McALLEN — For the second time in six months, the government failed to secure a conviction of two police officers accused of stealing sham cocaine.
Jurors came back with not guilty verdicts Thursday afternoon in the case of San Juan police officer Salvador Hernandez and his former colleague Richard Leon Castillo, who were accused of working together to steal cocaine from a seizure nearly two years ago.
The jury decided that the government didn’t do enough to prove a cocaine conspiracy involving two officers. Hernandez, however, was found guilty on both counts of lying to federal agents.
The trial is the second involving the two men, who were acquitted by jurors of drug conspiracy charges on Dec. 18, 2017, after a week’s worth of testimony. But Castillo had also been found guilty of lying to federal agents — the same fate Hernandez met Thursday.
Hernandez and Castillo face a maximum of five years in federal prison. Sentencing for both men, who will remain free on bond, is set for July 31.
After about 10 hours of deliberations, jurors found the government’s evidence was insufficient to show that Hernandez and Castillo had conspired to steal 3 kilos of cocaine.
The trial was connected to an Aug. 27, 2016, seizure of 40 bricks of cocaine and pitted the government against Hernandez, a three-year law enforcement veteran for San Juan police, and Castillo, a now-former San Juan police officer of about three years who the government accused of conspiring to possess and distribute more than 500 grams of cocaine.
The men faced two counts of conspiring to possess and distribute more than 500 grams of cocaine, while Hernandez faced two counts of willfully making materially false, fictitious and fraudulent statements and representations, the indictment states.
At about 10:30 a.m. Thursday, jurors sent the court a note stating they were deadlocked on the charges, but they were told to keep deliberating.
Less than an hour later, after jurors sent another note stating that they were still deadlocked on the charges, Alvarez called the jury back into the courtroom and read the Allen charge, giving jurors more time to deliberate.
On Wednesday, after five days of testimony, both the prosecutors for the government and defense attorneys for the two men gave their closing arguments prior to jurors’ deliberation.
The government is represented by Assistant U.S. Attorneys Roberto Lopez Jr. and Kristen Rees. Hernandez is represented by Houston-based attorney Douglas Allen A’Hern, and Castillo is represented by McAllen attorney Reynaldo M. Merino.
The crux of the case
Rees, building on Lopez’s opening remarks to the jurors last week, reiterated that the case against the officers was about two thefts. The first theft was of the original 40 kilos of cocaine from a drug cartel in Mexico by five locals who conspired to steal the cocaine.
The second theft, according to the government’s indictment, involved Hernandez and Castillo who — while at the scene of a single vehicle crash involving an SUV loaded with 40 cocaine bundles — allegedly agreed to steal three bundles from duffle bags inside Hernandez’s patrol unit.
The two thefts, although related, take place separate of each other and without the first group knowing of the alleged attempt by Hernandez and Castillo to steal 3 kilos at the crash site.
Last week, a Drug Enforcement Administration forensic chemist testified that the cocaine he tested was less than 1 percent pure, which is considered to be “sham” cocaine.
The government alleged and presented evidence to prove during the trial that it’s at that very site of the crashed SUV that Hernandez and Castillo agreed to steal what was a large load of cocaine that had not been accounted for.
Rees also highlighted Hernandez’s actions at the crash site, pointing to the instances where he turns off the body camera while transporting the bundles in his unit, or touching the bundles with his bare hands.
What’s more, Rees said the two men lied to DEA agents during interviews regarding the seizure.
Castillo is heard in a recorded interview with DEA agents saying he didn’t see the bundles of cocaine until he was back at the police department, which contradicts body camera footage from Castillo’s own body camera. At the department, Castillo and Hernandez are seen looking at the bundles of cocaine in Hernandez’s unit.
Hernandez is heard saying, “That one’s mine,” to one of the duffle bags in the back of his unit. The government alleged this was the beginning of the conspiracy between the two to steal bricks of cocaine.
These instances in addition to the interview with Castillo, the government argued, were proof of a conspiracy. But defense attorneys A’Hern and Merino pushed back during their own closing, saying there’s no concrete evidence against the two men.
