Dec. 9, 2002 -- The FBI didn't just infiltrate the notorious Nuestra Familia prison gang, it allowed an informant to continue the group's violent and criminal activities for seven months, pulling off drug and gun deals and the killing of a rival gang leader, a defense attorney for one of the men accused in the case alleges in a court filing.
Federal investigators refuse to comment on the case, saying they will eventually answer in court, and at least one local law enforcer calls the charge bogus.
But San Francisco attorney Marc Zilversmit contends the government's own legal filings reveal a federal role in the brutal prison-based gang, and raise troubling questions about how far the FBI can take an undercover operation.
The investigation, dubbed Operation Black Widow, was a joint effort by the FBI and state and local police in Northern California to break the Nuestra Familia gang, which police say operated from Salinas to the Oregon border and was run from inside the state's high-security Pelican Bay State Prison.
The gang has been around since 1965, according to federal prosecutors, started inside Soledad prison to protect Hispanic inmates. But officials say it soon expanded outside, and over the last three-and-a-half decades has carried out hundreds of murders and thousands of robberies, staking its claim to its turf with intimidation and violence.
The investigation into the outfit, which had been going on since 1997, got a break in December 2000, when Daniel "Lizard" Hernandez — facing life in prison for charges that included murder plots in the course of a RICO (Racketeer Influenced and Corrupt Organizations) enterprise — contacted the Special Services Unit of the California Department of Corrections to talk about becoming an informer.
Read Daniel Hernandez’s plea agreement.
Hernandez cut a plea deal. According to Zilversmit, who represents another defendant, Hernandez not only helped the government build its case, but also took advantage of the freedom given him by law enforcement to first gain the position of go-between for Nuestra Familia leaders in prison and members on the street and eventually to take over the operation.
"Together, the government and Hernandez ran the street operations, installing a new organization, promoting and demoting members, setting up gun and drug deals, and espousing a philosophy of violence that eventually led to the death of a rival drug dealer, Raymond Sanchez," Zilversmit wrote in a 51-page statement filed in U.S. District Court in San Francisco in support of his motion to dismiss charges against his client, Armando "Suave" Heredia.
Read the attorney's filing.
He quoted a California Department of Corrections memo describing the gang's activities from January through the spring of 2001: "All operations were at direction of OBW [Operation Black Widow] staff with [a Special Services Unit Special Agent's] concurrence and were monitored with audio/video equipment and personnel."
The allegations about the way Operation Black Widow handled the case are based on information from the government's discovery documents, Zilversmit said.
The attorney is asking for the charges against his client, Heredia, to be dismissed, and the attorneys for 23 other defendants in the case have joined the filing, asking that all charges be dismissed.
The FBI and the U.S. Attorney's Office for the Northern District of California have declined to comment on the allegations in Zilversmit's filing. The government's response had been due to be filed with the court on Nov. 29, but prosecutors requested and were given an additional 10 days.
One local police officer, however, was skeptical of the lawyer's claims. "It's a typical defense move — when the facts are against you, attack the people," said Chief Mike Dunbaugh of the Santa Rosa, Calif., Police Department, which was involved in the operation. "It doesn't matter what he says. It's all false."
The trial of Heredia and the other defendants is scheduled to begin in January.
Drug, Gun Deals for Government?
Among the crimes committed under Hernandez' leadership was the killing of a rival drug dealer. Zilversmit accuses the government of knowing that the murder was going to happen, but doing nothing to either stop it or warn the victim that he was in danger, and he says the money raised from drug and gun deals, as well as robberies and extortion ordered by Hernandez, went to the FBI, not the gang.
If the lawyer's claims prove true in court, it wouldn't be the first time the government went too far. Over the past decade there have been several high-profile cases in which law enforcement involvement with informants has resulted in legal problems, including the prosecution of El Rukn gang members in Chicago. Numerous convictions were overturned because information about informants was withheld from defendants and their attorneys.
That case, as well as revelations about how a mob informant, James "Whitey" Bulger, was protected by some agents while he was on the FBI's 10 Most Wanted list, led the Justice Department to set new guidelines for their agents in the handling of informants in January 2001.
Under the guidelines, the FBI, the Drug Enforcement Administration and all other Justice Department agencies must report suspected criminal activity by informants to prosecutors and notify federal prosecutors when an informant is the target of a federal criminal investigation.
Before January the FBI had a policy of shielding its informants' identities from outside agencies. Experts say the new guidelines were designed to provide outside checks and balances for the FBI without hindering agents' ability to do their jobs.
‘Potential Disaster Waiting to Happen’
The question of how to investigate violent street gangs and organized crime is one that has troubled police and prosecutors for centuries, and according to law enforcement experts, no satisfactory answer has yet been reached.
The problem is that to break gangs and organized crime, inside information is needed, but such groups — and especially street gangs — are extremely difficult for undercover police to infiltrate. That forces police to turn to informants, who by their very nature are untrustworthy.
"It is extremely difficult to supervise the informant," said Steven Cohen, the former chief of the Violent Gangs Unit at the U.S. Attorney's Office in New York. "You can't be with him 24 hours a day. He is duplicitous by nature. If he is going to betray one group — the gang — what's going to stop him from betraying the second — the government?"
Another problem is that in order for the informant to bring in good information, he must be a successful gang member, and the higher he moves in the organization, the more valuable the evidence he can provide to law enforcement trying to make a case against the gang leaders.
"The more successful your informant becomes in the gang, the better, the more information you get. But if you step back — what does he have to do to move up in the gang? You have a potential disaster waiting to happen," Cohen said.
Lewis Katz, the John C. Hutchins professor of law at Case Western Reserve University School of Law, said that law enforcement allowing an informant to occupy a position of authority in a criminal organization would raise ethical, if not legal, questions about the handling of an investigation.
"They almost become complicit in it," he said. "I find it to be a horse of a different color from using a low-level informant. It seems to me their primary responsibility is to stop crime."
He said, however, that the courts have generally given law enforcement leeway in their handling of informants, and Cohen agreed.
"Courts tend to say this may well be something that should be policed internally, but they haven't been ready to give the benefit to defendants," Cohen said.
‘Encouraging All Kinds of Violent Acts’
It would be tough for Zilversmit to make a case that his client had no predisposition to commit the crimes he is accused of committing — something the defense would have to prove in order win an acquittal, he said.
"The problem in this case is all these guys have criminal histories, so you can't say they're not predisposed," he said.
But he says the defense's claims against the government are actually more serious than entrapment, in which the rights of a suspect are violated, because they allege the government actually was in a position of knowingly tolerating crimes.
"It seems very risky from a concerned-citizen point of view," Zilversmit said. "You're going to have this guy out there — if he's going to be credible as the leader of a violent prison gang, he's going to have to be encouraging all kinds of violent acts."
Because Operation Black Widow was supposed to be keeping constant tabs on Hernandez, the FBI and other agencies had to know that he was ordering crimes, and that was enough to make their behavior gross misconduct, Zilversmit argues.
Katz said that the U.S. Supreme Court has ruled that such an argument could hypothetically be used to overturn a conviction, but it has yet to rule in favor of any defendant making that kind of case.