ABA Litigation Magazine
Vol. 28, No. 2
Winter 2002
by Myles H. Malman[1]
In August 1989, with 14 years of state and federal prosecution experience under my belt, I took over as Chief Assistant U.S. Attorney in the Southern District of Florida. Affectionately known as "the other Southern District," an oblique reference to New York City, our Southern District stretched from the Florida Keys in the south to Lake Okeechobee in the north, and from the Atlantic Ocean to the Gulf of Mexico. With more than 200 federal prosecutors, it handled more cases than the Southern and Eastern Districts of New York and the Central District of California (Los Angeles) combined. I knew that the task was daunting, but I had no idea how challenging it actually would prove to be.
Being chief assistant to controversial U.S. Attorney Dexter Lehtinen, a brilliant lawyer and combat-wounded Vietnam veteran, called for a mix of skill and expertise in operations, strategy, and tactics. There were myriad bureaucratic Department of Justice (DOJ) procedures to follow, employee issues, and day-to-day problems in managing the office, with its complex mix of egos, personalities, and strife. South Florida, after all, was ground zero for massive drug importation and money-laundering conspiracies, complex boiler room frauds, and an amalgam of smuggling and violence uniquely situated to a district that sits at the doorstep of South and Central America with their notorious purveyors of illicit narcotics.
Lehtinen knew that, even though the chief assistant's role is mainly managerial, I would have to see the faces of jurors at least occasionally from the well of a courtroom. Having spent more than 10 years prosecuting murder and violent crimes in Bob Morgenthau's Manhattan District Attorney's office, and four years in the Southern District of Florida prosecuting federal crimes from complex narcotics conspiracy to white-collar fraud, I wouldn't be content behind a desk.
Lehtinen said, "If you feel that you have to try a case, just pick one from the office and go ahead." In conducting my search of what might pique my interest, I came across two cases lying dormant in the cavernous files of our office. One was an indictment of the entire hierarchy and leadership of the murderous Colombian Medellin cocaine cartel for proliferating its drug trafficking in the United States. Having had experience with drug cases in Miami, I knew that the likes of cocaine lords Pablo Escobar, Jorge Ochoa, Gustavo Gaviria, and their cohorts would never end up in a Miami courtroom.
The other indictment had been returned in February 1988 against General Manuel Antonio Noriega, the Panamanian dictator and strongman. The indictment also named two heads of the Medellin Cartel, Pablo Escobar and Gustavo Gaviria, and a collection of middle and lower echelon Colombians and Panamanians. Every once in a while a good prosecutor, like a good cop, gets a hunch about a case that proves to be right. When I picked up the yellowing file jacket stamped "U.S. v. General Manuel Antonio Noriega, 88-CR-79-Hoeveler" (all Southern District of Florida cases bear the last name of the assigned trial judge as an identifier), I had the feeling that if any of these high-profile fugitives were to be returned to Miami to stand trial, the smart money would be on General Noriega.
At the time, the case was assigned to Pat Sullivan, viewed by his peers as perhaps the best trial prosecutor in South Florida. On August 15, 1989, I made the decision to take on the case, working with him and our young colleague with a Tennessee drawl, Guy Lewis (later the U.S. Attorney for the Southern District of Florida). That decision changed my life.
At the time, all I knew about Panama was that a canal ran through its tiny isthmus. Of course, like every other New York City junior high school student of my era, I had learned the canal was constructed in the early 20th century at the cost of many lives and was completed only due to American resolve and the Teddy Roosevelt "bully" attitude.
I knew nothing about Panamanian politics or anything else about that nation. I knew that President Jimmy Carter had done something with the Panama Canal in the late '70s. Naturally, I read Seymour Hirsch's 1986 revelations in the New York Times that Manuel Noriega, the general in charge of the Panamanian military, was linked to drug traffickers. The local Miami and national controversy surrounding the general's indictment in February 1988 was big news. The case was laced with intrigue.
Before the Noriega case would conclude, I would immerse myself in Panamanian history and politics, visit the small nation at least 14 times, and gain both anecdotal and historical insights into its people, culture, and politics. I would be in Panama when American tanks rumbled down its streets, and I would see bullet holes in the walls of my hotel and watch American military police patrol the hotel lobby. I would confer with General Maxwell D. Thurman, the four-star Army commander of Southcom. I would visit with ambassadors, track Noriega's millions around the world to major European capitals, and be catapulted into political and legal controversies at the highest levels of government.
