In Pursuit of Willy and Sal, Part Two
On the morning of January 6, on the ninth floor of the James Lawrence King Federal Courthouse, the man for whom the building was named, Senior U.S. District Court Judge James Lawrence King, presided over what will long be remembered as one of the more bizarre moments in South Florida's legal history. The occasion was the criminal trial of Miguel Moya, the erstwhile foreman of a jury that three years earlier had acquitted a pair of infamous cocaine smugglers, and who now stood accused of taking a bribe in that case. Joining Moya in the dock were his parents, Jose and Rafaela, charged with helping their son launder the alleged payoff.
Their defense would be as novel as any seen in a federal courtroom in the Southern District of Florida, a uniquely Miami-style strategy that poked a hole in a case many prosecutors thought was puncture-proof. But that would come later in the day.
At 10:00 a.m. Judge King summoned the jury and instructed prosecutors to proceed with their opening statement. "In October of 1995 there commenced a trial in the United States District Court here in the Southern District of Florida," Assistant U.S. Attorney Edward Nucci began. "It was a trial of the United States versus Augusto Guillermo Falcon, Willy, and Salvador 'Sal' Magluta. It commenced before the Honorable Federico Moreno in this very courthouse. Those defendants, Falcon and Magluta, were charged with running a continuing criminal enterprise in the narcotics business. The allegations were that they ran this enterprise from 1978 all the way through 1991. That they were drug kingpins, in other words. The allegations were that they made in excess of two billion dollars running that drug enterprise.
"And in that trial a jury was impaneled, much like you today. They were sworn to try the case well and fairly, as you have been. But the government will prove to you ... that there was a traitor to the due administration of justice on the jury in the Falcon and Magluta case.
"There was someone who was bought and paid for by the Falcon and Magluta organization who was not going to try that case fairly and impartially, who had received money in exchange for sitting as a juror. And the government will prove that that individual is the defendant, Miguel Moya."
As Nucci uttered these last words, he turned to Moya. Pointing at the defendant, the prosecutor paused long enough for jurors to take full measure of the man on trial. Their eyes followed Nucci's outstretched index finger until they fell upon the 36-year-old Moya. It was easy to be unimpressed. Short, balding, and overweight, Moya's body seemed constantly at odds with the business suit he wore every day to court. The only thing Moya seemed to wear naturally was a look of contempt.
Nucci continued with his presentation, outlining the government's case, both its strengths and its weaknesses. On the negative side, Nucci conceded, prosecutors would be unable to tell jurors specific details of how the bribe was paid or even the precise amount. "The government," he said candidly, "does not have evidence of someone from the Falcon-Magluta organization coming in here, getting up on the stand and saying, 'I'm the guy that was the middleman. I paid Miguel Moya a bribe of several hundred thousand dollars.'"
Instead the government would rely on two critical pieces of evidence. First prosecutors would delve into the finances of the Moya family. Before the Falcon-Magluta trial, Nucci maintained, the Moyas struggled to pay their bills and maintain a modest, middle-class lifestyle. After the trial, however, their financial concerns seemed to vanish. In late 1996 Miguel Moya and his parents bought a $198,000 house in the Florida Keys and paid off the fifteen-year mortgage in less than three months. The family purchased a speedboat for $31,000 in cash. They spent thousands more on furniture, jewelry, and new cars. All that money had to come from somewhere, and the only logical source, Nucci argued, was the Falcon-Magluta organization.
The second crucial element of the government's case was a fifteen-minute videotape in which an undercover FBI agent, posing as a member of the Falcon-Magluta organization, confronts Moya and tricks him into making statements that, in the prosecutors' view, were tantamount to a confession. "He [Moya] will be a witness against himself," Nucci promised in conclusion.
King then ordered a brief recess to allow defense attorneys to set up exhibits for their opening statement. In the interim the gallery buzzed over Nucci's strong performance, which lasted nearly an hour. It was a sympathetic crowd. More than two dozen federal agents, prosecutors, and other employees from the U.S. Attorney's Office (which occupies the seventh and eighth floors of the court building) had packed the courtroom in a show of support for a case U.S. Attorney Tom Scott declared was one of the most important prosecutions of his tenure.
Winning a conviction against Miguel Moya would permit some members of Scott's office to rewrite the history of their failures in the 1996 trial of Willy Falcon and Sal Magluta. And as New Times reported this past week, a conviction could also help buttress a new racketeering indictment prosecutors are preparing against Falcon and Magluta.
The Moya defense team consisted of Paul McKenna, Curt Obront, and Ana Jhones. Obront spoke first. "February 16, 1996, the government lost one of the biggest drug cases in history," he began. "Rather than accepting that not-guilty verdict, the government began an investigation of the jury in that case. And here, ladies and gentlemen, today is the result of that investigation, someone that they refer to as a traitor, or the government's scapegoat, Miguel Moya."
