ATLANTA (CN) — Attorneys for two former Miami cops convicted of drug trafficking charges after escorting cocaine suppliers in an FBI sting told an 11th Circuit panel Thursday that their clients’ convictions should be overturned due to procedural errors at trial.
“This case is about an entrapped rookie police officer threatened by his only contact,” attorney Ashley Litwin of Seitles & Litwin argued on behalf of James Archibald.
After a June 2019 trial, Archibald was sentenced to 10 years in prison and his co-conspirator Kelvin Harris was sentenced to 27 1/2 years for conspiring to possess with intent to distribute more than five kilograms of cocaine. Harris was also convicted of possessing a firearm during the commission of a drug trafficking crime.
The FBI launched an undercover operation to snare dirty cops inside the Miami Police Department after receiving complaints of corruption.
Archibald, Harris and former officer Schonton Harris were caught as part of the sting after agreeing to escort agents posing as cocaine couriers in exchange for cash payments. Harris received a $10,000 cash payment and Archibald received $6,500.
Litwin told a three-judge panel of the Atlanta-based appeals court Thursday that Harris threatened Archibald to keep him involved with the criminal enterprise. She said he never got a chance to back out.
The attorney argued that the jury “was not instructed on any legal way to find Mr. Archibald not guilty” and was not instructed on duress. She also said that the court’s supplemental instruction to the jury on entrapment “confused” the jury.
But Justice Department attorney Robert A. Parker said Thursday that Archibald was no rookie and had engaged in criminal conduct for nearly a month without trying to alert authorities.
Parker told the panel that Archibald had been an officer for two and a half years and was training other officers at the time he was arrested.
“The idea that he, a police officer, had no opportunity during that time to alert law enforcement or otherwise get himself out of this situation simply is not credible,” Parker argued. “I don’t think it’s a stretch to say a reasonable police officer would realize they had an opportunity to blow the whistle on serious criminal conduct.”
Roderick Darrell Vereen, a Miami attorney representing Kelvin Harris, argued Thursday that an officer’s allegedly false statement to a grand jury should have been enough to toss out the indictment against his client before the case even got to trial.
Vereen said the government’s main witness against Harris, former Miami cop Catina Anderson, made “numerous” false statements claiming that his client helped offload two containers of cocaine at a marina.
Anderson assisted the FBI with the undercover operation after she was caught engaging in corrupt conduct in April 2018.
“The government was aware she was testifying falsely and allowed her testimony to go uncorrected,” Vereen said.
U.S. Circuit Judge Jill Pryor, an Obama appointee, pointed out that when Anderson testified later at the trial she acknowledged her testimony at the grand jury was “incorrect” and said she had simply been confused over the sequence of events.
The government's attorney acknowledged that it would have been “ideal” for the prosecutor to immediately correct Anderson’s testimony but told the panel that there was “no substance” to Vereen’s argument.
Senior U.S. Circuit Judge Stanley Marcus, a Clinton appointee, repeatedly questioned whether Vereen’s claims hold water since the trial jury’s guilty verdict “render[ed] harmless any conceivable error in the charging decision that might have flowed from the purported violation.”
But Vereen insisted that the prosecutor’s failure to correct the testimony – which he argued amounted to misconduct – “is a basis to dismiss the indictment regardless of what takes place after the fact.”
“There was an enormous amount of other evidence put forth to the grand jury…and as Judge Marcus pointed out, [the trial jury] heard all this evidence and convicted beyond a reasonable doubt,” Parker argued in rebuttal.
Marcus and Pryor were joined on the panel by U.S. Circuit Judge Kevin Newsom, a Trump appointee. The panel did not indicate when it will reach a decision in the case.
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