Finally, for three days in April 1992, at the conclusion of six months of trial, I would stand before a Miami jury of nine women and three men-eight African Americans, two Hispanics, and two non-Latin whites-and deliver the closing argument of my life. When it was all over, that jury would convict Noriega of charges contained in an indictment that was so weak and flawed at its core that, had Noriega requested an immediate trial after landing at Homestead Air Force Base on a U.S. Air Force C130 Hercules transport plane on January 4, 1990, he probably would have been acquitted.
Had it not been for the efforts of all involved, including the logistical support of some of the country's finest legal minds versed in criminal law, and an unprecedented law enforcement effort to investigate and then reinvestigate the case, the Noriega trial would have been the greatest embarrassment suffered by the DOJ in any American courtroom.
Unlike in the O.J. Simpson case, the prosecutors who lost the Noriega trial would not be the darlings of afternoon and late-night TV circles, host their own shows, and get fat advances to tell their stories. Rather, we would be vilified and denounced forever as bunglers, fools, and incompetents. Despite the usual tipping of the scale in favor of the government in federal criminal trials, the Noriega case would be no turkey shoot. Although he sat in a Miami prison, the general retained influence and support in his native Panama, as well as in Miami. He was a highly skilled intelligence and counterintelligence officer and was Machiavellian enough to be able to undermine the government's case at its very foundation.
In 1989 there were already tensions between the prosecutor who brought the initial indictment, Richard Gregorie, a legendary career South Florida prosecutor, and the then-leadership of the U.S. Attorney's office. The night before George H.W. Bush's election to the presidency in 1988, Gregorie railed on ABC's Nightline against him, ridiculing Bush's efforts in the war against drugs. He charged that Bush was not serious about waging that war. At the time, a petition had been circulating in the U.S. Attorney's office, calling for Gregorie to be named the next U.S. Attorney. The office was in turmoil.
Instead of Gregorie, an outsider, Lehtinen, the Vietnam veteran, was selected as U.S. Attorney, the chief federal cop. Lehtinen, a politician and former Florida state senator, was married to the first Cuban-American congresswoman in history, Ileana Ros-Lehtinen. After suffering combat wounds that would have turned most people to a lifetime of chronic depression, Lehtinen had graduated number one in his class from Stanford Law School, served as a federal prosecutor in Los Angeles for a few years, and also earned master's degrees in political science and economics. He is nothing short of brilliant.
Aggressive and hard-charging, Lehtinen was respected, feared, and distrusted by the office staff. After Lehtinen took charge, Gregorie quickly resigned. Following a brief stint in private practice, he took a position as a high-level corruption prosecutor in the state attorney's office in Miami.
Gregorie's actions in securing the indictment against General Noriega would later return him to the limelight, sparking inquiry into the filing of an indictment that had not been crafted to withstand the test of a trial. To understand the strategy and tactics surrounding the Noriega case is to understand and know the indictment against Noriega.
The Indictment
An indictment is a federal prosecutor's road map or guide to his proof. When a jury retires to deliberate on the government's case, it traditionally takes a copy of the indictment and the court's instructions, using them to decide its verdict by matching the indictment against the various components or elements of the crime charged. The indictment is essential to this exercise. As in any other prosecution, this canard applied to the Noriega case. In order to prepare and prosecute the case successfully, we would use the indictment as our framework. We would examine its weaknesses. We would think like architects, engineers, and artisans working on a building and renovating it from within. We would call Gregorie's original witnesses whenever possible; otherwise, we would find substitute witnesses or proofs or search for documentary or physical evidence to buttress the government's case.
The Conspirators
The public saga began on Thursday, February 4, 1988, when 23 citizens of South Florida, brought together by juror summonses, finished their work as a grand jury at Gregorie's direction. That afternoon, they walked as a group from the new wing of the Miami federal courthouse to the old coral rock structure built in the Depression era as a combined post office and courthouse, and paraded quietly into Federal Magistrate Judge Peter Palermo's courtroom.
There, the foreman solemnly faced the good-natured magistrate judge and formally handed over the 30-page indictment including 12 counts of racketeering or RICO, drug conspiracy, and substantive narcotic offenses. The charges detailed a far-flung conspiracy dating from the fall of 1981 until March 21, 1986. That quiet procedural moment on the afternoon of a spectacularly gorgeous tropical day in Miami would profoundly affect legal history.
