Tom Diaz

Posts Tagged ‘U.S. Attorneys’

THE ALEX SANCHEZ CASE: “THIS IS OUR EVIDENCE, YOUR HONOR, AND IF YOU DON’T LIKE IT, WELL…WE’LL FIND SOME OTHER!”

In Crime, Gangs, Informants and other sophisticated means, Latino gangs, RICO, RICO indictments, Uncategorized on January 5, 2013 at 5:08 pm
Groucho Justice copy

“When the duck comes down…”

“Those are my principles, and if you don’t like them… well, I have others.”

Groucho Marx

“Even a modestly competent district attorney can get a grand jury to indict a ham sandwich.”

     Former Judge, Now Law Professor (and Ex-Con) Sol Wachtler, with respect to whom, see http://www.law.columbia.edu/media_inquiries/news_events/2009/december2009/wachtler-mental.

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

Alex Sanchez–ripped from his family and left to rot for three years until the government’s case folded like a soggy gyro.

It will be four years in June since the United States government shocked the world and threw a legal fragmentation grenade into the home of Alex Sanchez. On June 24, 2009 Sanchez was arrested and charged under the federal racketeering law popularly known as RICO.

The essence of the federal charge was that Sanchez—an anti-gang activist whose prominence at the time cannot be exaggerated—was secretly continuing his membership in the huge and violent Latino gang, MS-13, a transnational racketeering organization. In plain words, Sanchez was accused in the indictment of plotting, as a boss or “shot caller,” to kill another gang member.

The government recently dropped the charges against Sanchez.

But the great, gray, anonymous and tight-lipped agglomerations of suits that is “the government” collectively muttered under its breath that it is going to “review” the evidence and likely will indict Sanchez again. They’ll be back. The prosecution asked the judge to let it take its embarrassingly shredded case back to a grand jury.

ham sandwich

The accused, Ham Sandwich, was indicted last week.

Ooops! We indicted a ham sandwich.  See, your honor, what we really meant to do was to indict a taco. The image of Groucho Marx in a court room springs irresistibly to mind. “That’s our evidence, your honor. If you don’t like it, well, we’ll find other evidence.”

Charge first, evidence later?

With the conspiracy to murder charge toasted like last week’s Cinnabon, perhaps the genius bar at the U.S. Attorney’s office can assign half of the federal agents in Southern California to follow Sanchez around and nail his ass on a charge of felonious crossing against a “don’t walk” sign.

Sanchez is due more than one apology, and I’ll start with mine.

I’ve followed this story for three years with a series of caustic and skeptical posts. The trouble is, I was skeptical about the wrong party. Although I have always been careful to note Alex Sanchez’s claim of innocence, looking back over past posts, it is clear that I had a grain, nay a fist-sized rock, of salt stuck in my throat.

My blind spot was that I simply could not believe that the government would indict a man as well known and, frankly, beloved as Alex Sanchez unless the government case was locked up tight. As I have written many times, you better be damned sure you’re right if you indict Mother Teresa. I also knew that the government has a barracks full of informants and “flipped” gangsters, so they must have had solid evidence against Sanchez.

My bad.

I am sorry. I apologize to Alex Sanchez and to those who had faith in him. Because it now appears that the U.S. government, with all the power and resources available to it, screwed up in such a way that assistant U.S. Attorneys and some law enforcement agents ought to be fired, or at best reassigned to wear out their shoe leather on student loan collection work.

Groucho Marx ponders his next move in Duck Soup . Scanned in from Bee File

Not an assistant United States Attorney, but…thinking … thinking..is there a taco in here?

If it has not committed a massive miscarriage of justice, the U.S. Department of Justice has certainly left the appearance that is has, skulking behind a forest of sealed files. There is virtually NO public record in the Alex Sanchez case other than the juicy tidbits the government has chosen to dribble out. If it makes you feel any better, this is not the only case in which trial by sealed memoranda and plea bargain—as opposed to a public trial and proof of guilt beyond a reasonable doubt to a jury of one’s peers—has become the norm, rather than the exception.

If you have not followed the story, here is a concise summary from a brief filed on behalf of Sanchez more than two years ago.  I posted this extract in  Accused Secret Shot-Caller Alex Sanchez’s Take-No-Prisoners Brief Flames Trial Judge Manuel Real — Bottom Line: Judge Doesn’t Get It.

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-old 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.

How could the federal government—with its awesome access to technology and expertise—get the single most important piece of evidence in the only meaningful charge against Sanchez wrong?  Namely, the phone calls in which the operative facts were all about who was walking to whom about killing whom?

You tell me. But they did. And now they grudgingly admit it.

The government’s expert witness, it turns out, completely misidentified a participant in the supposed plot to kill phone calls. And when the real participant surfaced, he blew up the government expert’s theory of the case.

After Sanchez’s new lawyer filed a motion to throw the case out, the U.S. Attorney’s office got some new lawyers on the case to reply and fess up…sort of:.

In their Motions to Dismiss, defendants Alex Sanchez (“defendant Sanchez”) and Juan Fuentes (“defendant Fuentes”) (collectively “defendants”) raise serious questions regarding the evidence presented to the grand jury and the manner in which it was presented. Although the government disputes defendants’ allegations of misconduct and grand jury abuse, the government agrees that the grand jury presentation with respect to the conspiracy to murder Walter Lacinos, aka “Camaron,” was flawed. In order to correct the errors and omissions in the initial presentation, the government asks the Court to dismiss without prejudice, pursuant to Federal Rule of Criminal Procedure 48(a), the following counts…

The government makes this request with the express intention of re-filing certain of the dismissed charges, including certain charges with respect to defendant Sanchez, as part of a superseding indictment in this case.

taco

We found it, boss, the smoking taco!

