Humberto Loya's charges were dismissed in 2008 in exchange for his cooperation. But, here's the twist. According to Loya and Vicente, their cooperation was not about their confederates or higher-ups in the Sinaloa cartel, but about rival cartels. And that in exchange for providing information about rival cartels, they were told they could continue their own illegal activities. Humberto Loya has claimed he was "the filter" for information passed on to him from Chapo Guzman and Ismael Zambada-Garcia, which he provided to the DEA, and in exchange, the U.S. would not arrest Chapo or Mayo, would not share information about them with Mexico, and they were free to carry on.

Loya-Castro and Chapo (Joaquin Guzman-Loera) were indicted in 1995 in San Diego. Neither were arrested. Nothwithstanding Loya-Castro's fugitive status and the outstanding warrant for him, the DEA began using him as an informant, in 2000 or earlier. They met with him personally. In 2008, the government dismissed the 1995 indictment against Loya-Castro.

Vicente's lawyers alleges that Loya-Castro has told them (Document #127 Filed 10/24/11):

...the conditions of his informant relationship were that he would relay information from the leadership of the Sinaloa Cartel to government agents regarding rival drug trafficking organizations in exchange for the government’s agreement not to pursue prosecutions of the leadership of the cartel.

More specifically, they argue (Document #94 Filed: 07/29/11:)

Sometime prior to 2004, and continuing through the time period covered in the indictment, the United States government entered into an agreement with Loya and the leadership of the Sinaloa Cartel, including Mayo and Chapo. Under that agreement, the Sinaloa Cartel, through Loya, was to provide information accumulated by Mayo, Chapo, and others, against rival Mexican Drug Trafficking Organizations to the United States government. In return, the United States government agreed to dismiss the prosecution of the pending case against Loya, not to interfere with his drug trafficking activities and those of the Sinaloa Cartel, to not actively prosecute him, Chapo, Mayo, and the leadership of the Sinaloa Cartel, and to not apprehend them. (my emphasis)

The defense also claims the DEA would pass on warnings to Loya to help Chapo and Mayo avoid arrest by Mexico:

In addition, the defense has evidence that from time to time, the leadership of the Sinaloa Cartel was informed by agents of the DEA through Loya that United States government agents and/or Mexican authorities were conducting investigations near the home territories of cartel leaders so that the cartel leaders could take appropriate actions to evade investigators -even though the United States government had indictments, extradition requests, and rewards for the apprehension of Mayo, Chapo, and other alleged leaders, as well as Mr. Zambada-Niebla.

The Government admits Loya was an informant and worked his way out of his 1995 case, but denies it promised him or the Sinaloa cartel immunity.

This is all coming up now because Vicente says he was covered by Loya's agreement as one of those who could provide info about rival gangs and not be prosecuted, even as he continued to do Sinaloa business.

The DEA also doesn't deny that it set up a meeting for Loya to bring Vicente to meet them and become an informant like Loya, but it says it canceled the meeting at the direction of higher-ups. Nonetheless, they say, Loya and Vicente showed up anyway and Vicente offered his services. Hours after the meeting, Vicente was arrested by Mexican authorities and later extradited to the U.S. to stand trial in Chicago. Vicente is claiming the public authority defense and that he has immunity. From Vicente's motion:

Mr. Zambada-Niebla was aware that Mr. Loya-Castro was permitted to continue his drug trafficking activities so long as Mr. Loya-Castro and the leadership of the Sinaloa Cartel provided information to the United States government. The DEA was aware that Mr. Zambada-Niebla was providing information to Loya pursuant to the agreement because Loya told them. Representatives of the DEA told Loya that they were grateful for the information provided by Mr. Zambada-Niebla.

....Pursuant to the agreement, Loya arranged for Mr. Zambada-Niebla to meet with United States government agents at the Sheraton Hotel in Mexico City in March of 2009 for the purpose of introducing Mr. Zambada-Niebla to the agents and for the purpose of his continuing to provide information to the DEA and the United States government personally, rather than through Loya. Loya's federal case had been dismissed in 2008 and the DEA representative told Mr. Loya-Castro that they wanted to establish a more personal relationship with Mr. Zambada-Niebla so that they could deal with him directly under the agreement.

