by Jim Dutton
Finally, they’ll put on evidence as to the conspiracy to murder Felicia and the shooting of Ana in the motorcycle drive-by. For these counts, it’ll be difficult to prove a sufficient connection to the cartel leaders. Felicia, Pepe and Ana will testify. To bolster the tenuous tie to the cartel, Josh and Nick decided they would also call Felicia’s cousin, Alan, who had told gang-bangers that his cousin was coming into town the next day.
Before presenting any evidence to the grand jury, Josh and Nick agreed that Nick would read them the proposed indictment. Their proposed indictment included enough detail about the cartel’s activities to operate as a roadmap for the grand jurors. Nick also planned to read several key jury instructions before any witnesses testified to help the jurors assess the evidence. The instructions included the considerations for evaluating a witness’s credibility, the standard of proof to return a count of an indictment, and the difference between direct and circumstantial evidence. At the end of the evidence presentation, Nick would read the opening instructions again, and the instructions as to the elements of each count charged in the proposed indictment. Just before the grand jurors would commence their deliberations, Nick would review the evidence presented and how it related to each count of the indictment.
Monday morning, at 8:00, Nick met with Drury in the hallway outside the grand jury room. “Drury, did you find a good place for dinner last night?”
“I wasn’t comfortable at all those fancy places in the Gaslamp. I headed to the outskirts. I ‘figgered’ I could find a place more to my liking and my price range. I’m trying to make a few dollars on the per diem you’re giving me. On 10th Avenue, a place caught my eye. It was called ‘Basic Pizza’. Big high ceilings and unfinished walls of brick and pipe. There was a big TV set at one end and draft beer. They only sell pizza and salads. Kept the choices down. I had a Hawaiian pizza and a couple of drafts of a local I.P.A. Good beer, good thin crust pizza. I was a happy camper.”
“Great. Do you remember what we went over yesterday in my office? Just tell the truth. If you don’t understand a question, ask me to repeat it. Don’t guess at something. If you don’t know the answer to a question, it’s fine to say, ‘I don’t know.’ This isn’t a quiz show where you have to give an answer. I’m going to meet with the grand jury for about an hour, get to know them and explain some of the law to them. Then I’ll call you in. Grab a coffee or something. Just make sure you’re back in an hour. Pepe will be here by then as well.”
“How is that grizzly fighting Mexican doing? I liked his spunk. Even more, I liked his bottle of tequila that we swigged back at their Range Rover.”
“Pepe is doing well. His doctor is a big fan of yours. Said you did a fine job on the stitches. I was surprised that you could get a needle through that thick hide of his. See you in an hour.”
As he walked into the room, Nick smiled at the 19 grand jurors. They seemed like a good group. Mostly middle-aged to elderly. Mainly white, with two Latinos, an Asian, and an African-American. Pretty much the composition one would expect in San Diego for a grand jury. The younger people don’t have the availability to serve an on-call, one year time commitment. Nick bet there were probably five or six retired military people, which was always a good thing for a prosecutor. San Diego still had the veneer of being a military town. There were several military bases in the county and many former military come back for a second career or retirement.
“I’m Nick Drummond. I’m a prosecutor from the State Attorney General’s Office and am cross-designated as a Special Assistant U.S. Attorney to prosecute cases in federal court. However, I don’t know how ‘special’ I am. I’ll be presenting evidence to you about a drug smuggling cartel and a money laundering operation. You will hear testimony from a few civilian eyewitnesses and quite a number of law enforcement agents who will tell you what they saw or what other witnesses to incidents told them. We will sprinkle in a few experts to help you tie it all together.”
“I’m not going to go into a lot of detail about what I believe the evidence will be in this case. The drug smuggling part of the investigation started last October in Yaak, Montana, a few miles from the Canadian border. You’ll hear about heroin and marijuana being smuggled into Canada. Also, you’ll hear about drugs coming up the coast from Mexico to be off-loaded on San Diego beaches as well as drugs seized at various warehouses in the United States and Canada. You’ll hear about the Baja Norte Familia cartel, which smuggles the drugs, and the millions of dollars from the drug sales that are laundered for the cartel through different money laundering operators. You’ll also hear about a machine gun assault directed towards a former girlfriend of one of the leaders of the cartel. A federal agent was seriously wounded by a couple of bullets when she successfully protected the former girlfriend.”
“I’ll read the proposed indictment. In the indictment, there are three separate conspiracies—one for the overall drug distribution, one for the money laundering, and one for conspiracy to murder the former girlfriend. Each conspiracy tells you a summary story about what happened. Each conspiracy count sets forth the object of the conspiracy, the means to carry it out, and the individual overt acts performed by conspiracy members to implement the conspiracy. There are also individual drug distribution counts, money laundering counts, and a Continuing Criminal Enterprise(CCE) count. Elements of a CCE count are repeated drug distribution violations directed by a defendant in charge, who makes substantial money from the enterprise.”
