http://www.mojones.com/news/update/2004/10/10_405.html
Quote:
In 1999 in Salinas, Calif., Rico Wayne Garcia, 37, was sentenced to 22 years on manslaughter charges in the gangland killing of Geronimo Garza.
But instead of doing his time in state prison as a gang-related murder normally would warrant, Garcia suddenly found himself indicted in a San Francisco federal court for the same killing, as well as another murder case the state had already dropped. And the real zinger was he now faced the death penalty.
Why? Attorney General John Ashcroft had swooped in and, ignoring the intentions of San Francisco prosecutors, turned Garcia?s already complex case into a capital murder prosecution.
Since Ashcroft took office in February 2001, he has imposed the formerly rare federal death penalty in nearly 100 cases across the country. In 37 of them to date, he took the unprecedented step of overriding the wishes of local prosecutors who had not sought the death penalty.
He has also asked for the federal death penalty in cases in seven states that don?t allow capital punishment.
Federal prosecutors across the country have become demoralized and infuriated by Ashcroft's actions. Last fall, a federal judge joined the chorus of protestors. Judge John Gleeson, a former federal prosecutor whose successes include the conviction of mob leader John Gotti, called Ashcroft?s policy a "bad idea" that was "undermining the investigation and prosecution of violent crimes."
Oklahoma attorney d**k Burr works with the Federal Death Penalty Resource Counsel Project, helping federal public defenders who represent indigent clients. Ashcroft's record number of death penalty overrides, says Burr, amounts to "interference at the ground level. It puts U.S. attorneys in the awkward position of pursuing death when they don?t want it."
This fall, in Rico Garcia's case, one of Ashcroft's first and highest-stakes bids for the death penalty ultimately fizzled, and that failure is largely due to his own department's errors in judgment.
"[Garcia's case] arose at a time when it looked like the attorney general was beginning to authorize the death penalty in gang cases," says Burr, who served as an adviser in the case. The tactic coincided with the current FBI director Robert Mueller's 20-year effort to take gang prosecutions out of state courts and into the federal domain.
In the late 1990s, the FBI's Operation Black Widow afforded then-U.S. Attorney Mueller a chance to redeem himself. Back in the 1980s, he had badly botched the prosecution of two Hells Angels cases in California due to his use of less-than-desirable gang informants as key witnesses. Two juries, repulsed by the murderous informants Mueller placed on the witness stand, acquitted the motorcycle gang's members and their leader, Sonny Barger, in both trials.
Now, through Operation Black Widow, Mueller sought to break the back of Nuestra Familia, a powerful California-based prison gang that controlled drug sales and street gangs throughout the state. Law-enforcement officials estimate the gang is responible for some 600 murders during the last 30 years.
By 2001, Black Widow became Mueller's highest-profile gang prosecution under the RICO statutes often used for organized crime cases. A RICO indictment allows the government to press very broad charges, including racketeering and conspiracy in furtherance of a criminal enterprise, making it easier for prosecutors to convict the top leaders of a group. It has long been used against Mob figures in federal courts, but it's increasingly applied to more modern crime organizations such as gangs and drug traffickers.
Mueller never asked for the death penalty in the case. Instead, his attorneys simply hoped the Nuestra Familia leaders would be sentenced to life without parole in the federal prison system, thus isolating them and breaking their grip over California's prisons.
The sweeping indictments of 22 leaders and associates of a brutal and "untouchable" prison gang hit newspapers nationwide just weeks before Mueller left San Francisco to head the FBI. The case, with a price tag of $5 million at the time of indictment, was a feather in Mueller's cap as he prepared to join Ashcroft in Washington.
Then Ashcroft rained on the parade. The freshly appointed attorney general stepped right over Mueller's successor in San Francisco and announced he would seek the federal death penalty in the case.
The Justice Department originally considered execution for seven co-defendants. The idea was to send a tough message to Nuestra Familia leaders, making it clear that even those who had life sentences could still face the ultimate consequence if they continued their criminal activities behind bars: death by lethal injection.
