Case 1:15-cr-00379-PKC Document 22 Filed 01/02/19 Page 1 of 13

U.S. Department of Justice

United States Attorney

Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

January 2, 2019

Via ECF (Redacted) & Email

The Honorable P. Kevin Castel
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007

Re: United States v. Juan Antonio Hernandez Alvarado,

S2 15 Cr. 379 (PKC)

Dear Judge Castel:

The Government respectfully submits this letter relating to the bail hearing
scheduled for January 4, 2019 at 3:00 p.m.

The defendant is a former Honduran Congressman and the brother of the current
President of Honduras. For more than a decade, the defendant abused his privilege and power in
order to enrich himself by distributing massive amounts of cocaine in connection with staggering
levels of political corruption. In October 2016, he boldly traveled to the United States to
categorically and falsely deny any wrongdoing during a counseled proffer session. Now, having
been arrested and facing charges that carry a mandatory minimum sentence of 40 years, it appears
that the defendant will ask the Court to accept a promise that he will not flee or endanger anyone
if released pending trial. The request should be swiftly rejected. Because there are no conditions
that could address the significant flight risk and danger to the community posed by the defendant,
he should be detained pending trial.
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The Honorable P. Kevin Castel Page 2
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BACKGROUND

I. Honduras: A Major Transshipment Point for U.S.-Bound Cocaine and Plagued by

Violence

This investigation by the Drug Enforcement Administration (“DEA”), and others

like it, have demonstrated that Honduras is one of the principal transshipment points in the world
for cocaine that is produced in South America and imported into the United States. Beginning in
at least 2004, multiple drug-trafficking organizations operating in Honduras worked with
politicians, law enforcement officials, and military personnel to receive multi-ton loads of cocaine
sent to Honduras from Venezuela and Colombia via air and maritime routes, and to transport the
drugs westward in Honduras toward the border with Guatemala and eventually to the United
States.

Drug traffickers paid bribes—sometimes styled as “campaign contributions”—to

Honduran politicians holding and running for office, on the understanding that the politicians
would support trafficker-friendly policies regarding matters such as investigative priorities and
extradition policy. Prior to 2012, the Honduran constitution did not permit the extradition of
Honduran citizens to face criminal charges in the United States. For further protection from
official interference, and in order to facilitate the safe passage through Honduras of huge cocaine
shipments, drug traffickers also paid bribes to public officials for access to information about
ongoing investigations, military and law-enforcement checkpoints, and planned narcotics
interdictions. This extensive drug-trafficking system contributed to Honduras becoming one of
the most violent places in the world.1 The perpetrators of this violence, as well as corrupt officials
who facilitated it and permitted traffickers to operate, often acted with impunity.

In response, the Government has prosecuted numerous traffickers, politicians, and

high-ranking police officials who contributed to an environment of lawlessness in Honduras and
elsewhere. See, e.g., United States v. Fredy Renan Najera Montoya, S1 15 Cr. 378 (PGG)
(Honduran Congressman facing mandatory minimum sentence of 40 years’ imprisonment after
pleading guilty without a plea agreement to conspiring to import cocaine and related weapons
offenses); United States v. Fabio Lobo, 15 Cr. 174 (LGS) (son of former Honduran President
pleaded guilty to conspiring to import cocaine and sentenced to 24 years’ imprisonment); United
States v. Zelaya Romero, et al. S1 15 Cr. 174 (LGS) (seven members of the Honduran National
Police pleaded guilty to conspiring to import cocaine); United States v. Rosenthal, et. al., S2 13
Cr. 413 (JGK) (a former Honduran Congressman and presidential candidate, and a former
Honduran Congressman and cabinet official in current administration, both pleaded guilty to
money-laundering charges); United States v. Midence Oqueli Turcios Martinez, 18 Cr. 499 (LAK)
(Honduran Congressman charged with conspiring to import cocaine and related weapons

1
See U.S. Dept. of State, Honduras 2014 Human Rights Report at 1 (“Pervasive societal violence
persisted. Organized criminal elements, including local and transnational gangs and narcotics
traffickers, were significant perpetrators of violent crimes and committed acts of murder, extortion,
kidnapping, torture, human trafficking, and intimidation of journalists and human and worker
rights defenders.”).
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The Honorable P. Kevin Castel Page 7
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APPLICABLE LAW

