Latin Kings defense challenges case, prosecution worries about witnesses' safety

Lawyers for individual members of five members of the North Carolina Latin Kings assailed the federal government’s racketeering case against the group in a flurry of motions on Friday, and retorted against a reported allegation one of the defendants’ lawyers provided discovery materials to clients in violation of government policy.

Jorge Cornell, the jailed leader of the North Carolina Latin Kings, filed a response to the government’s motion for protective order through his appointed public defender on Friday. Cornell’s motion characterizes the government’s motion as being sealed, but it isn’t listed on PACER, a service that electronically archives federal court documents. The response states that on July 16, the government alleged that an unnamed defense lawyer had provided discovery materials to Cornell and that unspecified threats “had been made on the internet concerning the loyalty” of three co-defendants who had plead guilty.

“As you are aware, there is significant public support that has been on display since the indictment that remains critical of the prosecution efforts in this case,” Michael W. Patrick, who represents Cornell, wrote in an e-mail (link) to Assistant US Attorney Robert AJ Lang and Assistant US Attorney Leshia Lee-Dixon, on Thursday. “I assume that you are alluding to the expressions protected under the First Amendment when you talk about loyalty comments. If you have any real evidence to support the allegation of witness intimidation please provide it as soon as possible.”  

Patrick submitted a printout of the ALKQN Support website (link), speculating that one of the postings might be what drew the government’s objections. “An examination of this posting demonstrates that it is clearly speech protected by the First Amendment, and the posting can hardly be categorized as a threat to anyone,” the response states. “Any suggestion by the government that this is the threat that the government’s motion refers would be absurd.” 

A June 24 posting signed by the NC ALKQN Defense Coalition states, “Three of the seven Kings we all have been supporting for the past 6 months — Charles Moore, Luis Rosa and Richard Robinson — have taken cooperating plea agreements. As of yet, we are unaware of the details of these agreements. What we are aware of, however, is how deeply this compromises the safety, trust and solidarity upon which this support network is founded. We will no longer support these three men, financially, emotionally or otherwise.” 

The posting characterizes the three defendants as “victims of a violent, inhumane culture of disinformation and misdirection perpetrated by the police, federal agents and prosecuting attorneys.” It goes on to say, “As a central point of affinity between anarchists and the NC ALKQN, as we have experienced it through our relationship with Kings and Queens, is the belief that snitching against your brothers, sisters or comrades is not an option. Through the act of turning your back on your family you are no longer part of that community, but you work for the Feds — our common enemy.” 

A July 20 letter from Lang to Patrick confirms the government’s concern. 

“Regarding the issue of providing copies of the discovery to your client, the government is opposed to this based on the long-standing policy of the US Attorney’s Office in your district,” he wrote. “The basis for the concern in this case relates to the safety of those individuals who may be cooperating with the government as well as information regarding this case being posted on the internet, thereby communicating with other Latin Kings members throughout the country.” 

Patrick complained that the government’s policy “is significantly hampering the ability of counsel to confer with the clients about the case.” Patrick said an another matter “causing significant difficulties” is the fact that the defendants are housed three hours away in Farmville, Va. He asked if the government would object to the defendants being moved back to the Middle District of North Carolina before the trial. Lang responded that housing for federal defendants is determined by the US Marshals Service and the prosecution would not intervene. 

One of the motions filed variously on behalf of five defendants, including Cornell, Russell Kilfoil, Randolph Kilfoil, Samuel Velasquez and Wesley Williams, calls on the government to distinguish criminal actions by defendants who were not members of the organization at the time of their offenses from those alleged in the indictment to be crimes in furtherance of a criminal conspiracy by the Latin Kings. Another seeks to suppress evidence seized by the Greensboro Police Department in a house raid and vehicle stop because in the first instance the police allegedly fail to establish probable cause and in the second because they allegedly lacked a warrant. 

The five defendants also asked the government to prune the indictment of allegations about the national structure and culture of the Latin Kings organization and “protected speech and association activities” by Cornell that could be “prejudicial and inflammatory” to a jury. Finally, Cornell, Williams and Russell Kilfoil filed a Brady motion requesting the court to order the government to release potentially exculpatory information about an allegation that the organization attempted to extort money from a cell phone store employee and from a government investigation of a civil rights complaint filed by the Latin Kings about the Greensboro Police Department. 

From the defendants’ Motion to Dismiss Indictment as Duplicitous (link): 

The government’s discovery indicates that on or about October 1, 2008, several alleged members of the Latin Kings including an unindicted co-conspirator Cesar Herrara and co-defendant Paul Yates attempted to call a meeting to vote out co-defendant Jorge Cornell as Inca of the Latin Kings in North Carolina. The government evidence indicates that as a result, defendants Jason Yates and Irvin Vasquez were expelled from the Latin Kings in October 2008. Nevertheless, the indictment alleges Yates and Vasquez committed overt acts after that time in furtherance of the Latin Kings racketeering enterprise conspiracy charged in the indictment. For example, the superseding indictment in ¶18(q) alleges that on or about December 18, 2008, Yates, Vasquez and two others committed an armed robbery and kidnapping of a drug dealer in Morrisville, North Carolina. The superseding indictment also alleges that in March 2009, defendant Cornell ordered members of the Latin Kings to be ready to take action against Yates. See ¶18(z). While the actions taken after October 2008 by Yates and Vasquez may have theoretically constituted a second racketeering conspiracy conducted by Yates and Vasquez, their actions cannot have been in furtherance of the racketeering enterprise that the indictment alleges defendant Cornell was conducting. 

