The former Mexican defense chief accused by federal prosecutors of helping a cartel move thousands of kilograms of drugs into the U.S. will fly back to his home country unscathed by the U.S. justice system, a judge ruled Wednesday, accepting a stunning request by Attorney General William Barr to reverse course in a prosecution that had heightened tension between the two countries and infuriated some investigators who worked on the case.
In a brief hearing in Brooklyn federal court, prosecutors said that foreign policy considerations and the maintenance of a law enforcement partnership between the U.S. and Mexico had underpinned the decision to seek to dismiss the charges against Gen. Salvador Cienfuegos Zepeda.
Judge Carol Bagley Amon granted the Justice Department’s request, but colored her decision with a dose of incredulity that matched the reaction of many legal observers in Mexico and the United States.
“Although these are very serious charges against a very significant figure—and the old adage ‘a bird in the hand’ comes to mind—still, I have no reason to doubt the sincerity of the government’s position,” the judge said.
Cienfuegos, who served as Mexico’s Secretary of National Defense from 2012 to 2018, was arrested last month on drug trafficking and money laundering conspiracy charges upon flying into Los Angeles International Airport. In court documents, prosecutors alleged that Cienfuegos had been protecting and promoting the work of the violent H-2 cartel in exchange for bribes, citing thousands of intercepted Blackberry messages, including ones exchanged between Cienfuegos and a senior leader of the group.
The high-profile arrest sent shockwaves through Mexico’s government and angered the country’s president, Andrés Manuel López Obrador, who challenged the authority of U.S. drug investigators in Mexico and called the arrest "a very regrettable fact.”
While the case appeared to be proceeding without disruption in the U.S. courts—Cienfuegos was transferred from California to a New York jail and earlier this month pleaded not guilty to the charges at an arraignment—behind the scenes, senior Mexican officials had been making their displeasure clear to the Justice Department, according to officials from both countries.
Letters between the two countries had flown across the border, and Mexico’s foreign minister, Marcelo Ebrard, spoke by phone twice with Barr in the days following the arrest to express the country’s disappointment over a lack of forewarning of the arrest, he said at a news conference Tuesday.
On Tuesday night, Barr released a lengthy statement co-signed by his Mexican counterpart announcing the decision to seek the dismissal of the case and to return Cienfuegos to Mexico “so that he may be investigated and, if appropriate, charged, under Mexican law.”
The top prosecutor in the Eastern District of New York told the court Wednesday that the decision to abandon the prosecution was made by Barr personally.
The move was met with deep frustration by some investigators involved in the case, two law enforcement officials with knowledge of the matter told The Daily Beast. One of the officials said that certain senior leaders of the U.S. Drug Enforcement Administration, which helped build the investigation into Cienfuegos, had not been consulted ahead of the decision, and warned that the fallout could erode future investigations into the cartels and their ties to corrupt Mexican officials.
The official said that if Cienfuegos had proceeded to a trial, he could have provided damning and embarrassing evidence that implicated other Mexican officials working alongside the cartels.
Spokespeople for the DEA and Justice Department did not respond to requests for comment.
Legal experts noted that the Mexican government’s historical deference to U.S. drug investigators within the country could have proved a powerful bargaining chip during the two country’s backroom negotiations.
“I assume it had to be something extremely significant that the Mexicans didn’t want to have come to light and they have some leverage with threatening to keep the DEA out,” said Jodi Avergun, a former chief of staff at the DEA who previously headed the Narcotic and Dangerous Drug Section of the Justice Department's Criminal Division.
“He could have PNG’ed them — persona non grata — and kicked them out,” Avergun said of the Mexican president. “That would be disastrous for U.S. drug enforcement. That is the entry point for almost all the drugs that come into the United States.”
The prosecution was the latest in a string of blockbuster cases targeting senior Mexican officials and the cartels that have been built by prosecutors and investigators in Brooklyn, as well as the DEA, which maintains a robust presence in Mexico and regularly partners with Mexican law enforcement in task forces.
In December, U.S. authorities arrested Mexico’s former Secretary of Public Security, Genaro Garcia Luna, on charges of accepting bribes and empowering the Sinaloa Cartel. In September 2019, the former state attorney general for the Mexican state of Nayarit was sentenced to 20 years in prison after pleading guilty to helping the H-2 cartel manufacture and distribute drugs.
And in July of last year, Joaquin “El Chapo” Guzman, the notorious kingpin of the Sinaloa Cartel, was sentenced to life in prison after a federal trial in Brooklyn.
Barr has worked to cultivate a relationship with the Mexican government over the past two years after cartel gunmen murdered nine Americans living in a religious commune in the north of the country, spurring fury from President Donald Trump, who threatened to designate the cartels as terrorist organizations. The attorney general traveled twice to the country’s capital, meeting with senior leaders including the Mexican president, and a third trip had been planned for the spring but was cancelled because of the novel coronavirus, according to a law enforcement official.
During the visits, Barr was able to diffuse the growing crisis sparked by the massacre, and the cartels avoided the terror designation, which the Mexican government had opposed. Barr has also sought to convince Mexican authorities to move forward with a number of stalled extraditions involving Mexicans arrested in that country and facing charges in the U.S., according to Justice Department officials.
In court Wednesday, Brooklyn’s top federal prosecutor, summoned specifically by Amon to address the request to drop the charges, said that his office still stands behind the case.
“There’s no concern that I have with the strength of our case. Here there was a balancing frankly of interests between the Department's interest in pursuing this particular prosecution against the interest of the U.S. in foreign relations,” Acting U.S. Attorney Seth DuCharme said.
Prosecutors said the Mexican general would “be held accountable under Mexican law as soon as possible.”
U.S. prosecutors have transferred evidence they collected against Cienfuegos to the Mexicans in recent days, and Mexico’s Justice Department has since opened its own investigation, according to U.S. and Mexican officials.
Cienfuegos will be in the custody of the U.S. Marshals Service as he is transported back to Mexico. His legal future in the country remains to be seen, however, and legal authorities in Mexico were skeptical of the Mexican government’s ability and willingness to move forward with the case.
Mexican prosecutors have historically been reluctant to investigate allegations of government involvement in crimes in the country, like the 2010 killing of 72 migrants in the state of Tamaulipas, said Ana Lorena Delgadillo, the director of the Fundación para la Justicia y el Estado Democrático de Derecho, a Mexican non-profit focused on human rights.
“So far what we have seen is that we don’t have an attorney general’s office that is prepared to have the capacity nor the autonomy to conduct an investigation like this,” said Delgadillo. “This is going to be a huge test for our general attorney.”