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The FBI conspired with an informant to run the entire Northern California street operation of a notorious prison gang for seven months, according to a motion filed in federal court on Monday. San Francisco solo practitioner Marc Zilversmit told U.S. District Judge Charles Breyer that the FBI engaged in “outrageous misconduct” by directing its informant, Daniel Hernandez, in a broad range of violent gang activity, including murder. “Together, the government and Hernandez ran the street operations, installing a new organization, promoting and demoting members, setting up gun and drug deals, and espousing a philosophy of violence that eventually led to the death of rival drug dealer Raymond Sanchez,” Zilversmit wrote. Zilversmit represents Armando Heredia, one of 16 defendants charged with conducting or conspiring to run a Racketeer Influenced and Corrupt Organization (RICO) operation through the Nuestra Familia prison gang. Ten of the defendants, including Heredia, are accused of conspiring to commit murder in U.S.A. v Rubalcaba, CR 00-654. Corbin Weiss, a trial attorney with the U.S. Department of Justice’s organized crime and racketeering section in Washington, D.C., who heads the investigation, said he has not read the motion and couldn’t comment. The FBI’s San Francisco spokesman, Andrew Black, referred calls to the U.S. attorney’s office. Assistant U.S. Attorney Matthew Jacobs also declined comment. “We’ll respond to any motion by filing our opposition in court,” Jacobs said. According to Zilversmit’s motion, Hernandez was a senior lieutenant in Nuestra Familia, or NF, who was facing a life prison term for participation in murder plots during the course of a RICO enterprise. Hernandez, who believed he was being set up for prosecution by higher-level members, began cooperating with the government in December 2000. His activities as “street liaison commander” for the gang were thereafter monitored by the FBI and local law enforcement as Operation Black Widow, and were recorded with audio and video equipment. “It is clear from discovery provided thus far,” Zilversmit wrote, “that while Hernandez worked for the FBI as an informant, he closely supervised all of the drug and narcotics dealings done by alleged NF members. On Jan. 17, 2001, Hernandez bragged to alleged NF associates that he had people from Visalia to San Jose to move drugs.” Although Hernandez at times ordered his charges not to engage in violence, at other times he passed on orders for violence against persons declared to be “no good,” according to the motion. On one occasion he gave the go-ahead for a plan to commit a home invasion robbery of a narcotics dealer. But the most serious allegations in the motion concern the murder of former Nuestra Familia member Raymond Sanchez. Sanchez was competing with NF member Roque Martinez for drug-dealing turf in Salinas. On May 20, Hernandez drove to Salinas with FBI undercover agents and spoke with an NF member about the Salinas dispute. Hernandez said there should be no bloodshed, but that “if something comes at us, you can’t help it. � Just don’t go out looking for it and doing anything.” The next day, Martinez and another NF member shot and killed Sanchez. “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 wrote in the motion. Zilversmit seemed particularly galled that the Monterey County district attorney then charged his client, Heredia, with murder under the theory that, although Heredia was not directly involved in the shooting, Sanchez’s death was the natural and probable consequence of the gang’s drug dealing. “Clearly, the FBI and [Operation Black Widow personnel] conspired with Hernandez to infiltrate and direct the street operations of the NF and direct its firearm and drug-dealing activity,” Zilversmit wrote. “Clearly, the FBI and OBW were aware of the potential for violence in running a prison gang and an alleged large large-scale drug operation. Clearly, too, the FBI and OBW were alerted to the death threat against Sanchez and could have done more to prevent his death. “If Heredia can thus be deemed liable for murder as a natural and probable consequence of the NF drug conspiracy, Hernandez and his FBI and OBW are guilty as well.” A veteran defense attorney familiar with the case, who asked not to be identified, said it was unlikely that Breyer would dismiss the indictments against the 16 defendants. However, attorneys who represent other defendants applauded Zilversmit’s effort to discredit the FBI and win dismissals of the indictments. “It will force the court to grapple with the troubling uses the government put [Hernandez] through,” Mary McNamara said. “He was sent in to run a RICO enterprise of drugs and firearms [and] we believe he fabricated evidence.” McNamara, of Swanson & McNamara, also said the government is accusing the defendants “of doing a RICO enterprise that led to the death of an individual.” “This is the kind of thing you don’t want the government engaging in,” she added. “You want them investigating the evidence rather than creating it.” San Francisco solo John Philipsborn, who also represents a defendant, said Zilversmit’s motion raises the issue with the judge that government inaction could be construed as misconduct. “It’s significant misconduct if the judge finds as alleged that a major informant was part of a murder and law enforcement stood by as the murder took place,” Philipsborn said. “The question is: If you’re a law enforcement agency, does the security of your investigation override the safety of a person who is a target of the investigation?” he said.

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