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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 04-CR-20154-KMM UNITED STATES OF AMERICA, Plaintiff, vs. SANDRA AVILA-BELTRAN, Defendant. _________________________________/ MOTION TO DISMISS INDICTMENT DUE TO PROSECUTORIAL MISCONDUCT Defendant Sandra Avila-Beltran, through undersigned counsel, hereby, requests that this Court dismiss the indictment that was returned against Ms. Avila-Beltran on March 4, 2004. This motion rests upon Ms. Avila-Beltrans Fifth Amendment right to Due Process and upon this Courts supervisory power to ensure that fundamental fairness in the judicial process is served. FACTS1 On or about March 12, 2004, the federal grand jury returned a two-count indictment against Sandra Avila-Beltran and six others. (Court Docket # 3.) Count One charged Ms. Avila-Beltran with conspiracy to import five (5) kilograms or more of a substance containing a detectable amount of cocaine, commencing in or about January of 1999 and continuing until March 12, 2004, in violation of 21 U.S.C. 952(a), 963 and 960(b)(1)(B). Count Two charged Ms. Avila-Beltran with conspiracy to possess with intent to distribute five kilograms or more of a This statement of facts has been gleaned from a number of sources. It should not be considered to be an admission by the defendant, nor should it be viewed as a substitute for tangible or testimonial evidence.
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substance containing a detectable amount of cocaine, commencing in or about January of 1999 and continuing until March 12, 2004, in violation of 21 U.S.C. 841(a)(1), 846 and 841(b)(1)(A)(ii). The indictment also contained a forfeiture allegation. (Id.) On an unknown date in 2006 or 2007, the United States filed a request with the Republic of Mexico for the extradition of Sandra Avila-Beltran.2 Ms. Avila-Beltran was provisionally arrested in Mexico on September 27, 2007. On an unknown date, the Republic of Mexico denied the United States extradition request. The grounds for Mexicos denial are not reliably known. Newspaper reports in Mexico suggest that Mexicos denial was predicated on the fact that Ms. Avila-Beltran was criminally charged with the same offenses in Mexico and acquitted. Under these circumstances, double jeopardy considerations would have barred Ms. Avila-Beltrans extradition. On February 5, 2010, the United States Embassy in Mexico withdrew its request for formal extradition. Ms. Avila-Beltran was not, however, released from custody. On February 11, 2010, a second request for Ms. Avila-Beltrans provisional arrest was submitted to the Republic of Mexico. This request was granted on February 24, 2010, by Judge Olga Sanchez Contreras of the Fifth District of the Federal Criminal Process of the Federal District. On February 26, 2010, Mexico issued an order establishing that the United States had sixty days to file a formal petition for Ms. Avila-Beltrans extradition. The United States submitted its second request for extradition on April 22, 2010.

In preparation for this motion, the defense has requested disclosure of the extradition documents that are in the possession and control of the government. To date, the government has not complied with this request. Under these circumstances, the facts presented by the defense regarding Ms. Avila-Beltrans extradition are necessarily vague and present the defenses best effort to provide accurate information. The defense maintains that it cannot fully advance this motion in the absence of the requested discovery. 2

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The United States second extradition request contained the following supporting documents: (1) A sworn statement, dated March 26, 2010, authored by Assistant United States

Attorney (AUSA) Eric E. Morales. This document established that AUSA Morales is an expert in United States law and that he was familiar with the charges and evidence in the case against Ms. Avila-Beltran. It also included a description of the charges and pertinent United States law, examined the applicable statute of limitations, and included a summary of the facts and evidence. The statement also identified Avila-Beltran. (United States Request for the Extradition of Sandra Avila-Beltran, Sworn Statement of AUSA Eric Morales; Exhibit A.) (2) A sworn statement, dated March 26, 2010, authored by United States Drug

Enforcement Administration (DEA) Agent Stephen Kepper. This document established Agent Keppers training and experience, and included a summary of the alleged facts and evidence against Avila-Beltran. (United States Request for the Extradition of Sandra Avila-Beltran Sworn Statement of DEA Agent Stephen Kepper; Exhibit B.) (3) A sworn declaration, dated March 22, 2010, signed by Juan Carlos Lopez Correa

