Judges Refloat Drug Case Tied to Sunken Ship

A divided federal appeals court reinstated drug charges against the captain and a crewman of a ship that sank 400 miles south of Acapulco, ruling Tuesday that U.S. agents did not act in bad faith by deporting the only witnesses.

In a case that tests U.S. authority to take the so-called “war on drugs” to the high seas, the U.S. 9th Circuit Court of Appeals ruled, 2 to 1, that the government acted properly by deporting the other crewmen on the ship, a Honduran-flag freighter--even though that meant the loss of testimony that might have proven the captain and crewman innocent.

Over a dissent claiming that the loss of such testimony makes a fair trial impossible, the ruling reinstates charges that could lead to life in prison without parole for Horacio Velarde Gavarrete, 49, the Nicaraguan captain of the ship, and Bolivar Wilson Guerrero Mosqueda, 44, an Ecuadorean crewman.

Last year, a San Diego federal judge had thrown out the case against the two men, both charged with shipping 15 tons of cocaine, about $273 million worth. The reversal was particularly welcome, federal prosecutors said Tuesday, because the U.S. government is stepping up its efforts at sea to track and halt ships carrying drugs.

“We’re real happy the case came down the way it did,” said Assistant U.S. Atty. David P. Curnow, who led the appeal. “You’re talking about 15 tons of cocaine here.”

Velarde’s defense lawyer, San Diego attorney Steven J. Riggs, said he was “stunned” by the ruling. He planned to ask the 9th Circuit to reconsider the ruling and, if unsuccessful, appeal to the U.S. Supreme Court.

“The government’s comment that ‘this is 15 tons of cocaine here,’ that means the end justifies the means,” Riggs said.

“It’s now OK to deport all potential evidence for the defense, (for prosecutors) to say to a jury, ‘Here’s our charge of drugs, here’s your non-U.S. citizen, go do your duty, go find this guy guilty.’ There’s no concept of a fair trial here.”

The ship, the Nordcapp, sank Sept. 11, 1990, in 11,000 feet of water near the Clipperton Islands.

Before the ship sank, it had been dead in the water. It was boarded by a U.S. Coast Guard crew from the U.S. Navy cruiser Arkansas.

Granted permission to board, the Americans noticed a fire and promptly evacuated the 10 people aboard the Nordcapp--Velarde, Guerrero and eight others, a crew from Panama, Colombia, Ecuador and Peru. No one in the U.S. party ever saw what was in the ship’s hold, and no U.S. official ever saw cocaine aboard the Nordcapp.

After arrival Sept. 15--four days later--in San Diego, the nearest American port, U.S. drug agents interrogated the Nordcapp crew. The seamen denied any knowledge of drugs, Riggs said.

Agents did not take detailed notes of those interviews, Riggs said. They did take detailed notes of Coast Guard interviews, he said.

Prosecutors said Velarde confessed to scuttling the ship to hide 13,636 kilograms of Colombian cocaine, about 15 tons. Riggs said Velarde did no such thing, and a defense investigation indicated there had been an explosion that ignited an uncontrollable fire in the engine room.

Two weeks after the ship sank, U.S. authorities sent home eight of the 10 crewmen. Velarde was held in a San Diego jail after Belgian authorities said they wanted him on drug charges. Guerrero was also held, on suspicion of a parole violation from a prior U.S. court case.

In November, 1990, prosecutors in San Diego filed cocaine trafficking charges against the two men. The indictment alleged that the cocaine was to have been loaded into smaller boats and smuggled into the United States.

Last November, U.S. District Judge Rudi Brewster dismissed the charges. He said U.S. drug agents had violated their legal duty to keep good notes of the interviews with the eight other crew members.

Brewster called the case the product of “an incredibly incompetent investigation” and said there was “no way” Velarde or Guerrero could “get a constitutionally fair trial.”

Brewster added that he was not sure whether the deportations “demonstrated a bad faith by the investigators.” But the evidence, he said, indicated “an absence of good faith.”

Reversing Brewster’s ruling, Judge Jerome Farris said Tuesday that the law distinctly requires “bad faith” to dismiss charges. Since Brewster did not specifically find that there had been bad faith, the charges had to be reinstated, Farris said.

Judge Ferdinand P. Fernandez joined the majority opinion.

But Judge Charles Wiggins dissented, saying the charges should have been dismissed. In this case, there could not be a fair trial without the testimony of the crew, Wiggins said.

Velarde and Guerrero remain at the federal Metropolitan Correctional Center in San Diego. Even after Brewster’s ruling last November, they were kept behind bars pending the appeal to the 9th Circuit Court.