On March 23, 2002, Edgar Rivas, a seaman aboard a foreign freighter, the M/V Antwerpen, was indicted by a federal grand jury in the Southern District of New York on charges of smuggling more than 5 kilograms of cocaine on board the ship traveling from Venezuela to the United States.
Rivas, Genebraldo Pulgar-Sanchez, and Ruddy Garcia, Rivas’s cousin, were serving as seamen on the vessel. Rivas initially shared a cabin with Pulgar-Sanchez, but later roomed with Garcia after Rivas and Pulgar-Sanchez had a falling out. The ship initially sailed from Venezuela to Nova Scotia, back to Venezuela, and then to Newburgh, New York.
When the ship arrived at Newburgh, customs agents searched the cabin shared by Rivas and Garcia, acting on a tip from Pulgar-Sanchez, relayed by the ship's captain, that Rivas and Garcia were attempting to smuggle narcotics into the United States. Nothing was found. The captain then questioned Pulgar-Sanchez, who told him that the drugs were in the cabin that Rivas and Garcia shared, hidden in the ceiling and beneath the sink.
Customs agents returned and found cocaine above the ceiling tiles and beneath the sink, and Rivas was arrested.
He went on trial in January 2009. Pulgar-Sanchez testified that on the Antwerpen's earlier voyages from Venezuela to Nova Scotia and back to Venezuela, he and Rivas had shared the cabin in which the drugs were found. He had seen Rivas hide drugs above the ceiling tiles and under the sink before the ship arrived in Nova Scotia. He said that Rivas had delivered some drugs while the ship was docked in Nova Scotia.
Pulgar-Sanchez testified that he had a falling out with Rivas on the voyage back to Venezuela and showed drugs hidden in Rivas’s locker to the ship’s engineer. As a result, Pulgar-Sanchez was switched out of Rivas’s cabin. When the ship returned to Venezuela, Garcia joined the crew and was assigned to Rivas's cabin. After the Antwerpen departed for Newburgh, Pulgar-Sanchez said he told the captain that Rivas was hiding drugs in his cabin, leading to the searches.
Before Rivas's trial, customs agents questioned Pulgar-Sanchez regarding the drugs aboard the Antwerpen. Pulgar-Sanchez initially denied any involvement in drug trafficking, but later admitted that he had helped Garcia with drug trafficking on the Antwerpen during earlier voyages to New Orleans and Baltimore. As a result of his initial statements, Pulgar-Sanchez was convicted of making false statements and was sentenced to six months' imprisonment. At Rivas's trial, Pulgar-Sanchez acknowledged that the prosecution had given him immunity from prosecution for drug trafficking, had agreed to speak to his employer on his behalf, and had agreed to send him back to Venezuela without formal deportation proceedings, all in exchange for his testimony against Rivas.
Rivas’s defense theory was that Pulgar-Sanchez had hidden the narcotics in the cabin. Indeed, on cross-examination, Pulgar-Sanchez admitted that he had sailed with Garcia several times and that they had roomed together; that he had known that Garcia had unloaded drugs from the Antwerpen in New Orleans but had not told the captain; that he had picked up a bag of drug money for Garcia in Baltimore, for which Garcia had paid him $1,000; and that his falling out with Rivas had occurred when other crew members had told him that Rivas had told the captain that Pulgar-Sanchez was hiding drugs on board the ship.
Finally, Pulgar-Sanchez testified that his last meeting with Government officials to discuss his trial testimony had occurred on January 3, 2003, the Friday before the trial had begun on Monday, January 6, 2003.
Rivas’s attorney contended that Pulgar-Sanchez had falsely accused Rivas of drug possession after Rivas had accused Pulgar-Sanchez of the same offense.
Rivas was convicted on January 9, 2003 and was sentenced to 10 years and one month in prison.
After the trial, a government translator revealed to defense counsel that Pulgar-Sanchez had met with federal agents on January 6, 2003, the first day of the trial—after January 3, which Pulgar-Sanchez had testified was the date of his last meeting with the agents.
At this previously undisclosed interview, Pulgar-Sanchez said that he had carried onto the Antwerpen the cocaine that was found in the Rivas/Garcia cabin. Prior to the ship's departure from Venezuela for Newburgh, a small launch had come alongside, and the people on the launch had given a package to Pulgar-Sanchez to be delivered to Rivas. Pulgar-Sanchez stated that he believed the package contained alcohol and had hidden it. According to Pulgar-Sanchez, when Rivas retrieved the package, he told Pulgar-Sanchez that it contained drugs.
Rivas’s attorney informed the prosecution and an investigation was begun. Ultimately, the prosecution concluded that the evidence was not exculpatory as to Rivas because Pulgar-Sanchez had denied knowing what the package contained when he received it and had claimed it belonged to Rivas. The prosecution contended the evidence further proved Rivas’s guilt. The prosecution said it did not bring the facts out for “tactical reasons” and that to restructure Pulgar-Sanchez’s testimony at the last minute would have confused him.
The defense filed a motion for new trial that was denied.
On July 26, 2004, the U.S. Court of Appeals for the Second Circuit disagreed and set aside the conviction and ordered a new trial. “Rivas should have had the opportunity to bolster the defense theory of Pulgar-Sanchez’s guilt with evidence that Pulgar-Sanchez had brought the narcotics on board,” the court ruled. “The (prosecution’s) ‘tactical reason’ for non-disclosure-that having Pulgar-Sanchez recount his receipt of the narcotics ‘might well have confused him’-is totally unacceptable.”
On August 5, 2004, the charges were dismissed.
– Maurice Possley