The Last Undercover (8 page)
Robert was doing his best to improve his lot as well as that of the Mexican Mafia. He wanted to upgrade its image—less gangbanger more businessman. He envisioned La Eme to be the equivalent of the traditional Mafia, not the Crips or Bloods. His personal heroin trafficking clientele included doctors and lawyers. Unlike some criminals I targeted, I could take Robert out in public.
In a subsequent meeting at the Sheraton Grande, in downtown Los Angeles, Robert and I negotiated for a larger purchase. I asked a female agent to cover the meeting from inside the upscale hotel restaurant. My security inside the popular restaurant wasn’t a real issue but additional eyes could corroborate that Robert and I did meet. I had my back to the main dining room. Robert sat against the wall and was able to see all the customers and their activities. The meeting progressed without a hitch. He made valuable admissions, including a discussion about the cost of a multiple-ounce purchase. As we lingered, Robert shocked me when he said to a patron, “Good-bye.” I turned in time to see my female surveillance agent get up from the table and leave.
“What was that all about?” I asked him.
“I don’t know, but that chica kept watching me the whole time she ate.”
I quickly responded that I had recently worked with Erik Estrada, who played Ponch on the TV show
CHiPs
, and that Robert looked so much like him she probably thought he was Estrada. He bought the quick recovery, but afterward I reminded my colleague that subtlety was crucial while on surveillance.
Less than a week later, Robert called me, asking how many ounces of heroin I wanted to order. I ordered four and awaited delivery, which he informed me would take about a week. For the quality of heroin he was providing, a week’s delay was not unusual.
On April 12, 1984, Robert and I agreed to meet at an upscale hotel near the University of Southern California campus. By this time, thanks to intelligence from a friend in the sheriff’s department, we had identified the person we believed to be Robert’s source for the heroin: Rick, a San Fernando Valley bondsman who often posted bail for local mobsters, Hells Angels, and members of the Mexican Mafia. Because of his association with those in the criminal element, I had spoken to Rick several times in my capacity as an FBI agent. We knew each other on sight. In the grand scheme of things, Robert was the bigger target—much more important than his supplier. Since I knew Rick, I had no intention or desire to see him as Robert and I concluded our transaction. So, in keeping with typical drug dealer protocol, I told Robert, “I don’t want to see any new faces,” and if I did, I’d call off the deal. He said he understood.
Once Robert delivered the heroin, a team of FBI agents was prepared to take him into custody. His arrest would be a major blow to the Mexican Mafia and a tremendous victory for Los Angeles–area law enforcement.
I sat in the lobby of the hotel, dressed casually. I had a Pittsburgh Pirates cap in my back pocket. In the early eighties, the Pirates had one of the ugliest caps in baseball and, in a town of die-hard Dodger fans, the cap would make me easily identifiable should I get lost in a crowd. Once Robert delivered the drugs I was to don the cap, signaling the arrest team that I had possession of the narcotics.
I looked up from my lobby seat and my chest froze with apprehension when I saw Robert heading toward the hotel with Rick, the bail bondsman at his side. If they came in together and Rick saw me, I was a dead man and Robert would still be on the streets.
THE COURTROOM CRAPSHOOT
I
jumped from my seat and headed toward the rear entrance of the lobby. I grabbed the Pirates cap and stuck it on my head, hoping to break up my silhouette, should Robert or Rick see me. A transmitter was taped to my ankle, and as I ran out the back, hopping on one foot, I was shouting into my ankle, “The hat’s not the signal. The hat’s not the signal.” If the moment could have been captured on camera it would probably have the makings of comedy—but at the time I was anything but amused.
As soon as I got to my undercover car, I alerted the arrest team that Robert had brought Rick with him and that Rick knew me to be an FBI agent. Within seconds the operation order changed. I sat in the car, trying to come up with an alternate plan. Soon I observed Robert—alone—in the parking lot, looking for me. I signaled to him and he came over to the vehicle.
