Path to Justice

by Jim Dutton

  After Felicia hung up the phone, she looked at Pepe, sobbing, “No dije nada. It was the toughest thing I have ever had to do.”

  Ana took her hand and said, “You couldn’t say anything about where you’re going. I know it’s so very hard.”

  CHAPTER FOURTEEN

  Ken Hamilton was elected Attorney General of California two years ago. Nick wasn’t a big fan. Hamilton came from outside of the office as had all his recent predecessors. What made him different is that he took politics to new, sickening heights. Everything seemed politically driven. No real substance, all spin. The AG floor in San Francisco was jam-packed with dewy-eyed, twenty-somethings, who jumped at General Hamilton’s beck and call. They worshipped him and spent tireless days behind their computers to further Hamilton’s political career—like what openings and events to attend instead of tackling substantive office issues.

  Hamilton would wait until the last minute to make decisions on whether the office would file petitions for review before the California Supreme Court concerning important legal issues that the office had argued and lost in the courts of appeal. This meant that the appellate deputies had to prepare lengthy petitions in every case because Hamilton might not approve the filing until the day before a petition was due, instead of giving deputies two or three weeks preparation lead time by pre-approving a filing. Every completed petition that was rejected by General Hamilton was a complete waste of office resources.

  Nick should have known the office was in for a long four years under Hamilton when Hamilton first visited the various AG office locations. Instead of having an open-ended, sit-down talk with deputies about his vision for the office and gathering input from career deputies as prior AGs had done, General Hamilton held a receiving line where he greeted each deputy and shook his or her hand. It was like a cotillion greeting line to introduce young ladies to society, not how to best run a thousand-attorney office. Many of the deputies asked the AG to come back soon to discuss issues with them. He never did.

  It was early in February and even in San Diego it was cold. It dropped to the high thirties at night and was in the low fifties during the day. The cold front fit Nick’s mood. He had just flown back from San Francisco after an urgent meeting with the Attorney General. Nick almost got fired at the meeting. The AG had heard about the case and wanted to put in his two cents worth. It was fine for the AG to be informed, but the strategies in putting a case of this magnitude together were way over his head. The AG’s last trial was some 15 years earlier, a domestic violence case he had when he was a deputy district attorney. When the AG started to tell him what he should say in closing argument at a potential trial, Nick lost his patience.

  Nick said, “With all due respect, if this case gets to trial, how the final argument will be handled will be primarily dictated by how the evidence came in. I’ll be trying the case and I’ll be making the decisions about the closing argument.”

  The AG replied tersely, “You forget who’s in charge and whose name is on the letterhead. You work for me.”

  “That’s true and I’m very much aware that you are the AG. But, if you insist on making trial strategy decisions, I’ll no longer be working for you. I don’t think that’s a good idea. I know this case and I’m experienced in trying complex cases. If we are successful and obtain convictions against high level members of the Baja Norte Familia, it’ll bode very well for your political career. If you want to fire me after the case, go ahead.”

  The AG took a long, hard look at Nick. He was barely keeping his composure. “We’ll see how the trial goes Nick. I might just hold you to your offer. You can go now.”

  As Nick was ushered out of the AG’s office suite, he muttered to himself, “That certainly went well. Who needs job security?”

  The fiasco meeting with the AG put another layer of pressure on Nick. He sent out an email to the team members to go though the entire case at a meeting two days later. Everybody was there at the case review meeting, including paralegal Rona. Nick laid down the ground rules for the meeting. “We will go through the different areas of evidence, discuss the major things we need to do to get the case ready for indictment, discuss whether we bring this case in state or federal court, and finally what major charges we expect to bring.”

  “Josh, let’s start with you. What’s the status of the case in Montana?”

