The 9th Circuit Court of Appeals has ruled that an unnamed Mexican national was wrongly convicted for drug crimes after he contacted U.S. agents in San Diego and, at the direction of a detective linked to the local agent, arranged the drug deal for which he was ultimately found guilty.
In early 2008, “John Doe” contacted a local Federal Bureau of Investigation office and told agents he could produce information on members of a drug-dealing cell including phone numbers, addresses, and identification of vehicles used in trafficking narcotics, including information related to a contact referred to as “Indio.” In exchange, he asked that his family be allowed to relocate to the United States and given new identities or placed in a witness protection program.
Told that he was “putting the cart before the horse,” an FBI agent told Doe that while such requests were sometimes granted, an arrangement for him could only be made after establishing a history of providing information leading to arrests and eventual convictions.
A month later, another meeting was arranged in a local parking lot, where Doe repeated his request and was told that he had not yet provided requested information. Over the ensuing months, the agent began the process of qualifying Doe as a potential confidential informant, though such actions were never completed.
In July 2008, however, a Fresno Police Department detective investigating a suspected drug trafficker known as “Colima” contacted the agent and a meeting with Doe and two informants being used by the detective was arranged, where Doe told the others he could “get what you guys need.”
First seeking 20 kilograms of cocaine, Doe informed the others that he was unable to locate the drugs but had found a member of the Dinuba distribution ring who could provide ten to twelve pounds of methamphetamine. The informant expressed interest in the deal, and on July 25, 2008, a meeting was arranged where the Dinuba contact was arrested and twelve pounds of meth were seized.
Three days later, Doe told the informant that he could acquire the cocaine as originally requested, in two ten-kilogram shipments. For unclear reasons, the first of the arranged deals did not take place and Doe and his associates were arrested, though they did lead police to a body shop where five kilograms of cocaine were recovered. Doe faced four felony charges as a result.
During the discovery period prior to Doe’s trial, he was denied in his request to obtain contact records with the FBI agent in San Diego in order to prove that he had been working since before the Fresno operation in an attempt to cooperate with law enforcement.
According to San Francisco appellate judge William E. Smith’s opinion reversing the conviction, “the theme of Doe’s defense was essentially ‘yes, I helped arrange these sales, but I did so only to gain information to give to the FBI so my family and I could move to America.’ To support this argument, Doe testified that on July 19, 2008, after the informants approached him, he called the agent and told him that they needed to meet as soon as possible because Doe had information to relay.” Doe further claimed that, had he been able to access FBI records, he would show that a meeting with the local contact had already been arranged for July 28 or 29, days after his arrest.
A jury convicted Doe on all counts, his sentence was recommended at 24 years, 4 months in prison. After his conviction, he learned that the FBI had conducted an investigation and had arrested “Indio” after tying him to the Beltran Leyva cartel, involved in smuggling methamphetamine and other drugs across the U.S./Mexico border. The FBI claims it received no information on “Indio” from Doe, though records on contacts with him remain sealed.
While Doe’s conviction was vacated by the appeals court, they left open the possibility that it could be reinstated if a lower court judge determines that the withheld FBI records would not reasonably have led a jury to believe Doe acted under the impression that he was assisting law enforcement, or if the FBI documents cannot be located or turn out not to exist.