recent history.
In US v Anatoli Zhakarov, (2002) more than 12 metric
tons of cocaine ($400 million in street value) was seized aboard a ship,
the Svesda Maru, on the high seas off the coast of Mexico, so well concealed
that it took US Customs more than 5 days to find and remove the drugs
from the ship's hull. Crewmembers claimed that they were ignorant of the
cargo and were willing to give detailed statements. No such statements
were taken. No investigation of their claims was attempted. The entire
crew was simply charged in US Federal Court with Conspiracy and Possession
with Intent to Distribute. In short, none of the standard Interdiction
investigative tactics proven so successful in the past were utilized during
the crucial hours immediately following the seizure, nor was there any
subsequent conspiracy investigation.
I testified that one of the defendants had identified
the ship's agent in Ecuador who had hired him to crew the ship and that
the DEA agent interrogating him had the opportunity, at that moment, (at
minimum), to put the defendant on the phone with man who hired him and
to tape-record the conversation; that, in my opinion, considering that
the unprecedented size of the drug seizure, to spend less than forty-five
minutes on the interrogation of a man willing to cooperate and to fail
to implement even this most basic and minimal investigative effort was
outrageous and inconsistent with National Drug Policy. Within weeks the
U.S. Attorneys office indicted the unknown ship's agent, presumably on
the basis of expert opinion that he too "had to know" he was
crewing a ship for a drug delivery.
Bottom line: As viewed through the lens of my now
40 years of training and experience, this was only a face saving indictment
in direct reaction to my testimony. The man would never be extradited
to the U.S. based on the flimsy evidence against him, nor do I believe
that the prosecution truly desired said extradition. Thanks to the current,
shortsighted, they-had-to-know prosecutorial theory, the opportunity to
eradicate the monstrous criminal organization behind this (according to
the prosecution) "largest-shipment-of-illegal-drugs-in-history"
was lost forever. The loss of the cocaine would be factored into the normal
cost of doing business and would have no detectable effect on the availability
of cocaine anywhere on earth.
In US v Barahona, et al. (2004), more than 4,939
pounds of cocaine were seized from a "go-fast" boat on the high
seas. Colombian crew members who lived in stark, poverty conditions, (i.e.
dirt floor shacks) claimed to have been coerced into taking part in the
trip, by threats against the lives of their families. They were willing
to make full statements and to cooperate in any manner. Their attempts
to speak to anyone who would listen were ignored for more than seven crucial
days after their arrests, destroying any possibility of using them to
probe the massive organization that had masterminded this shipment. No
investigation of their claims was ever conducted nor even deemed necessary.
Expert testimony from the government, after two trials, was enough to
convince a jury that they must have been willing participants. The organization
behind this massive load of cocaine, again, was never touched.
In 1996, the Natalie One was seized in the Pacific
with more than 24,000 lbs of cocaine on board. Once again, none of the
standard Interdiction tactics were utilized during the crucial hours immediately
following the seizure, nor was there any subsequent conspiracy investigation.
Only the crew was prosecuted.
In US v Pedro Pablo Gomez-Trejo et. al., on February
1, 2001, more than 8.8 tons of cocaine was seized on board Forever My
Friend, traveling northbound on the high seas off the coast of Mexico.
There was no investigation into the source. None of the standard Interdiction-investigative
tactics were utilized during the crucial hours immediately following the
seizure, nor was there any subsequent conspiracy investigation. Only the
ten crew members were prosecuted. The source of a shipment of cocaine
valued at hundreds of millions of dollars was once again left untouched.
On September 17, 2002, Asa Hutchinson, the DEA chief,
testified before congress that in the 20 months prior to his statement,
71 metric tons of cocaine had been seized on the high seas "destined
for the United States." What he failed to include in his statement
was that not a single one of these seizures resulted in the identification
and prosecution of a source.12
In the past decade, hundreds of tons of cocaine worth
billions of dollars have been seized from ships traveling the Pacific,
yet, since the government's "discovery" that there was no such
thing as a Blind Mule and/or any unwitting or coerced participation in
drug trafficking, I can find not a single one of these seizures that resulted
in the identification and prosecution of a major source. It's only the
crew members who go to jail. And it bears repeating, that in this time
of drug-trafficking support of terrorism, the damage this type of flawed
reasoning is doing to both our system of justice and our national security
cannot be overstated. Were I either a drug baron or a terrorist whose
operations depended on drug money, this kind of enforcement and prosecution
is precisely what I would have hoped for.
