Defense of the ‘narco-nephews’ failed to change the severity of their sentence.

At the request of the defense, an oral hearing of arguments was held seeking to eliminate the allegations with which the prosecution requested life imprisonment. The findings seem not to have changed that possibility for the nephews of Venezuela’s presidential family are convicted on very serious drug trafficking charges of large quantities.

By Maibort Petit @maibortpetit

It was 11:30 in the morning when the nephews of the Venezuelan presidential couple arrived in Room 14C of the Southern District Court of New York. They were dressed in rather faded blue prison uniforms. The appearances of two prisoners changed since the trail started. In addition to being pale and drowsy, Efraín Antonio Campo Flores and Franqui Francisco Flores de Freitas showed that the 23 months they have been behind bars transformed their lives. Flores shaved his head and stood during the meeting with a frown. Both lost weight and were exhausted. Campo Flores did not smile as usual or seek to make eye contact with the press. Seated in front of the judge, and with the help of a translator they heard the arguments of the defense and the prosecution on each point thar could adjust their ‘base offense level’. A change in this level would change the ‘applicable federal sentencing guidlines’. These suggested guidelines would later be used by the Judge to determine their sentence.

Even the lawyers looked different

Next to Campo Flores were his two lawyers. Randall Jackson put aside his natural sympathy and his fiery verbiage. The litigant was withdrawn, as was his colleague John Zach who — by the way — wore a slovenly beard and a beige suit wrinkled and frayed. Further to the left were the defenders of Flores de Freitas. David Rody showed his anger in each of his interventions and his partner, Michael Mann, remained silent throughout the session.

Judge Paul Crotty of DSNY

At 11:50 AM, Judge Paul Crotty entered the room. Following protocol he asked the parties to identify themselves. The prosecution was only attended by an assistant prosecutor, Brendan F. Quigley. Once the session began, David Rody began by listing the so-called “needs for adjustments” that the government had put forward as arguments to ask the court to sentence Campo Flores and Flores de Freitas to life in prison.

Rody and Jackson brought to the table 8 requests for rejection of those motions corresponding to the same number of adjustments proposed by the prosecution and which together add up to enough points to reach a lifelong sentence.

Judge Paul Crotty denied 6 of the 8 requests made by the defenders of President Nicolas Maduro’s nephews, indicating that the report prior to the ruling will remain quite similar to that originally presented by the US government.

The prosecution requested in the report before the sentence (PSR) the following improvements:

1.- Drug quantity: The base crime level of this case is 38 because the object of the conspiracy was to import more than 450 kilograms of cocaine. The base crime level is determined by the quantity of drugs involved. The prosecution is requesting this be the base crime level based on the guideline stating that a level 38 involves more than 150 kg of cocaine. A base crime level of 38 is the highest base level which carries the most severe penelities. The defendant’s attorneys are attempting to lower the crime level, therby getting a more lenient sentence for their clients. Once a base crime level is detemined adjustments were made to that increased the level. This was based on certain determinants that the prosecution had previously presented. The defence was now motioning to dismiss those motions and lower their clients crime level.

2. Possession of Firearms: Because the defendants and their bodyguards possessed dangerous firearms, two levels were added to the base.

3.-Threats of violence: Because Campo Flores made credible threats of violence in favor of the conspiracy to which Flores de Freitas joined and in which violent behavior was foreseen, two more levels were added.

4.- Use of Private Aircraft: Because the relevant behavior of the defendants involved the use of private aircraft during the conspiracy that sought to import cocaine to the United States, two additional levels were added.

5.-Attempt to bribe the authorities: Because the defendants attempted to bribe police officers in Venezuela and Honduras to facilitate the commission of the crime, again two levels were added.

6.-Import to the US: Because an aggravating role adjustment is appropriate and the object of the conspiracy involves the direct participation of the defendants in the importation of a controlled substance, with an addition of two levels were added.

7. Role of leadership: Because the accused were organizers and leaders of criminal activities involving five or more participants, four more levels were added.

8. Obstruction of justice: Because the defendants filed false affidavits in support of their motions before trial and the Court has already rejected several of their perjuries, two levels were added.

