Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a recent post we discussed both the history and role of reasonable doubt in criminal trials. We noted and criticized the fact that Texas judges in criminal trials do not, per Texas Court of Criminal Appeals mandate, have to give jurors any instruction as to what constitutes “reasonable doubt.” This, we believe, is one of several reasons why Texas leads the nation in the wrongful conviction of innocent people.


The Fifth Circuit Court of Appeals recently reversed a drug conviction of a Texas resident and had an opportunity in the process to explain why reasonable doubt is so critical in ensuring the constitutional right to a fair and impartial trial. The case involved Maria Aide Delgado who was convicted in federal court of one count of possession of marijuana with intent to distribute and one count of conspiracy to commit the same offense. The Delgado case also illustrates a subject matter we have discussed in other posts: prosecutorial misconduct (here and here).


In September 2006 federal customs officers received a tip from undercover informant that Delgado had marijuana in a tractor trailer truck parked at her rural residence in Weslaco, Texas. Delgado, the sole owner and operator of T.J. Trucking, gave the officers “consent” to search after which they discovered 230 kilograms of marijuana in the sleeper cab of the locked semi-trailer truck which was parked inside her fence. Delgado told the officers she didn’t know anything about the marijuana or how it got in the truck; that her company hired drivers to operate the semi-trailer to haul Mexican produce from Laredo to destinations throughout the United States. She also informed the officers that she did not drive or accompany the truck on its long hauls, and that the bulk of her business was conducted by telephone from her residence. The officers seized her cell phone, computer, bank records, and personal papers—none of which disclosed any evidence of illegal drug activity.


Bartolome Vasquez was a legal Mexican resident who worked as a produce broker and shipper in Laredo. He also moonlighted as a paid government informant. He knew Delgado, having done business with her arranging produce shipments the four years prior to 2006. He told his U.S. Customs handlers that he spoke with Delgado at least four times a month either in person or over the telephone. He told the handlers he considered her a “legitimate trucking business operator” until September 2006 when she offered him $10,000 to haul a load of marijuana mixed with produce to North Carolina. Vasquez said he turned down the offer and immediately reported it to his Customs handlers. Since they had previously paid him $1300 for drug smuggling related information, he naturally expected a reward for the Delgado information—and, as a matter of fact, he did receive $7,500 for that information.


Vasquez began to secretly record telephone conversations he reportedly had with Delgado about the drug shipment. The problem was that he recorded only “some of the conversations” and these appeared only to concern discussions about legitimate arrangements for the regular produce shipments—nothing about the marijuana shipment. Vasquez convinced his handlers—and a jury as well—that his conversations with Delgado were “in code and were really about the proposed marijuana-laced produce shipment.” Based on this intelligence-gathering, ICE officials formulated a plan to have Vasquez direct Delgado to send the semi-trailer containing the marijuana to a government-controlled warehouse where they planned to make arrests and seize the drugs.


Now if you think that sounds weird, consider this: Vasquez then tells his Customs handlers that he had received a telephone call from Delgado informing him that the shipment was cancelled because the North Carolina contact had been arrested. He then told the handlers that, rather conveniently, the semi-trailer with the marijuana was parked at Delgado’s house and that she planned to return the marijuana to its source later that night.


We’re not the only ones who found Vasquez’s account not only implausible but highly improbable. The Fifth Circuit observed “there [were] some discrepancies or oddities in the record that tend to detract from the reliability of Vasquez’s testimony. Although he was over 50 years old, had lived in the United States most of his life, and had taken three years of college-level English, he required the assistance of an interpreter in his testimony. Although the government’s opening statement described Delgado’s alleged promise to pay Vasquez $10,000 as being conditioned upon the marijuana-laced produce shipment clearing inspection and ‘get[ting] it past law enforcement,’ Vasquez’s testimony relates no such conditions. Further, Vasquez testified that Delgado said she planned to try to return the marijuana, but did not say how, where, or to whom, nor did he otherwise indicate that she would be successful in that attempt.”


