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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

------------------------------x 

UNITED STATES OF AMERICA, 

 v. 07 CR 274 (WHP) 

HERBERT VELOZA GARCIA, 

 Defendant. 

------------------------------x 

 New York, N.Y. 

 June 7, 2016 

 2:35 p.m. 

Before: 

HON. WILLIAM H. PAULEY III, 

 District Judge 

APPEARANCES 

PREET BHARARA 

 United States Attorney for the 

 Southern District of New York 

ANDREA SURRATT 

 Assistant United States Attorney 

RUBEN OLIVA 

 Attorney for Defendant 

ALSO PRESENT: SELMA MARKS, Spanish Interpreter 

FRANCISCO OLIVERO, Spanish Interpreter 

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(Case called) 

MS. SURRATT: Good afternoon, your Honor. Andrea

Surratt for the government. With me at counsel table with the

Court's permission is intern Caroline Zielinski.

THE COURT: Good afternoon, Ms. Surratt.

MR. OLIVA: Sorry, your Honor. We're having some

technical difficulties.

THE DEPUTY CLERK: Counsel for the defendant.

MR. OLIVA: Good afternoon, your Honor. Ruben Oliva

on behalf of defendant Herbert Veloza Garcia, who is present,

and prepared to proceed with the aid of the interpreter.

THE COURT: Good afternoon to you, Mr. Oliva.

I note the presence of a Spanish interpreter. Would

you identify yourself for the record.

THE INTERPRETER: Selma Marks, M-A-R-K-S.

THE COURT: All right. And are you certified?

THE INTERPRETER: Yes, I am, your Honor.

THE COURT: Very well. Good afternoon.

THE INTERPRETER: Good afternoon.

THE COURT: Mr. Veloza Garcia, are you able to

understand what's being said here this afternoon through the

Spanish interpreter?

THE DEFENDANT: Yes, your Honor.

THE COURT: Good afternoon. This matter is on for

sentencing. Are the parties ready to proceed?

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MS. SURRATT: Yes, your Honor.

MR. OLIVA: Yes, your Honor.

THE COURT: Mr. Oliva, have you reviewed with your

client the presentence investigation report?

MR. OLIVA: I have, your Honor, at length.

THE COURT: Are there any factual matters set forth in

the report that you believe warrant modification or correction?

MR. OLIVA: No, your Honor.

THE COURT: And the matter that you raised in your

submission with respect to the calculation of the guidelines by

probation, has that been corrected to your satisfaction?

MR. OLIVA: It was. My objection was upheld by

probation, but they instead used a different calculation which

I have no problem with.

THE COURT: Very well.

Ms. Surratt, are there any factual matters set forth

in the report that the government believes warrant modification

or correction?

MS. SURRATT: No, your Honor.

THE COURT: Does the government have any application

here?

MS. SURRATT: Your Honor, the government today moves

under Section 5K1.1.

THE COURT: All right. Mr. Oliva, before I hear from

you, I pose a question I guess in the first instance to

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Ms. Surratt. I've reviewed the government's 5K letter on

behalf of the defendant and I ask, quite frankly, why is the

Court being asked to sentence the defendant today?

MS. SURRATT: Your Honor, I think that the answer is

that this defendant has been in custody for a long time and a

lot of the defendants against whom his cooperation is still

pending are uncertain in terms of their pending arrival to the

United States.

So as the Court has certainly noticed, there are

defendants who are, for instance, pending extradition from

Colombia against whom this defendant's cooperation may still be

needed; but some of the timing on that is uncertain. And

together with Mr. Oliva, the government decided that there was

no sense in delaying his sentencing indefinitely since he has

been in U.S. custody for -- it's over a hundred months at this

point.

THE COURT: All right. I just note that you write to

me that a principal defendant against whom the defendant is

cooperating, Mr. Rendon Herrera, is expected to be extradited

from Colombia and to arrive in the U.S. "in the near term." 

And you then state that Mr. Veloza Garcia is a crucial witness

against Rendon Herrera.

Why, if Rendon Herrera is about to be extradited to

the United States and may go to trial, why would the government

come in and say now is the time to sentence the cooperator?

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MS. SURRATT: Yes, your Honor. I think Mr. Rendon

Herrera's arrival in the U.S. has been expected in the near

term for quite some time. It is what we have been told from

the Colombian government. But as the Court knows, extradition

proceedings are by their nature somewhat uncertain. And we

think that with the supervised release conditions that we've

asked for, which are detailed in page 22 of the 5K, that that

takes care of any concerns about continued cooperation. And

Mr. Oliva has assured the government that his client is

extremely willing to continue his cooperation beyond his

sentencing in this case.

THE COURT: All right. So am I to assume from the

government's presentation of Mr. Veloza Garcia for sentencing

at this time that the government thinks that he's been

incarcerated long enough?

