The New York federal judge in the drug trafficking case involving former Honduran president Juan Orlando Hernandez drug case has ordered the trial to be delayed by more than three months until April 2023 due to complications over the handling of classified documents.
In order to be able to view sensitive government materials in the pre-trial discovery process the defense lawyers must first be granted a security clearance by the different intelligence agencies involved. The clearance does not appear to have been granted yet, according to the latest court filings.
“Defense counsel is in the process of obtaining the requisite security clearance, which may take at least 60 to 90 days,” the U.S. Attorney for the Southern District of New York, Damian William, wrote in a letter to the judge on Monday. The government said it also needed more time “to consult with relevant components of the U.S. Government and the Department of Justice,” the letter stated.
Williams said the request was being made by both the defense and the government in order to have more time to review “voluminous discovery materials” supplied by the government to the defense. Judge Kevin Castel quickly approved the request.
The trial was due to have commenced January 17, 2023 and is now set for April 24, 2023. A court hearing on discovery process which was scheduled for next week has also been postponed until October 27.
Colon has also had problems with the composition of his defense team, which has been criticized for unusual behavior as well as outlandish statements.
What does the Classified Information Procedures Act (CIPA) say?
Under the Classified Information Procedures Act (CIPA) the prosecutor is required to take “reasonable precautions against the unauthorized disclosure of classified information during the case” which could create a potential threat to national security.
Once considered a U.S. ally, Hernandez was president of Honduras for eight years from January 2014 to January 2022 and in that role had numerous interactions with different parts of the U.S. government, including the Department of Homeland Security, DEA, FBI and CIA, according to Colon.
As result, legal experts said it was not surprising that the CIPA clearance is taking a little longer. "It's a complex process. It's basically a personal check to see if you can be compromised or you might leak information," said veteran Miami defense attorney Joaquin Perez, who has received a clearance in the past and represents a Honduran client in a related drug case.
"I doubt that he (Colon) would be denied clearance because then the defendant could claim he is being denied his attorney of choice," he added.
The government can also seek a protective order to limit access to documunts and also to delete sensitive portions of documents. "Sometimes a defendants needs classified information to defend themsleves and then you get into a difficult balancing act. But the defendant should be allowed access to any information that is potentially exculpatory," said Perez.
Hernandez interacted with high-level U.S. government figures
Hernandez was extradited in April on charges that he received millions of dollars in bribes to protect drug traffickers who smuggled tons of cocaine into the United States, including Joaquin ‘El Chapo’ Guzman. Hernández entered a not guilty plea in May to three charges of participating in a drug trafficking conspiracy, and possession of machine guns.
Colon has threatened to subpoena President Joe Biden and former presidents Barack Obama and Donald Trump to vouch for Hernandez’s key role as an ally of the U.S. government in the war on drugs, including the extradition of numerous traffickers from Honduras to the United States.
Hernandez also constantly kept U.S. agencies including the CIA and DEA informed about what was happening in his country, and was even invited to a briefing at CIA headquarters in Langley, Virginia in 2017, according to Colon.