The Noriega racketeering enterprise was defined in the indictment as a group of individuals "associated in fact which utilized the official positions of the defendant, Manuel Antonio Noriega, and the Republic of Panama to facilitate the manufacturing and transportation of large quantities of cocaine destined for the United States and to launder narcotics proceeds." The enterprise led by Noriega protected and facilitated cocaine shipping through Panama, cocaine manufacturing in Panama and Colombia, and narcotic trafficking and money laundering in Panama. Also, Noriega was charged with negotiating disputes between the cocaine cartel and Fidel Castro.
Noriega and his codefendants were all brought together by Gregorie as coconspirators. The sordid cast of characters included Escobar and Gaviria; Escobar's pilot, David Rodrigo Ortiz Hemedia; and Amet Paredes, the son of the former head of the Panamanian military, General Ruben Dario Paredes.
Rounding out the indictees were Ricardo Bilonick, a Panamanian businessman and lawyer; William Saldarriaga, a cousin of the dreaded Ochoa family, a separate branch of the cocaine cartel; and Panamanian Defense Forces (PDF) Lieutenant Colonel Luis Del Cid, the commander in charge of the northern or fifth zone of the Panamanian army headquartered in Chiriqui province. Del Cid was a close confidant of Noriega. Eduardo Pardo, another Chiriqui native and a one-time pilot of Noriega's private Lear jet as well as a commercial airline pilot in Panama, was also included.
We knew that the Noriega indictment had been ramrodded through the DOJ in Washington, D.C., by our office. When Gregorie and his fellow Florida prosecutors arrived to present the indictment to their superiors at the DOJ in Washington, they were filmed by a national TV show, exiting their cab and entering the DOJ headquarters with the indictment and prosecution memorandum in their briefcases. Later, network TV would show portions of the prosecution memorandum.
Thus, before the indictment was ever returned by that Miami grand jury on February 4, 1988, the national media was at work, and Noriega was in play. The full-court press was on. Any failure by the DOJ to approve the historic and extraordinary indictment against Noriega at the executive branch level would signal to the country that President Reagan and Attorney General Edwin Meese did not believe their own rhetoric in the war against drugs.
Although the minutes of the National Security Council and the presidential conversations concerning the Noriega case are classified and sealed, they are reported to have been quite heated. The Miami prosecutors had by their actions effectively checkmated any opposition to the indictment by the president or the Attorney General.
Unlike today, in 1988 there were no checks or prohibitions against indicting highly placed officials of foreign governments. Consequently, no vetting took place at the DOJ in Washington to review the case. What had happened, in Washington bureaucratic-speak, is that a renegade Miami office with an agenda had indicted Noriega and sidestepped the approval process, presenting its work to Washington as a fait accompli. The indictment could not be stopped.
By playing it through in public, the Miami prosecutors created an atmosphere that the D.C. politicians were afraid to dispel. With little modification from Washington, the indictment drafted by the finest legal minds in the U.S. Attorney's office in Miami would stand. General Manuel Antonio Noriega would be an indicted federal defendant. At the same time that the Miami indictment was approved in Washington, a second indictment was returned in the Middle District of Florida charging the general with involvement in a large-scale marijuana importation. Headquartered in Tampa, the Middle District was headed by U.S. Attorney Bob "Mad Dog" Merkle, whose aggressive style earned that sobriquet.
We knew the Noriega
indictment had been
ramrodded through
the DOJ by our office.
Merkle was another wild card tossed in the deck. The DOJ was not happy. Not only was there conflict between the Florida districts and Washington, but suspicion and refusal to share had divided the Miami and Tampa federal offices. Instead of joining forces and indicting Noriega in one district to strengthen their cases, the districts were divided against each other. Noriega thus found himself simultaneously charged in the Southern and Middle Districts of Florida. Both indictments were announced at the same time to allay concerns in both districts and prevent any confusion and one-upmanship. After all, no one expected Noriega to answer the charges. There was no extradition treaty between the United States and Panama; the safe bet was that Noriega would never be extradited to the United States.
One of the significant problems we faced in trying our case was the language in the indictment identifying the RICO enterprise. The South Florida indictment described the enterprise as a group of individuals "associated in fact which utilized the official positions of the defendant, Manuel Antonio Noriega. ..." Earlier drafts of the indictment had sought to name as the racketeering enterprise Noriega and the PDF, Panama's military.
In September 1983, Noriega had declared himself the first four-star general in Panamanian national guard history and consolidated all police and military authority in the newly created PDF. By consolidating his power, Noriega could at last use his position as the leader of the newly formed PDF to further the drug-trafficking activities of his enterprise. In short, the entire hierarchy of the PDF knew (or had to have known) what Noriega was doing and shared the profits of his activities.
