A New York federal judge pushed back the trial of former Honduran president Juan Orlando Hernandez until September 18 after lawyers for the government and the defense filed a joint letter seeking a further delay in his trial on drug-trafficking charges.
The lawyers requested the delay in order to have another time to review classified documents in the unprecedented case involving a former head of state who was dramatically extradited to the United States after leaving office last year.
Hernandez’s defense lawyer, Raymond Colon, has persisted in demanding that the government release classified CIA documents which he says will reveal that his client cooperated with the US government in the war on drugs.
In a social media post last week, Colon threatened to file a motion to dismiss the case for lack of evidence if the documents are not turned over.
“If they don't give it to me, I'm going to make a motion to dismiss the case because it violates my client's rights under the 6th amendment,” he said, referring to the constitutional right to a just and speedy trial.
Colon also accused the US Drug Enforcement Administration of corruption, claiming the agency had “spied” on him.
“The DEA have been so corrupt and so dirty that they have tried to spy on us and plant individuals who could be harmful to the defense,” added Colon, speaking in a TikTok post by Hernandez’s wife, former First Lady, Ana Garcia.
Colon appeared to be referring to an incident in which one of his defense team met secretly with DEA agents prior to Hernandez’s arrest, as Univision has previously reported.
Hernandez is accused to taking drug money for his politicial campaign from El Chapo
Hernandez is accused of “partnering” with the former leader of the Sinaloa Cartel, Joaquín ‘El Chapo’ Guzman, among others, to allow large amounts of cocaine to be smuggled through Honduras between 2004 and 2022 while he was a leading member of Congress and later president.
In one of the most dramatic reversals in fortune for a one-time US ally in Latin America, Hernández, 54, faces a possible life sentence if found guilty on three charges.
Originally scheduled to be held this month the trial has already been put back to April 24. But in their letter to the judge, prosecutors said the defense was seeking a delay until July or August. The government said a delay until mid-June “is appropriate” given the large amount of documents in the case, including some containing classified information.
“The Government has produced voluminous discovery materials to the defense, amounting to over a terabyte of data, beginning in June 2022 and continuing on a rolling basis,” wrote Damian Williams, the US Attorney for the Southern District of New York.
“The Government anticipates that it will further supplement its discovery productions to date, including with classified materials,” he added. Some documents could also "contain sensitive information regarding assistance to law enforcement by others in sensitive ongoing investigations in Honduras and elsewhere as well as actual and threatened acts of violence against victims whose identities are not presently public," the prosecution states in court documents.
Defense hires new lawyer with security clearance
Williams said that the defense was “in the process of submitting necessary forms to obtain his clearances.” However, the forms had not yet been received, he added.
Colon told Univision he had been “slowed down” by illness -covid as well as a bad cold - when asked why he had not filed the security clearance forms despite having had more than eight months to do so. Hernandez was extradited from Honduras to New York in April last year. Colon also said that having to travel to Honduras to visit his client’s family and gather information had taken up time.
Colon this week added Sabrina Shroff, an experienced public defender with a top secret security clearance to his defense team, potentially speeding up the process.
Legal experts consulted by Univision said the judge would likely have to accept a delay in fairness to the defense. However, the judge was likely to want to hear a good explanation from Colon as to why it was taking so long for him to file the security clearance papers.
“There may be a tactical reason,” to allow the defense more time to review all the documents in the case, said Miami defense lawyer Joaquin Perez. “Typically, the defense wants to delay the case. It’s a significant amount of work. This is going to be quite an undertaking” he added.
But a delay could also benefit the government which is still building its case with potential new witnesses.
Last month, a Honduran court cleared the way for the extradition of a local politician, Arnaldo Urbina Soto, who was allegedly close to Hernandez. Urbina Soto was charged in the United States in 2018 with coordinating “heavily armed security details that oversaw the unloading of the planes and the transportation of the illicit cargo in connection with importing massive quantities of cocaine into the United States.”
When he gets to the United States, possibly as soon as next month, U.S. authorities are expected to try and flip Urbina Soto to testify against Hernandez.
Several co-conspirators have pleaded guilty and agreed to testify against Hernandez. Others have pleaded guilty but declined to testify. While some possible witnesses against Hernandez have resisted making plea deals with the government, they risk longer prison sentences if they chose to go to trial and are found guilty.
Colon argues that the government does not have any direct evidence against Hernandez.
“The law requires that an individual cannot be convicted simply on the statements of a co-conspirator. There's no video, no audio, no fingerprints [...] There's nothing, overwhelming, let's say, that can convict him,” he said.
Legal experts questioned the validity of Colon’s argument. While a lack of direct evidence maybe makes for a weaker case, convincing testimony from a co-conspirator is acceptable in court and can be damaging in the eyes of the jury.
“You can’t be convicted solely on circumstantial evidence. There must be something else,” said former US prosecutor David Weinstein, who is now in private practice in Miami with the firm Jones Walker. “You can be convicted solely on co-conspirators testimony. But there usually is something to corroborate it,” he added.
In the Hernandez case, his brother and several co-conspirators were already convicted on evidence that they were working with the president and delivered drug money to him from the Sinaloa cartel.