US officials hid flaws in drug case

By Steve Fainaru, Globe Staff

MEXICO CITY US officials determined at least three years ago that
evidence used to charge a Boston man with drug trafficking was flawed, but
they kept those conclusions from Mexican authorities, a Massachusetts
congressman, and a human rights group attempting to prove the man was
wrongly convicted, internal US Embassy documents show.

David Carmos, 55, a former yoga instructor at Boston University, has served
nearly half his 10year sentence in a Mexico City prison. Mexican
authorities arrested him in October 1992 on charges he illegally
transported powder they identified as a compound used to make the designer
drug known as Ecstacy.

However, in an April 1994 memorandum obtained by Carmos under the Freedom
of Information Act, a consular official wrote that US narcotics specialists
had concluded that the drug, which they identified as
alphaphenylaceticnitrile, existed only in liquid form and was not
illegal in Mexico.

"Upon review of the sentencing documents, it does seem extremely odd that
Carmos, who was detained and charged on the basis of a suspicious powder,
would have been charged with possession of a substance that only exists in
liquid form," Kathleen J. Mullen, the consul general, wrote in a summary of
the case to William Dieterich, embassy public affairs officer.

The memorandum, which appears to have been prepared by the consulate's
former arrest and detentions officer, Marion Johnston, with input from the
Drug Enforcement Administration, states that the irregularities ''may fall
under the heading of a technicality '' since Carmos ultimately was
convicted of trafficking in Ecstasy, not its precursor.

The embassy has refused to intervene in the case, even though independent
US and Mexican forensics specialists have described the test results used
to convict Carmos as scientifically impossible and concluded they were
fabricated. The embassy, after conducting its own inquiry following a
Boston Globe report on the case last year, agreed the results had been
fabricated.

Carmos's supporters said the embassy memorandum, while bolstering his
longstanding claims of innocence, also underscores how US embassy officials
repeatedly have impeded efforts to shed light on the case or assist a US
citizen who was railroaded through Mexico's corrupt criminal justice
system. They allege that despite indications that most, if not all, the
evidence against Carmos was tainted, the embassy has refused to intercede,
and has even withheld information that might have helped him in ongoing
attempts to overturn his conviction.

Carmos has appealed his case to the Mexican Supreme Court. In addition,
embassy officials tried to dissuade reporters from writing about the case
by spreading rumors that Carmos once had been seen with a drug trafficker.
A former seminarian, Carmos had no criminal record and no references to
criminal associations appear in his case file.

Embassy officials also made public statements including that Carmos
waited 18 months before lodging a complaint that are contradicted by
documents. Carmos, who resides in Dormitory 4 of Reclusorio Norte prison on
the northern edge of the capital, already has served twice as much time as
Humberto Garcia Abrego, the reputed financial mastermind behind one of
Mexico's most powerful drug cartels, who was quietly released from the same
prison earlier this year after moneylaundering charges against him were
dropped.

"I'm disturbed that this memo confirms exactly what we knew was there all
along: that the Mexican government fabricated the evidence against this
Carmos guy," said US Representative J. Joseph Moakley, a South Boston
Democrat, after reviewing the memo for the first time.

Moakley, who appealed last year to former Ambassador James R. Jones to
intervene, said he never received a full explanation of the embassy's
reluctance to get involved. "I called [Jones] and he said, 'You know, there
could be a problem there, but it would be very difficult for us to get
into,'" Moakley said. "This is at a time where people are accusing Mexico
of not being tough enough on drugs," he added. "So we're showing how tough
they were by putting our own people in the can."

Moakley and others have speculated that the US government is reluctant to
confront Mexico about a relatively minor case at a time when relations
between the two countries are particularly sensitive on drugtrafficking
issues.

"We've been very concerned since we got involved that the embassy has
appeared to drag its feet with regard to taking appropriate action," said
David Fernandez, a Jesuit priest who heads the Miguel Agustin Pro human
rights center, which is handling Carmos's appeal after documenting 16
alleged violations of Mexican and international law in the case."You have a
situation where there's overwhelming evidence that there at least has been
a miscarriage of justice, and quite probably an innocent man has been
incarcerated, and the embassy and the State Department weren't prepared to
take any action. Now, especially when it comes to light that they had this
information since 1994, and only under extreme pressure were they able to
acknowledge that they had it, it's outrageous."