"The Bird in the Mine Scam"
Years later, (1979) while working undercover in Buenos
Aires, Argentina, I would spend a full week in Buenos Aires negotiating
a drug smuggling deal with Marcello Ibañez, ex Minister of Agriculture
of Bolivia and ruling member of La Mafia Cruzeña,-the Roberto Suarez
organization.13 Marcello, like Gary and Mr. Geh nine years earlier in
Thailand, thought he was hammering out a drug deal with an American based
Mafiosi which, again, afforded me an insight that few of the current crop
of government experts ever seem to get. During the average of 10-12 hours
of negotiating each day, Marcello laid out every smuggling scheme his
organization was then using, which included aircraft, aircraft to ship
transfers and the use front organizations. Then he mentioned one I had
not heard of before, "the bird in the mine."
The way it worked was that a "pajaro" (
a dupe-literal translation a "bird") would be found among the
many international wheelers and dealers shopping Bolivia for bulk quantity
bargains in sugar, copper or other commercial items. The dupe would be
offered a quantity of sugar at a price he couldn't refuse. He would also
be directed to a US Customer (another front company), who would guarantee
a price that would result in a significant profit. A deal too good to
be true.
Unbeknownst to the bird, a ton of cocaine would be
concealed within the load of sugar. The bird was now way out front. It
was his transaction. His name was on all the paperwork. He actually bought
the "sugar" and arranged for its shipping to the US. If Customs
somehow found the drugs it was the "bird" alone, like the canaries
sent into coalmines, who would die.
The investigation would end with me paying $8 million
in cash to Alfredo "Cutuche" Gutierrez and Jose Roberto Gasser,
scion of the Gasser family the richest and most powerful family in Bolivia
at the time. I made the payment in a Miami bank vault for the then largest
load of cocaine on record. "Do you need help getting the money out
of the US?" I asked.
Gutierrez said: "No we have large interests
here in the US. When we move the money back to Bolivia, we simply declare
the money as part of our business." Gasser Industries, among other
things, were exporting large amounts of sugar to the US.
"Bird in the mine scam?-no such thing" -
government experts-US v David Bensimon,
Mr. David Bensimon ran into exactly the kind of deal
that Marcello Ibañez had described. The Orthodox and highly religious
Mr. Bensimon, usually an importer of fish, was doing his customary business
in Venezuela. At the time the fish business was not going too well, so
one can only imagine the delight of Mr. Bensimon when an acquaintance
offered him a deal that was too good to be true. The man, whom the US
government "strangely" seems to have absolutely no interest
in locating or indicting, knew of glass construction blocks being offered
at a rock bottom price in Venezuela. The acquaintance also happened to
know that the price the goods would fetch in California allowed for a
substantial profit.
Needless to say, Mr. Bensimon took the bait. On 10/9/96,
he imported 1500 cartons of glass blocks from Venezuela. Unbeknownst to
him, 51 cartons contained glass blocks, which in turn contained cocaine,
totaling 203 kilograms, having a street value of more than $ 10 million.
The cocaine was perfectly concealed within the glass blocks, undetectable
to anyone but a professional or a conspirator in the scam.
Since unwitting dupes like Mr. Bensimon, according
to the government's current philosophy, don't exist, no investigation
of his life style, his finances, his contacts, was ever conducted, all
of which would have revealed not an iota of evidence that the man had
any predisposition and/or ability and/or contacts to buy or distribute
this large quantity of illegal drugs. Instead, the shipment was delivered
directly into the waiting arms of Mr. Bensimon after which he was almost
immediately arrested. His subsequent statements, since he refused to admit
guilt, were ignored and he found himself the sitting duck target of the
full prosecutorial might of the US Government.
