Part One
(December 2020)
Over the years of practicing criminal defense, it has been our experience that clients are often not completely forthcoming during our initial encounter. Very often the first meeting begins with our client professing his/her innocence. However, over time, once the client becomes more comfortable with us and sees the government’s evidence, without fail, the real story begins to unfold. Although, despite that common occurrence, our experience has taught us never to be too cynical and always give our clients the benefit of the doubt.
One particular case comes to mind where we represented a man in federal court that was being accused of conspiracy to possess, with the intent to distribute, methamphetamine. This new client was in custody, so I needed to visit him for the first time at the detention center. When our client was brought out to me, the first thing I did was introduce myself and began explaining the nature of the charges against him. The expression on his face was of utter shock when I told him that he was facing a mandatory minimum sentence of 10 years to life in federal prison. I also informed him that since he was a Mexican national he would most likely remain in custody for the pendency of the case and if he were to be convicted of the crime, he would be deported and forever be barred from returning to the United States.
As I transitioned into explaining the Court process, our client abruptly interrupted me and declared “I didn’t do what I’m being accused of!” “This is a mistake!” I have always felt that a trait I possess is the ability to read people and detect deception. This man’s tone and body language were so resolute. I was not able to tell if he was speaking the truth. I assured him that if he truly was not involved in the alleged drug conspiracy, we would make sure the truth came out. I then asked him to tell me the details of the events according to him. He told me that he was a business owner from Nuevo Laredo, Mexico. On the day in question, he was crossing by foot into the United States, was arrested at the bridge, and thrown into an interrogation room. He told me that he was handcuffed to a table for over an hour without any explanation as to why he was being detained. After about an hour, two individuals that identified themselves as DEA agents came into the room and asked him why he was crossing into the United States. He told the agents that he was coming into downtown Laredo to purchase a karaoke machine for a family gathering he was having later that evening. The agents showed him a picture of a man they said was an undercover agent that he had supposedly met with to discuss the transportation of 15 kilograms of methamphetamine. Our client told the agents that he had never met the undercover agent in the picture and had never discussed the transportation of drugs with anyone. Our client told me that the agents showed him some pictures of a man that they claimed arranged for him to meet with undercover agents. The agents claimed that our client was in charge of supplying the methamphetamine that was going to be transported from Laredo to Austin. He said that he was completely confused and shocked because he had never met these men nor ever seen them before. He told me that he tried to tell the agents that they were mistaking him for someone else and that they were wrong, but the agents began laughing at him. The agents called him a liar and told him that if he did not cooperate with them, he was going to prison for at least 10 years. The panic began to set in. He pleaded with the agents to believe him. He repeated over and over that he was a small business owner from Mexico and did not associate with anyone involved in criminal activity. He told the agents that he has never had as much as a traffic ticket in his life. He told me that the agents became noticeably agitated, ended the interrogation, and placed him in detention.
I must admit, I was intrigued by his story. My gut told me he was telling the truth, but my mind was telling me to look at the evidence before making a decision about his version of the facts. I informed him that the government would be turning over all the evidence to me in a few days and once I reviewed the reports and conducted my preliminary investigation, I would come back to see him. I was anxious to see what the government had on this man. As soon as the evidence was made available, I obsessively scoured through hundreds of pages of reports and evidence. According to the government’s report, our client walked across the bridge from Nuevo Laredo, Mexico. He then got into a vehicle with two undercover DEA agents and for approximately forty-five minutes and discussed the details of a shipment of 15 kilograms of methamphetamine. According to the report, this was to be the first of many meth shipments. At the conclusion of the forty-five-minute meeting, the agents let our client return to Mexico. To verify the identity of the man they spoke with, agents combed through surveillance footage from the video cameras positioned at the port of entry and obtained the footage of our client crossing by foot into the United States. They cross-referenced that surveillance footage with the crossing records to identify our client as the man who crossed the bridge by foot the same evening that the meeting took place in the vehicle. In other words, agents claimed that the man in the surveillance video crossing the bridge was the same man they met within the vehicle for forty-five minutes to discuss smuggling methamphetamine into the US. The government had grainy videos and photos of their meeting in the vehicle with who they identified as our client. They also had an audio recording of that forty-five-minute meeting in the vehicle. I listened to the audio recording, and in my opinion, the voice in the recording sounded like our client. The evidence was building against our client. I remember feeling disappointed because I believed that he was innocent. The more I dug, the guiltier he looked.
Part Two
(January 2021)
As I reviewed the final reports from our voice and facial recognition experts with our client, I felt as if I had been punched in the gut. The experts’ testing that had an 85% accuracy rate revealed:
86% accuracy that the voice recognition from the
government’s audio recording was that of our client
and 88% accuracy that the facial recognition from
the government’s video was also our client.
