Using Subinformant Unfairly Insulates Agency, Jurist Says

By John Ryan

Daily Journal Staff Writer

LOS ANGELES – A federal judge last week slammed the Drug Enforcement Administration for the questionable conduct of a longtime drug informant who has earned well in excess of $300,000 from the agency over the past decade. U.S. District Judge Florence-Marie Cooper dismissed charges against three alleged methamphetamine dealers after Ronald Kaye, attorney to one of the defendants, argued that the informant improperly relied on a “subinformant” to set up drug transactions so agents could bust suspected dealers. Kaye contended in pretrial discovery motions that the informant used the intermediary to protect himself and the DEA from entrapment claims, and so defense attorneys could not get at the primary witness to show how the drug sale was arranged. Scrutinizing Details Assistant U.S. Attorney Sean Lokey, the case prosecutor, did not respond to inquiries. Thom Mrozek, spokesman for the U.S. attorney’s office in Los Angeles, said prosecutors could not comment on the subinformant issue or Cooper’s ruling. Court motions by prosecutors regarding the informants were filed under seal. Kaye said he has agreed not to divulge the names of the informant or subinformant, to protect their safety. Cooper, in strongly worded findings issued Thursday, agreed with Kaye that the informant used an underling to keep the defense from scrutinizing the details of the drug deal. ‘Citizens’ Rights’ “By using an intermediary to do the actual work assigned to the CI [confidential informant], the DEA attempts to insulate itself from inspection and examination and from any charges of improper conduct,” Cooper wrote. “A law enforcement agency must not be allowed to shield itself from accountability by hiring someone outside of law enforcement who is free to violate citizens’ rights.” U.S. v. Alvarez, 02-CR-355. The ruling could have broad impact, Kaye said, because the informant has admitted under oath that he relies on many helpers like the subinformant in Kaye’s case. “This is essentially the war on drugs gone wild,” Kaye, a partner at Pasadena’s Kaye, McLane & Bednarski, said last week. A DEA representative in Los Angeles declined to discuss in detail whether the use of subinformants, as described by Kaye and in Cooper’s findings, was proper procedure. “We would never discuss our methods of operation,” Jose Martinez, a public information officer with the DEA, said last week. “The informant is just one of many sources we use.” He added, “We would never bring someone for prosecution solely based on any uncorroborated information.” But Kaye said that the subinformant was free to induce, even entrap, individuals into searching for and attempting to distribute drugs because the DEA did not monitor or record his conduct. Nor did the agency make the details of his involvement available to the defense until just days before the trial , Kaye added. Cooper dismissed the Alvarez case because prosecutors in Los Angeles said they would not comply with her discovery orders, which included providing the defense with details on all cases the informant and subinformant worked on. Mrozek could not say whether prosecutors would appeal, but he added that they are considering their options. Police and drug agents have come under increasing fire in recent months for concealing the use of informants in drug buys, a practice known in police jargon as a “walled-off” sting. In September, federal prosecutors were forced to drop a Riverside drug case, after a judge ruled that a sheriff’s detective violated the law by hiding the existence of a confidential informant from the court and the defense. In the Los Angeles case, Cooper criticized the government for its longtime insistence that only one informant worked on the case and that no impeachable information about him existed. “Either the Government did not know about the existence and use of the [subinformant] (which seems to the Court highly unlikely in view of his repeated use by the [confidential informant]), or the Government deliberately lied to the defense in this case,” Cooper wrote in her findings. Kaye said he believed Cooper primarily meant the DEA when she referred to the “Government.” In laying out the subinformant scheme in his discovery motion, Kaye cited phone records between the subinformant and the defendants in his case and in two other methamphetamine cases, U.S v. Parra, 03-CR- 121, and U.S. v. Corcuera, 03-CR-24. All three cases were filed in U.S. District Court for the Central District; two proceeded in Los Angeles courts and one in Santa Ana. In the three cases, the motion explained, the subinformant had regular and frequent contact with the defendants. The informant, on the other hand, had no or very little contact with the defendants before the arrests. “[T]he individual who pursued the defendants in this case and the two other cases and who was the primary party that engaged in the negotiation for each of the methamphetamine transactions was the