Tom Diaz

Archive for the ‘bad manners’ Category

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ALLEGED SECRET SHOT-CALLER SANCHEZ BAIL HEARING STAYS ON DARK SIDE OF THE MOON — WHO IS BEING PROTECTED AND WHY?

In bad manners, Corruption, Crime, Drugs, Gangs, Informants and other sophisticated means, Latino gangs, Police, RICO, RICO indictments, Transnational crime on March 9, 2010 at 5:47 pm

Alex Sanchez, Accused by Feds of Being a "Secret MS-13 Shot-Caller" and Now Out On Bail, With A Friend in Happier Times

Having written extensively about the Alex Sanchez case, I was looking forward to the so-called “Daubert hearing” to test the expertise of LAPD Detective and MS-13 gang expert Frank Flores.

The hearing was originally scheduled for Monday, March 8, 2010.

But — lo and behold — that hearing has been mysteriously postponed, from Monday until late April — by mutual agreement of defense and government.

This struck me as curious, because Sanchez’s mouthpiece has been aching to do a legal orchiectomy on Det. Flores for almost a year.

Why postpone the surgery, I wondered?

So, I started poking around.

See, the last two big gangsters I have tracked who suddenly entered into a series of friendly postponements with the government were working out plea bargains (Nelson Commandari and a loathsome creature who went by the nickname of “El Culiche,” or “Tapeworm.”)

Please be sure to note that there is NO  evidence whatsoever that Alex Sanchez is negotiating a plea, because he — to the contrary — insists he is completely innocent of the charges and can prove it, and his counsel is fighting like a banshee to do just that.

But I do like to keep track of these sealed filings — and there are a LOT of them in this case — because weird things happen all the time.  Especially in the closed, secret, under-the-radar, star chamber type proceedings that federal criminal courts are turning into.

(This business of secrecy is serious, people.  Some day it may be your turn to have some imperious life-time appointed judge and an arrogant, anonymous, bureaucrat-prosecutor seal your case off.  Good luck to you, then, my friend.  You will be a tree falling in a forest.  See, it’s their government, not yours!)

Call me nosy.

Well, what a shocker!

It turns out that Los Angeles is not Kansas, Dorothy!

And open court has a totally different meaning, dude, in LaLa Land.

Like, get out and shut up, man!

Watch the Razzies or something.

What I found was a curious set of recent filings concerning the transcript of the famous closed Sanchez bail hearing.

If you read Fairly Civil, you may recall that the U.S. government’s witness list was inadvertently made available on PACER just long enough for me to find it and publish it before it was sealed!

On the other hand, Sanchez’s cozy little list of friendly witnesses have never been publicly disclosed.  People of principle, but they like to keep their principles in the closet, you understand.

Judge Manuel L. Real, Presiding Over His Closed Star Chamber, to Public: "None of Your Damned Business."

Bottom line:  Federal Judge Manuel L. Real has ruled against the Associated Press and ordered that the transcript of the secret, star chamber, bail hearing be kept sealed … i.e., none of us … none of Alex Sanchez’s many alleged ditto-head supporters … and none of his putatively former gangster buddies … can find out exactly what was said, by whom, and why the judge changed his mind and sprang Sanchez!

How convenient!

See, he’s innocent.

But you don’t need to know anything, except for the wonderfully redeeming power of Faith, man.  Can you feel it, brother? Heal, I say!  Heal!  Satan, get thee out of this skeptic!

Apparently, AP reporter Christina Hoag reported Judge Real’s denial of its paltry motion on behalf of a Free Press and the Public.  But the report was not picked up extensively.  Certainly not in the Los Angeles Times.  Yawn.  More fun to read about the latest adventures of Lindsay Lohan.

Here is the state of play, as I make it out by reading the docket:

  1. The Associated Press files a motion asking for the last Sanchez detention hearing transcript to be unsealed.
  2. The U.S. government replies, OK by us, we agree there are insufficient grounds to seal the record, sure, unseal it.
  3. But SANCHEZ (aka Mother Teresa of the Gang Universe), who one would think would LOVE to have the record unsealed to show how pure he is and deserving of release, has successfully opposed the AP’s motion!

So the record remains sealed. In other words, Sanchez does not want the public to read why he was released!  (Please, counsel, spare me the phony argument that the hearing record  contains hearsay and evidence that would be inadmissible at trial.  What a crock!)

Not only that, a flurry of sealed documents have been filed in the case.  Sorry, none of your business.  Even requests to seal documents are sealed.

Why?

It might to some look as if Sanchez (and/or his lawyer) are trying to protect the politician(s) who showed up on his behalf, and who are rumored to have been City Council Member Ed Reyes and/or City Council Member Tony Cardenas, and perhaps others.

But that would be crass, cynical, and not at all like Mother Teresa, to whom some have compared Sanchez.  You know, the truth shall make ye free, etc., etc.,etc.

Talk about judicial administration by the dark of the moon!  Hey, I know, let’s seal the whole trial and just let Judge Real read from an envelope and announce a verdict, like the Oscars!

All the  legal bureaucrats implicit in this charade can show up on the red carpet.

I can hear the snarky commentary now:

“OOOH, the new U.S. Attorney is wearing an absolutely daring two vent, European cut Navy blue pinstripe suit … oh, wait, it’s just the suit!  How clever!  And will you check out the alligator skin Manolo Blahniks lead defense counsel is wearing!”

Where are all the “civil liberties” advocates who would be going bananas if some common

Activist Tom Hayden Curuiously Silent on Judge Real's Little Judicial Gulag

thug were held two minutes incommunicado from the professional mouthpieces who service gangsters?

Where is WitnessLA?  Where is the Gangsta Tea Party and Marching Social Justice Band that shows up at every public orchestration of the government’s horrible oppression of gangsters?

Where, for the love of all the Bill of Rights and “transparent” judicial administration are Tom Hayden, Barack Obama, and Eric Holder?

Apparently, they all agree.

It’s none of our damned business!

Amazing.

Truly amazing.

Judicial administration roughly equivalent to the Soviets dragging dissidents down to the cellar of Lubyanka Prison and putting a nice round of 9mm in the back of their heads.

Or, boiling frogs one degree at a time.

How does it feel, suckahs?  Freedom rocks, right?

"He did NOT say that! Shut up! Get Out!"

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Why the Los Angeles Gang Tour and the Sicilian Mafia are Bad Ideas

In bad manners, Corruption, Crime, Cultural assassination, Drugs, Ethics in Washington, Gangs, Guns, Latino gangs, Marijuana Debate, politics, Transnational crime, Turf Wars on January 31, 2010 at 3:44 pm

Survivors of Gunshot Wounds Suffer Pain, Indignity, and Often a Life of Daily Horrors

“This isn’t the Boy Scouts. It isn’t the chess club. It’s a world of violence.”

Los Angeles Police Department Detective and gang expert Frank Flores, quoted in article on MS-13 trial in Charlotte, NC, Charlotte Observer, January 14, 2010

Just when you thought Los Angeles couldn’t get any goofier or more self-defeating, an entrepreneurial former gang member turned “anti-gang activist” has started a gangland bus tour.

Alfred Lomas, 45, a former gang member and the creator of the tour ($65, lunch included), said this drive-by was about educating people on city life, while turning any profits into microloans and other initiatives aimed at providing gang members jobs.

“A Gangland Bus Tour, With Lunch and a Waiver,” The New York Times, January 16, 2010

OK.

Like the mudslides and wildfires that remind us the Los Angeles Basin was intended by its Maker for other than human habitation, this idea roared through the arid mind canyons of the Left Coast and swept thoughtful analysis into the Pacific Ocean like so much polluted runoff.

Not on the Tour

First, let’s be clear about one thing.  Lomas’s “tour” is going to skip the fundamental reality of gang life in Los Angeles.  You know, the inconvenient bits – drug and human trafficking, extortion, robbery, theft, armed violence, and most of all the visible toll of the dead (think funerals) and the limping, less visible trail of walking or wheelchair-bound wounded (think spinal injuries and those little plastic waste bag appendages).

This You Tube video fills in that weak point of the enterprise.

NOTE:  Some idiot at You Tube  disabled the video I had posted here some months ago — without warning — on the grounds that the images of actual gunshot victims in the video were merely shocking.

You Tube’s Google owners have learned well from their Chinese masters.  I’ll find another venue to host the video and add the link back here when I get it.

Meanwhile, I took down my You Tube site in protest of this idiotic and heavy-handed censorship.  Be warned.

I assume that one of the LA gangster world’s bought-an-paid-for-politicians got to YouTube, or some other thug-hugger.  In a paraphrase of Gen. Douglas MacArthur:  The Video Shall Return.

Superficial Rationales Sufficient for the Chattering Class

Rationale # 1. “Hey, it’s America, right?”

“What the heck, market what you got,” said Celeste Fremon, who writes the criminal justice blog Witness L.A. and has studied the city’s gangs.

Although she disputed whether several of the sites had a solid gang association, she said, “if it makes money for a good cause, more power to them.”

Rationale # 2. “Hey, his heart’s in the right place!”

Kevin Malone, a former general manager of the Los Angeles Dodgers who came to know Mr. Lomas through the center and is one of the financial backers of the project, said he might accept the criticism “if it was somebody other than” Mr. Lomas.

“But I know the guy’s heart,” he said. “He is not taking anything out. All he is doing is serving and giving. If that is exploitation, I hope somebody does that to me.”

Rationale # 3 (maybe … maybe not … demi-semi quavering).  Gloria in excelsis scelestus ?”

Caregivers in Pediatric Intensive Care Units See Too Much of This from Gang Violence

“Everybody says we are the gang capital of the world, and that is certainly true, no denying that,” said the Rev. Gregory Boyle, who has spent decades trying to steer people out of gangs into legitimate work. “It’s hard to gloss over that. But there are two extremes we always need to avoid. One is demonizing the gang member, and the other extreme is romanticizing the gang.”

Snarky Rebuttals

With all due respect to Boyle, Malone, Lomas and Fremon, this is a bad idea on so many levels it makes LA’s most densely stacked freeway interchange look like a rural crossroads.

Snarky rebuttal # 1. Making money for a good cause?  That’s the test?

Deep.

Let’s see, every whacked out terrorist in the universe – especially the ones who strap bombs into their underwear – thinks his or her cause is not only good, but also superior to every other cause on the planet.

Fund-raising for these “good causes” is intimately entwined in the depredations of global organized crime – included human trafficking, sex trafficking, drug trafficking, cigarette trafficking, traffic in phony products from lethal baby formula to fake designer jeans, and the bloody mayhem that accompanies all of the above.   In fact, there is a school of serious thought that the war in Afghanistan is at least as much about the drug trade as the Taliban’s odd socio-religious tyranny.

Street Gangs are the Retail Outlets for Drugs in America

And by the way, the point of this spear of criminality comes right down to L.A.’s ubiquitous marijuana “clinics,” which are a wonderful system of retail outlets for the illegal production and trafficking in weed by the Mexican drug cartels and their affiliates, the Gangs of Los Angeles.

Bad idea, good cause.

Check.

Snarky rebuttal #2. “If it were anybody else …”

Say, what he say?  This logic twists my mind like a pretzel.

Hmmm.

