Sunday, January 25, 2009
Undercover agents take drugs, entrapment
Peter McCarthy sported a near-bald head, a scraggly goatee, a sleeveless tank top and cargo shorts.
His partner, a bearded Mark Gomez, wore a ball cap and black hair that rested on his shoulders. His vocabulary was heavily peppered with obscenities.
In September 2007, the two opened a tattoo parlor in a strip mall squeezed between the Strip and Interstate 15, its parking lot littered with trash and beer bottles, with strip clubs nearby.
To a handful of Las Vegas gangbangers, the duo was rough, tough and cool. They drank beer, smoked pot, snorted methamphetamine and were willing to buy drugs and weapons.
To the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, Gomez and McCarthy were undercover agents, actors starring in a "street theater" operation designed to nail Las Vegas' most despicable thugs.
To defense attorneys, the two are the primary ingredients in what they claim was a badly botched sting operation, an investigation laden with outrageous behavior by the agents.
"The circumstances surrounding the entrapment of the defendants in this case clearly indicate that the allegations herein were nothing more than the brainchild of a hazy-minded ATF agent," defense attorney Lisa Rasmussen opined in a court motion.
Hazy-minded because attorneys representing six defendants fooled by the agents' act claim McCarthy was caught on the government's surveillance video smoking dope and sniffing methamphetamine.
Alleged drug use by federal agents is the primary basis for a motion to dismiss a 2008 indictment. But U.S. Magistrate Judge George Foley will have to ponder other reasons before deciding whether the case is worthy of being heard by a jury.
During nearly three months of hearings on the claims, Assistant U.S. Attorney Kathleen Bliss has consistently protested the defense's allegations.
"This government outrageous conduct claim is bogus," Bliss said.
SETTING UP SHOP
In early 2007, Gomez visited a Las Vegas tattoo parlor and learned that an artist purchased weapons. He noted the number of gang members hanging around the store.
"That gave me the idea," Gomez said during an evidentiary hearing earlier this month.
Gomez and McCarthy opened Hustler's Tattoo in September of that year and dubbed their operation "Sin City Ink." McCarthy took on the role of shop owner, Gomez that of an employee.
"I was Agent McCarthy's underling," Gomez said. "They (the defendants) believed we were part of some big criminal ring."
Cameras and recording devices were installed in the shop's back office, where most drug and weapons deals took place, and above the bays where tattoo artists inked their customers.
The two brought confidential informants on board: first, a tattoo artist named Jaime Pedraza who introduced them to potential buyers and sellers of drugs and weapons, and second, Richard Beckworth.
"Beckworth was a tattoo artist who worked with Stranger," the gang moniker for defendant Christopher Sangalang, Gomez recently testified. "He just had kids. He was a member of a gang and wanted out of that lifestyle."
Beckworth introduced Sangalang to Gomez and McCarthy. Sangalang began working at Hustler's Tattoo on Highland Drive.
Gomez testified that he and Sangalang became friends. He helped Sangalang move, and the two often hung out together at strip clubs.
But Sangalang did not trust Pedraza, and his suspicions had the potential to hurt the investigation.
"He didn't trust him -- 'This guy's dirty; he's an informant,'" Gomez said, referring to Sangalang's comments about Pedraza. "We had to tell him he's not an informant, he (Sangalang) is just being paranoid."
Soon, Deandre Patton and Alfredo Flores, both friends of Sangalang's, started spending time at the tattoo parlor, playing pool and drinking beer.
Gomez testified their strategy to befriend the targeted violent criminals worked.
"We developed a level of trust with these guys," Gomez testified. "We developed a personal relationship."
The agents' ultimate goal was to persuade gang members to hit a drug stash house and a home where the drug proceeds were hidden. The homes didn't really exist, and the planned raid was a setup.
On May 15, the day of the "home invasions," three others showed up for the hit: Roderick Jones, Derek Jones and Robert Williams.
All six arrived at the tattoo shop packing weapons and dressed in police uniforms, badges included. It was unclear where the uniforms and badges came from. No one has explored that question in court.
The six were arrested that afternoon after a convoy of vehicles drove to a Main Street warehouse where the agents said more weapons were said to be stashed.
On Friday, Roderick Jones pleaded guilty to conspiring to rob the fake stash house. He and the government agreed to a 60-month sentence.
In the end, the agents branded the 15-month-long operation to nab violent gangbangers a success.
Defense attorneys labeled it entrapment.
Federal agents said they captured video and audio of Sangalang speaking about the planned home invasion.
"'If you rob somebody for a certain amount of dope, you gotta kill them," Gomez quoted Sangalang as saying.
Nowhere to be found on video or audiotapes is a federal agent threatening to kill Sangalang's family if he refused to participate in the drug house hit.
Defense attorney Shari Kaufman said the conversation occurred in the tattoo parlor, but it was not on recordings turned over to the defense team.
"In this case, the agents made threats to the defendants, and the defendants will make a proffer to the court regarding the same," the attorneys wrote to the judge, according to court records.