subinformant,” Kaye’s motion stated. In January, a federal jury in Los Angeles returned a guilty verdict against the two defendants in the Parra case, Pedro Alberto Parra and Marco Antonio Enriquez-Hermosillo. U.S. District Judge Dickran Tevrizian presided over the Parra case. Gary Olive, attorney for Parra, said this week that he plans to seek a new trial based on the informant’s alleged improprieties. Olive said he learned of the subinformant’s role in his client’s deal shortly before trial and asked for a delay so he could investigate further, but Tevrizian denied the motion. “When they have an informant, the DEA has policies, manuals and has to do things by the books,” Olive said. “With a subinformant, there is no mandate to monitor these people, no responsibility or control over them. They don’t tape these people, keep records or provide discovery.” Nevertheless, the informant and subinformant testified at the Parra trial. The subinformant testified that he worked for the informant 10 or more times and that he was paid between $1,000 and $2,000 per deal, Olive said. The subinformant said he was paid only if his work led to arrests. Both Kaye and Olive said this arrangement is dangerous because it gives the subinformant a reason to use any means necessary, including entrapment, to set up a transaction. The informant testified that he used many helpers. The subinformant in question was not even the one the informant used most often, Kaye said. Phone records establishing the role of the subinformant were obtained by Deputy Federal Public Defender Craig Wilke during the Corcuera case last year before U.S. District Judge Alicemarie Stotler in Santa Ana, Kaye said. Wilke won an acquittal for his client, Daniel Leon-Gomez. Wilke did not respond to inquiries about the case. The other defendant, German Rafael Corcuera, pleaded guilty in an earlier phase of the proceedings. However, his new attorney, Randolph Driggs, said Friday that he is reviewing the subinformant situation and may file a motion to withdraw his client’s guilty plea. Kaye’s discovery motion detailed an alleged modus operandi on the part of the informant and the subinformant. The subinformant contacted old friends and acquaintances in low-income areas of Santa Ana and informed them of money to be made if they could find a large amount of methamphetamine for a prospective buyer. The informant posed as the buyer. “[A]fter inducing these individuals with telephone call after telephone call to find a source for the methamphetamine transactions, he would turn the case over to the informant right before the transaction culminated,” the motion argued. The subinformant contacted the informant regularly, usually before and after each contact with the defendants, the motion said. Recently, Kaye said that the DEA provided evidence, such as audiotapes, only of the final interactions between the informant and the defendants. Kaye wanted to show that the entrapment occurred earlier, when he believes the subinformant was pressuring the defendants to score a deal. Cooper said in her findings that an entrapment defense became feasible once the defense brought forth “another layer of governmental activity, not preserved in any record, not tape-recorded or otherwise officially acknowledged.” Kaye called the scenario disturbing. “These people are facing 15 to 20 years in prison, but they don’t have an opportunity to examine the evidence that was the primary evidence against them,” Kaye said. “The defense is in the lurch to try to demonstrate entrapment because there is no discovery produced about the subinformant.” Kaye’s motion pointed to two reports by DEA Special Agent John DiFelice, mentioning the subinformant’s participation in the Alvarez drug deal to suggest the DEA had ratified the procedure. Kaye argued in the motion that he didn’t receive this information until November 2003, eight months after he first requested discovery on a possible second informant and just days before his trial was scheduled to begin. He concluded in the motion that “either the DEA is unable to track and monitor this informant’s conduct or they are deliberately not producing this highly relevant evidence to the defense.” Cooper came to the same conclusion in her findings last week. Kaye said the DEA has a history of failing to regulate its informants, including the nationwide Andrew Chambers scandal. An internal investigation launched by the DEA in 2000 revealed that Chambers, the socalled supersnitch, repeatedly lied under oath over a 16-year period in which he earned $1.9 million for his role in helping nab drug felons across the United States. The Chambers report acknowledged that the DEA had no effective system in place to keep tabs on wrongdoing by informants. Kaye said that, in the three cases he’s uncovered in Southern California, close monitoring of the informant might not have done much good. “Who cares how much the informant is monitored when the actual transaction is negotiated by another person who is at liberty to do whatever he wants?” Kaye asked.