MS. SURRATT: Your Honor, the government obviously is

not going to make a sentencing recommendation for this

cooperator beyond laying out, as is laid out in detail in the

5K, that this is an extraordinary defendant in really all

senses of the word -- extraordinary in terms of his very

serious criminal conduct, but also extraordinary in terms of

his cooperation. In terms of whether or not he's been in jail

for long enough, that's obviously for the Court to decide.

I will say that whether he receives additional time in

jail or whether he is released and is serving a term of

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supervised release, the government is confident that he will

appear to cooperate if he is needed, even if he is serving a

sentence in a BOP facility somewhere other than New York. So

that's the calculation the government made, your Honor, is that

basically no matter what happens here, he can still be a

valuable government cooperator.

THE COURT: What about the defendant's concern that

he's going to be turned over to ICE?

MS. SURRATT: Yes, that is going to happen, your

Honor. So to the extent the Court sentences the defendant to

time served today -- again, the government takes no position on

that -- or if he serves another few years in jail, at the end

of this prison sentence, he will be remanded into ICE custody.

I understand from Mr. Oliva that Mr. Oliva intends to

make a Convention against Torture application on behalf of his

client. So, ultimately, Mr. Oliva's hope is that his client

will be released into the United States and not be sent back to

Colombia.

THE COURT: All right. Thank you, Ms. Surratt.

Mr. Oliva, do you wish to be heard on behalf of your

client?

MR. OLIVA: Yes, your Honor, I do.

Your Honor, I do believe that a sentence of time

served is appropriate in this case and let me tell the Court

why; and, in part, as I tell you that, I think I will address

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some of the questions that you have.

Let me first start by addressing Daniel Rendon

Herrera, alias a/k/a Don Mario. We've been hearing that he's

going to be coming here in the short term for the last five

years, literally, and that's part of the problem. He is a

major guy in Colombia and he, through any number of means, has

been able to avoid his extradition. And so I think that's part

of the reason why at some point it's just unfair to this

defendant, particularly in light of everything else that he's

done and in light of the sentences that are being received and

have been done and to very, very similarly situated defendants,

even in this very same courthouse, and that also addresses the

secondary question.

The language that we have in our submissions in

regards to the conditions of supervised release are the

identical language that was also applied to two other

defendants that I mentioned to you and the similarly situated

defendants. And specifically that would have been Carlos Mario

Aguilar, alias Rogelio or a/k/a Rogelio, and Mauricio Lopez,

a/k/a Yiyo, both of whom were sentenced in this building and

both of them were sentenced to -- one was time served,

approximately eight years. The other one was sentenced to also

eight years, so he's doing about seven and a half.

Both of those defendants are and were members of the

AUC, associated with the paramilitary. The only difference

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with them is that they have much more serious charges than this

defendant. They had the murders of a number of government

informants, U.S. government informants, which they confessed

to, I might add. And, in addition, those defendants, as

opposed to this individual, were really involved much more

heavily in the purest form of narcotics trafficking and also

murder for hire, kidnapping, drug collections, that kind of

stuff. So really looking at them, neither of those individuals

also were participating in the Justice and Peace process, which

I'm going to get to in just a second.

Both of those defendants are also witnesses against

Mr. Rendon Herrera. And I might add, there are any number of

witnesses again Mr. Rendon Herrera. It's not that the entire

case relies on Mr. Veloza Garcia, while certainly Mr. Veloza

Garcia would be an important witness and perhaps even crucial.

But both of those defendants applied for the Convention against

Torture -- one of them is a client of mine -- and both of them

have been granted. Their families have already received

political asylum in large part for cooperation that was in some

sense similar to one of the defendants that I alluded to here

in the United States as to this defendant.

However, this defendant has also, as you may recall

from reviewing my submission, testified against a far greater

number of political and military and police figures in

Colombia.

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THE COURT: Is that process continuing?

MR. OLIVA: Thank you for asking. I was about to go

there.

In fact, if I may, in court is Fernando Villota, who

is the Colombian attorney for my client who represents him in

the Justice and Peace process. He just was here with the

Colombian prosecutors in the continuation of a process that he

has. They've already spoken with the Colombian government, who

fully expects that he will remain here, and allow him to

continue cooperating and dealing with that process,

particularly in light of some recent developments. 

And that's something I wanted to address, sort of

getting back to my presentation, is that it's very important

that this Court understands -- and I think it does -- that

almost all of the conduct, a lot of the very bad conduct that

you saw in both of our submissions, is conduct that is being

prosecuted by the Colombian authorities. And Mr. Veloza Garcia

is one of the few who has actually participated in a full

manner and continues to be a participant in that process and

will continue being a participant in that process.

He has a 40-year sentence, which is suspended to eight

years because of his cooperation and his participation. And

cooperation is part of it, but it's not all of it. It's

everything. It's patterned somewhat after the Commission for

Reconciliation that they had in South Africa. Now that process

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is now also again being emulated to deal with the guerrillas

who are in the process, as you may know from reading the news,

they're in Cuba and they're in the final stages of reaching an

agreement, which in large part is using the process that

allowed these individuals to demobilize as a blueprint, with

the very large exception that the Colombian government has

assured those guerrilla commanders they will never be

extradited to the United States to face narcotics charges,

unlike this defendant who, as the Court might recall again,

provided the very information that allowed the government to

prosecute him and to indict him, actually, in a post-Miranda

statement that he made early on.