Obront claimed the government was desperate to blame its loss of the Falcon-Magluta case on someone, anyone. "The government began their investigation of the jury -- not just Miguel Moya, but other jurors as well -- almost immediately after the verdict," he declared.
"So why are we here, ladies and gentlemen? Why is it that Miguel Moya is sitting here with his parents, charged with bribery and laundering bribe money? Why? The answer is the spending. Through the investigation with the IRS, FBI, Metro-Dade, Florida Marine Patrol, U.S. Attorney's Office, every agency imaginable -- there are probably some I don't know about -- they saw spending. They were convinced, 'Ah, this must be evidence of a bribe.'
"Ladies and gentlemen, Miguel Moya never took a bribe from anybody. There is an explanation for that spending that the government has not told you about in their opening statement," Obront continued. "Now that my client is sitting here, charged with bribery and laundering bribery proceeds, and he's faced with this situation, it's the moment of truth."
Obront paused, allowing the word truth to hang in the air for a moment.
"The Moya family, ladies and gentlemen, has a past that they are not proud of, that they didn't discuss outside the family," he said mysteriously. "And that past, ladies and gentlemen, really stems from my client's cousin, Ray Perez. Who is Ray Perez? Ray Perez is a former City of Miami cop who was a major drug trafficker. Back in the mid- to late 1980s, he was involved in major drug trafficking."
Perez had recruited Miguel and Jose Moya to help him. "They made hundreds of thousands of dollars, ladies and gentlemen," Obront said. "They are not proud of it. They did it back then."
When Jhones rose to speak, she followed the same path. "This is not a case about bribery," she stressed. "This is not a case about laundering bribery proceeds. This is a case about the truth -- a truth that is not a very nice truth. A cold reality that one is not proud to admit to."
A cold reality? Who possibly could have imagined a defendant walking into court and arguing that his ill-gotten riches were not the result of a hefty bribe but rather from drug trafficking? And having made that claim, hope it would earn him the sympathy of a jury?
When the defense attorneys finished their opening statements, prosecutors could only shake their heads in amazement. One prosecutor watching from the gallery summed it up wryly: "Another Miami moment."
The government's star witness was FBI agent Jack Garcia, a Cuban-born undercover specialist who has been with the bureau for nineteen years and is currently assigned to its Queens office in New York. Garcia strolled into the courtroom like a leading man on the opening night of a Hollywood blockbuster, but this production went straight to video. Indeed his stage presence was palpable; people could not take their eyes off him. If he seemed larger than life, it's because he actually was.
When defense attorneys asked Garcia how tall he was, he growled, "I'm very tall." And when they asked how much he weighed, he brushed it off with: "I haven't really weighed myself in a while." Pushed for an answer, he finally estimated his weight to be between 360 and 370 pounds. That was conservative.
"You are much bigger than Mr. Moya, correct?" Paul McKenna asked.
"Yes," Garcia replied.
Size was obviously a factor in selecting Garcia for the undercover assignment. "They wanted a person who did not look like an FBI agent," he said, "and here I am." Garcia readily admitted he was brought in to dupe Moya into admitting he took a bribe. An earlier effort by the FBI had already failed. In that instance the feds dispatched an attractive female undercover agent named Raquel to flirt with Moya and go salsa dancing with him in hopes he might pass along incriminating information. It didn't work.
Garcia's role would be ominously different. He would play the part of a messenger from the Falcon-Magluta organization, a fixer, a man who could make problems disappear. Once he gained Moya's confidence, he would get him to acknowledge the payoff.
Garcia was briefed by agents overseeing the investigation in July of last year, then wired with a hidden microphone. Garcia testified he intercepted Moya, an airport ramp mechanic, as he was getting off work at Miami International Airport. The encounter took place in the employee parking garage and was videotaped from a nearby van.
Halfway through Garcia's testimony, prosecutors began playing the tape. As the lights dimmed, jurors turned their attention to a pair of large-screen televisions wheeled in front of the jury box. The quality of the videotape was extremely poor. The sounds of other cars screeching through the parking garage at times made the audio impossible to understand. And the inadequate lighting made it difficult to identify the grainy faces of the people being filmed.
Nevertheless in a few moments jurors saw the outline of a hulking figure, agent Garcia, and a smaller figure of a man they were told was defendant Miguel Moya.
"Oye, Miguel," Garcia says as Moya approaches his car, "do you know me? My name is Manny. We have mutual friends. Do you know me? No? I know you."
The conversation takes place mostly in Spanish. English subtitles appear across the bottom of the screens and jurors' eyes dart between the pictures and the words.
"The friends that we have advised me that I should come to talk to you," Garcia says. "Because now there is a serious situation. It's that the IRS and the FBI are investigating you." Garcia positions himself in such a way as to block Moya from getting into his car. He tells Moya he's there to help him, and produces a copy of a supposedly confidential FBI memo that identifies Moya as a target of the investigation. The memo, jurors had already been told, was a phony, created by Garcia to use as a prop.
