by Jim Dutton
The defense made a tactical blunder when they called the Chief Finance Officer for Numero Uno, a chain of Mexican casas de cambio, or exchange houses, as a witness. The CFO testified that his chain of casas had engaged in legitimate business with the defendants for the transport of cash dollars to the U.S. from the defendants’ sale of Mexican grown food. He spoke of his and the defendants’ mutual friend, Armando Ruiz Castillo, a high level official in Mexico’s Secretaria de Hacienda y Credito— Mexico’s Department of Treasury. The name registered in Nick’s mind. Nick leaned over to Pepe and told him to call the office and check the name out. Pepe came back a few minutes later, and passed a note to Nick. Nick glanced down and smiled.
Nick’s cross-examination focused on the mutual friend, Señor Castillo, and how often the defendants and the CFO met with him. The CFO described many dinners, as well as all of them attending Señor Castillo’s daughter’s wedding. Nick confirmed that Señor Castillo’s office was located on the Plaza Reforma, on the fringe of the Zona Rosa in Mexico City. He also confirmed that Señor Castillo, because of his high rank in the government, was afforded diplomatic immunity when he visited the United States. Nick, by his questioning, appeared to be duly impressed, leading the CFO to elaborate about the closeness of their relationships. Nick asked a final question of the CFO, “By the way, do you know a San Diego-based accountant named Lester Sendow?”
This question paid off for Nick when the CFO replied, “I don’t know any Lester Sendow.” This destroyed the defense contention that any money laundering was set up by Lester and wasn’t known by the defendants. Nick couldn’t wait to put on rebuttal evidence that the one Mexican bank account, which millions of dollars flowed into from U.S. banks, was in the name of Armando Ruiz Castillo.
Nick paid close attention to defense witness Javier Esquel-Ranchez. Javier testified he graduated from the University of Mexico in economics and went to law school for a year before moving on to business endeavors. He was rather vague about what business or businesses he was involved in. It appeared that he had family money and had traveled quite a bit. He professed to be a family friend of defendants Luis Hernandez-Lopez and Mateo Gomez-Encinas. He was well-spoken, sophisticated, and a bit too slick. He reminded Nick of a younger version of defendant Lopez. Javier provided Luis with an alibi for when Ana was gunned down by the rider on the Ducati Streetfighter motorcycle. But, he acknowledged that Luis had a motorcycle that was the same model and color as the shooter’s. Javier testified that he and Luis had taken a three day motorcycle camping trip around Guadalupe Valley, Baja Norte’s wine country. He remembered that the third day of the trip corresponded to the date of the shooting. He waxed on about the fine wines they tasted. Javier particularly liked the red organic wines of La Casa de Dona Lupe and the Cab and Merlot at Monte Tanic. Nick had Pepe go into the hallway and google the wineries. They checked out.
On cross-examination, Nick tried to show that Javier didn’t know anything about camping. Javier fended that off well. He testified they just had a tent, air mattresses and sleeping bags. They ate out at all of the fine restaurants nearby.
Nick bit his tongue and asked the risky question, “How do you remember the exact dates of your camping trip?”
Nick paid for the answer, “The third night was my grandfather’s birthday and I called to wish him a happy birthday.” Javier was sorry, but he didn’t have his grandfather’s phone number or address with him. “He lives in Guadalajara.”
Nick knew that greater Guadalajara was the second largest urban area in Mexico, with over four million people. The grandfather wouldn’t be easy to track down. Nick had to hand it to Javier. He was well-prepared and smart with his answers. The Mexican authorities couldn’t realistically track down whether or not Javier and Luis camped for three nights because campers usually paid in cash, and there was no documentation. If Javier had testified he stayed at a hotel in Guadalupe Valley, that could be checked out. Nick chalked the witness up. One win for the bad guys.
Back at the office, after Javier testified, Nick had Jerry run all the criminal databases on Javier Esquel-Ranchez. He came back clean. The next day Jerry told Nick that he checked with a Mexican contact working in Mexico City. His contact confirmed that Javier was an alumni from the University of Mexico, with a Bachelor of Science degree in economics.