Delgado was formally arrested one month after the search and seizure of the marijuana from the semi-trailer parked at her residence. The Fifth Circuit was sharply critical of the investigation of Delgado and its total lack of any meaningful effort to develop incriminating evidence against her. Investigators located a house/garden maintenance worker and had surveillance of her former husband at the residence; yet neither potential witness was called by the Government to testify. Investigators did not attempt to collect fingerprint evidence from the wrappers, the bundles of marijuana, or from the sleeper cab of the semi-trailer where the drugs were found. The Government did not produce any evidence identifying the source or the alleged North Carolina recipient of the marijuana, or any evidence linking Delgado to either party. The appeals court added this additional criticism of the Government’s investigation and prosecution:


“Albert Aquilar, who in Weslaco near Delgado’s house, worked as TJ Trucking’s driver for some ten months before the ICE officers seized the rig when he drove it to Laredo on September 13, 2006. He testified that he was the only driver operating the truck during that period. He denied having any knowledge of contraband or drug activity involving the truck. He testified that he drove loads of produce for Delgado and TJ Trucking almost weekly from Laredo to points throughout the United States. He said that he was paid about $1,200 to $1,400 per week or trip, and that between trips he always parked the truck at Delgado’s house, locked the cab, and left the key with Delgado. He said he knew of only one key to the truck.


“Regarding the week before the officers’ discovery in the truck on September 11, 2006, Aguilar testified he picked up a load of pork in Omaha, Nebraska and headed back to Texas. On September 7, 2006, he arrived in Weslaco, parked the truck at Delgado’s house, locked the cab and left the key with Delgado, and went home. On September 8, 2006, he said, he picked up the truck at her house and drove the load of pork to Hidalgo, Texas, where the pork was unloaded.


Then he recounted that he went to Edinburg, Texas to drop off the bill of lading at the broker’s office. From there he took the truck to a shop for mechanical work in Donna, Texas, where he left it and the keys. He testified that at that time there was no marijuana in the vehicle. On September 13, 2006, Delgado called him at his home, told him about the officers’ search of the truck on September 11, 2006—but assured him the truck was now ‘clean’—and asked him to pick up a new load in Laredo. Delgado met him with the truck at a tire shop where they put air into the tires. After that, on September 13, 2006, he drove the truck to Laredo, where it was seized by the ICE officers. Because the truck was left at the mechanic’s shop in Donna, Texas on September 8, 2006, and there was no evidence tracing its movements or its contents between that date and September 11, 2006, the mechanic shop personnel and perhaps others had access to the rig and could have cached the marijuana inside during the three days before the agents’ search of it on September 11. The government did not introduce any evidence as to the number or identity of the persons who had access to the truck during that interval. As to Aquilar himself, the government did not introduce any evidence to corroborate his testimony, such as witnesses to verify his whereabouts and activities prior to the drug search and seizure or to confirm that his cell phone, banking, and financial records showed no signs of involvement in illicit drug activity.”


This investigative and prosecutorial incompetence prompted the Fifth Circuit to conclude that the Government had failed to prove its drug conspiracy despite its claims that Delgado was a “member of a large-scale illegal drug operation.” What the prosecution did prove is that when it lacks evidence to support its grandiose claims, it will often resort to official misconduct to sway the jury to convict. In this case both the prosecuting attorney and a government law enforcement witness deliberately engaged in misconduct both knew was improper and had long been condemned by the appellate courts.


In his closing argument, the prosecutor expressed his personal opinion that Delgado had lied to the ICE agents in an unethical effort to attack her credibility. After vouching for Vasquez as a credible witness because he was not a “permanent snitch” for ICE, the prosecutor then told jurors that Delgado was the only lying party in the case; that she lied to the agents.

“Talk about motive to lie, ladies and gentlemen,” he told the jury. “Who has the motive to lie here? The driver? No. He’s working all around. Mr. Vasquez. No. He’s in Laredo. He not a permanent snitch. He’s not one of those individuals that makes his living off providing information. He’s provided it twice in the past. The agents? You’re going to blame the agents for all this? Whose [sic] got the motive to lie here? It’s the defendant, and she’s done so. She did so to these agents.”


