Indictment Tossed for Destruction of Evidence

     (CN) – The U.S. government’s destruction of video footage that could support a duress defense requires dismissal of a drug-smuggling charge, the 9th Circuit ruled.
     From the moment she was arrested at the border inspections point in San Ysidro, Calif., Estefani Zaragoza-Moreira had made investigators aware that she was claiming that the cartel put her up to the job, and that video footage of her conduct at the checkpoint could support this claim.
     “Yeah, I made it obvious,” Zaragoza told the Homeland Security Investigations agent who interviewed her after her Dec. 22, 2011, arrest, as quoted in the 9th Circuit’s ruling. “I was making – I wanted to be known. I didn’t want to do it.”
     Indeed Zaragoza’s arrest and subsequent interview with Agent Ashley Alvarado came only after Zaragoza had “blurted out” in a secondary inspection at the border that she had packages on her, according to the 9th Circuit’s ruling Wednesday.
     An officer then removed a package containing 0.34 kg of heroin on Zaragoza’s back, and another package on her stomach containing 0.42 kg of methamphetamine.
     Based in part on the probable-cause statement that Agent Alvarado filed, Zaragoza was charged with importing heroin and methamphetamine into the United States.
     The 9th Circuit noted that Alvarado’s statement completely “omitted any reference to Zaragoza’s claims of coercion or to her alleged conduct while waiting in the pedestrian line” at the border checkpoint.
     Zaragoza had told the agent that she was trying to return to the United States after partying for three days in Mexico when two members of the “Antrax of El Mayo” drug cartel pressured her into taping the drugs to her body.
     Although she was not offered money, the cartel members allegedly told Zaragoza that if she did it, “nothing’s going to happen to [her] daughter or [her] mother.”
     Zaragoza had said that she tried to enter the port of entry earlier that morning, but a friend and a cartel member took her out of the line because they observed her trying to loosen the packages of drugs attached to her body.
     During the interview, Zaragoza also told Alvarado about the memory and cognitive problems she suffered because she was shot multiple times in a gang-related incident when she was 13 years old. She also said she was forced to take drugs in the last 24 hours and “it made [her] feel weird.”
     A footnote in the 9th Circuit’s opinion notes that “Zaragoza’s overall cognitive and adaptive skills fall in the ‘mild range of mental retardation,’ and that she suffers from a loss of intellectual functioning capacity.”
     “Zaragoza’s adaptive skills resemble those of an average 8 year old,” the footnote continues.
     When Zaragoza’s attorney requested video footage from the day of her arrest, U.S. Customs and Border Protection informed the court that the footage was recorded over within 30 to 45 days of her arrest.
     Zaragoza conditionally pleaded guilty after the Southern District of California refused to dismiss the indictment against her on the basis of the destroyed evidence.
     The 9th Circuit reversed Tuesday, ordering the indictment against Zaragoza dismissed since the government’s conduct violated her due-process rights.
     “From the beginning to the end of Agent Alvarado’s hour-long interview with Zaragoza, Zaragoza repeatedly alerted Alvarado to her duress claim and the potential usefulness of the pedestrian line video footage,” according to the ruling for the appellate court by Senior U.S. District Judge Robert Gettleman, sitting on a three-judge panel in Pasadena by designation from Illinois.
     Gettleman noted that “the strength of her defense and whether Alvarado believed the claim do not diminish the potential usefulness of the video.”
     “The government has not suggested any reasonably available evidence that would be comparable to the destroyed video footage of the Port of Entry pedestrian line,” Gettleman added. “The government’s argument that in lieu of the destroyed video footage Zaragoza could testify at trial concerning her conduct in the Port of Entry line, runs afoul of Zaragoza’s Fifth Amendment right against self-incrimination, by essentially forcing her to testify in her own defense.”

%d bloggers like this: