The release of a document by U.S. federal prosecutors in New York earlier this month implicating President Juan Orlando Hernandez of Honduras as a “Co-Conspirator” in a vast drug trafficking conspiracy, has rocked an already fragile nation, resulting in widespread protests and a chorus of calls for the president to resign.
The 44-page document outlines the government’s case against the president’s brother, Antonio ‘ Tony’ Hernandez who was arrested in Miami late last year on drugs and weapons charges and is due to go to trial in New York Oct 2.
Hernandez has emphatically denied the allegations saying they are based on the worthless testimony of a drug trafficker, Alexander Ardon, who is cooperating with prosecutors and is seeking revenge on Honduras authorities after his capture.
However, former federal prosecutors told Univision that testimony from cooperating witnesses is vetted and it’s unlikely such accusations would be made without some additional form of corroboration.
“The practice in the Southern District of New York has often been that their cooperating witnesses are corroborated in a number of ways,” said Jessica Ortiz, a former New York federal prosecutor who also served for a time as chief of the Narcotics Unit in the Southern District office.
Furthermore, President Hernandez’s involvement in the conspiracy is corroborated in part by another unnamed cooperating witness, identified as a former Honduran police officer who was involved in drug trafficking.
Prosecutors allege that Ardon received protection from the government, evidenced by the fact that he was a powerful local politician for the ruling National Party and was never charged in Honduras despite his involvement in drug trafficking being an open secret.
The decision to designate a sitting president as a co-conspirator is one that would not be taken lightly. Prosecutors had the option of designating Hernandez simply as an unnamed “Official” for example, a pseudonym used for government officials who may be linked to the conspiracy to a lesser degree and are not directly involved in the conspiracy. Former Southern District of New York prosecutors told Univision that the designation as a CC, or co-conspirator, instead has more serious implications.
“Knowing what governs whether to identify someone or not, that strikes me as a significant act and a deliberate one,” said Nick Lewin, a former Southern District prosecutor and senior FBI official, who noted that identifying the sitting president of a foreign state would likely require high-level approval.
However, the designation of a person as a co-conspirator in a criminal conspiracy does not mean that the person will necessarily be the subject of a future indictment. The burden of proof is lower than what’s required for an indictment. Therefore, many co-conspirators are never charged, he emphasized.
The 44-page document , released in relation to the upcoming drug trafficking trial of Antonio ‘Tony’ Hernandez, brother of the president, alleges, among other serious accusations, that in 2013 Juan Orlando Hernandez solicited roughly $1.5 million in illicit campaign financing from Ardon.
The prosecution's case also alleges that president Hernandez solicited bribes for his election as president of Congress, that he provided protection to the co-conspirators, as well as receiving illicit campaign financing in 2009.
President Hernandez dismissed "the false and perverse accusations,” instead highlighting his government’s achievements in the war on drugs and making two surprise trips to Washington D.C. in the last two weeks, appearing to show that he has no legal problems in the United States.
His office did not respond to a request for comment for this article.
The clock ticks
The upcoming trial of Tony Hernandez – scheduled to begin October 2 in New York – represents the greatest threat yet to President Hernandez’s tenure and places into question the Honduran government’s relationship with the United States at a time when the Trump administration is negotiating drastic changes to migration policy in the region.
Tony Hernandez has pleaded not guilty to the charges. His lawyer declined to comment for this story.
Meanwhile, an entire country – and likely the U.S. State Department, whose support is crucial to Hernandez’s legitimacy – sits on edge awaiting evidence yet to be presented by prosecutors. On trial in the eyes of many is more than just Tony Hernandez, but rather an entire system seen as rotted from top to bottom by drug trafficking that, according to prosecutors, “contributed to Honduras becoming one of the most violent places in the world.”
Drug trafficking conspiracy charges have a five-year statute of limitations that runs from the end date of the conspiracy. In this case, the end date appears to fall in either 2016 or 2017, based on the evidence presented by prosecutors thus far. That would mean that prosecutors would have to present charges against any co-conspirators by some time in 2022 at the latest. Hernandez’s current term ends January 2022.
If upon the culmination of the Tony Hernandez trial prosecutors feel they have enough evidence to implicate President Hernandez beyond a reasonable doubt, three potential scenarios that could play out, according to former Southern District prosecutors. First, if the prosecutors believe they have time on their side, they could simply wait until the president leaves office to present charges, meanwhile targeting other co-conspirators. Second, they could present the indictment and attempt to extradite the president. In this event the president would not be protected by diplomatic immunity, but sovereignty and other diplomatic considerations could be an issue.
Third, due to the obvious difficulty of extraditing a sitting head of a foreign state, prosecutors could also choose to file the indictment under seal within the five-year timeframe and wait until the president leaves office, whether that comes in 2022 or beyond. Even then, President Hernandez would still enjoy immunity from arrest under Honduran law as a member of the Central American parliament for another five years, as is customary for outgoing heads of state in the region.
