Legal counsel acting for Nicanor Gates, the Palauan emigrant who was convicted by a jury at the Palau Supreme Court last week for criminally conspiring to import Methamphetamine from California to Palau, has asked the court to set aside the guilty verdict and acquit Gates.

Last week Thursday, jurors returned a ‘guilty’ verdict against 58 year-old Nicanor Gates after they were shown a video depicting him mailing a package, later found to be filled with over 160 grams of Meth, to Palau at a California post office.

In a motion filed at the Supreme Court in Koror this week, former president and experienced defence attorney Johnson Toribiong argues that his client Gates should be acquitted by the judge on the basis of the rules of criminal procedure, despite the jury verdict.

Toribiong’s motion argues that the government failed to provide sufficient proof that Gates had entered into a criminal conspiracy with either Julio Kazou, who is an in-law relative of Gates, or George Remeliik; the two other men facing criminal charges in relation to the drug-filled parcel. Angaur-resident Julio Kazou and Koror-resident George Remeliik are both due to face trials on drug-crime charges later this year. It is understood that they both intend to contest the charges against them. As such Kazou and Remeliik are both fully entitled to the presumption of innocence at this time.

“There is no evidence proving beyond reasonable doubt that the defendant had a prior agreement with the alleged principal Julio Kazou or his co-conspirator George Remeliik regarding the trafficking of a controlled substance”, Toriboing claims, as he sets out the grounds for the motion.

Merely mailing the drug-filled parcel from California to Palau, Toribiong’s motion argues, does not constitute a crime “unless the two elements of the crime of conspiracy, criminal intent and prior conspiratorial agreement are proven beyond a reasonable doubt”. In support of his arguments, Toribiong cites a plethora of case law from the US, including the 2017 11th Circuit Federal Court of Appeal decision in the case United States vs. Louis. In that case, the court had overturned a drug conspiracy conviction on the grounds that, when the evidence was interpreted in the light most favourable to the government, a reasonable jury could have concluded only that the defendant, Louis, “knew he was involved in something illegal”, whereas there was no evidence support a conclusion that the defendant specifically knew a “controlled substance (as opposed to any other contraband)” was involved.

At Gates’ trial, public prosecutors from the Attorney General’s Office had argued that Gates had entered willingly and knowingly into a criminal conspiracy with his relative-in-law Julio Kazou to traffick Meth. Their case had been bolstered by trial testimony from Narcotics Enforcement Agency officers regarding phone records that allegedly showed there had been telephone calling between phone numbers associated with Kazou in Palau and Gates in California. There was no suggestion Gates had ever known or met George Remeliik.

In the motion urging the court to enter a judgement of acquittal, attorney Toribiong argues that there is no evidence that Gates had knowingly entered into any such criminal conspiracy to traffic drugs with Kazou. On the contrary, Toribiong alleges that “there is evidence that Julio Kazou told Director of the NEA, Officer Ishmael Aguon that Defendant [Nicanor Gates] and his wife are not involved in the case”.

Toribiong makes an unusual argument in support of the assertion that Gates’ and Kazou could not have made a conspiratorial agreement to traffic drugs. Veteran drug dealers, Toribiong’s motion concludes, do not make agreements about trafficking drugs by international telephone calls. This argument implies that drug criminals only ever make their agreements at secretive personal meetings, given that making international telephone calls leaves behind call records that could later be used by as incriminating evidence by investigators.

As there is no suggestion that Julio Kazou and Nicanor Gates met personally in the time immediately leading up to the parcel being sent, “the only means by which Defendant [Nicanor Gates] and Julio Kazou could have made a conspiratorial agreement to traffic methamphetamine was through telephone calls between Palau and California. For anyone to assume that an experienced drug dealer, Julio Kazou, to have done so through international phone calls is naïve as such agreements are normally made in secret”, the motion filed by Toribiong states.

However, a highly experienced drug enforcement expert strongly disagreed with Toribiong’s assertion that drug dealers do not commonly use telephones to arrange trafficking deals. Gregory D. Lee is a retired United States Drug Enforcement (DEA) Supervisory Special Agent. He has written multiple books on investigating terrorism, drugs as well as organised crime. During his time working for the US DEA on overseas operations in Pakistan directly took part in the arrest of 1993 New World World Trade Centre bombing terrorist mastermind Ramzi Yousef.

“I think”, Lee stated, “the attorney is being desperate to overturn the conviction. Drug dealers, whether they are experienced or not, frequently use the telephone to arrange both domestic and international drug deals. Almost always these phone calls are cryptic, substituting innocent words for specific drugs, e.g. “Send me 10 white shirts,” could mean to send him 10 kilograms of cocaine. Considering the distance between California and Palau, it seems inconceivable that telephonic communication was not made…. There are endless possibilities how the drug transaction was arranged, but in all likelihood, a telephone was most probably utilized to finalize the details of the transaction.”

Thursday afternoon this week, a judge at the Supreme Court in Koror clarified that the court had, during the trial, orally denied a motion by the defendant for acquittal prior to the jury’s verdict, as it believed that either verdict, guilty or not guilty “a reasonable doubt or no reasonable doubt was fairly possible”. In the order, the judge also noted that the court intends to hold a hearing on the new written motion submitted by Toribiong this week for a judgement of acquittal once counsel for both sides have had time to fully brief the matter in line with the applicable appellate standards. It remains entirely uncertain how or when the judiciary will rule upon attorney Toribiong’s motion for the jury verdict against Gates to be set aside and a judgement of acquittal entered.

Nonetheless, the case of drug-parcel mailer Nicanor Gates seems certain to keep courts in Koror busy for months to come. (Colin C. Cortbus)