He invited me inside to meet his friend. I repeated my earlier warning that if he brought in another person, I would back out. He tried to assure me that his supplier was honorable and that it would be good to meet him so I could do business directly with him in the future. I repeated my threats to withdraw from the transaction. He appreciated my caution but was also trying to placate Rick, who wanted to meet me.
Since I was insistent on not meeting Rick, however, Robert needed to return to Rick to discuss how the deal would happen. I showed Robert the money, assuring him I was capable of making the four-ounce purchase. He returned to the hotel lobby to tell Rick I had the money and to modify Rick’s predetermined delivery plans.
Inside the hotel, the backup team observed Robert and Rick talking. When Robert left the lobby to return to my car, a third person entered the lobby and met with Rick.
Robert instructed me to follow him and said the deal would now happen in a restaurant next door to the hotel. I exited the undercover car and followed Robert. My Pirates cap was pulled down low and I feigned the same limp I had been using throughout our meetings. As Robert and I walked toward the restaurant, Rick and his associate followed a few feet behind. When I questioned Robert, he acknowledged that the two men shadowing us were his associates. And then, as I turned the corner heading into the restaurant, I heard the distinct and unwelcome sound of a shotgun racking.
I feared the worst, thinking this was a rip, until I heard a familiar voice holler, “Freeze, FBI!”
The on-site administrator had given the arrest order. My transmitter had been working only intermittently and the arrest team had no idea what was happening. All they knew was that I was walking with thirty-two thousand dollars to an unknown location out of their sight and outside the parameters of the operations order. Fearing a robbery or worse, the arrest order went out.
Hearing the rack of the shotgun and realizing the FBI had made an arrest, I quickly drew my revolver, hidden under my shirt. I had Robert prone on the ground, waiting for somebody from the arrest team to round the corner, since I had no handcuffs. One of my colleagues cuffed Robert, and a frisk revealed he was not holding the heroin. I returned to the other two who were in custody. Rick loudly maintained his innocence, incredulous that he had been arrested. The third person, who had been meeting with Rick in the lobby, was carrying a folded newspaper. Inside the newspaper was evidentiary gold—four ounces of uncut heroin.
Three people, including the acting head of the Mexican Mafia and a mob bondsman, were in custody. It was a huge victory for the good guys.
M
eanwhile, though, what we had assumed would be a quick guilty plea from Darrel turned into a judicial nightmare. He and his boutique lawyers pulled out all the stops: lies, half-truths, and innuendo. I admit, as I view the situation in retrospect, that I made some errors in judgment. Even though my motives were pure, the appearance of impropriety felled our case.
Furthermore, as if the flurry of defense motions weren’t enough, I learned through a reliable source close to Darrel that he had put out a $100,000 contract to have Heather killed.
Fortunately, we had the information early enough that we could whisk Heather and her son to safety, eventually placing them in the Witness Protection Program. Unlike what you usually see on TV, where the endangered person is ushered into the program immediately, the FBI paid for an out-of-town motel room for several weeks until all the necessary paperwork was completed. While awaiting the Marshals Service to approve her entrance into the program, we stored all of Heather’s belongings in my garage—which led to an interesting situation.
Over the Fourth of July weekend, our church had a picnic. My wife went ahead, taking our two small children with her. I arrived a short time later escorting Heather—the drop-dead gorgeous prostitute—and her young son. I wasn’t too sure how the folks from our church would react, but to their credit, they welcomed Heather and her son and treated her like an honored guest. It was quite a sight and, thankfully, my wife was still talking to me at the end of the day.
Darrel’s motions hearing dragged on for weeks in the summer of 1984, with witnesses for both sides testifying at great lengths. As I had originally feared, sex became an issue; Darrel testified to falling in love and being intimate with Heather. He claimed he only sold drugs because of his love for her. He also said he learned everything he knew about heroin trafficking from library books.
Heather admitted to “sleeping” with him but denied ever having sex, claiming Darrel was impotent. At one point, during a break, Heather confided in me that she had been a prostitute for seventeen years and the first time she couldn’t get a guy aroused, she had to testify to it in federal court. I had to smile—a welcome relief, actually, during a pretty somber summer. Still, the law was on our side and we were confident that despite the smoke and mirrors presented by the defense, we would prevail.