Okay, pick a hero in your life.  Any hero.  You know, like … um … Brangelina … Barack Obama … Mother Teresa … Alex Sanchez … Lindsay Lohan … Pat Robertson … Glenn Close … whoever you look up to in your personal universe.

Just imagine – stick with me here, this is just a “mind exercise” – that your hero decided that running 13-year old child prostitutes up from Pueblo Pobre, Qualquiera, and vending them out in slam pads was a damned good way to raise funds for … well, a good cause, no profit here.

Pick a Hero ... Any Hero

See, if it were anybody else …  love the sinner, love the sin?  Certainly, no one, definitely not Fairly Civil, suggests that there is anything unlawful about the gang tour.  But the logic is the same.

Bad idea, good-hearted personal hero.

Check.

Snarky rebuttal # 3.  The demi-semi quaver.

In fairness to Father Boyle, it is at least possible that he told The New York Times reporter that this gang tour was definitely a bad idea because it glorifies gang life.  Reporters and editors sometimes cut out the sharp points in a “reader.”  But the quote attributed to him came across as an “on the one hand, on the other hand” equivocation.  What the modern news media call “even-handed.”

Well, be that as it may, here is a more pungent comment from another source:

Is there a danger of romanticizing or even glorifying the culture that has cost so many lives and caused so much heartache and tragedy to go along with the poverty that pervades the area? You think? There are a number of tours of past gangster lairs and stomping grounds from those occupied and traveled by Jesse James to John Dillinger to name only a couple. But those who made these locations infamous or famous are long gone and the thrill is far more benign than what one might expect where there still is ongoing horror.

“L.A. gangland tour is a bad idea,” Dan K. Thomasson, Scripps Howard News Service.

Human tragedy is human tragedy.

Check.

The Sicilian Connection

Cosa Nostra Assassinated Mafia Busting Sicilian Magistrates Giovanni Falcone (left) and Paolo Borsellino

Finally, it is instructive to look at this tour in the context of another gang-infested culture:  Sicily, home of the original mafia, Cosa Nostra (not “La Cosa Nostra,” as the U.S. federal government mistakenly and irreversibly misnamed the American variant.)

It’s well worth reading the history and sociopolitical culture of this scourge.  So much that is fundamentally bad about the Sicilian Mafia and its relation to civil life can be seen in the L.A. gang culture.

  • Self-marginalizing ethnic mythology and denial. “There is no mafia, it’s just a cultural thing we Sicilians have.”  For nearly a century and a half Sicilian and other Italian chatterers – politicians, writers, academics – promoted the idea that there was no such thing as the mafia, in the sense of an organized criminal enterprise in Sicily.  No, they said, “mafia” just means a prideful violence ingrained in the “character” of Sicilians.  You know, like that Latino carnal and barrios stuff.  We just can’t help ourselves.  The gangsters, of course, loved this idea, and promoted it through the transmission belt of their “useful idiots”  — even in the face of well-documented informants from as far back as the late 19th and early 20th centuries!  The mob’s suckers included “intellectuals,” corrupted and gullible politicians, nitwit clerics, and the usual gaggle of do-gooders.
  • Corrupted members of church and state. To the shame of the Italian government and the Catholic Church, many politicians and priests were co-opted by Cosa Nostra.  Some remain so to this day.  Interestingly, a characteristic posture of the corrupted has been to publicly criticize the mafia and propose grandiose plans to attack it, while secretly undermining law enforcement efforts against the mobsters.
  • Attacking law enforcement and judicial authorities. One of Cosa Nostra’s classic tactics has been to attack – both physically and rhetorically – specific gangbusters in Italian law enforcement and in the Italian judiciary.  In many cases, this was assassination intended to send a message that the mafia was above the law, in fact, was the law.  In other cases, it was a smear campaign; a whispering, snickering current of innuendo designed and intended to undermine public confidence in law enforcement generally and in specific persons whose principled activities became a thorn in the side of the mob.
  • Culture of Criminality. The goal of socialization is to inculcate a “culture of lawfulness.”  No matter what else one thinks of cops, there clearly are not enough of them to prevent every crime and stop every criminal enterprise.  This is the job of that broader mass we call “culture” or “society.”  In Sicily, the culture of lawfulness became a culture of unlawfulness.  The vast mass of ordinary people came to accept the depredations of the mafia, because the very culture taught them there was nothing they could do about it.  Many heroes of modern Sicily paid with their blood to reverse this perverse culture inversion.

Sound familiar?

You can read some of the best books about Cosa Nostra, the Sicilian mafia, and decide for yourself.  My recommendations:

Salvo Lima, One of the Sicilian Mafia's Politician Friends, Was Brutally Whacked When He Outlived His Usefulness

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WAIT A MINUTE COACH! IS THAT PLAYER ELIGIBLE? MS-13 MOUTHPIECES GO AFTER KEY LAPD EXPERT WITNESS FRANK FLORES IN MARA SALVATRUCHA RICO CASE IN LOS ANGELES

In bad manners, Crime, Drugs, Gangs, Informants and other sophisticated means, Latino gangs, RICO, RICO indictments, Transnational crime on January 16, 2010 at 4:30 pm

Daubert Hearing Could Knock Expert Out of the Game

Los Angeles Police Detective and gang expert Frank Flores has been tossed on the griddle in the ongoing MS-13 racketeering (RICO) prosecution in Los Angeles.

But first, a big shout-out to Celeste Fremon and her WitnessLA blog, which was named “LA’s Best Police Blog” by LA Weekly. Although Fairly Civil and WitnessLA have different perspectives, Fremon and WitnessLA have done a great job of filling a vast vacuum — journalistic dark hole — left by the indifferent Los Angeles Times on this and other pivotal gang cases and programs.

Back to the subject at hand, the famous (or infamous) Alex Sanchez case.

According to the federal district court’s official minutes of a January 13, 2010 hearing – not (yet) sealed – Det. Flores will be grilled at a so-called “Daubert Hearing” in March:

The Court sets a Daubert Hearing on Detective Frank Flores’s expertise to testify for the government at trial as an expert witness on March 8, 2010 at 1:30 p.m., to be held in Courtroom 890 of the Roybal Courthouse.

“Criminal Minutes – General,” United States v. Jose Alfaro, United States District Court for the Central District of California, CR-09-466-R, filed January 13, 2010.

This could be huge, folks.

Just the Expert Facts, Please

Det. Flores has been in the defense lawyers’ sights from the beginning because it is his expertise that “connects the dots” among much of the cryptic gang talk on key wiretap tapes.  He also can provide the “big picture” and overall perspective on MS-13 as a criminal enterprise – the core of a RICO conspiracy case.

Big gorilla of a question:  Can the federal prosecution team keep Flores out from under the bus?

One may assume that the prosecution has other experts on its bench, but if Flores gets tossed, the defense will win a huge “moral” victory.

One may be assured, therefore, that this will be as rough and tumble a legal gang bang as Judge Manuel L. Real will tolerate in his courtroom.  Let’s hope Judge Real keeps this one open to the public.

What the Heck is a “Daubert Hearing” and Why Care?

Fairly Civil is no expert on Daubert Hearings, but pulled together the following notes from a few websites devoted to the subject. (Links to sites are in the titles.)

What is a Daubert Hearing?

What is a Daubert hearing?  It is, in effect, a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony.

…

Actually, of the trilogy of cases, Daubert, Joiner, and Kumho Tire, discussed at this symposium, Kumho Tire is perhaps even more important than Daubert because of two central points in that decision.

-  It clearly states that a Daubert determination of reliability must be made in all cases where expert evidence is offered, whether we call it scientific evidence or technical knowledge or skilled profession.

- The Daubert inquiry is to be a flexible one. All of the factors identified in Daubert that guarantee the kind of reliability the Supreme Court said was needed for admissibility of opinions based upon scientific knowledge, such as replicability, established error rates, peer review, and so on, do not necessarily apply to all forms of expert testimony with the same rigor. They apply with full force only to those disciplines to which such factors can be applied. Conventional wisdom holds that these factors cannot be applied, in the manner spelled out in Daubert, to handwriting identification or to many other forensic sciences where cases deal with problems that are unique and where the accuracy of a specific finding cannot be stated with a measurable statistical degree of confidence.

Overview of the Relevant Law

Prior to the adoption of the Federal Rules of Evidence, all federal and most state courts followed the “Frye” test to determine the admissibility of scientific evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence, and in particular Fed. R. Evid. 702, superseded Frye’s “general acceptance” test.

Fed. R. Evid. 702 contains two requirements. First, the evidence must be reliable, or in other words, trustworthy. Trustworthiness guarantees that the information is supported by scientific methods and procedures. Second, the evidence must be relevant. The criterion of relevance has been appropriately described as one of “fit.” To satisfy this requirement, the proffered testimony or evidence must be sufficiently tied to the facts of the case that it will help the jury in resolving a factual dispute. “Rule 702′s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”

Faced with a proffer of expert scientific evidence, the trial court is charged with the role of “gatekeeper” and must initially determine, pursuant to Fed. R. Evid. 104(a), whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This decision demands an evaluation of whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue.

In Daubert the Supreme Court provided four nondefinitive factors that trial courts should consider in making this determination. First, the court should evaluate whether the theory or technique can be and has been tested. Second, the court must determine whether the theory or technique has been subjected to peer review and publication. Third, the court should consider the known or potential rate of error. Finally, the court should evaluate the general acceptance of the theory in the scientific community. The Seventh Circuit has added an additional consideration: whether the proffered testimony is based upon the expert’s special skills.

In addition to these four Daubert factors, other safeguards exist to protect against the admission of unreliable or irrelevant scientific evidence. Federal Rules of Evidence 703, 706 and 403 each provide an independent check. Procedures familiar to every trial attorney, such as vigorous cross examination, the presentation of contrary evidence, and careful instruction of the jury on the burden of proof, also help guard against the acceptance of suspect scientific evidence. Finally, the Federal Rules of Civil Procedure prevent cases from going to trial where the evidence is unreliable.

Potential Abuses and Misuses of Daubert Hearings

Abuses and Misuses of Daubert Hearings

In the following discussion one caveat is called for: We do not suggest that hearings on reliability and relevance are inherently inappropriate. Daubert challenges may, in fact, reflect attorneys’ confidence in their own experts’ views and justified suspicion of the experts’ opinions on the other side. Thus, in a best-case scenario, the challenge leads to achievement of a just and favorable outcome, obviating the expense and uncertainty inherent in a trial. Moreover, when an opposing expert is proffering innovative testimony, the ethics of practice, concerns about legal malpractice, and concerns about claims of ineffective assistance of counsel may require such a challenge.

In contrast to these valid concerns, when the attorney feels that a case is weak or that the client is unattractive to potential jurors, the attorney may want to see if the opposing expert can be “knocked out of the box” from the start by a Daubert challenge. While this ploy poses uncertainties of its own, the effort may be economically justifiable to the retaining attorney.

Delay

The Daubert hearing is not unique in being subject to abuse. Many other valuable safeguards of the fundamental fairness of the legal system exist, such as insuring that a defendant is competent to stand trial before facing the rigors of the adversary system. Yet, in our experience in Massachusetts courts, a motion to invoke this useful safeguard can be and has been used as a delaying tactic to permit the attorneys to prepare the case more thoroughly, to set the stage for a later insanity plea, or even to foster the hope that witnesses will become less sure about recalled testimony.

