(Not) of Counsel

One of the hallowed precepts of the American justice system is that a defendant is entitled to the counsel of his choice -- or at least the best counsel that he can afford. For Dan De La Garza, a Woodlands businessman facing federal money-laundering charges, that was Kent Schaffer and Dan Cogdell, two of Houston's premier criminal-defense attorneys.

But last week, in the latest strange twist in a long-running tale of drugs and deceit [see "Snitch Vs. Snitch" in the August 28 Houston Press], U.S. District Judge Lee Rosenthal disqualified Schaffer and Cogdell from representing De La Garza, citing their role in the arrest of the government's key witness against their client --even though the witness's contact with the lawyers was encouraged and facilitated by the government.

In removing Schaffer and Cogdell from the case, Rosenthal also rejected their motion to dismiss the four counts of money-laundering against De La Garza. The lawyers had argued that the charges should be dropped "due to outrageous conduct by the government." In effect, they accused an assistant U.S. Attorney and an agent for the Drug Enforcement Administration of promoting a criminal act by De La Garza's longtime nemesis, and the government's key witness, Jorge Arroyo.

Schaffer was stunned by Rosenthal's ruling, claiming that the judge was protecting the prosecution from the result of its own illegal acts -- much as a parent shields an unruly child from the consequences of his behavior.

"I guarantee you, if I had tried to do the kinds of things they did in this case, I'd be in jail right now," says Schaffer. "My attorney would be arguing to the judge to at least let me stay out for Hanukkah. But yet, when the government does it, everybody kind of winks at each other and looks the other way."

The charges against De La Garza are based in large part on information provided to federal authorities by Arroyo, a native of Bolivia who, like De La Garza, was once an informant for the DEA. But the government's case was dealt a seemingly critical setback last summer when Arroyo was arrested after asking Schaffer and Cogdell to pay him $50,000. In return for the money, Arroyo had promised to leave town without testifying against De La Garza.

The attempted extortion was typical of the murky relationship between De La Garza and Arroyo. The two hooked up in 1984, when De La Garza, then working as a DEA informant, joined with Arroyo to personally smuggle cocaine into the United States from Bolivia. Arroyo was a suspected smuggler and the former son-in-law of Hugo Banzer Suarez, who claimed the Bolivian presidency in a 1971 military coup reportedly financed by Bolivian drug lords.

De La Garza has said that the smuggling trip was part of a DEA plan to bust Arroyo. But things didn't go according to plan, at least for De La Garza: He was detained during a stopover in Colombia and spent the next two years in a Bogota prison. Arroyo, meanwhile, was arrested after arriving in the United States. De La Garza has maintained that he was set up for arrest in Colombia by Arroyo and a DEA agent named Roger Norman.

After his release from jail, De La Garza returned to Houston and prospered, making millions in real estate. But he still occasionally ran afoul of state and federal law, and he still kept in touch with DEA snitch Arroyo --apparently in hopes of evening the score for his imprisonment in Colombia. But Arroyo also apparently entertained the notion of revenge, and it was he who informed federal investigators that De La Garza was interested in laundering drug money. (De La Garza has denied the accusations to the Press, saying his only connection with drugs has been as a DEA informant.)

Three days before De La Garza's trial was set to begin in August, Arroyo called Schaffer and Cogdell and asked them to meet him at Houston's, a usually crowded restaurant on Kirby Drive. Arroyo had just returned to the United States from Brazil to testify against De La Garza, so the two attorneys were, naturally, interested in talking with him.

But Arroyo didn't come to the restaurant to discuss the facts of the case; instead, he solicited the $50,000 from the attorneys. Schaffer and Cogdell say they were dumbfounded by Arroyo's request, and they arranged for a second meeting the next day.

In the meantime, the lawyers notified District Attorney Johnny Holmes. After being wired for sound and provided with $50,000 in "flash money" by the D.A., the attorneys met with Arroyo in Schaffer's office. With the tape rolling, Cogdell made it clear that all parties believed the $50,000 guaranteed that Arroyo wouldn't testify against De La Garza, and that the idea had been Arroyo's. After Cogdell left the room, Schaffer handed the cash over to Arroyo, who was subsequently busted by waiting investigators from Holmes's office.

Arroyo is now in prison after pleading guilty to a federal charge of obstruction of justice.

During a hearing last month on Schaffer's motion to have the charges against De La Garza dismissed, DEA agent Norman, who was Arroyo's supervisor at the agency, testified that the government was aware that Schaffer and Cogdell had been trying to get in touch with Arroyo since May. The agent claimed Arroyo feared that the attorneys were attempting "to set him up," although he said the informant didn't tell him why or how, and he didn't bother to ask. Norman testified that he contacted assistant U.S. Attorney Robert Stabe, the lead prosecutor in the De La Garza case, and they arranged for Arroyo to reach the attorneys by phone from Brazil. Those calls, Norman admitted, were monitored and recorded by the feds.