(aka: Pedro Juan Osorio). In this document, Lopez Correa stated that he was part of a group that imported cocaine from Colombia to the United States through Mexico, and that he participated in drug-related transactions with Avila-Beltran, Juan Diego Espinosa-Ramirez, and others. According to Lopez Correa, in 2000 and 2001, he participated in numerous transactions involving narcotics with Avila-Beltran, who frequently worked with Juan Diego. On numerous occasions, Lopez Correa made arrangements so the organization, including Avila-Beltran, could receive shipments of cocaine in Mexico. Avila-Beltran then made the arrangements to ship the loads of cocaine into the United States. Lopez-Correa also helped Juan Diego ship large

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amounts of money resulting from the drug trade to Colombia in return for a fee. Lopez Correa further stated that, in June of 2001, Avila-Beltran and Juan Diego agreed to provide 100 kilograms of cocaine on credit and that Avila-Beltran introduced Lopez Correa to three associates who had supply routes through which the cocaine could be shipped into the United States. The 100 kilogram load of cocaine was later shipped to Lopez Correas associates in Chicago, Illinois. Because the money to pay Avila-Beltran and Juan Diego for the cocaine shipment was seized by law enforcement officers from a messenger in Chicago, Illinois, and because Lopez Correa was unable to collect the proceeds from the sale of part of the cocaine, he incurred a debt to Avila-Beltran and Juan Diego. On September 14, 2001, Lopez Correa had a telephone conversation with Juan Diego and Avila-Beltran regarding the outstanding drug debt. In October or November of 2001, Lopez Correa, Avila-Beltran, Juan Diego Espinosa-Ramirez, and Mauricio Espinosa-Ramirez participated in negotiating and arranging a 9,000 kilogram shipment of cocaine from Colombia to the United States through Mexico. Lopez Correa intended to pay Juan Diego and Avila-Beltran for the debt involving the 100 kilogram shipment of cocaine in Chicago from the proceeds of the 9,000 kilogram shipment. Juan Diego and Avila-Beltran were responsible for storing the 9,000 kilogram shipment in Mexico, and were responsible for either selling the shipment in Mexico or making arrangements to transfer the shipment to the United States. Lopez Correa was arrested by DEA agents on December 4, 2001, and began cooperating with law enforcement officers thereafter. (United States Request for the Extradition of Sandra Avila-Beltran, Declaration of Juan Carlos Lopez Correa; Exhibit C.) (4) A sworn declaration, dated March 10, 2010, signed by Mauricio

Espinosa-Ramirez. In this document, Mauricio stated that, in 2000, he began working in a

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drug-trafficking organization, primarily based in Mexico, which was dedicated to the transportation of large shipments of cocaine from Colombia to the United States through Mexico. Mauricio met Avila-Beltran in 1999. Avila-Beltran assisted in the delivery of a 100 kilogram shipment of cocaine to Juan Carlos Lopez Correa in Chicago. Following the delivery of the 100 kilogram shipment, Lopez Correa owed a debt for the cocaine. (United States Request for the Extradition of Sandra Avila-Beltran, Declaration of Mauricio Espinosa-Ramirez; Exhibit D.) (5) A sworn declaration, dated March 26, 2010, signed by Juan Diego Espinosa

Ramirez. In this document, Juan Diego stated that, in 2000, Juan Diego worked for a drug-trafficking organization, primarily based in Mexico, that was dedicated to the transportation of large shipments of cocaine from Colombia to the United States through Mexico. Juan Diego met Avila-Beltran in 1999 and, thereafter, they entered into a romantic relationship. In 2001, Avila-Beltran participated in a cocaine shipment with Juan Carlos Lopez Correa. After the cocaine was delivered to the United States, Lopez Correa became indebted for the payment of the cocaine. On September 14, 2001, Juan Diego, Avila-Beltran, and Lopez Correa were parties to a telephone conversation regarding the money that Lopez Correa owed for the shipment of cocaine. During the telephone call, Juan Diego asked Lopez Correa to pay for the cocaine shipment. (United States Request for the Extradition of Sandra Avila-Beltran, Declaration of Juan Diego Espinosa-Ramirez; Exhibit E.) On June 7, 2012, following the review by a panel of judges, the Secretary of Foreign Affairs for the Republic of Mexico assented to the extradition of Ms. Avila-Beltran. (Extradition Order, Secretary of Foreign Affairs for the Republic of Mexico; Exhibit F.) In support for its extradition order, the Secretary made clear that the decision relied heavily on the statements provided by AUSA Morales, Agent Kepper, Lopez Correa, Mauricio