  “Charges have been filed against the college boy and his Hispanic cohort. They were arraigned in state court and bailed out. The state prosecutors are playing ball with us and aren’t pushing the case, letting it sit until we’re ready to take it over. We’ve arranged for periodic surveillance of the border drug exchanges. Two weeks after the arrests, the Familia renewed the cross-border drug distributions. It’s well documented. They appear to be using the same warehouse in Missoula as a holding location for the drugs. We’ve probable cause for search warrants on the warehouse and college boy’s residence.”

  “Thanks. We need a tracker on the vehicle that transports the drugs to Missoula. That way we can trace the vehicle back to any other storage locations and know its route,” said Nick.

  “Can do. Nick, I’ve got an idea— just thinking outside the box. What if we use the criminal justice major I met at the brewery in Missoula to cozy up to college boy. She might get some interesting information out of him.”

  “Josh, we aren’t in the pimping business and such an operation is fraught with legal minefields. College boy has been charged with drug distribution arising from the vehicle stop. I am concerned about the U.S. Supreme Court case, Massiah v. United States, and its progeny.”

  Under Massiah and other Sixth Amendment right to counsel cases, law enforcement can’t intentionally create circumstances that would lead a charged defendant to make incriminating statements about an offense.

  Josh replied, “I’m aware of the cases, but if she acts as a ‘listening post’ and doesn’t ask any questions, it should be all right.”

  Nick retorted, “That would be playing with fire. We would be instructing her to make contact with college boy, and our intent would be to elicit incriminating information. Also, if the trial court found a Massiah violation, any information obtained from him or derived from what he told her, would be excluded at trial. I know lover boy that you’d like to make another trip to Missoula to renew acquaintances with your criminal justice cowgirl. But, no can do. You’re restricted to the San Diego dating pool.”

  “Mario, how’s the case coming together on the money flow across the border?” asked Nick.

  Mario replied, “Quite well. Remember, one of the Sakias’ companies owns the Missoula and Vancouver warehouses. They’re still moving over two million in cash each month across the border to banks on the California side. We’ve recently found out that cashier’s checks, in similar amounts to the cash deposits, are being made out to a bank in Mexico—Banco Real, for deposit into a specific account. This is where it really gets good. We obtained records from a U.S. Bank, based in Texas, that acts as a correspondent bank between the California-based banks and Banco Real to facilitate the international transactions. The Mexican account is in the name of Armando Ruiz Castillo. Señor Castillo is high up in the Mexican government and has diplomatic immunity. That’s not all. Similar amounts of cash are being deposited in the Morales money laundering operation. Most of the banks are located in Calexico, the California border city that is adjacent to the Mexican city, Mexicali. In the Morales operation, instead of using cashier’s checks, the money is being wired back to Señor Castillo’s account with Banco Real.”

  The regulations under Mexican law, which restrict cash dollar deposits into Mexican financial institutions, don’t apply to dollars deposited by check or wire transfer. These are huge exceptions that allow the drug cartels to get around the Mexico’s dollar cash deposit restrictions.

  Nick said, “Pepe, check with your contacts in Mexican law enforcement and find out whatever you can abou
t Señor Castillo. Ana, get a photograph of Castillo and have the Marshal’s Office show it to Felicia in Kansas. She has been there for close to a month and should be settled in by now. I want to see if the politico Señor attended any soirees at Felicia’s former boyfriend’s compound.”

  Jerry spoke up, “We need to focus on accountant Sendow. He’s the main bridge between the money and the dope. Remember, we got the wire up on Sendow’s phones at the time that the Montana drug bust went down. Sendow was a busy man on the phone the few days after the bust. He spoke to Hector Morales and to Anthony Sakia. They were talking in code. Kind of corny. Something about a hunter bringing down a bird flying north and the migrating birds flying south were going to be late due to unexpected weather. There was also a call to him from a untraceable burner phone the morning after the bust. This caller was much more careful in his language. The caller was male and spoke in commands. He told Sendow to meet him right away at the regular place—something had come up.”