What’s a co-conspirator?
The prosecutor's outline of the case does not name President Hernandez directly, but rather lists him as "CC-4", or Co-Conspirator-4. The context, however, leaves no doubt about his identity, stating that the person is “brother of the defendant” and winner of the 2013 presidential election.
In his defense, Hernandez has suggested that the allegations are based solely on the testimony of Ardon, who is identified as CW-3, or Cooperating Witness-3, and was indicted on drug trafficking charges in January and now appears to be cooperating with prosecutors.
"What this is really about is the declarations of a narcotrafficker as a witness in a case that isn’t directly related to me,” said Hernandez in a press conference after the allegations were made public.
President Hernandez is accused by prosecutors of having solicited bribes from Ardon to help him become president of Congress and then later of the republic in exchange for protection, which he also allegedly provided to his brother Tony and other co-conspirators. Former prosecutors from New York’s Southern District said that the accusations against Hernandez – soliciting bribes in exchange for protection – could be sufficient for an indictment if there is enough supporting evidence against him.
“If it’s done with the knowledge and the understanding that those acts are taken in a furtherance to effectuate or facilitate or continue narcotics trafficking that would all be part of the narcotics trafficking conspiracy, especially when you’re getting paid in drug proceeds,” said Rebecca Monck Ricigliano, a former district prosecutor and chief of the Narcotics Unit.
Although it’s true that many of the allegations outlined in the document rely on Ardon’s testimony, Hernandez’s involvement in the conspiracy is corroborated in part by another cooperating witness, identified as CW-4, a former Honduran police officer who was involved in drug trafficking. According to the document, CW-4’s main contact was “a high-ranking officer in the Honduran National Police,” who is also a cousin of Hernandez.
CW-4 provided protection for drug shipments as well as “sensitive law enforcement information” to the conspiracy in exchange for money, promotions and protection, prosecutors say. Prior to his extradition, CW-4 met with Hernandez’s cousin, who allegedly told him that he could no longer be protected "because of Hernandez’s interest in pursuing reelection.”
Following the publication of the New York prosecutors outline of the case against Tony Hernandez, photos emerged in the Honduran media of Ardon with Juan Orlando Hernandez. While the photos established that the two men had indeed met eachother, they don’t prove much more than that since, prior to his downfall, Ardon was an influential member of Hernandez’s National Party.
The former mayor of El Paraíso in the northwestern province of Copan, Ardon is alleged to have worked with Joaquin El Chapo Guzman, the convicted head of Mexico’s Sinaloa Cartel. He reportedly built a town hall that resembles the White House, complete with a heliport on the roof.
Ardon was indicted in the U.S. for large-scale drug trafficking and weapons offenses, including use of a cocaine laboratory as well as a clandestine airstrip used to receive drug-laden aircraft from South America. “Ardon and others participated in providing heavily armed security for cocaine shipments transported within Honduras, including by members of the Honduran National Police and drug traffickers armed with, among other weapons, machineguns,” prosecutors said when he was indicted in January.
Lobo family troubles
For now, Hernandez's predecessor as president, Porfirio ‘Pepe’ Lobo, seems the one most imminently at risk. In October, the court will hear testimony from at least three former drug traffickers who “will explain that they used drug proceeds to support [Lobo’s] 2009 presidential campaign in order to obtain protection from [Lobo] and his associates,” according to the outline of the case submitted by prosecutors.
That includes Ardon, and Devis Leonel Rivera Maradiaga of the ‘Cachiros’ crime family. Lobo was also responsible for placing Ardon’s brother at the head of a highway authority – allegedly in exchange for bribes – that was used to launder drug money, according to prosecutors.
Porfirio Lobo has denied all accusations of links to drug traffickers and called for President Hernandez, known by his initials as JOH, to resign so that they may face any accusations on equal footing. Once political allies, a rift has widened between the two owing to indictments of Lobo’s family members by an international anti-corruption commission, including Lobo’s wife, Rosa Elena Bonilla de Lobo, who was convicted this week of alleged embezzlement of $600,000 during his presidency, and faces 50-80 years in jail.
In one Twitter post, Lobo warned “JOH’s turn has arrived,” adding “No-one is above the law.”
In recent days, Lobo and Hernandez have squabbled over who can claim responsibility for the passage of an extradition law in 2012. Lobo points to the fact that as president, the bill required his signature. Hernandez, who was president of Congress at the time, has brandished himself as the leading proponent of the bill.
“Even against threats and ferocious opposition, it was President Hernandez who led the battle to approve extradition,” said an official statement from the government of Honduras on August 3.
A former diplomat who spoke with Univision recalled that the push for extradition was led by a small group inside Congress, but did not recall Hernandez’s participation in quite the same leading role as the president has portrayed. The diplomat noted, however, that the bill required Hernandez’s approval and that he was a much more eager ally than Lobo in the fight against drug trafficking.