"This is something that our people have obtained via the FBI office," Garcia tells Moya. "Okay? These are the charges they're going to make against you. This is for the money that we gave you." Garcia tells Moya the FBI already knows about the house he bought in the Keys, as well as the boat.
"I haven't bought any of that," Moya retorts.
"You don't have that house. That's not your house?
"No. That's my parents' house."
The two men argue for a moment until the agent asks, "Who knows? Who did you tell that we paid you? Who?"
"Nobody," Moya says.
"Nobody?" Garcia repeats.
"Nobody knows that anybody paid me. I don't have anyone's money."
"Now, okay, Miguel, let's --"
"Oh, but I don't know who you are."
"Okay, Miguel," Garcia says, trying to reassure him. "Listen, guy, listen. I came here to help you. I'm not your enemy here. Understand? If I don't help you, you're screwed."
"But who are you?"
"Who do you think I am?" the undercover agent asks. "Willy and Sal's people sent me here to talk to you." He tells Moya that if he cooperates and answers his questions, he'll be able to help him establish an alibi for the money Falcon and Magluta gave him.
"I don't know what you're talking about," Moya counters.
"Listen to me, please," Garcia continues. "If you don't help me in this way now, I'm just going to New York. I don't care. I'll go to New York and I'll tell the people, 'Look, this man says that he doesn't know anything. He doesn't want to help us out.'"
Moya says he can justify all the expenditures his family made.
"Okay," Garcia replies, "so let me understand this. So you're telling me that you don't need our help."
"I really don't know who you are."
"Okay, all right. Suffice it to say I'm Willy and Sal's friend. They sent me from New York to talk to you in order to help you if you need our help. Now, this is real easy for me. For me your problem is Willy and Sal's problem. But if you're telling me now that you've got everything done, I'll tell them."
Moya tells Garcia he is going to hire a lawyer. The agent says that sounds like a good idea, but quickly turns the conversation back to the money. "How much of the money do you have left?" he asks. "Did you spend it all?"
"I don't have any money!"
"Did you spend all the money?"
"I don't have any money!"
"Okay, hold up. I'm trying, brother --"
"I don't have any money! I don't have any money! I don't have any money!"
"Did you spend it all?"
"I don't have any money!"
They continue to spar until Garcia asks if Moya knows the names of the people providing information about him to the government. Garcia once again shows Moya the phony FBI memo and points to a list of code names given the witnesses against Moya. "Let me ask you something, Mike," the agent wonders, "who are these fucking people?"
"I don't know."
"Are they other jurors?"
"I couldn't change the minds of eleven other people on that jury."
Garcia begins to grow impatient, and he tells Moya: "If they get you, they'll get Willy and Sal."
"Nobody received any money."
"So, are you going to continue with that story?"
"I'm telling you that nobody, nobody knows about anything."
"Excuse me? Nobody knows anything? Are you going to admit it to me now? Yes or no? You've got to tell me the truth because if not I'm going over there to tell those people that you're playing games, brother. I don't want to do that to you."
His words undoubtedly struck Moya as ominous.
"I'm going to give you my beeper number," he continues. "I'm going to be here until Friday. After that you're on your own."
"Look, you have to have trust in me because I'm the only person you've got."
"If you ain't got me, bro, you ain't got dick. I'm here to help you. Did you see the movie Pulp Fiction."
"Then go get it tonight. Go look at the movie Pulp Fiction. There's a guy there they call Wolf, okay? You know what his job is? To fix things. That's what I do, bro. I'm here to help you, because if I help you, I help them," Garcia says, referring to Falcon and Magluta. "And don't take this personally [but] I don't give a fuck about you. I care about them. But I'm afraid that you'll go in because they've got you on this thing. And [then] my fucking people are in trouble and that means that I didn't do my job right. And I'm here to do my job right."
"Now, you tell me. I'll give you my beeper number. My name is Manny. I'm going to be here until Friday. Now, I want you to think about this. But let me tell you one thing. I have to report to these people today. What am I gonna tell them today? I'm going to tell them that I saw you. Now, I'm going to tell them --"
"Yeah, that they're investigating me and that they went to my home and they went all the way up where my sister lives, up there in Orlando. They went to see my father-in-law and my mother-in-law. They haven't come to see me yet, but I guess when they come to see me, it's to take me in."
"So what are you gonna do?"
"I don't know."
"Are you gonna talk?" Garcia asks, his tone growing colder with each question.
"No," Moya says. "Oh, no, brother. That's with me."
"All right, I mean I have to think about --"
"No, no, no."
"'Cause these people are -- you know what I mean, bro?"
"No, this goes down with me."
"If they offer you some --"
"No, no, no," Moya interrupts. "If they give me twenty years, I'll take the twenty years."
"So the secret is between the two of us."
"Yeah. Well, it's, uh --"
"Step up to the plate, bro."