Now, in terms of the Justice and Peace process, that

process, despite the fact he's already been sentenced on one of

the blocks, there's two other blocks and he continues to

participate actively and ably in that process. And that

process is going to continue for a while, for a long while, in

fact, because it is a very slow moving, unlike our system,

which I think because of our great fortune in terms of

having -- I was explaining to Ms. Surratt, nothing is

digitized. There is no electronic case filing. There is no

emails. They don't even mail each other the documents.

They're all deposited in a central location and you have to

send your law clerk on a weekly basis just to find out what has

happened in the case. So because of that, it is a very slow

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moving process. 

And it's been one of the criticisms of the process,

particularly for this defendant because he has literally

testified and appeared in video conferences for thousands of

hours -- and I think I attached those exhibits -- something

that really would be unheard of. You may have defendants that

have appeared before you in an application much like the

government has provided in this case and the fact that they may

have sat for three or four trial days as a government witness

is incredibly notable. This defendant has been in weeks' worth

of trial days testifying on behalf of the Colombian government,

against many of the individuals that participated in the

paramilitary organization and enterprise.

And along those lines, I've given you the low end in

terms of what some of these other defendants that were

similarly situated have received both in this district and in

other districts, such as D.C. and Miami. Southern District of

New York really took the lead in prosecuting AUC commanders,

but certainly they weren't the only district. The District of

Columbia has also been very active. 

And in that regard I wanted to also alert or note to

the Court of a similar case, although not really similarly

situated. The highest ranking member of the AUC that's ever

been sentenced was sentenced a few months ago by the Honorable

Reggie Walton in the District of Columbia -- and I provided the

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name to the court reporter -- his name is Rodrigo Tovar Pupo,

a/k/a Jorge 40.

In terms of their membership and their participation

in the AUC, they are very, very similarly situated. Both of

them were commanders. Both of them were the guys that started

at the beginning in terms of ideological, in terms of wanting

to fight and fighting the Communist guerillas, as opposed to

some of these other commanders that came later who really were

commanders in name only, had never seen combat, never wanted to

see combat. They were really narcotics traffickers that were

buying these fronts now from the AUC at the end stages of the

organization. So Jorge 40, Mr. Tovar Pupo, and Mr. Veloza

Garcia were really guys that went in, in my client's case, as

you may recall, he went in as a private and rose through the

ranks.

Mr. Tovar Pupo, however, that's where the similarity

ends. He did not cooperate with the United States government

at all. In fact, he fought them tooth and nail. He decried

the fact and argued forcefully and consistently that all he did

was collect war taxes, which is what he did, as well, and that

that was not a crime against the United States. Clearly, I

disagree. My client disagrees because he's testified down in

Colombia that when they were collecting drug taxes, they were

providing security for the narcotics traffickers and, as such,

they were contributing or furthering the aims of those

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enterprises. But Mr. Tovar Pupo did not take that position.

He said no, I should only be prosecuted in Colombia.

But, curiously enough, he was also kicked out of the

Justice and Peace process because the Justice and Peace process

requires you to be completely honest and up-front and cooperate

and he didn't want to do that either. So he wanted to have his

cake and eat it too. And so this is a defendant that was

kicked out of that process, which means now he's going to be

prosecuted under the regular justice system in Colombia as

opposed to this system that they've had.

Despite all of that and despite the fact that in every

other way criminally, same activity, same conduct, the

Honorable Reggie Walton did take into account that he was going

to be prosecuted in Colombia for those crimes that had to do

with his participation in the AUC and sentenced him to 16 years

in jail. So I think that was very illustrative because, again,

he was the only other AUC commander that's been sentenced

outside of this district. I listed all the other AUC

commanders and a few of them, obviously, one was four years,

another five years. My client served already nine years day

for day.

There's only been one other AUC commander that was

sentenced in Washington. His name is Salvatore Mancuso. He

also was, I understand, kicked out of J and P; and the

government did not feel that his assistance was very

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substantial. He received a 15-year sentence.

So I think that's one of the reasons why the

government and I felt that we should at least provide him the

opportunity. Obviously, this Court is going to make the final

call and the final decision. But it seemed to us, anyway, that

it was appropriate or it seemed to me, I should say,

appropriate that this defendant be sentenced and be sentenced

to time served, particularly in light of some of these other

defendants who, again, provided much less cooperation, had

equal or higher violence, especially as it relates to this

country, when you kill a U.S. government or DEA confidential

informant, which he didn't do, and for that reason it was

appropriate.

THE COURT: If I can just interrupt for a second.

