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 Editorials | Issues | February 2007 
Arellano's Arrest Location Challenged
 Kelly Thornton - San Diego Union-Tribune
| | This image provide by the Department of Justice shows drug kingpin, Francisco Javier Arellano Felix, in DEA custody as he arrives in San Diego Thursday Aug. 17, 2006. Arellano Felix pleaded not guilty to federal charges of moving tons of cocaine and marijuana along the California-Mexico border. (AP/Department of Justice) |
Downtown San Diego – The captain of the yacht on which suspected drug kingpin Francisco Javier Arellano Félix was arrested last summer has become the center of a fascinating legal debate with international political implications.
Capt. Edgar Omar Osorio took the witness stand yesterday during an unusual pretrial hearing, and questions by Arellano's lawyers seemed to lead in one direction: Did the arrest take place in international waters, as prosecutors maintain, or did U.S. officials apprehend him outside their jurisdiction, in Mexican waters?
Perhaps the more important question is, does it matter where the Aug. 14 arrest occurred?
Prosecutors say the questioning is an irrelevant sideshow with no impact on the facts of the case. But if the incident happened in Mexico, defense attorneys could seek dismissal of the case because Arellano was illegally arrested. Failing that, they could ask that evidence seized on the boat be thrown out because it was the result of an unlawful seizure.
It could also affect the U.S. government's ability to seek the death penalty.
Traditionally, Mexico has refused to send anyone to the United States who would face the death penalty, which is barred in Mexico. There could be political ramifications if the U.S. government violated international law and breached the sovereignty of Mexico to apprehend Arellano.
But cooperation on extradition matters between the two countries has improved significantly in recent months. Some legal observers wonder how motivated Mexican officials would be to intervene on behalf of an Arellano, and perhaps disrupt the dismantling of its most feared drug cartel.
Since Mexican President Felipe Calderón was sworn into office in December, he has cleared the way for the extradition of 15 reputed drug lords, including four who were indicted in San Diego years ago. The action was called “unprecedented in scope and importance” by U.S. Attorney General Alberto Gonzales.
Even if Arellano was taken in Mexican waters, the U.S. Supreme Court has already ruled in a case with similar allegations that the U.S. government violated Mexico's sovereignty and the extradition treaty between the two nations.
In 1992 the court upheld the kidnapping in Mexico of Humberto Alvarez Machain by operatives paid by the U.S. Drug Enforcement Administration. The operatives brought Machain to the United States to face charges in the torture and murder of drug agent Enrique Camarena.
Although a U.S. district judge later acquitted the Mexican doctor, his abduction in Mexico was viewed as a violation of sovereignty – but the high court did not dismiss the case.
Security was tight at yesterday's hearing attended by Arellano and a co-defendant, Manuel Arturo Villarreal Heredia. Bomb-sniffing dogs swept the courtroom before anyone was allowed inside.
Arellano and Villarreal are charged, along with Arellano brothers Benjamín and Eduardo and seven others, with overseeing the shipment of tons of cocaine into the United States on fishing boats, private planes, trucks and commercial airliners.
The organization also is accused of the murders of at least 14 people in Mexico and six in Southern California. The family-operated cartel began building a power base in 1989 and has been linked to hundreds of murders in Baja California, including high-ranking police officials and others caught in the crossfire.
Defense attorneys said Javier Arellano was arrested off Cabo San Lucas, Baja California, aboard the 42-foot yacht Dock Holiday. Prosecutors have said signals from a secretly installed global positioning device indicated the arrest took place 1.1 miles into international waters.
Osorio, a longtime boat captain, initially refused to talk to prosecutors or testify before a grand jury. But recently, after almost six months in custody, he approached the government and agreed to talk, saying his wife had died in Mexico while he was jailed, and his children need him. The government said Osorio has no information that is germane to the prosecution's case and no longer opposes his release.
U.S. District Judge Larry Burns rejected a request by Arellano's lawyers yesterday to continue to hold Osorio. They had argued that they may need him to testify on behalf of Arellano at trial.
Burns said Osorio's videotaped deposition would suffice, and the captain will be released and returned to Mexico after his deposition, which is expected to conclude Monday. Osorio was held only as a witness and was never charged with a crime.
At the hearing, defense attorney Mark Adams said he and co-counsel David Bartick urged the judge to grant a request that the government provide more “pings” – the signals transmitted by the global positioning device on the boat to a satellite, which showed the position of the yacht.
The government has already turned over to the defense two such pings, one before the arrest, and one after, which they say indicates the arrests occurred in international waters.
The defense claims the pings they have are inconclusive and they want all signals from the weekend before the arrest to better track the boat.
The defense attorneys said they had previously questioned Osorio outside court and feel “he is not being truthful in regard to . . . the geographic location of the Dock Holiday during that weekend.”
Kelly Thornton: (619) 542-4571; kelly.thornton@uniontrib.com |
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