EVERETT — After two years in jail, a man accused of leading an international drug trafficking ring was freed in the middle of his trial in February, when the case was dismissed because of a Snohomish County deputy prosecutor’s mistakes.
Five days into the trial, it became apparent that deputy prosecutor Elliot Thomsen withheld information that could have implicated another suspect, a possible violation of case law and the state’s rules of professional conduct.
As a result, Snohomish County Prosecutor Adam Cornell suspended Thomsen for five days and reassigned him to non-violent cases.
“This failure led to the dismissal of serious felony charges against a defendant that spent two years in custody awaiting trial following a lengthy, complicated, multi-agency investigation,” Cornell wrote March 30 in a disciplinary letter obtained by The Daily Herald in a public records request. “This conduct, if true, breaks down public confidence in the work this office performs on behalf of our community, as well as the trust our local law enforcement agencies have that their hard work will be reflected in the diligent prosecution of the case.”
Under a 1963 ruling in the U.S. Supreme Court case Brady v. Maryland, prosecutors must tell the defense about any evidence that could help to exonerate the accused. Failing to disclose “Brady material” can lead to a charge being dismissed or a conviction reversed.
In Washington state, the Brady decision is codified in the state’s Rules of Professional Conduct. The rules call on prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”
That includes information on other potential suspects.
According to the nine-page disciplinary letter, Thomsen failed to adhere to guidelines Cornell established last year, in response to another case that was dismissed in the middle of trial, because of another deputy prosecutor’s mishandling and possible Brady violations.
Public defender Natalie Tarantino, who represented defendant Juan Alberto Loya Ponce, commended Cornell for the thorough review and for taking action on an important issue.
“It’s a topic that deserves a serious response,” she said.
In addition to the potential Brady violations, she noted a number of issues with the state’s case, including unreliable translations from Spanish to English, an unorganized dump of evidence at the last minute, and a seeming lack of evidence tying the defendant to many of the alleged crimes.
“This case was just a cesspool of issues,” Tarantino said.
She said she was disappointed that the court declined to take any further action, such as ordering sanctions against the deputy prosecutor. Thomsen has been a licensed lawyer for six years, and he has been with the prosecutor’s office for three years. According to internal disciplinary records, he said his exclusion of information was a “good-faith mistake,” and that he didn’t act out of ill will.
Loya Ponce, 32, was charged with a dozen counts related to drug trafficking, including leading organized crime on Dec. 7, 2018, in Snohomish County Superior Court.
According to charges filed by Thomsen, the defendant sat at the top of an organization that funneled meth, heroin and fentanyl from his hometown of Nogales, Mexico — a city on the border due south of Tucson, Arizona — to Snohomish County. Loya Ponce was responsible for the general oversight, financing and final approval of major sales and new customers, Thomsen wrote. Loya Ponce’s groups reportedly changed phone numbers every few weeks, swapped out vehicles and rotated drug runners to avoid suspicion.
The investigation took two years and involved the Snohomish County Regional Drug Task Force, the FBI and the DEA. Their probe began with a confidential source who provided information in exchange for leniency on a criminal charge. That source described how the group from Mexico was selling several pounds of heroin, cocaine and meth in Snohomish County on a weekly basis. The detectives secretly recorded conversations, raided homes in Lynnwood and Mountlake Terrace, and gathered text messages and call logs from phones. They recovered more than 11 pounds of heroin, 13 pounds of methamphetamine, more than 3 pounds of cocaine and 3,000 counterfeit fentanyl-laced pills. They also seized tens of thousands of dollars in suspected drug money.
Undercover detectives never set up drug deals with Loya Ponce himself, but rather with his accomplices, according to documents filed in court. His alleged second-in-command, Misael Alberto Mendivil-Vega, purportedly set up deals, while Manuel Loya Soto and Roberto Montano-Armenta conducted the exchanges in person, charging papers say.
Manuel Loya Soto pleaded guilty to conspiracy to distribute a controlled substance in U.S. District Court in Seattle. He was sentenced Friday to five years in prison. Mendivil-Vega was charged in Snohomish County Superior Court with the same dozen drug trafficking counts as Loya Ponce. He is waiting for trial. Montano-Armenta also was charged in Snohomish County, with four counts of drug-related charges. He pleaded guilty in April 2019 and was sentenced to 2½ years in prison.
Undercover detectives met with Loya Ponce, Mendivil-Vega and Manuel Loya Soto at the Tulalip Casino on March 13, 2018. Loya Ponce spoke in Spanish. It appeared to detectives he was in charge.