"I'm there," Moya says.
Garcia again asks Moya if he'd like help explaining his expenditures. This time Moya says yes.
"Okay, then," the FBI man says, "we'll go sit down with the guy and we'll have a talk, man."
"That's what I'm talking about, man. I'll get you a person, you know, an accountant who will sit there with you and go, 'Bam, bam, bam. This is how we'll justify this. This is how we'll justify all the money.'"
"But you already spent it all? Damn, what a son of a bitch you are."
"No, brother. I left it -- I gave it all to my family."
"Aw, man, you should have fucking kept some, bro."
"I gave it all to my family."
Garcia asks who Moya told about the bribe, which he refers to as "our payments."
Garcia reminds Moya to use the beeper number. "Okay, you call me tomorrow," he says. "We'll get together and we'll resolve it."
As Garcia walks to his car the surveillance camera zooms back to capture the two men as they separate. "Don't do anything crazy," he tells Moya before driving off.
"Okay," Moya replies.
The videotape may have been the centerpiece of the government's case, but it wasn't the only incriminating evidence presented. Prosecutors went into mind-numbing detail chronicling the Moya family's spending habits. In his opening statement, Nucci had warned jurors that the financial testimony could become tedious, and he was right.
Day after day prosecutors presented boxes of financial records in an effort to prove that Moya and his parents were spending more money than they could have possibly brought in from their nine-to-five jobs.
The defense's response was: "So what?" They weren't denying that the family's wealth came from an illegal source, but it was cousin Ray's drug smuggling, not a bribe from Falcon and Magluta.
Another potential pitfall for prosecutors was the testimony of Moya's ex-wife, Virginia Perez. They knew from their dealings with her that she would be a difficult and reluctant witness. But they also knew that if the jury believed her testimony, then Moya would be easily convicted.
Assistant U.S. Attorney Julie Paylor led the questioning. Virginia Perez (no relation to Moya's cousin Ray Perez) told jurors she and Miguel were married in 1987, had two kids, and were divorced in February 1998.
Perez then testified that during the Falcon-Magluta trial something strange occurred. "It was sometime before the trial was over," Perez said. "He had received a phone call, whatever, he had to leave, he left and came back with a bag of money."
"Well, let's talk about some phone calls," Paylor suggested. "Did he receive phone calls during the trial?"
"From whom? Tell the jury what you remember about the phone calls."
"It was just a couple of phone calls from a gentleman. Finally at one time I found out the name was Eddie."
"Did you know this Eddie?"
Following one of the calls, Moya said he had to go out and would return later. "When he got home," Perez continued, "I was asleep. I heard the door and I just went to see him."
"He showed me he had brought in a bag of money."
"And what did he say or what did you say to him?"
"What it was for."
"You asked him what it was for?"
"And what did he say?"
"It was, it was for the jury, in order to persuade the jury for a -- in order to -- one moment. In order to persuade the jury for a not guilty conviction or to plead -- I don't remember exactly the words. But it was in order to persuade the jury."
"Now, when your husband told you he got this money to persuade the jurors, what did you say to him?"
"That it was crazy."
"And was that the only time money came into the house?"
"What I can recall, I think there was another time that some more came in, but it just wasn't, wasn't that much. But I can't recall. It was -- I believe it was after the jury was over."
Although Perez's testimony was explosive, her demeanor on the witness stand sharply undercut her credibility. Her voice was flat and difficult to hear. She refused to make eye contact with the jury, and hung her head down, causing her blond hair to cover portions of her face. Her uncertainty about such memorable events raised doubts about her veracity, and at times it seemed she didn't completely believe what she was saying.
"Did you ever ask Mike how much money there was?"
"I think at one point I had asked him how much it was worth or how much he had gotten, and he just got upset at me.... He got upset with me and he just tossed different amounts."
"He got angry or upset with you for asking?"
"Yeah, I usually didn't ask those questions. I never asked anything about the jury or the trial. I wasn't interested." She claimed Moya eventually told her different amounts. Sometimes he claimed to have received $100,000 or $200,000, she testified. Another time he mentioned $500,000, she said.
As Perez spoke she became increasingly difficult to understand, until finally Judge King stepped in.
"I don't think the jury is hearing hardly anything she's saying," he observed, evidently annoyed. "Can we get her to speak up? They can't hear her answers." Turning to Perez, King continued, "You've answered the question a half-dozen times where the money came from. I haven't heard you yet."
Obviously frustrated, King then took over questioning Perez. The 71-year-old judge is notorious for shanghaiing witnesses, and in a matter of minutes he had fired off more than two dozen questions for Perez. Julie Paylor could only stand quietly to the side and wait for the judge to finish. When it was over, however, the damage had been done.
