This speech by Professor Michelle Alexander is amazing. I was spellbound for more than an hour watching it. Yes, you need to commit more time than your average Twitter post, but…well, amazing.
Archive for the ‘Drugs’ Category
Sometime between 5:00 and 6:00 p.m., about two dozen LAPD officers faced an angry crowd at the intersection of Florence and Normandie avenues. The cops were outnumbered to begin with, the crowd was growing into a mob, and the mob was howling mad at the police. An LAPD lieutenant, Michael Maulin, made a tactical decision that would cost him his career in the orgy of retrospective finger-pointing that followed the riots. He ordered the police officers to withdraw. The hard-charging, in-your-face, proactive thin blue line faded like a gaggle of Las Vega showgirls at curtain time. “It was widely believed in South Central that the LAPD did not want to protect the city’s poor, minority neighborhoods,” journalist Lou Cannon observed. “The shocking reality was that the LAPD was unable to provide that protection.”
Tom Diaz, No Boundaries: Transnational Latino Gangs and American Law Enforcement, p. 96.
Thus was the iron-fisted, mirrored-sun glasses, take-no-prisoners, paramilitary creation of legendary chief Darryl Gates—the proud Los Angeles Police Department—humbled by the infamous “Rodney King riots” of April 1992.
The LAPD would never be the same.
The lesson for today is quite simply this: uniforms, badges, tough-guy swagger, ballistic vests, and most of all guns do not protect law enforcement. Respect and the healthy fear of consequence do. When a society surrenders those two foundations of “law and order,” there are not enough guns in the world—not enough good guys with guns—to protect police, prosecutors, and judges from men who are willing to kill them.
Now we are seeing the truth of this implacable maxim, revealed in a prophetic spate of ruthless murders of law enforcement officers. In Colorado, the state’s prison chief is shot to death on his doorstep. In Texas, two county prosecutors are shot to death in separate incidents. In West Virginia, a sheriff is shot dead in his car.These incidents are but the latest and most recent examples of a growing trend of blatant attacks on law enforcement.
Please note that it is not the quantum, the total of law enforcement officers murdered, so much as it is the growing demonstration of willingness to confront law enforcement with armed violence. And that willingness–that willful disregard of fear and respect–is the inevitable consequence of two long-term currents in the United States.
One is the suppurating wound inflicted on America’s public discourse by the reckless gospel of insurrection that has been promoted by the National Rifle Association and the gun industry that it represents since at least the 1980s. This rotting lesion has consequences that go far beyond the kabuki theater of rhetorical exchange in Washington, a place where both sides need each other for the show, and ritual has displaced action.
The stinking, hateful matter emitted by the NRA has dangerously infected the minds of many of the dullest and worst of our society. Ideas have consequences, and when the idea that “government is our enemy” is combined in the minds of the unbalanced and the psychopath with easy access to increasingly deadly guns…well, to all but the ideologically intoxicated, the inevitable is clear.
The other factor is the utter collapse of not only moral will, but moral discernment itself, in Washington. This infection at the heart of our political discourse has paralyzed a body politic that might with capable discernment and strong will have cured itself of the hateful wound inflicted by the NRA and its ilk.
What we see today—elaborated at length in my latest book, The Last Gun—is the triumph of Third Way politics, micro-politics that seeks only political success for career politicians and their waddling retinue of mere technicians—pollsters, advisers, spin-masters, lobbyists.
These are people—Democratic party leaders and their fawning servants—who describe in great detail the polling, focus with frightening precision on the tiniest “swing” group, and then define a message that will appeal to that micro-fraction of America.
These “leaders” have, in the end, defined themselves as soulless people, willing to accept only “what we can get” and “what is politically feasible” in place of real change. They are either incapable of—or unwilling to—make grand moral judgments, define causes to lead, and stand up for principle. Reelection for its own sake is enough.
Thus has the powerful chorus of national moral outrage that followed the Moloch’s slaughter at Sandy Hook Elementary School been pared down to a whimper, to “negotiations” about inconsequential legalisms between the likes of the artfully consummate Third Way deal-maker Sen. Charles (“Chuck”) Schumer and the implacably thick-witted Senator Tom Coburn.
While these career politicians—many of whom have never done anything of substance in their lives other than curry elective favor—nitter and natter around the margins of America’s gun problem, the country is sinking to its gunwales in military-style firearms. Disrespect for law enforcement burgeons among radicals and career criminals alike, fueled by an irrational hatred of compromise and fact-based discourse.
If this sounds like Mexico, it is.
Conventional wisdom has always been—and still is among conventional “expert” thinkers like those of the hapless private spy agency Stratfor which, not incidentally, failed to protect its vast files from hacking some months ago—that organized gangs and transnational criminals will never attack law enforcement in the United States because the consequences would be too great.
This is the argument of the smug, the proud, and, oh, yes, by the way, the grand consultants retired from law enforcement selling their “expertise.” It can’t happen here because we are so good.
Well it is happening.
It is just as reasonable, and I would argue more reasonable, to conclude that the war for control has begun. We already see one federal prosecutor withdrawn from a major gang and drug prosecution. The drug “cartels” are not stupid. The examples recited above—no matter by whom they are ultimately found to have been perpetrated—make it clear that determined, ruthless men can indeed assassinate law enforcement officers pretty much at will in America today. So much for fear. It doesn’t matter, in the overall sense, who was behind the last four murders. What matters is the brazen impudence with which they were carried out. That’s straight outta No Country for Old Men.
Do not for one minute think that the chill of necrosis is not creeping into hamlets, counties, towns, cities, states, and even Washington. A member of Congress who received multiple death threats for simply suggesting that gun owners be required to insure themselves decided, for example, to skip a public ceremony, mindful of the recent near-fatal wounding of another member.
Vamos a ver. We’ll see.
Alex Sanchez, the “anti-gang activist” who was accused last June of being a secret MS-13 gang shot-caller, is out on bail. (For background details, start here and follow the links.)
Sanchez’s lawyer successfully beat back an Associated Press motion to make public the transcript of the star-chamber secret bail hearing conducted under the octogenarian aegis of Federal Quirky Judge For Life Manuel Real. (Go here for details.) His Honor agree to protect the spineless political hack(s) who testified on behalf of Sanchez.
Lesson: the public has no right to know anything and the First Amendment rights of a Free Press do not reach into the Realm of El Rey Real.
Meanwhile, Sanchez’s supporters cooked up this nicely done video in which The Mother Teresa of Gangsterdom turns his soulful eyes to you (woo-woo-woo) in thanks. (Go here for link to the Simon & Garfunkel song, “Mrs. Robinson,” to which the preceding parenthetical refers, kid.)
A nice touch in this video — which is making the rounds of the “immigration rights” movement — is the background music, a cover of Bob Marley’s “Get Up, Stand Up (For Your Rights).” None of Sanchez’s bobbleheads want to get up, stand up, for their right, much less the right of the public, to know what went on behind locked doors in the chambers of Doktor Herr Schiedsrichter Real.
And completely forget about the rights of ordinary people to be free from gang violence.
As Kurt Vonnegut once wrote: poo-tee-wheet, poo-tee-wheet. Joltin’ Joe — a “Real” role model — may be gone, but we still have Alex!
Look around you, all you see are sympathetic eyes
Stroll around the grounds until you feel at home …
Our nation turns its lonely eyes to you, woo woo woo …
DiMaggio was born in Martinez, California, the eighth of nine children born to immigrants from Italy, Giuseppe (1872–1949) and Rosalia (Mercurio) DiMaggio (1878–1951). He was delivered by a midwife identified on his birth certificate as Mrs. J. Pico. He was named after his father; “Paolo” was in honor of Giuseppe’s favorite saint, Saint Paul. The family moved to San Francisco, California when Joe was one year old.
The murders of several U.S. citizens connected to the American consulate in Ciudad Juarez, Mexico has elicited the usual transparently fake concern by the usual suspects in Washington.
President Obama sent out to a flack to say that the Chief Executive was “deeply saddened and outraged.”
Secretary of State Hillary Clinton declared that the murders:
… underscore the imperative of our continued commitment to work closely with the Government of President Calderon to cripple the influence of trafficking organizations at work in Mexico.
The unspoken overalls in the chowder of Secretary Clinton’s declarations about working closely with Mexico and crippling drug lords is the fact — political, historical, and inconvenient — that the Administration of President Obama has no intention whatever of taking on the U.S. civilian gun industry (and import houses) that are major suppliers of firearms smuggled to Mexico for use by the drug gangs and other criminals.
One of the most popular is the Barrett 50 caliber anti-armor sniper rifle. Although its inventor calls his gun “an adult toy,” Mexican criminals understand its real capabiliities, which are basically its ability to punch holes in armor from a thousand or two yards away.
Although there is nothing amusing about the war in Mexico, here’s a charming little video about the Barrett rifle.