Mendivil-Vega did most of the talking. At one point, detectives reported, he called Loya Ponce the “Big Boss.” He also referred to Loya Ponce as a brother, and said he was in Snohomish County on vacation, according to documents. Translations of the secretly recorded conversation, done by an officer who speaks Spanish, suggest Loya Ponce helped determine the prices of the drugs.
According to charging papers, Loya Ponce was connected to both the Lynnwood apartment and the Mountlake Terrace house where drugs were found following judicially authorized search warrants, and where suspected drug couriers were reportedly seen.
Detectives arrested Loya Ponce and his three alleged accomplices on Nov. 16, 2018, making headlines in local media.
Loya Ponce told the detectives — now no longer undercover — that he was from Nogales, where he owned an electronics store. He said he had been visiting Washington for the past 20 days, and hadn’t been in the state since the year before. He said he didn’t sell drugs. If the people he was with were involved in the drug trade, he said he didn’t know about it, according to charging papers.
A detective searched him and took his wallet. Inside were a Mexican passport, a U.S. Visa and two Catholic religious cards with an image of Jesus Malverde, what the detective recognized as “the patron saint of narcotics traffickers.”
Detectives also seized two phones. Loya Ponce didn’t have any drugs on him at the time of his arrest.
Much of the evidence linking Loya Ponce to drug trafficking was found on his cell phones. Detectives noted a “great deal” of photos and videos showing large amounts of illegal narcotics, such as heroin, meth and OxyContin pills. Videos reportedly showed Mendivil-Vega and Loya Ponce sorting hundreds of pills at a table that looks like the kind detectives saw at the house in Mountlake Terrace. There were dozens of photos of money deposit receipts, including wire transfers to people in Mexico, involving large sums of U.S. currency.
In Loya Ponce’s call logs were names of known drug customers and associates, detectives said. In messages, he and Mendivil-Vega reportedly talked about their “plebes,” or drug couriers, and discussed customers and how much they owed or how much they were buying. They also used their phones to communicate when drug shipments, concealed in packages containing ceramics, were arriving from Nogales, Thomsen wrote.
Messages also reportedly showed Loya Ponce commissioned what authorities call a narco ballad — a type of song popular with drug traffickers and cartels — titled, “I was nicknamed because of my curly hair.”
‘Agua’ and ‘birria’
As part of the court process known as discovery, Tarantino said the prosecutor’s office handed over more than 9,000 pages of evidence and an “unquantifiable” amount of media: recorded jail calls, text messages and voice messages — much of it in Spanish, much of it untranslated.
It wasn’t until the trial that Tarantino learned Thomsen may have withheld information. While questioning a DEA agent, she learned Thomsen wrote a letter to U.S. attorneys, agreeing not to prosecute another suspect, Cesar Loya Soto.
Cesar Loya Soto was instead prosecuted in U.S. District Court in Seattle, where he pleaded guilty to conspiracy to distribute a controlled substance. He was sentenced to three years in prison.
Looking at federal documents, Tarantino learned Cesar Loya Soto was associated with the house in Mountlake Terrace, and also that he had conducted business separately from Loya Ponce.
Some of the charges against Loya Ponce involved drugs and evidence found at that house. Knowing that someone else was operating a drug trafficking scheme at the same address “changed the complexion” of the case, Tarantino said.
Federal documents also show U.S. attorneys had a different opinion of Manuel Loya Soto’s position in local drug trafficking. Thomsen only describes Manuel Loya Soto as a kind of drug courier — the person who exchanged drugs in person with undercover detectives. U.S. attorneys alleged he played a more prominent role in another drug ring, in which he was a “high-volume pill distributor,” had people working underneath him and could negotiate prices with higher-ups in Mexico.
“This information completely undercuts the State’s theory in the instant case that he was receiving his supply from Mr. Loya Ponce or Mr. Mendivil-Vega and acting as a low-level courier,” Tarantino wrote in court documents.
Tarantino also questioned how detectives and prosecutors translated communications between Loya Ponce and the other suspects. They used an Everett police officer who spoke Spanish — someone who speaks with his mother in Spanish every day, and who took Spanish language classes in high school and community college — rather than a certified translator not connected to police.
According to Tarantino, the prosecutor attempted to use the officer’s translations in trial, as well.
That “doesn’t fly in court,” Tarantino said.
So, she said, a qualified translator started working on recordings Thomsen thought were relevant.
“When we got those, it did not match the officer’s translations,” Tarantino said. “ … It was startling how incorrect they were.”