Mr. Zambada-Niebla believed that under the prior agreement,activities of the Sinaloa Cartel, including the kind described in the indictment, were covered by the agreement, and that he was immune from arrest or prosecution. Loya was told by United States government agents, and told Mr. Zambada-Niebla, that Mr. Zambada-Niebla would not be arrested if he met personally with the DEA agents, even though the DEA agents knew that there was an extradition warrant outstanding for his arrest.

DEA agents told Mr. Loya-Castro to tell Mr. Zambada-Niebla that they wanted to continue the same arrangement with him as they had with Mr. Loya-Castro. Mr. Loya-Castro relayed that message to Mr. Zambada-Niebla. When Mr. Zambada-Niebla met voluntarily with the government agents in Mexico City in the presence of Mr. Loya-Castro, the aforementioned assurances were repeated to Mr. Zambada-Niebla. Mr.Zambada-Niebla was told he would not be arrested, that the agents knew of his prior cooperation through Loya, and that they just wanted to continue receiving information from him. Mr. Zambada-Niebla was also told that the arrangements with him had been approved at the highest levels of the United States government. Mr. Zambada-Niebla was told that a Washington, D.C. indictment would be dismissed and that he would be immune from further prosecution. There is also evidence that at the hotel, Mr. Zambada-Niebla did accept the agreement and thereafter in reliance on that agreement, provided further information regarding rival drug cartels. Mr. Zambada-Niebla was told that the government agents were satisfied with the information he had provided to them and that arrangements would be made to meet with him again. Mr. Zambada-Niebla then left the meeting. Approximately five hours after the meeting, Mr. Zambada-Niebla was arrested by Mexican authorities. (my emphasis)

Thus, the defense argues:

Mr. Zambada-Niebla was a party to the agreement between the United States government and the Sinaloa Cartel and provided information to the United States government through Loya pursuant to the agreement. Loya himself continued his drug trafficking activities with the knowledge of the United States government without being arrested or prosecuted.

But Vicente may be more of a side story, if this allegation is true:

In addition, Mayo (Ismael Zambada-Niebla) and Chapo were informed through Loya that the United States government would not share any of the information they had about the Sinaloa Cartel and/or the leadership of the Sinaloa Cartel with the Mexican government in order to better assure that they would not be apprehended and so that their operations would not be interfered with.

Snitch and receive a get out of jail free card pales in comparison to snitch, stay in business and be free from arrest. The defense says this is an intentional DEA strategy called "Divide and Conquer" that the DEA used in Colombia and is now using in Mexico:

This strategy... “Divide & Conquer,” using one drug organization to help against others, is exactly what the Justice Department and its various agencies have implemented in Mexico.

In this case, they entered into an agreement with the leadership of the Sinaloa Cartel through, among others, Humberto Loya-Castro, to receive their help in the United States government’s efforts to destroy other cartels. Under that agreement, the Sinaloa Cartel under the leadership of defendant’s father, Ismael Zambada-Garcia and “Chapo” Guzman, were given carte blanche to continue to smuggle tons of illicit drugs into Chicago and the rest of the United States and were also protected by the United States government from arrest and prosecution in return for providing information against rival cartels which helped Mexican and United States authorities capture or kill thousands of rival cartel members. Indeed, United States government agents aided the leaders of the Sinaloa Cartel. (my emphasis)

Put another way:

...Among other benefits received by the leadership of the Sinaloa Cartel was that United States government agents did not share any of the information they received relating to the Sinaloa Cartel with the Mexican government and the leadership of the Sinaloa Cartel was kept informed of both Mexican and United States government operations in areas near their location. Indeed, Mr. Loya-Castro was permitted to be present while government agents were discussing strategies regarding operations they were conducting in Mexico. Moreover, no effort was made by United States government agents to apprehend Ismael Zambada-Niebla or “Chapo” Guzman, who had been indicted several times in the United States and were subjects of extradition requests by the United States government.