True to current form, a government expert testified
that, due to the value of the shipment, Mr. Bensimon had to know what
he was doing. Mr. Bensimon's first attorneys saw fit not to seek a contradicting
expert opinion and was quickly convicted and sentenced to 20 years in
prison. The story doesn't end here, however.
Due to legal technicalities Mr. B was granted a new
trial. The prosecutor, (perhaps in the throes of guilt feelings?) offered
Mr. Bensimon the opportunity to plead guilty and spend no more than three
years in prison. Mr. Bensimon's response: "It is against my religion
to plead guilty to a crime I did not commit."
The second trial was a replay of the first. Once
again his attorneys failed to retain an expert to contradict the government
theory. Once again he was convicted. Once again he was sentenced to 20
years in prison.
I was retained by his final attorneys Ephraim Margolin
and Gary Dubcoff in San Francisco to review the case. In October, 2002
I filed an Expert Witness affidavit in support of a Habeas Corpus appeal,
pointing out all the violations of national investigative standards, the
Search-for-Truth doctrine and National Drug Policy, concluding that had
I been retained to testify in either of his earlier trials my testimony
would have radically contradicted those of the government experts. On
June 23, 2005, almost three years after my affidavit and the appeal were
filed, 90 year old judge, William Rea, in a twenty-six page ruling rejected
the appeal. Mr. Bensimon has thus far served nine years for a crime that,
in my opinion, he did not commit and the true smugglers are still in business
using the same methodology.
I cannot help but believe that if through some freak
time warp, the Hard Narcotics Smuggling Unit of 1970 had fielded the glass
block shipment, Mr. Bensimon would be a free man now, a somewhat poorer
and very much wiser man, and the real culprits serving his time. And that
is not bragging, it is simply a tragic observation of the decline of both
our system of justice and the professional abilities of those charged
with our protection.
US v John Edward Davidson-The Rest of the Story
US v John Edward Davidson, Liang Sae Tiew, et al,
ended with arrests of Gary and Mr. Geh as they delivered the first kilo
of heroin to me at the Siam Intercontinental Hotel in Bangkok in 1971.
Also arrested was the head of the false-bottom suitcase operation. I was
told that this was the first "round-the-world" undercover investigation
in which a heroin smuggler, financier, source (and the manufacturer of
false-bottom suitcases) were arrested emanating from a blind mule claim.
I was given a U.S Treasury Special Act Award for the case.
What is most important about this for both defense
attorneys and juries to realize is that, since the government's "discovery"
that the claim of blind mule is "ludicrous," freeing many agents
of the duty to investigate not only blind mule claims, but all claims
of innocence based on unwitting and/or coerced participation, these kinds
of cases just don't happen any longer, to the great detriment of both
the war on drugs and the war on terror.
Gloria Cespedes-Cano Trial - The Rest of the Story
Two years after her arrest, Gloria Cespedes-Cano,
sat in a courtroom in the Eastern Judicial District Federal Court, Brooklyn,
New York, facing more than 20 years in prison should she be convicted.
It was a courthouse in which I had testified on numerous occasions as
a government expert. This would be the first time I would be testifying
there for the defense, and I had never in my life felt more certain about
the rightness and urgency of what I was doing.
Under the expert direction of a fine defense attorney,
Michael Hammerman, I was able, through a storm of prosecution objections,
to testify as to the radical violations of investigative process, the
Search-for-Truth Doctrine and National Drug Policy; that, no effort whatsoever
had been made to identify the source of the drugs, which, in my opinion
would have revealed information supportive of Gloria's claim that she
was a Blind Mule; and that the agents and prosecutors had based their
theories of guilt on the erroneous belief that Gloria Cespedes-Cano, alleged
to be in a business devoid of trust, had to be trusted. I testified that
the Customs agents had conducted a "pin-the-tail-on-the-donkey investigation,
as opposed to a search for truth. I was able to conclude my testimony
by looking at the jury and telling them that in this time in our history
when it is mandatory to leave our checked baggage unlocked, "This
could have happened to any one of you."
