The 25-year prison term given to Baktash Akasha on Friday would likely have been more severe had the presiding US judge not taken account of mitigating factors cited by the confessed drug lord and his defence attorney.
Prosecutors had asked Judge Victor Marrero to sentence Baktash to life in prison in response to his guilty plea 10 months ago.
He had admitted committing numerous drug-related crimes as well as obstructing justice by bribing several Kenyan officials.
Baktash could actually end up serving less than 20 years, defence attorney George Goltzer suggested following Friday's court session.
The 42-year-old Kenyan could receive a potential reduction of more than three years for good behaviour in prison, in addition to being credited for the two-and-a-half years he has spent in a New York detention centre.
Baktash will be deported to Kenya upon his eventual release from a penitentiary in the US.
His destination in the US prison system is not yet known, but an aide to Mr Goltzer said that “deportable aliens” such as Baktash are sometimes sent to a privately-run Moshannon Valley Correctional Institution in the state of Pennsylvania where inmates are housed in dormitories.
USD 100,000 FINE
Baktash was also slapped with a $100,000 (Sh10 million) fine as part of the punishment meted out by Judge Marrero.
“This case presents the court with some unique circumstances” that present “especially hard choices,” the federal judge said near the close of Friday's 75-minute sentencing session.
He observed that Baktash had sought to smuggle large quantities of heroin into the US.
The elder Akasha brother also owned he used multiple firearms, and engaged in “corruption of government institutions” in Kenya, Judge Marrero added.
But echoing an argument made by defence attorney George Goltzer, the judge added that Baktash's plan to ship heroin into the US had not been “fully consummated.”
There was also no indication that his weapons, including machine guns, were used directly in connection with the heroin smuggling plot, Judge Marrero said.
He further noted that Baktash had agreed to supply heroin to the US market at the instigation of a US undercover agent who was posing as a Colombian drug dealer.
Judge Marrero took note of Mr Goltzer's contention that Baktash was ensnared via a “sting operation.”
Despite the prosecution's failure to win a maximum sentence, the top prosecutor for the Manhattan Federal Court district depicted the outcome as a victory for US law enforcement.
“Akasha was once one of the world’s most prolific and violent drug traffickers, but today’s significant sentence of 25 years in prison all but guarantees he will never profit from the illicit drug trade again,” said US attorney Geoffrey Berman.
“Akasha, along with his brother, ensured that their enterprise operated with impunity for nearly 20 years by eliminating and intimidating rival drug traffickers with violence and murder, and bribing Kenyan government officials to avoid extradition to the US,” Mr Berman added.
In a direct attempt to persuade Judge Marrero to act with “mercy,” Baktash rose in court to offer apologies for his violations of US law.
“I am truly guilty of these crimes, and I stand ashamed,” he said while reading from a written statement he had prepared.
“I only have myself to blame,” Baktash added, his voice quavering at times during his five-minute plea for a sentence closer to a 10-year minimum term than to the maximum of life behind bars. “I need to change who I am as a person,” he added, his chin slumping toward the neckline of his beige prison uniform.
Baktash voiced remorse for “the harm I have done not only to myself but to all those who love me.” And he acknowledged, “I have denied myself so many precious moments I should have had with my family.”
The murders of his father and one of his brothers changed his life for the worst, Baktash said.
“I truly wish I could turn back the clock knowing what I know now,” he said.
Attorney Goltzer, in his own presentation to the court, said Baktash had “supported scores of people” in Kenya for many years. “They love him,” the lawyer declared.
Fishermen in Mombasa were among Baktash's beneficiaries, Mr Goltzer added. If they were having a bad season, Baktash “helped them out.”
The seasoned attorney conceded that his client had committed serious crimes for which he should be punished.
“He was greedy. He made terrible choices, but you can't compare him to the kind of criminal who caused hundreds of thousands of overdoses in the US,” Mr Goltzer told the judge.
The attorney referred specifically to Mexican narcotics kingpin El Chapo “who caused mayhem in the United States” and who deserved the life term in a “supermax” prison to which he had recently been sentenced.
None of the heroin that Baktash hoped to smuggle into the US ever reached that destination, Mr Goltzer noted.
“Mr Akasha is a very complex human being — not some sociopath who kills on whim,” Mr Goltzer said.
He noted, “it is very unusual” in the Manhattan federal court district for a plea of guilty to result in a life sentence. Mr Goltzer said that during the course of his career he had “represented scores of people charged with murder, and many did not get anything close to life sentences.”
US prosecutors sought during a hearing last month to link Baktash to the 2014 contract murder in South Africa of a drug gangster identified as Pinky.
Judge Marrero appeared at the conclusion of the July 25-26 session to have accepted that claim.
Baktash “may have had an evil heart, but he did not have the capacity to kill anybody in South Africa,” Mr Goltzer said on Friday in response to the prosecution's Pinky allegation.
“He didn't kill anybody in Kenya,” the attorney added.
That assertion stood in contrast to prosecutors' accusation that Baktash had murdered his second wife. The US government's lawyers had not offered any direct evidence in support of that claim, nor was Baktash formally charged in the US with any homicides.
“Baktash Akasha never harmed his second wife,” Mr Goltzer said in a rising voice. “Anybody who claims he did is a liar. It's a slander.”
The attorney added that his client “feels terrible about his brother” Ibrahim who has also pleaded guilty to the US prosecution's charges. “He didn't want his brother to take responsibility for anything he did. He thinks his brother should be sentenced to less time.”
OBSTRUCTION OF JUSTICE
Ibrahim is scheduled to learn his fate in Judge Marrero's courtroom on November 8. His defence attorney, Dawn Cardi, said outside the court on Friday that she expects Ibrahim to be given a 15-year sentence.
In regard to the obstruction of justice count against Baktash, attorney Goltzer described Kenya as “a post-colonial third-world society where everybody is for sale.” Baktash is “not responsible for that,” the lawyer said. “He unfortunately was born into it.”
Baktash is in poor health, Mr Goltzer added, noting that his client suffers from diabetes, asthma and other problems.”
“You don't have to tell him he's going to die in jail,” Baktash's attorney said in a closing comment to Judge Marrero. “You don't have to tell his children they'll never see their father again.”