“I know this sounds like a lot to take in and it is. I’ll read instructions as to how to evaluate the evidence before I present it to you. While the witnesses are testifying, there’ll be photographs and summary charts to help you absorb the evidence. If you, at any time, aren’t following my questions and a witness’ answers, let me know and I’ll rephrase the questions to the witness. Also, if you have any question for an individual witness, write it down on a piece of paper and give it to me. If I can ask it under the rules of evidence, I will.”
After some more introductory remarks and give and take with the jurors as to scheduling for the week, Nick read them the 30 page indictment. He also instructed them on the quantum of proof necessary to return a count on the indictment for further prosecution at the trial court level. The standard is probable cause, a legal term which defies an exact, quantitative description. It is an abstract concept—if there is sufficient reason, based on facts to believe a crime has been committed and the defendant committed it, then a juror votes that the count may be returned to the court for trial. Nick also went over direct versus circumstantial evidence. Direct evidence is a relevant fact the witness saw or heard, while circumstantial evidence is proof of one or more facts that can infer the truth of a relevant fact to the issues. For example, an empty cookie jar and crumbs leading to 10-year-old Tommy’s bedroom are circumstantial facts to the relevant issue of who took the cookies. Tommy’s mother seeing him take the cookies is direct evidence. The law doesn’t assign more weight to one type of evidence or the other, it’s for each individual juror to weigh the evidence.
Nick finished and gave the jury a 15 minute break. He went outside. Pepe had some coffee for him and Nick briefly went over Drury’s testimony with him. Walking back inside the jury room, Nick greeted the jurors, with a twinkle in his eye. “Are we ready to go? The first witness is Drury Betts.” Nick opened the door to the hall and had Drury come in and sit in the witness chair where he was given the oath. Nick established that Drury was a career wildfire fighter and lived in the small town of Yaak, Montana. Nick brought a map of Montana up on the projector and had Drury point out where Yaak was in relation to the Canadian border, less than 20 miles away.
Drury told the jury about the evening in October when he was looking to photograph a bear near an old logging road that ran to the border, and how he saw two off-road vehicles with duffle bags. He told them about taking photos of the men in the vehicles from a hidden position off the road. Nick showed Dru
ry a large picture board, with a number of persons on it, all but two being Hispanic. It looked like a family tree, with lines between the photos. The names of the persons were covered up. Drury identified the photo of Luis Hernandez-Lopez as one of the men he saw in the off-road vehicle, and one of the photos of a Caucasian on the board as the person who was riding with him. The white guy was accountant Lester Sendow.
Drury spoke about his meeting with Biker Sue at the Yaak River Tavern and his “brilliant” idea to follow up with surveillances of the border with his best friend, retired Bakersfield police detective, Zack Reynolds. Drury told them about taking photos of a subsequent duffle bag exchange from both sides of the border.
Nick asked, “After you took the border photos and they were walking back to their vehicles, what happened?”
“I have this irritating cough from inhaling so much smoke from fighting fires over the years. At the worst possible time, I couldn’t help it, a raspy cough erupted from me. Loud enough to scare any deer around there. It certainly was loud enough to attract the border boys attention. One yelled at me to show myself. He came to where I was with his hand on a big old 44 caliber revolver. My eyes went wide and I puckered a bit. I told him I was just trying to take some photos of wildlife. I tried to remain calm and friendly. I showed him the camera and asked him how he liked it.”
“How did he respond?”
“He drew out his big, black gun, placed its long barrel right on my forehead, and asked me, ‘How did I like his gun?’ We exchanged a few more “pleasantries” as he was pointing his gun at me, demanding to see my photos on the camera playback screen. I thanked God that right after I coughed, I deleted the photos I had taken of them, thinking one of them might want to see my recent photos. Luckily, my buddy Zack had photos of them. I showed the gun toting smuggler the photos of wildlife I had taken on a recent trip with Zack to the Lamar Valley in Yellowstone.”
A juror raised her hand to pass to Nick a written question for Drury. Nick read the note to himself. Were you scared? Did you think he was going to shoot you? Nick read the first question to Drury and told the juror that he couldn’t ask him the second question because it called for speculation as to what Drury thought the man with the gun would do. Drury answered the first question. “I have faced death many times fighting fires. I had a job to do and I couldn’t allow myself to be overcome with fear. I put it aside. Here, in the woods, alone with a stranger who was pointing a gun at my face, capable of blowing my brains out— excuse my French, I was scared shitless. I felt lucky that I didn’t have to buy new underwear.”
“What happened after he saw the wildlife photos?”
“He gave me a sly smile and said, ‘It’s dangerous out in the woods at night. You never know what type of predator is roaming around.’ Then he turned and walked away.”
Nick asked Drury more follow up questions and had him identify the rest of the men he saw the two times at, or near the border. Next, Nick called a series of law enforcement witnesses who described the seizure of the drugs from the college boy outside of Missoula, the various drug smuggling incidents off the coast of north county San Diego, and the seizure of the heroin and marijuana from the various warehouses. That ended the first day. The jurors seemed exhausted and Nick knew he was. He had been mentally sharp for seven hours of testimony.