With respect to the sentence that your client has

received in Colombia under the Justice and Peace initiative of,

if I'm recalling correctly, 84 months?

MR. OLIVA: It's eight years. It's a 40-year sentence

suspend down to eight.

THE COURT: Eight years -- what will happen with

respect to that sentence? If your client's asylum application

is granted here, I take it he will not return to Colombia to

serve that sentence, or is there some agreement between

Colombia and the United States concerning that?

MR. OLIVA: There are other defendants who are

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similarly situated, and in those cases the Colombian government

has not and will not ask for their extradition. They're

perfectly happy because, in fact, they understand, and I'm

going to give you a point right now exactly on that, that them

being in Colombia is way more dangerous than being here. Not

only that, there is some question and they have not made the

final decision. The Justice and Peace process is very new, so

they're still constantly tweaking it in conjunction with the

United Nations and other organizations and NGOs that are

helping them out on this. But there is some suggestion that

that would be concurrent with the sentence here because there

is some thought over there that the conduct really is

intertwined, both the conduct that happened here and the

conduct over there. And, certainly, they want to recognize and

reward those individuals who have participated, as opposed to

those who haven't.

They have indicated that those who have been expelled

from Justice and Peace, that they are going to seek their

extradition. So, for example, the gentleman I just mentioned,

there's a very high likelihood that he would in fact be

deported and extradited because not only that, he wouldn't even

have the opportunity to argue for CAT because he hasn't

cooperated against any political or military figure in

Colombia. 

And in that regard, in fact, it's in the submission,

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there is a gentleman, an AUC commander, who also cooperated

much to his level in Colombia and received the eight years, but

he was only one block. And he was released by the Colombians

despite the fact that he is indicted in this district, and

that's Diego Vecino, a/k/a Aleman, the German. He was released

in Colombia, much to everybody's surprise, I might add, because

he's wanted here. But perhaps he would have been better off

being brought here because two months after being released, and

he continued -- like he is -- continued cooperating, continued

participating in the Justice and Peace program. There have

been two murder attempts already on him while he was out. And

the third one didn't quite succeed, but left him in a coma from

which he has not recovered. I'm talking about in the last

three months.

So that only, again, highlights, No. 1, the risk of

danger that he has he incurred not only in his cooperation

against the United States' targets, but as well as the

Colombian targets. But also it highlights why the government

of Colombia, when they have one of the few that has been really

the poster child -- he's been described that -- the poster

child for the Justice and Peace process in terms of the upper

echelons cooperating in a manner befitting of what it was

believed they wanted them to, it would be a devastating blow to

them and to the entire process for something to befall him.

And speaking with the attorney here from Colombia,

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Mr. Villota, Dr. Villota, they call him doctor in Colombia, he

has indicated to me that the Colombian prosecutors that he

works with and deals with in terms of Justice and Peace are

quite confident and expect that he would in fact remain here in

the United States.

So we fully expect that to happen. It has already

happened as to two other individuals who, again, didn't even

participate in J and P, the two other defendants who I

mentioned earlier who were AUC members but really part of this

Anvigado office, which was really a murder for hire office that

contributed to the AUC. Much like Mr. Veloza Garcia, all the

taxes that he would collect, most of those taxes would go to

the top leaders of the AUC. What remained he would use to pay

salaries to his men who were in battle with the Communist

guerrillas.

And, again, unlike Mr. Pupo Tovar, who made much about

the fact that at the end of the day, I'm fighting with the

Colombian armed forces fighting the Communist guerrillas, this

is one of the few defendants who, again, in his effort to be

completely honest, said that's how it all started, but we were

corrupted. By the end we were overrun by dopers. We were

really at their employ and what we started doing, we didn't

finish doing. 

And he, because of that, has actually been the target

of even more ire than some of the other participants because he

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has a reputation for being brutally honest and part of that

honesty is saying let's not kid ourselves. By the end of the

day, we weren't nearly as ideologically pure, any more than our

enemy was, which is very true. The Communist guerrillas long

ago stopped caring about the peasants and the farmers and

distribution and really all they care is growing and producing

cocaine to send over here so they can stay in power. God

willing, there will be a peace process. And perhaps at this

point after 60 years of civil war in Colombia, we'll all get to

go to some of the nicer parts of Colombia that right now as

Americans we could not possibly go.

I'm going to conclude my comments. I think I've

provided a very detailed presentation of the scope, the nature,

and the importance of the cooperation, and so has the

government. And I compliment the government for having put

together that 5K submission.

As a summary, this is a defendant -- and I've been

doing this for 35 years. I've represented over 400 cooperators

at all levels. In fact, some of the people that are mentioned

in these submissions I represent. And there is no question

that the cooperation, substantial assistance that this

defendant provided is among the highest. And there's a reason

for that. Because of the fact that he's a tax collector,

whereas other individuals that may come to this courthouse

belong to one organization or the other, they all came to him

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to pay him taxes, very small taxes out of everything they were

doing. But because of that, he was in an unenviable position

to really know a lot of these defendants. And because of that,

the strategy that SDNY employed to extradite these particular

commanders was very smart and clever because the cooperation

he's been able to provide is something that really no other

narcotics trafficker in a pure sense could ever provide.