The judge waited several more weeks to issue his ruling. When he did, it was a bombshell.
As we walked into the courtroom, the prosecutor from the Organized Crime Strike Force, Blair Watson, turned to me and said he didn’t have a good feeling about the forthcoming ruling. Blair had done a great job arguing our case, but his premonition turned out to be correct.
The judge said, “It would be easy for me to determine this, if I had some feeling that [Darrel] were not involved in drugs. I think the government has had every reason to look into his activities. I would think that they would be derelict if they did not. . . . [The defendant] is intricately involved in drug trafficking.” But the judge was “troubled” and “offended” by our recruitment of Heather, whom the judge called a “tragic figure.” He directed his comments to me on the sexual entrapment issues raised by the defense, characterizing my actions as a “deliberate closing of the eyes.” The judge said he believed me when I said I instructed the informants not to engage in sex, but he didn’t believe I meant it when I said it. Even though Heather and I testified that several times I warned her about engaging in sexual activities and she denied engaging in intercourse with the defendant, the judge broadened the definition of sex to include what a future president claimed under oath was not sex.
And so, the defense prevailed in its motion to dismiss the charges due to “gross governmental misconduct.” In his written ruling, the judge based his decision on three aspects of our investigation: (1) the FBI’s “manipulation” of Heather into becoming an informant; (2) the FBI’s continued use of Heather after learning that she had become sexually involved; (3) the FBI’s continued use of her after learning that she was still involved in unrelated criminal activity.
Ironically, in the same courthouse, the identical issues were raised in the Mexican Mafia case. Since Heather was the former girlfriend of Robert, who had spent sixteen of his last twenty-two years in prison, and she introduced him to me, his defense thought they could also prevail with the same argument. I will never forget U.S. District Court Judge Laughlin Waters’s words as he peered down from the bench at the defense counsel: “When the scene is set in hell, don’t expect angels to be singing in the choir.” Their defense motions were denied.
Once the initial shock of losing Darrel’s case wore off, I was livid over the decision, as was the Strike Force. The government appealed the ruling. In the meantime, I was investigated by our Office of Professional Responsibility—the FBI’s equivalent to a police department’s Internal Affairs—because the judge had criticized my investigative techniques.
The local papers covered the story of Darrel’s trial, especially the part about how the bad ol’ FBI had exploited Heather and used sex to ensnare a wide-eyed, unsuspecting heroin distributor. The
Los Angeles Times
ran a front-page feature article in which they named me over twenty-five times, emphasizing my “outrageous” conduct and printing the story without benefit of even seeking comment from the FBI or the Strike Force. The
Orange County Register
misstated the facts and the evidence in their apparent haste to paint the worst possible picture of my actions. Not my best PR outing, for sure.
In 1987, three years after the dismissal, the Ninth Circuit Court of Appeals reversed the district court judge’s ruling, stating that my conduct did not violate the due process clause of the Fifth Amendment. Even though Heather and I specifically denied that she engaged in sex with the defendant, the court still allowed that characterization of her relationship with Darrel. However, the court ruled that “the deceptive creation and/or exploitation of an intimate relationship does not exceed the boundary of permissible law enforcement tactics.” Specifically, the court found nothing wrong in the recruitment of Heather as an informant. In words never reported in any newspaper that covered the story in 1984, the court said, “We hold that the FBI’s conduct was not shocking to the universal sense of justice.”
We still weren’t out of the woods, though. When the case was remanded to the district court, the original judge dismissed the case a second time, using his “supervisory authority.” The government again appealed and again the Ninth Circuit Court of Appeals reversed the district court judge. In language that strikes at the heart of the argument about an “activist judiciary,” the Ninth Circuit ruling said,
Under the supervisory power, courts have substantial authority to oversee their own affairs to ensure that justice is done. They do not, however, have a license to intrude into the authority, powers, and functions of the coordinate branches. Judges are not legislators, free to make laws . . . nor are they executive officers, vested with discretion over law enforcement policy and decisions.