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Everyone expects a snitch to lie. But when a federal agent contradicts himself on the stand � and then takes the Fifth before a jury � it’ll get a federal judge’s attention. U.S. District Judge Charles Breyer made that clear Monday morning when he called for a detailed investigation into how government agents handled a highly productive � and allegedly ethically compromised � informant who’s worked for a handful of government agencies for about five years. Breyer ordered an inquiry into whether federal drug enforcement agents committed perjury, withheld information about the informant from defendants, and allowed the informant to engage in a wide range of illegal behavior over the past five years. The probe follows the dismissal of drug charges against Nabil Ismael, who was accused of helping broker a large cocaine and methamphetamine deal. Prosecutor Alexis Hunter’s case against him got hung up in a surreal rat’s nest surrounding a key informant, who over the past two weeks has been accused of offenses ranging from mundane money squabbles to making threats of death by fundamentalist Muslims in a foreign country. But the final blow came last week when DEA agent Dwayne Bareng � a key government witness � faced cross-examination from Ismael’s attorney, Ian Loveseth. The testimony involved the credibility of Essam Magid, the informant who participated in a drug deal with Ismael. Loveseth argued Magid had a long and problematic history working for the DEA, FBI, IRS and local authorities since he was arrested on federal drug charges in 1999. In fact, Magid was fired by the FBI in 2002 after revealing the names of FBI agents to targets of a terrorism investigation, according to documents federal prosecutors provided to Loveseth during the trial. But when Loveseth asked DEA agent Bareng whether he knew why the FBI had fired the informant, Bareng said he did not. That was Aug. 15. During further cross- examination the next day, Bareng reversed himself and admitted that he did know why Magid was fired. By the end of the cross-examination, Bareng had invoked the Fifth Amendment. “It was a Perry Mason moment,” said Loveseth. “When a guy takes the Fifth in front of the jury, we’ve got a shot.” Shortly after, prosecutors dismissed the case. The exchange inflamed Breyer, who noted that Magid’s behavior “would compromise the safety of FBI agents.” The judge took umbrage with several other allegations relating to Magid and the way Bareng and other DEA agents handled him. Most notably, Breyer was upset with Magid’s admission that earlier last week he had phoned another witness to discourage him from testifying. Magid said he told the man that, if he testified, Magid would in turn testify that Magid had had sex with the man’s daughter. Since the daughter is married and lives in Yemen, this public accusation could have resulted in her being put to death. “That appears to the court as a serious case of witness intimidation that could have resulted � in the death of an innocent person,” Breyer said. And then there was the issue of suborning perjury, which came up in a small-claims case discovered by Donald Criswell, a private investigator working for defense lawyer Loveseth. In that case, DEA agent Bareng said he told Magid not to tell the judge about his employment � that he was a professional informant who had been paid about $100,000 by the DEA alone over the past few years. Breyer also called for an inquiry into whether federal prosecutors in Fresno had shared information about Magid’s behavior with defendants in another case. Reading from an April letter from the San Francisco DEA field office, Breyer said prosecutors in Fresno told a defendant there that “the DEA is not aware of any information negatively affecting Mr. Magid’s ability to testify accurately and truthfully.” While the problems surrounding Magid, Bareng and his superiors at the DEA stoked Breyer’s ire, the judge � and Loveseth � emphasized that local prosecutors had acted properly by disclosing the information. “Based upon what I see, I believe their presentation to be ethical,” Breyer said. But, ethics aside, defense lawyers and former assistant U.S. attorneys say that prosecutors should have never let it get to the point where a witness would take the Fifth. At the very least, they said, first Assistant U.S. Attorney Eumi Choi � the criminal division chief � should have dismissed the case during a conference with Breyer. She had been called down to consult after Bareng contradicted himself on the stand, but opted not to dismiss the case. Testimony continued, Bareng took the Fifth, and only then did the U.S. attorney’s office give up the case. But, defense lawyers and former assistant U.S. attorneys added, since prosecutors knew of Magid’s firing by the FBI since June, they should have prepared Bareng for that line of questioning. Speaking generally � and not about the specific case � Melinda Haag, a former federal prosecutor and now a partner at Orrick, Herrington & Sutcliffe, said government prosecutors have to carefully vet their witnesses before subjecting them to questioning. “A prosecutor has a responsibility, before putting a witness on the stand, to critically evaluate that witness and make sure that the information proffered by that witness is credible,” she said. But, Haag added, that doesn’t always work out. “Despite all diligence, there are times when things go south and surprise a prosecutor at trial,” she said. U.S. Attorney Kevin Ryan seemed surprised by the whole affair, Loveseth said, since he apparently was not briefed on developments in the case until Wednesday, after Bareng had taken the Fifth. Ryan would not comment Monday beyond what he told Breyer at the hearing. His office, he said, is taking “affirmative steps to begin review of all the issues you raise.” He agreed with Breyer’s order that the Northern District U.S. attorney’s office recuse itself from the investigation. The parties are set to meet Aug. 30 to determine how to proceed. In the meantime, at least one of Ismael’s four co-defendants has moved to withdraw his guilty plea. And Loveseth says he hopes the investigation will spur law enforcement agencies to more closely supervise their informants. But for now, he’s basking in a surprising sort of victory for his client. “I certainly didn’t think that the case would be destroyed because the agent would be the piece of dynamite,” he said. “I thought it was the informant who was going to blow up in their faces.”

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