Under questioning from King, Virginia Perez estimated the ten or fifteen bundles of cash her husband brought home one night contained no more than $30,000 -- far from $500,000, and certainly nowhere near enough to buy a $198,000 home in the Keys. Paylor tried asking Perez a few more questions, but within minutes King jumped in again, humiliating both the witness and the prosecutor. Eventually Paylor just gave up.
Perez was already a wounded witness when defense attorney Curt Obront began his cross examination. Any sympathy Perez might have elicited from jurors Obront sought to destroy by noting that during her marriage to Moya, she had an affair with a married City of Miami police officer.
Obront's main goal, however, was to undermine her story about Moya coming home with a bag of money during the Falcon-Magluta trial. Federal agents interviewed Perez on several occasions during the summer of 1998, but each time she denied her ex-husband had done anything wrong. On July 29 that changed, and Perez agreed to become a government witness. Obront wondered what happened on that day.
"How many agents came to your house before you went to the FBI office?" he asked.
"They didn't come to my house," she said.
"Where did they meet you?"
"Okay. You met them on I-95. They called you or beeped you? How did they meet you?"
"They were following me from Boca."
"Oh, okay. There wasn't any kind of a chase, was there?"
"Give or take, yes."
Perez said she was eventually stopped on the roadway by as many as eight federal agents. "Would it be fair to say you were a little intimidated by all those agents at that time surrounding you?" Obront asked.
"At that time I didn't know what was going on."
Following the car chase, Perez was taken to FBI headquarters in North Miami-Dade, where agents told her the only way she could avoid going to jail would be to cooperate. They showed her the videotape of the FBI's Jack Garcia talking to Moya, emphasizing that portion of the tape in which Moya claimed he told her about the bribe. They introduced Perez to Raquel, the salsa-dancing female undercover agent. And they told her how Moya frequented brothels.
Agents then told Perez that if she didn't turn against Moya, her parents could be indicted for money laundering because Perez gave them some of the cash.
"You were told you had two choices," Obront summarized. "One, to cooperate, or two, to be indicted because you were a target of this investigation, right?"
Prosecutors took a week to present all their witnesses, then turned the floor over to defense attorneys. By this point in the trial, the defense strategy was well-known. Obront had laid it out for jurors in his opening statement, and now it was time to deliver. Their case was going to center on one witness, Ray Perez.
A former City of Miami police officer, Perez had left the force in 1984 after just four years. "I didn't want to be a police officer anymore," Perez told jurors.
"What business did you get into after you left the police department?" asked defense attorney Paul McKenna.
"I got into the business of the drug world, narcotics. I was involved in importation of a large amount of cocaine from Colombia, through Mexico, into the United States."
Between 1984 and 1988, Perez claimed, he helped smuggle nearly 5000 kilos of cocaine into the country in ten separate trips. The cocaine would be flown from Colombia to a secure landing strip in southern Mexico, he disclosed. The drugs would then be hidden inside motor homes and driven across the U.S. border by American senior citizens. Once inside the United States, the coke was shipped to either Miami or Los Angeles for distribution. Perez testified he received between $120,000 and $150,000 for each successful trip.
In addition to smuggling drugs across the border, Perez told jurors he was also responsible for sneaking cash out of the country. Neither Perez nor his boss, David Posada, wanted to keep a lot of money in Miami, so both began sending their dollars to family members in Mexico for safe keeping.
"And who did you use to transport that money back to the Mexican border?" McKenna asked.
"I used my uncle and my cousin," Perez declared. "They did about fifteen money trips." Perez said Miguel and Jose Moya were paid between $25,000 and $30,000 per trip.
In addition to having his uncle act as a money courier, Perez once asked Jose Moya to stash 400 kilos of cocaine at his house. Perez told the jury he was in a bind, there had been a foulup involving a delivery, and he needed a place to hide the coke. Jose Moya agreed, and Perez testified he gave him $100,000 for his assistance. Perez also testified that his cousin and uncle had been involved in smuggling marijuana from the Bahamas to the Florida Keys by speedboat. Based on Perez's testimony, the Moyas would have earned well in excess of $500,000 during the Eighties; more than enough to cover their spending in the Nineties.
Perez also recalled that the Moyas kept their money in a floor safe. As part of their case, defense attorneys went to the house the Moyas occupied at the time, tore up the floor, found the old safe, and dragged it into the courtroom to show jurors.
Ray Perez's smuggling days came to an end following a pair of arrests in 1988. He said he knew that becoming a government informant would be his only hope for minimizing his sentence, and so he began working with investigators.
"Did you tell them about Miguel and Jose Moya?" McKenna asked.
"No, sir, I did not. First of all, Jose and Mike, they are like my father and my brother, and they are family and I tried to protect them. And second of all, it's because they were very low on the scale of the organization. And the government specifically made it clear to me the agents didn't want any gofers."