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Espinosa-Ramirez and Juan Diego Espinosa-Ramirez in determining that Sandra Avila Beltran is probably responsible for the crime of conspiracy to possess with intent to distribute cocaine in the United States of America. (Extradition Order, Secretary of Foreign Affairs for the Republic of Mexico; Exhibit K.) As will be discussed in detail, infra, evidence that establishes that much of the information contained in the declarations that were provided to the Republic of Mexico by the United States was false or materially misrepresented, and AUSA Morales and others were aware of the misrepresentations prior to submitting the declarations to the Mexican tribunal.3 LAW AND ARGUMENT I. Prosecutorial Misconduct It has long been recognized that the government attorney in a criminal prosecution is not an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. Berger v. United States, 2985 U.S. 78, 88 (1935); Cone v. Bell, 556 U.S. 449, 451 (2009); United States v. Agurs, 427 U.S. 97, 111 (1976). As a servant of the law, the prosecutors aim is twofold; that guilt shall not escape or innocence suffer. Id. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to The fact that AUSA Morales is not the attorney of record for the government in the immediate matter does not relieve the current AUSA of her responsibility to recognize and respond to misconduct. The American Bar Association Standards for Criminal Justice, Prosecution Function, dictate the steps that a prosecutor should follow when he or she becomes aware of the fact that another person associated with the prosecutors office is engaged in action, intends to act or refuses to act in a manner that this a violation of a legal obligation to the prosecutors office or a violation of law. ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d ed., 1993 American Bar Association, Standard 3-1.5.
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bring about a just one. Id. See e.g., ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d ed., 1993, American Bar Association, Standard 3-1.2(c) (The duty of the prosecutor is to seek justice, not merely to convict.). These [principles] are not mere words but a mandate and a charter. In re Stewart, 571 F.2d 958, 967 (5th Cir. 1978). Actions through which a prosecutor can unfairly prejudice an accused are numerous and varied. Traditionally established forms of misconduct include the knowing use of false testimony and evidence. Wiman v. Powell, 293 F.2d 605, 608 (5th Cir. 1961)(conviction obtained through the use of false evidence must fall), citing, Napue v. People of State of Illinois, 360 U.S. 264, 269 (1959); Davis v. Zant, 36 F.3d 1538, 1550 (11th Cir. 1994), citing, Giglio v. United States, 405 U.S. 150 (1972); and, Brown v. Wainwright, 785 F.2d 1457, 1464 (11th Cir. 1986). A Giglio violation, for example, occurs when undisclosed evidence reveals that the prosecution knowingly made false statements or introduced or allowed trial testimony that it knew or should have known was false. Smith v. Secretary, Department of Corrections, 572 F.3d 1327, 1333 (11th Cir. 2009), citing, Agurs, 427 U.S. at 103-104; Giglio v. United States, 405 U.S. at 153. The same violation occurs when the government although not soliciting false evidence, allows it to go uncorrected when it appears. Id., quoting, Giglio v. United States, 405 U.S. at 153. Prosecutorial misconduct also arises when the government knowingly makes material misrepresentations and misstatements of fact. United States v. Ash, 413 U.S. 300, 320 (1973)(misconduct includes the manipulation of witness statements); Brooks v. Kemp, 762 F.2d 1383, 1403 (11th Cir. 1985)(en banc)(prosecutors misstatement of fact, when placed before a jury or tribunal prior to deliberation, can approach a level equivalent to the knowing use of false evidence), judgment vacated on other grounds, Kemp v. Brooks, 478 U.S. 1016 (1986); Davis v.

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Zant, 36 F.3d at 1548 n.15 (Little time and no discussion is necessary to conclude that it is improper for a prosecutor to use misstatements and falsehoods. It is a fundamental tenant of the law that prosecuting attorneys may not make material misstatements of fact . . . .); United

States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985)(A prosecutor is . . . forbidden to make improper suggestions, insinuations, and assertions calculated to mislead . . . .); Smith v.

Secretary, Department of Corrections, 572 F.3d at 1333, citing, United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir. 1995) (Giglio violation does not merely apply to explicit false representations; it also applies to implicit representations.). Indeed, the unfair and misleading manipulation of evidence formed the basis for one of the Supreme Courts seminal misconduct decisions in Berger v. United States, where the prosecuting attorney overstepped the bounds of . . . propriety and fairness by: . . . misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous and improper manner. 295 U.S. at 84. Likewise, a prosecutor unfairly prejudices an accused and commits misconduct when he or she fails to supervise an investigation by prescribing procedures to be used by agents, or when he or she fails to screen evidence with a view to eliminating unreliable statements and identifications. United States v. Ash, 413 U.S. at 320, n.16. It has, in fact, been long held that [t]he means [a prosecutor] employs are as important as the ends he seeks to achieve. United States v. Beckett, 706 F.2d 519, 522 (5th Cir. 1983). Moreover, misconduct, and the concomitant violation of a defendants Constitutional right to Due Process, can occur irrespective of the good

