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Discovery In Court vs National Security

Updated: Oct 25, 2022

US Government claims that full disclosure would cause serious harm to national security, in addition to considering that they do not need to be disclosed to the defense.

Can a foreign official claim diplomatic immunity from prosecution if he is accused of actions outside his official duties?

by Maibort Petit

The case of Clíver Alcalá Cordones aims to be used to discredit the U.S. justice system, prosecutors deliver to the defense 105 gigabytes of evidence against the military

The New York Prosecutor's Office warns that national security information that does not involve Clíver Alcalá Cordones in the crimes he is accused of is protected.

photo of Clíver Alcalá Cordones
Clíver Alcalá Cordones

The Venezuelan regime's propaganda laboratory continues to use the motions of the defense of the case of retired military officer Clíver Alcalá Cordones, accused of narcoterrorism crimes, to attack the U.S. justice system. Despite the efforts made by several agents in the media, federal prosecutors have announced in court that the case against the alleged member of the Cartel of the Suns is shielded with voluminous information and that so far they have delivered to the defense about 105 gigabytes of evidence with which they will seek to prove, beyond a reasonable doubt the guilt of the accused.

The U.S. government reminded the defense that in the voluminous discovery delivered according to the provisions of the court and U.S. laws there is sufficient information to know the charges against him" and "avoid harmful surprises."

The defense of Clíver Alcalá Cordones expressed its disagreement with the decision of the United States District Court for the Southern District of New York, and Judge Alvin K. Hellerstein to order the non-disclosure of the classified material handled in the judicial process of the former military. It is worth noting that the seal of evidence and classified material is an ordinary procedure in drug trafficking and terrorism files, and is always applied to protect information, witnesses and evidence and prevent them from falling into the hands of the criminal organizations to which the accused belong, in this case the Cartel of the Suns.

The defense insisted that there is data in this material that could favor the defendant, but the prosecution got the judge to approve the motion based on the law that protects classified national security information that involves situations beyond those indicated to the accused.

The prosecutor's request

On February 8, 2022, Damián Williams, United States Attorney for the Southern District of New York, through Assistant Attorneys Jason Richman, Benjamin Woodside Schrier and Kyle A. Wirshba, sent a communication to César de Castro, Clíver Alcalá Cordones' public defender to inform him that on that same date they delivered a classified ex parte presentation to the judge of the case, Alvin Hellerstein, pursuant to Section 4 of the Classified Information Procedures Act and Federal Rule of Criminal Procedure 16(d), regarding the classified discovery of the case.

He told him that they had applied to the magistrate for an order for the protection of such material.

The judge's decision

On February 9, 2022, U.S. District Judge for the Southern District of New York, Alvin K. Hellerstein, granted the government's motion for the Court to grant protection to the information it provided in connection with its case against Clíver Alcalá Cordones.

It is, as the magistrate's decision explains, the documentary evidence and the statements of several government officials that was presented ex parte, behind closed doors and through the Classified Information Security Officer on February 8, 2022.

The court determined that the government's brief contains and describes classified information that requires protection from unauthorized disclosure. Likewise, the judge found that it is a state secret.

Therefore, Alvin K. Hellerstein accepted the prosecution's approach to restrict what he described as "Classified Materials removed", given that their disclosure would cause serious harm to national security, in addition to considering that they do not need to be disclosed to the defense.

Likewise, the judge determined that the government present to the defense substitute classified material, as proposed by the prosecution, which, substantially, will provide the defendant with the same information for his defense as the disclosure of the Classified Materials.

Defense asks for reconsideration of the decision

On February 11, 2022, César de Castro, Valerie A. Gotlib, Adam S. Kaufmann and Cristián Francos, attorneys for Clíver Alcalá Cordones, addressed a communication to Judge Alvin K. Hellerstein asking for a reconsideration of their decision to "grant the motion ex parte of the government for an order of protection pursuant to Section 4 of the Classified Information Procedures Act (CIPA) and Rule 16(d)(1) of the Rules. Federal Criminal Procedure (Section 4 Motion) until the defense has filed its opposition to that motion."

It is explained that after several modifications to the dates initially established by the court, it was established that February 8, 2022 would be the deadline for the prosecution to present the Motion of Section 4 to the Court; while February 15, 2022 was set for any opposition by the defender.

Because the government had complied with its presentation on February 8 and because the judge granted the motion presented by them the next day, that is, on February 9, the defense now makes the request that it be allowed to respond before the motion is granted to the prosecution.

Therefore, The lawyers of Cliver Alcalá Cordones asked Judge Hellerstein to "revoke his decision to grant the Motion of Section 4 and provide an opportunity for the defense to present an opposition to the government's motion."

They asked for a deadline of February 18, 2022 to submit their response and explained that because they are in the middle of a family medical emergency since February 6, they require a few additional days to complete the response.

