Alex Sanchez — the admitted former Mara Salvatrucha (MS-13) gangster turned Los Angeles anti-gang worker, now accused by the feds of being a “secret shot caller” — has been repeatedly denied pre-trial release. Now his lawyer, Kerry R. Bensinger, has taken the matter to the United States Court of Appeals for the Ninth Circuit in a take-no-prisoners brief that (in nice, polite lawyer language) flames trial Judge Manuel L. Real.
The brief scorches a few other targets, including the government’s trial lawyers and the principle MS-13 expert witness in the case, Los Angeles Police Department Gang Detective Frank Flores. Flores’s testimony about the meaning of wiretaps (Sanchez allegedly directing a “hit” on a renegade gang member) was key in the detention hearings. The defense claims that the government not only got one of the key phone call participants wrong, but Flores misconstrued what happened during the calls.
But Bensinger focuses his flamethrower on the 85-year old Judge Real, stating, “At a minimum, the matter should be remanded for a detention hearing before a different judge.”
If the judge did anything right, it escaped counsel’s notice.
Reading between the lines, Bensinger is conveying to the appeals court the message that — in his view — Real for whatever reason or reasons is confused or willfully obtuse about what the federal law requires in a bail (“detention”) hearing. In short, the brief argues that the trial judge just doesn’t “get it.”
The 32-page document landed in the appeals court docket less than a week after that court issued an opinion and order applying its own flame to Judge Real. (Bensinger has more to say on the matter — he asked the higher court to allow him to file additional material.) Here is the Los Angeles Times on the matter involving Real and the 9th Circuit (November 14, 2009):
Federal judge criticized for handling of claimants’ assets, Los Angeles Times, November 14, 2009
A federal appeals court Friday criticized U.S. District Judge Manuel L. Real for his handling of $33.8 million entrusted to him for victims of the late Philippines dictator Ferdinand Marcos, calling his accounting “curious” and “filled with cryptic notations” that failed to show what happened to the money.
The three-judge panel of the U.S. 9th Circuit Court of Appeals ordered a new accounting of the disputed assets by a different judge — a rare act of implied censure that Real has now endured at least 11 times in his long judicial career.
“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
The stakes are high for Sanchez in an already complicated case: “Now five months since his arrest, Mr. Sanchez faces an extended pretrial detention as the parties believe this case will not be ready for trial before December 2010.”
Unstated is the fact that careers will be on the line in the case. Indicting Alex Sanchez was the rough equivalent of indicting Mother Teresa. If the Sanchez case flames out, the careers of more than one or two on the government’s side will hit the silk.
The following are unexpurgated excerpts from the appeals brief on behalf of Sanchez. (“Appellant’s Memorandum of Law and Facts In Support [of] Appeal from Detention Order,” United States v. Alex Sanchez, United States Court of Appeals for the Ninth Circuit, Docket No. 09-50525, filed November 20, 2009.) Fairly Civil has inserted a minimum of explanatory background. Additional materials on the case can be found in posts here, here, and here.
The government has ten days to reply.
The Basic Claim — Sanchez Was Denied a Fair Hearing
The core of Sanchez’s appeal is that he was denied a fair hearing on the only issues relevant to whether he should be released, which are (1) is he a risk of flight, and (2) does he present a threat to persons or a community? Instead, the brief claims, Judge Real essentially held a “mini-trial” on whether Sanchez is guilty of the offenses with which he is charged.
This appeal from an order of pre-trial detention presents the question whether a defendant has been denied his right to a “full-blown adversary hearing” … when the district court limited the hearing to whether the government possessed evidence of the defendant’s guilt, foreclosed the defense from rebutting the government’s case with contrary evidence, shifted the burden of persuasion, ignored evidence relevant to flight and lack of danger and made only a “conclusory finding” misapplying the statutory presumption.
The Life of Alex
Naturally enough, 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-0ld 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. Focused exclusively on whether there was evidence of Mr. Sanchez’s guilt, and ignoring evidence of Mr. Sanchez’s extensive ties to the community and reputation as a tireless and effective gang interventionist and violence prevention advocate, the district judge misapplied a statutory presumption, shifted the burden of persuasion, and ignored overwhelming evidence that Mr. Sanchez presents neither a flight risk nor a danger to others.
…the district judge refused to allow evidence on the three critical issues by (1) rejecting defense evidence undermining the inference the government sought to draw from Mr. Sanchez’s chest tattoo, (2) rejecting testimony refuting the government’s contention Mr. Sanchez spoke to Cameron’s killer, and (3) rejecting Mr. Sanchez’s proposed expert testimony disputing that the calls relayed “coded” messages.