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faith or bad faith of the prosecution. Cone v. Bell, 556 U.S. at 541, citing, Brady v. Maryland, 373 U.S. 83, 87 (1963). These principles are also heavily embedded in standards for the legal profession. ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d ed., American Bar Association, Standard 3-2.8 (prosecutor should not intentionally misrepresent matters of fact or law to the court); State Bar of Florida Rules of Professional Conduct, 7/1/12, Rule 4-3.3 (lawyer shall not knowingly make a false statement of material fact or law to a tribunal; fail to disclose a material fact to a tribunal; permit a witness to offer testimony or other evidence the lawyer knows to be false); State Bar of Florida Rules of Professional Conduct, 7/1/12, Rule 4-3.4(b) (lawyer shall not fabricate evidence, counsel or assist a witness to testify falsely).4 This Courts local rules further establish: Acts and omissions by an attorney admitted to practice before this Court, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct, Chapter 4 of the Rules Regulating the Florida Bar shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney/client relationship. (Local Rules for the U.S. District, S.D.Fla., Rules Governing Attorney Discipline, Rule 1.) Despite the vital and indispensable nature of these precepts, in this case, there exists evidence that, when the government submitted its request for extradition to the Republic of Mexico, it was aware of the fact that the sworn statements and declarations contained material misstatements and false information. Support for this assertion has been gathered from numerous sources:

This Courts local rules that govern attorney conduct make applicable the Rules of Professional Conduct of the Florida Bar and, to the extent that they are not inconsistent with the local and Florida rules, the American Bar Association Model Rules of Professional Conduct. (Local Rules for the U.S. District, S.D.Fla., Rules Governing Attorney Discipline, Rule 1.) 9

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(1)

Sources involving Juan Diego Espinosa-Ramirez: (a) Juan Diegos Sentencing Hearing:

In preparation for sentencing, the United States Probation Officer assigned to Juan Diegos case prepared a presentence investigation report that contained gross misstatements involving the degree of his involvement in the alleged conspiracy. These erroneous statements included the alleged fact that Juan Diego provided 100 kilograms of cocaine to Lopez Correa in Chicago and that Lopez Correa owed Juan Diego a resulting debt for the shipment. In order to correct this misconception, Juan Diego insisted that he be provided a polygraph examination. Following a consultation between Juan Diegos attorney, Maria Elena Perez, and AUSA Morales, the parties agreed to conduct the polygraph and that the results of the polygraph would be admissible for or against Juan Diego at sentencing. (Reporters Transcript (RT) 10/7/09 at 8 & 16, Exhibit G; DEA Report of Investigation 8/13/09, Exhibit H.) The polygraph examination, which was administered on August 13, 2009, revealed that Juan Diego did not participate in the negotiation or delivery of the 100 kilogram shipment of cocaine to Chicago and, instead, established that Juan Diego only became involved in the collection of the debt, well after the sale of the cocaine was consummated.5 (Id.) Juan Diego Espinosa-Ramirez was sentenced on October 7, 2009.6 His sentencing hearing was attended by AUSA Morales and DEA Agent Kepper. (RT10/7/09 at 2.) During
5