Among Noriega's cronies were co-indictee Colonel Luis Del Cid; Colonel Julian Melo, who delivered a multimillion-dollar payoff from the cartel to Noriega; Nivaldo Madrinan and Lucinio Miranda, heads of the Panamanian equivalents of the FBI and DEA, protected under the umbrella of the PDF; as well as a multitude of other high-ranking Panamanian officers.
The problem with the Noriega case for the trial lawyer, strategist, and tactician was that this was a case where you knew going in that the indictment never should have been brought. With the indictment already in place, the government's proofs had to be reworked totally. Realistically, it was a case that had to be won-some would say at all costs. We disagreed. It had to be won the right way, abiding by our Brady obligations and strictly adhering to the wisdom that tells us a prosecutor's job is to do justice, not just to get the conviction. Berger v. United States, 295 U.S. 78, 99 (1935). The Attorney General was committed to providing any resource necessary to ensure the courtroom victory. To us line prosecutors, it was simply another Miami-style cocaine case with a defendant of enormously high profile and a defense armed with unknown evidence that could be sprung on us at any moment. The defense would say the Bush administration had gone haywire, attacking one of its strongest allies in the Southern Hemisphere. The road to trial was going to be long and difficult.
The Motion to Dismiss
Shortly after Noriega was indicted, he formed a strong, experienced, and powerful defense team. Leading the team was Neal Sonnett, a former federal prosecutor and well-respected president of the National Association of Criminal Defense Lawyers. Assisting Sonnett were Frank Rubino and Ray Takiff, two well-known criminal defense lawyers in Miami who specialized in representing Latin Americans accused in massive cocaine conspiracies and importations.
Takiff and Rubino were "A" players and had amassed considerable success from plying their crafts in Miami courtrooms. Sonnett, however, brought a more intellectual and scholarly approach to the defense team. The only noticeable negative was the constant bubbling and turmoil created by the egos of the trial lawyers. After the indictment, the defense team struck quickly and furiously. They moved to dismiss the indictment on four principal grounds: Noriega was a head of state and as such enjoyed immunity from personal prosecution; whatever actions Noriega had undertaken in his official capacity in Panama were likewise protected by the act of state doctrine; Noriega was further cloaked with the doctrine of sovereign immunity; and the alleged criminal conduct took place outside the United States, thus Noriega could not be held responsible for it in an American court.
Gregorie and his colleagues could not believe that Judge Hoeveler would entertain a motion to dismiss an indictment when the accused was not only a fugitive but also flouted the United States daily, standing on podiums in Panama in a native straw hat and waving machetes at the administration heads in Washington.
The initial skirmishes that surrounded the motion to dismiss were some of the most important procedural developments in the case. To Gregorie's amazement, Judge Hoeveler considered the defense's motion despite the government's protestations. Needless to say, Judge Hoeveler's order had the potential for a doubly disastrous effect on the prosecution: Should the court dismiss the indictment, critics of the case would have a field day, and enemies of the administration would proclaim that the indictment had been purely political.
A dismissal of the indictment would also serve to strengthen the argument that the government indicted Noriega as a hollow gesture in the war on drugs, never believing he would set foot in an American courtroom. The Miami prosecutors would be hung out to dry.
In fact, the Miami prosecutors had little reason to believe that the indictment would be tested and subjected to judicial scrutiny because it was improbable that Noriega would be present in court to attack it. After all, there was no extradition treaty between the United States and Panama. In agreeing to take jurisdiction of the case to decide the motion to dismiss, Judge Hoeveler sent shock waves throughout the government. The government argued that Noriega was not immune from prosecution. The charges did not impugn "any Panamanian government policy, nor were the charged activities done on behalf, or for the benefit of, any Panamanian citizen except Noriega and his co-conspirators." Jurisdiction in the United States was proper because "the ultimate damage contemplated ... was to the United States of America." The hearing on the motion dragged on for the better part of the day in Judge Hoeveler's windowless ninth floor courtroom. At the end, he reserved decision.
Shortly thereafter, in a terse one-page order, the court denied the defense's motion to dismiss. Simply stated, Judge Hoeveler ruled that Noriega was head of Panama's military, not of its government. The court further ruled that Panama had a structure of elected officials and a president who served a definite term. Noriega was not in that category; thus, he could be charged. Clearly, dealing in narcotics, protecting drug money and cartel operations in Panama, and shipping cocaine from Colombia through Panama to the United States and elsewhere were not acts of state, immune under international law. Finally Judge Hoeveler ruled that the government could charge conduct committed outside the United States that affected this country. If returned to American soil, Noriega could be tried in Miami.