Following his arrest, Perez said, Miguel and Jose Moya visited him in jail. "I explained to them the situation I was involved in," Perez recalled, "that due to the incarceration process that I was in, I had no choice but to become a government witness. And I instructed them to be very careful about spending the money. Because otherwise, if they did [spend it] and the heat got on them, I was going to be left with no choice but to testify against them. And I didn't want to do that."
Perez pleaded guilty and was sentenced to fourteen years in prison. Within a year he began testifying as a government witness in a major California drug case; his sentence was then reduced to four years in prison and five years probation.
Released from prison in 1991, Perez promptly went to see his uncle and cousin. In 1988 he'd given his uncle $50,000 to hide for him. When he came to collect it, he said, he reminded Miguel and Jose they still had to be very careful about how they spent their drug money. If any of it were traced to him while he was on probation, he would end up back in prison.
This portion of Perez's testimony was critical for the defense team. Throughout their case, prosecutors reiterated a simple point: If Miguel and Jose Moya had made hundreds of thousands of dollars with Ray Perez in the mid-Eighties, why did they wait until after the Falcon-Magluta trial in 1996 to spend it? Prosecutors claimed the timing of the spending proved there was no money from Ray Perez, that the Moyas weren't involved in the drug business, and that the cash must have come from Falcon and Magluta.
Defense attorneys would now argue that the delayed spending was the result of Ray Perez's warning to wait until he completed his parole.
To demonstrate his scorn for Perez, prosecutor Edward Nucci refused to look at him, facing the jury instead. Each question Nucci asked rang with derision, as he repeatedly, and with great success, tried to provoke Perez. The prosecutor asked Perez if he had violated his oath to uphold the law when he was a police officer.
"After I left the force, yes."
"Are you going to tell this jury there was a bright-line distinction that you left the police force one day and a date subsequent to that you began drug dealing? Isn't it true that you began the drug dealing or at least the preparations for entering into the drug-trafficking world while you were a Miami police officer?"
"Towards the very end. I already made a decision to leave the force."
"But as a police officer you started getting into the drug business, didn't you?"
The exchanges between Nucci and Perez grew increasingly heated. Time and again Nucci emphasized the point that Perez was an experienced liar whose word meant nothing. He lied to federal agents in 1988 when he failed to disclose that Miguel and Jose Moya were part of his drug organization. He lied to the court in 1989 when he told officials he didn't have any hidden assets. Nucci belabored these questions until Perez finally erupted.
"Sir, I believe I already told you here today that I did lie," Perez shouted. "How many times am I supposed to tell you that I lied? I lied, yes I did. I lied!"
Nucci found it curious that the Moya family had been advised to avoid spending the drug money until after Perez finished his probation. The prosecutor pointed out that Perez's probation didn't officially end until June 12, 1997, and yet the Moyas spent nearly $200,000 on a home in the Florida Keys in December 1996. How could Perez account for that?
Well, he said, by December 1996 his probation was virtually over. During that final year, he only had to check in with his probation officer by mail. More important, he said, Jose and Rafaela Moya were ill, each having undergone surgery that year. Perez said it was time for them to begin enjoying life and spending the money they'd been saving.
Nucci tried to keep Perez off balance. He claimed Perez knew that his cousin had taken a bribe. "In fact your cousin told you that he accepted a bribe from the Falcon-Magluta organization," the prosecutor stated matter-of-factly.
"That's not true," Perez said angrily. "My cousin never told me anything like that. That's, like, your words."
"You don't recall telling special agent Anderson that the Falcon-Magluta organization were the guys that had paid your cousin --"
"That's a friggin' lie!" Perez exploded. "That's a lie by you! And if he says that --"
Judge King interrupted. "Sir, you will control yourself," he ordered. "You used to be a police officer. You've had difficulties since then, but you know better than to speak like that."
And so it went, hour upon hour over the course of two days, until finally there were no more questions for Perez. Still defiant, he strode off the witness stand, paused in the hallway outside the courtroom, and fiercely defended his story. "I have nothing to fear. They may not like it, but I told the truth in there," he spit. "I know what we did. If they don't believe me, there's nothing I can do about that. My life is an open book."
Throughout the trial Judge King warned that he did not want the proceedings bogged down by retrying the original Falcon and Magluta case. In some ways, though, it was unavoidable.
Like the ghosts in a Dickens novel, characters from the first trial kept appearing in King's courtroom. Judge Federico Moreno was called as a government witness, and the two prosecutors from the 1996 case, Pat Sullivan and Chris Clarke, dropped in occasionally to watch from the gallery's back row.
At no time, though, was the past more on trial than when prosecutors and defense attorneys called six of the former jurors from the Falcon and Magluta case. Prosecutors began this flashback by summoning Cynthia Watts, who recalled that her fellow jurors were evenly divided at the start of deliberations, half believing Falcon and Magluta were guilty and half believing they were innocent.
She testified that Moya voted "not guilty" on all two-dozen counts, and refused to change his mind. She claimed that on the third and final day of deliberations, on one of the counts, "we may have had ten or eleven for guilty," but Moya wouldn't budge.