After another day of defense witnesses, the trial was turned over to Nick and Josh for their rebuttal witnesses. They only had a few. The judge, the jury, the attorneys, and probably even the defendants were getting tired of the trial. It was time to wrap it up.
Nick’s first witness was a business professor at a local community college, who specialized in U.S. and Mexico businesses along the border. He had been born in Mexico and had owned businesses on both sides of the border before becoming a professor. In addition to his academic pursuits, he was a consultant, advising businesses on both sides of the border about import duties, trade paperwork, and border business practices. Professor Ramirez came across very well. He even wore the standard college professor attire—a corduroy sport coat with elbow patches, no tie, and loafers. Professor Ramirez explained to the jury that although some businesses in Mexico paid in U.S. dollars, the vast majority paid in pesos. The small businesses who bought legitimate, Mexican grown agricultural products had pesos. Their customers paid pesos for the food at their retail stores. Professor Ramirez further explained that large corporate clients of a wholesale agricultural products business would normally pay by check or credit card. Those were the most effective methods to keep track of their corporate business transactions. The defense worked hard on finding chinks in Professor Ramirez’ armor. They managed to get him to say that it was possible that some businesses would pay their wholesalers in cash dollars.
Nick eagerly looked forward to his next witness. He was the Vice-President in charge of Mexico-U.S. operations of the U.S. correspondent bank for the Mexican bank, Banco Real. A Mexican bank has to have a U.S. correspondent bank to facilitate and oversee fund transfers to its bank from all U.S. banks. Banco Real held the account into which the cartel’s money laundering operatives transmitted funds after the cash dollars were transported and deposited in U.S. border banks. The U.S. correspondent bank had access to Banco Real’s account information in order to facilitate the transfers. Nick projected the various summary charts which summarized all the wire transfers and cashier’s checks written to the Banco Real account. For a year, over five million dollars a month went from the U.S.-based border accounts, held by L&M Freight, owned by Hector Morales, and Latin America Productos, owned by Mr. and Mrs. Sakia, to the one Mexican account with Banco Real.
Nick asked the witness, “Who is the account holder of the Banco Real account?”
The Vice-President answered, “Armando Ruiz Castillo, address, 3798-1 Plaza Reforma, Mexico City, Mexico.”
“Do the account documents list his occupation?
“Yes. He lists his occupation as Asistente Secretaria De Hacienda.”
“Are you familiar with that title?”
“Yes. It’s the Assistant Secretary of Mexico’s Department of Treasury.”
“Quite high up?’
“You can only go one step higher.”
The defense didn’t have any questions, futilely trying to convey to the jury that the evidence had no bearing on the case.
Nick had saved Felicia’s cousin, Alan, for his last witness. He wanted to bring the violence of the motorcycle shooting back to the jury’s attention and show how the cartel’s influence permeated San Diego communities. The most important part of the trial for Nick was to see Luis go down on the conspiracy to murder count.
Alan described his horror when he was told by Detective Mario Cipriani of the shooting earlier in the day, how his cousin Felicia was almost killed, and how Agent Schwartz had taken a couple of bullets to protect her. He told the jury he was unable to breathe and almost fainted onto the high school gym floor.
Alan related that the day before the shooting, he had run into a couple of older guys from the neighborhood, who were Baja Norte Familia “wannabees”. They asked him about his hot cousin, Felicia, and made jokes about getting into her pants. Alan told them she was coming home the next day, “But, there wasn’t a chance in hell that they could get into her pants.”
Alan teared up on the stand and told the jury how he blamed himself. His statement was stricken, but it still made an impact on the jury. Nick only had a few more questions for Alan.
“Alan, did you ever see the two guys again?”
“Yes, a couple of weeks after the shooting at the same mall.”
“What did they say to you, if anything?”
