Feds Have Been Hiding Evidence From Wiretap Courts In Their War on Gangs
Friday, August 27, 2010 at 9:47AM
This article originally appeared in The Nation on August 27, 2010.
Federal prosecutors have used top leaders of Mara Salvatrucha (MS-13), known as the most violent gang in the US and Central America, as secret informants over a decade of murders, drug-trafficking and car-jackings across a dozen US states and several Central American countries. During that time period, prosecutors obtained more than 21 wiretap approvals, plus extensions, to investigate MS-13, failing to tell judges that the gang leaders were already in custody as informants—a possible violation of federal law.
The details are revealed in court documents filed by the defense in the ongoing murder conspiracy trial of Alex Sanchez  and 23 alleged MS-13 members in Los Angeles. Sanchez, who was released on bail  after an outpouring of community appeals and a review by an appeals court, is well-known as the former gang member who founded Homies Unidos , a gang intervention group attempting to quell gang violence in the US and Central America. The revelations threaten to undermine the state’s case—and could even lead parts to be thrown out—while raising serious questions about the legality of the US government’s global war on gangs, which, like the larger war on terror, uses undercover police units, informants, secret databases, and surveillance without clear legal authority.
The informants are identified as Nelson Comandari, described by law enforcement as "the CEO of Mara Salvatrucha," and his self described “right hand man,” Jorge Pineda, nicknamed "Dopey" because of his drug-dealing background. Both are Salvadorans in their 30s, being held in law enforcement custody at undisclosed locations. Los Angeles authorities hold Comandari responsible for six to ten murders—killings he either committed or ordered—according to crime reporter Tom Diaz in his 2009 book No Boundaries, about transnational gangs. Comandari's grandfather was Col. Agustin Martinez Varela, a powerful right-wing Salvadoran who served as an interior minister during El Salvador’s civil wars. Comandari's uncle, Franklin Varela, was a central informant in the Reagan administration’s scandalous investigation into the activist Committee in Solidarity with the People of El Salvador [CISPES]. There is more that may come to light. "Public information about Nelson Comandari's criminal case is in lockdown," Diaz wrote last year, "and I was subtly warned more than once about writing about it." Mention of Comandari’s name, Diaz added, "causes senior FBI and Justice Department officials in Washington to blanch."
Comandari and Pineda/Dopey have been in government custody since 2006 and 2000 respectively, where their phone calls have been recorded and their personal contacts monitored. In Pineda/Dopey's case, according to court documents, "at the time it applied for the initial wiretap order at the end of November 2000, the government had already had access to Dopey for nearly three months." As for Comandari, he was providing recorded evidence for authorities "just weeks before the government applied for its first wiretap of 2006." The failure by the FBI and prosecutors to disclose their relationships with Comandari and Pineda/Dopey while seeking wiretap authorizations potentially violated federal law requiring officials to show that a wiretap is a "necessity" in the absence of any other intelligence-gathering techniques. "Inaccuracies or significant omissions" in wiretap applications are prohibited.
Pineda/Dopey, by his own account, taped as many as 600 phone calls "from all over the world" with the FBI listening, holding discussions of ongoing MS-13 criminal activity beginning in 2001. The information he obtained was so valuable to authorities that the FBI described it as "gold dust." With the FBI’s encouragement, Pineda/Dopey cultivated the trust of Comandari, eventually becoming the middleman other gang leaders had to call in order to communicate with him. In exchange, Pineda/Dopey received nearly $130,000 in payments from the government between 2000 and 2004, and remained on the state payroll until 2006. He was protected from deportation, as were his relatives, and he obtained favorable treatment for his wife in a criminal case.
After investing so much in his "right-hand man," it must have been thrilling for the prosecution when the captive Comandari started spilling his guts to an FBI-led team in January 2006. Three days of questioning yielded 26 single-spaced pages of notes. Another series of interrogations, in May of that year, produced 44 single-spaced pages. Interrogations in September turned out a 61-page summary. Present during several interrogation sessions were Frank Flores, the lead LAPD officer on the current case, and Elizabeth Carpenter, the lead prosecutor. It’s not clear how many other interrogations took place, and the notes remain sealed. But it is clear that the prosecution kept their extensive questioning of "the CEO" of MS-13 a secret from the wiretap judges.
Federal Judge Manuel Real will rule on the wiretaps’ admissibility before the trial opens next February. If he sides with the prosecution and there is a conviction, the wiretap ruling will be appealed to the Ninth Circuit Court of Appeals.
Meanwhile, for all the evidence of official misconduct, nothing has turned up in the "gold dust" tapes to fortify the prosecution’s case against Alex Sanchez. Of some 20,000 taped phone calls recorded by authorities, the prosecution has produced only four in which Sanchez participated, and Sanchez says his former comrades asked that he participate in those calls because of an old gang dispute in which he and others were being threatened by name. The transcripts of these calls back him up, with a key MS-13 leader repeatedly demanding to know why Sanchez was on the calls when he was no longer an active member of the gang.
The fact that the state concealed its ties to top MS-13 leaders could lead parts of its conspiracy case to be thrown out—and the hidden side of its war on gangs to be exposed. If hiding the use of top gang leaders as informants while seeking broad wiretap powers is not “a significant omission,” the government is betting that the rule of law can be overlooked in waging its overzealous war on gangs.
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