As 1988 ended and 1989 began, the Noriega indictment was fading from the memories of prosecutors, federal agents, and politicians. As political tensions heated up in Panama during the presidential elections of 1988, horrified CNN viewers saw Noriega's thugs bloody opposition candidates. I will always remember the vivid images of President-elect Guillermo Endara and Vice President-elect Billy Ford running through a gauntlet of clubs and fists in their blood-drenched guayabera shirts in the chaotic streets of Panama City. Two aborted coup attempts followed, one in 1988 and the other in the early fall of 1989. Noriega crushed both with brutal efficiency.
After the indictment, perhaps in retaliation against South Florida for indicting Noriega in the first place, a conscious decision was made in Washington to keep the Miami prosecutors uninformed about the case and its developments. Secret negotiations were conducted between high-level Justice and State Department officials and Noriega's lawyers, to arrange Noriega's graceful exit from Panama to a third country and the dismissal of all charges. In the end, however, Noriega rejected the proposal. Perhaps he was afraid that he would be re-indicted and then extradited from a third country. Possibly it was his inherent distrust of the "gringos." I believe his ego and self-image as a great Panamanian nationalist in the style of his mentor, Omar Torrijos, would have prevented Noriega from ever acknowledging any validity to the indictment, and fleeing his native land as a result of it was unconscionable. In any event, the Florida prosecutors were never told the details of these negotiations and took no part in them.
In 1989, when plans were orchestrated in Washington to invade Panama, capture General Noriega, and bring him back to stand trial, no one ever bothered to tell Dexter Lehtinen or me. Instead, on December 15, 1989, four days before the invasion, Miami and Tampa prosecutors were summoned to a high-level meeting in Washington and asked: If Noriega were brought to the United States to face trial, which district would try the case, Miami or Tampa? Making the presentation for the Southern District of Florida, I argued that our indictment was a RICO conspiracy involving thousand-kilo amounts of cocaine, money laundering, and trans-shipment of drugs through Panama, whereas the Tampa indictment involved one lone, albeit large, marijuana transaction. Further, I urged that if Noriega were to come to the United States, South Florida would be able to reconstitute the indictment because I was confident that knowledgeable, viable informants would come out of the woodwork, looking to make deals. New evidence would be unearthed. The decision was made to give the nod to the Southern District of Florida.
That Friday, we returned from the chill of the Capitol to the sunny warmth of Miami. The following Wednesday, the phone rang at 2 a.m.,
Secret negotiations were
conducted between
high-level Justice and
State Department officials
and Noriega's lawyers.
and I was awakened by an aide. I was told to turn on CNN. To my utter shock and amazement, American soldiers were conducting a full-blown air and land invasion of Panama. Our president was announcing that one of the stated purposes of the invasion was the capture and arrest of Noriega and his return to the United States to stand trial. Amazingly, we had not been told of the invasion in advance. If Washington was not sharing such significant information as this with us, I cringed at the thought of the ultimate effect such an attitude would have on the tactics and strategies of trying such an important federal drug case in Miami.
Following the invasion, Panama was flooded with American soldiers and federal agents. The indictees either were captured or quickly surrendered to American forces. As each was captured, he was immediately transported to Homestead Air Force Base and then to Judge Hoeveler's courtroom for arraignment. First Del Cid, and then Pardo, arrived. A few other lesser defendants were arrested shortly thereafter.
The hunt for the general was on. He was finally cornered and fled to the sanctuary of the papal consulate in Panama City. There, the well-publicized vigil by American troops was punctuated by the round-the-clock blaring of rock music. On January 3, 1990, the end was near. Noriega surrendered to Lieutenant General Mark Cisneros, the deputy commander of Southcom, the American military component that led the invasion. Whisked away to a waiting Air Force transport plane, the general was quickly examined by a doctor and given an Air Force flight suit sans insignia for his trip to Miami. Accompanied by agents in raid jackets emblazoned with "DEA" in yellow letters against a navy blue background, the dazed and confused deposed Panamanian general sat quietly in the turbine propeller-driven Air Force cargo plane as it touched down at Homestead Air Force Base at 2:45 am. on Thursday, January 4, 1990. Outside the base, a throng of demonstrators gathered, clanging metal pots and pans, waiting to bombard Noriega personally with curses and insults.