Although there was a streaming video with images and audio captured on three DVDs, the agents only kept clips they believed included evidence against the alleged criminals. They tossed what they believed to be irrelevant.
Allen Lichtenstein, attorney for the American Civil Liberties Union of Nevada, said it is inexcusable not to keep and turn over every second of footage taken to allow the defense to determine what is relevant to the investigation.
"The idea that they (the agents) can pick and choose ... and not turn videotape over to the defense, on the theory of what would be good for the defense and what isn't good for the defense, is outrageous," Lichtenstein said.
Another point of contention between the defense and prosecutors is the quality of the video and audio and whether transcripts should be used as an aid to understand conversations.
Video equipment in the tattoo parlor office was placed near an air conditioning duct. When the air conditioner kicked on, conversations were difficult to understand. Other discussions were held in busy Las Vegas bars with booming music drowning out muffled voices.
Defense attorneys have questioned how anyone could have produced transcripts from the tapes.
Gomez said all the agents' recordings were delivered to a Las Vegas company that specializes in transcribing. When the tapes were returned, Gomez reviewed them and compared the transcripts to the tape. He acknowledged that he occasionally changed the transcript to fit what he believed was said on tape.
Defense attorneys Rasmussen and Kaufman argued that the judge, and ultimately the jury, should listen to the garbled tapes without the assistance of transcripts that might have been tailored to suit the government's allegations.
"We think we heard the N-word; the government said it was 'dude,'" Rasmussen said.
"There are some real differences in interpretations of what is being said," Kaufman told Judge Foley.
Gomez noted that at one point agents planned to tap the cell phones of the defendants, but a girlfriend of one of the defendants worked for Sprint and tipped them off.
"They ditched their phones and were more careful after that," Gomez said. "We're looking into the leak at the phone company. That's an ongoing investigation."
WIZARD WEED QUESTION
McCarthy said he never smoked pot, but instead used Wizard Weed, a substance agents sometimes use during undercover operations for "street theater," meaning they are acting the part of a junkie.
He smoked the substance that smells like pot to trick the defendants into believing he was a drug user.
Charles Fuller, executive director of the International Association of Undercover Officers, said he provided Wizard Weed to Gomez.
Fuller testified late last year that he bought Wizard Weed on the Internet and supplied it to agents. Foley ordered Fuller to produce receipts from his purchases, but as of early this month he had yet to do so.
McCarthy told defense attorneys during hearings last month that the use of illegal drugs is only acceptable if an agent believes his life is in danger if he declines. For example, if a suspect holds a gun to the agent's head. He said that wasn't the case in this operation.
Defense attorneys are suspicious of McCarthy's account of his use of Wizard Weed.
They pointed out that McCarthy said he had only a small amount of fake weed, but is frequently captured on tape smoking out of a pipe during the investigation that lasted one year and three months.
Attorneys questioned the agents' judgment when it came to their role-playing. Kaufman said McCarthy is seen on one tape drinking 11 beers during a four-hour period while in possession of a loaded weapon.
One of the agents' confidential informants also had troubles during the investigation. Beckworth was arrested in the armed robbery of a PT's Pub a few months after he became a paid informant. The crime was committed before he began working with the government, and he continued his role after his arrest.
"It was decided we would use him," Gomez said. "Before he was a paid informant; now he worked for the ATF to work off his charges."
District Court records show that Beckworth was sentenced to 24 months to 84 months jail in June 2008. He was released in August 2008.
At least four of the six defendants had been arrested previously, but only one was convicted, Gomez testified.
Derek Jones has a robbery conviction. Roderick Jones has been arrested for possession of a controlled substance. Williams was arrested, but never prosecuted, for felony possession of cocaine, and Sangalang was arrested on possession of a concealed weapon charges.
The question is whether the men would have robbed a stash house and killed any occupants on their own volition or whether the federal agents goaded them into planning such a crime.
"Entrapment is a fine line," Lichtenstein said. "The theory is to get people to commit a crime they would not have otherwise done. It's difficult to tell what someone would have done ordinarily."
Gomez said Sangalang had no qualms gathering a "crew" to raid the drug stash.
Gomez said Sangalang belonged to the 74 Hoover Crips, one of the largest, most violent gangs in Southern California. The agent likened the gang to al-Qaida because of its size and types of crimes it commits.
According to the government, Sangalang hatched a plan to kill the so-called drug dealers, toss cocaine around the house and burn down the home to make the invasion look like a robbery gone bad.
The government then approached Flores about the planned home invasion.
Agents decided to allow Flores to join the bogus house assault "based on his past bragging -- he bragged about his gang affiliations," Gomez said.
When they discussed the plan, Gomez said Flores responded, "We're going in for war." Gomez said Patton spoke of slicing the throats of the home's occupants or guards.
Although the defendants and agents piled into their vehicles and headed out to the staging area before the planned raid, it is unclear whether the suspects would have followed through with the crime.
ATF agents stormed the warehouse and arrested the men on charges related to distributing illegal drugs and possession of illegal weapons. Five of the men have remained in custody since May. Derek Jones is out of custody.
Contact reporter Adrienne Packer at email@example.com or 702-384-8710.