At Mueller?s old office in San Francisco, Ashcroft's decision made the prosecutors' job that much harder, especially since California juries are loath to impose the death penalty. Ashcroft further tied prosecutors' hands in September 2003, when he sent a directive to federal attorneys across the country, telling them to avoid plea agreements in criminal cases at all costs.
"The direction I am giving our U.S. attorneys today is direct and emphatic," Ashcroft said. With marching orders from Washington, the San Francisco U.S. attorneys had little choice but to steam onward to trial.
Waiting for "Overt Acts"
The 1988 federal Death Penalty Act was expanded in 1994 to authorize the death penalty for murder in the course of racketeering and drug conspiracy cases. Only Oklahoma City bomber Timothy McVeigh and two Texas men have been executed under the law. Prior to McVeigh, the federal government's last execution took place in 1963.
With two gang murders linked to his name and a co-conspirator ready to testify against him, Rico Garcia emerged as the Department of Justice's best shot for a capital case.
Thanks to audio tapes made by an informant, the government thought it had a slam-dunk case.
In the fall of 1998, police in the rural town of Salinas listened in real time to undercover recordings of gang members plotting at least five murders against gang rivals. Nuestra Familia leader Rico Garcia was heard to tell his underlings to "start whacking these fools."
Alarmed, police were eager to stop the crimes before a gang bloodbath raged in their city?s streets. They were cooperating with Robert Mueller's office and the FBI in their Nuestra Familia gang investigations, and they sought advice on how to proceed. Surprisingly, according to Salinas police officer Mike Lazzarini, police were told not to make any arrests.
Under heavy surveillance, the suspects roamed Salinas with loaded weapons for several days. On Nov. 1, taped conversations indicated they planned to proceed with the killings.
On that day, undercover police vehicles followed the gang members through the streets while a California Highway Patrol helicopter tracked them from the air. The gangsters stopped in front of an apartment building, where a young gang member named Paul Salcido and an associate got out of the car and ducked into an alley. The police waited outside.
Salcido slipped on gloves and a ski mask, entered the apartment complex and killed 41-year-old Geronimo Garza. He also shot and wounded Garza's girlfriend. Police heard the shots and screaming and swarmed the alley. Garcia and others were arrested and tried in state court.
Then, when the killing and the trials were all over, federal agents indicted Rico Garcia and 10 other gang members on murder and racketeering charges. Robert Mueller held a press conference on the courthouse steps of Salinas, assuring residents the federal indictments would have "a dramatic impact on criminal activities" in their community. In fact, the murder rate shot up over the next five years, and most of the homicides are considered gang-related.
The indictment of Garcia and his cohorts was followed by 10 others, and this fall, the nine defendants who had not already pled guilty were ready to go to trial. Garcia's case was scheduled to follow the others.
But as Garcia's trial date neared, the capital case against him began to unravel.
In grand jury testimony, and then in a sealed amendment to his statement, Officer Lazzarini let out the shocking revelation that an assistant U.S. attorney from the San Francisco office had told Salinas police to hold off on making arrests, allowing the murder plot to continue to its deadly conclusion.
"It was decided to allow it to go on until sufficient overt acts were completed that prosecutors felt that convictions could be obtained," Lazzarini said under oath.
Conspiracy to commit murder was apparently not overt enough. But murder was.
With that kind of information in hand, Garcia's attorney John Grele began to play a little hardball with the government.
"In pretrial proceedings, information came out that was very helpful," Grele says.
Grele was ultimately able to get Garcia?s state conviction and sentence vacated on a technicality. Then, with a number of questionable criminal informants lined up to testify in the case, the specter of repeating Mueller's Hells Angels acquittals loomed large.
In the end, facing an array of problems brought on largely by his own department's mistakes, Ashcroft approved withdrawing the death penalty and authorized prosecutors to negotiate a plea agreement for a life sentence.
Luke Macaulay, spokesman for the U.S. Attorney's office in San Francisco, declined to comment on any aspect of the case.
After the last of the 22 Nuestra Familia defendants pled guilty last month, Assistant U.S. Attorney Steven Gruel said Black Widow was the Justice Department's costliest gang prosecution ever. And despite Ashcroft's directive to avoid plea agreements, every defendant pled out. The case never made it to trial. One defense attorney in the case estimates that the government will spend more than $10 million when all attorneys' fees and other costs are calculated.
One irony is that all the criminal offenses in the case besides the racketeering charge had already been addressed in California?s courts.
"The Attorney General's office and the FBI spent an awful lot of money prosecuting cases that that had already been charged and dispensed with at the state level," Grele says.
But the real goal of Operation Black Widow, according to federal Judge Charles Breyer, was to take the gang?s leadership out of California?s prisons and "disperse them to the four corners" of the federal prison system, where, the government hopes, the gang will not spread.
"It remains to be seen ultimately whether this prosecution was warranted in the long run," Judge Breyer cautioned.
Despite the high cost of bring capital cases to trial -- estimated to be at least four times more than non-capital cases -- the rate of federal death prosecutions is likely to rise.
Rachel King, acting director of the ACLU's capital punishment project, says she is concerned that Congress has added eight new death penalty crimes to the 9/11 Recommendations Implementation Act recently passed by the House. One concern is that the bill is too vague, providing for the death penalty in any terrorism case that results in a death.
"Even though the 9/11 commission never urged expanding the death penalty," King says, the bill was "loaded up with death-penalty provisions by House Republicans." The bill is now in conference with a comparable Senate bill that has no death-penalty provisions.
"The trend is to bring the death penalty to all states, even those that don?t have it," says d**k Burr, the Oklahoma attorney. "Ashcroft has made a systematic effort to nationalize the death penalty."
Ironically, at a time when many states are reconsidering both the effectiveness and morality of capital punishment, the federal death penalty is now likely to be sought more and more frequently across the land.
Julia Reynolds is a freelance investigative journalist.
But instead of doing his time in state prison as a gang-related murder normally would warrant, Garcia suddenly found himself indicted in a San Francisco federal court for the same killing, as well as another murder case the state had already dropped. And the real zinger was he now faced the death penalty.
Why? Attorney General John Ashcroft had swooped in and, ignoring the intentions of San Francisco prosecutors, turned Garcia?s already complex case into a capital murder prosecution.
Since Ashcroft took office in February 2001, he has imposed the formerly rare federal death penalty in nearly 100 cases across the country. In 37 of them to date, he took the unprecedented step of overriding the wishes of local prosecutors who had not sought the death penalty.
He has also asked for the federal death penalty in cases in seven states that don?t allow capital punishment.
Federal prosecutors across the country have become demoralized and infuriated by Ashcroft's actions. Last fall, a federal judge joined the chorus of protestors. Judge John Gleeson, a former federal prosecutor whose successes include the conviction of mob leader John Gotti, called Ashcroft?s policy a "bad idea" that was "undermining the investigation and prosecution of violent crimes."
Oklahoma attorney d**k Burr works with the Federal Death Penalty Resource Counsel Project, helping federal public defenders who represent indigent clients. Ashcroft's record number of death penalty overrides, says Burr, amounts to "interference at the ground level. It puts U.S. attorneys in the awkward position of pursuing death when they don?t want it."
This fall, in Rico Garcia's case, one of Ashcroft's first and highest-stakes bids for the death penalty ultimately fizzled, and that failure is largely due to his own department's errors in judgment.
"[Garcia's case] arose at a time when it looked like the attorney general was beginning to authorize the death penalty in gang cases," says Burr, who served as an adviser in the case. The tactic coincided with the current FBI director Robert Mueller's 20-year effort to take gang prosecutions out of state courts and into the federal domain.
