Tom Diaz

Posts Tagged ‘RICO’


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.


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


In bad manners, Crime, Drugs, Gangs, Guns, Informants and other sophisticated means, Latino gangs, RICO, RICO indictments, undercover investigations on October 20, 2009 at 4:09 pm
Still in Custody -- Judges denies Bail Request of Alex Sanchez, Accused "Stealth Shot Caller"

Still in Custody -- Judges denies Bail Request of Alex Sanchez, Accused "Stealth Shot Caller"

Details are not only sketchy, they are non-existent, but two close sources confirm that Alex Sanchez was again denied bail at his hearing in federal court yesterday.  Don’t bother searching the Los Angeles Times, to whom this case is apparently not a story in spite of its drama and implications for administration of justice, gangs, and organized crime.

For background on the story of this former gangster, ostensibly turned anti-gang activist, but now accused in a federal RICO indictment of being a secret “shot-caller” or gang boss, go here, here, and here.

Meanwhile, perhaps the most that can be said until the trial and verdict is this.

Whatever the prosecutors served up yesterday, it apparently was sizzling enough to convince federal judge Manuel Real to keep Sanchez locked up.

Experienced gang prosecutors and investigators who are not related to or part of the Sanchez case have told me that this sort of “back and forth” or what is known as the “battle of the transcripts” is fairly typical of the early stages of a big racketeering case — particularly when you have a case that relies on transcripts that require translation — and that it is best at this stage to keep an open mind and not jump to conclusions but rather to follow the evidence until the “back and forth” sorts itself out.

At this stage it appears to these observers that too many people are jumping to conclusions and making personal attacks (on both sides) when the real issues are evidence-based — namely, “First, “what precisely do the transcripts say?”  Then, once that is established, second, “Now that we know what the transcripts say, what exactly does that mean?”

Point taken, but Fairly Civil remains amazed at the virtual news blackout on this case.

Lindsay Lohan grabs more media time? Any media time?


Newsworthy in L.A.

Newsworthy in L.A.


In Corruption, Crime, Gangs, Guns, Transnational crime on December 19, 2008 at 5:28 pm

“They enjoy a huge reverence in the prison system; they’re like little gods.”

Not A God -- Mexican Mafia Gangster Frank "Puppet" Martinez

Not A God -- Mexican Mafia Gangster Frank "Puppet" Martinez

This is how the Mexican Mafia prison gang (“EME”) was described by retired Los Angeles County Sheriff’s Department gang sergeant Richard Valdemar on a recent NPR program.

It reminded me of one of my favorite quotes, from U.S. Attorney Patrick Fitzgerald in Chicago upon the taking down of a rat’s nest of Latin Kings a few years ago: “It may seem pretty cool to be a Supreme Inca when you’re the leader on the street of gang until the title ‘Supreme Inca’ becomes ‘lead defendant.'”

Bruce Riordan (Photo by Mandalit del Barco, NPR)

Bruce Riordan (Photo by Mandalit del Barco, NPR)

Rocky Delgadillo (LA City photo)

Rocky Delgadillo (LA City photo)

A couple of gangbusters in Los Angeles — city attorney Rocky Delgadillo and his anti-gang director, former federal prosecutor Bruce Riordan — are taking it to the next level.  The pair are not content to just kick in gang heaven’s gate and jail deified  gangsters.  They’re going after the gangsters’ gold.  An innovative civil law suit the team filed — based on a new California state law — targets two of the worst of LA’s transnational spawn, the Mexican Mafia and the 18th Street gang. The city wants the courts to take the gangs’ assets and distribute them among the neighborhoods ravaged by the criminals’ depredations.  An interesting and useful twist is that the city does not have to prove that the gang assets in question came directly from its criminal operations.  The theory of the state law and the case is based on common law nuisance — the gang has in effect deeply polluted a neighborhood and it must pay for the cleanup with its assets, however gotten.

“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

[Update:  Los Angeles has won its first anti-gang money damages lawsuit, against a different gang, as reported by the Christian Science Monitor:

The city of Los Angeles, plagued by 23,000 violent gang crimes since 2004, including 784 murders and 12,000 felony assaults, announced Tuesday that it had won its first civil judgment, for $5 million, against a criminal gang that had dominated the heroin trade downtown for decades….”By giving prosecutors more tools to fight gang activity at the local level, we are protecting our communities at the same time [that] we’re able to strengthen our statewide anti-gang efforts,” said Gov. Arnold Schwarzenegger in a statement released with the announcement of the $5 million verdict against the 5th and Hill gang in L.A.]

EME Gangster's Godfather-like Compound -- Not Your Stereotypical Barrio Dwelling

EME Gangster's Godfather-like Compound -- Not Your Stereotypical Barrio Dwelling

This reverse Robin Hood calls to mind the success of Morris Dees and the Southern Poverty Law Center in suing hate groups like the Ku Klux Klan for big bucks.  Dees was a trail-blazer in using textbook tort law on behalf of hate crime victims to both win compensation and consequently shut down some of the most virulent haters in America.  The assets of these gangs are mind-boggling.  FBI agents found almost half-a-million dollars in cash inside a card-board box in one raid.  The EME king-pin in that case lived in a compound straight outta The Godfather.

An early civil law innovation was the use of injunctions against gangs.  The LA gang map is carved up with injunctions that limit the ability of diverse gangsters to operate in specific territories.  But the gangs are so well-entrenched, and so organic in their adaptability, it’s hard to say how successful these injunctions have been.  Proponents say their use has reduced gang violence.  Opponents say the opposite.  Let’s put it this way:  according to latest reports, the gangs are still there.

Civil libertarians have complained about the civil rights of the those affected by injunctions.