According to court papers submitted by Thomsen, the officer had looked for code words in the defendant’s communications. For example, “agua,” or water, was meth. Because he was translating through the lens of law enforcement, Tarantino argued, he saw evidence of drug trafficking where there was none.
“There were some WhatsApp messages that talked about getting birria tacos,” Tarantino said. “He assumed they were talking about heroin instead of tacos. They were just meeting for tacos.”
As for the cards depicting “the patron saint of narcotics traffickers” and the ballad, those were excluded from being used as evidence due to pre-trial motions.
On the ninth day of trial, Chief Criminal Deputy Prosecutor Matt Baldock made the “difficult decision” to dismiss the charges against Loya Ponce. Cornell said he supported the decision.
This has happened before
This is the second time in Cornell’s tenure as the elected prosecutor that a deputy prosecutor has publicly come under scrutiny for mishandling a case and potential Brady violations.
A robbery case was dismissed in the middle of trial in June 2019. That winter, in an unusual 214-page decision, Judge Anita Farris ordered sanctions against deputy prosecutor Michelle Rutherford, finding she committed acts of willful misconduct, including withholding and destroying evidence, as well as threatening a witness into testifying.
As a result of those sanctions, Rutherford had to apologize to others in the case, take classes in legal ethics and read up on case law and professional standards.
After a “painstaking and thoughtful analysis” of the court record, Cornell chose not to discipline Rutherford, according to documents obtained by The Herald in a public records request. He said he didn’t agree with the judge’s conclusions, and that any issues with Rutherford’s handling of the case were addressed with “appropriate discussion, coaching, and training.”
Instead of disciplining her, Cornell doubled down on what he calls the prosecutor’s office’s ethical obligations. In January and February 2020, he and Baldock sent office-wide letters giving guidelines.
“The crux of both communications is that the office policy is to always err on the side of disclosing potential impeachment material,” Cornell wrote to Thomsen.
In his disciplinary hearing, Thomsen said he read the letters, but didn’t attend a followup training session. If Thomsen had followed the guidelines set forth in the memoranda, he likely could have avoided costly mistakes, Cornell wrote.
The guidelines say deputy prosecutors should sit down with the lead detective to make sure any and all Brady information is released. Thomsen didn’t do that, according to the disciplinary letter. As a result, he didn’t know detectives had obtained six search warrants to track the defendant — until the detective mentioned it during the trial.
Nor did Thomsen follow the guidelines when he didn’t release recorded conversations, or their transcripts, between a confidential informant, Loya Ponce and the alleged co-conspirators. Cornell wrote that safety concerns for a witness don’t justify the withholding of evidence. If there are concerns, a deputy prosecutor should seek a protective order.
Thomsen shifted blame to the detective, who expressed concern for the confidential informant, according to the disciplinary letter.
“Disclosure decisions are for the attorney, not the detective, to make,” Cornell wrote.
In the end, Baldock determined there was one definite violation of Brady law, when Thomsen failed to disclose that he wrote the letter of non-prosecution, in regards to Cesar Loya Soto.
According to the disciplinary letter, Thomsen said it didn’t occur to him to disclose the letter, and that he had no good explanation for why he didn’t. He had written the letter in the first month that he was assigned to work for the drug task force, he said, and he didn’t think at the time it was evidence that would have to be disclosed to the defense.
Thomsen acknowledged his take was wrong, according to disciplinary records. Thomsen reportedly said he wouldn’t have disclosed the letter, if Tarantino had not asked for it.
Cornell noted Thomsen had ample time to prepare for the trial — four months, at least — in which he could consider his obligations under Brady.
Talking to a Herald reporter, Cornell said his office remains committed to its ethical obligations, and that the office-wide letters he and Baldock wrote remain relevant to this day.
“The laws haven’t changed,” he said. “The expectations haven’t changed.”
Cornell maintained that the two mishandled cases don’t represent a pattern. He noted the dismissals took place 20 months apart.
“What we have are two regrettable incidences … where my office proactively dismissed cases and acknowledged the mistakes we had made,” he said. “That does not make a pattern of practice.”
Superior Court Judge David Kurtz did not pursue sanctions against Thomsen. He reasoned that due to the complexity of the case, a review of it would require “a large application of time, resources, and yet more discovery.” Taking on such a commitment “seems highly questionable,” he wrote, especially since the case has been dismissed already.
Kurtz, a former prosecutor, plans to retire this month.
“The ultimate for a defendant in a criminal prosecution has already been achieved here,” Kurtz wrote. “Mr. Loya Ponce has prevailed.”
Zachariah Bryan: 425-339-3431; firstname.lastname@example.org. Twitter: @zachariahtb.
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