Similarly, a Daubert hearing may be requested by one side or the other—even when the relevant science is basic, established, and non-controversial—as a comparable delaying tactic designed to secure some advantage by the delay, although, as the law evolves, such challenges to established science may become less common. In our experience, challenging the use of even absolutely standard psychological testing is a common ploy in this category.

The Dry Run

By providing a picture of the expert in action under cross-examination, expert depositions commonly serve as “dry runs” for trial preparation. However, Daubert hearings have the advantage of providing a second opportunity to probe the expert, as well as to obtain an otherwise unavailable assessment of the trial judge’s attitudes toward the case. In those jurisdictions where depositions do not occur or are not allowed in civil or criminal cases, thus depriving attorneys of the opportunity to perform a dry run of the cross-examination of the opposing expert, a Daubert hearing may serve the purpose of obtaining an equally valuable advance look at the opposing experts’ opinions, bases, methodology, and courtroom demeanor. The resultant data can be put to very good use by the attorney in case preparation, mastery of the relevant literature, and the like.

Impeachment: Laying a Foundation

Just as moving for an unnecessary examination for competence to stand trial may aid the attorney in laying a foundation (if only in the public’s mind) for a later insanity plea, moving for an unnecessary Daubert hearing may lay the foundation for later efforts to impeach the expert’s reasoning on scientific grounds. Even if the expert’s opinion is ultimately not excluded, the knowledge gained in the process (the dry run suggested in the prior section) may be helpful to the attorney in designing more effective cross-examination for trial.

Rattling the Expert

The motion for a Daubert hearing may constitute no more than an attempt at simple harassment of the experts, designed to shake their confidence in their own testimony by a threshold challenge to their approach, methodology, reasoning, and professional acceptance of the experts’ theory of the case.

Fatigue Factors

In a related manner, a mid-testimony hearing may be attempted on a specious issue, to overextend the expert’s time on the witness stand, perhaps interrupting the flow of case-related testimony that the jury hears. This approach may generate sufficient distraction and breach of concentration in the jury to obscure the gist and impact of the expert’s testimony.

Economic War

Because a Daubert hearing involves costs for the time and participation of the parties and assistants (e.g., stenographers), the hearing may be requested by a large, rich firm, to drive up the costs for an opposing small, poor firm and thus to discourage or render more difficult the latter’s participation in the suit.

Similarly, because of cost restrictions from the client or insurers, a law firm unable or unwilling to hire its own reputable expert may be forced to put its efforts into attempting to disqualify the other side’s expert through Daubert challenges. Theoretically, such an approach may also serve to create a record designed to refute a later claim for legal malpractice in this situation. An attorney’s specious introduction of standards for reliability and relevance (that no expert could meet) in this setting may also constitute an attempt to excuse his or her failure to retain an appropriate expert.

Shooting the Messenger

A highly unusual twist in the Daubert question has occurred with one of us (H.B.) when an attorney hired several experts, but one of them did not present a favorable opinion after review. The attorney presented that expert’s opinion to the other side in a distorted way that invited a Daubert challenge, which was feebly and ineffectively resisted by that attorney. The attorney then used the successful challenge to rationalize not paying the expert for work already done, based on the alleged failure of the opinion to meet the standard.

Fairly Civil reports.  You — or someone in authority — will decide.

Los Angeles Times Has Been No Watch Dog in Sanchez Case

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IT’S REAL — ALEX SANCHEZ GETS BAIL IN MS-13 RICO TRIAL — JUDGE CALLS IN TEAM OF OUTSIDE REFEREES TO HELP MAKE THE REPLAY CALL

In bad manners, Crime, Gangs, Informants and other sophisticated means, Latino gangs, Police, politics, RICO, RICO indictments, Transnational crime on January 14, 2010 at 2:02 am

Experts Testified Behind Judge Real's Closed Doors in Latest Sanchez Bail Hearing

Federal Judge Manuel L. Real has granted bail to Alex Sanchez, the former gang member turned anti-gang activist who has been accused in a federal racketeering (RICO) indictment of being a “secret shot-caller” for Mara Salvatrucha (MS-13).  [To follow the trail of a series of earlier posts on this fascinating case, start here.  You will eventually land in the Land of Oz. ]

Here is how Celeste Fremon’s WitnessLA broke the news today:

Around 11:30, at the end of the closed hearing that began at 10 a.m. Alex Sanchez attorney Kerry Bensinger came out of the federal courtroom to talk to Sanchez family and a very, very small handful of supporters, whom he drew into a side room and broke the news. U.S. District Judge Manuel Real had granted Alex Sanchez bail.

One thing that can be said for the staggeringly quirky Real, he continues to surprise. This time the surprise was a good one for Sanchez and family.

The bail amount is set at $2 million. It is to be divided into $1 million in properties, $1 million in surities.

Since Sanchez supporters and family have already gathered $1.4 million in property, and $1 million in surities, “it’s only a matter of the paperwork,” said Monica Novoa, a Homies Unidos board member who is very close to the family and thus was in the room.

The extraordinary bail hearing was closed to the public.  It followed the filing of a mysterious sealed document by Sanchez’s lawyer, Kerry L. Bensinger.  Contents of that filing are not available on the public record.

Judge Real apparently felt the federal Ninth Circuit Court of Appeals breathing down his back and called in a panel of independent gang experts to help him pin down the facts relevant to Sanchez’s bail request.  These have almost nothing to do with the defendant’s guilt or innocence, but whether he presents (1) a risk of flight, or (2) a threat to others.

According to papers filed in the federal district court, prosecutors made available three expert witnesses.  They were:

  • LAPD Capt. Justin Eisenberg, Commanding Officer of the Gangs and Narcotics Division.
  • Former federal prosecutor Bruce K. Riordan, now Director of Anti-Gang Operations for the L.A. City Attorney’s Office.  Riordan is also Chief of the Gang Division and Deputy Chief of the Criminal Division.
  • FBI Supervisory Special Agent Robert W. Clark, Acting Special Agent in Charge of the Los Angeles Field Office.

“Government’s Notice Re; Available Witnesses at Hearing Re: Detention of Alex Sanchez,” United States v. Alfaro, Central District of California, Docket No. CR-09-466-R, filed January 12, 2010.

NOTE:  This document — which was publicly available yesterday at the time this blog post was first written — has now been sealed.  Oh, well.  Good thing I printed it off!

It is possible that Bensinger’s mysterious sealed document was the defendant’s list of experts, some or all of whom are rumored to be politicians and public officials who may not have wanted to be identified as speaking on Sanchez’s behalf.  Is there such a thing as a spinal implant?  Or integrity transfusion?  Perhaps this is something that the indefatigable activist Tom Hayden — who is given to dark conspiratorial theories when a matter involves the government — can investigate and write about in the public interest.

In any event, Judge Real was demonstrably persuaded that Sanchez was entitled to be released.

At least some observers have speculated that prosecutors made a decision to ease back on the throttle regarding the Sanchez bail question.  The theory of this line of reasoning is that prosecutors realized that they had a big problem with the factual scenario they had relied on to implicate Sanchez in an intra-gang hit — to wit, the government may have incorrectly identified a key participant in a wiretapped phone call.

The call on the table, the reasoning continues, was either to continue pushing hard to keep Sanchez locked up and risk seeing the case taken away from Judge Real by the Ninth Circuit, or to reform the skirmish line and perhaps bring in some fresh troops.  A few new strategic calls may also be made.

Most interesting in the short run will be to see what, if anything, the Los Angeles Times prints tomorrow.  Any way you slice the Sanchez case, it is a world class story that any of the old style newspaper men would have given an arm for:  if Sanchez is truly innocent, he has been the victim of terrible mistreatment.  If he is guilty, he pulled off a scam that makes Ponzi scheme artist Bernie Madoff look like an amateur.

But the Times, one of the few interesting newspapers left in America, has studiously ignored the case to date.

In Happier Times, Sanchez Enjoyed A Saintly Aura Comparable to that of Mother Teresa

UPDATE ON LOS ANGELES TIMES‘ COVERAGE

No surprise here.  No story.  Apparently, LA Times editors couldn’t find their butts in the dark with both hands and a flashlight.

But the on-line edition does have this suh-weet blast from the past:

I wanna take you high-er!

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POLICE DEATHS DOWN BUT FATAL OFFICER SHOOTINGS UP — AMBUSH SHOOTINGS AND SURVIVAL LESSONS FROM LAKEWOOD

In bad manners, Crime, Guns, Police on December 29, 2009 at 9:16 pm

Vigil for Lakewood, WA, Sgt. Mark Renninger, 39, and Officers Tina Griswold, 40, Greg Richards, 42, and Ronald Owens, 37

Law enforcement officer deaths in the line of duty have dropped to their lowest level in half a century.  But the trend of fatal ambush-style officer shootings is up.  This naturally has raised concern about officer survivability.

Details of the tragic ambush-execution of four officers in Lakewood (see below) underscore the unavoidable fact that there is no down time for law enforcement personnel today.

Eternal vigilance is the price of survival.

First, the trends from a National Law Enforcement Officers Memorial Fund press release:

Law Enforcement Officer Fatalities 2009: A Tale of Two Trends

Total line-of-duty deaths drop to lowest level in 50 years; firearms-related killings rise 23 percent with five multiple-fatality shootings

WASHINGTON, Dec. 28 /PRNewswire-USNewswire/ — Fewer U.S. law enforcement officers died in the line of duty in 2009 than in any year in the past half century — an encouraging trend tempered by a disturbing increase in the number of officers who were killed by gunfire, many of them in brutal, ambush-style attacks.

As of December 28, 124 law enforcement officers had died in the line of duty from all causes, a 7 percent reduction from the 133 fatalities in 2008, according to preliminary data compiled by the National Law Enforcement Officers Memorial Fund (NLEOMF). The last time officer fatalities were this low was in 1959, when there were 108 line-of-duty deaths.

“This year’s overall reduction in law enforcement deaths was driven largely by a steep, 21 percent drop in the number of officers killed in traffic-related incidents,” reported NLEOMF Chairman and CEO Craig W. Floyd. “However, that bit of good news was overshadowed by an alarming surge in the number of officers killed by gunfire.” According to Mr. Floyd, 48 officers were shot and killed in 2009, compared to 39 in 2008, which represents a 23 percent increase.

More than 30 percent of this year’s fatal shootings — 15 in all — occurred in just five incidents in which more than one officer was gunned down by a single assailant. These multiple-fatality shootings took place in Lakewood, WA (four officers), Oakland, CA (four officers), Pittsburgh, PA (three officers), and Okaloosa County, FL, and Seminole County, OK (two officers each). The 15 officers killed in these multiple-death shootings were the most of any year since 1981, according to Mr. Floyd.

****

The following is an analysis of the Lakewood (Washington) shootings.  (It is not part of the NLEOMF release.)  Fairly Civil received similar versions of this account from several sources and believes the following synthesis from multiple sources to be accurate.

