Appeals Court Throws Out S.D. Drug Convictions of 7

SAN DIEGO —  A federal appellate court Tuesday threw out the 1989 convictions of four Mexicans and three Bolivians who U.S. drug agents said were involved in a scheme to import 86 tons of cocaine, allegedly with the assistance of a Mexican army general who was going to block a highway so an airplane carrying cocaine could land and refuel.

The arrests in 1988 of the seven men, including one identified as a colonel in the Mexican Army, were announced with much fanfare at a press conference in San Diego by U.S. officials, who also used the arrests to blast unnamed corrupt Mexican government officials involved in drug trafficking.

The seven were tried in San Diego before U.S. District Judge William B. Enright.

The Mexicans and Bolivians were arrested in La Jolla in what then-U.S. Atty. Peter Nunez described as a sting operation. Drug Enforcement Administration and U.S. Customs officials lured the seven men to La Jolla on the pretext that undercover agents had agreed to pay them $27 million for 5 tons of cocaine.

On Tuesday, the U.S. 9th Circuit Court of Appeals reversed the convictions, blaming prosecutorial misconduct by Assistant U.S. Atty. Stephen Nelson. The appellate judges said Nelson withheld critical information about David Wheeler, the government’s informant and chief witness, which cast serious doubts on Wheeler’s credibility.

Nelson and the defense attorneys could not be reached for comment Tuesday evening.

The 9th Circuit judges agreed with the defendants’ attorneys that Wheeler lied in his testimony. The judges also noted that, despite Nelson’s opening remarks at the three-month trial that Wheeler would lead the jury to “the mother lode of cocaine in Bolivia,” the government never produced a speck of cocaine as evidence.

Nelson told jurors that Wheeler’s testimony would take them “from the cliffs of La Jolla to the jungles of Bolivia,” where Wheeler supposedly pinpointed 16 clandestine cocaine labs, each with its own landing strip and communication facilities. However, the appellate court pointed out that the labs were never observed by U.S. drug agents.

Wheeler also testified that he saw 175,000 pounds of cocaine waiting to be shipped from the airstrips.

Based on information supplied by Wheeler, U.S. drug agents bragged about disrupting a previously unknown Bolivian drug cartel called “The Corporation.” But the judicial panel agreed with defense attorneys that Wheeler concocted an incredible story that was swallowed hook, line and sinker by U.S. officials.

The appellate ruling noted that Wheeler testified that “he very often lied and convinced individuals that he was someone he was not. . . . The government portrayed Wheeler as someone who ‘had a very sordid past’ yet could be believed in this case.”

Wheeler convinced U.S. officials that Gen. Poblano Silva of the Mexican army was involved in a conspiracy with Bolivian drug lords to smuggle 86 tons of cocaine into the United States annually. At the time, DEA officials estimated that the annual consumption of cocaine in the United States was 150 tons.

Although the four Mexicans and three Bolivians were the only ones arrested in the case, Silva and four others were indicted but never arrested.

However, the appellate court said that a secret memorandum by DEA Agent Michael Levine noted that “we had no direct evidence connecting Silva to the conspiracy.” It was Levine’s memo, which, among other things, labeled Wheeler untrustworthy and without credibility, that was the basis for the conviction reversals.

“In truth, (Levine’s memo) contained evidence contradictory to the government’s position,” said the appellate court’s ruling.

The court said that Nelson illegally kept Levine’s 42-page memorandum from defense attorneys. The document, which was given to defense attorneys after the trial, contained Levine’s observations about Wheeler, which said Wheeler made false claims about his high-level business and banking connections in the Cayman Islands.

After the trial, Nelson tried to justify his decision to keep Levine’s memo from defense attorneys by arguing that the document was irrelevant to the case and simply an internal DEA memo.

In the memo, Levine also noted that Wheeler had recanted earlier allegations about bribing DEA agents in Florida and thwarting an attempt by U.S. drug agents to tape a telephone conversation with Gen. Silva. The appellate court openly questioned whether Wheeler blocked the attempt to tape the conversation because he knew that Silva was not involved in the alleged conspiracy.

In fact, there is some question about whether Silva really exists.

Wheeler was a customs informant during the investigation, and the appellate ruling notes that he “seemed to have the full run of the San Diego Customs office, using telephones and desks at his will.”

“He, in fact . . . not only had the full run of the undercover house (as well), but the keys to the leased undercover cars, which he utilized at his whim,” said the court’s 36-page ruling.

At the 1988 press conference, U.S. officials pointed out that among those arrested was Mexican army Col. Jorge Carranzas. Also arrested were Hector Alvarez Brumel and Pablo Giron, who U.S. officials said had ties to Mexican Federal Judicial Police.

However, the appellate court’s ruling said that Carranzas, Alvarez and Giron presented evidence showing that they were not really an army colonel and Mexican federales. At the trial, the men instead presented themselves as “thieves” intent on taking the undercover agents’ money without delivering any drugs.