“They told me, ‘Felicia got lucky. The Familia never misses twice. You tell us the next time she comes into town or you’ll be the one dodging bullets.’”
“Are you afraid today, that someone will put bullets into you?”
Attorney Lipman bounced up, “Objection, irrelevant, and violates rule 403!”
Nick responded, “It’s highly relevant, goes to his demeanor and willingness to testify.” Nick knew it was relevant but was worried that Judge Orsini might sustain the objection under rule 403 of the Federal Rules of Evidence, which prohibits unduly prejudicial evidence.
Judge Orsini thought for a few moments, looking at the witness and the defendants, and then ruled, “You can answer the question young man.”
Alan shrunk down in the witness chair. He averted his eyes from the defendants and looked at the judge. In a soft voice, he murmured, “I’ve been so afraid since they threatened me. I’ve hardly been able to sleep. But, I felt I had to testify for Felicia’s sake.”
The defense crossed Alan and presented a couple of short, unimportant rebuttal witnesses. Nick and Josh didn’t put on any surrebuttal witnesses. All the evidence was before the jury. In mid-afternoon, Judge Orsini recessed the trial until the next morning for closing arguments.
CHAPTER THIRTY-EIGHT
Nick was at his desk working on his closing arguments. The prosecutor has the first closing argument, or opening argument, and after the defense argues, the prosecutor has the final, or rebuttal, closing argument. The prosecutor gets two arguments to one for each defense attorney because a prosecutor must prove his case beyond a reasonable doubt.
Nick and Josh had jotted down notes during the trial about what Nick could use in his closing arguments. The weekend before, Nick had made a list of the exhibits he wanted to show the jury during the opening argument. He also pulled his file marked, closing arguments, which contained their trial notes as well as argument themes that Nick wrote down while preparing the case for trial. Now he had to integrate the material into cogent opening and rebuttal arguments.
Nick had four hours before his moot or practice opening argument for Josh, Pepe, Ana, and Rona. Nick had always pooh-poohed giving a practice argument before the real thing until he was talked into it in a complex fraud case that he had tried in federal court in Los Angeles a number of years back. The typical draconian federal judge had only given him three hours to argue three months of testimony and 800 exhibits. On the eve of that argument, Nick was in his fourth hour of stumbling through a disjointed, passionless practice argument when he realized he really needed to get his act together. The young federal co-prosecutor had a look of, Oh shit, we’re in trouble, but the lead agent, a Vietnam Vet that had been through hell, assured everyone that Nick would do fine. As it turned out, the agent was right, but it took another four hours for Nick to clean it up.
At six o’clock, Nick was surprised to hear his phone ring. Everyone on his team knew that he was working furiously on his opening argument and not to bother him. Attorney General Ken Hammond was on the phone, the last person Nick wanted to talk to. The General wasted Nick’s valuable time offering his unsolicited advice on what to emphasize in his arguments. Nick finally couldn’t take it anymore.
“I’ve been listening to you General for twenty minutes on the eve of my opening argument. You’re wasting my time. I have to get back to work.”
“How dare you talk to me about that. I’ve heard about you. The scuttlebutt from the San Diego office is that you’re a washed up drunk.”
“Excuse me General. You’re telling me I’m washed up. You, whose most significant trial was a misdemeanor domestic violence case. Why don’t you go back to being a politician. Don’t interfere with someone who’s working on substance.”
“That’s it. You’re fired!”
“Am I? I know you aren’t used to someone standing up to you. Probably hasn’t happened in a decade. Instead of worrying about firing me, worry about actually doing the job the people elected you to do. How about doing what is in the best interest of the people of California instead of your interest in getting elected to the next office? How about timely reviewing the important legal papers that cross your desk, instead of waiting until the last minute because you’re too busy fundraising, making political hay or just plain indecisive? How about appointing competent people to top spots in your administration, instead of political hacks who don’t know what they’re doing? Who are you going to get to fire me? Donald Trump? Or maybe, your second in command, who we not-so-fondly refer to as ‘Hot Dog’ Barrett. She doesn’t even know how to find her way to San Diego. She only knows how to smell out the next press conference for you.”