In the late 1990s, the FBI's Operation Black Widow afforded then-U.S. Attorney Mueller a chance to redeem himself. Back in the 1980s, he had badly botched the prosecution of two Hells Angels cases in California due to his use of less-than-desirable gang informants as key witnesses. Two juries, repulsed by the murderous informants Mueller placed on the witness stand, acquitted the motorcycle gang's members and their leader, Sonny Barger, in both trials.
Now, through Operation Black Widow, Mueller sought to break the back of Nuestra Familia, a powerful California-based prison gang that controlled drug sales and street gangs throughout the state. Law-enforcement officials estimate the gang is responible for some 600 murders during the last 30 years.
By 2001, Black Widow became Mueller's highest-profile gang prosecution under the RICO statutes often used for organized crime cases. A RICO indictment allows the government to press very broad charges, including racketeering and conspiracy in furtherance of a criminal enterprise, making it easier for prosecutors to convict the top leaders of a group. It has long been used against Mob figures in federal courts, but it's increasingly applied to more modern crime organizations such as gangs and drug traffickers.
Mueller never asked for the death penalty in the case. Instead, his attorneys simply hoped the Nuestra Familia leaders would be sentenced to life without parole in the federal prison system, thus isolating them and breaking their grip over California's prisons.
The sweeping indictments of 22 leaders and associates of a brutal and "untouchable" prison gang hit newspapers nationwide just weeks before Mueller left San Francisco to head the FBI. The case, with a price tag of $5 million at the time of indictment, was a feather in Mueller's cap as he prepared to join Ashcroft in Washington.
Then Ashcroft rained on the parade. The freshly appointed attorney general stepped right over Mueller's successor in San Francisco and announced he would seek the federal death penalty in the case.
The Justice Department originally considered execution for seven co-defendants. The idea was to send a tough message to Nuestra Familia leaders, making it clear that even those who had life sentences could still face the ultimate consequence if they continued their criminal activities behind bars: death by lethal injection.
At Mueller?s old office in San Francisco, Ashcroft's decision made the prosecutors' job that much harder, especially since California juries are loath to impose the death penalty. Ashcroft further tied prosecutors' hands in September 2003, when he sent a directive to federal attorneys across the country, telling them to avoid plea agreements in criminal cases at all costs.
"The direction I am giving our U.S. attorneys today is direct and emphatic," Ashcroft said. With marching orders from Washington, the San Francisco U.S. attorneys had little choice but to steam onward to trial.
Waiting for "Overt Acts"
The 1988 federal Death Penalty Act was expanded in 1994 to authorize the death penalty for murder in the course of racketeering and drug conspiracy cases. Only Oklahoma City bomber Timothy McVeigh and two Texas men have been executed under the law. Prior to McVeigh, the federal government's last execution took place in 1963.
With two gang murders linked to his name and a co-conspirator ready to testify against him, Rico Garcia emerged as the Department of Justice's best shot for a capital case.
Thanks to audio tapes made by an informant, the government thought it had a slam-dunk case.
In the fall of 1998, police in the rural town of Salinas listened in real time to undercover recordings of gang members plotting at least five murders against gang rivals. Nuestra Familia leader Rico Garcia was heard to tell his underlings to "start whacking these fools."
Alarmed, police were eager to stop the crimes before a gang bloodbath raged in their city?s streets. They were cooperating with Robert Mueller's office and the FBI in their Nuestra Familia gang investigations, and they sought advice on how to proceed. Surprisingly, according to Salinas police officer Mike Lazzarini, police were told not to make any arrests.
Under heavy surveillance, the suspects roamed Salinas with loaded weapons for several days. On Nov. 1, taped conversations indicated they planned to proceed with the killings.
On that day, undercover police vehicles followed the gang members through the streets while a California Highway Patrol helicopter tracked them from the air. The gangsters stopped in front of an apartment building, where a young gang member named Paul Salcido and an associate got out of the car and ducked into an alley. The police waited outside.
