Original Post 4/27/11: Jury Deliberating DEA "African Adventures" Case

The jury today began deliberations in the case I call the "DEA's African Adventures." The trial began April 4, and after the first day of testimony, when the DEA agent testified that the son of the President of Liberia helped them in the sting by posing as a corrupt Liberian official, there has been only one U.S. news article on the trial.[More...]

There are also no updates on the court's docket between the start of the trial and today, except for one filing of requested jury instructions by two of the defendants and today, the court's final instructions to the jury. In every other case I can recall, the court at least posts minutes of the day's proceedings on PACER. Defendants or the Government usually file some motions during trial. Did the court impose a public blackout? Is it withholding pleadings and orders filed during the trial from public view until after the verdict?

Because the case has generated interest in Russia, home of pilot and defendant Konstantin Yaroshenko, there are some Russian news articles. Here's the latest and here is the description of the defense closing arguments yesterday. (Google translation.) [More...]

There was no verdict today, and the jury asked to review some evidence.

At the end of the day the jury requested to provide them with excerpts from one of the documents constituting the evidence base for the charges, said Lee Ginsberg. As far as we can judge, it is a transcript of a conversation, during which the confidential informant by the U.S. Drug tried to provoke Yaroshenko and other defendants in the case to ensure that consent to smuggle 200 kilograms of cocaine from Ghana to the United States.

Again, this case involves an elaborate sting by the DEA in Africa, involving cocaine to be shipped from South America to Liberia, and then to Ghana, and then to Europe. The Superseding Indictment is here. It was not destined for the U.S. To make the case in the U.S., the DEA informant announced to the others that he was going to send his share of the profits on a flight from Ghana to the U.S. The charge against the men is conspiracy to distribute more than 5 kilos of cocaine, knowing or intending that some of it would be imported into the U.S.

Prior to trial, the judge rejected defense claims of manufactured jurisdiction (opinion here.) Three of the four defendants acknowledge they were part of a conspiracy to distribute cocaine. They deny they intended any of the cocaine to come to the U.S. and did nothing to make that happen.

The court apparently rejected the defense instruction on multiple conspiracies. The law is that the jury must find the defendants guilty of the particular conspiracy charged in the Indictment. If the jury finds the defendant was involved in a conspiracy other than the one charged, it must acquit.

At least two of the defendants say they couldn't have been members of the charged conspiracy because they didn't believe the informant when he said he was going to have his share of the cocaine shipped to the U.S. (He told them he wanted it flown to Ghana from Liberia, and he would then make arrangements to put it on a flight to New York.)

Yaroshenko's defense is a bit different. According to Russian news articles, he says he responded to an ad to buy an airplane (which it turns out was placed by a mercenary in cahoots with the DEA). After six months of negotiations, the airplane was not in operable condition and required $900,000 of repairs, which Yaroshenko didn't have. So another DEA informant, pretending to be a Lebanese financier, got involved and sold the plane to Yaroshenko for 1 Euro. But the plane couldn't be flown because it was inoperable. Yaroshenko says he couldn't be part of the conspiracy. No plane, no crime, said his lawyer (again, this is according to a Russian news article).

Of course, there never were any drugs and no drugs were seized. But the DEA kidnapped Yaroshenko in Liberia, failed to tell the Russian Embassy, and flew him to NY to stand trial. The others were also arrested in Liberia and flown to the U.S.

Chigbo Umeh's lawyer told the jury his client would never join a conspiracy where drugs were coming to the U.S. because he spent 6 years in a U.S. prison on a drug charge and knew how steep the penalties were.

In other words, three of the four defendants say they are not guilty because while they conspired to distribute cocaine, the conspiracy they were a part of had zero to do with the U.S. and is not the conspiracy charged in the Indictment.

With proper jury instructions, including a defense theory of the case, the defendants might stand a chance. From reading the instructions given by the Court to the jury today, it's much more of an uphill battle. The Court is allowing the jury to convict upon a mere finding that the defendants knew (rather than intended) a portion of the cocaine would go to the U.S.. From the Instructions:

What is necessary is proof beyond a reasonable doubt that the defendant intentionally joined in the conspiracy for the purpose of furthering its unlawful object, which was to distribute cocaine knowing or intending that some of it would be imported into the United States.

