from the manufactured-nonsense dept
The case of Kilmar Abrego Garcia (who we now find out, via his lawyer, prefers to be called Kilmar Abrego) keeps getting more and more bizarre. After being “accidentally” shipped to El Salvador — despite a judge’s order directly barring such a move — the Trump regime has spent months (1) denying that they could even get him back from El Salvador while (2) simultaneously trying to claim Abrego was a hardened criminal, possibly child groomer and murderer. And then, magically, a few weeks ago they were able to bring him back to the US to charge him criminally with charges that seemed obviously exaggerated, based entirely on a single traffic stop from years ago in which the cops let him go with no follow up.
And, in the first review of the criminal case, Magistrate Judge Barbara Holmes found the entire thing so ludicrous that she ordered Abrego be released (something that won’t happen, as the DOJ immediately appealed). Among the many, many problems, the opinion found that much of the evidence presented wasn’t just double or triple hearsay, but relied heavily on some actual human smugglers, who appear to have been given leniency in response to their highly questionable and often contradictory claims. Not to mention some of their claims being effectively impossible.
When we wrote about the indictment, we highlighted how weak it sounded (not to mention a long-term DOJ criminal prosecutor resigning rather than bringing the charges). Some people told us that they were sure that the feds had more evidence to support the claims, but if they do, they sure didn’t show that evidence to Magistrate Judge Holmes.
Holmes admits upfront that her order that Abrego should be released is mostly an “academic exercise,” since she knows that the DOJ will appeal and the government admitted in a hearing directly that if Abrego is released, they will send ICE to rendition him to some other country besides El Salvador. But that doesn’t change how fucked up she believes the charges against Abrego to be.
Because the DOJ has basically no real evidence to support the charges or the idea that Abrego is a risk or threat to society, it tries to manufacture the claim that he “trafficked” children. The judge notes that the DOJ itself seems confused about the difference between trafficking and smuggling, pointing out that they used the terms interchangeably, despite the laws being different and the issues being different.
Then, she notes that the evidence of Abrego ever “smuggling” a child is beyond flimsy. They had a federal agent quoting a Tennessee state trooper claiming that there was someone underage in the vehicle Abrego was driving when he was stopped. Let us count the layers of hearsay:
Here, the Court finds that the origination of the roster and the circumstances surrounding its creation are so remote and attenuated from Special Agent Joseph’s testimony that it cannot be given the conclusive weight for which it is offered by the government. The exhibit on which the government relies is a photograph taken by THP Trooper Foster, not by Special Agent Joseph – first layer of hearsay – of a document prepared at the request of THP Trooper Foster – second layer of hearsay – by the occupants of the vehicle driven by Abrego – third layer of hearsay. While the body camera footage – which is itself hearsay – includes the passing around of a piece of paper among the vehicle occupants at the direction of a THP trooper on the scene, the detail of the roster is visible only briefly in the body camera footage. A still shot of the roster detail from the body camera footage was also admitted as a government exhibit.
Clearly, the most reliable evidence of the accuracy of the information in the roster would be the testimony of the individual who wrote down that information. Special Agent Joseph testified that, although HSI has identified and located six of the nine other people in the vehicle driven by Abrego on November 30, 2022, they have not located the individual who is purported to have provided a birth year of 2007. Absent that individual’s testimony, the next most reliable source about the accuracy of the roster information would be the testimony of THP Trooper Foster. If subject to examination, THP Trooper Foster could be asked whether he considered the 2007 birth year to be reasonable based on his observation of the individual who provided the information. Did the passenger look like a 15-year-old? Was he shaving yet? Was he slight of build? But THP Trooper Foster was not offered as a witness.
Also, the incredible weakness of the evidence becomes clear when the judge notes that there is a claim that rather than relying on a written list of birthdates, the cops supposedly photographed passports… but suddenly those photos can’t be found. Oops.
According to Special Agent Joseph, THP Trooper Foster’s body camera footage was purged and is no longer available. Special Agent Joseph additionally testified that THP Trooper Foster took photographs of the passports of the occupants of the vehicle, which would have confirmed the accuracy of the 2007 birthdate. However, even though the photograph of the roster was produced, the photographs of the passports cannot be located, according to Special Agent Joseph’s testimony.
Also… it’s not even clear that the supposedly written-by-a-passenger’s date of birth is 2007 was… actually 2007.
Additionally, defense counsel argued at the detention hearing that the 7 in the written birth year of 2007 appears to have been modified from a 1. That is not entirely without foundation, as there does appear to be some overwriting of the 7. Further, there is a question about whether the 7, even if not edited, is a number seven (7) or a number one (1). If a number one (1), then the individual with that birth date was born in 2001, not 2007. The number one (1) and the number seven (7) are among the letters, symbols, and numbers sometimes described as visually ambiguous characters because they can be indistinguishable in many types of print and especially in handwriting
The magistrate even points out that another of the submitted handwritten birthdates of someone who wrote either 1998 or 1999, the “1” is written in a manner similar to the “7” in contention in the 2001/2007 dispute.