...Essentially, the theory of the United States government in waging its “war on drugs” has been and continues to be that the “end justifies the means” and that it is more important to receive information about rival drug cartels’ activities from the Sinaloa Cartel in return for being allowed to continue their criminal activities, including and not limited to their smuggling of tons of illegal narcotics into the United States.

The defense says this is similar to Fast and Furious and is seeking discovery on that operation. The Government says one has nothing to do with the other. But it does admit working with Loya while he was a fugitive:

In June 2005, DEA sought approval to continue using Loya-Castro as a cooperating fugitive defendant. As a Mexican citizen under indictment in the United States but living in Mexico, Loya-Castro was beyond the arrest power of federal agents. DEA agents sought approval to meet and continue to use Loya-Castro as a cooperating fugitive defendant from the Sensitive Activities Review Committee. See SGS-92-X003 v. United States, 85 Fed.Cl. 678, 689 (Fed. Cl. 2009).

“In conjunction with its objective of reducing the flow of drugs into the United States, DEA established the Sensitive Activities Review Committee (‘SARC’) to review activities that DEA viewed as warranting special attention, including drug-related money laundering activities and operations utilizing Attorney General exemptions.” Id. at 689. In August 2005, the SARC authorized the continued cooperation of Loya-Castro, pursuant to, among other things, the cooperation agreement with the U.S. Attorney’s Office in San Diego. In the aftermath of signing the cooperation agreement, and pursuant to its terms, Loya-Castro continued to cooperate with U.S. law enforcement.

The Government's version of the meeting with Vicente (Document #109 Filed: 09/09/11:)

In approximately January 2009, Loya-Castro approached DEA agents about attempting to introduce them to defendant Zambada-Niebla, and indicated that Zambada-Niebla may be interested in cooperating with the U.S. government. At the time, Zambada-Niebla was under indictment for federal narcotics offenses charged in Washington, D.C. in an indictment returned in 2003. obtained permission from DEA agents and prosecutors in Washington, D.C. to conduct a preliminary introductory meeting with defendant for the purpose of determining his interest in cooperating with the U.S. government and its feasibility. Agents arranged to meet Loya-Castro and Zambada-Niebla in Mexico City on March 18, 2009.

On the afternoon of March 17, 2009, DEA agents Manuel Castanon and David Herrod flew to Mexico City, and met with DEA agents from Washington, D.C. at the U.S. Embassy in Mexico City to make arrangements to meet Loya-Castro and defendant. Upon their arrival at the Embassy, the Regional Director (“RD”) for the North and Central Americas Region of DEA, David Gaddis, met with the agents. RD Gaddis expressed concern about American agents meeting with a high-level cartel member like defendant Zambada-Niebla in Mexico, and expressly ordered the DEA agents not to meet with defendant without further authorization.

Agent Castanon thereafter called Loya-Castro, and instructed Loya-Castro to meet with agents so that the agents could explain to him in person that the meeting with defendant was cancelled.

Thereafter, DEA agents met with Loya-Castro at a Mexico City hotel and informed him that they had not been authorized by their superiors to meet with defendant Zambada-Niebla. Loya- Castro expressed dismay at the meeting being cancelled, and indicated he needed to inform defendant personally. Loya-Castro left the hotel.

A short time later, Loya-Castro returned with defendant to the hotel against the agents’ instructions. DEA agents informed defendant that they could not meet with him, as they had not been authorized to do so. Defendant indicated that he simply wished to convey personally his interest and willingness to cooperate with the U.S. government. Agents repeated that they were not authorized to meet with defendant, much less have substantive discussions with him, and agents informed defendant and Loya-Castro that they would be in contact if and when they were authorized to hold another meeting.

The issues have been briefed and a status hearing is scheduled for tomorrow, October 27.