“When a person who has not been convicted of any gang-related activity or any criminal activity, for that person to be prohibited from being on a public sidewalk during daylight hours, runs against everything that our Constitution stands for,” says Robin Toma, consultant and attorney at the Los Angeles County Human Relations Commission.

They are said to be unfairly “profiled.”   Others claim the injunctions “divide” communities. We might expect similar opposition  in this case.

“If Delgadillo’s lawsuit is a gimmick, filed to get a little media attention and soon forgotten, we don’t need it,” the Los Angeles Times wrote in an on-the-one hand, on-the-other hand editorial — praising the move so long as it works, but leaving room to criticize if it doesn’t.

The person who inked those skeptical words must never have meet Bruce Riordan.  He is a determined man.  It is a serious mistake to misjudge his grit, commitment, and legal acumen.  In fact, the factual foundations of the present case go back more than a decade to the day when FBI Special Agent Carl Sandford walked into Assistant United States Attorney Riordan’s office.  This was shortly after the federal government decided that criminal street gangs were no longer strictly a problem for local law enforcement — a pivotal part of the fallout from the 1992 Rodney King LA Riot. Latino and black gangs were key factors in the riot’s explosion and spread.

I relate the story of the 18th Street gang’s rise, the criminal operations of the Columbia Lil Cycos clique (CLC), the Mexican Mafia’s takeover of the drug “tax” (i.e., extortion) business, and the federal investigation and prosecution in a chapter of my forthcoming book, No Boundaries: Transnational Latino Gangs and Federal Law Enforcement (University of Michigan Press 2009).

Riordan, an eager young prosecutor, lobbied for and was assigned the task of investigating the 18th Street18th Street "Shot Caller" Lefty Cazales Was Rubbed Out by His Homies When He Crossed Janie ("Mom" Garcia

18th Street “Shot Caller” Lefty Cazales Was Killed by His “Homies” When He Crossed Janie (“Mom”) Garcia

gang.  The complete file handed him consisted of one sheet of paper.  He was breaking new ground in the federal prosecutor’s office.  But he was initially thwarted by a series of indifferent, clock-punching investigators assigned to him by the FBI.  That changed dramatically when Sandford walked in the door.  The two hit it off famously.

Riordan and Sandford both had to wrestle with the skepticism, and sometimes downright hostility, of their respective front office management.  “Bruce was fighting his demons, and I was fighting mine,” Sandford told me in an interview.  “And we were both fighting the bad guys.”  The old bulls in the U.S. Attorney’s organized crime section dismissed gangs as mere “street crime.”  The FBI field office management did not yet understand that the gangs were unlike anything the agency had tangled with before. In a sense, both men were dealing with separate realities — the one they saw on the ground, and the preconceptions of their bosses.

Nevertheless, within a few years Bruce Riordan successfully prosecuted the CLC and EME — first RICO case against a Southern California street gang.  With the help of the Los Angeles Police Department and other agencies, led by an enthusiastic FBI team that included agents Jim Wines and Tib Aguilar, among others, Riordan and Sandford proved that the Columbia Lil’ Cycos clique of the 18th Street gang, under the control of the Mexican Mafia prison gang, were running a classic organized crime operation, based largely on extortion of drug dealers and using ruthless armed violence to protect the scheme.

Gangster Underlings Called Frank Martinez and Janie Garcia "Dad" and "Mom" -- Not Leave it to Beaver Type People

Gangster Underlings Called Frank Martinez and Janie Garcia "Dad" and "Mom" -- Not Leave it to Beaver Type People

Mexican Mafia member Frank “Puppet” Martinez ran the racketeering out of a prison cell, relying on his wife, Janie Garcia, as his trusted surrogate and field commander.

This all took place during a pivotal period in the history of  Southern California’s Latino gangs.  The 18th Street clica developed and refined the concept of extorting drug dealers with “renta,” or taxes.  The Mexican Mafia thought it was such a good idea, they moved in, took over the direction and ordered all the Southern California Latino gangs to fall into line with the scheme.  EME commanded gang shot-callers to attend a series of meetings, at which among other things they were told to stop drive-by shootings.  But EME wasn’t trying to stop the killing.  It just wanted to lower the profile while it consolidated the hugely profitable extortion business.

The investigation that Riordan and Sandford started continues to bear fruit.  A series of federal RICO cases were developed on the foundation they laid.  And the civil litigation Delgadillo and Riordan filed is built to a large extent on facts developed in the course of these cases.

Unfortunately, the task is huge and as a nation, we are falling behind.  The continuing integration of Latino prison and street gangs into the operations of the Mexican drug trafficking cartels is making both the cartels and the gangs more dangerous every day. These organizations will not give up their multi-billion dollar cash cow without an all-out fight against them, using every tool we can think of.

It is starting to dawn on U.S. journalists and “opinion leaders” that Mexico is in a real war with the DTOs.

Half a Million Dollars in Cash Was Hidden in this Box

Half a Million Dollars in Cash Was Hidden in this Box

Nothing less than the existence of democratic governance on our southern border is at stake.  However, it is not yet widely understood in the United States that EME, 18th Street, MS-13, and many other Latino gangs are combat soldiers in another front in the Mexican Drug War.  That front is inside the U.S. — our law enforcement is facing heavily armed drug muscle.   Drug trafficking violence and the Mexican Drug War’s battles are lapping over the border.  As yet, the violence on our side of the border is less intense than the horrific butchery going on in Mexico.  But some believe that it is not a question of whether, but when, we will see shocking incidents of urban warfare-type combat between our cops and the narcotraficantes, as well as gruesome civilian “collateral damage.”   (For a sobering overview of the issue, see Gary “Rusty” Fleming’s new book, Drug Wars: Narco Warfare in the Twenty-first Century.  He has also produced a documentary on the subject.)


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