A’Hern closed by saying that it’s hard to disprove something that didn’t happen and that now, after two trials, countless hours of investigations, interviews, body camera footage and sworn testimony, the best the government could provide was video of the two men speaking for about “five seconds.”
He said the government was hung up on policy, and whether or not Hernandez’s disregard for department policy was proof of a conspiracy to steal cocaine.
During the trial, the government entered evidence showing how Hernandez violated policy at different points throughout the day, handling evidence without gloves, wearing gloves when using his service weapon and driving away with 40 kilos in his unit without asking for an escort.
But A’Hern disputes this as proof of anything other than an officer failing to follow standard protocol.
“Hernandez is not being charged with policy,” A’Hern said. “Could things have been done better? Sure.”
Two of the charges against Hernandez stem from a Nov. 29, 2016 interview with DEA agents, where the government claims he lied when he said that he and Castillo saw Border Patrol agents near a shed.
Federal agents believe this is a lie, claiming Border Patrol agents did not search near that shed, but that would contradict some of the government’s witnesses from the first day of testimony.
During that day, two Border Patrol agents, Gilbert Barron and Ernesto Flores, each testified they saw at least one officer near his unit with the hatch open — a fact A’Hern says shows they were near the shed.
The government claims in its fourth count that Hernandez lied when he said that from the “time the duffle bags were placed in his unit to the time (Hernandez) arrived at the San Juan Police Department, (Hernandez) never opened … the back hatch to (Hernandez’s) unit,” the indictment states.
A’Hern said this was not a lie on Hernandez’s part, but that the officer misunderstood to mean he had not opened the hatch between the time he left the entire search area and when he arrived at the station to account for Castillo’s body camera footage, which shows Hernandez opening the hatch for Castillo.
The government believes Hernandez did open the hatch of his unit between the time the bags were placed there and when he arrived at the police station, which was corroborated by Castillo’s body camera.
A’Hern concluded his closing by asking why Hernandez and Castillo would pick that moment on that day — which involved a search of the orchard by six Border Patrol agents — to conspire to steal those bundles.
Merino characterized the DEA’s actions with regard to the investigation into the stolen bundles as “overzealous, prejudiced and blind to the big picture.”
He said the government based its case on “nitpicking” details that do not amount to hard evidence.
Referring to the government’s claim that Border Patrol agents are not near the shed when Castillo and Hernandez are near their units, Merino said trial testimony proves they were there despite the lack of video footage showing as much.
“Castillo did not know how many people were out there,” Merino said, noting that the rest of the body cam footage was eventually played. “This is nitpicking — trying to make Castillo guilty in your eyes.”
Merino also argued that the video of the two looking at the bundles doesn’t prove a conspiracy, and that it was possible that they turned off the camera to celebrate the seizure.
“It went off,” Merino said. “There’s no bad intent.”
Merino then asked jurors why Castillo would hand over the footage to DEA agents if he is guilty.
“Does a person with dirty hands save a recording that might make him look guilty — no, because there’s no bad intent,” Merino said. “He’s a good officer.”
‘Tough pill to swallow’
After the verdict, A’Hern said that although the guilty verdict on the lying charges is a “tough pill to swallow,” he respected the jurors’ decision. The Houston-based attorney further noted that Hernandez was not happy with the guilty verdict, adding that if the jury found his client not guilty on the conspiracy charges how then can they also find him guilty of lying about said conspiracy.
Merino declined to comment when reached after the verdict.
In a prepared statement, San Juan Police Chief Juan Gonzalez said he respected the verdict in both trials.
“Our goal is to continue maintaining a professional working relationship with all local, state, federal law enforcement agencies,” Gonzalez said. “We will proceed with the proper internal procedures with our officer that has been on suspension without pay.”
Hernandez, who has been on unpaid suspension since his arrest last May, will most likely be terminated due to the federal conviction, just as Castillo was at the end of the first trial.