The Right to Explain “the Physical Evidence”: The Tattoo:
The government stressed that “physical evidence,” in the form of a chest tattoo, showed Mr. Sanchez was still active in the gang. Rosemarie Ashmalla, the Executive Director of the agency that removed Mr. Sanchez’s other tattoos, however, was prepared to testify that a chest tattoo was not evidence of ongoing gang affiliation because the tattoo removal program “had a policy of only removing visible tattoos.” Ms. Ashmalla would have affirmed that most gang tattoo removal agencies, including hers, “do not generally remove non-visible tattoos, absent extraordinary reasons.” As the head of an agency dedicated to removing gang tattoos (and the agency that removed Mr. Sanchez’s visible tattoos), Ms. Ashmalla was in a far better position that the prosecutor to explain the significance of a residual chest tattoo. Rejecting her testimony was error.
The Damning Wiretaps — The Court Erroneously Precluded Mr. Sanchez From Presenting Relevant Expert Testimony to Rebut the Government’s Expert.
A focus of the case so far has been the government’s wiretaps of four calls in which Alex Sanchez certainly takes a leading role. But the crucial question has developed to be: was that leading role as a mediator and peace-maker or as a “shot caller” pushing the conversation to the ultimate murder in El Salvador of one Walter Lacinos (aka Camaron) by a gangster known as “Zombie”? A close second is whether the government got the wrong “Zombie.”
Of critical importance, given the district court’s focus on “the content of these [four wire-tapped] conversations” is the district court’s refusal to permit Father Greg Boyle’s testimony. Fr. Boyle is the Executive Director of Homeboy Industries, the largest gang intervention program in the country, and a nationally recognized gang expert knowledgeable in gang language, interactions and “codes.” After listening to the calls and reviewing Det. [Frank] Flores’s declaration re-interpreting the calls and the prosecution’s arguments based thereon, Fr. Boyle concluded that, rather than corroborating a murder plot, Mr. Sanchez’s statements reflected a gang mediator’s peacemaking efforts.
The brief argues that the judge erred in declaring Father Boyle’s statement not “relevant” to the questions in the detention hearing — a specific case of the judge “not getting it.”
The Court Erroneously Rejected Relevant Defense Evidence Explaining the Context of the Conversations in the Four Wire-tapped Calls.
The district court erroneously rejected the testimony of Sonia Hernandez, a witness who knew the government (and Flores) misidentified one of the key participants in the calls, distorting their interpretation of the statements made therein.
The government got its facts wrong. Although both Hernandez and Bonilla used the name “Zombie,” the person who killed Camaron was not the person Mr. Sanchez spoke to on May 7. Sonia Hernandez would have identified her brother’s voice (not Bonilla’s) as the Zombie on the May 7 call with Mr. Sanchez.
By authenticating her brother’s voice on the May 7 call, Ms. Hernandez would have confirmed Mr. Sanchez had not talked “to the person who ultimately did, in fact, carry out the murder in El Salvador,” but to another person also nicknamed “Zombie.”
The Court Shifted the Burden of Persuasion
The brief also addresses a technical point that involves the difference between the “burden of production” (producing some favorable evidence) and the “burden of persuasion” (persuading the fact-trier that the evidence is true). Essentially, Bensinger argues again that Judge Real confused the two:
“The burden of persuasion regarding risk-of-flight and danger to the community always remains with the government…” As now-Justice Breyer explained, even where the nature of the charges gives rise to “a rebuttable presumption that ‘no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community,” [citing 18 U.S. Code, Section 3142 (e)] this presumption only served to “shift the burden of production” and require the defendant to introduce “some evidence” to the contrary.
The brief argues that Sanchez met this burden of production with witnesses who could rebut the government’s factual assertions about the tattoo and the calls, his agreement to “many restrictions on his liberty,” and the character witnesses and property-owners willing to support his release.
The brief also points out additional problems with Judge Real’s ruling: he did not provide the requisite written statement of reason for Sanchez’s detention, including findings of fact, and erroneously placed undue weight on evidence of guilt, as opposed to risk of flight or danger.
Despite its refrain that “this is not trial” — invoked only to exclude defense evidence contradicting the prosecution’s case — the district court transformed the detention hearing into a mini-trial on the merits of the charges…Rather than conduct an inquiry focused on whether the release of Mr. Sanchez posed a clear and present danger to any person or community, the district court devoted himself to prejudging the evidence of guilt even though, as now-Justice Kennedy reminded, “the statute neither requires not permits a pretrial determination that the person is guilty.”
This Case Should Be Reassigned to a Different Judge on Remand
The brief ends up with the following request, not coincidentally accompanied by a footnote referring to other instances in which the Ninth Circuit has corrected Judge Real:
Judge Real rejected Ms. Hernandez’s testimony refuting the government’s claim that Mr. Sanchez instructed Bonilla to kill Camaron because it was “totally irrelevant.” Judge Real excluded this patently relevant evidence not on technical legal grounds but because he failed to appreciate its logical relevance to the crucial issues at hand. The same is true with respect to Fr. Boyle’s testimony. Even if the matter were remanded for renewed consideration, there is little chance Judge Real will accord this evidence it proper weight, simply because the disputed evidence has been found relevant and admissible…[He has already] declared that it is entitled to no weight whatsoever. At a minimum, the matter should be remanded for a detention hearing before a different judge.
Fairly Civil looks forward to reading and posting excerpts from the government’s reply to this brief.