These events are a tragic object lesson for law enforcement.  They should be an eye-opener for society at large about the risks of law enforcement and the lawlessness of some elements, including in this case not only the murderer, but the group of people who aided him before and after the shooting:

Analysis of Lakewood Ambush

Lakewood PD Officers Killed in Ambush

Location. The Forza Coffee shop in which the ambush took place was in a strip mall and owned by a retired Tacoma Police Department officer.  It was considered to be a safe place for officers on break or waiting to go on duty.

Department History and Officers.  The Lakewood Police Department was recently formed. Almost all of the deputies were hired from the Pierce County (Washington) Sheriff’s Office.  Most were sworn deputies, but had primarily worked the jail.

The Scene. All four officers had parked their marked patrol cars in front and were inside, in uniform, drinking coffee and preparing for their shift. They were sitting at a table with their laptop computers open, completing job related paperwork. The table at which they were working was about 15 feet from the check out register at the counter.  The officers were working with their heads down.

F

Felon Maurice Clemmons Had Long Record of Violence

The Shooter. The assassin in this case was Maurice Clemmons.  According to Wikipedia:

Prior to his alleged involvement in the shooting, Clemmons had at least five felony convictions in Arkansas and at least eight felony charges in Washington. His first incarceration began in 1989, at age 17. Facing sentences totaling 108 years in prison, the burglary sentences were reduced in 2000 by Governor of Arkansas Mike Huckabee to 47 years, which made him immediately eligible for parole. Clemmons was released in 2000.

Clemmons’s Parole. Huckabee’s explanation was reported in an Arkansas newspaper earlier this month:

Speaking at the Clinton School of Public Service in Little Rock to promote his seventh book, A Simple Christmas, Huckabee said Clemmons would have received “a probated sentence, a $1,000 fine and 20 hours of community service” had he been an “upper-middle-class white kid” rather than a poor black teenager arrested for his first felony when he was 16 in 1989. After a months-long string of robberies and burglaries, as well as carrying a .25-caliber handgun on the Hall High School campus, Clemmons began serving his multiple sentences the next year.

A decade later, Huckabee, governor from 1998 to 2007, shortened Clemmons’ term in prison to 47 years, making possible his immediate parole. The Arkansas Parole Board agreed to release Clemmons not long afterward.

Making two of Clemmons longer sentences run consecutively instead of concurrently was an injustice, Huckabee said, one perpetrated systematically in Arkansas on the basis of a person’s skin color.

Deciding to shorten Clemmons’ prison term, he said, “was not so much based on forgiveness as justice.” “I made my decision on the information that I had,” Huckabee told an audience of 200, “not on the information that was to come.” On Nov. 29, Clemmons, 38, walked into a coffeehouse outside Seattle and killed four uniformed Lakewood, Wash., police officers as they prepared for their shift. One of them wounded Clemmons, whom Seattle police shot and killed two days later.

Arkansas Democrat-Gazette, December 15, 2009.

The Ambush. Clemmons entered the coffee shop, smiled, and acknowledged the two officers who were facing the entrance. The officers returned Clemmons’s  greeting.  Clemmons then went to the counter as if he were going to order food.

After stepping up to counter, Clemmons pulled a pistol from under his coat and took a couple of steps toward the table where the officers were seated.

At this point, Clemmons was about 12 feet from the officers.

He shot the first officer, facing him across the table, in the head, killing the officer instantly.

He then shot the officer closest to him (facing away), in the back of the head, also killing the victim instantly.

Clemmons then shot across table at the third officer and missed.  He fired a fourth shot, which struck the officer in the face, with instant fatal effect.

The fourth officer was the sergeant.  He stood, drew his weapon, and charged Clemmons.  The table was knocked over as the sergeant stood up.  He grabbed Clemmons by the coat and shot him twice.  The first round struck Clemmons in his mid-section and went “through and through.”  The second round struck keys in Clemmons’s front pocket, but nevertheless penetrated about 1.5 inches into his thigh.

Clemmons then raised his gun and shot the sergeant in the face.  The sergeant fell to the ground.  Clemmons knelt over his victim and fired two contact shots, one in each eye.   He then took the sergeant’s credit cards and duty weapon.

Clemmons did not rob the coffee shop, nor did he shoot at, hurt, or threaten anyone other than the four officers.

The entire incident lasted only 8 to 10 seconds — approximately 3-5 seconds for the first three shots and another 5-7 seconds of struggle between Clemmons and the sergeant.

Darcus Allen Was Alleged Getaway Driver and Accomplice

The immediate accomplice. An accomplice — alleged to be Darcus D. Allen — was waiting outside.   The Seattle Times reported on Allen’s background, which included time in the same prison as Clemmons:

Allen was sentenced to 25 years in prison for a 1990 double murder at a Little Rock liquor store. He was paroled in 2004.

Arkansas prison spokeswoman Dina Tyler says Allen and Clemmons never shared a cell, but lived in the same barracks – along with 50-100 other inmates – at various times during their imprisonment.

Clemmons got into the vehicle and the two left the area.

Tracking Clemmons and Other Accomplices. Federal agents tracked Clemmons by a specific “sophisticated technique” of investigation.  At least five more accomplices helped Clemmons before he was shot dead by a Seattle police officer.

Lessons learned. According to one account, the following are “lessons learned” from the Clemmons ambush:

Some lessons to learn from our fallen brothers.

1. Just because you are “off duty” or in a “safe” restaurant, keep your head up and your eyes and ears open.

2. Do not sit close to the register or other focal point (entrance doors, bathrooms, hallways, etc). Try to sit where you can scan the  area.

3. Leave devices that distract you, like laptops, etc. in the car.

4. Do your reports and other things that take your mind off your safety, at post or far away from the public.

5. Even at lunch or break, don’t let your guard down. You should always be in condition “yellow.”

6. Keep your distance.  Take those lateral steps or diagonal steps and move. It is a lot harder for the bad guy to shoot a moving target, let alone a lot of distance.

7. Each time you train, train as if your life depends on it. When the time comes, you will not arise to the occasion and be a hero, you will fall to the level of your training effort and perform at that level. While I do not think they could have done anything different after the contact, do your best at whatever training you attend. Lose the mentality of “It will never happen to me” and train as you wish to fight, fight like you train.

Maurice Clemmons Was Shot Dead By a Seattle Police Officer

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CASE OF ALLEGED MS-13 “SECRET SHOT CALLER” ALEX SANCHEZ GETS REAL — ATTEMPTED “HAIL MARY SHUFFLE PASS” BY DEFENSE FLOPS

In bad manners, Crime, Drugs, Gangs, Informants and other sophisticated means, Latino gangs, RICO, RICO indictments, Transnational crime, undercover investigations on December 28, 2009 at 4:38 pm

Alex Sanchez's Defense Team Got Nowhere in Appeal to Ninth Circuit Court of Appeals and Blew Attempted "Hail Mary" Play Around Judge Manuel L. Real. The Feds' Ball-Control Game Plan Appears to be Working.

Question: Is a dropped shovel pass considered an incomplete pass or a fumble?

Answer: A forward pass, is a forward pass, is a forward pass. It can be thrown overhand, underhand, one-handed, two-handed or between your legs. The direction it travels is the only deciding factor as to whether it’s forward or backward.

So, if a forward shovel pass hits the ground it’s an incomplete pass.

Curt Johnson’s American Football Rules Answers for Coaches

LATER NOTE:  Alex Sanchez was granted pre-trial release on January 13, 2010.  See story here.

Alex Sanchez’s lawyer has played a fan-rousing first-quarter game of razzle-dazzle legal football trying to spring the accused Mara Salvatrucha (MS-13) “secret shot caller” from jail while he awaits trial.

Forget the cheers and pom-poms.  The case is right back where it started — in the forbidding courtroom of octogenarian federal district Judge Manuel L. Real.

Underhand, overhand, fumble or incomplete pass, call it what you will.  A desperate maneuver to get the controversial case reassigned to a different judge blew up like a busted shovel pass hit by a play-reading, line-backing locomotive.

Tom Diaz, "No Boundaries: Transnational Latino Gangs and American Law Enforcement"

“Tom Diaz has worn out some shoe leather—much like a good detective—in gathering facts, not myths or urban legend. “

—Chris Swecker, Former Assistant Director of the FBI’s Criminal Investigative Division.

“Few people know more about the subject than Tom Diaz and no single book tells the whole story better than No Boundaries. If you really want to know what organized crime in America looks like today, then read this alarming book.”

—Rocky Delgadillo, former City Attorney of Los Angeles

Order No Boundaries from Amazon.com

Full background on the federal racketeering (RICO) indictment, arrest, and incarceration pending trial of Sanchez — an admitted gangster supposedly reformed and turned anti-gang activist, now accused by the feds of being a “secret shot-caller” — can be found in all of its tortured procedural history  here, here, and here.

"Nothing Personal About that Flamethrower, Your Honor."

As Fairly Civil reported in detail here, the appellate brief filed last month on Sanchez’s behalf before the Ninth Circuit Court of Appeals  torched Judge Real, the government, its witnesses, and the handling of the case.  The brief demanded removal of Judge Real from the case because — paraphrased in layman’s terms — he “just doesn’t get it.”  The defense lawyer’s next appearance before Judge Real should be … um … interesting — a textbook case, perhaps, of “nothing personal about that flamethrower in the Ninth Circuit, your honor.”

Incredibly, while Sanchez’s appeal was still pending, startling “news” broke that the case had been reassigned to another judge.  Sanchez’s many fans popped the corks on the champagne and celebrated an early Christmas.

See how this series of developments unfolded by checking out the excellent (if unabashedly pro-Sanchez) WitnessLA blog here.

This news energized aging California hippy activist and prolific gang fiction writer Tom Hayden like a straight shot of Geritol.  Hayden fired up his rhetorical flying saucer on the tarmac over in Area 51, and beamed an ecstatic account of the thrilling development onto the pages of The Nation magazine.

Premature excitation, it turned out.

The case was promptly — and somewhat curtly — reassigned back to Judge Real!

News of Ephemeral "Reassignmnet" Galvanized Accomplished Intergalactic Saucer Pilot and Gang Fiction Writer Tom Hayden

Never one to let the facts get in the way of a good story, Hayden jumped back into his intergalactic travel machine and fired an email straight from the radical 70s, filled with predictably dark imaginings about the manipulation of the legal system, the sinister hidden hand of LAPD corruption tainting the federal legal system …. yadda-yadda, yadda-yadda.

Smoke ‘em if you got ‘em. But try not to inhale.

Here, is WitnessLA’s recitative on Hayden’s petulant emission:

Hayden sent around an email Tuesday night containing details and reactions. It read in part:

“The turn of events will raise new suspicions about alleged manipulation of the proceedings which began six months ago with Sanchez’ arrest on gang conspiracy charges. Sanchez, a well-known gang intervention worker who helped expose the Los Angeles police Rampart scandal a decade ago, asserts his innocence in the case. He is being held without bail at a federal prison in Los Angeles.

As of 4:30 Tuesday afternoon, no order reversing the transfer had been received by defense counsel, and no explanation offered for the unusual chain of events.

The order surprised and pleased the Sanchez defense team. His supporters, organized as http://www.wearealex.org, assert that Sanchez is being railroaded and denied any semblance of a fair trial. Sanchez’ court-appointed counsel, Kerry Bensinger, argued in a recent appeal to the Ninth Circuit that the case should be remanded to another judge.

