A highly prized Colombian defendant has accused U.S. law enforcement agencies of destroying Blackberry messages and withholding emails that he claims would show he was working for them as a confidential informant in the federal government’s battles against South America’s underworld.
Henry De Jesus Lopez Londoño, who was extradited to Miami on a cocaine-trafficking conspiracy charge last year, says the missing text messages and emails would reveal that federal agents authorized him to infiltrate dangerous criminal organizations with specific assignments — and that he wasn’t committing crimes on his own.
His lawyers claim he was an “undercover asset” for three federal investigative agencies from the fall of 2008 until the end of 2011, before his arrest the following year in Argentina. Prosecutors counter that the agents’ text messages to and from the informant were lost because their Blackberry phones were replaced and cannot be found. They also say there were no emails exchanged between the agents and informant.
Among the smorgasbord of illicit groups that the defendant says he was asked to penetrate: a drug cartel headed by one-time Mexican fugitive Joaquin “El Chapo” Guzman, members of the al-Qaida terrorist network in Colombia and the Russian mob’s ties to the Venezuelan military.
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Lopez Londoño’s attorneys say the federal trafficking indictment should be dismissed because agents with Immigration and Customs Enforcement and the Drug Enforcement Administration violated his due process rights when they destroyed their electronic communications with the informant.
In criminal cases, prosecutors are bound to turn over this type of evidence to defense lawyers as so-called Brady material, which may include potentially “exculpatory” information that supports the innocence of a defendant. In the Miami case, Lopez Londoño’s attorneys argue that the agents — along with prosecutors — deliberately sabotaged his planned “public authority defense” asserting that he was only doing what he was told to do by his government handlers.
His “public authority defense is reduced to a ‘he said, she said’ between himself and the government where the credibility imbalance is fatal,” attorneys Arturo and Ramon Hernandez wrote in a recent motion to dismiss the indictment. “This was, of course, the plan all along.”
On Friday, the Hernandezes declined to comment for this story. The U.S. attorney’s office also declined. A hearing on the public authority defense issue is set for Sept. 11.
Lopez Londoño, a suspected drug lord known as “Mi Sangre” (My Blood) and a reputed leader of a Colombian paramilitary group called the AUC, is charged with a half-dozen others on a single conspiracy count of importing and distributing more than five kilos of cocaine between October 2006 and February 2012. That period includes the years he was working as a U.S. undercover informant with the code name “Assis.”
Lopez Londoño, 46, faces life in prison if convicted at trial this fall. Four of his co-conspirators have already pleaded guilty and are cooperating as witnesses.
In the pre-trial confrontation over evidence, federal prosecutors have called the father-and-son defense team “reckless” and “irresponsible” in their demands for the text messages as well as any emails. They assert that the federal agents who worked with Lopez Londoño didn’t destroy the Blackberry messages; they just don’t have them any longer because the mobile devices were discarded. As for any email exchanges, prosecutors say none of the agents ever communicated with the informant via emails.
In court filings, prosecutors acknowledge that Immigration and Customs Enforcement agents communicated with Lopez Londoño by Blackberry messages but the correspondence was lost when they replaced their mobile devices with iPhones in 2012. Prosecutors claim DEA agents never communicated with him that way, only in person.
Prosecutors assert the Blackberry messages were not destroyed in “bad faith,” as the defense attorneys claim. More significant, they claim ICE agents don’t believe there was any information in the text messages that would clear Lopez Londoño or show they authorized him to commit crimes as part of his undercover work.
“As the United States has repeatedly told defense counsel, no United States law enforcement officer from any agency ever gave [Lopez Londoño] specific authorization to break the law,” prosecutors Michael Nadler and Robert Emery wrote in court papers.
The prosecutors added that the information in the Blackberry messages is “not significant.” They said those messages contain no information that is “materially different” from the emails exchanged among the federal agents who dealt with Lopez Londoño. Those agents’ emails were turned over to the defense team. But the Hernandezes say they lack the full scope of assignments that the agents would have given to the informant in direct emails to him.
As for the emails between the agents and their informant? Prosecutors insist that no federal agents ever communicated by email with Lopez Londoño — not even his main handler, ICE agent Francisco Burrola, who formalized his relationship with the informant during their first meeting in Cartagena, Colombia, in fall 2009. However, evidence appears to contradict the prosecutors’ claim.
The defendant’s attorneys say their client still possesses a Jan. 15, 2010, email in which the ICE agent passed along a message from Lopez Londoño to an agency supervisor, according to a court motion filed this summer.
Lopez Londoño’s lawyers took the strategic step of disclosing their client’s once-secret role for the federal agencies soon after he lost his extradition fight in Argentina and was brought to Miami to face the drug-conspiracy charge in November 2016. The Hernandezes are trying to thwart his prosecution under a rare legal strategy, the public authority defense. In court papers, they argue that during the time Lopez Londoño is accused of breaking U.S. drug-trafficking laws, he was merely carrying out his assignments for government agents and therefore cannot be punished for any alleged misconduct.
According to his lawyers, Lopez Londoño fled from Colombia to Argentina in 2008 and started working undercover for a series of federal agencies, starting with the Internal Revenue Service, then ICE and the DEA. As their “deep cover mole,” the agents required him to return to his homeland to infiltrate drug organizations and other criminal networks — including two members of the terrorist group al-Qaida who wanted to establish a trafficking route to Europe where they had fishing businesses.
In an affidavit, Lopez Londoño said he worked with five ICE agents and later with three DEA agents, while infiltrating and providing information on several targets, including Mexico’s “El Chapo” Guzman, the Urabeños drug-trafficking gang and Los Rastrojos organization.
As a confidential informant, Lopez Londoño said he provided “extensive intelligence” on the structure of organizations, cocaine production facilities, drug-trafficking routes, money-laundering activities, and the identities of high-ranking officials “engaged in political corruption” in Colombia, Venezuela and Argentina.
The Hernandezes say the agents and prosecutors have ignored his valuable undercover work — including providing information that led to two seizures of large cocaine loads — and focused instead on his alleged tenure as a leader of the right-wing paramilitary group, the AUC, and its cocaine-trafficking operations more than a decade ago.