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
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.
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!
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:
- The Associated Press files a motion asking for the last Sanchez detention hearing transcript to be unsealed.
- The U.S. government replies, OK by us, we agree there are insufficient grounds to seal the record, sure, unseal it.
- 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.
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
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!
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?
“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
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 ?”
“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.”
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?
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.
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.
Snarky rebuttal #2. “If it were anybody else …”
Say, what he say? This logic twists my mind like a pretzel.
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.
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.
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.
The Sicilian Connection
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.
You can read some of the best books about Cosa Nostra, the Sicilian mafia, and decide for yourself. My recommendations:
- John Dickie, Cosa Nostra: A History of the Sicilian Mafia.
- Alexander Stille, Excellent Cadavers: The Mafia and the Death of the First Italian Republic.
- Leoluca Orlando, Fighting the Mafia and Renewing Sicilian Culture.
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 ANGELESIn 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
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.
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? 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.
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.
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.
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.
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.
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.
CASE OF ALLEGED MS-13 “SECRET SHOT CALLER” ALEX SANCHEZ GETS REAL — ATTEMPTED “HAIL MARY SHUFFLE PASS” BY DEFENSE FLOPSIn 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
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.
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 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.
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!
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
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.
- What is “the rule” to which Judge Feess refers in the order?
- What prompted Judge Snyder to refer the matter to Judge Feess?
- What was the allegedly “related” case the unnamed defense counsel was so anxious to hook the present case to?
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.
According to the Texas Department of Public Safety, Mexican drug trafficking organizations are targeting children in Texas as recruits for their violent criminal operations.
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.
Now it’s definite.
And it’s personal.
Leaders of the transnational organized criminal gang Mara Salvatrucha (MS-13) have upped the ante and ordered a hit on a U.S. Immigration and Customs Enforcement (ICE) agent in New York. An earlier plot to kill an LAPD gang detective, Frank Flores, was detailed in a RICO indictment earlier this year. (See “The Plot to Whack a Cop” here.)
This case takes MS-13’s violent impudence to a federal level.
“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
According to an affidavit filed in support of an arrest warrant, an MS-13 member specifically tasked to kill the ICE agent described the plot to federal agents. The gangsters were looking for an AK-47 or M-16 assault rifle to do the job. (“Affidavit In Support Of Arrest Warrant,” United States v. Walter Alberto Torres, also known as “Duke,” United States District Court for the Eastern District Of New York, Case 1:09-mj-01055-RLM).
This is perhaps not surprising, given MS-13’s violent history — which is detailed in my book, No Boundaries: Transnational Latino Gangs and American Law Enforcement (University of Michigan Press, 2009).
As Fairly Civil has noted before, there is no question that gangsters in the United States have access to the firepower to take on U.S. law enforcement agents in the same way that narcotraficantes go after Mexican law enforcement authorities. The question has been: would gang leadership risk bringing the fury of America’s cops and agents down on their heads?
Apparently they would. (Although one experienced gang cop takes exception to this conclusion here.)
It is worth noting that some gang experts familiar with the Mexican Mafia and their affiliated Sureno gangs insist that the Mexican Mafia made its decision a few years ago to target troublesome cops.
If there were any gloves left on, they are off now.
Here is an extended excerpt from the affidavit. (Under the circumstances, Fairly Civil does not include the name of the agent filing the affidavit. The target is called “John Doe” in the affidavit.):
2. Over the past several years, my office has engaged in an extended, in-depth investigation of members of the street gang La Mara Salvatrucha 13, also known as “MS-13,” (hereinafter “MS-13″). The defendant WALTER ALBERTO TORRES DUKE, also known as “Duke,” is a self-admitted member of MS-13. MS-13 engages in acts and threats involving murder, attempted murder, robbery and extortion, in violation of the laws of the various states, including New York, and narcotics trafficking, in violation of Title 21, U.S.C., Sections 841 and 846.
3. MS-13 is comprised primarily of immigrants from El Salvador and other Central American countries, with members located throughout the United States and Central America. In the United States, major MS-13 chapters, or “cliques,” have been established in New York, Virginia, Texas, California and elsewhere. Following induction, members of MS-13 frequently demonstrate their membership by wearing clothing containing the colors blue and white and/or the words “MS” or “13.”