“[P]retrial detention was the means chosen by Congress in the Bail Reform Act to
protect the community from dangerous defendants.” United States v. Dono, 275 F. App’x 35, 38
(2d Cir. 2008). “The purpose of such detention must be to regulate the defendant’s conduct, i.e.
to prevent danger to the community and ensure the defendant’s presence at trial . . . .” United
States v. Lewis, 5 F. Supp. 3d 515, 526 (S.D.N.Y. 2014). Thus, section 3142 “requires that an
accused be detained pending trial where, following a hearing in accordance with § 3142(f), ‘the
judicial officer finds that no condition or combination of conditions will reasonably assure the
appearance of the person as required and the safety of any other person and the community.’”
United States v. English, 629 F.3d 311, 318 (2d Cir. 2011) (quoting 18 U.S.C. § 3142(e)(1)). In
assessing a defendant’s risk of flight and the danger to the community that would be presented by
his release, courts must consider four factors set forth in the statute: (1) “the nature and
circumstances of the offense charged, including whether the offense is a crime of violence”;
(2) “the weight of the evidence against the person”; (3) the “history and characteristics of the
person”; and (4) the “nature and seriousness of the danger to any person or the community that
would be posed by the person’s release.” 18 U.S.C. § 3142(g).

The Government bears the burden of establishing that the defendant poses a flight
risk by a preponderance of the evidence, and that he poses a danger to the community by clear and
convincing evidence See 18 U.S.C. § 3142(f); see also United States v. Sabhnani, 493 F.3d 63,
75 (2d Cir. 2007). However, “[s]ubsection (e) of § 3142 provides that there is a rebuttable
presumption that ‘no condition or combination of conditions will reasonably assure’ against flight
or danger where probable cause supports a finding that the person seeking bail committed certain
types of offenses.” English, 629 F.3d at 319 (quoting 18 U.S.C. § 3142(e)(3)). When the
presumption established by Section 3142(e)(3) applies, the defendant “bears a limited burden of
production” to “rebut that presumption by coming forward with evidence that he does not pose a
danger to the community or a risk of flight.” United States v. Mercedes, 254 F.3d 433, 436 (2d
Cir. 2001).

“Although the government retains the burden of persuasion, a defendant must

introduce some evidence contrary to the presumed fact in order to rebut the presumption.” United
States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) (citing United States v. Martir, 782 F.2d 1141,
1144 (2d Cir. 1986)). “Once a defendant introduces rebuttal evidence, the presumption, rather
than disappearing altogether, continues to be weighed along with other factors to be considered
when deciding whether to release a defendant.” Id.
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DISCUSSION

I. Counts One and Two Establish a Presumption of Pretrial Detention

Counts One and Two of the Indictment give rise to a presumption under Section
3142(e) that the defendant should be detained pending trial on the bases of risk of flight and danger
to the community. “‘[A]n indictment returned by a duly constituted grand jury conclusively
establishes the existence of probable cause for the purpose of triggering the rebuttable
presumptions set forth in § 3142(e).’” United States v. Hoey, No. 11 Cr. 337 (PKC), 2014 WL
572525, at *1 (S.D.N.Y. Feb. 13, 2014) (quoting United States v. English, 629 F.3d 311, 319 (2d
Cir. 2011)). Count One charges a violation of the Controlled Substances Act with a maximum
penalty of life imprisonment, which triggers the presumption. See 18 U.S.C. § 3142(e)(3)(A). So
too does Count Two, which alleges a particularly serious violation of Section 924(c) that involved
machineguns and destructive devices. See 18 U.S.C. § 3142(e)(3)(B). Therefore, there is a
presumption in favor of pretrial detention.

II. Section 3142(g) Counsels In Favor of Pretrial Detention

Even in the absence of the statutory presumption, the relevant factors identified in
Section 3142(g) all support continued pretrial detention. The defendant is charged with serious
crimes and is alleged to have engaged in a long-term and egregious course of conduct. The
penalties at issue are appropriately severe. The evidence against the defendant is strong. He lacks
ties to the United States and maintains strong connections abroad. Accordingly, based on all of
these considerations, the defendant should be detained pending trial.

A. The Nature and Circumstances of the Offenses

The nature and circumstances of the charged offenses demonstrate that the
defendant poses a danger to the community and a significant risk of flight. Counts One, Two, and
Three charge the defendant with engaging in large-scale, long-term, and heavily armed drug
trafficking. The Indictment contains findings by the grand jury that the defendant’s drug-
trafficking activities were as varied as they were prolific. He had access to cocaine laboratories in
Honduras and Colombia, and at least one of those facilities produced cocaine bearing a stamp with
his initials. (Ind. ¶ 4). He conspired with other traffickers, including members of the Honduran
National Police, to distribute thousands of kilograms of cocaine using planes, boats, and even a
submarine. (Id.). He protected himself and his co-conspirators by bribing one or more high-
ranking Honduran politicians and members of Honduran law enforcement. (Id. ¶ 5). He abused
his power in Honduras to enrich himself while seeking to facilitate government-assisted money
laundering by the Cachiros, one of the largest drug-trafficking organizations in Honduras at the
time. (Id. ¶ 6). And the defendant was so confident that his power permitted him to operate with
impunity that he traveled voluntarily to the United States in October 2016 to lie about his activities
to the Government and the DEA.

In light of the gravity of the defendant’s conduct, the serious charges in the
Indictment carry appropriately heavy penalties. Count One carries a mandatory minimum term of
10 years’ imprisonment and a maximum term of life. See 21 U.S.C. § 960(b)(1)(B). Count Two
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carries a mandatory consecutive term of 30 years’ imprisonment and a maximum term of life. See
18 U.S.C. § 924(c)(1)(B)(ii). Count Three carries a maximum term of life imprisonment. See id.
§ 924(o). Count Four carries a maximum term of five years’ imprisonment. See id. § 1001(a).
Therefore, as a result of these charges, the defendant faces a mandatory minimum term of 40 years’
imprisonment and a maximum term of life.

It is an understatement to observe under these circumstances, as the Second Circuit

has written previously, that “[t]he lengthy jail sentence that could be imposed for the charged
crimes provides an incentive to flee.” United States v. Liebowitz, 669 F. App’x 603, 605 (2d Cir.
2016). Thus, the nature and circumstances of the charged offenses weigh in favor of pretrial
detention on the bases of danger to the community and flight risk.

B. The Strength of the Case

The strength of the evidence against the defendant also counsels in favor of pretrial
detention. If the case proceeds to trial, the Government expects to call at least six cooperating
witnesses who participated in drug-trafficking and money-laundering activities with the defendant
dating back to at least approximately 2004. The testimony of these witnesses will be corroborated
by, among other things, the photograph of the “TH”-stamped kilogram of cocaine, photographs of
firearms and firearms licenses seized from the defendant (which are particularly strong evidence
of the defendant’s possession and conspiracy to possess firearms as charged in Counts Two and
Three), the video recording of the defendant’s 2014 meeting with Rivera Maradiaga, and the
defendant’s statements to law enforcement after his arrest on November 23, 2018.

For example, in his post-arrest statement, the defendant admitted that (i) he
discussed drug trafficking with multiple individuals who the defendant knew to be drug traffickers,
including at least one who is now a cooperating witness (“CW-1”) (though the defendant denied
participating in drug shipments), (ii) he knew CW-1 transported cocaine through Honduras by
hiding it on cattle cars so that drug-sniffing dogs could not detect the cocaine, (iii) he accepted
gifts from CW-1 and other drug traffickers, including an expensive watch and two firearms,
(iv) the photograph of the “TH”-stamped package was in fact a kilogram of cocaine bearing his
initials (though he denied playing any role in the creation or use of the stamp), (v) he understood
that drugs transiting Honduras were destined for the United States, and (vi) he met with a Honduran
government official to discuss a Cachiros front company after the recorded meeting with Rivera
Maradiaga in 2014. The strength of the Government’s case further demonstrates that the defendant
is as dangerous as the charges against him suggest, and provides a strong incentive for him to flee
to avoid the consequences of his actions.

C. The History and Characteristics of the Defendant

The history and characteristics of the defendant, including his extensive foreign
connections, increase the risk of flight created by the charges, the seriousness of the criminal
conduct alleged, and the strength of the Government’s case.

