MANHATTAN (CN) — Former Honduran Congressman Juan Antonio Hernandez asked the Second Circuit on Wednesday to overturn his conviction on drug, weapons and false statement charges, arguing he was interrogated by a federal agent outside the presence of an attorney.
Hernandez was sentenced to life in prison in 2021 for his involvement in trafficking multiton loads of cocaine through Honduras to the U.S. He was convicted in 2019 of charges that carried a mandatory minimum sentence of 40 years in prison. The trial also revealed that Mexican drug lord Joaquin “El Chapo” Guzman gave $1 million in bribes to Hernandez to pass along to his brother Juan Orlando Hernandez, who was president of Honduras at the time.
Hernandez asked a federal judge to suppress statements made after his arrest because he was interrogated outside the presence of his attorney, despite federal agents knowing he had one. But a federal judge denied his motion, saying agents did not have “actual knowledge” he had an attorney at the time of the interrogation.
Federal prosecutors argue Hernandez was “ambiguous” about whether he had an attorney because he said he had not spoken to his attorney in over a year. When the government tried to contact his attorney Manuel Retureta, they could not reach him. Additionally, when Hernandez was asked if he had legal representation, he responded, “I don’t know.”
But Hernandez says the government violated the “no-contact” rule by interrogating Hernandez even though they knew he had legal representation.
According to Hernandez’s brief, Retureta made multiple attempts to contact the government following Hernandez’s arrest saying, “Please make any necessary inquiries through me as he does not wish to speak without defense counsel present.”
On appeal before a Second Circuit panel Wednesday, Hernandez's attorney Jesse Siegel blasted the agents. “The idea that an attorney could bring a client to meet with the government in an attempt to cooperate and then follow up with phone calls and emails,” Siegel told the panel. “And that the government could then claim they didn’t know at some later date the defendant was represented by counsel was shocking.”
But U.S. Circuit Judge Alison J. Nathan, a Joe Biden appointee, pressed Siegel on whether Hernandez knew he had representation at that point.
“If he has uncertainty about whether the representation continues at that point and he says, ‘I don’t know if I have a lawyer,’ then what happens to your claim?” Nathan asked.
Siegel answered the government had an obligation to allow Hernandez to contact his attorney.
Nathan was joined in the proceeding by U.S. Circuit Judge Guido Calabresi, a Bill Clinton appointee, and U.S. Circuit Judge Sarala Nagala, a Joe Biden appointee.
But the government argued the agents did not have “actual knowledge” that Hernandez had legal representation and, if they did, they would have informed the assistant U.S. attorneys.
“Hernandez’s responses to the agents were important because if he had said ‘I am represented,’ they would have reached back to the AUSAs and I think things would have gone differently,” Jason Richman, an assistant U.S. attorney, told the panel Wednesday.
Hernandez also claims he was denied an impartial jury after a federal judge refused his request to conduct an inquiry to see if certain jurors had been photographed outside the courthouse.
During the trial, the court received a note from an alternate juror who noticed someone who did not appear to be from the media taking their picture, indicating that another juror noticed this as well. After the alternate juror was dismissed, the court declined to conduct a further inquiry to see if the other juror had been photographed too.
“The district court was obligated to make some further inquiry to find out what had been the nature of the conversation between the two jurors, and that could have easily been done without any risk by simply talking to the juror who was being let go,” Siegel said.
But Richman said the court did not have to conduct a further inquiry because U.S. District Judge P. Kevin Castel, a George W. Bush appointee, instructed the remaining jurors to write a note if there were any further concerns.
“No one else contacted the court,” Richman said. “There was simply no need for further inquiry.”
Nathan asked if it would have been an error if the judge declined to do a further inquiry if they had a reason to believe other jurors were concerned.
“I think that would have been within Judge Castel’s discretion based on the record that was before the court at the time, which was not other juror expressing anything about this supposed photograph,” Richman said.
Geovanny Fuentes Ramirez, a Honduran citizen who was sentenced to life in prison for importing cocaine into the United States, also joined the appeal though he'd been tried separately. Ramirez claims he was charged after the statute of limitations had expired and had ineffective assistance of counsel during the trial because his attorney failed to provide the court with anything on their statute of limitations defense.
“The court invited counsel to file something. The court wanted to hear what was said, what they wanted to argue,” Jay Ovsiovitch, Ramirez’s attorney, told the panel, referring to Ramirez's trial attorney. “It was a short period of time that should not have had any impact on counsel filing anything to the court. They were given the opportunity to do so. They did not do this, they failed.”
The panel did not indicate when or how they would rule.
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