... In short, in order to satisfy the second essential element of the charged offense, you must find beyond a reasonable doubt that each defendant, with an understanding of the unlawful character of the charged conspiracy, intentionally joined and participated in the conspiracy for the purpose of furthering the unlawful object of distributing cocaine, knowing or intending that some portion of the cocaine would be imported into the United States. (My emphasis)

This is not the only DEA African Adventure case in New York. Another is U.S. v. Ali Sesay, et.al., Case No. 10-457 (SDNY). Defense lawyers in all of the cases have argued manufactured jurisdiction, to no avail. As one lawyer wrote in a brief:

In short, the only connection to the United States was manufactured by one “Nabil”, a cooperating source with the Drug Enforcement Administration, who insisted that he get paid in cocaine to be trans-shipped from Liberia to Ghana and then to New York. Nabil’s insistence on being paid in cocaine to be sent to the United States had nothing to do with the charged conspiracy and was a blatant attempt on the part of the Drug Enforcement Administration agents to justify their involvement in this investigation, and to manufacture subject-matter jurisdiction, where none existed.

In the Sesay case, like this case (which is U.S. v. Chigbo Peter Umeh, et. al. , Case No. 09 cr 00524, Southern District of New York), no cocaine was ever shipped to Africa, let alone to the U.S. These cases have no connection to the U.S. except for the law enforcement tactics used to create the appearance of some nexus in order to bring the charges in this country. The cases should be prosecuted in Africa, especially now that Liberia is touting its own horn about how it cooperates with DEA to ferret out bribery and drug deals. As Yaroshenko's attorney argued unsuccessfully in a brief:

Instead of artificially manufacturing nexus to the United States, the DEA agents could have cooperated with the Liberian authorities to ensure that the defendants were brought to justice in Liberia. In addition, Russia or Ukraine also had an interest in the alleged criminal activity, since Konstantin Yaroshenko was a Russian citizen and some of the alleged meetings took place in Ukraine.

In contrast, the sovereign interest of the United States was not implicated: none of the defendants are U.S. citizens and the alleged conspiracy had nothing to do with the United States except for DEA’s manufactured nexus.

As I've opined before, in a post about the Wikileaks released cables on the DEA and Africa (some cables are here, here and here.):

How much of our money is the DEA spending on its African adventures? And how much are we spending to fly these sting targets from Africa to the U.S., hold them for a year or more in pre-trial detention, fund their defense, try them, incarcerate them for decades, and then fly them back when they are deported after their sentences? Considering unless the DEA demands otherwise, the (illusory) drugs are going from South America to Africa to Europe, why is it even their business to intervene? Or to steer non-U.S. criminal activity into the U.S.?

I'd bet that if you told every American how much money Congress has authorized the DEA to spend on stings designed to stop drugs being shipped from South America to Africa to Europe, and then to fly those arrested to the U.S. for trial and how much we'll be paying for their years of incarceration, you could fit all those who approved on the head of a pin.

...The DEA's most excellent African adventures aren't winning the war on drugs or even impacting drugs coming into the U.S. They are just wasting our money.

Congress is responsible for funding the DEA and the War on Drugs, here and abroad. The DEA is in the process of opening a new office in Nairobi. The DEA's 2012 budget justification is here. Amount for international enforcement: $420 million. (For domestic enforcement, it's 1,604,981 million. Total: $2 billion.)

No wonder we have no money for health insurance, education, social security and Medicare. We've given the War on Drugs abroad its own stimulus package. And mainstream U.S. media is so disinterested, it can't even be bothered to cover the trial.

It costs more than $20,000 a year to incarcerate a federal inmate. If the defendants are convicted, Umeh is facing a mandatory minimum sentence of 20 years because of his prior conviction, and the others are facing mandatory minimum sentences of 10 years. The maximum for all is up to life. Even though no cocaine ever materialized, because the quantity of cocaine involved in discussions during the sting (4,000 to 6,000 kilograms) exceeded 150 kilograms, their sentencing guidelines call for a sentence of at least 20 years, unless the judge decides at sentencing that a particular defendant had a minor role in the conspiracy.

The amount of money being spent by our Government on drug cases across the world which have no connection to the U.S. other than fake enticements by the DEA is staggering. Someone in Congress needs to question these budget appropriations and object.