A FIRST IN MONTCO: Unique Defense Strategy Waged at Drug Smuggling Trial

Last week, a Norristown businessman offered a defense strategy never before waged in Montgomery County to charges he smuggled heroin for a drug trafficking organization, claiming he did so under duress by a Mexican drug cartel that threatened his relatives.

“They told me I had to work with them. They were going to kill my brothers in Mexico,” David Pacheco testified in county court, referring to men who visited his Norristown towing business in early 2015 and who he believed were representatives of the violent Mexican drug cartel known as New Generation Cartel Jalisco.

David Pacheco/Photo by Carl Hessler Jr.

Courthouse insiders and seasoned defense lawyers told me they believed it was the first time such a defense was waged in a county courtroom. They were watching the trial closely.

Well-known defense lawyer John I. McMahon Jr. argued to jurors during his opening statement that prosecutors had to prove that Pacheco, 45, was not acting under duress by the Mexican drug cartel and its associates at the time he smuggled the drugs.

McMahon claimed duress is an “absolute defense” to criminal charges and arises under circumstances when, although an individual committed the acts that would constitute a crime, that he only did so based on the threat of violence to him or others. McMahon argued Pacheco was under extreme duress and was not guilty of the drug-related offenses with which he was charged.

While District Attorney Kevin R. Steele and co-prosecutor Robert Kolansky argued Pacheco willingly smuggled heroin inside retrofitted car batteries from Atlanta to New York City, via Montgomery County, out of greed to make money with the “poison he was peddling,” McMahon argued Pacheco was a “mule” threatened and intimidated by the cartel to cooperate.

Montgomery County DA Kevin R. Steele/Photo by Carl Hessler Jr.

McMahon, a prosecutor turned defense lawyer who has a reputation for being a zealous advocate for his clients, relied on a scholarly expert on Mexican cartels to argue the cartels use extortion, the threat of kidnapping family and relatives and even murder to get otherwise law-abiding Mexican immigrants to assist them.

John I. McMahon Jr./Photo by Carl Hessler Jr.

Pacheco came to the U.S. 18 years ago, has no criminal record and operated a successful towing business, D&J Towing in Norristown, testimony revealed.

McMahon argued Pacheco initially rebuffed the requests of cartel associates who visited him but caved in when cartel members revealed they had photos of his relatives and knew where they lived.

In the end, the jury apparently did not buy the duress claim as an excuse for the conduct, convicting Pacheco of nine counts of possession with intent to deliver heroin.

But the trial offered spectators an education about Mexican drug cartels and a view of a defense strategy never before seen at a county trial.

IN A RELATED MATTER 

When it came time for the defense expert on Mexican cartels to testify via the Internet from California, his image displayed on a large television monitor for jurors, there was a glitch when officials couldn’t get the sound to work properly.

“Ladies and gentlemen, this is the part you don’t see on TV,” Judge Garrett D. Page addressed jurors, eliciting laughter from the panel, referring to the legal dramas so popular on television. “Technology isn’t perfect. Thank you for your patience.”

Judge Garrett D. Page/ Photo by Carl Hessler Jr.

After several minutes, officials worked out the technological problems and the trial resumed.