Falcon is in a federal penitentiary in Atlanta, completing a sentence for illegal possession of a firearm. He is scheduled to be released in December and his attorneys are already making arrangements to relocate him to an undisclosed country, presumably one that has no extradition treaty with the United States.
Magluta is in a similar situation. Housed in solitary confinement at the federal detention center in downtown Miami, he is approaching the end of a nine-year sentence for passport fraud and bail-jumping, and could be free in a few years.
The prospect of either Falcon or Magluta going free is so personally offensive to some members of the law-enforcement community that they have devoted themselves over the past three years to building a new case against them using federal racketeering statutes known as RICO. Prosecutors are expected to allege that Falcon and Magluta, both of whom attended Miami Senior High, were in charge of a criminal organization that engaged in acts of money laundering, obstruction of justice, retaliation against government witnesses, and murder. If convicted they would likely spend the rest of their lives in prison.
Prosecutors are now presenting to a Miami federal grand jury evidence that former Falcon and Magluta attorney Juan Acosta was gunned down in September 1989 to prevent him from becoming a government witness against the drug smugglers. The three men who carried out the homicide pleaded guilty this past July and are now government informants, according to sources familiar with the investigation. Before reaching their deal with both state and federal prosecutors, the three men -- Manuel Mattos, Gregorio Tuberquia, and Javier Cadena -- were facing the death penalty for the contract killing. All three pleaded guilty in state court to the reduced charge of second-degree murder. In a highly unusual move, their sentencing hearing last fall was closed to the public and the transcript of the proceeding was sealed.
Although the precise terms of their sentences are unknown, New Times has learned that in return for their cooperation in developing a new case against Falcon and Magluta, the three men eventually will be eligible for parole. They have already begun appearing before the grand jury. Mattos appeared on February 10, and according to a source familiar with his closed-door testimony, he admitted being the triggerman.
Reid Rubin, the assistant state attorney who prosecuted Mattos, Tuberquia, and Cadena, declined to comment on any aspect of the case, citing the existence of an ongoing investigation. John Schlesinger, spokesman for the U.S. Attorney's Office in Miami, also refused to comment. Attorneys for the three men either could not be reached this past week or were equally circumspect. Bruce Fleisher, who represents Tuberquia, would neither confirm nor deny that the trio was cooperating with prosecutors. "All I can say is no comment," Fleisher says.
The timing of a new indictment is not known. "They've been threatening it for months," says a source close to the Falcon and Magluta defense team. Falcon's pending release date may not be the only event pushing prosecutors. Another, more mundane, item is the fact that the grand jury hearing the case is near the end of its eighteen-month term; jurors are scheduled to be dismissed in April. Prosecutors, however, could ask to have the grand jury's tenure extended for a few months. In any event, an indictment does not seem far off.
In addition to murder, prosecutors are also hoping to include a charge of obstruction of justice and bribery under the RICO banner. These counts would stem from the alleged bribe paid to the foreman of the original 1996 jury that acquitted Falcon and Magluta. Prosecutors suffered a setback this past month when the jury hearing the bribery case against former jury foreman Miguel Moya failed to convict him. That case ended in a mistrial because jurors could not agree on whether Moya had taken a bribe. He is now scheduled to be retried April 5, and prosecutors hope that if he is convicted, they can pressure him to testify in the RICO case against Falcon and Magluta.
Convicting Moya has added significance for the U.S. Attorney's Office. Stung by criticism they mishandled the original trial of Falcon and Magluta, prosecutors are eager to make the argument that it wasn't their fault they lost the case.