With one of the great trials of the 21st century for Mexico concluded in the United States, that of its old anti-drug czar, Genaro García Luna, a number of questions appear on the horizon about the same process, and also about the possibilities of the protagonist in the short and medium term. . This Wednesday, a judge imposed a 460-month prison sentence on García Luna for drug trafficking, among other crimes. The former official can appeal, a path that, according to his lawyer, they will take in the coming weeks. The possibility of him becoming a cooperating witness, doubts about the importance of the evidence against him and the pending processes in Mexico outline his present.
There was a lot of expectation with García Luna’s sentence, especially south of the Rio Grande. Mexico was impatiently awaiting the details of the sentence imposed on the security strategist of the Government of Felipe Calderón (2006-2012), its length, the years he must remain in prison. The former official, who served in a good part of the Mexican security agencies from the end of the last century until 2012, had been convicted at the beginning of 2023, by a popular jury, in New York. The size of the sentence remained to be specified, the judge’s task, which in turn triggers all future movements.
Despite his lawyer’s statements about the appeal, it is possible that García Luna chooses to collaborate with the US Attorney’s Office, a path that would facilitate a reduction in his sentence and a somewhat earlier release from prison. With the sentence imposed, the former police chief would leave prison after 80 years. On the other hand, the judge’s decision on the sentence has opened a debate in Mexico about the elements that the jury took into account in the sentence, testimonies, mostly stories from figures from the underworld, which placed García Luna in the upper part of the Sinaloa Cartel organizational chart.
Jorge Peniche, a member of the Guernica 37 Center, an organization that litigates human rights issues in the United States, thinks that “García Luna is going to drop the appeal and seek to collaborate. You don’t have a winning case. Although the sentence did not go badly for him, I do not see much room to improve his scenario,” he argues. Prosecutors were asking for a life sentence for the former official. “He can be a cooperating witness for the cases pursued by the agencies in that Prosecutor’s Office in Brooklyn, that of Ismael El Mayo Zambada, for example,” he adds.
Peniche explains that the law in the United States provides for collaboration agreements with defendants, before and after trials. The lawyer details that it is much more common for agreements to be reached during the process, an option known there as the “5K motion”, an agreement such as the one reached by the authorities with Jesús Zambada García, alias El Rey Zambada, brother of El Mayo, prior to the trial against his old partner in the Sinaloa Cartel, Joaquín El Chapo Guzmán.
The other option is known as “motion 35(b)”, much less common, in a ratio of six to one compared to the 5k, explains the expert. It is the legal figure resorted to by the former Nayarit prosecutor, Edgar Veytia, who pleaded guilty for drug trafficking in the United States in 2019, and reached a subsequent agreement with the Prosecutor’s Office, precisely to testify against García Luna. In his case, Peniche explains, the prosecutors conditioned the reduction of his sentence on the case against García Luna ending in a conviction.
The Federal Rules of Criminal Procedure establishes that García Luna has one year from the publication of the sentence, to try to collaborate with the authorities and get them to accept. The law allows it to be done later “if the information the convicted person provides was obtained after the date of conviction, if the convicted person gave that information before, but it became relevant later, or if the convicted person had that information before, but had no form.” to know that it was going to become relevant.” This last case is what Veytia’s lawyers alleged to make him a protected witness.
Protesters shout outside a federal courthouse after the sentencing of Genaro García Luna, in Brooklyn.SARAH YENESEL (EFE)
The weight of evidence
Another issue that appeared at the end of the trial, as a reflection, points to the evidence that supported the Prosecutor’s case, a debate, in fact, that has gone through the process. The main evidence of the prosecutors is the statements of witnesses, alleged criminals and confessed criminals, mainly El Rey Zambada, Sergio Villarreal, alias El Grande, Veytia himself and Óscar El Lobo Valencia. It was based on his statements that the Prosecutor’s Office convinced the popular jury that García Luna was guilty.