"At times he would be sitting while others were searching for evidence," she continued. "He would sit in the back of the jury room. That's where he sat, [he'd] rock back, his hands folded. He said, 'No, not guilty. You'll have to show me more. You've got to show me more.' And each thing that I presented wasn't enough for him."
Eventually, she recalled, she gave up and voted "not guilty."
In the days following her testimony at the Moya trial, members of the U.S. Attorney's Office privately hailed it as the vindication they needed. Her testimony that "ten or eleven" jurors were willing to find the smugglers guilty on one count was retold around the courthouse and soon accepted as fact that there were eleven solid votes to convict Falcon and Magluta. The only obstacle to victory, the story now went, was a single corrupt juror.
Proponents of this version of events apparently didn't hear the testimony of the five other jurors called as witnesses, each of whom said they were never close to convicting Falcon and Magluta on any of the counts.
Jurors Karen Braswell and Marlene Michelena said the majority was always for acquitting Falcon and Magluta. They also disputed the notion that Moya failed to review the evidence. "Was your verdict based on your independent analysis of the evidence and the law in the case?" defense attorney Paul McKenna asked Michelena.
"Yes, it was my choice," she answered.
Braswell testified that she responded "not guilty" every time a vote was taken, contradicting the assertion Moya was the lone holdout.
Even John Bellamy, one of the strongest advocates initially for convicting Falcon and Magluta, acknowledged that those favoring conviction were few. "I can recall exactly three of us that were in the minority," he said. "It could have been more."
Maria Penalver admitted that one of the reasons she voted "not guilty" was her fear of the defendants. But McKenna asked if there were other reasons as well. "I didn't think the government had a good case put together," Penalver asserted. "And every time ... they had a witness on the stand and they would build up their testimony, the defense would just topple it. It wouldn't have any sense to it. A lot of the jurors felt that way."
The government's mishandling of the Falcon-Magluta trial remains a delicate topic. The main problem, as Penalver noted, was the use of informants, convicted drug traffickers who received reduced sentences in return for their testimony against Falcon and Magluta. Prosecutors gave sweetheart deals to 27 witnesses, many of whom told conflicting tales. So many of these witnesses ended up being unreliable that their testimony ultimately tainted those witnesses the jury should have believed.
In fact the government's reliance on "bought" testimony in the Falcon-Magluta trial is now cited in training sessions for federal prosecutors across the nation. The ignominy of losing the case was compounded by the revelation that then-U.S. Attorney Kendall Coffey, brooding over the verdict, went to a strip club, paid for a $900 bottle of champagne using his credit card, and allegedly bit a club dancer on the arm. Coffey resigned as a result of the scandal that ensued.
As Curt Obront noted in his opening statement, the defense attorneys believe prosecutors began investigating jurors almost immediately following the trial as part of a government vendetta. Obront, McKenna, and Jhones tried repeatedly to raise this issue during the trial but were cut off by King. "The motivation of the Department of Justice is not an issue in this case," the judge declared. "It is totally immaterial. I see no relevancy to it. We are not going to run down all these pig trails through the palmetto."
Defense attorneys contend that in addition to Moya, three other jurors were investigated. New Times has learned the investigation began within days of the February 16, 1996, verdict. By May of that year prosecutors were already using a grand jury to obtain records and other information about jurors.
In a sealed motion presented to Judge Federico Moreno on May 20, 1996, prosecutors asked for permission to begin interviewing several jurors. The motion identified Moya as a suspect and claimed the government had received information from one of Moya's co-workers, who claimed Moya bragged that as a result of the trial "he had made so much money he was going to buy a house on Star Island." This unidentified witness was never called to testify at Moya's trial.
Also in that sealed motion, prosecutors supported the need for an investigation by citing a "confidential informant" serving time with Falcon, who claimed Falcon told him he'd paid $80,000 to control the jury's verdict. The informant has never been identified, and in hindsight the $80,000 figure is obviously wrong, thereby casting doubt on the informant's credibility. (John Schlesinger, spokesman for the U.S. Attorney's Office, declined to comment on any aspect of the Moya investigation.)
Although Judge King may be uninterested in the Justice Department's motivation, the June 20, 1996, sealed motion to Moreno raises questions regarding the investigation's origins. Did agents and prosecutors rely on dubious information to persuade a judge they needed to investigate Moya? Did they, as defense attorneys charge, probe the lives of other jurors as well? And if they did, on what basis? Former juror Maria Penalver told New Times this past week that agents accused her last year of having an affair with Moya, an accusation she denies. "I don't know what they were thinking," she said.
Jury deliberations in the trial of Miguel Moya and his parents, Jose and Rafaela, began on Monday, February 1. Right away jurors dispensed with several of the fourteen charges. They unanimously voted "not guilty" on a count of bribery conspiracy against the parents as there was no evidence they had been part of the scheme to collect the alleged bribe.