It is noteworthy that Juan Diegos polygraph examination occurred on August 13, 2009; while the declarations were dated March 10, 2010, through March 26, 2010, and were submitted to the Republic of Mexico on or about April 22, 2010. This means information that contradicted the declarations was unquestionably in the governments possession at least eight months before the declarations were signed and submitted. It is, again, noteworthy that the date of Juan Diegos sentencing hearing preceded the date of the declarations that were submitted to the Republic of Mexico by at least six months. 10
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the sentencing hearing, AUSA Morales made the following admissions regarding the limited role played by Juan Diego in the alleged conspiracy: AUSA Morales admitted that Juan Diego did not broker, coordinate, negotiate, organize, or supervise the shipment of 9,000 kilograms of cocaine. Although Juan Diego was aware of the shipment, his brother, Mauricio Espinosa-Ramirez, was responsible for coordinating the transfer. (RT 10/7/09 at 4-6.) AUSA Morales admitted that Juan Diegos role in the alleged conspiracy involved completing certain tasks for Mauricio, including collecting money that was due to Mauricio and counting kilograms of cocaine. Juan Diego was not responsible for organizing or coordinating any of the cocaine shipments. (Id. at 6-7.) AUSA Morales admitted that the government had no evidence to contradict the fact that Juan Diegos role was akin to that of a warehouse boy. Juan Diegos knowledge of the conspiracy was limited to counting large quantities of drugs as they came into the warehouse. He was not responsible for storing the cocaine in Mexico. (Id. at 7-10.) With regard to the 100 kilogram shipment of cocaine to Lopez Correa in Chicago, AUSA Morales did not contest the fact that Mauricio Espinosa-Ramirez asked Juan Diego to attempt to collect the debt. Mauricio made this request because Juan Diego was a long-time family friend of the debtor (Lopez Correa). AUSA Morales specifically stated that the government could not confirm that Juan Diego took any part in the actual sale or anything to do before the debt came up and the debt was being collected. (Id. at 7-9.) AUSA Morales made no attempt to contradict the court when it instructed the probation officer to modify the presentence investigation report to reflect that Mr. Espinosa Ramirez did not have any equity interest in the drugs that he helped count and partly collect, or that he was not the person who was responsible for storing the cocaine in Mexico. (Id. at 10.) AUSA Morales admitted that the government could not confirm that Juan Diego was second in command of the drug cartel, as erroneously reflected in the presentence investigation report. (Id. at 12.) AUSA Morales admitted that information received indicating that Juan Deigo played a leadership role in the alleged conspiracy proved to be unsubstantiated and unreliable. There was no evidence to establish that Juan Diego managed or supervised any other participant. (Id. at 14-15.) AUSA Morales agreed that Juan Diego deserved a two-level adjustment for the mitigating role he played in the alleged conspiracy. (Id. at 17-18.)

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These admissions by AUSA Morales regarding the limited role played by Juan Diego stand in stark contrast to statements contained in the declarations (that AUSA Morales compiled and submitted to the government of Mexico) and which paint Ms. Avila-Beltran and Juan Diego as major participants, who arranged, negotiated, organized, and controlled numerous shipments of cocaine. In fact, many of AUSA Morales admissions at Juan Diegos sentencing hearing are irreconcilable with the information submitted to the Mexican government. (b) The Involuntary Nature of Juan Diegos Declaration:

Support for the conclusion that the government knowingly included false statements and material misstatements of fact in the declarations has been provided by Juan Diego Espinosa-Ramirez, who is prepared to testify in this matter on behalf of the defense. According to Juan Diego, his declaration was not freely and voluntarily provided and he was denied the advice of counsel prior to signing the document. The government presented the declaration to Juan Diego while Juan Diego was in custody in Miami, Florida. Juan Diego was removed from his cell block and transported to a meeting room in the prison, where AUSA Morales and Agent Kepper were waiting. AUSA Morales presented the typed declaration to Juan Diego and instructed him to sign the document. Juan Diego attempted to read the declaration, disagreed with the contents, and asked to speak with his attorney, Ms. Perez. In response, AUSA Morales and DEA Kepper explained that they attempted to contact Attorney Perez, but that she had not responded to their calls.7 Instead,

AUSA Morales explained the document to Juan Diego, and AUSA Morales and Agent Kepper
7

Attorney Perez is prepared to testify that no one from the United States Attorneys Office or from the DEA made an effort to contact her. In contrast, Ms. Perez was aware of the fact that AUSA Morales wanted Juan Diego to sign a declaration and, during communications with AUSA Morales, strongly insisted that she be present during any communications with Juan Diego. 12

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repeatedly assured Juan Diego that any questionable statements contained in the declaration were no big deal.8 Under pressure from the government, and fearing that he would face

consequences for failing to assist the government, Juan Diego finally signed. (c) Information Provided During Juan Diegos Free Talk:

On April 7, 2009, and on April 15, 2009,9 Juan Diego Espinosa-Ramirez was interviewed by AUSA Morales, Agent Kepper, and IRS Agent Marlene Exposito. During this interview, Juan Diego made it clear that his role in the narcotic business only involved the collection and transportation of proceeds on behalf of, and at the direction of, his brother, Mauricio Espinosa-Ramirez. (DEA Report of Investigation 4/10/09; Exhibit I.) Juan Diego described his assistance to his brother as sporadic and explained that he collected a small commission of $1,000 to $2,000 for his efforts. (Id.) Juan Diego also assisted by counting kilograms of cocaine. When asked about his involvement with the 100 kilogram shipment of cocaine that was sent to Chicago, Juan Diego explained that, as a result of problems with the shipment, the recipient incurred a debt to Mauricio Espinosa-Ramirez; a debt that Juan Diego estimated to be $700,000. (Id.) Juan Diego became involved in the collection of the debt at Mauricios request. (Id.) Most tellingly, the DEA report establishes that Juan Diego exonerated Sandra Avila

