Confidential informants are like the black hole of the criminal justice system.
Ellen Yashefsky, Benjamin Cardozo Law School, quoted in Aubrey Fox, “Delving the Murky World of Police Informants,” Gotham Gazette, February 20, 2008.
It is rarely possible to guess accurately from what corner the informer will emerge. For this reason, a delicate relationship, little understood by the public, exists between law enforcement officials and individual members of the underworld. These men we hunt down are always possible allies who may come over to our side for some consideration of sentence, for some promise to protect their wife or family. My attitude has been to use any means available to cut narcotic violations to a minimum, and where criminals or addicts will cooperate with us to that end I will deal with them…Whether he comes voluntarily or because he is shown that it is his best way out, whether it is a one-time deal or a source of inside information that may continue for months, the informer provides the solution for ninety-five percent not only of narcotic offenses but of all types of crime.
Harry J. Anslinger and Will Orsler, The Murderers (New York: Avon Books, 1961), pp. 121-122.
Informants are more than mere witnesses to crime and are less than law enforcement officers.
John Madinger, Confidential Informant: Law Enforcement’s Most Valuable Tool (Washington, DC: CRC Press, 2000), p. 12.
“No informant, no case.”
That aphorism has become almost universally accepted among investigators of racketeering and drug crimes. But some doubt it.
Harry J. Anslinger believed in the value of informants, as the quote above demonstrates.
Anslinger — the other J. Edgar Hoover — was the first Commissioner of the U.S. Federal Bureau of Narcotics. Although the rap is variously pinned on Richard Nixon or Ronald Reagan, Anslinger was the original architect of the American war on drugs. Some of his prose on the evils of marijuana is … entertaining … to say the least. (“Google” him if you are interested. This is a more or less family-friendly blog.)
Every street cop, federal agent, and prosecutor battling the toxic corrosion of the illegal drug trade–and its local retailers, street gangs–also knows the value of the informant.
‘’The big secret of detective work is that you’ve got to get somebody else to tell you what happened,’’ NYPD Lt. John Cornicello told The New York Times in 2006.
However, some federal investigators suggest that the brutal discipline, cellular structure, and tightly held core of Mexican drug trafficking organizations has diminished the value of “flipping” lower level criminals and — through them — working the investigation up to the bosses. These people suggest that the interception of communications — wiretaps and other techniques — has become more important in the law enforcement tool box of “sophisticated techniques of investigation.”
Here is the central problem of informants against the Mexican DTOS, according to this view: Lower level members of the Mexican drug trafficking organizations in the United States (i.e., your quiet Latino neighbor in Cleveland, Atlanta, or Conshohocken, whose well-trimmed lawn and unexceptional home is a stash house, packed with dope for redistribution to local gangs and thence up the nose of America’s addicts) typically clam up tightly when busted. After all, they have family members who can be easily whacked or tortured back in Mexico. Moreover, they generally are isolated in specialized cells, and know little to nothing about the rest of the organization. Flipping them is difficult and usually yields little useful information, some seasoned agents say.
Be that as it may, court records and news reports teach that the use of informants is still central to the investigation of many criminal enterprises, including transnational gangs. And although communications intercepts may be the key to making cases against the Mexican DTOS, informants here and in Mexico are still important.
Fairly Civil will wander through this world of informants over a series of posts, beginning with this one. These posts will examine the value of informants in actual criminal cases, and some of the issues that critics consistently raise.
The Long History of Informants
Modern civil libertarians and the criminal defense bar tend to criticize the use of informants as an insidious and relatively new creature of the war on drugs.
In fact, informants have been used since at least Biblical times. The transactional equation (“you give me information, I give you special treatment”) is the same now as it was then:
The House of Joseph, for their part, advanced against Bethel, and the Lord was with them. While the House of Joseph were scouting at Bethel … their patrols saw a man leaving the town. They said to him, “Just show us how to get into the town, and we will treat you kindly.” He showed them how to get into the town; they put the town to the sword, but they let the man and his relatives go free.