The Motion to Suppress Evidence (link) indicates that Greensboro police seized a firearm, various controlled substances and documents in two separate searches. 

The motion argues that an affidavit in support of a search warrant of 2809 Keeler Street, where the Latin Kings stayed for a time, “contains no reliable information to establish probable cause”: 

The affiant stated the following: “a confidential source [said] that they have witnessed persons from 2809 Keeler St partaking in drug activity outside of their business.” The affidavit provides no information about the reliability of this source. It does not identify these persons. The affidavit provides no link between the residence and the drug activity; since Keeler street is a residence and the affidavit indicates that the drug activity occurred outside the confidential source’s business there is no explanation of why there is a connection to residence. United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993). In addition, there is no information about the temporal relationship of the receipt of the information to the date on which the warrant was requested. Time is the crucial element of probable cause. United States v. McCall, 740 F2d 1331-36 (4th Cir. 1984). 

The affidavit goes on to state that a trash pull was conducted at the residence. The affidavit is silent as to when this trash pull occurred. In addition, police are not authorized to search trash from a residence without a search warrant. California v. Greenwood, 486 US 35 (1988), United States v. Tate, 524 F3d 449 (4th Cir. 2008). 

The motion alleges that the Greensboro police officers were working with the FBI’s Safe Streets Task Force in June 2007 when they obtained the search warrant. The government has acknowledged the collaborative role of federal, state and local law enforcement in building the case against the North Carolina Latin Kings. 

A press release (link) from the US Attorney’s Office at the time of indictment last December included a prepared statement by Chris Briese, the special agent in charge of the FBI Charlotte Division: “These arrests today are an outstanding example of the tireless work of the Safe Streets Task Force. The gang’s attempt to portray the Latin Kings as a public service organization did not deter the FBI and our law enforcement partners from uncovering their scheme.” 

Also from the Motion to Suppress: 

The stop and search of the van was a warrantless search. It is well settled that a search conducted without a warrant is per se unreasonable unless a valid exception to the warrant requirement exists. Schneckloth v. Bustamonte, 412 US 218 (1973). In this case the validity of the initial stop of the vehicle was doubtful. The incident reports of the officer claimed that the traffic stop was initiated for failure of the vehicle to stop at a stop sign…. In addition, the weapons that were seized as concealed weapons were found in plain view by the police following the traffic stop whereas the arresting officers claimed that the facts that the weapons were concealed was the basis for seizing the weapons in this case. 

 In its Motion for Production of Evidence (link), Patrick questions whether the government has provided all required documents. 

Per the government’s allegations of extortion: 

Counsel has requested copies of information related to the overt act of Count 1 that alleges that defendants Cornell and Kilfoil extorted money from a cell phone store employee (Alma Esparza). These charges were the subject of state charges against both defendants to which Ms. Esparza plead guilty and which the state ultimately dismissed. Upon information and belief, during the state prosecution, the prosecution and police had access to store receipts and store videos that showed Ms. Esparza buying thousands of dollars of merchandise such as jewelry with money she had embezzled. From an examination of the government discovery in this file which is redacted as to witness identities, it appears that Ms. Esparza will testify as a government witness in connection with this overt act. Furthermore, during the detention hearing held in this matter, the testifying FBI agent indicated the government had evidence that this witness has purchased merchandise for her own use. 

The motion references a story (link) published in YES! Weekly last December that quoted Guilford County Assistant District Attorney Howard Neumann from a 2008 interview. 

“She told the police a couple different stories,” Neumann said of Esparza, without referencing her by name. “One of the stories was that she was doing this for the Latin Kings, and they had threatened to harm her family if she didn’t continue to do so. We were able to find where she had literally made thousands of dollars of cash purchases herself at a jewelry store in Greensboro, and at Dillards at Four Seasons. We were able to substantiate that she was spending the cash. All these were public places that were under video surveillance by businesses.” 

Assistant US Attorney Leshia Lee-Dixon said in a letter (link) to Patrick on July 5: “To date, law enforcement is not aware of any store videos that depict Esparza making purchases.” 

Per the Latin Kings’ civil rights complaint (link): 

Several persons associated with the Latin Kings, including defendant Jorge Cornell, through counsel filed a Title IV complaint with the United States Department of Justice alleging, inter alia, that the Greensboro police department was committing discriminatory acts by pursuing unfounded criminal cases against Hispanic members of the Greensboro community. A number of these criminal cases involve cases brought against the defendants in the present actions that were subsequently dismissed in state court…. 

A comparison of the Title VI complaint to the overt acts alleged in Count One of the superseding indictment in this case illustrates a substantial overlap between the events concerned in the two cases. Under federal law, the DOJ is required to undertake investigation of complaints against police agencies receiving federal funding such as the GPD. 

Beginning in June 2012, counsel for defendant Cornell began requesting that the government disclose copies of the investigative materials generated by the DOJ’s investigation of the Title VI complaint because it potentially contains information relevant to the allegation of the indictment in which the complaint overlaps, and the information is potentially exculpatory. To date, the government has not disclosed any information concerning the investigation. 

Reporting note: Thoroughness and professionalism dictate that the US Attorney's Office for the Middle District of North Carolina, the Greensboro Police Department and the NC ALKQN Defense Network should have been given an opportunity to respond to information in this article, but regrettably I'm leaving for a nine-day vacation in less than 24 hours, so time didn't allow for interviews. However, I'm sure the issues raised here will be vetted in due time.

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