An embassy spokesman declined to comment on information in Carmos's file.

In the Globe report, which appeared in March last year, a US consular
official said the embassy would intervene in cases of Americans arrested in
Mexico only when there were clear signs of physical abuse or "the system
has failed." The official, declining to make the file available at the
time, said it contained information that was "not conclusive," adding there
was nothing the embassy could do on his behalf.

"When you cross the border, the constitution doesn't follow you," said the
consular official, who asked not to be identified. "If you get caught, you
can't just say, 'Uncle Sam, come save me.' You can't just send in the
Marines."

In a May 1996 letter to Moakley, former ambassador Jones wrote that
although the case "may not have met the highest standards of US justice, it
appears to have satisfied the Mexican standards of criminal procedure."
Moakley said he has spoken with former governor William F. Weld about
looking into the case if Weld's nomination as ambassador to Mexico is
approved.

On Oct. 17, 1992, Carmos, who was living in San Diego, was passing through
Mexico City's international airport on his way back from Brazil when a
customs inspector confronted him with a plastic bag containing the
suspicious powder. Federal agents took him into custody and charged him
with carrying an ingredient of Ecstasy, a hallucinogenic amphetamine.

For reasons that remain unclear, prosecutors changed the charges in the
middle of Carmos's trial, saying further testing revealed that instead of
carrying the ingredient, Carmos had been carrying 3 1/2 kilos of Ecstasy
itself.

A vegetarian who spent two years in a Boston seminary and once taught
Health Dynamics 392 at BU, he has become a prison celebrity at Reclusorio
Norte for performing thousands of acupuncture treatments on inmates, prison
guards, and their relatives. He also has conducted two inprison seminars
on "acupuncture as a therapeutic modality" for postgraduate students from
two Mexico City universities. )

From the beginning, he said during an interview in the prison cafeteria,
embassy officials indicated that "they didn't want to start anything with
Mexico. I think the embassy just did not want to get involved."

After three separate Freedom of Information Act requests were filed by
Carmos one of which the embassy reported lost the State Department
released his file to him last month, following media inquiries about the
delays. The State Department released the file 2 years and 4 months after
Carmos filed his original request and 17 months after an embassy official
promised that Carmos would receive the file "very soon."

The file contains notes contradicting several statements that the embassy
has made about the case, including an assertion by Jones in a letter to
Moakley that "Carmos did not complain to the embassy about not seeing his
attorney, about inadequate legal counsel or about inadequate translation
services until a year and a half after his arrest."

Unsigned notes dated June 17, 1993 indicate Carmos was raising serious
questions about his case with the embassy eight months after his arrest.
"Still no sentence. Trying to submit evidence that he's innocent, to no
avail," read the notes, apparently taken from an inprison interview with
Carmos.

One month later, it was apparent that Carmos, who does not speak Spanish,
was so confused about his case he was unaware whether he had been
sentenced. "He was sentenced Aug. 6. But he claims he was just informed,"
wrote a consular officer in a telephone record dated Aug. 23, 1993.

Privately, embassy officials long have acknowledged that the case was
riddled with irregularities. After last year's Globe report, one US
official predicted, "I think we can win this one." He said the embassy was
likely to file a formal protest with the Mexican government.

However, sources said, the embassy's interest waned when the DEA informed
consular officials about intelligence reports alleging that Carmos was
observed somewhere in Canada in 1992 handing money to a man who later that
year was convicted of Ecstasy trafficking. The embassy has never said how
it was that Carmos, who admits to having met the man seven or eight times,
including once in Canada in 1990 but denies any wrongdoing had been
observed in the transaction.

Carmos said that when Benjamin B. Dille, one of the 13 arrest and
detentions officers who have handled his case, told him of his reputed
association with the convicted drug trafficker, he was incredulous.

Moakley ridiculed the theory of guilt by association. "Jesus, if you want
to follow me around, you're going to see a lot of strange people," he said.
"That's not enough."