September 24, 2021
Two ex-Miami cops aim to overturn their convictions for protecting cocaine shipments
 
 
By Jay Weaver
 

It was such a scandalous corruption case that the mayor of Miami appeared alongside the police chief, the regional head of the FBI and the U.S. attorney for a news conference showcasing the crime.

A group of Miami police officers working off-duty details were accused of pocketing thousands of dollars to protect loads of cocaine being transported in suitcases and coolers to hotels in the city.

One veteran officer cooperated early on and got a light probationary sentence. Another seasoned officer, who threatened a younger cop that he would end up dead in Biscayne Bay if he didn’t stick with the protection racket, pleaded guilty before trial and was given more than 15 years.

The younger officer, James Archibald, whose father is a church pastor in Miami, was found guilty of a drug-trafficking conspiracy at a 2019 trial and received 10 years in prison. A fourth officer, Kelvin Harris, who had been on the force for a quarter century, was also convicted of the trafficking conspiracy along with possessing a gun during the illicit transports. Harris got hammered with a 27-1/2 year sentence.

Now both ex-Miami cops, who had worked in the city’s north district station in Model City, are seeking to overturn their drug-trafficking convictionsbefore a federal appeals court. A three-judge panel of the 11th U.S. Circuit Court of Appeals recently heard their lawyers’ arguments and are expected to issue a ruling later this year.

Archibald, 35, claims U.S. District Judge Cecilia Altonaga failed to give the federal jury an instruction on the “duress” he encountered in his dealings with fellow officer Schonton Harris, who cut a plea deal before trial. More significant, Archibald claims that the judge gave an incorrect instruction on entrapment when the jury inquired about his alleged involvement in protecting two cocaine shipments during a sting operation directed by the FBI in the fall of 2018.

Archibald, who had been on the force for a couple of years as a neighborhood resource officer, was not under suspicion of any criminal activity when Schonton Harris, a 20-year veteran, recruited him to protect the cocaine shipments orchestrated by federal agents posing as drug dealers. Harris repeatedly threatened him if he tried to retreat from his role in the protection ring, according to Archibald’s appellate lawyer. In addition to protecting drug loads, Harris herself was accused of selling a police uniform and badge for use by a purported hit man, or “sicario.”

“This case is about an entrapped rookie police officer threatened by his only contact,” said Archibald’s Miami appellate attorney, Ashley Litwin, alluding to Schonton Harris during oral arguments earlier this month.

She argued that the 12-person jury at Archibald’s trial “was not instructed on any legal way to find [him] not guilty.”

The FBI directed two sting operations targeting three officers, Schonton Harris, Kelvin Harris and Archibald. A fourth officer, Catina Anderson, was confronted by the feds beforehand in a separate probe involving her protection of opioid dealers. She agreed to assist the agents in their undercover operation by initially recruiting Schonton Harris. In turn, Harris recruited Kelvin Harris and Archibald.

In all of the undercover schemes, the FBI used sham cocaine, but the three targeted cops believed the white powder packaged in bricks was actual cocaine, according to prosecutors.

On Sept. 28, 2018, all four officers were present as they protected undercover dealers moving two suitcases of cocaine from a Greyhound bus station to two hotels, the Yves and Extended Stay, near Jackson Memorial Hospital. At trial, the jury found Kelvin Harris guilty of this crime, but not Archibald.

Then on Oct. 11, 2018, Schonton Harris and Archibald helped carry two coolers containing cocaine from the Crandon Park Marina on Key Biscayne to two local hotels, the JW Marriott in Miami and the Courtyard Marriott in Coral Gables. Kelvin Harris and Anderson, the cooperating witness, provided protection. The jury found both Kelvin Harris and Archibald guilty of this crime.

Archibald’s appellate lawyer pointed out that before the jurors acquitted him of protecting the first drug load but convicted him of protecting the second shipment, they asked the judge a critical question about potential entrapment. The risk of entrapment is a concern in any sting operation. For decades, such evidence has been allowed as long as cooperating witnesses, confidential informants and undercover investigators don’t induce potential targets to commit crimes they otherwise wouldn’t. In other words, authorities can’t entrap their targets just to make arrests and prosecutions. They have to show the targets are predisposed.

At trial, the jurors asked Altonaga if they should apply the entrapment definition to each of the two dates of the drug transports or should their decision be based only on the initial date. The judge told the jurors to consider the entrapment issue for each date, not just the initial one.

Litwin told the three-judge appeals panel that the jurors’ split verdicts showed they were “confused” by the judge’s instruction. In effect, she said, the jury found that Archibald was entrapped by the undercover agents in the first instance but not in the second because Altonaga made a mistake in her entrapment instruction. In other words, Litwin reasoned, how can Archibald go from being entrapped to not being entrapped over the course of a month — he either was or he wasn’t entrapped, starting with the first drug shipment.

A Justice Department lawyer sharply disagreed with Archibald’s appeals attorney, saying he was “no rookie” and that he had eagerly interacted with fellow cops and FBI undercover agents in the drug-trafficking conspiracy for a month. At one point, Archibald said he was “all in,” Justice Department lawyer Robert Parker told the appeals court panel.

Moreover, he said, Archibald accepted $6,500 in payoffs and gave an incriminating statement to FBI agents on videotape after his arrest.

“The idea that he, a police officer, had no opportunity during that time to alert law enforcement or otherwise get himself out of this situation simply is not credible,” Parker told the appeals panel on May 13. “I don’t think it’s a stretch to say a reasonable police officer would realize they had an opportunity to blow the whistle on serious criminal conduct.”

The appeal by Kelvin Harris, 55, who had worked at the front desk of the north district police station, appears to be a greater legal challenge. His appellate attorney, Rod Vereen, who had represented him only during the sentencing part of the trial, said the feds’ cooperating witness, Anderson, lied to the grand jury.

Vereen said Anderson made “numerous” false statements to the grand jury about Kelvin Harris’ helping offload two containers of cocaine at the Crandon Park marina on Oct. 11, 2018. Harris was actually sitting with Anderson in her police cruiser just outside the marina, when the other two officers, Schonton Harris and Archibald, picked up the drug coolers, according to the trial court record. He argued that Anderson’s lie as the government’s main witness should have been enough to get the indictment against Kelvin Harris thrown out before trial.

Vereen argued that Anderson was later confronted about her statements by defense lawyers at trial, when she admitted that she was actually in the marina area but did not directly witness the unloading of the cocaine. He said the lead federal prosecutor, Harry Wallace, did not correct the inconsistency. Anderson testified at trial she was mistaken, that she actually witnessed Kelvin Harris assist Schonton Harris and Archibald with the unloading of the cocaine coolers at the downtown Marriott hotel that October — not at the marina.

“The government was aware she was testifying falsely [before the grand jury] and allowed her testimony to go uncorrected,” Vereen told the appellate panel.

U.S. Circuit Judge Jill Pryor noted that when Anderson testified at trial, she admitted her testimony was “incorrect” and that she said she had been confused about the sequence of events.

Fellow Judge Stanley Marcus zeroed in on this issue but pointed out that Anderson’s false statement at the grand jury was rendered “harmless” because the overall trial evidence led to the jury’s conviction of Harris. His trial attorney, Jonathan Schwartz, also never filed a motion to dismiss the indictment based on her grand jury statement — a critical mistake.

Parker, the Justice Department lawyer, further blunted Vereen’s main argument.

“There was an enormous amount of other evidence put forth to the grand jury,” Parker said, echoing Marcus’ point that the trial jury “heard all this evidence and convicted [Harris] beyond a reasonable doubt.”

At trial, Harris claimed improbably that he was working as an undercover cop during the course of the FBI sting operation, even though he accepted $10,000 in bribery payments and made no personal record of his investigative activities.

At sentencing, Judge Altonaga found that both Harris and Archibald were “not truthful” during their testimony. But Harris received the harsher punishment because he was found guilty of possessing a gun while protecting the cocaine shipments.

As for 55-year-old Schonton Harris, she asked Altogana to free her from prison based on a request for compassionate release, citing her poor health and the risk of contracting the coronavirus behind bars. This month, the judge rejected her bid, saying she had already been given the COVID-19 vaccine and that she had not not even served half her prison term.