See ABA Standards for Criminal Justice: Prosecution and Defense Function, 3d ed., 1993 American Bar Association, Standard 3-3.1(d) (A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. A prosecutor should not advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give.); State Bar of Florida Rules of Professional Conduct, 7/1/12, Rule 4-4.2 (. . . a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.)
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Events that precede the date of the extradition declarations by nearly one year. 13

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Beltran of involvement in the alleged conspiracy. When asked about AVILAs involvement in narcotics trafficking, Juan ESPINOSA did not provide any pertinent information and further stated that he did not know of AVILAs involvement in narcotics trafficking. (Id.) Juan Diego further stated that as far as he knew, AVILA was a wealthy female who earned income by loaning money to others for construction projects, etc. (Id.) When specifically asked about Avila-Beltrans involvement in the 100 kilogram shipment of cocaine that was sent to Chicago, Juan Diego stated that he had no knowledge of AVILAs involvement in this shipment either. (Id.) When asked why Avila became involved in the debt that Lopez Correa owed for the 100 kilogram shipment of cocaine to Chicago, Juan Diego explained that Lopez Correa owed Avila-Beltran a separate debt which totaled approximately $10,000. (Id.) Juan Diego further explained that, when he discussed the drug-related debt with Lopez Correa, he included the separate debt owned to Avila-Beltran in an effort to shame Lopez Correa into paying the total debt. (Id.) When the admissions made by AUSA Morales during Juan Diego Espinosa-Ramirezs sentencing hearing, combined with the results of Juan Diegos polygraph examination, combined with the statements made by Juan Diego during his free talk, combined with the circumstances under which Juan Diegos declaration was signed, are juxtaposed against the statements contained in the declarations that were submitted to the Republic of Mexico, it becomes evident that the declarations are riddled with falsehoods and misstatements. There appears to be no factual support for statements contained in the declarations which asserted that Juan Diego and Ms. Avila-Beltran provided loads of cocaine to Lopez Correa and/or others; maintained a level of ownership in the cocaine; were responsible for the negotiating, arranging or directing the transfer of loads of cocaine from Colombia; or participated in the negotiation and delivery of 100

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kilograms of cocaine to Lopez-Correa in Chicago. (2) Admissions by AUSA Cynthia Wood:

On December 19, 2012, AUSA Wood responded by letter to discovery requests that were submitted by undersigned counsel. As detailed below, information contained in Ms. Woods letter further establishes that false and misleading statements were contained in the United States request for Ms. Avila-Beltrans extradition.10 (Letter from AUSA Wood, 12/19/12; Exhibit J.) (a) AUSA Wood admitted that Juan Diego Espinosa-Ramirez received an

adjustment for the minimal role he played in the offense; the adjustment was based on statements made by Mauricio Espinosa-Ramirez and by the lack of supporting documentation by Mexican authorities. (Id.) In order to receive a downward adjustment for the role Juan Diego allegedly played in the offense, however, it was not possible for him, or Ms. Avila-Beltran, to have participated in the conspiracy at the level alleged in the declarations that were provided to the Republic of Mexico. (b) AUSA Woods letter described an interview with Mauricio

Espinosa-Ramirez that was conducted by Mexican prosecutors and an attorney from the United States Office of International Affairs in December of 2011. During that interview, Mauricio signed a sworn statement that exculpated Ms. Avila-Beltran. (Id.) This essential evidence which has been requested by the defense, but is yet to be disclosed establishes that statements

Based on the information contained in Ms. Woods letter, the defense has made numerous requests for discovery from the government. At this writing, those requests have gone unanswered despite the fact that the requests involve evidence to which the defense is undoubtedly entitled. Under these circumstances, the defense cannot fully develop the arguments contained in this motion and, again, requests that this Court order the government to disclose this essential evidence. 15

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made by Mauricio Espinosa-Ramirez in his declaration to the government of Mexico, implicating Ms. Avila-Beltran in the alleged cocaine trafficking, were false. (c) AUSA Wood admitted that Lopez Correa perjured himself before the