From Mexico, the lack of hard evidence in the Prosecutor’s evidence package has provoked some criticism, many from those around the ex-policeman’s old team, although others are somewhat more supported, far from the political bashing. Luis Tapia, an expert in criminal law and litigation with a human rights perspective, points out that “under our practice of criminal law, a trial that is based only on testimonies would be weak. When you say that a conviction is based on the sayings of five people, you imagine that their sayings are super easy to manipulate, right? But in the United States, lying in court is very serious… In Mexico it is very cheap,” he argues.
Tapia points out that the evidentiary standard in both countries is the same, proving the commission of a crime “beyond all reasonable doubt.” But, he says, “the decision about the guilt or innocence of the accused is constructed differently.” In the United States, a popular jury decides on the fate of the accused, in Mexico it is the judge. North of the Rio Grande, cross-examination during trials is of paramount importance, as seen in the movies. To the south, Tapia explains, the notion of proof of the old system prevails, which, in some way, causes “us to trust some tests more than others.”
The debate on the strength of the evidence challenges one of the controversies of the past six-year term in Mexico, the arrest of the former Secretary of Defense, Salvador Cienfuegos, in Los Angeles, in 2019, and the accusation against him for drug trafficking. Beyond the anger of the Mexican Government and the subsequent diplomatic farce, which forced the US Government to drop the charges, release the general and send him back to the south of the border, the package of evidence that the Department of Justice sent to their Mexican peers. Much of the evidence was testimony from criminals, Veytia among them, supported by alleged interceptions of messages between Zepeda and a Pacific criminal organization. With the evidence in hand, the Mexican Prosecutor’s Office decided not to prosecute General Cienfuegos due to lack of evidence.
Genaro García Luna in Guadalajara, in 2011. Eduardo Verdugo (ASSOCIATED PRESS)
It is true that the Prosecutor’s Office could have delved deeper into the investigations of its American counterparts and that they decided not to do so. In any case, the evidence sent from the north generated the same sensation as those from García Luna. The interesting thing about the case is that the Government and its media support network then highlighted the lack of forcefulness of the evidence against Cienfuegos, with the same vehemence that they have now celebrated the conviction against García Luna. “With what has been seen, I don’t think the former police officer would have been convicted in Mexico,” Tapia says.
The pending cases
The conviction in the United States requires a reflection on García Luna’s alleged responsibility in many other crimes, mainly in Mexico. Adriana Muro, head of the Elementa organization, which defends human rights, argued yesterday in her X account that the process against the former official and the bribes he received from the cartel, according to the ruling, “left out, as is customary the courts of that country, violations of human rights, due to those bribes, and the impact they had on the security strategy that he led.”
Muro also wondered about the victims of the convicted person in the United States. “In these processes, the overdose victims never appear and the victims in Mexico that generate corruption, which generates the prohibition, are made invisible.” Muro added: “The opportunity to investigate, punish and compensate for crimes and violations committed in national territory has been lost, a consequence of the tendency to export criminal trials to the United States for drug crimes.”
The possibility of García Luna facing justice in Mexico seems remote. In the logic of the United States, either he becomes a ghost of the system, lost in a prison, or he collaborates in other cases, in exchange for sentence reductions, a situation that, as in the case of Muro, angers the south. of the border. Even so, the Mexican Prosecutor’s Office maintains open proceedings against García Luna. There are, specifically, three, for different crimes.
One has to do with the Fast and Furious operation, organized by United States security agencies in the middle of Calderón’s six-year term, which allowed the illegal transfer of weapons to Mexico, supposedly to identify smuggling networks. The fact is that many of those weapons were lost and ended up in the arms of criminals. The Prosecutor’s Office accuses García Luna of allowing this transfer.
New York prosecutors leave the courthouse after the trial of Genaro García Luna. Ángel Colmenares (EFE)
The other two cases arise from alleged economic and financial corruption. In one, the Prosecutor’s Office accuses the former official of contracting the construction of several prisons at an overpriced price, money that he and his network of collaborators would have pocketed. In the other, the agency accuses him of having diverted more than 5,000 million pesos – more than 300 million dollars at the time – from the budget of the penitentiary system.