I was stunned with disbelief. Our client fell to the floor and began to cry uncontrollably. How could a guilty man react like that with all the evidence of his guilt staring him in the face? Eventually, our client calmed down, gathered himself, and asked what his options were. I somberly explained to him that we did not have an alibi for him on the day of the incident, we had three federal agents who would identify him as the man they spoke to in a vehicle for approximately 45 minutes about drug trafficking, and our own experts’ findings showed that he was the man in the government’s audio and video recordings. All we had was his word. His proclamation that the government had the wrong man. He looked defeated. After a short silence, he said, “I have no other choice but to plead guilty and accept the mandatory minimum 10-year sentence”. It was a draining meeting and I told him I would come back to visit him soon after he had some time to digest what we had discussed. As I left the facility, I could not believe that after all the evidence I had shown him, he was still professing his innocence. Most accused eventually admit their guilt after seeing all the evidence against them. He did not. Crazy thing is that I still believed him. The sincerity of his words and demeanor, the look of fear in his eyes—My gut was telling me that he was telling the truth. The question was, how do we prove it? One thing was for certain, I could not in good conscious plead a man who professed his innocence so resolutely, guilty. Our next meeting was very confrontational. I had to push him, test him, see if he would admit that he was guilty. But he never cracked. He remained steadfast that the government had the wrong man. According to him, he was in the United States to shop, not traffic narcotics. At the conclusion of our meeting, I told him I could not let him plead guilty if he was innocent. Without batting an eye, he said “fine then, let’s go to trial.” I was at a loss for words. As trial approached, I spent countless hours replaying our client’s version of events. I used my friends and family to sample how a jury would see this case. After presenting both sides to them, not one person was convinced that my client was innocent. It kept me up at night and was the first thing I thought about when I opened my eyes in the morning.
On one of those restless nights about a week before the trial, I was thinking about my client’s timeline of when he crossed into the U.S. and how it differed from the government’s timeline established by their grainy video and their alleged meeting in the vehicle. It dawned on me, if there was a video showing my client entering the United States, there must be a video showing the date and time he left Mexico. I didn’t know if it existed if I could get it, what it would show, or even if the judge would allow it to be used in Court. It did not matter, I had to try. I made contact with Mexican officials regarding the video footage I needed. It existed! However, it had already been transferred off sight and was being stored in a Mexican customs facility in Matamoros, Mexico. Now what? I was all in at this point. So, I got in my truck and drove to Matamoros, Mexico.
I met with Mexican officials in person and persuaded them to give me a copy of the video footage from that day. By the time I got the video in my hands it was so late I didn’t have a chance to review it. I took the copy that was given to me and started traveling back to the United States— the video either had what I needed or it didn’t. I didn’t get back to the United States until about 3:00 a.m. Later that morning, the Friday before the trial was supposed to commence, I loaded the video and watched it for the first time.
There it was. The silver bullet! A much clearer video of my client leaving Mexico at 12:30 pm. The government agents alleged that he entered the United States at 2:30 p.m. A quick internet search revealed that border crossing foot traffic took approximately 20 minutes to enter the U.S. on that day. My mind was racing! Now I had grounds to request video footage at around the time our client would have been entering the U.S. based on this Mexican video footage. I immediately contacted the prosecutor and told him it was urgent that we meet. I asked him to request the video footage on the United States side on the same date in question but at a different time (about 20 minutes AFTER 12:00 p.m.). At first, the prosecutor looked at me in disbelief—he couldn’t believe I was still hunting for a way to get my client off. However, this prosecutor was seasoned and honorable. He also knew me. He knew I wouldn’t just ask him to do something like this on the eve of trial if I didn’t truly believe it mattered. He made the call. While we waited, he asked, “Why do you want to see that particular time”? I pulled out the video I had obtained from Mexico and slowly slid it to him. To his credit, knowing it could potentially damage his case, the prosecutor obtained the video footage for the time period I requested (approximately 2 hours prior to the grainy video they had). There it was, clear as day. Our client crossing into the United States well before the time agents claimed he had. The prosecutor summoned the lead agent to his office. When the agent was confronted with the new videos, he literally fell back into his seat. The agent said,
“I can’t believe we made that mistake – we
got the wrong guy”.
The prosecutor immediately called the Federal Judge and told him they were dismissing the case against our client. Just like that, it was over. The judge signed the order of dismissal and our client was released. It was unbelievable, but at the same time, so anticlimactic. After this case, I vowed never to allow cynicism to overcome my gut instincts because sometimes a life depends on it.