Federal Grand Jury by referring to himself as Pedro Osorio. (Id.) This evidence establishes that Lopez Correa was not forthcoming with the government and calls into question all of the statements he made in his declaration to the Republic of Mexico. (d) AUSA Wood disclosed a DEA report detailing an interview with Juan

Diego Espinosa-Ramirez in which Juan Diego exculpated Ms. Avila-Beltran. (Id.) As explained, supra, at 13-14, this information directly impugns the statements Juan Diego made in his declaration provided to the government of Mexico. (e) AUSA Woods letter described a number of incarcerated individuals who

have been interviewed in connection with this matter, some of whom did not know Ms. Avila-Beltran and never dealt with her. (Id.) Ms. Woods letter also described an government witness/informant identified as E.R.O., who stated he had seen Ms. Avila-Beltran three or four times, and that she was not involved in the drug business but was involved in selling jewelry to narcotics traffickers. (Id.) Again, this evidence calls into question the statements that were included in the declarations that were submitted to the Republic of Mexico. In light of the admissions contained in AUSA Woods letter which the defense anticipates will be further developed with the disclosure of the evidence that underpins the admissions there is good cause to believe that the sworn declarations (which were written and developed by representatives of the United States government, and signed under pressure by affiants whose veracity was highly questionable) contain false information, misstatements of fact, and material omissions that strongly influenced the outcome of the extradition decision. In

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addition, the evidence clearly established that the United States government was well aware of these defects prior to submitting the declarations to the Republic of Mexico. Furthermore, there exists firm evidence to establish that the Mexican tribunal that reviewed the United States request for extradition heavily relied upon the false information contained in the declarations. The extradition order issued by the Republic of Mexico establishes that the documents submitted by the United States were analyzed jointly and related to one another to arrive at the conclusion that Sandra Avila-Beltran is probably responsible for the crime of conspiracy to possess with intent to distribute cocaine in the United States of America. (Extradition Order, Secretary of Foreign Affairs for the Republic of Mexico, at 105-106; Exhibit K,) In so finding, the Mexican tribunal and the Secretary of Foreign Affairs specifically made reference to the seizure of $66,275.00 in profits from the sale of 100 kilograms of cocaine, provided by Sandra Avila-Beltran, which led to the debt that Lopez Correa owed to Avila Beltran and Juan Diego. (Id. at 107). The Mexican authorities made reference to their reliance on the sworn statements, and supporting documents, provided by AUSA Eric Morales and DEA Agent Stephen Kepper, and repeated many of the sworn statements, verbatim, in the order. (Id. at 108-110.) Likewise, the Mexican authorities made reference to the sworn declarations of Juan Carlos Lopez Correa, Juan Diego Espinosa, and Mauricio Espinosa, and repeated many of the statements contained in the declarations, verbatim, in the order. (Id. at 110-112.) Thus, in the circumstances of this case, there exists clear and compelling evidence which establishes that the declarations of Juan Carlos Lopez Correa, Juan Diego Espinosa-Ramirez, and Mauricio Espinosa-Ramirez; as well as the sworn statements of AUSA Eric Morales and DEA Agent Stephen Kepper contained false and materially misleading statements. And there exists

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tangible evidence of the fact that the Mexican Secretary of Foreign Affairs relied heavily on those false and materially misleading statements in authorizing the extradition of Sandra Avila-Beltran. REQUEST FOR REMEDY Although the primary safeguard against abuses involving prosecutorial misconduct is the ethical responsibility of the prosecutor, who, as so often has been said, may strike hard blows but not foul ones, . . . [i]f that safeguard fails, review remains available under due process standards. United States v. Ash, 413 U.S. at 300, citing, Giglio v. United States, 405 U.S. 150 (1972); Mooney v. Holohan, 294 U.S. 103 (1935); Miller v. Pate, 386 U.S. 1 (1967); Chambers v. Mississippi, 410 U.S. 284 (1973). In addition to the reversal of a criminal matter by an appellate court, recalcitrant prosecutors can be subjected to disciplinary action. United States v. Beckett, 706 F.2d at 522 (warning, To appear as counsel in a federal court is a privilege which may be forfeited, and directing the district court to hold a hearing on the question of whether the prosecutor should be subjected to disciplinary action). See e.g., Brooks v. Kemp, 762 F.2d at 1416, n.51 (a court with supervisory powers may well reverse convictions or pursue other sanctions to eliminate improper conduct). Improper conduct by the government warrants relief when it renders a proceeding fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). In determining whether prosecutorial misconduct is actionable, courts assess whether the conduct was so egregious as to create a reasonable probability that the outcome was changed. Id. at 645; see

e.g., Davis v. Zant, 36 F.3d 1538, 1546 n.11 (11th Cir. 1994)(applying Brooks, which dealt exclusively with prosecutorial argument, to other stages of criminal proceedings). A reasonable probability is a probability sufficient to undermine confidence in the outcome.

