Explosive U.S. drug-trafficking allegations against Mexico’s former defense minister rely largely on circumstantial evidence, diminishing the chances that the Mexican government could bring a case against him to trial or could convict him in a Mexican court if it did, according to people in both countries familiar with the case.
American agents arrested Gen. Salvador Cienfuegos in October as he arrived in Los Angeles for a family vacation, accusing him of taking bribes in exchange for protecting cartel leaders during his time as defense minister from 2012 to 2018.
The surprise arrest, which angered civilian and military officials in Mexico who thought the U.S. overstepped its bounds, was followed by a bigger shock when the U.S. dropped the charges just over a month later and returned Gen. Cienfuegos to Mexico. U.S. officials said foreign-policy considerations, including law-enforcement cooperation between both countries, played a big role in the decision. They passed the results of their investigations to their Mexican counterparts and let Mexico decide whether to investigate and possibly charge the general.
U.S. federal prosecutors insisted in court hearings and filings that the evidence was strong against the retired general, who played a leading role in Mexico’s counternarcotics strategy when he headed the armed forces.
In a letter to a U.S. federal judge after the general’s arrest, prosecutors from the U.S. attorney’s office in Brooklyn pointed to thousands of intercepted BlackBerry messages that they said showed Gen. Cienfuegos had communicated directly with a senior cartel leader, as well as to communications in which he is identified by name, title and photograph as assisting the cartel.
But people familiar with the probe in both countries say the evidence is primarily circumstantial. They say the report the U.S. provided to Mexico lacks direct evidence of the retired general’s involvement.
The publicly filed letter, which aimed to lay out to the judge the grounds for Gen. Cienfuegos to remain detained after his arrest, only cited one specific detail from his alleged messages with a leader of the H-2 cartel—that he had discussed his “historical assistance” to another drug trafficking group.
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U.S. investigators disagreed with each other over how persuasive the evidence would be in U.S. court, people familiar with the matter said. Some federal agents involved in the case became concerned that the evidence, which also includes wiretapped conversations among cartel members, wouldn’t be strong enough to secure a conviction.
Justice Department spokeswoman Nicole Navas said the agency dismissed the case because of foreign-policy concerns, “not because of any perceived weakness in the case.”
She added in a statement: “Whether the government of Mexico proceeds with its own prosecution is a decision that it must make based on its laws, but the United States always reserves the right to recommence its prosecution of Cienfuegos if the government of Mexico does not do so.”
U.S. prosecutors said in the same letter sent to the federal judge that the case was also backed up by events on the ground, such as drug seizures, which corroborated other evidence pointing to the ex-defense minister’s involvement.
The office of Mexico’s Attorney General declined to comment, saying the investigation is continuing.
The case represents a potential political liability for Mexican President Andrés Manuel López Obrador. Prosecuting the former general could anger the army and lead to other cases against top generals, weakening an institution that the president relies on for much of his agenda, from building a new Mexico City airport to confronting powerful cartels.
Failure to prosecute the former general, however, might also undermine the president’s vow to crack down on corruption in Mexico. Polls show most Mexicans think the general is guilty but won’t be prosecuted or convicted for political reasons.
A case built largely on circumstantial evidence is likely to have an even harder time succeeding in Mexico’s legal system than in the U.S., Mexican legal experts say. For indirect evidence to be deemed admissible by a Mexican judge, it has to be substantiated with other elements such as financial movements or witnesses, said Ulrich Richter, a Mexico City lawyer who has served as a defense attorney in high-profile corruption trials.
“If the Mexican prosecutor has to build a case and doesn’t have direct evidence, it’s likely that in a few months he’ll turn to the U.S. and ask: ’What else do you have that a Mexican judge can admit?’ ” he said.
Despite U.S. hopes that releasing Gen. Cienfuegos would safeguard security cooperation between the U.S. and Mexico, Mr. López Obrador this month pushed a law through the nation’s Congress that U.S. officials say could cripple bilateral law-enforcement ties.
The law, which requires strict regulation of meetings between local, state and federal Mexican officials and foreign agents, would regulate the activities of the 50 Drug Enforcement Administration agents stationed in Mexico. The law “can only benefit the violent transnational criminal organizations and other criminals that we are jointly fighting,” U.S. Attorney General William Barr said earlier this month.
One former U.S. law-enforcement official with knowledge of the investigation said Mexican officials were trying to cast doubt about the strength of the case to move public opinion toward ending the investigation and not prosecuting the general.
Gen. Cienfuegos’s return puts an uncomfortable spotlight on Mexico’s judicial system. More than nine in 10 crimes are never reported or punished, according to the country’s statistics agency.
“This is really a test for Mexico’s justice system,” said Earl Anthony Wayne, a former U.S. ambassador to Mexico, pointing to what he said was the army’s growing power and secrecy. “They have to handle it in a credible way.”
—Aruna Viswanatha contributed to this article.
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