Judges (Shofetim) 1: 22-26, Tanakh (Philadelphia: The Jewish Publication Society, 1985).
Recent court filings — e.g., a corruption case involving a senior ICE official, federal racketeering (RICO) cases against MS-13 in Los Angeles and San Francisco, and the pursuit of an injunction by police officers in St. Louis — illustrate the vast range of differences in the uses and abuses of snitch management within the American law enforcement system.
Given the utility of informants — and the fair assumption that most law enforcement officers and prosecutors want to use informants to fight crime and put criminals in jail — the use of informants raises three classes of interesting issues:
- Keeping informants alive.
- Managing informants and their information to ensure that they are reliably transmitting valid information and not wrongfully implicating innocent persons.
- Law enforcement policy management issues about the impact of informants on the administration of justice, particularly in communities where they are heavily used.
This post will focus on the problem of keeping informants alive.
Keeping Informants Alive
If you decide to embark on a life of crime, there’s one very important thing that you should know, and that thing is everyone is a potential informant against you — your wife, your mother, your brother, your lawyer, anyone you’ve ever worked for or worked with and anyone who has ever worked for you.
Chris Mather, Crime School: Money Laundering (Buffalo, NY: Firefly Books, 2004), p. 101.
Gangsters know the value of the informant — an endangered species also known in the underworld as the “rat,” the “stool pigeon,” and the “snitch,” among other epithets. The thought that one’s homey or carnal may be cooperating with law enforcement is a tiny live wire wound through the brains of the “shot callers” and “big homeys” of every Latino gang. That little wire carries a buzzing current of paranoia and suspicion. “One may smile, and smile, and be a villain,” Prince Hamlet observed upon learning of his own mother’s duplicity.
Not infrequently, paranoia overcomes reality. Gangsters innocent of cooperation have nevertheless suffered the misfortune of being whacked without proof, much less probable cause. Call it intuition gone awry.
Some who suffer unjust accusation from their fellow gangsters are driven into the arms of law enforcement. [I write about several such cases in No Boundaries: Transnational Latino Gangs and American Law Enforcement (University of Michigan Press 2009).]
To give the devil his due, however, it is also true that gang leaders often seek what they call “paperwork” — some kind of official evidence — corroborating that a suspected homey has in fact “flipped” before giving a “green light” to have him (or her, as in the case, e.g., of notorious MS-13 informant Brenda Paz) murdered.
“They usually try and get paperwork on people that they say that they’re snitching or they said something to incriminate somebody,” a member of the Columbia Lil’ Cycos clique of the 18th Street gang explained in testimony during a federal racketeering trial described in No Boundaries. “And once they get the paperwork, they place a green light on the person.”
One of the better places to find such evidence is in the files of the “discovery” material that our system of justice requires be given to persons accused of crime. Gangsters and their lawyers comb through this material in search of the identity of informants.
“The homeboys know the legal system better than most lawyers,” FBI Special Agent Carl Sandford told we when I was researching No Boundaries. “They use the rules of discovery and evidence in criminal cases to get ‘paperwork’ concerning who the rats are.”
In fact, the murder conspiracy in which Los Angeles anti-gang activist Alex Sanchez is accused of participating as a secret MS-13 shot-caller revolves about the accusation of one gangster — Walter Lacinos — that another was a rat. Lacinos provided “paperwork” to document his accusation. But, according to transcripts of a government wiretap in the case, MS-13 shot-callers submitted the paperwork [apparently some kind of court document] to the Mexican Mafia for the gangster version of forensic analysis. The decision came down that Lacinos’s “paperwork” was fake (it included at least one forged page). This led to considerable intra-gang ill will and Lacinos was eventually whacked in El Salvador.
A Working Example: United States v. Cerna
A current example of how this cat and mouse game of sussing out informants might work is provided in the ongoing RICO case brought against a number of MS-13 gangsters in San Francisco, United States v. Cerna.