The defendant is a Honduran citizen with extensive personal and political

connections in Honduras—including his brother, the Honduran President—and virtually no
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connections to the United States. See United States v. Sabhnani, 493 F.3d 63, 76-77 (2d Cir. 2007)
(finding Government’s “argument for detention” to be “particularly compelling” because “flight
would impose no insurmountable personal or professional hardship” on the defendant and he had,
“not surprisingly, maintained strong family ties” abroad); United States v. Reza Zarrab, 15 Cr. 867
(RMB), Dkt. No. 41 (S.D.N.Y. 2016) (denying bail to defendant charged with export violations
based on, among other things, defendant’s lack of ties to the United States, significant wealth and
resources, and extensive international travel). Although the Pretrial Services report may shed more
light on the defendant’s financial situation,4 he possessed at least six bank cards at the time of his
arrest. The defendant also appears to have maintained at least two residences in Honduras as well
as other assets. Photographs seized from his phones appear to depict the construction of a ranch
in rural Honduras. Moreover, according to a press release issued by the Honduran Ministerio
Publico on December 17, 2018, Honduran authorities recently seized from the defendant a
residence in Tegucigalpa, Honduras, four vehicles, and five bank accounts. (See Ex. A). The
release indicates that in June 2018 Honduran law enforcement seized $193,220 from a hidden
compartment in a vehicle in Cortés, Honduras, arrested five people in connection with the incident,
and discovered evidence linking the arrestees to the defendant. (See id.).

The defendant also appears to have ties to other foreign countries. When he was
arrested on November 23, 2018, he possessed both private and diplomatic Honduran passports.
Consistent with the charges and allegations in the Indictment, the defendant’s travel documents
reflect extensive international travel, including to Colombia, Mexico, Panama, El Salvador,
Ecuador, Uruguay, Brazil, and Taiwan. See Hoey, 2014 WL 572525, at *2 (“On the present record,
this Court concludes that there is a serious risk of flight because of defendant’s substantial
international contacts, his strong financial resources and a substantial motive to flee to avoid
substantial prison time in the event of conviction.”).5 The defendant’s travel history, lack of ties
to this District and the United States, and extensive connections abroad all support an order of
pretrial detention.

D. The Danger Posed by the Defendant

The danger posed by the defendant also weighs in favor of pretrial detention. “[I]t
is clear that the harm to society caused by narcotics trafficking is encompassed within Congress’
definition of ‘danger’” under the Bail Reform Act. United States v. Leon, 766 F.2d 77, 81 (2d Cir.
1985); see also United States v. Ambrosio, No. 94 Cr. 674 (DC), 1995 WL 138605, at *2 (S.D.N.Y.
Mar. 30, 1995) (“[The defendant] is charged with masterminding an international drug ring
involving the importation and distribution of large amounts of narcotics, which raises a strong
presumption of dangerousness.”). The defendant’s drug-trafficking activities were particularly

4
The Pretrial Services Office is scheduled to interview the defendant and prepare a report in aid
of the bail hearing on the morning of January 4, 2019.
5
The private passport contained a visa that the defendant used to enter the United States during
his November 2018 trip. It is the Government’s understanding based on communications with the
DEA that the defendant’s visa was revoked by the Department of Homeland Security following
his arrest, that he otherwise lacks status in the United States, and that is subject to removal at the
conclusion of these proceedings.
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dangerous because of the types of weapons involved. If bailed, the defendant would pose a greater
danger not only in the United States but also in Honduras. See United States v. Choudhry, 941 F.
Supp. 2d 347, 358 (E.D.N.Y. 2013) (“Although 18 U.S.C. § 3142 does not define the term
community, courts considering the scope of this term have concluded that it may encompass
communities outside the United States at risk of danger from a particular defendant.” (citations
omitted)). The defendant’s dangerousness is also exacerbated by the fact that his co-conspirators
include several other powerful men capable of violence and witness intimidation, such as current
and former members of the Honduran National Police. See United States v. Bellomo, 944 F. Supp.
1160, 1167 (S.D.N.Y. Oct. 30, 1996) (reasoning that defendant “is a danger at least as much for
what he might direct or assist others in doing as for what he might do himself”). For all of these
reasons, the danger posed by the defendant is yet another consideration that supports the denial of
his application for bail.