Why the December 4 transfer order was withdrawn less than a day after it was made public will raise questions about the inner workings of the judiciary itself.”

Uh, huh. Something like that.

Or to put it another way: Whiskey Tango Foxtrot???!!

Or, to put it yet another way, “Beam me up, Scotty.”  In fact, the assignment-reassignment is not puzzling at all.

A complete explanation was then, is now, and will be available in full view, on the public record, in the federal court house in Los Angeles for any journaliste or enfant terrible curious — and energetic — enough to bring actual facts to the question.  Anyone without the means to actually get down to the clerk’s office (take a bus or ride a bike) can go onto an amazing thing called “the internet” ( a series of interconnected tubes) and dial into reality.

More Geritol, Ma … please!

The Case of the Mysterious Premature Reassignment Explained

Where to start?

Oh, wait, I know!

How about with the actual court order reassigning the reassignment?  Brilliant idea!

Here is the complete text of the “Order Returning Case to the Calendar of Judge Manuel Real,” United States v. Jose Alfaro, United States District Court for the Central District of California, Docket No. 09-466-CAS, filed December 8, 2009:

As Chair of the Case Assignment and Management Committee, I have been advised by United States District Judge Christina Snyder that she inadvertently signed a transfer order that contained the representation that the present criminal case purportedly “arise[s] out of the same conspiracy, common scheme, transaction, series of transactions or events” that were the subject of CR 05-00539.  Apparently the order was generated when a defense attorney submitted a belated notice of related case status.  That notice focuses on a case handled by Judge Snyder involving one of the numerous defendants in the present case.  Judge Snyder advises that she was unaware of the status of the above-captioned action, does not believe that the relationship of the cases warrants transfer and has referred the matter to me for a determination as to whether the case should be returned to Judge Real.

Even if there is some connection between these two cases, which I note were filed four years apart, the current case is at such an advanced stage and Judge Real has spent such substantial time and effort on the matter that no judicial economy would be achieved by a transfer at this late date.  Indeed, a transfer at this point would undermine the very objectives that provide the reason for the rule.  Accordingly, the transfer to Judge Snyder is VACATED and the matter is ORDERED to be returned to Judge Real’s calendar for all further proceedings.

IT IS SO ORDERED.

DATED: December 8, 2009

[Signed]

Judge Gary Allen Feess

Chair, Case Assignment and Management Committee

[Judge Snyder's original order is also available.  It is simply a "check the box and sign" order form, CR-59 (12-07), the kind of thing some judges whiz through while pretending to listen from the bench to bloviating counsel.  It states in relevant part:  "I hereby consent to the transfer of the above-entitled case to my calendar, pursuant to General Order 08-05."]

Um, plainly, this was an attempt at “judge shopping” by “a defense attorney,” who is not named and may or may not have been Sanchez’s counsel:

We can define “judge shopping” as an effort by a lawyer or litigant to influence a court’s assignment of a case so that it will be directed to a particular judge or away from a particular judge. The adversary usually does this to gain partisan advantage in a case (e.g., to steer it to a judge who is likely to impose a more lenient sentence in a criminal case…)

Memorandum by David C. Steelman, National Center for State Courts, January 21, 2003.

Nice try, Anonymous Mouthpiece!

But … no gain on the play. Ball stuffed.  First down, government’s ball.

Three questions linger, and their answers clear up the rest of the mystery.

  1. What is “the rule” to which Judge Feess refers in the order?
  2. What prompted Judge Snyder to refer the matter to Judge Feess?
  3. What was the allegedly “related” case the unnamed defense counsel was so anxious to hook the present case to?

No Wizard Behind the Mysterious Green Curtain -- Just a Boring Rule

Well, for anyone who is interested in how things actually operate behind the sinister green curtain, here is the relevant text of the rule, General Order No. 08-05.  It pretty well lays out the boring, non-conspiratorial routine procedure — including safeguards — that goes on in such a case of attempted judge-shopping:

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, GENERAL ORDER NO. 08-05, ASSIGNMENT OF CASES AND DUTIES TO JUDGES

…

11.0 RELATED CRIMINAL CASES

11.1 NOTICE OF RELATED CASES

It shall be the responsibility of counsel to promptly file a Notice of Related Cases whenever a criminal case previously filed and one or more informations or indictments later filed:

a. arise out of the same conspiracy, common scheme, transaction, series of transactions or events; or

b. involve one or more defendants in common, and would entail substantial duplication of labor in pretrial, trial or sentencing proceedings if heard by different judges.

11.2 PROCESSING OF PROPOSED TRANSFER ORDER

Whenever counsel files a Notice of Related Cases indicating that any one or more of the above circumstances set forth in Section 11.1 exist, the Clerk shall prepare a proposed transfer order which shall be presented to the transferee judge and processed in the same manner as are related civil cases under Section 5.0 of this General Order.

…

5.2 PROCESSING OF PROPOSED TRANSFER ORDER

…

The Clerk shall also simultaneously provide an informational copy of the proposed transfer order to the judge randomly assigned to the case later filed (the transferor judge).

If the transferee judge approves the transfer, the case shall be transferred to the calendar of the transferee judge. If the transferee judge declines the related case transfer, the case shall proceed as originally assigned on the calendar of the transferor judge.

If the transferor judge disagrees with the decision of the transferee judge, the transferor judge may appeal the decision to the Committee. The Committee shall determine whether the cases are related.

Z-z-z-z. So much for the first two questions.  No proposed transfer was ever going to just slip by Judge Real in the dark of night.  Whether Judge Snyder figured it out on her own, or got a friendly call from Judge Real and/or the U.S. Attorney’s office is immaterial.  Once a question was raised, the matter was bound to go to the Case Assignment and Management Committee.

So, what was the case the enterprising defense lawyer selected?  For that answer, one must go to Docket No. CR 05-00539 in the same federal courthouse (using the inter-tube thing or skate-boarding to get there).

That docket recounts the case of one Juan Miguel Mancilla, aka “Gato,” a gangster who was arrested in one of the first sweeps by the FBI’s MS-13 National Gang Task Force.  Mancilla was charged with trafficking in methamphetamine. His prosecution was handled by then-assistant United States Attorneys Bruce Riordan and Scott Garringer. In April 2006, “Gato” copped a guilty plea and was sentenced to 97 months in prison.  The case has been closed since then.

When the current indictment was handed up in June, Mancilla was also named as a defendant, this time on racketeering charges, and was accordingly arrested while still in federal custody.  Whoever the enterprising defense counsel was who filed the transfer motion with Judge Snyder was trying to pin the elephant of this case onto the tail of the sleeping donkey of the Mancilla case.

End of mystery.

Oh, Yeah, and About the Ninth Circuit

The government filed a determinedly sober brief in response to Sanchez’s flamethrower.  Many observers believe that Sanchez’s argument that one of the participants in a series of calls was misidentified is possibly correct, and has given prosecutors a bit of grief.  But, the government’s answer — so what, the guilty party confessed independent of the wiretap? — has so far trumped the assertion, especially in light of the hundreds upon hundreds of hours of other wiretaps and informant material in the case.

The government’s brief, however, contained these interesting assertions, which go beyond the four wiretapped phone calls on which the case has been focused in the bail hearings:

Sanchez had contacts with gang members in 1999, when he arranged a meeting of the shotcallers of the Normandie clique of MS-13 in Los Angeles to negotiate a division of their narcotics distribution enterprise. Sanchez was able to organize this meeting because he was a senior Normandie shotcaller who had been one of the founders of MS-13 in Los Angeles and the former MS-13 representative to the Mexican Mafia. Sanchez has continued to be active in gang business; among other things he has directed its distribution of narcotics and collected proceeds of its narcotics trafficking. Sanchez was intercepted on wiretap calls in 2000, 2001, and 2006 and on recorded prison calls in 2008, talking about MS-13 business.

“Government’s Opposition To Defendant’s Appeal From Detention Order; Memorandum Of Points And Authorities,” United States Court Of Appeals For The Ninth Circuit, Docket No. C.A. 09-50525, filed December 3, 2009.

On December 22, 2009, three Circuit Judges from the Ninth Circuit sent Sanchez’s case back to the federal district court, meaning to the courtroom of Judge Real.

Sanchez Case Is Back to the Future With Judge Manuel L. Real: "Good Morning, Counsel. Now, Where Were We?"

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SPIES LIKE THEM? REALLY “INTELLIGENT” SPIES DOING REALLY DUMB THINGS — PART TWO

In bad manners, Corruption, Intelligence and Counter-Intelligence, undercover investigations on November 25, 2009 at 12:51 pm

Convicted Spies Walter Kendall Myers and His Wife Gwendolyn Lived the Good Life of the "Imperialist" Bureaucrat While Selling Out Their Country to Communist Cuba

Walter Kendall Myers spent 30 years as a traitor at high levels in the U.S. Department of State, spying for Cuba.  His wife, Gwendolyn, assisted him.  Both took guilty pleas last week and agreed to cooperate with the government.  Kendall was sentenced to life and Gwendolyn to six and a half to seven years in prison.

The Myers Met and Admired Cuban Dictator Fidel Castro, Whom Gwendolyn Called "The Most Incredible Statesman in a Hundred Years"

This is the second of a two part series quoting from relevant court documents in the Myers case.  In Part One, Fairly Civil described the Myers’s motivation and recruitment by the Cuban intelligence service.  This Part Two covers Kendall Myers’s access, the “trade craft” the Cuban spies used, and how the FBI investigation rolled them up [at least from the point of its contact with them.  There is no doubt a deeper trail, possibly ultimately connected to the Ana Belen Montes case and various cases in South Florida].

KENDALL MYERS’S EMPLOYMENT GAVE HIM ACCESS TO SENSITIVE CLASSIFIED INFORMATION

Kendall Myers held a number of jobs that gave him access over more than 30 years to sensitive classified information:

9. KENDALL MYERS was in the U.S. Army from January 1959 to March 1962, where he completed intensive communications training and served in the Army Security Agency.

11. From in or about August 1977, through in or about March 1979, KENDALL MYERS was employed as a contract instructor at the Department of State’s Foreign Service Institute (FSI), a training and professional development institute for Department of State employees located in Arlington, Virginia. After living in South Dakota with GWENDOLYN MYERS from in or about 1979 until in or about 1980, KENDALL MYERS returned to Washington, D.C. In or about August 1982, KENDALL MYERS resumed employment as a contract instructor with FSI and held the title of Chairperson for West European Studies. On or about May 9, 1983, KENDALL MYERS applied for a non-contractor, two-year appointment as a Training Instructor and Chairperson for West European Studies at FSI. On or about April 15, 1985, KENDALL MYERS was offered a two-year appointment as a Training Instructor and subsequently, a second two-year appointment as an Education Specialist at FSI, all while serving in a chair capacity in Western European Area Studies. From at least August 1988 to October 1999, KENDALL MYERS, in addition to his FSI duties, performed work on a periodic basis for the U.S. State Department’s Bureau of Intelligence and Research (INR).