Salcido slipped on gloves and a ski mask, entered the apartment complex and killed 41-year-old Geronimo Garza. He also shot and wounded Garza's girlfriend. Police heard the shots and screaming and swarmed the alley. Garcia and others were arrested and tried in state court.
Then, when the killing and the trials were all over, federal agents indicted Rico Garcia and 10 other gang members on murder and racketeering charges. Robert Mueller held a press conference on the courthouse steps of Salinas, assuring residents the federal indictments would have "a dramatic impact on criminal activities" in their community. In fact, the murder rate shot up over the next five years, and most of the homicides are considered gang-related.
The indictment of Garcia and his cohorts was followed by 10 others, and this fall, the nine defendants who had not already pled guilty were ready to go to trial. Garcia's case was scheduled to follow the others.
But as Garcia's trial date neared, the capital case against him began to unravel.
In grand jury testimony, and then in a sealed amendment to his statement, Officer Lazzarini let out the shocking revelation that an assistant U.S. attorney from the San Francisco office had told Salinas police to hold off on making arrests, allowing the murder plot to continue to its deadly conclusion.
"It was decided to allow it to go on until sufficient overt acts were completed that prosecutors felt that convictions could be obtained," Lazzarini said under oath.
Conspiracy to commit murder was apparently not overt enough. But murder was.
With that kind of information in hand, Garcia's attorney John Grele began to play a little hardball with the government.
"In pretrial proceedings, information came out that was very helpful," Grele says.
Grele was ultimately able to get Garcia?s state conviction and sentence vacated on a technicality. Then, with a number of questionable criminal informants lined up to testify in the case, the specter of repeating Mueller's Hells Angels acquittals loomed large.
In the end, facing an array of problems brought on largely by his own department's mistakes, Ashcroft approved withdrawing the death penalty and authorized prosecutors to negotiate a plea agreement for a life sentence.
Luke Macaulay, spokesman for the U.S. Attorney's office in San Francisco, declined to comment on any aspect of the case.
After the last of the 22 Nuestra Familia defendants pled guilty last month, Assistant U.S. Attorney Steven Gruel said Black Widow was the Justice Department's costliest gang prosecution ever. And despite Ashcroft's directive to avoid plea agreements, every defendant pled out. The case never made it to trial. One defense attorney in the case estimates that the government will spend more than $10 million when all attorneys' fees and other costs are calculated.
One irony is that all the criminal offenses in the case besides the racketeering charge had already been addressed in California?s courts.
"The Attorney General's office and the FBI spent an awful lot of money prosecuting cases that that had already been charged and dispensed with at the state level," Grele says.
But the real goal of Operation Black Widow, according to federal Judge Charles Breyer, was to take the gang?s leadership out of California?s prisons and "disperse them to the four corners" of the federal prison system, where, the government hopes, the gang will not spread.
"It remains to be seen ultimately whether this prosecution was warranted in the long run," Judge Breyer cautioned.
Despite the high cost of bring capital cases to trial -- estimated to be at least four times more than non-capital cases -- the rate of federal death prosecutions is likely to rise.
Rachel King, acting director of the ACLU's capital punishment project, says she is concerned that Congress has added eight new death penalty crimes to the 9/11 Recommendations Implementation Act recently passed by the House. One concern is that the bill is too vague, providing for the death penalty in any terrorism case that results in a death.
"Even though the 9/11 commission never urged expanding the death penalty," King says, the bill was "loaded up with death-penalty provisions by House Republicans." The bill is now in conference with a comparable Senate bill that has no death-penalty provisions.
"The trend is to bring the death penalty to all states, even those that don?t have it," says d**k Burr, the Oklahoma attorney. "Ashcroft has made a systematic effort to nationalize the death penalty."
Ironically, at a time when many states are reconsidering both the effectiveness and morality of capital punishment, the federal death penalty is now likely to be sought more and more frequently across the land.
Julia Reynolds is a freelance investigative journalist.
