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Former Medellin drug cartel member seeks early release from US prison, cites coronavirus

Fabio Ochoa's attorney cites changes to federal sentencing guidelines and urges compassionate release on covid-19 grounds. Ochoa was sentenced in Miami in 2003 to 30 years in prison for drug trafficking. (Leer en espanol)
26 Abr 2020 – 01:06 PM EDT
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U.S. Drug Enforcement Administration agents and U.S. Marshalls usher Fabio Ochoa, reputed Colombian drug kingpin, to an awaiting vehicle at Miami International Airport, Saturday morning, Sept. 8, 2001, following his extradition from Colombia. Crédito: AP

Fabio Ochoa, whose family once formed part of Colombia’s notorious Medellin cocaine cartel, is seeking early release from U.S. prison, citing new sentencing guidelines and the coronavirus outbreak.

Ochoa has filed documents in Miami federal court asking for a five-year reduction to his 30-year sentence imposed by a judge in 2003.

“A 25-year sentence is not a slap on the wrist in this case. A lot of inmates are already getting compassionate release because of coronavirus,” his Miami lawyer, Richard Klugh, told Univision.

As a result of the pandemic, inmates across the country have been released early or sent to home confinement, especially those who are elderly or chronically ill.

Ochoa, 62, has already served almost 21 years in jail, between his 1999 arrest in Colombia and subsequent extradition to the United States. If successful he could shave more than five years off his sentence and be released from prison right away as prisoners are usually expected to serve only 85 percent of their sentence.

The Ocho brothers

Ochoa is the youngest of three brothers accused by U.S. prosecutors of being members of the Medellin cartel, once headed by Pablo Escobar. While he, and his two brothers, Jorge and Juan David, were on the U.S. list of the ‘Dozen Most Wanted’ drug lords, they were cut from different cloth than the more ruthless Escobar. They kept a lower profile and eventually retired from the drug business to run the family’s successful paso fino horse business founder by their father 'Don Fabio' in the hills of Envigado, on the outskirts of Medellin.

Fabio Ochoa was named in three U.S. indictments, including one in Louisiana that alleged he had a role in the murder of Drug Enforcement Administration (DEA) informant Barry Seal, who’s story was featured in a popular 2017 movie, ‘American Made,’ starring Tom Cruise.

Seal was a daredevil pilot who flew drugs in the 1980s for the Medellin cartel and later worked undercover for the DEA and the CIA.

Ochoa was arrested in 1990 in Colombia but avoided trial in the U.S. as there was no extradition agreement between the two countries.

‘Operation Millennium’

That changed in 1997 and in 2001 he was arrested for a relatively small role in a large, multi-ton drug trafficking conspiracy in Miami along with 41 people, dubbed ‘Operation Millennium’. His co-defendants surrendered to U.S. authorities and testified against him in crime in return for lighter sentences. Ochoa opted to go to trial, was found guilty and is serving a 30-year sentence.

One of Ochoa’s former prosecutors, Richard Gregorie, who is now retired, told Univision that his conviction was a major blow to Colombian drug traffickers who had long avoided justice, noting that Fabio Ochoa was one of only two members of the Medellin cartel who ever ended up in jail in the United States. The other, Carlos Lehder, is serving a life sentence.

“I would be really shocked if they him get out,” said Gregorie. “He (Fabio Ochoa) should have gotten life too, but under the extradition agreement the maximum was 30 years under Colombian law,” said Gregorie. The extradition agreement also barred prosecutors in the United States from charging Ochoa with any crimes committee before 1997, including the Seal murder.

However, the judge allowed evidence to be introduced during the trial of Ochoa’s drug trafficking before 1997 as proof of his having substantial knowledge of the inner workings of the drug trade.

At the time of the trial, Ochoa’s lawyer, the prominent Miami criminal defense attorney, Roy Black, argued that his client was being unfairly targeted by U.S. law enforcement out of revenge for the Ochoa clan having escaped their clutches for so many years. Escobar was gunned down by Colombian police in 1993, with the help of U.S. intelligence.

