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Federal prosecutors have come to the defense of the FBI, which has been accused of “outrageous government conduct” by directing an informant to run the Northern California drug-dealing and strong-arm operations of the Nuestra Familia prison gang. A motion filed by San Francisco solo Marc Zilversmit on Sept. 30, 2001, told U.S. District Judge Charles Breyer that the FBI approved the activity of informant Daniel Hernandez — code name Gargoyle — in a range of criminal endeavors, including 12 charged murders. Zilversmit represents Armando Heredia, one of 15 defendants charged with conducting or conspiring to conduct a Racketeer Influenced and Corrupt Organization (RICO) operation through the prison gang in USA v Rubalcaba, 00-654. Zilversmit wants Breyer to dismiss the indictment of Heredia on the RICO charges because, he claims, the FBI condoned its informant’s alleged criminal activities. The judge has not set a hearing date on the motion. In a reply filed Dec. 16, Assistant U.S. Attorney Steven Gruel defended the FBI’s involvement as a legitimate undercover operation and asked Breyer to deny Zilversmit’s motion. “In composing their version of the facts, the defense has resorted to creative writing, glossed over salient facts and ignored the defendants’ admissions in an effort to patch together a threadbare claim of ‘outrageous government conduct,’” Gruel wrote. The federal prosecutor acknowledged that Hernandez, a senior lieutenant in the prison gang, agreed to work undercover for the FBI in December 2000 after serving a prison term for parole violation. He remained an informant until June 2001. Gruel wrote that upon Hernandez’s prison release, the gang’s “high command” told him to organize and manage its street activities. Nuestra Familia leaders gave him the title of “street administrator,” or SA. “Law enforcement decided that Gargoyle’s position as the SA for the NF street gangs would help investigate and prosecute the organization,” Gruel’s motion said. “This ruse would be used to detect, identify and prosecute criminal activity.” In his motion, Zilversmit alleged that Hernandez closely supervised drug and gun deals by gang members, then bragged about his operation, which ran from Visalia to San Jose. Gruel said although Hernandez “facilitated” gang members in their criminal activities, his work “did not rise to the level of creating crime.” In fact, his reports to FBI handlers helped thwart it. “Contrary to the defendants’ slanted version of undercover events, this undercover operation prevented NF violence, identified NF drug dealers and seized drugs and guns,” Gruel wrote. Zilversmit’s most serious allegation involved the murder of Nuestra Familia member Raymond Sanchez, who was competing with other gang members for drug-dealing turf in Salinas. The defense lawyer argued that the FBI “could have done more” to prevent the shooting death of Sanchez on May 21, 2001. Zilversmit wrote that if his client could be held liable for murder as a “natural and probable consequence” of the alleged drug-dealing conspiracy, then the FBI was equally culpable. Gruel refuted that charge, writing that informant Hernandez had told gang members there was to be “no bloodshed” and “no violence.” He added that Sanchez had been hiding out and “already knew that he had serious problems” with the gang for failing to pay “taxes” to it on his drug sales. Zilversmit also alleged that Hernandez, with FBI knowledge, ordered a home invasion robbery of a drug dealer in Visalia. Gruel responded by writing that no home invasion robbery was ever attempted because the FBI was monitoring the situation through Hernandez, and later arrested a would-be robber. The federal prosecutor said case law supports the FBI in how it ran its informant operation to foil the criminal activity of the Nuestra Famila gang. “It is of no legal significance that [the] government used subterfuge or employed deception to frustrate and disrupt NF’s goals and objectives,” Gruel wrote. In an e-mail reaction to Gruel’s response, Zilversmit described the assistant U.S. attorney’s defense of the FBI as “cynical, both legally and factually.”

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