In a footnote, the government grumbles, “a determination of which of the dismissed charges will be pursued will be made only after a thorough re-review of the evidence.”  Say what?  We’re going to see if there is a ham sandwich lurking in here?  Or a taco?  Or just anything to save our face?

Here is where it gets really interesting.  All the basic documents in this courtly exchange are sealed.  But one juicy little piece of sizzling meat somehow escaped the Czar’s censor.  This is an extract from Alex Sanchez’s defense reply to the government’s request for a do-over:

The government has not filed an opposition to the Motion to Dismiss and has avoided addressing the factual arguments therein: that the government presented false evidence to the grand jury issuing the indictment; that a government prosecutor lied to the grand jury in subsequent proceedings; that the government failed, for more than three (3) years, to take any action to formally acknowledge or attempt to correct an indictment based on false evidence; and that government prosecutors withheld from Mr. Sanchez favorable and exculpatory evidence.

 Insofar as newly assigned government prosecutors have finally performed the analysis and evaluation that should have occurred years ago, Mr. Sanchez does not contend that the government’s Request to Dismiss, filed December 17, 2012, is in bad faith. Mr. Sanchez does not waive his right to revisit this issue, should he subsequently become aware of evidence suggesting that the Request for Dismissal is motivated by anything but a desire to fairly seek justice.

U.S. Attorney Andre Birotte

United States Attorney Andre Birotte

Wowser, sir!  These are serious allegations: false evidence to a grand jury? A government prosecutor lying?  Withholding evidence?  Career-enders and maybe even…criminal conduct?  By the good guys?  Does the late Senator Ted Stevens come to anyone’s mind?  Or a bar association misconduct proceeding?

I have no idea whether Alex Sanchez is a saint or a sinner, the anti-gang activist  he appears to be, or a secret agent for Zombie Nation.  But I do know “enough” when I see it.

Basta!

Finish this case without Alex Sanchez and let him stay home to raise his children.

You screwed the pooch.

NEW U.S. DEPARTMENT OF JUSTICE MEDICAL MARIJUANA GUIDELINES–A FIG LEAF FOR US ATTORNEYS?

In bad manners, Crime, Drugs, Obama, politics on October 19, 2009 at 7:16 pm
Innocence Lost: New Guidelines May Give U.S. Attorneys a Fig Leaf to Stay Out of the Way of Sate Medical Marijuana Experimentation

Innocence Lost: New Guidelines May Give U.S. Attorneys a Fig Leaf to Stay Out of the Way of State "Medical Marijuana" Experimentation

Posted below is the full text of the new DOJ medical marijuana guidelines.

Don’t toke up yet. There is a lot less than meets the eye here.

Don't toke up yet, dude!

Don't toke up yet, dude!

The new guidelines demand “clear and unambiguous compliance” with state law. There is lots of disagreement even within California law enforcement, for example, about exactly what the California law allows and does not allow, so strict compliance is going to be in the eye of the beholder.

Perhaps the ultimate intention of this document is to give the US Attorneys a fig leaf so they can stay out of the way of state experimentation without either endorsing the medical marijuana system or ignoring rampant criminality (which many say has infested the California program already)?

THE NEW GUIDELINES

October 19,2009

MEMORANDUM FOR SELECTED UNITED STATES ATTORNEYS

FROM: David W. Ogden, Deputy Attorney General

SUBJECT: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana

This memorandum provides clarification and guidance to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana. These laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting States and among local jurisdictions within those States. Rather than developing different guidelines for every possible variant of state and local law, this memorandum provides uniform guidance to focus federal investigations and prosecutions in these States on core federal enforcement priorities.

The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.

The Department is also committed to making efficient and rational use of its limited investigative and prosecutorial resources. In general, United States Attorneys are vested with “plenary authority with regard to federal criminal matters” within their districts. USAM 9-2.001. In exercising this authority, United States Attorneys are “invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.” Id. This authority should, of course, be exercised consistent with Department priorities and guidance.

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities.

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

* unlawful possession or unlawful use of firearms;

* violence;

* sales to minors;

* financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;

* amounts of marijuana inconsistent with purported compliance with state or local law;

* illegal possession or sale of other controlled substances; or

* ties to other criminal enterprises.

Of course, no State can authorize violations of federal law, and the list of factors above is not intended to describe exhaustively when a federal prosecution may be warranted. Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law. Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.

Your offices should continue to review marijuana cases for prosecution on a case-by-case basis, consistent with the guidance on resource allocation and federal priorities set forth herein, the consideration of requests for federal assistance from state and local law enforcement authorities, and the Principles of Federal Prosecution.

cc: All United States Attorneys

Lanny A. Breuer

Assistant Attorney General Criminal Division

B. Todd Jones

United States Attorney

District of Minnesota

Chair, Attorney General’s Advisory Committee

Michele M. Leonhart

Acting Administrator

Drug Enforcement Administration

H. Marshall Jarrett

Director

Executive Office for United States Attorneys

Kevin L. Perkins

Assistant Director

Criminal Investigative Division

Federal Bureau of Investigation

Nuanced Memo Addresses Use of  "Prosecutorial Resources" -- Neither Endorsing Nor Condemning So-Called "Medical Marijuana" Schemes

Nuanced Memo Addresses Use of "Prosecutorial Resources" -- Neither Endorsing Nor Condemning So-Called "Medical Marijuana" Schemes

Follow

Get every new post delivered to your Inbox.

Join 498 other followers

%d bloggers like this: