The FBI's crime syndicate

San Francisco lawyer charges feds with "outrageous misconduct"

By A.C. Thompson

For seven months the Federal Bureau of Investigation effectively masterminded the illegal activities of a heavily armed northern California crime syndicate, according to a motion filed Sept. 30 in federal court.

Filed by San Francisco defense lawyer Marc Zilversmit, the 49-page motion accuses the FBI of "outrageous misconduct" in its bid to indict key members of Nuestra Familia, one of the most powerful and entrenched gangs in California.

Though the charges haven't attracted much attention yet – so far only the Recorder, a local legal newspaper, has reported the allegations – the Nuestra Familia case could snowball into another national scandal for the FBI, which has repeatedly shown an embarrassing inability to control its undercover operations. Just last month former FBI agent John J. Connolly was sentenced to 10 years in prison for collaborating with Boston mob boss James "Whitey" Bulger.

Zilversmit's motion paints a detailed, never-before-seen picture of Operation Black Widow, an elaborate FBI campaign, which culminated in June 2001 with the indictment of 21 purported gangsters on charges under the Racketeer Influenced and Corrupt Organization (RICO) Act. Zilversmit, who represents Armando Heredia, one of 16 defendants still awaiting trial, is asking Judge Charles Breyer to dismiss the case.

"From the moment they started, the operation was fraught with consequences they didn't think through," the attorney said in an interview. "It was just a misguided adventure from the beginning."

The FBI, through its informant Daniel "Lizard" Hernandez, "directed the delivery of firearms and drugs, approved of plans to commit home invasion robberies, passed on authorizations for violence against out-of-favor former gang members, encouraged violence to protect the gang's interests, and eventually failed to prevent the killing of Raymond Sanchez and wounding of Joseph Cantu," Zilversmit wrote in the brief.

According to the motion, during the late 1990s the Black Widow task force, which was composed of FBI agents and state and local cops, amassed evidence connecting Hernandez to the murder of reputed Nuestra Familia member Robert "Brown Bob" Viramontes and a plot to assassinate two Santa Clara prosecutors. In December 2000 the task force offered Hernandez a choice: become a snitch or serve a life sentence in prison.

After going to work for the government, the gangster, who was based in Sonoma County, wrested control of Nuestra Familia's street business from other gang leaders and placed himself at the head of a drug-running operation that stretched from Salinas to the Oregon border. Zilversmit claims Hernandez ran amok, pocketing at least $7,000 in illicit payments from other gang members, driving a stolen Dodge Durango, and selling a pound of methamphetamine and a pound of marijuana – in this case, without the knowledge of the FBI.

Most seriously, Hernandez authorized the use of force against enemies of Nuestra Familia, according to Zilversmit.

When dealing with ex-members and rival drug runners, Hernandez in some cases apparently gave orders not to use violence. But in other instances he seems to have issued ambivalent commands (he's quoted as saying, "Use your discretion" when discussing the use of violence) or thinly veiled exhortations to do serious bodily harm. Speaking about one enemy, he allegedly gave the message to, "eliminate the obstacle." There's also evidence, the motion states, that Hernandez approved a home invasion robbery and accused several gang members of "acts of betrayal" – potentially subjecting them to murderous reprisals by loyal Nuestra Familia foot soldiers.

When it came to Sanchez, who was competing for a slice of the heroin market in Salinas, the government informant reportedly told his deputies not to start a war but added, "If something comes at us, you can't help it.... Just don't go looking for it and doing anything."

On May 21, 2001, Sanchez, 39, was executed with a shot to the neck while patronizing Cap's Saloon in Salinas; his associate Joseph Cantu was wounded in the attack. Several purported Nuestra Familia members, including Heredia (Zilversmit's client), have been charged in connection to the slaying. "While Hernandez – at FBI direction – made some effort to prevent this shooting death, his 'no violence' directive was qualified and ambiguous, and no other efforts were made to warn or protect Sanchez," Zilversmit writes in the motion.

Asked about the motion, a spokesperson for the San Francisco branch of the Justice Department declined to comment. "We'll respond in court," assistant U.S. attorney Matt Jacobs said.

Defense lawyer Jerry Ladar, a former federal prosecutor, expressed some skepticism. "This motion is the kind of thing you do to deflect attention," he contended. "I wouldn't expect the judge to toss the case over this."

Mary McNamara is a San Francisco lawyer representing Cornelio Tristan, one of the defendants in the RICO case. "This raises disturbing questions about law enforcement's participation in a foreseeable homicide, drug dealing, and firearms trafficking," McNamara said.

The case is scheduled for trial in San Francisco in January 2003.

E-mail A.C. Thompson at ac_thompson@sfbg.com.