They voted to convict Miguel Moya of witness-tampering owing to a conversation he had with one of his wife's relatives, Mark Vera, in which he encouraged Vera to lie to federal agents about money he had given Vera.
And they voted to convict Jose Moya of witness-tampering because he asked the man who sold him the Keys home to tell IRS agents he was still paying off the mortgage when he knew that was a lie. The calls between Miguel and Vera, and those between Jose and the former owner of the Keys home, were recorded on FBI wiretaps.
The remaining counts revolved around one question: Did Miguel Moya accept a bribe? Several jurors said the videotape quickly became the key to the entire case. They watched it over and over, and dissected its transcription. On their first vote, seven jurors believed Miguel Moya was guilty and five voted not guilty.
By the second day, the vote had shifted slightly, with eight members of the jury voting to convict Moya and four voting to acquit. On the third day of deliberations, it was still eight to four. Tensions began to mount in the jury room. Finally, on day four, jurors seemed to have hardened in their positions. Nine jurors were now voting to convict Moya of taking a bribe; two were steadfastly voting "not guilty," and one had declared herself undecided but leaning toward "not guilty." Realizing they were at an impasse, they sent a note to Judge King informing him they were hopelessly deadlocked. That afternoon King declared a mistrial and sent the jury home.
Inexplicably the judge never asked if they had reached a verdict on any counts, and the jurors didn't think to tell him they had. As a result the votes to convict Miguel and Jose Moya of witness-tampering, and to acquit the parents of conspiracy, were nullified. Both sides, prosecution and defense, will have to start from scratch when the case is retried beginning April 5.
One of those "not guilty" votes was cast by the sole male on the jury, Juror 6 (all the jurors interviewed for this story asked that their names not be used), who said the government never proved its case. He certainly didn't believe Moya's ex-wife Virginia, he said, and he wasn't comfortable with the videotape.
"The videotape was strong, it was very powerful," he acknowledged, "but when you go back to the root of it, I started having problems." FBI undercover agent Jack Garcia was sent to trick Moya into confessing, he said. "The guy they used was a specialist," Juror 6 noted. "The intimidation factor that was used in that tape was incredible." He concluded that Moya would have said anything to get away. "How did he know [Garcia] wasn't going to blow his head off right there in the parking garage if he didn't start agreeing with him?" asked the man, a 36-year-old dog trainer.
Juror 6 added that the other "not guilty" vote (Juror 12) agreed with his interpretation of the encounter in the parking garage. But Juror 12 went even further: She believed the videotape had been tampered with and couldn't be trusted. The audio and the video didn't match up, Juror 12 noticed, and it made her suspicious. "I think it was doctored, too," said Juror 6, "but that wasn't my main concern."
It was ludicrous, Juror 6 thought, for the government to insist that the Moyas were not in the drug business with Ray Perez. "It was obvious the family was all over the drug thing," he said. "To say they weren't, well, that was just dumb." Juror 6 also found Ray Perez to be entertaining. "He was a character," he laughed. "The guy is obviously very tight with his family."
Juror 3 was the undecided vote leaning toward acquittal. A twenty-year-old student, she said she just couldn't reach a decision, but if deliberations had continued, "I would have said 'not guilty.'" A number of issues bothered her about the government's case, and she felt Virginia Perez wasn't telling the truth. "She's a liar," Juror 3 flatly declared.
"A lot of the jurors thought he did take a bribe because of the video," she continued. "I still think he just wanted to get the guy out of his face and would tell him anything. The agent was very threatening. I think he really scared him." She said Moya repeatedly wiped the perspiration from his brow in the video, which proved to her he was extremely nervous.
Juror 3 was also swayed by Ray Perez's testimony. "I thought he was just lying in the beginning," she said, "but in the end I did believe Ray."
The jury forewoman (Juror 1) and Juror 11 were two of the stronger advocates for convicting Moya, though both acknowledged the testimony from Virginia Perez couldn't be trusted. The key for them, they said, was the videotape. "It was very strong evidence," Juror 11 reported, but she wished the quality of the tape had been better: "It might have made a difference for the people voting 'not guilty.'" But she couldn't sway those jurors who thought the tape had been manipulated. "I tried to argue that they would not have put it into evidence if it had been tampered with," she said, "but they still felt something was wrong with the tape."
All jurors interviewed for this article thought the attorneys on both sides did a competent job. "They were great," Juror 6 said, adding that his favorite was Edward Nucci: "That Nucci, he's a sneaky guy. He's really good. He does a lot with body language. He talks a lot with his body. He could just ask you what your name is and you would be in doubt."
Nucci and Julie Paylor will both be back for the retrial. The defense team of Paul McKenna, Curt Obront, and Ana Jhones, however, won't be. A week after the trial concluded, they withdrew from the case, noting that the family could no longer afford their services. The Moyas, it seems, have run out of money -- whatever its source.
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