After a whole day of deliberations, the jury found
Gloria "not guilty" on all counts. I want to emphasize here
that this is not chest thumping on my part. I have learned through hard
experience that an expert witness is like a single musician in an orchestra.
No matter how well he can play without a good conductor his "music"
is lost in a cacophonous mess of sound. This victory for justice could
not have happened without a defense attorney who understood the problem,
knew how to effectively cross-examine the government agents to set up
expert testimony and then wage courtroom war to ensure that his expert's
testimony was admitted. Mike Hammerman was such an attorney or Gloria
Cespedes-Cano would be spending the rest of her adult life behind bars.
Conclusion
The article stating the current government position
on Blind Mules and unwitting participants in drug trafficking, concludes
with the words:
"Remember that going the extra mile at the time
of the arrest may save hours or days of courtroom battling of the blind
mule defense."14
The author in this single sentence has summarized
the real difference between then and now. The current crop of law enforcement
officers and prosecutors who have sworn oaths to protect the people who
hired them and our constitution are too often not willing to go that extra
mile, or I would not be writing this article. Too many seem quite happy
to make the arrests of whoever walks into their outstretched arms without
conducting a due diligence investigation, add up the seizures to be paraded
before congress, submit themselves for cash awards for "excellence"
of performance and then rely on the word of government "experts"
for conviction. Adherence to the Search-for-Truth Doctrine and National
Drug Policy are things of the past.
I cannot be certain precisely when or how this change
in prosecutorial and investigative practices occurred or whether or not
it came as a result of a deterioration of professionalism on the part
of investigative agencies of the type that led to the 9-11 tragedy. What
I am certain of is that the price America now pays for this change can
be felt in the deterioration of our system of justice and gangs of international
drug traffickers and terrorist sharks that can safely operate with impunity
while the American justice system targets the minnows. What criminal defense
attorneys must understand is that turning this dangerous tide must begin
in the courtroom.
1 Pseudonym.
2 "BLIND MULES- FACT OR FICTION?" By Special
Agent Jim Delaney Drug Enforcement Administration, Sacramento District
Office
3 Altered States of America, by Richard Stratton,
Avalon Books, October, 2005.
4 Now referred to by many federal agencies as CW
(Cooperating Witness) as a means of evading the Discovery demands of the
less experienced defense attorneys.
5 The full story of the Pedro Castillo case can be
found in The Big White Lie, by Michael Levine and Laura Kavanau-Levine,
Thunder's Mouth Press, 1996.
6 Castillo consummated the deal and "rode shotgun"-accompanied-four
Bolivian prostitutes on a flight to Miami; each was carrying 2.5 kilos
of cocaine to be delivered to my "cousin" (an undercover DEA
agent). Castillo was arrested and convicted.
7 Full story of the Jaime Ibarra investigation may
be found in Undercover by Donald Godddard, Times Books, March, 1988.
8 US v Dorothy Henry, Federal Court, Washington,
DC, 2002.
9 See "King Rat" by Michael Levine, Utne
Reader, Prison Life, for more on the misuse of criminal informants by
police agencies.
10 Name withheld at the request of attorney Ken Westlake
of Vancouver, BC.
11 See Undercover, by Donald Goddard, those sections
devoted to Special Agents Alexander Smith and Pat Shea's investigation
of Gran Colombiana Line.
12 DEA Congressional testimony of Asa Hutchinson,
DEA Administrator, on 9/17/02, before the Senate Committee on Narcotics
Control.
13 US v Roberto Suarez et al - also: The Big White
Lie, by Michael Levine and Laura Kavanau, Thunders Mouth Press, 1996.
Roberto Suarez would be called "the biggest drug trafficker who ever
lived," by convicted Medellin Cartel money launderer, Felix Milian
Rodriguez in testimony before the a U.S. Congressional Committee headed
by Senator John Kerry.l
14 "BLIND MULES- FACT OR FICTION?" By Special
Agent Jim Delaney Drug Enforcement Administration, Sacramento District
Office 28
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