Lesser role

In court documents, his current lawyer, Klugh, argued that Ochoa had only a limited role in the Millennium conspiracy, and was entitled to a reduced sentence of around 24 years, under revised sentencing guidelines that were introduced several years ago. Out of hundreds of tons of cocaine involved in the conspiracy, only 150 kilos was attributed to Ochoa.

Under U.S. law, the sentence “for a crime involving drugs is calculated based on the amount of drugs attributed to a particular defendant,” Klugh pointed out in court papers.

“Under the revised cocaine table 150 kilos no longer take you to the top (of the sentencing guidelines), said Klugh.

The other defendants who played far bigger roles, including the ringleader, Alejandro Bernal, got much lighter prison terms because they cooperated with the government. Ochoa was not an investor in the drug routes used by Bernal, and only participated in the scheme to help Bernal settle an old debt with another conspirator.

Bernal, who admitted being responsible for over 60 tons of cocaine and the laundering of over $100 million, served less than six years in prison. He returned to Colombia after his release in 2012 and was murdered a month later in what was considered to be a revenge killing for his collaboration with U.S. authorities.

However, legal experts say Ochoa lost the opportunity for a reduced sentence by going to trial and protesting his innocence. Also, even if he won a new sentencing hearing he could end up with the same 30 year sentence. While the new guidelines are less severe, they are also no longer mandatory, allowing the judge to impose whatever sentence he feels fit.

Ochoa’s fate is in the hands of district judge Michael Moore who presided over his 2003 trial, with reputation for being unyielding. “He’s more than familiar with the facts of the case,” said David Weinstein, a former federal prosecutor.

Compassionate release

The judge has asked prosecutors to file a response to Ochoa’s request by May 1.
Klugh said that during his time behind bars Ochoa had been “a model prisoner” and also deserved to be considered for compassionate release due to the coronavirus outbreak.

U.S. Attorney General Bill Barr announced this month that federal prisons would begin releasing some elderly and sick people to reduce crowding that can fan the spread of the virus. Out of roughly 150,000 federal inmates, there are 620 prisoners and 357 staff who have confirmed positive test results for covid-19, according to the Bureau of Prisons.

There have been 24 federal inmate deaths attributed to the disease.

“As a male inmate in his sixties, Ochoa is in a very high risk group,” for covid-19, Klugh wrote in court papers.

However, the Bureau of Prisons rules for compassionate release normally apply to inmates over the age of 65 with “deteriorating health.”

Klugh declined to discuss the health of his client. “There’s a public interest in elderly inmates not being exposed to health issues,” he said. But, he preferred for the legal argument for a reduced sentence to stand on its own. “It’s a well-founded legal argument. I don’t want people to think this is a mercy case,” he added.

Ochoa’s immigration status may also work against him. “In most cases of compassionate release, they are sent to home confinement or supervised release for U.S. citizens,” where authorities can keep them under watch, said Weinstein.

In Ochoa’s case, he faces immediate deportation back to Colombia.

Family hopeful in Medellin

Ochoa, a father of three children who were all minors at the time of his arrest, has not been able to see his wife and other members of his immediate family since his extradition because they have been denied U. S. visas on several occasions, according to Klugh.

His brother Juan David passed away five years ago.

Ochoa’s sister, Marta Ochoa, told Univision “I believe a hope is opening for Fabio ... and with the help of God, we will have him home this year.”

UPDATE: Prosecutor Ricardo Del Toro rejected Ochoa’s request on Monday arguing that he was an unrepentant cocaine kingpin “worthy of no leniency.”

He also denied the claim that Ochoa played a minor role in the conspiracy saying that the trial evidence showed he “knew the full scope of the conspiracy to traffic in several thousand kilograms of cocaine and … personally participated in it.”