The government's motion

On February 11, 2022, Damian Williams, U.S. Attorney for the Southern District of New York through Assistant U.S. Attorneys Jason Richman, Benjamin Woodside Schrier, and Kyle A. Wirshba, asked the court in charge of Alvin Hellerstein, to dismiss motions filed by Clíver's defense Antonio Alcalá Cordones to, first, to dismiss the operative charge under the doctrine of foreign official immunity; second, to force the government to provide the defense with a details bill; and third, to order the government to disclose the information it possesses about the alleged "participation of the defendant in anti-Maduro activities, as well as the identities of witnesses who have not indicated [the defendant's] involvement in the alleged conspiracy."

The prosecution considers that Cliver Alcalá Cordones is not entitled to official foreign immunity since for the criminal acts that underlie the charges against him, because he acted outside his official capacity when he committed those acts. It is also alleged that Venezuela has not requested such official foreign immunity on its behalf, which is why the Court must yield to the opinion of the Executive Branch that they lack that right.

Regarding the request for a list of details, the government maintains that Clíver Alcalá Cordones is not entitled to it, because the Verbal Indictment, as well as the voluminous discovery, additional information about the defendant's involvement in the crimes charged, and the government's commitment to provide Jencks Act material at least 30 days prior to trial, "they are collectively more than sufficient information to allow the defendant to comply with the charges against them and avoid damaging surprises, so that a list of details is not justified under the applicable legal standard."

The prosecution warns that it has already produced a substantial discovery regarding the defendant's alleged "involvement in activities against Maduro" and also clarifies that it has not identified any witness statement in his possession in which a witness affirmatively asserted that Clíver Alcalá Cordones was not involved in a drug trafficking conspiracy and/or was not involved in a conspiracy to provide support to the Revolutionary Armed Forces of Colombia.

The government makes an extensive exposition on the accusation that a Grand Jury issued on March 5, 2020 against the defendant and Nicolás Maduro Moros, Diosdado Cabello Rondón, Hugo Armando Carvajal Barrios, a/k/a "El Pollo", Luciano Marín Arango, alias "Iván Márquez", and Seuxis Paucis Hernández Solarte, accusing them of the commission of the crimes of (1) narcoterrorism conspiracy; (2) conspiracy to import cocaine; (3) possession of machine guns and destructive devices; and (4) conspiracy to possess machine guns and destructive devices. The charges stem from the defendants' involvement in a corrupt and violent conspiracy involving the Los Soles Cartel and the FARC, from 1999 to 2020.

In this accusation, the government says, it was perfectly clear the participation of Clíver Alcalá Cordones, along with Maduro, Cabello and Carvajal, in the crimes that are imputed to him.

In addition, the prosecution recalls that since July 22, 2020, after the court ordered the protection of the unclassified discovery material in this case, the government has presented the defendant with a voluminous unclassified discovery that exceeds the requirements stipulated in the legal norm, having been made to date seven deliveries of discovery material totaling more than 105 gigabytes of data.

The allegations

It warns that when a case involves a foreign official, as opposed to a foreign state, "the question of immunity is governed by customary law, not by the Foreign Sovereign Immunities Act."

The government assures that the crimes charged to Clíver Alcalá of trafficking tons-quantities of cocaine and arming a terrorist group, were not "conceivably" within his official duties. Therefore, when he committed such crimes he was acting in his private and unofficial capacity, in his own name and that of his accomplices and not in Venezuela. The defendant, he stresses, violated not only the law of the United States, but also that of Venezuela.

On the other hand, the prosecution highlights the fact that Venezuela did not even attempt to intervene on behalf of the accused, which "weighs heavily against immunity."

The government believes that the defendant's claim to politicize his participation in a conspiracy to import massive quantities of cocaine into the United States and arm the insurgents with military-grade weapons should be rejected.

In addition to the voluminous information provided by the prosecution to the defense in the discovery, the government recalls that it committed to providing Jencks Act material at least 30 days before the trial. Therefore, all this is sufficient information to know the charges against him" and "avoid harmful surprises". Such information, the government asserts, broadly describes the crimes charged to the defendant.

The prosecution denies that there is any witness statement in its possession in which it affirmed that the defendant was not involved in a drug trafficking conspiracy and/or was not involved in a conspiracy to provide support to the FARC and warns that if it identifies such statements, it will produce them.

However, the Government states that it is not its obligation to provide all witness statements when they do not identify the accused as a member of the conspiracies. In this regard, he clarifies that the investigation into the Cartel of the Suns and the FARC is significantly broader than that of the accused and has included numerous interviews of people involved in different aspects of the activities of that group. As a result, a considerable number of witnesses have been interviewed who had no basis for knowing the accused and were therefore not asked about him, so that the fact that he was not affirmatively identified as a participant in the crimes charged is neither evidential nor exculpatory.

However, it is indicated that the government will continue to work with the defense attorney to try to identify the witness, so that he can review any statement and determine if it is within its discovery obligations.

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