12. Starting in approximately October 1999, KENDALL MYERS began working full time at INR as the Acting Director of the External Research Staff. From approximately July 2001 to October 31, 2007, KENDALL MYERS was a Senior Analyst for Europe for INR. INR is responsible for drawing on all-source intelligence to provide value-added independent analysis of events to policy makers at the U.S. Department of State. During his employment at INR in various capacities, KENDALL MYERS specialized in intelligence analysis regarding European matters. He also served as a Special Assistant for Analyst Training and Development during that time frame.

13. On October 31, 2007, KENDALL MYERS retired from the Department of State

KENDALL MYERS REPEATEDLY  VIEWED CLASSIFIED INFORMATION RELATED TO CUBA

67. During the April 30, 2009, meeting [with an FBI undercover agent], when the UCS asked KENDALL MYERS whether he had ever delivered information to CuIS that was classified more than SECRET, KENDALL MYERS responded “Oh yeah. . . Oh, yeah.” KENDALL MYERS stated that the “best way” to take information out from his job was “in your head.” KENDALL MYERS told the UCS that he removed information from the Department of State by memory or by taking notes. GWENDOLYN MYERS added that he kept his notes locked in his office safe.

68. An analysis of KENDALL MYERS’s classified Department of State work computer hard drive reveals that from August 22, 2006, until his retirement on October 31, 2007, KENDALL MYERS, while employed at INR, viewed in excess of 200 sensitive or classified intelligence reports concerning the subject of Cuba. Of these intelligence reports, more that 75 of these reports made no substantive mention of countries within KENDALL MYERS’s area of responsibility as an employee of INR. Of these reports concerning Cuba, the majority were classified and marked SECRET or TOP SECRET.

EXPLANATION OF TERMS RELATED TO THE MYERS’S “SPYCRAFT”

The affidavit explains a number of the terms that come up in its discussion of evidence about the Myers’s spying activity:

22. I have further learned based on my experience and training that CuIS employs “handlers” in the United States, i.e., persons who maintain some type of personal contact with agents located in the United States. Handlers receive reporting or information from agents, produce tradecraft and communication tools for agents, and sometimes direct and control agent activities based on instructions the handler has received from CuIS. Handlers could be “legals,” that is, persons with diplomatic immunity whose affiliation with Cuba is known. Also CuIS employs “illegals” as handlers, that is, persons whose affiliation to the Government of Cuba is not publicly disclosed, whose intelligence function is clandestine, and who possess no diplomatic immunity.

23. I have further learned based on my experience and training that a dead drop is a location used to pass items secretly between an agent and his or her handler, or between intelligence officers, without requiring them to meet. The location of the drop is agreed inadvance and it typically involves the use of common everyday items to which most people would not give a second glance such as a loose brick in a wall, a library book, a hole in a tree, under a boulder, etc.

24. I have further learned based on my experience and training that a brush pass, pass or hand-to-hand are terms used to mean a pre-arranged momentary encounter between an agent and his or her handler, or between intelligence officers, wherein written messages, instructions, or other items (e.g., a computer thumb drive or a brief case) are quickly and surreptitiously passed between them as they cross paths. Such encounters may occur in public such as on a busy street or on the subway.

25. I have further learned based on my experience and training that a personal contact, contact, or meet are terms used to mean a face-to-face contact between an agent and his or her handler wherein operational training and details can be discussed.

26. I have further learned based on my experience and training that a parole is a password or recognition phrase used between an agent and his or her handler, or between intelligence officers, to identify each other.

27. I have further learned based on my experience and training that CuIS sometimes employs husband and wife “paired” agents to achieve its intelligence goals in the United States. Such CuIS husband and wife “paired” agents were revealed in the investigation of the Miami network of CuIS agents in the case entitled United States v. Gerardo Hernandez, et al., Cr. No. 98-721-CR-Lenard, and of Carlos Alvarez and Elsa Alvarez in the case of United States v. Alvarez,  05-20943-CR-Moore, both arising in the Southern District of Florida.

28. I have further learned based on my experience and training that CuIS employs multiple code names for its agents to safeguard and protect their identities. CuIS also provides false identity and travel documents for its agents to facilitate clandestine travel and to facilitate flight from the United States in case of detection.

SHORT WAVE RADIO

The affidavit describes the use of shortwave radio as a hallmark of Cuban intelligence operations in the United States:

34. Based on my knowledge and familiarity with the communication methodologies of CuIS, I am aware that, during the time frame described herein, CuIS often communicated with its clandestine agents operating in the United States by broadcasting encrypted radio messages from Cuba on certain high frequencies – that is, shortwave radio frequencies. Under this method, CuIS would broadcast a series of numbers on a particular short-wave frequency. The clandestine agent in the United States, monitoring the frequency on a shortwave radio, could decode the seemingly random series of numbers by using a decryption program provided by CuIS. The series of numbers would then be decoded into cognizable text for use by the agent. Once decoded, the text of the message could provide the agent with tasking for intelligence gathering, instructions about operational activities, including communication plans and meets with CuIS handlers. Similarly, CuIS would broadcast similar messages to its handlers.

35. This shortwave radio communication method was employed by some of the defendants convicted of espionage on behalf of Cuba in the previously mentioned Hernandez case in the Southern District of Florida, as well as by Ana Belen Montes and Carlos and Elsa Alvarez.

36. I have further learned that CuIS broadcasts such encrypted shortwave radio messages in Morse Code or by a voice reading a series of numbers.

THE FBI’S INTERCEPTION OF SHORT WAVE MESSAGES AND THEIR LINKS TO THE MYERS

44. The FBI collects high frequency messages from CuIS in Cuba to Cuban officers and their agents abroad, to include illegal agents operating within the United States. Among other high frequency messages broadcast by CuIS that the FBI has collected, I am aware that the FBI has identified messages that it has determined were broadcast to a handler of KENDALL MYERS and GWENDOLYN MYERS, hereinafter, co-conspirator “C.”

45. The messages sent to co-conspirator “C” contain many references to standard CuIS tradecraft, including mentions of passes, visual signals, personal contacts, dead drops, counter-surveillance techniques, danger signals, clandestine communication techniques and plans, coded messages, and code names referring to KENDALL MYERS and GWENDOLYN MYERS.

46. Further, the message sent to co-conspirator “C” make multiple references to Cuba.

THE FBI UNDERCOVER OPERATION TAKES THE MYERS DOWN

39. On or about April 15, 2009, the Federal Bureau of Investigation (FBI) initiated an undercover operation. The purpose of the undercover operation was to convince KENDALL MYERS and GWENDOLYN MYERS that they had been contacted by a bona fide Cuban intelligence officer and, in the course of their ensuing discussion and relationship, ascertain the scope, nature, and substance of KENDALL MYERS and GWENDOLYN MYERS’s clandestine activities on behalf of CuIS.

40. During the afternoon of April 15, 2009, an undercover source of the FBI (“UCS”) approached KENDALL MYERS in front of the Johns Hopkins School of Advanced International Studies (“SAIS”) on Massachusetts Avenue, N.W., in Washington, D.C. The UCS told KENDALL MYERS that a named CuIS intelligence officer (hereinafter co-conspirator “D”) “sent me to contact you.” The UCS continued that he did not want to “bother” KENDALL MYERS or take “too much” of his time, but that he had “instructions to contact” him and “to get some information . . . and [KENDALL MYERS’s] opinion” because of the “change that is taking place in Cuba and the new administration.” The UCS said that co-conspirator “D” sends “his regards,” offered KENDALL MYERS a cigar, and congratulated him on his birthday.  KENDALL MYERS agreed to meet the UCS later that evening at a nearby hotel, after KENDALL MYERS was done teaching a class at SAIS. KENDALL MYERS volunteered that his wife, GWENDOLYN MYERS, could join them. The UCS agreed.

EXCERPTS FROM THINGS THE MYERS SAID DURING THEIR MEETING WITH THE FBI UCS

• KENDALL MYERS stated that “it’s an honor for us” to meet the UCS. KENDALL MYERS further stated that “we’ve been a little nervous . . . and . . . I think you should tell them that . . . we’ve been nervous because, because we didn’t want to hurt them . . . We were worried . . . .”

• KENDALL MYERS refused the UCS’s offer of a drink of Scotch while he was answering questions in response to the UCS’s tasking of the previous day, noting, “no, no, that’s okay . . . while I work, you know.”

• GWENDOLYN MYERS recalled, and both her and KENDALL MYERS agreed to use in future meetings with the UCS, a parole (or pass phrase) that KENDALL MYERS and GWENDOLYN MYERS had used previously.

• Near the conclusion of the meeting, KENDALL MYERS asked the UCS to “send special greetings . . . and hugs . . . to everybody . . . and to all of our friends.”

KENDALL MYERS and GWENDOLYN MYERS then listed individuals they believe were located in Cuba, including “two very old friends,” co-conspirator “A” and co-conspirator “B.”

• KENDALL MYERS acknowledged working with CuIS for 30 years.

• KENDALL MYERS stated that CuIS asked him to work at either the Department of State or the Central Intelligence Agency. GWENDOLYN MYERS stated that they both preferred the Department of State because KENDALL MYERS is “not a very good liar.” KENDALL MYERS continued “you had to be a good liar to pass [the polygraph at CIA].”

• KENDALL MYERS and GWENDOLYN MYERS agreed that the most secure way to transmit information to illegal agents was “hand-to-hand.” GWENDOLYN MYERS stated that this was because “you can always back off if you want. . . and the person we were meeting would understand.”

• KENDALL MYERS remarked that he “didn’t like dead drops . . . because you lose control of it.”

• GWENDOLYN MYERS further stated that her favorite way of passing information involved the changing of shopping carts in a grocery store because it was “easy enough to do.” She further stated that she “wouldn’t do it now. Now they have cameras, but they didn’t then.”

• KENDALL MYERS stated that his least favorite method for transmitting information “is that goddamn telephone system. . . . We wouldn’t do it.”  GWENDOLYN MYERS stated “we did it once, never again, we threw it away.”

• KENDALL MYERS further stated that he believed that the “telephone system” was responsible for Ana Montes’s detection and apprehension.

• KENDALL MYERS stated that the “best way” to take information out from his job was “in your head.”

• KENDALL MYERS told the UCS that he removed information from the Department of State by memory or by taking notes. GWENDOLYN MYERS added that he kept his notes locked in his office safe.

• KENDALL MYERS stated that “I was always pretty careful. I, I didn’t usually take documents out.”

• KENDALL MYERS stated that he and GWENDOLYN MYERS had bookends that were used as a concealment device at their home.

• In response to a question asking whether he had ever delivered information to CuIS that was classified more than SECRET, KENDALL MYERS replied “Oh, yeah. . . Oh, yeah.”

• KENDALL MYERS stated “I have great admiration for [Cuban spy] Ana Montes. She’s a hero. . . But she took too many chances. . . in my opinion. . . . She wasn’t paranoid enough.”

• KENDALL MYERS stated “Fidel is wonderful, just wonderful.” GWENDOLYN MYERS continued: “He’s . . . the most . . . incredible statesman in . . . a hundred years for goodness sakes.”

• GWENDOLYN MYERS informed the UCS that KENDALL MYERS would be a good teacher at a School of Intelligence in Cuba, adding, “so when can we come?” KENDALL MYERS agreed “that I could see doing. . . [t]hat I would like to do.”