Nick and Pepe grabbed sandwiches to eat at the office for dinner. They walked into controlled chaos. Deputy U.S. Marshal Perkins had called an hour ago and described how Felicia was freaking out about coming to San Diego to testify in front of the grand jury. She was uncontrollable, sobbing, saying that Luis would kill her. Felicia was scheduled to fly in from Topeka around noon on Wednesday, testify in the afternoon, and be back on a flight east at 5:00. The task force was concerned about exposing her to possible recriminations by Luis and the cartel. Nick said in an exaggerated calm voice, “Settle down everybody. Ana and I’ll talk to Deputy Perkins and Felicia on the phone and straighten this out.”
Before the phone call, the team discussed strategy on how to handle Felicia. It was decided that Nick and Ana would push Felicia to come and testify. But, if it seemed that she would be a complete mess, they could give her a pass on the promise she would testify at the trial. Before trial, one of the team members, probably Ana, would go to Topeka and work on her to make sure she came to San Diego to testify. Felicia couldn’t say anything for the first few minutes of the conversation. Deep sobs and gasps of breath were interspaced with sniffling. Deputy Perkins was attempting to sooth her in a kind and soft tone. It seemed to help and Felicia calmed down.
Nick in his voice that he used to read bedtime stories to his young children, told Felicia, “I understand your concern. It’s so frightening for you after what happened a couple of months ago. It takes so much courage to stand up to Luis and the cartel. You need to do it for yourself, and all the others he and the cartel will terrorize if he and the members aren’t put away. You went out on your own when the shooting happened. Even then we were able to protect you. You know what lengths Agent Schwartz went to—returning fire and taking a couple of bullets. That type of thing won’t happen again. The grand jury process is completely secret. The cartel doesn’t even know that the grand jury has been convened in this case.”
“I can’t do it Mr. Drummond. It’s too soon. Every night, the same horrific dream—the shooting and I’m getting shot. I wake up in cold sweats. I hide under the covers. I can’t live this way.”
“The only way you can live normally again, Felicia, is if we put Luis and his thugs away. Then you can get your life back.”
“If I stay in Topeka, at least I’ll stay alive. I’m so afraid to go back to San Diego. Luis has connections everywhere. When he sets his mind to something, nothing stops him. He’s like an enraged bull, with bloody banderillas sticking out of his shoulders. He looks at me like I’m one of those sharpened stakes sticking out of his shoulder. He’ll do anything to get rid of me.” Nick and the team could hear sobs and moaning.
Deputy Perkins interjected over the wailing, “Her whole body is shaking. I don’t think she can even handle talking on the phone right now.”
Nick replied, “Okay, we’ll give her a few minutes and work this out.” In a few minutes, the sobs subsided. Nick continued, “Felicia, maybe it’s too soon. But you have to testify at trial. It will be another six months until the trial. Do you promise me in the name of everything that’s sacred to you, that you’ll testify at trial? I can assure you that Luis and the others will be in custody at that time and can’t get at you.”
“Yes…Yes….Yes, I promise in the name of the Virgin Mary that I’ll testify at trial. Thank you Mr. Drummond for not making me come to San Diego now.”
“Just remember your promise and that we’ll protect you. Good-bye.”
Nick looked around the room at the disappointed faces. “Cheer up. We don’t really need her for the grand jury. All her testimony can come in through agents. It’d have been nice for impact, but Ana’s and Pepe’s testimony about the shooting will perk the jurors up. We need to go over the drug experts’ testimony and the beginning of the money laundering testimony for tomorrow.”
The testimony over the next two days went well. All the preparation time and the use of charts and photos paid off. The jury became educated about the cartel, how it operated, and where it grew its poppies. The hundreds of kilos of seized Mexican black tar heroin were traced back to the region of the cartel’s poppy fields. The jury also seemed to understand the Morales and Sakia money laundering operations for the cartel. Charts summarized the millions of dollars in cash each month that the cartel brought back into the United States to be placed into the U.S banking system for immediate transfer of dollars or pesos to a Mexican bank. After a few questions by the jurors, it finally sank in that the process of bringing the drug cash back into the U.S. to be placed in U.S. banks was necessitated by the Mexican banking regulations that severely limi
ted the deposit of U.S. cash dollars directly into Mexican banks. They also understood that Mexican banks could accept wire transfers and cashier’s checks in dollars, but not the cash itself.
Selected transcripts of the wiretap on accountant Sendow’s phone and transcripts of his covert taped conversations with the Sakias and Hector Morales made an indelible impression on the jurors. Testimony from the agents concerning what Sendow and Felicia told them about the meetings in Luis’ compound above Rosarito Beach and the entire operation, helped show the jurors how the the drug smuggling was intertwined with the money laundering. Drury’s earlier testimony, and photos of Sendow side by side with Luis in the off-road vehicle near Yaak, cemented the connection between the drugs and the money. The jury heard about Luis and Sendow meeting with Biker Sue, the Yaak real estate lady, as well as Drury’s more graphic description of her. Nick saw in the jurors’ expressions that they were glad Biker Sue had moved from southern California to Yaak, Montana.