III. There Are No Bail Conditions That Would Adequately Protect the Public and Ensure
the Defendant’s Appearance

In light of the foregoing, there are no bail conditions that could sufficiently mitigate
the danger and flight risk posed by the defendant.

As to danger, pretrial release in this case is entirely at odds with the need to protect
the public. See, e.g., Sabhnani, 493 F.3d at 77 (describing “serious reservations about the adequacy
of home confinement as a substitute for detention in cases involving violent crime”); United States
v. Mercedes, 254 F.3d 433, 436-37 (2d Cir. 2001) (“We have expressly held in several cases that
a bail package that might ‘reasonably assure the appearance of [the defendant] at trial, will not
reasonably assure the safety of the community.’” (quoting United States v. Rodriguez, 950 F.2d
85, 88 (2d Cir. 1991))); United States v. Ferranti, 66 F.3d 540, 543 (2d Cir. 1995) (“The
$1,000,000 bond would have deterred flight, not danger.”); Hoey, 2014 WL 572525, at *3 (“Strict
pretrial supervision and electronic monitoring of [defendant] would provide little protection
against future obstructive conduct.”). The defendant is alleged to have worked with others to use
and possess military-grade weapons in furtherance of drug-trafficking activities, and many of his
co-conspirators remain at large. If released, the defendant could more easily access this network
to engage in additional dangerous criminal conduct, including efforts to intimidate witnesses and
their relatives and associates abroad. Thus, because there are no conditions that could adequately
ensure the safety of the community, pretrial detention is appropriate.

The defendant also presents an unacceptable risk of flight that cannot be addressed
through bail conditions, due to the serious nature of the charged conduct, the weight of the evidence
against him, and his personal characteristics, including his wealth, foreign ties, travel history, lack
of any meaningful connection to the United States, and duplicity during the October 2016
interview with the Government. “A defendant facing a significant term of incarceration might
well prefer to lose his financial assets rather than his freedom.” Sabhnani, 493 F.3d at 77.
“Further, defendants might easily persuade some friend or family member to lend them the money
necessary to finance flight from the United States.” Id.

The ease with which a sophisticated traveler such as the defendant could exit the
United States undetected is illustrated by the behavior of his associate, . According
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to travel records, was scheduled to leave the United States on a commercial flight
from Miami International Airport in or about the week of November 26, 2018. Following the
defendant’s public arrest on November 23, 2018, however, did not board the flight,
and he appears to have left the United States in a way that permitted him to avoid contact with
customs and law enforcement personnel. Put simply, the Government has been unable to locate
any record of ’s border crossing and departure from the United States. Nevertheless,
he appears to have traveled on commercial flights through Costa Rica, Honduras, and Panama in
December 2018. The defendant would be a much greater flight risk than if released
on bail, and even if the Court were to impose restrictive measures such as GPS monitoring or home
detention. “[E]lectronic surveillance systems can be circumvented by the ‘wonders of science and
of sophisticated electronic technology,’ and “the monitoring equipment can be rendered
inoperative.” United States v. Orena, 986 F.2d 628, 632 (2d Cir. 1993) (quoting United States v.
Gotti, 776 F. Supp. 666, 672-73 (E.D.N.Y. 1991)); see also United States v. Brennerman, 705 F.
App’x 13, 16 (2d Cir. 2017) (“Nor is any different conclusion compelled by [defendant’s]
willingness to submit to electronic monitoring and home detention or by the fact that certain
relatives are willing to act as sureties.”).

In sum, there is a presumption in favor of detention, and there are no conditions

that could adequately protect the public and guarantee the defendant’s appearance at trial.
Therefore, pretrial detention is appropriate.

* * *
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Because certain information included in this submission discloses the extent of the
ongoing investigation and the identities of additional investigative targets, the Government
respectfully requests that the Court accept the redacted version of this letter that is being filed
simultaneously on ECF and maintain the separately filed unredacted version of the letter under
seal.

Respectfully submitted,

GEOFFREY S. BERMAN
United States Attorney

By: /s/
Emil J. Bove III
Matthew J. Laroche
Assistant United States Attorneys
(212) 637-2420

Enclosure

Cc: Defense Counsel

(Via Email)