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ACCUSED SECRET SHOT-CALLER ALEX SANCHEZ’S TAKE-NO-PRISONERS BRIEF FLAMES TRIAL JUDGE MANUEL REAL — BOTTOM LINE: JUDGE DOESN’T GET IT

In bad manners, Crime, Gangs, Informants and other sophisticated means, Latino gangs, RICO, RICO indictments, Transnational crime, undercover investigations on November 23, 2009 at 1:34 pm

 

 

 

Alex Sanchez — the admitted former Mara Salvatrucha (MS-13) gangster turned Los Angeles anti-gang worker, now accused by the feds of being a “secret shot caller” — has been repeatedly denied pre-trial release.  Now his lawyer, Kerry R. Bensinger, has taken the matter to the United States Court of Appeals for the Ninth Circuit in a take-no-prisoners brief that (in nice, polite lawyer language) flames trial Judge Manuel L. Real.

The brief scorches a few other targets, including the government’s trial lawyers and the principle MS-13 expert witness in the case, Los Angeles Police Department Gang Detective Frank Flores.  Flores’s testimony about the meaning of wiretaps (Sanchez allegedly directing a “hit” on a renegade gang member) was key in the detention hearings.  The defense claims that the government not only got one of the key phone call participants wrong, but Flores misconstrued what happened during the calls.

 

Judge Manuel L. Real

 

But Bensinger focuses his flamethrower on the 85-year old Judge Real, stating, “At a minimum, the matter should be remanded for a detention hearing before a different judge.”

If the judge did anything right, it escaped counsel’s notice.

Reading between the lines, Bensinger is conveying to the appeals court the message that — in his view — Real for whatever reason or reasons is confused or willfully obtuse about what the federal law requires in a bail (“detention”) hearing.  In short, the brief argues that the trial judge just doesn’t “get it.”

The 32-page document landed in the appeals court docket less than a week after that court issued an opinion and order applying its own flame to Judge Real.  (Bensinger has more to say on the matter — he asked the higher court to allow him to file additional material.) Here is the Los Angeles Times on the matter involving Real and the 9th Circuit (November 14, 2009):

Federal judge criticized for handling of claimants’ assets, Los Angeles Times, November 14, 2009

A federal appeals court Friday criticized U.S. District Judge Manuel L. Real for his handling of $33.8 million entrusted to him for victims of the late Philippines dictator Ferdinand Marcos, calling his accounting “curious” and “filled with cryptic notations” that failed to show what happened to the money.

The three-judge panel of the U.S. 9th Circuit Court of Appeals ordered a new accounting of the disputed assets by a different judge — a rare act of implied censure that Real has now endured at least 11 times in his long judicial career.

 

 

Tom Diaz, "No Boundaries: Transnational Latino Gangs and American Law Enforcement"

 

“Tom Diaz has worn out some shoe leather—much like a good detective—in gathering facts, not myths or urban legend. “

—Chris Swecker, Former Assistant Director of the FBI’s Criminal Investigative Division.

“Few people know more about the subject than Tom Diaz and no single book tells the whole story better than No Boundaries. If you really want to know what organized crime in America looks like today, then read this alarming book.”

—Rocky Delgadillo, former City Attorney of Los Angeles

Order No Boundaries from Amazon.com

 

The Stakes

 

If You Indict Mother Teresa, You Better Convict

 

The stakes are high for Sanchez in an already complicated case:  “Now five months since his arrest, Mr. Sanchez faces an extended pretrial detention as the parties believe this case will not be ready for trial before December 2010.”

Unstated is the fact that careers will be on the line in the case.  Indicting Alex Sanchez was the rough equivalent of indicting Mother Teresa.  If the Sanchez case flames out, the careers of more than one or two on the government’s side will hit the silk.

The following are unexpurgated excerpts from the appeals brief on behalf of Sanchez.  (“Appellant’s Memorandum of Law and Facts In Support [of] Appeal from Detention Order,” United States v. Alex Sanchez, United States Court of Appeals for the Ninth Circuit, Docket No. 09-50525, filed November 20, 2009.)  Fairly Civil has inserted a minimum of explanatory background.  Additional materials on the case can be found in posts here, here, and here.

The government has ten days to reply.

The Basic Claim — Sanchez Was Denied a Fair Hearing

The core of Sanchez’s appeal is that he was denied a fair hearing on the only issues relevant to whether he should be released, which are (1) is he a risk of flight, and (2) does he present a threat to persons or a community?  Instead, the brief claims, Judge Real essentially held a “mini-trial” on whether Sanchez is guilty of the offenses with which he is charged.

This appeal from an order of pre-trial detention presents the question whether a defendant has been denied his right to a “full-blown adversary hearing” … when the district court limited the hearing to whether the government possessed evidence of the defendant’s guilt, foreclosed the defense from rebutting the government’s case with contrary evidence, shifted the burden of persuasion, ignored evidence relevant to flight and lack of danger and made only a “conclusory finding” misapplying the statutory presumption.

The Life of Alex

 

 

In Happier Times, Sanchez Enjoyed A Saintly Aura Comparable to that of Mother Teresa

 

Naturally enough, the brief sketches a factual review of a man grievously wronged by arbitrary and misdirected government conduct:

Mr. Sanchez quit gang life nearly 15 years ago, beginning a journey of redemption leading him to become one of the foremost anti-gang interventionists in the United States.  In 2006, he became the Executive Director of Homies Unidos, an organization dedicated to extricating youths from gangs and brokering and maintaining peace in communities afflicted by the scourge of gang violence.

On June 24, 2009, however, Mr. Sanchez, a long time resident of Los Angeles and the 38-year-0ld father of three, was arrested at his home and taken into custody on an indictment charging 24 defendants with various crimes in connection with alleged activities of the Mara Salvatrucha (“MS-13″).  Within days of his arrest, over 100 social workers, professors, politicians, clergy, law enforcement and former gang members from around the country raised a chorus of support to release Mr. Sanchez from custody, all attesting to his good character, commitment to peace and ties to the community.  This overwhelming support included over $2.5 million dollars in bail pledges and property.

At the detention hearing, the government claimed a chest tattoo indicated Mr. Sanchez had not quit the gang and four phone calls where Mr. Sanchez mediated a non-violent resolution to an intra-gang dispute supposedly evidenced a plot to kill  one of the disputants.  Announcing “the only determination I have to make on this motion” is “whether or not Mr. Sanchez was there” and “what they were discussing,” the district court precluded Mr. Sanchez from rebutting the government’s evidence about the significance of his chest tattoo while refusing lay and expert testimony contradicting the government’s interpretation of the calls.  Focused exclusively on whether there was evidence of Mr. Sanchez’s guilt, and ignoring evidence of Mr. Sanchez’s extensive ties to the community and reputation as a tireless and effective gang interventionist and violence prevention advocate, the district judge misapplied a statutory presumption, shifted the burden of persuasion, and ignored overwhelming evidence that Mr. Sanchez presents neither a flight risk nor a danger to others.

…

…the district judge refused to allow evidence on the three critical issues by (1) rejecting defense evidence undermining the inference the government sought to draw from Mr. Sanchez’s chest tattoo, (2) rejecting testimony refuting the government’s contention Mr. Sanchez spoke to Cameron’s killer, and (3) rejecting Mr. Sanchez’s proposed expert testimony disputing that the calls relayed “coded” messages.

The Right to Explain “the Physical Evidence”: The Tattoo:

The government stressed that “physical evidence,” in the form of a chest tattoo, showed Mr. Sanchez was still active in the gang.  Rosemarie Ashmalla, the Executive Director of the agency that removed Mr. Sanchez’s other tattoos, however, was prepared to testify that a chest tattoo was not evidence of ongoing gang affiliation because the tattoo removal program “had a policy of only removing visible tattoos.”  Ms. Ashmalla would have affirmed that most gang tattoo removal agencies, including hers, “do not generally remove non-visible tattoos, absent extraordinary reasons.”  As the head of an agency dedicated to removing gang tattoos (and the agency that removed Mr. Sanchez’s visible tattoos), Ms. Ashmalla was in a far better position that the prosecutor to explain the significance of a residual chest tattoo.  Rejecting her testimony was error.

The Damning Wiretaps — The Court Erroneously Precluded Mr. Sanchez From Presenting Relevant Expert Testimony to Rebut the Government’s Expert.

A focus of the case so far has been the government’s wiretaps of four calls in which Alex Sanchez certainly takes a leading role.  But the crucial question has developed to be:  was that leading role as a mediator and peace-maker or as a “shot caller” pushing the conversation to the ultimate murder in El Salvador of one Walter Lacinos (aka Camaron) by a gangster known as “Zombie”?  A close second is whether the government got the wrong “Zombie.”

Of critical importance, given the district court’s focus on “the content of these [four wire-tapped] conversations” is the district court’s refusal to permit Father Greg Boyle’s testimony.  Fr. Boyle is the Executive Director of Homeboy Industries, the largest gang intervention program in the country, and a nationally recognized gang expert knowledgeable in gang language, interactions and “codes.”  After listening to the calls and reviewing Det. [Frank] Flores’s declaration re-interpreting the calls and the prosecution’s arguments based thereon, Fr. Boyle concluded that, rather than corroborating a murder plot, Mr. Sanchez’s statements reflected a gang mediator’s peacemaking efforts.

The brief argues that the judge erred in declaring Father Boyle’s statement not “relevant” to the questions in the detention hearing — a specific case of the judge “not getting it.”

The Court Erroneously Rejected Relevant Defense Evidence Explaining the Context of the Conversations in the Four Wire-tapped Calls.

The district court erroneously rejected the testimony of Sonia Hernandez, a witness who knew the government (and Flores) misidentified one of the key participants in the calls, distorting their interpretation of the statements made therein.

…

The government got its facts wrong.  Although both Hernandez and Bonilla used the name “Zombie,” the person who killed Camaron was not the person Mr. Sanchez spoke to on May 7.  Sonia Hernandez would have identified her brother’s voice (not Bonilla’s) as the Zombie on the May 7 call with Mr. Sanchez.

By authenticating her brother’s voice on the May 7 call, Ms. Hernandez would have confirmed Mr. Sanchez had not talked “to the person who ultimately did, in fact, carry out the murder in El Salvador,” but to another person also nicknamed “Zombie.”

The Court Shifted the Burden of Persuasion

The brief also addresses a technical point that involves the difference between the “burden of production” (producing some favorable evidence) and the “burden of persuasion” (persuading the fact-trier that the evidence is true).  Essentially, Bensinger argues again that Judge Real confused the two:

“The burden of persuasion regarding risk-of-flight and danger to the community always remains with the government…”  As now-Justice Breyer explained, even where the nature of the charges gives rise to “a rebuttable presumption that ‘no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community,” [citing 18 U.S. Code, Section 3142 (e)] this presumption only served to “shift the burden of production” and require the defendant to introduce “some evidence” to the contrary.

The brief argues that Sanchez met this burden of production with witnesses who could rebut the government’s factual assertions about the tattoo and the calls, his agreement to “many restrictions on his liberty,” and the character witnesses and property-owners willing to support his release.