But, in sum, he's provided at my count cooperation and

procured the indictment of one, two, three, four, five, six

CPOTs. And in the business when you talk about CPOT, that's

even above kingpin. They are simply very few people that are

ever designated a CPOT. And consolidated priority

organizational targets is the highest designation that OCDETF

puts on anybody. This is the kind of label that's all hands on

deck. Everybody in the government, every agency from DEA to

FBI to ICE to ATF to secret service is going to go after these

targets. They're going to go after these targets. These are

the worst of the worst. These are the ones we know if we get

them and we put them away, it's going to make a dent in the

production and distribution and exportation of cocaine. 

To have a defendant who cooperates against one CPOT is

phenomenal. Two or three, you're in the stratosphere. To have

a defendant that provided information that procured the

indictment of this many CPOTs is unheard of. And I explained

to the Court why it's rare, in part. But it is also incredibly

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dangerous because you just made enemies out of incredibly large

organizations that continue. You can cut the head off the

snake, but the organization continues. It's vitally important.

Obviously, the fact he cooperated against his fellow AUC

commanders is important.

Finally, he cooperated against the generals in the

Colombian Army and the Colombian National Police that

cooperated, facilitated, aided and abetted and participated in

what he was doing. And with the exception of one of them who

was extradited, none of them have been extradited. They are

all being prosecuted by the Colombian government, as they

should be. They're a sovereign nation and they should clean

their own laundry and they're doing that thanks to him. Again,

this is really not your run-of-the-mill case and certainly not

the run-of-the-mill cooperation.

Just as a matter of housekeeping and one final matter,

there's a consent forfeiture agreement that you're going to

sign today. He doesn't have any property in the United States.

But I wanted the Court to know that as part of his cooperation

with the Colombian government as part of the Justice and Peace

process, he did disgorge himself of everything he had. It

wasn't even in his name. They wouldn't have even known. And

he provided and this is the Colombian documents. And I already

killed enough trees with my sentencing memo. I didn't want to

keep killing them. And it's all in Spanish, so it was going to

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cost me a bundle to translate it.

But, quite frankly, I can tell you and I would hope

that you would take my word for it, he delivered and gave back

to the Colombian government -- and this is not so much his own

property. It was the property of the AUC that he controlled,

again, just like any other military commander, but it was eight

ranches, two vehicles, and then what he owned was ten pieces of

jewelry, seven or eight watches and a few of his gold chains,

gave it all in, disgorged himself of everything that he owned,

and helped the government identify what some of the other

commanders owned that he was aware of, which, again, is part of

the process. You don't just give up what you have. You got to

tell us what you know about the rest of the commanders, which,

of course, as a result of that, he is not going to win any

popularity contest. 

And, if fact, that's one of the reasons why some of

these other guys have dropped out. They would rather do the

time regardless of how long it is than give up their ill-gotten

gains. And I know that's nothing new to this Court with other

defendants. They're happy to give up people, but they won't

ever give up their own stuff. But he certainly did and I did

want the Court to be aware of that, that this is not -- despite

the fact that the government here had a forfeiture and we

agreed to it, obviously, there's nothing here. And under the

agreement that we have with Colombia, they're not able to

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forfeit anything in Colombia and bring it back here. That's

one of the conditions for extradition that they have. They

keep -- they get to keep all the goods and it makes sense to

me.

So, your Honor, I'm open to any questions you may

have. I did not want to take the time of the Court rehashing

everything that I already told you in my sentencing submission,

but I did want to just note to the Court his past and continued

cooperation in J and P that has been nothing short of

remarkable and through that, the cooperation that he's provided

that's been very extensive. And, obviously, just note in

passing the importance and the amount of cooperation that

really drove us to want to come before you and give you the

opportunity to decide whether or not enough is enough, and I

hope you do, and to then also provide you what some other

courts have sentenced similarly situated defendants in terms of

level, but certainly not in terms of their cooperation both

with the United States and with the government of Colombia.

And, finally, just also again, almost in beating a

dead horse, but both of our submissions were abundantly clear

that in other cases risk of danger is something we talk about,

it's speculative. It's theoretical or hypothetical, rather.

Not the case here. There have been actual murder attempts on

his family. There have been actual murders of individuals that

he procured their cooperation, his own men, which when he

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demobilized, he told them, his last order as commander was you

will participate in Justice and Peace, you will tell the truth.

And some of those paid, who remained in Colombia, paid for

that, obeying that order with their own lives and the lives of

their families. We have the wife of one of his men was killed.

And those threats continue to exist and as highlighted by one

of his old associates being put in a coma a few months ago.

And, finally, I just wanted Court to be aware that he

has not and is not walking out of this a rich man. Far from

it. He's given everything up. 