The Fifth Circuit pointedly said “this misconduct, inflicted upon a non-testifying defendant whose credibility was not at issue, involved a central element of the offenses against Delgado: her knowledge of the marijuana found in the tractor-trailer.”

The prosecutor’s misconduct had been preceded by testimony from an ICE agents linking Delgado to other criminal conduct—something the trial court called “highly prejudicial.” On cross-examination, the agent was asked by Delgado’s defense attorney:


Q. Did you all try to investigate [Delgado’s] income to see, you know, how much money she makes, or –
A. No, sir.
Q. Did you all investigate I believe it was TJ Trucking?
A. We had prior knowledge of TJ Trucking being involved in narcotics trafficking, yes.


The Fifth Circuit properly noted that the agent “volunteered a nonresponsive answer” that linked Delgado’s company to uncharged criminal activity of the same nature for which she was being tried. The appeals court said the agent’s response was “uninvited by defense counsel’s questioning” and that it was “unfairly prejudicial.” Just a few years ago in United States v. Sumlin the Fifth Circuit reminded federal prosecutors that a government officer’s accusation that a defendant has committed other crimes presents a serious risk of prejudice because it “might lead a jury to convict a defendant not of the offense charged, but instead of an extrinsic offense.” The appeals court added the risks are increased when there was no conviction associated with the “other crimes.”


The Fifth Circuit came down even harder on the prosecutor’s misconduct, quoting from the 1935 U.S. Supreme Court decision Berger v. United States: “’The United States Attorney, is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. 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 bring about a just one.’” The high court added this time-honored instruction: “It is fair to say that the average jury, in a greater or lesser degree, has confidence that [the obligation to do justice], which so plainly rest[s] upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.”


Fifty years after its Berger precedent, the Supreme Court in United States v. Young reinforced a prosecutor’s duty to play fair in the courtroom and not express his/her personal opinions because they carry “with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”


The Delgado case offers compelling evidence why a “reasonable doubt” instruction is so critical in a criminal case. While the federal judge gave the Delgado jury such an instruction, its influence on the jury was undermined by the prosecutorial and witness misconduct in the case. The prosecution knew it had a weak case, and the only way it could circumvent any potential “reasonable doubt” a juror might have was for the prosecutor to personally call her a liar and allow a critical ICE witness to link her to other drug smuggling activity. The Fifth Circuit summed it up best with the following assessment of the Government’s case against Delgado:


“The government presented only a limited amount of evidence against Delgado as to the charge of possession with intent to distribute: essentially, the prosecution’s evidence showed that there was marijuana concealed in the semi-trailer rig owned by Delgado’s company, which was parked on her property, and that according to a single witness, a paid government informer, she planned to ship the marijuana to North Carolina. As to the conspiracy charge, the government offered no legally sufficient evidence, as explained above. Against this backdrop, in only a two-day trial, the prosecution and the district court committed several errors, each of which went to the central factual and legal issues of Delgado’s case. We conclude under the circumstances of this case, these errors so infected the proceedings as to render the trial fundamentally unfair, thus depriving Delgado of her Fifth Amendment right to a fair trial.”


Fortunately, a panel of the Fifth Circuit was able to correct the wrongful conviction of Maria Aide Delgado, but she may not have fared as well had she been tried and convicted in a Texas state court. A state conviction raising the same constitutional issues presented to the Fifth Circuit in the Delgado case would probably be upheld on direct appeal by the Texas appellate courts. The defendant could then seek habeas corpus relief in federal court, but under clearly established habeas jurisprudence, federal courts are bound to accept state appellate decisions unless (1) they are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or (2) they are “based on an unreasonable determination of the facts.”


The one abiding lesson we’ve learned from the hundreds of DNA exonerations is that most of the innocent inmates had their cases repeatedly heard and rejected by both state and federal courts. That’s why the Delgado case illustrates to us both the need and value of a reasonable doubt instruction in the Texas criminal trial system. It would at least provide a significant procedural safeguard to protect the presumption of innocence.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization