The Conviction of the Honduran President in U.S. Court

To many Americans, Juan Orlando Hernandez would have been the perfect President. Elected as a conservative, he restored prayer to the public schools (as well as the National Police and the military). He instituted constitutional changes banning abortion and prohibiting gay marriage. Internationally, this President of Honduras was a key ally of President Trump in the troubled Central American region. In terms of the immigration from Honduras to the United States, President Hernandez took substantial steps to stem the flow of illegal immigrants into the United States, including the breaking-up of migrant caravans and the arrest of caravan organizers.

In a phone call with Vice-President Pence, the American Vice-President commended him on the steps he was taking as a strong American ally. When one of my favorite authors, Douglas Preston wrote Lost City of the Monkey God about a city lost for 500 years in the jungles of Honduras, it was President Hernandez who played a major role in the discovery of the archeological treasure.

Hernandez was elected to two consecutive terms in office and completed his final term on January 27, 2022. On April 21, 2022, he was extradited to the United States to stand trial for conspiracy to traffic narcotics and firearms. In March of this year, he was convicted of those offenses in the U.S. District Court for the Southern District of New York and now faces forty years in prison in the United States. Since he is now 54 years old, it is unlikely he will be released from custody before the end of his life.

Former Central American President, Manuel Noriega of Panama, may provide an example of Hernandez’s future. In 1992, Noriega was sentenced to 40 years in prison in the United States for essentially the same offenses as Hernandez. In 2007, he was released from U.S. custody to answer charges in France and Panama. He was eventually transferred to house arrest to prepare for surgery in Panama but died only a couple of months later in 2017. He was 83 years old at the time of his death.

So, how was it that Juan Orlando Hernandez ended up conspiring to traffic narcotics?

The Ever Presence of Drugs in Some Locations in Latin America.

There are certain aspects of life in some places in Latin America that Americans and Western Europeans normally find surprising. The first is that the importation of narcotics into the United States from Latin America occurs continuously. Thousands of tons of cocaine, heroin, and fentanyl, just to name a few, cross into the United States every day. They cross in trucks and cars through border check points. They enter the United States aboard ships in every major, and most minor, ports of entry. They are carried in planes, submarines, and drones. In short, they enter the United States in just about every way possible. Americans spend billions of dollars each year on these drugs, and much of this money finds its way into the hands of the various cartels that produce and sell these drugs.

In fact, before his death, Pablo Escobar was estimated to be worth $30 billion. Amado Carrillo Fuentes was a Mexican drug lord who was worth $25 billion. He died from complication related to plastic surgery indeed to completely redesign his face. Even the infamous El Chapo, the former head of the Sinaloa Cartel, was worth more than a billion dollars at the time of his arrest. These are simply the amount accumulated by some drug dealers. Narcotics organizations themselves move far more cash than that accumulated by their leaders.

If one then looks at the GDP of Honduras, $69 billion in 2023, spread out amongst the country’s ten million inhabitants, the relative financial power of the cartels becomes quickly apparent. In fact, U.S. financial aid to Honduras, at just over $200 million per year is likely a fraction of the amount of money drug cartels spend in Honduras. In fact, money spent by drug cartels to bribe officials is likely more expensive than U.S. aid since American aid goes to a wide variety of programs intended to help the Honduran people.

Drug cartels blunt effective law enforcement, corrupt government officials, and undermine independent judiciaries. Over time, the governments of the countries where cartel operations are common become subservient to the cartels, and the people they are supposed to serve become forgotten. In Honduras, El Salvador and Guatemala, cartels from Colombia and Mexico assert strong control over society and, unfortunately, work with local criminal organizations to further their own control over society. There are no police local victims can go to, no governmental organization that can help. Cartels and the crushing impact they have on legitimate business operations are a significant cause to the illegal immigration from Central America to the United States.

Juan Orlando Hernandez and his involvement with Narcotics Trafficking.

The Indictment against Hernandez alleges that between 2004 and 2022, he participated in a Violent drug conspiracy to transport cocaine from Colombia and Venezuela to the United States. As the former-President of Honduras, he used Honduran law enforcement and military personnel and assets to support drug operations in Honduras, Mexico, and other places in the Americas. The U.S. Attorney for the Southern District of New York, in a DOJ Press Release, said that Hernandez “. . .partnered with some of the world’s most prolific narcotics traffickers to build a corrupt and violent empire based on the trafficking of tons of cocaine to the United States.”

Some of the specific allegations in the Superseding Indictment allege that Hernandez protected his brother, then a Congressman in Honduras by preventing his investigation, arrest, and extradition to the United States. He also disclosed sensitive law enforcement and military information to drug traffickers to assist them in transporting cocaine to the United States. In addition, he is alleged to have used members of the Honduran National Police and the Honduran military to protect drug shipments that moved through Honduran territory. Hernandez also resorted to the use of violence to kill, injure, and intimidate anyone who interfered in this criminal enterprise. For his services to drug cartels, Hernandez was allegedly paid millions.

He was convicted in the Southern District of New York on March 8, 2024, and faces sentencing on June 26, 2024. He faces a likely sentence of life in prison and joins a long list of political leaders from Central America and the Caribbean who have been convicted in U.S. Courts.

The conviction of Juan Orlando Hernandez represents a major victory for DOJ and the U.S. government over the drug trafficking cartels of Latin America. . .or does it? Who, really, is Hernandez, and, more importantly, what is his history with the United States?

Honduras is among the poorest countries in the Western Hemisphere, and for much of the past two centuries has had a deeply unequal relationship with the U.S. There are those who say that despite Hernandez’s ultimate conviction, he was for years a loyal client of the United States. In 2009, the Center-Left government of Honduras was removed from power by the Honduran military, based upon an order from the Honduran Supreme Court. At issue was a proposal by then President Manuel Zelaya to re-write the Honduran constitution.

While Zelaya’s conduct may be debatable, the result was a significant shift in Honduran politics. In elections held later that year, Portfolio Lobo was elected President with Juan Orlando Hernandez, a close Lobo ally, becoming President of the Congress. Under the new regime, Honduras became plagued by violence. By 2014, Lobo’s son, Carlos Arnoldo Lobo, was indicted on drug trafficking charges in the Southern District of Florida and sanctioned by the U.S. Treasury’s Office of Foreign Assets Control (OFAC). Cartel related homicides in Honduras helped drive its murder rate to the highest in the world.

Juan Orlando Hernandez, however remained popular, and, in 2013, he was elected President of Honduras. Four years later, he was re-elected after a change to the Honduran constitution. While it now appears that Hernandez may have been under investigation for narcotics trafficking since almost the time of his election, he nevertheless enjoyed the support of President Obama’s administration, as well as that of Donald Trump. Despite private comments from Hernandez that he “wanted to stuff drugs up the noses of the gringos”, then President Trump said he was “stopping drugs at a level that has never happened”.

Of course, no evidence of American support for Hernandez was mentioned at his trial, and it will likely not play any role in his sentencing. It is, however, part of the tapestry of international drug dealing in Central America.

Defending a former President.

As I write this blog article, the former-President of the United States sits in a state courthouse in Manhattan experiencing his own trial, and it reminds me that representing a former-President must be among the most challenging of tasks that any criminal defense lawyer can perform. Presidents, more than anyone else in the world, are used to giving orders. They are less used to being subject to the authority of courts than anyone else in the world. To be clear, the Constitution of the Republic of Honduras does not grant a former-President immunity from prosecution, and Juan Orlando Hernandez’s immunity stemming from his appointment to the Central American Parliament did not prevent his extradition to the United States or his prosecution and conviction in the United States.

But, hypothetically at least, what are some of the defenses Hernandez could have raised in New York?

One defense that comes to mind is duress. Duress refers to the application of unlawful force or violence, or the threat of unlawful force or violence, to compel a criminal defendant to do something that he or she would not normally do. It is a defense we have used in narcotics distribution cases with varying degrees of success, but basically, it requires a defendant to acknowledge guilt argue that his free will was overborne by the fear of death or serious bodily harm, either to the defendant or a close family member. It is a defense that we sometimes raise, and several years ago, I wrote an article entitled “’I’ll Make Him an Offer he Can’t Refuse’: Understanding Duress as a Defense in the Age of Organized Crime”, which, as the title implies, discusses the duress defense.

The problem with a duress defense, at least if the allegations of the Indictment are true, is that, as President, Hernandez commanded the military and the national police. He also had direct access to the highest levels of the U.S. government, and, again according to the Indictment, was actually running narcotics trafficking operations himself. He is not in the same position as many of the defendants we have represented who were forced to work for narcotics cartels.

Of course, as with any defendant, Hernandez could simply deny involvement, or say nothing, and then rely upon defense counsel to question the government’s witnesses, expose their true character, and argue that the government had not proven its case “beyond a reasonable doubt”. This type of defense, however, is based entirely on the specific facts of the case and can often be a challenging defense to make. Sometimes, however, it is the only defense that can be made.

It should also be noted that sometimes, when there is no defense, it may be appropriate to cooperate with the government. When one is working with Colombian or Mexican drug cartels, however, cooperation has significant risks and rewards. On the positive side, a well-placed source can have information that would be of great value to the U.S. government, and if defense counsel understands how the government operates and knows how to negotiate with the government, it is possible to obtain miraculous results for a client, sometimes reducing a life sentence to no more than a few years.

But cooperation also carries with it significant risks. A person in custody in the United States may have a certain degree of protection from foreign drug cartels, but friends, family members and other people associated with the defendant can be tortured and killed if a defendant cooperates. As one of our clients once said more than a decade ago, “they will kill even my dog”. It is common for people charged with narcotics offenses to go to trial or plea guilty without a plea agreement rather than to cooperate. Sometimes the risk of death—the deaths of parents, spouses, or children—is simply too great.

Conclusion.

The important thing to remember is that all defendants, regardless of where they are from or who they are, deserve the best defense available. At Boyle & Jasari, LLP, we take this obligation seriously, and we do everything in our power to defend everyone we represent, whether it be before trial, at trial, or on appeal. It doesn’t matter if you’re a former President or accused of being a minor participant—our obligation is the same.