And so for all of those reasons, your Honor, I would

again respectfully ask that you sentence this defendant to time

served, which is in effect a ten-year sentence, and I think

that certainly will meet all of the factors not only under

5K1.1, but, quite frankly, all of the factors under 3553(e).

Nobody looking at this defendant is going to feel that there

hasn't been a signal of deterrence. He's going to continue

paying the price, and he will continue cooperating with both

governments.

So I thank you for your patience and your time.

THE COURT: All right. Thank you, Mr. Oliva. Your

responses to my questions were very informative.

Ms. Surratt, does the government wish to be heard

further?

MS. SURRATT: Very briefly, your Honor.

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First, as a matter of administrative matters, as

Mr. Oliva mentioned, we are going to ask the Court to enter the

order of forfeiture that has been prepared and that all the

parties will sign. It's in the amount of $2.5 million and

that's on consent.

The second administrative matter, this morning I sent

over to your Honor's chambers the plea transcript from 2010

along with a plea acceptance letter. I believe that the U.S.

Attorney's Office did send this over in 2000, but I wasn't here

and neither were your clerks and we couldn't figure out if it

had been signed. So we passed it up again and I just wanted to

make sure the Court had seen it.

THE COURT: I have seen it and read it today. Yes.

MS. SURRATT: Thank you, your Honor. And my apologies

for doing this at the last minute, and thank you to your clerks

for noticing this.

So, your Honor, I don't have a lot to add beyond what

is in the 5K and beyond what Mr. Oliva just said. Like I said

earlier, the government's view is this is an extraordinary

defendant in all senses of the word. The first half of my 5K

submission is spent detailing what can only be described as

pretty horrific offense conduct. Like Mr. Oliva said, the

defendant was an AUC commander. And while he wasn't, in

Mr. Oliva's words, a pure narcotics trafficker, he was

intimately involved in the narcotics trade through his role as

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an AUC commander.

In that capacity, he participated in thousands of

murders, either by his own hand or by ordering people to do it

or by getting people killed in connection with AUC military

operations. So there's no question that the offense conduct

here was extremely serious, some of the most serious that this

Court has probably ever seen.

On the other hand, his cooperation was similarly

extraordinary. Mr. Oliva mentioned in his submission and I did

too in my 5K letter that the defendant began cooperating

immediately upon his arrest in Colombia, first meeting with law

enforcement authorities and then shortly thereafter with his

counsel meeting with the U.S. prosecutors, not me, but an AUSA

from ten years ago. It has been the experience with every USA

who has met with this defendant and, frankly, every law

enforcement officer, every Colombian official, and every member

of the U.S. government, that he has been candid and truthful

and helpful, really to an extent unseen in many cooperators.

The level of immediate truthfulness and candidness was really

extraordinary. And I know this from speaking with people who

were around at the time. Again, this wasn't me. Like

Mr. Oliva outlined, the level of detail and the level of

importance of the information that this defendant provided was

extraordinary.

So when your Honor asked at the outset whether it was

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the government's position that time served is the appropriate

sentence, the government still won't take a position other than

to say the government believes this is a hard question. It's a

hard sentencing given both of the equities in this case.

And beyond that, your Honor, I'm happy to answer any

questions. Otherwise, the government rests on its submission.

THE COURT: All right. I really don't have any

further questions for you. I think that several of the

concerns that I have expressed have really been addressed in

counsel's remarks. Obviously, this Court has never seen this

defendant until today and, therefore, I can only rely on the

submissions until I get to the sentencing proceeding.

It is a very difficult sentencing. And my initial

most serious concern about the imminence of an extradition has

really been I think adequately addressed by defense counsel and

I'm prepared to proceed with sentencing. 

But, first, would the defendant like to address the

Court?

THE DEFENDANT: Yes, your Honor.

THE COURT: I'll hear from him now. The defendant can

stand and just be close to the interpreter.

THE DEFENDANT: Your Honor, I would respectfully want

to express to you that I am completely sorry for having

participated in a war that was not something that I came up

with, but that I participated in. But as a result of the

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circumstances that exist in my country and that existed with me

led me to be involved in it. I was convinced that I was

fighting for my country, that I was fighting Communist

guerrillas, Communists that wanted to take over my country.

But, unfortunately, during that fight, we became involved with

a segment of the chain, of the drug trafficking chain. In

order to finance the war against the Communist guerrillas, the

FARC, that is why in 2004 I became -- it became clear to me

that that was not the fight that was proper. That is why

starting in 2004, I realized that that was not the proper fight

for my country.

I surrendered to the Colombian government and

immediately the U.S. government got in touch with me. I

started to cooperate in order to fight against drug

trafficking. That is the real fuel that is added to the war.

That is why I have made the commitment, first of all, with

myself to be committed a hundred percent with American and

Colombian justice. As a result of the sacrifices that my

family has had to endure, the danger that I have put them in,

and they have had to participate in witness protection programs

because during this process, I have had to reveal the

participation of the Colombian government, of businessmen, of

politicians, and many of the generals were part of the highest

ranking members of law enforcement in my country.