In preparation for such confusion and chaos, government officials had arranged to hustle Noriega secretly to a Coast Guard Falcon jet parked across the tarmac from the Air Force Hercules and fly him to the Miami airport. There he would be met by a phalanx of deputy U.S. marshals, whisked into a waiting sedan, and driven in convoy directly to the basement of the Miami courthouse. Like any other federal prisoner, he would be fingerprinted and have a mug shot taken. That day, the once military dictator of Panama would finally make his appearance before Judge Hoeveler.
At about the same time, the nitpicking and micromanaging would begin. A debate raged between Miami and Washington concerning whether or not Noriega would be permitted to appear in court dressed in his general's uniform. Washington adamantly opposed the idea. Sullivan, Lehtinen, and I quickly agreed that if Noriega wanted to wear his general's uniform, we would have no objection. If that was the image he wanted to portray to a Miami jury, it would play directly into our hands. The matter was settled quickly, and the marshals were instructed to allow Noriega to dress in his military uniform.
Late that afternoon, Judge Hoeveler took the bench. General Noriega, in the freshly pressed uniform of a Panamanian four-star general, stared up at the bench beneath the seal of the United States flanked by the flags of the great Republic and the State of Florida. At that precise moment, more than any other, I felt the awe and power of this nation. Twenty-three American soldiers and countless numbers of Panamanian civilian and military had died in the invasion. Noriega was a sociopathic drug dealer who abused his power and his nation and cared only about amassing millions for his own personal benefit-nothing more, nothing less. The United States had invaded a sovereign nation to arrest one man. This case was and would be like no other.
In the days, weeks, and months that followed, the defense was relentless and formidable. Neal Sonnett dropped out, citing personality conflicts with the trial team. Later, it was revealed that Ray Takiff, a target of tax-evasion charges, was about to be indicted: He also withdrew, officially citing poor health. Takiff would later go undercover and pay bribes to dishonest judges while secretly recording and videotaping them as part of a massive investigation dubbed "Operation Courtbroom."
With Sonnett and Takiff out of the fray, Rubino now led the defense. He picked Jon May, an outstanding former Assistant United States Attorney and appellate expert, to guide him through the maze of legal issues that would follow. He beefed up the team with several others. The defense soon fired its first significant salvo in our direction.
With Judge Hoeveler having rejected the defense's earlier motion to dismiss, the defense was constrained in its ability to raise again the act of state doctrine or claims of sovereign immunity and thus to capitalize upon the negative hype surrounding the invasion and the unprecedented move of invading Panama. The court's earlier ruling stood as the law of the case.
Nonetheless, the defense challenged the invasion head-on by seeking dismissal of all charges against Noriega on the ground that he had been brought before the court in a manner that was "shocking to the conscience and in violation of the law and the norms of humanity." The defense argued that the invasion violated the due process clause of the Fifth Amendment, that using 24,000 armed soldiers to capture one person was "illegal and immoral." The defense argued that, even if Noriega's capture did not violate due process, Judge Hoeveler should dismiss the indictment to prevent the court from becoming a party to the government's misconduct. Supporting their motion, the defense drew upon reports by two human rights groups, Physicians for Human Rights and the Ad Hoc Independent Commission of Inquiry on the United States Invasion of Panama, headed by former Attorney General Ramsey Clark.
The defense alleged that invading U.S. troops engaged in the bombing, shooting, mutilation, and murder of civilians, all laid out in gory detail for the court. Judge Hoeveler convened a hearing on the motion, and the defense played a video collage of news footage from major networks and called Ramsey Clark to testify on Noriega's behalf.
Deputy Solicitor General William Bryson drafted the government's response to the motion. He is one of the most brilliant lawyers whom I have ever met, soft spoken, humble, and never too full of himself. Bryson's intellect and knowledge of the law and Supreme Court precedent are unmatched. He argued that Noriega's claim that the invasion was shocking to the conscience and violated norms of international conduct was wrong. He argued the time-honored Ker-Frisbie doctrine, which states that the method in which the defendant is brought before the bar of justice in the United States is not subject to attack. Bryson cautioned Judge Hoeveler not to become embroiled in questions of foreign policy and military strategy. Noriega's allegations of war crimes and other atrocities were irrelevant to the charges filed against him. There was no precedent for dismissing a case on the ground of "outrageous conduct." The conduct of the invasion was simply not a proper basis for a ruling by a United States district court in Miami; it was political-not a question for the judiciary. Judge Hoeveler agreed. The indictment was not dismissed, and the path was cleared to try the case.