The government’s entire argument that Abrego transported a minor on November 30, 2022 depends on the last digit in the birth year being 7 rather than 1. That the roster photograph invites this kind of scrutiny and supposition to resolve any doubts diminishes its reliability. The Court cannot find that the photograph is sufficiently reliable to satisfy the government’s burden of showing that this case involves a minor victim for purposes of § 3142(f)(1)(E) without some other corroboration such as the missing photograph of the individual’s passport, which THP Trooper relayed to Special Agent Joseph exists (or perhaps at least existed)
She also points out that the supposed support from those who told federal agents exactly what they wanted to hear isn’t all that believable for a variety of expected reasons:
The first cooperator, who provided interview statements and grand jury testimony, has two prior felony convictions, has previously been deported five times, and was released early from a 30-month federal prison sentence for human smuggling as part of his cooperation in this case. He is the purported domestic leader of the human smuggling organization in which Abrego is accused of participating. He has been granted deferred action on deportation in exchange for his testimony.
That sure sounds like the Trump regime is soooooo focused on convincing the world that Abrego is a human smuggler that they’re set to release an actual human smuggler so long as he swears Abrego is involved.
Oh sorry. Not one, but two such people:
The second cooperator is also an avowed member of the human smuggling organization and is presently in custody charged with a federal crime for which he hopes to be released in exchange for his cooperating grand jury testimony. He has also been previously deported and has requested deferred action on deportation in exchange for his cooperation. The second cooperator is a closely related family member of the first cooperator.
Yeah, this doesn’t seem very convincing at all, as the judge notes the “double hearsay” testimony defies common sense and would require physically impossible stunts by Abrego.
The Court gives little weight to this hearsay testimony – double hearsay through Special Agent Joseph’s testimony – of the first male cooperator, a two-time, previously-deported felon, and acknowledged ringleader of a human smuggling operation, who has now obtained for himself an early release from federal prison and delay of a sixth deportation by providing information to the government. Nor do the hearsay statements of the second male cooperator on this issue fare any better, as his requested release from jail and delay of another deportation depends on providing information the government finds useful. Even without discounting the weight of the testimony of the first and second male cooperators for the multiple layers of hearsay, their testimony and statements defy common sense.
Both male cooperators stated that, other than three or four trips total without his children, Abrego typically took his children with him during the alleged smuggling trips from Maryland to Houston and back, some 2,900 miles round-trip, as often as three or four times per week. The sheer number of hours that would be required to maintain this schedule, which would consistently be more than 120 hours per week of driving time, approach physical impossibility. For that additional reason, the Court finds that the statements of the first and second male cooperators are not reliable to establish that this case “involves a minor victim.”
And while the government tries to argue Abrego is a flight risk because he faces a theoretical 90 years in prison, the magistrate notes that even if there were actual evidence supporting these claims, similar cases in this district received an average sentence of… 12 months.
Meanwhile, the magistrate judge is further unimpressed by the “evidence” that Abrego is a bigshot MS-13 member since it involves not just more hearsay… but contradictory hearsay!
The government’s evidence that Abrego is a member of MS-13 consists of general statements, all double hearsay, from two cooperating witnesses: the second male cooperator and N.V. Those statements are, however, directly inconsistent with statements by the first cooperator. In interviews, the second male cooperator, whose general unreliability the Court addressed above, stated broadly to Special Agent Joseph that Abrego was “familial” with purported gang members. Other than this vague statement, there is no evidence of when these interactions occurred or in what context (other than as general greetings), how the second male cooperator determined those other unidentified individuals to be known gang members, or precisely how some perceived interaction between Abrego and other unidentified individuals substantiates gang membership.
There’s even more nonsense with a previously paid informant who made some sketchy claims about Abrego’s gang membership, but the judge points out that the “cooperating witness” had only interacted with Abrego many years ago when she was still a teenager.
This is a problem when you’re manufacturing a fake case by finding a bunch of actual criminals looking for leniency who will say anything. Sometimes they (*gasp*) make shit up:
Contrary to the statements of the second cooperator and NV, the first male cooperator told Special Agent Joseph that, in ten years of acquaintance with Abrego, there were no signs or markings, including tattoos, indicating that Abrego is an MS-13 member. This statement specifically repudiates any outward indicia that Abrego belongs to MS-13, in stark contrast to the non-specific second cooperator’s and N.V.’s feelings that Abrego may belong to MS-13. Given these conflicting statements, the government’s evidence of Abrego’s alleged gang membership is simply insufficient.
On and on it goes. Each bit of evidence looking weaker and weaker. I could go through it all — including how weak the evidence is that Abrego transported drugs or owned a bunch of guns — but you get the picture.
If it wasn’t already clear from the weakness of the indictment, it is clear now: this is a wholly manufactured case by the Trump regime who was so desperate to turn Abrego into a gun-toting, drug and human trafficking “bad guy,” that they effectively fabricated obviously laughable evidence, knowing full well that the MAGA faithful and stenographer media would repeat.
But as soon as a magistrate judge looked at the details, they saw how it’s obviously all nonsense. Again, this won’t lead to Abrego’s release, but it should be a reminder of what this government will do to try to cover up its own horrific mistake.
Filed Under: abrego garcia, evidence, hearsay, kilmar abrego garcia, smuggling
