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Ninth Circuit:
Man Seeking to Invalidate Murder Conviction Based on Docuseries Fails to Meet Burden
Opinion Says Memoir by Former DEA Agent, Accusing CIA of Orchestrating Killing of U.S. Narcotics Officer, Does Not Directly Address Defendant’s Related Crime
By a MetNews Staff Writer
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Depicted above is a promotional poster for the 2020 documentary, “The Last Narc.” The Ninth U.S. Circuit Court of Appeals yesterday held that allegations in the documentary as well as in a book do not constitute “new evidence” sufficient to support a subsequent petition by an inmate collaterally attacking his conviction. |
The Ninth U.S. Circuit Court of Appeals yesterday rejected an attempt by a defendant, who was found guilty of aiding and abetting murder in furtherance of racketeering relating to the death of two tourists in Mexico mistakenly believed to be U.S. narcotics officers, to reopen his murder case based on new evidence revealed in 2020 in a documentary and book.
Defendant Javier Vasquez-Velasco was tried along with others accused of the 1985 slaying of the tourists. The codefendants, but not Vasquez, were also charged with the murder of a U.S. drug enforcement agent a week later.
The prosecution’s theory was that a Mexican drug cartel organized the killings in retaliation for law enforcement actions by the Drug Enforcement Agency. The new evidence Vasquez is relying on is comprised of allegations that the CIA of orchestrated the killings.
Vasquez requested authorization, under 28 U.S.C. §2255, to file a successive petition with the District Court seeking to set aside his convictions; he had filed three previous petitions under the section.
Sec. 2255 provides:
“A prisoner in custody under sentence of a court…claiming the right to be released upon the ground that the sentence…is…subject to collateral attack, may move the court…to vacate, set aside or correct the sentence.”
Under subdivision (h), a successive motion must be certified by a “panel of the appropriate court of appeals” and contain “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.”
In a memorandum opinion, signed by Circuit Judges Michelle T. Friedland, Daniel A. Bress, and Senior Circuit Judge Danny J. Boggs of the Sixth Circuit Court of Appeals, sitting by designation, the court found that the defendant failed to establish that the “new evidence” based on the memoir met the high threshold required to reconsider his convictions.
Cartel Killings
Vasquez was accused of assisting the Guadalajara Narcotics Cartel in murdering two tourists inside the La Langosta restaurant in Mexico. A week later, other members of the cartel purportedly murdered DEA Special Agent Enrique Camarena.
The defendant referred the court to the book, “The Last Narc,” published in 2020 and written by former DEA Agent Hector Berrellez (whose name was mistakenly spelled in the opinion as “Berellez”). In the memoir, Berrellez claims that Camarena’s murder was not committed in retaliation against the DEA, as was alleged at trial, but was instead part of a cover-up by the CIA of its involvement with revolutionaries in Nicaragua.
Saying that the trial court might have declined to exercise extraterritorial jurisdiction over his case or allowed him to sever the trial had the allegations come to light in time, Vasquez argues that his convictions should be overturned.
He also points to a four-part Amazon Studios documentary bearing the same title, which was based on the book and aired in 2020, in which three of Berrellez’s informants describe witnessing the La Langosta murders. Vasquez claims those descriptions conflict with the eyewitness testimony identifying him at trial.
Ninth Circuit’s View
Friedland, Bress, and Boggs wrote:
“[E]ven assuming the truth of Berellez’s written allegations, his memoir does not allege or support Vasquez’s innocence, nor does it dispute that the La Langosta murders, as opposed to the Camarena murder, were an attempt to further the Cartel’s racketeering enterprise by retaliating against the DEA….Vasquez must do more than argue that new evidence might have caused the district court to rule differently on trial motions: he must now make a ‘prima facie’ showing that the newly discovered evidence…would be sufficient to establish by clear and convincing evidence that every reasonable factfinder would find him innocent of aiding and abetting the La Langosta murders.”
Turning to the documentary, they concluded that “Vasquez’s proffered documentary is reconcilable with Vasquez’s guilt because the documentary does not rule out the possibility that Vasquez was a participant in the La Langosta murders” and said that “[t]he jury could have credited…sworn trial testimony over the unsworn accounts in the documentary series.”
The petitioner also pointed to a 2020 defamation action filed by former DEA Agent James Kuykendall against Amazon and Berrellez over the documentary. In the lawsuit, Kuykendall alleges that Berrellez coached witnesses and informants, and points to the fact that Hector Cervantes-Santos, a witness who incriminated Vasquez at trial, later recanted his testimony.
Noting that Cervantes-Santos later withdrew his recantation and reaffirmed his original trial testimony, the panel said that “we generally view such recantations ‘with suspicion’ in reviewing claims of actual innocence” and “[i]f anything, Vasquez’s pieces of new evidence are somewhat in tension…: one seemingly implies that Berellez informants, like [Cervantes-Santos], are untrustworthy, while the other relies heavily on testimony from three Berellez informants.”
Under these circumstances, the judges declared:
“Vasquez’s evidence does not make the requisite prima facie showing of actual innocence under § 2255(h)(1).”
The case is Vasquez-Velasco v. U.S., 21-71430.
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