Despite Judge Hoeveler's ruling that Noriega was not the "leader" of Panama, the reality (which the defense could not argue in rebuttal) was that the Republic of Panama was endemically corrupt and Noriega called the shots as to who would be the president and how long his service would last. In preparation for the trial, the prosecution trial team began studying the history of Panama. We learned that Noriega would often summon a president of the republic at will to his headquarters, the commandancia, and dismissively inform him that he was no longer president. The president's not serving out his full term was part of the political history of the tiny republic. One president, the late Arnulfo Arias, bears the dubious distinction of having been elected to the office of president four times without having served a single complete term. His widow is now president. Perhaps she will have better luck now that the general no longer calls the shots.
The Approach to the Trial
As the trial date grew near, the prosecution team stood at the precipice of unexplored territory. We would be attempting to prove conduct that occurred in Panama, in the context of Panamanian politics, custom, and tradition, by a man the jury would see as the dictator of Panama. Noriega's relationships with his underlings in the PDF, some of whom were his codefendants, would have to be explained to an American jury in Miami. Needless to say, it was a complex and daunting task.
Panama is a class-stratified society with a mix of Indians, Africans, and Spaniards historically controlled by oligarchs. As a trial tactician and investigative prosecutor, I felt an encyclopedic knowledge of Panama's history and culture was critical even to attempt to combat what Noriega might throw against us. I devoured Path Between the Seas, Divorcing the Dictator, and Our Man in Panama. I tabbed pages, outlined significant passages, and created a chronology and cast of characters. Of necessity, I became an expert in Panamanian history and culture.
Just another drug trial. When the invasion began and Noriega's codefendants started landing at Homestead Air Force Base in C 130 Air Force transport planes, a media feeding frenzy ensued. The world media descended on the tiny Miami street where the federal courthouse is located. A small city of cable feed trucks sprung up from nowhere. Swarmed by cameras, microphones, and a crush of reporters every time we walked to a court hearing, we quickly learned not to stop but to keep walking even though cameras were thrust inches from our faces.
There would be no leaks, no off-the-record background conversations-nothing. In order to prosecute the case properly, the media would have to be viewed as merely an ever-present distraction. Judge Hoeveler scrupulously advised the jury not to read or look at any accounts of the case, and I believe they adhered to his admonition. The greatest risk was that the trial would evolve into a political circus, like Iran-Contra and the Oliver North intrigue. Fortunately, this did not occur.
Saying that the Noriega case was in reality a large-scale Miami drug case might provoke guffaws among even the least cynical. However, that is exactly what it was even though Noriega provided intelligence and assistance to the Central Intelligence Agency, the Department of Defense, and American law enforcement, specifically the DEA. During the course of the trial, we were able to show Noriega to be the corrupt cop that he was, helping "fight" the drug war on his own terms, channeling select and filtered information to the gringos.
The media. Going into the trial, I knew that the legality of the indictment would continue to be upheld based on Judge Hoeveler's early rulings. I was confident we could keep our theme going-the Noriega trial was not a political trial; it was purely and simply a drug trial. The pressing of that theme eventually kept defense histrionics to a minimum and encouraged Judge Hoeveler to interpret the rules of evidence strictly as they applied to defining and interpreting relevant evidence.
As the case dragged on for six months, the media quickly lost day-to-day interest. Sundry details of threads of circumstantial evidence, tail numbers of planes laden with cocaine, corroboration of jailhouse informants, and boring reviews of financial records were never detailed in the press. The media appeared for closing argument, the verdict, and sentencing. We devised no strategy or tactic to deal with the media; none was necessary. We went about our business of being courtroom prosecutors, trying our case with a highly professional judge and a jury that was instructed appropriately to abide by strict orders to have no contact with news reports about the case.
Washington had other ideas. After the testimony of one of our principal witnesses, Floyd Carlton Caceres, Noriega's friend and pilot and a leftover from the original indictment, received a call from a very high-ranking official in the DOJ. He told me that the Washington Post had reported that the witness was not doing very well. He was worried and asked what was happening to the case: Was it going down the drain? I chuckled and said that the witness had done fine, that ample evidence would corroborate his testimony before the end of the trial, and that the folks in Washington should not be so edgy about the case.