The judge was emphatic with the defense

The first motion denied by Crotty to the defense was related to the change in the amount of kilos of cocaine that comprised the conspiracy. Advocates said there was no drug in the case and that the 800 kilogram drug figure had been set by DEA informants. The judge said that the evidence indicated that the plan was to make a first shipment equivalent to 800 kilos, which is why this parameter will be maintained in the report.

According to federal rules, the severity of a defense rises to the highest level when cocaine involved in the conspiracy exceeds 450 kilos.

The second motion denied was the possession of firearms. Lawyers repeated arguments that the defendants were not armed at the time of the conspiracy and said that the photographs presented by the prosecution were Paintball Pellets weapons called “Airsoft” weapons. Judge Crotty flatly denied this argument.

The third motion denied by the judge was related to the use of private planes during the conspiracy. Lawyers insisted that Freitas Field Flowers and Flores were not able to use private planes to transport the drug, because — among other things — there was no drug trafficking, but Crotty reminded them that the two defendants used private aircraft to go to Honduras and Haiti, and had planned everything necessary for the flight in which they would make the shipment scheduled for November 15, 2015 with 800 kilos of cocaine.

The fourth application denied by the magistrate is related to the attempted bribery of the authorities. The defense said there was no evidence that its clients paid bribes to law enforcement officials in the United States during the conspiracy. However, the judge said that the evidence indicated that the two defendants had foreseen the payment of 900 thousand dollars for their associates in Honduras to receive the drug, and pay the bribes to the police of the airport of the island of Roatán. He also recalled that in the evidence there were elements that proved that Campo and Flores would have paid bribes to officials in Venezuela.

Crotty also denied the motion involving the accused with direct involvement in the importation of a controlled substance into the United States. Campo and Flores lawyers said that it was the DEA informants who said the drug would have America as its final destination. Both the prosecution and the judge reported that the audio and video recordings made clear that the defendants knew where the drug was being exported and that both had participated directly in the conspiracy.

The last motion denied by the judge to the defense was related to the leadership role of the defendants in the conspiracy. Lawyers reiterated that the accused were “boys with no experience in drug trafficking and unable to coordinate, supervise five or more participants.” Rody said that “the prosecution had failed to name conspiracy members” and even “failed to establish a list since the conspirators mostly worked for the government.” The judge clarified that the evidence showed that the accused were indeed involved.

Hearing results

Carlos Perez, a criminal lawyer, said that the defense’s achievements in the argument hearing were few, so there will be no major changes in the guidelines that will govern the calculation of the sentence.

In general, the changes that take place in these discussions do not substantially affect the trend expected for the judge to decide the sentence, Perez said.After all adjustments and motions, their crime level stood at a 43. The federal guidelines recommended for this level is life imprisonment.

This indicates that Franqui Francisco Flores de Freitas and Efraín Antonio Campo Flores face the possibility of a severe sentence that could lead them to remain behind the bars for more than three decades, according to the minimum request made by the government.

***

At the conclusion of the discussion, the judge adjourned the meeting, not without first announcing that the two defendants will be sentenced on December 14, 2017. Flores de Freitas will have his sentence read by the judge in the morning and Campo Flores on the afternoon of the same day. The defense must deliver the conclusions of its report on December 1 and the prosecution has until 8 of the same month to make delivery of theirs.

When the judge left the room, the sheriffs took the two defendants. They came out sad and silent. The four lawyers and their assistants also left the room with faces that showed concern and dissatisfaction.

In the hall we talk to Randall Jackson, the energetic litigant who has taken the defense of Campo Flores.

“What is your choice about the outcome of the hearing?” I asked.

He shrugged and apologized. “For now I can not declare.This part of the case is very difficult, I prefer not to comment.”

For his part, the defender of Flores de Freitas, David Rody left hurried and sulky.

Thus concluded one more day of the celebrated case of the nephews of the Venezuelan presidential couple.

Since November 10, 2015, Campo and Flores were arrested in Haiti and transferred to New York where they were tried and found guilty of drug trafficking offenses. The reading of the sentence has been extended three times at the request of the defense.

Investigative Journalist based in New York City — Focus in Corruption & Organized Crime