  “Thanks Jerry. We need to get a copy of the tape of that last call to the U.S. Marshal and see if Felicia can recognize the voice. It may be her ex. Also, Jerry, please run the TECs database for any vehicles crossing the border which are associated with her former boyfriend Luis, accountant Sendow, and the Mexican oil tanker seen at the Otay Lakes ranch.”

  The TECS database is operated by United States and Customs Border Protection (CBP). A TECS print out for a vehicle license will show the port of entry, the date, and exact time of each northbound entry into the southwest border states from Mexico. Information about northbound vehicle border crossings are readily accessible for the last twenty years.

  Pepe added, “As far as connecting the drugs with the money, we have positive alerts by drug sniffing dogs on cash deposited by the two money laundering operations at each border bank.”

  “How about the drugs Ana?” asked Nick.

  “We have the black tar heroin and the marijuana seized in the vehicle stop outside of Missoula. We have the connections between the money side and the drug side mentioned earlier. Also, remember, it was Sendow and Luis who were asking Biker Sue about real estate in Yaak and who were photographed at the first border exchange by our wildfire fighter, Drury. We have Luis and some of his underlings sufficiently tied into the drug operation, but we need more on the head of the Familia cartel, silver-haired Mateo Encinas, and chief enforcer, scar-faced Rael Sanchez. Felicia places them all together at Luis’ compound for a dinner or two, but we can’t directly tie them to the drug-money laundering operation.”

  “You’re right Ana. We should think about turning Sendow. He was at that dinner. What do you guys think?” asked Nick.

  Jerry said, “It’s a good idea, but we shouldn’t try to turn him until after we execute the search warrants. We don’t want the case to go south, excuse the intended pun, by approaching Sendow too soon and have him not cooperate. It’ll cause the rats to scurry back into their holes, dragging their ‘cheese’ with them.”

  Mario agreed, “Jerry is right. We shouldn’t approach Sendow until everything is lined up and he has no choice but to cooperate.”

  “Guys, I knew there was some reason we had you on the team other than I can beat you in a beer chugging contest. Good analysis,” said Nick.

  Nick continued, “What major investigative steps do we need to undertake before we execute search warrants on all the warehouses, offices and residences?”

  Ana replied, “We need to further explore whether the cartel is using small boats to smuggle drugs to north county San Diego beaches at night. I spoke to the Coast Guard. A number of small bales of marijuana, wrapped in waterproof plastic, washed up on an Encinitas beach a couple of months ago. Also, Encinitas P.D. busted a couple of guys driving along a beach access road at two in the morning, three weeks ago. They had fifty kilos of marijuana and twenty kilos of black tar heroin, wrapped in waterproof packaging, in the back of their S.U.V.”

  Nick, with excitement in his voice, went to command mode, “I want all the reports on the heroin-marijuana bust and the washed up marijuana. Cross-check the dates of the bust and when the marijuana washed ashore, with tide tables and moon cycles. Who knows? There may be a pattern. The cartel may like to make their ocean runs on full moon nights or with no moonlight, during low tide or high tide. If we can determine a pattern, we can be waiting for them. What else?”

  It was Pepe’s turn to risk additional work falling on his shoulders. “We have to get on that tracking warrant right away for the vehicle that is delivering the drugs to the Montana warehouse. It could lead to additional distribution warehouses between the Mexican border and Montana. I’m sure the Familia isn’t just distributing the drugs through the Montana/Canada connection. We can take down any additional warehouses we discover with all the rest.”

  “Make it a priority Pepe.”

  “Sure Nick, I’m here to obey and serve.”

  “I don’t know about that. I can’t remember the last time you obeyed me. And the only time I remember you serving me was when you brought me a beer from a bartender, along with yours. Which, if I remember correctly, I paid for.”

  Nick continued, “Once those investigative steps are completed, we execute simultaneous search warrants. After the execution, and reviewing the documents seized from Sendow, we approach him to cooperate with us. Then we seek a grand jury indictment. Any thoughts on whether we should take this case state or federal?”