The trial. The trial of a complex and significant historical cocaine conspiracy case depends upon preparation, the credibility of witnesses, and the trial prosecutor's ability to corroborate their testimony. You plot out the players, the charges, and the proof and hope you can fit all the pieces of this giant jigsaw puzzle together.
You must put yourself in the shoes of your opponent and attack your case from every possible angle. When your proof can withstand every challenge, you are ready. The Noriega case was no different. The critical witnesses were those with "face time" with the general, i.e., those witnesses who had criminal conversations with Noriega. For the most part, they were informants or coconspirators with whom the government had made plea bargains or other deals. They were large-scale drug dealers who had received or hoped to receive leniency in return for their testimony.
One such witness was co-indictee Ricardo Antonio Bilonick, an American-educated lawyer, ambassador to Washington from Panama, and at one time or another the owner of every major airline in Panama. I debriefed Bilonick in Panama while he was still a fugitive-he was impressive. He had face time with the general, was closely connected to the Ochoa family of the Medellin cartel, and had made more than $47 million from the drug trade. Bilonick was the real thing. He was bright, spoke English fluently, and knew everyone in Panama. Additionally, he was trusted by the cartel's hierarchy and provided critical linkage between the Colombians and Noriega. We needed Bilonick. Negotiations dragged on for months. Two weeks before trial, we struck a deal. The Panamanian secretly flew into a small Miami airport on a DEA plane.
At trial, Bilonick's testimony was devastating to the general. He began by detailing how he personally introduced cartel representatives to Noriega. He then described how Noriega received $10 million and allowed 19 of Bilonick's DC-8 flights to fly from Panama to Miami while laden with 15 tons of pure Colombian cocaine.
If the jury believed Bilonick, they would convict Noriega. Rubino had his work cut out for him.
The defense went about the job and painstakingly demonstrated Bilonick's motive to lie, using a textbook "snitch" cross-examination. The wily defense lawyer detailed Bilonick's motivation to accuse Noriega falsely and tried to explode the ambassador's reasons for implicating the general. The foremost was that Bilonick was hoping to limit his own possible jail sentence. In addition, the United States had not taken one cent from Bilonick in forfeiture, and Rubino argued that this gave Bilonick an additional motive to lie: He could keep his millions. Rubino scored points. The U.S. government condoned $47 million worth of drug trafficking so that Bilonick could testify against Noriega. Rubino argued Bilonick could not be believed-the prosecution had traded a demonstrated drug lord for useful evidence against Noriega.
The jury measured Bilonick as a man and a witness and searched for evidence to corroborate his testimony. Ultimately, Bilonick's testimony was believed and was a lynchpin in Noriega's conviction.
Like Bilonick, witness after witness provided thousands of pages of testimony against the Panamanian general. For me, there could never be enough. Piling on or running up the score is unsportsmanlike and not in the spirit of fair play in some contests. However, a trial lawyer can never do enough to overpower his opponent,
For example, Ricardo Bilonick's direct testimony lasted for two days. Some might think that this was overkill, but in my opinion, a witness should testify for as long as it takes to do the most damage to the other side. I know the school of advocacy that counsels against overtrying a case. However, in 26 years, I have never lost a case because I presented too much evidence.
As trial progressed, with the help of witnesses like Ricardo Bilonick, we traced the early days of the cartel through its halcyon days in Medellin. They trans-shipped hundreds of kilos of pure cocaine through Panama and deposited hundreds of millions of dollars in Panamanian banks.
Whenever the drug traffickers needed safe haven, Noriega provided it to them. In the end, we followed the leads and found and interviewed the witnesses. We located the documents we needed for corroboration, the witnesses testified, and the trial proceeded.
After six months, I rose and faced the jury in closing. My first words were carefully written, and I had practiced them over and over: "Manuel Antonio Noriega was a man of great, great power.
While he used his power to trick and fool the DEA, the CIA, and the gringos with phony cooperation, he sold his uniform, his army, and his protection to a murderous international criminal gang known as the cocaine cartel of Medellin, Colombia, For millions and millions of dollars in cash, they bought that man and his uniform to do their corrupt and dirty bidding.
He was the classic military dictator, but as the evidence unfolded before the jury, Manuel Antonio Noriega was shown to be what he was-nothing more than a corrupt, crooked, and rotten cop. For the trial lawyer, it was a remarkable moment. In the war against drugs, it was but one skirmish. People continue to use drugs, and traffickers continue to provide the drugs to them. But in the history of trials there may never be another like this.
Mid-Trial Offer of Probation for Client