But I am not sorry for having helped law enforcement,

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and if I have to continue helping law enforcement, I will

continue to do so for the sake of my country, Colombia.

Because drug trafficking only leads our countries down the path

of poverty and violence. I am truly regretful of having

participated in those violent activities, and I am committed to

never again participating in any activity that is violent

against other human beings or anyone who is around me.

I ask my family's forgiveness for the sacrifices that

they have had to endure for what I did, and I promise that I

will never let them down again. I will not let them down nor

will I let down law enforcement.

Thank you very much, your Honor.

THE COURT: The defendant, Herbert Veloza Garcia,

comes before this Court having pled guilty to two very serious

crimes against the United States, conspiracy to import cocaine

and the distribution of cocaine.

This Court has reviewed the presentence investigation

report. I adopt the findings of fact in that report as my own

and will cause the report to be docketed and filed under seal

as part of the record in this case.

Mr. Veloza Garcia is responsible for trafficking more

than 450 kilograms of cocaine, a very significant amount of

cocaine which the guidelines recognize with a base offense

level of 43. Because the defendant was a leader of the AUC and

commanded numerous individuals and an organizer of the criminal

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activity here that involved five or more participants and was

extensive, a four-level role adjustment is appropriate.

Now, the defendant accepted responsibility for his

criminal conduct in a plea before Magistrate Judge Cott. I

have reviewed the minutes of that proceeding. I find that the

defendant's plea was knowing and voluntary and that he's

accepted responsibility and, accordingly, I grant him a

three-level reduction in the guidelines. 

And so his total offense level is 43. This is his

first criminal conviction in the United States. Under the

guidelines, that yields a guideline range of life in prison on

each count.

Now, the government moves here for a downward

departure. This Court has reviewed the government's

submission, understanding it somewhat better now after the

sentencing proceeding has moved to this point. I grant the

government's application for a downward departure for

substantial assistance.

And so the question for this Court is what sentence is

the appropriate sentence for this defendant.

As recounted in the extensive submissions both by the

government and defense counsel, the defendant became involved

with the AUC, a military organization in Colombia. Over time,

whatever ideological principles the AUC thought it was fighting

for were certainly corrupted by narcotics traffickers, and the

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AUC and this defendant became willing accomplices in the global

supply chain of cocaine from Colombia. The events recited in

both submissions of the defendant's conduct in Colombia are

appalling. The defendant acknowledges being responsible for

the deaths of thousands of people and various scenes are

recounted as vignettes in the submissions. The violence was

wanton and unchecked.

In the search to root out FARC guerrillas or others

who would undermine AUC and its tax collection efforts and its

drug trade, the defendant and others under his control would do

such things as go to a village disco at night intent on killing

two or three people who they believed were guerrillas working

against them and perhaps not even finding those people in the

disco but nevertheless opening fire and killing 20 or more

innocent people who were just out for a night at a disco.

The defendant must have truly been a terror to meet at

that time. And God help anyone who the defendant thought was a

threat to him or his organization.

Now, at the same time, this Court acknowledges that

the defendant ultimately surrendered to Colombian authorities

and has become an extremely valuable asset not only to the

government of Colombia, but to the United States. He's placed

his family and all of his relatives in very grave danger. As a

consequence of his acts, he's been separated from his family

for a very long time during his term of incarceration here.

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The government speaks in profound terms about his

cooperation in interrupting Colombian drug trafficking. And

the defendant appears to this Court to express genuine remorse

for his many year reign of terror. These were acts of war

against a civilian population completely unchecked.

This Court is mindful that the Colombian government

finds the defendant to be essentially its poster child for the

Justice and Peace program, that he will continue to work in

that regard, that it's likely that any sentence imposed now by

Colombia will be deemed to be served concurrently with any

sentence imposed by this Court. 

And so in trying to fashion a sentence, I'm trying to

take into consideration the gravity of the crimes here, the

duration, the defendant's role in them, and at the same time

his efforts to do something that no human being can do, turn

back the clock of time. He can't do that. But he can endeavor

to atone by cooperating fully with government authorities.

And so it's against that backdrop, Mr. Veloza Garcia,

that I'm prepared to impose sentence on you and I'd ask, sir,

that you stand.

Mr. Veloza Garcia, someone today or perhaps both

attorneys said this is not a run-of-the-mill case and it

certainly is not a run-of-the-mill case. In my 18 years on the

bench, I can't say that I've had a case that approaches this

case as I read through all of the submissions, both by your

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counsel and, quite frankly, the longest 5K letter I think I've

ever received. But I have to balance the severity of your

crimes with the work that you've done and continue to do for

the government.