  Josh immediately responded, “It has to go federal. It would be a procedural nightmare to file it in state court. A number of our witnesses are out of state. We’d have to use the Interstate Witness Act to try to compel witnesses to come to California to testify.”

  “I have used the Interstate Act before and it took me six weeks to get an order from the out-of-state court to compel the witness to come to California to testify,” said Nick.

  Josh added, “Also, in a state grand jury we have to bring in all the witnesses to testify as compared to the federal process which allows an agent to recount their statements.”

  “I agree with Josh. It’d be a lot easier to bring this case in federal court. I tried to to get legislation passed in California which would have aligned California law with the federal process for grand juries—a qualified agent can testify to witness statements. I pretty much struck out except for getting Assembly Bill 976 passed in 1999 which allows an experienced law enforcement officer to testify about hearsay for the foundation of documents. Also, there is more bang for your buck in terms of imprisonment for the charges we bring in federal court. For a transaction or transportation money laundering offense under 18 USC section 1956, a defendant can receive up to 20 years in federal prison, while under the primary state statute, he is only looking at up to three years in state prison for each money laundering violation.”

  Josh said, “We also can bring a Continuing Criminal Enterprise count under federal law. Under 21 U.S.C., section 848, a conviction brings a minimum, mandatory sentence of 20 years, and a defendant could get life. A fine of up to two million dollars for an individual defendant is thrown in for good measure.”

  Nick looked around the room. He was proud of his team; however, he was worried about all the work that still needed to be done and the legal pitfalls lurking. He didn’t let any of his anxiety show. “Great job guys! Federal court it is. I’ll arrange a meeting with Josh, myself and the U.S. Attorney to get her blessing.”

  Josh was the last to leave the meeting. “Nick, I didn’t know you worked on state legislation.”

  “Yeah, I ran the gauntlet a few times. You start with a comprehensive bill which makes sense and then the legislative committees chip away. One time in the nineties, I was trying to expand the qualifying transactions for California’s primary money laundering statute. I wanted to add personal checks as qualifying monetary instruments under the statute, instead of just cash, traveler’s checks, cashier’s checks, and money orders. That immedi
ately got shot down in committee. I always thought they were worried about personal checks from campaign donors. They didn’t seem to understand that for a violation of state money laundering, a prosecutor must prove that the person receiving the check had to know it was derived from criminal proceeds, or had to know that it was going to be used to promote criminal activity. Receiving a campaign check, without that knowledge, isn’t a violation.”

  “The legislative process is often likened to a sausage factory. I was responsible for the ‘Drummond sausage’. The California money laundering statute allows you to aggregate, otherwise qualifying transactions over seven days, to meet the transaction amount threshold of $5,000. I drafted legislation that expanded the aggregation period to 30 days. While I was testifying in front of the committee, a legislative aide actually elbowed me in the ribs and whispered, ‘Nick, they’re not going for the 30 days, come up with something else.’ So without missing a beat, I suggested a 30 day aggregation period to reach an alternative, higher threshold amount of $25,000. The second alternative became law, and to this day, one can either aggregate for a seven-day period to reach a $5,000 transaction threshold, or for a 30 day period to reach a $25,000 threshold. It wasn’t until a year later that a fellow prosecutor brought it to my attention that there had to be at least one, five thousand dollar count in every $25,000, 30 day aggregation. The second alternative was thus mere surplusage—the 30-day aggregation alternative added absolutely nothing. Sorry, I know that’s more than you ever wanted to know.”

  “No, Nick. You never know when it might come up in trivia. Have a good evening.”

  CHAPTER FIFTEEN

  “Nick, I made contact with the U.S. Marshal’s Office in Topeka and spoke to the Deputy Marshal who is Felicia’s handler. I wanted the deputy to show Felicia the photo of Banco Real account holder Castillo and for Felicia to listen to one of Sendow’s taped conversations. Deputy Lily Perkins couldn’t find her. Felicia wasn’t at her safe house and wasn’t at her dental hygienist classes. The last anyone saw her was the day before yesterday.”