The brief also points out additional problems with Judge Real’s ruling:  he did not provide the requisite written statement of reason for Sanchez’s detention, including findings of fact, and erroneously placed undue weight on evidence of guilt, as opposed to risk of flight or danger.

Despite its refrain that “this is not trial” — invoked only to exclude defense evidence contradicting the prosecution’s case — the district court transformed the detention hearing into a mini-trial on the merits of the charges…Rather than conduct an inquiry focused on whether the release of Mr. Sanchez posed a clear and present danger to any person or community, the district court devoted himself to prejudging the evidence of guilt even though, as now-Justice Kennedy reminded, “the statute neither requires not permits a pretrial determination that the person is guilty.”

This Case Should Be Reassigned to a Different Judge on Remand

The brief ends up with the following request, not coincidentally accompanied by a footnote referring to other instances in which the Ninth Circuit has corrected Judge Real:

Judge Real rejected Ms. Hernandez’s testimony refuting the government’s claim that Mr. Sanchez instructed Bonilla to kill Camaron because it was “totally irrelevant.”  Judge Real excluded this patently relevant evidence not on technical legal grounds but because he failed to appreciate its logical relevance to the crucial issues at hand.  The same is true with respect to Fr. Boyle’s testimony.  Even if the matter were remanded for renewed consideration, there is little chance Judge Real will accord this evidence it proper weight, simply because the disputed evidence has been found relevant and admissible…[He has already] declared that it is entitled to no weight whatsoever.  At a minimum, the matter should be remanded for a detention hearing before a different judge.

Fairly Civil looks forward to reading and posting excerpts from the government’s reply to this brief.

 

 

Government's Serve

 

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MEXICAN DRUG TRAFFICKERS TARGET TEXAS KIDS

In bad manners, Corruption, Crime, Drugs, Gangs, Guns, Mexico, Transnational crime on November 17, 2009 at 5:48 pm

Parents' Nightmare: Mexican Drug Trafficking Organizations Recruiting Children in Texas

According to the Texas Department of Public Safety, Mexican drug trafficking organizations are targeting children in Texas as recruits for their violent criminal operations.

Here is the text of the media release issued by DPS on November 17, 2009:

November 17, 2009

DPS warns parents: Mexican cartels and gangs recruiting in Texas schools

The Texas Department of Public Safety is warning parents across the state to be aware of efforts by Mexican cartels and transnational gangs to recruit Texas youth in our schools and communities. These violent organizations are luring teens with the prospect of cars, money and notoriety, promising them if they get caught, they will receive a minimal sentence.

The Mexican cartels constantly seek new ways to smuggle drugs and humans into Texas are now using state based gangs and our youth to support their operations on both sides of the border.

For example, Laredo natives Gabriel Cardona and Rosalio Reta were recruited in their teens to be hit men for the Zetas. The Zetas, composed primarily of former Mexican military commandos, originally served as the enforcement arm of the Gulf Cartel, but have since become their own cartel. El Paso teens have been recruited to smuggle drugs across the border, many with the packs taped to their bodies.

While such recruitment is growing across Texas, juveniles along the Texas-Mexico border are particularly susceptible. In 2008, young people from the counties along the Texas-Mexico border accounted for just 9 percent of the population in Texas, but 18 percent of the felony drug charges and gang-related arrests.

“As these dangerous organizations seek to co-opt our children to support their criminal operations, it is more important than ever that parents be aware of these risks, talk to their children and pay attention to any signs that they may have become involved in illegal activities,” said Steven C. McCraw, director of the Texas Department of Public Safety.

To protect our communities and our children from these powerful and ruthless criminal organizations, local, state and federal law enforcement agencies and the District Attorneys in Texas border counties are working together to detect, disrupt and deter Mexican cartel-related crime along the Texas-Mexico border.

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MAJOR NIDAL MALIK HASAN’S RAMPAGE SPELLS “CAREER-ENDER” AS SEARCH FOR FALL GUYS TO PIN TAIL ON GRINDS ON

In bad manners, Ethics in Washington, Intelligence and Counter-Intelligence, Obama, politics, Terrorism, Terrorism and counter-terrorism on November 11, 2009 at 4:15 pm
richardson

Admiral James O. Richardson Testifies Before Congress On His Career-Ending Opposition to Forward Basing of U.S. Fleet at Pearl Harbor

As Congress, civilian leaders, and the public demand more accountability from service members and our military leaders, the Washington politics can involve cannibalistic witch-hunting at the highest levels. The pressure to be perfect, the one-mistake service, can take its toll on all members of the armed forces; from the airman and seaman to the service chief himself.

John J. Sproul, Major, USAF, Research Report, Air Command and Staff College, Air University, CSAF V. CNO: Core Values and  Their Career Ending Impact (April 1998).

h00865

Admiral Richardson in Better Days

The summary of the career of Admiral James O. Richardson at the Naval Historical Center’s photo page is crisp and about as scrubbed of controversy as one can get:  “Beginning in January 1940, he was Commander in Chief, U.S. Fleet, holding that position during a stressful period marked by the fleet’s forward deployment to Pearl Harbor. Relieved by Admiral Husband E. Kimmel in February 1941, he served at the Navy Department into 1942.”

What it leaves out is one salient detail of that “stressful period” and its impact on Admiral Richardson’s career.  In October 1940 Richardson told President Franklin Delano Roosevelt that continued deployment of the U.S. fleet at Pearl Harbor was a bad idea for a number of reasons.  This military advice did not go down well with the Commander-in-Chief, who had his own plan and his own impression of himself as a naval strategist.  With months, Admiral Richardson was replaced by Admiral Husband E. Kimmel, on whose watch the Japanese attack on Pearl Harbor, the Day of Infamy,  occurred on December 7, 1941.

Adm. Kimmel is said also to have not been enthusiastic about the fleet’s basing, but having got the message, he saluted and sailed on.

The rest is history.

One is sure that the matter was infinitely more complicated than that tiny summary.  But what is not complicated is that — as is the case in all publicly known government disasters — the final stage of every project is the hunt for someone to blame.  This involves a lot of perfect hindsight mixed with the bowel-chilling perception of participants (think the 3:00 a.m. phone call) that this could be their own personal career-ender.

Thus, one is sure that some very angry arguments have been going on — at the “highest levels” — of Washington’s military and civilian establishment.  Cynics would say that the risk of summary beheading is usually in inverse proportion to one’s rank.  Agents and investigators are expendable.  Generals and directors are not.

450px-Awlaki_1008

What Kind of Innocent Contact Could a U.S. Army Officer Have With This Man, Anwar al Awlaki, Who Is LInked to Numerous Home Grown Terror Plots?

In that context, the following post from Strategypage.com about the case of Ft. Hood’s apparent-jihadist, Major Nidal Malik Hasan, seems to combine just the right film-noir-like mix of real-world experience and knowing resignation.  The full text is about the use of statistical techniques for predicting terrorism, but the excerpt here deals (speculatively, to be sure) with the problems inherent in Major Hasan’s case for everyone involved:

Ignoring The Threat Does Not Make It Go Away

November 11, 2009: Even before September 11, 2001, counter-terrorism experts sought to use statistical techniques to predict where the next big terror attack would occur….

In the United States, these techniques still suffer from a shortage of data (terrorists.) With enough data, you can test your model by successfully predicting the past, and then turn it on the future. But with insufficient data, you have to rely on human judgment. This is subject to other factors, like the political atmosphere. An example of this was the recent terror attack in Fort Hood, Texas. There, a Moslem army officer, shouting “God Is Great”, murdered 13 soldiers and civilians, and wounded over thirty others. The major had previously been detected by the counter-terror intelligence system (both via emails to known terrorists and his public calls for attacks on non-Moslems.) When the FBI (which handles counter-terror intelligence inside the U.S.) urged the army to do something, the army declined. The FBI did not press the matter. One can imagine army commanders, confronting what the FBI described as a “potential” terrorist, realizing that in the current political climate, disciplining (or discharging) a Moslem army officer would endanger the careers of the generals involved in such a decision. So nothing was done, until the terrorist made his move.

It should be noted that at this writing the Department of Defense denies that anyone in the military establishment above the grade of an investigator detailed to the Joint Terrorism Task Force (sound effect here: chop, chop) was ever informed of the information that had been developed about Hasan.

The buck is thus in furious circulation now.

The Los Angeles Times has an excellent piece today (Thursday, November 12, 2009)(“Fort Hood suspect’s contact with cleric spelled trouble, experts say,” by Sebastian Rotella and Josh Meyer).  Here are relevant excerpts:

The radical cleric contacted by accused Ft. Hood gunman Maj. Nidal Malik Hasan has such unmistakable connections to past terrorist plots that his e-mail exchanges with the American should have triggered an all-out investigation, a number of officials and experts now believe

….

Awlaki has left a well-documented trail of influence in a string of recent terrorism cases in North America and Europe.

…

“It seems that the American investigators had difficulties detecting signs of worrisome conduct,” Jean-Louis Bruguiere, a veteran French anti-terrorism judge, said in a telephone interview. “It may also be that, because of the respect for religion, and the excesses by the U.S. services in recent years, that today there’s a tendency to be too prudent — perhaps less vigilant.”

Bruguiere is a giant in counter-terrorism, having been instrumental in the cases — among many others — of Carlos the Jackal and the Libyan mid-air bombing of UTA Flight 772 over the Sahara Desert in 1989 with the loss of 170 lives.

Stratfor.com has a thoughtful and informed analysis here. This is a relevant excerpt, but the whole piece covers many more angles:

So far, the Hasan shooting investigation is being run by the Army CID, and the FBI has been noticeably — and uncharacteristically — absent from the scene. As the premier law enforcement agency in the United States, the FBI will often assume authority over investigations where there is even a hint of terrorism. Since 9/11, the number of FBI/JTTF offices across the country has been dramatically increased, and the JTTFs are specifically charged with investigating cases that may involve terrorism. Therefore, we find the FBI’s absence in this case to be quite out of the ordinary.

However, with Hasan being a member of the armed forces, the victims being soldiers or army civilian employees and the incident occurring at Fort Hood, the case would seem to fall squarely under the mantle of the Uniform Code of Military Justice (UCMJ). From a prosecutorial perspective, a homicide trial under the UCMJ should be very tidy and could be quickly concluded. It will not involve all the potential loose ends that could pop up in a federal terrorism trial, especially when those loose ends involve what the FBI and CIA knew about Hasan, when they learned it and who they told. Also, politically, there are some who would like to see the Hasan case remain a criminal matter rather than a case of terrorism. Following the shooting death of Luqman Ameen Abdullah and considering the delicate relationship between Muslim advocacy groups and the U.S. government, some people would rather see Hasan portrayed as a mentally disturbed criminal than as an ideologically driven lone wolf.

Despite the CID taking the lead in prosecuting the case, the classified national security investigation by the CIA and FBI into Hasan and his possible connections to jihadist elements is undoubtedly continuing. Senior members of the government will certainly demand to know if Hasan had any confederates, if he was part of a bigger plot and if there are more attacks to come. Several congressmen and senators are also calling for hearings into the case, and if such hearings occur, they will certainly produce an abundance of interesting information pertaining to Hasan and the national security investigation of his activities.

Round and round it goes.  Where it will stop, nobody knows.

Truman_pass-the-buck2

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