The trial court recently ruled on a number of pre-trial motions. The following excerpt describes one of the defendant’s attempts to find out the names of certain informants:
[One of the defendants] argues that defendants have a need for disclosure because the informants were participants in ‘critical events’ at issue in this case. He lists several ways in which the informants are referenced in discovery or the indictment. Informants 1211 and 1218 provided law enforcement with information about MS-13’s operations, leaders and members. Informants 1211 and 1218 attended MS-13 meetings with defendants which support the RICO conspiracy counts against them. Informant 1211 told the authorities about meetings with [certain] defendants … where various crimes were discussed. Informant 1218 attended meetings with [certain] defendants … [and] also discussed the buying and selling of narcotics with [another] defendant and provided authorities with information about a violent crime allegedly committed by [other] defendants…[etc., etc.]
“Omnibus Order Re Stage Two Motions,” United States v. Cerna, U.S. District Court for the Northern District of California, Docket No. CR 08-0730 WHA, filed September 16, 2009.
The court ruled that the defendant had shown enough to require the government to come into a closed conference in the court’s chamber [in camera] — without the defendants or their lawyers — as described in this part of the ruling:
An in camera hearing is therefore justified. The hearing will be held ex parte, with only judicial staff, prosecutors and witnesses present, in order to protect the identity of the informants. A defendant for whom the threshold showing has been made as to a particular informant … may submit written questions regarding that informant to the Court and opposing counsel three days before the hearing.
The Court orders an in camera evidentiary hearing to determine whether to allow disclosure of the confidential informants’ identities. The government is ORDERED to produce at the hearing one or more witnesses with knowledge of the relevant informant’s identity and role in the investigations of this action.
This all sounds tidy, secure, and appropriately solicitous of the informants’ well-being.
Gangsters and cartels have their own ways of doing things, however. For example, corrupting law enforcement officials who can provide them with the names of informants by accessing law enforcement databases.
The Case of Richard Padilla Cramer
The affidavit in support of a criminal complaint in the case of United States v. Cramer alleges that a recently retired senior ICE agent stationed in Guadalajara, Mexico was selling lists of informants to Mexican drug traffickers while he was an ICE agent. It is charged that Cramer also became a major investor in several large shipments of cocaine. In fact, he was supposedly urged by his DTO pals to retire so as to become an investor in dope.
According to court documents, erstwhile-Agent Cramer was exposed when a DTO operative [“CS–2”] “flipped”:
After being arrested, CS-2 provided the law enforcement officers with copies of printouts of the results of database run in several law enforcement databases, including four DEA database queries, two criminal history queries, one ICE database query, and two State of California law enforcement database queries … CS-2 also stated that these law enforcement inquiries were from a U.S. Federal Agent stationed in Mexico named “Richard.” CS-2 also stated that the DTO utilizes Richard to make inquiries into members of the DTO to confirm that they (the members of the DTO) are not working as informants for various law enforcement agencies. Richard was later identified through this investigation as Richard Padilla CRAMER, a former ICE agent stationed in Mexico until his retirement in or about December 2006 or January 2007 … It was later learned that CRAMER utilized his law enforcement position to persuade DEA agents to run DEA database queries under the guise of an active drug investigation. Further investigation with DEA agents who were stationed in Mexico revealed that CRAMER was stationed in Guadalajara, Mexico and was known to ask to have database checks run on various subjects … CRAMER was responsible for advising the DTO how U.S. Law Enforcement works with warrants and record checks as well as how DEA conducts investigations to include “flipping subjects” and making records checks.
Affidavit in support of Criminal Complaint in United States v. Cramer, U.S. District Court for the Southern District of Florida, Docket No: 09-3178-White, filed August 28, 2009.
This would be a shocking case if it were not for the fact that it is only the latest in a string of cases in which square-jawed minions of law and order on “our side” of the border have been shown to be just as rotten as all those contemptible “corrupt officials” on the other side.
It reminds one of the lyrics of the old cowboy music song by Jim Ed Brown: “I was looking back to see if you were looking back to see if I was looking back to see if you were looking back at me.”
The difference, of course, is that an outed informant is a dead man walking. And not for long.