Witnesses, Immunity, and Secret Data: How Lawyers Can Destroy the Case Against Maduro

The criminal case against ousted Venezuelan leader Nicolás Maduro has entered a new phase following his arrest and initial appearance in Manhattan federal court. However, the road to trial could take many more years. CNN tells the details of the case.

The criminal case against Nicolás Maduro remains one of the most complex in recent years. This is due to his former status as the leader of Venezuela, the need to prove an international narco-terrorism conspiracy, and the implications for US national security and foreign policy.

Maduro's defense is expected to attempt several legal strategies to stall the trial before it even begins.

On the subject: Joy, fear, and outrage: Venezuelans in New York reacted differently to Maduro's arrest.

On January 5, Maduro pleaded not guilty to all charges, including conspiracy to commit narcoterrorism, conspiracy to import cocaine, illegal possession of machine guns and destructive devices, and conspiracy to acquire them.

"It's not that he won't negotiate, but he'll push every button he can first," said Dick Gregory, a longtime federal prosecutor in Miami.

Dick Gregory participated in the investigation and trial of former Panamanian leader Manuel Noriega nearly 40 years ago. He became one of the few prosecutors to successfully bring the case to a verdict.

The Noriega case has a number of parallels with the Maduro case, primarily due to the rarity of situations in which the US forcibly seizes a foreign political leader.

Arguments about illegal detention

Lawyers for Maduro and his wife, Cilia Flores, are expected to argue that their detention was illegal.

In court, Maduro claimed he was "kidnapped" by US forces.

The defense will likely engage in a dispute with the US Department of Justice over access to evidence. A separate issue will be the use of classified information, specifically data related to national security.

Court-supervised secret materials handling procedures can add months to a case. In some cases, defendants attempt to extract sensitive information to force the federal government to abandon the case. This tactic is known as "gray-hat blackmail."

The evidence collected and plans for moving forward with the case are expected to be discussed at Maduro's next court hearing in Manhattan, scheduled for March.

Attempt to claim immunity

One key line of defense could be Maduro's attempt to claim diplomatic immunity as the head of a foreign state.

In court, Maduro declared that he was "still the president" of Venezuela. His wife, at the same hearing, called herself "the first lady of Venezuela."

Gregory recalled that the Noriega case featured some of the most heated debates over presidential immunity. Similar arguments were raised during the bribery trial of the Turks and Caicos Islands political leader, a case Gregory also handled some 40 years ago.

“It is absolutely clear that in order to obtain immunity as a head of state, one must be diplomatically recognized as the head of state,” he noted.

Many lawyers share this position. They believe that diplomatic recognition from the US State Department is the decisive factor.

Since 2024, the United States has officially considered Maduro the illegitimate leader of Venezuela. They recognize his opponent as the elected president. Manuel Noriega lost his claims to presidential and diplomatic immunity in 1990. In 1991, he was found guilty of importing cocaine and sentenced to 40 years in prison.

Gregory, among other things, recalled that Norman Saunders, who served as Chief Minister of the Turks and Caicos Islands in the 1980s, was also not recognized as head of state. At that time, the Queen was the formal head of state, as a British territory.

Will there be witnesses?

The question remains how determined the US Justice Department is to bring Maduro's case to trial.

His physical removal from Venezuelan territory has simplified one important task: it could lead to the emergence of new witnesses.

Gina Parlovecchio is a white-collar partner at the major law firm Mayer Brown. She was the former lead prosecutor in the case against Mexican drug lord Joaquín "El Chapo" Guzmán. Parlovecchio stated that it is likely that several individuals have already collaborated with the US Attorney's Office for the Southern District of New York in building the case against Maduro.

The agency has previously prosecuted other individuals associated with Maduro, including the nephews of his wife, Cilia Flores. Federal authorities are closely monitoring the activities of five designated foreign terrorist organizations. They are named in the indictment as participants in a drug trafficking scheme from Venezuela to the United States.
At the same time, as lawyers note, attracting cooperating witnesses to participate in court proceedings often becomes a serious problem.

Deaths of witnesses and disappearance of documents

Gregory recounted a high-profile incident. He said one of the witnesses in the Manuel Noriega case died in a suspicious car accident several days before his scheduled testimony. The witness was scheduled to testify against one of Noriega's co-defendants.

Gregory also recalled the murder of Drug Enforcement Administration informant Barry Seal, who was shot and killed by a drug cartel hitman in Louisiana in the 1980s.

"He was killed before the trial even started. There were some incidents that were concerning," Gregory noted. "There was a witness who had the documents I was looking for, and those documents disappeared."

According to Gregory, the other defendants in the Noriega case were placed in the witness protection program. They gave up their previous identities and were given new names. Their residences were determined by the federal government.

Links to drug cartels

The indictment against Maduro, unlike some other drug trafficking and money laundering cases, is less specific regarding the transactions. However, prosecutors included several instances that appear to indicate the presence of witnesses.

In one such incident, prosecutors allege that in 2013, Maduro told other suspected drug traffickers that they should not have shipped more than one ton of cocaine on a commercial flight that landed in Paris. The cargo was seized by French law enforcement.

The indictment links Maduro to five narco-terrorist organizations:

• FARC and ELN, which produce cocaine in Colombia;
• Sinaloa Cartel and Los Zetas – they transport cocaine from Central America through Mexico to the United States;
• Tren de Aragua, which helps smuggle cocaine out of Venezuela.

Several former prosecutors believe the US Justice Department would only have charged and detained Maduro if it had deemed the case strong enough.

Some of them believe the ousted leader may want to face a jury trial.

"I think they're probably counting on a trial," Parlovecchio suggested. She pointed out that two of Flores' nephews, known as the Narcosobrinos, were found guilty by a jury in 2016 of cocaine trafficking.

Is a deal possible?

According to Parlovecchio, the charges against Maduro are extremely serious. They carry a potential life sentence for conspiracy, as well as decades of imprisonment for weapons-related violations.

She cited her own case in the Eastern District of New York as an example. El Chapo also stood trial and was found guilty. He is currently being held in the only supermax prison in the Federal Bureau of Prisons system in Colorado. El Chapo is serving a life sentence for leading a drug trafficking organization.

The question remains: will the US government be willing to negotiate or make a deal with the captured leader?

According to federal court data, the vast majority of federal criminal cases end in guilty pleas, either as part of a plea bargain or to avoid trial.

A legal and geopolitical deal involving Venezuela could arise at any moment, especially if the foreign policy situation changes or the matter drags on beyond Donald Trump's presidency.

However, Gregory stated that prosecution of a foreign leader in a drug trafficking case almost always focuses on trial. This is due to the scale of the effort required to bring charges and apprehend such a defendant.

"We were constantly moving the case toward trial. And if I brought charges, I intended to take them to trial," Gregory said on January 6, recalling the Noriega case.

Maduro's lawyer, Barry Pollack, is a national security and financial crimes defense specialist based in Washington, D.C.

Pollack has experience working on high-profile cases with political implications. He previously participated in the settlement of the criminal case against Julian Assange.