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Strickland v. Washington, 466 U.S. 668, 694 (1984). In making this assessment, courts evaluate: (1) the degree to which the challenged remarks have a tendency to mislead and to prejudice the accused; (2) whether they are isolated or extensive; (3) whether they were deliberately or accidentally placed; and (4) the strength of the competent proof. Davis v. Zant, 36 F.3d at 1546 & 1549. Where the governments violation involves knowingly made false statements or the introduction of evidence that the government knew or should have known was false, the defendant is entitled to relief if there is any reasonable likelihood that the false evidence could have affected the outcome of the proceeding. Smith v. Secretary, Department of Corrections, 572 F.3d at 1333, citing, United States v. Agurs, 427 U.S. at 103. [The could have] standard favors relief. It is shaped by the realization that deliberate deception of a court . . . by the presentation of false evidence is incompatible with rudimentary demands of justice. Id., quoting, Giglio v. United States, 405 U.S. at 153. To prevail on a Giglio claim, a petitioner must establish that (1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material. Id., quoting, Ford v. Hall, 546 F.3d 1326, 1331-1332 (11th Cir. 2008). In the case sub judice, there exists a reasonable probability that the Republic of Mexico would have come to a different conclusion regarding Ms. Avila-Beltrans extradition but for the fact that the United States government knowingly and substantially misrepresented the evidence against Ms. Avila-Beltran. Under these circumstances, fundamental fairness was denied. As this Circuit has long held: A United States district attorney carries a double burden. He owes an obligation to the government, just as any attorney owes an obligation to his client, to conduct his case zealously. But he must remember also that he is the representative of a government dedicated to fairness and equal justice to all and, in this respect, he owes a heavy 19

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obligation to the accused. Such representation imposes an overriding obligation of fairness so important that Anglo-American criminal law rests on the foundation: better the guilty escape than the innocent suffer. Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1957). In light of these fundamental precepts of the American justice system, the misconduct in which AUSA Morales engaged is all the more egregious because, in an extradition proceeding, the willful presentation of false evidence involves the tribunal of a foreign nation. In the context of an extradition proceeding, prosecutorial misconduct involving the presentation of false or misleading evidence could be viewed as an effort to disregard or circumvent the interests that are served by international treaties. It is beyond question that it is in the interest of both the United States and the Republic of Mexico to engage in peaceful extradition proceedings. United States v. Alvarez-Machain, 504 U.S. 655, 668 (1992)(In a broad sense, most international agreements have the common purpose of safeguarding the sovereignty of signatory nations, in that they seek to further peaceful relations between nations.). If the government of Mexico concludes that the United States extradition requests do not contain fair and accurate information, our ability to effectively secure extradition will undoubtedly be damaged. In consideration of the level of misconduct that was exhibited by the government in this case, dismissal of the immediate indictment is warranted.

RESPECTFULLY SUBMITTED, this 11th day of January, 2013.

/s/ Stephen G. Ralls STEPHEN G. RALLS Attorneys for Sandra Avila-Beltran LAW OFFICES OF STEPHEN G. RALLS, P.C. 273 South Scott Avenue Tucson, Arizona 85701 20

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(520) 884-1234 Facsimile: (520) 884-9687 Email: stephen.ralls@azbar.org Arizona Bar Number: 007772

/s/ Howard Schumacher HOWARD J. SCHUMACHER Attorneys for Sandra Avila-Beltran LAW OFFICES OF HOWARD J. SCHUMACHER, P.A. One East Broward Boulevard, Suite 700 Wells Fargo Tower Fort Lauderdale, Florida 33301 Telephone: (954) 356-0477 Email: papaschuz_2000@yahoo.com Florida Bar Number: 776335

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 11th day of January 2013, via ECF/CM to all parties hereto. HOWARD J. SCHUMACHER, P. A. Counsel for Defendant One East Broward Blvd, Suite 700 Wachovia Tower Fort Lauderdale, Florida 33301 Telephone: (954) 356-0477 Papaschuz_2000@yahoo.com By: /s/Howard J. Schumacher____ Howard J. Schumacher, Esq. FL. Bar No: 776335

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