And so it's against that backdrop that it's my

judgment that you be sentenced to a term of 132 months of

imprisonment, to be followed by a term of supervised release

subject to all of the standard conditions of supervised release

that I'm going to review with you in a moment and that the

government proposed in their letters, specifically that you

cooperate fully with the United States Attorney's Office for

the Southern District of New York, the Drug Enforcement

Administration, and any other law enforcement agency designated

by the United States Attorney's Office, that you attend all

meetings at which the United States Attorney's Office requests

your presence, that you truthfully and completely disclose all

information with respect to your activities concerning all

matters about which the United States Attorney's Office

inquires, and that you provide the United States Attorney's

Office upon request any document, record, or other tangible

evidence relating to matters about which the United States

Attorney's Office or any designated law enforcement agency

inquires of you, and that you truthfully testify before the

grand jury or at any trial or other court proceeding with

respect to any matters about which United States Attorney's

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Office may request your presence.

The term of supervised release is going to be seven

years of supervised release. And I'm going to impose, of

course, all of the standard conditions of supervised release as

I do with every defendant and that will include periodic and

random drug testing.

I am not going to impose any fine on you because

you're agreeing to an order of forfeiture here today and any

fine would be an exercise in futility.

I am imposing a mandatory $200 special assessment.

And I will sign the order of forfeiture.

Now, this, Mr. Veloza Garcia, constitutes the sentence

of this Court. I advise you that to the extent you have not

previously waived your right to appeal, you have the right to

appeal. I advise you further that if you cannot afford

counsel, counsel will be provided to you free of cost.

Mr. Oliva has done a remarkable and outstanding job for you in

his sentencing submission to the Court and his remarks here

today, and I am confident that he will advise you further with

respect to your appeal rights.

You may be seated.

Are there any further applications?

MS. SURRATT: One moment, please, your Honor.

Not from the government, your Honor. Thank you.

THE COURT: Anything further, counsel?

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MS. SURRATT: Your Honor, the government does move to

dismiss the underlying indictment since the defendant pled

guilty to the S1 indictment.

THE COURT: The government's application is granted.

MR. OLIVA: Your Honor, the reason I'm conferring with

counsel is because although he's not going to -- I expect based

on what I know of his sentence, it's probably going to be

another eight months before he gets released, give or take.

But he's still participating in the Justice and Peace process

and the Bureau of Prisons doesn't always understand that

because I've had that happen with other paramilitary defendants

that are involved in Justice and Peace, which is the process

that really is accounting for much of what the Court has

indicated today, as well, and I would just add that.

But for that reason, I would suggest either that in

your judgment and commitment order you include a

recommendation -- Bureau of Prisons, you know, will do what

they will do, but a recommendation from the Court in light of

the necessary participation in Justice and Peace that he be

designated either in -- I think the best institution right now

where they have video conference facilities and where they've

designated the other ones would be Miami FDC. The Federal

Detention Center in Miami is I think the one place where

they're doing that.

THE COURT: Just to be clear, what's the precise name

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of the institution?

MR. OLIVA: Thank you, your Honor. Miami Federal

Detention Center.

THE COURT: Okay.

MR. OLIVA: Miami FDC.

THE COURT: I will grant that and include it as a

recommendation.

MR. OLIVA: Thank you very much.

The other matter is, and this has also been done in

the other AUC cases and I think the government probably even

alluded to it in their submission, it's important that it's

also noted in the judgment and commitment order that he should

get credit for the time served from the moment that the

indictment was served upon him.

MS. SURRATT: Yes. The government certainly doesn't

object to the defendant getting credit for the time he spent in

Colombia.

THE COURT: I will indicate that as well.

MS. SURRATT: I actually spoke to the Bureau of

Prisons about this very issue this week, your Honor, in

anticipation of this sentencing and many others that I have.

It's my understanding that it certainly helps to have your

Honor note that and I'll confer with Mr. Oliva about that. But

I think BOP will want some sort of proof from us, from the

parties, about the amount of time he spent in Colombia; and

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Mr. Oliva and I will certainly take care of that.

THE COURT: I would ask that you make in the next day

or so a short letter submission to me containing the precise

language that you would like me to use in the judgment of

conviction that would also contain the date from the time of

his incarceration in Colombia.

MS. SURRATT: We will certainly do that, your Honor.

We will also make sure the BOP gets the documentation that they

need to support that language.

MR. OLIVA: Perfect. Thank you, your Honor.

THE COURT: Anything further?

MR. OLIVA: No, your Honor. We thank the Court for

the Court's time.

THE COURT: All right. Mr. Veloza Garcia, I will only

say to you, sir, in conclusion of this proceeding, that it is

only because of your extraordinary cooperation that

notwithstanding all of the horrendous things that you've done

in the course of your life that you are going to get the chance

soon to hit the restart button. And I trust that your attorney

will proceed promptly with the appropriate application to the

United States government with respect to your status. 

And I trust, sir, that I will not see you again for

any violation of supervised release because you've been given

an enormous break here in this case.

Do you understand, sir?

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THE DEFENDANT: Yes, your Honor.

THE COURT: All right. Good luck.

o0o 

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