“You, you, you, ingrate!”
“Is that the best you’ve got General? Go ahead and fire me the evening before my opening argument when I’m going to hand our office convictions in the highest profile case we’ve had in decades. How would that look when you make your run for Governor or Senator next year? Goodnight General.”
Nick actually felt good when he hung up the phone. It invigorated him. Maybe the 20 minute delay was worth it.
Nick’s dry run later that evening went fairly well. He received valuable input—what to tighten up, and a few things to add. After putting the finishing touches on his argument, Nick was able to get six hours of sleep. Nick never was one of those who could work all night and function well the next day, either on a college exam or in an important trial. He needed his sleep. Nick looked at a trial as being an ultra marathon. He had to be in good physical shape, he needed daily exercise and sufficient sleep each night. The only way you could avoid long nights during trial was by thorough trial preparation. A steady diet of 60 to 70 hour weeks in trial prep and in trial was far superior to inadequate trial prep, and 90 to 100 hour weeks in trial.
Nick’s opening argument lasted the entire morning. He kept the jury’s attention, walking around some and modulating his voice to emphasize important points. The exhibits and various projected power points helped educate the jury and kept their interest. Nick emphasized the evidence supporting the counts of the indictment concerning the drive-by motorcycle shooting. Cartel head Encinas had already avoided liability for those counts when they were dismissed for lack of evidence against him prior to trial. Defendants Lopez and Sanchez were still facing those charges. The conspiracy to murder Felicia count would add another 20 years to their sentences, and the assault with a deadly weapon, with serious bodily injury as to Ana, would add quite a few more. Nick knew these were the weakest counts in the indictment because of the lack of strong proof tying Lopez and Sanchez directly to the shooting. But, Nick was heartened when he saw a few of the jurors affirmatively nodding their heads when he went through the evidence on the counts.
Nick covered all the drug distribution counts and the money laundering counts. He was fairly confident the jury would come back with guilty verdicts on these counts. Nick also focused on the Continuing Criminal Enterprise count because it packed such a big punch—20 years to life. The jury had to be persuaded that the three defendants had supervisory roles in the drug distribution organization, a series of drug sales occurred, and the defendants each obtained substantial income fr
om the enterprise. The evidence clearly supported the count.
The three defense attorneys spent the entire afternoon and the next day giving their respective arguments. Nick took notes of the defense arguments while Josh was in charge of objecting. As Nick’s fingers started cramping from taking notes, he wished they had ordered “dailies” from the court reporter. For a substantial additional expense, the court reporter would type up transcripts of each day’s testimony or argument and present it to the paying attorney the next day. The government didn’t want to pony up the extra money. What was that saying? Penny wise, pound foolish.
The defense didn’t have much evidence to work with except for the lack of compelling evidence tying defendants Lopez and Sanchez to the motorcycle shooting. In particular, Lopez’ attorney spent a lot of time on the shooting-related counts and Lopez’ motorcycle camping trip alibi.
All three defense attorneys spent significant time attacking the credibility of the prosecution’s two key witnesses, Felicia and Lester, knowing that if they were discredited, much of the prosecution’s case would fall apart. They portrayed Felicia as a gold digger and spurned girlfriend, who made up stories about the defendants to please law enforcement and save her backside from a cocaine possession for sale charge. They portrayed Lester as a convicted criminal that couldn’t be trusted to tell the truth. They railed against the sweet deal given Lester by the prosecution—up to only three years in prison. They argued this was just another example of the government misplacing its resources, spending all this money on witness relocation for Lester when he was the architect of any money laundering that may have occurred. The defense claimed their clients didn’t know what Lester was doing with the money. They hired him as a professional accountant to take care of it. They argued that Lester lied about the defendants’ knowledge for the same reason that Felicia lied, to save his own bacon.