Prosecutors paint a picture in which Hernandez allegedly seemed to believe that he could control who would be extradited or put an end to the practice if it became too threatening.
Hernandez has family problems of his own that extend beyond his brother. His sister, who died in a December 2017 helicopter crash, was named as a target of a DEA investigation as well as being implicated in a vast corruption scheme to embezzle public funds through shell nonprofits. A pair of nonprofits linked to his wife and other family members and allies are under official investigation by Honduran prosecutors , Univision reported earlier this month. The nonprofits have denied any wrongdoing.
His brother Tony was arrested in Miami in late 2018. A key witness, Rivera Maradiaga, began cooperating with the DEA in 2013, recording at least one meeting with Tony Hernandez the following year, and then surrendered to U.S. authorities in 2015. A co-defendant, Victor Hugo Diaz Morales, who according to the indictment operated out of the Hernandez family’s hometown of Gracias, Lempira, was extradited from Guatemala. Ardon and Mario Jose Calix Hernandez, a former vice-mayor of Gracias and co-defendant, were reportedly also extradited from Guatemala.
The case of Ardon and Calix is particularly telling. Instead of quietly filing a petition for extradition of the pair, prosecutors announced their indictment and the petition, causing the two to reportedly flee Honduras and into the hands of the DEA in Guatemala. Former New York Southern District prosecutors said that such a differentiation in approaches to extradition is likely a strategic move, one they note paid dividends with the apparent cooperation of Ardon. It isn’t known whether Calix, who has not yet entered a plea, has decided to cooperate with prosecutors or not.
“I understand that [Calix] had lots of information and that when he left, he did so threatening to expose others to the American authorities,” said Raul Pineda, a lawyer and political analyst.
The spectacle of the brother of the president of a foreign nation standing trial in New York on drug trafficking charges has little precedent. Manuel Noriega of Panama is the only sitting head of state, de facto or otherwise, to be arrested by U.S. officials on drug trafficking charges. It took a military invasion in December 1989 to apprehend and extradite Noriega, who was later convicted and died in jail in 2017.
President Hernandez has served a purpose for the DEA, helping extrdite nearly two dozen narcotraffickers from Honduras.
The October trial – which will feature testimony from at least five cooperating witnesses – may reveal more incriminating evidence in the case as well as the Honduran government’s complicity in the drug trafficking that has ravaged the country and made it one of the world’s most dangerous.
That could prove highly embarrassing for President Hernandez. His brother’s alleged career in drug trafficking appears to have benefited considerably from his family’s political power and government connections, according to prosecutors, and he has admitted to relations with narcotraffickers and knowledge of their activities, according to court documents.
In new court documents filed on Wednesday, prosecutors refer to “a symbiotic relationship between drug traffickers and the National Party,” which has been dominated by Lobo and Hernandez for the last decade. They describe Tony Hernandez as “the key conduit between some of the largest drug traffickers in Honduras and the presidential palace.” Prosecutors also allege that Tony Hernandez was involved in the killing of eight people in a cocaine dispute in 2009, and also sought to distribute machineguns to co-conspirators in Mexico and Colombia, including members of the FARC guerillas.
Request for legal assistance
In February, the U.S. Justice Department requested urgent legal assistance from Honduran authorities, regarding the use of criminal proceeds to purchase of aircraft and real estate by Tony Hernandez "or his relatives and associates."
Prosecutors asked for records of incorporation relating to businesses associated with Hernandez and his associates, including applications for contracts with the Honduran government, aircraft records, firearms licenses, property records and bank accounts.
Prosecutors said these records were being requested "in connection with the investigation of [Tony] Hernandez Alvarado's known and unknown co-conspirators, which is ongoing."
Univision asked President Hernandez's office if the Honduran government had complied with the request for assistance. The Southern District of New York also did not comment when asked if had received the requested information.
If Tony Hernandez is convicted, it will become an open wound for his brother’s government to be picked at by opponents. But short of a subsequent indictment of the president, it’s equally difficult to see a scenario in which Hernandez would be forced to resign by his own party, which controls all three branches of the government and appears to have benefitted greatly from the conspiracy.
“So long as there are only references and accusations nothing will happen here,” said Pineda.
The U.S. government has demonstrated a habit of doing business with controversial foreign actors and could seek to use the situation as leverage to advance its migration agenda, rather than impose any sort of sanctions that might foment the president’s ouster.
Possibly with that in mind, Acting U.S. Secretary of the Department of Homeland Security, Kevin McAleenan, met on Tuesday with President Hernandez, to discuss "a shared commitment to improving security and addressing irregular migration,” according to a joint press release.
Street protests could swell in Honduras as new details come out during the trial, perpetuating a cycle of unrest that will likely go on until Hernandez leaves office.
“Knowing Hernandez as I do, I’m certain that he’s going to fight until the last moment so as to not relinquish power before the end of his term,” said Pineda, who served with Hernandez in Congress at the turn of the century.
Additional reporting by David Adams