4. In the Eastern District of New York, MS-13 cliques have been established in various towns on Long Island, including Hempstead, Freeport, Roosevelt, Huntington, Brentwood and Islip, and neighborhoods in New York City including Jamaica, Flushing, Forest Hills and Far Rockaway. The cliques routinely hold meetings to plan criminal activity, and members pay dues into a clique treasury. The treasury funds are used to purchase firearms and ammunition and to promote other illegal activity. Inter-clique meetings, called “Universals,” are used to coordinate criminal activities among different cliques. Participation in criminal activity by a member, especially violence directed at rival gangs, increases the respect accorded to that member and is necessary to obtain a promotion to a senior or leadership position.
5. In the Eastern District of New York, MS-13 members are frequently involved in violent altercations with members of rival gangs such as the Salvadorans With Pride (“SWP”), the Latin Kings, the Bloods and the Netas. In the Eastern District of New York, MS-13 members have repeatedly carried out “drive-by” shootings and other violent attacks targeting members of rival gangs and others.
6. According to a cooperating witness (“CW”), members of MS-13 have been plotting to kill ICE Agent John Doe (“Agent Doe”), a leader in the investigation of MS-13, since at least December 2006. Specifically, CW stated that he, along with fellow MS-13 gang members in the Flushing clique of MS-13, plotted to murder Agent Doe with either a rifle or a shotgun, in retaliation for Agent Doe’s ongoing investigation of MS-13 in Queens, New York. CW stated that the gang was exceedingly angry at Agent Doe, whom MS-13 blamed for the incarceration of dozens of gang members in Queens, New York, and elsewhere.
7. A second MS-13 gang member, who subsequently pled guilty to racketeering-related charges in this District, admitted to participating in the same plot to kill Agent Doe in late 2006 and early 2007, during proffer sessions with the government.
8. On or about October 16, 2009, at approximately 9:30 p.m., detectives from the New York City Police Department (“NYPD”) observed a group of several admitted MS-13 gang members walking on Northern Boulevard, near 150th Street, in Flushing, Queens, and approaching other pedestrians in an aggressive manner. Two detectives requested the individuals to stop, and requested them to take their hands out of their pockets. The individuals ultimately complied, and the detectives recognized four of the individuals as previously identified MS-13 gang members. A fifth individual, the defendant TORRES, was not known to the detectives at the time, but identified himself as a member of MS-13 and stated that he wished to provide information to the NYPD. None of the individuals, including the defendant, were taken into custody.
9. On or about October 20, 2009, defendant WALTER ALBERTO TORRES, also known as “Duke,” contacted detectives from the NYPD and requested a meeting, which was arranged for later that day. Prior to commencing the interview with the defendant, the defendant was advised of his Miranda rights, both orally and in writing. Defendant TORRES indicated that he understood and wished to waive his rights, and signed a written waiver to that effect.
10. During the interview, the defendant stated, in sum and substance and in part, that he has been a member of MS-13 since joining the gang in approximately 1998 in El Salvador. The defendant stated that he emigrated to the United States in 2001, at which point he joined an MS-13 clique in Springfield, Virginia. He later moved to Alexandria, Virginia.
11. The defendant further stated that he and other MS-13 gang members agreed to murder Agent Doe and engaged in planning the murder. In order to perpetrate the murder, the defendant stated that the gang was attempting to procure an AK-47 assault rifle or an M-16 machine gun, in anticipation that the bullets would penetrate the agent’s body armor. TORRES stated that the order for the murder came from gang leadership in El Salvador, and that he discussed the plan with MS-13 gang members as recently as August 2009.
12. During the October 20, 2009 interview, it was determined that there was an outstanding warrant for the defendant’s arrest. Specifically, the defendant is wanted in Fairfax, Virginia, for violation of probation following his guilty plea to grand larceny, a felony. The defendant was subsequently taken into custody.
13. On or about October 22, 2009, NYPD detectives and ICE agents again interviewed the defendant, this time at Riker’s Island. The defendant was advised of his Miranda rights, both orally and in writing. Defendant TORRES again indicated that he understood and wished to waive his rights, and signed a written waiver to that effect.
14. During the interview, the defendant described, among other things, multiple acts of violence he committed on behalf of MS-13. The defendant also described the plot to kill a federal agent, stating that he traveled to New York in or about August 2009 for the specific purpose of participating in the planning and execution of the murder plot. Information provided by the CW, as well as surveillance by law enforcement agents, corroborates the identity and gang membership of the coconspirators identified by TORRES. According to TORRES, he was in charge of putting the plan together, and he agreed with fellow gang members to participate in the ongoing plot to kill Agent Doe with a high powered rifle or similar weapon.